United States v. Daniels

101 F.4th 770

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 8, 2024
• Docket: 22-1378
• Status: Published

Opinion

Appellate Case: 22-1378 Document: 010111045898 Date Filed: 05/08/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS May 8, 2024

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v. No. 22-1378

LYNDELL DANIELS,

Defendant - Appellee.

Appeal from the United States District Court for the District of Colorado (D.C. No. 21-CR-00332-RMR) _________________________________

Elizabeth S. Ford Milani, Assistant United States Attorney (Cole Finegan, United States Attorney, with her on the brief), Office of the United States Attorney, Denver, Colorado, for Plaintiff-Appellant.

John C. Arceci, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Denver, Colorado, for Defendant-Appellee. _________________________________

Before EID, SEYMOUR, and KELLY, Circuit Judges. _________________________________

SEYMOUR, Circuit Judge. _________________________________

Mr. Lyndell Daniels was detained by law enforcement who, by using his name,

connected Daniels to a stolen Glock and charged him with being a felon in possession of a Appellate Case: 22-1378 Document: 010111045898 Date Filed: 05/08/2024 Page: 2

firearm in violation of 18 U.S.C. § 922(g)(1). Daniels moved to suppress his name as the

fruit of an unlawful investigative detention, arguing the officers had no reasonable

suspicion to detain him. The district court agreed and granted his motion. On appeal, the

government argues the district court erred because there was reasonable suspicion to detain

Daniels. We affirm.

Background

Just before midnight on February 7, 2021, the Aurora Police Department received a

near-anonymous call. The caller expressed concern over something happening in her

apartment complex’s parking lot: Three Black men, wearing dark hoodies and jeans, were

intermittently taking guns in and out of their pockets and getting in and out of a dark SUV.

The caller believed they were “getting ready to do something,” but conceded that it was not

an emergency and reported no illegality. Rec., vol. I at 55. The call was logged as a non-

emergency “area watch.” Id.

Aurora Police Officers William Idler and Glenn Snow were dispatched to the

caller’s apartment, located in a high-crime neighborhood of Aurora, Colorado. The

complex was densely populated, and the parking lot was well-lit. Officer Idler arrived first

and identified what he assumed to be the reported dark SUV. Standing five to ten feet away

from the SUV was Daniels. Daniels was wearing a bright orange jumpsuit with a reflective

strip and an orange hood under a black jacket. Officer Idler testified that as he approached,

Daniels appeared to say something (which he could not hear) to the SUV. At that point, the

SUV left the parking lot at a normal rate of speed. Officer Idler identified himself and

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ordered Daniels to put his hands up. Daniels immediately complied and was detained.

Officer Idler acquired Daniels’ name, ran a criminal background check, and discovered he

was a convicted felon.

Police separately followed the dark SUV. The car drove lawfully, but eventually ran

a red light and was stopped. Within the vehicle, officers found four firearms, one of which

was a stolen 9mm Glock 17. Using Daniels’ name, law enforcement obtained a warrant for

his DNA. Subsequent forensic testing of the DNA tied Daniels to the stolen Glock. A grand

jury indicted Daniels on the sole count of being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). In response, Daniels moved to suppress his name as the

fruit of Officer Idler’s unlawful detention. The district court held an evidentiary hearing

and then granted his motion. This appeal followed.

Discussion

The government argues that the district court erred in granting Daniels’ motion to

suppress because Officer Idler had reasonable suspicion to detain Daniels. When reviewing

a district court’s grant of a motion to suppress, we review factual findings for clear error

and legal determinations de novo. United States v. Morales, 961 F.3d 1086, 1090 (10th Cir.

2020). “[We] view[] the evidence in the light most favorable to the district court’s

decision.” Id. The ultimate question of reasonableness under the Fourth Amendment we

review de novo. Id.

The Fourth Amendment establishes a right to be free from “unreasonable searches

and seizures.” U.S. Const. amend. IV. Even so, in Terry v. Ohio, 392 U.S. 1 (1968), the

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Supreme Court clarified that “a police officer may in appropriate circumstances and in an

appropriate manner approach a person for purposes of investigating possibly criminal

behavior even though there is no probable cause to make an arrest.” 392 U.S. at 22. In

other words, the Fourth Amendment permits temporary detentions of individuals—so long

as “the facts available to the officer at the moment of the seizure or the search ‘warrant a

man of reasonable caution in the belief’ that the action taken was appropriate.” Id. at 21–

22. See also United States v. McHugh, 639 F.3d 1250, 1255 (10th Cir. 2011) (observing

that the Fourth Amendment protects individuals from unreasonable “investigatory stops”

and detentions). To be “reasonable” a police officer’s investigatory stop must be “justified

at its inception,” and the “officer’s actions must be reasonably related in scope to the

circumstances which justified the interference in the first place.” United States v. Madrid,

713 F.3d 1251, 1256 (10th Cir. 2013) (quoting Terry, 392 U.S. at 20) (internal quotations

omitted). This appeal concerns only the first prong, i.e., whether Daniels’ detention by

Officer Idler was justified at its inception.

