                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0750n.06
                           Filed: October 19, 2007

                                    Nos. 06-6050 and 06-6051

                           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
HAROLD EUGENE WILSON,                             )    EASTERN DISTRICT OF TENNESSEE,
                                                  )    KNOXVILLE DIVISION
       Defendant-Appellant.                       )
                                                  )
                                                  )

Before: CLAY and GIBBONS, Circuit Judges, and HOOD, Chief District Judge.*

       JULIA SMITH GIBBONS, Circuit Judge. This appeal arises out of the arrest of

defendant-appellant Harold Eugene Wilson for possession of crack cocaine with intent to distribute.

The district court denied Wilson’s pretrial motion to suppress the evidence against him, and a jury

later convicted Wilson of one count of possession with intent to distribute crack cocaine in violation

of 21 U.S.C. § 841(a). In addition to sentencing Wilson to 120 months imprisonment on the

possession count, the district court determined that Wilson had violated the terms of his probation,

imposed in a previous case, and sentenced Wilson to an additional term of thirty-seven months. For

the reasons below, we affirm the judgment of the district court .



       *
        The Honorable Joseph M. Hood, Senior United States District Judge for the Eastern District
of Kentucky, sitting by designation.
                                                I.

       The underlying facts, as set forth at Wilson’s suppression hearing, are as follows. On

July 27, 2004, Robert Nease, a narcotics agent employed with the Fifth Judicial Drug Task Force

in Blount County, arranged an undercover drug purchase from Robert Andre Smith through

Jason Newton, a confidential informant. Nease, accompanied by a fellow agent, Marty Widener,

followed Newton to a Pilot gas station. Upon arriving at the station, the agents observed, among

other things, Smith’s vehicle, a red pickup truck, parked beside Wilson’s gray Buick. As the

officers watched, Smith walked between the two vehicles, which were both parked, front-first, on

the side of the Pilot station and approximately three or four feet away from each other. Although

Smith was not speaking to Wilson at the time the officers arrived, Nease testified that Smith was

standing close enough and in a position from which he could have engaged Wilson in

conversation. Nease exited his car and went between Smith and Wilson’s vehicles, where he

observed Smith’s wife seated in the driver’s seat of Smith’s truck and Wilson seated in the

driver’s seat of his car. As Nease approached, Smith, who was standing between the truck and

the Buick, greeted Nease by name, calling out “Hey, Officer Nease.” According to Nease’s

testimony, after Smith acknowledged him, Wilson reacted: “As I approached him, I noticed Mr.

Wilson . . . turn. He’s at the steering wheel, he turns and appears to be hiding something or

stuffing something, which, in police work, we call a furtive movement.” During cross-

examination, Nease claimed that he saw Wilson’s left arm “appear to be putting something away

or hiding something.” Nease, en route to place Smith under arrest, told Wilson to place his hands




                                                2
where they could be seen and alerted Widener that Wilson was “stuffing something.” Nease had

no further dealings with Wilson at that time.

       Widener, at Nease’s urging, approached Wilson’s car. He recognized Wilson from an

earlier narcotics investigation involving Wilson. Widener asked Wilson to step out of his

vehicle, and Wilson complied. Upon Wilson’s exit, Widener conducted “a light pat-down of

[Wilson’s] pockets” to make sure that Wilson had no weapons. Widener found no weapons but

testified at Wilson’s suppression hearing that he observed, protruding from the center console of

Wilson’s vehicle, the top of a cellophane baggy. Following his pat down of Wilson, Widener

“immediately” went into the vehicle console “to retrieve what [he] believe[d] to be narcotics.”

Widener testified that he concluded that the baggy contained narcotics based upon his

“experience, training and everything” and explained that the baggy’s appearance was “consistent

with the packaging of narcotics and, as a cellophane baggy, had a knot in the top.” Widener

further represented that he knew Smith to be a user and Wilson to be a seller of illegal narcotics.

Finally, Widener claimed that based on Nease’s warning concerning Wilson’s movement, he was

afraid there might be a weapon in Wilson’s car. In Wilson’s center console, Widener discovered

what was later determined to be 17.7 grams of cocaine base. Wilson was placed under arrest,

and, during the course of a more thorough subsequent search incident to arrest, the officers

discovered a Copenhagen snuff can containing a smaller amount of powder cocaine.

