Appellate Case: 20-3238 Document: 010110644049 Date Filed: 02/11/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 11, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-3238
(D.C. No. 6:19-CR-10102-EFM-1)
MATTHEW ALEXANDER, III, (D. Kan.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, BACHARACH, and EID, Circuit Judges.
_________________________________
Defendant Matthew Alexander III was stopped by police officers after
belatedly signaling a turn. During the traffic stop an officer conducted a protective
sweep of Defendant’s vehicle and discovered synthetic marijuana. He was arrested
and a search incident to that arrest led to the discovery of a firearm. After the
government charged Defendant with being a felon in possession of a firearm, he
moved to suppress statements he made to the police and the physical evidence found
in his vehicle and on his person on the ground that they were obtained as fruits of a
vehicle search that violated the Fourth Amendment. The United States District Court
*
This order and judgment is not binding precedent, except under the doctrines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.
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for the District of Kansas denied the motion to suppress. Defendant appeals that
decision and the 78-month sentence on his plea of guilty. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm the district court’s denial of the motion to
suppress but reverse and remand to correct an admitted error in sentencing.
I. BACKGROUND
Officers Jared Henry and Jamie Thompson of the Wichita Police Department
were on patrol about noon on June 13, 2019. The two officers, each with at least a
decade of experience as police officers, were both assigned to the Violent Crime
Community Response Team, whose “primary responsibilities [were] to respond to
violent crime situations and address neighborhood complaints and violent offenders
in the city.” R., Vol. 1 at 78. They were traveling eastbound when Officer Henry
spotted a gray Pontiac traveling westbound being driven by someone who he thought
looked familiar. Officer Henry made a U-turn to follow the vehicle and determine the
registered owner. Shortly thereafter, the driver turned on the left-turn signal as if to
indicate a lane change, but then switched to the right-turn signal before abruptly
turning into the parking lot of a Hardee’s restaurant. The signal was activated
only 20 feet before the turn, contrary to Kansas law, which requires continuous
signaling for at least 100 feet, see Kan. Stat. Ann. § 8-1548(b). After entering the
parking lot the vehicle drove around the building and “seemed to somewhat
accelerate as it rounded a curve, . . . making [Officer Henry] believe that the vehicle
was going to take off.” R., Vol. 1 at 81–82. Officer Henry then activated his
emergency lights and siren, and the vehicle stopped.
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Officer Henry asked Defendant, the sole occupant of the vehicle, to step out
and then performed a pat-down search. While performing the pat-down search,
Officer Henry relayed to Officer Thompson “that [he] knew it was Matt Alexander,”
and Officer Thompson “immediately went to the vehicle to conduct a sweep for
weapons.” Id. at 87. She testified that the mere fact that Officer Henry removed
Defendant from the vehicle indicated that he did “not want that driver to be near that
car.” Id. at 140–41. Officer Henry finished patting down Defendant and having
discovered no weapons he directed Defendant to sit on the curb, about six to ten feet
from Defendant’s vehicle.
Meanwhile, Officer Thompson conducted a sweep of the vehicle for weapons.
As part of this sweep she opened the center console of the vehicle and found what
she initially thought was marijuana, but later learned was K2, synthetic marijuana.
After discovering this substance, Officer Thompson indicated to Officer Henry that
he should arrest Defendant and he placed Defendant in handcuffs. Officer Henry later
“noticed a bulge in between [Defendant’s] legs near his crotch,” Id. at 90, which
prompted him to conduct a search incident to arrest. He discovered a handgun in
Defendant’s pants pocket, after which he placed Defendant in his patrol car and read
him his Miranda rights.
Defendant was indicted in Kansas federal court on one count of being a
prohibited person in possession of a firearm. He moved to suppress the handgun
discovered in his pocket, the synthetic marijuana found in the center console, and
statements he made after being read his Miranda rights. He argued that the physical
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evidence and his statements should be suppressed as the fruits of an unlawful
protective sweep of his vehicle.
At the suppression hearing Officer Henry testified to the facts and
circumstances that made him suspect that Defendant might be carrying a firearm.1
For one, Defendant pulled his vehicle into the first-available parking lot after the
officers started following him and appeared to accelerate through a turn in the
Hardee’s parking lot, leading Officer Henry to worry that the vehicle might take off.
According to Officer Henry, these actions were consistent with nervous, evasive
behavior.
