United States v. Hammond , 890 F.3d 901 ( 2018 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 15, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-1102
AJOHNTAE HAMMOND,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:16-CR-00201-RBJ-1)
_________________________________
Josh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender
with him on the briefs) office of the Federal Public Defender, Denver, Colorado,
appearing for the appellant.
James C. Murphy, Assistant United States Attorney (Robert C. Troyer, Acting United
States Attorney with him on the brief) Office of the United States Attorney, Denver,
Colorado, appearing for the appellee.
_________________________________
Before BRISCOE, EBEL, and PHILLIPS, Circuit Judges.
_________________________________
EBEL, Circuit Judge.
_________________________________
In 2016, two members of the Aurora Police Department pulled over a car in
which Ajohntae Hammond was riding as the passenger in a busy intersection in
Aurora, Colorado. The question we must decide in this appeal is whether the officers
had reasonable suspicion to believe Hammond was armed and dangerous to justify
frisking him for weapons. The pat-down they conducted revealed a gun in
Hammond’s pocket and Hammond was charged with being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). Based on information the officers
gleaned from the department’s Police Information Management System (“PIMS”)
prior to the pat-down that connected Hammond and the car to gang activity and
weapons possession, along with the officers’ observation that Hammond was wearing
gang colors, we hold that the officers possessed reasonable suspicion to justify the
pat-down search. Therefore, exercising jurisdiction pursuant to 28 U.S.C. § 1291, we
AFFIRM the district court’s decision denying Hammond’s motion to suppress the
firearm.
I. BACKGROUND
It was approximately 9:15 PM on the evening of March 16, 2016, when
Officer Randall Ricks and his partner, Officer Jonathan McCants, pulled up behind a
black Chevrolet Monte Carlo stopped at a red light. Noticing that the Monte Carlo
had a brake light out, Officer Ricks ran a search for the vehicle’s license plate in the
PIMS. From this search Officer Ricks learned that the car had been seized in
connection with a weapons possession case in mid-February of that year, and that an
individual named Ajohntae Hammond had been arrested as part of that case. From
there, Officer Ricks ran a PIMS search for Hammond, which revealed that in addition
to his arrest for the weapons possession case mentioned in connection to the Monte
Carlo, Hammond had also been listed as a suspect in a separate weapons possession
2
case, and had been flagged in the system as a documented gang member. At this
point Officer McCants turned on his lights and sirens, and pulled over the Monte
Carlo on the basis of the broken brake light.
The Monte Carlo pulled into a parking lot just past the intersection of South
Chambers and East Alameda in Aurora, Colorado. At the district court Officer Ricks
agreed that this was a “major” and “well-lit” intersection with several commercial
businesses and apartment complexes, and that there was traffic traveling in both
directions at the time of the stop. Aplt. App. Vol. III at 15–16. He added that while
“the area itself” is one he paid “particular attention to” as a high-crime neighborhood,
the intersection itself was not a high-crime area. Id. at 16. In fact the Aurora Police
Department building is located at one corner of the intersection.
Officers Ricks and McCants then approached the Monte Carlo. While Officer
McCants began to interact with the driver, Officer Ricks—with Hammond’s name
and criminal history in mind—knocked on the passenger window and asked that it be
rolled down. The passenger, later identified as Hammond, opened the door and
explained that the window did not roll down. Officer Ricks then asked for
identification, and after first asking why Officer Ricks needed to see his
identification, Hammond handed Ricks his ID, which confirmed that he was, in fact,
Ajohntae Hammond.
It was at this point that Officer Ricks “decided that Mr. Hammond would be
asked to step out of the vehicle and would be pat [sic] down for weapons.” Id. at 11.
According to Officer Ricks, he did so
3
[b]ased on the fact that I had, prior to the stop, learned that Mr.
Hammond had been arrested once for weapons possession, listed as an
offender suspect in one case and was listed as a gang member. And
through my training and experience, I know that gang members are
often known to carry weapons on or about their person.
Id. at 11–12. Officer Ricks also noted that Hammond was wearing “clothing
commonly worn by members of the Crip street gang,” namely a “[g]ray and blue LA
Dodgers hat, gray pants and gray shoes and a blue belt.” Id. at 11.
