609 F.3d 1059 (10th Cir. 2010), 09-3073, United States v. Salazar

Docket Nº:09-3073.
Citation:609 F.3d 1059
Opinion Judge:HENRY, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Shaun J. SALAZAR, Defendant-Appellee.
Attorney:Richard A. Friedman, Appellate Section, Criminal Division, United States Department of Justice (Lanny D. Welch, United States Attorney, James A. Brown and Terra D. Morehead, Assistant United States Attorneys, District of Kansas, with him on the briefs), Washington, D.C., for Plaintiff-Appellant. ...
Judge Panel:Before HENRY, ANDERSON, and TYMKOVICH, Circuit Judges.
Case Date:June 21, 2010
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1059

609 F.3d 1059 (10th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellant,

v.

Shaun J. SALAZAR, Defendant-Appellee.

No. 09-3073.

United States Court of Appeals, Tenth Circuit.

June 21, 2010

Page 1060

Richard A. Friedman, Appellate Section, Criminal Division, United States Department

Page 1061

of Justice (Lanny D. Welch, United States Attorney, James A. Brown and Terra D. Morehead, Assistant United States Attorneys, District of Kansas, with him on the briefs), Washington, D.C., for Plaintiff-Appellant.

Ronald E. Wurtz, Assistant Federal Public Defender (Cyd Gilman, Federal Public Defender, with him on the brief), Topeka, KS, for the Defendant-Appellee.

Before HENRY, ANDERSON, and TYMKOVICH, Circuit Judges.

HENRY, Circuit Judge.

After the government indicted him for being a felon in possession of a firearm and ammunition, Shaun J. Salazar filed a motion to suppress the evidence that a Kansas Highway Patrol Trooper discovered in Mr. Salazar's pickup truck during a January 19, 2008 detention. Mr. Salazar argued that, when the trooper activated his emergency lights, he submitted to the officer's show of authority by slowly backing up his pickup truck for about twenty seconds and then driving forward to the driver's side of the patrol car. At that point, Mr. Salazar maintained, the trooper lacked reasonable suspicion of criminal activity and the resulting detention therefore violated the Fourth Amendment. The district court agreed and concluded that the evidence that the trooper discovered in Mr. Salazar's pickup truck should be suppressed.

In this interlocutory appeal, the government argues that Mr. Salazar did not submit to the trooper's initial show of authority. Instead, the government maintains, Mr. Salazar's slowly backing up his pickup truck constituted an evasive action: it was not until the trooper stepped out of the patrol car, drew his firearm-which he kept at his side-and told Mr. Salazar to get out of the pickup, that Mr. Salazar submitted to the trooper's authority by complying with that order. At that point, the government argues, the trooper had reasonable suspicion to detain him.

Although the issue is close, we agree with the government and therefore reverse the district court's decision and remand for further proceedings consistent with this opinion.

I. BACKGROUND

We view the record in the light most favorable to the prevailing party-here Mr. Salazar. See United States v. Hauk, 412 F.3d 1179, 1185 (10th Cir.2005).

A. The investigative detention on January 19, 2008

On January 19, 2008, at approximately 10:00 p.m., Kansas Highway Patrol Trooper Terry L. Berner stopped to get gas at a Kansas Department of Transportation facility on U.S. Highway 24-40 in Douglas County, Kansas. While in the parking lot, Trooper Berner observed a Ford pickup enter the parking lot directly across the highway at a location known as Tee Pee Junction.

Tee Pee Junction contains a building that resembles a tee pee, a nearby building used for banquets and parties, and a parking lot. An area at the rear of parking lot was used by a local business, Wright's Tree Service, to store its trucks at night. The buildings were not in use on the evening at issue.

Trooper Berner observed the pickup, which was driven by Mr. Salazar, make a U-turn, back up the entire length of the parking lot, and shut its lights off. The pickup truck parked next to a vehicle belonging to Wright's Tree Service.

