                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS                   June 23, 2020
                                                                Christopher M. Wolpert
                                TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 19-2112
                                               (D.C. No. 5:18-CR-02045-KG-1)
 BRANNON DEAN SHELTON,                                    (D. N.M.)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, BALDOCK, and BACHARACH, Circuit
Judges.


      Brannon Dean Shelton was arrested after a police officer observed him and

two other men acting suspiciously near a parked car late at night in a quiet

residential area. Suspecting a car burglary, the officer investigated and during the

encounter, Shelton fled the scene. The officer caught and arrested Shelton, and

the officer subsequently obtained a warrant to search the car and found a firearm

belonging to Shelton.


      *
         This order and judgment is not binding precedent except under the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.
      Shelton was charged with being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). He filed a motion to suppress, which the

district court denied. Shelton pleaded guilty conditioned on his ability to appeal

the denial of his motion to suppress.

      On appeal, Shelton argues the arresting officer lacked reasonable suspicion

to detain him during the initial investigation; that the officer’s pursuit of Shelton

onto private property was unsupported by probable cause or exigent

circumstances; and that there was no probable cause for the subsequent

impoundment and search of the car. We reject these arguments, and AFFIRM.

                                 I. Background

      A few minutes before midnight on January 4, 2018, Officer Johnny Estrada

was patrolling a residential neighborhood in Roswell, New Mexico. As he drove

by a residence, he observed three people holding flashlights and standing around a

car parked in the driveway. The car doors were open and the individuals

appeared to be searching the car with flashlights. Knowing the neighborhood to

be a “high crime area,” and knowing that vehicle burglaries commonly occur late

at night and involve the use of flashlights, Officer Estrada suspected a burglary in

progress.




                                         -2-
          Officer Estrada turned his patrol car around, turned on his emergency

lights, and blocked the driveway. By then, the individuals were all seated in the

car with the doors shut, which heightened Officer Estrada’s suspicion.

          As Officer Estrada exited his car and began walking towards the car in the

driveway, the three occupants, one of whom was Shelton, got out and began

walking towards the backyard of the residence. Suspecting they were attempting

to flee, Officer Estrada twice called out, “Hey, come here.” In response, Shelton

began running into the backyard. After a short chase, a scuffle occurred between

Officer Estrada and Shelton. Shelton was finally subdued after Officer Estrada

found him hiding under a trailer. Shelton was arrested for battery and evading

arrest.

          The other two occupants of the car stopped fleeing when Officer Estrada

started to pursue them, and Officer Estrada ordered them to stay where they were

as he continued his pursuit of Shelton. One of them nevertheless attempted to

flee and was arrested by another officer two houses away. He was found to have

an uncapped syringe in his pocket; he told the arresting officer he was “just a

user.” 1




          1
         Officer Estrada turned on his body cam as he pulled up to the driveway,
and the other occupant’s arrest was also recorded. Both videos are contained in
the record on appeal.

                                           -3-
      After Shelton’s arrest, Officer Estrada asked him who owned the car, and

Shelton said he did not know. He was then transported to the police department,

where he volunteered that anything found in the car did not belong to him.

Several days later, Officer Estrada determined the registered owner of the car was

an individual from the Albuquerque area. She told Officer Estrada she had given

Shelton the car so that he could work on it for her.

      The car was impounded and taken to a Roswell police station. Four days

after Shelton’s arrest, Officer Estrada obtained a search warrant authorizing a

search of the car for “any drug paraphernalia, any illegal narcotics, any proof of

ownership, proof of occupancy, any burglary tools (i.e., flashlights, gloves, entry

tools).” R. Vol. II at 41. Officer Estrada executed the warrant and found drug

paraphernalia, a white crystalline substance, and a wallet with Shelton’s name on

it in a backpack. He also found a gun next to the wallet. After determining

Shelton was a felon, Officer Estrada obtained a second search warrant that

included the gun. He executed the second search warrant and seized the gun.

                                   II. Analysis

      Shelton asserts three points of error on appeal. First, he argues the

arresting officer lacked reasonable suspicion to detain him during the initial

investigation. Second, he argues the officer’s pursuit of Shelton onto private

property was unsupported by probable cause or exigent circumstances. Finally,


                                         -4-
Shelton argues there was no probable cause for the subsequent impoundment and

search of the car.

      On review of a ruling on a motion to suppress, 2 we “view the evidence in

the light most favorable to the prevailing party and accept the district court’s

findings of fact unless they are clearly erroneous.” United States v. Hernandez,

847 F.3d 1257, 1263 (10th Cir. 2017). “While the existence of reasonable

suspicion is a factual determination, the ultimate determination of the

reasonableness of a search or seizure under the Fourth Amendment is a question

of law reviewed de novo.” United States v. Fonseca, 744 F.3d 674, 680 (10th

Cir. 2014).

