                                                                       FILED
                                                           United States Court of Appeals
                                PUBLISH                            Tenth Circuit

                UNITED STATES COURT OF APPEALS                   March 12, 2019

                                                               Elisabeth A. Shumaker
                      FOR THE TENTH CIRCUIT                        Clerk of Court
                    _________________________________

UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                 No. 17-3270

DESMOND S. GAINES,

       Defendant - Appellant.
                   _________________________________

              Appeal from the United States District Court
                       for the District of Kansas
                   (D.C. No. 2:15-CR-20078-JAR-1)
                   _________________________________

Paige A. Nichols, Assistant Federal Public Defender (Melody Brannon,
Federal Public Defender, with her on the briefs), Kansas Federal Public
Defender, Topeka, Kansas, for the Defendant-Appellant.

Stephen A. McAllister, United States Attorney (Carrie N. Capwell,
Assistant United States Attorney, with him on the brief), Office of the
United States Attorney, Kansas City, Kansas, for the Plaintiff-Appellee.
                    _________________________________

Before TYMKOVICH, Chief Judge, BACHARACH, and McHUGH,
Circuit Judges.
                _________________________________

BACHARACH, Circuit Judge.
               _________________________________

     This appeal stems from a search, which took place after the police

spoke with the defendant, Mr. Desmond Gaines. After a brief exchange,
Mr. Gaines fled but was soon captured. The police then found cocaine,

marijuana, PCP, drug paraphernalia, over $640, and a handgun. Mr. Gaines

unsuccessfully moved to suppress this evidence. He now appeals, 1 and we

focus on two issues:

     1.    The existence of a seizure. Two uniformed police officers
           approached Mr. Gaines with flashing roof lights and confronted
           him about a report that he was selling PCP. Did this
           confrontation entail a seizure? The answer turns on whether a
           reasonable person would have felt free to leave or terminate the
           encounter. We answer “no” and characterize the encounter as a
           seizure.

     2.    The attenuation of a possible Fourth Amendment violation.
           After effecting a seizure, the police allegedly acquired probable
           cause and learned of an outstanding arrest warrant. Did the
           development of probable cause or the subsequent discovery of
           the arrest warrant attenuate the connection between the seizure
           and the evidence? We answer “no,” so introduction of the
           evidence can’t be supported by attenuation of a Fourth
           Amendment violation.

Given our conclusions on these two issues, we vacate the denial of Mr.

Gaines’s motion to suppress.

I.   The Kansas City police approach Mr. Gaines in marked police
     cars and question him about a report that he is selling PCP.
     One morning, the police in Kansas City, Kansas, received a 911 call

reporting that a man dressed in red had just sold drugs in a parking lot.




1
       After a trial, Mr. Gaines was convicted of (1) possessing cocaine
base, PCP, and marijuana with intent to distribute, (2) possessing a firearm
in furtherance of a drug-trafficking crime, and (3) possessing a firearm
after a felony conviction. But the appeal involves only the ruling on Mr.
Gaines’s motion to suppress.
                                      2
Based on this information, police officers Carl Rowland and Shenee Davis

responded.

      The police officers pulled into the parking lot in two separate police

cars and turned on their roof lights. 2 They parked behind a car in which a

man in red clothing (Mr. Gaines) was seated. Officer Rowland gestured for

Mr. Gaines to get out of the car. He did, and Officer Rowland confronted

Mr. Gaines with the report that he was selling drugs. The police officers

soon observed an open container of alcohol and smelled PCP. When they

said they were going to detain Mr. Gaines, he grabbed a pouch from his car

and fled. The police caught Mr. Gaines and discovered the evidence that

underlies this appeal.

II.   Was there a seizure?
      The threshold issue is applicability of the Fourth Amendment. This

amendment applies if the police had seized Mr. Gaines; it doesn’t if the

encounter had been consensual. United States v. Reeves, 524 F.3d 1161,

1166 (10th Cir. 2008). The district court characterized the entire encounter

as consensual. To determine whether the encounter was consensual or

constituted a seizure, we apply a dual standard of review, using the clear-

error standard for the district court’s findings of historical fact and de




2
      In videos of the stop, it is hard to tell whether Officer Davis’s roof
lights were on. But Officer Davis testified in the suppression hearing that
she had activated her roof lights.
                                       3
novo review for the court’s legal conclusions. United States v. Roberson,

