                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 06a0359n.06
                                 Filed: May 18, 2006

                                           No. 05-3556

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

v.                                                        ON APPEAL FROM THE
                                                          UNITED STATES DISTRICT
SOLOMON CLAY,                                             COURT FOR THE NORTHERN
                                                          DISTRICT OF OHIO
          Defendant-Appellant.


                                                      /

Before:          MERRITT, MARTIN, and McKEAGUE, Circuit Judges.

          BOYCE F. MARTIN, JR., Circuit Judge. Solomon Clay appeals the district court’s decision

denying his motion to suppress evidence in a criminal case against him for felony possession of a

firearm. 18 U.S.C.A. § 922(g)(1). The evidence in question was a firearm and ammunition found

as a result of a Terry stop. For the reasons discussed within, we AFFIRM the district court’s

decision.

                                                 I.

          All of the relevant events occurred on October 12, 2003. Youngstown Police Officer John

Scott Aeppli was patrolling the south side of Youngstown, Ohio, including West Florida Street.

Based on Officer Aeppli’s experience, he considered the West Florida Street area to be a high crime

and drug area. Upon his arrival, Aeppli observed a vehicle parked behind the house at 104 West

Florida Street, which he believed to be abandoned. As he drove by the house, Aeppli saw two
No. 05-3556
United States v. Clay
Page 2

individuals in the car, including Solomon Clay in the driver’s seat. Aeppli testified that both

passengers in the car intently watched him pass.

       Aeppli decided to drive around the block in order to make a second pass of the vehicle. On

his second drive by the residence, Aeppli witnessed the passengers in the car make furtive motions

with their hands in the direction of the dashboard. Based on his observations of the passengers in

the car and his experience and knowledge of the area, Officer Aeppli decided to approach the

vehicle, and he pulled into the driveway of the residence and blocked the car from exiting.

       Shanita Law, seated in the passenger seat, stated that she resided at 104 West Florida Street;

however, upon Aeppli’s request, Law was unable to produce identification or any other proof of her

place of residence. After asking the two to exit the vehicle, Aeppli passed the driver’s side of the

vehicle and noticed an open box of .9mm ammunition in plain view on the driver’s side floor of the

car. Upon suspicion that a firearm was present in the automobile, Aeppli conducted a thorough

search of the car and discovered a loaded .9mm firearm in the glove box. Aeppli then arrested Clay

for mishandling a firearm in a motor vehicle, a violation of Ohio state law.

       Clay was later charged with being a felon in possession of a firearm. 18 U.S.C.A. §

922(g)(1). Clay pled not guilty and, on March 15, 2004, filed a motion to suppress the firearm and

ammunition seized from the vehicle. After a suppression hearing, the district court denied Clay’s

motion to suppress on August 9, 2004. On January 4, 2005, Clay entered a conditional plea of guilty

to the charge of felon in possession of a firearm and reserved his right to challenge the denial of his

motion to suppress. On March 29, Clay was sentenced to twenty-seven months incarceration. Clay

filed a timely appeal to this Court on April 1.
No. 05-3556
United States v. Clay
Page 3

                                                 II.

       This Court reviews a district court’s factual findings in a suppression hearing for clear error

and the district court’s conclusions of law de novo. United States v. Richardson, 385 F.3d 625, 629

(6th Cir. 2004). “The primary interests that the Fourth Amendment protects include an interest in

freedom of movement and insulation from the fear and anxiety produced by unlawful seizure.” Id.

       Under the Fourth Amendment, there are three types of permissible encounters
       between police and citizens: consensual encounters in which contact is initiated by
       a police officer without any articulable reason whatsoever and the citizen is briefly
       asked some questions; a temporary involuntary detention or Terry stop which must
       be predicated upon “reasonable suspicion;” and arrests which must be based on
       probable cause.