       Widener testified that following Wilson’s arrest but before the officers engaged him in

any “in-depth conversation,” the officers advised Wilson of his rights verbally. Wilson did not

“say either way” whether he wished to waive his rights, but Widener assured Wilson that he


                                                 3
could “pick and choose” the questions he wanted to answer, and a conversation commenced.

Wilson explained to the officers that he was “in a bind” because he was on probation and any

arrest would prompt the revocation of his probation. He then offered to secure two kilos of

cocaine for the officers if they helped him avoid prison. The officers placed Wilson in custody.

       Wilson was subsequently charged with one count of possession with intent to distribute

more than five grams of crack cocaine in violation of 21 U.S.C. § 841(a). Wilson filed a motion

to suppress the evidence against him on the ground that Widener’s search of his vehicle was not

supported by reasonable suspicion and was therefore in violation of his Fourth Amendment

rights. On February 8, 2006, a United States Magistrate Judge held a hearing on Wilson’s

motion. Following the hearing, Wilson filed a supplemental motion seeking to suppress his

statements following his arrest on the ground that Widener neglected to provide him with a full

recitation of his Miranda rights.

       The magistrate judge issued a written order recommending the denial of Wilson’s motion.

In the order, the magistrate judge ruled that the agents had reasonable suspicion of wrongful

activity on Wilson’s part and lawfully conducted a pat down of Wilson’s person consistent with

Terry v. Ohio, 392 U.S. 1 (1968). Wilson’s claim concerning the search of his vehicle was

similarly rejected on the ground that the officers were justified in conducting a protective search

of Wilson’s vehicle following his Terry stop. Finally, the magistrate judge concluded that

Wilson’s claim that the police failed to advise him fully of his Miranda rights was without merit,

crediting Widener’s testimony that he fully articulated Wilson’s rights to him before engaging

him in questioning. The district court overruled Wilson’s objections to the magistrate judge’s


                                                 4
report and recommendation and adopted the magistrate’s report in its entirety. Following a two-

day trial, a jury found Wilson guilty of the charge against him. Wilson’s motions for a judgment

of acquittal were denied.

       At the time of his conviction in this matter, Wilson was serving a five-year term of

probation for a 2003 conviction from the United States District Court for the Western District of

Texas for conspiracy to possess with intent to distribute cocaine. Upon Wilson’s conviction in

the Eastern District of Tennessee, the government filed a petition seeking to have Wilson’s

probation revoked and a sentence of imprisonment imposed for his 2003 conviction.

       At sentencing, the district court sentenced Wilson to the statutory mandatory minimum of

120 months imprisonment and an eight-year term of supervised release for his possession with

intent to distribute conviction.1 In addition, the court revoked Wilson’s probation for his 2003

conviction and sentenced him to thirty-seven months imprisonment and four years supervised

release for that earlier offense. Wilson filed timely notices of appeal from the judgment of the

district court, including the revocation of his probation.

                                                  II.

                                                 A.

       An appellate court reviewing a district court’s denial of a motion to suppress conducts a

de novo review of the district court’s legal conclusions and examines any factual findings for

clear error. United States v. Dillard, 438 F.3d 675, 680 (6th Cir. 2006).



       1
        The government had previously filed notice of its intention to seek an enhanced penalty
based upon Wilson’s previous drug conviction, as required under 21 U.S.C. § 851.

                                                  5
       Wilson argues on appeal that the agents had insufficient cause to justify the inspection of

his vehicle following the Terry pat down conducted by Widener and that the district court should

have suppressed the evidence secured as a result of the agent’s unlawful activities.

       The Fourth Amendment to the United States Constitution protects citizens from

unreasonable searches at the hands of the government, U.S. Const. amend. IV, and, as a result,

any governmental invasion of those areas ordinarily protected by the scope of the Fourth

Amendment must be reasonable. Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977) (“The

touchstone of our analysis under the Fourth Amendment is always ‘the reasonableness in all the

circumstances of the particular governmental invasion of a citizen’s personal security.’”). In

Terry v. Ohio, the court deemed reasonable the use of brief investigatory pat downs to ensure the

absence of dangerous weapons on individuals suspected of criminal activity. 392 U.S. 1, 30-31

(1968). An officer may engage in such a stop and inspection in the absence of probable cause so

long as the officer has “reasonable suspicion to believe that criminal activity may be afoot.”

