                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                             April 11, 2007
                                    TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                              Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                            No. 06-2206
 RUDY VALENZUELA,                                      (D.C. No. CR 04-1475 LH)
                                                               (D.N.M.)
           Defendant-Appellant.


                                 ORDER AND JUDGMENT *


Before HENRY, BALDOCK, and HARTZ, Circuit Judges.**


       Albuquerque police officers responding to a burglary-in-progress call found

Defendant Rudy Valenzuela, a felon, hiding inside a nearby car. A rifle was in plain view

in the back seat of the car. A grand jury indicted Defendant on one count of being a felon

in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and

924(e)(1).     Following the denial of Defendant’s motion to suppress the firearm and

ammunition, Defendant entered a conditional plea of guilty reserving his right to appeal the


       *
          This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
court’s ruling. See Fed. R. Crim. P. 11(a)(2). Defendant claims on appeal the district court

should have suppressed the rifle and ammunition because the evidence was the fruit of an

unlawful arrest. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

                                             I.

       On appeal from an order denying a motion to suppress, we accept the district court’s

factual findings unless clearly erroneous, and view the evidence in the light most favorable

to the Government. See United States v. Walker, 474 F.3d 1249, 1252 (10th Cir. 2007).

Following a hearing on Defendant’s motion to suppress, the district court made findings

consistent with the record. Around 5:00 p.m. on October 30, 2003, Gabriel Jaramillo heard

noises in his backyard. After looking out a back window and seeing nothing suspicious,

Jaramillo looked out his front window and saw a man running away with his pit bull puppy.

Jaramillo did not confront the man because he was caring for his one year old son. Lisa

McAllister, one of Jaramillo’s neighbors, was in the apartment complex parking lot when she

saw the man carrying Jaramillo’s dog. McAllister confronted the man and asked him what

he was doing with Jaramillo’s dog. The man responded he was returning the dog, but no one

was home. Sure that Jaramillo was home at the time, McAllister told the man to return the

dog. The man refused, got into a blue car, and drove away hitting a parked car in the

process. After the confrontation, McAllister spoke with Jaramillo. Neither Jaramillo nor

McAllister contacted the police.

       Shortly before midnight that evening, a man knocked on Jaramillo’s front door. The

knock awoke Jaramillo. Believing the man would go away, Jaramillo did not answer the

                                             2
door. The man, however, continued knocking on the front door, back door, and windows for

approximately ten minutes. The man was yelling that he was bringing Jaramillo’s dog back

and wanted a reward. While standing in a hallway inside his apartment, Jaramillo observed

a Hispanic man wearing a dark t-shirt standing outside his backdoor carrying a rifle.

Frightened, Jaramillo called the police.

       Four officers from the Albuquerque Police Department responded to a burglary-in-

progress call. Before making contact with Jaramillo, the officers combed the area around

Jaramillo’s apartment but did not find the man. Officer Garcia, the lead officer, spoke to

Jaramillo. Jaramillo told Officer Garcia that earlier in the day a man had stolen his dog and

that a man holding a rifle had been knocking on his doors and windows saying he had found

his dog and wanted a reward. Officer Garcia told Jaramillo they would continue looking for

the man.

       As the officers walked back to their patrol cars, Officer Gutierrez noticed some

movement inside a blue car parked approximately thirty feet from Jaramillo’s apartment.

Officer Gutierrez approached the car and saw Defendant inside the car “scrunched down in

kind of like a fetal position, almost underneath the driving wheel.” Officer Gutierrez also

saw in plain view a rifle in the back seat of the car. The officers drew their weapons and

ordered Defendant out of the car. Defendant did not immediately comply. Officer Garcia

then opened the driver’s side door and ordered Defendant to exit the car and lie down on the

street. When Defendant got out of the car and before the officers asked him any questions,

Defendant blurted out “I was just trying to return the dog.” Officer Garcia handcuffed

                                             3
Defendant. Officer Gutierrez secured the rifle. After running Defendant’s name through the

system, the officers learned Defendant was possibly a convicted felon.1

       Defendant sought to suppress the rifle and ammunition arguing the officers exceeded

the permissible scope of a Terry detention when they ordered him out of the car at gun point

and handcuffed him. At that point, according to Defendant, the officer’s conduct became an

arrest unsupported by probable cause.       The district court concluded the officers had

reasonable suspicion to detain Defendant and order him out of the car, as well as probable

cause to arrest him. Defendant entered a conditional plea of guilty to one count of possession

of a firearm and ammunition by a felon. The district court sentenced him to 180 month

imprisonment followed by three years of supervised release. Defendant timely appealed.

                                             II.

       On appeal, Defendant readily concedes the officers had reasonable suspicion to detain

him and investigate. He argues, however, the officers used excessive force when the officers

forced him out of his car at gun point and handcuffed him, thus converting the detention into

an unlawful arrest. “Under the Fourth Amendment, the intrusiveness of a search or seizure

will be upheld if it was reasonable under the totality of the circumstances.” United States v.

Perdue, 8 F.3d 1455, 1462 (10th Cir. 1993). We review the ultimate determination of

reasonableness de novo. See Walker, 474 F.3d at 1252.



       1
         While Defendant was detained, Officer Garcia spoke with McAllister.
McAllister gave Officer Garcia a description of the man she observed carrying
Jaramillo’s dog, as well as a description of the vehicle in which the man fled.
McAllister’s description matched Defendant and his car.

                                              4
       An officer may briefly detain an individual for an investigative purpose if the officer

has a reasonable suspicion supported by articulable facts that criminal activity may be afoot.

