                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                       June 24, 2013
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court



UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
v.                                                      No. 12-1268
                                             (D.C. No. 1:10-CR-00191-MSK-1)
                                                         (D. Colo.)
PHILIP MARTIN BENAVIDEZ, a/k/a
Phillip Martin Benavidez,

             Defendant - Appellant.



                           ORDER AND JUDGMENT *


Before BRISCOE, Chief Circuit Judge, SEYMOUR and BACHARACH, Circuit
Judges.


      Philip Benavidez, the defendant, was seen at about 11:00 p.m. in a parking

lot that had been identified as a frequent place for drug deals. At the time, Mr.

Benavidez was crouched next to another car and looking at something in a remote

section of the parking lot. The scene appeared suspicious to a police officer, and

he responded by temporarily detaining Mr. Benavidez and searching his person.

During the search, the officer discovered a gun. Mr. Benavidez moved 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*      This order and judgment is not binding precedent, except under the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.
the gun, and the district court denied the motion. Under Supreme Court precedent,

the stop and search were lawful if police had reasonable grounds to suspect Mr.

Benavidez of a crime. Thus, we must ask: Did the police have reasonable grounds

to suspect a crime? Holding that they did, we affirm.

                       I. THE CRIMINAL PROCEEDINGS

      Mr. Benavidez was charged under 18 U.S.C. § 922(g)(1) with possession of

a firearm by a convicted felon. Mr. Benavidez moved to suppress evidence

involving the gun, arguing that the initial stop was not supported by a reasonable

and articulable suspicion as required by Terry v. Ohio. 1 The district court

disagreed, holding that “the time of night, the location, the apparent lack of

connection between the folks in the parking lot and the Safeway, and the fact that

. . . the Safeway parking lot was known as an area where drug transactions

occurred” gave rise to reasonable suspicion that criminal activity was afoot. 2 Mr.

Benavidez pleaded guilty and appealed the denial of his motion to suppress.

                        II. REASONABLENESS OF THE
                        POLICE OFFICER’S SUSPICION

      On appeal, Mr. Benavidez challenges the lawfulness of the stop. Evidence

of the gun, he argues, is inadmissible as the fruit of an unlawful stop. We reject




1
      392 U.S. 1 (1968).
2
      R., vol. 1 at 153: 11-14.

                                          2
this contention because the police were justified in stopping and temporarily

detaining Mr. Benavidez.

      A.     A Terry Stop and its Requirements

      As Mr. Benavidez acknowledges, police officers may detain an individual

for investigatory purposes when the totality of the circumstances creates

reasonable suspicion of criminal activity. 3 Brief investigatory stops—though

exempt from the probable cause requirement—remain subject to the Fourth

Amendment’s general requirement that searches and seizures be reasonable. 4 A

stop is reasonable if it is justified at the start and reasonably related in scope to the

circumstances that justified the stop in the first place. 5

      A stop is justified if the “specific and articulable facts and rational

inferences drawn from those facts give rise to a reasonable suspicion [that] a

person has or is committing a crime.” 6 We view the facts in their totality,

applying an objective standard to determine if a reasonable officer would have

suspected a crime. 7


3
      Terry v. Ohio, 392 U.S. 1, 21 (1968).
4
      Terry v. Ohio, 392 U.S. 1, 20 (1968).
5
      Terry v. Ohio, 392 U.S. 1, 20 (1968); United States v. DeJear, 552 F.3d
1196, 1200 (10th Cir. 2009).
6
      United States v. Werking, 915 F.2d 1404, 1407 (10th Cir. 1990).
7
      United States v. Arvizu, 534 U.S. 266, 273 (2002); United States v. Salazar,
609 F.3d 1059, 1064-65 (10th Cir. 2010).

                                            3
      The officer need not “rule out the possibility of innocent conduct.” 8 But he

can initiate a detention only if he has a “particularized and objective basis” for

suspecting criminal activity. 9 Hunches are not enough. 10

      B.     Reasonableness of the Suspicion

      The district court held that the police officer could initiate an investigative

detention because he had reasonable grounds to suspect Mr. Benavidez of a

crime. 11 This holding involves a mixed question of law and fact, triggering de

novo review. 12 In conducting this review, we consider the evidence in the light

most favorable to the district court and uphold its factual findings unless they are

clearly erroneous. 13 “In practice, this looks more like deference—indeed, double

deference—than de novo review.” 14

      The police officer testified that:

      !      the grocery store was closing at 11:00 p.m.,


8
      United States v. Arvizu, 534 U.S. at 277.
9
       United States v. Cortez, 449 U.S. 411, 417-18 (1981); United States v.
Trujillo, 404 F.3d 1238, 1244 (10th Cir. 2005).
10
      Terry v. Ohio, 392 U.S. 1, 27 (1968).
11
      R., vol. 1 at 153:19 - 154:3.
12
      Ornelas v. United States, 517 U.S. 690, 699 (1996); United States v.
Santos, 403 F.3d 1120, 1124 (10th Cir. 2005).
13
      United States v. Santos, 403 F.3d 1120, 1124 (10th Cir. 2005).
14
      Unites States v. Santos, 403 F.3d 1120, 1125 (10th Cir. 2005).

                                           4
       !       Mr. Benavidez and another man were crouched near a car door,
               looking at something,

       !       the men were parked about 120 feet from the entrance of the grocery
               store, and

       !       the grocery store was known as a meeting place for drug deals. 15

The district court relied on this testimony and made similar factual findings. 16

When these circumstances are viewed in the light most favorable to the district

court’s holding, a reasonable police officer would have suspected criminal

activity. 17

       Perhaps in isolation, the circumstances might have seemed innocent. For

example, the police might have viewed the scene differently if the store had not

been closing, if the two men had been parked closer to the store entrance, if Mr.

Benavidez had not been crouched and looking at something, or if the parking lot

had not been known as a place for drug deals. But viewing the circumstances

together, the district court concluded that Detective Bravo had specific articulable




15
       See R., vol. 1 at 71, 73, 79.
16
       See R, vol. 1 at 148, 153.
17
       See United States v. Conner, 699 F.3d 1225, 1231 (10th Cir. 2012) (stating
that the time of night and a substantial history of crime at the place where the
stop had occurred affect reasonableness of the suspicion); United States v.
McHugh, 639 F.3d 1250, 1257 (10th Cir. 2011) (stating that a report that men
were “‘lurking’ around [a] parking lot” and “acting hinky” had added to the
circumstances creating reasonable suspicion for a Terry stop).

                                           5
facts to harbor a reasonable suspicion that a crime was in progress. 18 Considering

the evidence in the light most favorable to the district court’s resolution, we agree

and affirm.


                                       Entered for the Court




                                       Robert E. Bacharach
                                       Circuit Judge




18
      See R., vol. 1 at 153.

                                          6
