                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   March 23, 2012
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 11-4102
 v.                                            (D.C. No. 2:10-CR-00007-DB-1)
                                                          (D. Utah)
 JOSEPH PAUL HOUSE,

          Defendant-Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and EBEL, Circuit Judges.


      Defendant-Appellant Joseph Paul House entered a conditional plea of guilty

to one count of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1),

and was sentenced to thirty-nine months’ imprisonment and three years’

supervised release. On appeal, he argues that the district court erred by denying

his motion to suppress because (1) the initial encounter with the arresting officer

was not a consensual encounter, and (2) even if it was, the officer’s subsequent

frisk was not based upon reasonable suspicion. While we cannot agree with the



      *
        This order and judgment is not binding precedent, except under the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.
first point, the second is well-taken and we reverse.



                                    Background

      At 12:30 in the afternoon on November 20, 2009, Officer Aaron Daley had

just finished investigating a “suspicious activity” call from a woman who heard

noises coming from her basement. The woman claimed that her dog alerted

toward the basement and ran downstairs; the women fled until police arrived.

United States v. House, No. 2:10-CR-007, 2010 WL 4103548 (D. Utah Oct. 18,

2010); Aplee. Br. 2. Upon investigation, there was no evidence of a forced entry

and nothing was missing from the house. House, 2010 WL 4103548, at *1. The

officer did notice a “doggy door” that was large enough for a human to gain

access; however, no one gained entry that way. As the officer was walking to his

car, after spending nearly fifteen minutes in the house, 1 R. 39, he noticed Mr.

House—the only pedestrian in the area—walking eastbound on the sidewalk in

the direction of the woman’s house. Id., 2010 WL 4103548, at *1.

      Another patrol car approached the intersection where Mr. House was

standing, and Mr. House did an “immediate turnaround,” walking in the opposite

direction. Id. The officer got into his car, turned around, and approached Mr.

House at another intersection. The officer thought that Mr. House avoided

making eye contact. Id. The officer then parked his car and approached Mr.

House from the rear. Id. Mr. House was holding a cell phone to his ear with his

                                        -2-
right hand and his left hand was in the pocket of his “puffy” coat. Id., 2010 WL

4103548, at *2. From ten to twelve feet away, the officer asked, “hey, can I talk

to you, hey, can I ask you a few questions?” Id. Mr. House continued to walk

and talk on his cell phone, so the officer repeated his request and Mr. House

ended his call and turned around to face him. Id. The encounter took place on

the sidewalk, with just the officer and Mr. House. Id.

      Mr. House finally turned around, holding his cell phone in his right hand,

and kept his left hand in his coat pocket. Id. The officer noticed what appeared

to be a bulge in Mr. House’s left coat pocket “that was making it larger than just

what an arm or hand would make a coat stick out.” 1 R. 49. When questioned,

Mr. House replied “no” as to whether he had any weapons on his person, 1 R. 49,

but the officer simultaneously noticed the end of a black folding knife protruding

from his right coat pocket, 2010 WL 4103548, at *2. The officer recognized it as

a knife similar to the type that he carried on duty. Id. He instructed Mr. House to

place his hands behind his back, and the officer removed the knife from Mr.

House’s pocket. Id. After securing the knife, the officer stated he conducted a

“Terry frisk” of Mr. House in “highly probable [areas] for weapons” and felt the

butt of a gun near where the bulge was on Mr. House’s left side. Id.; 1 R. 30, 31,

51. A backup officer arrived at this point, and the arresting officer retrieved a

gun from Mr. House’s left waistband. Id., 2010 WL 4103548, at *3. The serial

number on the gun had been obliterated and was filed down. Id. The district

                                         -3-
court denied the motion to suppress on the basis that the initial encounter between

Mr. House and the officer was consensual, and that the Terry frisk was justified

by officer safety concerns. Id., 2010 WL 4103548, at *5-6. The district court

reasoned that although no intruder had been found in the woman’s home, Mr.

House was the only person the officer had seen, Mr. House had apparently

changed direction after seeing a marked patrol car, something other than Mr.