At first, Hammond objected to Officer Ricks’s request for him to exit the
vehicle. He ultimately, however, calmly complied with the order when Officer
McCants “interjected and told him, because he was a documented gang member, we
wanted to make sure he didn’t have any weapons on him.” Id. at 13. As Hammond
exited the Monte Carlo he continued to ask the officers questions, but was not
aggressive in his tone. After Officer McCants joined him on the passenger side of
the car, Officer Ricks conducted a pat-down search of Hammond, eventually
discovering a loaded .32 caliber Beretta Tomcat in the front pocket of his sweatshirt.
After securing the weapon and placing Mr. Hammond under arrest, the officers
confirmed that Hammond had a prior felony conviction. On this basis the
government charged Hammond with one count of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1).
Hammond moved to suppress the gun as fruit of an illegal search. Specifically
he argued that Officers Ricks and McCants did not have reasonable suspicion that he
was armed and dangerous when they ordered him out of the car and conducted their
pat-down search. After a suppression hearing the district court denied the motion,
4
and Hammond conditionally pled guilty, reserving the right to appeal the denial to
this Court.
II. DISCUSSION
The Fourth Amendment protects persons against “unreasonable searches and
seizures.” U.S. Const. amend. IV.1 This Court has recognized three types of police-
citizen encounters: (1) “consensual encounters which do not implicate the Fourth
Amendment”; (2) “investigative detentions which are Fourth Amendment seizures of
limited scope and duration and must be supported by a reasonable suspicion of
criminal activity”; and (3) “arrests, the most intrusive of Fourth Amendment seizures
and reasonable only if supported by probable cause.” United States v. Davis, 94 F.3d
1465, 1467-68 (10th Cir. 1996) (internal quotations and citations omitted)
(“Davis I”). The government does not argue that this encounter was consensual or
that it was supported by probable cause. We therefore treat the encounter here as an
investigative detention.
During the “course of a valid investigative detention, an officer may conduct a
limited protective search (‘frisk’) if the officer harbors an articulable and reasonable
suspicion that the person is armed and dangerous.” Id. at 1468 (citing United States
v. King, 990 F.2d 1552, 1557 (10th Cir. 1993)). Here, Hammond does not challenge
the validity of the original traffic stop, and so the question before us is whether
Officers Ricks and McCants had reasonable suspicion that Hammond was armed and
1
The Fourth Amendment is enforceable against the States through the Due Process
Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961).
5
dangerous at the time they decided to frisk him for weapons. In reviewing the denial
of a motion to suppress, we accept the district court’s factual findings unless clearly
erroneous, and review de novo the question of whether the search was reasonable
under the Fourth Amendment. United States v. Davis, 636 F.3d 1281, 1288 (10th
Cir. 2011) (“Davis II”) (citing United States v. Gregoire, 425 F.3d 872, 875 (10th
Cir. 2005)).
The reasonableness of a pat-down search during an investigative detention is
governed by the Supreme Court’s analysis in Terry v. Ohio, 392 U.S. 1 (1968). See,
e.g., United States v. Garcia, 751 F.3d 1139, 1142 (10th Cir. 2014)) (“Garcia II”). In
Terry, the Supreme Court held that a pat-down search, while brief, is a “serious
intrusion upon the sanctity of the person, which may inflict great indignity and arouse
strong resentment, and it is not to be undertaken lightly.” Terry, 392 U.S. at 17–18.
The Court further held, however, that “there must be a narrowly drawn authority to
permit a reasonable search for weapons for the protection of the police officer, where
he has reason to believe that he is dealing with an armed and dangerous individual.”
Id. at 27. While the officer “need not be absolutely certain that the individual is
armed,” he must be sure that “a reasonably prudent man in the circumstances would
be warranted in the belief that his safety or that of others was in danger.” Id. When
he possesses this reasonable suspicion, an officer is permitted to “conduct a carefully
limited search of the [suspect’s] outer clothing . . . in an attempt to discover weapons
which might be used to assault him.” Id. at 30.
