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

                             FOR THE TENTH CIRCUIT                           April 21, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 16-2182
                                                  (D.C. No. 1:14-CR-03754-JAP-1)
BRADLEY SOZA,                                                (D. N.M.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, McKAY, and BALDOCK, Circuit Judges.
                  _________________________________

      We decide whether police officers transformed a lawful investigatory stop into

an unlawful arrest by brandishing their firearms and using handcuffs on an individual

who bore a generic resemblance to an unidentified and potentially violent burglar but

had otherwise behaved in a calm and compliant manner in front of the officers.

                                           *

      The district court’s findings of fact, which neither party challenges on appeal,

tell us the following. On a June afternoon in 2014, three women were inside one of

the units of a gated and generally peaceful condominium complex located in

Albuquerque when they saw a man banging on the front door. This man, who the

      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
women later described as a Spanish male in his forties wearing a grey shirt and

baseball cap, then walked around to the back of the condominium and threw a rock

through the unit’s sliding glass door. The women—justifiably frightened—retreated

to a bedroom closet to hide. The man apparently followed the women because at

some point later on the three victims heard the man say, “Hey,” from outside the

bedroom door.

      One of the women called 911 and informed the authorities of the above

sequence of events and the intruder’s general description. Shortly thereafter Officers

Thomas Melvin and James Demsich of the Albuquerque Police Department set out to

investigate.

      When they arrived at the complex, the officers circled the building in which

the callers’ condominium was located from opposite directions. As Officer Demsich

was rounding one of the building’s corners, he saw a man coming from another

nearby building in the condominium complex across the street. Officer Demsich

instructed the man “to go back in” to the building. The man immediately complied

and calmly walked back to the building from which he came.          Officer Demsich

continued to circle the building.

      The officers reunited at the broken sliding glass door in the back of the

building. Officer Demsich eventually asked Officer Melvin whether he had also seen

the man who had been crossing the street. Officer Melvin stated that he had not.

Officer Demsich, presumably beginning to have second thoughts about his encounter

with the man, indicated that the man may have matched the description of the

                                          2
suspect—that is, a Spanish male in his forties wearing a grey shirt and baseball cap.

The officers decided to investigate further and immediately crossed the street toward

the building from which the man had come and to which he eventually had returned.

      Soon enough the officers came across Defendant Bradley Soza—the only

person the officers saw in the area—standing on the front porch of one of that

building’s units. Defendant indeed matched a rough description of the suspect: he

was an adult Hispanic male who was wearing a baseball cap and grey sweatshirt.

      Without hesitation or further inquiry the officers unholstered their firearms,

held them in a low and ready position, and instructed Defendant to put his hands on

his head. Defendant calmly obeyed. The officers then came up onto the porch to

handcuff Defendant.     Again, Defendant did not resist or otherwise make any

threatening gestures or movements as they did so.

      As Officer Demsich was in the process of moving Defendant’s hands from the

top of his head to behind his back so that he could handcuff him, he noticed that

Defendant’s hands were bloody. Moments later, as Officer Demsich began securing

the handcuffs, Officer Melvin noticed that Defendant had shards of glass on his neck

and sweatshirt. Officer Melvin commented about the glass to Officer Demsich, and

Defendant, indirectly responding to the remark, offered that he had broken the sliding

glass door because he had “heard something.” The officers subsequently conducted

two pat-down searches of Defendant and found a flashlight, syringe, knife, and

loaded firearm.



                                          3
      A grand jury charged Defendant, a former convicted felon, with knowingly

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

924(a)(2). Defendant filed a motion to suppress the physical evidence and statements

obtained during his arrest on Fourth Amendment grounds. The district court denied

his motion.   As such, Defendant entered a conditional guilty plea that expressly

allowed him to appeal the district court’s denial of his motion to suppress. Defendant

now exercises that right.

                                          *

      Our jurisdiction arises under 28 U.S.C. § 1291. Because Defendant does not

challenge any factual findings of the district court and instead argues only that the

officers’ actions were unreasonable under the Fourth Amendment, we review de novo

the district court’s denial of his motion to suppress. United States v. Schuck, 713

F.3d 563, 567 (10th Cir. 2013).

