United States v. Rodriguez

• Decision Date: 31 December 2013
• Docket Number: No. 12–2203.,12–2203.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Daniel Manuel RODRIGUEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

739 F.3d 481

UNITED STATES of America, Plaintiff–Appellee,

v.Daniel Manuel RODRIGUEZ, Defendant–Appellant.

No. 12–2203.

United States Court of Appeals, Tenth Circuit.

Dec. 31, 2013.

Scott M. Davidson, The Appellate Law Office of Scott M. Davidson, Albuquerque, NM, for Defendant–Appellant.

James R.W. Braun, Assistant United States Attorney (Kenneth J. Gonzales, United States Attorney, with him on the brief), Albuquerque, NM, for Plaintiff–Appellee.

Before GORSUCH and BALDOCK, Circuit Judges, and JACKSON, District Judge.^*

BALDOCK, Circuit Judge.

Section 30–7–1 of the New Mexico Criminal Code defines “[c]arrying a deadly weapon” as “being armed with a deadly weapon by having it on the person, or in close proximity thereto, so that the weapon is readily accessible for use.” Section 30–7–2 of the Code is entitled “Unlawful carrying of a deadly weapon.” Subject to five enumerated exceptions, subsection (A) proscribes “carrying a concealed loaded firearm or any other type of deadly weapon anywhere[.]” N.M. Stat. Ann. § 30–7–2(A). The issue presented in this appeal is whether a police officer who observes a handgun tucked in the waistband underneath the shirt of a convenience store employee has reasonable suspicion that the employee is unlawfully carrying a deadly weapon in violation of § 30–7–2(A), in turn justifying a “stop and frisk.” The answer is yes.

I.

We succinctly state the relevant facts. Around 6:00 p.m. on July 27, 2011, Albuquerque Police Officer Frank Munoz responded to a dispatch informing him that two employees of the “Pit Stop” convenience store and gas station, located at 6102 Central Avenue SW in a reportedly “high crime” area, were showing each other handguns. Tr. vol. 3, at 8, 44. Fellow Officer Steven Miller also responded to the dispatch. Officer Munoz described the store as being “pretty small on the inside.” Id. at 13. Upon entering the store, Officer Munoz, accompanied by Officer Miller, observed Defendant Daniel Rodriguez a “couple feet away” stocking shelves. Id. at 14. As Defendant bent over, Officer Munoz noticed a silver handgun tucked in the back waistband of his pants. Defendant's shirt concealed the handgun when he stood upright. Officer Munoz told Defendant, “Let me see your hands, and let's step outside.” Id. at 51. At the suppression hearing, Officer Munoz testified:

[Defendant] asked us what for, “What did I do?” And since we were in a pretty cramped area when we walked in, I didn't want myself and Officer Miller or [Defendant], all of us, to be in that cramped area in case anything occurred, so I told him, “Let's step outside,” and that I needed to ask him a question. He was a little upset and wanted to know what he had done. I told him to step outside. He then went past myself and Officer Miller to the door. As he pushed the door open once again his shirt came up, and I saw the gun, and it was at that time I pulled the gun out of the back of his waistband.

Id. at 16. When asked why he removed the gun from Defendant's waistband, Officer Munoz stated, “Just for officer safety, until we could figure out what was going on and why he had a firearm.” Id.

Outside the store, Officer Munoz promptly asked Defendant why he was concealing a handgun. Defendant responded that “somebody had shot at him at that same location at the gas station.” Id. at 25. Officer Munoz asked Defendant whether he had a permit to carry the handgun. Defendant said he did not. Officer Munoz instructed Defendant to turn around and place his hands in the frisk position on a nearby truck. Visible tattoos on Defendant's legs prompted Officer Munoz, a former prison guard, to ask Defendant if he had been arrested. Defendant stated he recently had been released from prison. Following an unremarkable “pat search” of Defendant, Officer Munoz permitted him to sit on the curb and smoke a cigarette. Id. at 19. Meanwhile, Officer Miller ran a check of the handgun removed from Defendant's waistband—a Smith and Wesson model 66–4, .357 magnum revolver loaded with five rounds of Winchester brand .357 ammunition. The check reported the handgun was stolen. Officer Munoz handcuffed Defendant and placed him under arrest. Further investigation confirmed Defendant was a convicted felon.

