                                                                                       FILED
                                                                           United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                               Tenth Circuit

                                    TENTH CIRCUIT                               January 30, 2012

                                                                               Elisabeth A. Shumaker
                                                                                   Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                              No. 11-5020
                                                                (N.D. Okla.)
ARTEMUS DEONTE MATTHEWS,                             (D.C. No. 4:10-CR-00148-CVE-1)

       Defendant - Appellant.




                               ORDER AND JUDGMENT*


Before O'BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and HOLMES,
Circuit Judge.


       Artemus Matthews entered a conditional guilty plea to being a felon in possession

of a firearm, reserving his right to appeal from the district court’s denial of his motion to

suppress evidence. He challenges the district court’s conclusion that the officers had a

legal basis to detain him while they checked his background for outstanding warrants.

We agree; his detention was not supported by reasonable suspicion. We reverse.



       *
         This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
                                    I.   BACKGROUND

       Around 8:00 p.m. on July 1, 2010, before dark, Tulsa police officers James

Bohanon and Brian Blair were conducting an investigation at a Tulsa Housing Authority

apartment complex in Tulsa, Oklahoma. The complex had been the site of recent gang-

related violence. The two officers were watching an apartment within the complex.

They were parked in an unmarked police car in a lot across the street. Their investigation

was unrelated to Matthews.

       At some point, Bohanon noticed two men, later identified as Matthews and John

Spencer, standing beside a car parked within the complex. The neighborhood was quiet

except for loud music emanating from the men’s parked car. Bohanon observed one of

the men “reach in [the car] and then kind of look around and then reach in again and look

around.” (R. Vol. II at 14.) Bohannon testified he “didn’t quite know what [Matthews]

was up to, so at that time [he] contacted Officer [Steven] Sanders.” (Id.) Bohannon “told

him there was [sic] some guys standing over here by a car that are kind of acting

suspicious and . . . asked him to check it out.” (Id.)1


       1
           On cross examination Bohanon was asked:

       Q.    What you observed were two individuals standing outside a car that was
playing music, is that right?

       A.      Yes, sir.

       Q.      Okay. And one of the individuals reached in the car?

       A.      Yes.


                                             -2-
       Sanders, plainly dressed as a Tulsa law enforcement officer, drove his undercover

car to the area where Matthews and Spencer were standing. As Sanders neared the men,

he saw one of them reach into the car to turn the music down. Sanders first identified

himself and then engaged them in casual conversation. Bohanon, approaching on foot

but still some twenty-five yards away, observed Sanders “just kind of talking . . . with

the guys. They were kind of chuckling and laughing and stuff.” (Id. at 16, 18.)

       The men told Sanders they were not residents of the complex but were there as

visitors. Sanders told them they were on Tulsa Housing Authority property and needed

to have identification.2 Both men produced valid Oklahoma identification. As Bohanon

and Blair walked toward the scene, Sanders took the identification documents and

returned to his police car to request a warrants check. Sanders discovered Matthews had

an outstanding arrest warrant; he returned and told Bohanon and Blair about the warrant.

The officers informed Matthews he was under arrest. As Bohanon began placing

handcuffs on him, Matthews told Bohanon he had a gun. A loaded .22 caliber

semiautomatic pistol was found in Matthews’ right front pants pocket. Matthews was


       Q.     A couple of times?

       A.     Yes, sir.

       Q.     And that was your suspicion that something was afoot?

       A.     Yes. Given the area and those circumstances, yes.

       (R. Vol. 2 at 24.)
       2
        Matthews does not contest that Tulsa Housing Authority has specific rules
allowing only residents and their guests to be on the property. In addition, all persons
must be able to show identification.

                                           -3-
transported to the police station for booking.

       An indictment charged Matthews with felon in possession of a firearm and

ammunition in violation of 18 U.S.C. § 922(g). Following the denial of his motion to

suppress the evidence, Matthews entered a conditional plea of guilty and was sentenced

to six months imprisonment.

                                    II.   DISCUSSION

       When reviewing the denial of a motion to suppress, “we view the evidence in the

light most favorable to the government, accept the district court's findings of fact unless

clearly erroneous, and review de novo the ultimate determination of reasonableness under

the Fourth Amendment.” United States v. Polly, 630 F.3d 991, 996 (10th Cir. 2011).

