United States v. Hernandez

• Decision Date: 09 February 2017
• Docket Number: No. 15-1116,15-1116
• Citation: 847 F.3d 1257
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Phillip David HERNANDEZ, Defendant–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

847 F.3d 1257

UNITED STATES of America, Plaintiff–Appellant,

v.Phillip David HERNANDEZ, Defendant–Appellee.

No. 15-1116

United States Court of Appeals, Tenth Circuit.

FILED February 9, 2017

James C. Murphy, Assistant U.S. Attorney (John F. Walsh, United States Attorney, with him on the briefs), Denver, Colorado, for Plaintiff-Appellant.

Timothy P. O'Hara, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender with him on the brief), Denver, Colorado, for Defendant-Appellee.

Before BRISCOE, SEYMOUR, and LUCERO, Circuit Judges.

SEYMOUR, Circuit Judge.

Phillip Hernandez was charged under 18 U.S.C. § 922(g)(1) with one count of being a felon in possession of a firearm. He filed a motion to suppress the evidence retrieved after his encounter with two Denver police officers one evening, claiming the evidence was obtained in violation of the Fourth Amendment. The district court granted the motion. The government appeals, and we affirm.

I

On October, 20, 2014, at approximately 7:43 p.m., Denver police officers Wile Morghem and Daniel Walton were patrolling West 10th Avenue near its intersection with Mariposa Street in Denver, Colorado, in a marked police vehicle. It was dark out and the intersection was unlit. The two officers observed Mr. Hernandez walking next to a fenced construction site. The officers considered this part of town "to be a high-crime area due to its proximity to the Lincoln Park housing project and the frequency of theft and drug dealing occurring therein." Aplt. App. at 108.

As the district court found, Officer Morghem immediately suspected for several reasons that Mr. Hernandez was engaged in criminal activity:

First, Mr. Hernandez was dressed entirely in black clothing and wore two backpacks. Second, Officer Morghem had been notified of prior thefts of construction materials and copper

piping from construction sites. In particular, at least a month prior to this incident, Officer Morghem had arrested an individual for trespassing inside of the construction area and stealing sheet metal. He also believed that Mr. Hernandez might be acting as a "lookout" for thefts—though he admitted that he did not see other individuals walking around in the construction site or notice anything occurring within the site to arouse his suspicion. Third, Morghem found it "odd" that Mr. Hernandez was walking next to the construction site, because there was

a sidewalk he could have used on the other side of the street.

Id . at 108.

The officers pulled alongside Mr. Hernandez in their police cruiser and Officer Morghem began talking to Mr. Hernandez through the open window. During this exchange, the officers used normal speech, did not shine a spotlight or flashlight on Mr. Hernandez, and kept their firearms holstered inside the cruiser. Officer Morghem first asked Mr. Hernandez if they could talk to him, to which Mr. Hernandez responded by saying, "Yeah, what's up?" Id. at 109. Mr. Hernandez kept walking while he responded to Officer Morghem's question, and the officers "had to continue driving in order to follow him during their conversation." Id. Officer Morghem next asked Mr. Hernandez where he was coming from and what he was doing, to which Mr. Hernandez replied that he was coming from his grandmother's house and was "just trying to go home." Id . Officer Morghem pressed Mr. Hernandez for his grandmother's address, but Mr. Hernandez could not remember it. Up to this point, the entire conversation took place while Mr. Hernandez was walking, with the two officers driving close beside him. Officer Walton noted in the police report he filed the next day that Mr. Hernandez "tried not to stop and talk to us." Id. at 80.

Officer Walton asked Mr. Hernandez if he would stop so they could talk to him. Mr. Hernandez complied and stopped walking. Officer Morghem then asked Mr. Hernandez for his name and date of birth. Mr. Hernandez provided his real name but a false birth date. Although Officer Morghem did not have Mr. Hernandez's correct date of birth, he was able to pull up additional information on Mr. Hernandez via the in-car computer. He found Mr. Hernandez's mug shot and determined that he had an active warrant for a parole violation.

When Officer Morghem informed Officer Walton about the active warrant, Officer Walton put the car in park and both officers exited the vehicle to approach Mr. Hernandez. Once Mr. Hernandez saw the officers exit, he began to walk away quickly. Officer Morghem noticed Mr. Hernandez reach for his left waistband and asked him if he had a gun. Mr. Hernandez replied, "yes," and Officer Walton quickly grabbed his arm. A black revolver fell to the ground, and the officers placed Mr. Hernandez under arrest.

