United States v. Alexander

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 11, 2022
• Docket: 20-3238
• Status: Unpublished

Opinion

Appellate Case: 20-3238 Document: 010110644049 Date Filed: 02/11/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 11, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-3238 (D.C. No. 6:19-CR-10102-EFM-1) MATTHEW ALEXANDER, III, (D. Kan.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, BACHARACH, and EID, Circuit Judges. _________________________________

Defendant Matthew Alexander III was stopped by police officers after

belatedly signaling a turn. During the traffic stop an officer conducted a protective

sweep of Defendant’s vehicle and discovered synthetic marijuana. He was arrested

and a search incident to that arrest led to the discovery of a firearm. After the

government charged Defendant with being a felon in possession of a firearm, he

moved to suppress statements he made to the police and the physical evidence found

in his vehicle and on his person on the ground that they were obtained as fruits of a

vehicle search that violated the Fourth Amendment. The United States District Court

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 20-3238 Document: 010110644049 Date Filed: 02/11/2022 Page: 2

for the District of Kansas denied the motion to suppress. Defendant appeals that

decision and the 78-month sentence on his plea of guilty. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm the district court’s denial of the motion to

suppress but reverse and remand to correct an admitted error in sentencing.

I. BACKGROUND

Officers Jared Henry and Jamie Thompson of the Wichita Police Department

were on patrol about noon on June 13, 2019. The two officers, each with at least a

decade of experience as police officers, were both assigned to the Violent Crime

Community Response Team, whose “primary responsibilities [were] to respond to

violent crime situations and address neighborhood complaints and violent offenders

in the city.” R., Vol. 1 at 78. They were traveling eastbound when Officer Henry

spotted a gray Pontiac traveling westbound being driven by someone who he thought

looked familiar. Officer Henry made a U-turn to follow the vehicle and determine the

registered owner. Shortly thereafter, the driver turned on the left-turn signal as if to

indicate a lane change, but then switched to the right-turn signal before abruptly

turning into the parking lot of a Hardee’s restaurant. The signal was activated

only 20 feet before the turn, contrary to Kansas law, which requires continuous

signaling for at least 100 feet, see Kan. Stat. Ann. § 8-1548(b). After entering the

parking lot the vehicle drove around the building and “seemed to somewhat

accelerate as it rounded a curve, . . . making [Officer Henry] believe that the vehicle

was going to take off.” R., Vol. 1 at 81–82. Officer Henry then activated his

emergency lights and siren, and the vehicle stopped.

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Officer Henry asked Defendant, the sole occupant of the vehicle, to step out

and then performed a pat-down search. While performing the pat-down search,

Officer Henry relayed to Officer Thompson “that [he] knew it was Matt Alexander,”

and Officer Thompson “immediately went to the vehicle to conduct a sweep for

weapons.” Id. at 87. She testified that the mere fact that Officer Henry removed

Defendant from the vehicle indicated that he did “not want that driver to be near that

car.” Id. at 140–41. Officer Henry finished patting down Defendant and having

discovered no weapons he directed Defendant to sit on the curb, about six to ten feet

from Defendant’s vehicle.

Meanwhile, Officer Thompson conducted a sweep of the vehicle for weapons.

As part of this sweep she opened the center console of the vehicle and found what

she initially thought was marijuana, but later learned was K2, synthetic marijuana.

After discovering this substance, Officer Thompson indicated to Officer Henry that

he should arrest Defendant and he placed Defendant in handcuffs. Officer Henry later

“noticed a bulge in between [Defendant’s] legs near his crotch,” Id. at 90, which

prompted him to conduct a search incident to arrest. He discovered a handgun in

Defendant’s pants pocket, after which he placed Defendant in his patrol car and read

him his Miranda rights.

Defendant was indicted in Kansas federal court on one count of being a

prohibited person in possession of a firearm. He moved to suppress the handgun

discovered in his pocket, the synthetic marijuana found in the center console, and

statements he made after being read his Miranda rights. He argued that the physical

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evidence and his statements should be suppressed as the fruits of an unlawful

protective sweep of his vehicle.

At the suppression hearing Officer Henry testified to the facts and

circumstances that made him suspect that Defendant might be carrying a firearm.1

For one, Defendant pulled his vehicle into the first-available parking lot after the

officers started following him and appeared to accelerate through a turn in the

Hardee’s parking lot, leading Officer Henry to worry that the vehicle might take off.

According to Officer Henry, these actions were consistent with nervous, evasive

behavior.

