FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 23, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-1044 (D.C. No. 1:19-CR-00144-CMA-1) ANDREW RAPHAEL REESE, (D. Colo.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, McHUGH, and CARSON, Circuit Judges. _________________________________
In March 2019, Denver police officers witnessed a drug deal in which
Appellant Andrew Raphael Reese appeared to participate. The officers soon stopped
Reese on the street, handcuffed him, patted him down, and discovered a firearm in
his waistband. A federal grand jury later indicted him for being a felon in possession
of a firearm. See 18 U.S.C. § 922(g)(1). The district court denied his motion to
suppress the firearm and he pleaded guilty while reserving his right to appeal the
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. suppression question. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I. BACKGROUND
A. The Motion & Hearing
Reese’s motion to suppress argued that the police arrested him without
probable cause and therefore had no right to search him. The government responded
that the police had probable cause to arrest Reese for narcotics trafficking, and
therefore lawfully searched him incident to that arrest; or, alternatively, the officers
reasonably suspected narcotics trafficking and also that Reese was armed, so they
lawfully detained him and patted him down, as permitted by Terry v. Ohio, 392 U.S.
1, 21–22, 27 (1968).
The district court held an evidentiary hearing. The key witness was Denver
police sergeant Anthony Foster, who ordered other officers to detain Reese. See
United States v. Hensley, 469 U.S. 221, 229–33 (1985) (holding that police officers
may make a Terry stop based on reasonable suspicion developed by other officers);
Karr v. Smith, 774 F.2d 1029, 1031 (10th Cir. 1985) (holding that police officers may
make an arrest based on probable cause developed by other officers). At the
suppression hearing, Foster testified substantially as follows.
As of 2019, Sgt. Foster had been investigating narcotics crimes in Denver
Police District 6 (downtown Denver) for nineteen years, and had supervised the
District 6 narcotics team for thirteen years. On the day in question (March 19),
Foster was leading a daylight operation intended to disrupt an “illegal, open-air drug
market” centered around the 500 block of East Colfax Avenue in downtown Denver.
2 R. vol. III at 64, 72. Foster remained at the police station, surveilling the area with
High Activity Location Observation (HALO) cameras. At least two narcotics
detectives were on-site, apparently in plain clothes. Foster and his team also had a
confidential informant on-site. His job was to buy narcotics from anyone willing to
sell.
A little before 1:00 PM, Foster and his team began focusing on a man they
recognized as Reese. Foster remembered Reese from “four to five” previous times he
had dispatched detectives to investigate him based on “drug-related and some
weapon-related” accusations. Id. at 65. The most recent had been a felon-in-
possession investigation three months earlier, although Foster never heard what that
investigation (or the others) discovered.
Foster began tracking Reese through a HALO camera.1 Foster saw that Reese
was walking westbound along Colfax Avenue with a woman wearing a checkered
hoodie. At the suppression hearing, Reese’s lawyer referred to this woman as
“Ms. Emery.” See id. at 93.
Reese and Emery stopped in front of a McDonald’s restaurant on the corner of
Colfax and Pennsylvania Street. Reese then appeared to reach inside a pouch on the
front of Emery’s hoodie. To Foster, it “[l]ook[ed] like he grabbed something out of
1 The relevant surveillance video is Exhibit 1 of the supplemental record, but Exhibit 1 actually comprises two videos, named “1” and “2.” Everything relevant to this court’s analysis appears on video 2, so all citations to Exhibit 1 refer to video 2. Exhibit 1 is sealed because it shows the confidential informant.
3 [the pouch] and put something back.” Id. at 68. Foster radioed to his team, “Reese is
stopped with the female doing something there, by the McDonald’s.” Supp. R., Ex. 2
at 15:11–15:15.2
Immediately after the apparent hand-in-pouch event, Reese began walking
westbound again. Emery held back for a few seconds and then also resumed walking
westbound. By this time, the confidential informant was nearby, a little ahead of
them both. Foster watched as Reese walked around the informant—not visibly
interacting with him—and then around the corner of the McDonald’s to the
Pennsylvania Street side. Emery, by contrast, stopped and talked to the informant,
then followed Reese around the corner of the McDonald’s. The informant followed
Emery.
