United States v. Windom

FILED
United States Court of Appeals
Tenth Circuit
July 24, 2017
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-1027
SAMUEL TERRAYE WINDOM,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:15-CR-00202-RM-1)
Jacob Rasch-Chabot, Assistant Federal Public Defender (Virginia L. Grady, Federal
Public Defender, and Dean Sanderford, Assistant Federal Public Defender, with him on
the briefs), Office of the Federal Public Defender, Denver, Colorado, for Defendant-
Appellant.
Bryan D. Fields, Assistant United States Attorney (Robert C. Troyer, Acting United
States Attorney, with him on the brief), Office of the United States Attorney, Denver,
Colorado, for Plaintiff-Appellee.
Before HARTZ, BALDOCK, and HOLMES Circuit Judges.
HOLMES, Circuit Judge.
Defendant-Appellant Samuel Terraye Windom entered a conditional guilty plea to
one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).
Mr. Windom now appeals from the district court’s denial of his motion to suppress the
firearm, arguing that officers obtained the firearm as part of an unconstitutional seizure.
More specifically, Mr. Windom takes the position that officers used unreasonable “high-
risk” traffic stop procedures to investigate a “completed misdemeanor”—that is, Mr.
Windom’s flashing of a firearm in public—and submits that the unreasonable nature of
the force involved in the stop elevated it from an investigative detention to an arrest
without probable cause. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm
the district court’s order denying Mr. Windom’s suppression motion.
I
Mr. Windom was detained and arrested on April 1, 2015, following an incident at
Challengers Sports Bar and Restaurant (“Challengers”) in Aurora, Colorado. Just before
midnight on that evening, a female Challengers employee contacted the Aurora Police
Department (“APD”) to report that an unknown male, later identified as Mr. Windom,
had flashed a gun to bar patrons and claimed to be a Crips gang member. The employee
indicated, however, that the individual—whom she further described as a thirty-three
year-old black male, 6’2” or 6’3” tall, with braided hair, wearing jeans and a black jacket
with a cobra on the back—had not threatened or injured any patron. By the time the
employee called APD, Mr. Windom had left Challengers but remained in the parking lot
immediately outside. As the call progressed, the employee observed him getting into one
of two vehicles—either a Nissan Murano (“Murano”) or an older model, light blue
Cadillac sedan (“Cadillac”) that was immediately next to the Murano—and stated that he
2
appeared to have headed westbound out of the parking lot.
APD’s dispatch relayed the “weapons call” to several local officers, advised them
of the nature of the alleged conduct, and provided Mr. Windom’s physical description.
Aplt.’s Ex. A-1, at 3. The APD officers that first arrived on the scene, however, found
the Murano in the parking lot, without an individual matching Mr. Windom’s description,
and the en-route officers therefore turned their attention to the other vehicle described by
the caller (i.e., the Cadillac).
APD Officer Jeremy McElroy was approaching Challengers in his patrol vehicle
when he observed a Cadillac matching the description from the call traveling in the
opposite direction approximately two miles from Challengers. Officer McElroy made a
u-turn and proceeded to follow the vehicle, and after backup arrived, he initiated “a high-
risk traffic stop,” R., Vol. III, at 79, based on his belief that the vehicle contained “a gang
member” “armed with a gun,” R., Suppl. Vol. I, at 19 (Tr. Mot. Hr’g, dated Sept. 4,
2015). More specifically, Officer McElroy drew his weapon and pointed it at the pulled-
over Cadillac, wedged himself behind his door jamb for protection, and activated
“spotlighting . . . to light the vehicle.” R., Vol. III, at 79–80. Meanwhile, at least two
more APD officers provided “lethal cover,” that is, “they [too] had their guns drawn and
pointed at the Cadillac, as well as its occupants.” Id. at 80. After the officers assumed
their covered positions, Officer McElroy “yell[ed]” for the occupants to “get [their] hands
up[ and] turn the car off,” and directed “them [to] throw the keys out [of] the driver’s side
window.” R., Suppl. Vol. I, at 20.
3
Officer McElroy then ordered all of the occupants to exit the vehicle and assume
the prone position—i.e., to lie face-down on the ground with legs crossed. The driver
emerged first, and while her initial response was “somewhat argumentative,” she
complied with the officer’s instructions and assumed the prone position. Id. Mr.
Windom then emerged from the front passenger door, and Office McElroy immediately
noticed that he matched the description that the Challengers employee had provided: e.g.,
a black man, about 6’2” tall, with braided hair wearing a black jacket and blue jeans. Mr.
Windom assumed the prone position without objection. Finally, a third occupant—a
pregnant female—exited from one of the rear passenger doors and was ordered to get
“down on her knees” outside of the vehicle. Id. at 22.
