United States v. Hernandez

FILED
United States Court of Appeals
Tenth Circuit

February 9, 2017
Elisabeth A. Shumaker
Clerk of Court
PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v. No. 15-1116

PHILLIP DAVID HERNANDEZ,

Defendant - Appellee.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:14-CR-00445-CMA-1)

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

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 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.

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 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

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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, 136 S. Ct. 2056 (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.

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 “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, 132 S. Ct.

1309 (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

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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

1
While we do not generally consider new issues on appeal, we do have
discretion to consider new arguments based on “changes in governing law arising
during the pendency of the appeal.” Green v. Bd. of Cty. Comm’rs, 472 F.3d 794,
798 n.1 (10th Cir. 2007) (quoting Anixter v. Home-Stake Prod. Co., 77 F.3d 1215,
1222 (10th Cir. 1996)). We see two reasons not to exercise that discretion here.
First, all of the parties in Green agreed that the appellate record was sufficiently
developed to allow proper consideration of the new issue without remand. Id.
The same cannot be said about this case. Second, Strieff does not change
governing law; it only supplements it by applying the factors from Brown v.
Illinois, 422 U.S. 590 (1975), and concluding that suppression was unwarranted.
See Strieff, 136 S. Ct. at 2061-62.

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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 deference.” United States v. Le, 173 F.3d 1258, 1264 (10th

Cir. 1999) (citing United States v. Hargus, 128 F.3d 1358, 1361 (10th Cir. 1997)).

“The ultimate question of whether a search and seizure was reasonable under the

Fourth Amendment is a question of law that we review de novo.” Oliver, 363

F.3d at 1065 (quoting Massie, 65 F.3d at 847).

While the defendant “bears the burden of proving whether and when the

Fourth Amendment was implicated (i.e., the point at which he . . . was ‘seized’),”

United States v. Carhee, 27 F.3d 1493, 1496 (10th Cir. 1994), the “government

bears the burden of proving the reasonableness of the officer’s suspicion.” United

States v. Simpson, 609 F.3d 1140, 1146 (10th Cir. 2010). We address in turn the

government’s contentions that the district court erred in holding Officers Walton

and Morghem seized Mr. Hernandez without reasonable suspicion in violation of

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the Fourth Amendment.

A. Whether a Seizure Occurred

The Fourth Amendment, applied to the states through the Fourteenth

Amendment, Mapp v. Ohio, 367 U.S. 643 (1961), prohibits unreasonable seizures

by law enforcement officers. U.S. Const. amend. IV. But “[t]he Fourth

Amendment does not proscribe all contact between the police and citizens.” INS

v. Delgado, 466 U.S. 210, 215 (1984). For instance, “law enforcement officers do

not violate the Fourth Amendment by merely approaching an individual on the

street or in another public place, by asking him if he is willing to answer some

questions, [or] by putting questions to him if the person is willing to listen.”

Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting Florida v. Royer, 460 U.S.

491, 497 (1983) (plurality opinion)). These are referred to as consensual

encounters which do not implicate the Fourth Amendment. See United States v.

Lopez, 443 F.3d 1280, 1283 (10th Cir. 2006). It is “[o]nly when the officer, by

means of physical force or show of authority, has in some way restrained the

liberty of a citizen [that a court] may conclude that a ‘seizure’ has occurred.”

Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968).

In determining whether an encounter between a police officer and a citizen

is consensual, “the crucial test is whether, taking into account all of the

circumstances surrounding the encounter, the police conduct would ‘have

communicated to a reasonable person that he was not at liberty to ignore the

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police presence and go about his business.’” Bostick, 501 U.S. at 437 (quoting

Michigan v. Chesternut, 486 U.S. 567, 569 (1988)). “[T]he test allows officers to

make inquiries so long as they don’t throw their official weight around unduly.”

United States v. Tavolacci, 895 F.2d 1423, 1425 (D.C. Cir. 1990). There are no

per se rules that govern this inquiry; “[r]ather, every case turns on the totality of

the circumstances presented.” United States v. Hill, 199 F.3d 1143, 1147 (10th

Cir. 1999) (quoting United States v. Little, 18 F.3d 1499, 1503 (10th Cir. 1994)

(en banc)).

We have enumerated a non-exhaustive list of factors to be considered in

determining whether a reasonable person would feel free to terminate his

encounter with the police:

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.

Lopez, 443 F.3d at 1284 (quoting United States v. Spence, 397 F.3d 1280, 1283

(10th Cir. 2005)). Moreover, when police officers pursue a citizen in their squad

car while the citizen is on foot, courts will consider whether the officers activated

their siren or flashers, operated their car in an aggressive manner to block the

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citizen’s course or otherwise control the direction or speed of his movement,

displayed their weapons, or commanded the citizen to halt. Chesternut, 486 U.S.

at 575. “Although no single factor is dispositive, the ‘strong presence of two or

three factors’ may be sufficient to support the conclusion a seizure occurred.”

Lopez, 443 F.3d at 1284-85 (quoting Fuerschbach v. Sw. Airlines Co., 439 F.3d

1197, 1203 (10th Cir. 2006)).

Turning to this case, the encounter in question began when Officers

Morghem and Walton pulled alongside Mr. Hernandez in their police cruiser and

began asking him questions, which he answered as he continued to walk down the

street. This was not a seizure. See Bostick, 501 U.S. at 434 (“Our cases make it

clear that a seizure does not occur simply because a police officer approaches an

individual and asks a few questions.”). The nature of a police-citizen encounter

can change, however, and “what may begin as a consensual encounter may change

to an investigative detention if the police conduct changes and vice versa.”

United States v. Madden, 682 F.3d 920, 925 (10th Cir. 2012) (quoting United

States v. Zapata, 997 F.2d 751, 756 n.3 (10th Cir. 1993)). That was the case here.

The district court correctly identified the standards applicable to

determining whether a police-citizen encounter is consensual or a seizure. The

court recognized that “[n]o per se or absolute rules govern the inquiry . . . ;

rather, every case turns on the totality of the circumstances presented.” Aplt.

App. at 111. Citing Spence, 397 F.3d at 1283, the court detailed the factors

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relevant to making this determination, as we have done supra.