Emery stopped next to Reese. The informant walked a few steps further and
stopped. Two other women—not named in the record—soon walked around the
McDonald’s corner and stopped close to Emery and Reese.
Not long after the other women arrived, Emery made a motion that looked to
Foster like she had tossed something on the ground in between herself and the
informant. The informant immediately stooped down and appeared to pick up
something from the same spot. Foster then saw the informant drop something on the
ground between himself and Emery and begin walking away. The entire time, Reese
2 Exhibit 2 is an audio recording. Exhibit 2 pincites refer to elapsed time from the beginning of the recording as displayed in Windows Media Player.
4 had his back to Emery and the informant.
At this point, the image on Foster’s screen froze—apparently a HALO camera
malfunction. Foster called out on the radio, “Did something happen with the female
in the checkered—somebody?” Id. at 17:52–17:56. One of the on-site detectives
responded, “She just picked up—looks like [she] picked some money up off the
ground—the female—checkered—jacket. And our person [the informant] is
rounding the corner [of the McDonald’s], heading back eastbound.” Id. at 18:09–
18:20.
By then the HALO video resumed and Foster could see the informant walking
away. Foster also noticed that Emery stood very close to Reese for a few seconds.3
They and the other two women remained standing relatively close to each other, next
to the McDonald’s, for another four minutes.
During those same four minutes, Foster was waiting for an on-site detective to
contact the informant and confirm that he had just bought narcotics. Foster radioed
to his “arrest team”—uniformed officers waiting nearby in marked police vehicles—
that if the informant confirmed a drug buy, they should “freeze” both Reese and
Emery. Id. at 20:16–20:30. Foster included Reese because of the apparent hand-in-
pouch exchange with Emery in front of the McDonald’s, combined with Emery’s
3 The video here actually shows Reese reaching a hand behind his back, Emery putting something in that hand, and Reese then apparently putting that hand in his pocket. Supp. R., Ex. 1 at timestamp 12:55:24–12:55:28. But Foster testified at the suppression hearing that, in the moment, he had not noticed that exchange. See R. vol. III at 108–09.
5 interaction with the informant shortly afterward. This appeared consistent with a
drug-dealing strategy Foster had frequently seen, namely, dealers using women and
children as go-betweens.
Eventually a detective radioed confirmation of the drug buy and Foster
immediately ordered his arrest team to “roll in” and “detain” Reese and Emery. Id. at
22:18–22:30. Two police vehicles soon entered the frame and two officers emerged
from each. They did not have their guns drawn. Two of the officers—Summer Day
and Rosa Gonzalez—quickly handcuffed Reese without resistance. Almost as
quickly, they walked him to the hood of their car, patted him down, and pulled a
firearm from his waistband.
B. The District Court’s Order
The district court issued a written order following the suppression hearing.
United States v. Reese, No. 19-CR-00144, 2019 WL 4412700 (D. Colo. Sept. 16,
2019). In a preliminary footnote, the court stated that “the evidence in the record
strongly supports the conclusion that law enforcement executed a valid investigatory,
or ‘Terry,’ stop.” Id. at *1 n.1. But the court instead chose to focus on probable
cause for an arrest. “Most notably,” in the district court’s view,
[the officers] observed Defendant slip his female associate an object immediately before the female engaged in a drug transaction with the [confidential informant]. The police then observed Defendant’s associate stand in close proximity to Defendant after exchanging drugs for money. The probability that the interaction between Defendant and his associate was criminal in nature is bolstered by law enforcement’s familiarity with Defendant’s past drug- related activity and Defendant’s apparent use of a common
6 drug trafficking strategy. Therefore, based on the totality of the circumstances, probable cause existed for the police to arrest Defendant.
Id. at *3 (footnotes omitted). The court accordingly denied Reese’s motion to
suppress, leading to Reese’s conditional guilty plea, sentence (48 months’
imprisonment), and this appeal.
II. ANALYSIS
When a district court denies a motion to suppress, we review its findings of
historical fact for clear error, giving “due weight to inferences drawn from those facts
by resident judges and local law enforcement officers.” Ornelas v. United States,
517 U.S. 690, 699 (1996). We likewise review credibility findings for clear error,
see United States v. Harris, 313 F.3d 1228, 1233 (10th Cir. 2002), and we “view the
evidence in the light most favorable to the government,” United States v. Katoa,
379 F.3d 1203, 1205 (10th Cir. 2004). But we review the existence of reasonable
suspicion or probable cause de novo. See Ornelas, 517 U.S. at 699.