Also, over the years Officer Henry had several noteworthy encounters with
Defendant. In 2010 Officer Henry used a Taser to detain Defendant after he fled from
a traffic stop. Officer Henry also testified that Defendant fled from him during a
traffic stop in 2012. In 2016, while Officer Henry was off duty, Defendant told him
that the cast on his arm was from “punching a glass window after he had drank too
1
In upholding Officer Thompson’s protective search of Defendant’s vehicle
and denying the motion to suppress, the district court relied on Officer Henry’s
knowledge and experience with Defendant. Defendant originally argued in this
appeal that the district court erred by “rel[ying] exclusively on Officer Henry’s
uncommunicated knowledge to justify Officer Thompson’s search,” Aplt. Br. at 28,
claiming that the collective-knowledge doctrine did not apply here. But before the
district court, Defendant did not specifically argue that Officer Thompson lacked
reasonable suspicion to perform a protective search of his vehicle. Defendant
concedes in his reply brief that, having failed to “make an officer-specific argument
below,” his collective-knowledge argument is waived and that he cannot show “good
cause” under Federal Rule of Criminal Procedure 12(c)(3) for this court to consider
his untimely claim. Aplt. Reply Br. at 1. Given Defendant’s concession, we consider
what Officer Henry knew in assessing whether there was reasonable suspicion to
perform a protective search of the vehicle.
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much.” R., Vol. 1 at 84. To Officer Henry’s knowledge, Defendant was not carrying
a firearm during these incidents. Then, in 2017, Officer Henry personally conducted
surveillance on Defendant because he was identified as a potential suspect in a
homicide. During this investigation Officer Henry saw Defendant enter a home
believed to be involved in the homicide while holding “an item approximately the
size of a football.” Id. at 115–16. After Defendant left, police officers entered the
home and talked with a man inside who said that Defendant brought a towel in:
“Inside that towel was a firearm consistent with the item [Officer Henry] observed
[Defendant] holding size-wise.” Id. at 116.
In addition, at the time of the traffic stop in this case, Officer Henry knew that
Defendant had twice been convicted of being a felon in possession of a firearm. On
one of those occasions he had discharged a firearm into an occupied dwelling. He
also knew that Defendant had been convicted of aggravated battery, though he did
not know whether that conviction involved a weapon.
Finally, Officer Henry was aware that Defendant was included in a law-
enforcement database as a gang member. In Officer Henry’s experience, gang
members are likely to carry firearms.
The district court denied Defendant’s motion to suppress, ruling that the initial
traffic stop was lawful and the officers’ warrantless search of Defendant’s vehicle
was justified as a protective sweep under Michigan v. Long, 463 U.S. 1032 (1983).
Defendant entered a conditional plea of guilty to the charge of possession of a
firearm by a prohibited person, see 18 U.S.C. § 922(g)(1), reserving his right to
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appeal the denial of his motion to suppress. He now appeals from that denial,
challenging only the lawfulness of the protective search and the sentencing-
guidelines calculation.
II. DISCUSSION
A. Motion to Suppress
“In reviewing the denial of a motion to suppress, we accept the district court’s
factual findings unless clearly erroneous.” United States v. Hammond, 890 F.3d 901,
905 (10th Cir. 2018). Ultimately, however, “as a general matter determinations of
reasonable suspicion and probable cause should be reviewed de novo on appeal.”
Ornelas v. United States, 517 U.S. 690, 699 (1996).
“[T]he search of the passenger compartment of an automobile, limited to those
areas in which a weapon may be placed or hidden, is permissible if the police officer
possesses a reasonable belief based on specific and articulable facts which, taken
together with the rational inferences from those facts, reasonably warrant the officer
in believing that [1] the suspect is dangerous and [2] the suspect may gain immediate
control of weapons.” Long, 463 U.S. at 1049 (internal quotation marks omitted;
bracketed numerals added). Defendant argues that the district court erred in finding
that both requirements—dangerousness and the prospect of immediate access to
weapons—for a Long protective search were satisfied.
We begin with the dangerousness requirement. Defendant asserts that a district
court cannot make a finding of dangerousness based solely on the suspect’s criminal
history yet the district court did precisely that in this case. Although he acknowledges
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that at the suppression hearing the government presented evidence of his
dangerousness other than what is recited in the court’s order, he contends that the
district court implicitly rejected that evidence because it was not mentioned in the
court’s order denying the motion to suppress.
The district court’s order states in the paragraph on dangerousness:
Although the officers searched [Defendant’s] vehicle without a
warrant, the Court concludes that the protective sweep exception
applies. Considering the totality of the circumstances, the officers had a
reasonable and articulable suspicion that [Defendant] was dangerous
and could potentially gain access to a weapon in the car. Henry knew
that [Defendant] was a convicted felon who had a record of unlawfully
possessing firearms. Henry also knew that [Defendant] had been violent
in the past. These facts supported the officers’ reasonable suspicion that
[Defendant] was potentially dangerous.
R., Vol. 1 at 50. The paragraph is brief. It mentions only some of the evidence of
dangerousness. But there is nothing to suggest that it rejected the other evidence.
