United States v. House, 032312 FED10, 11-4102

Docket Nº:11-4102
Opinion Judge:Paul J. Kelly, Jr. Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSEPH PAUL HOUSE, Defendant-Appellant.
Judge Panel:Before KELLY, BALDOCK, and EBEL, Circuit Judges. BALDOCK, Circuit Judge, dissenting.
Case Date:March 23, 2012
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JOSEPH PAUL HOUSE, Defendant-Appellant.

No. 11-4102

United States Court of Appeals, Tenth Circuit

March 23, 2012

(D.C. No. 2:10-CR-00007-DB-1) (D. Utah).

Before KELLY, BALDOCK, and EBEL, Circuit Judges.

ORDER AND JUDGMENT[*]

Paul J. Kelly, Jr. Circuit Judge.

Defendant-Appellant Joseph Paul House entered a conditional plea of guilty to one count of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and was sentenced to thirty-nine months' imprisonment and three years' supervised release. On appeal, he argues that the district court erred by denying his motion to suppress because (1) the initial encounter with the arresting officer was not a consensual encounter, and (2) even if it was, the officer's subsequent frisk was not based upon reasonable suspicion. While we cannot agree with the first point, the second is well-taken and we reverse.

Background

At 12:30 in the afternoon on November 20, 2009, Officer Aaron Daley had just finished investigating a "suspicious activity" call from a woman who heard noises coming from her basement. The woman claimed that her dog alerted toward the basement and ran downstairs; the women fled until police arrived. United States v. House, No. 2:10-CR-007, 2010 WL 4103548 (D. Utah Oct. 18, 2010); Aplee. Br. 2. Upon investigation, there was no evidence of a forced entry and nothing was missing from the house. House, 2010 WL 4103548, at *1. The officer did notice a "doggy door" that was large enough for a human to gain access; however, no one gained entry that way. As the officer was walking to his car, after spending nearly fifteen minutes in the house, 1 R. 39, he noticed Mr. House-the only pedestrian in the area-walking eastbound on the sidewalk in the direction of the woman's house. Id., 2010 WL 4103548, at *1.

Another patrol car approached the intersection where Mr. House was standing, and Mr. House did an "immediate turnaround, " walking in the opposite direction. Id. The officer got into his car, turned around, and approached Mr. House at another intersection. The officer thought that Mr. House avoided making eye contact. Id. The officer then parked his car and approached Mr. House from the rear. Id. Mr. House was holding a cell phone to his ear with his right hand and his left hand was in the pocket of his "puffy" coat. Id., 2010 WL 4103548, at *2. From ten to twelve feet away, the officer asked, "hey, can I talk to you, hey, can I ask you a few questions?" Id. Mr. House continued to walk and talk on his cell phone, so the officer repeated his request and Mr. House ended his call and turned around to face him. Id. The encounter took place on the sidewalk, with just the officer and Mr. House. Id.

Mr. House finally turned around, holding his cell phone in his right hand, and kept his left hand in his coat pocket. Id. The officer noticed what appeared to be a bulge in Mr. House's left coat pocket "that was making it larger than just what an arm or hand would make a coat stick out." 1 R. 49. When questioned, Mr. House replied "no" as to whether he had any weapons on his person, 1 R. 49, but the officer simultaneously noticed the end of a black folding knife protruding from his right coat pocket, 2010 WL 4103548, at *2. The officer recognized it as a knife similar to the type that he carried on duty. Id. He instructed Mr. House to place his hands behind his back, and the officer removed the knife from Mr. House's pocket. Id. After securing the knife, the officer stated he conducted a "Terry frisk" of Mr. House in "highly probable [areas] for weapons" and felt the butt of a gun near where the bulge was on Mr. House's left side. Id.; 1 R. 30, 31, 51. A backup officer arrived at this point, and the arresting officer retrieved a gun from Mr. House's left waistband. Id., 2010 WL 4103548, at *3. The serial number on the gun had been obliterated and was filed down. Id. The district court denied the motion to suppress on the basis that the initial encounter between Mr. House and the officer was consensual, and that the Terry frisk was justified by officer safety concerns. Id., 2010 WL 4103548, at *5-6. The district court reasoned that although no intruder had been found in the woman's home, Mr. House was the only person the officer had seen, Mr. House had apparently changed direction after seeing a marked patrol car, something other than Mr. House's hand may have been in his jacket pocket, and, most significantly, Mr. House had replied that he had no weapons when he had a knife in his pocket. Id.