Also, over the years Officer Henry had several noteworthy encounters with

Defendant. In 2010 Officer Henry used a Taser to detain Defendant after he fled from

a traffic stop. Officer Henry also testified that Defendant fled from him during a

traffic stop in 2012. In 2016, while Officer Henry was off duty, Defendant told him

that the cast on his arm was from “punching a glass window after he had drank too

1 In upholding Officer Thompson’s protective search of Defendant’s vehicle and denying the motion to suppress, the district court relied on Officer Henry’s knowledge and experience with Defendant. Defendant originally argued in this appeal that the district court erred by “rel[ying] exclusively on Officer Henry’s uncommunicated knowledge to justify Officer Thompson’s search,” Aplt. Br. at 28, claiming that the collective-knowledge doctrine did not apply here. But before the district court, Defendant did not specifically argue that Officer Thompson lacked reasonable suspicion to perform a protective search of his vehicle. Defendant concedes in his reply brief that, having failed to “make an officer-specific argument below,” his collective-knowledge argument is waived and that he cannot show “good cause” under Federal Rule of Criminal Procedure 12(c)(3) for this court to consider his untimely claim. Aplt. Reply Br. at 1. Given Defendant’s concession, we consider what Officer Henry knew in assessing whether there was reasonable suspicion to perform a protective search of the vehicle. 4 Appellate Case: 20-3238 Document: 010110644049 Date Filed: 02/11/2022 Page: 5

much.” R., Vol. 1 at 84. To Officer Henry’s knowledge, Defendant was not carrying

a firearm during these incidents. Then, in 2017, Officer Henry personally conducted

surveillance on Defendant because he was identified as a potential suspect in a

homicide. During this investigation Officer Henry saw Defendant enter a home

believed to be involved in the homicide while holding “an item approximately the

size of a football.” Id. at 115–16. After Defendant left, police officers entered the

home and talked with a man inside who said that Defendant brought a towel in:

“Inside that towel was a firearm consistent with the item [Officer Henry] observed

[Defendant] holding size-wise.” Id. at 116.

In addition, at the time of the traffic stop in this case, Officer Henry knew that

Defendant had twice been convicted of being a felon in possession of a firearm. On

one of those occasions he had discharged a firearm into an occupied dwelling. He

also knew that Defendant had been convicted of aggravated battery, though he did

not know whether that conviction involved a weapon.

Finally, Officer Henry was aware that Defendant was included in a law-

enforcement database as a gang member. In Officer Henry’s experience, gang

members are likely to carry firearms.

The district court denied Defendant’s motion to suppress, ruling that the initial

traffic stop was lawful and the officers’ warrantless search of Defendant’s vehicle

was justified as a protective sweep under Michigan v. Long, 463 U.S. 1032 (1983).

Defendant entered a conditional plea of guilty to the charge of possession of a

firearm by a prohibited person, see 18 U.S.C. § 922(g)(1), reserving his right to

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appeal the denial of his motion to suppress. He now appeals from that denial,

challenging only the lawfulness of the protective search and the sentencing-

guidelines calculation.

II. DISCUSSION

A. Motion to Suppress

“In reviewing the denial of a motion to suppress, we accept the district court’s

factual findings unless clearly erroneous.” United States v. Hammond, 890 F.3d 901,

905 (10th Cir. 2018). Ultimately, however, “as a general matter determinations of

reasonable suspicion and probable cause should be reviewed de novo on appeal.”

Ornelas v. United States, 517 U.S. 690, 699 (1996).

“[T]he search of the passenger compartment of an automobile, limited to those

areas in which a weapon may be placed or hidden, is permissible if the police officer

possesses a reasonable belief based on specific and articulable facts which, taken

together with the rational inferences from those facts, reasonably warrant the officer

in believing that [1] the suspect is dangerous and [2] the suspect may gain immediate

control of weapons.” Long, 463 U.S. at 1049 (internal quotation marks omitted;

bracketed numerals added). Defendant argues that the district court erred in finding

that both requirements—dangerousness and the prospect of immediate access to

weapons—for a Long protective search were satisfied.

We begin with the dangerousness requirement. Defendant asserts that a district

court cannot make a finding of dangerousness based solely on the suspect’s criminal

history yet the district court did precisely that in this case. Although he acknowledges

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that at the suppression hearing the government presented evidence of his

dangerousness other than what is recited in the court’s order, he contends that the

district court implicitly rejected that evidence because it was not mentioned in the

court’s order denying the motion to suppress.

The district court’s order states in the paragraph on dangerousness:

Although the officers searched [Defendant’s] vehicle without a warrant, the Court concludes that the protective sweep exception applies. Considering the totality of the circumstances, the officers had a reasonable and articulable suspicion that [Defendant] was dangerous and could potentially gain access to a weapon in the car. Henry knew that [Defendant] was a convicted felon who had a record of unlawfully possessing firearms. Henry also knew that [Defendant] had been violent in the past. These facts supported the officers’ reasonable suspicion that [Defendant] was potentially dangerous.

R., Vol. 1 at 50. The paragraph is brief. It mentions only some of the evidence of

dangerousness. But there is nothing to suggest that it rejected the other evidence.