Further, “we may affirm on any basis supported by the record.” Richison v.
Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011). Thus, we may uphold the
district court’s suppression order if (i) probable cause existed to arrest, thus justifying
a search incident to arrest; or (ii) reasonable suspicion existed to detain Reese and to
pat him down for weapons, i.e., to perform a Terry stop.
On the audio recording created during the sting operation, Sergeant Foster
orders his officers to “detain[]” Reese. Supp. R., Ex. 2 at 22:19–22:30. During
cross-examination at the suppression hearing, Foster confirmed that he requested his
7 officers to detain Reese, as distinct from arresting him, to determine his involvement
in the transaction with the informant. See R. vol. III at 103. We therefore focus on
the Terry question.
A. Reasonable Suspicion to Detain Reese
“[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.” Terry, 392 U.S. at 22.
“[T]he police officer must be able to point to specific and articulable facts which,
taken together with rational inferences from those facts, reasonably warrant that
intrusion.” Id. at 21. This has become known as “reasonable suspicion.” Almeida-
Sanchez v. United States, 413 U.S. 266, 268 (1973) (internal quotation marks
omitted).
Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.
Alabama v. White, 496 U.S. 325, 330 (1990).
In Reese’s view, the district court clearly erred when it found that he
“slip[ped] his female associate [Emery] an object immediately before [she] engaged
in a drug transaction.” Reese, 2019 WL 4412700, at *3. And without that, he says,
none of the court’s other findings (the high-crime nature of the area, Reese’s criminal
record, etc.) amount to actionable knowledge.
8 The district court did not clearly err. We have reviewed the video and it is
open to interpretation, but it is consistent with what Sgt. Foster believed he saw:
“Looks like [Reese] grabbed something out of [Emery’s pouch] and put something
back.” R. vol. III at 68; cf. Supp. R., Ex. 1 at timestamp 12:52:25–12:52:31 (sealed).
Reese counters, however, that Foster did not relay as much over the radio to
his detectives; he instead reported that “Reese is stopped with the female doing
something there, by the McDonald’s.” Supp. R., Ex. 2 at 15:11–15:15. Although he
does not say so explicitly, Reese appears to be attacking Foster’s credibility.
The district court did not state any credibility findings. At the hearing,
however, Foster confirmed that he saw the hand-in-pouch event on the HALO video
as it happened—or in other words, it was not something he noticed only while re-
watching the video. See R. vol. III at 89–90. The district court found that “Sergeant
Foster witnessed Defendant covertly slip his female associate an object immediately
before [she] executed the drug transaction with the [informant].” Reese, 2019 WL
4412700, at *2. Also, the district court found it was “not reasonable to assume that
the police only saw what they narrated during the investigation.” Id. at *3 n.2.
Necessarily, then, the district court found Foster credible on this point.
This finding is not clearly erroneous. Foster was forthright in identifying what
he did and did not see in the moment.4 In these circumstances, we also see nothing
suspect about Foster telling his detectives that Reese and Emery were “doing
4 See supra note 3.
9 something,” rather than giving a more detailed description.
Given the totality of what Foster knew before he ordered the arrest team to
move in, his decision to detain Reese resembles the facts of Terry itself. The
detective there “observed [the suspects] go through a series of acts, each of them
perhaps innocent in itself, but which taken together warranted further investigation
[into whether defendants were planning to burglarize a store],” and “[i]t would have
been poor police work indeed for an officer of 30 years’ experience in the detection
of thievery from stores in this same neighborhood to have failed to investigate this
behavior further.” Terry, 392 U.S. at 22, 23. So too with Foster and his 19 years’
experience investigating narcotics offenses in downtown Denver. That experience
combined with the events he witnessed through the HALO camera, the radio reports
from on-site detectives, and his existing knowledge about Reese gave Foster
reasonable suspicion to detain him—or, as in this case, to order other officers to do
so.
B. Detention vs. Arrest
Reese argues that the officers who handcuffed him—Officers Day and
Gonzalez—did not merely detain him, but arrested him, and therefore needed
probable cause. We disagree.