6
The Terry analysis, while developed in reaction to encounters among police
and pedestrians, also applies in the context of a traffic stop. See, e.g., Arizona v.
Johnson, 555 U.S. 323, 330 (2009). Once a vehicle has been lawfully detained
pursuant to a valid traffic stop, the officers may order the driver and passengers out
of the car without violating the Fourth Amendment. Id. at 331. Further, an officer
may perform a pat-down of a driver and any passengers “upon reasonable suspicion
that they may be armed and dangerous.” Id. at 332 (quoting Knowles v. Iowa, 525
U.S. 113, 117-18 (1998)). “While reasonable suspicion cannot be based on a ‘mere
hunch,’ it also ‘need not rise to the level required for probable cause, and falls
considerably short of satisfying a preponderance of the evidence standard.’”
Davis II, 636 F.3d at 1291 (quoting United States v. Arvizu, 534 U.S. 266,
274(2002)). The purpose of this pat-down, however, “is not to discover evidence of a
crime, ‘but to allow the officer to pursue his investigation without fear of violence.’”
United States v. Manjarrez, 348 F.3d 881, 886–87 (10th Cir. 2003) (quoting Adams
v. Williams, 407 U.S. 143, 146 (1972)).
In assessing whether officers have reasonable suspicion to effectuate this stop,
courts look to the “totality of the circumstances” surrounding the interaction.
Davis II, 636 F.3d at 1290. “This process allows officers to draw on their own
experience and specialized training to make inferences from and deductions about the
cumulative information available to them that might well elude an untrained person.”
Id. at 1291 (quoting Arvizu, 534 U.S. at 273).
7
For example, in United States v. DeJear, 552 F.3d 1196, 1200–01 (10th Cir.
2009), this Court found reasonable suspicion for a Terry frisk notwithstanding the
fact that when the officers originally approached the car containing the defendant the
car was lawfully parked and they had no information illegal activity was occurring.
There, after officers approached the vehicle, they noticed that the passengers were “in
a very nervous state,” and that one of the men in the backseat of the car was holding
a baseball bat. Id. at 1198. The Court reasoned that these observations, combined
with the vehicle’s location in a high-crime neighborhood and the fact that the officers
had recently observed individuals wearing gang colors parked outside the same
house, were sufficient to establish reasonable suspicion that the suspect was armed
and dangerous. Id. In other words, the officers’ experiences during the interaction
heightened their suspicion enough to meet the Terry standard.
The facts in this case also bear resemblance to those in Garcia II. There, a
single officer pulled over a car on a “sparsely traveled avenue,” and arrested the
driver for driving with a suspended license. Garcia II, 751 F.3d at 1140. With the
driver arrested, the officer was required to inventory the car, which meant the
passenger needed to be removed from the vehicle. Id. Because the officer was alone,
this entailed ordering the passenger out of the car and then necessarily turning his
back on the passenger while conducting the search. See id. While ordering the
passenger out of the car, the officer recognized him as Mr. Garcia, whom the officer
had encountered two weeks prior. Id. During that first encounter the officer had
arrested Mr. Garcia—whom he knew as a drug user with a criminal history—but Mr.
8
Garcia had been unarmed. Id. After recognizing Mr. Garcia upon ordering him out
of the car, the officer also noticed that he was acting “nervous” and was “possibly
hiding something.” Id. at 1141.
On the basis of, (1) his previous encounter, (2) Garcia’s criminal history,
including an armed robbery felony, (3) a concern that the officer was alone and
would have to turn his back on Mr. Garcia, (4) Mr. Garcia’s nervousness, and (5) Mr.
Garcia’s history with drugs, the officer decided to conduct a pat-down for weapons.
Id. at 1141. This Court held that, while any one of these facts alone would be
insufficient to support reasonable suspicion, the totality of the circumstances meant
the officer had reasonable suspicion that Garcia was armed and dangerous. Id.
at 1148.
So too here. As did the officer in Garcia II, Officers Ricks and McCants
possessed reasonable suspicion that Hammond was dangerous, and here that
suspicion of dangerousness was inexorably linked to a concern about firearms. As a
result of their PIMS search, the officers knew that Hammond had been arrested
recently in connection with weapons possession, that he had previously been a
suspect in another weapons case, and that he was listed as a suspected gang member,
which the officers knew often suggested the presence of guns.