Indeed, that would have been remarkable since that evidence was internally
consistent and uncontradicted, and Defendant had not raised any challenge to its
truth. We recognize that “[w]hen factual issues are involved in deciding a motion, the
court must state its essential findings on the record.” Fed. R. Crim. P. 12(d). But the
purpose of that provision is to make sure that the district court addresses factual
disputes (that is, issues) that must be resolved for there to be meaningful appellate
review. See United States v. Torres, 987 F.3d 893, 898 (10th Cir. 2021) (“A finding
is essential if it is required for meaningful review.”); see also United States v. Beck,
140 F.3d 1129, 1131 (8th Cir. 1998) (“[B]ecause the relevant facts in this case are
undisputed, we need not remand for further findings and may rule based on the
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record currently before us.”); United States v. Koshnevis, 979 F.2d 691, 694–95 (9th
Cir. 1992) (“Although the factual findings made by the district court were not
extensive, the evidence was not in conflict. . . . By denying the motion to dismiss, it
is evident that the district court agreed with the testimony of [the sole witness]. The
factual findings by the district court therefore satisfy the requirements of [Rule]
12.”). It is not the purpose of the provision to set a trap for district courts, requiring
reversal of their decisions for failure to recite all the undisputed facts. District judges
are busy enough without imposing that requirement. Cf. Ornelas, 517 U.S. at 700
(“The background facts, though rarely the subject of explicit findings [in an order
resolving a motion to suppress], inform the judge’s assessment of the historical
facts.”). When the district court ruled that “the totality of the circumstances”
supported a finding of reasonable suspicion of dangerousness, R., Vol. 1 at 50, we
can fairly infer that the circumstances considered included the uncontradicted and
unchallenged evidence presented at the hearing.
Defendant argues in the alternative that the officers lacked reasonable
suspicion of dangerousness even if we consider those facts not explicitly mentioned
in the district court’s order. He relies on statements by this court stating that
reasonable suspicion of dangerousness cannot be based solely on the suspect’s
criminal history. See United States v. Rice, 483 F.3d 1079, 1085 (10th Cir. 2007) (“a
criminal record, standing alone, is not sufficient to create reasonable suspicion of
anything”); Hammond, 890 F.3d at 906 (“Standing alone, a criminal record—let
alone arrests or suspected gang affiliation—is not sufficient to create reasonable
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suspicion of anything.” (internal quotation marks omitted)); Torres, 987 F.3d at 904
(“As [defendant] argues, reasonable suspicion does not arise solely from his criminal
record or gang affiliation.”).2
Here, however, there is substantial evidence beyond Defendant’s criminal
history. To begin with, his response to being followed by a police vehicle strongly
suggested concern about having an interaction with officers. He abruptly turned into
the first available driveway, after (presumably because of agitation) incorrectly
signaling that he would be turning in the other direction; and once in the Hardee’s
2
It should be noted that each of the statements was dictum—we held that there
was reasonable suspicion of dangerousness in each case. Also, the reason criminal
history alone does not suffice to establish reasonable suspicion is not because
criminal history is not probative. On the contrary, a history of violence is generally
considered very probative, and is often used in the criminal-justice system, such as to
deny pretrial release and to impose a harsher sentence. The reason not to rely on
criminal history alone has been policy. As stated in Hammond, “‘[I]f the law were
otherwise, any person with any sort of criminal record—or even worse, a person with
arrests but no convictions—could be subjected to a Terry-type investigative stop by a
law enforcement officer at any time.’” 890 F.3d at 907 (quoting United States v.
Sandoval, 29 F.3d 537, 543 (10th Cir. 1994)); see also United States v. Laughrin, 438
F.3d 1245, 1247 (10th Cir. 2006) (recognizing the “basic precept that law-
enforcement officers not disturb a free person’s liberty solely because of a criminal
record”). It is therefore important to examine the implications of each application of
the policy. Our dicta in the reasonable-suspicion-of-dangerousness cases have rested
on the assumption that the assessment of reasonable suspicion should be the same in
that context as when determining reasonable suspicion to initiate an investigative
stop. But that assumption is not obviously correct. A leading search-and-seizure
treatise has indicated that because “a certain level of risk of death or serious bodily
harm is less tolerable than an equivalent risk of undetected criminality, . . . in a stop-
and-frisk situation the likelihood the detainee is armed and dangerous need not reach
the level which would be required if the question instead were whether there would
be grounds to stop that individual on suspicion he is committing the offense of
carrying a concealed weapon.” 4 Wayne R. LaFave, Search & Seizure § 9.6(a), at 906
(6th ed. 2020). We leave further analysis of the issue for another day. In this case we
need not challenge our prior dicta. (Judge Bacharach does not join this footnote.)
