F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
April 11, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
No. 05-1323
v.
BOBBY JUDE LOPEZ,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 04-CR-500-D)
James C. Murphy, Assistant United States Attorney (William J. Leone, United
States Attorney, Philip A. Brimmer, Assistant United States Attorney, with him on
the briefs), Denver, Colorado, for Plaintiff-Appellant.
Lynn C. Hartfield, Research and Writing Specialist (Raymond P. Moore, Federal
Public Defender, John A. Chanin, Assistant Federal Public Defender, with her on
the brief), Denver, Colorado, for Defendant-Appellee.
Before HENRY, BALDOCK and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
I. Introduction
Appellant Bobby Jude Lopez was charged in a two-count indictment with
possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841,
and possession of ammunition by a previously convicted felon, in violation of 18
U.S.C. § 922(g)(1). Before trial, Lopez moved to suppress the evidence
recovered from a search of his person and his car. Lopez argued the evidence was
the fruit of an unlawful detention. The district court granted Lopez’s motion,
concluding Lopez was seized in violation of the Fourth Amendment when a police
officer approached him on the street, requested identification, and then held his
driver’s license while running a computer check. The government brought this
appeal, challenging the district court’s conclusion Lopez’s detention was
unconstitutional. Exercising jurisdiction pursuant to 18 U.S.C. § 3731, we affirm
the district court’s order granting Lopez’s suppression motion.
II. Background
During a routine patrol on November 24, 2004, Denver police officer
Bryce Jackson observed two men standing in the middle of the street next to a car
parked with its engine running. The two men were Defendant Lopez and his
friend Randy Romero. Jackson testified the car was not obstructing traffic but he
made the decision to contact Lopez and Romero because it was very early in the
morning and the street borders a high-crime area. Before exiting his patrol car,
-2-
Jackson checked the license plate of the car on his mobile data terminal. He
learned the car had not been reported stolen and it was registered to a woman in
Westminster, Colorado.
Jackson stopped his car approximately twenty feet behind Lopez and
Romero. His spotlight was on, but not his overhead lights or siren. Jackson
asked the men if either of them owned the car and Lopez responded that the car
belonged to him. Jackson then approached the two men and asked them for
identification. Romero produced a Colorado identification card and Lopez
produced a Colorado driver’s license. The address on Lopez’s license matched
the address of the registered owner of the car. Nevertheless, Jackson took
Lopez’s license to his patrol car and ran a warrants check. Jackson testified he
did not ask Romero and Lopez to remain by the car. Romero, however, testified
Jackson instructed them to stay by the car and the district court found that
Jackson “told the men to wait by the rear of the parked car.” The government
does not challenge this finding as clearly erroneous.
The warrants check revealed Lopez had an outstanding warrant for a
misdemeanor charge of harboring a minor. Based on this information, Jackson
called for backup and a second officer arrived approximately five minutes later.
Lopez was arrested and searched. During the search, Jackson found crack cocaine
-3-
in Lopez’s pants pocket. When Jackson searched Lopez’s car, he discovered a .22
revolver under the front seat, some plastic sandwich bags, and an electronic scale.
Lopez was charged in a two-count indictment with possession with intent to
distribute crack cocaine, in violation of 21 U.S.C. § 841, and possession of
ammunition by a previously convicted felon, in violation of 18 U.S.C. §
922(g)(1). Shortly after the indictment was filed, Lopez moved to suppress the
evidence recovered at the time of his arrest. The district court held a suppression
hearing, at which both Jackson and Romero testified. After the hearing, the
district court issued a written order suppressing the drugs and other evidence,
concluding they were the fruits of an unlawful detention. The district court
accepted the government’s concession that Jackson did not have reasonable
suspicion of criminal activity when he first contacted Lopez. Next, relying on
case law from this court and other circuits, the court concluded Lopez was not
free to leave, and thus seized, once Jackson took possession of his driver’s licence
and retained it to run the computer check. The government has appealed the
district court’s ruling, arguing the encounter between Lopez and Jackson was
consensual and thus did not implicate the Fourth Amendment.
III. Discussion
When reviewing the grant of a motion to suppress, this court examines the
evidence in the light most favorable to the defendant and accepts the district
-4-
court’s factual findings unless they are clearly erroneous. United States v.
Nielson, 415 F.3d 1195, 1198 (10th Cir. 2005). The ultimate determination as to
whether an officer’s conduct violates the Fourth Amendment, however, is
reviewed de novo. United States v. Oliver, 363 F.3d 1061, 1065 (10th Cir. 2004).
