United States v. Coca , 704 F. App'x 744 ( 2017 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 1, 2017
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 16-2093
IVAN DANIEL COCA, (D.C. No. 2:15-CR-4115-KG-1)
(D.N.M.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TYMKOVICH, Chief Judge, and HARTZ, and BALDOCK, Circuit
Judges.
Defendant Ivan Coca, a previously convicted felon, entered a conditional plea
of guilty to possessing a firearm in violation of 18 U.S.C. § 922(g). He now appeals
the district court’s order denying his motion to suppress evidence establishing such
possession. Our jurisdiction arises under 28 U.S.C. § 1291. Per our standard
practice in such situations, we view the evidence in a light most favorable to the
Government, accept the district court’s findings of fact unless they are clearly
erroneous, and review de novo the ultimate question of reasonableness under the
Fourth Amendment. United States v. Lopez, 849 F.3d 921, 925 (10th Cir. 2017).
*
This order and judgment is not binding precedent except under the doctrines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.
Applying these standards, we affirm.
I.
The facts as revealed during the suppression hearing are undisputed. On the
afternoon of August 27, 2015, United States marshals received information that
Richard Gutierrez, a known gang member, might be present at 1505 La Fonda Drive,
Apartment 3811, in Las Cruces, a unit of the Buena Vista Apartments. Gutierrez was
wanted for violating the terms of his federal supervision by failing to report. A
federal warrant for his arrest was outstanding. Around 3:00 p.m., marshals
conducting surveillance on Apartment 3811 witnessed a male subject exit the
apartment. The subject, later identified as Defendant Coca, was wearing a baseball
cap, white muscle shirt, and shorts. He was walking westbound across La Fonda
Drive. Marshals radioed their observations to assisting officers in the vicinity. One
of those officers was Cody Austin of the Las Cruces Gang Task Unit.
Officer Austin promptly spotted Defendant walking west along a drainage
culvert running more or less perpendicular from La Fonda Drive to Stull Drive.
Austin stopped his vehicle, got out, and yelled at Defendant, who was several yards
away. Once Austin had Defendant’s attention, Austin asked if they could speak. At
that point, Defendant turned around and walked toward Austin. Austin then
recognized Defendant with whom he had “past dealings.” Rec. vol. II, at 16. After
Austin radioed the marshals’ service and assisting units to advise of the situation, he
asked Defendant where he was coming from. Defendant told Austin he was coming
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from the Telshor Manor Apartments. Those apartments were located on the other
side of the freeway. Austin “called him out on it,” and let Defendant know he
believed he was lying. Id. Austin told Defendant that just moments prior he had
been seen coming out of Buena Vista Apartment 3811. At that point, Austin asked
Defendant “if he would have a seat for me.” 1 Id. Defendant sat down in the grass
alongside the culvert. Seconds after Defendant sat down, Las Cruces Officers
Horatio Rivera, also a part of the Gang Task Unit, and Anthony Lucero, a part of the
K-9 Unit, arrived on the scene. Meanwhile, Austin radioed dispatch to check for
outstanding warrants against Defendant.
All three officers stood near Defendant while waiting for the dispatch report.
Defendant remained seated. Austin was speaking with Defendant when he noticed
in plain view a new tattoo, “CB,” on Defendant’s neck. Austin believed “CB” stood
for Cruces Boys, a Las Cruces prison gang. With Defendant’s cooperation, Officer
Rivera photographed the tattoo per the common practice of the Gang Task Unit.
After taking one or two photos while Defendant was seated, Rivera asked him to
stand up for further photos. When Defendant did so, Austin spotted a handgun
behind a folded T-shirt tucked in Defendant’s waistband. See Government’s Exh.
2. Austin knew Defendant was a convicted felon. He promptly seized the handgun
1
Austin testified that in “all my contacts, either consensual or nonconsensual,
I pose it in a question for them. I will ask them, ‘can you do me a favor and have a
seat?’ Try to avoid any conflict.” Rec. vol. II, at 17.
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and placed Defendant under arrest.
II.
In his motion to suppress, Defendant argued that Officer Austin had detained
him in violation of the Fourth Amendment, and this unlawful detention led to
discovery of the handgun. The Government responded that prior to Austin’s
discovery of the handgun, the entire encounter with Defendant was consensual. In
the alternative, the Government posited that Austin had reasonable suspicion to
detain Defendant once Defendant told him he was coming from the Telshor Manor
rather than the Buena Vista Apartments. Following a suppression hearing, the
district court ruled from the bench. The court first held the initial encounter between
Austin and Defendant was consensual. Austin asked Defendant if they might speak
and Defendant responded by turning around and approaching Austin. But, according
to the court, the encounter was no longer consensual once Austin asked Defendant
about his prior whereabouts and, unsatisfied with his response, requested Defendant
to sit while dispatch ran a check for warrants:
It was within a very short period of time, moments after they contacted
one another on that grassy area that Officer Austin asked and Mr. Coca
stated that he was coming from a location that Officer Austin construed
to be false or inconsistent with the information Officer Austin had
received from the other officers who were conducting surveillance.