Some of the officers checked the Cadillac to ensure that it had no other occupants
and then proceeded to handcuff and pat down each individual, while other officers kept
watch, providing “lethal cover.” Id. At that point, the officers positively identified the
male occupant as Mr. Windom, found a Smith & Wesson revolver in his pocket during
the course of a pat-down, and arrested him for the crime of disorderly conduct based on
his actions at Challengers.
On May 5, 2015, a federal grand jury in Colorado indicted Mr. Windom on one
count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
Shortly after the Indictment, Mr. Windom moved to suppress the firearm as fruit of an
illegal seizure, arguing that “the conduct of the law enforcement officers following the
traffic stop constituted an arrest of the occupants of the vehicle, including Mr. Windom,
4
from the moment the officers drew their weapons and ordered the occupants to exit the
vehicle.” R., Vol. I, at 59 (Mot. to Suppress Evid., filed July 6, 2015). Mr. Windom
argued that the officers’ use of “high-risk” stop techniques was unreasonable under the
circumstances, thereby converting the purported investigative detention into an arrest
without probable cause in violation of the Fourth Amendment.
Following a hearing, the district court denied the suppression motion, concluding
that the officers had “reasonable and articulable suspicion” that, within the Cadillac, they
would encounter an “armed and dangerous” individual, R., Vol. III, at 86, “who identified
himself as a gang member, [had] show[n] a gun to patrons at a restaurant and bar and
[had] caus[ed] enough concern for a private citizen to call and report the matter to
police,” id. at 91. In other words, although the district court recognized that “the use of
force [could] elevate [an investigative] encounter to an arrest,” it found the officers’
“display of firearms” in this instance “permissible without probable cause,” because the
officers “reasonably believe[d]” that they needed firearms to protect themselves from a
potentially dangerous situation. Id. at 92.
In the aftermath of the district court’s suppression decision, Mr. Windom entered a
conditional guilty plea, in which he reserved the right to appeal from that decision.
Following his plea, the district court sentenced Mr. Windom to forty-six months’
imprisonment, and he brought this timely appeal.
II
Mr. Windom contends that the district court erred in denying his suppression
5
motion, arguing that officers discovered the firearm during the course of an unreasonable
seizure in violation of the Fourth Amendment. Mr. Windom acknowledges that the
officers had reasonable suspicion to stop the vehicle, but he takes the position that the
officers’ use of force exceeded the bounds of an investigative stop, thus converting the
stop into an arrest without probable cause. Therefore, he argues, the seizure was unlawful
and the firearm that the officers subsequently discovered should be suppressed. The
government argues that based on the totality of the circumstances known to the officers at
the time of the stop—notably, their reasonable suspicion that an allegedly armed suspect
who claimed to be a gang member was in the vehicle—they were justified in taking
heightened precautionary measures during the stop.
A
“When reviewing the denial of a motion to suppress, we view the evidence in the
light most favorable to the government, accept the district court’s findings of fact unless
clearly erroneous, and review de novo the ultimate determination of reasonableness under
the Fourth Amendment.” United States v. Mosley, 743 F.3d 1317, 1322 (10th Cir. 2014)
(quoting United States v. Apperson, 441 F.3d 1162, 1184 (10th Cir. 2006)); accord
United States v. Madrid, 713 F.3d 1251, 1255 (10th Cir. 2013). The only issue in this
appeal is whether the force used by the officers in seizing Mr. Windom was reasonable in
the context of an investigative detention; if not, under the circumstances present
here—where the officers undisputedly lacked probable cause at the time they
implemented the high-risk measures—the seizure would be unlawful because it would be
6
an arrest without probable cause.
B
The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.
CONST. amend. IV. A temporary investigative detention, such as a traffic stop,
“constitutes a ‘seizure’ of ‘persons’ within the meaning of [the Fourth Amendment].”
Madrid, 713 F.3d at 1255 (alteration in original) (quoting Whren v. United States, 517
U.S. 806, 809–10 (1996)); see also United States v. Hensley, 469 U.S. 221, 226 (1985)
(“[S]topping a car and detaining its occupants [for investigative purposes] constitute[s] a
seizure within the meaning of the Fourth Amendment.”). Generally, a seizure must be
based on probable cause. See, e.g., United States v. Whitley, 680 F.3d 1227, 1232 (10th
Cir. 2012) (“Probable cause is generally required before an officer may conduct a search
or a seizure.”); United States v. Harris, 313 F.3d 1228, 1233–34 (10th Cir. 2002) (noting
“the general rule that seizures and searches be supported by probable cause”).
In Terry v. Ohio, 392 U.S. 1 (1968), however, the Supreme Court recognized “the
narrow authority of police officers who suspect criminal activity to make limited
intrusions on an individual’s personal security [i.e., to effect a seizure] based on less than
probable cause.” Michigan v. Summers, 452 U.S. 692, 698 (1981). “The exception to the
probable-cause requirement for limited seizures of the person recognized in Terry and its
progeny rests on a balancing of . . . competing interests to determine the reasonableness
of the type of seizure involved within the meaning of ‘the Fourth Amendment’s general
7
proscription against unreasonable searches and seizures.’” United States v. Place, 462
U.S. 696, 703 (1983) (quoting Terry, 392 U.S. at 20). “The touchstone of our analysis
under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the
particular governmental invasion of a citizen’s personal security.’” Pennsylvania v.
