U.S. v. Brown

• Decision Date: 24 July 2007
• Docket Number: No. 05-2319.,05-2319.
• Citation: 496 F.3d 1070
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank David BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

496 F.3d 1070

UNITED STATES of America, Plaintiff-Appellee, v. Frank David BROWN, Defendant-Appellant.

No. 05-2319.

United States Court of Appeals, Tenth Circuit.

July 24, 2007.

Benjamin A. Gonzales, Assistant Federal Public Defender, Albuquerque, NM, for Defendant-Appellant.

David M. Walsh, Assistant U.S. Attorney (David C. Iglesias, United States Attorney, with him on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Before HENRY, SEYMOUR, and, TYMKOVICH, Circuit Judges.

SEYMOUR, Circuit Judge.

Frank David Brown appeals his conviction on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Mr. Brown pled guilty but preserved his right to appeal the district court's denial of his motion to suppress evidence. For the following reasons, we affirm.

I

At approximately 9:53 a.m. on October 12, 2004, an unidentified male called 911 to report that a woman by the name of Shante was being held hostage by an armed man in apartment 22 at 424 Jefferson Street, Northeast. The caller stated that he had been visiting Shante when the man entered the apartment with a handgun in his back pocket. Shante and the man started arguing and Shante asked him to leave, but he refused. The caller stated that be believed the man was an ex-boyfriend Shante had tried to evict earlier in the day. The caller stated that Shante was afraid of the man and cowered against a wall when the man brandished his handgun. The caller tried to intervene, but the man told him to stay out of it. When the operator asked his name, the caller immediately replied "Tyrone," but shortly thereafter indicated he wished to remain anonymous. Rec. vol. IV at 14. The caller stated that he had left the apartment "before [he could get] shot dead." He insisted repeatedly that Shante needed help. Id. at 16. He urged the operator to "please hurry" several times, id. at 15, and at one point demanded that she "[j]ust get somebody over here before he shoots that girl." Id. at 18. When asked whether he thought she would answer if the 911 operator called her, he replied, "No, I doubt . . . he probably won't let her answer the phone." Id. The 911 operator designated the call a "priority one," meaning it involved a direct threat to someone's life or property.¹ See id. at 8.

While the caller was on the phone with the 911 operator, the operator was communicating with the Albuquerque Police Department (APD) dispatch. It is unclear from the record whether this communication was written or verbal.² Dispatch in turn contacted several police officers in the field. The communication from dispatch to the officers was as follows:

The Zia Plaza Apartments, 424 Jefferson, Northeast, 424 Jefferson. In apartment 22, there's going to be a BMA about twenty-six years of age, refusing to let caller leave. Advising that the subject should have a gun in his back pocket. Advising [inaudible] approximately thirty-six year-old BFA. Male is going to be about six feet tall with a thin build wearing a black shirt and black pants. Possibly carrying a 22 or 25. The BFA is going to be a "Shantella" [inaudible] situation advising that he's refusing to leave [inaudible] possibly an ex-boyfriend [inaudible] . . . .

Audio Tape: Gov't Ex. 2 at Suppression Hr'g (Oct. 12, 2004).

One of the officers asked dispatch to run a license plate check on a vehicle parked near 424 Jefferson Street, and dispatch responded that the car was registered to Shante Stillman, and the address on the registration was apartment 22, 424 Jefferson Street. After the officer obtained the information on the vehicle registration, the following exchange took place between dispatch and one of the officers:

[OFFICER:] When you [got] the call from [the] caller, was she calling back from the home [inaudible] or did she advise you of a cell, or how was she able to get on the phone? Did she advise?

[DISPATCH:] Apparently the call . . . the caller who is anonymous is not the actual Shante. Advising that it's possibly a friend because she's advising that she was with this girl earlier, and that the girl Shante was afraid of the ex-boyfriend coming back. She does have a [phone number] that's listed on the call. I don't know if it's a cell or not. But there is a [phone number] listed to Shante.

[OFFICER:] So the caller is not Shante? But it is listed to her?

DISPATCH: The caller is not Shante. It was an anonymous female, and [the 911 operator] did advise that this anonymous female called it in and said she was with Shante, and that she's a friend of hers.

[OFFICER:] Ten-four. Did she advise that she is still with her? Or had she left?

[DISPATCH:] She was no longer with her. The anonymous friend should not still be with her.

[OFFICER:] Ten-four. Can you 21 the caller and see if she's anywhere in our area. We'd like to speak with her.

[DISPATCH:] She's an anonymous female. Did not leave her name or 21 back.

