                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0421n.06
                                                                                            FILED
                                            No. 11-5999                                Apr 16, 2012
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                   ON APPEAL FROM THE
                                       )                   UNITED STATES DISTRICT
v.                                     )                   COURT FOR THE MIDDLE
                                       )                   DISTRICT OF TENNESSEE
RAUL PEREZ,                            )
                                       )
                                                                   OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: SUHRHEINRICH, MOORE, and CLAY, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Raul Perez was

convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On

appeal, he challenges the district court’s denial of his motion to suppress and the court’s application

of the statutory armed career criminal sentencing enhancement pursuant to 18 U.S.C. § 924(e)(1).

Because the officer who conducted the initial traffic stop had reasonable suspicion to believe that

additional criminal activity was afoot, the extended duration of the stop did not render it an unlawful

seizure. In addition, the district court correctly applied the armed career criminal sentencing

enhancement on the basis of Perez’s three prior aggravated-robbery convictions. Accordingly, we

AFFIRM the judgment of the district court.
No. 11-5999
United States v. Perez


                                        I. BACKGROUND

       Late in the evening of September 4, 2008, Officer David Mundt of the Nashville

Metropolitan Police Department observed Perez’s vehicle cross the center line and initiated a traffic

stop. When Mundt activated his blue lights, he observed a previously unseen passenger, who had

been leaning over to the driver’s seat, sit up. Mundt approached the vehicle and noticed that Perez’s

pants zipper was down and his belt was loose. Mundt asked for a driver’s license, explained that he

had stopped Perez for crossing the center line, and asked what had been going on with the passenger;

despite his initial thought that the driver might have been drunk, Mundt noted that Perez did not

appear intoxicated. From the ensuing conversation, Mundt learned that Perez had been receiving

oral sex from the passenger while he was driving.

       Based on this information, Mundt suspected prostitution activity. He spoke to Perez in an

attempt to determine how well he knew the passenger and, unsatisfied with Perez’s answers, asked

the passenger to exit the vehicle and spoke with her while Perez remained inside. Mundt remained

suspicious and returned to the vehicle to speak with Perez. By this point, other officers had arrived.

Mundt asked if Perez had any weapons or contraband, which Perez denied, and asked if he could

search the vehicle. Perez consented to the search and, voluntarily exiting the vehicle, said that

Mundt could search him as well. Mundt began to search Perez, who then stated that he was nervous

being searched. Mundt informed Perez that he did not have to consent to the search, but Perez stated

that the search could continue. Mundt did not find anything illegal on Perez’s person. Mundt again

asked for permission to search the vehicle, which Perez again gave. Underneath the driver’s-side


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United States v. Perez


floormat, Mundt found a nine-millimeter handgun with one round of ammunition in the chamber.

Perez was arrested and charged with being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1). The stop lasted approximately twenty minutes.

       Prior to trial, Perez filed a motion to suppress the handgun as evidence obtained through an

unconstitutional search and seizure. Perez contended that the initial stop was invalid and that, if it

was valid, the detention and the request to search the vehicle were unrelated to the purposes of the

initial stop; he further argued that the illegal stop and detention rendered his consent to the search

ineffective. The district court denied the motion, concluding that probable cause existed for the

initial stop, that the questioning of Perez and the passenger was justified to determine why the

vehicle had crossed the center line, and that Perez had consented to the search of the vehicle.

       Following the denial of his motion to suppress, Perez pleaded guilty. Over Perez’s objection,

the district court determined that Perez qualified for the armed career criminal sentencing

enhancement under 18 U.S.C. § 924(e)(1) because of three prior aggravated-robbery convictions.

Applying the enhancement, the district court sentenced Perez to the mandatory minimum of 180

months of imprisonment and five years of supervised release. Perez timely appealed the sentence

and the denial of his motion to suppress.

                                            II. ANALYSIS

A. Motion to Suppress

       We review the district court’s ruling on a motion to suppress under a mixed standard: “‘we

review the district court’s findings of fact for clear error and its conclusions of law de novo.’”


