                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 07a0609n.06
                               Filed: August 21, 2007

                                          No. 06-5296

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                ON APPEAL FROM THE
                                       )                UNITED STATES DISTRICT
v.                                     )                COURT FOR THE WESTERN
                                       )                DISTRICT OF TENNESSEE
LaPEDRO FINLEY,                        )
                                       )                       OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: MOORE, COOK, Circuit Judges; and ADAMS,* District Judge.

        KAREN NELSON MOORE, Circuit Judge. LaPedro Finley appeals the district court’s

denial of his motion to suppress and its application of a two-point enhancement for possession of

a dangerous weapon. For the reasons described below, we AFFIRM the district court’s judgment

in all respects.

                                      I. BACKGROUND

A. Factual Background

        In late 2004, Officers Harold Tellez and Dean Fitzgerald were assigned to the Metro Gang

Unit in Memphis. Because of previous complaints of gang and drug activity in the Southeast




        *
        The Honorable John R. Adams, United States District Judge for the Northern District of
Ohio, sitting by designation.
Precinct, Tellez and his partner (Officer Avery) were patrolling the area in an unmarked car on the

evening of December 21, 2004. Officer Fitzgerald rode in a separate car.

       Fitzgerald saw a “group of black males loitering around in a yard and on the street area in the

middle of a rainstorm.” Joint Appendix (“J.A.”) at 99 (Suppression Hr’g Tr., Fitzgerald Test. at

53:23-25). Because the weather was cold and unpleasant, Fitzgerald thought this gathering seemed

unusual, so he contacted Tellez and Avery to report the address where the group of men congregated

and proceeded to pass by the group.

       1. Officers’ Initial Contact with Finley

       Tellez drove toward the address. As he and Avery (who was in the passenger seat)

approached the location, they noticed a white Mercury parked on the street parallel to the curb, about

seven feet away from the crowd. The car was idle, and its lights were off. Although the car was near

the group, Tellez recalled that it was parked away from the curb and may have been blocking traffic.

Tellez further recounted, “As we were passing by the two occupants in the car, they kind of slumped

down like they—they didn’t want to be seen.” J.A. at 77 (id. at 18:2-4). Tellez thought this behavior

was suspicious, so he began to turn the car around after he passed the white Mercury. Once the

officers began turning, the occupants opened the doors and got out of the car, “[w]hich really

arouse[d Tellez and Avery’s] suspicion even more.” J.A. at 77-78 (id. at 18:23-19:3). At that point,

the officers activated their car’s police lights, got out of the car, and ordered the two men to stop.

The men complied.

       Tellez frisked the man who exited the car’s driver-side door. After finding no weapons,

Tellez asked the man for identification, which the man said was in the car. Fitzgerald, who had

returned to the scene and had just finished frisking the group of people in the yard, walked with the


                                                  2
man. When they got to the car, the man fished a Tennessee driver’s license from a coat in the back

seat. The license revealed that he was LaPedro Finley.

        While he was at the car with Finley, Fitzgerald smelled marijuana and signaled as much to

Tellez, who then asked Finley for permission to search the car. Finley consented. Once Tellez

leaned down to look inside the car, Finley fled on foot. Fitzgerald prevented Tellez from chasing

Finley because Fitzgerald already had Finley’s ID. Tellez and Fitzgerald searched the car and found

a large bag containing five bricks of marijuana and about a quarter kilogram of cocaine powder.

Officer Avery told them that he had seen Finley drop something in the yard as he fled. After

searching the yard, the officers retrieved a bag containing crack cocaine.