There are three categories of police-citizen encounters: “(1) consensual encounters which

do not implicate the Fourth Amendment; (2) investigative detentions which are Fourth

Amendment seizures of limited scope and duration and must be supported by a

reasonable suspicion of criminal activity; and (3) arrests, the most intrusive of Fourth

Amendment seizures and reasonable only if supported by probable cause.” United States

v. Lopez, 443 F.3d 1280, 1283 (10th Cir. 2006) (quotations omitted). “[I]t is settled that

the nature of the police-citizen encounter can change — what may begin as a consensual

encounter may change to an investigative detention if the police conduct changes and

vice versa.” Id. (quotations omitted).

       All agree that this incident began as a consensual encounter. See United States v.

Santillanes, 848 F.2d 1103, 1106 (10th Cir. 1988) (a consensual encounter is

“characterized by the voluntary cooperation of a citizen in response to non-coercive

                                            -4-
questioning”). And Matthews does not contend the officers lacked probable cause for his

arrest once the outstanding warrants were discovered. His motion to suppress was tightly

focused; his detention while Sanders took his identification to do a warrants check was

not supported by a reasonable, articulable suspicion3 that he may be engaged in criminal

activity.

A. Reasonable Suspicion

       An officer must have reasonable suspicion to detain a person for investigation.

See Terry v. Ohio, 392 U.S. 1, 20-21 (1968). “[T]he likelihood of criminal activity need

not rise to the level required for probable cause, and it falls considerably short of

satisfying a preponderance of the evidence standard.” United States v. Arvizu, 534 U.S.

266, 274 (2002). The detaining officer must “point to specific and articulable facts

which, taken together with rational inferences from those facts, reasonably warrant [the]

intrusion.” Terry, 392 U.S. at 21. “And in determining whether the officer acted

reasonably in such circumstances, due weight must be given, not to his inchoate and

unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he

is entitled to draw from the facts in light of his experience.” Id. at 27. We determine the

reasonableness of an investigative detention by applying a two-prong test: (i) whether the

officer’s action was justified at its inception; and (ii) whether it was reasonably related in

scope to the circumstances which justified the interference in the first place. Id. at 20.


       3
        The government seems to concede that reasonable suspicion was necessary to
temporarily retain Matthews’ identification (and thereby detain him) during the warrants
check. It does not argue otherwise.


                                             -5-
       Reasonableness is determined “in light of common sense and ordinary human

experience.” United States v. Mendez, 118 F. 3d 1426, 1431 (10th Cir. 1997) (citations

omitted). “This approach is intended to avoid unrealistic second-guessing of police

officers’ decisions and to accord appropriate deference to the ability of a trained law

enforcement officer to distinguish between innocent and suspicious actions.” United

States v. Gutierrez-Daniez, 131 F.3d 939, 942 (10th Cir. 1997) (quotations omitted).

“Law enforcement officers may perceive meaning in actions that appear innocuous to the

untrained observer.” Id. “This process allows officers to draw on their own experiences

and specialized training to make inferences from and deductions about the cumulative

information available to them that might well elude an untrained person.” Arvizu, 534

U.S. at 273. The totality of the circumstances must be considered and neither the officer

nor the court need “rule out the possibility of innocent conduct.” Id. at 277.

       Matthews argues the district court relied on only two facts in concluding that

reasonable suspicion existed at the inception of the investigative detention: (1) Matthews’

suspicious activity of reaching into the vehicle several times, and (2) the locus of the

events – in a “high-crime” area. He contends that once the suspicious activity was

investigated by Sanders and determined to be innocent (Matthews was merely reaching

into the car to adjust the music volume), reasonable suspicion could be supported only

because the event occurred in a “high-crime” area – a factor which, standing alone, does

not give rise to reasonable suspicion of criminal activity. See Illinois v. Wardlow, 528

U.S. 119, 124 (2000) (“An individual's presence in an area of expected criminal activity,

standing alone, is not enough to support a reasonable, particularized suspicion that the

                                            -6-
person is committing a crime.”).

       At the suppression hearing, Officer Sanders was asked: “Did you observe anything

suspicious as you walked up to [the two men]?” (R. Vol. II at 33.) Sanders responded:

“Anything suspicious for me? One of them reached into the vehicle as I got out of my

car. I ultimately figured out that was to turn the music down.” (Id.) His testimony did

nothing to add to the quantum of information that might amount to reasonable suspicion.