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No. 11-5999
United States v. Perez


United States v. Bell, 555 F.3d 535, 539 (6th Cir. 2009) (quoting United States v. Gross, 550 F.3d

578, 582 (6th Cir. 2008)). When, as here, the district court denied the motion to suppress, we review

the evidence “‘in the light most favorable to the government.’” Id. (quoting United States v. Pearce,

531 F.3d 374, 379 (6th Cir. 2008)). The reasonableness of a seizure under the Fourth Amendment

“‘is a question of law that we review de novo.’” United States v. Everett, 601 F.3d 484, 488 (6th Cir.

2010) (quoting United States v. Evans, 581 F.3d 333, 340 (6th Cir. 2009)).

       We analyze the reasonableness of a traffic stop under the standards set forth in Terry v. Ohio

and its progeny. Everett, 601 F.3d at 488. The Fourth Amendment requires that a traffic stop, like

a Terry stop, must be based on reasonable suspicion. See United States v. Davis, 430 F.3d 345,

353–54 (6th Cir. 2005). In addition, “‘the degree of intrusion [must be] 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. at 354 (quoting United States v.

Garza, 10 F.3d 1241, 1245 (6th Cir. 1993)).

       Accordingly, the police cannot unreasonably extend the scope and duration of an otherwise

lawful traffic stop. See Everett, 601 F.3d at 488-89; see also Illinois v. Caballes, 543 U.S. 405, 407

(2005) (“[A] seizure that is lawful at its inception can violate the Fourth Amendment if its manner

of execution unreasonably infringes interests protected by the Constitution.”). An officer’s inquiry

into matters unrelated to the initial stop does not unlawfully prolong the encounter so long as the

questioning does not “measurably extend the duration of the stop.” Arizona v. Johnson, 555 U.S.

323, 333 (2009); see also Everett, 601 F.3d at 491–96. In addition, an officer may extend a stop


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No. 11-5999
United States v. Perez


beyond what was originally permissible if “something happened during the stop to cause the officer

to have a reasonable and articulable suspicion that criminal activity is afoot.” Davis, 430 F.3d at 353

(internal quotation marks and alterations omitted).

       On appeal, Perez concedes the legality of the initial stop. He argues only that Mundt

unlawfully prolonged the stop; after Mundt determined that Perez had a valid driver’s license and

was not impaired, Perez contends that Mundt should have issued a citation and allowed Perez to

leave. The government counters that all of Mundt’s questions were reasonably related to the initial

purpose of the stop and, alternatively, that Mundt lawfully extended the stop based on reasonable

suspicion acquired during the course of the stop that additional criminal activity was afoot.

       1. Mundt’s Questions Were Unrelated to the Initial Stop

       Mundt’s questions about prostitution were unrelated to the original purpose of the traffic

stop. By Mundt’s own account, he determined fairly quickly upon first speaking with Perez that

Perez had crossed the center line while “receiving oral sex from the passenger when he was driving.”

R.79 at 6 (Suppression Hr’g Tr.). At this point, Mundt “started to investigate the stop as a

prostitution stop,” id.; his subsequent questions to Perez and the passenger related to prostitution.

The district court’s conclusion that Mundt’s entire investigation was justified by the need “to

determine the exact cause of why the vehicle had crossed the line,” id. at 22, is thus not supported

by the record. The stop was valid because Perez had crossed the center line. Once Mundt

determined the reason that Perez crossed the line and Mundt’s investigation turned to prostitution,




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United States v. Perez


the continued duration of the stop must have been justified by reasonable suspicion of additional

criminal activity.1

        2. Reasonable Suspicion of Additional Criminal Activity

        The government contends that, during the course of the traffic stop, Mundt acquired

reasonable suspicion that additional criminal activity was afoot. To extend a stop based on

reasonable suspicion of additional criminal activity, the officer must point to “specific and articulable

facts” supporting his suspicion; he cannot rely solely on an “an ill-defined hunch.” United States

v. Richardson, 385 F.3d 625, 630 (6th Cir. 2004) (internal quotation marks omitted). We look to

the totality of the circumstances when determining whether an officer had reasonable suspicion. Id.