        2. Search of Finley’s Residence

        That night, the officers learned Finley’s address from one of the people on the scene. They

went to that address hoping to find Finley, who had absconded. They entered the residence using

keys retrieved from the white Mercury and found several guns (including an AK-47), approximately

290 grams of cocaine, and over 2.3 kilograms of marijuana. All of these items were located in the

attic, where a twelve-year-old boy was hiding. Finley’s girlfriend, Clary Lee, was apparently present

during this search, and after the officers found these items, they arrested her. Officer Fitzgerald later

testified that the packaging of these drugs “was consistent with the packaging of the marijuana” in

Finley’s car. J.A. at 143 (Detention Hr’g Tr. at 20:4-10).1




        1
         The Assistant United States Attorney prosecuting the case represented to the district court
that Fitzgerald had so testified. The Joint Appendix does not contain any record of this testimony,
nor does it contain any indication that Finley’s counsel objected to the AUSA’s representations.

                                                   3
       3. Interrogation of Finley

       On December 29, 2004, the United States District Court for the Western District of

Tennessee issued a criminal complaint against, and an arrest warrant for, LaPedro Finley. The arrest

warrant was executed that day, and Memphis Police officer Roger Nelson interviewed Finley after

he was taken into custody. During this interview, Finley acknowledged that he had given officers

permission to search his car, but denied that the drugs found in the car were his. Additionally, Finley

admitted that he ran from the officers, claiming he did so because “he had about an ounce of weed

in his pocket and he thought that he had an outstanding juvenile warrant.” J.A. at 108-09

(Suppression Hr’g Tr., Nelson Test. at 72:25-73:7). Regarding the search of the residence, Finley

admitted that he was living there at the time, and also admitted that the guns belonged to him. He

denied that he owned the drugs, however, claiming that they belonged to his girlfriend.

B. Procedural Background

       After Finley was indicted on three counts of possession with intent to distribute an illegal

substance, he moved to suppress “all evidence obtained as a result of his unlawful stop, detention

and search of his belongings,” as well as “any . . . statements where he was clearly in custody at the

time he was questioned by the police.” J.A. at 16-17 (Mot. to Suppress at 3-4). The district court

held a suppression hearing on March 30, 2005, and heard testimony from Officers Tellez, Fitzgerald,

and Nelson. It also heard testimony from Jeremy Robinson and Sally Robinson, the brother and

mother, respectively, of the other man in Finley’s car on December 21, 2004. The district court

denied Finley’s motion in all respects.

       Finley entered a conditional guilty plea to all three counts on September 26, 2005, but

reserved his right to appeal the denial of his motion to suppress. On February 27, 2006, the district


                                                  4
court held a sentencing hearing. Recognizing that the Sentencing Guidelines were advisory, the

district court followed the Presentence Report’s calculation of the applicable Guideline range,

applying a two-point enhancement under Guideline § 2D1.1(b)(1) for possession of a dangerous

weapon (namely, the firearms found in Finley’s apartment).

       Finley objected to the district court’s application of the two-level enhancement, emphasizing

that the firearms were not “relevant conduct” because they were found at a different location from

the charged drugs and were not in any way tied to the drugs found in the car. The district court

rejected this argument, concluding that the government had shown “that the firearm was pos[ess]ed

and that the defendant was involved in the drug business and there was some connection.” J.A. at

160 (Sentencing Hr’g Tr. at 26:20-22). Because the two-level enhancement applied, Finley was not

eligible for a safety-valve reduction under Guideline § 5C1.2(a). Accordingly, the district court

sentenced Finley to his mandatory minimum of sixty months of incarceration. Finley timely filed

his notice of appeal on March 1, 2006.

                                          II. ANALYSIS

A. Jurisdiction

       The district court had jurisdiction over this criminal case under 18 U.S.C. § 3231. We have

jurisdiction over Finley’s appeal from the district court’s judgment under 18 U.S.C. § 3742(a).

B. Denial of Motion to Suppress Evidence

       1. Standard of Review

       “When reviewing the denial of a motion to suppress, we review the district court’s findings

of fact for clear error and its conclusions of law de novo.” United States v. Foster, 376 F.3d 577, 583




                                                  5
(6th Cir.), cert. denied, 543 U.S. 1012 (2004) (internal quotation marks and citation omitted). We

review all evidence in the light most favorable to the district court’s decision. Id.

