United States v. Raddon ( 2015 )


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  •                                                            FILED
                                                   United States Court of Appeals
                    UNITED STATES COURT OF APPEALS         Tenth Circuit
    
                           FOR THE TENTH CIRCUIT                      December 15, 2015
                           _________________________________
                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
    UNITED STATES OF AMERICA,
    
           Plaintiff-Appellee,
    
    v.                                                   No. 15-4013
                                               (D.C. No. 2:14-CR-00021-CW-1)
    MARC DANE RADDON,                                     (D. Utah)
    
           Defendant-Appellant.
                         _________________________________
    
                            ORDER AND JUDGMENT *
                            _________________________________
    
    Before BRISCOE, McKAY, and BACHARACH, Circuit Judges.
                      _________________________________
    
          This appeal involves the denial of a motion to suppress. The motion
    
    grew out of Mr. Marc Raddon’s objection to a late-night search of his
    
    rental car. At the time, Mr. Raddon and another individual were parked in
    
    an unlit section of a gas station’s parking lot. Suspicious of criminality,
    
    two police officers questioned Mr. Raddon and his companion and
    
    eventually searched the car. During the search, the police officers found
    
    guns and ammunition, which ultimately led to Mr. Raddon’s conviction for
    
    possession of a firearm and ammunition after a felony conviction.
    
    
    *
          This order and judgment does not constitute binding precedent except
    under the doctrines of law of the case, res judicata, and collateral estoppel.
    But the order and judgment may be cited for its persuasive value under
    Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
          Mr. Raddon appealed, arguing that the police conducted an
    
    investigative detention without reasonable suspicion of criminal activity.
    
    The district court rejected the argument on the ground that the encounter
    
    involved consent rather than an investigative detention. The government
    
    argues that this characterization was correct, adding in the alternative that
    
    the police reasonably suspected criminal activity even if the encounter
    
    involved an investigative detention. In deciding this appeal, we rely solely
    
    on the government’s alternative argument, concluding that the police had
    
    reasonable grounds for suspicion. As a result, we affirm the denial of Mr.
    
    Raddon’s motion to suppress.
    
          Police encounters can take three forms:
    
          1.    consensual encounters
    
          2.    investigative detentions
    
          3.    arrests
    
    United States v. Shareef, 
    100 F.3d 1491
    , 1500 (10th Cir. 1996). The parties
    
    apparently agree that the police did not arrest Mr. Raddon until after they
    
    had searched his rental car. But the parties disagree on whether the initial
    
    encounter was consensual. The government argues that the encounter was
    
    consensual; Mr. Raddon characterizes the encounter as an investigative
    
    detention. We need not decide who is correct.
    
          Even if the initial encounter constituted an investigative detention,
    
    the government defends the ruling based on reasonable grounds to suspect
    
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    criminality. If the government is correct, the search would have been
    
    permissible even if the encounter involved an investigative detention. See
    
    United States v. King, 
    990 F.2d 1552
    , 1557 (10th Cir. 1993). The
    
    suspicion would have been reasonable if the totality of circumstances
    
    created a particularized, objective basis for an investigative detention.
    
    Poolaw v. Marcantel, 
    565 F.3d 721
    , 736 (10th Cir. 2009).
    
          The district court conducted an evidentiary hearing and found eight
    
    facts (among others):
    
          1.    Mr. Raddon was parked in a high-crime area.
    
          2.    The search took place between approximately 11:00 and 11:30
                p.m.
    
          3.    Mr. Raddon left one gas station and drove to a nearby gas
                station.
    
          4.    Mr. Raddon parked in a dark area of the parking lot even
                though other spaces were lit.
    
          5.    Mr. Raddon sat in his rental car for approximately ten minutes.
    
          6.    Mr. Raddon flashed his headlights for a moment, just as an
                unmarked police car drove by.
    
          7.    Mr. Raddon’s headlights prevented the police officer in the
                unmarked car from (a) observing what was going on in Mr.
                Raddon’s rental car and (b) getting his license tag number.
    
          8.    The gas station (where Mr. Raddon was parked) was closed,
                and the only person inside was a clerk.
    
    R. vol. 2, at 132, 134. Based on these findings, the police officers’
    
    suspicion was reasonable. Id. at 131.
    
    
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          Mr. Raddon does not challenge any of the district court’s factual
    
    findings. Instead, he argues that the suspicion was unreasonable. In
    
    reviewing that conclusion, we consider not only the court’s findings but
    
    also the government’s evidence on matters going beyond the factual
    
    findings. See United States v. Conner, 
    699 F.3d 1225
    , 1231 (10th Cir.
    
    2012) (relying in part on evidence, for reasonable suspicion, even though
    
    the district court had not relied on that evidence). This evidence included
    
    testimony that
    
                  Mr. Raddon had backed into a parking spot, permitting him to
                   leave by driving forward rather than backing out and
    
                  only one other car was in the parking lot.
    
    R. vol. 2, at 22, 43.
    
          Together, the findings and evidence create reasonable suspicion of
    
    criminality:
    
                  Why else would Mr. Raddon go from one gas station to another
                   gas station’s parking lot, shortly before midnight, 1 and sit in
                   his car for ten minutes?
    