Even with reasonable suspicion, however, the stop “may continue only for so long as it takes the

officer to prove or disprove those suspicions.” Davis, 430 F.3d at 356.

        Mundt’s initial suspicions of criminal activity were based on the fact that Perez and the

passenger were engaged in a sex act in a moving vehicle at 11:00 at night. Mundt believed that these

circumstances indicated an act of prostitution. Many of our cases in which a stop was justified based

on reasonable suspicion of prostitution activity involved officers observing the driver converse with

or pick up a known or suspected prostitute; these encounters tend to occur late at night in areas

known for prostitution. See United States v. Luqman, 522 F.3d 613, 615, 617 (6th Cir. 2008); United



        1
        The government does not argue that Mundt’s questions did not “measurably extend” the
duration of the stop under the principles articulated in Everett. See 601 F.3d at 491–96. Because
we conclude that reasonable suspicion of additional criminal activity justified extending the stop,
we do not address this possibility.

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No. 11-5999
United States v. Perez


States v. Green, 157 F. App’x 853, 855–56 (6th Cir. 2005) (unpublished opinion); United States v.

Martin, 289 F.3d 392, 395, 399 (6th Cir. 2002). The officers in Luqman, Green, and Martin did not

observe any actual sexual conduct. Although Mundt’s suspicions were not based on any prior

knowledge of the passenger’s identity, he did witness a sex act performed under unusual

circumstances. The government does not suggest that North Nashville is an area known for

prostitution activity, but the incident did occur at a late hour.

        Rather than dispel his suspicions of criminal activity, Mundt’s conversations with Perez and

the passenger only heightened his suspicions. At the suppression hearing, Mundt testified that he

usually asks a suspected prostitute and a suspected customer questions that would enable him to

determine how well they knew each other; here, after the passenger left the car, Mundt asked her

“basically . . . the normal questions that you would ask to investigate prostitution.” R.79 at 9. At

the hearing, Mundt could not remember the specific questions he asked Perez or the passenger or the

responses they gave but testified that “something that was said led me to the belief that she

was—that it was a prostitution act.” Id. at 15. Mundt only remembered asking her the kinds of

questions he would normally ask in the course of a prostitution investigation and not being satisfied

with the answers. This lack of particularity gives us some pause; after all, an officer must be able

to specify the articulable facts that support his suspicion of criminal activity in order for us to

determine whether that suspicion was reasonable. Combined with the fact that Mundt witnessed

what he believed was (and what was later confirmed by Perez to be) a sex act and the fact that we

review the evidence in the light most favorable to the government, however, we conclude that Mundt


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No. 11-5999
United States v. Perez


had reasonable suspicion to extend the traffic stop by asking a series of questions related to

prostitution but unrelated to the initial stop for crossing the center line.

        Mundt’s sole other question prior to asking for permission to search the vehicle that was not

directly related to either the initial stop or the alleged prostitution was whether Perez had any

weapons or anything illegal in the car. An officer with reasonable suspicion of criminal activity

“may inquire about dangerous weapons” to ensure his safety, Everett, 601 F.3d at 495, especially

when, as here, “the officer’s suspicions about what he had seen before approaching the car had

increased, rather than diminished,” Green, 157 F. App’x at 856.2

        Aside from challenging the preceding stop as an unlawful seizure, Perez does not contend

that the search of his person and vehicle was invalid. Because the stop was lawful, and Perez

consented to the search, the search was valid. The district court properly denied the motion to

suppress.