864 F.3d 1118, 1121 (10th Cir. 2017). 3

      The existence of a seizure involves a matter of law. See United States

v. Salazar, 609 F.3d 1059, 1064 (10th Cir. 2010) (stating that determining

“when the seizure occurred . . . is a legal [question]”). On this matter of

law, we consider whether Mr. Gaines yielded to a police officer’s show of

authority. California v. Hodari D., 499 U.S. 621, 626–27 (1991). To

answer this question of law, we apply an objective test, considering

whether a reasonable person would have felt free to leave or terminate the

encounter. Florida v. Bostick, 501 U.S. 429, 436 (1991). We apply this

objective test to the historical facts, which are largely undisputed. Even if

a reasonable person would not have felt free to leave, a seizure would




3
      When considering whether the district court clearly erred, we have
often said that we view the evidence in the light most favorable to the
district court’s ruling or to the prevailing party. See United States v.
Salazar, 609 F.3d 1059, 1063 (10th Cir. 2010) (favorable to the prevailing
party); United States v. Valenzuela, 365 F.3d 892, 896 (10th Cir. 2004)
(favorable to the district court’s determination). Mr. Gaines challenges
these statements, urging us to jettison our existing approach. But one panel
of this court can’t overrule another panel. United States v. Doe, 865 F.3d
1295, 1298 (10th Cir. 2017). So we continue to view the evidence in the
light most favorable to the district court’s ruling or to the prevailing party.
E.g., United States v. Cone, 868 F.3d 1150, 1152 (10th Cir. 2017).

                                       4
occur only if the suspect yielded to a police officer’s show of authority.

Hodari D., 499 U.S. at 626–27.

      So let’s consider how a reasonable person would have felt, facing

the same circumstances that Mr. Gaines confronted. The encounter began

with Mr. Gaines sitting in his car in a parking lot. Two uniformed police

officers arrived in marked police cars, both flashing their roof lights.

Would a reasonable person have felt free to leave? Perhaps. But the

flashing roof lights, 4 two marked police cars, and two uniformed officers 5

would undoubtedly have cast at least some doubt on a reasonable person’s

belief in his or her freedom to leave.

      This doubt would likely have intensified in Kansas (where Mr.

Gaines was stopped) because of Kansas’s traffic laws. See Berkemer v.

McCarty, 468 U.S. 420, 436–37 (1984) (considering the laws of most

states, which criminalize the failure to heed a police officer’s signal to



4
      See 4 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth
Amendment § 9.4(a), at 598–99 (5th ed. 2012) (stating that the “use of
flashing lights as a show of authority . . . will likely convert the event into
a Fourth Amendment seizure”).
5
      See United States v. Williams, 615 F.3d 657, 660 (6th Cir. 2010)
(“Williams was seized: a reasonable person would not have felt free to
leave upon being approached by two uniformed officers in a marked car,
singled out of a group, and immediately accused of a crime.”); see also
United States v. Lopez, 443 F.3d 1280, 1284 (10th Cir. 2006) (stating that
the presence of uniformed officers bears on whether a police encounter
constitutes a seizure).

                                         5
stop, as informative on whether the defendant reasonably believed that he

wasn’t free to leave). Under Kansas law, motorists must stop whenever a

police officer flashes his or her emergency lights. Kan. Stat. Ann. § 8-

1568(a)(1), (d).

      The district court minimized the impact of the flashing roof lights,

crediting testimony by the police officers that they had activated their

lights only because their cars were blocking a lane of traffic. But the

officers’ subjective intent had little bearing on whether a reasonable

person would have thought that he or she could leave. See Brendlin v.

California, 551 U.S. 249, 260–61 (2007) (“The intent that counts under the

Fourth Amendment” is the intent conveyed to the suspect, and the court

does not consider the officers’ “subjective intent when determining who is

seized.”); see also United States v. Mendenhall, 446 U.S. 544, 554 n.6

(1980) (concluding that a law-enforcement agent’s “subjective intention

. . . to detain the respondent, had she attempted to leave, is irrelevant

except insofar as that may have been conveyed to the respondent”).

      But let’s assume that a reasonable person would have felt free to

drive away at this point. 6 One of the police officers then exited his car and




6
     If the police officers had followed and reactivated their roof lights,
Kansas law would have required the person to pull over. See Kan. Stat.
Ann. § 8-1568(a)(1), (d); State v. Morris, 72 P.3d 570, 577 (Kan. 2003).
                                       6
gestured for Mr. Gaines to get out of the car. Here is what our reasonable

person would have seen:




At a minimum, the police officer’s gesture would have cast further doubt

on a reasonable person’s belief that he or she was free to drive away. See

Santos v. Frederick Cty. Bd. of Comm’rs, 725 F.3d 451, 462 (4th Cir.

2013) (holding that two deputy sheriffs’ gestures to stay seated constituted

a seizure).

