United States v. Hodges , 215 F. App'x 737 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
February 2, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 06-5038
v.
(D.C. No. 05-CR-124-HDC)
(N.D. Okla.)
PAUL D EA N HODGES,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before O ’BRIEN, H O LLO W AY, and HO LM ES, Circuit Judges.
Defendant-Appellant Paul Hodges was indicted on August 2, 2005, for one
count of possession of a firearm and ammunition by a prohibited person, a
violation of 18 U.S.C. §§ 922(g)(8) and 924(a)(2). Hodges filed a motion to
suppress the use as evidence of the firearm and ammunition on the grounds that
the officers obtained the evidence in an unlawful search and seizure. The district
court denied Hodges’ motion to suppress and conducted a jury trial. Hodges was
found guilty, and he received a sentence of 24 months’ incarceration, three-years’
*
This order and judgment is not binding precedent except under the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 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
supervised release, a $2,000 fine, and a special assessment of $100. Hodges now
appeals. The only issue presented to us is the correctness of the district court’s
denial of H odges’ motion to suppress.
W e have jurisdiction under 28 U .S.C. § 1291 and affirm Hodges’
conviction.
I. BACKGROUND
On January 24, 2005, at approximately 4:30 a.m., Tulsa police officer
Charles H aywood responded to a suspicious-person report. R., Vol. III, at 4 (all
references to “R.” are to Volume III of the record). W hen he arrived in the
area— an area he and his colleague, Officer Jason W hite, described as a high-
crime area— he saw a person who matched the description given in the report. R.
at 5, 6, 34. Officer Haywood stopped the person, who identified himself as
Chester A lexander, and began asking him questions. R. at 6.
Officer Haywood testified that M r. Alexander denied engaging in
suspicious activity, but reported that the occupants of a silver vehicle had just
threatened him. R. at 15, 6. Specifically, M r. Alexander said that he was leaving
a nearby motel parking lot when he saw a silver vehicle. R. at 6. Hoping to
receive a ride, M r. Alexander approached the driver of the vehicle, who turned
out to be Hodges. R. at 7. But Hodges rebuffed M r. Alexander, telling him
something to the effect of “[g]et your ass away from this car right now or there’s
going to be trouble.” R. at 7, 20.
-2-
The parties disagree about whether Hodges threatened M r. Alexander with
a gun. The district court found that Hodges’ gun was in plain view when he
threatened M r. Alexander. M oreover, while O fficer Haywood testified that,
according to M r. Alexander, Hodges never brandished or pointed his gun at M r.
Alexander, R. at 19, Officer Haywood testified that he believed that the essence
of M r. Alexander’s tip, given “[h]is body language and the way he was presenting
this information,” w as that “the guys in the car were going to do something with
this firearm. That’s w hy they were telling him he had better get aw ay from this
car, something was fixing to go down is the w ay I perceived it.” R. at 27. In
other words, Officer Haywood testified, he interpreted M r. Alexander as saying
that the man in the silver vehicle threatened him with the gun. R. at 19 (testifying
that M r. Alexander was threatened “by the subject that had the gun,” which he
took in this context “as one and the same” as being threatened “by the gun”).
W hen asked why he thought the gun was loaded, Officer Haywood testified
that “I was looking at the time of day, it was after 4:00 a.m., the location, the
high-crime area, specifically a motel parking lot where a lot of crimes occur, I
was thinking that there was possibly going to be a robbery or a shooting may
happen.” R. at 10.
Officers W hite and Ohrynowicz arrived at the scene toward the end of
Officer Haywood’s conversation with M r. Alexander, which ended with M r.
Alexander pointing out the silver vehicle to the officers. R. at 8, 39. Officer
-3-
Haywood testified that he “advised Officer W hite what M r. Alexander had related
to [him] and . . . direct[ed] O fficer W hite to check out the car.” R. at 8.
M eanwhile, Officer Haywood conducted an identification check on M r.
Alexander, w hich revealed that M r. A lexander had a felony warrant for his arrest.
R. at 10-11. Officer Haywood therefore took M r. Alexander into custody. R. at
11.
At Officer Haywood’s request, Officers W hite and Ohrynowicz drove in
their separate police cars toward the silver vehicle that M r. A lexander identified.
