U.S. v. Garcia

• Decision Date: 25 August 2006
• Docket Number: No. 05-4031.,05-4031.
• Citation: 459 F.3d 1059
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jason H. GARCIA, aka Dogg, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

459 F.3d 1059

UNITED STATES of America, Plaintiff-Appellee, v. Jason H. GARCIA, aka Dogg, Defendant-Appellant.

No. 05-4031.

United States Court of Appeals, Tenth Circuit.

August 25, 2006.

G. Fred Metos, McCaughey & Metos, Salt Lake City, UT, for Defendant-Appellant.

Diana Hagen, Assistant United States Attorney (Paul M. Warner, United States Attorney, with her on the brief), Salt Lake City, UT, for Plaintiff-Appellee.

Before KELLY, HOLLOWAY, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Jason Garcia entered a conditional plea of guilty to possession of methamphetamine with intent to distribute. He now appeals the district court's denial of his motion to suppress, reiterating on appeal his claim that the police lacked reasonable suspicion or probable cause to frisk him for weapons — and thereby discover the methamphetamine — during their entry into an apartment Mr. Garcia was visiting. We conclude that the district court correctly found that the officers had reasonable suspicion and therefore affirm.

I. BACKGROUND

A. Factual Background

In August 2003, Salt Lake County Sheriff's Detective Tracy Wyant learned from a patrol deputy that an ambulance had responded to a drug overdose at an apartment in Taylorsville, Utah. The deputy told Detective Wyant that he suspected additional drug activity at the apartment and asked Wyant to investigate. The deputy also informed Detective Wyant that one of the individuals involved in the overdose incident was named Dusty Kilgrow.

Detective Wyant was familiar with the apartment complex, having visited it multiple times for narcotics investigations — some of which involved suspects who used or possessed firearms. Detective Wyant performed a records check of the apartment where the overdose had occurred and learned the names of two renters: Dusty Kilgrow (the man who had been involved in the overdose incident) and Lisa Ross. Further investigation revealed that Ms. Ross had an outstanding arrest warrant and that Mr. Kilgrow was an active member of the "Lay Low Crips," a violent street gang. Detective Wyant knew or learned from the Metro Gang Task Force that in the past the Lay Low Crips had been involved in the assault-rifle shooting of a West Valley police officer and in the attempted shooting of two Sheriff's Detectives.

Detective Wyant conducted surveillance on the apartment several times, during which he observed short-term traffic in and out of the apartment. On August 18, Detective Wyant and another detective again conducted surveillance on the apartment. In the space of a few minutes, they observed seven individuals coming in and out of the apartment; Wyant identified one of the individuals as Kilgrow. The detectives also saw that two men went out to a car, then returned to the apartment; that several individuals stood out in front of the apartment, apparently conducting countersurveillance; and that the front door was left open for some time. Detective Wyant testified that all this activity was "indicative of narcotics transactions," although from his surveillance vantage point he did not actually see any such transactions take place.

After observing the above activity, Detective Wyant called to request the assistance of the Metro Gang Task Force. Several members of the Task Force soon arrived, including Sergeant Bill Robertson, and all of the officers then approached the apartment. A woman who had also been approaching the apartment saw the officers, turned around, and began walking away. The officers stopped the woman, who identified herself as Lisa Ross, one of the apartment's renters. The officers told Ms. Ross that they were there because they had a warrant for her arrest and because they had some concerns about her apartment. While the officers spoke with Ms. Ross, the door to the apartment opened partway and Sergeant Robertson observed several people peering out the door. He recognized one of them from prior gang investigations; that individual was also dressed in a manner consistent with gang membership. This heightened Sergeant Robertson's concern for the safety of the officers.

The officers further told Ms. Ross that they had seen seven people go into her apartment. She became very emotional and explained that her four-year-old son was in the apartment and that she was unsure who else was inside. She agreed to allow the officers to enter the apartment to check on her son and told them that she thought he was in the back of the apartment. Four or five of the officers, some with weapons drawn, then entered the apartment to do a protective sweep and to look for the child.

