On May 24, 2023, the Tenth Circuit Court of Appeals decided the United States v. Apache Young[i], which serves as an excellent review of the law related to reasonable suspicion and investigative detentions.  This article is a two part series in which the first issue will be discussed herein and the second issue will be discussed in Part Two.

The facts of Young are as follows:

The West Mesa is an open space area west of Albuquerque, New Mexico. According to local law enforcement, the West Mesa is known for criminal activity, including drug distribution and abandoned stolen vehicles. On November 13, 2016, Officer Jason Harvey of the Albuquerque Police Open Space Division was on patrol in the West Mesa—an area he had experience patrolling since 2002. It was about sixty-degrees Fahrenheit that day. Around 2 P.M., Officer Harvey spotted a red pickup truck, parked about a half-mile away. The driver’s side door was open. Officer Harvey saw no one near the truck. The scene roused Officer Harvey’s curiosity. Based on his experience, when a car or truck is parked on the West Mesa with its doors open, the hood up, or the wheels off, these “are indicators that potentially [the vehicle is] stolen.” Supp. App. at 56; App. vol. I at 145. Officer Harvey waited for his partner, Officer Pat Smith, to arrive before the two drove together towards the pickup truck.

When they were about 100 yards from the truck, Officer Harvey observed a man, later identified as Mr. Young, walk out of a nearby abandoned cattle water tank. Mr. Young was wearing pants, but no shirt, and he had blue tattoos on his torso. Officer Harvey also saw Mr. Young carrying what he believed was a handgun in a black holster. When Mr. Young reached the pickup, he placed the object on the left side of the truck bed and approached the officers.

Both officers walked toward Mr. Young, meeting him halfway between their respective vehicles. Officer Harvey asked Mr. Young what he was doing on the West Mesa and if there were “any guns or weapons we need to know about.” Mr. Young responded, “No, sir.” App. vol. I at 148; Supp. App. at 71; Video 1 at 0:54-0:57. Officer Harvey then asked Mr. Young, “Do you have any weapons on you.” App. vol. I at 148; Video 1 at 0:57-0:59. Mr. Young answered, “a pocketknife,” which he retrieved from his pants. App. vol. I at 148; Video 1 at 0:59. Reaching for the pocketknife, Officer Harvey said, “Let me just hold on to that for a second while we check everything out” and told Mr. Young, “Just hang out tight right here, okay?” App. vol. I at 148; Video 1 at 1:00-1:07.

Officer Harvey walked to the pickup truck, leaving Mr. Young with Officer Smith. Officer Harvey first looked in the truck bed, which was full of an assortment of objects. He called in the license plate number on his radio and learned the truck was registered to Andy Baca.

Officer Harvey then walked to the cattle water tank “looking for anything that was not consistent with the rest of the surroundings.” Supp. App. at 74. Inside the water tank, Officer Harvey observed “clear fluid,” blood, and fecal matter. App. vol. I at 149.

After inspecting the water tank, Officer Harvey returned to the truck, where he spotted “the butt of the gun, the grip of it” in the truck bed. Id. At this point, Dispatch had confirmed the vehicle was not stolen. Although “it didn’t look like any narcotics activity was occurring” Officer Harvey said he “needed to run the individual, just to make sure everything was good to go.” Supp. App. at 78.

Officer Harvey then walked back to where Officer Smith was waiting with Mr. Young. Officer Smith asked for Mr. Young’s full name, birthday, and Social Security number. When Officer Harvey asked who owned the truck, Mr. Young replied, “Andy Baca.” App. vol. I at 149-50.

Officer Harvey returned to his squad car, while Officer Smith waited with Mr. Young. Officer Harvey first phoned his supervisor, Sergeant Jeremy Bassett. He described his encounter with Mr. Young and reported seeing a firearm in the truck bed. He also explained what he had seen in the water tank. Sergeant Bassett asked if Mr. Young was a felon, and Officer Harvey answered, “I’m going to guess he is. He’s covered in tats like he is.” App. vol. I at 150; Video 2 at 9:08-9:13.

Officer Harvey then radioed Dispatch to check for warrants on Mr. Young. Dispatch found no outstanding warrants but identified that Mr. Young was on “a discharge status under probation [or] parole.” App. vol. I at 150; Video 2 at 18:03-18:18. Dispatch could not confirm the nature of Mr. Young’s underlying offense. Officer Harvey called Sandra Perea at the Probation and Parole Division of the New Mexico Corrections Department; she confirmed Mr. Young had a prior felony conviction.

Officer Harvey then arrested Mr. Young. About 35-40 minutes had elapsed since law enforcement first stopped Mr. Young. Later, after obtaining a warrant, law enforcement searched Mr. Young’s truck and found a rifle, shotgun, and ammunition, along with the handgun Officer Harvey had seen during the encounter.[ii]

Young was subsequently charged with weapons violations under federal law.  He filed a motion to suppress and argued (1) that the officers lacked reasonable suspicion for the stop and (2) that the officers exceeded the permissible scope of the detention.  The district court denied the motion.  Young was convicted by a jury and later appealed the denial of his motion to suppress.

On appeal, Young again argued that (1) the officers lacked reasonable suspicion to detain him, and (2) the officers exceeded the permissible scope of the stop.

Issue One:  Did the officers have reasonable suspicion to detain Young?

