United States v. Santio , 351 F. App'x 324 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
October 30, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 08-4216
v. (D.Ct. No. 2:07-CR-00378-TC-1)
(Utah)
FRANCISCO SANTIO,
Defendant-Appellant.
______________________________
ORDER AND JUDGMENT *
Before KELLY, BRORBY, and MURPHY, Circuit Judges.
Appellant Francisco Santio pled guilty to one count of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In pleading guilty,
Mr. Santio reserved his right to challenge the district court’s ruling on his motion
to suppress evidence. On appeal, he contends the district court erred in denying
his motion to suppress because law enforcement officers lacked a reasonable and
articulable suspicion he engaged in a criminal activity for the purpose of stopping
him. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
*
This order and judgment is not binding precedent except under the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.
I. Factual and Procedural Background
The following facts, provided as evidence at the suppression hearing and
otherwise supported by the record, surround Mr. Santio’s detention and arrest. At
about 3:30 a.m. on May 16, 2007, a South Jordan City, Utah detective, Bret
Miller, requested assistance from Jared Nichols, another South Jordan City
detective, and Richard Simonelli, a United States deputy marshal, concerning an
unoccupied stolen vehicle. Specifically, Detective Miller asked them to stake out
the stolen vehicle in case anyone came for it. According to Detective Nichols, he
knew the area where the stolen vehicle was parked because it involved a crime
area, he had “been there on some stolen vehicles in the past,” and he had been
there on different gang unit calls. Detective Nichols and Deputy Simonelli, who
are both members of the Salt Lake City Metro Gang Unit, drove separate
unmarked police cars and parked on the same street as the stolen vehicle,
“blend[ing] in with the rest of the cars on the street.” Detective Nichols parked
on the north side of the street, facing west, two houses east of and on the same
side of the street as the stolen car; while Deputy Simonelli parked facing east,
across the street from the stolen vehicle.
After twenty minutes without any foot traffic, Mr. Santio and a woman
walked past Deputy Simonelli’s unmarked car, heading eastbound on the south
side of the street, across from the stolen vehicle. Detective Nichols explained
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that as Mr. Santio walked down the street in the direction of the stolen vehicle, he
“kept looking really fidgety, kept looking around, just very suspicious” and
“nervous.” Similarly, Deputy Simonelli described Mr. Santio as “looking back
over his shoulder,” “looking around,” and “looking behind him, like he was
looking for someone to come up behind him” or to “see if anybody was watching
them.” Mr. Santio continued to walk in the direction of the stolen car, and when
he was directly across from it, he stopped and looked toward the area of the
vehicle. Mr. Santio then sat down on the curb directly across from the vehicle for
a minute or two, and, according to Detective Nichols, was then “really looking the
area over,” “looking everywhere,” and “looking around like he was looking for
someone or looking out over the area.” Detective Nichols found it “very
suspicious that [Mr. Santio] was sitting directly across the street from the car”
and “felt he had some connection towards the car.” It is not clear whether Mr.
Santio noticed the officers’ presence.
Mr. Santio then walked away, at which time Detective Nichols noticed he
was wearing a long white belt which hung down to his knees. Based on his
training and experience, which included eight years in law enforcement and two
and one-half years in the metro gang unit, he believed the white belt “possibly
could be a part of a gang-type of a flag, a signal they send out.” Similarly, when
Mr. Santio earlier walked past him, Deputy Simonelli noticed the white belt and,
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based on his three years of experience with the metro gang unit, also believed it
indicated gang affiliation. He also noticed Mr. Santio was wearing blue jeans and
a blue shirt and knew Sureno gang members typically wear all blue. Detective
Nichols also noticed Mr. Santio wore baggy pants, which he stated “could conceal
anything ... as far as guns, weapons, [or] knives.”
At that time, Detective Nichols attempted to stop Mr. Santio by pulling up
behind him in his unmarked car and turning on his emergency lights. At first, Mr.
Santio “just kept walking” without turning around, which “raised a flag” for
Detective Nichols, but eventually Mr. Santio stopped. While explaining a stolen
vehicle was the reason for the stop, Detective Nichols “noticed that [Mr. Santio]
had a tattoo of a spiderweb right on his chin,” which he believed could mean Mr.