Mimms, 434 U.S. 106, 108–09 (1977) (quoting Terry, 392 U.S. at 19).
To determine the reasonableness of a particular seizure, and thus its
constitutionality, “[w]e must balance the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the importance of the governmental
interests alleged to justify the intrusion.” Tennessee v. Garner, 471 U.S. 1, 8 (1985)
(alteration in original) (quoting Place, 462 U.S. at 703); see also Summers, 452 U.S. at700 n.12 (describing “reasonableness—the balancing of competing interests”—as “the
key principle of the Fourth Amendment” (quoting Dunaway v. New York, 442 U.S. 200,
219 (1979) (White, J., concurring))); United States v. Moran, 503 F.3d 1135, 1141 (10th
Cir. 2007) (“We determine the constitutionality of an investigatory stop by balancing ‘the
nature and quality of the intrusion on personal security against the importance of the
governmental interests alleged to justify the intrusion.’” (quoting Hensley, 469 U.S. at
228)); United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir. 1993) (“Reasonableness is
determined by balancing the governmental interest in crime prevention against the
citizen’s right to be free from governmental intrusion.”).
When evaluating the reasonableness of a traffic stop under Terry, we engage in a
two-part inquiry—asking, first, whether the stop was “justified at its inception,” and
8
second, whether “the officers’ actions [were] ‘reasonably related in scope to the
circumstances which justified the interference in the first place.’” Madrid, 713 F.3d at
1256 (quoting Terry, 392 U.S. at 20). Under Terry’s first prong, an officer may “make a
forcible stop of a person when the officer has reasonable, articulable suspicion that the
person has been, is, or is about to be engaged in criminal activity.” Place, 462 U.S. at
702 (second emphasis added); see also Florida v. Royer, 460 U.S. 491, 498 (1983)
(“[C]ertain seizures are justifiable under the Fourth Amendment if there is articulable
suspicion that a person has committed or is about to commit a crime.”); Summers, 452
U.S. at 698 n.7 (same); United States v. McHugh, 639 F.3d 1250, 1255 (10th Cir. 2011)
(“An investigatory 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.”’” (quoting United States v. DeJear, 552 F.3d 1196,
1200 (10th Cir. 2009))).
Here, Mr. Windom acknowledges that the officers had reasonable suspicion to stop
the vehicle. But Mr. Windom challenges the manner in which they executed the stop,
arguing that their seizure involved such a heightened degree of force that it converted an
investigative stop into an arrest that needed to be (but was not) justified by probable
cause.1 Therefore, we focus on Terry’s second inquiry—whether the officers’ conduct
1
The government urges us to find that Mr. Windom waived the argument he
pursues on appeal, which relates to the nature and scope of the investigative stop—not the
grounds for initiating the stop to begin with: “[Mr. Windom] conceded [before the
district court] that the nature of the stop was reasonable given the suspected conduct, but
9
was “reasonably related in scope to the circumstances which justified the interference in
the first place.” Madrid, 713 F.3d at 1256 (quoting Terry, 392 U.S. at 20). And, in that
regard, we center our inquiry on whether the officers’ use of high-risk stop techniques
was reasonable under the circumstances. See Place, 462 U.S. at 708 (examining
“whether the [officers’] conduct . . . was such as to place the seizure within the general
rule requiring probable cause for a seizure or within Terry’s exception to that rule”
(emphasis added)); see Mimms, 434 U.S. at 108–09 (“The touchstone of our analysis
under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the
particular governmental invasion of a citizen’s personal security.’” (quoting Terry, 392
U.S. at 19)); United States v. Hood, 774 F.3d 638, 643 (10th Cir. 2014) (“In resolving the
second question, we consider whether ‘the officers’ actions were consistent with a Terry
stop, or if the degree of force used transformed Defendant’s seizure into a de facto
arrest.’” (quoting Mosley, 743 F.3d at 1328)), abrogated on other grounds by Mathis v.
United States, --- U.S. ----, 136 S. Ct. 2243 (2016) (requiring courts to distinguish
argued that the stop was not justified at its inception.” Aplee.’s Br. at 8. According to
the government, after losing on his challenge to the stop at its inception, Mr. Windom
“has now inverted his position” on appeal, conceding the lawfulness of the stop at its
inception and challenging its nature and scope. Id. at 9. If Mr. Windom were in fact
advancing a different suppression theory on appeal, we could deem this argument waived.