      But let’s assume that a reasonable person would still have felt free to

leave. As Mr. Gaines exited the car, one police officer stood just a few feet

away and said that they had come because of a report that Mr. Gaines was

“up here selling some dope.” The police officer then asked Mr. Gaines




                                      7
whether he had been selling “wet” (street-language for PCP). Meanwhile,

another uniformed police officer circled the car, looking inside. 7




Would a reasonable person have felt free to leave? At a minimum, the

accusatory question would have added to the reasonable person’s doubt

about his or her freedom to return to the car and drive away. See United

States v. Glass, 128 F.3d 1398, 1407 (10th Cir. 1997) (stating that

“particularized focus” on an individual “is certainly a factor” to consider

when determining whether a seizure took place). 8


7
      At a hearing, a prosecutor told the district court that the police
officers had “encircle[d] the location” because the situation was
“heightened.” R., vol. I at 372.
8
      We have sometimes cautioned that the mere existence of
incriminating questions is not relevant to the existence of a seizure. See
United States v. Little, 18 F.3d 1499, 1506 (10th Cir. 1994) (en banc);
United States v. Ringold, 335 F.3d 1168, 1173 (10th Cir. 2003). We do not
question these cautionary statements. But here the police officer didn’t just
ask incriminating questions; he began by explaining that he had come (with
roof lights flashing) because of a report that this person was selling drugs
                                       8
     These were the five circumstances that confronted Mr. Gaines:

     1.    He was sitting in his car when two marked police cars
           approached and stopped right behind him with their roof lights
           flashing.

     2.    Both police officers were uniformed.

     3.    One police officer gestured for Mr. Gaines to get out of his car.

     4.    Mr. Gaines exited his car, and one of the police officers said
           that they had come based on a report that he was selling PCP in
           the parking lot.

     5.    While one police officer told Mr. Gaines that someone had
           accused him of selling PCP, the other police officer circled Mr.
           Gaines’s car and looked inside.




in the parking lot. See United States v. Smith, 794 F.3d 681, 686 (7th Cir.
2015) (“The line between a consensual conversation and a seizure is
crossed when police convey to an individual that he or she is suspected of
a crime.”).

                                     9
Viewing these circumstances as a whole, we conclude that (1) the police

officers showed their authority and (2) no reasonable person would have

felt free to leave.

      Still, the encounter would constitute a seizure only if Mr. Gaines had

yielded to the show of authority. He ultimately fled, so the government

denies that Mr. Gaines yielded. We disagree. One officer gestured for Mr.

Gaines to get out of his car, and he did. When Mr. Gaines was asked

questions, he responded. See United States v. Camacho, 661 F.3d 718, 726

(1st Cir. 2011) (stating that a suspect “submitted” to a police officer’s

“show of authority by responding to his questions”). And when Mr. Gaines

was asked for his identification, he opened his car trunk to look for his

identification.

      Mr. Gaines then fled. But by that point, he had already yielded to the

show of authority. We addressed a similar issue in United States v.

Morgan, 936 F.2d 1561 (10th Cir. 1991). There the defendant exited his

car and fled after asking the officer: “What do you want?” Morgan, 936

F.2d at 1566. We considered this single question enough to conclude that

the defendant had yielded to authority. Id. at 1567. By comparison, Mr.

Gaines had done more to yield: getting out of his car, answering the

officer’s questions, and looking for his identification.

      We thus conclude that Mr. Gaines was seized.



                                      10
III.   Even if the seizure itself had been improper, would the
       attenuation doctrine permit introduction of the subsequently
       discovered evidence?
       The government argues that even if the seizure had been improper, it

would have had only an attenuated connection to the later discovery of

evidence. This argument is based on the attenuation doctrine. Under this

doctrine, a constitutional violation leading to the discovery of evidence

does not require exclusion when only an attenuated connection exists

between the constitutional violation and discovery of the evidence. Utah v.

Strieff, 136 S. Ct. 2056, 2061 (2016).

       To invoke the attenuation doctrine, the government bears a “heavy

burden.” United States v. Fox, 600 F.3d 1253, 1259 (10th Cir. 2010).

Trying to satisfy this burden, the government alleges two attenuating

circumstances:

       1.   An outstanding arrest warrant existed for Mr. Gaines prior to
            the encounter.

       2.   The police officers obtained probable cause to search the car
            based on the smell of PCP and observation of an open container
            of alcohol.

The district court found attenuation based on the outstanding arrest

warrant. The court didn’t address probable cause, but the government

points to probable cause as an alternative basis to affirm the finding of

attenuation. In our view, attenuation cannot be based on either the arrest

warrant or the eventual development of probable cause.


                                     11
      A.    Arrest Warrant

      When the police officers searched the car, they did not know of any

outstanding arrest warrants. But shortly after conducting the search and

arresting Mr. Gaines, the police learned that he had an outstanding arrest

warrant. Based on the discovery of the warrant, the district court found

that the attenuation doctrine would allow introduction of the evidence even

if the initial encounter had constituted an unlawful seizure. We disagree

because (1) the execution of the arrest warrant might not have allowed a

search of the car and (2) two of the attenuation doctrine’s three factors

support exclusion.

      We again apply a dual standard of review, using the clear-error

standard for findings of historical fact and de novo review for legal

conclusions. Ornelas v. United States, 517 U.S. 690, 699 (1996).

      The arrest warrant might have led to an arrest, and arresting Mr.

