concurring in part and dissenting in part.
I concur with Part II of the majority opinion, in which it upheld the search of the residence and the seizure of the firearm therein. I also concur with Part III, remanding for resentencing in light of United States v. Booker, — U.S. -, 125. S.Ct. 738, 160 L.Ed.2d 621 (2005). Moreover, although Part I D may rightly state the facts and the law, I do not adopt it. It discusses an issue not raised by the parties and not discussed in the briefs. There is no reason to decide a matter which the parties do not feel is material and which is not necessary to a resolution of this case. Finally, I dissent from the remainder of Part I of the majority opinion, in which it reversed the district court’s denial of the motion to suppress the crack cocaine found on Hudson.
The district court found there was reasonable suspicion for the police to briefly detain Hudson after approaching the vehicle in which he was sitting, under the authority of United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 83 L.Ed.2d *446604 (1985); and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Several relevant facts should be noted. First, the officers did not stop the vehicle in which Hudson was riding. The vehicle came to a stop at the store before the officers approached the vehicle and asked the occupants to get out. Therefore, the intrusion here was slightly less than what occurred in Hensley, where the officers stopped the vehicle which the suspect was driving. Second, there was an outstanding arrest warrant which had been issued for Hudson for an armed robbery about eleven months before in the same community, Gallatin, Tennessee, which is a small town, and Officer Hesson knew about it. In Hensley, there was a “wanted flier” from another community in the vicinity, but apparently there was no warrant.
Moreover, Officer Hesson knew that Jamie Potts worked at the Pantry Market in Gallatin, that she would likely arrive when her shift began about 3:00 P.M., that she would be driving a red or maroon Ford Taurus, and that she shared a child with Hudson. The officer also knew that Potts was a white woman and Hudson was a black man, although Hesson was not able to identify Hudson by sight.
The only other information known by Hesson which is of concern to the majority is that Hesson said that he learned from the informant that Potts would be arriving in her car and accompanied by Hudson. The majority finds that because Hesson did not mention in his written report that Hudson would be in the car with Potts when she arrived, an inference is raised that the district court found that Hesson was not credible when he testified that he was informed that Hudson would be with Potts at the time Potts arrived. However, I do not think that is a reasonable inference from the record. The district court merely stated that Hesson’s written report did not reflect that Hudson would be with Potts, but Hesson testified under oath that he received such information. Nothing in the record refutes it. The court did not find that statement to be incredible because it was not included in the written report. Instead, it found that the officers had reasonable suspicion to justify the limited detention of Hudson in order to determine if one of the two males in the vehicle was Hudson. Most of the information Officer Hesson had in his mind was corroborated, except he did not know whether one of the two men in the vehicle was Hudson. The district court correctly found that the officers had reasonable suspicion to detain Hudson long enough to determine his identity. See Alabama v. White, 496 U.S. 325, 330-31, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).
In sum, I would AFFIRM the convictions in the district court but would REMAND for resentencing under Booker.