United States v. Garcia

F I L E D
United States Court of Appeals
Tenth Circuit

August 25, 2006
PU BL ISH
Elisabeth A. Shumaker
UNITED STATES COURT O F APPEALS Clerk of Court

TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,
v.
No. 05-4031
JASO N H. GARCIA, aka Dogg,

Defendant-Appellant.

Appeal from the United States District Court
for the District of Utah
(D .C . No. 2:03-CR-996-TC)

G. Fred M etos, M cCaughey & M etos, Salt Lake City, Utah, for D efendant-
Appellant.

Diana Hagen, Assistant United States Attorney (Paul M . W arner, United States
Attorney, with her on the brief), Salt Lake City, Utah, for Plaintiff-Appellee.

Before KELLY, HOL LOW A Y, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Jason Garcia entered a conditional plea of guilty to possession of

methamphetamine w ith intent to distribute. He now appeals the district court’s

denial of his motion to suppress, reiterating on appeal his claim that the police
lacked reasonable suspicion or probable cause to frisk him for weapons — and

thereby discover the methamphetamine — during their entry into an apartment

M r. Garcia was visiting. W e conclude that the district court correctly found that

the officers had reasonable suspicion and therefore affirm.

I. BACKGROUND

A. Factual Background

In August 2003, Salt Lake County Sheriff’s Detective Tracy W yant learned

from a patrol deputy that an ambulance had responded to a drug overdose at an

apartment in Taylorsville, Utah. The deputy told Detective W yant that he

suspected additional drug activity at the apartment and asked W yant to

investigate. The deputy also informed Detective W yant that one of the

individuals involved in the overdose incident was named Dusty Kilgrow.

Detective W yant was familiar w ith the apartment complex, having visited it

multiple times for narcotics investigations — some of which involved suspects

who used or possessed firearms. Detective W yant performed a records check of

the apartment w here the overdose had occurred and learned the names of two

renters: D usty Kilgrow (the man who had been involved in the overdose incident)

and Lisa Ross. Further investigation revealed that M s. Ross had an outstanding

arrest warrant and that M r. Kilgrow was an active member of the “Lay Low

Crips,” a violent street gang. Detective W yant knew or learned from the M etro

Gang Task Force that in the past the Lay Low Crips had been involved in the

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assault-rifle shooting of a West Valley police officer and in the attempted

shooting of two Sheriff’s Detectives.

Detective W yant conducted surveillance on the apartment several times,

during w hich he observed short-term traffic in and out of the apartment. On

August 18, Detective W yant and another detective again conducted surveillance

on the apartment. In the space of a few minutes, they observed seven individuals

coming in and out of the apartment; W yant identified one of the individuals as

Kilgrow. The detectives also saw that two men went out to a car, then returned to

the apartment; that several individuals stood out in front of the apartment,

apparently conducting countersurveillance; and that the front door was left open

for some time. Detective W yant testified that all this activity was “indicative of

narcotics transactions,” although from his surveillance vantage point he did not

actually see any such transactions take place.

After observing the above activity, Detective W yant called to request the

assistance of the M etro Gang Task Force. Several members of the Task Force

soon arrived, including Sergeant Bill Robertson, and all of the officers then

approached the apartment. A woman who had also been approaching the

apartment saw the officers, turned around, and began walking aw ay. The officers

stopped the w oman, who identified herself as Lisa Ross, one of the apartment’s

renters. The officers told M s. Ross that they were there because they had a

warrant for her arrest and because they had some concerns about her apartment.

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W hile the officers spoke with M s. Ross, the door to the apartment opened partway

and Sergeant R obertson observed several people peering out the door. He

recognized one of them from prior gang investigations; that individual was also

dressed in a manner consistent with gang membership. This heightened Sergeant

Robertson’s concern for the safety of the officers.

