                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                      UNITED STATES COURT OF APPEALS                  April 13, 2016
                                                                   Elisabeth A. Shumaker
                                   TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 15-7038
 v.                                            (D.C. No. 14-CR-00061-JHP-1)
                                                        (E.D. Okla.)
 STEVEN ALEX HUGHART,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, GORSUCH, and MORITZ, Circuit Judges. **


      Steven Alex Hughart entered a conditional guilty plea to one count of being

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

count of possessing a firearm with a removed, obliterated, or altered serial

number in violation of §§ 922 (k) & 924(a)(1)(B). In his plea, Mr. Hughart

preserved the right to appeal the district court’s denial of his motion to suppress


      *
        This order and judgment is not binding precedent, except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
evidence obtained in violation of the Fourth Amendment. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.



                                  I. Background

      The basic facts are undisputed. 1 On a February afternoon in 2014, an

anonymous caller reported a domestic disturbance to police in the area of an

apartment complex at 501 East Peak Boulevard in Muskogee, Oklahoma. Officer

Nicholas Ford, a seven-year veteran of the police department, was sent to

investigate the call. As the officer was driving to the apartment complex, which

sits along a two-lane frontage road, he saw a car stopped in the eastbound lane of

the frontage road with a man behind the wheel and two women standing near the

car, one at the driver’s side door and the other by the curb. The woman nearest to

the driver was upset and crying, and the officer testified that she appeared to be

arguing with the driver. As he pulled up to the stopped car, the women began to

walk away and the car began to move. Neither woman had obvious injuries or

torn clothing.

      The officer stopped in the westbound lane alongside the car and asked the


      1
         The facts are culled from the magistrate judge’s findings and
recommendation, the video recording of the encounter, and the officer’s testimony
at the suppression hearing. Mr. Hughart challenges only two findings: (1) at what
point the officer activated the emergency lights on his patrol car, see 1 R. 108–10,
and (2) the characterization of Mr. Hughart’s gesture near his waistband as
“messing with his waistband,” see id. at 113–15. Each is later discussed.

                                        -2-
driver, later identified as Mr. Hughart, “Yo, what’s going on?” Video of Stop at

1:08, Response in Opposition to Motion to Suppress, attach. A, United States v.

Hughart, No. 14-cr-00061 (E.D. Okla. Jan. 5, 2015), ECF No. 28. Mr. Hughart

responded, “Me and my wife are arguing.” Id. at 1:13. Mr. Hughart explained

that he and his wife had a disagreement and he wanted to return the car to her.

He asked to pull over into a parking lot. The officer replied by asking Mr.

Hughart for identification, but Mr. Hughart had none, saying that he left it at

home in the apartment complex. At some point during this conversation, the

officer activated the patrol car’s emergency lights. 2

      Believing this to be the reported dispute, the officer told Mr. Hughart to

pull into the westbound lane so as not to block traffic. As Mr. Hughart moved his

car, the officer testified he noticed through the windshield that Mr. Hughart

moved his hand to his right side, near his waistband. 3 When the officer exited his

car and resumed questioning Mr. Hughart, he testified that he again saw Mr.

Hughart move his hand to his right side near his waistband.



      2
         Mr. Hughart claims the emergency lights were activated at the very start
of the encounter. The magistrate judge merely indicated that the emergency
lights were engaged “[a]t some point in the encounter.” 1 R. 99. The district
court adopted the magistrate’s findings and recommendation in its entirety. Id. at
121.
      3
         The magistrate judge described Mr. Hughart as “messing with his t-shirt
on the right side,” see 1 R. 100, but Mr. Hughart disputes that characterization.
We will instead depend on the officer’s description of the gesture in his testimony
at the suppression hearing. See 2 R. 21.

                                         -3-
      He immediately told Mr. Hughart to step out of the car so he could “pat

him down for weapons real quick.” Id. at 2:03. As was his usual practice, the

officer testified he placed Mr. Hughart’s hands behind his back. Mr. Hughart

pulled away, exclaiming, “What the fuck?” id. at 2:13, and, according to the

officer, “took a defensive stance,” 2 R. 24. The officer wrestled Mr. Hughart to

the ground, kneed him several times during the struggle, and in the altercation, a

chamber-loaded .380 Jimenez semi-automatic pistol with an obliterated serial

number fell out of Mr. Hughart’s waistband. Mr. Hughart was eventually

subdued and arrested.

