On December 20, 2021, the Tenth Circuit Court of Appeals decided the United States v. Gates[i], which serves as an excellent review of the law related to seizures of persons and reasonable suspicion.  The relevant facts of Gates are as follows:

On a cold March evening when some snow covered the ground, Officer Ricks, who had twenty-two years of experience as a police officer and six years of experience with the South Ogden City Police Department, conducted a vehicle patrol in the area of 37th Street and Riverdale Road in South Ogden City, Utah. Around 11:00 p.m. Officer Ricks was driving west on 37th Street toward the intersection of Riverdale Road in a marked, black South Ogden City patrol car with the word “police” down the side and overhead emergency lights on the roof. As he approached a strip mall with a twenty-four-hour, self-service carwash, Officer Ricks spotted Mr. Gates. Mr. Gates was initially standing near a carwash bay that housed a coin machine and power box for the car wash. The bays of the carwash have three walls, a roof, and an opening in the front through which cars can enter. Officer Ricks did not see any vehicle or other items that might be washed in proximity of the carwash bay and Mr. Gates. As Officer Ricks approached in his vehicle, Mr. Gates moved behind and crouched below a four-to five-foot retaining wall. Officer Ricks found Mr. Gates’s location and conduct suspicious and intended to turn into the strip mall, by using an entrance near the intersection of 37th Street and Riverdale Road, to further observe Mr. Gates’s actions. But, before Officer Ricks could drive the short distance to the intersection, he saw, through his rearview mirror, Mr. Gates climb the retaining wall and run across the middle of 37th Street.

Officer Ricks made a U-turn, activated his “alley light” (a non-emergency spotlight), and pulled up alongside Mr. Gates as Mr. Gates walked on a sidewalk. When Officer Ricks reached Mr. Gates’s position, he lowered the window on his patrol car and called out to Mr. Gates, seeking an explanation for Mr. Gates’s presence at the carwash near the coin machine. Mr. Gates responded by moving away from Officer Ricks’s car, behavior which Officer Ricks perceived as Mr. Gates starting to “conceal[] himself.” Id. at 31. Officer Ricks also observed a “bulge” on Mr. Gates’s “waistline” that was outside of his tucked in shirt. Id. at 30. But Officer Ricks was not able to identify the object causing the bulge.

With Mr. Gates moving away from him and having observed the bulge, Officer Ricks exited his vehicle and instructed Mr. Gates to “come here.” Id. at 31. Mr. Gates did not obey this command and, instead, attempted to flee on foot. Officer Ricks pursued Mr. Gates and deployed his taser in an effort to halt Mr. Gates’s flight. The taser temporarily stopped Mr. Gates, but he removed one of the probes and continued running. In continued pursuit, Officer Ricks tackled, struggled with, and ultimately subdued Mr. Gates. Officer Ricks identified the bulge in Mr. Gates’s waistline as a loaded .44 caliber revolver. Mr. Gates was arrested on several state charges. At the time of his arrest, Mr. Gates had eight prior criminal convictions, including three felony convictions.[ii]

Gates was subsequently indicted for being a felon in possession of a firearm under federal law.  He filed a motion to suppress and argued that he was seized without reasonable suspicion.  The district court denied the motion, and Gates pleaded guilty with the right to appeal the denial of his motion to suppress.

Gates filed an appeal with the Tenth Circuit Court of Appeals and argued that he was seized without reasonable suspicion when Officer Ricks first approached, turned on his alley light and asked him what he was doing at the carwash.

The first issue addressed by the court was to determine at what point in the encounter was Gates seized under the Fourth Amendment.  The court of appeals first noted several legal principles that are relevant to this issue.  The legal principles are as follows:

(1) the threatening presence of several officers; (2) the brandishing of a weapon by an officer; (3) physical touching by an officer; (4) aggressive language or tone of voice by an officer indicating compliance is compulsory; (5) prolonged retention of an individual’s personal effects; (6) a request to accompany an officer to the police station; (7) interaction in a small, enclosed, or non-public place; . . . (8) absence of other members of the public . . . [; and (9)] whether an officer indicated to the person that he is free to leave.[iv]

  • In assessing an officer’s verbal interaction with an individual, we have “made clear that the mere fact that [an officer] ask[s] incriminating questions is not relevant to the totality-of-the-circumstances inquiry—what matters instead is the manner in which such questions were posed.” Ringold, 335 F.3d at 1173 (internal quotation marks omitted). In this sense, “[a]ccusatory, persistent, and intrusive questioning can turn an otherwise voluntary encounter into a coercive one.” at 1174 (quotation marks omitted). Thus, “[t]he nature of a police-citizen encounter can change . . . and what may begin as a consensual encounter may change to an investigative detention if the police conduct changes.”[v]
  • The Supreme Court has recognized that “the very presence of a police cardriving parallel to a [] pedestrian could be somewhat intimidating.” Chesternut, 486 U.S. at 575. But, “standing alone,” this is not enough to constitute a seizure. . . “[W]hen [a] police officer[] pursue[s] a citizen in their squad car while the citizen is on foot, courts will consider whether the officer[] activated their siren or flashers, operated their car in an aggressive manner to block the citizen’s course or otherwise control the direction or speed of his movement, displayed their weapons, or commanded the citizen to halt.” at 1264. An officer shining a bright, non-emergency light at an individual “is not inherently coercive.” Tafuna, 5 F.4th at 1201 (collecting authority on this point and noting that an opposing rule would place officer safety at risk when approaching a vehicle or individual at night).[vi]