Gaines would have allowed the police to conduct a search incident to an

arrest. Chimel v. California, 395 U.S. 752, 762–63 (1969). For a search

incident to an arrest, the police could search Mr. Gaines’s person and

places within his immediate control at the time of the search. See United

States v. Edward, 632 F.3d 633, 643 (10th Cir. 2001); see also United

States v. Knapp, No. 18-8031, slip op. at 12, ___ F.3d ___ (10th Cir. Mar. 5,

2019) (to be published) (“We therefore join the Third Circuit in

interpreting Gant as focusing attention on the arrestee’s ability to access

                                     12
weapons or destroy evidence at the time of the search, rather than the time

of the arrest, regardless of whether the search involved a vehicle.”).

      Here, the evidence at issue was in Mr. Gaines’s car. If the police had

arrested Mr. Gaines based on the arrest warrant, he might or might not

have been within reach of the car at the time of the search. If Mr. Gaines

was not within reach, the police could not have searched the car incident to

the arrest. See Arizona v. Gant, 556 U.S. 332, 343 (2009) (stating that the

police can “search a vehicle incident to a recent occupant’s arrest only

when the arrestee is unsecured and within reaching distance of the

passenger compartment at the time of the search”).

      At oral argument, the government theorized for the first time that the

police could have impounded the car and conducted an inventory search.

Though the district court didn’t consider these theories, we can ordinarily

consider alternative arguments to affirm if the record is adequately

developed. United States v. Bagley, 877 F.3d 1151, 1154 (10th Cir. 2017).

Here, however, the government did not present this contention until oral

argument. We typically decline to consider an appellee’s contentions raised

for the first time in oral argument. See Adamscheck v. Am. Family Mut. Ins.

Co., 818 F.3d 576, 588 (10th Cir. 2016) (rejecting an appellee’s contention

to affirm on an alternative ground because the contention was raised for

the first time at oral argument).



                                     13
      Even if we were to consider the government’s new contention,

however, we would reject it. To conduct an inventory search, the

government had to prove that the police could lawfully impound Mr.

Gaines’s car. See United States v. Sanders, 796 F.3d 1241, 1244 (10th Cir.

2015) (“The government bears the burden of proving that its impoundment

of a vehicle satisfies the fourth Amendment.”). To satisfy this burden, the

government had to show that the police had standardized criteria justifying

impoundment and a legitimate community-caretaking reason to impound

the car. Id. at 1248.

      Here the government presented no evidence of standardized criteria

for impoundment. Even with such evidence, however, the police could

impound the car only upon proof of a community-caretaking rationale. For

example, impoundment might have been permissible if the car had

obstructed traffic or imperiled public safety. South Dakota v. Opperman,

428 U.S. 364, 368–69 (1976). But we lack any evidence that the car was

illegally parked or imperiling public safety. 9

      But let’s generously assume that the police could have searched the

car based on (1) discovery of the arrest warrant or (2) impoundment of the




9
      After arresting Mr. Gaines, the police didn’t impound the car.
Instead, the police gave the keys to Mr. Gaines’s acquaintance, who
delivered the car to Mr. Gaines’s mother.
                                      14
car. Even with this assumption, we could apply the attenuation doctrine

only after considering three factors:

      1.    the “temporal proximity” between the Fourth Amendment
            violation and discovery of the evidence

      2.    the presence of “intervening circumstances”

      3.    the “purpose and flagrancy” of the officer’s wrongdoing

Brown v. Illinois, 422 U.S. 590, 603–04 (1975). The first two factors favor

suppression of the evidence; only the third arguably favors the

government.

      The first factor (temporal proximity) supports Mr. Gaines because

the evidence was discovered only minutes after the seizure. See Utah v.

Strieff, 136 S. Ct. 2056, 2062 (2016).

      The third factor (the purpose and flagrancy of the police wrongdoing)

supports the government. The police officers arguably should have known

that the encounter constituted a seizure. But the district court found that

the police had been negligent (at worst). This finding was reasonable

because the issue of reasonable suspicion is close. (We discuss this issue

below.) So if the search had been unlawful, the police would have been (at

worst) negligent.

      We also consider the second factor (the presence of intervening

circumstances between the allegedly unlawful stop and discovery of the

evidence). This factor supports Mr. Gaines because the arrest warrant


                                        15
wasn’t discovered until after the search. See United States v. Gaines, 668

F.3d 170, 175 (4th Cir. 2012) (concluding that when evidence is discovered

prior to the defendant’s independent criminal act, this criminal act cannot

serve as “an intervening event” to purge the taint of an unlawful police

action); United States v. Beauchamp, 659 F.3d 560, 574 (6th Cir. 2011)

(concluding that no intervening circumstances existed because the new

ground for the search had arisen after discovery of the evidence); United

States v. Camacho, 661 F.3d 718, 730–31 (1st Cir. 2011) (same).

     The government contends that if Mr. Gaines had not fled, the police

          would have learned of the arrest warrant before searching the
           car and

          might have impounded the car.

