
    UNITED STATES of America, Appellee, v. Eric MANUEL, Defendant-Appellant.
    No. 15-1273.
    United States Court of Appeals, Second Circuit.
    April 22, 2016.
    Anden Chow, Assistant United States Attorney (Michael A. Levy, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
    Colleen P. Cassidy, Federal Defenders of New York, Inc., New York, NY, for Defendant-Appellant.
    Present: ROBERT A. KATZMANN, Chief Judge, JOSÉ A. CABRANES, Circuit Judge, LEWIS A. KAPLAN, District Judge.
    
    
      
       The Honorable Lewis A. Kaplan, of the United States District Court for the Southern District of New York, sitting by designation.
    
   SUMMARY ORDER

Defendant-appellant Eric Manuel appeals from a judgment of conviction entered by the District Court for the Southern District of New York (Crotty, J.) on April 16, 2015, following a bench trial finding Manuel guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On appeal, Manuel argues that the district court erred in denying his pretrial motion to suppress evidence obtained during a traffic stop conducted by two New York City police officers. More specifically, Manuel contends that the officers lacked reasonable suspicion to stop the livery cab in which he was riding on the ground that they suspected him of drinking alcohol in the cab in violation of New York’s open container law. See N.Y. Veh. & Traf. Law § 1227(1).

“The existence of reasonable suspicion to support a stop is a mixed question of law and fact that is reviewed de novo. The district court’s factual findings on a motion to suppress are reviewed for clear error.” United States v. Simmons, 560 F.3d 98, 103 (2d Cir.2009) (citation omitted).

“The Fourth Amendment permits brief investigative stops — such as [a] traffic stop ... — when a law enforcement officer has ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” Navarette v. California, — U.S.-, 134 S.Ct. 1683, 1687, 188 L.Ed.2d 680 (2014) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). This standard demands “more than a ‘hunch,’ ” United States v. Singletary, 798 F.3d 55, 59 (2d Cir.2015) (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)), but “less than probable cause, requiring only facts sufficient to give rise to a reasonable suspicion that criminal activity ‘may be afoot.’ ” United States v. Bailey, 743 F.3d 322, 332 (2d Cir.2014) (quoting Terry, 392 U.S. at 30, 88 S.Ct. 1868). When determining whether reasonable suspicion exists, we consider the totality of the circumstances. Navarette, 134 S.Ct. at 1687.

We agree with the district court that the officers had a reasonable basis to suspect that Manuel was violating New York’s open container law and, therefore, to stop the cab in which Manuel was riding. The district court found that the officers observed Manuel at approximately 3:30 in the morning drinking slowly out of a disposable cup with no lid in the back of a vehicle. The district court also made a finding that Manuel “was ‘slouched over forward’ with ‘his head down’ in a manner that appeared consistent with intoxication.” United States v. Manuel, No. 14 Cr. 497(PAC), 2014 WL 6603949, at *1 (S.D.N.Y. Nov. 20, 2014). Under these circumstances, the officers reasonably believed that Manuel was drinking alcohol and thus violating New York’s open container prohibition. Cf. Singletary, 798 F.3d at 60-61 (finding reasonable suspicion of an open container violation where the defendant was carrying an object the size of a beer can “wrapped in a brown paper bag” and was holding it in a manner that suggested he was trying not to spill).

Manuel offers two responses to this conclusion. First, he asserts that the district court should not have taken account of Manuel’s allegedly intoxicated appearance when considering the totality of the circumstances because the opinion of the officer who testified about Manuel’s appearance “was not justified by the facts [the officer] described.” Reply Brief for Defendant-Appellant Eric Manuel at 2. To the extent that Manuel means to argue that the district court should have given less weight to the officer’s testimony and therefore clearly erred in crediting it, we disagree. The officer’s opinion was supported by Manuel’s behavior — hunched over and drinking from an uncovered cup in a vehicle — and the time of night. See In re CBI Holding Co., Inc., 529 F.3d 432, 449 (2d Cir.2008) (“A factual finding is not clearly erroneous unless ‘the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’” (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948))).

Second, Manuel argues that his behavior was just as consistent with a tired person drinking coffee. Even assuming that is true, though, “reasonable suspicion ‘need not rule out the possibility of innocent conduct.’” Navarette, 134 S.Ct. at 1691 (quoting United States v. Arvizu, 534 U.S. 266, 277, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)); see also Singletary, 798 F.3d at 60 (“To be sure, a standard beer can is similar in size to a soft drink can, but the law ‘does not demand that all possible innocent explanations be eliminated before conduct can be considered as part of the totality of circumstances supporting a reasonable basis to believe that criminal activity may be afoot.’ ” (quoting Bailey, 743 F.3d at 333)).

We have considered all of Manuel’s remaining arguments and find in them no basis for reversal. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED. 
      
      . Manuel concedes that the officer’s opinion testimony was admissible.
     