House’s hand may have been in his jacket pocket, and, most significantly, Mr.

House had replied that he had no weapons when he had a knife in his pocket. Id.



                                     Discussion

      When reviewing a denial of a motion to suppress, we “view the evidence in

the light most favorable to the government, accept the district court’s findings of

fact unless clearly erroneous, and review de novo the ultimate determination of

reasonableness under the Fourth Amendment.” United States v. Katoa, 379 F.3d

1203, 1205 (10th Cir. 2004).

A.    Was the Initial Encounter Between House and the Officer Consensual?

      We review de novo “the relevant circumstances to determine whether an

interaction between an individual and a law enforcement officer is a consensual

encounter that does not implicate the Fourth Amendment.” United States v.

Abdenbi, 361 F.3d 1282, 1291 (10th Cir. 2004). We have developed three

categories of police-citizen encounters. United States v. Madrid, 30 F.3d 1269,

                                        -4-
1275 (10th Cir. 1994). The first “involves the voluntary cooperation of a citizen

in response to non-coercive questioning.” Id. The second is a Terry 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.” Madrid, 30 F.3d at 1275. The third is an arrest. Id. In that

case, this court explained:

             [I]n order to determine whether a particular encounter constitutes
      a seizure, a court must consider all the circumstances surrounding the
      encounter to determine whether the police conduct would have
      communicated to a reasonable person that the person was not free to
      decline the officers’ requests or otherwise terminate the encounter.

Id. at 1276 (alteration in original) (quoting United States v. Little, 18 F.3d 1499,

1503 (10th Cir. 1994)). The inquiry is objective in nature; the subjective

perceptions of the suspect are not determinative. See id.

      Relevant circumstances used to determine whether an interaction between

an officer and an individual is consensual include:

      (1) the threatening presence of several officers; (2) the brandishing of
      a weapon by an officer; (3) physical touching by an officer; (4)
      aggressive language or tone of voice by an officer indicating
      compliance is compulsory; (5) prolonged retention of an individual’s
      personal effects; (6) a request to accompany an officer to the police
      station; (7) interaction in a small, enclosed, or non-public place; and (8)
      absence of other members of the public.

United States v. Rogers, 556 F.3d 1130, 1137-38 (10th Cir. 2009). The

determination is based on the totality of the circumstances. Id. at 1138.

      In Rogers, a police officer patrolling the halls of a hotel known for drug

                                         -5-
activity and prostitution saw the defendant, whom he knew from past encounters

as “Graveyard,” exiting a hotel suite. Id. at 1134. The officer asked the

defendant if he could speak to him, and the defendant seemed more nervous than

in past encounters. Id. The defendant backed into a suite and informed the

officer that the officer should talk to another man who was lying on a bed. At

this point, the officer noticed a bag of marijuana in plain view and arrested both

men. Id. at 1134-35. We held that the encounter was consensual because, given

the totality of the circumstances, the “[o]fficer . . . did not touch Defendant, use

aggressive language, brandish a weapon, or retain any of Defendant’s personal

effects.” Id. at 1138.

      In this case, only one officer was present for most of the interaction, which

took place on a public sidewalk in the middle of the day. The officer remained

some distance from Mr. House before the frisk, and the district court found

credible the officer’s characterization of the interaction as “an everyday

encounter.” House, 2010 WL 4103548, at *2. The district court also noted that

Mr. House testified that he felt like he was “free to leave at [the point that the

officer asked him to get off of his cell phone]” but did not do so because staying

to answer questions was “the right thing to do.” Id., 2010 WL 4103548, at *2.

Also, the officer asked Mr. House if he could talk to him or ask him a few

questions. Id. Based on the totality of the circumstances, we agree with the

district court that the officer’s interaction with Mr. House was consensual. The

                                          -6-
only factor that weighs against consent is that the interaction took place in the

absence of other members of the public, although it was on a public street, but

this is not determinative. See Rogers, 556 F.3d at 1138.