Santio served prison time. Similarly, Deputy Simonelli noticed the spiderweb
tattoo, which he believed could indicate gang affiliation. Detective Nichols then
asked Mr. Santio if he “kicked it with anybody” to ascertain whether he was a
gang member; Mr. Santio responded his gang name was “Trouble” and “he kicked
it with the Southside,” which verified to Detective Nichols that Mr. Santio was a
gang member with either the Southside Surenos or Southside Nortenos.
Based on his experience, Deputy Simonelli was on “alert” for his and
Detective Nichols’s safety. Similarly, based on Mr. Santio’s physical
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characteristics and behavior, Detective Nichols asked Mr. Santio if he had any
weapons, to which he replied “he had a couple of pair of scissors,” removed them
from his pockets, and threw them on the grass. Detective Nichols then told Mr.
Santio to stop reaching into his pockets and patted him down.
While patting Mr. Santio down, Detective Nichols found a gun magazine
holding nine .40 caliber bullets in it. He then asked Mr. Santio if he was a
convicted felon, to which he responded “yes.” At that time, Detective Nichols
handcuffed Mr. Santio. Meanwhile, the woman accompanying Mr. Santio told
Deputy Simonelli that Mr. Santio had a gun, which, with her help, the officers
found hidden by a fence just a few feet away from where Mr. Santio stopped.
Later, authorities determined Mr. Santio had nothing to do with the stolen vehicle.
On June 13, 2007, an indictment issued, charging Mr. Santio with one
count of being a felon in possession of a firearm and one count of being a felon in
possession of ammunition, both in violation of 18 U.S.C. § 922(g)(1). Mr. Santio
filed a motion to suppress the firearm and ammunition obtained as a result of his
stop and seizure. After a hearing on the motion, where Detective Nichols and
Deputy Simonelli proffered the foregoing testimony, the district court issued a
written decision denying Mr. Santio’s motion. It determined that “[b]ased on the
totality of circumstances, Detective Nichols and Deputy Simonelli had a
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reasonable suspicion that Mr. Santio was involved in criminal activity [sufficient]
to justify the initial stop.” In making this determination, the district court found:
(1) the police observed Mr. Santio and his female companion walking in a high
crime neighborhood where stolen vehicles had been of concern in the past; (2)
they were walking in this high crime neighborhood very late at night, at 3:30
a.m.; (3) Mr. Santio’s long white belt was a possible indicium of gang
involvement; (4) both officers “credibly testified” Mr. Santio was acting in a
suspicious manner, leading both of them to believe he was involved with the
stolen vehicle; and (5) Mr. Santio’s behavior, including his walking toward and
then sitting directly across from the stolen vehicle, indicated an interest in or
connection with the vehicle.
With respect to the search of Mr. Santio’s person, the district court found
the officers “had ample reason to believe [he] might be armed and dangerous.” It
based its determination on Mr. Santio’s: (1) gang affiliation and moniker
“Trouble”; (2) baggy pants, which could conceal guns, knives, or other weapons;
(3) spiderweb tattoo on his face; and, “most importantly,” (4) admission he was
carrying weapons when asked and voluntary removal of two pair of scissors from
his pockets. The district court explained that once the officers “knew Mr. Santio
was carrying weapons, they had an undeniable concern for safety to justify the
minimal intrusion of the search.”
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Following the district court’s denial of his motion to suppress, Mr. Santio
entered a conditional guilty plea to Count One for being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). After Mr. Santio pled guilty, a
federal probation officer prepared a presentence report in conjunction with the
2007 United States Sentencing Guidelines, which resulted in a recommended
advisory guideline range of thirty to thirty-seven months imprisonment. Mr.
Santio’s only objection concerned an error in the presentence report, which was
corrected by the probation officer. The district court then sentenced Mr. Santio to
thirty-four months imprisonment and thirty-six months supervised release. Mr.
Santio is not appealing either his sentence or the search of his person.
II. Discussion
In appealing his conviction, Mr. Santio argues the district court erred in
denying his motion to suppress evidence because the police lacked a reasonable
and articulable suspicion he was engaged in criminal activity for the purpose of
stopping or detaining him. In support of his argument, Mr. Santio claims that
while “[t]he district court relied on five factors to support its finding,” “[n]one of
these factors standing alone, provides a lawful basis for the investigative
detention.” Instead, he claims “all of the factors relied on by the district court are
consistent with lawful behavior.” In making this argument, Mr. Santio relies
primarily on our decision in United States v. Davis, 94 F.3d 1465 (10th Cir.
