United States v. Bosman ( 2022 )

Appellate Case: 21-1076 Document: 010110647162 Date Filed: 02/18/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 18, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-1076
(D.C. No. 1:19-CR-00213-RM-1)
MICHAEL JAMES BOSMAN, (D. Colo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, EBEL, and PHILLIPS, Circuit Judges.
_________________________________
On the morning of March 7, 2019, three police officers were dispatched to
arrest Albert Stuart, who was asleep in the front seat of a car parked in a motel
parking lot. Defendant-Appellant Michael James Bosman was asleep in the back
seat. While one of the officers was arresting Mr. Stuart, the other officers told Mr.
Bosman to exit the car so they could identify him. When Mr. Stuart informed them
Mr. Bosman was armed, the officers ordered Mr. Bosman at gunpoint to leave the
car. They threatened to shoot him for any errant movement. Mr. Bosman fell out of
*
This order and judgment is not binding precedent, except under the doctrines of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.
Appellate Case: 21-1076 Document: 010110647162 Date Filed: 02/18/2022 Page: 2
the car, and a gun fell on the ground behind him. Mr. Bosman was charged for
unlawfully possessing a firearm as a felon under 18 U.S.C. § 922(g)(1).
Mr. Bosman moved to suppress the firearm, claiming the officers used
excessive force when they told him to exit the car. The district court denied his
motion. He entered a conditional guilty plea under Federal Rule of Criminal
Procedure 11(a)(2) and appealed the denial of his suppression motion. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Factual History1
At around 9:00 a.m. on March 7, 2019, Colorado Springs Officers Gilman,
Hallas, and Sandoval responded to a tip that Mr. Stuart was asleep in a Chevrolet
Impala in the parking lot of a motel in a high-crime area. Mr. Stuart had an
outstanding felony arrest warrant for multiple counts of identity theft and property
offenses.
Upon arrival, the officers activated their body cameras and approached the car.
ROA, Vol. IV Attachments A-C. There were bystanders in the vicinity of the
parking lot. ROA, Vol. III at 206. Mr. Stuart was asleep in the front passenger seat.
Another man—later identified as Mr. Bosman—was asleep in the back seat, which
was cluttered. Id. at 208.
1
Because Mr. Bosman does not contest the district court’s factual findings, we
rely on those findings as well as the officers’ body camera footage. See ROA, Vol. III at
202-07; ROA, Vol. IV Attachments A-C.
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Officer Hallas knocked on the passenger window, awakening Mr. Stuart.
ROA, Vol. IV Attachment A at 00:37-47. Officer Hallas ordered him out of the car.
Id. Officer Gilman was standing slightly behind Officer Hallas and took his firearm
out but pointed it downwards (in the “low ready” position). ROA, Vol. III at 74.
The officers told the two men to put their hands up, and both men complied. ROA,
Vol. IV Attachment A at 00:45; ROA, Vol. III at 202-03.
Officer Hallas opened the passenger door, which triggered the car alarm.
ROA, Vol. IV Attachment A at 00:55-1:05. He asked Mr. Stuart if there were any
weapons in the car. Id. Mr. Stuart quickly looked back toward Mr. Bosman but did
not give a clear answer. Id.; see also ROA, Vol. III at 203. Officer Hallas again
asked if there were weapons in the car, and Mr. Stuart said no. ROA, Vol. IV at
00:55-1:05; ROA, Vol. III at 203. Mr. Stuart exited the car, and Officer Hallas
handcuffed him. ROA, Vol. IV Attachment A at 01:03-20. He then led Mr. Stuart
toward the patrol vehicle. Id.Officer Gilman moved to the open front passenger seat door and began
speaking with Mr. Bosman, who remained in the back seat on the driver’s side. Id. at
01:37-50. By this point, Officer Sandoval had moved to the rear driver-side door.
Id. In a conversational tone, Officer Gilman explained they were trying to identify
him and instructed him to exit the car with his hands on his head. Id. Officer Gilman
warned him against reaching toward his waist. Id. at 1:45-46.
While he was being arrested, Mr. Stuart alerted Officer Hallas that he had a
gun, so Officer Gilman moved to the patrol car to help Officer Hallas. ROA, Vol. IV
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Attachment B at 00:08-58. After finishing the arrest, Officer Gilman returned to the
open passenger door and instructed Mr. Bosman to open the door. ROA, Vol. IV
Attachment A at 02:35-03:09. His tone remained conversational, and his gun
remained in the low ready position. Id.; ROA, Vol. III at 204.
