United States v. Valenzuela , 231 F. App'x 785 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
April 11, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-2206
RUDY VALENZUELA, (D.C. No. CR 04-1475 LH)
(D.N.M.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY, BALDOCK, and HARTZ, Circuit Judges.**
Albuquerque police officers responding to a burglary-in-progress call found
Defendant Rudy Valenzuela, a felon, hiding inside a nearby car. A rifle was in plain view
in the back seat of the car. A grand jury indicted Defendant on one count of being a felon
in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and
924(e)(1). Following the denial of Defendant’s motion to suppress the firearm and
ammunition, Defendant entered a conditional plea of guilty reserving his right to appeal the
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
court’s ruling. See Fed. R. Crim. P. 11(a)(2). Defendant claims on appeal the district court
should have suppressed the rifle and ammunition because the evidence was the fruit of an
unlawful arrest. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.
I.
On appeal from an order denying a motion to suppress, we accept the district court’s
factual findings unless clearly erroneous, and view the evidence in the light most favorable
to the Government. See United States v. Walker, 474 F.3d 1249, 1252 (10th Cir. 2007).
Following a hearing on Defendant’s motion to suppress, the district court made findings
consistent with the record. Around 5:00 p.m. on October 30, 2003, Gabriel Jaramillo heard
noises in his backyard. After looking out a back window and seeing nothing suspicious,
Jaramillo looked out his front window and saw a man running away with his pit bull puppy.
Jaramillo did not confront the man because he was caring for his one year old son. Lisa
McAllister, one of Jaramillo’s neighbors, was in the apartment complex parking lot when she
saw the man carrying Jaramillo’s dog. McAllister confronted the man and asked him what
he was doing with Jaramillo’s dog. The man responded he was returning the dog, but no one
was home. Sure that Jaramillo was home at the time, McAllister told the man to return the
dog. The man refused, got into a blue car, and drove away hitting a parked car in the
process. After the confrontation, McAllister spoke with Jaramillo. Neither Jaramillo nor
McAllister contacted the police.
Shortly before midnight that evening, a man knocked on Jaramillo’s front door. The
knock awoke Jaramillo. Believing the man would go away, Jaramillo did not answer the
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door. The man, however, continued knocking on the front door, back door, and windows for
approximately ten minutes. The man was yelling that he was bringing Jaramillo’s dog back
and wanted a reward. While standing in a hallway inside his apartment, Jaramillo observed
a Hispanic man wearing a dark t-shirt standing outside his backdoor carrying a rifle.
Frightened, Jaramillo called the police.
Four officers from the Albuquerque Police Department responded to a burglary-in-
progress call. Before making contact with Jaramillo, the officers combed the area around
Jaramillo’s apartment but did not find the man. Officer Garcia, the lead officer, spoke to
Jaramillo. Jaramillo told Officer Garcia that earlier in the day a man had stolen his dog and
that a man holding a rifle had been knocking on his doors and windows saying he had found
his dog and wanted a reward. Officer Garcia told Jaramillo they would continue looking for
the man.
As the officers walked back to their patrol cars, Officer Gutierrez noticed some
movement inside a blue car parked approximately thirty feet from Jaramillo’s apartment.
Officer Gutierrez approached the car and saw Defendant inside the car “scrunched down in
kind of like a fetal position, almost underneath the driving wheel.” Officer Gutierrez also
saw in plain view a rifle in the back seat of the car. The officers drew their weapons and
ordered Defendant out of the car. Defendant did not immediately comply. Officer Garcia
then opened the driver’s side door and ordered Defendant to exit the car and lie down on the
street. When Defendant got out of the car and before the officers asked him any questions,
Defendant blurted out “I was just trying to return the dog.” Officer Garcia handcuffed
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Defendant. Officer Gutierrez secured the rifle. After running Defendant’s name through the
system, the officers learned Defendant was possibly a convicted felon.1
Defendant sought to suppress the rifle and ammunition arguing the officers exceeded
the permissible scope of a Terry detention when they ordered him out of the car at gun point
and handcuffed him. At that point, according to Defendant, the officer’s conduct became an
arrest unsupported by probable cause. The district court concluded the officers had
reasonable suspicion to detain Defendant and order him out of the car, as well as probable
cause to arrest him. Defendant entered a conditional plea of guilty to one count of possession
of a firearm and ammunition by a felon. The district court sentenced him to 180 month
imprisonment followed by three years of supervised release. Defendant timely appealed.
II.
On appeal, Defendant readily concedes the officers had reasonable suspicion to detain
him and investigate. He argues, however, the officers used excessive force when the officers
forced him out of his car at gun point and handcuffed him, thus converting the detention into
an unlawful arrest. “Under the Fourth Amendment, the intrusiveness of a search or seizure
will be upheld if it was reasonable under the totality of the circumstances.” United States v.
Perdue, 8 F.3d 1455, 1462 (10th Cir. 1993). We review the ultimate determination of
reasonableness de novo. See Walker, 474 F.3d at 1252.
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While Defendant was detained, Officer Garcia spoke with McAllister.
McAllister gave Officer Garcia a description of the man she observed carrying
Jaramillo’s dog, as well as a description of the vehicle in which the man fled.
McAllister’s description matched Defendant and his car.
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An officer may briefly detain an individual for an investigative purpose if the officer
has a reasonable suspicion supported by articulable facts that criminal activity may be afoot.
