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

                       FOR THE TENTH CIRCUIT                      December 15, 2015
                       _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                   No. 15-4013
                                           (D.C. No. 2:14-CR-00021-CW-1)
MARC DANE RADDON,                                     (D. Utah)

       Defendant-Appellant.
                     _________________________________

                        ORDER AND JUDGMENT *
                        _________________________________

Before BRISCOE, McKAY, and BACHARACH, Circuit Judges.
                  _________________________________

      This appeal involves the denial of a motion to suppress. The motion

grew out of Mr. Marc Raddon’s objection to a late-night search of his

rental car. At the time, Mr. Raddon and another individual were parked in

an unlit section of a gas station’s parking lot. Suspicious of criminality,

two police officers questioned Mr. Raddon and his companion and

eventually searched the car. During the search, the police officers found

guns and ammunition, which ultimately led to Mr. Raddon’s conviction for

possession of a firearm and ammunition after a felony conviction.


*
      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
      Mr. Raddon appealed, arguing that the police conducted an

investigative detention without reasonable suspicion of criminal activity.

The district court rejected the argument on the ground that the encounter

involved consent rather than an investigative detention. The government

argues that this characterization was correct, adding in the alternative that

the police reasonably suspected criminal activity even if the encounter

involved an investigative detention. In deciding this appeal, we rely solely

on the government’s alternative argument, concluding that the police had

reasonable grounds for suspicion. As a result, we affirm the denial of Mr.

Raddon’s motion to suppress.

      Police encounters can take three forms:

      1.    consensual encounters

      2.    investigative detentions

      3.    arrests

United States v. Shareef, 100 F.3d 1491, 1500 (10th Cir. 1996). The parties

apparently agree that the police did not arrest Mr. Raddon until after they

had searched his rental car. But the parties disagree on whether the initial

encounter was consensual. The government argues that the encounter was

consensual; Mr. Raddon characterizes the encounter as an investigative

detention. We need not decide who is correct.

      Even if the initial encounter constituted an investigative detention,

the government defends the ruling based on reasonable grounds to suspect

                                       2
criminality. If the government is correct, the search would have been

permissible even if the encounter involved an investigative detention. See

United States v. King, 990 F.2d 1552, 1557 (10th Cir. 1993). The

suspicion would have been reasonable if the totality of circumstances

created a particularized, objective basis for an investigative detention.

Poolaw v. Marcantel, 565 F.3d 721, 736 (10th Cir. 2009).

      The district court conducted an evidentiary hearing and found eight

facts (among others):

      1.    Mr. Raddon was parked in a high-crime area.

      2.    The search took place between approximately 11:00 and 11:30
            p.m.

      3.    Mr. Raddon left one gas station and drove to a nearby gas
            station.

      4.    Mr. Raddon parked in a dark area of the parking lot even
            though other spaces were lit.

      5.    Mr. Raddon sat in his rental car for approximately ten minutes.

      6.    Mr. Raddon flashed his headlights for a moment, just as an
            unmarked police car drove by.

      7.    Mr. Raddon’s headlights prevented the police officer in the
            unmarked car from (a) observing what was going on in Mr.
            Raddon’s rental car and (b) getting his license tag number.

      8.    The gas station (where Mr. Raddon was parked) was closed,
            and the only person inside was a clerk.

R. vol. 2, at 132, 134. Based on these findings, the police officers’

suspicion was reasonable. Id. at 131.


                                        3
      Mr. Raddon does not challenge any of the district court’s factual

findings. Instead, he argues that the suspicion was unreasonable. In

reviewing that conclusion, we consider not only the court’s findings but

also the government’s evidence on matters going beyond the factual

findings. See United States v. Conner, 699 F.3d 1225, 1231 (10th Cir.

2012) (relying in part on evidence, for reasonable suspicion, even though

the district court had not relied on that evidence). This evidence included

testimony that

              Mr. Raddon had backed into a parking spot, permitting him to
               leave by driving forward rather than backing out and

              only one other car was in the parking lot.

R. vol. 2, at 22, 43.

      Together, the findings and evidence create reasonable suspicion of

criminality:

              Why else would Mr. Raddon go from one gas station to another
               gas station’s parking lot, shortly before midnight, 1 and sit in
               his car for ten minutes?

              Why else would he choose to park in a dark section of a
               parking lot in a high-crime area? 2



1
      See United States v. McHugh, 639 F.3d 1250, 1257 (10th Cir. 2011)
(“We have . . . held that the fact that an incident occurred late at night or
early in the morning is relevant to the . . . analysis [of reasonable
suspicion].”).
2
     The Court can consider the fact that the investigative detention
occurred in a high-crime area. McHugh, 639 F.3d at 1257.
                                         4
           Why else would he back into the parking spot, allowing a quick
            departure, when only one other car was in the lot?