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1996), contending that, like that case, no specific factual basis existed for
suspecting him of committing a particular crime at the time the officers detained
him. In response, the government argues the district court properly denied Mr.
Santio’s motion to suppress based on the five factors it articulated.
In reviewing the district court’s denial of Mr. Santio’s motion to suppress,
we examine a district court’s “factual findings for clear error and view the
evidence in the light most favorable to the government.” United States v. DeJear,
552 F.3d 1196, 1200 (10th Cir.), cert. denied, 129 S. Ct. 2418 (2009). However,
“[w]e review de novo the reasonableness of a search or seizure under the Fourth
Amendment.” Id. Additionally, “[t]he credibility of witnesses, the weight
accorded to evidence, and the reasonable inferences drawn therefrom fall within
the province of the district court.” Id.The Supreme Court, in Terry v. Ohio, established a law enforcement officer
“may in appropriate circumstances and in an appropriate manner approach a
person for purposes of investigating possibly criminal behavior even though there
is no probable cause to make an arrest.” United States v. Treto-Haro, 287 F.3d
1000, 1004 (10th Cir. 2002) (quoting Terry, 392 U.S. 1, 22 (1968)). “Under the
Fourth Amendment, an investigative detention ... is reasonable if it is ... justified
at its inception and ... reasonably related in scope to the circumstances which
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justified the interference in the first place.” DeJear, 552 F.3d at 1200 (quotation
marks and citation omitted). “A detention is justified at its inception if the
specific and articulable facts and rational inferences drawn from those facts give
rise to a reasonable suspicion a person has or is committing a crime.” Id.(quotation marks and citation omitted). Reasonable suspicion may exist where an
officer has “a particularized and objective basis for suspecting legal wrongdoing.”
United States v. Arvizu, 534 U.S. 266, 273 (2002) (quotation marks and citation
omitted). However, “[i]nchoate suspicions and unparticularized hunches are not
sufficient.” DeJear, 552 F.3d at 1200 (quotation marks and citation omitted).
“Nevertheless, the level of suspicion required for reasonable suspicion is
considerably less than proof by a preponderance of the evidence or that required
for probable cause.” Id. (quotation marks and citations omitted).
We determine whether reasonable suspicion exists from the totality of the
circumstances. See Arvizu, 534 U.S. at 273. A “determination that reasonable
suspicions exists ... need not rule out the possibility of innocent conduct.” Id. at
277. Thus, behavior susceptible to innocent interpretation may create reasonable
suspicion depending on the totality of the circumstances confronting an officer.
See Oliver v. Woods, 209 F.3d 1179, 1187-88 (10th Cir. 2000). When
determining if a detention is supported by reasonable suspicion, we “defer to the
ability of a trained law enforcement officer to distinguish between innocent and
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suspicious actions.” United States v. Zubia-Melendez, 263 F.3d 1155, 1162 (10th
Cir. 2001) (quotation marks and citations omitted).
In this case, the district court articulated five factors it considered in
determining that “[b]ased on the totality of the circumstances, Detective Nichols
and Deputy Simonelli had a reasonable suspicion that Mr. Santio was involved in
criminal activity [sufficient] to justify the initial stop.” First, it noted the police
observed Mr. Santio and his female companion walking in a high crime
neighborhood where stolen vehicles, like the one at issue, had been of concern in
the past. Presence in a high crime area is “among the relevant contextual
considerations in a Terry analysis,” even though such presence “standing alone is
not enough to support a reasonable, particularized suspicion that the person is
committing a crime.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000); see also
DeJear, 552 F.3d at 1201.
Not only were Mr. Santio and his companion walking in a high crime
neighborhood, but the district court found they did so very late at night – at 3:30
in the morning. The time of the detention, including the late hour of the night or
early hour of the morning, is a factor we consider in determining whether
reasonable suspicion exists. See United States v. Clarkson, 551 F.3d 1196, 1202
(10 th Cir. 2009); Gallegos v. City of Colorado Springs, 114 F.3d 1024, 1029 (10 th
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Cir. 1997).
