699 F.3d 1220 (10th Cir. 2012), 11-4169, United States v. Guardado

Docket Nº:11-4169.
Citation:699 F.3d 1220
Opinion Judge:PAUL KELLY, JR., Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Brian Luis GUARDADO, Defendant-Appellant.
Attorney:Stephen McCaughey, Salt Lake City, UT, for Defendant-Appellant. Diana Hagen, Assistant United States Attorney, (and David B. Barlow, United States Attorney, on the brief), Salt Lake City, UT, for Plaintiff-Appellee.
Judge Panel:Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.
Case Date:November 15, 2012
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1220

699 F.3d 1220 (10th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

Brian Luis GUARDADO, Defendant-Appellant.

No. 11-4169.

United States Court of Appeals, Tenth Circuit.

November 15, 2012

Page 1221

Stephen McCaughey, Salt Lake City, UT, for Defendant-Appellant.

Diana Hagen, Assistant United States Attorney, (and David B. Barlow, United States Attorney, on the brief), Salt Lake City, UT, for Plaintiff-Appellee.

Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Defendant-Appellant Brian Luis Guardado entered a conditional plea of guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He was sentenced to 46 months' imprisonment and 36 months' supervised release. Mr. Guardado reserved his right to appeal the district court's denial of his motion to suppress evidence found during a Terry stop-and-frisk. Exercising that right, Mr. Guardado argues on appeal that the district court erred in holding the officers' stop was based upon reasonable suspicion. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

Background

On September 5, 2010, Detective Jacob Burton, a member of the Metro Gang Task Force, was patrolling an area of South Salt Lake City, Utah. 2 R. 8-9. According to Detective Burton, the task force was targeting the area because of an ongoing " tagging" feud (i.e., graffiti feud) between gangs. Id. at 16-17. In addition, there had been aggravated assaults, a weapons offense, and other crimes in the area. 1 R. 37.1

Around 1:00 a.m., Detective Burton noticed four males walking nearby a well-lit intersection. 2 R. 10. The men were about fifteen feet away from Detective Burton's police car. 1 R. 26. They initially drew Detective Burton's attention because they were walking in an area where foot traffic was very sparse at night. 2 R. 10-11. Upon seeing the men, Detective Burton turned his car around. Id. at 11. He directed his headlights at the men to " get a better look at who they were and what they were doing." Id. Detective Burton observed four Hispanic males. Id. One male appeared to be wearing a pair of baggy brown shorts and a brown bandana, another had on a backpack, and a third male wore a brown jacket. Id. at 11-12. Detective Burton testified that brown clothing is specific to the QVO or East Side Rascals street gang, and he reported that the " majority" of his graffiti-related arrests involve suspects who carry their graffiti kits in backpacks. Id. at 17.

Detective Burton drove by the men once more. Id. at 12. Based on their clothing, the time of night, and the high-crime area, Detective Burton decided to speak with the men. Id. at 17. He pulled up approximately twenty to thirty feet behind them. Id. at 12. At the same time, another member of the Metro Gang Task Force, Detective Clark, radioed Detective Burton to ask whether he had seen the group of men. Id. at 13. Detective Burton explained that he was getting ready to stop them. Id.

As he exited the police car, Detective Burton heard someone yell, " Cops." Id.

Page 1222

The man in the brown jacket, Mr. Guardado, began walking away briskly and then " took off running" toward " an extremely high crime area." Id. at 13, 16. In response, Detective Burton said, " Police. Stop. Police Stop." Id. at 13. But Mr. Guardado continued to run. Id.

Detective Burton ran after Mr. Guardado, yelling at him to stop. Id. at 14. During the chase, he saw that Mr. Guardado's hand was in front of his body, which Detective Burton noted was " uncommon in a full pursuit as you're running." Id. Detective Burton believed Mr. Guardado was possibly trying to conceal some type of evidence or weapon, or retrieve a weapon. Id.

Detective Clark pulled his car in front of Mr. Guardado, exited the car, and yelled, " Police. Stop." Id. Mr. Guardado continued to run until Detective Clark tackled him. Id. Detective Burton then placed Mr. Guardado's right arm in a knee lock. Id. at 15. The detectives yelled at Mr. Guardado several times, demanding that he give them his left hand. Id. But Mr. Guardado ignored their orders and kept his hand underneath his body. Id.

Although Mr. Guardado refused to comply with the detectives' demands, Detective Clark eventually was able to pry Mr. Guardado's left hand free. Id. Mr. Guardado was then handcuffed, and...

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