FILED
United States Court of Appeals
Tenth Circuit
March 17, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 06-2329
MARCOS SANCHEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CR-04-1685 JB)
Laura Fashing, Assistant United States Attorney (Larry Gomez, United States
Attorney) Albuquerque, New Mexico, for Plaintiff - Appellee.
Joseph Gandert, Assistant Federal Public Defender (Stephen P. McCue, Federal
Public Defender, and Roger A. Finzel, Assistant Federal Public Defender, on the
briefs) Albuquerque, New Mexico, for Defendant - Appellant.
Before MURPHY, EBEL and O’BRIEN, Circuit Judges.
O’BRIEN, Circuit Judge.
The district court refused to suppress evidence against Marcos Sanchez. He
contends police officers did not have reasonable suspicion of criminal activity so
as to justify an investigatory stop of the vehicle in which he was riding. Further,
he contends even if the stop was justified at its inception, the officers exceeded
the scope of the stop by frisking him for weapons. We examine the use of
statements and verbal acts of unidentified, but identifiable tipsters in contributing
to the officers’ suspicion of criminal activity. We also consider the circumstances
which might justify a pat-down search incident to an investigatory stop. We
affirm.
I. BACKGROUND
At approximately 2:30 p.m. on July 25, 2004, Albuquerque Police Officers
Jaramillo and Lopez were standing outside their respective patrol cars when they
were flagged down by an unknown woman driving a white van. The woman was
very excited and told them she had seen a man wearing a gray shirt striking a
woman in the face at a nearby intersection. The woman provided no other details
and the police did not question her further. 1
The officers immediately drove toward the described intersection,
approximately one block away. The officers did not see a man hitting a woman;
they did, however, see a blue sedan and a white van pulling away quickly from a
1
We do not fault the officers’ choice to forgo extensive credibility
checking in order to quickly respond. “[T]he business of policemen and firemen
is to act, not speculate or meditate on whether the report is correct. People could
well die in emergencies if police tried to act with the calm deliberation associated
with the judicial process.” Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir.
1963) (emphasis added).
-2-
single-family home. Officer Lopez, testifying at the suppression hearing, said “it
appeared to me as if [the vehicles] were trying to get out of this quickly, you
know, like they were in a little bit of a hurry to get out of there . . . .” (R. Vol. III
at 37.) Officer Jaramillo likewise testified: “It just seemed like [the vehicles]
were leaving the area . . . in a nonprudent manner. . . they were moving quickly.”
(Id. at 72.)
The officers also saw a number of individuals, later determined to be
neighbors, pointing to the two vehicles as if to say “that’s them.” (Id. at 8.)
Officer Lopez testified “it didn’t feel like a coincidence” that the neighbors were
pointing at two vehicles located near the intersection right after the officers had
been alerted to a potential assault and battery in that area. (Id. at 31.) He “felt
[the pointing] had to do with this male beating up the female.” (Id.)
Officer Lopez stopped the van in the driveway and Officer Jaramillo
stopped the sedan on the street, approximately ten yards away, out of concern the
victim and/or suspect was in one of the vehicles. Lopez asked the driver and sole
occupant of the van, James Wicker, to step out of the vehicle. Lopez asked
Wicker if he was armed, to which Wicker responded he had a handgun in his front
pocket. Lopez handcuffed Wicker and removed a .25 caliber handgun (described
as approximately two inches long). 2 Lopez alerted Jaramillo to the presence of
2
Perhaps the barrel was two inches long. In any event, the gun was small
and easily concealable.
-3-
the gun.
At this point Officer Hinson arrived. Officers Jaramillo and Hinson
ordered the three occupants out of the sedan and placed them in handcuffs.
Because Wicker was armed, Jaramillo performed a pat down search of the three
for officer safety reasons. Jaramillo located an empty gun holster in the
waistband of the backseat passenger, later identified as Sanchez, who was
wearing a gray shirt. Because Wicker had produced a concealed firearm,
Jaramillo and Hinson asked the occupants of the sedan to remove their shoes in
order to check for hidden weapons. Hinson located a small bag containing a
white substance, later identified as methamphetamine, in the driver’s shoe. After
discovering the narcotics, Jaramillo asked the driver for consent to search the
sedan. The driver gave oral and written consent to search.
The search revealed a .22 caliber pistol located underneath the driver’s
seat, but closer to the reach of a person in the backseat, where Sanchez had been
sitting. Jaramillo testified the firearm fit perfectly into the holster found on
Sanchez. After locating the gun, Jaramillo went to talk to the neighbors while
Lopez and Hinson remained with the four individuals. While Jaramillo was
speaking with the neighbors, Sanchez said, “Fucking neighbors!” (R. Vol. III at
15.) Lopez informed Sanchez the detention had nothing to do with the neighbors,
but was based on a report of an assault from a passer-by. Sanchez said: “Yeah . .
