United States v. Tafuna

5 F.4th 1197

UNITED STATES of America, Plaintiff - Appellee,

v.Tevita Finau TAFUNA, Defendant - Appellant.

No. 20-4078

United States Court of Appeals, Tenth Circuit.

FILED July 27, 2021

Jessica Stengel, Assistant Federal Public Defender (Scott Keith Wilson, Federal Public Defender, with her on the briefs), Salt Lake City, Utah, for Defendant–Appellant.

Jennifer P. Williams, Assistant United States Attorney (John W. Huber, United States Attorney, with her on the brief), Salt Lake City, Utah, for Plaintiff–Appellee.

Before HOLMES, BALDOCK, and MATHESON, Circuit Judges.

BALDOCK, Circuit Judge.

Utah police officers discovered Defendant Tevita Tafuna sitting in a parked car with a gun he admitted to possessing. Because Defendant had a prior felony conviction, the Government charged him with unlawful possession of a firearm under 18 U.S.C. § 922(g)(1). He moved to suppress the firearm and his confession, arguing that he was detained in violation of his Fourth Amendment rights and that his detention led to the incriminating evidence used against him. The district court denied the motion, and Defendant now challenges that decision.

This appeal presents a single question: Did officers unconstitutionally seize Defendant before they found the firearm or obtained his confession? The answer is no. So, exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

Around 1:00 a.m. on January 25, 2019, Defendant was sitting in the passenger seat of a car parked in the corner of a large apartment complex. The car was backed into an uncovered parking space.

Defendant's friend, who owned the car, was in the driver's seat. Two other individuals were sitting in the back seat.

While patrolling the apartment complex, Officer Jeffrey Nelson noticed the parked car and its occupants. Officer Nelson pulled up to the car at an angle, with the front of his police vehicle pointed toward the driver's side door. He did not block in the parked car with his police vehicle or otherwise obstruct its path of egress. The police vehicle's "takedown lights"—bright lights arranged across the top of a police vehicle designed to illuminate the area in front of the vehicle—were activated, but the vehicle's flashing red and blue lights were not.

Officer Nelson exited his vehicle and, with his weapon holstered, approached the driver's side of the parked car in a way that did not impede the car's path of exit. He asked the individuals sitting in the car what they were doing and also asked for their names and birth dates. Meanwhile, Officer Nelson noticed an open beer can in the center console next to Defendant. The occupants of the car said they were just hanging out and talking. Defendant identified himself, said he was on parole, and stated that he had a knife on him. Officer Nelson told the four individuals he was going to run their names and then returned to his vehicle.

During his records search, Officer Nelson discovered that Defendant was listed as having a gang affiliation and as potentially armed and violent. After retrieving the records, Officer Nelson requested backup, which took 10 to 15 minutes to arrive.

When Officer Austin Schmidt got to the scene, he looked up Defendant's parole agreement. That agreement contains a search provision and a standard weapons clause, under which Defendant agreed to not "purchase, possess, own, use, or have under [his] control, any explosive, firearm, ammunition, or dangerous weapon, including archery or crossbows." The parole agreement also has a special condition that prohibited Defendant from using, possessing, consuming, or having access to alcoholic beverages.

With this newfound knowledge, Officer Nelson reapproached the parked car and asked Defendant to step out of the vehicle. Officer Nelson conducted a pat down and discovered that Defendant was carrying a pocketknife. Defendant said he used the pocketknife to open boxes at his job. Officer Nelson then searched the car and found a firearm underneath the passenger seat. At that point, officers arrested all of the car's occupants. Officer Nelson gave Defendant his Miranda warnings and questioned him at the scene. Defendant admitted to possessing the firearm.

A grand jury indicted Defendant for possession of a firearm after a felony conviction, in violation of 18 U.S.C. § 922(g)(1). Defendant filed a motion to suppress the firearm and his confession. The district court granted the motion on the ground that Officer Nelson did not have probable cause to search the car Defendant had occupied during the encounter. Shortly after the district court issued its order, the Government moved for reconsideration. It argued that Defendant lacked standing to challenge the search of the car and that he was not unconstitutionally detained. This time, the district court agreed with the Government.