See United States v. Sokolow, 490 U.S. 1, 7 (1989). The scope of a detention must be at all

times reasonably related to the suspicious circumstances that justified the detention in the

first place. See United States v. Neff, 300 F.3d 1217, 1220 (10th Cir. 2002). When a

detention exceeds its permissible scope, it becomes an arrest and must be supported by

probable cause. See id. The permissible scope of an investigative detention, however,

“cannot be determined by reference to a bright-line rule[.]” Id. Rather, “common sense and

ordinary human experience must govern over rigid criteria.” Id. While investigative

detentions must be fairly non-intrusive, “[a] law enforcement agent, faced with the possibility

of danger, has a right to take reasonable steps to protect himself and an obligation to ensure

the safety of innocent bystanders, regardless of whether probable cause to arrests exists.”

United States v. Merkley, 988 F.2d 1062, 1064 (10th Cir. 1993).

       The officer’s conduct in this case did not exceed the scope of a Terry stop under the

circumstances and was reasonable at all times. We have previously held a Terry stop does

not necessarily become unreasonable because officers draw their weapons and point them

at a subject. See United States v. Shareef, 100 F.3d 1491, 1506 (10th Cir. 1996); see also

Neff, 300 F.3d at 1220. “[T]he use of guns in connection with a stop is permissible where

the police reasonably believes the weapons are necessary for their protection.” Perdue, 8

F.3d at 1462. In holding the use of firearms reasonable under certain circumstances, we

noted that “[w]henever the police confront an individual reasonably believed to present a

                                              5
serious and imminent danger to the safety of the police and public, they are justified in taking

reasonable steps to reduce the risk that anyone will get hurt.” United States v. Merritt, 695

F.2d 1263, 1274 (10th Cir. 1982).

       In Perdue, for example, officers conducted a search of a rural property believed to be

a site for marijuana cultivation. 8 F.3d at 1458. During the search, officers discovered

several weapons in addition to large quantities of marijuana. Id. Two officers, who were

assigned to secure the perimeter, heard over their radios that the officers found weapons

during the search. Id. While the search was ongoing, the two officers observed a car

entering the dirt road leading to the property. Id. On seeing the officers, the car attempted

to turn around. Id. Before being able to do so, the two officers drew their weapons and

ordered the two occupants of the car to get out and lie down on the ground. Id. We rejected

Perdue’s contention the officer’s conduct was tantamount to an arrest. Id. at 1462-63. While

recognizing that effectuating a Terry stop by pointing guns at a subject may, in some

situations, elevate a seizure to an arrest, we held the officers did not act unreasonably under

the circumstances. Id. at 1463. The officers knew guns were present on the property and

“[t]his fact alone justifi[ed] any concerns the officers had for their personal safety.” Id. See

also Merritt, 695 F.2d at 1273 (holding officers acted reasonably in ordering a murder

suspect believed to be heavily armed and dangerous out of his truck with guns drawn and

pointed at the defendant).

       Similarly, we have held a detention “does not become unreasonable just because

police officers use handcuffs on a subject or place him on the ground.” Neff, 300 F.3d at

                                               6
1220. The use of handcuffs during the course of an investigative detention is a reasonable

means of neutralizing potential danger. See Perdue, 8 F.3d at 1463. Ordering a suspect to

lie down on the ground and handcuffing him, “provides the officers with a better view of the

subject and prevent[s] him from obtaining weapons which might . . . [be] in the car or on his

person.” Id. In Shareef, for example, an officer stopped three vehicles for speeding. After

checking for identifications and radioing it to a police dispatcher, the dispatcher reported one

of the drivers was wanted on weapons charges and was considered armed and dangerous.

100 F.3d at 1495-97. When backup arrived, the officers, with guns drawn, ordered the

occupants of the vehicle to exit the vehicles one by one. Id. at 1497. Each individual was

frisked, handcuffed, and ordered to kneel on the payment. Id. About one hour and a half

after initiating the detention, the officers learned the suspect was not in fact a wanted felon.

Id. at 1498. We held that “although bordering on an illegal arrest, the precautionary

measures of force employed by the officers were reasonable under the circumstances.” Id.

at 1506. We reasoned the officers’ “reasonable belief that the defendants posed a danger

justified the procedures in this case,” and, therefore, “the officers were entitled to display

their weapons . . . and to restrain the defendants[.]” Id. at 1506.

       In much the same way, the officers in this case acted reasonably when, with weapons

drawn, they ordered Defendant to lie down on the street and handcuffed him. The officers

were responding to a potential burglary and had been informed the subject was armed. The

officers were justified in their reasonable belief the subject could pose a danger to their

safety. The officer’s concern for their safety was heightened when Officer Gutierrez found

                                               7
Defendant hiding inside of a car and observed a rifle within Defendant’s reach. The officers

acted reasonably in drawing their weapons, ordering Defendant to lie down on the street, and

handcuffing him until the rifle could be secured and Defendant could be patted down to

ensure he did not possess another weapon. See United States v. Sparks, 291 F.3d 683, 690

(2002) (concluding officers are entitled to seize evidence revealed in plain view during the

course of a lawful investigatory detention).     Officers should not be required to take

unreasonable risks in performing their duties. Because “safety may require the police to

freeze temporarily a potentially dangerous situation, both display of firearms and the use of

handcuffs may be part of a reasonable Terry stop.” Merkley, 988 F.2d at 1062. The district

court properly denied Defendant’s motion to suppress.

       AFFIRMED.

                                          Entered for the Court,



                                          Bobby R. Baldock
                                          Circuit Judge




                                             8
