                      NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 File Name: 14a0844n.06

                                                 No. 14-5073
                                                                                                   FILED
                               UNITED STATES COURT OF APPEALS                               Nov 12, 2014
                                    FOR THE SIXTH CIRCUIT                               DEBORAH S. HUNT, Clerk
                                                       )
UNITED STATES OF AMERICA,                              )
                                                       )
        Plaintiff-Appellee,                            )
                                                             ON APPEAL FROM THE UNITED
                                                       )
                                                             STATES DISTRICT COURT FOR THE
                 v.                                    )
                                                             EASTERN DISTRICT OF KENTUCKY
                                                       )
ISIAH MARQUIS MUNDY,                                   )
                                                       )
        Defendant-Appellant.                           )
                                                       )

BEFORE: COOK and WHITE, Circuit Judges; MICHELSON, District Judge.*

        HELENE N. WHITE, Circuit Judge. After the district court denied his motion to

suppress cocaine seized by narcotics detectives, Isiah Mundy pleaded guilty of possessing

cocaine with the intent to distribute, 21 U.S.C. § 841(a)(1), pursuant to a plea agreement

reserving his right to appeal the court’s suppression ruling. He was sentenced to 208 months in

prison and now challenges the denial of his motion to suppress. We AFFIRM.

                                                       I.

        We review a district court’s factual findings on a motion to suppress for clear error and

its legal conclusions de novo. United States v. Adams, 583 F.3d 457, 463 (6th Cir. 2009). A

factual finding is clearly erroneous when the reviewing court is left with the definite and firm

conviction that a mistake has been made. Id. We consider all evidence in the light most




        *
            The Honorable Laurie J. Michelson, United States District Judge for the Eastern District of Michigan,
sitting by designation.
No. 14–5073
United States v. Mundy
favorable to the party prevailing in the district court. United States v. Torres-Ramos, 536 F.3d

542, 549 (6th Cir. 2008).

                                                  II.

       After hearing testimony at the suppression hearing, the district court found the facts as

follows. Around 10:20 p.m. on April 18, 2013, Detectives Lain and Tudor were patrolling a

“high-crime area” in an unmarked Ford Taurus. Upon turning onto a poorly lit and largely

deserted street, the detectives saw a Ford Contour parked at the side of the road, not running,

with a pair of legs sticking approximately 1½ feet straight out of the rear-passenger-side door of

the vehicle. The detectives slowed down to get a closer look and, once satisfied that legs were in

fact sticking out of the car, stopped to investigate.

       Detective Lain jumped out of the police car, announced himself as a law-enforcement

officer, and approached the Contour with his flashlight, while Detective Tudor called for backup.

Upon approaching the Contour, both detectives realized that there were two individuals seated in

the front seats of the car, as well as Mundy in the backseat, lying sideways, with his head near

the center console and legs protruding from the back door.         Detective Tudor immediately

recognized Mundy and identified him to Detective Lain as a local resident who had been accused

of trafficking drugs, and who had been arrested in the past for trafficking activities. As the

detectives approached Mundy, he sat up and turned toward the open door, and the detectives saw

a digital scale in plain view near his feet. At no point did either officer handle his weapon or

raise his voice. Within a few minutes, additional officers arrived on the scene.

       Ultimately, after receiving consent to search from Mundy and the car’s owner, the

detectives found and seized 32.77 grams of cocaine, a digital scale, and $2,242.60. After

receiving his Miranda warnings, Mundy waived his right to counsel and made several




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No. 14–5073
United States v. Mundy
inculpatory statements. Mundy was charged with possession with intent to distribute cocaine in

violation of 21 U.S.C. § 841(a)(1).1

        Mundy moved to suppress the evidence, arguing that the entire interaction was

nonconsensual and that the detectives did not have reasonable suspicion to investigate. The

district court disagreed, finding that the interaction was consensual and, in the alternative, that

the detectives had reasonable suspicion to initiate and escalate the interaction.                    Mundy

conditionally pleaded guilty and waived his right to appeal, except the “right to appeal the

District Court’s denial of his pretrial motion to suppress evidence and to argue that the police

lacked reasonable suspicion to seize the vehicle in which [he] was a passenger.”

                                                     III.

        The Fourth Amendment provides that “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated.” U.S. Const. amend. IV. “A warrantless search or seizure is ‘per se unreasonable

under the Fourth Amendment—subject only to a few specifically established and well-delineated

exceptions.’” United States v. Roark, 36 F.3d 14, 17 (6th Cir. 1994) (quoting Katz v. United

States, 389 U.S. 347, 357 (1967)).

        The Supreme Court has identified three types of reasonable, and thus permissible,
        warrantless encounters between the police and citizens:             (1) consensual
        encounters in which contact is initiated by a police officer without any articulable
        reason whatsoever and the citizen is briefly asked questions; (2) a temporary
        involuntary detention or Terry stop which must be predicated upon “reasonable
        suspicion”; and (3) arrests which must be based upon “probable cause.”

United States v. Pearce, 531 F.3d 374, 380 (6th Cir. 2008). Here, the district court found that the

encounter was both consensual and supported by reasonable suspicion.


