United States v. Dell, 062812 FED10, 11-4078

Docket Nº:11-4078
Opinion Judge:William J. Holloway, Jr. Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellant, v. CHASE JOSEPH DELL, Defendant-Appellee.
Judge Panel:Before HARTZ, HOLLOWAY, and HOLMES, Circuit Judges. HOLMES, Circuit Judge, dissenting.
Case Date:June 28, 2012
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

UNITED STATES OF AMERICA, Plaintiff - Appellant,

v.

CHASE JOSEPH DELL, Defendant-Appellee.

No. 11-4078

United States Court of Appeals, Tenth Circuit

June 28, 2012

D. Utah, D.C. No. 2:10-CR-00896-TC-1

Before HARTZ, HOLLOWAY, and HOLMES, Circuit Judges. [**]

ORDER AND JUDGMENT [*]

William J. Holloway, Jr. Circuit Judge.

Late in the afternoon on August 28, 2010, Defendant-Appellee Chase Joseph Dell and a female companion were peering into the windows of a legally parked automobile. The car was parked on a street in the Glendale neighborhood of Salt Lake City, which is thought by some to be a high-crime neighborhood. A police officer was patrolling the neighborhood in his squad car, and observed Mr. Dell and his female companion looking into the parked car. Mr. Dell looked toward the patrolling officer, and immediately thereafter he and his companion walked away from the parked car, though the companion equivocated before following Mr. Dell's lead. The officer, based on these observations, desired further investigation of Mr. Dell and his companion. So he signaled Mr. Dell over to his car in order to ask some questions. From that point on, Mr. Dell's behavior became more and more suspicious, and ultimately the officer found a gun in Mr. Dell's possession. As a result, Mr. Dell, who is a convicted felon, was charged with illegally possessing a firearm in violation of 18 U.S.C. § 922(g)(1).

Mr. Dell moved the district court to suppress evidence seized from his person and statements made during the detention, arguing that the officer illegally detained him by ordering him to approach the police car. After an evidentiary hearing, the district court granted Mr. Dell's suppression motion. The United States brings this interlocutory appeal from that decision. We AFFIRM, concluding the district court correctly ruled that the officer lacked the requisite reasonable suspicion to initiate an investigative detention of Mr. Dell.

I

"When reviewing the grant of a motion to suppress, this Court examines the evidence in the light most favorable to the defendant and accepts the district court's factual findings unless they are clearly erroneous." United States v. Lopez, 443 F.3d 1280, 1283 (10th Cir. 2006). "The ultimate determination as to whether an officer's conduct violates the Fourth Amendment, however, is reviewed de novo." Id. Because we owe deference to the district court's factual findings, and because neither party challenges any of those findings as clearly erroneous, our recitation of the facts draws extensively from the district court's order, United States v. Dell, No. 2:10-CR-896-TC, 2011 WL 939383 (D. Utah Mar. 16, 2011) (hereinafter "Order").

At around 5:00 p.m. on August 28, 2010, Officer Moe Tafisi of the Salt Lake City Police Department was on patrol in the Glendale neighborhood of Salt Lake City, an area which he had patrolled for the entirety of his six and a half years with the department. Order at *1. Officer Tafisi testified that he believes the Glendale area has a high rate of certain types of crime, specifically car break-ins and drug offenses. Id. Neither he nor the government, however, offered any statistical data or other evidence to support this observation. Id.

Officer Tafisi drove his patrol car southbound on Navajo Street, and when he neared the intersection with 550 South, he saw a man (later identified as Mr. Dell) and woman peering into the windows of a car which was legally parked on the street. Id.; R. at 84. Mr. Dell was on the driver side and the woman on the passenger side, and each was hunched over, looking back and forth inside the car. Order at *1. Before Officer Tafisi's patrol car reached the parked car, Mr. Dell looked in his direction and thereafter walked away from the parked car. Id. The woman initially followed Mr. Dell, but returned to the parked car momentarily before finally following a few steps behind him. Id. Officer Tafisi never saw either individual touch the car in any way, nor did he see them possessing any tools or objects. Id.

The individuals walked in the same direction Officer Tafisi was travelling. Id. Desiring further investigation, Officer Tafisi drove past them, made a U-turn at the next intersection, and then parked his car in the street. Id. From inside the parked patrol car, he waved Mr. Dell over to his patrol car, and simultaneously called out, "Hey, come over."1 Id. Mr. Dell promptly complied with the instruction, and approached Officer Tafisi's patrol car. Id.