For the sake of argument, we can assume that the government is right. But

the attenuation doctrine addresses events as they actually occurred, not as

they might have transpired. Thus, the arrest warrant and potential

impoundment do not attenuate the connection between a possible Fourth

Amendment violation and discovery of the evidence.

     B.    Probable Cause

     The government also insists that the development of probable cause

would have triggered the attenuation doctrine. We reject this argument.

     According to the government, the police officers obtained probable

cause when they smelled PCP and observed an open container of alcohol in


                                     16
Mr. Gaines’s car. But even if probable cause existed, it would have flowed

directly from the seizure. See Wong Sun v. United States, 371 U.S. 471,

487–88 (1963). So the discovery of evidence would still be traced directly

to the possible Fourth Amendment violation. See id. Given this direct

causal connection, the eventual development of probable cause would not

trigger the attenuation doctrine. 10

IV.   Was the police’s suspicion reasonable?

      Even though Mr. Gaines was seized, the seizure would have been

permissible if the police had a reasonable ground to suspect Mr. Gaines of

a crime. See United States v. Cortez, 449 U.S. 411, 417–18 (1981). The

district court didn’t address the reasonableness of the police’s suspicion.

So our threshold decision is whether to decide this issue or remand for the

district court to address this issue in the first instance.

      Mr. Gaines asks us to remand for the district court to decide the issue

in the first instance. We grant this request. The inquiry on reasonable

suspicion ordinarily entails a fact-intensive inquiry better suited to the



10
      This argument might succeed in other cases when a suspect commits
a new crime during an unlawful seizure. For example, if a suspect resists
arrest during the seizure, the new crime of resisting arrest might arguably
attenuate the link between the seizure and a subsequent search. See United
States v. Bailey, 691 F.2d 1009, 1018 (11th Cir. 1982) (attenuation when
the defendant resisted arrest during an unlawful stop because resisting
arrest constituted a “new, distinct crime”). We need not address this issue
because the government doesn’t allege the commission of a new, distinct
crime after the search.
                                       17
district court than to our court. See United States v. Esquivel-Rios, 725

F.3d 1231, 1238 (10th Cir. 2013) (Gorsuch, J.) (discussing the benefit of

remanding so that the district court could decide reasonable suspicion in

the first instance); United States v. Hauk, 412 F.3d 1179, 1186 (10th Cir.

2005) (referring to reasonable suspicion as a “fact-intensive” issue). And

here, the parties disagree on some potentially material aspects of the

inquiry, such as

           whether the 911 caller implied that he or she had observed a
            drug sale and

           whether either police officer had known of past drug sales in
            the area where Mr. Gaines was located.

      The issue is also close. The police learned of Mr. Gaines through an

anonymous tip, and the Supreme Court concluded in Florida v. J.L., 529

U.S. 266 (2000) that an anonymous tip hadn’t supplied reasonable

suspicion. J.L., 529 U.S. at 271. But the Supreme Court also reached the

opposite conclusion in Navarette v. California, 572 U.S. 393 (2000). There

the Court relied partly on the use of the 911 system, the contemporaneous

nature of the call with the reported crime, and the specificity of the

information. Navarette, 572 U.S. at 398–403. These factors arguably apply

here. But in J.L., the Court also suggested the importance of predictive

information and corroboration, and both are arguably missing here. J.L.,

529 U.S. at 270–71.



                                      18
      Given the closeness of the issue and the district court’s superior

resources for fact-finding, we grant Mr. Gaines’s request to remand for the

district court to decide whether the police had reasonable suspicion.

V.    Did Mr. Gaines abandon the black pouch?

      When Mr. Gaines fled, he threw a black pouch onto the roof of a

building. The police later found the pouch, and it contained illegal drugs,

cash, and drug paraphernalia. All of this evidence was introduced at the

trial. Mr. Gaines alleges that the evidence should have been excluded, and

the government contends that Mr. Gaines abandoned the pouch.

      The district court didn’t address the issue, and the record on

abandonment is inadequately developed. We therefore can’t consider

abandonment as an alternative ground for affirmance. See p. 13, above. 11

VI.   Conclusion

      The police effected a seizure when two uniformed police officers

pulled behind Mr. Gaines in marked police cars, using their roof lights and



11
      Mr. Gaines argues that the government waived its abandonment
argument by failing to raise it in district court. For this argument, Mr.
Gaines relies on United States v. Hernandez, 847 F.3d 1257, 1262 (10th
Cir. 2017), and United States v. Verner, 659 F. App’x 461, 466–68 (10th
Cir. 2016) (unpublished). In these cases, however, the government was the
appellant. Hernandez, 847 F.3d at 1260; Verner, 659 F. App’x at 462. And
we ordinarily allow the government to present new arguments for
affirmance when the district court record is adequately developed. See
p. 13, above (citing United States v. Bagley, 877 F.3d 1151, 1154 (10th
Cir. 2017)).