See, e.g., United States v. Burke, 633 F.3d 984, 987 (10th Cir. 2011) (noting as to
defendant’s suppression challenges that “none of these arguments was presented to the
district court at the suppression hearing, and they are therefore waived on appeal”).
However, Mr. Windom says that the government’s position is “patently incorrect.”
Aplt.’s Reply Br. at 1. We need not resolve this dispute: even assuming, without
deciding, that Mr. Windom has not waived his scope-of-detention argument, we conclude
infra that it fails in any event on the merits.
10
between statutory elements and means as the first step in the application of the categorical
approach).
As noted, “[d]etermining whether the force used to effect a particular seizure is
reasonable under the Fourth Amendment requires a careful balancing of the nature and
quality of the intrusion on the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Mosley, 743 F.3d at 1329 (quoting
Graham v. Connor, 490 U.S. 386, 396 (1989)). The safety of law enforcement is a
“legitimate and weighty” concern, Mimms, 434 U.S. at 110; therefore, “officers may use
force during a Terry-type detention to the extent that ‘such steps [are] reasonably
necessary to protect their personal safety and to maintain the status quo during the course
of [the] stop.’” Novitsky v. City of Aurora, 491 F.3d 1244, 1254 (10th Cir. 2007)
(alterations in original) (quoting Hensley, 469 U.S. at 235); accord Mosley, 743 F.3d at
1328–29.
In evaluating the reasonableness of officers’ use of force we apply an objective
standard, asking whether the “facts available to the officer at the moment of the
seizure . . . [would] warrant a man of reasonable caution in the belief that the action taken
was appropriate.” Madrid, 713 F.3d at 1256 (alteration in original) (emphasis added)
(quoting Terry, 392 U.S. at 22); see also Mosley, 743 F.3d at 1329 (same); cf. Graham,
490 U.S. at 396 (“The ‘reasonableness’ of a particular use of force must be judged from
the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.”).
11
Further, in evaluating officers’ actions we are mindful of “‘the facts and
circumstances of each particular case’ and give ‘allowance for the fact that police officers
are often forced to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that is necessary in a
particular situation.’” Hood, 774 F.3d at 643 (quoting Graham, 490 U.S. at 396–97);
accord Mosley, 743 F.3d at 1329 (“This test ‘requires careful attention to the facts and
circumstances of each particular case . . . .’” (quoting Graham, 490 U.S. at 396)).
“[B]right-line rules do not govern the permissible scope of an investigative detention.”
United States v. Copening, 506 F.3d 1241, 1248 (10th Cir. 2007). “[I]n evaluating
whether an investigative detention is unreasonable, common sense and ordinary human
experience must govern over rigid criteria.” United States v. Sharpe, 470 U.S. 675, 685
(1985).
Applying these principles, we have held that, “[u]nder certain circumstances, the
steps officers may permissibly take to protect their safety include drawing their weapons,
placing a suspect in handcuffs, or forcing a suspect to the ground.” Novitsky, 491 F.3d at
1254. More specifically, although we have observed that, “effectuating a Terry stop by
pointing guns at a suspect may elevate a seizure to an ‘arrest’ in most scenarios,” Perdue,
8 F.3d at 1463, we have rejected a bright-line rule that “the use of guns automatically
turns the stop into an arrest” in favor of “the better view . . . that the use of guns in
connection with a [Terry] stop is permissible where the police reasonably believe they are
necessary for their protection,” United States v. Merritt, 695 F.2d 1263, 1273 (10th Cir.
12
1982). Compare Hood, 774 F.3d at 643–44 (holding that officers were justified “in
drawing their firearms and ordering [the defendant] to the ground,” because “[t]hey did so
to protect their own safety and maintain the status quo”), Mosley, 743 F.3d at 1330
(concluding that an initial Terry stop with weapons raised was reasonable, where officers
conducted the stop “in a high-crime area, at around 3:00 a.m., and [after] receiv[ing] an
anonymous tip that one of the occupants of the car in which [the] [d]efendant sat had a
gun in his lap”), Copening, 506 F.3d at 1248 (finding officers’ use of “felony takedown”
procedure reasonable in light of their belief that “a loaded gun—by any measure an
inherently dangerous weapon—was in the [vehicle’s] passenger compartment”), and
Perdue, 8 F.3d at 1463 (finding officers justified in stopping car “[w]ith weapons
drawn . . . and order[ing] [the defendant] and his fiancee to get out of the car and lie face
down” based solely on their knowledge that “guns were found on the property where
marijuana was being cultivated” and where the stop was made), with United States v.
Melendez-Garcia, 28 F.3d 1046, 1050–53 (10th Cir. 1994) (holding that “felony stop”
procedures were unreasonable as part of a Terry stop, where officers conducted the stop
“on an open highway during the day, had no tips or observations that the suspects were
armed or violent, and the defendants had pulled their cars to a stop off the road and
stepped out of their cars in full compliance with police orders”).