      Mr. Hughart was charged with possessing a firearm as a felon and

possessing a firearm with a removed, obliterated, or altered serial number.

18 U.S.C. §§ 922(g)(1), (k) & 924(a)(1)(B). 1 R. 10. Mr. Hughart filed a motion

to suppress the recovered firearm, arguing that his Fourth Amendment rights were

violated when he was seized and searched without legal cause. Id. at 12–18.

After a suppression hearing, a magistrate judge recommended Mr. Hughart’s

motion to suppress be denied. Id. at 98–106. The district court adopted the

magistrate’s recommendation and denied Mr. Hughart’s motion. Id. at 121.

Reserving the right to appeal the ruling on suppression of evidence, Mr. Hughart

pled guilty. Id. at 123. He was sentenced to 120 months’ imprisonment and three

years’ supervised release. Id. at 140. This timely appeal follows.




                                        -4-
                             II. Standard of Review

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

the light most favorable to the government, accept the district court’s findings of

fact unless clearly erroneous, and review de novo the ultimate determination of

reasonableness under the Fourth Amendment. United States v. Gilmore, 776 F.3d

765, 768 (10th Cir. 2015).



                                  III. Discussion

      On appeal, Mr. Hughart challenges three aspects of his encounter with the

officer, claiming his Fourth Amendment rights were violated when he was

(1) seized without reasonable suspicion of criminal activity, (2) frisked without

reasonable suspicion that he was armed and dangerous, and (3) frisked with

excessive force.

      Any analysis of a seizure begins by recognizing three types of interactions

between police officers and suspects: consensual encounters, investigative

detentions known as Terry stops, and arrests. See Cortez v. McCauley, 478 F.3d

1108, 1115 (10th Cir. 2007) (en banc). 4 Consensual encounters are “simply the

voluntary cooperation of a private citizen in response to non-coercive

questioning.” United States v. Guerrero-Espinoza, 462 F.3d 1302, 1308 (10th


      4
        These three encounters “are not static and may escalate from one to
another.” Cortez, 478 F.3d at 1115 n.5.

                                        -5-
Cir. 2006) (quoting United States v. Patten, 183 F.3d 1190, 1194 (10th Cir. 1999).

On the other side of the spectrum, there are arrests, and falling somewhere in

between consensual encounters and arrests, we have investigative detentions.

While considered a seizure, an investigative detention does not need to be

supported by probable cause; instead, it must only be justified by reasonable and

articulable suspicion that the person stopped has committed a crime or is about to

do so. United States v. Simpson, 609 F.3d 1140, 1146 (10th Cir. 2010).

      The Fourth Amendment protects individuals who are considered seized by

constitutional standards—either detained in a Terry stop or arrested

outright—from an unreasonable restraint on their liberty. Because consensual

encounters are not seizures, they need not be supported by suspicion of criminal

wrongdoing. Florida v. Royer, 460 U.S. 491, 497–98 (1983).

      A. Initial Encounter and Reasonable Suspicion

      With these categories in mind, we must first determine when Mr. Hughart

was seized. Once Mr. Hughart was seized, we ask whether the officer had

reasonable suspicion to support Mr. Hughart’s investigative detention.

      The magistrate judge correctly noted that the officer began the encounter by

asking what was going on. Mr. Hughart explained the situation, suggesting he

pull over into a nearby parking lot. The officer then asked him for identification,

and when he learned that Mr. Hughart did not have any, he directed Mr. Hughart

to pull his vehicle nose-to-nose with the officer’s vehicle. This sequence of

                                        -6-
events is completely consistent with the video of the encounter.

      Relying on those findings and the magistrate’s judge remark that the

encounter began as an investigative detention, Mr. Hughart asserts that he was

seized as soon as the officer pulled up alongside him. From that moment, a

reasonable person, Mr. Hughart claims, would not have felt “free to leave.”