In addition, the district court found Mr. Santio wore a long white belt,
which the officers believed, based on their experience in the metro gang unit, was
a possible indicium of gang involvement. Mr. Santio also sported blue clothing,
which one of the officers believed also indicated gang affiliation. Although gang
affiliation or prior criminal conduct cannot, standing alone, create a reasonable
suspicion to support a search or seizure, under certain circumstances it may be an
appropriate factor in determining if reasonable suspicion exists for a detention or
search. See DeJear, 552 F.3d at 1201 (indicating the fact officer had previously
seen people standing outside home wearing colors affiliated with local gangs was
an appropriate factor, when considered as part of the totality of the circumstances,
to support reasonable suspicion for detention); United States v. Garcia, 459 F.3d
1059, 1067 (10th Cir. 2006) (holding that “[a]lthough not necessarily
determinative by itself, ... gang connection further supports the reasonableness of
a weapons frisk”); see also United States v. Feliciano, 45 F.3d 1070, 1074 (7th
Cir. 1995) (holding that “[k]nowledge of gang association and recent relevant
criminal conduct, while of doubtful evidentiary value in view of the strictures
against proving guilt by association or by a predisposition based on past criminal
acts, is a permissible component of the articulable suspicion required for a Terry
stop”).
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Next, the district court found both officers credibly testified Mr. Santio was
acting in a suspicious manner, leading both of them to believe he was involved
with the stolen vehicle. The conduct leading to this belief included the fact that
as Mr. Santio walked down the street in the direction of the stolen vehicle, he
“kept looking really fidgety, kept looking around, just very suspicious,” and was
“looking back over his shoulder,” “looking around,” and “looking behind him,
like he was looking for someone to come up behind him” or to “see if anybody
was watching them.” This suspicious behavior intensified as Mr. Santio sat
across from the stolen vehicle, when he was “really looking the area over” and
“looking everywhere.”
We have held “nervousness is a sufficiently common-indeed natural-
reaction to confrontation with the police” and has “limited significance in
determining whether reasonable suspicion exists” unless the nervousness “is
unusually severe or persistent, or accompanied by other, more probative, grounds
for reasonable suspicion.” United States v. Santos, 403 F.3d 1120, 1127 (10th
Cir. 2005) (quotation marks and citations omitted). In this case, no police
interaction precipitated Mr. Santio’s nervous behavior, so no natural reaction to a
confrontation with the metro gang unit officers is at issue. Even if Mr. Santio
knew of their presence, his nervous behavior involved an inordinately persistent
and unusually prolonged amount of looking around the area while walking in the
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direction of the stolen vehicle, approaching it, and then sitting across the street
from it. Not only did he display this type of nervous behavior, but, as discussed
by the district court, his nervousness was accompanied by other probative grounds
for reasonable suspicion. Thus, in this instance, Mr. Santio’s nervousness clearly
constituted a pertinent factor for consideration by an experienced law
enforcement officer staking out the stolen vehicle.
Mr. Santio contends his nervous behavior can be explained by the fact he
was with a woman in a high crime area late at night, and “may have been looking
around the area for rival gang members.” However, as previously discussed,
behavior susceptible to innocent interpretation may create reasonable suspicion
depending on the totality of the circumstances confronting the officer, see Oliver,
209 F.3d at 1188, and we defer to the ability of trained officers to distinguish
between innocent and suspicious actions, see Zubia-Melendez, 263 F.3d at 1162.
Thus, while simply “looking around” may not alone garner much weight, it may
be considered under a totality of circumstances analysis, as it was here.
Finally, the district court considered the fact Mr. Santio walked toward, and
then sat directly across from, the stolen vehicle for two minutes, which it
determined indicated an interest in or connection with the vehicle. Again,
behavior susceptible to innocent interpretation may create reasonable suspicion
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depending on the totality of the circumstances. See Oliver, 209 F.3d at 1188. In
this case, the officers were on a stake out to watch for anyone who may have had
an interest in a stolen vehicle for the purpose of finding out who stole it. The fact
Mr. Santio walked toward, sat across from, and looked toward the stolen vehicle
before moving on, was sufficient for the district court to find an indication of his
interest in or connection with the stolen vehicle, especially when coupled with his
behavior in continuously looking around in a suspicious or evasive manner. Thus,
based on the totality of the circumstances and in viewing the evidence in the light
most favorable to the government, we conclude the district court did not err in
finding a reasonable suspicion existed that Mr. Santio was involved in criminal
activity sufficient to justify the initial stop.
