U.S. v. Thompson

• Decision Date: 12 November 2008
• Docket Number: No. 07-6238.,07-6238.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Keith Terrell THOMPSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

546 F.3d 1223

UNITED STATES of America, Plaintiff-Appellee, v. Keith Terrell THOMPSON, Defendant-Appellant.

No. 07-6238.

United States Court of Appeals, Tenth Circuit.

November 12, 2008.

William Lee Borden, Jr., Assistant U.S. Attorney, (John C. Richter, U.S. Attorney, with him on the brief) Oklahoma City, OK, for Plaintiff-Appellee.

William P. Earley, Assistant Federal Public Defender (June E. Tyhurst, Assistant Federal Public Defender, on the briefs) Oklahoma City, OK, for Defendant-Appellant.

Before HARTZ, McWILLIAMS and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

Defendant-Appellant Keith Thompson was approached by police officers while walking to his car at a convenience store. Four police cars pulled into the parking lot, and one parked about twelve feet behind Mr. Thompson's car. An officer asked Mr. Thompson if he had anything illegal. Mr. Thompson eventually admitted to having a gun in his pocket. He was convicted of gun possession by a convicted felon. We are now called upon to determine whether this police encounter violated the Fourth Amendment. We affirm the district court's denial of his motion to suppress.

I. BACKGROUND

Four squad cars were en route to a high crime area along I-35 in Oklahoma City when Officer Zepeda noticed four or five people standing in the parking lot of a 7-11 convenience store. Officer Zepeda pulled into the parking lot, followed by two of the other squad cars. The fourth squad car made a U-turn and then pulled into the lot. Officer Zepeda parked his car approximately twelve feet behind a red Mustang, later identified as belonging to Defendant-Appellant Keith Thompson. The other three officers parked their vehicles closer to the store. Based on somewhat conflicting testimony, the district court found: "it may be likely that Thompson would not have been able to back his car out without Officer Zepeda moving his vehicle...."

When the squad cars pulled into the parking lot, Mr. Thompson was coming out of the store with a drink and doughnut and walking towards his car. Two officers entered the 7-11, where they ultimately arrested someone for marijuana possession. Fully uniformed, with his weapon holstered, Officer Zepeda approached Mr. Thompson without any particularized grounds for reasonable suspicion, simply because "he was the only one that wasn't running." After asking Mr. Thompson if he could speak with him and receiving consent, Officer Zepeda asked Mr. Thompson if he had anything illegal. Mr. Thompson became nervous and did not answer the question. Officer Zepeda told him to relax and then repeated his question. Mr. Thompson responded, "I have a gun in my back pocket."

Officer Zepeda told Mr. Thompson to put his hands on the car, and then reached around and felt the gun through the outside of Mr. Thompson's back pocket. He told Mr. Thompson to leave his hands on the car, removed the weapon, and gave it to another officer who had walked over to assist him. Officer Zepeda then placed handcuffs on Mr. Thompson for investigative purposes. Upon realizing that the gun had the serial number ground off of it, the officers arrested Mr. Thompson. While running a background check, Officer Zepeda asked him if he was a convicted felon. Mr. Thompson said that he was, and his statement was confirmed through the computer background check. Six days later, Mr. Thompson was interviewed while in jail, and he confirmed his earlier admission that he illegally possessed a gun at the time of his arrest.

Mr. Thompson was charged with gun possession by a convicted felon. He filed motions to suppress evidence resulting from his encounter with Officer Zepeda and his subsequent jailhouse confession, both of which were denied. At trial, however, the government did not introduce the subsequent jailhouse confession. The jury voted to convict.

On appeal, Mr. Thompson maintains that the initial encounter with Officer Zepeda constituted a seizure, which was not supported by reasonable suspicion or probable cause. As a result, he argues that the gun and subsequent confession were fruits of the poisonous tree and should have been suppressed. Even if the initial encounter was not a seizure, Mr. Thompson argues that the subsequent search was not consensual.