B.    Did Officer Daley Have Reasonable Articulable Suspicion to Frisk?

      In Terry, the Supreme Court stated that “where a police officer observes

unusual conduct which leads him reasonably to conclude in light of his experience

that criminal activity may be afoot and that the persons with whom he is dealing

may be armed and presently dangerous . . . he is entitled for the protection of

himself and others in the area to conduct a carefully limited search of the outer

clothing of such persons in an attempt to discover weapons which might be used

to assault him.” 392 U.S. 1, 30 (1968) (emphasis added). The government argues

that no reasonable, articulable suspicion of criminal activity is necessary when a

search is incident to a consensual stop, and there need be only a reasonable,

articulable suspicion that a person is armed and dangerous. Aplee. Br. 14-22

(citing United States v. Manjarrez, 348 F.3d 881 (10th Cir. 2003)) 1. Though we

      1
         Manjarrez does not, in fact, stand for the proposition that reasonable
articulable suspicion of criminal activity is unnecessary before conducting a Terry
frisk. The encounter in Manjarrez began as a traffic stop based upon reasonable
suspicion, a brief detention took place thereafter, and the defendant was
subsequently free to leave. 348 F.3d at 884. The defendant then consented to
additional questions and a search of the vehicle. Id. Prior to the search, a brief
pat down occurred which yielded nothing. The court determined that the pat
down was lawful based upon the prior consent to search the car, but the legality
of the pat down was probably irrelevant because the contraband in the car was
discovered based upon the prior consent to search. In other words, the pat down
did not vitiate the prior consent to search the car.

                                         -7-
doubt Manjarrez goes this far, we are willing to assume (without deciding) for

purposes of this case that an officer may frisk a person pursuant to a consensual

encounter when they have only a reasonable articulable suspicion that a person is

armed and presently dangerous without any suspicion of criminal activity. At any

rate, based upon the totality of the circumstances, Officer Daley lacked the

reasonable, articulable suspicion that Mr. House was presently dangerous

required to justify a protective frisk, rendering the frisk unlawful.

      We have considered a variety of unlawful activities supportive of a

reasonable, articulable suspicion that a person is armed and dangerous. Drug

trafficking comes to mind, see United States v. Garcia, 459 F.3d 1059, 1064-66

(10th Cir. 2006), as does involvement in gang activity or prostitution, id. at 1066-

67. While one suspicious factor may not be sufficient, such as presence in a high

crime area or unwillingness to speak to an officer, the existence of several factors

may tip the scales toward a reasonable suspicion to search. See Maddox, 388

F.3d 1356, 1366-67 (10th Cir. 2004).

      In United States v. Harris, 313 F.3d 1228 (10th Cir. 2002), we considered

nervous and evasive behavior as a ground for reasonable suspicion that a person

is armed and dangerous. In Harris, an officer approached the defendant on the

street and asked for identification after a tipster called and claimed that two men

in dark clothing were smoking narcotics in a Dairy Queen parking lot. Id. at

1231. The defendant and his companion fit the informant’s description, smelled

                                         -8-
of marijuana, and refused to comply after the officer repeatedly asked them to

show identification, and the defendant appeared nervous with his hands in his

pockets. Id. at 1231-32. The officer asked the defendant to remove his hands

from his pockets, and when he refused to do so, the officer approached him,

removed his hands from his pockets, escorted him to the police car, and frisked

him. Id. at 1232. The defendant argued, among other things, that the officer did

not have a reasonable articulable suspicion that he was armed and dangerous. Id.

at 1236. While the defendant’s nervousness alone was not enough to justify the

frisk, the court emphasized that the defendant refused to take his hands out of his

pockets when asked, giving the officer a reasonable justification for believing that

he was armed and dangerous. Id.

      This court also found reasonable articulable suspicion that a suspect was

armed and dangerous when an officer pulled over a car for a lawful traffic stop at

2:30 am in a high crime area, a backseat passenger gave the officer a false

identity, and a background check on one of the passengers revealed that he had a

lengthy criminal history of violent crime and was “known to be armed and

dangerous.” United States v. Rice, 483 F.3d 1079, 1084-85 (10th Cir. 2007).