        1
           When transporting Mundy to the station, the detectives found 4.197 grams of heroin on his person.
Mundy was initially charged with possession with intent to distribute heroin, also in violation of 21 U.S.C. §
841(a)(1), but the Government dropped this count when Mundy pleaded guilty.


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No. 14–5073
United States v. Mundy
          Mundy argues that his interaction with the detectives was nonconsensual and that the

detectives lacked reasonable suspicion to initiate the interaction. The Government does not

argue that the detectives had probable cause to initiate the stop, only reasonable suspicion.

                                                  A.

          As a preliminary matter, the Government argues that Mundy waived his right to appeal

the district court’s finding that the interaction was consensual. Mundy disagrees, arguing that he

reserved the right to appeal all aspects of the district court’s order. Indeed, if the Government’s

interpretation of the plea agreement is correct, Mundy’s right to appeal would be wholly

meaningless. In any event, because we find that the detectives had reasonable suspicion to

investigate the Contour, we will assume arguendo that Mundy preserved the right to appeal all

aspects of the district court’s ruling. Further, our conclusion that the officers had reasonable

suspicion makes it unnecessary to address the district court’s more tenuous ruling that the

encounter was consensual.

                                                 B.

          Whether reasonable suspicion of criminal activity has been adequately established to

justify a traffic stop is a mixed question of law and fact that we review de novo. Torres-Ramos,

536 F.3d at 550. “The reasonableness of a traffic stop is measured by the same standards set

forth for investigatory stops in Terry v. Ohio, 392 U.S. 1 (1968), and its progeny.” United States

v. Lyons, 687 F.3d 754, 763 (6th Cir. 2012). Reasonable suspicion requires “more than a mere

hunch, but is satisfied by a likelihood of criminal activity less than probable cause, and falls

considerably short of satisfying a preponderance of the evidence standard.” Dorsey v. Barber,

517 F.3d 389, 395 (6th Cir. 2008) (quoting Smoak v. Hall, 460 F.3d 768, 778–79 (6th Cir.

2006)).




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United States v. Mundy
       Reasonable suspicion must be considered “under the totality of the circumstances,

considering ‘all of the information available to law enforcement officials at the time.’”

Humphrey v. Mabry, 482 F.3d 840, 846 (6th Cir. 2007) (quoting Feathers v. Aey, 314 F.3d 843,

849 (6th Cir. 2003). “In considering the totality of the circumstances, ‘we must determine

whether the individual factors, taken as a whole, give rise to reasonable suspicion, even if each

individual factor is entirely consistent with innocent behavior when examined separately.’”

United States v. Perez, 440 F.3d 363, 371 (6th Cir. 2006) (quoting United States v. Smith,

263 F.3d 571, 588 (6th Cir. 2001)). Officers are entitled “to draw on their own experience and

specialized training to make inferences from and deductions about the cumulative information

available to them that might well elude an untrained person.” United States v. Arvizu, 534 U.S.

266, 273 (2002).     “Pertinent circumstances include the officer’s own direct observations,

dispatch information, directions from other officers, and the nature of the area and time of day

during which the suspicious activity occurred.” United States v. Campbell, 549 F.3d 364, 370–

71 (6th Cir. 2008) (internal citations omitted). “If an officer possesses a particularized and

objective basis for suspecting the particular person of criminal activity based on specific and

articulable facts, he may conduct a Terry stop.” Dorsey, 517 F.3d at 395.

       In the instant case, the district court found that:

       the detectives (i) identified the location as a high-crime area and that they had
       received complaints of drug transactions [] specifically occurring in vehicles
       parked along the side of the road; (ii) the vehicle itself was completely dark with
       no interior or exterior lights, it was late at night, and the area itself was poorly lit,
       [] (iii) Mundy’s position in the vehicle was indicative of a potential break-in and;
       (iv) the officers did not view any other individuals in or around the vehicle.

                                                  C.

       Considering all the circumstances, the detectives’ observations gave them a

“particularized and objective basis for suspecting [Mundy] of criminal activity.” See Dorsey,



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No. 14–5073
United States v. Mundy
517 F.3d at 395. The detectives were patrolling a poorly lit street in a high-crime area, late at

night, and saw legs sticking out of an apparently otherwise unoccupied parked car. Detective

Tudor testified that he believed that the position of the legs was indicative of a break-in. That his

suspicion of a break-in turned out to be incorrect does not negate the reasonableness of his

decision to stop and investigate. Detective Tudor acknowledged that the situation could have

been benign, but stated that all the circumstances, including his experience and inferences drawn

therefrom, led him to investigate. Reasonable suspicion “is satisfied by a likelihood of criminal

activity less than probable cause, and falls considerably short of satisfying a preponderance of

the evidence standard.” Id. Sufficient likelihood of criminal activity was present here.

       Because the detectives demonstrated an articulable basis for investigating the Contour,

Mundy’s initial encounter with police did not violate the Fourth Amendment.              See Lyons,

687 F.3d at 763–64. Once they approached Mundy and saw the digital scale on the floor of the

vehicle near Mundy’s feet, they had reason to investigate further. At that point, they obtained

consents to search, which Mundy does not challenge, and found the cocaine.

                                                IV.

       For these reasons, we AFFIRM the district court’s order denying Mundy’s motion to

suppress.




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