Police officers conducting a Terry stop may “take such steps as [are]
reasonably necessary to protect their personal safety and to maintain the status quo
during the course of the stop.” Hensley, 469 U.S. at 235. “There is no bright-line
rule to determine whether the scope of police conduct was reasonably related to the
10 goals of the stop; rather our evaluation is guided by common sense and ordinary
human experience.” United States v. Melendez-Garcia, 28 F.3d 1046, 1052
(10th Cir. 1994) (internal quotation marks omitted). Thus, “use of firearms,
handcuffs, and other forceful techniques does not necessarily transform a Terry
detention into a full custodial arrest.” Id. But these techniques represent “a far
greater level of intrusion,” so the government must “demonstrate that the facts
available to the officer would warrant a [person] of reasonable caution in the belief
that the action taken was appropriate.” Id. (internal quotation marks omitted).
Officers Day and Gonzalez had been listening to the radio chatter between
Foster and his detectives, and therefore knew that Reese appeared to have been
involved in a drug deal minutes earlier. “[A] connection with drug transactions can
support a reasonable suspicion that a suspect is armed and dangerous.” United States
v. Garcia, 459 F.3d 1059, 1064 (10th Cir. 2006).
But Day and Gonzales knew more about Reese than his suspected connection
with the drug transaction. At the suppression hearing, Day testified that when she
heard one of the detectives identify Reese by name, she remembered hearing other
officers say that “a few weeks to [a] month prior . . . he had been contacted with a
firearm.” R. vol. III at 113–14. She also queried Reese’s name in a Denver police
database and saw that he had been identified as “an armed, violent gang member.”
Id. at 114. Gonzalez further testified that she believed handcuffs were appropriate
because she and Day are “both female officers, and he was big.” Id. at 130. Finally,
less than a minute elapsed between the moment Day and Gonzalez first laid hands on
11 Reese in the moment they (specifically, Gonzalez) pulled a gun from his waistband.
See Supp. R., Ex. 3 at timestamp 19:00:15–19:01:08.5 Cf. United States v. Albert,
579 F.3d 1188, 1191, 1193–95 (10th Cir. 2009) (holding that a suspect had been
lawfully detained, not arrested, although handcuffed for close to twenty minutes
before officers discovered a weapon and the suspect admitted possession).
Given these circumstances, we hold that Officers Day and Gonzalez
reasonably concluded handcuffs were appropriate. We therefore reject Reese’s
argument that use of cuffs transformed the Terry stop into an arrest.
C. Reasonable Suspicion to Frisk for Weapons
If a police officer reasonably detains someone for investigatory purposes, the
officer may also pat down that person’s outer clothing in a search for weapons if the
officer “has reason to believe that he [or she] is dealing with an armed and dangerous
individual.” Terry, 392 U.S. at 27. For the same reasons Day and Gonzalez
justifiably handcuffed Reese, they also reasonably believed him to be armed and
dangerous.
Reese points out, however, that the arrest team only patted down himself and
Emery, not the other two women standing with them during the drug transaction.
“As such,” Reese says, “it is unreasonable to conclude that handcuffing and
searching Mr. Reese was justified by his suspect involvement in a drug transaction,
5 Exhibit 3 of the supplemental record is Officer Gonzalez’s bodycam footage of the event. The internal timestamps apparently show the time of day in Greenwich mean time.
12 when other people allegedly involved in the identical transaction were not subjected
to the same treatment.” Aplt. Reply Br. at 8. Reese ignores that the officers knew
more about him than just the suspected drug transaction—particularly his reputation
for carrying weapons.6
We hold that Officers Day and Gonzalez reasonably suspected Reese to be
armed and dangerous, and therefore lawfully patted him down for weapons.
III. CONCLUSION
We affirm the district court’s denial of the motion to suppress.
Entered for the Court
Carolyn B. McHugh Circuit Judge
6 At the suppression hearing, Reese pursued a line of cross-examination suggesting that Gonzalez knew less about Reese’s background than Day. On appeal, Reese does not argue that we must distinguish Gonzalez’s knowledge from Day’s, so we do not explore this possibility further. Similarly, Reese’s cross-examination suggested that the officers’ pat-down procedure was more intrusive than necessary, cf. Terry, 392 U.S. at 26 (holding that a pat-down “must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby”), but he does not argue as much to us.