United States v. Romero ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 17, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-4117
(D.C. No. 2:18-CR-00398-CW-1)
JORDAN XAVIER ROMERO, (D. Utah)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, PHILLIPS, and CARSON, Circuit Judges.
_________________________________
Jordan Romero challenges the district court’s dismissal of his motion to
suppress. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
On May 27, 2018, a dispatcher for the Salt Lake City Police Department
(“SLCPD”) received a 911 call from a woman reporting that she had just witnessed
someone brandish a gun at a man at the Alta Lodge Motel. The caller identified herself
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and collateral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.
as Sarah, provided the police with her phone number, and stated that the offender was her
ex-boyfriend, Jordan Romero. She described Romero as a 27-year-old male who
“looks white but [is] half-Mexican,” wearing jeans, black shoes, a black shirt with a
picture of Marilyn Monroe on it, and a black hat inscribed with the word “Loyalty,”
and carrying a black gun with red bandana tape on the handle. She said that Romero
went to the motel to purchase drugs, and the gun was pulled out during a drug
dispute. She also told the dispatcher that Romero and the victim had gone into room
11 of the motel and requested that she be kept anonymous for her safety.
Officers arrived at the motel minutes later and asked two men in the parking
lot if they had seen anything. Both stated that they had just arrived and had not
witnessed anything suspicious. The officers did not see any shell casings on the
ground or anything to indicate that a firearm had been discharged. As they
approached room 11, they did not hear any arguments or calls for help. The officers
knocked on the door, ordered everyone out of the room, and identified Romero as he
exited based on the caller’s detailed description. One of the officers detained and
handcuffed Romero because he believed that Romero was armed and dangerous.
Romero told the officer that he had a 9 mm handgun under his left arm, so the officer
lifted his shirt and removed the gun.
Romero was indicted under 18 U.S.C. § 922(g) for one count of possessing a
firearm and ammunition as a convicted felon. He filed a motion to suppress evidence
derived from his detention, arguing that the officers violated his Fourth Amendment
rights by unlawfully entering the motel room and detaining, arresting, and searching
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him. At the evidentiary hearing, Sarah testified that she had lied in the 911 call. She
was actually Romero’s current girlfriend, and she made up the armed encounter
because she was worried about losing Romero to drugs and wanted him to get
arrested so that he could dry out in prison.
The government argued that even though Sarah lied about the encounter, the
911 call had sufficient indicia of reliability to support reasonable suspicion, and
Romero did not have a reasonable expectation of privacy in the motel room. The
district court agreed and denied the motion to suppress. Romero entered a
conditional guilty plea, preserving the right to appeal the district court’s evidentiary
ruling. On appeal, he argues that the district court erred in denying his motion
because the 911 call was insufficient to establish reasonable suspicion that he was
engaged in criminal conduct.
II
When reviewing a motion to suppress, we review the evidence in the light
most favorable to the prevailing party and accept the district court’s fact finding
unless clearly erroneous. United States v. Salzano, 158 F.3d 1107, 1111 (10th Cir.
1998). We review the district court’s “ultimate determination of reasonableness
under the Fourth Amendment de novo.” United States v. Brown, 496 F.3d 1070,
1074 (10th Cir. 2007) (quotation omitted).
Romero argues that he was unlawfully seized because the officers did not have
reasonable suspicion of criminal conduct. A seizure is only lawful when an officer
has reasonable suspicion of wrongdoing. Terry v. Ohio, 392 U.S. 1, 30 (1968). To
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determine whether an officer has reasonable suspicion, we look “at the totality of the
circumstances of each case to see whether the detaining officer has a particularized
and objective basis for suspecting legal wrongdoing.” United States v. Latorre, 893
F.3d 744, 751 (10th Cir. 2018) (quotation omitted). We assess the reasonableness of
the facts known to the officer at the time of the seizure, not in light of facts later
discovered. Armijo v. Peterson, 601 F.3d 1065, 1072 (10th Cir. 2010). Tips from
anonymous informants may provide reasonable suspicion for a seizure if they are
reliable. Florida v. J.L., 529 U.S. 266, 270 (2000). We look to the following factors
to determine if tips from informants bear sufficient indicia of reliability to support
reasonable suspicion: “(1) whether the informant lacked ‘true anonymity’ (i.e.,
whether the police knew some details about the informant or had means to discover
them); (2) whether the informant reported contemporaneous, firsthand knowledge;
(3) whether the informant provided detailed information about the events observed;
(4) the informant’s stated motivation for reporting the information; and (5) whether
the police were able to corroborate information provided by the informant.” United
States v. Chavez, 660 F.3d 1215, 1222 (10th Cir. 2011).
Applying these factors, the informant’s tip contained sufficient indicia of
reliability to support reasonable suspicion that Romero was engaged in criminal
activity. She provided the dispatcher with her name and cellphone number and stated
that she was Romero’s ex-girlfriend. She informed the dispatcher that she had
personally witnessed Romero pull a gun out on the alleged victim, and she provided
detailed information about Romero, including his age, appearance, and location.
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When the officers arrived at the motel, they did not observe anything that called the
credibility of the informant into question.1 On the contrary, they corroborated both
that Romero was in room 11 and that he matched the detailed description provided by
the informant before they detained him. Under these circumstances, it was
reasonable for the officers to rely on the tip and detain Romero. Accordingly, the
district court did not err in denying Romero’s motion to suppress.
Romero’s arguments to the contrary are unpersuasive. Romero first argues
that under J.L., the officers were required to verify more than Romero’s location and
description before detaining him. However, Romero’s reliance on J.L. is misplaced.
J.L. involved a “bare report of an unknown, unaccountable informant who neither
explained how he knew [J.L. had a] gun nor supplied any basis for believing he had
inside information about [J.L.].” Brown, 496 F.3d at 1075 (quotation omitted). The
tip received by the SLCPD, on the other hand, was from an identifiable individual in
a relationship with the suspect with firsthand, detailed information about the alleged
incident. Because this tip came with many of the indicia of reliability discussed in
Chavez, the officers did not act unreasonably by failing to exhaust every means of
corroboration.
1
Romero contends that the informant’s claims were undermined when (1) the
officers did not hear an active argument after arriving at the scene and (2) the two
men in the parking lot denied having seen anything suspicious. However, the
informant did not claim that the altercation was ongoing, and the two men reported
that they had only just arrived in the parking lot. The informant’s tip was therefore
not discredited.
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Romero next argues that even if the informant was identifiable, we should treat
her as anonymous because she requested that her identity be kept secret from
Romero. This argument is precluded by our precedent. We have held that the
relevant inquiry in determining whether an informant is anonymous is whether she is
“capable of being identified” by law enforcement. Id. at 1075. If the caller is
identifiable, then she is no longer free to “lie with impunity” because she risks
criminal liability for reporting a false claim. Id. at 1076 (quoting J.L., 529 U.S. at
276 (Kennedy, J., concurring)). Accordingly, she can be presumed to be reliable
absent special circumstances suggesting that she should not be trusted. Id. at 1075
(quotation omitted).
The informant who contacted the SLCPD provided her real name and actual
phone number. An officer confirmed that she could be reached at the number she
provided after she spoke with dispatch. She was, therefore, capable of being
identified by law enforcement, and she knew that law enforcement could identify her.
For this reason, she was not an anonymous caller despite her request that her identity
be kept secret from Romero.
III
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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