      A.      Detention and Reasonable Suspicion

      Shelton first argues he was detained without reasonable suspicion and that

Officer Estrada’s subsequent discovery of the gun was therefore the result of a

Fourth Amendment violation. A defendant has the burden to prove whether and

when a seizure has occurred. United States v. Carhee, 27 F.3d 1493, 1496 (10th

      2
          We note the district court stated that in assessing Shelton’s motion to
suppress, it must view the evidence in the light most favorable to the government.
As we recently explained in United States v. Goebel, 959 F.3d 1259 (10th Cir.
2020), that is not the applicable standard. “On a motion to suppress, the district
court must assess the credibility of witnesses and determine the weight to give to
the evidence presented; the inferences the district court draws from that evidence
and testimony are entirely within its discretion.” Id. at 1265. In this case, the
district court’s incorrect recitation of the applicable standard has no bearing on
the appeal because Shelton does not dispute any of the district court’s factual
findings.

                                         -5-
Cir. 1994). “[T]he crucial test is whether, taking into account all of the

circumstances surrounding the encounter, the police conduct would have

communicated to a reasonable person that he was not at liberty to ignore the

police presence and go about his business.” Florida v. Bostick, 501 U.S. 429, 437

(1991).

      Shelton contends he was detained when Officer Estrada pulled up behind

Shelton’s car and blocked the driveway. But we need not resolve this question

because Officer Estrada had reasonable suspicion to investigate the suspicious

behavior he encountered.

      To justify a detention, an officer must point to “specific and articulable

facts which, taken together with rational inferences from those facts, reasonably

warrant” the stop. Terry v. Ohio, 392 U.S. 1, 21 (1968). Reasonableness is

determined “in light of common sense and ordinary human experience.” United

States v. Mendez, 118 F.3d 1426, 1431 (10th Cir. 1997). The totality of the

circumstances must be considered, and neither the officer nor the court need “rule

out the possibility of innocent conduct.” United States v. Arvizu, 534 U.S. 266,

274 (2002).

      We conclude specific and articulable facts were present which, taken

together with rational inferences from those facts, constituted reasonable

suspicion. Officer Estrada observed several people, at midnight, holding


                                         -6-
flashlights and standing around a car parked in a driveway to a residence. It was

rational to infer from those facts that a burglary was in progress. This inference

was further supported by the fact that Officer Estrada knew the neighborhood to

be a “high crime area.” 3 When the Officer approached the vehicle, Shelton and

the two passengers started to walk away. Then, Shelton and one of the passengers

began to flee after the Officer asked them to return. The passenger complied but

Shelton fled into the back yard as Officer Estrada gave chase.

      Given these circumstances, Officer Estrada’s suspicion of a burglary in

progress was reasonable in light of common sense and ordinary human

experience. It was objectively reasonable for a police officer to investigate the

situation and resolve his suspicions, thus justifying a brief detention.

      B.     Warrantless Entry onto Private Premises

      Shelton next argues that Officer Estrada lacked the necessary probable

cause to pursue Shelton onto private property without a warrant and that there

were no exigent circumstances to support Officer Estrada’s pursuit of Shelton.

We disagree.

      A warrantless entry onto private premises is presumptively unreasonable.

Kentucky v. King, 563 U.S. 452, 459 (2011). The Supreme Court recognizes,


      3
        This observation, while never enough, standing alone, to establish
reasonable suspicion, still weighs in favor of reasonable suspicion. Illinois v.
Wardlow, 528 U.S. 119, 124 (2000).

                                         -7-
however, that if probable cause for an arrest exists, then “several exigencies

. . . may justify a warrantless search of a home.” Id. at 460. For example,

“officers may enter premises without a warrant when they are in hot pursuit of a

fleeing suspect.” Id. “Hot pursuit” occurs when an officer is in “immediate or

continuous pursuit” of a suspect from the scene of a crime. United States v.

Santana, 427 U.S. 38, 42–43 (1976); see also United States v. Jackson, 139 F.

App’x 83, 86 (10th Cir. 2005). A police officer has probable cause for arrest

when there are “facts and circumstances sufficient to warrant a prudent man in

believing that the suspect had committed or was committing an offense.”

Gerstein v. Pugh, 420 U.S. 103, 111 (1975).

      Applying these principles, we hold Officer Estrada’s reasonable suspicion

ripened into probable cause when Shelton attempted to flee, thus giving rise to the

exigent circumstances necessary for Officer Estrada to pursue Shelton onto the

property without a warrant. In United States v. Charles, 576 F.3d 1060 (10th Cir.

2009), the court held that police officers’ reasonable suspicion ripened into “more

than sufficient probable cause” when the defendant, who the officers already

reasonably suspected of a crime, ran away from the officers. Id. at 1065; see also

Illinois v. Wardlow, 528 U.S. at 124 (“Headlong flight—wherever it occurs—is

the consummate act of evasion: It is not necessarily indicative of wrongdoing, but

it is certainly suggestive of such.”). Similarly, Officer Estrada’s reasonable


                                         -8-
suspicion ripened into probable cause when Shelton ignored his commands and

ran into the backyard. It was therefore permissible under the circumstances for

Officer Estrada to pursue Shelton onto private property. 4 See Kentucky v. King,

563 U.S. at 460 (“[O]fficers may enter premises without a warrant when they are

in hot pursuit of a fleeing suspect.”).

