                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             OCT 27 2004
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                         No. 03-6181
                                                         (W.D. Oklahoma)
 WINFORD LAMONT HENLEY,                              (D.Ct. No. 02-CR-199-M)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before O’BRIEN, Circuit Judge, HOLLOWAY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.



      Winford Lamont Henley appeals the district court’s denial of his motion to

suppress. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                     I. Background

      On September 10, 2002, at approximately 10:33 p.m., Oklahoma City

Police Officer Dan Dominguez and a recruit officer responded to a disturbance



      *
          This order and judgment is not binding precedent except under the doctrines of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.
call from the alleged victim’s home on 11th Street in Oklahoma City, Oklahoma.

The alleged victim, Danyelle Steele, informed them that she had been visiting a

friend down the street when two females, Danesha Dejear and Neni Turner,

attacked her. While the officers were taking Steele’s statement, she pointed to a

yellow Pontiac Grand Prix pulling out of the driveway where the assault had

occurred and stated the individuals who had assaulted her were in the vehicle.

After Steele’s reassurances that the people in the vehicle were her assaulters,

Dominguez followed the vehicle in his patrol car. Shortly thereafter, the vehicle

pulled into a driveway on 12th Street. Officer Dominguez pulled in behind the

vehicle and turned on his overhead equipment and spotlight.

      Upon stopping, Officer Dominguez observed the male passenger step from

the front passenger seat of the vehicle, look back at him, and run up the driveway

and back behind nearby houses. Dominguez approached the driver of the vehicle,

who identified herself as Dejear. He observed the butt of an SKS assault rifle,

partially wrapped in a pink bed sheet, sticking up from the passenger side

floorboard. He also discovered an empty pistol box on the front seat. 1 Fearing

that the fleeing passenger might have the missing pistol, Dominguez broadcast a




      1
        This box was never recovered or booked into evidence. Dominguez testified at
the suppression hearing that this error was an oversight on his part.

                                         -2-
description of him to the other officers in the area. 2 Based on his own

observations, Dominguez described the passenger as a black male, stocky, large

build, and wearing a black shirt, black pants, and black sneakers. He also warned

that the individual was possibly armed.

      While other officers were blanketing the area looking for the male

passenger, Dominguez continued to question Dejear. While doing so, Dominguez

heard over the radio that an officer had been in a foot chase with an individual

matching the description of the male passenger but had lost him. He also learned

that shortly after the foot chase, another officer had been flagged down by a

citizen who reported that a man dressed in black had attempted to get into his

vehicle. The citizen informed the officer that the man had entered a house on

13th Street. The owner of the home, although initially uncooperative, informed

the officers he had seen a man wearing black clothes running eastbound through

his yard.

      Thereafter, Officer Gilbert Chapa arrived in the area. Dominguez asked

him to go to Steele’s house and finish interviewing her. While Chapa was

speaking with Steele in his patrol car, he noticed 5-10 people congregated in the




      The broadcast occurred at approximately 10:55 p.m., twenty minutes after
      2

Dominguez first arrived at Steele’s residence.

                                          -3-
front yard of the residence where the alleged assault had occurred. 3 He then

observed a yellow taxi cab drive by, stop in front of the same residence, and an

individual get into the cab. Although Chapa could not determine whether the

individual was a male or female, he radioed other officers to stop the cab.

      Immediately thereafter, Lieutenant Elizabeth Lewis stopped the taxicab and

approached the passenger (Henley) seated in the back seat. She noticed he was a

black male who was sweating profusely and breathing heavily. He was wearing

black pants and black shoes. Although Henley was wearing a white shirt, it was

unbuttoned and dry. When Lieutenant Lewis asked Henley for identification, he

replied he left it at home. Henley then made a quick movement towards the

opposite door. He was removed from the cab and handcuffed. A pat-down search

revealed ammunition in his pants pocket, which later was identified as matching

the ammunition discovered in the rifle recovered from Dejear’s vehicle. During

the search of the cab, a dark navy blue pullover shirt was found stuffed under the

driver’s seat; the shirt was wadded up and soaked with sweat. Officers

transported Henley to Officer Dominguez’s location. 4 Both Dominguez and


      3
         During this time, Officer Chapa believed that one assault suspect was in custody
and that the other suspect was still at large. He also believed the second suspect was a
male.
      4
         Henley initially identified himself to the officers as Lamont Jones and then as
Rico Williams, the same name Dejear had provided to the officers when asked who was
in her vehicle.