Applying these standards, the district court determined the facts here

weighed in favor of concluding that the officers’ conduct had crossed the coercive

line and that a seizure had occurred. A key factor was Officer Walton’s request

that Mr. Hernandez stop walking, but the court also emphasized that there were

two uniformed officers closely following Mr. Hernandez in a police car, it was

dark and there was no evidence the encounter occurred within the view of other

persons, and the officers did not advise Mr. Hernandez he had the right to

terminate the encounter. Aplt. App. at 115-16. The Supreme Court has

recognized that “the very presence of a police car driving parallel to a []

pedestrian could be somewhat intimidating.” 2 Chesternut, 486 U.S. at 575. It

was in this setting that Officer Walton “requested” Mr. Hernandez to stop

walking. As we have noted above, even Officer Walton recognized in his

contemporaneous police report that Mr. Hernandez “tried not to stop to talk to

2
Of course, we recognize that “this kind of police presence does not,
standing alone, constitute a seizure.” Id. We also recognize the ultimate
conclusion in Chesternut was that no seizure had occurred. Id. at 576. We are
merely highlighting the fact that Officers Walton and Morghem were driving
parallel to Mr. Hernandez in their police cruiser and that the Supreme Court has
stated this exact fact could be intimidating to a pedestrian. It is not dispositive; it
simply further illustrates the coerciveness of the circumstances leading up to
Officer Walton’s request that Mr. Hernandez stop walking, which is the point at
which the Fourth Amendment was implicated.

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us.” 3 Aplt. App. at 80. Reading the circumstances of this case, as we must, in the

light most favorable to the prevailing party, Mr. Hernandez, we are persuaded a

reasonable person would have believed that compliance with the “request” was

not optional.

The government takes issue with numerous findings made by the district

court and we address each in turn. The government first contends the court failed

to adequately address the Spence factors, claiming the court’s treatment of the

factors was cursory to its overriding concern that Officer Walton asked Mr.

Hernandez to stop walking so they could talk to him. The government maintains

the district court erred in giving so much weight to Officer Walton’s request

because “[o]fficers are free to approach individuals on the street and question

them.” Aplt. Br. at 9. While this is true, Spence’s list of factors is non-

exhaustive, and the district court did not err in heavily weighing Officer Walton’s

request for Mr. Hernandez to stop walking in light of the other circumstances

present that evening. Mr. Hernandez was in an unlit area on a dark night with no

one else around and with two uniformed and armed officers closely following him

in a marked police car after he had indicated by walking away that he did not

want to stop to talk with them. The Court made clear in Chesternut, 486 U.S. at

3
We do not include this to say that Officer Walton’s subjective intentions
matter to the question of whether Mr. Hernandez was seized; rather, we use it to
illustrate what the situation objectively looked like from a contemporaneous
account.

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573, that “what constitutes a restraint on liberty prompting a person to conclude

he is not free to ‘leave’ will vary, not only with the particular police conduct at

issue, but also with the setting in which the conduct occurs.” (Emphasis added).

The government maintains the district court erred in finding that the public

exposure factor favored Mr. Hernandez. It reasons that whether anybody is

around to see the questioning is irrelevant as long as the questioning occurs in a

public place. We disagree. Our cases view police-citizen interactions in

nonpublic places and police-citizen interactions in the absence of other members

of the public similarly. See Spence, 397 F.3d at 1283 (“This court does consider

‘interaction in a nonpublic place . . . and the absence of other members of the

public’ as factors pointing toward a nonconsensual encounter.” (quoting United

States v. Sanchez, 89 F.3d 715, 718 (10th Cir. 1996))).

The government also disagrees with the district court’s treatment of the fact

that multiple officers were involved, arguing that “this court should reject the

district court’s implicit holding that an officer must approach a subject alone, or

his presence will be deemed coercive.” Aplt. Br. at 11. But that is not what the

district court held. It merely stated that the number of officers is one of many

factors to consider, citing one of our cases for the proposition that “the presence

of more than one officer increases the coerciveness of an encounter.” United

States v. Ward, 961 F.2d 1526, 1533 (10th Cir. 1992), overruled on other grounds

by Little, 18 F.3d at 1504. Although the presence of two uniformed and armed

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officers does not automatically transform every police-citizen encounter into a

nonconsensual one, it is a relevant factor.

“[A]n individual is ‘seized’ when he has an objective reason to believe that

he is not free to terminate his conversation with the officer and proceed on his

way.” United States v. Patten, 183 F.3d 1190, 1194 (10th Cir. 1999) (citation

omitted). “The question of whether an encounter was consensual ‘calls for the

refined judgment of the trial court.’” Id. at 1409 (quoting United States v.

Werking, 915 F.2d 1404, 1408 (10th Cir. 1990)). Considering the totality of the

circumstances here, that there were two uniformed police officers driving closely

alongside Mr. Hernandez in the dark with no one else around, and that Mr.

Hernandez did not stop walking until one officer asked him to stop even though

he was answering the officers’ questions, the district court did not err in

concluding there was a show of authority by Officers Morghem and Walton

sufficient to constitute a seizure under the Fourth Amendment.

The dissent claims that United States v. Drayton, 536 U.S. 194 (2002), INS

v. Delgado, 466 U.S. 210 (1984), Florida v. Rodriguez, 469 U.S. 1 (1984) (per

curiam), and United States v. Mendenhall, 446 U.S. 544 (1980), where the

Supreme Court held that each police-citizen encounter was not a seizure,

represent “far more authoritative encounters between officers and citizens” than

does this case. Dissent at 1. We disagree. In Rodriguez, 469 U.S. at 3-4, the

defendant was stopped in an airport by two detectives in plain clothes. One

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officer showed the defendant his badge and asked if he could talk to him. The

Court held this initial encounter was not a seizure. Id. at 5-6. This

encounter—with plain clothes detectives in a very public place where the

defendant was never asked to stop walking as he was moving away from the

officer—is nothing like the encounter in the present case, which took place in an

isolated location on a dark night with uniformed police officers closely following

defendant in a police car. In fact, in Rodriguez, the Court went on to “[a]ssum[e],

without deciding, that after [the defendant] agreed to talk to the police, moved

over to where his cohorts and the other detective were standing, and ultimately

granted permission to search his baggage, there was a ‘seizure.’” Id. at 6.

In Delgado, 466 U.S. at 212, multiple INS agents conducted a survey of a

factory in search of undocumented immigrants. Agents were posted at the doors

while other agents walked through the factory and stopped employees to ask

about their citizenship status. Id. The Court held that no seizure occurred. Id.

at 221. But the degree of coerciveness of an encounter in a factory with

numerous people around during work time is completely different than an

encounter with the police alone at night, on an empty street. Moreover, a key

premise of the Delgado holding was that “when people are at work their freedom

to move about has been meaningfully restricted, not by the actions of law

enforcement officials, but by the workers’ voluntary obligations to their

employers.” Id. at 218.