Discussion

When reviewing a denial of a motion to suppress, we "view the evidence in the light most favorable to the government, accept the district court's findings of fact unless clearly erroneous, and review de novo the ultimate determination of reasonableness under the Fourth Amendment." United States v. Katoa, 379 F.3d 1203, 1205 (10th Cir. 2004).

A. Was the Initial Encounter Between House and the Officer Consensual?

We review de novo "the relevant circumstances to determine whether an interaction between an individual and a law enforcement officer is a consensual encounter that does not implicate the Fourth Amendment." United States v. Abdenbi, 361 F.3d 1282, 1291 (10th Cir. 2004). We have developed three categories of police-citizen encounters. United States v. Madrid, 30 F.3d 1269, 1275 (10th Cir. 1994). The first "involves the voluntary cooperation of a citizen in response to non-coercive questioning." Id. The second is a Terry stop, "involving only a brief, non-intrusive detention and frisk for weapons when officers have a reasonable suspicion that the defendant has committed a crime or is about to do so." Madrid, 30 F.3d at 1275. The third is an arrest. Id. In that case, this court explained:

[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether 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.

Id. at 1276 (alteration in original) (quoting United States v. Little, 18 F.3d 1499, 1503 (10th Cir. 1994)). The inquiry is objective in nature; the subjective perceptions of the suspect are not determinative. See id.

Relevant circumstances used to determine whether an interaction between an officer and an individual is consensual include:

(1) the threatening presence of several officers; (2) the brandishing of a weapon by an officer; (3) physical touching by an officer; (4) aggressive language or tone of voice by an officer indicating compliance is compulsory; (5) prolonged retention of an individual's personal effects; (6) a request to accompany an officer to the police station; (7) interaction in a small, enclosed, or non-public place; and (8) absence of other members of the public.

United States v. Rogers, 556 F.3d 1130, 1137-38 (10th Cir. 2009). The determination is based on the totality of the circumstances. Id. at 1138.

In Rogers, a police officer patrolling the halls of a hotel known for drug activity and prostitution saw the defendant, whom he knew from past encounters as "Graveyard, " exiting a hotel suite. Id. at 1134. The officer asked the defendant if he could speak to him, and the defendant seemed more nervous than in past encounters. Id. The defendant backed into a suite and informed the officer that the officer should talk to another man who was lying on a bed. At this point, the officer noticed a bag of marijuana in plain view and arrested both men. Id. at 1134-35. We held that the encounter was consensual because, given the totality of the circumstances, the "[o]fficer . . . did not touch Defendant, use aggressive language, brandish a weapon, or retain any of Defendant's personal effects." Id. at 1138.

In this case, only one officer was present for most of the interaction, which took place on a public sidewalk in the middle of the day. The officer remained some distance from Mr. House before the frisk, and the district court found credible the officer's characterization of the interaction as "an everyday encounter." House, 2010 WL 4103548, at *2. The district court also noted that Mr. House testified that he felt like he was "free to leave at [the point that the officer asked him to get off of his cell phone]" but did not do so because staying to answer questions was "the right thing to do." Id., 2010 WL 4103548, at *2. Also, the officer asked Mr. House if he could talk to him or ask him a few questions. Id. Based on the totality of the circumstances, we agree with the district court that the officer's interaction with Mr. House was consensual. The only factor that weighs against consent is that the interaction took place in the absence of other members of the public, although it was on a public street, but this is not determinative. See Rogers, 556 F.3d at 1138.

B. Did Officer Daley Have Reasonable Articulable Suspicion to Frisk?

In Terry, the Supreme Court stated that "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous . . . he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." 392 U.S. 1, 30 (1968) (emphasis added). The government argues that no reasonable, articulable suspicion of criminal activity is necessary when a search is incident to a consensual stop, and there need be only a reasonable, articulable suspicion that a person is armed...

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