“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,” id. (quoting McHugh, 639 F.3d at 1255), or “that

criminal activity ‘may be afoot.’” United States v. Sokolow, 490 U.S. 1, 7 (1989). Police

officers must have “reasonable suspicion that criminal activity ‘is, has, or is about to

occur.’” United States v. Copening, 506 F.3d 1241, 1246 (10th Cir. 2007); see also United

States v. Cortez, 449 U.S. 411, 417 (1981) (“An investigatory stop must be justified by

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some objective manifestation that the person stopped is, or is about to be, engaged in

criminal activity.”). It is true that “the likelihood of criminal activity need not rise to the

level required for probable cause,” United States v. Arvizu, 534 U.S. 266, 274 (2002), but it

is equally true that officers cannot rely on “inchoate and unparticularized suspicion[s] or

‘hunch[es].’” Sokolow, 490 U.S. at 7. The Fourth Amendment requires “some minimal

level of objective justification.” Id. The objective nature of this standard is key. See Terry,

392 U.S. at 21–22 (“[I]t is imperative that the facts be judged against an objective standard

. . . .”) (emphasis added).

To determine whether a detaining officer had the required “particularized and

objective basis for suspecting [a] particular person stopped of criminal activity,” we

consider the “totality of the circumstances—the whole picture.” Cortez, 449 U.S. at 417–

18. When making that determination, “a court may not evaluate and reject each factor in

isolation.” Madrid, 713 F.3d at 1256 (quoting United States v. Gandara-Salinas, 327 F.3d

1127, 1130 (10th Cir. 2003)). Indeed, “[c]onduct that may be wholly innocent may

nonetheless support a finding of reasonable suspicion in certain circumstances.” United

States v. Johnson, 364 F.3d 1185, 1192 (10th Cir. 2004). All factors, “mitigating and

aggravating,” must be considered in the totality of the circumstances. Id. at 1193.

The parties agree Officer Idler detained Daniels for the purposes of the Fourth

Amendment and so was subject to its strictures. The parties and the district court further

agree that there were four relevant factors and circumstances known to Officer Idler when

he detained Daniels: (1) the 911 phone call and Computer Aided Dispatch (“CAD”) notes,

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(2) the presence and actions of the dark SUV, (3) the time of Officer Idler’s encounter with

Daniels, and (4) the location of their encounter. The question before us is whether the

district court properly analyzed and weighed these factors when determining Officer Idler

did not have reasonable suspicion to detain Daniels. Our de novo review convinces us that

the totality of the circumstances known by Officer Idler when he detained Daniels did not

amount to reasonable suspicion. As such, Daniels’ detention was unreasonable under the

Fourth Amendment, and the district court’s grant of Daniels’ motion to suppress was

proper. We address each factor before analyzing all together to determine whether the

totality of the circumstances established reasonable suspicion. United States v. Leon, 80

F.4th 1160, 1166 (10th Cir. 2023).

1. The 911 Call

The district court began by analyzing the import of the near-anonymous 911 call. A

tip to the police, like a 911 call, can “justify an investigatory stop if under the totality of the

circumstances the tip furnishes both sufficient indicia of reliability and sufficient

information to provide reasonable suspicion that criminal conduct is, has, or is about to

occur.” Madrid, 713 F.3d at 1258. Our analysis to determine a tip’s reliability is “case-

specific” and factor-based. United States v. Chavez, 660 F.3d 1215, 1222 (10th Cir. 2011).

We consider:

(1) [W]hether the informant lacked “true anonymity” (i.e., whether the police knew some details about the informant or had means to discover them); (2) whether the informant reported contemporaneous, firsthand knowledge; (3) whether the informant provided detailed information about the events observed; (4) the informant’s stated motivation for reporting the information; and (5) whether the police were able to corroborate information provided by the informant.

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Id. “[N]o single factor is dispositive.” Id.

The district court eschewed this factor-based inquiry for a comparison between the

instant case and Florida v. J.L., 529 U.S. 266 (2000), in which the Supreme Court found

that “the bare report of an unknown, unaccountable informant,” unaccompanied by

“specific indicia of reliability” was insufficient to establish reasonable suspicion. 529 U.S.

at 269, 271. While the district court’s comparative analysis was not per se improper, see

Chavez, 660 F.3d at 1222 (comparing the factual circumstances between J.L. and the case

before it), it was insufficient. Since J.L., our circuit has articulated the nature of those

“specific indicia of reliability,” and the district court should have evaluated the presence

(or lack thereof) of those indicia in its analysis. See, e.g., Chavez, 660 F.3d at 1222;

Copening, 506 F.3d at 1247; United States v. Brown, 496 F.3d 1070 (10th Cir. 2007);

Madrid, 713 F.3d at 1258. United States v. Johnson is illustrative: There, when considering

the reliability of an anonymous tip, we were “mindful of the concerns expressed in J.L.,”

but ultimately evaluated those concerns alongside the specific facts of Johnson’s case. See

364 F.3d at 1191.

As we review the facts of this case under the proper analysis, the call is close. All

the indicia we traditionally consider appear to be present, but to varying degrees of

potency. The 911 call alone was certainly insufficient to establish reasonable suspicion—

indeed, the government itself does not contend that it was sufficient—and the call’s

reliability, even when placed alongside the other facts of this case, is not determinative.