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 In Mendenhall, 446 U.S. at 548, DEA agents stopped a woman at the

airport, asked for her ID, and returned it after they looked at it. They then asked

her if she would follow them to answer a few more questions, and she did so. Id.

A plurality of the Court assumed without deciding that the initial stop was a

seizure and then concluded it was supported by reasonable suspicion. Id. at

560-66 (Powell, J., concurring). Only two Justices held the initial stop was

consensual. Id. at 555 (opinion of Stewart, J.). A majority of the Court held, and

this is what the dissent focuses on, that the encounter between Mendenhall and

the officers was consensual as they walked from the concourse to the DEA office.

Id. at 557-58. From this, the dissent concludes that if the encounter in

Mendenhall was consensual, so too was the encounter here. But, unlike the

present case, the setting in Mendenhall was a public airport and there was never a

moment after the initial encounter when the police asked Ms. Mendenhall to stop

behaving in a certain manner (e.g., to stop walking) while she was answering their

questions.

Finally, in Drayton, 536 U.S. at 198, two officers dressed in plain clothes

boarded a bus and asked the defendant if he had any bags with him. The

defendant responded affirmatively and let them check his bag. Id. at 199. When

the search did not turn up contraband, the officers asked if they could check his

person and the defendant again cooperated. Id. The Court held there was no

seizure. Id. at 200. It disagreed with the Eleventh Circuit’s “per se rule that

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evidence obtained during suspicionless drug interdiction efforts aboard buses

must be suppressed unless the officers have advised passengers of their right not

to cooperate and to refuse consent to search[,]” ultimately concluding that the

focus should be on the coerciveness of the encounter and not the fact that it took

place on a bus. Id. at 202.

As we have explained excessively now, Mr. Hernandez was alone at night

being closely followed by a police car with two uniformed and armed officers

who asked him to stop walking even though he was answering their questions. In

contrast, the defendant in Drayton was surrounded by people, was questioned by

plainclothes officers, and was never asked to stop acting in a particular way. The

dissent describes the bravery it would have taken for the defendant in Drayton to

terminate his encounter with the officers but fails to mention that he “would have

been allowed to do so without argument.” See id. at 198. Mr. Hernandez

attempted the very act that would have been permitted in Drayton, but he was

asked to halt.

We admit this is a close case and there is a dearth of case law directly on

point with the facts here, but to claim that numerous Supreme Court precedents

have held “consensual far more authoritative encounters between officers and

citizens,” Dissent at 1, is simply incorrect and misleading. Reading the record in

the light most favorable to Mr. Hernandez, see United States v. De la Cruz-Tapia,

162 F.3d 1275, 1277 (10th Cir. 1998), we cannot say the district court erred in

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concluding that a reasonable person in Mr. Hernandez’s circumstances would not

have felt free to leave.

B. Whether the Officers had Reasonable Suspicion to Stop Mr. Hernandez

Because the seizure of Mr. Hernandez constituted an investigative

detention, also known as a “Terry stop,” it can only be justified if the officers had

specific and articulable facts and rational inferences drawn from those facts

giving rise to a reasonable suspicion that Mr. Hernandez was involved in criminal

activity. See Terry, 392 U.S. at 21; see also Werking, 915 F.2d at 1407. Because

a Terry stop is less intrusive than an arrest, the suspicion required to make such a

stop is less demanding than what is required for an arrest. United States v.

Sokolow, 490 U.S. 1, 7 (1989). As the Court in Sokolow reiterated, id., the

standard articulated in Terry does not “invite intrusions upon constitutionally

guaranteed rights based on nothing more substantial than inarticulate hunches.”

392 U.S. at 22. Rather, the Fourth Amendment requires at least “‘some minimal

level of objective justification’ for making [a] stop.” Sokolow, 490 U.S. at 7

(quoting Delgado, 466 U.S. at 217). Importantly, it is the government’s burden to

prove the reasonableness of the officer’s suspicion. Simpson, 609 F.3d at 1146.

As the district court recognized, aplt. app. at 113, “the existence of

objectively reasonable suspicion of illegal activity does not depend upon any one

factor, but on the totality of the circumstances.” United States v. Wood, 106 F.3d

942, 946 (10th Cir. 1997). The district court held that the generalized explanation

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provided by the officers for the detention amounted to “nothing more than

inchoate and inarticulate hunches, rather than a ‘particularized and objective

basis,’ for suspecting Mr. Hernandez of criminal activity.” Aplt. App. at 117-18

(citing Terry, 392 U.S. at 22; United States v. Fisher, 597 F.3d 1156, 1158-59

(10th Cir. 2010)). The court analyzed the four reasons articulated by the officers,

and argued by the government, to support reasonable suspicion:

(1) Mr. Hernandez was walking next to a construction site which had
been the previous target of construction material thefts; (2) he was
walking in a “high crime” area (with regard to theft, gang activity,
and drug dealing); (3) he was not using the sidewalk located on the
other side of the street; and (4) he was wearing all black clothing and
carrying two backpacks.

Aplt. App. at 117.

First, the court held that merely walking next to a construction site that was

previously the target of thefts did not support reasonable suspicion because Mr.

Hernandez was not, for example, inside the fence, carrying construction materials,

or acting as a lookout. As we said in Fisher, 597 F.3d at 1158-59, “[a] police

officer cannot legally detain a person simply because criminal activity is afoot.

The particular person that is stopped must be suspected of criminal activity.”

Second, the district court noted that, while relevant, the location of the stop in a

high-crime area is “not sufficient by itself to support a reasonable suspicion” that

the individual himself is engaged in criminal activity. Aplt. App. at 113; see also

United States v. Clarkson, 551 F.3d 1196, 1201 (10th Cir. 2009). Third, the court

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stated that Mr. Hernandez’s failure to use the sidewalk located on the other side

of the street did not support reasonable suspicion because “such behavior [was]

perfectly innocuous—Mr. Hernandez might well have decided to take a shorter

route to his destination, or to see the progress of the neighborhood’s latest high-

rise development.” Aplt. App. at 118. The court pointed out that “[t]he

government did not explain why suspicious persons are less likely to choose the

sidewalk.” Id. Nor does the government do so on appeal. Finally, the district

court was not persuaded that Mr. Hernandez’s all black clothing and two

backpacks supported reasonable suspicion because if “black clothing were

sufficient to confer reasonable suspicion, it could subject the ambling public (or,

at least its Hispanic members) ‘to virtually random seizures, inquisitions to obtain

information which could then be used to suggest reasonable suspicion, and

arbitrary exercises of police power.” Id. at 118-19 (quoting Wood, 106 F.3d at

948).