In arguing the circumstances involved in this case do not support a
reasonable suspicion for his stop, Mr. Santio relies heavily on our decision in
United States v. Davis. While we recognize some similarities in the
circumstances presented here with those in that case, our decision in Davis does
not change our conclusion the district court did not err in denying Mr. Santio’s
motion to suppress.
In Davis, officers on patrol arrived in an area where gunshots reportedly
had been fired. See 94 F.3d at 1467. One of those officers had previously
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investigated two shootings in the area, had been involved in eight arrests
involving drugs and/or firearms in the same area, and knew of active gang
presence there. Id. In addition, the officers were aware that one building in the
area housed a business known as a “juice joint” because it illegally sold liquor
without a license while also operating legal activities involving dominoes and
pool play. Id. While investigating the report of gunshots in the area, the officers
observed four occupants in a vehicle parked just north of the juice joint and saw
the defendant exit the vehicle. Id. As he exited the vehicle, he made eye contact
with one of the officers, broke that eye contact, and began walking toward the
juice joint with his hands in his pockets. Id. The officer recognized him, knew
he was an ex-convict acquitted of a gang-related homicide, and had information
he had been selling narcotics. Id. At that time, the officers told the defendant to
stop and take his hands out of his pockets, but he continued walking in the same
direction and manner until he was physically forced to stop. Id. Ultimately,
officers found a firearm in the back seat of his vehicle. Id.In Davis, we determined the district court erred in denying the defendant’s
motion to suppress evidence of the firearm because the officers did not have a
reasonable, articulable suspicion of criminal activity. Id. at 1468. In making that
determination, we found neither the defendant’s presence in a high crime area nor
his approaching a business offering both illegal and legitimate activities was
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enough, standing alone, to conclude he engaged in criminal conduct. Id. We also
concluded his conduct in breaking eye contact and walking away from the officers
did not provide “a particularized and objective basis” for stopping him. Id.Finally, we found that neither having his hands in his pockets on a December
night nor knowledge of his prior criminal record, standing alone, justified an
investigative stop. After considering each of these factors separately, we
considered the totality of the circumstances presented and determined the
government failed to show any specific factual basis for suspecting the defendant
committed the crime of unlawfully carrying a firearm, including, for example, a
lack of evidence he had a suspicious bulge in his coat pockets, they received a tip
from an informer, or the defendant made any threatening movement toward the
officers. Id. at 1469-70.
Like Davis, certain circumstances involved here, standing alone, are
insufficient to suggest a reasonable and articulable suspicion of criminal activity.
As previously discussed, these circumstances include Mr. Santio’s presence in a
high crime area, the time of night, and his gang affiliation. As we also pointed
out, some nervous behavior when in the presence of a police officer generally is
not enough to indicate involvement in criminal activity. However, simply
because these circumstances, standing alone, are not sufficient to implicate
criminal activity does not mean they may not be considered under the totality of
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the circumstances, as the district court did here and we did in Davis.
In addition, unlike the defendant in Davis, Mr. Santio’s behavior implicated
a reasonable and articulable suspicion he was involved in the very criminal
activity the officers were investigating; i.e., the stolen vehicle and Mr. Santio’s
seemingly discernable interest in that vehicle. Mr. Santio’s behavior included not
only his walking toward the stolen vehicle, but his stopping and sitting across
from it, looking toward the area where it was parked, and his display of extreme
and prolonged signs of nervousness, regardless of whether he could see the
officers in the dark, seated in their unmarked vehicles. This conduct is different
from Davis, where the defendant: (1) merely approached a building housing, in
part, a legitimate pool and dominoes business which was not specifically the
subject of the gunshots being investigated; (2) only showed negligible nervous
behavior by breaking eye contact and walking away from the visible presence of
police officers, and (3) otherwise displayed no sign he was carrying a gun or
involved in the gunshots at issue. Thus, when considering the totality of the
circumstances here, including Mr. Santio’s extreme, prolonged nervous behavior,
his seemingly conspicuous interest in the stolen vehicle, the lateness of night, his
presence in a high crime area, and his apparent gang affiliation, we conclude,
unlike we did in Davis, that a specific and articulable factual basis existed for
suspecting he committed the crime in question.
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III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s denial of Mr.
Santio’s motion to suppress evidence and his conviction.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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