United States v. Davis

PUBLISH

UNITED STATES COURT OF APPEALS
Filed 9/3/96
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5156

ALBERT OTIS DAVIS,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 94-CR-179-K)

Stephen J. Greubel, Assistant Federal Public Defender, Tulsa, Oklahoma
(Stephen J. Knorr, Federal Public Defender, with him on the brief), for
Defendant-Appellant.

Lucy O. Creekmore, Assistant United States Attorney, Tulsa, Oklahoma
(Stephen C. Lewis, United States Attorney, with her on the brief), for
Plaintiff-Appellee.

Before EBEL, HOLLOWAY and HENRY, Circuit Judges.

EBEL, Circuit Judge.
 Defendant-Appellant Albert Otis Davis was convicted of one count of

being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), after he was

stopped by police and found to be carrying a gun. Davis contends the

district court should have suppressed the gun and his subsequent statements

as the fruits of an unlawful detention because there was no reasonable

suspicion to justify the investigative stop pursuant to which the gun was

found. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse.

I.

The following are the facts in this case as found by the district court:

On December 20, 1993 at approximately 10:00 p.m., Tulsa police officers

Yelton, Spitler and Staats were patrolling the area of 1900 North Madison

in Tulsa, Oklahoma. The Tulsa Police Department on prior occasions had

received complaints regarding gunshots being fired in that area. One

building in the area was known to the Tulsa Police Department as a "juice

joint," i.e., a business that sells liquor without a license. Officer Yelton

testified at the suppression hearing that the building had been known as a

"juice joint" for the ten years he had served as a police officer, but that

legal activities such as dominoes and pool also take place there. Officer

Yelton testified that in the past he had investigated two shootings in the

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area and had been involved in eight arrests in the area relating to drug sales

and/or gun use. Officer Yelton also testified that gangs, such as the Crips

and the Bloods, "hang out" and sell drugs at this location and that it had

been the scene of gang disputes.

On the night and at the time in question, the three officers arrived in a

marked police car and observed a brown Monte Carlo with four occupants

parked just north of the "juice joint." Upon the officers' arrival, one of the

occupants, Defendant Albert Otis Davis, exited the Monte Carlo. As he did

so, he made eye contact with Officer Yelton, then broke eye contact and

began walking toward the establishment with his hands in his pockets.

Officer Yelton knew Davis was an ex-convict who had been acquitted of a

gang-related homicide. Officer Yelton also knew Davis was associated

with a gang, and had received information that Davis had been selling

narcotics. However, none of Officer Yelton's prior contact with criminal

activity in the 1900 North Madison area had involved Davis.

The officers told Davis to stop and to take his hands out of his

pockets, but Davis continued walking in the same direction and same

manner. Officer Yelton testified that he was concerned at that point with

officer safety and believed defendant might be hiding a firearm. Officer

Yelton further testified that he believed defendant was about to enter the

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"juice joint." Officer Yelton and Officer Staats approached Davis and each

officer grabbed one of Davis' arms. The officers escorted Davis to the

Monte Carlo and told him to place his hands on top of the vehicle. Instead,

Davis entered the front seat of the vehicle, removed a firearm from his coat

pocket, and threw the firearm into the back seat of the vehicle. The officers

recovered the firearm from the back seat and arrested Davis. Davis was

taken to the police station, where he was read his Miranda rights, signed a

waiver of those rights, and made a written statement.

II.

On appeal from the denial of a motion to suppress evidence, we

review the evidence in the light most favorable to the government, and we

review the district court’s findings of fact only for clear error. United

States v. Lambert, 46 F.3d 1064, 1067 (10th Cir. 1995). We review de

novo, however, the district court's conclusion as to whether the officers had

reasonable, articulable suspicion of criminal activity at the time of the

seizure. Id.; Ornelas v. United States, 116 S. Ct. 1657, 1663 (1996).

A.

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 According to the Supreme Court, there are three types of police-

citizen encounters:

(1) consensual encounters which do not implicate the Fourth
Amendment, see, e.g., Michigan v. Chesternut, 486 U.S. 567, 574-76
(1988); INS v. Delgado, 466 U.S. 210, 218-21 (1984); (2)
investigative detentions which are Fourth Amendment seizures of
limited scope and duration and must be supported by a reasonable
suspicion of criminal activity, see, e.g., United States v. Sokolow,
490 U.S. 1, 7 (1989); Terry v. Ohio, 392 U.S. 1, 30 (1968); and (3)
arrests, the most intrusive of Fourth Amendment seizures and
reasonable only if supported by probable cause. See, e.g., Hayes v.
Florida, 470 U.S. 811, 815-16 (1985); Dunaway v. New York, 442
U.S. 200, 212-16 (1979).