Similarly, in Garcia, this court held that a pat down search was legal pursuant to a

lawful search of an apartment for drugs because “an individual’s involvement

with drug transactions or distribution can support reasonable suspicion to frisk

that individual for weapons.” 459 F.3d at 1064. Furthermore, at least one of the

                                        -9-
apartment’s known renters was a known member of a violent street gang. Id. at

1066-67.

      In a recent Fourth Circuit case, however, the court held that a pat down

search of a passenger pursuant to a lawful traffic stop at night was unlawful when

based only on “caution data” that the passenger had a prior criminal history

involving armed robbery and his misrepresentation that his driver’s license was

valid. United States v. Powell, 666 F.3d 180, 185-188 (4th Cir. 2011). The court

noted that “[w]ithout more, the caution data certainly does not justify a

reasonable suspicion that [the passenger] was armed and dangerous . . . .” Id. at

188. Furthermore, the court held that a false statement to an officer, without

more, typically will be insufficient to conclude that a suspect is armed and

dangerous. Id. at 188-189.

      As the Sixth Circuit noted in United States v. Johnson,“before an officer

effectuates a limited frisk for weapons . . . the officer must have a reasonable

belief that the suspect is both (1) armed, and (2) dangerous.” 246 F. App’x 982,

988 (6th Cir. 2007) (unpublished). We consider each requirement to determine if

the frisk of Mr. House was lawful.

      Here, a reasonable officer could conclude that Mr. House was armed.

Officer Daley observed a folded knife in Mr. House’s pocket and a bulge under

his jacket. 1 R. 49. But there was no indication that he was presently dangerous

to Officer Daley or other citizens. Being armed does not ineluctably equate with

                                        - 10 -
dangerousness. Nothing suggests Mr. House was involved in drug activity, gang

activity, or any other crime. In fact, the officer testified at the suppression

hearing that Mr. House’s turning around at the sight of police and the prior call

where no evidence of an intruder was found were all that “raised [his] level of

concern.” 1 R. 56. When the officer asked if Mr. House had a weapon, and Mr.

House said “no,” the officer testified that he saw what appeared to be a bulge

under Mr. House’s jacket pocket and a folded knife sticking out of his jacket

pocket. 1 R. 49. The blade of the knife was not exposed. Id. Suspecting that

Mr. House was lying, the officer approached him, removed the knife from his

pocket, and continued to frisk him in the areas that he believed were “high

probable areas for weapons.” 1 R. 51. Nothing in the record indicates that the

officer ever asked Mr. House to remove his hand from his pocket, like in Harris,

313 F.3d at 1232; 1 R. 29, 48-49, and Mr. House was fully compliant, 1 R. 28

(“He turned around, and it didn’t appear to me that he wanted to talk to me, but

he was compliant.”). “[I]f a policeman sees a suspicious bulge which possibly

could be a gun in the pocket of a pedestrian who is not engaged in any suspicious

conduct, the officer may not approach him and conduct a frisk. And this is so

even though the bulge would support a frisk had there been a prior lawful stop.”

W AYNE R. L A F AVE , 4 S EARCH AND S EIZURE § 9.6(a) (2004).

      In fact, when the officer first saw Mr. House, he was walking toward the

residence in question some fifteen minutes after the police first arrived there to

                                         - 11 -
investigate. 1 R. 39. Also, Mr. House did not engage in “headlong flight,” like in

Illinois v. Wardlow, 528 U.S. 119, 124 (2000), but merely turned around and

walked in the opposite direction when he saw police. Though the officer did spot

a knife in Mr. House’s pocket after asking him if he had a weapon, the knife was

folded and the blade was not exposed. 1 R. 49. The government argues that

Terry allows a frisk when “an officer is justified in believing that the individual

whose suspicious behavior he is investigating at close range is armed and

presently dangerous to the officer or others . . . .” Aplee. Br. 16 (quoting

Terry, 392 U.S. at 24) (emphasis added). A folded knife in a person’s pocket

hardly poses a danger to an armed officer standing six to eight feet away. 1 R.