Further, the Supreme Court has repeatedly recognized the inherent danger that
officers face when confronting a suspect in a vehicle. See, e.g., Mimms, 434 U.S. at 110(holding that police officers may order individuals to exit a vehicle during a Terry traffic
13
stop based in part on the “inordinate risk confronting an officer as he approaches a person
seated in an automobile”); Adams v. Williams, 407 U.S. 143, 148 n.3 (1972) (citing a
study that found “approximately 30% of police shootings occurred when a police officer
approached a suspect seated in an automobile”); see also United States v. Robinson, 414
U.S. 218, 234 n.5 (1973) (noting “that a significant percentage of murders of police
officers occur[] when the officers are making traffic stops”). We too have acknowledged
the “dangerous dilemma” that police officers face when executing a Terry stop involving
suspects in an automobile, especially where, as here, the officers have a reasonable
suspicion that the suspect is armed. Merritt, 695 F.2d at 1273 (quoting United States v.
Jackson, 652 F.2d 244, 249 (2d Cir. 1981)). In particular, in such circumstances, where
the officers’ suspicion does not rise to the level of probable cause, they face an untenable
dilemma:
If the officer approaches a suspected robber with his gun still in his
holster, he increases the risk that he will be shot. If, on the other hand,
he protects himself by drawing his gun, he increases the risk that a
court will set the criminal free by construing his action as an illegal
arrest.
Merritt, 695 F.2d at 1273 (quoting Jackson, 652 F.2d at 249–50).
Indeed, when an officer has a reasonable belief that a suspect he is investigating at
close range is armed, “it would appear to be clearly unreasonable to deny the officer the
power to take necessary measures to determine whether the person is in fact carrying a
weapon and to neutralize the threat of physical harm.” Long, 463 U.S. at 1047 (emphasis
added) (quoting Terry, 392 U.S. at 24); see also Perdue, 8 F.3d at 1463 (“The Fourth
14
Amendment does not require that officers unnecessarily risk their lives when
encountering a suspect whom they reasonably believe to be armed and dangerous.”).
Notably, we have held that “the governmental interest in the safety of police officers
outweighs the individual’s Fourth Amendment interest when an officer has an objective
basis to believe that the person being lawfully detained is armed and dangerous.” United
States v. King, 990 F.2d 1552, 1561 (10th Cir. 1993) (emphasis added); see also United
States v. Holt, 264 F.3d 1215, 1222 (10th Cir. 2001) (en banc) (Ebel, J., for the court)
(“The 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.’” (quoting Mimms, 434 U.S.
at 110)), overturned on other grounds by Muehler v. Mena, 544 U.S. 93 (2005) (holding
that the content of police questions in the course of a legitimate stop raise no Fourth
Amendment issues if the questions do not unreasonably prolong the detention).
Thus, in light of the foregoing principles, we must determine whether the totality
of the circumstances known to the officers justified the nature of the particular seizure at
issue here. See Mosley, 743 F.3d at 1328–29 (“In evaluating whether the precautionary
steps taken by an officer [during a stop] were reasonable, the standard is
objective—would the facts available to the officer at the moment of the seizure warrant a
man of reasonable caution in the belief that the action taken was appropriate.” (quoting
Novitsky, 491 F.3d 1244)). We conclude that, under these circumstances, the degree of
force used by the officers was reasonable and justified.
15
1
Putting a finer point on Mr. Windom’s argument, he contends that the high-risk
stop techniques the officers used in executing the stop were unreasonable given that the
officers only possessed reasonable suspicion that he was guilty of a completed
misdemeanor. In other words, he contends that, although a completed misdemeanor may
give rise to reasonable suspicion sufficient to justify an ordinary investigative stop, a
completed misdemeanor may not form the basis for the use of high-risk stop techniques
because the government interest in solving past misdemeanor crimes fails to support such
an intrusion on personal security.
In support of this proposition, Mr. Windom relies largely on two of our prior
cases—Moran and Madrid—in which we held that a completed misdemeanor could
provide reasonable suspicion sufficient to justify an investigative detention. See Madrid,
713 F.3d at 1257; Moran, 503 F.3d at 1142–43. In particular, relying on the Supreme
Court’s decision in Hensley, we held in Moran that past crimes—whether felony or
misdemeanor—could support a stop based on less than probable cause if “reasonable in
light of the particular facts and circumstances of th[e] case.” 503 F.3d at 1141. Notably,
we applied the rubric of Terry, which instructs that the reasonableness of an investigative
detention, and thus its constitutionality under the Fourth Amendment, depends on the
balance between the “governmental interests alleged to justify the intrusion” and “the
nature and quality of the intrusion on personal security.” Id. (quoting Hensley, 469 U.S.
at 228); cf. Hensley, 469 U.S. at 228 (“The proper way to identify the limits [on
16
investigative stops to investigate past criminal activity] is to apply the same test already
used to identify the proper bounds of intrusions that further investigations of imminent or
ongoing crimes.” (emphasis added)). We concluded that the “strong governmental
interest in solving crime” outweighed “the relatively limited intrusion on personal
security occasioned by [a brief, non-intrusive] investigatory stop.” Moran, 503 F.3d at
1143; see also Madrid, 713 F.3d at 1258 (concluding that a stop was reasonable because
“the intrusion on [Defendant’s] personal security was brief and minimal, and the
government had a strong interest in solving crime and ensuring public safety in the
circumstances”).
