                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        MAY 28 2002
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 01-4178
v.                                               (D.C. No. 2:00-CR-434-S)
                                                     (District of Utah)
JUSTIN JENSEN,

          Defendant - Appellant.




                              ORDER AND JUDGMENT *


Before BRISCOE, Circuit Judge, BRORBY, Senior Circuit Judge, and
MURPHY, Circuit Judge.


      Defendant-appellant Justin Jensen was indicted on a single count of

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

Jensen moved to suppress the firearm, a handgun found during a search of his

truck, on the ground that the stop of the truck was not supported by reasonable

suspicion or probable cause. The district court denied the 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       This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
concluding that the investigative stop of the truck was supported by reasonable

suspicion. Jensen thereafter entered a conditional guilty plea pursuant to Fed. R.

Crim. P. 11(a)(2), preserving his right to appeal the district court’s denial of his

suppression motion. On appeal, Jensen does not challenge the district court’s

factual findings. Instead, he simply asserts that the district court erred in

concluding that those facts amounted to reasonable suspicion of wrongdoing.

This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms the

district court.

       In the early morning of September 13, 2000, several law enforcement

officers were executing a search warrant at a known drug and gang flophouse in a

high crime neighborhood in Kearns, Utah. The owner of the home, Gary

Whitaker, had a history of drug use and distribution, as well as possession of

guns. While the officers were executing the warrant, Whitaker returned home and

was stopped as he pulled into the driveway. He was found to be in possession of

one ounce of wet methamphetamine and a semiautomatic weapon.

       During Whitaker’s arrest, officers saw two vehicles driving in tandem

approach the area. The lead vehicle, a small truck, turned onto the street where

the officers were executing the search warrant. The second vehicle also began to

turn onto the street but aborted the turn and sped away after appearing to notice

the officers in the front yard wearing conspicuously marked police attire. After


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the truck turned onto the street, it slowed to a crawl as if the driver intended to

stop at the house where the officers were executing the warrant. Deputy Sheriff

Tracy Wyant testified that when executing a warrant at a known drug flophouse,

officers anticipate that drug buyers or sellers may approach the house. For just

this reason, Wyant indicated that officers “typically have a vehicle, at least one

individual in a vehicle just like this in a scenario in order to stop cars that attempt

to come into a residence where we have done search warrants.” Accordingly, as

the truck slowed down, the officers became “concerned about officer safety,

namely if someone was going to come by and take a shot” at them. Deputy Wyant

and FBI Special Agent Juan Becerra shined their flashlights at the two men in the

truck. The driver of the truck, later identified as Jensen, appeared “very

nervous.” Jensen’s body movements became rigid and jerky and his eyes became

enlarged. Deputy Wyant described Jensen’s reaction as a “deer in the headlights”

look that was suspicious.

      Because Jensen’s behavior seemed suspicious, Deputy Wyant yelled “stop,

sheriff’s office,” and other officers yelled “stop, police.” Jensen did not comply,

but instead began to accelerate out of the area. Deputy Wyant and Agent Becerra

began running after the truck, shouting for it to stop. Jensen still did not stop the

truck; it appeared to Wyant that Jensen was “trying to get away from” or flee




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from the officers. Jensen was ultimately forced to slow down for two large dips

in the road and finally stopped the truck as officers caught up to him.

      As the truck came to a stop, Deputy Wyant approached the driver’s side and

Agent Becerra approached the passenger’s side. After briefly explaining the

reason for the stop, Wyant asked Jensen for identification and if there were any

weapons in the vehicle. In response, Jensen indicated that there was a gun

underneath his seat. Deputy Wyant asked Jensen to step out of the truck and told

him that he was not being arrested but only detained for officer safety purposes.

Jensen was placed in handcuffs and frisked for weapons. With the door of the

truck open, the handgun was clearly visible under the driver’s seat. During a

search of the truck, officers retrieved the gun, a scale, and a pipe used to smoke

methamphetamine. Jensen was subsequently charged with one count of

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

      In response to the indictment, Jensen filed a motion to suppress the gun.

Jensen’s suppression motion was referred to a magistrate judge for initial

proceedings pursuant to 28 U.S.C. § 636(b)(1)(B). After conducting evidentiary

hearings, the magistrate judge issued a report and recommendation, which

recommended that Jensen’s motion be denied. The magistrate judge found that

“Wyant was aware of the house being a drug flophouse; that [Jensen’s] truck had

slowed down to a crawl; that [Jensen] acted nervously; and that [Jensen] had tried


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to flee when initially asked to stop.” Accordingly, based on the totality of the

circumstances, the magistrate judge concluded that the investigatory stop was

supported by reasonable, articulable suspicion that Jensen was engaged in illegal

activity. Upon de novo review, the district court adopted the report and

recommendation and denied Jensen’s motion to suppress.

      Because Jensen does not challenge the district court’s findings of historical

fact, but instead only its ultimate conclusion that the stop was supported by

reasonable suspicion, our standard of review is de novo. See United States v.

Treto-Haro, 287 F.3d 1000, 1002 (10th Cir. 2002) (“We review the ultimate

determinations of reasonable suspicion to stop and probable cause to arrest de

novo.”).