R. at 8, 40. Officer W hite testified that the vehicle accelerated “at a more of [sic]
a rapid rate than the normal just pulling out onto the street. And it appeared that
[the driver of the silver vehicle] w as trying to get through the intersection before
the light changed and he wasn’t able to.” R. at 40. Officer W hite activated his
emergency lights after passing through the intersection behind the vehicle
Hodges’ w as driving, but Hodges failed to stop the vehicle for what Officer W hite
described as an unusually long time (almost tw o blocks). R. at 42-43, 46.
Officer W hite testified that based on the information Officer Haywood
relayed to him, his understanding of what transpired between M r. Alexander and
Hodges, and the “very heightened awareness” he developed from observing
Hodges, he and Officer Ohrynowicz conducted a so-called “high-risk traffic
stop.” R. at 57-58, 44. Officer W hite described a “high-risk traffic stop” as one
where two or three police vehicles pull side-by-side to illuminate a car with
-4-
lights, the objective of which is to erect a “light curtain” so the individual in the
car is unable to see the police officers behind the lights. R. at 44.
Officers W hite and Ohrynowicz conducted such a stop and then ordered
Hodges to exit his vehicle and walk backward toward the officers. R. at 45.
Officer W hite then handcuffed Hodges and, after Hodges was secured, Officer
W hite conducted a pat-down search. R. at 47. Officer W hite asked Hodges to sit
down while O fficer Ohrynowicz approached the vehicle. R. at 48. Officer W hite
testified that he set Hodges down because he did not know whether there was
another individual in the car, and setting Hodges down made it difficult for
Hodges to escape and easier for Officer W hite to simultaneously watch Hodges
and Officer Ohrynowicz. R. at 48. As Officer Ohrynowicz approached the
vehicle, he informed Officer W hite that he could see in plain view the end of a
gun protruding from under the driver’s seat. R. at 48.
The officers secured the weapon and conducted a criminal history check on
Hodges. R. at 48. The criminal history check revealed that Hodges w as currently
subject to a valid protective order, which made it unlawful for Hodges to possess
a gun, so the officers arrested him. R. at 49.
II. D ISC USSIO N
W e make a two-part inquiry when addressing whether an investigative stop
was constitutional. First, the officer’s action must be justified at its inception.
Terry v. Ohio, 392 U.S. 1, 20 (1967); United States v. King, 990 F.2d 1552, 1557
-5-
(10th Cir. 1993). Second, the officer’s action must be “reasonably related in
scope to the circumstances which justified the interference in the first place.”
Terry, 392 U.S. at 20; King, 990 F.2d at 1557.
Hodges’ claims of error implicate both inquiries: (1) Hodges argues that the
police officers’ actions were not justified at their inception because the officers
lacked reasonable suspicion to conduct an investigatory stop; and (2) Hodges
argues that the police officers arrested him without probable cause, thereby
exceeding the permissible scope of the investigatory stop, when the officers
executed a “high-risk traffic stop” and then handcuffed him.
A. Investigatory Stop
In reviewing a district court order denying a motion to suppress, we accept
the district court’s factual findings unless clearly erroneous, and we view the
evidence in the light most favorable to the Government. United States v. Alcaraz-
Arellano, 441 F.3d 1252, 1258 (10th Cir. 2006). W e review de novo the ultimate
determination of Fourth Amendment reasonableness. Id.The Fourth Amendment protects individuals from “unreasonable searches
and seizures,” which applies to the States through the Fourteenth Amendment and
has been interpreted to include investigatory stops of the kind at issue in this
case. U .S. C onst. amend. IV ; U nited States v. Sokolow, 490 U.S. 1, 7 (1989). A s
explained by the Supreme Court in United States v. Sokolow, 490 U.S. 1, 7
(1989), Terry v. Ohio, 392 U.S. 1 (1968), “held that the police can stop and
-6-
briefly detain a person for investigative purposes if the officer has a reasonable
suspicion supported by articulable facts that criminal activity ‘may be afoot,’
even if the officer lacks probable cause.” The Supreme Court has applied this test
to investigatory stops because a police officer is not required to “shrug his
shoulders and allow a crime to occur or a criminal to escape.” Adams v.
W illiams, 407 U.S. 143, 145 (1972). Instead, “[a] brief stop of a suspicious
individual, in order to determine his identity or to maintain the status quo
momentarily while obtaining more information, may be most reasonable in light
of the facts known to the officer at the time.” Id. at 146.