      Shelton argues, however, that there were no exigent circumstances because

Shelton’s choice not to comply with Officer Estrada’s order to “come here,” was

within Shelton’s constitutional rights. He bases this argument on the principle

that an individual has “the constitutional right to walk away from a law

enforcement officer who lacks probable cause or reasonable suspicion to detain

or seize him or her.” Romero v. Story, 672 F.3d 880, 889 (10th Cir. 2012)

(emphasis added). As discussed above, however, Officer Estrada already had

reasonable suspicion in the first instance. 5 We therefore reject this argument.

      4
        It was later established at the hearing on the motion to suppress that
Shelton in fact lived at the address where Officer Estrada first encountered him.
This fact, however, has no bearing on our analysis. There is no evidence Officer
Estrada knew that Shelton was in front of his own home when he encountered
what he reasonably suspected was a car burglary in progress, nor did Shelton ever
communicate that fact to Officer Estrada, even after he was arrested for battery
and evading arrest.
      5
         The prior existence of reasonable suspicion also distinguishes this case
from United States v. Davis, 94 F.3d 1465 (10th Cir. 1996), on which Shelton also
relies. In Davis, officers observed a known felon exit his vehicle, make eye
contact with them, then look away and walk toward an establishment known for
illegal activity. Id. at 1468. The court held this combination of factors did not
                                                                       (continued...)

                                          -9-
      C.       Impoundment and Validity of Search Warrant

      Finally, Shelton argues the first search warrant of the car was not supported

by probable cause and the initial impoundment of the vehicle violated the Fourth

Amendment. We reject these arguments.

      Where a warrant is obtained, a reviewing court determines the sufficiency

of the warrant by examining the affidavit supporting it. See United States v.

Cooper, 654 F.3d 1104, 1124 (10th Cir. 2011). The court determines the

sufficiency of the affidavit “by looking at the totality of the circumstances and

simply ensuring that the magistrate had a substantial basis for concluding that

probable cause existed.” Id. Probable cause exists when “there is a fair

probability that the contraband or evidence of a crime will be found in a particular

place.” Illinois v. Gates, 462 U.S. 213, 238–39 (1983). The “affidavit supporting

the search warrant need not contain direct evidence or personal knowledge that

the items sought are located at the place to be searched.” United States v. Nolan,

199 F.3d 1180, 1183 (10th Cir. 1999). Instead, the magistrate judge may draw

reasonable inferences from the information in the affidavit supporting the

warrant. Id.




(...continued)
give rise to reasonable suspicion. Here, however, Officer Estrada already had
reasonable suspicion before Shelton fled.

                                        -10-
         Officer Estrada’s affidavit demonstrates the magistrate judge had a

“substantial basis” for concluding probable cause existed. Officer Estrada had

reasonable suspicion to believe a car burglary was in progress, which ripened into

probable cause when the suspects walked away and then broke into a run. Given

that the suspects were inside the car when Officer Estrada pulled up to the

driveway, he reasonably suspected that evidence of a burglary or attempted

burglary (e.g., gloves, flashlights, or entry tools) might be found in the car. In

addition, a passenger in the car attempted to flee and when apprehended by

another officer was found to have an uncapped syringe in his possession. While

the simple act of carrying a syringe may be completely legal, neither the officer

nor the court need “rule out the possibility of innocent conduct.” Arvizu, 534

U.S. at 277. These facts, as set forth in Officer Estrada’s affidavit, sufficiently

demonstrate there was a fair probability the vehicle would contain evidence of a

crime.

         Finally, Shelton argues that Officer Estrada’s impoundment of the car

violated the Fourth Amendment. See United States v. Sanders, 796 F.3d 1241,

1248 (10th Cir. 2015). When, however, the police have probable cause to believe

a vehicle contains contraband or evidence of criminal activity, the police may

seize it without a warrant and hold it for “whatever period is necessary to obtain a

warrant for the search.” Chambers v. Maroney, 399 U.S. 42, 51–52 (1970). The


                                          -11-
Chambers court explained: “[W]e see no difference between on the one hand

seizing and holding a car before presenting the probable cause issue to a

magistrate and on the other hand carrying out an immediate search without a

warrant. Given probable cause to search, either course is reasonable under the

Fourth Amendment.” Id. It is true that Shelton was a permissive user of the

impounded car. Significantly, however, Shelton never told Officer Estrada on the

night of the encounter that he had the right to use the car. Officer Estrada only

learned that fact after he tracked down the owner of the car several days later.

      In sum, we reject Shelton’s arguments regarding the search of the vehicle.

Officer Estrada had probable cause for the impoundment, which in turn supported

the subsequent warrant and search.

                                III. Conclusion

      For the foregoing reasons, we hold the district court correctly denied

Shelton’s motion to suppress. Shelton’s Fourth Amendment rights were not

violated, and we therefore AFFIRM the district court.

                                                Entered for the Court

                                                Timothy M. Tymkovich
                                                Chief Judge




                                         -12-