Standing alone, a criminal record—let alone arrests or suspected gang
affiliation—“is not sufficient to create reasonable suspicion of anything[.]” United
States v. Rice, 483 F.3d 1079, 1085 (10th Cir. 2007). Nor should it be. After all,
“[i]f the law were otherwise, any person with any sort of criminal record—or even
9
worse, a person with arrests but no convictions—could be subjected to a Terry-type
investigative stop by a law enforcement officer at any time[.]” United States v.
Sandoval, 29 F.3d 537, 543 (10th Cir. 1994). Such a rule would offend the careful
balance between individual liberty and public safety that is at the heart of the Fourth
Amendment.
But where, as here, the circumstances of the stop itself interact with an
individual’s criminal history to trigger an officer’s suspicions, that criminal history
becomes critically relevant for Terry-purposes. See, e.g., United States v. Palmer,
360 F.3d 1243, 1246 (10th Cir. 2004) (holding that defendant’s status as an ex-
convict was relevant alongside evidence that he had tried “to delay his encounter
with the officer until he could hide something in his glove box”). Critically, upon
approaching the passenger side of the Monte Carlo, Officer Ricks observed
Hammond wearing colors commonly associated with the Crips gang. Furthermore,
the district court found, based on Officer Ricks’s testimony, that “there was a feud
ongoing between sets of the Bloods and Crips gangs and even between or among sets
within the Crips gang itself.” Aplt. App. Vol. III at 47.2
At this point the officers knew that Mr. Hammond was a gang member who
had recently been arrested for weapons possession, that he was riding in the very car
2
On cross-examination Ricks admitted that there was nothing “notable” about this
particular date in terms of feuding between the gangs, but rather that there is
basically “always” feuding between the Bloods and the Crips. Aplt. App. Vol. III
at 17. However, we accept the district court’s factual findings unless clearly
erroneous, which, upon consideration of Officer Ricks’s testimony, this is not. Davis
II, 636 F.3d at 1288 (citing Gregoire, 425 F.3d at 875).
10
seized during his previous arrest, and that he was wearing gang colors. Here,
Officers Ricks and McCants had reasonable suspicion that a suspected felon, who
was actively advertising his gang affiliation, was armed. Under those circumstances,
an officer is justified in his concern that “his safety or that of others was in danger.”
Terry, 392 U.S. at 27.
Certainly, the fact that here, unlike in Garcia II, there were two officers is also
relevant to the reasonable-suspicion calculus. There, the Court relied heavily on the
fact that the only officer on the scene would have to turn his back on the un-
restrained suspect while conducting an inventory search. Garcia II, 751 F.3d at 1139.
But we have never said, nor do we today, that a second officer’s presence and ability
to “cover” the first officer eliminates a suspect’s supposed dangerousness. See, e.g.,
United States v. Guardado, 699 F.3d 1220, 1223–24 (10th Cir. 2012) (holding that
Terry frisk was justified despite the presence of two officers and only one suspect).
That is especially true where, as here, the number of people in the stopped vehicle is
the same as the number of officers at the scene. In any event, if Mr. Hammond had a
gun readily available in his clothing, it could quickly be grabbed and used against
both officers or used to hold one hostage. Thus, we do not find the presence of two
officers here ameliorates the risk to Officer Ricks.
Our holding today is not to suggest that Mr. Hammond, or any other person
suspected or convicted of an armed crime in the past, may be indiscriminately
stopped and frisked on the basis of his criminal history and gang affiliations. Rather,
when a (1) known gang member (2) who was a suspect in a prior weapons possession
11
case and who had (3) recently been arrested in connection with another weapons
case, is pulled over (4) while riding in a car that had previously been seized in
connection with the individual’s prior arrest, (5) while wearing colors which loudly
display his affiliation with a gang involved in an ongoing feud, it is reasonable for
officers to perform a brief, non-invasive search to ensure their own safety and that of
the surrounding community.
