FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 21, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-2182
(D.C. No. 1:14-CR-03754-JAP-1)
BRADLEY SOZA, (D. N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, McKAY, and BALDOCK, Circuit Judges.
_________________________________
We decide whether police officers transformed a lawful investigatory stop into
an unlawful arrest by brandishing their firearms and using handcuffs on an individual
who bore a generic resemblance to an unidentified and potentially violent burglar but
had otherwise behaved in a calm and compliant manner in front of the officers.
*
The district court’s findings of fact, which neither party challenges on appeal,
tell us the following. On a June afternoon in 2014, three women were inside one of
the units of a gated and generally peaceful condominium complex located in
Albuquerque when they saw a man banging on the front door. This man, who the
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
women later described as a Spanish male in his forties wearing a grey shirt and
baseball cap, then walked around to the back of the condominium and threw a rock
through the unit’s sliding glass door. The women—justifiably frightened—retreated
to a bedroom closet to hide. The man apparently followed the women because at
some point later on the three victims heard the man say, “Hey,” from outside the
bedroom door.
One of the women called 911 and informed the authorities of the above
sequence of events and the intruder’s general description. Shortly thereafter Officers
Thomas Melvin and James Demsich of the Albuquerque Police Department set out to
investigate.
When they arrived at the complex, the officers circled the building in which
the callers’ condominium was located from opposite directions. As Officer Demsich
was rounding one of the building’s corners, he saw a man coming from another
nearby building in the condominium complex across the street. Officer Demsich
instructed the man “to go back in” to the building. The man immediately complied
and calmly walked back to the building from which he came. Officer Demsich
continued to circle the building.
The officers reunited at the broken sliding glass door in the back of the
building. Officer Demsich eventually asked Officer Melvin whether he had also seen
the man who had been crossing the street. Officer Melvin stated that he had not.
Officer Demsich, presumably beginning to have second thoughts about his encounter
with the man, indicated that the man may have matched the description of the
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suspect—that is, a Spanish male in his forties wearing a grey shirt and baseball cap.
The officers decided to investigate further and immediately crossed the street toward
the building from which the man had come and to which he eventually had returned.
Soon enough the officers came across Defendant Bradley Soza—the only
person the officers saw in the area—standing on the front porch of one of that
building’s units. Defendant indeed matched a rough description of the suspect: he
was an adult Hispanic male who was wearing a baseball cap and grey sweatshirt.
Without hesitation or further inquiry the officers unholstered their firearms,
held them in a low and ready position, and instructed Defendant to put his hands on
his head. Defendant calmly obeyed. The officers then came up onto the porch to
handcuff Defendant. Again, Defendant did not resist or otherwise make any
threatening gestures or movements as they did so.
As Officer Demsich was in the process of moving Defendant’s hands from the
top of his head to behind his back so that he could handcuff him, he noticed that
Defendant’s hands were bloody. Moments later, as Officer Demsich began securing
the handcuffs, Officer Melvin noticed that Defendant had shards of glass on his neck
and sweatshirt. Officer Melvin commented about the glass to Officer Demsich, and
Defendant, indirectly responding to the remark, offered that he had broken the sliding
glass door because he had “heard something.” The officers subsequently conducted
two pat-down searches of Defendant and found a flashlight, syringe, knife, and
loaded firearm.
3
A grand jury charged Defendant, a former convicted felon, with knowingly
possessing a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). Defendant filed a motion to suppress the physical evidence and statements
obtained during his arrest on Fourth Amendment grounds. The district court denied
his motion. As such, Defendant entered a conditional guilty plea that expressly
allowed him to appeal the district court’s denial of his motion to suppress. Defendant
now exercises that right.
*
Our jurisdiction arises under 28 U.S.C. § 1291. Because Defendant does not
challenge any factual findings of the district court and instead argues only that the
officers’ actions were unreasonable under the Fourth Amendment, we review de novo
the district court’s denial of his motion to suppress. United States v. Schuck, 713
F.3d 563, 567 (10th Cir. 2013).