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Nonetheless, even assuming its reliability, we afford the 911 call little weight. In

Navarette v. California, 572 U.S. 393 (2014), the Supreme Court observed that even a

reliable tip must create “reasonable suspicion that ‘criminal activity may be afoot.’” 572

U.S. at 401 (citing Terry, 392 U.S. at 30). As an example, it noted that “a reliable tip

alleging the dangerous behaviors [consistent with drunk driving] would justify a traffic

stop on suspicion of drunk driving.” Id. at 402. Here, we have assumed arguendo the 911

call’s reliability, but that inquiry is separate from its utility in establishing reasonable

suspicion. Id. The tip alleged no criminal activity or dangerous behaviors; the caller only

reported that guns were being intermittently taken in and out of pockets, and that the three

Black men “look like they are getting ready to do something.” Rec., vol. I at 57. This may

be odd, but it is not obviously illegal. Moreover, if we are to take seriously the normative

thrust of the Supreme Court’s recent decision in New York State Rifle & Pistol Association,

Inc., v. Bruen, 597 U.S. 1 (2022), then we cannot look with suspicion on citizens

presumably exercising their Second Amendment rights in a lawful way. 597 U.S. at 70

(“The constitutional right to bear arms in public for self-defense is not a ‘second-class right

. . . .”).

Granted, “reasonable suspicion may exist even where a 911 call fails to allege

criminal activity,” see United States v. Conner, 699 F.3d 1225, 1231 (10th Cir. 2012), but

the described activity here, i.e., three Black men looking like they were about to “do

something,” getting in and out of an SUV, is simply too generic. The men were not yelling

or hollering or running or disturbing anyone or, frankly, doing much of anything. Another

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caller reporting that she was nervous because three armed Black men were relaxing

alongside an SUV would have been just as descriptive and (un)helpful in establishing

reasonable suspicion.

The tip is even less useful in establishing reasonable suspicion for Daniels. Recall,

the 911 call could have only helped establish reasonable suspicion for the individuals or

things described. United States v. Fisher, 597 F.3d 1156, 1158–59 (10th Cir. 2010) (“The

particular person that is stopped must be suspected of criminal activity.”). The district court

found that it would have been “objectively unreasonable” for Officer Idler to believe that

Daniels was one of the men described, because he “so obviously did not match the

description of the individuals identified by the caller.” Rec., vol. I at 115. When asked

during testimony, Officer Snow, who accompanied Officer Idler to the scene, agreed that

Daniels “did not match the description . . . that the caller had given.” Rec., vol. IV at 76.

“Other than the fact that he was black, there was nothing about the Defendant to suggest

that he was one of the individuals described by the 911 caller.” Rec., vol. I at 115. We

agree. That criminal activity might be afoot does not give police carte blanche to arrest

everyone who happens to be nearby. See Fisher, 597 F.3d at 1158–59.

We consider the 911 call in our totality analysis, but we appropriately “discount” the

weight we afford it because of the call’s supergeneric, innocuous nature and because

Daniels himself was not described in it. Johnson, 364 F.3d at 1192.

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2. The Presence and Actions of the SUV

The district court next considered the weight that should be given to the presence

and actions of the dark SUV that was idling in the parking lot and that then drove away

(ostensibly at the direction of Daniels) as Officer Idler approached. We hold that the SUV

and its actions were insufficient alone to establish reasonable suspicion.

The government argued below and to us that Officer Idler had reasonable suspicion

to stop Daniels because of Daniels’ association with the SUV. We interpret this argument

as raising two important inquiries: (1) whether the SUV itself was reasonably suspicious

because of its presence and actions, and (2) the nature of Daniels’ association with the

SUV.

We address first whether the dark SUV itself was reasonably suspicious. The SUV

at issue was idling in front of Daniels’ apartment complex as Officer Idler approached. But

it was far from the only vehicle present. Officer Idler’s bodycam shows at least three other

cars idling in front of the complex; at least three cars leaving or driving through the lot; one

car parked in the no-parking loading zone; and no open parking spots to be seen. In other

words, the parking lot was packed and busy, especially given the late hour. In that context,

we do not find the dark SUV’s mere presence in the lot to be odd, much less suspicious.

