                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                November 15, 2012
                                     PUBLISH                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                         No. 11-4169
 v.

 BRIAN LUIS GUARDADO,

       Defendant - Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF UTAH
                    (D.C. No. 10-CR-01042-TC-1)


Stephen McCaughey, Salt Lake City, Utah, for Defendant - Appellant.

Diana Hagen, Assistant United States Attorney, (and David B. Barlow, United
States Attorney, on the brief), Salt Lake City, Utah, for Plaintiff - Appellee.


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.


KELLY, Circuit Judge.



      Defendant-Appellant Brian Luis Guardado entered a conditional plea of

guilty to one count of being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1). He was sentenced to 46 months’ imprisonment and 36
months’ supervised release. Mr. Guardado reserved his right to appeal the district

court’s denial of his motion to suppress evidence found during a Terry stop-and-

frisk. Exercising that right, Mr. Guardado argues on appeal that the district court

erred in holding the officers’ stop was based upon reasonable suspicion. Our

jurisdiction arises under 28 U.S.C. § 1291, and we affirm.



                                   Background

      On September 5, 2010, Detective Jacob Burton, a member of the Metro

Gang Task Force, was patrolling an area of South Salt Lake City, Utah. 2 R. 8–9.

According to Detective Burton, the task force was targeting the area because of an

ongoing “tagging” feud (i.e., graffiti feud) between gangs. Id. at 16–17. In

addition, there had been aggravated assaults, a weapons offense, and other crimes

in the area. 1 R. 37. 1

      Around 1:00 a.m., Detective Burton noticed four males walking nearby a

well-lit intersection. 2 R. 10. The men were about fifteen feet away from

Detective Burton’s police car. 1 R. 26. They initially drew Detective Burton’s

attention because they were walking in an area where foot traffic was very sparse

at night. 2 R. 10–11. Upon seeing the men, Detective Burton turned his car

      1
         Both Mr. Guardado and the government agreed to submit the transcript
from a state court preliminary hearing in Utah v. Guardado, Case No. 101906861
(Nov. 9, 2010), as evidence for the district court to consider in deciding whether
to grant Mr. Guardado’s motion to suppress. This transcript is included in the
record on appeal.

                                        -2-
around. Id. at 11. He directed his headlights at the men to “get a better look at

who they were and what they were doing.” Id. Detective Burton observed four

Hispanic males. Id. One male appeared to be wearing a pair of baggy brown

shorts and a brown bandana, another had on a backpack, and a third male wore a

brown jacket. Id. at 11–12. Detective Burton testified that brown clothing is

specific to the QVO or East Side Rascals street gang, and he reported that the

“majority” of his graffiti-related arrests involve suspects who carry their graffiti

kits in backpacks. Id. at 17.

      Detective Burton drove by the men once more. Id. at 12. Based on their

clothing, the time of night, and the high-crime area, Detective Burton decided to

speak with the men. Id. at 17. He pulled up approximately twenty to thirty feet

behind them. Id. at 12. At the same time, another member of the Metro Gang

Task Force, Detective Clark, radioed Detective Burton to ask whether he had seen

the group of men. Id. at 13. Detective Burton explained that he was getting

ready to stop them. Id.

      As he exited the police car, Detective Burton heard someone yell, “Cops.”

Id. The man in the brown jacket, Mr. Guardado, began walking away briskly and

then “took off running” toward “an extremely high crime area.” Id. at 13, 16. In

response, Detective Burton said, “Police. Stop. Police Stop.” Id. at 13. But Mr.

Guardado continued to run. Id.

      Detective Burton ran after Mr. Guardado, yelling at him to stop. Id. at 14.

                                         -3-
During the chase, he saw that Mr. Guardado’s hand was in front of his body,

which Detective Burton noted was “uncommon in a full pursuit as you’re

running.” Id. Detective Burton believed Mr. Guardado was possibly trying to

conceal some type of evidence or weapon, or retrieve a weapon. Id.

      Detective Clark pulled his car in front of Mr. Guardado, exited the car, and

yelled, “Police. Stop.” Id. Mr. Guardado continued to run until Detective Clark

tackled him. Id. Detective Burton then placed Mr. Guardado’s right arm in a

knee lock. Id. at 15. The detectives yelled at Mr. Guardado several times,

demanding that he give them his left hand. Id. But Mr. Guardado ignored their

orders and kept his hand underneath his body. Id.

      Although Mr. Guardado refused to comply with the detectives’ demands,

Detective Clark eventually was able to pry Mr. Guardado’s left hand free. Id.

Mr. Guardado was then handcuffed, and Detective Burton frisked his waistband

for weapons. Id. He immediately felt a large firearm in the groin area of Mr.

Guardado’s pants. Id.

      The district court determined that the stop and the frisk were constitutional.

United States v. Guardado, No. 2:10-CR-1042-TC, 2011 WL 1086065, at *4 (D.