Notably, the government does not contend the district court incorrectly

evaluated these facts. Nor does the government even claim the district court erred

in concluding the four factors the officers articulated were not sufficient to

constitute reasonable suspicion that Mr. Hernandez was engaged in criminal

activity, a position with which we agree.

The government contends instead that the district court failed to account for

one “critical undisputed fact”: that Mr. Hernandez said he was coming from his

-21-
grandmother’s house but could not recite her address. Aplt. Br. at 16. The

government asserts that “[w]hen this is factored in, the circumstances suffice to

show particularized suspicion of criminal activity.” Id. at 17. But the

government never argued in district court, either in its response to the motion to

suppress, Aplt. App. at 25-26, or in its argument at the evidentiary hearing, id. at

94-100, that Mr. Hernandez’s failure to recall his grandmother’s address was a

factor supporting reasonable suspicion. Nor does the government offer any

excuse for its failure to make this argument previously.

“In order to preserve the integrity of the appellate structure, we should not

be considered a ‘second-shot’ forum, a forum where secondary, back-up theories

may be mounted for the first time. Parties must be encouraged to ‘give it

everything they've got’ at the trial level.” Tele-Communications, Inc. v. Comm’r,

104 F.3d 1229, 1233 (10th Cir. 1997) (quoting Anshutz Land & Livestock Co. v.

Union Pac. R.R., 820 F.2d 338, 344 n.5 (10th Cir. 1987)). We, therefore, need

not address the new reasonable suspicion argument the government makes for the

first time on appeal. See United States v. Dewitt, 946 F.2d 1497, 1499 (10th Cir.

1991) (“[T]he government has waived this issue by failing to raise it below. We

will not consider issues which are raised for the first time on appeal unless a party

-22-
demonstrates an impediment which prevented raising the argument below.”

(citing United States v. Orr, 864 F.2d 1505, 1508 (10th Cir. 1988))). 4

In any event, however, we do not consider Mr. Hernandez's failure to know

his grandmother's street address worthy of much weight in determining whether

the officers had reasonable suspicion to detain him, unlike the dissent. In

analyzing the totality of the circumstances, “common sense and ordinary

experience are to be employed and deference is to be accorded to a law

enforcement officer's ability to distinguish between innocent and suspicious

actions.” De la Cruz-Tapia, 162 F.3d at 1277 (quoting Wood, 106 F.3d at 946).

Tellingly, neither officer in this case mentioned in his testimony that this fact

made him suspicious, which is understandable because ordinary experience tells

us that a grandchild who knows the familiar way to his grandmother's house may

well not know her exact street address. Cf. United States v. Santos, 403 F.3d

1120, 1131 (10th Cir. 2005) (failure to know mother's telephone number not

entitled to much weight in reasonable suspicion analysis considering that “[m]any

modern people, even innocent ones, program important phone numbers into their

telephones and no longer memorize them”). As we said in Santos, “[i]t may be

lamentable that” a grandchild doesn't know his grandmother's street address, “but

it is hardly an indication that crime is afoot.” Id. We are thus more persuaded by

4
This case is not like United States v. Moore, 795 F.3d 1224, 1229 n.2
(10th Cir. 2015), where there was no issue of waiver.

-23-
the police officers’ failure to find this fact suspicious than we are by the dissent's

opposite conclusion. 5

The government ultimately argues the district court erred by not affording

the officers the deference they deserved. But as we have explained, while

“deference is to be accorded a law enforcement officer’s ability to distinguish

between innocent and suspicious actions . . . [i]nchoate suspicions and

unparticularized hunches . . . do not provide reasonable suspicion.” Wood, 106

F.3d at 946. The district court held that Officers Morghem and Walton stopped

Mr. Hernandez based on inchoate suspicions and unparticularized hunches, and

we are not persuaded the court erred in making that determination.

We AFFIRM.

5
The record is virtually bare in regard to Mr. Hernandez’s inability to
recall his grandmother’s address. The only mention of it was during Officer
Morghem’s testimony at the suppression hearing where he stated, “I asked where
was his grandma’s house and he could not provide me that address.” Aplt. App.
at 43. This, standing alone, contrary to the government’s and dissent’s assertions,
is neither inconsistent nor evasive. It might be different, for instance, had Officer
Morghem testified to asking a follow-up question regarding the approximate
location of Mr. Hernandez’s grandmother’s house and then testified that Mr.
Hernandez could not provide any general information about such residence. That,
however, is not what occurred, and it further underscores our point above that
both sides should present all their arguments to the district court.

-24-
No. 15-1116, United States v. Hernandez

BRISCOE, Circuit Judge, dissenting.

I respectfully dissent. The majority suggests that when police officers in a vehicle

merely ask a pedestrian to stop walking to continue their conversation, the pedestrian has

been seized. Applying Supreme Court precedent holding consensual far more

authoritative encounters between officers and citizens, I would conclude that Hernandez

gave the Denver Police Officers his name in the course of a consensual encounter. In the

alternative, the Officers had reasonable articulable suspicion to stop Hernandez.

I

On October 20, 2014, Officers Morghem and Walton were on patrol in Denver,

Colorado. After sunset, they arrived in their marked patrol car at the unlit intersection of

West 10th Avenue and Mariposa Street. The intersection is located in a high crime area.

As a result of the ongoing construction of a high-rise at that intersection, there was

no sidewalk along the site or any cars parked there. The construction site also was fenced

in, in part for security reasons, and the police had responded to thefts in construction

areas nearby. Officer Morghem was especially alert to and suspicious of individuals near

this specific construction site because a few months prior to that evening, he had arrested

a trespasser inside that fenced-in area of the site.

Officer Morghem observed through the darkness a person near the corner, clad in

black clothing, and wearing two backpacks. When first seen, the man, later identified as

Hernandez, was in the street and walking next to the fence. Given his knowledge of the

area and prior thefts, Officer Morghem was immediately suspicious when he saw

Hernandez next to the fence. In addition, Officer Morghem had experience arresting

“lookout[s].” Aplt. App. at 108. He therefore was concerned that the individual he saw
outside of the fence could be working as a lookout for others inside. Officer Morghem

also found Hernandez’s behavior “odd” in that there was a sidewalk on the other side of

the street, but Hernandez was not using it. Id.

Officer Walton, who was driving the patrol car, pulled up next to Hernandez and

started talking to him as Hernandez continued to walk. The patrol car was approximately

five feet from Hernandez. Officer Morghem asked him if “they could talk to him,” and

Hernandez replied, “yeah, what’s up?” Id. at 109. Because Hernandez kept walking,

Officer Walton drove the car alongside to keep pace.

