United States v. Briggs, 12–5140.

• Decision Date: 02 July 2013
• Docket Number: No. 12–5140.,12–5140.
• Citation: 720 F.3d 1281
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Nathan Andrew BRIGGS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

720 F.3d 1281

UNITED STATES of America, Plaintiff–Appellee,

v.Nathan Andrew BRIGGS, Defendant–Appellant.

No. 12–5140.

United States Court of Appeals, Tenth Circuit.

July 2, 2013.

Terry L. Weber, Tulsa, OK, appearing for Appellant.

Leena Alam, Assistant United States Attorney (Danny C. Williams, Sr., United States Attorney, and Eric O. Johnston, Assistant United States Attorney, on the brief), Office of the United States Attorney for the Northern District of Oklahoma, Tulsa, OK, appearing for Appellee.

Before HARTZ, McKAY, and MATHESON, Circuit Judges.

MATHESON, Circuit Judge.

In 2012, police detained Appellant Nathan Briggs and discovered a handgun in his possession. He was charged with, and pled guilty to, being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

In pleading guilty, Mr. Briggs reserved the right to appeal the district court's denial of his motion to suppress the weapon seized from his possession. On appeal, he argues the weapon should have been suppressed because police violated his Fourth Amendment rights by detaining him. Exercising jurisdiction under 28 U.S.C. § 1291, we conclude that Mr. Briggs's detention was constitutional, and we affirm the denial of his suppression motion.

I. BACKGROUND

Because this is an appeal from the denial of a motion to suppress, we recite the facts in the light most favorable to the government and accept the district court's findings of fact unless they are clearly erroneous. See United States v. Marquez, 337 F.3d 1203, 1207 (10th Cir.2003).

A. Factual History

On the afternoon of January 19, 2012, Tulsa Police Officers Heath Cannon and Shane Pryce were patrolling the area of South Peoria Avenue and 64th Street in Tulsa, Oklahoma. They drove a black Dodge Charger that had tinted windows, light bars on the front and back windshields, and police lights on its fog lights and mirrors. Although unmarked, the car was identifiable as a law enforcement vehicle. The officers wore khaki pants and blue jerseys that identified them as law enforcement officers.¹

From their training and experience, the officers knew the neighborhood to be a high-crime area, including gang activity, violent crime, and drug crimes. Tulsa police routinely patrolled the area, and Officer Cannon had made weapons and narcotics arrests there. Officer Pryce also had spent time patrolling the area, had investigated two shootings there, and knew of three other shootings in the area in the past year.

As the officers turned west off South Peoria Avenue and onto 64th Street, they observed two men walking eastbound toward them. The men were approximately one block away. When the officers' vehicle came into view, the men immediately turned northbound onto a cross-street, Owasso Avenue.

One of the men, who was later identified as Mr. Briggs, repeatedly looked over his shoulder at the officers. Officer Cannon noticed that Mr. Briggs grabbed at the waistline of his pants. Officer Cannon later testified that, in his training and experience, people who illegally carry weapons often keep them at their waistline and touch or grab at the weapon when they encounter police.

As the officers' vehicle approached them, the men picked up their pace. Officer Pryce testified that one of the men was doing the “closest thing to running without running,” while the other “was not far behind, high-stepping, walking really, really fast.” ROA, Vol. 2 at 36–37.

The men approached a home on the west side of Owasso Avenue. According to Officer Pryce, the men split paths. Mr. Briggs entered the middle of the yard and continued north as the other man went to the door of the home and began knocking. The men were at least 10 yards apart.

The officers pulled up to the home and exited their vehicle. Mr. Briggs continued to walk away from the officers and to grab at his waistline. Officer Cannon asked the men to come over and speak with them. Mr. Briggs turned, faced the officers, and began backing away. Officer Pryce said, “[H]e's gonna run.” Id. at 12. At that moment, Mr. Briggs's companion, who had been knocking at the door of the home, took off running. Officer Pryce pursued him on foot.²

When the other man took off running, Officer Cannon drew his duty weapon and instructed Mr. Briggs not to run. Mr. Briggs said he would not. As Officer Cannon approached, Mr. Briggs said, “Man, I've got a gun on me.” Id. at 13. Officer Cannon handcuffed him and located a .40–caliber pistol on Mr. Briggs's right hip, the same area that Mr. Briggs had been grabbing.

The officers estimated that the time between their arrival at the Owasso Avenue home and the flight of Mr. Briggs's companion was only a matter of seconds.