We do not ignore that the 911 call reported that there was a “dark color SUV” in the

parking lot. And, indeed, so there was. But the tip’s support is ultimately superficial, and

its practical utility limited. The bodycam footage shows two “dark color” SUVs, one black,

the other burgundy, idling in the complex’s lot, one right behind the other. The SUV at

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issue in this case turned out to be the black SUV, but the caller gave no hint which one she

was referring to. The CAD notes are absent of any make, model, color, or license plate

number.1 It was a coin flip then, as equally likely to be wrong as right, by Officer Idler

when deciding which SUV’s presence in the lot was “suspicious.” In that sense, even

assuming the tip’s “reliabil[ity] in its assertion of illegality,”2 it was certainly not reliable

“in its tendency to identify a determinate person [or thing].” J.L., 529 U.S. at 272. We are

generally skeptical of anonymous or near-anonymous tips, and even more skeptical when

they are supergeneric, as here. See Johnson, 364 F.3d at 1191 (“Overly generic tips, even if

made in good faith, could give police excessive discretion to stop and search large numbers

of citizens.”). The situation faced by Officer Idler as he approached the complex and was

forced to proceed on an arbitrary hunch is a good illustration why.

Moreover, although reasonable suspicion does not demand witnessing illegal

conduct, Conner, 699 F.3d at 1231 (“Reasonable suspicion may exist even where . . . the

responding officers do not observe any illegal conduct.”), Officer Idler did not observe any

criminal activity or even the guns reported by the 911 tipster, weakening the claim that the

SUV was inherently suspicious.3 Indeed, our review of the record indicates that Officer

1 The CAD notes did provide slightly more description for a nearby sedan, which the caller described as either “sil[ver] or white.” Rec., vol. I at 58. 2 Which, we again emphasize, the tip did not allege. 3 The district court made a factual finding that “Further, there is no evidence here that the officers observed anything to suggest that the SUV or its occupants were carrying guns or otherwise engaged in illegal activity.” Rec., vol. I at 117. Our independent review of the record confirms this assessment. Morales, 961 F.3d at 1090.

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Idler did not witness any activity whatsoever by anyone in or near the SUV before the SUV

drove away. We are ever “mindful of the concerns expressed in J.L.,” Johnson, 364 F.3d at

1191, and we find the facts of this case uncomfortably reminiscent of the facts there. In

J.L., aside from an anonymous tip, the “officers had no reason to suspect” J.L. and his

friends of any illegal conduct, the officers “did not see a firearm,” J.L. and his friends made

no threatening or otherwise unusual movements, and when the officers approached, J.L.

was “just hanging out.” J.L., 529 U.S. at 268. Here, there was a near-anonymous tip that

did not allege illegal conduct, no illegal conduct or firearms were seen, neither the SUV

nor Daniels made any threatening or unusual movements, and the SUV appeared to be

innocuously idling as Officer Idler approached.

Of course, the SUV did drive away as Officer Idler approached (ostensibly at

Daniels’ direction in Officer Idler’s recount). This action by the SUV offers more, but

ultimately insufficient, support to establish reasonable suspicion. Certainly, we can and do

consider a suspect’s evasive movements in determining reasonable suspicion, see, e.g.,

United States v. Briggs, 720 F.3d 1281, 1286 (10th Cir. 2013), and “headlong flight” is far

from the only behavior that is fair game, see id. at 1287.4 The facts here make it difficult to

4 Our caselaw requires something more than just walking away when the police arrive. After all, “not all attempts to avoid police contact raise suspicion[].” Briggs, 720 F.3d at 1287. The government cites several cases, but none are persuasively analogous. In United States v. Briggs, the defendants “changed direction” and “picked up their pace”; Briggs “repeatedly looked over his shoulder” and “grabbed at the waistline of his pants”; and one defendant was “nearly running.” 720 F.3d at 1283,1287. In United States v. Ballance, we admitted that Ballance’s “walking away from [a] gas station on foot” supported reasonable suspicion, but there was a tip alleging illegality and identifying Ballance’s specific car. No.

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determine whether the SUV was attempting to evade the police as it drove away. The

district court did not think it was, finding that the “SUV here simply left the parking lot.”

Rec., vol. I at 117. The government does not allege that finding was clearly erroneous, and

upon our review of the record, we agree. See Morales, 961 F.3d at 1090. The bodycam

shows the SUV driving away at a normal rate of speed, a speed similar to that of a white

car that can be seen leaving as Officer Idler arrived. According to Officer Snow, who had a

better vantage point, the black SUV did not appear to drive away “at a high rate of speed”

or “jump a curb or anything like that,” and otherwise simply, and safely, departed. Rec.,

vol. IV at 74. Further, the burgundy SUV left during the encounter, and another vehicle

drove several yards away when Officer Idler approached. This confirms that the parking lot

was busy with activity. We cannot say that simply leaving the lot, as the bodycam footage

shows several other cars similarly doing, indicated that criminal activity was afoot. In