The officers further told M s. Ross that they had seen seven people go into

her apartment. She became very emotional and explained that her four-year-old

son was in the apartment and that she was unsure who else was inside. She

agreed to allow the officers to enter the apartment to check on her son and told

them that she thought he was in the back of the apartment. Four or five of the

officers, some with weapons drawn, then entered the apartment to do a protective

sweep and to look for the child.

W hen Sergeant Robertson entered into the front room of the apartment, he

noticed a small, clear plastic “baggie” on the floor, near the door, containing what

appeared to be methamphetamine packaged for sale. A black male dressed in

gang-related attire was next to the baggie and the appellant, M r. Garcia, was

about ten feet away. M r. Garcia was not dressed in gang-related attire, and

Sergeant Robertson did not see any tattoos or other indications of gang affiliation

on M r. Garcia. Although M r. Garcia appeared nervous, he did not make any

threatening moves or verbal threats tow ard the officers.

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 The officers asked the five or six persons in the front room, including M r.

Garcia, to keep their hands where the officers could see them and to stay where

they were. Three officers remained in the front room, and the other officers did a

protective sweep of the apartment. They found M s. Ross’s son in the back

bedroom and took him outside to M s. Ross.

The officers then conducted a pat-down search of the individuals in the

front room for weapons. Sergeant Robertson testified at the suppression hearing

that the pat-down was conducted because he was “concerned for the safety of the

individuals in the apartment,” including the officers. The presence of what

appeared to be methamphetamine on the floor heightened his concern because in

Sergeant Robertson’s experience, firearms are often present when narcotics

transactions take place. Similarly, the possible gang connection heightened

Sergeant Robertson’s concern that guns w ould be present.

Sergeant Robertson was the officer who frisked M r. Garcia. During the

pat-dow n, R obertson felt a large bump in M r. Garcia’s front left pocket. He

asked what the object was and M r. Garcia responded that it was drugs. Sergeant

Robertson asked if it was illegal drugs, and M r. Garcia replied affirmatively. The

officers eventually confiscated two bags of methamphetamine and a piece of drug

paraphernalia from M r. G arcia.

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 B. Procedural Background

M r. Garcia was charged with one count of possessing methamphetamine

with intent to distribute, a violation of 21 U.S.C. § 841(a)(1). He filed a motion

to suppress the evidence found during the pat-down. After a hearing, at which

both Detective W yant and Sergeant Robertson testified, the district court denied

M r. Garcia’s motion, concluding that the officers had reasonable suspicion to

detain and conduct a pat-down of M r. Garcia. M r. Garcia then conditionally pled

guilty to possession of methamphetamine with intent to distribute and was

sentenced to 120 months in prison. M r. Garcia timely appealed the denial of his

suppression motion. 1

1
M r. Garcia’s notice of appeal incorrectly seeks to appeal “to the Utah
Court of Appeals.” Although this technically violates Rule 3(c)(1)(C) of the
Federal Rules of Appellate Procedure — which states that a “notice of appeal
must . . . name the court to which the appeal is taken,” — we have long held that
“a defective notice of appeal should not warrant dismissal for want of jurisdiction
where the intention to appeal to a certain court of appeals may be reasonably
inferred from the notice, and where the defect has not materially misled the
appellee.” Graves v. Gen. Ins. Corp., 381 F.2d 517, 519 (10th Cir. 1967)
(accepting a notice of appeal that erroneously sought to appeal to the Supreme
Court of N ew M exico). It is reasonably clear from the notice of appeal that M r.
Garcia intended to appeal to this court. And, because the government timely filed
a response brief in this court without even discussing the defect in M r. Garcia’s
notice of appeal, the government clearly was not prejudiced or “materially
misled.” The error in M r. Garcia’s notice of appeal therefore does not deprive us
of jurisdiction.

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 II. D ISC USSIO N

A. Standard of Review

W hen 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.
However, the ultimate determination of w hether 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). Specifically

relevant to this case, “[w]e review the district court’s determination of reasonable

suspicion de novo.” U nited States v. Barron-Cabrera, 119 F.3d 1454, 1458 (10th

Cir. 1997) (citing Ornelas v. United States, 517 U.S. 690 (1996)).

