                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0247n.06
                             Filed: April 3, 2007

                                            No. 06-5164

                           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
WILLIAM WRIGHT, JR.,                              )    EASTERN DISTRICT OF TENNESSEE
                                                  )
       Defendant-Appellant.                       )




       Before: COLE, SUTTON, and COOK, Circuit Judges.


        PER CURIAM. William Wright, Jr., appeals the district court’s denial of his motion to

suppress evidence discovered and statements made during a traffic stop.             Wright pleaded

guilty—conditioned on his right to appeal the denial of this motion—to being a felon in possession

of a firearm (Count 1), of ammunition (Count 2), and of a firearm and ammunition (Count 3) in

violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Wright argues the stop, the scope of questioning

after the stop, the Terry search of Wright and his car, and the failure to give a Miranda warning were

unconstitutional. For the following reasons, we affirm.

                                                  I

       Early one morning, Knoxville Police Department Patrolman Ray Offenbacher was patrolling

in a marked police car in an area known for drug activity, prostitution, and violent crime. He
No. 06-5164
United States v. Wright


observed a woman exit an apartment building and get into the passenger side of a car in the parking

lot. He then saw the car, driven by Wright, cross the parking lot with its headlights off toward an

alleyway at the rear of the building. Offenbacher drove around a corner to position himself to

observe the car.

       Offenbacher saw the passenger get out to open the trunk to allow another man to place a long,

tubular bundle, which looked like a rifle, in the trunk. At this point, Offenbacher turned into the

alleyway behind the car, the woman closed the trunk and got back in the car, and the courier began

to walk away from the car. The car proceeded up the alley a short distance with its headlights off,

and then the lights were turned on.

       Offenbacher followed the car up the alley and, at one point, passed the courier on his right.

After looking at Offenbacher, the courier started to jog away from the police car. Choosing to focus

on the car, Offenbacher followed it a short distance before activating his emergency lights, stopping

the car, and requesting backup. Offenbacher approached the driver’s side and requested Wright’s

license and vehicle registration. Wright produced a Tennessee driver’s license and Florida vehicle

registration. Around this time, Officer Taylor arrived on the scene as backup.

       Offenbacher then asked Wright what the courier had placed in the trunk; Wright

acknowledged that it was a rifle. He then asked if Wright had any other weapons, and Wright said

he did not. After asking Wright to get out of the car, Offenbacher patted him down and felt several

hard, short, circular objects, which he recognized as ammunition (but not ammunition for a rifle) in




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United States v. Wright


Wright’s front pocket and removed. Asked about the ammunition, Wright said it was for a gun

located at his residence.

       Wright identified the courier only as “G” and denied knowing the origin or ownership of the

rifle. With Wright’s permission to check the rifle’s serial numbers, Offenbacher opened the trunk

and found a loaded, ready-to-fire SKS assault rifle with a bayonet attached.

       Taylor searched the passenger compartment and discovered a loaded .380 caliber handgun,

for which Wright admittedly lacked a permit, in the center console. The ammunition found in

Wright’s pocket matched that handgun.

       After an evidentiary hearing on Wright’s motion to suppress, the magistrate judge rejected

his arguments and recommended denying the motion. The district court adopted the report and

recommendation, and Wright appealed.


                                                  II

       When reviewing a decision on a motion to suppress evidence, we review the district court’s

factual findings for clear error and view the evidence in the light most likely to support the district

court’s decision. United States v. Suarez, 263 F.3d 468, 476 (6th Cir. 2001). We review de novo

the district court’s conclusions of law. Id.

       1.      Constitutionality of the Stop

       We reject Wright’s arguments and hold that Offenbacher had a legally sufficient basis to stop

the car because he had a reasonable suspicion that criminal activity had occurred or was about to

occur. See Terry v. Ohio, 392 U.S. 1 (1968). A reasonable suspicion is “a particularized and

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United States v. Wright


objective basis for suspecting the person stopped of criminal activity. ” Ornelas v. United States,

517 U.S. 690, 695 (1996) (quotations omitted). An officer with a reasonable suspicion “may detain

the suspect briefly to investigate the suspicious circumstances.” United States v. Hurst, 228 F.3d

751, 756-57 (6th Cir. 2000). The time of day, the high-crime area, and the suspicious actions of

Wright, his passenger, and the courier all support the finding that Offenbacher had reasonable

suspicion to stop and investigate.

