979 F.2d 795 (10th Cir. 1992), 92-1115, United States v. Laboy

Docket Nº:92-1115.
Citation:979 F.2d 795
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Richard W. LABOY, Defendant-Appellee.
Case Date:November 09, 1992
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 795

979 F.2d 795 (10th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellant,


Richard W. LABOY, Defendant-Appellee.

No. 92-1115.

United States Court of Appeals, Tenth Circuit

November 9, 1992

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[Copyrighted Material Omitted]

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John M. Hutchins, Asst. U.S. Atty., (Michael J. Norton, U.S. Atty., Kathleen M. Tafoya, Guy Till, Asst. U.S. Attys., with him on the brief), Mountain States Drug Task Force, Denver, Colo., for plaintiff-appellant.

Charles Szekely, Asst. Federal Public Defender, (Michael G. Katz, Federal Public Defender, with him on the brief), Denver, Colo., for defendant-appellee.

Before BRORBY, McWILLIAMS, and KELLY, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

The government appeals from the district court's suppression of physical evidence. Defendant-Appellee Laboy was indicted for possession with intent to distribute crack cocaine and carrying a firearm in connection with a drug trafficking crime. 21 U.S.C. §§ 841(a)(1), (b)(1)(C); 18 U.S.C. §§ 2, 924(c). Following a hearing, the district court suppressed evidence seized at an initial sidewalk arrest and at the follow-up arrest at the high school Mr. Laboy attended. The district court concluded that the initial encounter between Mr. Laboy and the police constituted a "seizure" for Fourth Amendment purposes, since a reasonable person would not have felt free to leave. The district court further found that this seizure was unreasonable since it was unsupported by any reasonable suspicion of criminal activity, and therefore ordered suppression of the immediate fruits of that arrest (a small amount of crack cocaine and a nine millimeter handgun). According to the district court, the subsequent federal arrest warrant and the evidence seized under that arrest warrant (a notebook containing allegedly gang- and drug-related notations) were the tainted product of the initial unreasonable seizure. Our jurisdiction to review the district court's suppression order arises under 18 U.S.C. § 3731. We hold that the initial encounter did not constitute a "seizure" that implicates the Fourth Amendment and reverse.


In February 1992, Detective Jesus Quinones was part of a support team for an undercover narcotics operation at an apartment house in Denver, Colorado. He was dressed in plain clothes and waited outside of the building in an unmarked car with another officer, who wore a raid vest bearing the police logo and carried a submachine gun. Four other undercover officers assisted.

Following a distress signal from the undercover officer making the buy inside the building, Detective Quinones ran into the building and assisted two other officers in escorting three prisoners to the rear of the building, where they were lined up against a wall. Two of these prisoners were handcuffed with their backs to the wall so that the handcuffs were not visible to passersby on the street. The third prisoner was facing the street and was not handcuffed. Detective Quinones was the only officer standing next to the three prisoners and his service revolver was out of sight.

Mr. Laboy was walking on the other side of the street. Detective Quinones and Mr. Laboy made eye contact, and acknowledged each other with nods. Detective Quinones then waved at Laboy, signalling him to come over. Mr. Laboy did so. Detective Quinones testified:

I asked him, I said, "You got any stuff?" And then he [Mr. Laboy] told me, "Yeah, what are you looking for?" That's when I told him [Mr. Laboy] a "twenty."

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He [Mr. Laboy] said yeah, I do, or "Yeah, I do have some stuff, ..."

II R. 14-15. Mr. Laboy testified that he knew that he was watching an arrest in progress, and he interpreted Detective Quinones' gestures to him as a sign that he was being arrested, and felt that he might be shot if he tried to run away. Mr. Laboy indicated that Detective Quinones asked him if he had any stuff, to which Mr. Laboy responded yes, and thereafter Mr. Laboy was arrested.

The district court framed the inquiry as "whether under the totality of the circumstances a reasonable person in the position of Richard Laboy would believe that he was not free to leave the area and...

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