B. Analysis

“The Supreme Court has identified three general types of encounters

between citizens and the police: (1) consensual encounters; (2) investigative

detentions; and (3) arrests.” U nited States v. Hishaw, 235 F.3d 565, 569 (10th

Cir. 2000). The parties agree that this case involves the second type of encounter

— an investigative detention. 2 M ore specifically, this case involves a police

search of M r. Garcia’s person during an investigative detention. See United

2
“[I]nvestigative detentions . . . are Fourth Amendment seizures of limited
scope and duration and must be supported by a reasonable suspicion of criminal
activity.” U nited States v. Davis, 94 F.3d 1465, 1468 (10th Cir. 1996).

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States v. M anjarrez, 348 F.3d 881, 886 (10th Cir. 2003) (“A pat-down is a

‘search’ under the Fourth Amendment.”).

In evaluating whether an investigative detention and an attendant search are

reasonable under the Fourth Amendment, we apply the principles announced by

the Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968). See Hishaw, 235 F.3d at

569. However, we note at the outset that M r. Garcia does not challenge the

officers’ entry into, and “protective sweep” of, M s. Ross’s apartment. See Terry,

392 U.S. at 20 (directing courts to first consider “whether the officer’s action was

justified at its inception”). Furthermore, M r. Garcia concedes that “the discovery

of the drugs on the floor of the apartment would be sufficient under Terry to

justify a temporary detention of Garcia to investigate that offense.” 3 Thus, we

assume for purposes of this appeal that the officers were justified in entering the

apartment and in detaining M r. Garcia for investigative purposes. The only

question in this case, then, is whether the pat-down search of M r. Garcia was

unjustified and thus a violation of the Fourth Amendment. See Hishaw, 235 F.3d

at 570 (“Even though the initial stop was justified, we must still assess the

reasonableness of the subsequent pat-down search.”).

1. Requirement of reasonable suspicion

3
M r. Garcia notes in his brief that Sergeant Robertson did not mention the
presence of the baggie by the door in either his police report or the probable cause
affidavit. However, M r. Garcia does not appear to challenge the district court’s
finding that Robertson did actually observe such a baggie upon entering the
apartment. In any event, that finding was not clearly erroneous.

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 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. Gama-Bastidas, 142 F.3d 1233, 1240 (10th Cir. 1998); see also

United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir. 1993) (“Since police

officers should not be required to take unnecessary risks in performing their

duties, they are authorized to take such steps as are reasonably necessary to

protect their personal safety and to maintain the status quo during the course of a

Terry stop.”) (quotation, alterations omitted). In some circumstances, these safety

measures may include a pat-down search for weapons. See Terry, 392 U.S. at

21–24. “The purpose of the limited pat-down search is not to discover evidence

of a crime, ‘but to allow the officer to pursue his investigation without fear of

violence.’” M anjarrez, 348 F.3d at 886–87 (quoting Adams v. W illiams, 407 U.S.

143, 146 (1972)).

Although it is of course true that officers “‘need not be absolutely certain

that [an] individual is armed’ before taking protective measures” such as a pat-

down search, Gama-Bastidas, 142 F.3d at 1240 (quoting Terry, 392 U.S. at 27),

such a search is also not to be conducted as a matter of course during every

investigative detention, see Ybarra v. Illinois, 444 U.S. 85, 91–93 (1979). Rather,

we have only allowed “an officer [to] conduct a pat-down search (or ‘frisk’) if he

or she ‘harbors an articulable and reasonable suspicion that the person is armed

and dangerous.’” Hishaw, 235 F.3d at 570 (quoting Davis, 94 F.3d at 1468); see

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also M anjarrez, 348 F.3d at 886 (“An officer may pat-down a suspect if the facts

available to the officer would warrant a man of reasonable caution to believe that

a frisk would be necessary to protect himself.”) (quotation omitted). An officer’s

suspicion must be “articulable” because, “in determining whether the officer acted

reasonably . . . , due weight must be given, not to his inchoate and

unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences

which he is entitled to draw from the facts in light of his experience.” Terry, 392

U.S. at 27.

