                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 07a0834n.06
                            Filed: December 10, 2007

                                                 07-5021

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                             )
                                                      )
        Plaintiff-Appellee,                           )
                                                      )
v.                                                    )    ON APPEAL FROM THE UNITED
                                                      )    STATES DISTRICT COURT FOR THE
MARCUS MCGUIRE,                                       )    EASTERN DISTRICT OF KENTUCKY
                                                      )
        Defendant-Appellant.                          )




        Before: DAUGHTREY and COOK, Circuit Judges; VINSON,* District Judge.




        PER CURIAM. The defendant, Marcus McGuire, pleaded guilty to charges of

possessing with intent to distribute five grams or more of cocaine base and of being a felon

in possession of a firearm, at the same time reserving the right to contest the

constitutionality of a search that uncovered the evidence on which those charges rested.

On appeal, McGuire now asserts that the incriminating evidence should have been

suppressed because the arresting officer had no justification for the initial seizure of the

defendant and his vehicle. Despite some question about the consensual nature of the



        *
         The Hon. C. Roger Vinson, United States District Judge for the Northern District of Florida, sitting
by designation.
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United States v. McGuire

defendant’s initial interaction with the arresting officer, we conclude that the officer had “a

reasonable and articulable suspicion” that McGuire was involved in criminal activity so as

to justify the brief investigatory stop that led to the establishment of probable cause to

search his car. We therefore affirm the judgment of the district court, although on grounds

different from those set out in the district judge’s order denying the defendant’s motion to

suppress.


                    FACTUAL AND PROCEDURAL BACKGROUND


       Shortly before 1:00 a.m. on July 3, 2005, police officer Brian Capps was on routine

patrol in a rural, residential area of Kenton County, Kentucky. At that time, Capps

observed a black Chevrolet Cavalier parked at the very end of a driveway that led up a long

hill to a home. Noticing that two individuals were sitting in the Cavalier and that the parked

vehicle did not have its headlights on or appear to have its engine running, Capps stopped

his patrol car immediately behind the Cavalier. In fact, when asked whether he “pulled up

behind the vehicle . . . so there’s no way that that vehicle could leave,” Capps replied,

“Probably pretty close. I mean, I can’t remember exactly how I parked, but yes. I was

perpendicular, I guess, to their car.”


       According to Capps, he found the presence of the Cavalier in the driveway

suspicious. As the officer explained:




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       We take a lot of burglary reports in the south end of the county because it’s
       so rural. People like to break in houses. Time of night, the vehicle had no
       lights on. That was very suspicious. Usually, if you’re going to get ready to
       go up your driveway, you would have your lights on. Just years of
       experience, normally people don’t sit at the bottom of their driveway with their
       lights out.


Consequently, he approached the vehicle and tapped on the driver’s window. When the

driver, later identified as the defendant, “either rolled the window down or opened the door

to converse with” Capps, the officer detected “a faint odor of marijuana coming from inside

the vehicle.”


       Capps then asked McGuire for his driver’s license or other form of identification but

was provided none. Similarly, the 15-year-old female passenger in the car was unable to

produce identification that would readily have revealed her age to the officer. After

ascertaining McGuire’s name, date of birth, and Social Security number, Capps returned

to his patrol car and ran a computer check to determine whether any warrants for

McGuire’s arrest were outstanding. When the check revealed no such outstanding

warrants, Capps returned to the car to converse again with the defendant.


       At that time, the officer again smelled the odor of burnt marijuana coming from the

defendant’s car and asked McGuire to exit his vehicle. Although a subsequent pat-down

of the defendant did not yield any weapons or contraband, the teenaged passenger

admitted to Capps that she and McGuire had indeed smoked marijuana together

approximately one hour prior to their confrontation with the officer. Based upon that

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United States v. McGuire

information, Capps then conducted a search of the Cavalier and found a plastic baggie of

marijuana and two plastic baggies of crack cocaine in the center console compartment.

McGuire was placed under arrest, and a further search of the trunk of the defendant’s

vehicle yielded “a HiPoint .9 millimeter pistol.” Capps estimated that the total time elapsed

between the time he first tapped on McGuire’s window until he placed the defendant under

arrest was “about 12 minutes.”


       A federal grand jury eventually returned an indictment against McGuire, charging

him with possession with intent to distribute five grams or more of cocaine base (count 1)

and with knowingly possessing a firearm after having been convicted of a felony (count 2).

An additional count in the charging instrument sought the forfeiture of the “HiPoint, Model

C9, 9 millimeter, semiautomatic pistol, serial number P148204.”


       McGuire filed a suppression motion with the district court, arguing that the

warrantless seizure of his person and the subsequent search of his vehicle were

unjustified. The district court disagreed, concluding that McGuire was not “seized” by

Officer Capps until after the law enforcement official smelled marijuana in the defendant’s

car and thus possessed probable cause for a warrantless search. Consequently, ruled the

court, no Fourth Amendment rights were violated, and McGuire’s suppression motion was

without merit. The defendant’s motion for reconsideration was similarly unsuccessful and

McGuire chose to enter conditional guilty pleas to the first two counts of the indictment.



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The district court accepted those pleas, adjudged the defendant guilty, and sentenced him

to an effective prison term of 70 months, in addition to three years of supervised release.