United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotation marks omitted). That is,

he must be able to point to “specific and articulable facts which, taken together with rational

inferences from those facts,” warrant the intrusion occasioned on the individual’s person. Terry,

392 U.S. at 21. When assessing whether a police officer had reasonable suspicion, a reviewing

court must look at the totality of the circumstances surrounding a given search. Arvizu, 534 U.S.

at 273; United States v. Jacob, 377 F.3d 573, 577 (6th Cir. 2004). Wilson does not directly

challenge Widener’s right to conduct a Terry pat down but argues on appeal that Widener lacked

the necessary cause to inspect the interior of his vehicle.


                                                  6
       In Michigan v. Long, 463 U.S. 1032 (1983), the Supreme Court extended its holding in

Terry to permit the inspection of a vehicle occupied by a person who has been lawfully detained

for a Terry stop. The Court ruled:

       [T]he search of the passenger compartment of an automobile, limited to those
       areas in which a weapon may be placed or hidden, is permissible if the police
       officer possesses a reasonable belief based on “specific and articulable facts
       which, taken together with the rational inferences from these facts, reasonably
       warrant” the officers in believing that the suspect is dangerous and the suspect
       may gain immediate control of weapons.

Long, 463 U.S. at 1049. Wilson argues that because Widener’s pat down did not reveal the

presence of weapons, the officer was not empowered to conduct a further search of Wilson’s car.

In other words, under Wilson’s view, an officer undertaking a search of a vehicle’s interior

pursuant to a Terry stop must possess an additional measure of reasonable suspicion before

proceeding to inspect the car. Long forecloses this argument, however. Under the reasoning of

the Court’s holding in Long, when a police officer compels the exit of an individual from a

vehicle in order to conduct a Terry frisk—based upon his belief that the individual is potentially

dangerous—that officer remains vulnerable to the possibility that the individual, if not arrested,

will be free to retrieve any weapons within his car. See id. at 1051-52. Under Long, the

vehicle’s inspection is intended to ensure that an individual subject to a preliminary

determination by the police that he may be armed and dangerous does not return to his vehicle

and obtain a weapon to harm either the officer or others in the vicinity. Because the search of a

vehicle subsequent to a Terry stop is based upon this initial determination, there is no need for a

further finding of dangerousness to support the inspection.



                                                 7
       Thus, Widener’s search of Wilson’s car following a Terry pat down was reasonable. The

totality of the circumstances supported the agents’ belief that Wilson might be armed and

dangerous and justified Widener’s decision to pat Wilson down for weapons, a proposition that

Wilson does not challenge. After performing a lawful Terry frisk, Widener was empowered

under Long to check the interior of Wilson’s vehicle for weapons. The underlying policy of

protecting police officers that animates the Long decision applies equally here. Had the officers

elected to release Wilson and allowed him access to his vehicle without checking the interior for

weapons, Wilson would have been in a position to secure a weapon secreted in his vehicle. This

was a particularly serious concern on these facts where the agents did not immediately part ways

with Wilson and remained at the gas station, on foot, to arrest Smith.

       Upon discovering narcotics in the console of Wilson’s vehicle during the course of a

permissible vehicle inspection under Long, Widener was free to seize that material. “If, while

conducting a legitimate Terry search of the interior of the automobile, the officer should, as here,

discover contraband other than weapons, he clearly cannot be required to ignore the contraband,

and the Fourth Amendment does not require its suppression in such circumstances.” Long, 453

U.S. at 1050.

                                                 B.

       Wilson argues that the officers placing him under arrest failed to inform him fully of his

Fifth Amendment rights as required by Miranda v. Arizona, 384 U.S. 436, 471-72 (1966), and

the district court should have suppressed his statements following his arrest. In its order

recommending the denial of Wilson’s motion to suppress, the magistrate judge accepted Agent


                                                 8
Widener’s account of the events surrounding Wilson’s arrest and rejected Wilson’s claim that

Agent Widener informed Wilson only of his right to “pick and choose” the questions he wished

to answer. This conclusion, embraced by the district court, is a factual determination that is

reversible upon a showing that it is clearly erroneous. United States v. Johnson, 488 F.3d 690,

695 (6th Cir. 2007). A district court clearly errs when its decision leaves “the reviewing court . .