                                     19
pointedly telling Mr. Gaines that they had come because of a report that he

was selling drugs in the parking lot. After conducting the search, the police

learned of an outstanding warrant and arguably obtained probable cause

during their discussion with Mr. Gaines. But neither the arrest warrant nor

the later existence of probable cause attenuate the causal connection

between the seizure and discovery of the evidence. We thus vacate the

denial of Mr. Gaines’s motion to suppress.

      An issue remains on the existence of reasonable suspicion. This issue

is better suited for the district court to decide in the first instance. We thus

remand for consideration of the issue involving reasonable suspicion. 12




12
      On remand, the district court is also free to consider the
government’s argument involving abandonment of the black pouch. The
issue of abandonment is fact-intensive and better suited for the district
court to decide on a fuller record. See, e.g., United States v. Driskill, No.
98-6331, 1999 WL 730954, at *2 (10th Cir. Sept. 20, 1999) (unpublished)
(“Whether a defendant ‘abandoned’ property in the Fourth Amendment
sense is a fact-intensive determination which would ordinarily require an
adequately developed record.”).

                                       20
17-3270, United States v. Gaines

TYMKOVICH, CJ., dissenting.

       I would affirm the district court because Officers Rowland and Davis had

reasonable suspicion to perform a brief investigative stop. And Officer Rowland quickly

gained probable cause to arrest Gaines based on the open container plainly visible inside

Gaines’s vehicle. Although the majority thoroughly and persuasively analyzes the

existence of a seizure and the applicability of the attenuation doctrine, I would not reach

these two issues. I therefore dissent.

       I see no need to remand for the district court to determine reasonable suspicion,

despite the district court not reaching the issue below. The government squarely

presented the issue to the district court and developed a detailed record regarding the

officers’ knowledge and observations. And based on this record, the officers had

reasonable suspicion to detain Gaines briefly while they investigated possible criminal

activity.

       We may affirm on an alternative ground when the facts in the record are

sufficiently developed and clear. See United States v. Springer, 875 F.3d 968, 981 (10th

Cir. 2017) (“[W]e are free to affirm a district court decision on any grounds for which

there is a record sufficient to permit conclusions of law, even grounds not relied upon by

the district court.” (internal quotation marks omitted)). And we should do so when, as

here, an issue will almost certainly return on appeal. I would therefore exercise our
discretion to affirm on this alternative ground, which is more than “adequately supported

by the record.” Davis v. Roberts, 425 F.3d 830, 834 (10th Cir. 2005).

       The Fourth Amendment permits brief investigative stops when law enforcement

officers have “a particularized and objective basis for suspecting the particular person

stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417–18 (1981).

Whether officers have reasonable suspicion depends “upon both the content of

information possessed by police and its degree of reliability.” Alabama v. White, 496

U.S. 325, 330 (1990). The standard takes into account “the totality of the circumstances,”

Cortez, 449 U.S. at 417—all the information officers possessed. Although a mere hunch

does not create reasonable suspicion, the level of suspicion required is “considerably less

than proof of wrongdoing by a preponderance of the evidence.” United States v.

Sokolow, 490 U.S. 1, 7 (1989).

       In this case, the officers responded to a 911 call that exhibited adequate indicia of

reliability. Combined with their knowledge of PCP-related drug activity at the address

and in the immediate area, a brief investigative stop was fully justified.

       The Supreme Court has noted that “[a]n anonymous tip alone seldom demonstrates

the informant’s basis of knowledge or veracity,” Navarette v. California, 572 U.S. 393,

397 (2014), so an anonymous tip is consequently seldom enough for reasonable suspicion.

But the Court has held, “under appropriate circumstances, an anonymous tip can

demonstrate sufficient indicia of reliability to provide reasonable suspicion to make [an]


                                              2
investigative stop.” Id. (internal quotation marks omitted). Thus, the Court has held that

an anonymous tip can suffice for reasonable suspicion, given some indicia of reliability,

though generally some additional information is needed. In this case we have both.

       The Supreme Court has plainly held that not all anonymous tips give police

reasonable suspicion to make an investigative stop. In Florida v. J.L., 529 U.S. 266

(2000), police received an anonymous phone call alleging that “a young black male

standing at a particular bus stop and wearing a plaid shirt was carrying a gun,” id. at 268.

The call itself did not exhibit any signs of being reliable—there was “no audio recording

of the tip, and nothing [was] known about the informant”—so “[a]part from the tip, the

officers had no reason to suspect” the young man of any illegal conduct. Id. Under these

circumstances, the Court unanimously held that the officers lacked reasonable suspicion

to frisk the defendant for weapons.