                                           -4-
Dejear identified Henley as the male who had fled from Dejear’s vehicle. 5 Upon

running Henley’s fingerprints, officers learned Henley had prior felony

convictions.

      Henley was interviewed on September 13 and 18 by the Oklahoma City

Police Department and the Bureau of Alcohol, Tobacco and Firearms (ATF),

respectively. During both interviews, Henley denied being in Dejear’s vehicle on

the night of his arrest but admitted to possessing the ammunition found in his

pocket.

      On November 6, 2002, Henley was indicted for being a felon in possession

of an SKS semiautomatic rifle and ammunition in violation of 18 U.S.C. §

922(g)(1). Henley filed a motion to suppress and to dismiss the indictment, which

was denied. A superseding indictment was filed on February 10, 2003, charging

Henley with being a felon in possession of ammunition, in violation of 18 U.S.C.

§ 922(g)(1). Henley entered a conditional plea, retaining the right to appeal the

denial of his motion to suppress. Henley was sentenced to 100 months

imprisonment.

                                      II. Discussion

      “In reviewing the denial of a motion to suppress, we accept the factual findings

of the district court unless they are clearly erroneous.” United States v. West, 219


      5
          Dejear subsequently denied identifying Henley as her passenger.

                                              -5-
F.3d 1171, 1176 (10th Cir. 2000). “However, we review de novo the ultimate

determination of the reasonableness of the search [or seizure] under the Fourth

Amendment.” United States v. Bustillos-Munoz, 235 F.3d 505, 511 (10th Cir. 2000).

      Henley argues the ammunition seized from his person and his subsequent

confessions must be suppressed as fruits of his unlawful seizure from the taxi cab.

He asserts his seizure was unlawful because the officers lacked any reasonable,

articulable basis for stopping the cab and seizing him; in particular, he alleges they

lacked a reasonable belief that he had committed or was about to commit any offense.

Even assuming the stop was lawful, Henley contends that because the other assault

suspect was female, he should have been allowed to leave once the officers

discovered he was a male. 6

      The district court rejected Henley’s arguments. It concluded:

      Having heard the evidence presented, the Court finds, based upon the
      totality of the circumstances, that the stop of the taxicab was lawful and
      did not violate [Henley’s] Fourth Amendment rights. Specifically, the
      Court finds the following specific facts and the rational inferences drawn
      from those facts give rise to a reasonable suspicion of criminal activity
      and justify the stop of the taxicab. First, at the time the taxicab picked
      up its passenger and was subsequently stopped, the investigation into the


      6
         The government argues Henley lacks standing to challenge the stop and search of
Dejear’s vehicle because he did not own the car or claim any interest in the rifle or
ammunition. However, Henley is not contesting the stop and search of Dejear’s vehicle;
rather, he is challenging the stop of the taxi cab, his seizure from the cab, and the
subsequent discovery of ammunition on his person. Therefore, the government’s standing
argument is inapplicable.

                                            -6-
      alleged assault was still ongoing. Second, at the time the taxicab picked
      up its passenger, only one of the two suspects had been arrested; the
      other suspect was still at large. Third, Officer Chapa was unable to
      identify whether the individual who got into the taxicab was a male or a
      female; it is rational to infer that the individual who got into the taxicab
      could be Turner, the other suspect who had not been arrested. Fourth,
      the taxicab stopped at the house where the alleged assault had occurred;
      it is reasonable to infer that the other suspect was still at that house and
      likely could be the individual who got into the taxicab. Finally, the
      taxicab arrived within thirty minutes to an hour after the alleged assault;
      based on this timing, it is reasonable to infer that the person who got into
      the taxicab might be one of the suspects.
(R. Doc. 30 at 5.) We agree with the district court that the stop of the taxicab and

Henley’s seizure was lawful.