Officer Walton then asked Hernandez “where he was coming from and what he

was doing . . . .” Id. Hernandez said that he “was coming from his grandmother’s house

and was ‘just trying to go home.’” Id. Officer Morghem asked “where his grandmother

lived,” to which Hernandez replied that he “didn’t know the address.” Id.

At some point thereafter, Officer Walton “asked Hernandez to stop so that they

could talk to him, and he complied.” Id. Next, the district court found, the Officers asked

Hernandez for his name and date of birth. Hernandez provided his name, but a false birth

date. The “entire conversation” took, “at the most,” two minutes. Id.

Officer Morghem’s search of the police department’s database revealed that

Hernandez had an outstanding arrest warrant. Officer Walton then parked the car. The

Officers stepped out of the patrol car, as Hernandez “started walking away ‘quickly’”

from them. Id. at 110. As Officer Morghem approached Hernandez, he noticed

Hernandez reaching for his waistband. Officer Morghem asked if Hernandez “had a

gun.” Id. Hernandez answered, “‘yes,’ and a gun fell on the ground.” Id. The Officers

arrested Hernandez and retrieved the gun.

2
 II

Hernandez was subsequently indicted on one count of knowingly possessing a

firearm after having been previously convicted of a felony, in violation of 18 U.S.C.

§ 922(g)(1). He filed a motion to suppress arguing that he was unlawfully seized at the

time he identified himself. He contended that by asking him to stop, the Officers seized

him without reasonable suspicion and improperly discovered his identity, and thus the

warrant and firearm. The government responded that the encounter was consensual or,

alternatively, was an investigative detention supported by reasonable suspicion. The

district court granted the motion, determining that when Hernandez was asked to stop, the

encounter became a seizure, unsupported by reasonable suspicion.

III

In reviewing the district court’s order, we view “the evidence in the light most

favorable to the prevailing party,” and “defer to the district court’s findings on questions

of fact, reviewing only for clear error. We review questions of law de novo.” United

States v. Mendoza, 817 F.3d 695, 698 (10th Cir. 2016) (citations omitted). Specifically,

we review de novo “the ultimate determination of reasonableness under the Fourth

Amendment.” United States v. Moore, 795 F.3d 1224, 1228 (10th Cir. 2015) (quotation

marks and citation omitted).

1. Was the Encounter Consensual?

We recognize three categories of encounters between police officers and citizens:

(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.

3
United States v. Madden, 682 F.3d 920, 925 (10th Cir. 2012) (citation omitted).

With respect to consensual encounters, the Supreme Court has long held that,

[O]fficers do not violate the Fourth Amendment’s prohibition of
unreasonable seizures merely by approaching individuals on the street or in
other public places and putting questions to them if they are willing to
listen. . . . Even when law enforcement officers have no basis for
suspecting a particular individual, they may pose questions [and] ask for
identification . . . provided they do not induce cooperation by coercive
means.

United States v. Drayton, 536 U.S. 194, 200–01 (2002) (citations omitted).

Specifically, “interrogation relating to one’s identity or a request for identification

by the police does not, by itself, constitute a Fourth Amendment seizure.” INS v.

Delgado, 466 U.S. 210, 216 (1984). But if a police officer “detain[s]” a person “for the

purpose of requiring him to identify himself,” the officer has “performed a seizure of his

person subject to the requirements of the Fourth Amendment.” Brown v. Texas, 443 U.S.

47, 50 (1979). Thus, the threshold issue is whether Hernandez’s encounter with the

Officers was consensual. I would conclude that it was.

“We review de novo the relevant circumstances to determine whether an

interaction between an individual and a law enforcement officer is a consensual encounter

that does not implicate the Fourth Amendment.” United States v. Rogers, 556 F.3d 1130,

1137 (10th Cir. 2009) (quotation marks and citation omitted). The following facts are

relevant:

(1) the threatening presence of several officers; (2) the brandishing of a
weapon by an officer; (3) physical touching by an officer; (4) aggressive
language or tone of voice by an officer indicating compliance is
compulsory; (5) prolonged retention of an individual’s personal effects; (6)
a request to accompany an officer to the police station; (7) interaction in a
small, enclosed, or non-public place; and (8) absence of other members of
the public.

4
Id. at 1137–38 (emphasis added) (citation omitted).

This “list of factors is not exhaustive, nor is any one factor dispositive.” Id. at

1138 (citation omitted). While relevant, “[o]nce such a consensual encounter begins, an

officer is not required to inform a suspect that he does not have to answer the officer’s

questions or that he is free to leave at any time.” United States v. Wallace, 429 F.3d 969,

975 (10th Cir. 2005) (citation omitted). To decide “whether a particular encounter

constitutes a seizure, a court must consider all the circumstances surrounding the

encounter to determine whether the police conduct would have communicated to a

reasonable person that the person was not free to decline the officers’ requests or

otherwise terminate the encounter.” Madden, 682 F.3d at 925 (quotation marks and

citation omitted). That reasonable person inquiry “focuses on the objective viewpoint of

one in the defendant’s circumstances.” United States v. Carbajal-Iriarte, 586 F.3d 795,

801 (10th Cir. 2009) (citation omitted).

In the present case, Hernandez agreed to speak with the Officers and continued

walking while answering their questions, responding to every question without objection.

When Officer Walton asked Hernandez to stop walking, Hernandez did so without

objection. Officer Morghem then asked Hernandez to identify himself, and he complied.

Approximately two minutes elapsed from the beginning of the conversation until the

discovery of the outstanding warrant.

Supreme Court precedent establishes that the circumstances here do not support

the legal conclusion that Hernandez was seized. In United States v. Mendenhall, after

Mendenhall was arrested for possessing narcotics, she argued that she was seized from

the moment that agents approached her in an airport concourse and asked her questions.

5
446 U.S. 544, 547–50 (1980). The majority here notes that only a plurality of the

Mendenhall Court held the initial encounter, during which Mendenhall’s identification

and plane ticket were confiscated, was consensual. See id. at 555 (Stewart, J., plurality).

Today’s majority also attempts to distinguish Hernandez’s circumstances from

Mendenhall’s by framing the question as whether Mendenhall was asked “to stop

behaving in a certain manner (e.g., to stop walking) while she was answering [the

agents’] questions.” Majority Op. at 17.