      Defendant made two primary arguments to the district court in support of his

motion to suppress and again utilizes these same arguments on appeal. First, he

maintains that the officers violated his Fourth Amendment rights when they stepped

onto what Defendant insists was his front porch—the “classic exemplar” of

constitutionally protected curtilage, or the “area ‘immediately surrounding and

associated with the home’” that is “‘part of the home itself for Fourth Amendment

purposes,’” Florida v. Jardines, 133 S. Ct. 1409, 1414–15 (2013) (quoting Oliver v.

United States, 466 U.S. 170, 180 (1984))—to seize him without his consent, an arrest

warrant, or probable cause coupled with exigent circumstances. Second, he contends

                                          4
that even if the officers had the right to step onto the front porch to seize him without

violating the Fourth Amendment, they unlawfully arrested him in the absence of

probable cause when they brandished their firearms and handcuffed him based solely

on the fact that he resembled the as-of-then-unidentified burglar and was in the same

general area where the crime had occurred.

      Although the district court disagreed with Defendant on both points and

therefore denied his motion to suppress, we reverse the district court’s decision on

the second basis, i.e., that the officers unlawfully arrested Defendant in the absence

of probable cause.1 More specifically, we observe that the district court found that

the officers did not see the blood on Defendant’s hands or the glass on his person—

evidence that would surely give rise to probable cause in this instance—until after

they had already unholstered their guns and started the process of handcuffing

Defendant. In contrast, when the officers had initially made the decision to handcuff

Defendant and began doing so, they had known only that he matched a general

description of the unidentified burglar and that he was in close proximity in time and

place to the burglary. While these facts undoubtedly would have made the officers

reasonably suspect Defendant was the burglar, in this particular instance they were

insufficient to give rise to probable cause. Thus, when the officers employed forceful

techniques in an effort to detain Defendant by brandishing their firearms and


      1
         Because we reverse on this ground alone, we have no need to address
Defendant’s first argument—that is, whether the officers violated Defendant’s Fourth
Amendment rights when they stepped onto the front porch to seize him without his
consent, a warrant, or probable cause coupled with exigent circumstances.
                                           5
handcuffing him, they transformed what otherwise could have been a lawful

investigatory Terry stop into an unconstitutional arrest unsupported by probable

cause.

         The government takes issue with our conclusion that Defendant’s matching

description to the unidentified burglar and close proximity to the location of the

crime do not amount to probable cause. But the two binding cases the government

cites in support of its contention that a person’s matching description to a suspect can

give rise to probable cause are distinguishable on the basis that those descriptions

were much more specific and detailed than the one in Defendant’s case.              For

instance, in the first case, Chambers v. Maroney, 399 U.S. 42 (1970), the Supreme

Court held that officers had probable cause to arrest defendants when the officers

knew that the perpetrators of an armed robbery were driving a blue compact station

wagon, that four people were in the station wagon, that one of the station wagon’s

occupants was wearing a green shirt, and that another of the station wagon’s

occupants was wearing a trenchcoat. Id. at 44–47. And in the second case, United

States v. Miller, 532 F.2d 1335 (10th Cir. 1976), we held that that officers had

probable cause to arrest defendants when the officers knew that the unidentified

perpetrators of a bank robbery were driving a black over gold or tan Cadillac, that the

Cadillac’s license plate had the number YJ 8016, and that the two perpetrators were

wearing distinct or unusual items of clothing (such as a wide-brimmed black hat with

a white ring around the brim). Id. at 1336–38.



                                           6
      Compared to the generic description in Defendant’s case, Chambers and Miller

clearly involved descriptions that, from a purely statistical perspective, had a much

higher probability of positively identifying the perpetrators.      In Chambers, for

example, the chances the officers would have discovered two individual blue compact

station wagons in the vicinity carrying four people, two of whom were wearing a

green shirt and a trenchcoat, would have been substantially unlikely. And in Miller

there quite literally would have been only one car with the described license plate

number. In Defendant’s case, by contrast, the chances of the officers discovering

multiple adult Spanish or Latino males wearing grey shirts and baseball caps in a

nearby area was not nearly as unlikely. And since “[p]robable cause is established

where ‘a substantial probability existed that the suspect committed the crime,’”