      In determining whether the findings and evidence created reasonable

suspicion, we “accord deference to [the police officers’] ability to

distinguish between innocent and suspicious actions.” United States v.

Simpson, 609 F.3d 1140, 1146-47 (10th Cir. 2010). Both police officers

testified that they had regarded the circumstances as suspicious.

      For example, one of the officers explained that it was suspicious for

someone to flash his headlights, turn them off immediately, and remain

parked in a dark section of a parking light in a high-crime area:

             The most peculiar circumstance I noticed was the
      headlight issue where knowing that the vehicle, based on
      Officer Stone’s observation, had been to one convenience store,
      left and driven to another one, and when I initially turned onto
      the 8590 West that the headlights came on on the vehicle, I
      initially assumed the vehicle was going to pull out of the
      parking stall. But after I passed the vehicle, for the headlights
      to turn back off and the vehicle to stay parked there and with
      still nobody exiting the vehicle, yes, I believe that to be
      suspicious, especially in that area parked in that parking lot.

R. vol. 2, at 102.

      The other police officer added that he had found it suspicious for the

driver to park behind the building, out of view, in a manner in which he

could exit quickly even though it was late at night:

      So they pulled into this gas station known as the Fastrac, and
      they pulled behind and parked in a – basically there’s a few
      stalls that are behind the building. They’re pretty much out of
      view, it’s darker back there. They parked and they parked
      where they could exit onto the roadway with ease. There was
                                      5
      no obstruction, so it was a straight shot out. And that didn’t
      seem like normal business, especially at that time of night.
      There was nobody else there except one car which belongs to
      the clerk that was running the place.

Id. at 22.

      The officer added that the travel from one gas station to another

suggested that the occupants could be under-age youngsters trying to buy

beer or individuals preparing to rob the clerk:

            And so, you know, that kind of, you know, just added to
      my, okay, what are these guys doing now? You know, I’m not
      sure whether they were, you know, younger guys and they were
      trying to buy some alcohol at Chevron and they got denied, so
      now they went down to the other place and they were going to
      try and buy or, you know, were they going to try and do a beer
      run on the place or were they going to try to rob the place? I
      just wasn’t sure.

Id.

      Mr. Raddon questions the officers’ concerns, arguing that the

findings and evidence could just as easily suggest innocent behavior. For

example, Mr. Raddon says he might have been reading a map or taking a

rest. Even if these possibilities were plausible, they would not preclude

reasonable suspicion. See United States v. Pettit, 785 F.3d 1374, 1381

(10th Cir. 2015) (“[T]he existence of a plausible innocent explanation does

not preclude a finding of reasonable suspicion.”).

      But the police could reasonably consider these possibilities as

implausible. For example, the police officers might have wondered how

Mr. Raddon could read a map, while parked in a dark section of the

                                      6
parking lot, without using his interior lights. Or the police might have

wondered why Mr. Raddon would have left the first gas station if he just

wanted to rest. Even defense counsel acknowledged the peculiarity of Mr.

Raddon’s driving from one gas station to another. See R. vol. 2, at 120

(statement by defense counsel that Mr. Raddon’s “driving pattern” was “a

little weird”); Appellant’s Opening Br. at 19 (statement by defense counsel

that Mr. Raddon engaged in an “unusual” driving pattern, “going from one

gas station to another very close by”). And why would Mr. Raddon flash

his headlights if he was simply resting? The police might consider the

flashing headlights as a signal for another individual to engage in a drug

deal or to assemble for a robbery. But it is difficult to see how the flashing

of headlights in a deserted parking lot would be consistent with Mr.

Raddon’s desire to rest.

      Mr. Raddon argues that the police must not have thought that their

suspicions were reasonably grounded, for (1) they intended to arrange a

consensual encounter rather than an investigative detention and (2) one

officer allegedly lied to the other about Mr. Raddon’s conduct. But Mr.

Raddon acknowledges that the police officers’ “subjective thoughts and

intent” do not bear on the issue of reasonable suspicion. Appellant’s

Opening Br. at 23 (quoting United States v. Whitley, 680 F.3d 1227, 1234

(10th Cir. 2012)).



                                      7
     In our view, the police could reasonably suspect criminality from Mr.

Raddon’s peculiar actions. As a result, we uphold the denial of the motion

to suppress based on the government’s alternative argument for affirmance.


                                  Entered for the Court



                                  Robert E. Bacharach
                                  Circuit Judge




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