       2.      Scope of Questioning after the Stop

       Wright also contends that the questioning after the stop was not reasonably related in scope

to the justification for the stop. See Terry, 392 U.S. at 19; United States v. Palomino, 100 F.3d 446,

449 (6th Cir. 1996). But, the record shows that Offenbacher began to ask Wright about the rifle in

the trunk almost immediately after stopping him and asked his permission to check the rifle’s serial

numbers to determine if it had been stolen. Thus, Offenbacher’s questions were directly related in

scope to his reasonable suspicion that a crime had occurred. See United States v. Burton, 334 F.3d

514, 518 (6th Cir. 2003) (“‘Questions that hold potential for detecting crime, yet create little or no

inconvenience, do not turn reasonable detention into unreasonable detention.’” (quoting United

States v. Childs, 277 F.3d 947, 954 (7th Cir. 2002) (en banc))).

       3.      Terry Frisk and Search of the Car

       Next, Wright claims that the Terry frisk of him was unconstitutional because the articulable

and objective facts existing at the time of the frisk could not support a reasonable belief that Wright

was armed and dangerous. Pennsylvania v. Mims, 434 U.S. 106, 111-12 (1977) (holding that a


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United States v. Wright


police officer may order an individual out of his car and frisk him for weapons if there is a

reasonable belief that the individual is armed and dangerous). Here, the early-morning stop occurred

in an area known for violent crime, and Wright acknowledged there was a rifle in the trunk. Based

on his observations and experience, Offenbacher suspected Wright of receiving a stolen firearm and

expected Wright to be armed and dangerous. Thus, it was reasonable for Offenbacher to take

“preventive measures to ensure that there were no other weapons within [the defendant’s] immediate

grasp before permitting him to reenter his automobile.” Michigan v. Long, 463 U.S. 1032, 1051

(1983).        These preventive measures include the Terry frisk and a search of the passenger

compartment. See, e.g., United States v. Terrell, 95 F. App’x. 746, 747-48 (6th Cir. 2004).

          Furthermore, Wright argues that even if Offenbacher had the authority to frisk Wright, he

exceeded the scope of a permissible Terry frisk by reaching into Wright’s pockets before identifying

the ammunition through a pat down of Wright’s outer clothing. This argument was not raised below

and is therefore waived. See, e.g., United States v. Critton, 43 F.3d 1089, 1093 (6th Cir. 1995)

(“[W]e have no jurisdiction to hear appeals of suppression issues raised for the first time on

appeal. . . . [A] defendant who fails to raise a specific issue as the basis for suppression has waived

the right to raise that issue on appeal.” (quotations and internal citations omitted)).

          4.       Miranda Warning

          Finally, Wright complains that in the absence of the familiar Miranda warning, his statements

to the arresting officer should be suppressed. See Miranda v. Arizona, 384 U.S. 436, 479 (1966).

Given Miranda’s protections concern only custodial statements, we initially determine if Wright’s


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United States v. Wright


statements were made while he was “in custody.” United States v. Macklin, 900 F.2d 948, 950-51

(6th Cir. 1990).

       After being placed in the back of the police car (without being handcuffed), Wright claims

he was in custody, and the Miranda protection attached. But merely placing an individual in a police

car does not automatically transform a Terry stop into a formal arrest. See United States v.

Bradshaw, 102 F.3d 204, 211-12 (6th Cir. 1996).            Instead, we look at the totality of the

circumstances, focusing on

       (1) the purpose of the questioning; (2) whether the place of the questioning was
       hostile or coercive; (3) the length of the questioning; and (4) other indicia of custody
       such as whether the suspect was informed at the time that the questioning was
       voluntary or that the suspect was free to leave or to request the officers to do so;
       whether the suspect possessed unrestrained freedom of movement during
       questioning; and whether the suspect initiated contact with the police . . . .

United States v. Salvo, 133 F.3d 943, 950 (6th Cir. 1998).

       Here, as the district court’s findings of fact support, a reasonable person would not have

considered himself “in custody,” requiring the Miranda warning. Although Wright was not free to

leave when stopped, several factors suggest he was not “in custody.” The purpose of the questioning

after the stop was to quickly confirm or dispel the officer’s suspicion of criminal activity. In this

case, Wright’s evasive answers reasonably generated more suspicion, which permitted the officer

to extend questioning under Terry. Second, the questioning occurred near an apartment complex,

a non-coercive location. See Berkemer v. McCarty, 468 U.S. 420, 438 (1984); see also Salvo, 133

F.3d at 951 (parking lot of a fast-food restaurant is a non-coercive location); United States v.

Swanson, 341 F.3d 524, 529 (6th Cir. 2003) (location outside of a shop is non-coercive). Third, the

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United States v. Wright


defendant was questioned for fewer than fifteen1 of the twenty-four minutes between the stop and

his arrest. Under the totality of these circumstances, the district court did not err by finding that

Wright was not in custody when Offenbacher questioned him, and therefore, that no Miranda

warning was required.



                                                 III

       For these reasons, we affirm.




       1
         There were stretches of time when neither the officer nor Wright spoke as they waited in the
police car for those at police headquarters to determine whether Wright was a felon and whether the
rifle was stolen.

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