U.S. v. Mchugh

• Decision Date: 04 April 2011
• Docket Number: No. 10–5065.,10–5065.
• Citation: 639 F.3d 1250
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Kenneth Frank McHUGH, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

639 F.3d 1250

UNITED STATES of America, Plaintiff–Appellee,

v.Kenneth Frank McHUGH, Defendant–Appellant.

No. 10–5065.

United States Court of Appeals, Tenth Circuit.

April 4, 2011.

Thomas Scott Woodward, United States Attorney, and Joel-lyn Alicia McCormick, Assistant United States Attorney, Northern District of Oklahoma, for Plaintiff–Appellee.Julia L. O'Connell, Federal Public Defender, Amanda M. Folsom, Assistant Federal Public Defender, and Barry L. Derryberry, Research and Writing Specialist, Office of the Federal Public Defender, Northern District of Oklahoma, for Defendant–Appellant.Before O'BRIEN, SEYMOUR, and HOLMES, Circuit Judges.^*HOLMES, Circuit Judge.

Kenneth Frank McHugh conditionally pleaded guilty to possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), reserving his right to appeal the district court's previous denial of his motion to suppress evidence. Mr. McHugh now appeals that denial, arguing that his Fourth Amendment rights were violated because the officer that detained him lacked reasonable suspicion to justify the investigatory stop. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district court's denial of Mr. McHugh's motion to suppress.

BACKGROUND¹

At approximately 2:00 a.m. on September 15, 2009, Benjamin Terrero—the armed security officer employed by the Observation Point apartment complex in Tulsa, Oklahoma—was on “night watch” at the property. Mr. Terrero had been hired to enforce a 10:00 p.m. curfew at the apartment complex, which had been instituted in response to a rise in criminal activity in the area. While patrolling the parking lot in his security vehicle, Mr. Terrero observed two white males within the complex; when the individuals saw Mr. Terrero, they “acted very suspicious.” R., Vol. III, at 12–13 (Suppression Hr'g Tr., dated Jan. 7, 2010). One of the men, later identified as Mr. McHugh, “recognized [Mr. Terrero's] vehicle and ran toward a golden colored Impala that was parked in front of” one of the apartment buildings. Id. at 13. Mr. Terrero observed the other male “ducking in between cars ... trying to get to th[e] passenger side of [the Impala].” Id.

After the two men got inside, Mr. Terrero pulled his vehicle behind the Impala and shined his spotlight on it. Mr. Terrero then approached the car to question the men. Mr. McHugh, who was in the driver's seat, told Mr. Terrero “that he was there to pick up his friend [who had] passed out inside of his vehicle”; Mr. McHugh's companion, who had just been seen ducking through the parking lot, was pretending to be unconscious in the passenger's seat. Id. at 14. Mr. Terrero testified that during this interaction Mr. McHugh “was trying to conceal something with his right hand ... between the driver's side seat and the center console.” Id. at 14–15. Mr. Terrero asked Mr. McHugh to “keep his hands where [he] could see them,” but Mr. McHugh repeatedly went “back to trying to conceal his right hand.” Id. at 15.

At that point, Mr. McHugh's “friend” pretended to wake up and attempted to exit the vehicle. In response, Mr. Terrero went to the passenger side of the vehicle and kicked the door shut. Mr. Terrero noticed a screwdriver and a hammer in the vehicle, which he stated “are the kinds of tools people use to break into people[']s cars.” Id. at 15–16. Then, when Mr. McHugh “became agitated” and “insisted [o]n getting out of the vehicle,” Mr. Terrero sprayed him with pepper spray. Id. at 16. Mr. Terrero then pulled his firearm and held the two men at gunpoint while he called 9–1–1. He reported to the police dispatcher that he was detaining two subjects at gunpoint and that he believed they had a gun in their vehicle. Mr. Terrero continued holding the men at gunpoint while he waited for the police to arrive.

Two Tulsa police officers—Officer Oakes and Officer Brisbin—were dispatched to the scene in response to Mr. Terrero's 9–1–1 call. The dispatcher informed the officers that “the security officer ... had two subjects at gunpoint that [were] ... suspected to have a weapon in the car.” Id. at 30. Officer Oakes testified that this was not unusual because over the past ten to fifteen years he had been called to the complex many times before for “[a]nything from domestics to burglaries to just about everything,” and, more specifically, in the “weeks” and “months prior to September 15th” he had responded to calls for “domestics and car burglar[ies] and that type of deal.” Id. at 29.