United States v. Pena, 920 F.2d 1509, 1515 (10th Cir. 1990).

      The facts as found by the magistrate judge, however, suggest that any

investigative detention did not begin until after Mr. Hughart admitted he lacked

identification. “[A] seizure does not occur simply because a police officer

approaches an individual and asks a few questions.” Florida v. Bostick, 501 U.S.

429, 434 (1991). We must look to all “the circumstances surrounding the

encounter” and ask whether a reasonable person was “free to decline the officers’

requests or otherwise terminate the encounter.” Id. at 437–38. Certain

circumstances can suggest a seizure, such as

      the threatening presence of several officers; the brandishing of a
      weapon by an officer; some physical touching by an officer; use of
      aggressive language or tone of voice indicating that compliance with an
      officer’s request is compulsory; prolonged retention of a person’s
      personal effects such as identification and plane or bus tickets; a request
      to accompany the officer to the station; interaction in a nonpublic place
      or a small, enclosed place; and absence of other members of the public.

United States v. Ringold, 335 F.3d 1168, 1172 (10th Cir. 2003) (quoting United

States v. Hill, 199 F.3d 1143, 1147–48 (10th Cir. 1999)).

      None of those are present here. Mr. Hughart was already stopped in the

                                         -7-
eastbound lane of the two-lane road when the officer pulled up alongside him.

See id. at 1173 (“Unlike the archetypical highway drug seizure that begins with a

stop for some traffic violation, [officers] did not pull Defendants over on the

Interstate.”). Stopped in the road, Mr. Hughart was blocking traffic and talking

with a woman who was visibly upset. Yet, the officer didn’t get out of his patrol

car; he didn’t block Mr. Hughart’s car or prevent him from leaving in any way; he

didn’t brandish his weapon; his tone wasn’t accusatory, persistent or intrusive.

Instead, the officer asked from his car window, “Yo, what’s going on?”

      Even so, Mr. Hughart points to three facts that he claims demonstrate a

coercive encounter from the outset: the officer activated his emergency lights,

requested his identification, and ignored his request to pull into the parking lot to

give his wife the car. Under the totality of the circumstances, however, these

facts do not transform the encounter into a seizure, especially when viewed in the

light most favorable to the government. First, although the record does not

conclusively reflect when the officer turned on his emergency lights, even if

activated immediately, the lights were also a safety precaution to warn

approaching motorists of stopped traffic, not a show of force toward Mr. Hughart.

Remember, at this point, Mr. Hughart and the officer were blocking the road.

Second, it is well-settled that requesting identification does not necessarily

transform a consensual encounter into a seizure. I.N.S. v. Delgado, 466 U.S. 210,

216 (1984); United States v. Johnson, 364 F.3d 1185, 1188–89 (10th Cir. 2004).

                                         -8-
Insofar as Mr. Hughart’s request to pull his car into the apartment parking lot,

that request went unanswered while the officer was attempting “to figure out what

was going on.” 1 R. 48. Under these circumstances, merely asking to park in a

different place does not indicate a seizure from the outset.

      Thus, we conclude that the encounter began as consensual. At the earliest,

Mr. Hughart was seized when the officer directed Mr. Hughart to pull his car into

the westbound lane in front of the patrol car. By this time Mr. Hughart admitted

he had no identification, let alone a driver’s license.

      Mr. Hughart’s seizure triggers our second inquiry: Did the officer have

reasonable, articulable suspicion to justify Mr. Hughart’s detention? The officer

testified he had seen Mr. Hughart’s car in motion and Mr. Hughart lacked

identification. Thus, a reasonable officer would have reasonably suspected that

Mr. Hughart had violated Oklahoma law by operating a vehicle without a license.

