United States v. Santio

351 F. App'x 324
Court of Appeals for the Tenth Circuit·Decided October 30, 2009·No. No. 08-4216·Published·Cited by 6 cases

Opinion

ORDER AND JUDGMENT*

WADE BRORBY, Circuit Judge.

Appellant Francisco Santio pled guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In pleading guilty, Mr. Santio reserved his right to challenge the district court’s ruling on his motion to suppress evidence. On appeal, he contends the district court erred in denying his motion to suppress because law enforcement officers lacked a reasonable and articulable suspicion he engaged in a criminal activity for the purpose of stopping him. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I. Factual and Procedural Background The following facts, provided as evidence at the suppression hearing and otherwise supported by the record, surround Mr. Santio’s detention and arrest. At about 3:30 a.m. on May 16, 2007, a South Jordan City, Utah detective, Bret Miller, requested assistance from Jared Nichols, another South Jordan City detective, and Richard Simonelli, a United States deputy marshal, concerning an unoccupied stolen vehicle. Specifically, Detective Miller asked them to stake out the stolen vehicle in case anyone came for it. According to Detective Nichols, he knew the area where the stolen vehicle was parked because it involved a crime area, he had “been there on some stolen vehicles in the past,” and he had been there on different gang unit calls. Detective Nichols and Deputy Simonelli, who are both members of the Salt Lake City Metro Gang Unit, drove separate unmarked police cars and parked on the same street as the stolen vehicle, “blend[ing] in with the rest of the cars on the street.” Detective Nichols parked on the north side of the street, facing west, two houses east of and on the same side of the street as the stolen car; while Deputy Simonelli parked facing east, across the street from the stolen vehicle.

After twenty minutes without any foot traffic, Mr. Santio and a woman walked past Deputy Simonelli’s unmarked car, heading eastbound on the south side of the street, across from the stolen vehicle. Detective Nichols explained that as Mr. San-tio walked down the street in the direction of the stolen vehicle, he “kept looking really fidgety, kept looking around, just very suspicious” and “nervous.” Similarly, Deputy Simonelli described Mr. Santio as “looking back over his shoulder,” “looking around,” and “looking behind him, like he was looking for someone to come up behind him” or to “see if anybody was watching them.” Mr. Santio continued to walk in the direction of the stolen car, and when he was directly across from it, he stopped and looked toward the area of the vehicle. Mr. Santio then sat down on the curb directly across from the vehicle for a minute or two, and, according to Detective Nichols, was then “really looking the area over,” “looking everywhere,” and “looking around like he was looking for someone or looking out over the area.” Detective Nichols found it “very suspicious that [Mr. Santio] was sitting directly across the street from the car” and “felt he had some connection towards the car.” It is not clear whether Mr. Santio noticed the officers’ presence.

[326] Mr. Santio then walked away, at which time Detective Nichols noticed he was wearing a long white belt which hung down to his knees. Based on his training and experience, which included eight years in law enforcement and two and one-half years in the metro gang unit, he believed the white belt “possibly could be a part of a gang-type of a flag, a signal they send out.” Similarly, when Mr. Santio earlier walked past him, Deputy Simonelli noticed the white belt and, based on his three years of experience with the metro gang unit, also believed it indicated gang affiliation. He also noticed Mr. Santio was wearing blue jeans and a blue shirt and knew Sureño gang members typically wear all blue. Detective Nichols also noticed Mr. Santio wore baggy pants, which he stated “could conceal anything ... as far as guns, weapons, [or] knives.”

At that time, Detective Nichols attempted to stop Mr. Santio by pulling up behind him in his unmarked car and turning on his emergency lights. At first, Mr. Santio “just kept walking” without turning around, which “raised a flag” for Detective Nichols, but eventually Mr. Santio stopped. While explaining a stolen vehicle was the reason for the stop, Detective Nichols “noticed that [Mr. Santio] had a tattoo of a spiderweb right on his chin,” which he believed could mean Mr. Santio served prison time. Similarly, Deputy Si-monelli noticed the spiderweb tattoo, which he believed could indicate gang affiliation. Detective Nichols then asked Mr. Santio if he “kicked it with anybody” to ascertain whether he was a gang member; Mr. Santio responded his gang name was “Trouble” and “he kicked it with the Southside,” which verified to Detective Nichols that Mr. Santio was a gang member with either the Southside Sureños or Southside Norteños.

Based on his experience, Deputy Simo-nelli was on “alert” for his and Detective Nichols’s safety. Similarly, based on Mr. Santio’s physical characteristics and behavior, Detective Nichols asked Mr. Santio if he had any weapons, to which he replied “he had a couple of pair of scissors,” removed them from his pockets, and threw them on the grass. Detective Nichols then told Mr. Santio to stop reaching into his pockets and patted him down.

While patting Mr. Santio down, Detective Nichols found a gun magazine holding nine .40 caliber bullets in it. He then asked Mr. Santio if he was a convicted felon, to which he responded “yes.” At that time, Detective Nichols handcuffed Mr. Santio. Meanwhile, the woman accompanying Mr. Santio told Deputy Simo-nelli that Mr. Santio had a gun, which, with her help, the officers found hidden by a fence just a few feet away from where Mr. Santio stopped. Later, authorities determined Mr. Santio had nothing to do with the stolen vehicle.

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United States v. Santio, 351 F. App'x 324 (10th Cir. 2009).

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