      There are three distinct types of police-citizen encounters:

      The first involves the voluntary cooperation of a citizen in response
      to non-coercive questioning. The second is a Terry v. Ohio, 392 U.S.
      1 (1968) stop, involving only a brief, non-intrusive detention and
      frisk for weapons when officers have a reasonable suspicion that the
      defendant has committed a crime or is about to do so. The third
      encounter is the arrest of the defendant.

United States v. Madrid, 30 F.3d 1269, 1275 (10th Cir. 1994). Both Jensen and

the United States agree that this case involves the second type of encounter, an

investigatory detention. 1 To justify such a detention, officers “must be able to


      1
       As noted above, Jensen’s primary contention on appeal is that the district
court erred in concluding that the stop of his truck was supported by reasonable

                                         -5-
point to specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant the intrusion.” Terry, 392 U.S. at

21. The reasonableness of a stop is “judged by an objective standard taking the

totality of the circumstances and information available to the officers into

account.” United States v. Lang, 81 F.3d 955, 965 (10th Cir. 1996).

      With this legal background in mind, Jensen asserts that the facts as found

by the district court did not create reasonable suspicion of wrongdoing and that

the officers effecting his stop acted on a mere hunch. See Terry, 392 U.S. at 27

(holding that an investigatory detention must be based on something more that an

“inchoate and unparticularized suspicion or hunch” (quotation omitted)). In

particular, Jensen notes that he was not named in the search warrant that the

officers were executing and that his identity was not known to any officers when




suspicion of wrongdoing. In the alternative, however, Jensen asks this court to
“modify the law” so that “reasonable suspicion is an insufficient basis to initiate
the traffic stop of a vehicle being driven in a lawful manner at night, and that the
heightened standard of probable cause is required.” Such an approach is
foreclosed by this court’s recent decision in United States v. Callarman, wherein
we reaffirmed that “[w]hile either probable cause or reasonable suspicion is
sufficient to justify a traffic stop, only the lesser requirement of reasonable
suspicion is necessary.” 273 F.3d 1284, 1287 (10th Cir. 2001). Jensen is simply
wrong in asserting that Callarman stands for the proposition that Terry-type
traffic stops are only proper when the reasonable suspicion of wrongdoing relates
to a traffic or equipment violation. Accordingly, Jensen has not cited to a single
case supporting the propriety of his proposed “modification.” Finally, Jensen has
not advanced any convincing rationale for treating investigatory stops of vehicles
at night any differently from the myriad other types of Terry stops.

                                         -6-
they aimed their flashlights at him. Furthermore, neither he nor his passenger

engaged in any contact with anyone in the vicinity of the dwelling being searched

and did not exit the truck until it was stopped and they were ordered to exit by the

officers. Finally, Jensen attempts to minimize the relevance of his attempt to flee

after the officers requested that he stop. Jensen recognizes that the Supreme

Court has held that flight in the face of a uniformed officer creates a reasonable

suspicion of wrongdoing. See Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000).

According to Jensen, however, he simply “reasonably and sensibly slowed down

upon approaching the scene of uniformed police activity at night and briefly

voluntarily terminated the encounter in a reasonable and sensible way by speeding

up within the speed limit before deciding to stop for officers on foot.” Jensen

also argues for the first time in his reply brief that his flight is irrelevant to the

reasonable-suspicion calculus because it occurred only after the stop was

initiated.

       This court finds Jensen’s arguments unavailing. Jensen was seen

approaching a known drug and gang flophouse in a high crime neighborhood at

3:30 a.m. The Supreme Court has made clear that “the fact that [a] stop occurred

in a ‘high crime area’ [is] among the relevant contextual considerations in a Terry

analysis.” Wardlow, 528 U.S. at 124. Deputy Wyant testified that it was common

for drug buyers and sellers to approach such flophouses during the execution of a


                                            -7-
search warrant. Against this backdrop, Jensen approached the area traveling in

tandem with another car that appeared to flee immediately upon spotting the

officers. The truck then “slowed to an unusually slow crawl,” leading Wyant to

believe that the truck contained a drug buyer or seller. When the officers shined

their flashlights in the truck, Jensen became “very nervous,” displaying a “deer in

the headlights” reaction upon seeing the police presence at the house. See United

States v. Soto-Cervantes, 138 F.3d 1319, 1324 (10th Cir. 1998) (holding that

although itself not sufficient to support reasonable suspicion, nervousness is a

factor to be considered as part of the totality of circumstances). Jensen then

accelerated and fled despite requests from the officers that he stop. This behavior

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

but it is certainly suggestive of such.” Wardlow, 528 U.S. at 124. Although

Jensen tries to characterize his actions as innocent behavior, the district court

specifically found that he tried to flee. Furthermore, Jensen is wrong as a matter

of law in asserting that this court cannot consider his flight because it occurred

after he was seized, i.e., after officers requested that he stop. Jensen was not

seized until he actually complied with the officers requests to stop, a point in time

after his initial attempt to flee. See California v. Hodari D., 499 U.S. 621, 626

(1991) (“The narrow question before us is whether, with respect to a show of




                                          -8-
authority as with respect to application of physical force, a seizure occurs even

though the subject does not yield. We hold that it does not.”).

      When the totality of the circumstances are considered, it becomes clear that

the investigatory stop of Jensen’s truck was supported by reasonable suspicion of

wrongdoing. Accordingly, the order of the United States District Court for the

District of Utah denying Jensen’s suppression motion is hereby AFFIRMED.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




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