The court of appeals first examined whether the officers had sufficient reasonable suspicion to justify detaining Young.  The court noted several legal principles relevant to this issue, which are as follows:

  • We engage in a twofold inquiry “[t]o determine whether an investigative detention or a protective search is reasonable under the Fourth Amendment.” First, the officer’s action must be ‘justified at its inception,'” meaning an officer must have a reasonable suspicion that criminal activity may be occurring, . Second, the detention must be “reasonably related in scope to the circumstances” prompting the stop. Put another way, “[t]he scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” [iii]
  • [T]he police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot.” Reasonable suspicion requires “more than an inchoate and unparticularized suspicion or hunch” but “considerably less than proof of wrongdoing by a preponderance of the evidence.” [iv]
  • In assessing whether reasonable suspicion exists, courts must look at the totality of the circumstances. “[R]easonable suspicion may exist even if it is more likely than not that the individual is not involved in any illegality.” “As long as an officer has a particularized and objective basis for suspecting an individual may be involved in criminal activity, he may initiate an investigatory detention.” [v]
  • When assessing the actions of a police officer under the Fourth Amendment, what matters are “objective facts, not the officer’s state of mind.” United States v. Neff, 300 F.3d 1217, 1222 (10th Cir. 2002).[vi]

The court of appeals then noted the factors upon which the district court relied in its finding that reasonable suspicion was present.  The factors relied upon were as follows:  (1) the high-crime nature of the West Mesa location; (2) Young’s alleged “prison” tattoos; (3) carrying an object suspected to be a gun and dropping it in a truck bed; and (4) the truck door was ajar and Young emerged shirtless from a hidden area.

Young argued that none of the facts relied upon by the district court are crimes, and viewed individually, do not amount to reasonable suspicion of criminal activity.  The court of appeals stated

A reasonable suspicion analysis requires a court to assess the totality of the circumstances, not to consider facts in isolation. See McHugh, 639 F.3d at 1256; United States v. Soto, 988 F.2d 1548, 1555 (10th Cir. 1993) (“Whether . . . an investigative detention is supported by an objectively reasonable suspicion of illegal activity does not depend upon any one factor, but on the totality of the circumstances.“).[vii]

Thus, the court of appeals then set out to examine each of the facts relied upon by the district court, considering each fact as part of the totality of the circumstances.

a. The Location

The court of appeals noted that the West Mesa location had a reputation for being a place where stolen cars and property were often abandoned.  Officer Harvey testified that he recovered “hundreds of stolen vehicles” at that location.

The court of appeals discussed the law related to the consideration of location and stated

A person’s mere presence in a high crime area alone cannot support a reasonable suspicion determination. See Brown v. Texas, 443 U.S. 47, 52, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979) (“The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct.”). As the Supreme Court has recognized, “the fact that the stop occurred in a ‘high crime area’ [is] among the relevant contextual considerations in a Terry analysis.” Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000)[viii]

In this case, the location was not the only reason considered for reasonable suspicion, rather it was one relevant factor and the court of appeals agreed that it was a relevant factor to consider.

b. Young’s “prison” tattoos

The district court credited the officer’s opinion, based on his experience, that the tattoos were the type often found on persons who had been to prison.  The court noted that this was a relevant, but very minor consideration, which only “factored slightly” in the reasonable suspicion analysis.  Typically, tattoos are best considered when they show gang affiliation and that was not present in this case.

c. Carrying a suspected gun and dropping it in the truck bed

The court of appeals noted that gun possession may not, by itself, enough to support reasonable suspicion of criminal activity and that carrying guns in New Mexico is not against the law.  However the court of appeals also noted that

[P]ossession of a firearm can contribute to the existence of reasonable suspicion when combined with other facts.”[ix]

In this case, the court of appeals observed that Young did not merely possess a gun in this incident.  Rather, he was carrying the gun, while in a high crime area, and upon seeing the police, dropped it into the back of a pickup truck and walked away to distance himself from the gun.  Then, when asked by the police if he had any guns, he lied and denied having guns.

Based upon the above facts, the court of appeals stated that Officer Harvey had a reasonable belief that Young illegally possessed the gun.

d. Truck door ajar, and Young emerged from a hidden area

As the court stated, there is nothing illegal about leaving a vehicle door ajar.  However, that does not prevent the court from considering that fact as part of the reasonable suspicion analysis.  Specifically, the court stated

[T]here is nothing illegal about parking a pickup truck on a mesa and leaving the driver’s side door open.” App. vol. I at 190. But the court explained “that observed actions are lawful is no bar to a police officer’s reasonable suspicion determination.” Id. at 191. We agree.  When considering the totality of the circumstances, courts “need not rule out the possibility of innocent conduct” to conclude there is reasonable suspicion. Arvizu, 534 U.S. at 277. Here, the context makes an inherently unsuspicious fact—a truck with an open door—relevant to the overall assessment. The district court appropriately concluded, because Officer Harvey saw the truck “parked out on the West Mesa—a place known as a stolen vehicle repository—next to an abandoned water tank, with no obvious purpose for being there,” seeing a truck with the door ajar “weigh[ed] towards reasonable suspicion.”[x]

The court also considered that, while it was not illegal for Young to be shirtless on a cool day, that likewise is a valid consideration for reasonable suspicion, combined with the fact that Young emerged from a hidden location in an abandoned water tank, had no clear purpose to be at that location, and was holding a gun.

As such, based on the totality of the circumstances discussed, the court of appeals upheld the finding of reasonable suspicion.

The second issue, specifically, whether the officers exceeded the permissible scope of the stop, will be discussed in Part Two of this article.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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Citations

[i] No. 21-2066 (10th Cir. Decided May 24, 2023 Unpublished)

[ii] Id. at 1-2

[iii] Id. at 9-10 (internal citations omitted)

[iv] Id. at 10 (internal citations omitted)

[v] Id. (internal citations omitted)

[vi] Id. at 10-11

[vii] Id. at 11-12 (emphasis added)

[viii] Id. at 13 (emphasis added)

[ix] Id. at 17 (emphasis added)

[x] Id. at 18-19 (emphasis added)