       More recently, however, the Supreme Court has under different circumstances

found an anonymous tip sufficient under the Fourth Amendment. See Navarette, 572

U.S. at 393. The police in Navarette received a 911 emergency call stating that a vehicle

had just run the caller off the road. The caller provided the dispatcher with the license

plate number, which police used to locate and stop the vehicle. The Court found three

factors especially relevant: the tipster (1) “claimed eyewitness knowledge of the alleged

dangerous driving,” (2) “reported the incident soon after she was run off the road,” and




                                              3
(3) “use[d] the 911 emergency system.” Id. at 399–400; see also United States v. Chavez,

660 F.3d 1215, 1222 (10th Cir. 2011) (laying out similar considerations).

        Here, the informant appears to have personally observed Gaines conducting a drug

transaction, but we cannot assume that fact when the record is inconclusive. The majority

is correct that this is a disputed fact because the caller never explicitly says how he knows

of the illegal conduct. The caller was certainly personally observing Gaines while on the

phone with the 911 operator and noted that Gaines “just made about 20 dollars.” Gov’t

Ex. 1 at 0:46–48. And he knew how Gaines was dressed and where he had parked his

car. But we ultimately cannot be sure the tipster was in a similar position to the caller in

Navarette.

        We have no need to rely on this disputed fact, however, because the claim of

eyewitness knowledge is only one indicium of reliability. It cannot be dispositive in

either direction because officers have even less ability to confirm a tipster’s claim of

personal knowledge than other aspects of an anonymous call. And the other two relevant

considerations are present. The caller made a “contemporaneous report” of his

observations of Gaines’s activities, criminal or not, and the caller used the 911 system.

Navarette, 572 U.S. at 399–400. The anonymous call also contained several other indicia

of reliability.

        The anonymous tipster described his observations to the emergency operator as he

saw them, stating clearly, “I’m watching him right now.” Gov’t Ex. 1 at 1:39–41. This


                                              4
information is the “sort of contemporaneous report [that] has long been treated as

especially reliable.” Navarette, 572 U.S. at 399. This is because “substantially

contemporaneity of event and statement negate the likelihood of deliberate or conscious

misrepresentation.” Id. at 400 (citing Advisory Committee’s Notes on rule of evidence

803(1), which describes “the rationale for the hearsay exception for ‘present sense

impression[s]’”). Granted, the caller here does not describe any criminal activity

contemporaneously with his observations. This weakens the reliability of the criminal

allegations. But the contemporaneousness of the caller’s noncriminal information

increases the overall reliability of the tip because the tipster reported mostly present sense

impressions, which “weigh[s] in favor of the caller’s veracity.” See id. (emphasis added).

And an anonymous caller’s veracity is at least part of the overall reliability inquiry.

       Also significant is the caller’s use of the 911 emergency system. As the Supreme

Court reasoned in Navarette, “A 911 call has some features that allow for identifying and

tracing callers, and thus provide some safeguards against making false reports with

immunity.” Id. For instance, a recorded call “provides victims with an opportunity to

identify the false tipster’s voice and subject him to prosecution,” and FCC regulations

prohibit carriers from allowing callers to “block call recipients from obtaining their

identifying information.” Id. at 400–01. This does not “suggest that tips in 911 calls are

per se reliable,” but it does mean that a tipster’s use of the 911 system is “one of the




                                              5
relevant circumstances that, taken together, justified the officer’s reliance on the

information reported in the 911 call.”1 Id. at 401.

       In this case, moreover, we have several other indicia of reliability. First, the caller

told the 911 operator where he was. His first words were, “Uh yes, I’m down here at uh

Frank Gill Center . . . Frank Williams Center.” Gov’t Ex. 1 at 0:02–07. He later

confirmed this location by exiting the building briefly to verify and report the exact

address where he was located. See United States v. Madrid, 713 F.3d 1251, 1260 (10th

Cir. 2013) (“giving the address” where the crime took place and the caller’s own location

“was at least an indicium of reliability”) (internal quotation marks omitted). This,

combined with the use of the 911 emergency system, jeopardized his anonymity, which

created a “disincentive for making false allegations.” United States v. Jenkins, 313 F.3d

549, 554 (10th Cir. 2002); see also United States v. Copening, 506 F.3d 1241, 1247 (10th

Cir. 2007) (“The fact the caller provided authorities some basis for discovering his

identity makes it less likely his tip was phony.”).

       Second, the caller spent over two minutes on the phone with the 911 operator and

answered every question put to him. When the operator asked what type of car Gaines

was driving, the caller answered honestly that he did not know but continued, “I can tell



       1
         Gaines’s counsel at oral argument contended that a 911 call does not make a tip
more reliable because tipsters may use burner phones or other methods to hide detection.
But this was no more true in 2015 when this incident occurred than in 2014 when the
Supreme Court decided Navarette.

                                              6
ya if you wait.” Gov’t Ex. 1 at 1:36–37. He also took the time to verify the address of the

building where the police needed to go.