                                      DISCUSSION


       McGuire contends that Capps’s initial contact with him during the early morning

hours of July 3, 2005, was tantamount to a warrantless seizure of his person that should

have rendered any incriminating evidence recovered from the defendant’s vehicle

inadmissible in subsequent court proceedings. In analyzing such an argument, we have

previously explained:


               Typically, three levels of encounters between police and citizens are
       challenged in the courts: (1) the consensual encounter, which may be
       initiated without any objective level of suspicion; (2) the investigative
       detention, which, if non-consensual, must be supported by a reasonable,
       articulable suspicion of criminal activity; and (3) the arrest, valid only if
       supported by probable cause.
              Investigative detentions and arrests are considered “seizures” and
       thus must be conducted consistent with . . . Fourth Amendment
       principles . . . . The consensual encounter, however, is not a seizure and
       hence not governed by the Fourth Amendment, as long as [an] officer’s
       actions do not convert it into an investigative detention.


United States v. Avery, 137 F.3d 343, 352 (6th Cir. 1997) (citations omitted).


       In reviewing the district court’s determination that the officer’s interaction with

McGuire initially constituted only a consensual encounter and thus did not implicate Fourth

Amendment protections, we are mindful that, as the United States Supreme Court has

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United States v. McGuire

noted, “[t]he purpose of the Fourth Amendment is not to eliminate all contact between the

police and the citizenry, but ‘to prevent arbitrary and oppressive interference by

enforcement officials with the privacy and personal security of individuals.’” United States

v. Mendenhall, 446 U.S. 544, 553-54 (1980) (quoting United States v. Martinez-Fuerte, 428

U.S. 543, 554 (1976)). Thus, the federal courts will consider a person to have been

“seized” for Fourth Amendment purposes “only if, in view of all of the circumstances

surrounding the incident, a reasonable person would have believed that he was not free

to leave.” Id. at 554.


       The government argues in this appeal that Capps’s confrontation with McGuire must

be considered a consensual encounter because not all of the coercive aspects present in

cases in which courts have rebuffed efforts to label incidents as “consensual” are present

here. We find this argument unpersuasive. Although the Supreme Court did list in

Mendenhall “[e]xamples of circumstances that might indicate a seizure,” circumstances

such as the presence of multiple officers, physical touching, display of a weapon, and use

of language or tone indicating the necessity of compliance, see id., the Supreme Court and

other federal courts have never required the presence of all such “examples” to convert an

innocent encounter into a Fourth Amendment seizure. Indeed, the touchstone of any

inquiry into the validity of a warrantless detention of an individual continues to be simply

whether “the person to whom questions are put remains free to disregard the questions

and walk away.” Id.


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       In light of all the circumstances presented during the suppression hearing testimony,

we find it unlikely that a reasonable person parked at the end of a private driveway at one

o’clock in the morning would have felt free to leave the scene after a police car pulled to

a stop so close that “there’s no way that that vehicle could leave.” But even if the district

court erred in concluding that the initial interaction between Officer Capps and the

defendant could be considered a consensual encounter, that determination would not

necessarily require suppression of the evidence seized from McGuire’s vehicle if the stop

could be justified as an investigative detention.


       It is, of course, well-established that Fourth Amendment “protections extend to brief

investigatory stops of persons or vehicles that fall short of traditional arrest.” United States

v. Arvizu, 534 U.S. 266, 273 (2002) (citing Terry v. Ohio, 392 U.S. 1, 9 (1968)).

Nevertheless, in such instances, a standard less stringent than probable cause for a

detention is applicable. Indeed, “the Fourth Amendment is satisfied if the officer’s action

is supported by reasonable suspicion to believe that criminal activity ‘may be afoot.’” Id.

(quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). In determining the validity of an

investigative stop, a reviewing court “must look at the ‘totality of the circumstances’ of each

case to see whether the detaining officer has a ‘particularized and objective basis’ for

suspecting legal wrongdoing.” Id. (citation omitted). Furthermore, “[a]lthough an officer’s

reliance on a mere ‘hunch’ is insufficient to justify a stop, the likelihood of criminal activity

need not rise to the level required for probable cause, and it falls considerably short of


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United States v. McGuire

satisfying a preponderance of the evidence standard.” Id. at 273-74 (citations and internal

quotation marks omitted).


       In this case, there is little doubt that Officer Capps had not only articulable, but also

reasonable, suspicions that McGuire might have been engaged in criminal activity. At 1:00

a.m., while patrolling in a rural area of the county that had experienced a number of recent

burglaries, Capps noticed two people sitting in a vehicle that had its headlights and engine

turned off and that was parked at the very end of a long driveway to a private residence.

As the officer testified during the suppression hearing, his experiences indicated that there

was little innocent justification for such a situation and that “normally people don’t sit at the

bottom of their driveway with their lights out.” However, even when there are also innocent

explanations for the various factors considered by law enforcement officials in suspecting

that criminal activity “may be afoot,” those factors, taken together, may still give rise to the

reasonable suspicion necessary to justify a brief, investigatory detention. See United

States v. Marxen, 410 F.3d 326, 329 (6th Cir. 2005) (citing Arvizu, 534 U.S. at 274-75),

cert. denied, 546 U.S. 1220 (2006).


       Given the totality of the circumstances in this case, we conclude that it was

reasonable for Capps to suspect that some criminal activity might well be in progress. The

officer was, therefore, justified in briefly detaining the occupants of the parked car to

determine their intentions. Once Capps approached the car and began conversing with

McGuire, moreover, he detected the odor of burnt marijuana, a finding that, in conjunction

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with other information learned by Capps at the scene, justified the further intrusions that

resulted in the uncovering of evidence of wrongdoing. Hence, there was no Fourth

Amendment violation in this case, and the defendant’s suppression motion was properly

denied by the district court.


                                     CONCLUSION


       For the reasons set out above, we AFFIRM the judgment of the district court.




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