        2. Analysis

        Although the district court analyzed the officers’ interaction with Finley as a traffic stop

under Whren v. United States, 517 U.S. 806 (1996), we believe that Terry v. Ohio, 392 U.S. 1

(1968), controls. “Terry . . . permits a police officer briefly to detain a person or property for

investigative purposes if the officer has a reasonable suspicion, supported by articulable facts, that

criminal activity has occurred or is about to occur.” United States v. Davis, 430 F.3d 345, 354 (6th

Cir. 2005). To determine whether an investigatory detention comports with the Fourth Amendment,

we apply a two-step analysis: First, we determine whether, under the totality of the circumstances,

“‘there was a proper basis for the stop, which is judged by examining whether the law enforcement

officials were aware of specific and articulable facts which gave rise to reasonable suspicion.’” Id.

(quoting United States v. Garza, 10 F.3d 1241, 1245 (6th Cir. 1993)). If the answer is affirmative,

we determine “‘whether the degree of intrusion . . . was reasonably related in scope to the situation

at hand, which is judged by examining the reasonableness of the officials’ conduct given their

suspicions and the surrounding circumstances.’” Id. (quoting Garza, 10 F.3d at 1245) (alteration in

original).

        The officers’ encounter with Finley satisfies both prongs of this test. The totality of the

circumstances illustrates that the officers had reasonable suspicion to believe that criminal activity

may have been afoot. The officers on the task force were assigned to an area riddled with crime and

gang violence and had recently been called into the neighborhood because residents were

complaining about drug dealing. Tellez and Avery approached the house that Finley was parked in


                                                  6
front of because they had received a call from Fitzgerald reporting a suspicious situation (a group

of young men standing around in front of a house while the weather was cold and rainy). As they

neared the house, they noticed two men sitting in a car parked in front of the house with the engine

running. When these men saw that Tellez and Avery were police officers, they slumped down in

their seats to avoid being seen, and when Tellez turned his car around to approach them again, they

quickly exited the car. Tellez testified that his experience has been that such behavior generally

indicates that the car’s occupants were trying to distance themselves from something inside the car.

       Each of these facts, on its own, might not be sufficient to establish reasonable suspicion.

Controlling precedent, however, indicates that each is relevant when considering the totality of the

circumstances. See, e.g., Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (noting that the fact that the

events took place in a high-crime area is relevant under the Terry analysis); United States v. Bailey,

302 F.3d 652, 659 (6th Cir. 2002) (same); United States v. Caruthers, 458 F.3d 459, 466 (6th Cir.),

cert. denied, 127 S. Ct. 752 (2006) (noting that a defendant’s furtive movements and other evasive

behavior are pertinent in determining whether officers’ suspicion was reasonable); United States v.

Arvizu, 534 U.S. 266, 277 (2002) (officers may rely on their experience in determining whether

behavior appears suspicious). Each of these factors exists here, so we conclude that the officers had

reasonable suspicion to believe that criminal activity may have been afoot.

       Because the government satisfies the first step of the Terry analysis, we consider the second.

We conclude that the officers did not violate Finley’s Fourth Amendment rights, as the officers’

intrusion upon Finley’s liberty was not unreasonable given the circumstances. We have previously

recognized that “upon making the stop, ‘the officer may ask the detainee a moderate number of

questions to determine his identity and to try to obtain information confirming or dispelling the


                                                  7
officer’s suspicions.’” United States v. Butler, 223 F.3d 368, 374 (6th Cir. 2000) (quoting Berkemer

v. McCarty, 468 U.S. 420, 439-40 (1984)). Further, “[l]aw enforcement officers do not violate the

Fourth Amendment by merely approaching an individual on the street or in another public place, by

asking him if he is willing to answer some questions, or by putting questions to him if the person is

willing to listen.” Foster, 376 F.3d at 584 (internal quotation marks and alterations omitted).