       Third, the caller did not decline to give his name; the 911 operator simply never

asked. This is certainly an indicium of reliability. See Madrid, 713 F.3d at 1260 (finding

significant that “the 911 operator never asked the caller for his name or other identifying

information and there [was] no reason to believe he would not have provided this

information if requested”); United States v. Torres, 534 F.3d 207, 212 (3d Cir. 2008)

(same). Again, these considerations do not make tips reliable per se. But a reasonable

officer could find an anonymous tip fairly credible when the caller reveals where he is

located, jeopardizing his anonymity; does not decline to give any information, especially

identifying information; and does not seem in any hurry to make an allegation and hang

up.

       The officers also had information beyond the anonymous (yet sufficiently reliable)

tip on which to rely. They had first-hand officer observation and knowledge. The

officers knew which person in the parking lot had been accused of drug dealing: another

officer, Officer Wilcox, who at the time was off-duty at the Center, radioed in that the

man getting into the Cadillac was the person who had been standing on the street corner

dressed in all red when the tipster called. Thus, the officers could be confident that

Gaines was the person the caller had accused of criminal activity. See Cortez, 449 U.S. at




                                             7
417–18 (officers must have “a particularized and objective basis for suspecting the

particular person stopped of criminal activity” (emphasis added)).

       In addition, the officers had personal knowledge of drug, and specifically PCP-

related, activity in the immediate area of the Wilhelmina Gill Center. See United States v.

DeJear, 552 F.3d 1196, 1201 (10th Cir. 2009) (“[T]he fact that conduct occurs in an area

known for criminal activity [is an] appropriate factor[] to consider in determining whether

reasonable suspicion exists.”). Officer Rowland testified at length at the suppression

hearing regarding his knowledge of drug activity near the Center. Officer Davis also

testified that she was aware of “a lot of medical-type calls of individuals on PCP, along

with complaints of narcotics sales in the area.” R., Vol. I at 192.

       Gaines now claims that the two officers’ knowledge of drug activity at the Center

and the immediate area is a disputed issue of fact that must be resolved by the district

court. But the officers’ testimony that each was aware of this drug activity is

unequivocal—and unrefuted.

       Officer Rowland laid foundation for a government exhibit that revealed eight

police reports to the exact address for drug-related medical treatment that calendar year.

The police reports confirm officers had been called to the address for drug overdoses

three times in the two months prior to Gaines’s arrest. Two of those reports specifically

mention that the person receiving treatment had taken or had likely taken PCP, the

specific drug the anonymous tipster identified.


                                              8
       Officer Rowland also testified extensively about his personal knowledge of these

events. He told the court he had personally “responded to calls for service” in the

immediate area of the Wilhelmina Gill Center for various things but certainly for “a lot of

narcotics complaints.” R., Vol. I at 151–52, 154. The officer testified that leading up to

the day of the arrest “[w]e had an increased contact with individuals under the influence

of PCP.” Id. at 152. He continued, police received “[n]umerous medical calls,

sometimes multiple within a few minutes in that general area of individuals exhibiting

behavior that they were under the influence of PCP . . . . So we would usually respond,

whether it be a police call or a medical call.” Id.

       We may rely on this record evidence based on the district court’s findings of fact

and the record evidence. The district court specifically found that Officer Rowland “was

familiar with the Wilhelmina Gill Center and the surrounding area” and “had responded

to several drug-related calls” at the Center. R., Vol. I at 136. The court also found that

“officers had been dispatched to the Wilhelmina Gill Center eight times . . . for medical

calls involving reactions to PCP or other substances.” Id. It is true that the district court

did not specifically find that the officers were aware of the PCP-related medical calls

established in the police records. But Gaines did not challenge the officers’ assertion of

this personal knowledge at the suppression hearing; he produced no evidence to

contradict the officers’ testimony and barely questioned them on the issue during cross-

examination. Id. at 178–80, 195. The cross-examinations on this point were only to


                                              9
clarify that not all the drug-activity of which the officers knew was specifically PCP

related.

       The suppression hearing record therefore shows that (1) Officers Rowland and

Davis personally responded to service calls in the area of the Center, especially for

narcotics complaints; and (2) at least Officer Rowland was aware of the eight police

reports he sponsored into evidence of drug related activity at the same address as the

arrest happened, including the two service calls for PCP-related drug activity at the

Center within two months of Gaines’s arrest. This is sufficient evidence to conclude that

the officers had additional knowledge, beyond the anonymous phone call, to raise

reasonable suspicion that Gaines was selling PCP in the parking lot of the Wilhelmina

Gill Center.

       Thus, the officers reasonably relied on the anonymous tip in conjunction with their

own knowledge because together “the informant’s story and the surrounding facts

possessed an internal coherence that gave weight to the whole.” United States v. Brown,

496 F.3d 1070, 1078–79 (10th Cir. 2007). So even “[e]xercising the significant

skepticism and careful scrutiny required in the anonymous-informant context,” Copening,

506 F.3d at 1247 (internal quotation marks omitted), I would affirm on grounds of

reasonable suspicion.




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