II. DISCUSSION

According to formal legal doctrine, an encounter between an individual and the police is consensual when "a reasonable person would feel free `to disregard the police and go about his business.'" Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (quoting California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).) In addressing this question, however, we must be guided by the Court's decisions in similar cases rather than our own experience regarding how reasonable people actually respond to police investigations.¹

The most recent Supreme Court case relevant to this question is United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). In Drayton, the defendants were passengers on a Greyhound bus that had stopped to refuel. Three police officers boarded the bus as part of a routine drug and weapons interdiction effort. One officer stood at the back of the bus, one at the front, and the other next to or behind each passenger as he asked him questions. The Court noted that the exits of the bus were not blocked. Id. at 204, 122 S.Ct. 2105. When talking to the defendants, the officer stated his purpose and asked if they had any bags on the bus. Id. at 198, 122 S.Ct. 2105. The officer obtained permission to search the defendants' bag, which revealed no contraband. Noticing the defendants were wearing baggy clothes, he asked if he could check their persons. Id. at 199, 122 S.Ct. 2105. Each permitted a pat down search, which revealed packages of drugs, and the officers arrested both defendants. Id. The Supreme Court held that because there was "no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, [and no] authoritative tone of voice," and the encounter took place in the presence of other citizens, the interaction was consensual and no seizure had occurred. Id. at 204, 122 S.Ct. 2105.

Drawing on the decisions in Drayton and other cases, this Court has identified a list of factors relevant to the consent inquiry, including:

the location of the encounter, particularly whether the defendant is in an open public place where he is within the view of persons other than law enforcement officers; whether the officers touch or physically restrain the defendant; whether the officers are uniformed or in plain clothes; whether their weapons are displayed; the number, demeanor and tone of voice of the officers; whether and for how long the officers retain the defendant's personal effects such as tickets or identification; and whether or not they have specifically advised defendant at any time that he had the right to terminate the encounter or refuse consent.

United States v. Spence, 397 F.3d 1280, 1283 (10th Cir.2005). We have said that this list of factors is not exhaustive and that "no one factor is dispositive." United States v. Abdenbi, 361 F.3d 1282, 1291 (10th Cir.2004). "When viewing the totality of the circumstances, it may be that the strong presence of two or three factors demonstrates that a reasonable person would have believed that he was not free to terminate an encounter with government officials." Jones v. Hunt, 410 F.3d 1221, 1226 (10th Cir.2005).

We applied these factors in United States v. Ringold, 335 F.3d 1168 (10th Cir.2003), a case somewhat similar to the case at hand. There, the defendant pulled into a gas station and convenience store parking lot and parked his car at a gas pump. A uniformed police officer pulled into the parking lot and parked his patrol car at an angle approximately fifteen to twenty feet from the defendant's car. Id. at 1170. The district court found that "the patrol car was not blocking defendants or their car from leaving the station." Id. at 1172. The officer approached the defendant, who was putting gas into his car, and another officer stood within earshot. They were in full view of other patrons. Both officers were armed, but their guns remained holstered throughout the encounter. Id. at 1171. The first officer engaged the defendant in conversation. Initially, the conversation centered around the weather, where the defendant was from, and whether he was on vacation. Then the officer asked if the defendant was carrying any illegal drugs or weapons. Id. at 1172. The defendant denied that he was, and upon being asked if the officer could look in his car, he agreed. He also agreed to let the officer look inside two suitcases in the trunk, which resulted in the discovery of a large bale of marijuana. Id. at 1171. We held that the defendant's encounter with police was consensual, and thus he was not seized for purposes of the Fourth Amendment. Id. at 1172.

In most respects, the police encounter in this case possesses the same characteristics as the encounters in Drayton and Ringold. First, the encounter here occurred in a public place — the parking lot of a 7-11 store — in view of other patrons. Both the Supreme Court and this Court have held that the presence of other citizens during a police encounter is one factor suggesting its consensual nature. See Drayton, 536 U.S. at 204, 122 S.Ct. 2105 (noting that the presence of many fellow passengers during the police encounter may make a reasonable person feel "even more secure in his or her decision not to cooperate with police"); Ringold, 335 F.3d at 1172 (noting that the officers approached the defendants in a public space, in full view of other service station patrons); Zapata, 997 F.2d at 757 (noting that a reasonable person in such a public setting "is less likely to feel singled out as the officers' specific target — and less likely to feel unable to...