Defendant made two primary arguments to the district court in support of his
motion to suppress and again utilizes these same arguments on appeal. First, he
maintains that the officers violated his Fourth Amendment rights when they stepped
onto what Defendant insists was his front porch—the “classic exemplar” of
constitutionally protected curtilage, or the “area ‘immediately surrounding and
associated with the home’” that is “‘part of the home itself for Fourth Amendment
purposes,’” Florida v. Jardines, 133 S. Ct. 1409, 1414–15 (2013) (quoting Oliver v.
United States, 466 U.S. 170, 180 (1984))—to seize him without his consent, an arrest
warrant, or probable cause coupled with exigent circumstances. Second, he contends
4
that even if the officers had the right to step onto the front porch to seize him without
violating the Fourth Amendment, they unlawfully arrested him in the absence of
probable cause when they brandished their firearms and handcuffed him based solely
on the fact that he resembled the as-of-then-unidentified burglar and was in the same
general area where the crime had occurred.
Although the district court disagreed with Defendant on both points and
therefore denied his motion to suppress, we reverse the district court’s decision on
the second basis, i.e., that the officers unlawfully arrested Defendant in the absence
of probable cause.1 More specifically, we observe that the district court found that
the officers did not see the blood on Defendant’s hands or the glass on his person—
evidence that would surely give rise to probable cause in this instance—until after
they had already unholstered their guns and started the process of handcuffing
Defendant. In contrast, when the officers had initially made the decision to handcuff
Defendant and began doing so, they had known only that he matched a general
description of the unidentified burglar and that he was in close proximity in time and
place to the burglary. While these facts undoubtedly would have made the officers
reasonably suspect Defendant was the burglar, in this particular instance they were
insufficient to give rise to probable cause. Thus, when the officers employed forceful
techniques in an effort to detain Defendant by brandishing their firearms and
1
Because we reverse on this ground alone, we have no need to address
Defendant’s first argument—that is, whether the officers violated Defendant’s Fourth
Amendment rights when they stepped onto the front porch to seize him without his
consent, a warrant, or probable cause coupled with exigent circumstances.
5
handcuffing him, they transformed what otherwise could have been a lawful
investigatory Terry stop into an unconstitutional arrest unsupported by probable
cause.
The government takes issue with our conclusion that Defendant’s matching
description to the unidentified burglar and close proximity to the location of the
crime do not amount to probable cause. But the two binding cases the government
cites in support of its contention that a person’s matching description to a suspect can
give rise to probable cause are distinguishable on the basis that those descriptions
were much more specific and detailed than the one in Defendant’s case. For
instance, in the first case, Chambers v. Maroney, 399 U.S. 42 (1970), the Supreme
Court held that officers had probable cause to arrest defendants when the officers
knew that the perpetrators of an armed robbery were driving a blue compact station
wagon, that four people were in the station wagon, that one of the station wagon’s
occupants was wearing a green shirt, and that another of the station wagon’s
occupants was wearing a trenchcoat. Id. at 44–47. And in the second case, United
States v. Miller, 532 F.2d 1335 (10th Cir. 1976), we held that that officers had
probable cause to arrest defendants when the officers knew that the unidentified
perpetrators of a bank robbery were driving a black over gold or tan Cadillac, that the
Cadillac’s license plate had the number YJ 8016, and that the two perpetrators were
wearing distinct or unusual items of clothing (such as a wide-brimmed black hat with
a white ring around the brim). Id. at 1336–38.
6
Compared to the generic description in Defendant’s case, Chambers and Miller
clearly involved descriptions that, from a purely statistical perspective, had a much
higher probability of positively identifying the perpetrators. In Chambers, for
example, the chances the officers would have discovered two individual blue compact
station wagons in the vicinity carrying four people, two of whom were wearing a
green shirt and a trenchcoat, would have been substantially unlikely. And in Miller
there quite literally would have been only one car with the described license plate
number. In Defendant’s case, by contrast, the chances of the officers discovering
multiple adult Spanish or Latino males wearing grey shirts and baseball caps in a
nearby area was not nearly as unlikely. And since “[p]robable cause is established
where ‘a substantial probability existed that the suspect committed the crime,’”
Storey v. Taylor, 696 F.3d 987, 992 (10th Cir. 2012) (emphasis added) (quoting
Kerns v. Bader, 663 F.3d 1173, 1188 (10th Cir. 2011)), we simply cannot see how,
under the totality of the circumstances of this specific case, the officers could have
reasonably concluded Defendant satisfied this standard based on the simple fact that
he matched a rather generic description of the suspect and was found in close
proximity to the crime.2 Granted, these circumstances would have undoubtedly
alerted the officers that Defendant may have been the burglar. But this would have
given them only reasonable suspicion to investigate Defendant further, not the
2
Although we give it very little weight, the fact that Officer Demsich failed to
notice Defendant might be the burglar when he first encountered him bolsters our
conclusion that Defendant’s appearance was generic enough to not give rise to
probable cause.