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parking lot, he appeared to accelerate to leave the parking lot until Officer Henry
activated his siren and emergency lights. The officers could reasonably believe that
Defendant was worried about more than just getting a traffic citation. Given his prior
felony convictions, including a conviction for possession of a firearm by a convicted
felon, an obvious cause for such worry would be that he had a firearm with him.
Moreover, Officer Henry knew of Defendant’s volatile temper because of the prior
occasion when Defendant had told him about badly cutting himself by smashing a
window with his hand. Put this together with Defendant’s gang membership and
Officer Henry’s personal observations linking Defendant to a potential murder
weapon two years earlier, as well as his criminal record of convictions, and one can
conclude only that the concern with Defendant’s dangerousness was reasonable.
We now turn to consider whether Long’s second requirement—that the officers
reasonably suspected that Defendant could “gain immediate control of weapons” in
the vehicle—was satisfied. The Supreme Court in Long identified three
circumstances in which that could happen: (1) the suspect could “break away from
police control and retrieve a weapon from his automobile”; (2) “if the suspect is not
placed under arrest, he will be permitted to reenter his automobile, and he will then
have access to any weapons inside”; and (3) “the suspect may be permitted to reenter
the vehicle before the . . . investigation is over, and again, may have access to
weapons.” 463 U.S. at 1051–52. When, as here, there are no disputed historical facts,
determining whether the risk of access is sufficient to justify the protective search is
a matter of law, which we review de novo. See Ornelas, 517 U.S. at 695–99; see also
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United States v. Arvizu, 534 U.S. 266, 275 (2002) (observing that in Ornelas the
Court “reasoned that de novo review [of a ruling on reasonable suspicion] would
prevent the affirmance of opposite decisions on identical facts from different judicial
districts in the same circuit”).
We address only the first and third possibilities, determining that each could
justify the protective search. Regarding the risk that Defendant could break away and
retrieve a gun from the vehicle, that risk is certainly diminished by his being seated
on the curb 10 feet from the vehicle while being outnumbered by two police officers.
Nevertheless, this court has held that there was sufficient risk in circumstances where
the opportunity to break free was certainly less than here. In particular, in United
States v. Dennison, 410 F.3d 1203, 1206, 1213 (10th Cir. 2005), we held that there
was a sufficient risk that the handcuffed defendant would gain access to a weapon,
even though he was standing near the rear of the truck next to an officer when
another officer conducted a protective search of the truck. See also United States v.
Palmer, 360 F.3d 1243, 1247–48 (10th Cir. 2004) (defendant was seated in patrol car
while one of two officers on the scene conducted a protective search of Defendant’s
car).
As for the third possibility, Defendant makes two arguments. First, he
contends that recognition of the possibility that the suspect will be released after the
investigation essentially permits a protective search whenever there is reasonable
suspicion of dangerousness. But that is an argument for him to pursue with the
Supreme Court. We are not at liberty to ignore what that Court said in Long. Second,
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he argues that we should not consider this risk in this case because at the time of the
protective search there was insufficient evidence for the officers to know whether
they might release him after the detention for the traffic violation. He observes that
the protective search was conducted before Officer Henry had checked whether
Defendant had an outstanding warrant that would have required the officers to arrest
him (and not release him after completing their investigation). What Defendant
overlooks, however, is that intrusions by police officers need not be predicated on
certainties. The officers had reason to believe that Defendant would not be detained
after the investigation. There was a possibility that he had an outstanding warrant
against him, just as there was a possibility that the investigation at the scene would
lead to his arrest; but even if those possibilities were more likely than his ultimate
release, there would still be sufficient reason to believe (when the protective search
was conducted) that he would ultimately be released. See United States v. Vaccaro,
915 F.3d 431, 437–38 (7th Cir. 2019) (Barrett, J.) (Long’s second prong was satisfied
since defendant conceded that he had not been arrested at time of the vehicle search
and he would have been permitted to return to his vehicle if the officers had found no
contraband).
For the reasons stated above, the officers had the reasonable suspicion
necessary to conduct a protective search of the vehicle under Long.
B. Sentencing
Defendant contends that the district court erred in calculating his guideline
sentencing range by treating his prior Kansas state conviction for reckless aggravated
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battery as a “crime of violence” under USSG § 4B1.2(a)(1). See United States v. Ash,
7 F.4th 962, 963 (10th Cir. 2021). Although Defendant did not preserve this issue in
the district court, the government concedes that he is entitled to relief on plain-error
review. We agree with the concession and remand to the district court for
resentencing.
III. CONCLUSION
We AFFIRM the district court’s denial of Defendant’s motion to suppress but
REVERSE the sentence imposed by the district court and REMAND for
resentencing in accordance with this order.
Entered for the Court
Harris L Hartz
Circuit Judge
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