. I did get in an argument with my girlfriend. We had a verbal argument. There
-4-
was nothing physical, you know. I didn’t hit her.” (Id. at 15-16.) He added: “I
have no reason to lie to you. I’m a convicted felon. I’ve done time. I’m retired.”
(Id. at 17.) Based on the discovery of the firearm and Sanchez’s statement,
Jaramillo arrested Sanchez for being a felon in possession of a firearm and
transported him to the police station where records confirmed his felony status.
Sanchez was indicted on one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He moved to
suppress all evidence seized from the vehicle and all statements he made,
contending the police lacked justification for the initial stop and exceeded the
scope of the stop by frisking him for weapons. The court held a hearing at which
Officers Jaramillo and Lopez testified. The court found their testimony to be
credible and denied Sanchez’s motion to suppress. Sanchez then pled guilty,
reserving his right to appeal from the denial of his motion to suppress. He was
sentenced to the mandatory minimum of 180 months imprisonment. He now
challenges the denial of his motion to suppress.
II. DISCUSSION
“When reviewing a district court decision on suppression of evidence, we
must accept the court’s findings of fact unless, viewing the evidence in the light
most favorable to the court’s findings, we conclude the findings were clearly
erroneous. Evaluation of the credibility of witnesses, the weight to be given the
evidence, and inferences to be drawn from the evidence are for the district court.
-5-
However, the ultimate determination of whether a search and seizure were
reasonable under the Fourth Amendment is subject to de novo review.” United
States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996).
A traffic stop is an investigatory detention which we analyze according to
the principles set forth in Terry v. Ohio, 392 U.S. 1 (1968). United States v.
Leos-Quijada, 107 F.3d 786, 792 (10th Cir. 1997). “Terry sets up a two-prong
test of the reasonableness of investigatory detentions and weapons searches.
First, we must decide whether the detention was justified at its inception. . . .
Second, the officer’s actions must be reasonably related in scope to the
circumstances which justified the interference in the first place. At both stages,
the reasonableness of the officer’s suspicions is judged by an objective standard
taking the totality of the circumstances and information available to the officers
into account.” United States v. Johnson, 364 F.3d 1185, 1189 (10th Cir. 2004)
(quotations and citations omitted).
A. Initial Justification for the Stop
“In order to conduct a lawful investigatory stop of a vehicle, the detaining
officers must have, based on all the circumstances, ‘a particularized and objective
basis for suspecting the particular person stopped of criminal activity.’” Leos-
Quijada, 107 F.3d at 792 (quoting United States v. Cortez, 449 U.S. 411, 417-18
(1981)). The district court concluded the officers had reasonable suspicion of
criminal activity based on the woman’s tip, the pointing neighbors, and the
-6-
apparent urgency exhibited by the departing vehicles. 3 Sanchez contends the
officers lacked reasonable suspicion because the anonymous nature of the
witnesses made their tips unreliable.
We first consider the woman’s tip. In Johnson, we identified two reasons
“why anonymous tips trouble the courts and sometimes lead to the suppression of
otherwise reliable evidence.” 364 F.3d at 1190. “The first concern relates to the
motives of the tipster . . . . This is why the Supreme Court . . . has required that
anonymous tips be accompanied by corroboration and other indicia of reliability.”
Id. at 1190-91 (quotations and citation omitted). “A second concern relates not to
a tip’s anonymity but to its level of specificity. Overly generic tips, even if made
in good faith, could give police excessive discretion to stop and search large
numbers of citizens.” Id. at 1191. Here, these concerns are mitigated by the
circumstances surrounding the tip.
The woman’s motive was less suspect than the typical anonymous tipster
because she was seeking help for a victim. In United States v. Brown, we
“consider[ed] it important that the caller’s primary motive in contacting 911 . . .
was not to implicate the armed man but to obtain aid and protection for his
friend.” 496 F.3d 2070, 1077 (10th Cir. 2007). We noted the “call is more
3
Officers Lopez and Jaramillo had two distinct purposes for the stop –
they were looking not only for a possible assailant (a man beating a woman), but
also for a possible victim (the woman being beat). While our analysis focuses on
the assailant, the possible presence of the victim cannot be ignored.