       But, “[u]nder [the fellow officer] doctrine, when law enforcement officials rely on

a bulletin or alert to conduct a stop or make an arrest, the relevant inquiry is whether the

officer who issued the alert — rather than the officer who conducted the challenged

action — had the requisite level of suspicion.” United States v. Wilkinson, 633 F.3d 938,

941 (10th Cir.), cert. denied, 131 S. Ct. 2922 (2011). “Th[e] balance of interests — the

substantial advantage to law enforcement in facilitating their communications

outweighing the minimal protection to citizens from requiring detailed messages between

officers — applies equally when the offense for which there is reasonable suspicion is a

misdemeanor rather than a felony.” Id. at 942.

       That said, this case turns upon whether Bohanon’s testimony articulated a

reasonable suspicion of criminal activity. As Matthews describes it, Bohanon “observed

nothing more than two men standing next to a parked car that was playing loud music.

The neighborhood had recently experienced violence and gang-related activity, but

nothing was articulated which would have tied the two men to such criminal activity.”

(Appellant’s Opening Br. at 23.)

       The district court saw it differently, reasoning as follows:

                                            -7-
       Bohanon’s interest in Matthews was aroused because he observed
       defendant looking around and reaching into a car several times. Although
       these actions may not, on their own, be worthy of suspicion, based on
       Bohanon’s experience as an officer he found this behavior in a high crime
       area to be indicative of criminal activity. Deferring to the judgment of the
       officers, Bohanon’s interpretation of defendant’s actions is sufficient to
       create reasonable suspicion that would justify an investigatory detention.

(R. Vol. 1 at 24.)

       Looking to “the reasonableness of the officer’s suspicions [under] an objective

standard taking the totality of the circumstances and information available to the officers

into account,” nothing in the record supports the court’s conclusion. United States v.

Burleson, 657 F.3d 1040, 1047-48 (10th Cir. 2011). We are mindful that a reasonable

suspicion “need not rise to the level required for probable cause, and it falls considerably

short of satisfying a preponderance of the evidence standard.” United States v. Davis,

636 F.3d 1281, 1291 (10th Cir. 2011) (quotations omitted). But it is well-settled that

reasonable suspicion cannot be based upon a “mere hunch.” Id.

       Although Matthews was on Tulsa Housing Authority property where there had

recently been violence and gang activity, the government did not ask, and Bohanon did

not state, why the actions he observed were indicative of criminal activity or what

criminal activity he suspected. It was daylight and there is no indication that the men

were trying to keep a low profile. To the contrary, they were standing in a public parking

lot with the music blasting. At one point, Bohanon said he saw Matthews “continually”

look around, reach into the car and then look around. (R. Vol. II at 14.) This description

is tempered, however, by his admission on cross-examination that he saw this activity “a

couple of times.” (Id. at 23-24.)

                                            -8-
          Most importantly, Bohanon’s testimony was entirely equivocal. He stated he

“didn’t quite know what [Matthews] was up to” when he contacted Officer Sanders.

And, consistent with this generalized observation, the only information Bohanon gave to

Sanders was that “some guys standing over here by a car that are kind of acting

suspicious” and “to check it out.” (R. Vol. 2 at 14 (emphasis added.)) This directive to

Sanders, even in combination with his other testimony, does not convey an objective and

particularized suspicion of criminal activity. Instead, it supports exactly what occurred, a

consensual encounter to determine what the men were “up to.” Sanders testified to the

men being friendly and cooperative. They willingly explained their presence on the

property while providing valid identification. There was nothing to suggest the encounter

should proceed further.

          To be sure, the district court judge had the benefit of hearing the testimony first-

hand and credited Bohanon’s judgment of the facts. But Bohanon never testified that he

suspected criminal activity based on his initial observations. As the Third Circuit has

stated:

          We construe the record in the light most favorable to the government.
          However, in doing so we do not supply the testimony that the government
          failed to elicit during the suppression hearing. Similarly, we must refrain
          from drawing inferences that are either not supported by the record, or
          contrary to it, in an effort to uphold an arrest.

United States v. Meyers, 308 F.3d 251, 255 (3d Cir. 2002) (citation omitted). In this

instance, had the prosecutor elicited more facts, the result might well be different. But

given the limits of Bohanon’s testimony, the court erred in concluding Bohanon

articulated an objective and particularized suspicion that Matthews was involved in

                                               -9-
criminal activity.

       We Reverse and Remand for further proceedings in accord with this decision.

                                        Entered by the Court:

                                        Terrence L. O’Brien
                                        United States Circuit Judge




                                         - 10 -