Indeed, that would have been remarkable since that evidence was internally

consistent and uncontradicted, and Defendant had not raised any challenge to its

truth. We recognize that “[w]hen factual issues are involved in deciding a motion, the

court must state its essential findings on the record.” Fed. R. Crim. P. 12(d). But the

purpose of that provision is to make sure that the district court addresses factual

disputes (that is, issues) that must be resolved for there to be meaningful appellate

review. See United States v. Torres, 987 F.3d 893, 898 (10th Cir. 2021) (“A finding

is essential if it is required for meaningful review.”); see also United States v. Beck,

140 F.3d 1129, 1131 (8th Cir. 1998) (“[B]ecause the relevant facts in this case are

undisputed, we need not remand for further findings and may rule based on the

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record currently before us.”); United States v. Koshnevis, 979 F.2d 691, 694–95 (9th

Cir. 1992) (“Although the factual findings made by the district court were not

extensive, the evidence was not in conflict. . . . By denying the motion to dismiss, it

is evident that the district court agreed with the testimony of [the sole witness]. The

factual findings by the district court therefore satisfy the requirements of [Rule]

12.”). It is not the purpose of the provision to set a trap for district courts, requiring

reversal of their decisions for failure to recite all the undisputed facts. District judges

are busy enough without imposing that requirement. Cf. Ornelas, 517 U.S. at 700

(“The background facts, though rarely the subject of explicit findings [in an order

resolving a motion to suppress], inform the judge’s assessment of the historical

facts.”). When the district court ruled that “the totality of the circumstances”

supported a finding of reasonable suspicion of dangerousness, R., Vol. 1 at 50, we

can fairly infer that the circumstances considered included the uncontradicted and

unchallenged evidence presented at the hearing.

Defendant argues in the alternative that the officers lacked reasonable

suspicion of dangerousness even if we consider those facts not explicitly mentioned

in the district court’s order. He relies on statements by this court stating that

reasonable suspicion of dangerousness cannot be based solely on the suspect’s

criminal history. See United States v. Rice, 483 F.3d 1079, 1085 (10th Cir. 2007) (“a

criminal record, standing alone, is not sufficient to create reasonable suspicion of

anything”); Hammond, 890 F.3d at 906 (“Standing alone, a criminal record—let

alone arrests or suspected gang affiliation—is not sufficient to create reasonable

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suspicion of anything.” (internal quotation marks omitted)); Torres, 987 F.3d at 904

(“As [defendant] argues, reasonable suspicion does not arise solely from his criminal

record or gang affiliation.”).2

Here, however, there is substantial evidence beyond Defendant’s criminal

history. To begin with, his response to being followed by a police vehicle strongly

suggested concern about having an interaction with officers. He abruptly turned into

the first available driveway, after (presumably because of agitation) incorrectly

signaling that he would be turning in the other direction; and once in the Hardee’s

2 It should be noted that each of the statements was dictum—we held that there was reasonable suspicion of dangerousness in each case. Also, the reason criminal history alone does not suffice to establish reasonable suspicion is not because criminal history is not probative. On the contrary, a history of violence is generally considered very probative, and is often used in the criminal-justice system, such as to deny pretrial release and to impose a harsher sentence. The reason not to rely on criminal history alone has been policy. As stated in Hammond, “‘[I]f the law were otherwise, any person with any sort of criminal record—or even worse, a person with arrests but no convictions—could be subjected to a Terry-type investigative stop by a law enforcement officer at any time.’” 890 F.3d at 907 (quoting United States v. Sandoval, 29 F.3d 537, 543 (10th Cir. 1994)); see also United States v. Laughrin, 438 F.3d 1245, 1247 (10th Cir. 2006) (recognizing the “basic precept that law- enforcement officers not disturb a free person’s liberty solely because of a criminal record”). It is therefore important to examine the implications of each application of the policy. Our dicta in the reasonable-suspicion-of-dangerousness cases have rested on the assumption that the assessment of reasonable suspicion should be the same in that context as when determining reasonable suspicion to initiate an investigative stop. But that assumption is not obviously correct. A leading search-and-seizure treatise has indicated that because “a certain level of risk of death or serious bodily harm is less tolerable than an equivalent risk of undetected criminality, . . . in a stop- and-frisk situation the likelihood the detainee is armed and dangerous need not reach the level which would be required if the question instead were whether there would be grounds to stop that individual on suspicion he is committing the offense of carrying a concealed weapon.” 4 Wayne R. LaFave, Search & Seizure § 9.6(a), at 906 (6th ed. 2020). We leave further analysis of the issue for another day. In this case we need not challenge our prior dicta. (Judge Bacharach does not join this footnote.) 9 Appellate Case: 20-3238 Document: 010110644049 Date Filed: 02/11/2022 Page: 10

parking lot, he appeared to accelerate to leave the parking lot until Officer Henry

activated his siren and emergency lights. The officers could reasonably believe that

Defendant was worried about more than just getting a traffic citation. Given his prior

felony convictions, including a conviction for possession of a firearm by a convicted

felon, an obvious cause for such worry would be that he had a firearm with him.