Mr. Windom correctly points out that, unlike the circumstances of his stop, both
Madrid and Moran involved minimally intrusive, brief investigative stops. But his
reliance on Moran and Madrid is misplaced. In both of those cases, we considered only
whether the officers’ reasonable suspicion of a completed misdemeanor was sufficient to
justify an investigative stop at its inception, i.e., prong one of Terry. See Madrid, 713
F.3d at 1257 (“The only issue in this appeal is whether the seizure of Mr. Madrid was
justified at its inception.” (emphasis added)); Moran, 503 F.3d at 1140 (considering
whether a “stop . . . based on suspicion of . . . a completed misdemeanor . . . violate[s] the
Fourth Amendment”). We did not have occasion in these two cases to consider the issue
presented here, which relates to Terry’s second prong, i.e., the reasonableness of the
scope of the detention. Specifically, we did not examine in those cases under what
circumstances officers’ use of force in conducting an investigative detention—after
17
effecting a permissible initial stop—will convert the detention into an arrest that must be
justified by probable cause. Therefore, Moran and Madrid are largely inapposite to
resolving the question before us.
2
Once the officers lawfully stopped the vehicle, the government’s interest in officer
safety took on heightened salience. Specifically, the information that the officers
possessed provided them with an objective basis to believe that Mr. Windom would be
armed and dangerous.2 Once the officers lawfully stopped the vehicle, they had reason to
take steps “to protect their personal safety and to maintain the status quo during the
course of the stop.” Mosley, 743 F.3d at 1329 (quoting Novitsky, 491 F.3d at 1254);
accord Hensley, 469 U.S. at 235. Although the stop was undoubtedly more intrusive than
an ordinary Terry stop, “the precautionary measures of force employed by the officers
were reasonable under the circumstances.” Perdue, 8 F.3d at 1463. This is especially so
given the “legitimate and weighty” governmental interest in officer safety. Holt, 264 F.3d
at 1222 (quoting Mimms, 434 U.S. at 110).
Critically, the officers conducted the Terry stop in a high-crime area at around
2
The importance of the officers’ need to protect their personal safety remains
unchanged, even in the face of some uncertainty regarding whether they would, in fact,
encounter an armed individual. Indeed, an “officer need not be absolutely certain that the
individual is armed; [rather, ]the issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or that of others was in
danger.” Terry, 392 U.S. at 27. Here, for the reasons explicated infra, the officers had a
reasonable basis to fear for their safety.
18
midnight, after receiving a tip that would have led a reasonable officer to believe that one
of the occupants of the vehicle they had just stopped had flashed a firearm in public, and
had also proclaimed membership in the Crips, a notoriously dangerous street gang.3 More
specifically, the confluence of these two interlocking factors would have reasonably led
officers to believe that they might confront an armed and dangerous individual, see
Copening, 506 F.3d at 1248 (describing a “loaded gun” as “an inherently dangerous
weapon”); United States v. Garcia, 459 F.3d 1059, 1066 (10th Cir. 2006) (describing
“some degree of gang affiliation” as an additional fact that supported the reasonableness
of a precautionary frisk by officers), who potentially posed “an immediate threat to the[ir]
safety.” Mosley, 743 F.3d at 1329 (quoting Graham, 490 U.S. at 396).
Indeed, the circumstances present here are analogous to those in Perdue, in which
we concluded that the officers were justified in conducting a Terry stop with weapons
drawn. In Perdue, officers conducted a Terry stop similar to the one at issue here after
witnessing a truck enter a long dirt road leading to a remote building that the officers
knew housed weapons. 8 F.3d at 1458–59. Notably, the officers stopped the defendant’s
3
See United States v. Robinson, 978 F.2d 1554, 1560 (10th Cir. 1992) (“Each
appellant also was linked to the Crips gang, a gang formed for the main purpose of
distributing crack cocaine, according to the government’s uncontradicted evidence.”); see
also United States v. Matthews, 312 F.3d 652, 665 (5th Cir. 2002) (describing the Crips as
“a violent criminal street gang”); United States v. Turner, 104 F.3d 1180, 1182–83 (9th
Cir. 1997) (noting testimony of federal agent who “identified two violent street gangs, the
Bloods and the Crips, as the most notorious of the gangs, deriving tremendous profits by
trafficking crack cocaine to other cities and expanding their activities throughout the
United States”).