In analyzing whether this reasonable suspicion standard is met, we are “to

view the officer’s conduct through a filter of common sense and ordinary human

experience.” United States v. Alvarez, 68 F.3d 1242, 1244 (10th Cir. 1995)

(quotation omitted). Furthermore, we “consider the ‘totality of the circumstances’

when evaluating the validity of a pat-down.” M anjarrez, 348 F.3d at 887 (quoting

Adams, 407 U.S. at 146).

2. Application

In this case, we have no trouble concluding that the facts known to

Sergeant Robertson warranted an “articulable and reasonable suspicion” that M r.

Garcia w as armed and dangerous, thereby justifying Sergeant Robertson’s pat-

down search of M r. G arcia.

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 a. Drug transactions

First, we have held that a connection with drug transactions can support a

reasonable suspicion that a suspect is armed and dangerous. In Hishaw, police

officers had learned that a certain apartment was being used to distribute drugs,

and M r. Hishaw was suspected to be the drug dealer. 235 F.3d at 567. The

officers conducted surveillance and observed Hishaw entering and leaving the

apartment numerous times and dealing with persons in the parking lot. Id. Police

later stopped Hishaw’s pickup truck, conducted a pat-down search of Hishaw, and

found crack cocaine. Id. In reviewing the denial of H ishaw ’s motion to suppress,

we first concluded that the evidence of drug activity provided reasonable

suspicion justifying the stop of Hishaw’s pickup. Id. at 570. M ore to the point,

we also concluded that “the evidence supporting the officers’ reasonable

suspicion that M r. Hishaw was distributing drugs (i.e. his coming and going from

the apartment named in the search warrant and the hand-to-hand contact observed

outside the apartment) also indicated that he might be armed and dangerous.” Id.

Thus, we concluded that the pat-down was justified and affirmed denial of the

motion to suppress. Id. at 571.

Numerous other cases lend support to the proposition that an individual’s

involvement with drug transactions or distribution can support reasonable

suspicion to frisk that individual for weapons. In Hishaw, we favorably cited

cases from other circuits to this effect. Id. at 570–71 (citing United States v.

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Perrin, 45 F.3d 869, 873 (4th Cir. 1995) (“[I]t is certainly reasonable for an

officer to believe that a person engaged in the selling of crack cocaine may be

carrying a weapon for protection”); United States v. Anderson, 859 F.2d 1171,

1177 (3d Cir. 1988) (holding that an officer’s pat-down search of the occupants of

a car was reasonable after the officer observed large amounts of money on the

front seat, became suspicious that it might be drug money, and was concerned for

his safety “because persons involved w ith drugs often carry weapons”)); see also

id. at 570 (citing United States v. Sakyi, 160 F.3d 164, 169 (4th Cir. 1998)

(holding that “w hen [an] officer has a reasonable suspicion that illegal drugs are

in [a] vehicle, the officer may, in the absence of factors allaying his safety

concerns, order the occupants out of the vehicle and pat them dow n briefly for

weapons” and that “[t]he indisputable nexus between drugs and guns

presumptively creates a reasonable suspicion of danger to the officer”)).

M ore recent cases from this and other courts also provide support for our

conclusion in Hishaw. See United States v. Johnson, 364 F.3d 1185, 1194–95

(10th Cir. 2004) (concluding that a weapons frisk was permissible “[b]ecause [the

officer] reasonably suspected that Johnson might be involved in drug dealing,

kidnapping, or prostitution,” which are crimes “typically associated with some

sort of weapon, often guns”); United States v. Bustos-Torres, 396 F.3d 935, 943

(8th Cir.) (“Because weapons and violence are frequently associated with drug

transactions, it is reasonable for an officer to believe a person may be armed and