But Mendenhall’s import is that the majority of the Court held that the encounter

was consensual after Mendenhall’s effects were returned. 446 U.S. at 557–58 (Stewart,

J., majority). And the Court held that the agents’ request that Mendenhall accompany

them to a far-off, enclosed, and government-controlled location did not transform the

encounter into a seizure. Id. Specifically, the Court stated that Mendenhall “was not told

that she had to go to the office, but was simply asked if she would accompany the

officers” after her “ticket and identification” had been “returned to her,” a “voluntarily

consented to” encounter. Id. at 558. The majority here fails to draw any meaningful

distinction between an officer’s request that a person preparing to catch a flight

accompany him to an airport security office to continue their consensual conversation and

an officer’s request that a person stand in place to do the same. If Mendenhall could have

refused the request to move to the agents’ office, Hernandez could have refused the

request to stop here.

Further, in Florida v. Rodriguez, the defendant was being followed by several

narcotics officers through an airport. 469 U.S. 1, 3–4 (1984) (per curiam). One of

Rodriguez’s compatriots noticed the officers and warned Rodriguez to “[g]et out of

6
[t]here.” Id. Rodriguez then “attempted to move away from” the officers. Id. at 4. A

detective “showed his badge and asked [Rodriguez] if they might talk,” and “suggested

that they move approximately 15 feet” away. Id. The detective requested identification

and, seeing Rodriguez had none, asked his name. Id. The Court held that “[t]he initial

contact between the officers and [Rodriguez], where they simply asked if he would step

aside and talk with them, was clearly the sort of consensual encounter that implicates no

Fourth Amendment interest.” Id. at 5–6 (emphasis added) (citations omitted).

The majority is correct that the Court also “[a]ssum[ed], without deciding, that

after [Rodriguez] agreed to talk with the police, moved over to where his cohorts and the

other detective were standing, and ultimately granted permission to search his baggage,”

he was seized. Id. at 6 (emphasis added). But the majority is mistaken if what it means to

suggest is that the Court held that Rodriguez was seized once he complied with the

request to move aside, implying Hernandez was seized when he stopped here. Just the

opposite conclusion is true. The Court held that when the presumptive seizure occurred,

it was supported by “justifiable suspicion,” based, in part, on “the contradictory

statements concerning the identities of” Rodriguez and his compatriot, statements they

made after they complied with the officers’ request to move locations. Id. Rodriguez

thus confirms that Hernandez was not seized merely because the Officers’ requested he

alter his movements to continue their encounter.

The majority also attempts to distinguish Rodriguez on the basis that Hernandez

was in an “isolated location” at night. Majority Op. at 16. But that does not follow

because Hernandez was not isolated on the “very public” street and, the majority agrees,

he had been engaged in a consensual nocturnal encounter just moments earlier. Id.

7
Mendenhall and Rodriguez belie the conclusion that the Officers could not ask Hernandez

to stop walking without having seized him.

Moreover, although the district court noted that Hernandez’s encounter was with

two officers, it did not find that their presence was threatening. Indeed, both Officers

remained in the car, weapons holstered and unseen. See Rogers, 556 F.3d at 1137–38.

The district court also suggested that driving the police car five feet away from

Hernandez might have made a reasonable person feel unable to terminate the

conversation. But the district court did not find, and no evidence suggests, that Officer

Walton drove in an aggressive manner or blocked Hernandez’s route.

To explain its agreement with the district court, the majority cites Michigan v.

Chesternut for the proposition that, “the very presence of a police car driving parallel to a

running pedestrian could be somewhat intimidating . . . .” 486 U.S. 567, 575 (1988). But

the majority relegates the end of that sentence to a footnote. The Court stated that “this

kind of police presence does not, standing alone, constitute a seizure.” Id. The majority’s

claim that Chesternut “simply further illustrates the coerciveness of the circumstances

leading up to Officer Walton’s request that Mr. Hernandez stop walking” grafts

Chesternut’s conclusion onto Hernandez’s circumstances while ignoring Chesternut’s

facts. Majority Op. at 12 n.2. The Court held that four officers’ “pursuit” of a

pedestrian—during which they “dr[o]ve alongside him” in their police cruiser as he ran

away from them—was not a seizure. Chesternut, 486 U.S. at 576. If those officers’

actions were merely “somewhat intimidating,” id. at 575, then Officer Walton’s passive

driving maneuvers here hardly qualify as coercive. Thus, Chesternut simply underscores

that Hernandez’s consensual encounter continued even as the Officers kept pace with him

as he walked.

8
 The district court next emphasized that the Officers “freely admit[ted] that when

citizens walk away from them, these citizens are not indicating that they are affirmatively

consenting to being questioned by the Officers.” Aplt. App. at 116. The majority treats

this as highly significant, noting that Officer Walton admitted that Hernandez “tried not to

stop to talk to” them. Majority Op. at 12–13 (quoting Aplt. App. at 80). The majority

appears to disclaim reliance on the district court’s legal analysis of why that request is

“key” to its determination. But the majority must be relying on the district court’s

erroneous legal analysis when it calls Officer Walton’s “request that Mr. Hernandez stop

walking” a “key factor” to its determination that Hernandez was seized. Id. at 12. For the

majority offers no substitute legal analysis to explain why the request is “key” to its

holding.

Moreover, the district court’s analysis of that “key factor” is triply flawed. First,

the district court’s discussion of Officer Walton’s subjective views of the situation come

from Officer Walton’s report, which was not admitted into evidence and for which we

have no context. The majority does not even address this error; it also relies on the

report.

Second, in any event, the Officers’ feelings regarding whether Hernandez wanted

to speak to them are irrelevant to analyzing this question of law. United States v.

Kimoana, 383 F.3d 1215, 1224 (10th Cir. 2004). The majority admits that such

“subjective intentions” are irrelevant, but does not explain what facts, as opposed to

Officer Walton’s feelings, demonstrate that “the situation objectively looked [coercive]

from a contemporaneous account.” Majority Op. at 13 n.3. Rather, the undisputed

objective facts are that Hernandez answered every question posed to him, did not remain

silent, and never said that he wished to end the walk-and-talk encounter. Cf. United

9
States v. Jones, 701 F.3d 1300, 1305–07 (2012).

Third, even if those errors were not fatal to its conclusion, the district court’s

underlying premise was tautological—the request that Hernandez stop walking does not

prove that request transformed the encounter into a seizure. “The exploitation issue

focuses solely on [a] defendant’s grant of consent, not on the bare request, or the reasons

underlying it. While the police may exert coercion in the manner in which they request

[a] defendant’s consent, the request itself . . . is not exploitation.” United States v.

Carson, 793 F.2d 1141, 1149 (10th Cir. 1986). Thus, the relevant question is whether the

circumstances surrounding the request or the manner in which it was made objectively

compelled compliance. Id. The request itself is not determinative of whether

Hernandez’s free will was overpowered. Id. That he complied also does not answer

whether a reasonable person would have felt compelled to do so. The majority’s tacit

reliance on the district court’s analysis for the legal import of Officer Walton’s request

necessarily suffers from these same errors.