                  Why else would he choose to park in a dark section of a
                   parking lot in a high-crime area? 2
    
    
    
    1
          See United States v. McHugh, 
    639 F.3d 1250
    , 1257 (10th Cir. 2011)
    (“We have . . . held that the fact that an incident occurred late at night or
    early in the morning is relevant to the . . . analysis [of reasonable
    suspicion].”).
    2
         The Court can consider the fact that the investigative detention
    occurred in a high-crime area. McHugh, 639 F.3d at 1257.
                                             4
               Why else would he back into the parking spot, allowing a quick
                departure, when only one other car was in the lot?
    
          In determining whether the findings and evidence created reasonable
    
    suspicion, we “accord deference to [the police officers’] ability to
    
    distinguish between innocent and suspicious actions.” United States v.
    
    Simpson, 
    609 F.3d 1140
    , 1146-47 (10th Cir. 2010). Both police officers
    
    testified that they had regarded the circumstances as suspicious.
    
          For example, one of the officers explained that it was suspicious for
    
    someone to flash his headlights, turn them off immediately, and remain
    
    parked in a dark section of a parking light in a high-crime area:
    
                 The most peculiar circumstance I noticed was the
          headlight issue where knowing that the vehicle, based on
          Officer Stone’s observation, had been to one convenience store,
          left and driven to another one, and when I initially turned onto
          the 8590 West that the headlights came on on the vehicle, I
          initially assumed the vehicle was going to pull out of the
          parking stall. But after I passed the vehicle, for the headlights
          to turn back off and the vehicle to stay parked there and with
          still nobody exiting the vehicle, yes, I believe that to be
          suspicious, especially in that area parked in that parking lot.
    
    R. vol. 2, at 102.
    
          The other police officer added that he had found it suspicious for the
    
    driver to park behind the building, out of view, in a manner in which he
    
    could exit quickly even though it was late at night:
    
          So they pulled into this gas station known as the Fastrac, and
          they pulled behind and parked in a – basically there’s a few
          stalls that are behind the building. They’re pretty much out of
          view, it’s darker back there. They parked and they parked
          where they could exit onto the roadway with ease. There was
                                          5
          no obstruction, so it was a straight shot out. And that didn’t
          seem like normal business, especially at that time of night.
          There was nobody else there except one car which belongs to
          the clerk that was running the place.
    
    Id. at 22.
    
          The officer added that the travel from one gas station to another
    
    suggested that the occupants could be under-age youngsters trying to buy
    
    beer or individuals preparing to rob the clerk:
    
                And so, you know, that kind of, you know, just added to
          my, okay, what are these guys doing now? You know, I’m not
          sure whether they were, you know, younger guys and they were
          trying to buy some alcohol at Chevron and they got denied, so
          now they went down to the other place and they were going to
          try and buy or, you know, were they going to try and do a beer
          run on the place or were they going to try to rob the place? I
          just wasn’t sure.
    
    Id.
    
          Mr. Raddon questions the officers’ concerns, arguing that the
    
    findings and evidence could just as easily suggest innocent behavior. For
    
    example, Mr. Raddon says he might have been reading a map or taking a
    
    rest. Even if these possibilities were plausible, they would not preclude
    
    reasonable suspicion. See United States v. Pettit, 
    785 F.3d 1374
    , 1381
    
    (10th Cir. 2015) (“[T]he existence of a plausible innocent explanation does
    
    not preclude a finding of reasonable suspicion.”).
    
          But the police could reasonably consider these possibilities as
    
    implausible. For example, the police officers might have wondered how
    
    Mr. Raddon could read a map, while parked in a dark section of the
    
                                          6
    parking lot, without using his interior lights. Or the police might have
    
    wondered why Mr. Raddon would have left the first gas station if he just
    
    wanted to rest. Even defense counsel acknowledged the peculiarity of Mr.
    
    Raddon’s driving from one gas station to another. See R. vol. 2, at 120
    
    (statement by defense counsel that Mr. Raddon’s “driving pattern” was “a
    
    little weird”); Appellant’s Opening Br. at 19 (statement by defense counsel
    
    that Mr. Raddon engaged in an “unusual” driving pattern, “going from one
    
    gas station to another very close by”). And why would Mr. Raddon flash
    
    his headlights if he was simply resting? The police might consider the
    
    flashing headlights as a signal for another individual to engage in a drug
    
    deal or to assemble for a robbery. But it is difficult to see how the flashing
    
    of headlights in a deserted parking lot would be consistent with Mr.
    
    Raddon’s desire to rest.
    
          Mr. Raddon argues that the police must not have thought that their
    
    suspicions were reasonably grounded, for (1) they intended to arrange a
    
    consensual encounter rather than an investigative detention and (2) one
    
    officer allegedly lied to the other about Mr. Raddon’s conduct. But Mr.
    
    Raddon acknowledges that the police officers’ “subjective thoughts and
    
    intent” do not bear on the issue of reasonable suspicion. Appellant’s
    
    Opening Br. at 23 (quoting United States v. Whitley, 
    680 F.3d 1227
    , 1234
    
    (10th Cir. 2012)).
    
    
    
                                          7
         In our view, the police could reasonably suspect criminality from Mr.
    
    Raddon’s peculiar actions. As a result, we uphold the denial of the motion
    
    to suppress based on the government’s alternative argument for affirmance.
    
    
                                      Entered for the Court
    
    
    
                                      Robert E. Bacharach
                                      Circuit Judge
    
    
    
    
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