-7-
analogous to a plea for help from a victim than to an informant’s tip.” Id.; see
also Adams v. Williams, 407 U.S. 143, 147 (1972) (recognizing the greater weight
carried by a witness’s recent report, such as “when the victim of a street crime
seeks immediate police aid and gives a description of the assailant”).
Moreover, the woman reported the assault to the police in a face-to-face
encounter, thus putting her anonymity at risk, at least to a limited degree, and
allowing the police an opportunity to evaluate her credibility and demeanor. We
stated in Brown that “a[n] unnamed individual who divulges enough
distinguishing characteristics to limit his possible identity to only a handful of
people may be nameless, but he is capable of being identified and thus is not
anonymous.” 496 F.3d at 1075. So it is with this woman tipster; she and/or her
vehicle could have been identified by the police at the time she made her
statement, as would have been obvious to her. Thus, her tip bears an indicium of
reliability because she would have known she could be held liable for providing
the police with false information. See United States v. Jenkins, 313 F.3d 549, 554
(10th Cir. 2002) (“A reasonable person . . . would realize that in all likelihood the
police could, if they so chose, determine the person’s identity, and could hold him
responsible if his allegations turned out to be fabricated.”). That the police
understandably did not take the time to obtain her personal information does not
mean she was anonymous.
Many cases have recognized the difference between in-person informants
-8-
and anonymous calls. See, e.g., Florida v. J.L., 529 U.S. 266, 276 (2000)
(Kennedy, J., concurring) (“An instance where a tip might be considered
anonymous but nevertheless sufficiently reliable to justify a proportionate police
response may be when an unnamed person driving a car the police officer later
describes stops for a moment and, face to face, informs the police that criminal
activity is occurring.”); Davis v. United States, 759 A.2d 665 (D.C. Cir. 2000)
(police officer had probable cause for a search after citizen informant who
declined to give his name flagged down the officer and told him a man nearby in
a wheelchair was selling crack out of his right shoe); United States v. Salazar,
945 F.2d 47, 50-51 (2d Cir. 1991) (“[A] face-to-face informant must, as a general
matter, be thought more reliable than an anonymous telephone tipster.”); United
States v. Sierra-Hernandez, 581 F.2d 760, 763 (9th Cir. 1978) (“[A]lthough the
informant did not identify himself by name, he would have been available for
further questioning if the agent had judged the procedure appropriate. Unlike a
person who makes an anonymous telephone call, this informant confronted the
agent directly.”); United States v. Gorin, 564 F.2d 159, 161 (4th Cir. 1977)
(“[S]tandards of reliability should not prevent appropriate action when a victim of
a crime immediately has contacted the police. That same analysis applies [when a
witness informs the police in person about a crime].”) (citation omitted).
As to the second concern – specificity – the woman’s tip was not overly
general. The woman described an aspect of the assailant’s clothing (gray shirt).
-9-
Though she did not provide the age, race or any other physical characteristics of
the victim or assailant, her tip was spatially specific. The officers knew they
were looking for someone in a residential neighborhood only a block away. The
tip did not provide the officers with excessive discretion to stop and search a
large number of citizens – this was not a dragnet. The officers also knew the
alleged assault occurred shortly before they were flagged down and could be
continuing. 4
Moreover, the woman’s tip was not all the officers had to go on. After
driving to the area described by the woman, the officers observed two vehicles
departing quickly from a single-family home. 5 While quickly departing vehicles
do not, in and of themselves, suggest criminal activity, it is a suspicious
circumstance to be considered as part of the universe of facts. Here it becomes
more significant when coupled with a number of people pointing at the vehicles
as if to say “that’s them.”
4
Police officers have certain leeway in the Fourth Amendment context
“when they reasonably believe that a person . . . is in need of immediate aid.”
United States v. Najar, 451 F.3d 710, 714 (10th Cir. 2006) (quoting Mincey v.
Arizona, 437 U.S. 385, 392 (1978)). Among other things, we expect police
officers to “aid individuals who are in danger of physical harm.” Id. at 715
(quoting 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 6.6 (4th ed.)).
5
Sanchez contends “[t]he district court was wrong to interpret the officer’s
testimony as establishing that the vehicles were quickly leaving.” (Appellant’s
Opening Br. at 24.) Both Officers Lopez and Jaramillo testified to the hasty
departure. Supra at 3. In light of this testimony, the court’s finding was not
clearly erroneous.
-10-
We reject Sanchez’s contention that the pointing neighbors were
anonymous. Like the woman tipster, the neighbors divulged enough information
about themselves to be capable of identification. They stood outside their houses
throughout the duration of the stop and allowed themselves to be questioned by
the officers. In addition to being readily identifiable by the police, they were
known to the occupants of the two vehicles and exposed themselves to a risk of
retaliation by their conduct. The neighbors were not anonymous and the concerns
relating to anonymous tips – motive and specificity – are not present.
