United States v. Garcia

• Decision Date: 12 May 2014
• Docket Number: No. 13–2155.,13–2155.
• Citation: 751 F.3d 1139
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Cruz GARCIA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

751 F.3d 1139

UNITED STATES of America, Plaintiff–Appellee,

v.Cruz GARCIA, Defendant–Appellant.

No. 13–2155.

United States Court of Appeals, Tenth Circuit.

May 12, 2014.

James N. Langell, Assistant Federal Public Defender, Office of the Federal Public Defender for the District of New Mexico, Las Cruces, NM, appearing for the Appellant.

Laura Fashing, Assistant United States Attorney (Steven C. Yarbrough, Acting United States Attorney, with her on the brief), Office of the United States Attorney for the District of New Mexico, Albuquerque, NM, appearing for the Appellees.

Before BRISCOE, EBEL, and MATHESON, Circuit Judges.

MATHESON, Circuit Judge.

Officer Barton Devos discovered a gun magazine containing ammunition during a protective pat down of Cruz Garcia. A grand jury charged Mr. Garcia with being a felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Mr. Garcia moved to suppress evidence of the ammunition on Fourth Amendment grounds, contending the pat down search was unjustified. The district court denied the motion after concluding the arresting officer had reasonable suspicion that Mr. Garcia was armed and dangerous. Mr. Garcia entered a conditional guilty plea, reserving the right to appeal the denial of his motion to suppress. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

A. Factual History¹

On February 4, 2012, at approximately 7:45 p.m. in Roswell, New Mexico, Patrol Officer Devos of the Roswell Police Department conducted a pat-down search of Mr. Garcia after a traffic stop.

Officer Devos was driving on sparsely travelled South Monroe Avenue when he noticed a green Hyundai with a cracked windshield going in the opposite direction. Concerned the cracks obscured the driver's view, Officer Devos turned around and pulled over the Hyundai.

Officer Devos approached the driver, who identified himself as Gilbert Romero. Mr. Garcia was sitting in the passenger seat. A records check on “Gilbert Romero” showed a suspended license for that name. Officer Devos arrested the driver.² After the arrest, Officer Devos decided to have the vehicle towed because it could not be driven safely with its cracked windshield. Before towing the vehicle, however, Roswell Police Department regulations required Officer Devos to inventory the contents of the car. Due to staffing limitations, Officer Devos had to do the inventory by himself.

Before the inventory, Officer Devos asked Mr. Garcia to exit the vehicle. Mr. Garcia did not make eye contact with Officer Devos, and he kept playing with his hands. Officer Devos thought Mr. Garcia was nervous or possibly hiding something.

Officer Devos recognized Mr. Garcia from a recent encounter and had learned months earlier from a fellow officer that Mr. Garcia had a criminal history, which included at least one violent felony. Officer Devos learned that the most recent felony was a 2003 armed robbery. Officer Devos also knew Mr. Garcia was “a known drug user, particularly heroin.” ROA, Vol. III at 11.

Officer Devos had encountered Mr. Garcia two weeks earlier. On January 21, 2012, Officer Devos was driving in front of Mr. Garcia's residence when he saw Mr. Garcia on the front porch. Knowing a warrant was out for Mr. Garcia's arrest, Officer Devos said, “Cruz, stop.” ROA, Vol. III at 9. Mr. Garcia looked at Officer Devos and ran inside the house. Officer Devos approached the front porch and told a woman there to tell Mr. Garcia to come out because there was a warrant out for his arrest. Instead of coming out the front door, Mr. Garcia ran out the back door and down an alley.

Officer Devos chased Mr. Garcia on foot and finally cornered him. Mr. Garcia turned toward Office Devos and “took a fighting stance with his fists clenched.” ROA, Vol. III at 10. Officer Devos deployed his Taser, striking Mr. Garcia in the chest and abdomen. Shortly thereafter, other officers arrived and took Mr. Garcia into custody. Mr. Garcia was not armed at any point during this encounter.

On the evening of the traffic stop, Officer Devos decided to pat Mr. Garcia down for weapons because of (1) his previous encounter with Mr. Garcia, (2) Mr. Garcia's criminal history, which included an armed robbery felony, (3) his concern that he was alone and would have to turn his back to Mr. Garcia while performing the inventory, (4) Mr. Garcia's nervousness (as indicated by his avoiding eye contact and fidgeting with his hands), and (5) Mr. Garcia's history with drugs.