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dangerous when the person is suspected of being involved in a drug transaction”),

cert. denied, 125 S. Ct. 2557 (2005); United States v. $109,179 in U.S. Currency,

228 F.3d 1080, 1086 (9th Cir. 2000) (finding a frisk justified and asserting that

“[b]ecause the police reasonably suspected [the defendant] of dealing in narcotics,

it was not unreasonable to believe that he might be armed”); see also United

States v. Jackson, 390 F.3d 393, 399 (5th Cir. 2004) (when officers had

reasonable suspicion that the defendant was a drug courier, a protective frisk was

justified by “the real threat that a narcotics carrier may be armed”), vacated on

other grounds, 544 U.S. 917 (2005). All of these cases stand for the proposition

that an individual’s known connection with drug transactions is a factor

supporting reasonable suspicion to frisk that individual for weapons. 4

In this case, the evidence available to the officers indicated that drug

transactions were occurring in the apartment. The original reason for surveilling

the apartment was that a drug overdose had taken place there. Detective W yant

had also observed short-term traffic at the apartment, had seen what appeared to

be countersurveillance, and had seen other activity that in his experience was

4
The validity of this proposition is borne out by the experience and training
of the officers in this case. Sergeant Robertson testified that in his experience,
“w hen narcotics transactions take place . . . a number of times also firearms are
present.” Similarly, Detective W yant’s training taught him that it is
“commonplace for weapons, specifically handguns and similar to be present in the
distribution and use of narcotics.” And in conducting other narcotics
investigations at the very same apartment complex where M r. Garcia was
searched, Detective W yant had previously encountered suspects who used or
possessed firearms.

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consistent with narcotics transactions. Furthermore, one of the apartment’s

know n renters, Dusty Kilgrow, who had been connected to the drug overdose

incident, was a member of a violent street gang that had an extensive history with

narcotics. Detective W yant had identified Kilgrow as one of the seven

individuals present at the apartment during the August 18 surveillance, and had

told Sergeant Robertson about Kilgrow’s presence in preparation for approaching

the apartment. Finally, upon entering the apartment Sergeant Robertson observed

a baggie of what appeared to be methamphetamine lying near the door of the

apartment. The methamphetamine appeared to be packaged for sale. It was

reasonable for the officers to believe from these facts that there were drug

transactions occurring at the apartment.

M oreover, it was reasonable to believe that M r. Garcia had some

connection to or involvement with the drug transactions. As the district court

stated,

M r. Garcia was present in a private home associated with a violent
street gang member where illegal drugs were suspected, w here (based
on the officers’ training and experience) firearms were likely to be, and
where illegal drugs were spotted inside. It was reasonable for the
officers to connect him with the suspected criminal activity.

Dist. Ct. Op. at 10 (footnote added). The officers could reasonably suspect that

everyone present in the front room (w here the drugs w ere found) w as involved in

the suspected drug transactions. See United States v. Vite-Espinoza, 342 F.3d

462, 467 (6th Cir. 2003) (upholding a weapons frisk) (“[The police] had reason to

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suspect . . . that the house was used as a factory of counterfeit immigration and

identification documents for M exican nationals and for the trafficking of

marijuana. . . . [R]ational inferences w arranted reasonable suspicions that those

encountered on the premises w ould either be counterfeiters themselves or their

illegal alien customers . . . or that they would be armed and dangerous, because

drug traffickers tend to be so.”); see also M aryland v. Pringle, 540 U.S. 366, 373

(2003) (“The quantity of drugs and cash . . . indicated the likelihood of drug

dealing, an enterprise to which a dealer would be unlikely to admit an innocent

person with the potential to furnish evidence against him.”). Based on this

connection alone, it was reasonable for the officers to conduct a weapons frisk of

M r. Garcia. See Johnson, 364 F.3d at 1194–95 (concluding that a weapons frisk

was permissible “[b]ecause [the officer] reasonably suspected that Johnson might

be involved in drug dealing, kidnapping, or prostitution”) (emphasis added);