United States v. Alston, 375 F.3d 408, 411 (6th Cir. 2004) (quoting United States v. Bueno, 21 F.3d

120, 123 (6th Cir. 1994)). In Terry v. Ohio, 392 U.S. 1, 27 (1968), the Supreme Court held that

officers have the authority to stop and temporarily detain citizens so long as the officer has

reasonable suspicion to justify the stop. An unlawful seizure occurs when an officer, without

reasonable suspicion, “by means of physical force or show of authority . . . in some way restrain[s]

the liberty of a citizen.” Id. at 19 n.16. “One’s liberty is restrained when a reasonable person would

not feel free to walk away and ignore the officer’s requests.” Richardson, 385 F.3d at 629 (citing

United States v. Mendenhall, 446 U.S. 544, 554 (1980)).

       According to Terry, a warrantless search is legal if

       a reasonably prudent man in the circumstances would be warranted in the belief that
       his safety or that of others was in danger . . . And in determining whether the officer
       acted reasonably in such circumstances, due weight must be given . . . to the specific
       reasonable inferences which he is entitled to draw from the facts in light of his
       experience.
No. 05-3556
United States v. Clay
Page 4

Id. at 27. In United States v. Cortez, 449 U.S. 411, 417-18 (1981), the Court discussed Terry, stating

that

       [a]n investigatory stop must be justified by some objective manifestation that the
       person stopped is, or is about to be, engaged in criminal activity . . . the totality of
       the circumstances – the whole picture – must be taken into account. Based upon that
       whole picture the detaining officers must have a particularized and objective basis
       for suspecting the particular person stopped of criminal activity.

       As with any Terry stop, this Court must first determine when the stop took place and then

decide whether, at that time, the officer had reasonable suspicion for the stop. See Richardson, 385

F.3d at 629-631. It is uncontested that a seizure took place at the instant when Aeppli pulled his car

into the driveway of 104 West Florida Street and detained the vehicle Clay and Law were

occupying.

       From the moment Aeppli pulled into the driveway, this Court must evaluate the totality of

the circumstances to determine whether Aeppli had reasonable suspicion to detain the vehicle at that

time. See Richardson, 385 F.3d at 630; see also United States v. Patterson, 340 F.3d 368, 370-71

(6th Cir. 2003) (“At this point, the officers needed to have reasonable suspicion in order to stop the

defendant”). “We view the evidence offered in support of reasonable suspicion using a common

sense approach, as understood by those in the field of law enforcement.” Richardson, 385 F.3d at

630 (citing Cortez, 449 U.S. at 417-18).

       In support of the search, the government presents the following factors: 1) Officer Aeppli’s

belief that the house at 104 West Florida Street was abandoned, 2) the area was, based on Aeppli’s

knowledge and experience, considered a high crime area, 3) the occupants of the vehicle watched

Officer Aeppli drive by, and 4) the rapid hand movements by the occupants of the vehicle. The
No. 05-3556
United States v. Clay
Page 5

government attempts to add factors which came to Aeppli’s attention after he had detained the

vehicle, such as the presence of ammunition which the government alleges “heightened or extended

the officer’s previous reasonable suspicions.” Any factors, however, discovered after the car was

seized do not belong in the Terry analysis for determining whether Aeppli had reasonable suspicion

in initially detaining the vehicle. Richardson, 385 F.3d at 630; Patterson, 340 F.3d at 370-71.

Therefore, based on the belief that the house was abandoned, the high crime area, the fact that Clay

and Law stared at Aeppli during his drive and their rapid hand movements, Aeppli had reasonable

suspicion to detain the vehicle.

                                                  III.

        Upon careful review of these factors, the entire record, and the parties’ briefs, we conclude

that the district court correctly concluded that Officer Aeppli had sufficient reasonable suspicion that

Clay was engaged in illegal conduct to justify a Terry stop. Accordingly, we adopt the reasoning

of the district court and affirm.
No. 05-3556
United States v. Clay
Page 6

       MERRITT, Circuit Judge, concurring. So far as I can tell from the record in this case,

Officer Aeppli perhaps actually arrested Clay by pulling his police car directly in front of Clay’s car

with lights flashing and by ordering the occupants out. I do not see how Clay could physically

leave. Such an action by the officer would be an arrest requiring “probable cause,” not just

“reasonable suspicion.” But that issue was not raised on appeal and apparently not in the district

court either. So it is not before us. Since the standard is only reasonable suspicion, I agree with the

Court that the officer had a reasonable basis for further inquiry.