At that moment, Mr. Stuart told Officer Hallas that Mr. Bosman also had a
gun. ROA, Vol. IV Attachment B at 01:54-56. Officer Hallas shouted to the other
officers, “he’s got a gun too, supposedly.” ROA, Vol. IV Attachment B at 01:56-58.
Officer Gilman pointed his gun at Mr. Bosman and said, “We have information that
you might be armed.” ROA, Vol. IV Attachment A at 03:37-40. Officer Gilman also
warned Mr. Bosman that if his arm moved in a frightening way, he would probably
get shot. Id. at 03:40-46. Mr. Bosman then opened the door, which triggered the car
alarm again. Id. at 03:48-56. Officer Gilman told Mr. Bosman to follow Officer
Sandoval’s commands, relocated to the driver’s side of the car, and pointed his gun at
Mr. Bosman. Id. at 03:57-04:06. Officer Sandoval also took out his gun and pointed
it at Mr. Bosman. Id.Officer Sandoval told Mr. Bosman that if his hands shifted beneath his
shoulders, he would shoot him. Id. at 04:00-15. Officer Sandoval holstered his
weapon, grabbed one of Mr. Bosman’s wrists, and instructed him to leave the car
while keeping his hands up. Id. at 04:15-06:05. As Officer Sandoval guided Mr.
Bosman out of the car, Mr. Bosman fell out onto the ground. Id. at 04:15-25. A gun
fell behind him on the ground. Id. at 04:15-30. After securing Mr. Bosman, the
officers retrieved the gun. Id. at 04:30-06:05.
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B. Procedural History
Mr. Bosman was charged with possession of a firearm by a convicted felon
under 18 U.S.C. § 922(g)(1). He moved to suppress the firearm, arguing the officers
acted unreasonably under the Fourth Amendment by pointing their guns at him and
threatening to shoot him.
The district court denied his motion. It explained the officers were making a
felony arrest in a high-crime area. At first, they thought no firearms were present. But
after Mr. Stuart left the car, he told the officers that he was armed and that Mr. Bosman
also had a gun. The officers said the back seat of the car was cluttered. Based on these
circumstances, the court recognized an officer safety concern. It concluded the officers
acted aggressively but reasonably when they pointed their guns at Mr. Bosman,
threatened to shoot him for stray movement, and ordered him to exit the car.
Mr. Bosman conditionally pled guilty under Federal Rule of Criminal
Procedure 11(a)(2). He timely appealed the district court’s denial of his suppression
motion.
II. DISCUSSION
Mr. Bosman challenges the district court’s denial of his motion to suppress.
He does not contest the Officers’ authority to order him out of the car. Instead, he
argues the Officers acted unreasonably under the Fourth Amendment by pointing
their guns at him and threatening to shoot him for sudden movements.
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A. Standard of Review
We review “de novo a district court’s determination of the reasonableness of a
search and seizure under the Fourth Amendment.” United States v. Dennison, 410
F.3d 1203, 1207 (10th Cir. 2005). “We look at the totality of the circumstances in
reviewing the denial of the motion to suppress.” Id. “[W]e accept the factual
findings of the district court unless they are clearly erroneous, and view the evidence
in the light most favorable to the district court’s determination.” Id. (quotations
omitted).
B. Legal Background
The Fourth Amendment protects individuals from “unreasonable searches and
seizures.” U.S. Const. amend. IV. A person is seized under the Fourth Amendment
when “the police conduct would have communicated to a reasonable person that he
was not at liberty to ignore the police presence and go about his business.” Florida
v. Bostick, 501 U.S. 429, 437 (1991) (quotations omitted). But “the protection of the
Fourth Amendment does not guarantee against all seizures.” United States v. King,
990 F.2d 1552, 1556 (10th Cir. 1993) (quotations and alterations omitted). Rather, it
protects “only against unreasonable . . . seizures.” United States v. Sharpe, 470 U.S.
675, 682 (1985).2
2
The Fourth Amendment applies against state law enforcement officials as
incorporated through the Due Process Clause of the Fourteenth Amendment. Mapp v.
Ohio, 367 U.S. 643, 655 (1961).