B. Armed Career Criminal Sentencing Enhancement

        Perez challenges the applicability of the statutory armed career criminal enhancement to his

sentence. Although he admits to having three prior convictions for aggravated robbery, he contends

that two of those convictions should be counted as one predicate offense because they were

committed on the same day. We review de novo the district court’s ruling that Perez’s offenses were

committed on different occasions. United States v. Hill, 440 F.3d 292, 295 (6th Cir. 2006).



        2
        Asking about “anything illegal” in addition to weapons did not “measurably extend” the
duration of the stop. See Everett, 601 F.3d at 495–96.

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No. 11-5999
United States v. Perez


        The Armed Career Criminal Act provides that “a person who violates section 922(g) of this

title and has three previous convictions . . . for a violent felony or a serious drug offense, or both,

committed on occasions different from one another” shall face a mandatory minimum sentence of

fifteen years of imprisonment. 18 U.S.C. § 924(e)(1). Two offenses are “committed on occasions

different from one another,” id., if “(1) ‘it is possible to discern the point at which the first offense

is completed, and the subsequent point at which the second offense begins’; (2) ‘it would have been

possible for the offender to cease his criminal conduct after the first offense, and withdraw without

committing the second offense’; or (3) ‘the offenses are committed in different residences or

business locations.’” United States v. Paige, 634 F.3d 871, 873 (6th Cir. 2011) (quoting Hill, 440

F.3d at 297–98). Two offenses are counted separately if any of these tests are met. United States

v. Jones, —F.3d—, No. 09-6549, 2012 WL 716450, at *4 (6th Cir. Mar. 7, 2012).

        The Presentence Investigation Report (“PSR”) describes Perez’s three aggravated robberies

as occurring on January 13, 2003; January 15, 2003 at 2:40 p.m.; and January 15, 2003 at 6:40 p.m.

The two January 15 robberies involved different victims and occurred at different locations. At the

sentencing hearing, the government presented court documents from each of the convictions and a

map showing that the locations of the two January 15 robberies were one-and-a-half miles apart.




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No. 11-5999
United States v. Perez


        Although Perez objected to the application of the sentencing enhancement, he did not object

to the underlying facts regarding the convictions that were presented in the PSR. Nor does he contest

these facts on appeal.3

        The two January 15 robberies were “committed on occasions different from one another”

because they occurred at different locations. Moreover, the first robbery was completed well before

the second robbery commenced four hours later. Cf. United States v. Brady, 988 F.2d 664, 665 (6th

Cir. 1993) (en banc) (holding that two robberies committed thirty minutes apart were committed on

different occasions for § 924(e)(1) purposes). For the same reason, Perez could have decided to end

the day’s criminal activity after the first robbery; he does not argue that doing so would not have

been possible. Accordingly, the district court properly applied the armed career criminal sentencing

enhancement based on Perez’s three aggravated-robbery convictions.

                                        III. CONCLUSION

        Although for different reasons, we agree with the district court that the traffic stop that

ultimately uncovered the firearm that was the basis for Perez’s felon-in-possession charge was not

an unlawful seizure under the Fourth Amendment. Mundt’s reasonable suspicion that Perez was

engaging in criminal activity apart from the traffic violation enabled him to extend the duration of


        3
          In his appellate brief, Perez refers to a report from the probation officer detailing the times
and locations of the robberies, which he claims is not properly in evidence. It is unclear what report
Perez is referencing. If he means the court documents and the map that the government introduced
at the sentencing hearing, these documents were admitted as exhibits without objection from Perez.
The probation officer filed an addendum to the PSR several months before the sentencing hearing,
but this addendum does not contain any information on Perez’s aggravated-robbery convictions that
was not already included in the PSR.

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No. 11-5999
United States v. Perez


the stop by asking questions unrelated to the stop’s original purpose. Because the stop was lawful

and Perez consented to the search, the district court was correct to deny the motion to suppress. In

addition, the district court properly concluded that Perez’s three prior aggravated-robbery convictions

had occurred on different occasions for purposes of applying the armed career criminal sentencing

enhancement. We thus AFFIRM the judgment of the district court.




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