United States v. Bloom, 975 F.2d 1447, 1450-51 (10th Cir. 1992), overruled

in part on other grounds, United States v. Little, 18 F.3d 1499, 1504 n.5

(10th Cir. 1994). The government argues that the encounter between the

Tulsa police officers and Davis was a lawful investigative detention. "A

seizure by means of an investigative detention ‘is constitutional only if

supported by a reasonable and articulable suspicion that the person seized

is engaged in criminal activity.’" Lambert, 46 F.3d at 1069 (quoting United

States v. Ward, 961 F.2d 1526, 1529 (10th Cir. 1992) (quoting Reid v.

Georgia, 448 U.S. 438, 440 (1980) (per curiam))). An officer who "stops"

and briefly detains a person for questioning "must be able to point to

specific and articulable facts which, taken together with rational inferences

from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392

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U.S. 1, 21 (1968). While an investigative detention does not require

probable cause, it does demand "something more than an inchoate and

unparticularized suspicion or 'hunch.'" United States v. Melendez-Garcia,

28 F.3d 1046, 1051 (10th Cir. 1994) (internal quotation marks omitted). In

the course of a valid investigative detention, an officer may conduct a

limited protective search ("frisk") if the officer harbors an articulable and

reasonable suspicion that the person is armed and dangerous. United States

v. King, 990 F.2d 1552, 1557 (10th Cir. 1993); United States v. Santillanes,

848 F.2d 1103, 1108 (10th Cir. 1988).

According to the government, the officers in this case possessed

reasonable and articulable suspicion that Davis was engaging in criminal

activity based on the following four factors: (1) Davis’ car being parked

outside a known criminal establishment; (2) Davis’ actions in exiting the

car when he saw the officers, making and then breaking eye contact, and

refusing to stop when directed; (3) Davis’ keeping his hands in his pockets;

and (4) the officers’ knowledge of Davis’ prior criminal record. None of

these factors, standing alone, provides a lawful basis for an investigative

detention. First, "[t]he fact that [Davis] was in a neighborhood frequented

by [criminals], standing alone, is not a basis for concluding that [Davis]

himself was engaged in criminal conduct." Brown v. Texas, 443 U.S. 47,

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52 (1979). Similarly, the fact that Davis was approaching a "juice joint"

does not give rise to a reasonable suspicion that criminal activity was afoot,

especially since the record shows that the establishment also offered

legitimate activities to its patrons.

Davis' actions in exiting the car, making and then breaking eye

contact with the officers, and then walking away from the officers also do

not furnish the basis for a valid Terry stop. Looking at a police officer and

then looking away does not provide the officer with "a particularized and

objective basis for suspecting the person stopped of criminal activity,"

Ornelas, 116 S. Ct. at 1661(internal quotation marks omitted). See, e.g.,

Santillanes, 848 F.2d at 1105-08 (no reasonable suspicion when defendant,

who had prior criminal record, spotted detective, veered away, and walked

at an increased pace). Moreover, while an officer does not violate the

Fourth Amendment simply by approaching an individual in a public place

and asking him questions, the individual "need not answer any question put

to him; indeed, he may decline to listen to the questions at all and may go

on his way." Florida v. Royer, 460 U.S. 491, 497-98 (1983) (plurality

opinion) (citing Terry, 392 U.S. at 32-33 (Harlan, J., concurring); id. at 34

(White, J., concurring)). Thus, Davis' refusal to stop when asked by the

officer cannot justify his detention. See Royer, 460 U.S. at 498 ("[A

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person] may not be detained even momentarily without reasonable,

objective grounds for doing so; and [the person's] refusal to listen or

answer does not, without more, furnish those grounds."). 1

The fact that Davis had his hands in his coat pockets on a December

night in Tulsa also does not justify an investigative detention. There was

no evidence presented at the suppression hearing indicating that the

officers possessed any particularized basis for suspecting that Davis was

armed. Rather, Officer Yelton testified at the suppression hearing that his

suspicion of Davis was based simply on his "perception" after ten years on

the police force. Officer Yelton elaborated on what he meant by his

"perception":

1
There is some debate as to whether the officers' instruction to
"stop" was an order which began the detention, or whether the officers'
request was merely precatory. This issue would turn on whether the
officers' telling Davis to stop "constituted a show of authority sufficient to
make a reasonable person believe that he or she was not free to leave."
United States v. Laboy, 979 F.2d 795, 798 (10th Cir. 1992). The district
court did not address this issue, nor do we find it determinative of the
question whether Davis' refusing to stop would provide the officers with
reasonable suspicion. As stated in the text, if the officers' "request" was
merely precatory, Davis' refusal to stop could not create reasonable
suspicion for a Terry stop. Royer, 460 U.S. at 498. On the other hand, if
the officers' request would have made a reasonable person feel that he or
she was not free to leave, then the investigative detention began at exactly
that point, and thus Davis' subsequent refusal to comply with the officers'
order to stop could not furnish the basis for the earlier detention.