This court has identified three categories of police-citizen encounters: “(1)
consensual encounters which do not implicate the Fourth Amendment; (2)
investigative detentions which are Fourth Amendment seizures of limited scope
and duration and must be supported by a reasonable suspicion of criminal activity;
and (3) arrests, the most intrusive of Fourth Amendment seizures and reasonable
only if supported by probable cause.” United States v. Torres-Guevara, 147 F.3d
1261, 1264 (10th Cir. 1998) (quotation omitted). Lopez did not argue he was
under arrest at the time Jackson ran the computer check and discovered the
outstanding warrant. Consequently, we must only determine whether the
encounter between Lopez and Jackson was either consensual or an investigative
detention. Because the government has conceded Jackson did not have reasonable
articulable suspicion to support an investigative detention, we must affirm the
district court’s grant of Lopez’s motion to suppress if we conclude the encounter
was not consensual.
The Supreme Court has made clear that “a seizure does not occur simply
because a police officer approaches an individual and asks a few questions.”
-5-
Florida v. Bostick, 501 U.S. 429, 434 (1991). To constitute a seizure, an
encounter between an officer and a citizen must involve the use of physical force
or show of authority on the part of the officer such that a reasonable person would
not feel free to decline the officer’s requests or terminate the encounter. Id. at
439.
The government argues the encounter was consensual in its entirety because
Lopez voluntarily handed his license to Jackson, thereby implicitly consenting to
Jackson’s use of the license for a reasonable period of time, including the time
necessary to run a computer check. According to the government, it was
reasonable for Jackson to believe Lopez agreed to allow his license to be used for
a warrants check. This argument is inapposite because our analysis of the seizure
issue focuses on assessing the encounter from the perspective of a reasonable
person in Lopez’s position, not a reasonable person in Jackson’s position. 1 See
1
The government’s brief is less than clear. To the extent the government
argues the encounter was consensual “in fact” even if Lopez was seized, that is
not an argument it made before the district court. Cf. United States v. Caro, 248
F.3d 1240, 1247 (10th Cir. 2001). Accordingly, we will not consider it for the
first time in this appeal. See Robbins v. Wilkie, 433 F.3d 755, 772 (10th Cir.
2006). At oral argument, the government also asserted the right to interrogate an
individual about his identity necessarily encompasses the right to run a computer
check on the individual. Cf. Hiibel v. Sixth Judicial District Court of Nevada,
542 U.S. 177, 185-86 (2004). Again, this argument was not presented to the
district court and we, therefore, do not address it. United States v. Almaraz, 306
F.3d 1031, 1040 (10th Cir. 2002) (holding arguments presented for the first time
during oral argument are waived).
-6-
INS v. Delgado, 466 U.S. 210, 215 (1984) (“[A]n initially consensual encounter
between a police officer and a citizen can be transformed into a seizure or
detention within the meaning of the Fourth Amendment, if, in view of all the
circumstances surrounding the incident, a reasonable person would have believed
that he was not free to leave.” (quotation omitted)). Further, it is settled that “the
nature of the police-citizen encounter can change–what may begin as a consensual
encounter may change to an investigative detention if the police conduct changes
and vice versa.” United States v. Zapata, 997 F.2d 751, 756 n.3 (10th Cir. 1993).
In Florida v. Royer, two plainclothes officers approached Mr. Royer at an
airport and requested his driver’s license and airline ticket. 460 U.S. 491, 494
(1983) (plurality opinion). Royer handed the documents to the officers “[u]pon
request, but without oral consent.” Id. (plurality opinion). Without returning his
documents, the officers asked Royer to accompany them to a small room where
they questioned him further and, eventually, searched his luggage. Id. at 494-95
(plurality opinion). Although the Supreme Court noted it was “no doubt
permissible” for the officers to ask for and examine Royer’s ticket and license, it
quickly rejected the government’s argument that the encounter between Royer and
the officers was wholly consensual. Id. at 501 (plurality opinion). In reaching
the conclusion Royer was seized for purposes of the Fourth Amendment, the
Court examined events that occurred after Royer voluntarily relinquished his
-7-
documents. The Court relied on information in the record demonstrating “the
officers identified themselves as narcotics agents, told Royer that he was
suspected of transporting narcotics, and asked him to accompany them to the
police room, while retaining his ticket and driver’s license and without indicating
in any way that he was free to depart.” Id. (plurality opinion). Consistent with
Delgado and Royer, even if we assume the encounter between Lopez and Jackson
began consensually, we must still determine whether at some point during that
encounter, Jackson’s conduct would have communicated to a reasonable person
that he was no longer free to decline Jackson’s requests or otherwise end the
encounter. See Delgado, 466 U.S. at 215; Royer, 460 U.S. at 501 (plurality
opinion).
This court has enumerated a non-exhaustive list of circumstances to be
considered in determining whether a police-citizen encounter amounts to a
seizure:
the location of the encounter, particularly whether the defendant is in
an open public place where he is within the view of persons other
than law enforcement officers; whether the officers touch or
physically restrain the defendant; whether the officers are uniformed
or in plain clothes; whether their weapons are displayed; the number,
demeanor and tone of voice of the officers; whether and for how long
the officers retain the defendant’s personal effects such as tickets or
identification; and whether or not they have specifically advised
defendant at any time that he had the right to terminate the encounter
or refuse consent.