The district court first determined Defendant lacked standing to challenge the search of the car he had occupied because he did not own or have a possessory interest in the vehicle. That determination is not at issue here. Next, the district court found the officers did not seize Defendant at any time during their encounter with him before they had developed reasonable suspicion to do so. The district court therefore granted the Government's motion for reconsideration and vacated its prior order suppressing the firearm and Defendant's confession.

Defendant then entered a conditional guilty plea in which he reserved the right to appeal the district court's denial of his motion to suppress. This is his appeal.

II.

When reviewing a district court's decision on a motion to suppress, we review de novo whether and at what point a seizure occurred. United States v. Salazar , 609 F.3d 1059, 1063–64 (10th Cir. 2010). And when, like here, a district court denies such a motion, we accept its factual findings unless they are clearly erroneous and view the evidence in the light most favorable to the Government. Id. at 1063.

III.

Not all encounters with law enforcement officers implicate the Fourth Amendment; rather, different police-citizen interactions trigger different standards. United States v. Madden , 682 F.3d 920, 925 (10th Cir. 2012). Consensual encounters fall entirely outside the scope of the Amendment. Id. Investigative detentions—seizures of limited scope and duration that are commonly known as Terry stops—must be supported by reasonable suspicion of criminal activity. Id. And custodial arrests, the most intrusive of Fourth Amendment seizures, require probable cause. Id.

Our task here is to determine whether officers detained Defendant without reasonable suspicion in violation of the Fourth Amendment. Importantly for our purposes, Defendant concedes that Officer Nelson had reasonable suspicion to detain him after he told the officer he was on parole and had a knife. The pivotal question, then, is whether Officer Nelson's interaction with Defendant before that point rose to the level of a seizure for which reasonable suspicion is required. If the answer is no, Defendant has no valid Fourth Amendment challenge.¹

An investigative detention has occurred only when an officer, "by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Terry v. Ohio , 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). To determine whether an officer has made such a show of authority, we sometimes ask whether "a reasonable person would have believed that he was not free to leave." Brendlin v. California , 551 U.S. 249, 255, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (quoting United States v. Mendenhall , 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (Stewart, J., concurring)). But "when a person ‘has no desire to leave’ for reasons unrelated to the police presence," the better question is "whether ‘a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.’ " Id. (quoting Florida v. Bostick , 501 U.S. 429, 435–36, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ). Under either formulation, we consider all the circumstances surrounding the encounter. Id. ; United States v. Hernandez , 847 F.3d 1257, 1263–64 (10th Cir. 2017).

To be clear, the test is not what the defendant himself thought, but what a reasonable, law-abiding person would have thought had he been in the defendant's shoes. United States v. Sanchez , 89 F.3d 715, 717–18 (10th Cir. 1996). Factors that help courts measure the coercive effect of a police-citizen encounter include: (1) the location of the encounter, particularly whether it occurred in an open place within the view of people other than officers or a small, enclosed space without other members of the public nearby; (2) the number of officers involved; (3) whether an officer touched the defendant or physically restrained the defendant's movements; (4) the officer's attire; (5) whether the officer displayed or brandished a weapon; (6) whether the officer used aggressive language or tone of voice that indicated compliance with a request might be compelled; (7) whether and for how long the officer retained the defendant's personal effects, such as identification; and (8) whether the officer advised the defendant that he had the right to terminate the encounter. United States v. Lopez , 443 F.3d 1280, 1284 (10th Cir. 2006). The defendant has the burden of showing he was detained. Hernandez , 847 F.3d at 1263.

Here, Defendant argues he was detained without reasonable suspicion at two specific junctures during his initial encounter with Officer Nelson. Defendant first contends that Officer Nelson detained him the moment he parked his police vehicle at an angle to the parked car and activated the vehicle's takedown lights. Second, Defendant says he was detained when Officer Nelson approached the parked car on foot and asked the occupants for their names and birth dates. We disagree with Defendant that he was detained at either point in time.

As for Officer Nelson's initial approach, nothing in the record...