7
requisite probable cause needed to arrest him. See Oliver v. Woods, 209 F.3d 1179,
1186 (10th Cir. 2000).
Even so, the government also takes issue with our conclusion that the officers’
brandishing of their firearms and handcuffing of Defendant amounted to an arrest.
The government claims that even if Officers Melvin and Demsich possessed only
reasonable suspicion at that time, their forceful techniques were reasonable,
precautionary corollaries of an investigatory Terry stop of an individual who may
have been a potentially violent burglar. This is admittedly a closer question, but we
remain unconvinced.
While “the use of firearms, handcuffs, and other forceful techniques does not
necessarily transform a Terry detention into a full custodial arrest,” United States v.
Melendez-Garcia, 28 F.3d 1046, 1052 (10th Cir. 1994) (emphasis added), “we have
said such techniques generally exceed the scope of an investigative detention,”
Morris v. Noe, 672 F.3d 1185, 1192 (10th Cir. 2012) (emphasis in original) (internal
quotation marks omitted). For a court to hold otherwise the government must show
the officers’ forceful techniques were “reasonably necessary to protect their personal
safety and to maintain the status quo during the course of the stop.” United States v.
Mosley, 743 F.3d 1317, 1329 (10th Cir. 2014) (internal quotation marks omitted).
This inquiry is necessarily “fact-sensitive . . . and depends on the totality of the
circumstances in a given case.” United States v. Salas-Garcia, 698 F.3d 1242, 1249
(10th Cir. 2012) (internal quotation marks omitted). That said, “[i]n weighing the
officers’ actions, we . . . give allowance for the fact that police officers are often
8
forced to make split-second judgments—in circumstances that are tense, uncertain,
and rapidly evolving—about the amount of force that is necessary in a particular
situation.” United States v. Hood, 774 F.3d 638, 643 (10th Cir. 2014) (internal
quotation marks omitted), overruling on other grounds recognized by United States v.
Titties, — F.3d —, No. 15-6236, 2017 WL 1102867 (10th Cir. Mar. 24, 2017).
As the district court aptly recognized, in the cases where we have upheld
officers’ brandishing of firearms and use of handcuffs during an investigatory Terry
stop, the officers generally either knew or had reason to believe the suspects were
armed, or they had personally witnessed the suspects acting violently. See, e.g.,
United States v. Paetsch, 782 F.3d 1162, 1175 (10th Cir. 2015); United States v.
Shareef, 100 F.3d 1491, 1502, 1506 (10th Cir. 1996); United States v. Merkley, 988
F.2d 1062, 1064 (10th Cir. 1993). In contrast, when the officers had no reason to
believe the suspects were or could be armed and the suspects were otherwise calm
and compliant, we have generally concluded that the officers’ conduct amounted to
an arrest. See, e.g., Maresca v. Bernalillo Cnty., 804 F.3d 1301, 1309–1310 (10th
Cir. 2015); Lundstrom v. Romero, 616 F.3d 1108, 1123 (10th Cir. 2010); Melendez-
Garcia, 28 F.3d at 1052–53.
Defendant’s case provides an interesting middle-ground. On one hand,
although the officers had no information suggesting the unidentified burglar was
armed, they did know the burglar could potentially be violent because he had thrown
a rock through the sliding glass door and followed the women to the bedroom. On
the other hand, when the officers encountered Defendant—a man who undoubtedly
9
bore a generic resemblance to the unidentified burglar—he was completely calm and
obeyed their commands on multiple occasions. What should govern: Defendant’s
calm and submissive demeanor, or that he potentially may have been a violent
burglar?