A federal grand jury charged Defendant with one count of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Defendant filed a motion to suppress evidence, claiming a number of constitutional violations arising out of the foregoing incident. The district court denied his motion in a lengthy opinion. United States v. Rodriguez, 836 F.Supp.2d 1258 (D.N.M.2011). Defendant subsequently entered a conditional plea of guilty pursuant to Fed.R.Crim.P. 11(a)(2). After the court sentenced him to 30–months imprisonment, Defendant appealed only his Fourth Amendment claims that Officer Munoz unreasonably seized him and removed the handgun from his waistband.¹ According to Defendant, “[p]ossession of a concealed firearm in the State of New Mexico, standing alone, cannot be the basis for the type of investigative detention and weapons seizure that [he] was subjected to.” Def's Op. Br. at 15. Notably, Defendant does not dispute the district court's findings, which are consistent with our recitation of the facts. The only question for us is whether the law as applied to those facts supports Defendant's claim that Officer Munoz violated his Fourth Amendment rights. We review de novo the district court's determination that the officer's actions were reasonable within the meaning of the Fourth Amendment. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

II.

Prior to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court had not decided whether a sort of lawful police encounter exists “which does not depend solely upon the voluntary cooperation of the citizen and yet which stops short of an arrest based upon probable cause.” ²Id. at 11, 88 S.Ct. 1868. In Terry, the Supreme Court concluded a police officer's stop and brief detention of an individual and limited search of his person for weapons—commonly referred to as a “stop and frisk”—does not necessarily violate the Fourth Amendment's reasonableness requirement in the absence of probable cause. Id. at 27, 88 S.Ct. 1868. That is to say, a police officer “may in appropriate circumstances and in an appropriate manner” detain a person to investigate suspected criminal behavior even though probable cause to arrest is lacking. Id. at 22, 88 S.Ct. 1868.

To determine the reasonableness of a warrantless seizure and accompanying search in the absence of probable cause, Terry instructs us to ask “whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Id. at 20, 88 S.Ct. 1868. Consistent with Terry, a police officer may briefly detain an individual suspected of criminal activity if the officer has reasonable suspicion based on articulable facts, together with rational inferences to be drawn therefrom, that criminal activity is afoot. See United States v. Harris, 313 F.3d 1228, 1234 (10th Cir.2002). Additionally, Terry permits the officer to conduct a protective frisk of such individual if the officer reasonably believes he might be armed and dangerous. Id. “The stop and the search are independent actions, and each requires its own justification.” United States v. Gatlin, 613 F.3d 374, 378 (3d Cir.2010) (citing Arizona v. Johnson, 555 U.S. 323, 326–27, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009)).

“Reasonable suspicion is a particularized and objective basis for suspecting the person stopped of criminal activity.” United States v. Treto–Haro, 287 F.3d 1000, 1004 (10th Cir.2002) (internal quotation marks omitted). The circumstances necessary to arouse reasonable suspicion fall “considerably short of satisfying a preponderance of the evidence standard.” United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). In United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), the Supreme Court explained “probable cause means ‘a fair probability that contraband or evidence of a crime will be found,’ ... and the level of suspicion required for a Terry stop is obviously less demanding than that for probable cause.” Id. at 7, 109 S.Ct. 1581 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

The Supreme Court has recognized “there could ... be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot.” Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (per curiam). We too have explained that “[r]easonable suspicion may exist even where it might be more likely than not that the individual is not involved in any illegality.” United States v. Guardado, 699 F.3d 1220, 1224 (10th Cir.2012) (internal quotation marks omitted). “The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers.” United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

III.

The Government does not contest Defendant's assertion that he was seized from the outset of his encounter with Officers Munoz and Miller. “[A] person is seized for Fourth Amendment purposes when, considering all the surrounding circumstances, the police conduct ‘would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.’ ” United States v. King, 990 F.2d 1552, 1556 (10th Cir.1993) (quot...