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

                                      TENTH CIRCUIT                        June 24, 2015

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court

    THOMAS W. CUNNINGHAM,

          Plaintiff - Appellant,

    v.                                                      No. 14-2204
                                                         (D. New Mexico)
    THE CITY OF ALBUQUERQUE, NEW                (D.C. No. 1:13-CV-00977-LH-LAM)
    MEXICO; ALBUQUERQUE POLICE
    OFFICER, CHRIS LUTTRELL, In his
    individual capacity or personal capacity,

          Defendants - Appellees.




                                   ORDER AND JUDGMENT*


Before, HARTZ, TYMKOVICH, and BALDOCK, Circuit Judges.




*
  After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered submitted
without oral argument. This order and judgment is not binding precedent, except under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.
       Plaintiff Thomas W. Cunningham, proceeding pro se and in forma pauperis,

brought an action under 42 U.S.C. § 1983 against the City of Albuquerque and Officer

Chris Luttrell alleging that Luttrell violated his rights under the United States and New

Mexico Constitutions. The United States District Court for the District of New Mexico

dismissed most of the claims as barred by Heck v. Humphrey, 512 U.S. 477 (1994),

because of Plaintiff’s conviction on drug charges arising out of the same episode. Those

dismissals are not at issue on appeal. The sole issue on appeal concerns Plaintiff’s Fourth

Amendment claim—namely, whether the district court properly ruled on summary

judgment that Luttrell had reasonable suspicion to stop the vehicle in which Plaintiff was

a passenger. We affirm.

I.     BACKGROUND

       On the night of April 4, 2012, Plaintiff was in the passenger seat of a truck parked

by a dumpster behind a pizza parlor in Albuquerque, New Mexico. Officer Luttrell was

patrolling the area when he observed the truck. The area was known to Luttrell for a high

level of drug-trafficking and prostitution. Two people were sitting in the truck and

another person was standing next to the passenger door, which was open. According to

Luttrell’s affidavit, he observed a hand-to-hand transaction between Plaintiff and the man

standing outside the truck. That man then departed and Plaintiff “ma[d]e a furtive

movement, looking back and forth, picking up a black drawstring bag and placing it next

to his left leg inside the vehicle.” R., Vol. I at 97. Luttrell left his vehicle and

approached the truck with a flashlight. He saw a bag of marijuana and a clear glass pipe
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that were visible at the top of the black bag. He told Plaintiff to exit the truck and took

the bag. The driver told Luttrell that the bag belonged to Plaintiff. A search of the bag

also revealed a syringe, a needle, a spoon, and a small baggie of heroin. Luttrell arrested

Plaintiff for possession of heroin and marijuana.

       Plaintiff’s version of events is rather different. According to Plaintiff, a man

approached the truck and talked to him for some time. The man told Plaintiff that he had

forgotten his change in the pizza parlor and asked him to hold the pizza while he went

back inside. When the man returned, he stood there looking for his change until he saw a

police officer, whereupon he said he had warrants, grabbed his pizza, and left. The

officer then parked his car behind the truck, blocking it in. Plaintiff never possessed the

black bag or any of its contents, nor did he make any furtive movements.

II.    DISCUSSION

       “We review the district court’s grant of summary judgment de novo, reviewing the

evidence in the light most favorable to the nonmoving party.” Clark v. Edmunds,

513 F.3d 1219, 1221–22 (10th Cir. 2008) (brackets and internal quotation marks

omitted). To justify an investigatory stop, “the officer must have reasonable suspicion to

believe that criminal activity may be afoot.” United States v. Simpson, 609 F.3d 1140,

1146 (10th Cir. 2010) (internal quotation marks omitted). “[T]he existence of objectively

reasonable suspicion of illegal activity does not depend upon any one factor, but on the

totality of the circumstances.” Id. (internal quotation marks omitted).


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       We agree with the district court that Officer Luttrell had reasonable suspicion to

stop Plaintiff. Although Plaintiff disputes the veracity of much of Luttrell’s account, it is

undisputed that Luttrell saw him exchange something through the window of a truck and

the person outside the truck departed when he spotted the officer. The transaction was in

an out-of-the-way spot in a high-crime area at night. See United States v. Paulette,

457 F.3d 601, 606 (6th Cir. 2006) (“[T]he officers had a reasonable suspicion that

Paulette was engaged in criminal activity based upon his hand movements consistent with

drug-dealing activity, efforts to evade the police upon noticing them, and presence in a

high crime area”); United States v. Lopez-Garcia, 565 F.3d 1306, 1313‒14 (11th Cir.

2009) (similar).

       Plaintiff appears to argue that fingerprint and DNA evidence and statements from

the driver of the truck would show that the bag did not belong to him. But on appeal he

challenges only the initial stop. The lawfulness of the stop does not depend on his

possession of the bag, but on whether the observations by the officer at the time of the

stop supported reasonable suspicion. He also argues that the district court erred in

dismissing his state-law claims. But his objections to the magistrate judge’s report and

recommendation made no mention of those claims; rather, they focused on the evidence

relating to reasonable suspicion and guilt. See Sealock v. Colorado, 218 F.3d 1205, 1209

(10th Cir. 2000) (appellant is barred from raising issues not raised in objections to

magistrate judge’s recommendation).


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We AFFIRM the district court’s decision.

                                 ENTERED FOR THE COURT


                                 Harris L Hartz
                                 Circuit Judge




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