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 Well, again, the training by the Tulsa Police Department and what we
teach is that we look at individuals and you size them up, basically
looking at them. And your perception is basically 90 percent what
you feel.

R.O.A., Vol. III at 41 (emphasis added). Officer Yelton acknowledged the

lack of any particularized basis reasonably to suspect that Davis was in the

process of committing a crime:

Q. On that evening, you had no information to indicate that Mr.
Davis was in possession of a firearm; is that correct?
A. That’s correct.
Q. And you had no information indicating that he was about to
distribute narcotics of any kind?
A. No.
Q. And you had no suspicion of any law violation?
A. No.

Id. at 37-38. Absent a specific and articulable factual basis, an officer's

"perception" is nothing more than "an inchoate and unparticularized

suspicion or 'hunch,'" Melendez-Garcia, 28 F.3d at 1051 (internal quotation

marks omitted), which cannot furnish the basis for an involuntary

detention.

Finally, the fact that the officers were aware of Davis' criminal record

does not justify the stop: Knowledge of a person’s prior criminal

involvement is not, standing alone, sufficient to create reasonable

suspicion. United States v. Sandoval, 29 F.3d 537, 542 (10th Cir. 1994).

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 Even if these factors standing alone would not justify a Terry stop,

the government urges us to uphold the detention because it argues that these

four factors, when taken together, created a reasonable suspicion of

criminal activity. See United States v. Sokolow, 490 U.S. 1, 8-10 (1989)

(reasonable suspicion depends on "the totality of circumstances--the whole

picture"; even if any one factor alone is insufficient to justify a stop, taken

together they may suffice). The district court agreed with this argument,

concluding that Davis' evasive attitude (walking away from police,

dropping eye contact and keeping his hands in his pockets) in the context of

his criminal history and the high crime area gave rise to reasonable

suspicion. We disagree. An investigative detention will be countenanced

only if the officers have a specific, articulable and objective factual basis

to believe that the person stopped is engaged in criminal activity. Even

considering the totality of the circumstances in this case, the government

fails to show any specific factual basis for suspecting that a particular

crime was being committed by Davis at the time he was detained. The

government argues that the officers reasonably suspected that Davis was

unlawfully carrying a firearm. However, there is no evidence whatsoever

to support such a suspicion. There was no evidence that the officers

spotted a suspicious bulge in Davis' coat pockets, that Davis appeared to be

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hiding anything in his pockets, that a tipster informed police that Davis was

armed or carrying drugs, or that Davis made any threatening move towards

the officers. Here, the factual findings of the district court indicate that

when Davis was instructed by the officers to stop, "he continued walking in

the same direction and same manner." (Emphasis added.) There was a

similar lack of any evidence that Davis was in the process of engaging in an

illegal drug or alcohol transaction. On the present record, therefore, we

hold that the officers lacked the necessary "reasonable, articulable

suspicion" to justify their detention of Davis.

B.

The district court also concluded that because Davis himself removed

the gun from his pocket and threw it onto the back seat of the vehicle, the

weapon was in "plain view" and thus the officers' seizure of the gun did not

violate the Fourth Amendment. See United States v. Hensley, 469 U.S.

221, 235 (1985) (upholding seizure of evidence in plain view of officers

during a Terry stop). However, "[t]he first and most fundamental

prerequisite to reliance upon plain view as a basis for a warrantless seizure

. . . is that 'the initial intrusion which brings the police within plain view of

such an article' is itself lawful." 3 Wayne R. LaFave, Search and Seizure:

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A Treatise on the Fourth Amendment § 7.5(a), at 575 (1996) (quoting

Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971)). "The [plain view]

doctrine serves to supplement the prior justification--whether it be a

warrant for another object, hot pursuit, search incident to lawful arrest, or

some other legitimate reason for being present unconnected with a search

directed against the accused." Coolidge, 403 U.S. at 466. Here, Davis' act

of removing the firearm from his coat and placing it in plain view was a

direct result of his unlawful detention. Compare Hensley, 469 U.S. at 235

(“[The] police were entitled to seize evidence revealed in plain view in the

course of the lawful stop. . . .") (emphasis added). Because Davis'

detention was unlawful, and because this illegality caused the evidence to

be placed in plain view, the government cannot rely on the plain view

doctrine to justify the seizure of the firearm.

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 III.

For the foregoing reasons, the judgment of the district court is

REVERSED and REMANDED for further proceedings consistent with this

opinion.

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