See Okla. Stat. tit. 47, § 6-303(A); see also United States v. Cash, 733 F.3d 1264,

1274 & n.6 (10th Cir. 2013). That reasonable suspicion, on its own, was enough

to justify Mr. Hughart’s detention. There are certainly other factors that the

magistrate judge relied on and the government argues factor into the

calculus—the anonymous report of a domestic dispute in the area, Mr. Hughart’s

mid-lane stop, his conversation with a distraught woman in the road, his

admission that he and his wife were arguing, and the officer’s experience

responding to domestic disturbances—but we need not go on because Mr.

                                         -9-
Hughart’s failure to produce a driver’s license was sufficient.

        B. Frisk

        Next, Mr. Hughart argues that even if his detention was justified, his frisk

was not, because the officer had no reason to believe that Mr. Hughart was armed

and dangerous. As Mr. Hughart notes, a frisk is not the foregone conclusion of a

lawful stop, and officers are required to have reasonable, articulable suspicion

that an individual is armed and dangerous before performing a patdown for

weapons. Terry v. Ohio, 392 U.S. 1, 27 (1968). The standard does not, however,

require an officer be “absolutely certain” an individual is armed. United States v.

Garcia, 459 F.3d 1059, 1063 (10th Cir. 2006). Considering the totality of the

circumstances, we conclude the officer was justified in performing a patdown

here.

        The officer saw Mr. Hughart twice touch his right side near his waistband,

a gesture the officer believed to be consistent with adjusting or concealing a

weapon. After the second motion, the officer instructed Mr. Hughart to get out of

his car in order to frisk him for weapons. Mr. Hughart’s furtive movements,

along with the officer’s other observations, were enough to justify a frisk. See

United States v. DeJear, 552 F.3d 1196, 1201 (10th Cir. 2009) (citing United

States v. Paulino, 850 F.2d 93, 98 (2d Cir. 1988), which concluded that “furtive

movement provided a legal basis for the protective search”); see also United

States v. Bullock, 510 F.3d 342, 348 (D.C. Cir. 2007). Those other factors

                                         - 10 -
included: a report of a domestic disturbance, Mr. Hughart’s admission he was

arguing with his crying wife, and the officer’s experience responding to such

disputes.

      Mr. Hughart asserts that even if we rely on his hand movement to find that

the officer reasonably believed that Mr. Hughart was armed, there was no

indication he was also presently dangerous. See United States v. House, 463 F.

App’x 783, 788 (10th Cir. 2012) (noting that “[b]eing armed does not ineluctably

equate with dangerousness”). In this nonprecedential case, police lacked any

other indication that Mr. House was dangerous besides the glimpse of a knife;

here, there were several other factors that could cause a reasonable officer to fear

for his safety. Furthermore, we rejected this argument in United States v. Garcia,

751 F.3d 1139 (10th Cir. 2014), noting that while the armed and dangerous test is

conjunctive, each element cannot be viewed in isolation because that would

ignore the unavoidable interaction between them. Id. at 1143 n.7.

      C. Excessive Force

      Mr. Hughart’s final claim on appeal is that the officer exceeded the scope

of a lawful frisk by employing excessive force. He maintains that the officer’s

grip on his wrists went beyond the de minimis intrusion permitted in a frisk.

      Police officers can take reasonable and necessary measures “to protect their

personal safety and to maintain the status quo during the course of the stop.”

United States v. Hensley, 469 U.S. 221, 235 (1985). Such measures can include

                                        - 11 -
using handcuffs, drawing a weapon, or placing the suspect on the ground for the

officers’ protection. United States v. Neff, 300 F.3d 1217, 1220 (10th Cir. 2002).

In each case, we ask whether the “quantum of force” applied was reasonable.

United States v. Salas-Garcia, 698 F.3d 1242, 1250 (10th Cir. 2012).

      When evaluated in light of our precedent permitting limited handcuffing

during frisks—a far greater intrusion and a hallmark of arrest—the officer’s brief

restriction of Mr. Hughart’s wrists was acceptable. Mr. Hughart twice reached

for the area near his right waistband in the officer’s presence. The only officer on

the scene and faced with the possibility Mr. Hughart was reaching for a weapon,

the officer applied temporary and minimal force to ensure his own safety during

the frisk. The quantum of force applied here passes constitutional scrutiny.

      AFFIRMED.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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