During the pat down, Officer Devos felt what he thought was a gun magazine in Mr. Garcia's front right pocket. He asked what the object was, and Mr. Garcia answered, “A gun clip.” ROA, Vol. III at 23. Officer Devos asked Mr. Garcia to pull the object out of his pocket. Mr. Garcia complied and placed a magazine on top of the Hyundai. The magazine contained seven .380 caliber Winchester cartridges. Officer Devos then handcuffed Mr. Garcia and had him sit on the curb until the inventory was finished. After the inventory, Officer Devos took off the handcuffs and told Mr. Garcia he was free to go.

Later, Officer Devos arrested Mr. Garcia for being a felon in possession of ammunition.

B. Procedural History

Because of his prior convictions,³ a federal grand jury indicted Mr. Garcia on one count of felony possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Mr. Garcia moved to suppress the evidence found during the pat down, arguing the initial stop was not based on reasonable suspicion of a traffic offense and Officer Devos did not have reasonable suspicion that Mr. Garcia was armed and dangerous.

After assigning the case to a magistrate judge and considering the magistrate judge's Proposed Findings and Recommended Disposition, the district court held Officer Devos had reasonable suspicion to stop the vehicle and pat down Mr. Garcia. The district court based the pat-down decision on several factors, including (1) Mr. Garcia's combative conduct during his previous encounter with Officer Devos; (2) Mr. Garcia's criminal history, which included an armed robbery; (3) that “Officer Devos made this traffic stop while he was alone, at night, on a road that does not have much traffic” and had to turn his back to Mr. Garcia to conduct the inventory search; and (4) Mr. Garcia's nervous behavior.⁴ ROA, Vol. I at 94–95. The district court found reasonable suspicion because a “reasonably prudent individual in Officer Devos's circumstances would likely be concerned for his safety.” Id. at 95.

Mr. Garcia entered a conditional guilty plea, reserving his right to appeal the district court's ruling on the motion to suppress. The district court sentenced Mr. Garcia to 30 months in prison to be followed by three years of supervised release. Mr. Garcia now appeals the denial of his motion to suppress on the issue of reasonable suspicion to justify the pat down.⁵

II. DISCUSSION

A. Standard of Review and Legal Background

In reviewing a district court's denial of a motion to suppress, we review factual findings for clear error, viewing the evidence in the light most favorable to the Government. See United States v. Hunter, 663 F.3d 1136, 1141 (10th Cir.2011); United States v. Karam, 496 F.3d 1157, 1161 (10th Cir.2007). We review de novo the ultimate determination of the reasonableness of a search under the Fourth Amendment. Karam, 496 F.3d at 1161.

The Fourth Amendment protects persons “against unreasonable searches and seizures.” U.S. Const. amend. IV. A pat down is a search and therefore must be reasonable. See Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Pat-down searches are constitutional when an officer has reasonable suspicion that an individual is “armed and dangerous.” United States v. Rice, 483 F.3d 1079, 1082 (10th Cir.2007).

The primary justification for a pat-down search is an officer's concern “that [his or her] safety or that of others was in danger.” Terry, 392 U.S. at 27, 88 S.Ct. 1868. Even when an officer had limited “specific information leading him to believe that [an individual] was armed or dangerous” and no knowledge of the individual's having possessed a weapon, we have held that the officer's safety concern justified a pat down. United States v. McRae, 81 F.3d 1528, 1536 (10th Cir.1996) (“The facts available to Officer Colyar here (he was alone on an isolated stretch of highway, he was about to engage in a search of a car, and he had just been warned to approach Mr. McRae with ‘extreme caution’) would warrant a man of reasonable caution to believe that a frisk would be necessary to protect himself.”); ⁶see also United States v. Manjarrez, 348 F.3d 881, 886–87 (10th Cir.2003) (“The purpose of the limited pat-down search is not to discover evidence of a crime, ‘but to allow the officer to pursue his investigation without fear of violence.’ ”) (quoting Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)); United States v. Brown, 232 F.3d 589, 594 (7th Cir.2000) (individual “acting erratically and somewhat aggressively throughout the late afternoon to early evening period” roused officer's concern for his own safety and thus justified the officer's pat-down search, despite no specific suspicion of a weapon).

The reasonable suspicion needed to justify a pat-down search “need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). It must meet only a “minimum level of objective justification.” Rice, 483 F.3d at 1083 (quotations omitted). The reasonable suspicion analysis does not consider each of an officer's observations in isolation, but rather is “based on the totality of the circumstances, taking into account an officer's reasonable inferences based on training, experience, and common sense.” Id. The totality of the circumstances test looks at the...