Utah Mar. 22, 2011). Initially, Mr. Guardado appealed both of the district court’s

legal conclusions. See Aplt. Br. 7. At oral argument, however, Mr. Guardado’s

counsel conceded that, should we hold the seizure constitutional, the ensuing

search is appropriately deemed constitutional as well. Therefore, Mr. Guardado’s

                                        -4-
only remaining claim, which we resolve here, is that police did not possess the

reasonable suspicion necessary to justify his initial stop.



                                     Discussion

      In reviewing the denial of a motion to suppress, we accept the district

court’s factual findings unless clearly erroneous and we view the evidence in the

light most favorable to those findings. United States v. Clarkson, 551 F.3d 1196,

1200–01 (10th Cir. 2009). In contrast, we review de novo the district court’s

determination of reasonableness under the Fourth Amendment. United States v.

Polly, 630 F.3d 991, 996 (10th Cir. 2011).

      The Fourth Amendment prohibits the government from conducting

unreasonable searches and seizures. United States v. Arvizu, 534 U.S. 266, 273

(2002). In the absence of probable cause, the constitutionality of a search or

seizure hinges on the objective reasonableness of an officer’s suspicion. See

Arizona v. Johnson, 555 U.S. 323, 330 (2009). The ultimate inquiry is whether

the totality of the circumstances would “warrant a man of reasonable caution in

the belief that the action taken was appropriate.” Terry v. Ohio, 392 U.S. 1, 22

(1968) (internal quotation marks omitted); see also United States v. Simpson, 609

F.3d 1140, 1146–47 (10th Cir. 2010) (explaining that this evaluation is made from

the perspective of a reasonable officer rather than a reasonable person).

      Police may constitutionally “conduct a brief, investigatory stop when [an]

                                         -5-
officer has a reasonable, articulable suspicion that criminal activity is afoot.”

Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing Terry, 392 U.S. at 30). In

determining the reasonableness of an officer’s suspicion, we have considered a

number of factors including: the area’s disposition toward criminal activity, see,

e.g., Wardlow, 528 U.S. at 124; United States v. McHugh, 639 F.3d 1250, 1257

(10th Cir. 2011); the time of night, see, e.g., Clarkson, 551 F.3d at 1202; whether

the suspect is wearing colors affiliated with known gangs, see, e.g., United States

v. Garcia, 459 F.3d 1059, 1067 (10th Cir. 2006); and the suspect’s

behavior—particularly any flight from law enforcement, see Wardlow, 528 U.S.

at 124; see also McHugh, 639 F.3d at 1258. The district court concluded that the

totality of the circumstances supported an objectively reasonable suspicion of

criminal activity. We agree.

      For Fourth Amendment purposes, Mr. Guardado was “seized” when

Detective Clark tackled him. See Brendlin v. California, 551 U.S. 249, 254

(2007) (holding that a person is seized only “when the officer, by means of

physical force or show of authority, terminates or restrains his freedom of

movement” (internal quotation marks omitted)). Accordingly, we analyze the

facts as they existed at that time—not a moment before. See California v. Hodari

D., 499 U.S. 621, 626 (1991).

      The district court found that the seizure occurred in a high-crime area. See

Guardado, 2011 WL 1086065, at *3. Mr. Guardado acknowledges that a stop’s

                                         -6-
location is a relevant consideration. See Aplt. Br. 16. Nevertheless, he argues

that the term “high-crime area” is dangerously vague because “there is not an

objective method for determining if the officer’s assertion is true.” Id. Whatever

merit there is to Mr. Guardado’s argument, the Supreme Court—and accordingly,

this circuit—continues to consider an area’s disposition toward criminal activity

as a factor that contributes to an officer’s reasonable suspicion. See Wardlow,

528 U.S. at 124; accord McHugh, 639 F.3d at 1257; United States v. DeJear, 552

F.3d 1196, 1201 (10th Cir. 2009). Therefore, while presence in a high-crime

area, alone, does not establish reasonable suspicion, the district court correctly

factored the area’s high crime-rate into its analysis.

      Second, the late hour at which the police stopped Mr. Guardado lends

weight to the reasonableness of the officers’ suspicion. See Clarkson, 551 F.3d at

1202 (“[T]he time of night [is] a factor in determining the existence of reasonable

suspicion.”). The district court found that police seized Mr. Guardado around

1:00 a.m. In Gallegos v. City of Colorado Springs, we considered the time of

night, also around 1:00 a.m., in holding that the police had reasonable suspicion

of criminal activity. See 114 F.3d 1024, 1029 (10th Cir. 1997). Accordingly, we

conclude that a 1:00 a.m., stop is “undoubtedly late enough (or early enough) to

be a factor in the reasonable suspicion assessment.” McHugh, 639 F.3d at 1257.

      Third, several of the men, including Mr. Guardado, were wearing clothing

associated with the QVO gang. We have held that although gang affiliation is

                                         -7-
“not necessarily determinative by itself, . . . gang connection further supports the

reasonableness of [an officer’s suspicion].” Garcia, 459 F.3d at 1067; see also

DeJear, 552 F.3d at 1201; United States v. Santio, 351 F. App’x 324, 329 (10th

Cir. 2009) (concluding that the defendant’s attire, which the officers believed was

a possible indication of gang affiliation, was an appropriate factor for the district

court to consider). Here, several of the men, including Mr. Guardado, were

wearing brown clothing—the QVO gang’s color. Additionally, one of the men

wore a backpack, which tagging gangs typically use to carry graffiti kits.