29; 2 R. 90. Similarly, nothing in our caselaw suggests that Mr. House’s answer

that he did not have a weapon, though he carried a folding knife, warranted an

immediate protective frisk. 2 1 R. 51.


      2
         The officer’s testimony suggests that he immediately frisked Mr. House
after he saw the knife and Mr. House responded that he did not have any weapons
on him:

      Q: “And so at that point, after you had asked him if he had weapons and he
      said no, you put his hands behind his back once you saw the tip of the
      knife, right?”
      A: “Yes.”
      Q: “And you pulled the knife out of the pocket?”
      A: “Yes, I did.”
      Q: “Then you continued to frisk at that point the rest of his body?”
      A: “Just the areas that I believed are the high probable areas for weapons.”

1 R. 51.

                                         - 12 -
      It is likely that many law-abiding citizens would not consider themselves

armed with a weapon, while carrying a folded pocket knife, when approached on

the street and questioned unexpectedly by an officer. To allow a search based on

the hunch that a citizen walking down the street is illegally carrying a firearm,

without more, serves to erode the precious protections of the Second and Fourth

Amendments. See Terry, 392 U.S. at 22 (“[I]ntrusions upon constitutionally

guaranteed rights based on nothing more substantial than inarticulate hunches

[are] a result this Court has consistently refused to sanction.”).

      An officer is free to initiate a consensual encounter without any articulable

suspicion. Such an encounter may develop previously unconfirmed suspicions of

criminal behavior and/or result in genuine concerns for officer safety. United

States v. Jones, 606 F.3d 964, 968 (8th Cir. 2010). The difficulty in this case is

that the consensual encounter did neither; in the absence of which, the evidence

must be suppressed as violative of the Fourth Amendment.

C.    The Dissent

      The dissent is simply incorrect when it states that Mr. House was “in the

vicinity of a potential home break in.” At most, the officer was responding to a

suspicious noise call which he then investigated and found no evidence of any

crime, let alone a break-in. Mr. House was walking toward the residence more

than fifteen minutes after the call to police, and then turned away at the sight of

law enforcement. Although the dissent posits that a person who is armed and

                                         - 13 -
detained is usually dangerous relying upon Pennsylvania v. Mimms, 434 U.S. 106

(1977), where the defendant was lawfully stopped for expired license plates, here

Mr. House was free to leave, having engaged in a purely consensual encounter.

      The dissent suggests that we dismiss the danger posed by knives, miss the

significance of Mr. House’s answer that he had no weapons, require an officer to

consider whether a folded knife is a weapon, focus too heavily on the knife, and

ignore the threat of the firearm. It contends that this case is controlled by Ryburn

v. Huff, 132 S. Ct. 987 (2012), where the Supreme Court reversed a denial of

qualified immunity to officers entering a home without a warrant. The Court held

that the officers could have an objectively reasonable basis for concluding that an

imminent threat of violence existed where officers believed that a student had

threatened a school shooting and the student’s mother ran into the house, refusing

to answer whether there were any guns in the house. Id. at 991-92.

      This case differs markedly. We have considered the totality of the

circumstances. No one disagrees that a knife can be dangerous, but context

matters. Here, the folded knife was observed from several feet away. The officer

removed the knife prior to the challenged protective frisk. Given the facts found

by the district court, the officer could conclude that Mr. House was armed,

despite his denial. But the facts fall far short of any danger, let alone imminent

danger. By the officer’s own admission, Mr. House was cooperative.

      In short, the dissent simply comes too close to equating being armed with

                                        - 14 -
being dangerous regardless of the circumstances. The examples relied upon by

the dissent as illustrating circumstances where an armed person might not be

considered dangerous—where law enforcement is aware that a citizen is a retired

policeman or cooperative with a license to carry a gun—portend too little Fourth

Amendment protection for the average citizen and elide the distinction between

armed and dangerous.

      REVERSED.

                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




                                      - 15 -
BALDOCK, Circuit Judge, dissenting.