Now, at that point, I don’t believe the encounter was consensual. I
believe it did evolve into a nonconsensual encounter. Because based on
that information that Mr. Coca provided to Officer Austin it was enough
that Officer Austin could . . . determine to detain Mr. Coca. And had
Mr. Coca requested to leave at that particular time, I don’t believe he
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would have been free to leave, and therefore, it was not consensual.
I will find that Officer Austin had reasonable suspicion to detain Mr.
Coca based on that response that Officer Austin construed to be
misleading and inconsistent and false as to Mr. Coca’s origin, or, in
other words, where he was walking from, and it was after that point . . .
that Officer Austin had reasonable suspicion to detain and investigate
further.
Rec. vol. II, at 113–114.
A.
We recognize three sorts of police-citizen interactions: consensual encounters,
investigative detentions, and arrests. A consensual encounter is not a seizure within
the meaning of the Fourth Amendment and need not be supported by suspicion of
criminal activity. In comparison, an investigative detention is an encounter during
which a police officer stops and briefly detains a person for investigative purposes.
Such detention constitutes a seizure under the Fourth Amendment and is lawful only
if the officer has a reasonable suspicion supported by articulable facts, together with
rational inferences to be drawn therefrom, that criminal activity may be afoot.
Finally, an arrest is a Fourth Amendment seizure characterized by the intrusive or
lengthy nature of the detention. Only probable cause will support an arrest. See
Morris v. Noe, 672 F.3d 1185, 1191–92 (10th Cir. 2012).
“Reasonable suspicion is a particularized and objective basis for suspecting the
person stopped of criminal activity.” In other words, something more than an
inchoate or unparticularized suspicion or hunch is necessary.
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United States v. Rodriquez, 739 F.3d 481, 485 (10th Cir. 2013) (emphasis added).
But the standard is not particularly demanding. The circumstances necessary to
arouse reasonable suspicion fall “considerably short of satisfying a preponderance
of the evidence standard.” United States v. Arvizu, 534 U.S. 266, 274 (2002).
B.
Assuming without deciding that Officer Austin seized Defendant when he
asked him to sit down, we ask what a prudent officer cognizant of the facts and
circumstances known to Austin could reasonably suspect. 2 See Rodriguez, 739 F.3d
at 486. Austin knew the marshals were seeking to execute an arrest warrant on
Gutierrez. Austin knew both Gutierrez and Defendant were likely gang members.
Austin also knew the marshals suspected Gutierrez was inside Apartment 3811 and
that just moments prior marshals had witnessed a man exiting the apartment, the
description of whom fit Defendant. A reasonable inference from these facts is that
Defendant may very well have known Gutierrez was wanted. Finally, Austin knew
that Defendant’s response to the question about his prior whereabouts was suspect.
See United States v. Treto-Haro, 287 F.3d 1000, 1006 (10th Cir. 2002) (recognizing
that even ambiguous behavior, susceptible to innocent interpretation, may give
rise to a reasonable suspicion of criminality depending on the totality of the
2
A person is seized for Fourth Amendment purposes when, considering all
the surrounding circumstances, the police conduct “would have communicated to a
reasonable person that the person was not free to . . . terminate the encounter.”
Florida v. Bostick, 501 U.S. 429, 439 (1991).
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circumstances).
In this case, the totality of the circumstances coupled with N.M. Stat. Ann
§ 30-22-1.A. would have provided a prudent officer with the suspicion necessary to
detain Defendant consistent with the Fourth Amendment. Section 30-22-1 addresses
the obstruction of justice. Subsection A. defines obstructing an officer as
“knowingly obstructing, resisting or opposing any officer of this state or any other
duly authorized person serving or attempting to serve or execute any process or any
rule or order of the courts of this state or any other judicial writ of process.” Here,
consistent with the Fourth Amendment’s demands, a prudent officer could have
reasonably suspected that when Defendant failed to acknowledge his apparent
presence inside Apartment 3811, he was seeking to thwart the marshals and assisting
units in their efforts to execute an arrest warrant and apprehend Gutierrez.
Because the district court properly concluded that Officer Austin had
reasonable suspicion to detain Defendant before he saw the handgun in Defendant’s
waistband, its judgment is AFFIRMED.
Entered for the Court,
Bobby R. Baldock
United States Circuit Judge
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