III. CONCLUSION
The totality of the circumstances surrounding Officer Ricks’s interaction with
Mr. Hammond provided reasonable suspicion that he was armed and dangerous at the
time of the traffic stop. Accordingly we AFFIRM the district court in full.
12
17-1102, United States v. Hammond
PHILLIPS, Circuit Judge, dissenting
I agree with the majority that the two officers had objectively reasonable suspicion
that Hammond was armed.1 On that point, I too rely on the information the officers
obtained from PIMS—that Hammond had three weeks earlier been arrested for illegally
possessing a weapon,2 in an encounter leading police to seize the same car stopped here;
that Hammond had more than a year earlier been a suspect in another weapon-possession
case; and that Hammond was a documented member of the Crips gang. I also rely on
Hammond’s wearing Crips-gang colors that night. For me, those are the facts relevant to
whether Hammond was armed.
But some other facts from that evening weigh against dangerousness, unless one
takes a view that Hammond would be as likely to fire a gun at police outside their
department building in well-lit conditions with many witnesses and a congested escape
route.
In analyzing dangerousness, we first must ask dangerous to whom? Here, the
asserted danger must be to the two officers (though, of course, any crossfire would
1
“Pat-down searches are constitutional when an officer has reasonable suspicion
that an individual is ‘armed and dangerous.’” United States v. Garcia (Garcia II), 751
F.3d 1139, 1142 (10th Cir. 2014) (citing United States v. Rice, 483 F.3d 1079, 1082 (10th
Cir. 2007)).
2
Nowhere in the record, or during oral argument, did the government identify
what made this earlier weapon possession illegal. Nor has it done so for the instant arrest,
at least until the officers learned that the already-arrested Hammond had a felony
conviction.
inadvertently endanger bystanders). So the government cannot prevail on reasonable
suspicion of danger just by showing that Hammond might later pose a danger to a rival
gang member encountered in a dark alley. Danger is specific to the moment before the
police pat down a person.
Though reciting danger-lessening facts early in the opinion, the majority never
credits how they weigh against dangerousness. Among these factors are (1) that the stop
was for the minor violation of a burned-out taillight; (2) that the police didn’t treat the
female driver as a threat to their safety; (3) that Hammond was courteous, calm, and
compliant, not exhibiting anger, intoxication, or any other worrisome state;3 and (4) that
Hammond voluntarily stood outside the car’s passenger-side door in a well-lit, busy
intersection, surrounded by commercial buildings, with the Aurora Police Department
located on a corner.
In its concluding paragraph, the majority tries to limit the breadth of its holding,
approving frisks (patdowns for weapons) to ensure officer safety only “when a (1) known
gang member (2) who was a suspect in a prior weapons possession case and who had
(3) recently been arrested in connection with another weapons case, is pulled over (4)
while riding in a car that had previously been seized in connection with the individual’s
3
The district court found “that at all times Mr. Hammond behaved himself, was
cooperative, was not aggressive. There’s no indication of any furtive movements. There’s
no indication of any nervous behaviors, none of those kinds of things, nor do the officers
claim any of that.” R. vol. 3 at 48–49.
2
prior arrest, (5) while wearing colors that loudly display his affiliation with a gang
involved in an ongoing feud[.]”4 Maj. op. at 11–12.
But the opinion will be applied more broadly than that. I expect that the
government will long cite this case as authorizing frisks, and I expect that the government
will stress that we allowed a frisk here under all of the surrounding circumstances, not
just those bearing on whether Hammond was armed. Beyond that, I expect that the
government will use this case to argue that safety-protective factors don’t matter in
considering the totality of circumstances—after all, they’re not included in the majority’s
five-factor analysis. That can’t be right.
The majority does specifically review one risk-mitigating factor—that the stop
involved two officers and two car occupants. Id. at 11. To support its conclusion that “the
presence of two officers here [doesn’t] ameliorate[] the risk[,]” the majority points out
that we have never said that equal numbers “eliminate[] a suspect’s supposed
dangerousness.” Id. I agree. But neither have we said that equal numbers can never defeat
an objective reasonable suspicion of danger to the officers. We are on unplowed ground
here, and in my view, the majority goes too far in extending the circumstances supporting
frisks of persons not even suspected of a crime.