See United States v. Sokolow, 490 U.S. 1, 7 (1989). The scope of a detention must be at all
times reasonably related to the suspicious circumstances that justified the detention in the
first place. See United States v. Neff, 300 F.3d 1217, 1220 (10th Cir. 2002). When a
detention exceeds its permissible scope, it becomes an arrest and must be supported by
probable cause. See id. The permissible scope of an investigative detention, however,
“cannot be determined by reference to a bright-line rule[.]” Id. Rather, “common sense and
ordinary human experience must govern over rigid criteria.” Id. While investigative
detentions must be fairly non-intrusive, “[a] law enforcement agent, faced with the possibility
of danger, has a right to take reasonable steps to protect himself and an obligation to ensure
the safety of innocent bystanders, regardless of whether probable cause to arrests exists.”
United States v. Merkley, 988 F.2d 1062, 1064 (10th Cir. 1993).
The officer’s conduct in this case did not exceed the scope of a Terry stop under the
circumstances and was reasonable at all times. We have previously held a Terry stop does
not necessarily become unreasonable because officers draw their weapons and point them
at a subject. See United States v. Shareef, 100 F.3d 1491, 1506 (10th Cir. 1996); see also
Neff, 300 F.3d at 1220. “[T]he use of guns in connection with a stop is permissible where
the police reasonably believes the weapons are necessary for their protection.” Perdue, 8
F.3d at 1462. In holding the use of firearms reasonable under certain circumstances, we
noted that “[w]henever the police confront an individual reasonably believed to present a
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serious and imminent danger to the safety of the police and public, they are justified in taking
reasonable steps to reduce the risk that anyone will get hurt.” United States v. Merritt, 695
F.2d 1263, 1274 (10th Cir. 1982).
In Perdue, for example, officers conducted a search of a rural property believed to be
a site for marijuana cultivation. 8 F.3d at 1458. During the search, officers discovered
several weapons in addition to large quantities of marijuana. Id. Two officers, who were
assigned to secure the perimeter, heard over their radios that the officers found weapons
during the search. Id. While the search was ongoing, the two officers observed a car
entering the dirt road leading to the property. Id. On seeing the officers, the car attempted
to turn around. Id. Before being able to do so, the two officers drew their weapons and
ordered the two occupants of the car to get out and lie down on the ground. Id. We rejected
Perdue’s contention the officer’s conduct was tantamount to an arrest. Id. at 1462-63. While
recognizing that effectuating a Terry stop by pointing guns at a subject may, in some
situations, elevate a seizure to an arrest, we held the officers did not act unreasonably under
the circumstances. Id. at 1463. The officers knew guns were present on the property and
“[t]his fact alone justifi[ed] any concerns the officers had for their personal safety.” Id. See
also Merritt, 695 F.2d at 1273 (holding officers acted reasonably in ordering a murder
suspect believed to be heavily armed and dangerous out of his truck with guns drawn and
pointed at the defendant).
Similarly, we have held a detention “does not become unreasonable just because
police officers use handcuffs on a subject or place him on the ground.” Neff, 300 F.3d at
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1220. The use of handcuffs during the course of an investigative detention is a reasonable
means of neutralizing potential danger. See Perdue, 8 F.3d at 1463. Ordering a suspect to
lie down on the ground and handcuffing him, “provides the officers with a better view of the
subject and prevent[s] him from obtaining weapons which might . . . [be] in the car or on his
person.” Id. In Shareef, for example, an officer stopped three vehicles for speeding. After
checking for identifications and radioing it to a police dispatcher, the dispatcher reported one
of the drivers was wanted on weapons charges and was considered armed and dangerous.
100 F.3d at 1495-97. When backup arrived, the officers, with guns drawn, ordered the
occupants of the vehicle to exit the vehicles one by one. Id. at 1497. Each individual was
frisked, handcuffed, and ordered to kneel on the payment. Id. About one hour and a half
after initiating the detention, the officers learned the suspect was not in fact a wanted felon.
Id. at 1498. We held that “although bordering on an illegal arrest, the precautionary
measures of force employed by the officers were reasonable under the circumstances.” Id.
at 1506. We reasoned the officers’ “reasonable belief that the defendants posed a danger
justified the procedures in this case,” and, therefore, “the officers were entitled to display
their weapons . . . and to restrain the defendants[.]” Id. at 1506.
In much the same way, the officers in this case acted reasonably when, with weapons
drawn, they ordered Defendant to lie down on the street and handcuffed him. The officers
were responding to a potential burglary and had been informed the subject was armed. The
officers were justified in their reasonable belief the subject could pose a danger to their
safety. The officer’s concern for their safety was heightened when Officer Gutierrez found
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Defendant hiding inside of a car and observed a rifle within Defendant’s reach. The officers
acted reasonably in drawing their weapons, ordering Defendant to lie down on the street, and
handcuffing him until the rifle could be secured and Defendant could be patted down to
ensure he did not possess another weapon. See United States v. Sparks, 291 F.3d 683, 690
(2002) (concluding officers are entitled to seize evidence revealed in plain view during the
course of a lawful investigatory detention). Officers should not be required to take
unreasonable risks in performing their duties. Because “safety may require the police to
freeze temporarily a potentially dangerous situation, both display of firearms and the use of
handcuffs may be part of a reasonable Terry stop.” Merkley, 988 F.2d at 1062. The district
court properly denied Defendant’s motion to suppress.
AFFIRMED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
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