        Here, the officers’ intrusion upon Finley’s liberty was de minimis and lasted no longer than

necessary for the officers to investigate their suspicions. After Finley exited the car and the police

activated their car’s blue lights, Officer Tellez ordered Finley to stop. Officer Tellez then

approached Finley, asked him for identification, and conducted a protective pat-down to determine

whether Finley was armed. When Finley said his identification was in his car, Officer Fitzgerald

followed him to the car, where he smelled marijuana. Officer Tellez asked Finley for permission to

search the car, which Finley granted.

        Once the search began, Finley fled. The officers never physically detained Finley; their only

restraints on his freedom of movement were their command that he stop walking away from the car

and their ensuing request for identification. Accordingly, we conclude that the degree of intrusion

on Finley’s liberty was reasonably related to the officers’ suspicion.

        For these reasons, we conclude that the officers’ initial contact with Finley did not violate

the Fourth Amendment. Finley offers no independent basis for suppressing the fruits of the search

or his statements to officers, contending only that they were tainted by the unlawful initial encounter.

Because the initial encounter was constitutional, there is no basis for suppressing the seized evidence

or Finley’s statements to officers after his arrest.




                                                   8
C. Two-Level Sentencing Enhancement for Possession of a Dangerous Weapon

       Finley next challenges the district court’s imposition of a two-point enhancement under

United States Sentencing Guideline § 2D1.1(b)(1) for possession of a dangerous weapon during a

drug offense. The district court concluded that the enhancement applied because the government

had “show[n] that the firearm was pos[ess]ed and that the defendant was involved in the drug

business and there was some connection.” J.A. at 160 (Sentencing Hr’g Tr. at 26).

       1. Standard of Review

       When reviewing the district court’s application of the Sentencing Guidelines, we apply the

same standards of review that applied before United States v. Booker, 543 U.S. 220 (2005). United

States v. Davidson, 409 F.3d 304, 310 (6th Cir. 2005). More specifically, we review for clear error

the district court’s findings of fact, id., but review de novo mixed questions of law and fact, United

States v. Cousins, 469 F.3d 572, 575 (6th Cir. 2006).

       2. Analysis

       Guideline § 2D1.1(b)(1) calls for a two-point enhancement “[i]f a dangerous weapon

(including a firearm) was possessed.”2 Application Note 3 states, “The adjustment should be applied

if the weapon was present, unless it is clearly improbable that the weapon was connected with the

offense.” Putting this Guideline into practice, we have held that “[a]n enhancement under

§ 2D1.1(b)(1) is proper only if the government establishes, by a preponderance of the evidence, that

(1) the defendant possessed a dangerous weapon (2) during the commission of a drug-trafficking

offense.” United States v. Moses, 289 F.3d 847, 850 (6th Cir. 2002). If the government meets its



       2
        The PSR applied the 2004 version of the United States Sentencing Guidelines. All
quotations from the Guidelines are taken from the 2004 version.

                                                  9
burden, then “the weapon is presumed to have been connected to the defendant’s offense.” Id. The

defendant can rebut this presumption by establishing by a preponderance of the evidence the defense

identified in Application Note 3—that it is clearly improbable that the weapon was connected to the

offense. Id.3

        We have previously clarified that the government need not show that the defendant possessed

the weapon during the commission of the offense; instead, it must show only that the weapon was

possessed during “relevant conduct,” which “includes ‘all acts and omissions . . . that were part of

the same course of conduct or common scheme or plan as the offense of conviction.’” United States

v. Faison, 339 F.3d 518, 520 (6th Cir. 2003) (quoting U.S.S.G. § 1B1.3(a)(2)). Here, the weapons

in question were found not with the drugs that were found in Finley’s car and charged in the

indictment, but rather with the drugs found in Finley’s residence after he fled. Thus, to determine

whether Finley possessed the weapons during “relevant conduct,” we must determine whether the

drugs found in the residence were part of the same course of conduct or common scheme or plan as

Finley’s possession of drugs in his white Mercury on December 21, 2004. When determining

whether two acts were part of the “same course of conduct,” we consider the following factors: (1)

the similarity of the acts; (2) the repetitions of the acts or offenses; and (3) the time interval between

the acts. Id. Similarly, for two acts to be part of a “common scheme or plan,” they “must be

substantially connected by at least one common factor such as ‘common victims, common