W e evaluate whether reasonable suspicion existed by “consider[ing] the
totality of the circumstances to see if the officers have a ‘minimal level of
objective justification,’ something more than an ‘inchoate and unparticularized
suspicion or hunch” of criminal activity. United States v. M oore, 22 F.3d 241,
243 (10th Cir. 1994). See also Illinois v. Wardlow , 528 U.S. 119, 123-24 (2000);
Terry, 392 U.S. at 27 (setting forth this same standard). Officers may form a
reasonable suspicion of criminal activity by observing exclusively legal activity
so long as the defendant’s legal behavior suggests that criminal activity may be
afoot. See W ardlow, 528 U.S. at 124-126 (concluding that the officers had
reasonable suspicion to conduct an investigatory stop because the defendant was
present in a high-crime area and he subsequently fled from the police without
provocation).
-7-
W ith these principles in mind, we address the first question presented:
whether the officers’ investigatory stop of Hodges w as supported by reasonable
suspicion, based on articulable facts, that criminal activity “may be afoot.” See
Terry, 392 U.S. at 30. Hodges asserts that the officers’ suspicions were based
solely on a tip that he possessed a gun, but that such a tip is not sufficient to
justify a Terry stop because possessing a gun is not necessarily a crime under
Oklahoma law. Aplt. Br. at 10-13 (citing United States v. Ubiles, 224 F.3d 213(3d Cir. 2000), which suppressed the evidence seized from the defendant because
a tip that the defendant possessed a gun, without more, did not create reasonable
suspicion). Compare 21 Okl. St. § 1289.13 (making it illegal to carry a loaded
firearm in a motor vehicle over a public highway or roadway), w ith 21 Okl. St.
§ 1289.7 (making it lawful to carry an unloaded firearm in a motor vehicle). The
Government asserts that the high-crime area, the early-morning hour, the
information that Hodges used a gun in a threatening manner, and the officers’
experience with similar situations supported the officers’ belief that Hodges was
going to commit a crime. See, e.g., Aplee. Reply Br. at 11.
W e hold that Officer Haywood had reasonable suspicion supported by
articulable facts that criminal activity “may be afoot” and, at least because of his
directive to the other officers, the officers w ere permitted under the Fourth
Amendment to conduct an investigatory stop of Hodges. The precipitating event
that generated Officer Haywood’s initial suspicion was M r. Alexander giving him
-8-
a tip: M r. Alexander informed Officer Haywood that Hodges had a firearm in
plain view when he threatened M r. Alexander to get aw ay from his car or there
would be trouble. R. at 19. W hile courts have not alw ays accepted a citizen’s tip
as sufficient to generate reasonable suspicion, M r. Alexander’s tip is a sufficient
basis for reasonable suspicion because the information he provided possessed “an
indicia of reliability.” Adams, 407 U.S. at 147. See also Illinois v. Gates, 462
U.S. 213, 233 (1983) (stating that “the informant’s ‘veracity’ or ‘reliability’ and
his ‘basis of knowledge’ . . . [are important factors; however], a deficiency in one
may be compensated for, in determining the overall reliability of a tip, by a strong
showing as to the other, or by some other indicia of reliability”).
The overall reliability of M r. Alexander’s tip is demonstrated by the
considerable detail M r. Alexander provided to O fficer Haywood, the fact that M r.
Alexander honestly identified himself in person before relaying the tip, and the
fact that M r. Alexander identified the silver car about which he w as speaking so
the officers could immediately begin pursuing Hodges. Cf. United States v. Roch,
5 F.3d 894, 898 (5th Cir. 1993) (finding opposite conclusions about similar
factors).
M oreover, the officers testified that they observed sufficient details to
corroborate M r. Alexander’s tip. After describing Hodges’ threat and the silver
car, M r. Alexander spotted the car and identified it to the officers. Officer W hite,
one of the officers who pulled Hodges over, testified that Hodges accelerated
-9-
quickly after Officer W hite approached him, potentially trying to evade the
officers, and did not capitulate for two full blocks. R. at 40.
W hile it is possible that Hodges’ gun was unloaded, Officer Haywood
reasonably concluded that the conduct and circumstances of w hich he w as aware
supported his judgment that Hodges had engaged or was about to engage in
criminal activity. For example, in addition to M r. Alexander’s tip, Officer
Haywood also considered the fact that Hodges’ conduct took place in a high-
crime area at 4:30 a.m. Officer Haywood testified that, based on his experience,
criminal activity is likely afoot when an individual threatens another with a gun
while present in a high-crime area at 4:30 a.m. See, e.g., R. at 10.
Similarly, Officer W hite testified that he considered the high-crime area,
his experience patrolling the area, his understanding (based on what M r.