In the particular circumstances of this case we believe that Defendant’s calm
and submissive demeanor takes precedence and that Officers Melvin and Demsich
were too impulsive. For one thing, Defendant obeyed Officer Demsich’s command
to return to the building from which he came when the two first crossed paths without
any resistance or objection. Thus, when the two officers encountered Defendant for a
second time later on, they were aware (or at least should have been aware) that
Defendant would likely obey their commands without the need for forceful
techniques.
But more importantly, even if we assume that the officers did not transform
their investigatory Terry stop into an arrest by brandishing their firearms and
ordering Defendant to put his hands on his head, their quick use of handcuffs on
Defendant after he willingly obeyed that order went too far. Of note, the officers did
not first approach Defendant and pat him down while his hands were over his head,
which would have been a much less intrusive invasion of Defendant’s person.
Granted, from a legal standpoint that may have been a wise decision: pat-down
searches during investigatory stops require officers to have “reasonable suspicion that
a person is armed and dangerous,” and the officers here had no information
suggesting Defendant was armed. United States v. Fager, 811 F.3d 381, 385 (10th
10
Cir. 2016) (internal quotation marks omitted). But see id. at 387 (“[A]n officer’s
suspicion that an individual is dangerous can affect that officer’s suspicion that an
individual is armed.” (internal quotation marks omitted)). We nonetheless mention
this omission to highlight how ludicrous it would be in this instance for us to
conclude that the officers had the authority to handcuff Defendant but did not have
the authority to pat him down. On the other hand, if the officers did in fact have the
authority to pat Defendant down—a question we have no reason to definitively
answer today—it begs the question why the officers chose to bypass the less intrusive
method of patting Defendant down in favor of using the more intrusive method of
handcuffing him. Perhaps even more surprising is that the officers used the
handcuffs without even “undertak[ing] the most rudimentary investigation” and
questioning Defendant about any connection he may have had to the burglary.
Lundstrom, 616 F.3d at 1123.
Of course, the most obvious retort would be that the officers had to make a
quick decision on how to proceed and that we should not second-guess from the
safety of the courtroom their ultimate choice to use handcuffs. Although we are
sensitive to the difficult and rapid choices police officers must necessarily make
when they encounter potential criminals, we do not believe such deference justifies
the officers’ decision to handcuff Defendant in this instance. Defendant had obeyed
their directions on at least two separate instances by that point and had made no
threatening gestures or suspicious movements, the officers outnumbered Defendant
two-to-one, and no other people were in the near vicinity that the officers had to be
11
concerned about protecting. As such, the officers would have had no reason to
believe that the circumstances surrounding Defendant himself warranted the use of
handcuffs. Defendant’s actions—most notably putting his hands on his head while
the officers brandished their firearms—dispelled any need for further invasive force.
Consequently, handcuffing Defendant was not reasonably necessary to protect
the officers’ personal safety and to maintain the status quo during the course of the
stop. As a result, the officers unlawfully arrested Defendant in the absence of
probable cause when they began to handcuff him, and the evidence collected by the
officers after that point—the blood and glass on his person; his statement that he
broke into the condominium because he “heard something”; and the flashlight,
syringe, knife, and loaded firearm found pursuant to the searches of his body—must
be suppressed.3
3
To the extent any of the evidence is fruit of the poisonous tree, we conclude
that (1) Defendant has established the requisite factual nexus between his unlawful
seizure and the challenged evidence, and (2) the government has waived any
argument to the contrary that the evidence is not fruit of the poisonous tree. See
United States v. Olivares-Rangel, 458 F.3d 1104, 1108–09 (10th Cir. 2006).
12
*
We REVERSE the district court’s denial of Defendant’s motion to suppress
and REMAND for further proceedings not inconsistent with this opinion.4
Entered for the Court
Bobby R. Baldock
Circuit Judge
4
We take a quick moment to commend counsel for the government and
Defendant on the excellent advocacy they both offered in their briefs and at oral
argument. Likewise, although we reverse the district court, we praise it for the
outstanding and meticulous opinion it drafted in this case. We notice when parties
and district courts alike put substantial effort into a case and believe such efforts are
worthy of remark.
13