Storey v. Taylor, 696 F.3d 987, 992 (10th Cir. 2012) (emphasis added) (quoting

Kerns v. Bader, 663 F.3d 1173, 1188 (10th Cir. 2011)), we simply cannot see how,

under the totality of the circumstances of this specific case, the officers could have

reasonably concluded Defendant satisfied this standard based on the simple fact that

he matched a rather generic description of the suspect and was found in close

proximity to the crime.2    Granted, these circumstances would have undoubtedly

alerted the officers that Defendant may have been the burglar. But this would have

given them only reasonable suspicion to investigate Defendant further, not the


      2
        Although we give it very little weight, the fact that Officer Demsich failed to
notice Defendant might be the burglar when he first encountered him bolsters our
conclusion that Defendant’s appearance was generic enough to not give rise to
probable cause.
                                          7
requisite probable cause needed to arrest him. See Oliver v. Woods, 209 F.3d 1179,

1186 (10th Cir. 2000).

      Even so, the government also takes issue with our conclusion that the officers’

brandishing of their firearms and handcuffing of Defendant amounted to an arrest.

The government claims that even if Officers Melvin and Demsich possessed only

reasonable suspicion at that time, their forceful techniques were reasonable,

precautionary corollaries of an investigatory Terry stop of an individual who may

have been a potentially violent burglar. This is admittedly a closer question, but we

remain unconvinced.

      While “the use of firearms, handcuffs, and other forceful techniques does not

necessarily transform a Terry detention into a full custodial arrest,” United States v.

Melendez-Garcia, 28 F.3d 1046, 1052 (10th Cir. 1994) (emphasis added), “we have

said such techniques generally exceed the scope of an investigative detention,”

Morris v. Noe, 672 F.3d 1185, 1192 (10th Cir. 2012) (emphasis in original) (internal

quotation marks omitted). For a court to hold otherwise the government must show

the officers’ forceful techniques were “reasonably necessary to protect their personal

safety and to maintain the status quo during the course of the stop.” United States v.

Mosley, 743 F.3d 1317, 1329 (10th Cir. 2014) (internal quotation marks omitted).

This inquiry is necessarily “fact-sensitive . . . and depends on the totality of the

circumstances in a given case.” United States v. Salas-Garcia, 698 F.3d 1242, 1249

(10th Cir. 2012) (internal quotation marks omitted). That said, “[i]n weighing the

officers’ actions, we . . . give allowance for the fact that police officers are often

                                          8
forced to make split-second judgments—in circumstances that are tense, uncertain,

and rapidly evolving—about the amount of force that is necessary in a particular

situation.” United States v. Hood, 774 F.3d 638, 643 (10th Cir. 2014) (internal

quotation marks omitted), overruling on other grounds recognized by United States v.

Titties, — F.3d —, No. 15-6236, 2017 WL 1102867 (10th Cir. Mar. 24, 2017).

      As the district court aptly recognized, in the cases where we have upheld

officers’ brandishing of firearms and use of handcuffs during an investigatory Terry

stop, the officers generally either knew or had reason to believe the suspects were

armed, or they had personally witnessed the suspects acting violently. See, e.g.,

United States v. Paetsch, 782 F.3d 1162, 1175 (10th Cir. 2015); United States v.

Shareef, 100 F.3d 1491, 1502, 1506 (10th Cir. 1996); United States v. Merkley, 988

F.2d 1062, 1064 (10th Cir. 1993). In contrast, when the officers had no reason to

believe the suspects were or could be armed and the suspects were otherwise calm

and compliant, we have generally concluded that the officers’ conduct amounted to

an arrest. See, e.g., Maresca v. Bernalillo Cnty., 804 F.3d 1301, 1309–1310 (10th

Cir. 2015); Lundstrom v. Romero, 616 F.3d 1108, 1123 (10th Cir. 2010); Melendez-

Garcia, 28 F.3d at 1052–53.

      Defendant’s case provides an interesting middle-ground.        On one hand,

although the officers had no information suggesting the unidentified burglar was

armed, they did know the burglar could potentially be violent because he had thrown

a rock through the sliding glass door and followed the women to the bedroom. On

the other hand, when the officers encountered Defendant—a man who undoubtedly

                                         9
bore a generic resemblance to the unidentified burglar—he was completely calm and

obeyed their commands on multiple occasions. What should govern: Defendant’s

calm and submissive demeanor, or that he potentially may have been a violent

burglar?