United States v. Davis, 94 F.3d 1465 (10th Cir. 1996), we found that a defendant’s “actions

in exiting [a] car, making and then breaking eye contact with the officers, and then walking

away from the officers” was not sufficient alone to establish reasonable suspicion. The

facts in this case offer even less support. 94 F.3d at 1468. The SUV driving away at a

normal rate of speed as Officer Idler approached is not enough to establish the

20-3141, 2022 WL 108330, at *6 (10th Cir. Jan. 12, 2022) (unpublished). United States v. Madrid stands for the proposition that the defendant’s “attempted exit from [a] parking lot just after a police car drove by” could be considered in the reasonable suspicion analysis, 713 F.3d at 1257, which the district court here did not dispute. United States v. Robinson is the only case cited that has held that a simple “about-face” could contribute, but it is unpublished and its analysis is conclusory. 304 F.App’x 746, 751 (10th Cir. 2008) (unpublished).

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“particularized and objective basis for suspecting” it of criminal activity. Cortez, 449 U.S.

at 417.

That leads to our second inquiry, Daniels’ association with the SUV. We interpret

the government as arguing that Daniels’ interaction with the SUV (ostensibly warning the

SUV to leave as Officer Idler approached) both contributed to the reasonable suspicion of

the SUV and linked Daniels to it. We are unpersuaded, because Daniels’ connection to the

SUV appears tenuous. The government alleges that the SUV left at the direction of

Daniels. But Officer Idler did not hear what Daniels may have said to the SUV’s

occupants. True, we do “accord deference to an officer’s ability to distinguish between

innocent and suspicious actions,” see Madrid, 713 F.3d at 1256, but we are not required to

take on blind faith an officer’s speculation on the contents of a conversation he admits he

could not hear.5 A fair inference for Officer Idler to have made was that there was some

relationship between the occupants of the SUV and Daniels. But the nature of that

relationship was unknown. This inference may have been sufficient if the SUV had done

something else to be reasonably suspicious, but the other facts do not substantially indicate

that Officer Idler had a “particular and objective basis” to suspect either Daniels (or the

5 Indeed, we are especially reticent to accord much deference to Officer Idler’s instincts given his contradictory narratives. In his summary of the stop, related the following day, Officer Idler reported a mundane, if ambiguous, scene: “I heard [Daniels] saying something when the Dark SUV pulled out of the parking lot and fled the scene.” Rec., vol. I at 28. However, at his testimony, Officer Idler’s story recast Daniels into the role of scout, warning the SUV to flee as he approached: “[T]he person in the orange jumpsuit with the black jacket on [Daniels] I heard say something to the people inside the black SUV, and then the black SUV took off.” Rec., vol. IV at 29.

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SUV) had been or was committing a crime. See id. That is, after all, our reasonable

suspicion lodestar: whether the facts tended to show that Daniels committed or was about

to commit a crime. See Johnson, 364 F.3d at 1189. His proximity to an innocuous SUV and

an unknown conversation with its occupants who then simply left when Officer Idler

approached do not tend to show that.

All of this can and must be considered in our final totality of the circumstances

analysis, but we agree with the district court that neither the SUV’s nor Daniels’ presence

or actions are sufficient alone to establish reasonable suspicion.

3. The Time and Location

The district court finally considered the location and time of Officer Idler’s

encounter with Daniels. It observed that the stop occurred in a “high crime area” of Aurora,

Colorado “in the middle of the night,” and concluded that those facts, although insufficient

alone, could be considered in the totality of the circumstances analysis. We agree.6

Of course, these factors do not operate as a “check-the-box” exercise or foreclose

analysis of “relevant contextual considerations.” Wardlow, 528 U.S. at 124. Here, Officer

Idler detained Daniels near midnight. But the evening in question was February 7, 2021,

6 Caselaw has extensively established that such facts can be considered. See, e.g., Illinois v. Wardlow, 528 U.S. 119, 124 (2000); McHugh, 639 F.3d at 1257; United States v. DeJear, 552 F.3d 1196, 1201 (10th Cir. 2009) (noting that “the fact that conduct occurs in an area known for criminal activity” should be considered when determining reasonable suspicion); United States v. Clarkson, 551 F.3d 1196, 1202 (10th Cir. 2009) (“This court has also considered the time of night as a factor in determining the existence of reasonable suspicion.”); Gallegos v. City of Colo. Springs, 114 F.3d 1024, 1029 (10th Cir. 1997) (considering the time of night, 1:15 AM, in the reasonable suspicion analysis).

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the night of the Super Bowl LV. An officer should have expected football fans celebrating

(or commiserating about) the game’s outcome late into the night. The time of day Officer

Idler encountered Daniels is militated by the events of that day. Moreover, the district court

found the parking lot was “well-lit,” “densely populated,” and “heavily trafficked,” and we

agree. Rec., vol. I at 119. This further militates against finding reasonable suspicion,

because any actions taken by the SUV’s occupants (or Daniels) would be easily seen and

quickly reported, which Officer Idler would have known.