Further, the Officers did not seize any of Hernandez’s personal effects, touch him,

verbally threaten him, or brandish their weapons. The majority claims that “the presence

of two uniformed and armed officers . . . is a relevant factor” here. Majority Op. at

14–15. The factors enumerated in Rogers point to a different conclusion. 556 F.3d at

1137–38. The mere fact that the Officers were uniformed and armed does not negate this

consensual encounter when the Officers did not act in any way to threaten Hernandez.

The Officers also maintained a conversational tone throughout the encounter. And

Hernandez remained free to walk away, as demonstrated by his having done so after the

warrant was discovered and Officer Walton parked the patrol car. At the earliest,

therefore, Hernandez was only seized once Officer Morghem stepped out of the patrol car

10
and approached him, but by that time there was probable cause for an arrest.

The circumstances surrounding the Officers’ encounter with Hernandez were a

lesser show of authority than those circumstances the Court held consensual in Drayton,

where it reviewed an encounter between three officers and a bus passenger. 536 U.S. at

204. The Court explained: “There was no application of force, no intimidating

movement, no overwhelming show of force, no brandishing of weapons, no blocking of

exits, no threat, no command, not even an authoritative tone of voice. It is beyond

question that had this encounter occurred on the street, it would be constitutional.” Id.

The majority emphasizes that in Drayton the officer testified that if the defendant

had wished to leave the bus, he “would have been allowed to do so without argument.”

Id. at 198. But no facts in Drayton suggest the defendant knew that, and it is hardly the

point. To terminate what the Court held was a consensual encounter, Drayton would have

been required to stand up, ignore one officer’s requests (an officer who had previously

leaned over Drayton’s shoulder, come within eighteen inches of his face, and reached

over him to pat-down and arrest his compatriot), walk down the narrow aisle of the bus,

and pass another officer who was positioned at the door. Id. at 198–99.

In contrast, to terminate this encounter, Hernandez need only have ignored the

Officers’ request and continued walking. The majority seeks to blunt Drayton’s force

here by claiming that Hernandez “attempted the very act that would have been permitted”

in that case, “but he was asked to halt.” Majority Op. at 18 (emphasis added). But the

majority’s reliance on the request merely highlights, again, that the majority is eliding the

distinction between a request and a command. See, e.g., Carson, 793 F.2d at 1149. In

fact, Drayton itself explicitly distinguishes the coercive force of commands from that of

requests. 536 U.S. at 204. And, as the majority cedes, no facts here indicate that

11
Hernandez was commanded to stop. Applying Drayton, as we are required to do, would

preclude us from holding that the Officers’ non-authoritative request that Hernandez stop

walking compelled his compliance.

Finally, the district court explained that Hernandez was questioned “in a public

space, but” not “within view of other persons.” Aplt. App. at 115. This, that the

encounter occurred at night, and the fact that the Officers did not tell Hernandez that he

was free to disregard their request appear to be the only facts that support the majority’s

conclusion. See Rogers, 556 F.3d at 1137–38. But in Delgado, the Court emphasized

that “[u]nless the circumstances of the encounter are so intimidating as to demonstrate

that a reasonable person would have believed he was not free to leave if he had not

responded, one cannot say that the questioning resulted in a detention under the Fourth

Amendment.” 466 U.S. at 216.

More specifically, the Court held that none of the factory workers in question were

seized during the government’s entries upon their workplace. Id. at 220–21. As relevant

here, the Court noted that when one of the workers was “[w]alking from one part of the

factory to another, [she] was stopped by [a government] agent and asked where she was

born.” Id. at 220 (emphasis added). The Court held that none of the workers were seized.

Id. at 221. The majority is mistaken that “a key premise of” Delgado “was that ‘when

people are at work their freedom to move about has been meaningfully restricted, not by

the actions of law enforcement officials, but by the workers’ voluntary obligations to their

employers.’” Majority Op. at 16 (quoting Delgado, 466 U.S. at 218). Actually, the key

premise of Delgado here is what the Court held—the consensual encounter between

government agents and a factory worker remained so after the worker was stopped from

walking and continuing her obligations to her employer. 466 U.S. at 219–21.

12
 The Delgado Court determined that despite the presence of numerous agents and

the interior setting, the worker who was stopped remained free to ignore the agents to

continue her work, and therefore had consented to their inquiries. Id. The Supreme

Court’s holding that this encounter was consensual undermines the majority’s conclusion

that Hernandez was seized merely because no one else saw the nighttime encounter on a

public street and the Officers did not tell him that he could ignore their request. None of

the facts here suggest that a reasonable person in Hernandez’s situation would have been

so intimidated that he believed he was not free to ignore the request.

Applying these precedents, I would conclude that Hernandez was not seized until

after the Officers discovered his outstanding warrant.

2. Did Reasonable Suspicion Support this Stop?

Alternatively, even if Hernandez had been seized, that brief seizure was supported

by reasonable suspicion that Hernandez was about to commit a crime—he appeared to be

casing the construction site.

“The Fourth Amendment permits brief investigative stops . . . when a law

enforcement officer has ‘a particularized and objective basis for suspecting the particular

person stopped of criminal activity.’” Navarette v. California, __ U.S. __, 134 S. Ct.

1683, 1687 (2014) (quoting United States v. Cortez, 449 U.S. 411, 417–18 (1981), and

citing Terry v. Ohio, 392 U.S. 1, 21–22 (1968)). An officer may effect such a stop “even

though probable cause to arrest is lacking.” United States v. Rodriguez, 739 F.3d 481,

485 (10th Cir. 2013) (quoting Terry, 392 U.S. at 22).

Under this “reasonable suspicion” standard, “we ask ‘whether the officer’s action

was justified at its inception, and whether it was reasonably related in scope to the

circumstances which justified the interference in the first place.’” Id. (quoting Terry, 392

13
U.S. at 20). “Reasonable suspicion arises from the combination of an officer’s

understanding of the facts and his understanding of the relevant law.” Heien v. North

Carolina, __ U.S. __, 135 S. Ct. 530, 536 (2014). “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.” United States v. Garcia, 751 F.3d 1139,

1143 (10th Cir. 2014) (quotation marks and citation omitted).

We review this question of law de novo. Ornelas v. United States, 517 U.S. 690,

699 (1996). Reasonable suspicion “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. Fager, 811 F.3d 381, 386 (10th Cir. 2016) (quoting United States v.