      According to the district court, Officer Daley was called to investigate a

report that a woman “heard a noise and believed someone may have been in her

basement.” After concluding a fruitless fifteen-minute investigation of the house,

Officer Daley saw Defendant walking toward the house. Daley had seen no one

else in the vicinity. Daley then observed Defendant make an abrupt about-face

upon seeing a police car drive past. His suspicions aroused, Officer Daley

initiated an on-foot consensual encounter with Defendant. When eight to ten feet

away from Defendant, Daley observed an exposed folding knife in Defendant’s

right coat pocket. He also saw Defendant’s left hand resting on a large bulge in

his left coat pocket. When Officer Daley asked Defendant if he had any weapons,

Defendant said “no,” despite the visible knife in his pocket. Officer Daley then

frisked Defendant and found, in addition to the knife, a .44 caliber revolver in the

area of Defendant’s left pocket. On these facts, this Court concludes “there was

no indication that [Defendant] was presently dangerous to Officer Daley or other

citizens,” and that the frisk was unconstitutional. Court’s Op. at 10. Although

the Court recognizes “a reasonable officer could conclude that [Defendant] was

armed,” id., the Court ignores the totality of the circumstances and the serious

threat that a suspected firearm posed to Officer Daley’s safety. Instead, the Court

cavalierly dismisses Daley’s suspicion regarding a firearm as a mere “hunch.” Id.

at 13. Because the Court’s holding disregards settled precedent and exposes

officers to unreasonable dangers, I dissent.
                                          I.

       This case gives rise to two questions: (1) whether a protective frisk is ever

permissible in the absence of reasonable suspicion that criminal activity is afoot,

and if so, (2) whether Daley had a constitutionally justifiable basis for conducting

a protective frisk in this case. Acknowledging the question is an open one, the

Court assumes without deciding that a protective frisk is permissible without

reasonable suspicion of criminal activity.     The Court does not reach this first

question because it concludes Officer Daley had no reasonable suspicion

Defendant was “dangerous.” Because the Court is incorrect on this point, I must

address both questions.

       Neither the Supreme Court nor the Tenth Circuit has decided whether an

officer may lawfully frisk a person absent reasonable suspicion of criminal

activity.   The Supreme Court first recognized the concept of a stop and frisk,

justified on suspicion less than probable cause, in Terry v. Ohio, 392 U.S. 1

(1968). The Court in Terry held that an officer could temporarily detain and frisk

a person based on reasonable suspicion that “criminal activity may be afoot” and

the person “may be armed and presently dangerous.” Id. at 30. Although the

Terry Court treated a “stop and frisk” as essentially a single transaction, it offered

different rationales for the “stop” and the “frisk.” The interest of “effective crime

prevention and detection,” the Court said, justifies officers “approach[ing] a

person for purposes of investigating possibly criminal behavior.” Id. at 22. A

frisk, however, is based on the “immediate interest of the police officer in taking


                                        -2-
steps to assure himself that the person with whom he is dealing is not armed with

a weapon that could unexpectedly and fatally be used against him.” Id. at 23. So,

although the Court said “[w]e merely hold today” that a “stop and frisk” was

justified based on reasonable suspicion of criminal activity and dangerousness,

the Court noted that “[e]ach case of this sort will . . . have to be decided on its

own facts.” Id. at 30.

      Terry simply did not decide whether a frisk can take place absent

reasonable suspicion of criminal activity. Justice Harlan made this clear in his

concurring opinion, where he said he, unlike the majority, “would make it

perfectly clear that the right to frisk in this case depends upon the reasonableness

of a forcible stop to investigate a suspected crime.” Terry, 392 U.S. at 32–33

(Harlan, J., concurring) (emphasis added). But Justice Harlan’s view did not win

the day. The Terry Court said the limitations on protective frisks “will have to be

developed in the concrete factual circumstances of individual cases.” 1 Id. at 29.