At this point, we have set forth all the operative facts — the government concedes that by the time Officer Tafisi said, "Hey, come over, " a Fourth Amendment seizure began. We do not recite in detail what happened after the initial interaction, because the district court made no determinations as to the continuing validity of the investigative detention. For our purposes, it suffices to acknowledge that after Mr. Dell walked up to the patrol car, Officer Tafisi became more and more suspicious for a variety of reasons, and after a period of time — perhaps half an hour, though the precise length of time is not clear from the record — identified Mr. Dell as a convicted felon and found a gun on his person.

II

The government brought a one-count indictment charging Mr. Dell, who is a convicted felon, with a violation of 18 U.S.C. § 922(g)(1), which prohibits felons from possessing firearms. Mr. Dell moved to suppress all evidence seized during his encounter with Officer Tafisi, including the gun he was allegedly carrying illegally.

Police-citizen encounters are divided into three categories: (1) consensual encounters which do not implicate the Fourth Amendment; (2) under Terry v. Ohio, 392 U.S. 1 (1968), investigative detentions which are Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity; and (3) arrests which are reasonable only if supported by probable cause. United States v. Lopez, 443 F.3d 1280, 1283 (10th Cir. 2006). In the district court, the government argued that Officer Tafisi's initial interaction with Mr. Dell was a consensual encounter and that, in any event, Officer Tafisi had reasonable suspicion to conduct an investigative detention of Mr. Dell.

The district court concluded that Officer Tafisi initiated an investigative detention of Mr. Dell rather than a consensual encounter. Order at *3. In considering whether the detention was reasonable under the Fourth Amendment, the court noted that Mr. Dell's behavior of standing by a parked car and looking into the windows back and forth was no different from that of other pedestrians in the neighborhood. Id. at *5 (citing Brown v. Texas, 443 U.S. 47, 52 (1979); Reid v. Georgia, 448 U.S. 438, 441 (1980)). The court also held that the description of Glendale as a high-crime area was insufficient to give Officer Tafisi reasonable suspicion. Id. (citing Brown, 443 U.S. at 52). Also insufficient in the district court's view was the fact that Mr. Dell and his companion walked away from the parked vehicle once Mr. Dell saw Officer Tafisi approaching. Id. (citing United States v. Davis, 94 F.3d 1465, 1469 (10th Cir. 1996)). The district court also analyzed the totality of the circumstances, concluding that all the facts, taken together, did not amount to reasonable suspicion that Mr. Dell was engaged in criminal activity. Id.

As a result, the district court granted Mr. Dell's suppression motion. Id. at *6. The government filed this interlocutory appeal from that decision. We have jurisdiction to hear this interlocutory appeal pursuant to 18 U.S.C. § 3731.2

On appeal, the government has deliberately abandoned its argument that this was a consensual encounter. Aplt. Reply Br. at 2 n.1 ("Although an argument could be made that the initial encounter was consensual, the United States has elected not to pursue this theory on appeal."). Thus, we only inquire whether Officer Tafisi had reasonable suspicion of criminal activity when he seized Mr. Dell. If he did not, the government concedes, the seizure was illegal, and fruits of the seizure — including evidence of Mr. Dell's gun possession — must be suppressed.

III

The dispute in this case is straightforward: Did the facts known to Officer Tafisi before he called Mr. Dell over to his car add up to a reasonable suspicion that criminal activity (specifically, a car break-in) had occurred, was occurring, or was about to occur? "In making this determination, we look at the totality of the circumstances to determine whether a particularized and objective basis, viewed from the standpoint of an objectively reasonable police officer, existed for suspecting legal wrongdoing." United States v. Lopez, 518 F.3d 790, 797 (10th Cir. 2008) (citing United States v. Arvizu, 534 U.S. 266, 273 (2002)). Officer Tafisi made three observations which at least arguably play into the reasonable suspicion analysis: (1) Mr. Dell and his companion were in what the officer thought to be a high-crime neighborhood, particularly with regard to car break-ins and drug crimes; (2) Mr. Dell and his companion were peering into the windows of a legally parked car; and (3) Mr. Dell and his companion walked away from the parked car upon seeing that the patrolling officer was headed in their direction.

The Glendale neighborhood's supposed high-crime status was given little weight by the district court. Officer Tafisi's assertions about crime levels in Glendale were generalized and ambiguous, and he did not specify any portion of the Glendale area which had elevated crime rates. He said that Glendale had high crime rates for car break-ins, drugs, and other unspecified types of crime. See R. at 66. And, as the district court pointed out, no statistics or testimony backed up this claim other than Officer Tafisi's comment that he had six and a half years' experience patrolling the Glendale area.

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