Moreover, Officer Henry knew of Defendant’s volatile temper because of the prior

occasion when Defendant had told him about badly cutting himself by smashing a

window with his hand. Put this together with Defendant’s gang membership and

Officer Henry’s personal observations linking Defendant to a potential murder

weapon two years earlier, as well as his criminal record of convictions, and one can

conclude only that the concern with Defendant’s dangerousness was reasonable.

We now turn to consider whether Long’s second requirement—that the officers

reasonably suspected that Defendant could “gain immediate control of weapons” in

the vehicle—was satisfied. The Supreme Court in Long identified three

circumstances in which that could happen: (1) the suspect could “break away from

police control and retrieve a weapon from his automobile”; (2) “if the suspect is not

placed under arrest, he will be permitted to reenter his automobile, and he will then

have access to any weapons inside”; and (3) “the suspect may be permitted to reenter

the vehicle before the . . . investigation is over, and again, may have access to

weapons.” 463 U.S. at 1051–52. When, as here, there are no disputed historical facts,

determining whether the risk of access is sufficient to justify the protective search is

a matter of law, which we review de novo. See Ornelas, 517 U.S. at 695–99; see also

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United States v. Arvizu, 534 U.S. 266, 275 (2002) (observing that in Ornelas the

Court “reasoned that de novo review [of a ruling on reasonable suspicion] would

prevent the affirmance of opposite decisions on identical facts from different judicial

districts in the same circuit”).

We address only the first and third possibilities, determining that each could

justify the protective search. Regarding the risk that Defendant could break away and

retrieve a gun from the vehicle, that risk is certainly diminished by his being seated

on the curb 10 feet from the vehicle while being outnumbered by two police officers.

Nevertheless, this court has held that there was sufficient risk in circumstances where

the opportunity to break free was certainly less than here. In particular, in United

States v. Dennison, 410 F.3d 1203, 1206, 1213 (10th Cir. 2005), we held that there

was a sufficient risk that the handcuffed defendant would gain access to a weapon,

even though he was standing near the rear of the truck next to an officer when

another officer conducted a protective search of the truck. See also United States v.

Palmer, 360 F.3d 1243, 1247–48 (10th Cir. 2004) (defendant was seated in patrol car

while one of two officers on the scene conducted a protective search of Defendant’s

car).

As for the third possibility, Defendant makes two arguments. First, he

contends that recognition of the possibility that the suspect will be released after the

investigation essentially permits a protective search whenever there is reasonable

suspicion of dangerousness. But that is an argument for him to pursue with the

Supreme Court. We are not at liberty to ignore what that Court said in Long. Second,

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he argues that we should not consider this risk in this case because at the time of the

protective search there was insufficient evidence for the officers to know whether

they might release him after the detention for the traffic violation. He observes that

the protective search was conducted before Officer Henry had checked whether

Defendant had an outstanding warrant that would have required the officers to arrest

him (and not release him after completing their investigation). What Defendant

overlooks, however, is that intrusions by police officers need not be predicated on

certainties. The officers had reason to believe that Defendant would not be detained

after the investigation. There was a possibility that he had an outstanding warrant

against him, just as there was a possibility that the investigation at the scene would

lead to his arrest; but even if those possibilities were more likely than his ultimate

release, there would still be sufficient reason to believe (when the protective search

was conducted) that he would ultimately be released. See United States v. Vaccaro,

915 F.3d 431, 437–38 (7th Cir. 2019) (Barrett, J.) (Long’s second prong was satisfied

since defendant conceded that he had not been arrested at time of the vehicle search

and he would have been permitted to return to his vehicle if the officers had found no

contraband).

For the reasons stated above, the officers had the reasonable suspicion

necessary to conduct a protective search of the vehicle under Long.

B. Sentencing

Defendant contends that the district court erred in calculating his guideline

sentencing range by treating his prior Kansas state conviction for reckless aggravated

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battery as a “crime of violence” under USSG § 4B1.2(a)(1). See United States v. Ash,

7 F.4th 962, 963 (10th Cir. 2021). Although Defendant did not preserve this issue in

the district court, the government concedes that he is entitled to relief on plain-error

review. We agree with the concession and remand to the district court for

resentencing.

III. CONCLUSION

We AFFIRM the district court’s denial of Defendant’s motion to suppress but

REVERSE the sentence imposed by the district court and REMAND for

resentencing in accordance with this order.

Entered for the Court

Harris L Hartz Circuit Judge