13-2607-cr
United States v. Finch


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 29th day of August, two thousand fourteen.

PRESENT: REENA RAGGI,
                 DENNY CHIN,
                 SUSAN L. CARNEY,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,

                         v.                                                No. 13-2607-cr

MICHAEL WAYNE FINCH,
                                 Defendant-Appellant.
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APPEARING FOR APPELLANT:                         CHERYL MEYERS-BUTH, Murphy Meyers
                                                 LLP, Orchard Park, New York.

APPEARING FOR APPELLEE:                          JOSEPH J. KARASZEWSKI, Assistant United
                                                 States Attorney, for William J. Hochul, Jr.,
                                                 United States Attorney for the Western District
                                                 of New York, Buffalo, New York.



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       Appeal from a judgment of the United States District Court for the Western District

of New York (William M. Skretny, Chief Judge; H. Kenneth Schroeder, Jr., Magistrate

Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on June 28, 2013, is AFFIRMED.

       Defendant Michael Wayne Finch, who stands convicted on a guilty plea of

possessing a firearm after having been convicted of a felony, see 18 U.S.C. § 922(g)(1),

challenges the district court’s denial of his motion to suppress, arguing that the police

lacked reasonable suspicion to stop his vehicle in violation of the Fourth Amendment.

While we review the district court’s factual findings for clear error and its legal

conclusions de novo, see United States v. Aguiar, 737 F.3d 251, 255 (2d Cir. 2013), we

may also affirm on any ground supported by the record, see United States v. Peters, 732

F.3d 93, 103 n.3 (2d Cir. 2013). In applying these principles, we assume the parties’

familiarity with the facts and the record of prior proceedings, which we reference only as

necessary to explain our decision to affirm.1


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   Finch also conclusorily contends that the duration of the traffic stop was
unconstitutionally unreasonable. We do not review the district court’s rejection of this
argument because Finch’s plea agreement limited his right to appeal “solely” to his claim
that the “evidence against him should be suppressed on the ground that the initial traffic
stop on November 19, 2009 was unreasonable,” J.A. 358 (emphasis added). See United
States v. Coffin, 76 F.3d 494, 497 (2d Cir. 1996) (stating that issue preserved for appeal in
plea agreement “must be framed with precision and stated with specificity” such that
“approval of the court and the consent of the government must be clear and not left to
equivocal inference” (internal quotation marks omitted)).
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       A police officer may stop an automobile consistent with the Fourth Amendment if

he has a “reasonable basis to think that the person to be detained ‘is committing or has

committed a criminal offense.’” United States v. Bailey, 743 F.3d 322, 332 (2d Cir. 2014)

(quoting Arizona v. Johnson, 555 U.S. 323, 326 (2009)). This standard does not demand

probable cause, but “only facts sufficient to give rise to a reasonable suspicion that criminal

activity ‘may be afoot.’” Id. (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)). Further,

“while a reviewing court cannot merely defer to police officers’ judgment in assessing

reasonable suspicion, the court must view the totality of the circumstances through the eyes

of a reasonable and cautious police officer on the scene.” Id. (internal quotation marks

omitted).

       Here, when police stopped Finch for a purported traffic violation on November 19,

2009, they had reasonable suspicion to think that he was in unlawful possession of a

firearm. Prior to pulling over Finch’s vehicle, police were aware that (1) a concerned

citizen known to the police reported personally observing “Michael”—a white male in his

fifties who lived in a white Dodge conversion van with New York registration

EVN2005—possess firearms in the van as recently as November 16, 2009; (2) the citizen

stated that “Michael’s” van was typically parked outside an apartment building in Sanborn,

New York; (3) the referenced van was registered to Finch; (4) Finch had not been issued a

New York state pistol permit; and (5) while police were procuring a search warrant for the

van, which later issued, an officer observed Finch depart from the identified Sanborn


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apartment building in the Dodge van. In such circumstances, the police had reasonable

suspicion to think that Finch possessed a firearm unlawfully, and thus the stop comported

with the Fourth Amendment, without regard to the challenged traffic violation relied on by

the district court. See id. at 332–35 (identifying reasonable suspicion to stop defendant

emerging from apartment for which police had probable cause to think drugs and gun

located where defendant matched description of apartment’s resident); United States v.

Salazar, 945 F.2d 47, 50–51 (2d Cir. 1991) (holding that height, coloring, gender, and

ethnicity supported stop of person approaching residence described by informant as site of

criminal activity); see also Zellner v. Summerlin, 494 F.3d 344, 369 (2d Cir. 2007) (noting

that even if “actual arresting or searching officer lacks the specific information to form the

basis for . . . reasonable suspicion,” stop may be lawful if sufficient information “was

known by other law enforcement officials initiating or involved with the investigation”

(internal quotation marks and alterations omitted)).          Accordingly, Finch’s Fourth

Amendment challenge fails on the merits.

       We have considered Finch’s remaining arguments and conclude that they are

without merit. We therefore AFFIRM the judgment of the district court.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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