While each individual factor might not have been sufficient to establish
reasonable suspicion of criminal activity, we don’t parse the elements but
consider the totality of the circumstances. See Johnson, 364 F.3d at 1189. In
doing so, we “defer to the ‘ability of a trained law enforcement officer to
distinguish between innocent and suspicious actions.’” United States v. Santos,
403 F.3d 1120, 1124 (10th Cir. 2005) (quoting United States v. McRae, 81 F.3d
1528, 1534 (10th Cir. 1996)). “A determination that reasonable suspicion exists
. . . need not rule out the possibility of innocent conduct.” United States v.
Arvizu, 534 U.S. 266, 277 (2002). Indeed, “the likelihood of criminal activity
need not rise to the level required for probable cause, and it falls considerably
short of satisfying a preponderance of the evidence standard.” Id. at 274; see also
Johnson, 364 F.3d at 1194 (“[A]s long as [the officer] has a particularized and
objective basis for suspecting an individual may be involved in criminal activity,
-11-
he may initiate an investigatory detention even if it is more likely than not that
the individual is not involved in any illegality.”).
This case is easily distinguishable from Florida v. J.L., where the Court
concluded the police did not have reasonable suspicion to conduct a search based
on an anonymous tip lacking sufficient indicia of reliability. 529 U.S. at 273-74.
The Court noted “[a]ll the police had to go on . . . was the bare report of an
unknown, unaccountable informant who neither explained how he knew about the
gun nor supplied any basis for believing he had inside information about J.L.” Id.
at 271. Here, by contrast, we have much more. An identifiable woman reported
an assault to the police in a face-to-face encounter. The officers knew the basis
for her knowledge (direct observation) and were able to evaluate her credibility
and demeanor. Moreover, her report was corroborated by identifiable (and later
identified) neighbors pointing at two quickly departing vehicles. These factors
distinguish this case from J.L. and, considered together, provide sufficient
justification for the initial stop.
B. Scope of the Stop
“During an investigative detention, ‘[p]olice officers are authorized to take
reasonable steps necessary to secure their safety and maintain the status quo.’”
United States v. Garcia, 459 F.3d 1059, 1063 (10th Cir. 2006) (quoting United
States v. Gama-Bastidas, 142 F.3d 1233, 1240 (10th Cir. 1998)). The Supreme
Court has recognized passengers may present a risk to officer safety equal to that
-12-
of the driver. See Maryland v. Wilson, 519 U.S. 408, 413-14 (1997). Thus, “an
officer making a traffic stop may order passengers to get out of the car pending
completion of the stop.” Id. at 415.
“In some circumstances,” an officer may go further and conduct a pat-down
search for weapons. Garcia, 459 F.3d at 1063. “The purpose of the limited pat-
down search is not to discover evidence of crime, but to allow the officer to
pursue his investigation without fear of violence.” Id. (quotations omitted); see
also United States v. Rice, 483 F.3d 1079, 1083 (10th Cir. 2007) (“Officer safety
is the primary objective justifying an officer’s right to perform a pat-down
search.”).
An officer may conduct a pat-down search “if he or she harbors an
articulable and reasonable suspicion that the person is armed and dangerous.”
Garcia, 459 F.3d at 1064 (quotations omitted); see also Terry, 392 U.S. at 27
(during an investigatory stop, an officer may perform a pat-down search “where
he has reason to believe that he is dealing with an armed and dangerous
individual, regardless of whether he has probable cause to arrest the individual for
a crime”). “The reasonable suspicion required to justify a pat-down search
represents a minimum level of objective justification . . . . Reasonable suspicion
is based on the totality of circumstances, taking into account an officer’s
reasonable inferences based on training, experience, and common sense.” Rice,
483 F.3d at 1083 (quotations and citations omitted).
-13-
Here, Officers Jaramillo and Hinson reasonably suspected the occupants of
the sedan might be armed and dangerous based on the reported assault as well as
the discovery of a concealed weapon on the driver of the van. They could
reasonably have believed the occupants of the sedan were associated with the
driver of the van. Jaramillo and Hinson were outnumbered by the three occupants
of the sedan and had a valid concern for their safety. Their decision to conduct a
limited pat-down search of the occupants was reasonable.
AFFIRMED.
-14-
United States v. Sanchez
Court: Court of Appeals for the Tenth Circuit
Date filed: 2008-03-17
Citations: 519 F.3d 1208
Copy Citations