Alexander and Officer Haywood told him) that the driver of the silver vehicle had
a gun, and the “very heightened awareness” he developed from observing H odges’
evasive behavior. R. at 34, 37, 44. W hile these factors might not have
individually generated reasonable suspicion that criminal activity may be afoot,
the totality of the circumstances demonstrates that the officers had reasonable
suspicion sufficient to conduct an investigatory stop. **
**
The Supreme Court does not require each officer involved to have all the
information necessary to generate reasonable suspicion if the officer whom the
detaining officer relies upon has reasonable suspicion that criminal activity may
be afoot. See United States v. Hensley, 469 U.S. 221, 230 (1985) (stating that
(continued...)
-10-
In addition to this obvious possibility that Hodges’ threatening behavior
portended possible criminal conduct, Officer Haywood reasonably concluded,
based on M r. Alexander’s tip and the high-crime area and early-morning hour,
that Hodges’ gun was loaded— a crime itself in Oklahoma since Hodges possessed
the gun in his vehicle. R. at 9-10 (testifying that although he always treats guns
as if they are loaded, he specifically believed that Hodges’ gun was loaded based
on several specific factors). See 21 Okl. St. § 1289.13 (making it illegal to carry
a loaded firearm in a motor vehicle over a public highway or roadway).
**
(...continued)
there is no reason why a police department should not be able to act on the basis
of a flyer indicating that another department has reasonable suspicion of the
suspect’s involvement in a crime); W hiteley v. W arden, W yo. State Penitentiary,
401 U.S. 560, 568 (1971) (implying that an officer would have had probable
cause to arrest a suspect based on a radio bulletin about the suspect if the police
who issued the radio bulletin had probable cause, even though the radio bulletin
did not specify the evidence that gave the issuing police probable cause); United
States v. Shareef, 100 F.3d 1491, 1503 n.4 (10th Cir. 1996) (stating that “[i]t is
well-established that when an order to stop . . . a suspect is communicated to
officers in the field, the underlying facts constituting . . . reasonable suspicion
need not be communicated, so long as the individual . . . issuing the order can
justify the intrusion on Fourth Amendment rights”).
Officer Haywood had reasonable suspicion that criminal activity may be
afoot, and he “direct[ed] Officer W hite to check out the car” while he detained
M r. Alexander. R. at 8. W e note that Officer Haywood even went beyond his
mere directive to the other officers when he communicated information about the
tip to Officer W hite. M oreover, Officer W hite personally knew about this high-
crime area, information to corroborate the tip, and Hodges’ evasive behavior. W e
need not decide whether Officer W hite himself had a reasonable suspicion
because his reliance on Officer Haywood’s directive, especially when combined
with the information Officer Haywood conveyed to him and the information he
personally acquired, was sufficient to justify an investigatory stop of Hodges.
-11-
Hodges cites United States v. Ubiles, 224 F.3d 213 (3d Cir. 2000), to
support his assertion that his detention violated the Fourth A mendment because
M r. Alexander’s tip that he had a gun was not sufficient to generate reasonable
suspicion. Hodges’ reliance on Ubiles is misplaced. In Ubiles, the police
searched the defendant’s person after an anonymous tipster informed authorities
that the defendant possessed a gun. Id. at 214. Starting with the premise that it
was not a crime to possess a gun in the Virgin Islands (where the search took
place), the court noted that there was no evidence that the defendant possessed the
gun unlaw fully, no evidence that the defendant was committing or about to
commit a crime, and no evidence that the defendant posed a threat to the officers
or anyone in the crowd. Id.Unlike in Ubiles, however, the officers here acted on more than an
anonymous tip that Hodges possessed a gun. M r. Alexander, who fully identified
himself to Officer Haywood, informed the officer that Hodges threatened him
with a gun. After Officers W hite and Ohrynowicz approached Hodges, he quickly
accelerated the vehicle he was driving and failed to pull over for two blocks.
M oreover, this interaction took place in a high-crime area at 4:30 a.m., unlike
Ubiles, where the tip and search occurred in the middle of the morning at a
crowded street festival.