Mr. Hernandez was indicted on one count of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). He filed a motion to suppress, alleging that the seizure of his person was unreasonable under the Fourth Amendment because "it was not based on reasonable, articulable suspicion." Aplt. App. at 11. After an evidentiary hearing, the district court granted the motion, concluding that the officers had "seized" Mr. Hernandez without reasonable suspicion to do so, in violation of the Fourth Amendment. Regarding the "seizure," the court held that Officer Walton's request to Mr. Hernandez to stop walking was "a show of authority such that a reasonable person in [his] position would not have felt free to decline the Officers' requests or terminate the encounter." Id. at 114. With respect to reasonable suspicion, the court reasoned that the officers had nothing more than inchoate and inarticulate hunches for suspecting Mr. Hernandez of criminal activity.

II

We first address an issue that arose after briefing and oral arguments were completed in this case when the Supreme Court issued its opinion in Utah v. Strieff , ––– U.S. ––––, 136 S.Ct. 2056, 195 L.Ed.2d 400 (2016). The Court determined that the attenuation doctrine—a rule that allows courts to admit illegally obtained evidence as long as the connection between the evidence and the illegal method is sufficiently remote or attenuated—applies to situations where police officers illegally stop someone who they later realize has a valid, pre-existing, and untainted arrest warrant. Id . at 2063. After the Court's decision in Strieff , the government in this case filed a supplemental authority letter pursuant to Fed. R. App. P. 28(j) ( " Rule 28(j) letter"), requesting that we remand the case to the district court to determine if, and to what extent, Strieff applies to these facts. Mr. Hernandez contended in response that the government had waived the attenuation argument by failing to assert it below. We agree with Mr. Hernandez.

"It is well established that we will not consider issues raised for the first time in a Rule 28(j) letter ... because, in part, the language of Rule 28(j) ‘underscores that an appellant's supplemental authority must relate to an issue previously raised in a proper fashion....’ " Thacker v. Workman , 678 F.3d 820, 842 (10th Cir. 2012) (citations omitted) (quoting United States v. Levy , 379 F.3d 1241, 1244 (11th Cir. 2004) ). In Thacker , we rejected a party's attempt to argue the impact of a recently decided Supreme Court case, which held that federal habeas courts could hear ineffective-assistance-of-trial-counsel claims that were not raised in the initial-review collateral proceeding if the defendant lacked effective post-conviction counsel. Id . at 842 (citing Martinez v. Ryan , 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) ). Because Mr. Thacker "most certainly could have argued in his federal habeas petition ... that ineffective assistance of post-conviction counsel was the ‘cause’ for his failure to raise his ineffective assistance of trial counsel claim" but failed to do so until filing his Rule 28(j) letter, we refused to consider the issue. Id .

Similarly, even though the government in this case could not have predicted the outcome of Strieff , it could have argued, just as the State of Utah did in Strieff , that the attenuation doctrine should be applied in situations where a defendant is illegally stopped but the police later discover a valid, pre-existing, and untainted arrest warrant. In fact, the government had ample precedent to argue this point because two of our sister circuits had already adopted the same approach. See United States v. Green , 111 F.3d 515, 521–23 (7th Cir. 1997) ("Where a lawful arrest pursuant to a warrant constitutes the ‘intervening circumstance’ (as in this case), it is an even more compelling case for the conclusion that the taint of the original illegality is dissipated."); see also United States v. Simpson , 439 F.3d 490, 495–97 (8th Cir. 2006) (holding the defendant's "outstanding arrest warrant constitute[d] an extraordinary intervening circumstance that purge[d] much of the taint associated with the officers' unconstitutional conduct").

We hold that the government has waived its attenuation argument.¹

III

"In reviewing a district court's ruling on a motion to suppress evidence, we view the evidence in the light most favorable to the prevailing party and accept the district court's findings of fact unless they are clearly erroneous." United States v. Oliver , 363 F.3d 1061, 1065 (10th Cir. 2004) (quoting United States v. Massie , 65 F.3d 843, 847 (10th Cir. 1995) ). "A finding of fact is clearly erroneous if it is without factual support in the record or if, after reviewing all of the evidence, we are left with the definite and firm conviction that a mistake has been made." In re Vaughn , 765 F.3d 1174, 1180 (10th Cir. 2014) (quoting In re Peterson Distrib., Inc. , 82 F.3d 956, 959 (10th Cir. 1996) ). In making this determination, we keep in mind that "[i]t is the province of the trial court to assess the credibility of witnesses at the suppression hearing and to determine the weight to be given to the evidence presented, and we must give such determinations due...