Hishaw, 235 F.3d at 570 (“[T]he evidence supporting the officers’ reasonable

suspicion that M r. Hishaw was distributing drugs . . . also indicated that he might

be armed and dangerous.”); Bustos-Torres, 396 F.3d at 943 (“[I]t is reasonable for

an officer to believe a person may be armed and dangerous w hen the person is

suspected of being involved in a drug transaction”).

b. G ang connection

The apparent gang connection provides additional reason to uphold the

district court’s conclusion in this case. See United States v. Osbourne, 326 F.3d

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274, 278 (1st Cir. 2003) (one factor in upholding the reasonableness of a frisk

was that the defendant “was a member of a violent street gang”); see also United

States v. Atlas, 94 F.3d 447, 450–51 (8th Cir. 1996) (officers had reasonable

suspicion that a suspect was armed and dangerous in part because “the officers

were responding to a call in a dangerous neighborhood, one that was high in gang

activity”). Sergeant Robertson testified that based on his training and experience

he knew that guns are often part of the gang environment. In our society today

this observation resonates with “common sense and ordinary human experience.”

Alvarez, 68 F.3d at 1244 (quotation omitted). Furthermore, the police officers in

this case knew that the apartment in which M r. Garcia was found was connected

with at least one member of the Lay Low Crips, a violent street gang with a

history of firearms violence toward police officers. In fact, Detective W yant had

identified Kilgrow, the gang member, as one of the persons present at the

apartment at the time the officers approached. See United States v. Flett, 806

F.2d 823, 828 (8th Cir. 1986) (holding that “the location of the appellant in the

home of a known gang member charged with a narcotic violation” was one factor

that supported “a reasonable inference that the appellant may be a gang member

and may be armed and dangerous”). Sergeant Robertson also observed another

individual at the apartment who was dressed in gang-related attire and who he

recognized from previous gang investigations.

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 M r. Garcia emphasizes that, unlike the appellant in Flett, he was not

dressed in gang attire and that nothing about his appearance indicated to the

officers that he was a member of a gang. He also emphasizes that the officers did

not recognize him as a gang member and argues that a frisk may not be justified

based solely on the company one keeps. See United States v. Clay, 640 F.2d 157

(8th Cir. 1981) (suppressing evidence found during a pat-down search of a man

who stopped by a house at which police were executing a search warrant for drugs

and firearms). W e nonetheless conclude that it was reasonable for the officers to

believe that the persons present in the front room, who were all apparently

connected to drug transactions involving known and suspected gang members, all

had some degree of gang affiliation. Although not necessarily determinative by

itself, that gang connection further supports the reasonableness of a w eapons frisk

of those present, including M r. Garcia.

M r. Garcia further emphasizes that he was compliant with requests made by

the officers, that he made no threatening statements or movements, and that the

officers were able to see the hands of everyone in the front room. Although those

factors likely helped avoid escalating an already tense situation, we conclude that

it did not eliminate the officers’ reasonable suspicion that one or more of the

persons present in the front room was armed and dangerous or make the weapons

frisk of M r. Garcia unreasonable. See Flett, 806 F.2d at 828 (“The fact that the

appellant made no threatening moves toward the officer or that the officer did not

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notice any bulge does not lessen the reasonableness of the officer’s actions.”); cf.

United States v. Holmes, 376 F.3d 270, 278 (4th Cir. 2004) (“[G]iven the number

of police on the scene and the tactics the officers used, that [the defendants]

cooperated with the police is entirely unsurprising. However, a reasonable officer

in this situation— knowledgeable of the suspects’ criminal history and that the

gang to which the suspects belonged was known to be armed— would be aware of

the risk that absent a protective search . . . , the suspects might, as the stop

proceeded, seek to take advantage of a gap in the officers’ vigilance.”).

III. C ON CLU SIO N

For the foregoing reasons, we AFFIRM the denial of M r. Garcia’s motion

to suppress evidence.

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