The majority may well disagree with me that we are on unplowed ground. After
all, it relies on United States v. Guardado, 699 F.3d 1220, 1223–24 (10th Cir. 2012), as
“holding that [a] Terry frisk was justified despite the presence of two officers and only
4
The majority also says that the officers “suspected” and later “confirmed” that
Hammond was a felon. Maj. op. at 4, 11. I don’t see this in the record.
3
one suspect.” Maj. op. at 11. But Guardado presents markedly different facts from this
case. In Guardado, a suspected gang member (Guardado) fled his compatriots when an
officer approached the group at about 1:00 a.m. in an “extremely high crime area.”
Guardado, 699 F.3d at 1221–22. As the man ran, he kept one hand in front of his body,
leading the officer to believe he was trying to conceal evidence or a weapon. Id. at 1222.
Upon physically subduing Guardado, the officers strained to remove his hand from
underneath his body. Id. After doing so, and handcuffing him, one of the officers frisked
Guardado’s waistband for weapons. Id. This far different situation makes Guardado a
poor candidate to support the majority’s extending the availability of frisks.
The majority also relies on Garcia II. I see Garcia II as an easier case, with facts
far different from ours. The stop in that case was on a “sparsely travelled” avenue, with
just one officer making the stop. Garcia II, 751 F.3d at 1140. After arresting the driver,
the officer needed to inventory the car, so the officer had to turn his back to Garcia; the
officer apparently couldn’t await backup, because of staffing issues; the officer
remembered a recent encounter in which Garcia had fled and, when caught, required
tasering after assuming a fighting stance with fists clenched; the officer knew that Garcia
had a violent felony (armed robbery); the officer knew that Garcia was a drug user,
especially heroin; and during the stop, the officer observed that Garcia acted nervously,
avoiding eye contact and playing with his hands. Id. at 1140–41.The facts in Garcia II
present far more likelihood of danger to officer safety than do those here.5
5
The majority also relies on United States v. DeJear, 552 F.3d 1196 (10th Cir.
2009), as a case where the facts “were sufficient to establish reasonable suspicion that the
4
As support for its new rule—that a person like Hammond, reasonably suspected of
being armed, always presents a danger in the majority’s listed circumstances—the
majority makes a fact finding better suited for the district court. Namely, the majority
asserts that “if Mr. Hammond had a gun readily available in his clothing, it could quickly
be grabbed and used against both officers or used to hold one hostage.” Maj. op. at 11.
Maybe so. But I think that the district court needs to make that type of finding based on
meaningful evidence from the government.6 And the district court didn’t.
In my view, the district court collapsed armed and dangerous into one condition.
In other words, it assumed that if the officers had objectively reasonable suspicion that
Hammond was armed, then they would automatically have objectively reasonable
suspicion that he endangered them during the misdemeanor stop. See R. vol. 3 at 46–51.
The district court didn’t explain how Hammond might endanger an alert officer intently
watching him for the few minutes needed to complete the taillight stop. Id. Instead, the
district court declared the frisk legal based on “common sense,” saying that the officer
had to do something other than ask Hammond to sit by the curb7 or ask him how he was
doing that evening or about the Denver Broncos. R. vol. 3. at 50. To spare the officer any
suspect was armed and dangerous.” Maj. op. at 8. I read DeJear as a Terry-stop case,
upholding reasonable suspicion of criminal activity, not reasonable suspicion that the
person was armed and dangerous. DeJear, 552 F.3d at 1201 (“[T]he district court
properly concluded that [the officer] had reasonable suspicion to detain Mr. DeJear.”).
6
Surely the government could provide evidence, including officer testimony or
statistics, explaining common outcomes in this type of circumstance.
7
As opposed to frisking Hammond, which Terry recognizes is a significant Fourth
Amendment event, see Terry v. Ohio, 392 U.S. 1, 17–18 (1968), the officers might have
protected themselves by actions less intrusive than a frisk.
5
awkward small talk, I guess, the district court approves a frisk instead. I would require
more—a fact finding, based on meaningful evidence, that the officers had objectively
reasonable suspicion that Hammond would endanger them during the stop.
6