        3
        The government misconstrues Finley’s argument when it suggests that Finley bears the
burden of proving that the firearm was not connected to the offense. That standard might apply if
Finley were challenging the district court’s refusal to grant him a reduction under § 5C1.2(a)’s
“safety valve” provision. United States v. Bolka, 355 F.3d 909, 912 (6th Cir. 2004). Finley,
however, challenges the district court’s imposition of the § 2D1.1(b)(1) enhancement itself.
Although reversal of the § 2D1.1(b)(1) enhancement might ultimately lead to a safety-valve
reduction, the two inquiries are separate. See id. at 914-15.

                                                   10
accomplices, common purpose, or similar modus operandi.’” Id. at 520-21 (quoting United States

v. Hill, 79 F.3d 1477, 1481 (6th Cir.), cert. denied, 519 U.S. 858 (1996)).

        First, we must determine whether Finley possessed the drugs found in the residence.4 When

the officers searched Finley’s apartment on December 21, 2004, they found drugs in the attic with

the weapons, and the drugs were packaged the same way as those found in Finley’s car. Although

the district court did not offer any clear findings of fact, the Joint Appendix in this case demonstrates

by a preponderance of the evidence that Finley constructively possessed the drugs in the attic. Three

primary reasons support this conclusion. First, Finley admitted that he was living in the residence

where the officers found the marijuana. Second, the key ring pulled from the white Mercury

contained keys to that residence. Third, the marijuana was found in the same space (the attic) as

other items of which Finley acknowledged ownership (the guns). Because the government may

establish constructive possession of an item by demonstrating the defendant’s “dominion over the

premises where the item is located,” United States v. Darwich, 337 F.3d 645, 665 (6th Cir. 2003),

the aforementioned three reasons, taken together, illustrate that Finley constructively possessed the

marijuana in the residence.

        The next issue we must decide is whether Finley’s possession of the drugs in the car and the

possession of the drugs in the house were similar enough and close enough in time to be part of the

same “course of conduct.” We conclude that they were. Officers found the drugs in the residence

hours after they found the drugs in Finley’s car, and the Joint Appendix indicates that the drugs in

both locations were packaged similarly. Finley’s possession of the drugs in the apartment is


        4
        Finley argued to the district court that the drugs in the apartment belonged to his girlfriend
Clary Lee. Nonetheless, the issue here is whether Finley possessed the drugs, not whether he owned
them.

                                                   11
therefore “relevant conduct” under the Sentencing Guidelines. And because Finley possessed

dangerous weapons in the same location as these drugs, the district court did not err in applying the

§ 2D1.1(b)(1) enhancement. Faison, 339 F.3d at 520-21 (weapons and drug proceeds and

paraphernalia found together fourteen months after end of charged conspiracy were relevant conduct

justifying § 2D1.1 enhancement); United States v. Mitchell, 63 F. App’x 224, 228-30 (6th Cir. 2003)

(unpublished) (affirming enhancement when, months after the charged conduct, officers found the

gun with uncharged drugs); see also Davidson, 409 F.3d at 312-13 (affirming application of the

enhancement to a defendant convicted of attempting to manufacture methamphetamine when the gun

was found in the same residence as the drugs); United States v. Keszthelyi, 308 F.3d 557, 578-79 (6th

Cir. 2002) (affirming application of the enhancement to a defendant convicted of distributing drugs

out of his home when the gun was found in his home); Hill, 79 F.3d at 1485-86 (enhancement

affirmed when weapon was found in same house as the charged drugs). Further, Finley has provided

no reason to conclude that it was clearly improbable that his possession of the guns was connected

with his possession of the drugs. Thus we reject Finley’s challenge to his sentence.

                                       III. CONCLUSION

       For the aforementioned reasons, we AFFIRM the district court’s judgment.




                                                 12