That the neighborhood was a “high-crime area” with police often getting calls for

“domestic violence or people with weapons or other such various felonies or intense

crimes,” Rec., vol. IV at 20–21, did offer some objective and particularized reason for

suspicion. But caselaw has been skeptical that such a factor can carry the day. See, e.g.,

United States v. Dennison, 410 F.3d 1203, 1208 (10th Cir. 2005) (“[Defendant]’s presence

in a high-crime area is not, ‘standing alone,’ enough to provide reasonable suspicion, but it

may be a ‘relevant contextual consideration’ in a Terry analysis.”).

Both the time and location factors are relevant, and so we consider them in our

totality of the circumstances analysis below. But neither one was sufficient by itself to

establish reasonable suspicion.

4. Totality of the Circumstances

Having concluded that none of those factors alone establish reasonable suspicion,

our task is now to consider the “totality of the circumstances—the whole picture,” faced by

Officer Idler as he approached and detained Daniels. Cortez, 449 U.S. at 417–18.

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Our review of the records shows the following circumstances were known to Officer

Idler as he approached and detained Daniels on that fateful February 7th night: (1) the

police received an arguably reliable tip describing three Black men in dark clothing,

holding guns, and getting in and out of a dark SUV; (2) the tipster believed the men were

about to “do something” but reported no illegality; (3) based on the call, Officers Snow and

Idler were dispatched on a “non-emergency area watch request”; (4) the officers did not see

any of the men identified by the caller, but possibly identified the “dark color SUV”

reported as a black SUV idling in front of the complex; (5) the officers did not see any

guns or illegal activity when they arrived; (6) Officer Idler saw Daniels who was wearing a

bright orange jumpsuit, orange jeans, and a black jacket; (7) Daniels was standing five to

ten feet away from the black SUV; (8) Officer Idler thought he heard Daniels say

something to the SUV, after which the SUV left the lot at a “normal rate of speed”; (9)

Daniels did not have any guns, did not attempt to leave the scene, and initially complied

with all of Officer Idler’s orders; (10) the encounter took place near midnight; (11) the stop

was in a high-crime area; and (12) the parking lot was busy, packed, and well-lit. Like the

district court, we are not persuaded that these circumstances provided Officer Idler with

reasonable suspicion to detain Daniels.

We again emphasize the principle that anchors our analysis: Officer Idler had to

have a “particularized and objective basis” to believe Daniels had been or was committing,

or was about to commit a crime or engage in criminal activity. Cortez, 449 U.S. at 417–18.

That minimal objective basis was not met here. The supergeneric and vague 911 tip did not

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allege illegal, or even particularly unusual, activity by the men the caller identified, and

nowhere at all did it describe anyone akin to Daniels. As Officer Idler arrived, he was

confronted by an unremarkable, frankly banal, scene: a packed and busy apartment parking

lot with several cars leaving, idling in, and driving through it. It was perhaps a bit more

puzzling given the late time of night, but that could have been plausibly explained by the

trouncing the Buccaneers had shown the Chiefs only a few hours prior.7 As the caller had

described, there was a “dark colored SUV” outside, two in fact, but no hint as to which one

the caller had been referring. Despite the area’s reputation as a “high-crime area,” the

bodycam footage shows nothing was amiss, much less dangerous, as Officer Idler

approached the scene. Officer Idler admitted that he did not see any weapons when he

arrived. As he approached, he heard Daniels say something (ostensibly to the SUV) and

saw the black SUV, which had been idling, leave at a normal, lawful speed. Neither before

nor after being stopped did Daniels make any threatening or evasive movements, and he

complied with all Officer Idler’s orders. Daniels had no firearms on him, and he was

dressed in a bright, eye-catching orange jumpsuit—which seems to be a somewhat

counterintuitive fashion choice for someone committing, or about to commit, a crime and

hoping to get away with it.

The most glaring thing about these circumstances viewed together is what there is

not: any hint of any kind of illegality whatsoever. True, “[c]onduct that may be wholly

7 For those keeping score, the Buccaneers ended the night with a final victory of 31–9 over the Chiefs.

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innocent may nonetheless support a finding of reasonable suspicion in certain

circumstances,” but here we have trouble identifying anything but innocent conduct.

Johnson, 364 F.3d at 1192. Even analyzing everything together, we are not persuaded the

circumstances known to Officer Idler “tend to show that [Daniels had] committed or [was]

about to commit a crime,” as reasonable suspicion demands. Id. at 1189. There are precious

few facts to suggest that criminal activity was “afoot”—and fewer still that Daniels had any

role in it, if it was. Whatever is needed to establish reasonable suspicion, this case falls

short of that minimal particularized and objective basis we have always required. Because

there was no reasonable suspicion to stop Daniels, Officer Idler’s investigatory detention of

him was unreasonable under the Fourth Amendment, and the district court’s order to

suppress was proper.

Before concluding, we address two of the government’s arguments that the district

court’s process when conducting its totality of the circumstances analysis was improper.