B. Procedural History

Because Mr. Briggs had prior felony convictions, he was indicted on one count of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Mr. Briggs filed a pretrial suppression motion to exclude the weapon as evidence at trial. He argued that Officer Cannon violated his Fourth Amendment rights by detaining him without reasonable suspicion that he was engaging in criminal activity, and thus the weapon should be excluded as trial evidence.

Repeatedly stating that the issue was a “close call,” id. at 67, 70, the district court denied Mr. Briggs's motion. The court considered the following circumstances in holding that Officer Cannon had reasonable suspicion to detain Mr. Briggs: (1) Mr. Briggs and his companion were walking in a high-crime area; (2) the men changed direction and picked up their pace upon seeing the police vehicle; (3) Mr. Briggs repeatedly grabbed at his waistline; (4) the two men took divergent paths into the yard of the Owasso Avenue home; (5) when officers asked to speak with the men, Mr. Briggs turned and backpedaled, exhibiting nervous, evasive behavior; and (6) Mr. Briggs's companion fled after the officers' arrival. The court said “none of the various factors, standing alone, would provide a lawful basis for an investigative detention.” Id. at 70. But, the court held, the totality of the circumstances provided Officer Cannon with reasonable suspicion to detain Mr. Briggs.

Mr. Briggs pled guilty to the indicted count and was sentenced to 51 months of imprisonment. He reserved the right to appeal the denial of the suppression motion and filed timely notice of appeal.

II. DISCUSSION

It is undisputed that Officer Cannon detained Mr. Briggs by drawing his weapon and ordering Mr. Briggs not to run. The issue on appeal is whether Officer Cannon's detention of Mr. Briggs was reasonable under the Fourth Amendment. We “accept the district court's findings of fact and credibility determinations unless clearly erroneous, and review de novo the ultimate question of reasonableness under the Fourth Amendment.” United States v. Benard, 680 F.3d 1206, 1210 (10th Cir.2012).

A. Investigative Detentions Under the Fourth Amendment

The Fourth Amendment protects individuals from “unreasonable searches and seizures.” U.S. Const. amend. IV. “A seizure occurs when a reasonable person would not feel free to leave or disregard the contact.” United States v. Salas–Garcia, 698 F.3d 1242, 1248 (10th Cir.2012) (quotations omitted). An investigative, non-consensual detention constitutes a seizure under the Fourth Amendment. See United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). An officer may constitutionally “stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” United States v. Neff, 681 F.3d 1134, 1137–38 (10th Cir.2012) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).³

An investigative detention is based on reasonable suspicion if the detaining officer has “a particularized and objective basis for suspecting the person stopped of criminal activity.” Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (quotations omitted). This requires the officer's detention to be based on “something more than an inchoate and unparticularized suspicion or hunch.” Sokolow, 490 U.S. at 15, 109 S.Ct. 1581 (quotations omitted). Nevertheless, “the level of suspicion required for reasonable suspicion is ‘considerably less' than proof by a preponderance of the evidence or that required for probable cause.” United States v. Lopez, 518 F.3d 790, 799 (10th Cir.2008) (quoting Sokolow, 490 U.S. at 7, 109 S.Ct. 1581). Even if it is more likely that an individual is not involved in criminal activity, an officer still may have reasonable suspicion to stop and detain the individual. United States v. McHugh, 639 F.3d 1250, 1256 (10th Cir.2011). The detaining officer needs only to articulate “some minimal level of objective justification” for the detention. Sokolow, 490 U.S. at 7, 109 S.Ct. 1581 (quotations omitted).

Finally, our Fourth Amendment analysis is “guided by the ‘touchstone’ of reasonableness.” Salas–Garcia, 698 F.3d at 1248 (quoting Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991)). “[W]e look to the totality of the circumstances” known to the detaining officer “rather than assessing each factor or piece of evidence in isolation.” McHugh, 639 F.3d at 1256 (quotations omitted). Courts also must “defer to the ability of a trained law enforcement officer to distinguish between innocent and suspicious actions.” United States v. Zubia–Melendez, 263 F.3d 1155, 1162 (10th Cir.2001) (quotations omitted). Our analysis is an objective one, asking “whether ‘the facts available’ to the detaining officer, at the time, warranted an officer of ‘reasonable caution’ in believing ‘the action taken was appropriate.’ ” Id. (quoting Terry, 392 U.S. at 21–22, 88 S.Ct. 1868).

B. Investigative Detention of Mr. Briggs

The district court considered six factors in determining...