      It is true that the officers did not know whether Mr. Guardado was a gang

member or if he was engaged in tagging, but Terry demands suspicion not

certainty. Reasonable suspicion requires only a “minimal level of objective

justification” to support the belief that criminal activity is afoot. United States v.

Sokolow, 490 U.S. 1, 7 (1989) (internal quotation marks omitted); see also United

States v. Pack, 612 F.3d 341, 356 (5th Cir. 2010) (concluding that police need not

have a particularized suspicion of a “specific crime,” and noting that the Supreme

Court “has often spoken of the wrongdoing itself in general terms”). Further,

police “need not rule out the possibility of innocent conduct.” Arvizu, 534 U.S.

at 277. Reasonable suspicion may exist even where it might be “more likely than

not that the individual is not involved in any illegality.” United States v.

Johnson, 364 F.3d 1185, 1194 (10th Cir. 2004).

      Finally—and most significantly—Mr. Guardado’s flight from police

                                         -8-
compounded their reasonable suspicion that he was engaged in some type of

criminal activity. Mr. Guardado argues that Detective Burton was intent on

conducting a stop-and-frisk from the moment he first spotted the group of men.

Aplt. Br. 14–15. Indeed, Detective Burton testified that he “would have probably

done a Terry frisk on [the men]” even if Mr. Guardado had not fled. 1. R. 33.

But “[w]e have long since rejected the notion that an officer’s subjective

motivations in effecting a stop are relevant to the Terry analysis.” United States

v. Winder, 557 F.3d 1129, 1134 (10th Cir. 2009). In other words, the “actual

motivations or subjective beliefs and intentions of the [particular] officer are

irrelevant.” United States v. DeGasso, 369 F.3d 1139, 1143 (10th Cir. 2004).

Instead, we evaluate the reasonableness of an officer’s actions by using an

objective standard and focusing on the circumstances as they existed at the time

of the seizure. Here, Mr. Guardado was seized after he fled from police; we

therefore evaluate the stop’s reasonableness in light of his preceding flight.

      Evasive behavior is a factor in our Fourth Amendment analysis because

while not determinative of wrongdoing, it certainly can suggest it. See Wardlow,

528 U.S. at 124. The Supreme Court goes further: “[h]eadlong flight—wherever

it occurs—is the consummate act of evasion.” Id.

      Mr. Guardado argues that flight, alone, “rarely if ever can provide an

officer with reasonable suspicion.” Aplt. Br. 12. Mr. Guardado relies heavily on

our decision in United States v. Davis, 94 F.3d 1465 (10th Cir. 1996). See Aplt.

                                         -9-
Br. 9–13. There, we held that police lacked reasonable suspicion despite the fact

that the stop occurred in a high-crime area and the officer knew the defendant was

in a gang. See Davis, 94 F.3d at 1467–68. But unlike Mr. Guardado, who hastily

fled from officers, the Davis defendant simply walked away from police. Id. at

1468. The government therefore argues that the facts in Mr. Guardado’s case are

more akin to Wardlow than Davis. Aplee. Br. 18–19; see Guardado, 2011 WL

1086065, at *3 (“[T]he facts here . . . are far more indicative of criminal behavior

than those in Davis.”). We agree.

      Mr. Guardado took off in a “headlong flight” from the officers. Like the

Wardlow defendant, Mr. Guardado engaged in “the consummate act of evasion.”

Wardlow, 528 U.S. at 124. In fact, he did so in the context of circumstances

already lending themselves to a reasonable suspicion of criminal activity—Mr.

Guardado was spotted in a high-crime area, late at night, wearing the color of a

local gang. Moreover, he fled in a manner highly suggestive of criminality,

grabbing his waistband in what appeared to be an effort “to conceal some type of

evidence . . . or retrieve a weapon.” 2 R. 14.

      “[T]he level of suspicion required [for an investigatory stop] is

‘considerably less’ than proof by a preponderance of the evidence or that required

for probable cause.” United States v. Lopez, 518 F.3d 790, 799 (10th Cir. 2008)

(quoting Sokolow, 490 U.S. at 7). Thus, we reject the argument that the officers

were required to have evidence linking Mr. Guardado to a particular gang or

                                        - 10 -
particular criminal activity. Direct evidence of a specific, particular crime is

unnecessary. See Pack, 612 F.3d at 355. The Fourth Amendment merely requires

commonsense judgments and reasonable inferences. Wardlow, 528 U.S. at

124–25. Even conduct that is lawful, when observed through the prism of

experience and considered in light of the circumstances, may warrant further

investigation. See Arvizu, 534 U.S. at 273–74.

      In this case, several factors—the most important of which was Mr.

Guardado’s own evasive behavior— converged to create an objectively reasonable

suspicion that criminal activity was afoot. Therefore, we hold that the seizure did

not violate the Fourth Amendment.

      AFFIRMED.




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