First, the government appears to suggest that the district court should not have been

allowed to consider and weigh the innocent and unsuspicious facts in the record when

determining whether Officer Idler had reasonable suspicion. See Aplt. Br. at 27; Aplt.

Reply at 11. To the extent that is their argument, it is certainly wrong. The district court

was not only empowered, but required, to evaluate all the factors in the record when

analyzing reasonable suspicion, including facts militating against reasonable suspicion. See

Johnson, 364 F.3d at 1193 (“All of the[] factors, mitigating and aggravating, should have

19 Appellate Case: 22-1378 Document: 010111045898 Date Filed: 05/08/2024 Page: 20

been analyzed as part of the totality of the circumstances faced by Officer Middleton at the

inception of the detention.”).

Second, the government contends that the district court analyzed each factor (the

911 call, the SUV, the time and location) in isolation, rather than weighing them together.

To illustrate the kind of analysis we have found impermissible, it points us to Johnson.

There, too, the district court granted a motion to suppress based on four factors. See id. at

1189–90. The court conducted its totality analysis by “proceed[ing] through the factors . . .

evaluat[ing] and reject]ing] each before moving on to the next.” Id. at 1190. The court

mentioned the “appropriate ‘totality of the circumstances’ standard only once, in passing,

and only after having analyzed each factor . . . in isolation.” Id. This, we found, was

improper. Id. at 1189.

Here, the district court avoided the improper process in Johnson. It analyzed each

factor individually, but it was clear that it would consider all the facts in its totality

analysis: “This Court will analyze each fact, and it will then consider all the facts together

to determine whether the totality of the circumstances supports a finding of reasonable

suspicion sufficient to support the Defendant’s detention.” Rec., vol. I at 111 (emphasis

added). The court did not say that it would consider “all the facts that support reasonable

suspicion”; it said “all the facts”—even those it found would not support reasonable

suspicion alone. It lived up to its promise. It dedicated an entire section to its totality

analysis, separate from the factors, as we have here. In that analysis, the court included

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discussion of the 911 call and the SUV along with all the other facts, despite finding the

former two insufficient to support reasonable suspicion alone.

The court engaged in the exact process we have approved. It analyzed the relevant

factors to determine whether, standing alone, they supported reasonable suspicion;

discounted those factors that were weak based on the record; and finally considered all the

factors together to analyze as required. That the government was unhappy with the result is

not enough to transform its substantive distaste into procedural error.

Conclusion

Because the circumstances confronting Officer Idler did not amount to reasonable

suspicion, his detention of Daniels was unreasonable under the Fourth Amendment. As

such, the district court properly granted Daniels’ motion to suppress. We affirm.

21 Appellate Case: 22-1378 Document: 010111045898 Date Filed: 05/08/2024 Page: 22

22-1378, United States v. Daniels EID, J., concurring in the judgment.

I generally agree with the majority’s opinion, but write separately to express my

view regarding the degree of suspicion to be assigned to the 911 call. The majority

thinks that the 911 caller described nothing but innocuous conduct. Maj. Op. at 10

(reasoning that the caller described three men armed with guns who only acted

“innocuous[ly]”). I disagree. At the same time, however, I agree with the majority that

any reasonable suspicion from the call did not attach to Daniels for a simple reason: He

did not match the caller’s description of the men engaged in suspicious activity.

To begin, unlike the majority, I would find that the 911 caller described three men

acting suspiciously. Late at night, at about 11:35 PM, someone called the police

reporting that three Black men in dark clothing visibly held “guns in their hands” and

“intermittently t[ook] out [the] guns and then put[] them back into their pockets.” App’x

Vol. I at 107, 112. The caller stated that the men appeared as if “they [we]re getting

ready to do something.” Id. at 112. And the caller went on to say that these three men

repeatedly got “in and out” of a “dark color SUV.” Id. at 107.

If a police officer were to observe that situation, I would think that the three men’s

“unusual conduct” would lead the officer “reasonably to conclude in light of his

experience that criminal activity may be afoot and that the persons with whom he is

dealing [are] armed and presently dangerous.” Terry v. Ohio, 392 U.S. 1, 30 (1968).

The majority thinks differently. First, as part of its reasoning, the majority states

that the 911 call did not establish reasonable suspicion because the officers took the call Appellate Case: 22-1378 Document: 010111045898 Date Filed: 05/08/2024 Page: 23

as a “non-emergency area watch request.” Maj. Op. at 17. It is true that the 911 caller

also stated that the situation described was “currently not an emerg[ency].” App’x Vol. I

at 112. But surely reasonable suspicion may arise outside of an emergency. What makes

that clear is that an officer may confirm or dispel suspicion of a crime before it occurs.

See, e.g., Terry, 392 U.S. at 30 (involving officers who suspected that two men appeared

to be “casing a job” by walking in front of and peering into a store several times).