Although the Supreme Court has not addressed this issue, allowing a protective
      1

        Our sister circuits are divided on the issue of whether a protective frisk
requires suspicion of criminal activity. Three circuits have upheld frisks based
solely on officer safety. United States v. Orman, 486 F.3d 1170, 1176–77 (9th
Cir. 2007); United States v. Romain, 393 F.3d 63, 75 (1st Cir. 2004); United
States v. Bonds, 829 F.2d 1072, 1075 (11th Cir. 1987). Two circuits have
concluded that a frisk requires reasonable suspicion of criminal activity. United
States v. Burton, 228 F.3d 524, 528 (4th Cir. 2000); United States v. Gray, 213
F.3d 998, 1000 (8th Cir. 2000). Both Burton and Gray relied on Terry, even
though Terry did not hold that suspicion of criminal activity was always required
for a frisk. And the Eighth Circuit has not consistently followed Gray. See
United States v. Ellis, 501 F.3d 958, 961–63 (8th Cir. 2007) (upholding a frisk
based on safety concerns without identifying any criminal activity for which
reasonable suspicion existed).

                                        -3-
frisk based solely on officer safety best comports with its precedent. This is so

for three main reasons.

                                         A.

        First, the strong governmental interest in officer safety is present even in

consensual encounters.       Courts cannot ignore the “need for law enforcement

officers to protect themselves and other prospective victims of violence in

situations where they may lack probable cause for an arrest.” Terry, 392 U.S. at

24.     This need applies equally to investigative detentions and consensual

encounters. In Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam), the

Court held that an officer could order a driver out of his vehicle during a traffic

stop.    The Court said, “We think it too plain for argument that the State’s

proffered justification—the safety of the officer—is both legitimate and weighty.”

Id. at 110. The Supreme Court has, admittedly, recognized that the magnitude of

the threat to officer safety depends to some extent on the intrusiveness of the

encounter. Knowles v. Iowa, 525 U.S. 113, 117 (1998). But this hardly stands

for the proposition that an officer’s safety is never at risk during a consensual

encounter. “If a suspect is ‘dangerous,’ he is no less dangerous simply because

he is not arrested.” Michigan v. Long, 463 U.S. 1032, 1050 (1983).

        Even though a person is “free to leave” during a consensual encounter,

I.N.S. v. Delgado, 466 U.S. 210, 215 (1984), he may still feel threatened by

police questioning.       In Maryland v. Wilson, 519 U.S. 408, 414 (1997) the

Supreme Court concluded officers may order passengers to exit a validly stopped


                                        -4-
car, even though no reason exists to believe the passengers have committed any

offense. The Court reasoned that “the possibility of a violent encounter stems not

from the ordinary reaction of a motorist stopped for a speeding violation, but

from the fact that evidence of a more serious crime might be uncovered during the

stop.” Id. The Court said, “[T]he motivation of a passenger to employ violence

to prevent apprehension of such a crime is every bit as great as that of the driver.”

Id.   The Court concluded the passengers presented a danger even though they

were not suspected of any criminal activity.           Particularly where, as here, an

officer   initiates   an   investigatory   encounter    based   on   some   suspicious

circumstances, the officer could easily feel threatened by an armed person and be

justified in conducting a frisk.     “The danger to officer safety that justifies a

protective search” may arise even during a consensual encounter. United States

v. Davis, 202 F.3d 1060, 1063 (8th Cir. 2000).

       Other situations could also lead an officer to fear for his safety during a

consensual encounter. For example, a person might become belligerent or show

signs of mental instability during a consensual encounter, even if the person’s

actions do not give rise to suspicion of criminal activity. See United States v.

Brown, 232 F.3d 589, 593–95 (7th Cir. 2000) (holding a reasonable officer could

perceive a threat to his safety from a potentially drunk person acting

“erratically”). Not every threatening action is criminalized, and officers need not

wait to be assaulted or injured before taking protective action. Terry, 392 U.S. at

23.    Rather, Terry’s officer safety rationale applies during “all legitimate


                                           -5-
investigative activities,” and justifies a frisk if the officer reasonably fears for his

safety during a consensual encounter. United States v. Romain, 393 F.3d 63, 76

(1st Cir. 2004).