After the pickup stopped, Trooper Berner saw a reflection of what appeared to be a door opening. However, the trooper did not see anyone exit the pickup. At the hearing on the motion to suppress, Trooper

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Berner explained that his observations were consistent with at least three scenarios: (1) that the person in the vehicle needed to urinate; (2) that he or she wanted to get something outside of the vehicle; or (3) that the person was seeking to burglarize the vehicles in the parking lot.

Trooper Berner then proceeded to drive his patrol car across the highway toward the parking lot with his headlights off. As Trooper Berner approached, the pickup turned on its headlights and began moving forward toward the patrol car. At that point, the two vehicles were approximately 75-100 feet away from each other.

Upon seeing the pickup truck beginning to move forward, Trooper Berner activated his emergency lights, including his " wigwag flashing headlights and dash-mounted red and blue lights ... inside the windshield." Aplt's App. at 23 (Tr. of Hr'g on Mot. to Suppress). The emergency lights activated the camera in the patrol car, and the resulting recording is part of our record.

The recording indicates that Trooper Berner's patrol car and Mr. Salazar's pickup drove slowly toward each other for fourteen seconds. Both vehicles simultaneously came to a halt a few feet apart. Trooper Berner then directed his spotlight on Mr. Salazar. Within less than a second, Mr. Salazar began backing his pickup truck away from the patrol car and continued backing away for twenty seconds. Trooper Berner slowly drove toward the pickup, so the distance between the vehicles remained approximately twenty feet or less. After twenty seconds, the pickup momentarily stopped and then drove forward around the driver's side of the patrol car.

When Mr. Salazar's pickup started to go around Trooper Berner's patrol car, Trooper Berner stepped out of his car, drew his firearm, and yelled at Mr. Salazar to stop and get out of the pickup. At that point, Mr. Salazar complied.

Trooper Berner then holstered his weapon. At Trooper Berner's direction, Mr. Salazar moved to the front of the patrol car. Trooper Berner asked for identification. Mr. Salazar gave his name, but he could not produce a driver's license. He admitted that he had been drinking.

Trooper Berner handcuffed Mr. Salazar and placed him under arrest for driving without a license. Then, Trooper Berner called for assistance and learned from the dispatcher that Mr. Salazar did not have a valid driver's license.

At about 10:15 p.m., another officer arrived at the scene. Trooper Berner proceeded to inspect the location where Mr. Salazar had briefly stopped his pickup after backing up. Trooper Berner found a loaded .38 caliber revolver with an obliterated serial number. Inside the pickup, Trooper Berner found a gun case and a box of ammunition compatible with the revolver.

B. The district court proceedings

In July 2008, a federal grand jury returned an indictment against Mr. Salazar for being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). In response, Mr. Salazar filed a motion to suppress the physical evidence seized during the detention, as well as the statements that he made at that time. He argued that Trooper Berner lacked reasonable suspicion to detain him.

The district court held an evidentiary hearing. Mr. Salazar testified briefly, identifying the owner of the pickup that he was driving on January 19, 2008, and explaining that he had permission to borrow it. Trooper Berner gave a detailed account of the detention. After hearing the

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testimony, the district court partially granted Mr. Salazar's motion to suppress.

In particular, the court ruled that Trooper Berner's activation of his emergency lights was a " show of authority" ordering Mr. Salazar to stop. Aplt's App. at 73. However, the court further reasoned that Mr. Salazar was not " seized" for Fourth Amendment purposes until he submitted to that show of authority. Id. (citing California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)). According to the district court, this submission to authority occurred when Trooper Berner activated his emergency lights and " blocked [Mr. Salazar's] pickup from leaving the lot." Id. at 74. As evidence of this submission, the court noted that Mr. Salazar " slowly backed up, then pulled alongside the patrol car, applied the brakes and leaned out of the pickup window to talk to Trooper Berner." Id.

After finding that Mr. Salazar was already seized by the time he began backing up his pickup, the court ruled that the seizure was not supported by reasonable suspicion. The court considered the following factors: " Trooper Berner knew that (1) at 10:00 p.m., [Mr. Salazar] pulled his truck into a parking lot next to a business which was closed; (2) the parking lot had no other activity; (3)...

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