Indeed, crime can still be afoot without an emergency, such as while suspects prepare for

a crime, whether it be casing a store for a future robbery or putting guns and equipment in

a car like the 911 caller described. Compare id., with App’x Vol. I at 107, 112

(describing men in dark clothing getting in and out of an SUV while armed with guns in-

hand and appearing as if “they [we]re getting ready to do something” close to midnight).

As the primary reason for finding no suspicious activity from the call, the majority

places great weight on an assumption that the call “alleged no criminal activity or

dangerous behaviors.” Maj. Op. at 8 (“[T]he caller only reported that guns were being

intermittently taken in and out of pockets, and that the three men ‘look like they are

getting ready to do something.’” (citation omitted)). In reaching its holding, the majority

relies on the “normative thrust of the Supreme Court’s recent decision in” New York State

Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), to reason that the three men

here were “presumably exercising their Second Amendment rights in a lawful way.”

Maj. Op. at 8 (emphasis added).

The problem with the majority’s reasoning is that we do not know for certain,

under the relevant law or the record, whether the open carry of firearms here was

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“lawful” or not. Id. Colorado leaves the regulation over the open carry of firearms to its

local and municipal authorities. See Colo. Rev. Stat. Ann. § 29-11.7-104. Looking to the

relevant locality here, the City of Aurora leaves the lawfulness of open carried firearms

up to public and private property owners.1 With that in mind, the law here does not

necessarily clarify whether the three men described in the 911 call could carry openly

because we do not know if the apartment parking lot had any restrictions on open carry of

a firearm. And the record does not help us out either in that regard.

This is not a case where we know that individuals merely “exercise[ed] their

Second Amendment rights in a lawful way.” Contra Maj. Op. at 8. Or at least, nothing

from the law or record indicates that is the case. Even so, based on nothing more than

speculation, the majority holds that the men “presumably” open carried guns lawfully.

Id. (emphasis added).

I would not presume so. I acknowledge that the Supreme Court has said that

“bare-boned tips about guns” do not create “an automatic firearm exception” to the

Fourth Amendment. Florida v. J.L., 529 U.S. 266, 273 (2000). But the caller here did

not just report that the men had guns. There was more: Again, three men dressed in dark

clothing, actively moved in and out of cars in a parking lot close to midnight, were

1 See Aurora Stat. art. IV, div. 2, § 94-152(a) (providing that “[i]t shall be unlawful for any person, carrying a firearm, to enter or remain upon any private property of another or any building or property of a commercial establishment when such property, building, or establishment is posted with notification that the carrying of firearms is prohibited”); id. § 94-154(a) (providing that “[t]he carrying of firearms in or upon public facilities is unlawful when said facilities are posted with notification that the carrying of firearms is prohibited”). 3 Appellate Case: 22-1378 Document: 010111045898 Date Filed: 05/08/2024 Page: 25

visibly armed with weapons, and appeared as if “they [we]re getting ready to do

something.” App’x Vol. I at 107, 112. That I would find amounts to a tip “that criminal

activity may be afoot.” Terry, 392 U.S. at 30.

In any case, however, the suspicious activity described on the call does not end

this matter. The officers here did not view the situation described on the 911 call with

their own eyes. Instead, the officers received a tip that needed to be corroborated.

Importantly, “[a] police officer cannot legally detain a person simply because criminal

activity is afoot.” United States v. Fisher, 597 F.3d 1156, 1158 (10th Cir. 2010). Instead,

an officer must “suspect[]” that “the particular person stopped” has committed or was

committing “criminal activity.” Id. at 1158–59.

With that in mind, something needed to connect Daniels as one of the men

described in the 911 call. Nothing did. Critically, the government concedes that “Officer

Idler didn’t notice anyone in the area matching the clothing descriptions provided by the

911 caller.” Aplt. Br. at 3. And indeed, the record reflects that no officer could

reasonably expect Daniels to be one of the men in dark clothing described on the call.

Daniels was not wearing a black hoodie. He instead wore a bright orange jumpsuit with a

reflective strip across the front. The 911 call also mentioned that the three men went in

and out of a dark colored SUV. Daniels did no such thing. Instead, he stood

“approximately five to ten feet away” from an SUV, “outside his own home.” App’x

Vol. I at 107, 121. And lastly, the 911 caller described that the men visibly held “guns in

their hands and pockets.” Id. at 112. Yet again, Daniels did no such thing. At no time

4 Appellate Case: 22-1378 Document: 010111045898 Date Filed: 05/08/2024 Page: 26

did Officer Idler see Daniels with a firearm in hand or on his person, even after the

seizure.

As such, I agree with the majority that Daniels did not match the caller’s description. See

Maj. Op. at 9–10.

In sum, unlike the majority, I believe that the 911 call reported suspicious activity.

That disagreement aside, I agree with the majority that Daniels did not match the caller’s

description of the three men acting suspiciously. Any suspicion stemming from the call

was dispelled when Officer Idler found no one on the scene that matched the caller’s

description. For these reasons, I concur in the judgment.