Arvizu, 534 U.S. 266, 274 (2002)). “For reasonable suspicion to exist, an officer must

‘articulate something more than an inchoate and unparticularized suspicion or hunch.’”

Moore, 795 F.3d at 1229 (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)).

However, “reasonable suspicion must meet only a minimum level of objective

justification.” Fager, 811 F.3d at 386 (quotation marks and citation omitted).

In the case at hand, the district court reached an erroneous conclusion of law by

misapplying precedent and failing to incorporate in its analysis a critical fact that it found:

Hernandez’s purported inability to recall his grandmother’s address. Reasonable

suspicion may derive from “‘a series of acts, each of them perhaps innocent’ if viewed

separately, ‘but which taken together warrant[] further investigation.’” Sokolow, 490

U.S. at 9–10 (quoting Terry, 392 U.S. at 22). The Supreme Court has held that “innocent

behavior will frequently provide the basis for a showing of” reasonable suspicion, so “the

relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree

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of suspicion that attaches to particular types of noncriminal acts.” Id. at 10 (quotation

marks and citation omitted). The district court erred by examining each of Hernandez’s

innocent behaviors in isolation.

Specifically, the district court analyzed those facts piecemeal, determining whether

each fact “standing alone” would be “sufficient to confer reasonable suspicion.” Aplt.

App. at 118. But that mode of analysis is contrary to precedent. United States v.

Simpson, 609 F.3d 1140, 1152 (10th Cir. 2010); see Sokolow, 490 U.S. at 9–10. The

district court then dismissed each fact as “perfectly innocuous” or, “even” when

“combined” together, “simply” unable to “satisfy” the “reasonable suspicion standard,”

without explaining how its conclusion derived from the aggregate, but limited facts it

discussed. Aplt. App. at 118.

Further, the district court failed to consider its own factual finding regarding

Hernandez’s statement immediately preceding the request to stop. The district court

found that Officer Morghem “asked . . . Hernandez where he was coming from and what

he was doing, and Hernandez responded that he was coming from his grandmother’s

house and was ‘just trying to go home.’ When Morghem asked where his grandmother

lived, . . . Hernandez responded that he didn’t know the address.” Id. at 109. That is,

Hernandez failed to identify, even generally, where his grandmother lived. The district

court did not account for the legal significance of this fact in its analysis.

Of course, “[b]ecause our analysis depends on the totality of the circumstances,

we” must “consider this additional factor here.” Moore, 795 F.3d at 1229 n.2. The

majority concludes otherwise on the basis that while this fact is cited by the government

on appeal, neither the Officers nor the government argued in the district court that it

contributed toward reasonable articulable suspicion. But that is irrelevant. The district

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court made that factual determination, and we have no license to ignore it in conducting

our review of the “totality of the circumstances” here. Garcia, 751 F.3d at 1143.

More specifically, as to the Officers, “the fact that [an] officer does not have the

state of mind which is hypothecated by the reasons which provide the legal justification

for the officer’s action does not invalidate the action taken as long as the circumstances,

viewed objectively, justify that action.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004)

(citations omitted) (quoting Whren v. United States, 517 U.S. 806, 814 (1996)). That

neither Officer alerted the district court to the significance of one of the facts it later

found does not cabin our de novo review of whether all of the facts are sufficient as a

matter of law to amount to reasonable suspicion.

As to the government, the majority is of course correct that it bears the burden to

prove reasonable articulable suspicion. Simpson, 609 F.3d at 1146. But the majority is

incorrect that the government’s failure to underscore before the district court the legal

significance of an undisputed fact circumscribes our de novo review of this question of

law. The government has always maintained that a stop was justified. And the district

court found, among other facts which would support reasonable suspicion, that

Hernandez stated that he did not know his grandmother’s address. The government has

presented us with everything necessary to determine the legal significance of this and all

other facts that the district court found.

Turning to Hernandez’s statement, it was not inconsistent, but a reasonable officer

could have found it evasive. In Simpson, we held that “lies, evasions or inconsistencies

about any subject while being detained may contribute to reasonable suspicion.” Id. at

1149. For example, “fairly minor evasions and inconsistencies,” such as not knowing

one’s “mother’s telephone number” or not “provid[ing] specifics regarding” topics one

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broaches all contribute to arousing reasonable suspicion. Id. at 1150 (citation omitted).

Here, Hernandez was asked where he was coming from and where he was going.

He volunteered that he had just come from his grandmother’s house, an innocent

response. But when he was asked where she lived, not her exact address, he responded

that he did not know the address. His response was evasive.

Again, the district court fundamentally erred by adopting a piecemeal approach to

the facts and disregarding each of them standing alone or for independent insufficiency,

thus failing to apply the totality-of-the-circumstances test. See Garcia, 751 F.3d at 1143;

Simpson, 609 F.3d at 1152. Viewed objectively and in its totality, Hernandez’s conduct

instead adds up to enough that a reasonable officer would have a valid basis to inquire

further, at least enough to ask him to stop and identify himself. Navarette, 134 S. Ct. at

1687, 1691. More specifically, Hernandez was walking through a “high-crime area in

nighttime darkness.” Fager, 811 F.3d at 389–90 (citing Illinois v. Wardlow, 528 U.S.

119, 124 (2000)). And given the Officers’ knowledge of the area, including prior thefts,

Hernandez’s nighttime presence in the street, walking beside the construction site, clad in

all black, and carrying two backpacks supports the Officers’ reasonable suspicion. See

Garcia, 751 F.3d at 1143. Yet even having observed all of this, the Officers did not

request that Hernandez stop. They did so only after he gave an evasive answer.

Rather than taking a divide-and-conquer approach, we must examine together all

of the facts of which the Officers were aware when they requested that Hernandez stop

and identify himself. Fager, 811 F.3d at 386. The Officers located Hernandez (a) at

night, (b) wearing all black clothing, (c) and two backpacks, (d) walking in the street

instead of on a nearby sidewalk, (e) through an unlit area, (f) in a high-crime location, (g)

next to a construction site where they were particularly concerned about thefts, (h) and he

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purported to have come from his grandmother’s house but claimed not to know the

address. These facts, taken together, demonstrate that once Hernandez gave his evasive

answer, the Officers had an objectively reasonable suspicion that his stated reason for his

presence in the area was false and that he was casing the construction site.

At that point, the Officers had reasonable suspicion to request that Hernandez stop

walking and identify himself, leading to the discovery of the warrant, and thus probable

cause to arrest. Therefore, even if Hernandez’s encounter with the police was not

consensual, the Officers had reasonable suspicion to briefly stop him and ask his name. I

would reverse the district court’s order and remand for trial.

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