. with the definite and firm conviction that a mistake has been made.” United States v. Brown,

449 F.3d 741, 744 (6th Cir. 2006). “The evidence must be reviewed in the light most likely to

support the district court’s decision.” Id. (internal quotation marks omitted).

       Wilson reads Widener’s testimony to be an admission that the only information he

provided Wilson was that he had the right to choose among the questions posed to him. This is a

strained reading of Widener’s testimony, which actually suggests that Widener’s advice to

Wilson followed his recitation of the Miranda warnings. In any event, to the extent that

Widener’s testimony is ambiguous, the district court’s selection of one reasonable interpretation

is not erroneous. Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985) (“Where

there are two permissible views of the evidence, the factfinder’s choice between them cannot be

clearly erroneous.”). In light of Widener’s uncontested testimony concerning the events

surrounding Wilson’s arrest, it was not clear error for the district court to conclude that Widener

fully informed Wilson of his Miranda rights.

                                                 C.

       Wilson argues that the government failed at trial to present sufficient evidence of his

commission of the crime with which he was charged. An individual advancing a sufficiency of


                                                 9
the evidence claim following his conviction “bears a very heavy burden.” United States v.

Abboud, 438 F.3d 554, 589 (6th Cir. 2006) (internal quotation marks and citation omitted). An

appellate court considering such a claim must evaluate “the evidence in the light most favorable

to the prosecution and give[] the prosecution the benefit of all reasonable inferences from the

testimony.” Id. (citation omitted). Using this deferential lens, a reviewing court may not reverse

if “any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Id. (citation omitted).

       Wilson’s sufficiency of the evidence claim is essentially a challenge to the credibility of

the witnesses offered by the government. He contends that Smith, Nease, and Widener were

unreliable witnesses whose testimony could not form the basis for his conviction. Smith, by his

own admission, had a number of prior convictions for a range of offenses, including shoplifting,

securing prescription medication by fraud, forgery, and possession of illegal drugs. Moreover, he

acknowledged serving as a paid informant in other investigations coordinated by the Fifth

Judicial Task Force. As to the testimony of the law enforcement officers, Wilson argues that the

initial arrest report prepared by Widener was not consistent with his testimony at the suppression

hearing. Specifically, the report stated that “agents observed a large cellophane baggie

containing crack cocaine inside the center console of Wilson’s vehicle.” At the suppression

hearing, however, Widener clarified that, when he initially observed the cellophane baggy, he

was unable to ascertain what the bag contained. When asked to explain this inconsistency,

counsel for the government represented that after bringing Nease and Widener together, he

utilized their “collective memories” to determine precisely what happened.


                                                10
        Wilson contends that the government’s witnesses were sufficiently incredible to make his

conviction unreliable. Because an appeals court must resolve any credibility determinations in

favor of the jury’s verdict, United States v. Paulette, 457 F.3d 601, 606 (6th Cir. 2006), Wilson

cannot prevail on his claim. In fact, our court has explained that credibility issues are not proper

grounds for sufficiency of the evidence challenges. United States v. Burns, 298 F.3d 523, 535

(6th Cir. 2002) (noting that sufficiency of the evidence challenges “are no place for arguments

regarding a government witness’s lack of credibility”) (internal quotation marks and alterations

omitted). All of the government’s witnesses were subject to cross examination by defense

counsel at trial, and it is not the role of an appellate court to“judge the credibility of witnesses or

substitute [its] judgment for that of the jury.” United States v. King, 272 F.3d 366, 370 (6th Cir.

2001). Because Wilson merely challenges the veracity of the government witnesses’ accounts,

his claim is not a cognizable sufficiency of the evidence challenge and lacks merit.

                                                  D.

        A district court’s decision to revoke a term of probation is reviewed for an abuse of

discretion. United States v. Bujak, 347 F.3d 607, 609 (6th Cir. 2003). Wilson contends that, in

the event that the panel accepts his Fourth Amendment claim and his claim concerning the

sufficiency of the evidence, the district court’s revocation of his probation in his earlier case may

not stand. Wilson’s argument on this issue fails because it is premised entirely upon his Fourth

Amendment and sufficiency of the evidence claims, which we have rejected.

                                                  III.

        For the foregoing reasons, we affirm the judgment of the district court.


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