19
car “with weapons drawn” and “ordered Mr. Perdue and his fiancee to get out of the car
and lie face down.” Id. at 1458. Although the government conceded that the officers
lacked probable cause for an arrest, we concluded that the Terry stop was “reasonable as
conducted,” based on the officers’ knowledge that the building—which the driver had not
reached—contained firearms. Id. at 1462–63. We explained that “[t]he Fourth
Amendment does not require that officers unnecessarily risk their lives when
encountering a suspect whom they reasonably believe to be armed and dangerous,” id. at
1463, and concluded that police officers may “take such steps as [are] reasonably
necessary to protect their personal safety and to maintain the status quo,” id. at 1462
(alteration in original) (quoting Hensley, 469 U.S. at 235).
Given those factual circumstances, we reasoned that the officers’ knowledge of the
firearms found in the building justified “any concern [they] had for their personal safety,”
id. at 1463; more specifically, based on this information about the weapons, the officers
could have reasonably believed that the occupants of the vehicle were armed, even though
they had no certainty of this fact, and consequently were reasonable in executing their
Terry stop with a heightened degree of force, see id. at 1463 & n.5. At least arguably, the
reasoning of Perdue applies with even greater force here, where the suspect had been
seen in actual possession of a firearm close to the time of the stop. In other words,
firearm possession was more certain and concrete here than in Perdue; therefore, the
justification for taking heightened protective measures was seemingly greater here than in
Perdue.
20
Similarly, in Copening, we considered the reasonableness of “felony takedown”
procedures virtually identical to the tactics employed here,4 in response to an
“anonymous” tip that a male caller had seen “a bald, African-American man . . . (1) exit a
vehicle . . . [outside of a convenience store]; (2) drop a pistol [while exiting]; (3) pick up
the pistol; (4) return to the vehicle; (5) ‘stash’ the pistol in the vehicle’s seat; and (6) enter
the [convenience store].” 506 F.3d at 1243 (emphasis added).
On appeal, the defendant argued—much like Mr. Windom—that these facts failed
4
In Copening, the officers specifically described the “felony takedown
procedure” as follows:
the officers (1) exit their cruisers, staying behind their driver’s-side
door, with their guns drawn; (2) obtain a view of the occupants’ hands;
(3) direct the driver to throw the vehicle’s keys on the ground, using
only their left hand; (4) order the occupants to exit the vehicle, one at
a time, with their hands above their head; (5) tell the suspects to back
up, i.e., facing away from the officers, toward the police cruisers; and
(6) handcuff the suspects, either standing, kneeling, or in a prone
position, from behind. Throughout the takedown officers keep guns
fixed on both the vehicle and the suspects.
506 F.3d at 1245. These procedures are almost identical to those used by the officers
in this case.
Here, the“high-risk traffic stop” procedure entailed that the officers (1) exit
their cruisers, staying behind their driver’s side door, R., Vol. III, at 80; (2)
“spotlight” the vehicle, id.; (3) direct the driver to “turn the car off,” and “throw the
keys out [of] the driver’s side window,” R., Suppl. Vol. I, at 20; (4) order the
occupants to exit the vehicle, one at a time, with their hands above their heads, id.; (5)
order the suspects to assume the prone position—i.e., to lie face-down on the ground
with legs crossed, id.; R., Vol. III, at 81; (6) handcuff the suspects and perform a pat-
down for weapons, R., Suppl. Vol. I, at 57–58; and (7) throughout the procedure
officers maintain “lethal cover,” meaning that “they ha[ve] their guns drawn and
pointed at the [vehicle], as well as its occupants,” R., Vol. III, at 80.
21
to “justify officers’ use of the ‘felony takedown’ procedure” because officers based the
Terry stop on a “technical offense” in circumstances lacking any indication of impending
“violence or threat.” Id. at 1248. We, however, rejected these arguments, concluding that
“the ‘felony takedown’ procedure” constituted the “appropriate ‘precautionary measure,’
under the[] circumstances.” Id. (quoting United States v. Shareef, 100 F.3d 1491, 1506
(10th Cir. 1996)). Those circumstances included the officers’ reasonable belief that there
was a “loaded gun . . . in the [vehicle],” the “safety risk attendant to detaining the truck’s
occupants on a suspected weapons violation,” and “the ‘need to detain multiple
defendants.’” Id. (quoting Muehler, 544 U.S. at 100). The facts here match and even
exceed those in Copening, insofar as the officers in Copening had no reason to believe
that the suspect was a member of a violent gang.
Mr. Windom contends that Perdue and Copening are inapposite because they “are
not completed-misdemeanor cases, and they do not apply the Hensley balancing test.”