      In the particular circumstances of this case we believe that Defendant’s calm

and submissive demeanor takes precedence and that Officers Melvin and Demsich

were too impulsive. For one thing, Defendant obeyed Officer Demsich’s command

to return to the building from which he came when the two first crossed paths without

any resistance or objection. Thus, when the two officers encountered Defendant for a

second time later on, they were aware (or at least should have been aware) that

Defendant would likely obey their commands without the need for forceful

techniques.

      But more importantly, even if we assume that the officers did not transform

their investigatory Terry stop into an arrest by brandishing their firearms and

ordering Defendant to put his hands on his head, their quick use of handcuffs on

Defendant after he willingly obeyed that order went too far. Of note, the officers did

not first approach Defendant and pat him down while his hands were over his head,

which would have been a much less intrusive invasion of Defendant’s person.

Granted, from a legal standpoint that may have been a wise decision: pat-down

searches during investigatory stops require officers to have “reasonable suspicion that

a person is armed and dangerous,” and the officers here had no information

suggesting Defendant was armed. United States v. Fager, 811 F.3d 381, 385 (10th

                                          10
Cir. 2016) (internal quotation marks omitted). But see id. at 387 (“[A]n officer’s

suspicion that an individual is dangerous can affect that officer’s suspicion that an

individual is armed.” (internal quotation marks omitted)). We nonetheless mention

this omission to highlight how ludicrous it would be in this instance for us to

conclude that the officers had the authority to handcuff Defendant but did not have

the authority to pat him down. On the other hand, if the officers did in fact have the

authority to pat Defendant down—a question we have no reason to definitively

answer today—it begs the question why the officers chose to bypass the less intrusive

method of patting Defendant down in favor of using the more intrusive method of

handcuffing him.     Perhaps even more surprising is that the officers used the

handcuffs without even “undertak[ing] the most rudimentary investigation” and

questioning Defendant about any connection he may have had to the burglary.

Lundstrom, 616 F.3d at 1123.

      Of course, the most obvious retort would be that the officers had to make a

quick decision on how to proceed and that we should not second-guess from the

safety of the courtroom their ultimate choice to use handcuffs. Although we are

sensitive to the difficult and rapid choices police officers must necessarily make

when they encounter potential criminals, we do not believe such deference justifies

the officers’ decision to handcuff Defendant in this instance. Defendant had obeyed

their directions on at least two separate instances by that point and had made no

threatening gestures or suspicious movements, the officers outnumbered Defendant

two-to-one, and no other people were in the near vicinity that the officers had to be

                                         11
concerned about protecting.    As such, the officers would have had no reason to

believe that the circumstances surrounding Defendant himself warranted the use of

handcuffs. Defendant’s actions—most notably putting his hands on his head while

the officers brandished their firearms—dispelled any need for further invasive force.

        Consequently, handcuffing Defendant was not reasonably necessary to protect

the officers’ personal safety and to maintain the status quo during the course of the

stop.   As a result, the officers unlawfully arrested Defendant in the absence of

probable cause when they began to handcuff him, and the evidence collected by the

officers after that point—the blood and glass on his person; his statement that he

broke into the condominium because he “heard something”; and the flashlight,

syringe, knife, and loaded firearm found pursuant to the searches of his body—must

be suppressed.3




        3
         To the extent any of the evidence is fruit of the poisonous tree, we conclude
that (1) Defendant has established the requisite factual nexus between his unlawful
seizure and the challenged evidence, and (2) the government has waived any
argument to the contrary that the evidence is not fruit of the poisonous tree. See
United States v. Olivares-Rangel, 458 F.3d 1104, 1108–09 (10th Cir. 2006).

                                         12
                                           *

      We REVERSE the district court’s denial of Defendant’s motion to suppress

and REMAND for further proceedings not inconsistent with this opinion.4


                                            Entered for the Court


                                            Bobby R. Baldock
                                            Circuit Judge




      4
         We take a quick moment to commend counsel for the government and
Defendant on the excellent advocacy they both offered in their briefs and at oral
argument. Likewise, although we reverse the district court, we praise it for the
outstanding and meticulous opinion it drafted in this case. We notice when parties
and district courts alike put substantial effort into a case and believe such efforts are
worthy of remark.
                                           13