Id.

As indicated above, one officer requested that dispatch call Shante's number, which the caller had provided to the 911 operator. No one answered the phone when dispatch rang Shante's number. An officer then reported they would attempt to knock on the door of the apartment, but shortly thereafter an officer exclaimed, "He's coming out." Id. at 50.

At Mr. Brown's suppression hearing, Police Patrol Officer Xavier Lopez³ testified that, upon receiving notification from dispatch of a "priority one" domestic dispute involving an armed suspect, he and Officers Alex Marentes, John Montoya and David Jaramillo formulated a plan for approaching the apartment at 424 Jefferson Street. They planned to approach with their weapons ready and knock on the apartment door with guns drawn. Before the officers reached the door, however, Mr. Brown exited the apartment onto a breezeway. The following testimony by Officer Lopez explains what happened next:

[OFFICER LOPEZ:] As I got — when we were set up, we were ready to go in [to the apartment] at that point, I hear Officer Marentes say-say, "he's coming out."

[GOVERNMENT:] How did you hear that?

[OFFICER LOPEZ:] I heard that over the radio. Apparently, [Officer Marentes] said it on his handle. He said, "he's coming out." . . .

[GOVERNMENT:] And then so Officer Marentes said he was coming out. What happened next? . . .

[OFFICER LOPEZ:] That point, myself, Officer Montoya, [and] Officer Jaramillo pied out, basically just came out in a circle near the east stairway up near where the subject was at, at this point where we could see Officer Marentes begin to give him commands to show him his hands.

[GOVERNMENT:] So everyone had their weapons drawn; is that correct?

[OFFICER LOPEZ:] Everyone has their weapons drawn.

[GOVERNMENT:] And it might sound kind of obvious, but why?

[OFFICER LOPEZ:] Didn't want to get shot. Subject possibly has a gun. We're thinking this is probably the subject that this anonymous caller is talking about. I guess that's it . . . .

[GOVERNMENT:] What happened next?

[OFFICER LOPEZ:] At that point, we slowly walked up the stairs, continued to have our guns drawn. We're giving commands: "Show me your hands. Show me your hands. Make sure I can see your hands." At some point, I had the subject get down on his knees, put his hands behind his back while Officer Montoya covers. And what I mean by that is he's got his rifle on target to this subject. I went ahead and holstered, handcuffed the subject . . . .

[GOVERNMENT:] . . . What did you do next? Did you pat him down?

[OFFICER LOPEZ:] At that point, basically simultaneously, as I began to pat him down, I asked him, "Do you have any weapons on you?" He immediately said, "Yes. I have a gun in my left rear pocket."

[GOVERNMENT:] Okay. And did you remove the firearm?

[OFFICER LOPEZ:] I did.

[GOVERNMENT:] Okay. And what did you do next?

[OFFICER LOPEZ:] At that point, we detained the subject who identified himself as Frank Brown, detained him. Obviously, we took the weapon away. I then continued my investigation and went to talk to Shante.

Rec., vol. IV at 50-52.

Mr. Brown was charged with being a felon in possession of a firearm. Prior to trial, he filed a motion to suppress the handgun and statements made to police following his detention, claiming the 911 call was anonymous and did not provide the officers with reasonable suspicion to stop and search him. After conducting a hearing, the district court, ruling from the bench, denied Mr. Brown's motion to suppress. In reaching its conclusion, the court found that the 911 call precipitating Mr. Brown's detention was anonymous, but that the information provided by the anonymous caller had sufficient indicia of reliability to provide the officers with reasonable suspicion to detain and frisk Mr. Brown. Id. at 96-97. Mr. Brown subsequently pled guilty, preserving the right to challenge the district court's ruling on appeal.

II

In reviewing the denial of a motion to suppress, "[w]e view the evidence in the light most favorable to the government and review the district court's factual findings for clear error. We review the district court's ultimate determination of reasonableness under the Fourth Amendment de novo." United States v. Tucker, 305 F.3d 1193, 1199 (10th Cir.2002) (citation and quotation marks omitted).

The Supreme Court has said there are three types of police-citizen encounters:

(1) consensual encounters which do not implicate the Fourth Amendment; (2) 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, the most intrusive of Fourth Amendment seizures and reasonable only if supported by probable cause.

United States v. Davis, 94 F.3d 1465, 1467-68 (10th Cir.1996) (citations omitted). We agree with the district court and the parties that the detention here should be treated as an investigative detention. "To determine whether an investigative detention was constitutionally permitted, we...