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A law enforcement officer, “for the purpose of investigation, may briefly
detain a person on less than probable cause,” King, 990 F.2d at 1557; see United
States v. Sokolow, 490 U.S. 1, 7 (1989), and may also “conduct a limited search for
weapons for his or her own protection,” King, 990 F.2d at 1557; see Adams v.
Williams, 407 U.S. 143, 145-46 (1972). But the officer’s action must be “justified at
its inception” and “reasonably related in scope to the circumstances which justified
the interference in the first place.” Terry v. Ohio, 392 U.S. 1, 20 (1968).
The police may seize a person to “ensure the safety of the public and/or the
individual, regardless of any suspected criminal activity” and may seize an
individual’s weapon “in order to ensure [his or] her own safety during the
encounter,” King, 990 F.2d at 1560-61.
Evaluating “the reasonableness of [a] seizure depends on a balance between
the public interest and the individual’s right to personal security free from arbitrary
interference by law officers.” United States v. Brignoni-Ponce, 422 U.S. 873, 878
(1975). “[O]ur evaluation is guided by ‘common sense and ordinary human
experience.’” King, 990 F.2d at 1562 (quoting Sharpe, 470 U.S. at 685). But in
assessing whether an officer’s action was reasonable, we “should not indulge in
unrealistic second-guessing.” United States v. Montoya de Hernandez, 473 U.S. 531,
542 (1985) (quotations omitted). “The question is not simply whether some other
alternative was available, but whether the police acted unreasonably in failing to
recognize or to pursue it.” Sharpe, 470 U.S. at 687.
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C. Analysis
After carefully reviewing the record, including the officers’ body camera
footage, we agree with the district court that their actions were reasonable. The
officers were effectuating a felony arrest of Mr. Stuart, who was in the same car as
Mr. Bosman. They initially asked Mr. Stuart if there were any weapons in the car.
Mr. Stuart said no. But after Mr. Stuart left the car, he revealed he was armed and
that Mr. Bosman also had a gun. Only then did the officers, reacting to new
information and an escalating situation, point their guns at Mr. Bosman.
Perhaps most significant, the officers had no knowledge of where the gun was
located. As the district court found, the back seat of the car was cluttered, so there
were numerous places where Mr. Bosman could reach for the weapon and thus pose a
safety risk to the officers. The officers also had identified bystanders in the vicinity,
adding to safety concerns. Under these circumstances, the officers did not act
unreasonably by pointing their guns at Mr. Bosman and threatening to shoot for
wayward movement.
Mr. Bosman makes two arguments. Both lack merit.
First, his reliance on United States v. King is misplaced. There, an officer was
directing traffic after an accident when the defendant began honking his horn
repeatedly. King, 990 F.2d at 1555. When the officer approached the car, the
defendant apologized for the commotion. Id. The officer noticed a pistol on the
defendant’s person and immediately drew her revolver and pointed it at the
defendant. Id. Because the state permitted individuals to have guns in their cars, and
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because the initial interaction stemmed from the officer’s effort to move traffic, we
held the officer’s action was unreasonable under the circumstances. Id. at 1563. Mr.
Bosman argues the officers here had similar safety concerns, so their actions also
were unreasonable. We disagree. The circumstances in the two cases differ
significantly.
In King, the officer knew exactly where the firearm was located at all times
during her interaction with the defendant. Here, the officers were not aware that Mr.
Bosman had a gun until Mr. Stuart alerted them. So it was reasonable for them to
take additional precautions once they learned about the gun, especially because they
did not know where it was located.
Moreover, the officer in King was directing traffic and had no reason to be on
higher alert when she noticed the defendant’s gun. But the officers here were
effectuating a felony arrest of someone in the same car as Mr. Bosman. Although
both the defendant in King and Mr. Bosman may have complied with instructions
from law enforcement, the officers here were on higher alert when they began
interacting with Mr. Bosman. They pointed their guns at him only when they
suddenly learned he was armed and did not know where the gun was located.
King is therefore inapposite.
Second, Mr. Bosman contends the officers should have simply commanded
him to get out of the car. But doing so may have put them at greater risk given the
circumstances. And we cannot base our determination of reasonableness solely on
“whether some other alternative was available.” Sharpe, 470 U.S. at 687. We thus
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decline Mr. Bosman’s request that we engage in the “unrealistic second-guessing”
that the Supreme Court has warned against. Montoya de Hernandez, 473 U.S. at 542(quotations omitted).
III. CONCLUSION
We affirm.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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