The court of appeals then set out to apply the facts of Gates’ case with the legal principles above.  First, the court noted that Officer Ricks was the only officer present.  Second, Officer Ricks remained in his patrol car and spoke to Gates from a distance, such that he could not restrain Gates’ freedom of movement.  Third, Officer Ricks did not display a weapon when he initially spoke to Gates.  Fourth, when Officer Ricks initially spoke to Gates he did not give him verbal commands or order him to refrain from any action.  Fifth, the encounter occurred on a public street, which lessens the potential for coercion.  Sixth, Officer Ricks initially only asked Gates one question, particularly what he was doing at the car wash.  The question was not asked as an accusation but rather as an attempt to determine what Gates was doing at the car wash.  Seventh, although Officer Ricks was in his police vehicle, he did not activate his emergency lights or siren, nor did his use the vehicle to attempt to block Gates.  Eighth, the short time of the initial interaction limited the time for coercive conduct.  Lastly, Gates argued that Officer Ricks did not tell him that he was free to leave, however, the court noted that the initial contact was of very short duration, and Gates’ own conduct prevented the officer from having the time to tell Gates he was free to leave.

Therefore, the court of appeals held that Gates was not seized at the initial contact where Officer Ricks asked Gates what he was doing at the car wash.  The seizure occurred when Officer Ricks ordered Gates to “come here” and drew and deployed his Taser.

The second issue examined by the court of appeals was whether reasonable suspicion supported the seizure of Gates.  The court of appeals began by noting several legal principles that are applicable to this issue.  The legal principles are as follows:

  • In assessing whether an officer had reasonable suspicion, thiscourt “must look at the totality of the circumstances of [the] case.” United States v. Kitchell, 653 F.3d 1206, 1218 (10th Cir. 2011). . . to conduct an investigatory stop, “an officer must have a particularized and objective basis for suspecting an individual may be involved in criminal activity.” United States v. Martinez, 910 F.3d 1309, 1313 (10th Cir. 2018) . . . In deciding whether the government has met its burden of showing reasonable suspicion, we judge the officer’s conduct in light of common sense and ordinary human experience and we accord deference to an officer’s ability to distinguish between innocent and suspicious actions.” United States v. Simpson, 609 F.3d 1140, 1146 (10th Cir. 2010).[vii]
  • The “particularized and objective basis” threshold does “not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” Kitchell, 653 F.3d at 1218-19. “To satisfy the reasonable suspicion standard, an officer need not rule out the possibility of innocent conduct, or even have evidence suggesting a fair probability of criminal activity.” Pettit, 785 F.3d at 1374, 1379 (quotation marks omitted). “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 even if it is more likely than not that the individual is not involved in any illegality.[viii]

The court then set out to apply the facts of Gates’ case with the legal principles above.  First, the court noted that Gates’ presence at carwash at 11:00p.m., on a night with snow on the ground, would “draw the attention and suspicion of any reasonable officer.”  Second, Gates’ heightened the officer’s suspicion by attempting to evasively hide behind a retaining wall.  Third, as the officer passed, he saw Gates scale the retaining wall and run across the middle of the street.  In light of these facts, the court of appeals stated

These evasive actions, coupled with the time of day and Mr. Gates’s seemingly out-of-place presence at the carwash, were likely sufficient to establish reasonable suspicion and permit Officer Ricks to seize Mr. Gates and inquire about his presence at the carwash. See United States v. De La Cruz, 703 F.3d 1193, 1198 (10th Cir. 2013) (“Flight can create reasonable suspicion that the person fleeing is involved in criminal activity.” (emphasis omitted)).[ix]

However, the court determined, while reasonable suspicion may have already been present, the seizure did not occur when Officer Ricks first approached Gates and asked him what he was doing at the carwash.  It was at this point that the officer observed a bulge in Gates’ waistband area.  Further, Gates again took action to begin to flee from the officer.  With the addition of these two facts, the court of appeals held that Officer Ricks had reasonable suspicion to detain Gates when he ordered him to “come here” and then drew and deployed his Taser.

As such, the court affirmed the denial of the motion to suppress.

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.



[i] No. 20-4106 (10th Cir. Decided December 20, 2021 Unpublished)

[ii] Id. at 1-4

[iii] Id. at 8-9

[iv] Id. at 9

[v] Id. at 10

[vi] Id. at 10-11

[vii] Id. at 15

[viii] Id. at 16

[ix] Id. at 17

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