Hodges also relies on United States v. Roch, 5 F.3d 894 (5th Cir. 1993), as
“a case of interest.” Aplt. Br. at 11. In Roch, a police officer received a tip that
-12-
the defendant planned to pass forged checks and kill the next police officer he
saw. Id. at 896. The officer then told a Bureau of Alcohol, Tobacco, and
Firearms (ATF) agent that the suspect was staying at a certain motel and that he
“felt this person was a convicted felon.” Id. The police officer and other ATF
agents found the defendant and searched his vehicle— a search that yielded a
weapon. Id.The Fifth Circuit held that the search violated the Fourth Amendment. Id.
at 899. The court first noted that the police did not observe any activity during
their surveillance of the defendant’s motel that would support a finding of
reasonable suspicion. Id. at 897-98. Although the court recognized that an
informant’s tip alone may create reasonable suspicion, the court found that the tip
at issue was not reliable and that “the criminal activity as to which the defendant
sought to raise a reasonable suspicion was that Roch was a felon and possessed a
gun. . . . [But] absent any corroboration of Roch’s status as a convicted felon, the
government had no reasonable suspicion that the criminal activity suggested by
the informant was afoot.” Id. at 898, 899. Put otherwise, the police lacked
reasonable suspicion because the only fact that made the defendant’s gun
possession illegal was a fact that the officers had not corroborated.
Applying Roch here, Hodges argues that the officers did not have specific
information to support their conclusion that his gun was loaded, which he claims
is the reason why the officers thought he illegally possessed the gun. Aplt. Br. at
-13-
13. Consequently, Hodges concludes, there was no reason to believe that criminal
activity may be afoot and therefore no justification for the investigatory stop. Id.Hodges oversimplifies the Government’s evidentiary showing and
inadequately addresses Roch’s distinguishable facts. In holding the search
unconstitutional, Roch distinguished the Supreme Court’s decision to uphold a
search in Adams v. W illiams, 407 U.S. 143 (1972), because the officers in Adams
based their suspicion on a tip that the defendant possessed narcotics, an act that is
per se illegal. Roch, 5 F.3d at 899. On the contrary, Roch reasoned, the officers
in the case before it based their suspicion on their unsupported belief that the
defendant was a felon who possessed a firearm. Id. The Roch officers’ suspicion
was unreasonable because gun possession is not per se illegal and the officers did
not have a sufficient reason to believe that the defendant was a convicted felon.
Id.Hodges’ analogy to Roch is deficient in this most important respect: the
police officers here made their decision to detain Hodges based upon their
experience patrolling this and other high-crime areas in the early morning, their
know ledge that Hodges threatened M r. Alexander with a w eapon, and Hodges’
evasive behavior, not solely based on an undetailed tip devoid of any reference to
the underlying facts that supported the officers’ suspicions— as in Roch.
Additionally, Hodges’ argument incorrectly implies that the officers’ only
justification for stopping Hodges was their belief that he illegally possessed a
-14-
loaded weapon. As O fficer Haywood testified, this was but one basis for his
suspicion; the entirely separate basis was that, based on the circumstances noted
above (e.g., Hodges’ threat, the high-crime area, etc.), “[he] was thinking that
there was possibly going to be a robbery or a shooting may happen.” R. at 10.
W hile the mere presence of a gun does not necessarily justify such a broad
inference, the circumstances here reasonably support the conclusion that other
criminal activity, in addition to possession of a loaded weapon in a vehicle, “may
be afoot.”
In sum, we conclude that Officer Haywood developed reasonable suspicion
based on M r. Alexander’s detailed tip that Hodges threatened him with a weapon
and on his own experience patrolling high-crime areas in the early morning.
Based on Officer Haywood’s directive, especially when combined with his
communications about the tip to Officer W hite and Hodges’ evasive behavior,
Officers W hite and Ohrynowicz were permitted under the Fourth Amendment to
stop Hodges and investigate.
Accordingly, we find no error in the district court’s conclusion that the
officers’ investigatory stop of Hodges passes constitutional muster under the
Fourth Amendment.
B. “H igh-Risk Traffic Stop” and H andcuffs
Since we hold that the officers w ere permitted under the Fourth
Amendment to conduct an investigatory stop, we must address whether the
-15-
officers’ actions were “reasonably related in scope to the circumstances which
justified the interference in the first place.” Terry, 392 U.S. at 20. If the officers
exceeded the limits of the Terry stop, then Hodges’ detention became an arrest
requiring the support of probable cause. United States v. Neff, 300 F.3d 1217,
1220 (10th Cir. 2002).
Hodges asserts that the officers arrested him because they used a show of
authority such that a reasonable person would not have believed he or she was
free to leave under the circumstances. Aplt. Br. at 14. Specifically, the police
conducted a “high-risk traffic stop,” ordered Hodges out of his car, and
handcuffed him. The Government asserts that the officers took these precautions
based on their reasonable belief that Hodges posed a danger to their safety.