      An officer’s investigatory stop of a person that falls short of a traditional arrest

is reasonable under the Fourth Amendment if the officer has a reasonable suspicion

supported by articulable facts that criminal activity may be afoot. United States v.

Sokolow, 490 U.S. 1, 7 (1989) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). The

detaining officer must have a “particularized and objective basis” for suspecting

wrongdoing; an inchoate suspicion or “hunch” is insufficient. United States v.

Arvizu, 534 U.S. 266, 273-74 (2002) (quotations omitted); United States v. Soto-

Cervantes, 138 F.3d 1319, 1322 (10th Cir. 1998) (quotations omitted). In

determining whether an officer had reasonable suspicion to stop an individual, a court

must look at the totality of the circumstances. Arvizu, 534 U.S. at 273. “This process

allows officers to draw on their own experience and specialized training to make

inferences from and deductions about the cumulative information available to them


                                            -7-
that might well elude an untrained person.” Id. (quotations omitted).

      Here, the totality of the circumstances clearly demonstrate that the officers had

a reasonable, articulable suspicion for stopping the taxi cab and seizing Henley.

Henley had been seen by Officer Chapa leaving the residence where the alleged

assault had occurred. Although Officer Chapa could not identify whether the

individual getting into the cab was a male or female, because the assault investigation

was still ongoing, it was reasonable for the officers to stop the taxi cab to determine

whether the individual in the taxi cab was the other assault suspect or a material

witness. Once Lieutenant Lewis stopped the cab, her seizure of Henley was also

reasonable. She noticed Henley matched the description of the passenger seen fleeing

from Dejear’s car. Although Henley was wearing a white shirt rather than a black

one, the shirt “was half on his body, half off his body, like he was in a rush to put it

on.” (R. Vol. 2, Supp. Tr. at 22.) Lieutenant Lewis also observed that although

Henley was sweating and breathing heavily, the white shirt was dry. Based on these

observations and Henley’s quick movement to the opposite door, it was reasonable for

the officers to remove Henley from the cab and detain him until identified by Officer

Dominguez and Dejear as the fleeing passenger.

      Because the officers were searching for a female suspect, Henley argues that

once it was determined he was a male, he should have been allowed to leave. This

argument ignores the fact that the officers were also looking for the passenger who


                                            -8-
fled from Dejear’s vehicle, in which an empty pistol box was found. Because Henley

matched the description of that passenger, it was reasonable for the officers to detain

him and further investigate the matter.

      Henley also complains that after Officer Dominguez stopped Dejear’s vehicle,

without sufficient cause he alerted other officers to be on the lookout for a black

male, possibly armed. Henley claims the alert was not reasonable based upon two

facts: 1) Officer Dominguez made no attempt to pursue the fleeing black male; and 2)

he did not investigate or even question Dejear regarding the missing pistol. Officer

Dominguez’s actions, however, were reasonable under the circumstances. He had a

potential assault suspect (Dejear) still in the vehicle; chasing after a fleeing passenger

was impractical. Moreover, at the time the black male passenger fled, Officer

Dominguez was unaware of the loaded firearm or empty pistol box in Dejear’s

vehicle. It was not until after discovering these items that Officer Dominguez

suspected the fleeing passenger may be armed and, consequently, a threat to the

community. Officer Dominguez could logically infer that the fleeing passenger was

armed based upon the presence of an assault rifle in the vehicle, the empty pistol box

on the seat, and his flight from the vehicle. See Illinois v. Wardlow, 528 U.S. 119,

124 (2000) (“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.”).

Whether Officer Dominquez questioned Dejear about the missing pistol is irrelevant;


                                            -9-
it was proper to alert others to possible danger. It would be unreasonable not to do

so.

      Based on the above, the district court properly denied Henley’s motion to

suppress. AFFIRMED.

                                       Entered by the Court:


                                       Terrence L. O’Brien
                                       United States Circuit Judge




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