Aplt.’s Reply Br. at 5. As we suggested supra, however, Mr. Windom’s arguments based
on the misdemeanor nature of his conduct are misguided because they pertain to the
reasonableness of the initial stop—which undisputedly is not at issue here. Furthermore,
as we have repeatedly stated, we must pay “careful attention to the facts and
circumstances of each particular case” viewing them “‘from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’” Mosley,
743 F.3d at 1329 (quoting Graham, 490 U.S. at 396). The information known to the
officers at the time of the seizure was not simply that the suspect they were pursuing had
22
committed a garden-variety misdemeanor. On the contrary, the officers had a reasonable
belief that the suspect was armed and dangerous. Furthermore, Mr. Windom’s contention
that Perdue and Copening did not apply what he calls the “Hensley balancing test” is
simply incorrect.5
5
What Mr. Windom refers to as the “Hensley balancing test” is in fact more
accurately dubbed the Terry balancing test. For it was the Court’s decision in Terry that
introduced the notion of a Fourth Amendment balancing test in place of the general
requirement of probable cause to support a seizure. See, e.g., Place, 462 U.S. at 703(“The exception to the probable-cause requirement for limited seizures of the person
recognized in Terry and its progeny rests on a balancing of the competing interests to
determine the reasonableness of the type of seizure involved within the meaning of ‘the
Fourth Amendment’s general proscription against unreasonable searches and seizures.’”
(quoting Terry, 392 U.S. at 20)); Dunaway, 442 U.S. at 210 (“[Terry] defined a special
category of Fourth Amendment ‘seizures’ so substantially less intrusive than arrests that
the general rule requiring probable cause to make Fourth Amendment ‘seizures’
reasonable could be replaced by a balancing test.”); cf. Novitsky, 491 F.3d at 1253 (noting
that “the Supreme Court has held that ‘arrests, the most intrusive of Fourth Amendment
seizures, are reasonable only if supported by probable cause’” (quoting United States v.
Davis, 94 F.3d 1465, 1468 (10th Cir. 1996))).
Mr. Windom contends that our circuit “applies a different test when the only
suspected crime is a past misdemeanor.” Aplt.’s Opening Br. at 5; see also Aplt.’s Reply
Br. at 4 (stating that “in completed-misdemeanor cases this Court applies the Hensley test,
a slight variation on the Terry analysis for ongoing crimes and completed felonies . . . .”).
However, the Hensley test is simply the Terry test, which in all cases instructs that we
consider “the reasonableness in all the circumstances of the particular governmental
invasion of a citizen’s personal security.” Terry, 392 U.S. at 19. In other words, we
analyze the reasonableness of an investigative seizure based on a completed misdemeanor
the same way we analyze any other seizure involving less than probable cause. See
Hensley, 469 U.S. at 228 (“The proper way to identify the limits [on investigative stops to
investigate past criminal activity] is to apply the same test already used to identify the
proper bounds of intrusions that further investigations of imminent or ongoing crimes.
That test, which is grounded in the standard of reasonableness embodied in the Fourth
Amendment, balances the nature and quality of the intrusion on personal security against
the importance of the governmental interests alleged to justify the intrusion.” (emphasis
added)); Moran, 503 F.3d at 1140 (“We measure the constitutional validity of an
23
In Perdue, we explicitly noted that the ultimate determination of the
reasonableness of a particular seizure under the Fourth Amendment “is determined by
balancing the governmental interest in crime prevention against the citizen’s right to be
free from governmental intrusion.” Perdue, 8 F.3d at 1462 (citing Terry, 392 U.S. at20–21). We then concluded that, “[a]lthough bordering on an illegal arrest, the
precautionary measures of force employed by the officers were reasonable under the
circumstances.” Id. at 1463. And, although we did not expressly reference the balancing
test in Copening, we undoubtedly employed it in analyzing the reasonableness of the
felony takedown procedures employed by officers in that case. See Copening, 506 F.3d
at 1248 (holding that “the ‘felony takedown’ procedure . . . was not unnecessarily forceful
or intrusive, but rather an appropriate ‘precautionary measure,’ under the[]
circumstances” (quoting Shareef, 100 F.3d at 1506)). In light of Perdue and Copening,
we cannot hold the officers acted unreasonably here when they seized Mr. Windom with
their weapons drawn, ordering him out of the vehicle and handcuffing him for their own
safety.
In sum, given the particular facts of this case, we conclude that the precautionary
measures of force that the officers employed in seizing Mr. Windom were reasonable, and
did not cause his seizure to rise to the level of a de facto arrest, which would have
investigatory stop by the standard set forth in Terry . . . .”); see id. at 1141 (“[f]ollowing
the Supreme Court’s approach in Hensley”—which is the Terry balancing test—when
evaluating the reasonableness of an investigative stop based on a completed
misdemeanor).
24
required a showing of probable cause. Consequently, the seizure here was lawful.
III
For the foregoing reasons, we AFFIRM Mr. Windom’s conviction.
25