When Sergeant Robertson entered into the front room of the apartment, he noticed a small, clear plastic "baggie" on the floor, near the door, containing what appeared to be methamphetamine packaged for sale. A black male dressed in gang-related attire was next to the baggie and the appellant, Mr. Garcia, was about ten feet away. Mr. Garcia was not dressed in gang-related attire, and Sergeant Robertson did not see any tattoos or other indications of gang affiliation on Mr. Garcia. Although Mr. Garcia appeared nervous, he did not make any threatening moves or verbal threats toward the officers.

The officers asked the five or six persons in the front room, including Mr. Garcia, to keep their hands where the officers could see them and to stay where they were. Three officers remained in the front room, and the other officers did a protective sweep of the apartment. They found Ms. Ross's son in the back bedroom and took him outside to Ms. Ross.

The officers then conducted a pat-down search of the individuals in the front room for weapons. Sergeant Robertson testified at the suppression hearing that the pat-down was conducted because he was "concerned for the safety of the individuals in the apartment," including the officers. The presence of what appeared to be methamphetamine on the floor heightened his concern because in Sergeant Robertson's experience, firearms are often present when narcotics transactions take place. Similarly, the possible gang connection heightened Sergeant Robertson's concern that guns would be present.

Sergeant Robertson was the officer who frisked Mr. Garcia. During the pat-down, Robertson felt a large bump in Mr. Garcia's front left pocket. He asked what the object was and Mr. Garcia responded that it was drugs. Sergeant Robertson asked if it was illegal drugs, and Mr. Garcia replied affirmatively. The officers eventually confiscated two bags of methamphetamine and a piece of drug paraphernalia from Mr. Garcia.

B. Procedural Background

Mr. Garcia was charged with one count of possessing methamphetamine with intent to distribute, a violation of 21 U.S.C. § 841(a)(1). He filed a motion to suppress the evidence found during the pat-down. After a hearing, at which both Detective Wyant and Sergeant Robertson testified, the district court denied Mr. Garcia's motion, concluding that the officers had reasonable suspicion to detain and conduct a pat-down of Mr. Garcia. Mr. Garcia then conditionally pled guilty to possession of methamphetamine with intent to distribute and was sentenced to 120 months in prison. Mr. Garcia timely appealed the denial of his suppression motion.¹

II. DISCUSSION

A. Standard of Review

When reviewing a district court decision on suppression of evidence, we must accept the court's findings of fact unless, viewing the evidence in the light most favorable to the court's findings, we conclude the findings were clearly erroneous. Evaluation of the credibility of witnesses, the weight to be given the evidence, and inferences to be drawn from the evidence are for the district court. However, the ultimate determination of whether a search and seizure were reasonable under the Fourth Amendment is subject to de novo review.

United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir.1996). Specifically relevant to this case, "[w]e review the district court's determination of reasonable suspicion de novo." United States v. Barron-Cabrera, 119 F.3d 1454, 1458 (10th Cir. 1997) (citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)).

B. Analysis

"The Supreme Court has identified three general types of encounters between citizens and the police: (1) consensual encounters; (2) investigative detentions; and (3) arrests." United States v. Hishaw, 235 F.3d 565, 569 (10th Cir.2000). The parties agree that this case involves the second type of encounter — an investigative detention.² More specifically, this case involves a police search of Mr. Garcia's person during an investigative detention. See United States v. Manjarrez, 348 F.3d 881, 886 (10th Cir.2003) ("A pat-down is a `search' under the Fourth Amendment.").

In evaluating whether an investigative detention and an attendant search are reasonable under the Fourth Amendment, we apply the principles announced by the Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See Hishaw, 235 F.3d at 569. However, we note at the outset that Mr. Garcia does not challenge the officers' entry into, and "protective sweep" of, Ms. Ross's apartment. See Terry, 392 U.S. at 20, 88 S.Ct. 1868 (directing courts to first consider "whether the officer's action was justified at its inception"). Furthermore, Mr. Garcia concedes that "the discovery of the drugs on the floor of the apartment would be sufficient under Terry to justify a temporary detention of Garcia to investigate that offense."³ Thus, we assume for purposes of this appeal that the officers were justified in entering the apartment and in detaining Mr. Garcia for investigative purposes. The only question in this case, then, is whether the pat-down search of Mr. Garcia was unjustified and thus a violation of the Fourth Amendment. See Hishaw, 235 F.3d at 570 ("Even though the initial stop was justified, we must still assess the reasonableness of the subsequent pat-down search.").

1. Requirement of...