Upon arrival, the officers “observed the security officer behind the car with his lights on it and pointing his gun at the car and the two subjects in the car.” Id. at 31. Before Officer Oakes approached the Impala, Mr. Terrero told the officer that “the two subjects had been seen lurking through the complex, that ... they were acting hinky on him,” “that when he approached them he just felt uneasy,” and “that they were not obeying his commands.” Id. at 31, 34. Officer Oakes then approached the driver's side of the vehicle and “commanded the driver to reach out and open his door and to start backing out towards the back of the car.” Id. at 31. The officer stated that he did this as a “safety precaution[ ].” Id. at 32. Mr. McHugh obeyed this command, and “[a]s he stepped out of the car he advised [the officer] that he had a gun,” but did not state where it was. Id. At that time—after Mr. McHugh admitted that he was armed—Officer Oakes handcuffed Mr. McHugh, patted him down, and located a revolver in his back pocket.

On November 2, 2009, Mr. McHugh was charged with one count of possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), based on the gun and ammunition seized by Officer Oakes at the apartment complex. Mr. McHugh moved to suppress this evidence, arguing that the initial detention and subsequent search violated the Fourth Amendment. The district court denied the motion, based on its conclusions that: (1) the actions of Mr. Terrero—as a private individual—could not be attributed to the government for purposes of the Fourth Amendment analysis; (2) the initial seizure of Mr. McHugh did not violate the Fourth Amendment because the totality of the circumstances established that the officers had a reasonable suspicion that Mr. McHugh may have been involved in criminal activity; and (3) the pat-down of Mr. McHugh did not violate the Fourth Amendment because the officers had a reasonable suspicion that he was armed and dangerous and the pat-down was not excessive in scope.

Following the district court's denial of his motion to suppress, Mr. McHugh conditionally pleaded guilty to the felon-in-possession charge, reserving his right to appeal the district court's denial of his motion. The district court sentenced Mr. McHugh to sixty months' imprisonment, followed by a term of three years of supervised release. Mr. McHugh then filed this timely appeal.

STANDARD OF REVIEW

In reviewing the district court's denial of a motion to suppress, “we review the court's factual findings for clear error and view the evidence in the light most favorable to the government.” United States v. Worthon, 520 F.3d 1173, 1178 (10th Cir.2008). “[W]e review de novo the ultimate determination of reasonableness under the Fourth Amendment.” United States v. Thompson, 524 F.3d 1126, 1132 (10th Cir.2008); see also United States v. Thomson, 354 F.3d 1197, 1199–1200 (10th Cir.2003) (“We review de novo the district court's legal conclusion concerning whether a Fourth Amendment violation occurred.”).

DISCUSSION

The single issue presented on appeal is whether the police officer's initial investigatory detention of Mr. McHugh was reasonable under the Fourth Amendment.² The Fourth Amendment protects individuals from “unreasonable searches and seizures,” U.S. Const. amend. IV, including unreasonable “investigatory stop[s]” or detentions. United States v. Simpson, 609 F.3d 1140, 1146 (10th Cir.2010). In Terry v. Ohio, the Supreme Court established that a law enforcement officer “may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to arrest.” United States v. Treto–Haro, 287 F.3d 1000, 1004 (10th Cir.2002) (quoting Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)) (internal quotation marks omitted). An investigatory detention “is justified at its inception if ‘the specific and articulable facts and rational inferences drawn from those facts give rise to a reasonable suspicion a person has or is committing a crime.’ ” United States v. DeJear, 552 F.3d 1196, 1200 (10th Cir.) (quoting United States v. Werking, 915 F.2d 1404, 1407 (10th Cir.1990)), cert. denied, ––– U.S. ––––, 129 S.Ct. 2418, 173 L.Ed.2d 1322 (2009); see also United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (“[T]he police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion ... that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” (quoting Terry, 392 U.S. at 30, 88 S.Ct. 1868)).³ Although “[r]easonable suspicion requires the officer to act on ‘something more than an inchoate and unparticularized suspicion or hunch,’ ” United States v. Hauk, 412 F.3d 1179, 1186 (10th Cir.2005) (quoting Sokolow, 490 U.S. at 7, 109 S.Ct. 1581), “the level of suspicion required for reasonable suspicion is ‘considerably less' than proof by a preponderance of the evidence or that required for probable cause,” United States v. Lopez, 518 F.3d 790, 799 (10th Cir.2008) (quoting Sokolow, 490 U.S. at 7, 109 S.Ct. 1581).

In determining whether reasonable suspicion exists, we look to the “totality of the circumstances,” rather than assessing each factor or piece of evidence in isolation. United States v. Salazar, 609 F.3d 1059, 1068 (10th Cir.2010). Additionally, we “need not...