-8-
United States v. Spence, 397 F.3d 1280, 1283 (10th Cir. 2005) (quotation
omitted). Although no single factor is dispositive, the “strong presence of two or
three factors” may be sufficient to support the conclusion a seizure occurred.
Fuerschbach v. Southwest Airlines Co., 439 F.3d 1197, 1203 (10th Cir. 2006)
(quotation omitted). There is no dispute that Jackson and Lopez were in an open,
public place when Jackson contacted Lopez. Additionally, Jackson was the only
officer on the scene until after the warrants check was run and nothing in the
record indicates Jackson displayed his weapon during the encounter. It is
uncontested, however, that Jackson was driving a marked patrol car and was
dressed in his uniform. The district court found that Jackson “shined his high-
powered spotlight on Mr. Lopez and Mr. Romero as he approached them, spoke to
them through his loud-speaker,” and did not advise Lopez he had the right to
terminate the encounter. Further, the district court found that Jackson specifically
instructed Lopez to remain by the parked car and then walked to his police cruiser
with Lopez’s license. The government does not challenge any of these findings.
The district court also analyzed “whether and for how long” Jackson retained
Lopez’s license. Spence, 397 F.3d at 1283. The court concluded Jackson retained
Lopez’s license for more than a brief examination. The government argues it was
-9-
reasonable for Jackson to hold Lopez’s license for five minutes 2 and, thus,
Jackson did not retain Lopez’s license for an undue length of time.
It is well-established that the Fourth Amendment is not implicated when an
officer approaches an individual in a public place and requests, but does not
demand, to see his identification. United States v. Mendenhall, 446 U.S. 544, 555
(1980) (“The respondent was not seized simply by reason of the fact that the
agents approached her, asked her if she would show them her ticket and
identification, and posed to her a few questions.”). The Supreme Court has also
made clear, however, that an individual “may not be detained even momentarily
without reasonable, objective grounds for doing so.” Royer, 460 U.S. at 498.
Here, Jackson testified he approached Lopez because it was late at night and
Lopez was standing in a high-crime area. At the time he asked for Lopez’s
identification, Jackson knew the address of the owner of the car next to which
Lopez was standing and knew the car had not been reported stolen. Within
seconds of reviewing Lopez’s license, Jackson was able to establish Lopez’s
identity and confirm that Lopez’s address matched the address on the car
2
Because we conclude the continued retention of Lopez’s license was undue
nearly immediately after Lopez relinquished it to Jackson, it is unnecessary to
address the government’s argument that the district court clearly erred when it
found Jackson retained Lopez’s license for ten minutes. Accordingly, for
purposes of this appeal we will assume Jackson held the license for only five
minutes before discovering the existence of the outstanding warrant.
-10-
registration. After that point in time, the continued retention of Lopez’s license
was undue.
This court arrived at the same conclusion in United States v. Lambert, 46
F.3d 1064, 1069 n.3 (10th Cir. 1995). In Lambert, narcotics agents followed the
defendant through an airport to the parking lot. Id. at 1066. The agents asked
Mr. Lambert for his driver’s license and airline ticket, actions which this court
concluded did not implicate the Fourth Amendment. Id. at 1068. We held,
however, that the encounter between Mr. Lambert and the agents “became an
investigative detention once the agents received Mr. Lambert’s driver’s license
and did not return it to him.” Id. The government attempts to distinguish
Lambert on the basis that the agents retained Mr. Lambert’s license for
approximately thirty minutes while, here, Jackson retained Lopez’s license for
only five minutes. The government’s argument falls short because our conclusion
in Lambert was not compelled by the fact that the agents held Mr. Lambert’s
license for thirty minutes. Instead, we held that the retention of Mr. Lambert’s
license became undue nearly immediately after the officers took possession of it.
Id. at 1069 n.3 (stating “the retention of Mr. Lambert’s license was unjustified
after the agents were able to verify his identity with it” and further stating that
Mr. Lambert’s identity was established “almost immediately after the agents
received his license”).
-11-
Having considered the relevant factors and the district court’s uncontested
findings of fact, we conclude the encounter between Lopez and Jackson was not
consensual at the time of the warrants check and, thus, Lopez was seized.
Jackson, a uniformed officer in a marked police cruiser, not only held Lopez’s
license for longer than necessary to confirm Lopez’s identification, he
specifically instructed Lopez to remain by his vehicle while he ran the warrants
check and then took Lopez’s license back to his patrol car, thereby rendering
Lopez unable to leave. Under the totality of the circumstances, no reasonable
person in Lopez’s position would have felt free to terminate the encounter with
Jackson. Because the government concedes Jackson did not have probable cause
or reasonable articulable suspicion to detain Lopez until the warrants check was
completed, we conclude the seizure violated the Fourth Amendment.
IV. Conclusion
The order of the district court granting Lopez’s motion to suppress is
affirmed.
-12-