W e have repeatedly stated that “a Terry stop does not become unreasonable
just because police officers use handcuffs on a subject or place him on the
ground.” See, e.g., Neff, 300 F.3d at 1220 (citing United States v. Perdue, 8 F.3d
1455, 1463 (10th Cir. 1993)). In Neff, the police detained and handcuffed the
defendant after receiving a report that the defendant was drunk and walking
around with a sawed-off shotgun. Id. at 1219. Although the officers’ frisk of the
defendant did not reveal a weapon, we noted that “the officers temporarily lost
sight of [the defendant] during the pursuit, so it could have been hidden nearby.”
Id. at 1221. Citing United States v. Shareef, 100 F.3d 1491 (10th Cir. 1996), as
illustrating the appropriate analysis, we characterized Shareef as holding that “the
-16-
use of handcuffs w as appropriate as long as there was a reasonable, articulable
ground for fearing danger from the suspects.” Neff, 300 F.3d at 1221.
Applying this standard, we rejected Neff’s argument that the detention
amounted to an arrest. W e explained that, in light of the reliable report that the
defendant was armed with a particularly dangerous weapon, the officers were
permitted to handcuff the defendant without probable cause because doing so was
reasonably necessary to protect the officers’ personal safety and to maintain the
status quo during the course of the stop. Id. The fact that the record did not
reflect that the officers in fact feared for their safety was irrelevant, for we
measure a police officer’s actions under the Fourth Amendment by looking to the
objective facts. Id. at 1222 (citing M aryland v. M acon, 472 U.S. 463, 470
(1985)).
The officers in Shareef were similarly justified in believing that
handcuffing the suspects was necessary to ensure the officers’ safety. In Shareef,
an officer patrolling at 3:30 a.m. stopped three vehicles for speeding, and dispatch
subsequently informed the officer, albeit inaccurately, that one of the drivers was
wanted on a weapons charge in another State and was considered armed and
dangerous. Shareef, 100 F.3d at 1495-97. The police ordered the suspects to exit
the vehicles separately, and each suspect was then frisked, handcuffed, and told to
kneel on the pavement. Id. at 1497. W e held that although this conduct bordered
on an illegal arrest, the officers’ reasonable belief that the defendants posed a
-17-
danger— based on the number of suspects, the time of night, and the information
that one of the drivers was a wanted felon— justified the officers’ conduct. Id. at
1506.
The officers in the case at bar had a reasonable, articulable ground for
fearing danger from Hodges. The officers reasonably believed that Hodges posed
a danger— requiring the use of a “high-risk traffic stop” and handcuffs— based on
the early-morning hour, the high-crime location, the information that Hodges
threatened another individual with a gun, and Hodges’ evasive behavior.
Hodges’ sole response is that our precedents allowing the use of handcuffs
in Terry stops are inconsistent with our precedents holding that an arrest occurs if
a reasonable person would have believed he or she was not free to leave under the
circumstances. Aplt. Br. at 15. To be sure, there is a fine line between the outer
limits of a Terry detention and an arrest requiring probable cause. And officer
conduct is surely not immune to challenge when it crosses this fine line. See,
e.g., United States v. M elendez-Garcia, 28 F.3d 1046, 1053 (10th Cir. 1994)
(holding that the officers arrested the defendant because, among other similar
reasons, the officers “had no tips or observations that the suspects were armed or
violent” to justify executing a “felony stop”). But converting a Terry detention,
which by its terms precludes the suspect from leaving the scene, to an arrest every
time an officer uses handcuffs and conducts a “high-risk traffic stop” would
conflict with our court’s longstanding recognition that the police face a real threat
-18-
of danger every time they stop a vehicle. See, e.g., United States v. Holt, 264
F.3d 1215, 1222 (10th Cir. 2001) (en banc) (stating that “[t]he Supreme Court has
found it ‘too plain for argument’ that the government’s interest in officer safety is
‘both legitimate and weighty,’ given the ‘inordinate risks confronting an officer
as he approaches a person seated in an automobile”). M oreover, Hodges’
argument essentially asks us to overrule the standard explained by Neff and its
predecessors, an extraordinary step we cannot take here.
Accordingly, we find no error in the district court’s decision that the
officers did not exceed the scope of the Terry stop by executing a “high-risk
traffic stop” and handcuffing Hodges. The district court’s decision is therefore
AFFIRM ED.
Entered for the Court,
W illiam J. Holloway, Jr.
Circuit Judge
-19-