      In a case decided just this term, the Supreme Court upheld the right of

officers to enter a home based on safety concerns, even without probable cause of

criminal activity.   Ryburn v. Huff, 565 U.S. ---, 132 S. Ct. 987 (2012) (per

curiam). In Ryburn, the officers were investigating rumors that a high school

student had threatened to “shoot up” the school.          Id. at 988.   After initially

ignoring the officers’ knocks, the student’s mother came to the front steps. Id. at

988. When asked whether any guns were in the house, the mother “responded by

immediately turning around and running into the house.”           Id. at 989 (internal

alterations and quotation marks omitted).        The officers followed her into the

house based on concerns for their safety.        Id.   The Supreme Court held the

warrantless entry was reasonable because the officers could have feared “an

imminent threat to their safety and to the safety of others.” Id. at 991. The Court

did not discuss whether the officers had probable cause or reasonable suspicion of

criminal activity, but held the entry was constitutional because the officers had

“an objectively reasonable basis for fearing that violence was imminent.” 2 Id. at

992. Ryburn indicates that officer safety renders certain police actions reasonable

      2

       This “objective reasonable basis” standard is likely the same as Terry’s
“objective standard” of whether “the facts available to the officer . . . warrant a
man of reasonable caution in the belief that the action taken was appropriate.”
Terry, 392 U.S. at 21–22 (internal quotation marks omitted).

                                         -6-
regardless of probable cause or reasonable suspicion that criminal activity is

afoot.

                                        B.

         Second, requiring reasonable suspicion of criminal activity would

hamstring officers’ ability to investigate suspicious behavior. If an officer may

not conduct a frisk unless he has reasonable suspicion a crime is afoot, then he

must protect himself by entirely avoiding those he reasonably believes are

dangerous but not necessarily engaged in criminal conduct. See United States v.

Burton, 228 F.3d 524, 528 (4th Cir. 2000). But this ignores the real possibility

that an officer will only acquire suspicion a person is armed and dangerous after

he has initiated the consensual encounter. Davis, 202 F.3d at 1063. At this point,

the officer no longer has the option to avoid a confrontation. Furthermore, it

ignores the fact that police officers have a responsibility to keep the public safe

and investigate suspicious activity. The Supreme Court has long recognized that

law enforcement officers may “approach[] an individual on the street or in

another public place” and “put[] questions to him if the person is willing to

listen.”    Florida v. Royer, 460 U.S. 491, 497 (1983).       The Court has also

recognized “the strong government interest in solving crimes and bringing

offenders to justice.” United States v. Hensley, 469 U.S. 221, 229 (1985). But

disallowing a protective frisk during consensual encounters would discourage

officers from approaching and questioning the most dangerous citizens or those

they suspect of criminal activity on less than reasonable suspicion.      Officers


                                       -7-
would be free to initiate consensual encounters with apparently harmless citizens,

but be required to avoid citizens who are armed and dangerous. Such a reading of

Terry would be unreasonable.



                                        C.

      Third, requiring reasonable suspicion of criminal activity before a frisk

would prevent officers from taking “reasonable steps to ensure their safety”

during consensual encounters.    Maryland v. Buie, 494 U.S. 325, 334 (1990).

Under this approach, an officer only has two options if he suspects a person he

has consensually encountered may be armed and dangerous. First, he may choose

to end the encounter and walk away. This is a nonsensical option, because it

requires the officer to abandon the legitimate and non-intrusive performance of

his duties and exposes him to potential danger in effectuating his retreat. Second,

the officer may continue asking questions in hopes of acquiring adequate

suspicion of criminal activity to justify a frisk. But this requires the officer to

remain in a dangerous situation without taking any steps to ensure his safety.

Officers should not be forced to decide between these equally bad options.

      Obviously police officers may not frisk simply any person on the street who

they suspect is armed. Officers must have reasonable suspicion the subject is

“armed and presently dangerous.” Terry, 392 U.S. at 24 (emphasis added). A

citizen walking down the street carrying a knife or gun on his person does not

necessarily present a danger to police or the public. But some instances certainly


                                       -8-
arise in which an officer can reasonably fear a person is dangerous during a

consensual encounter. Therefore a valid frisk should not depend on reasonable

suspicion that criminal activity is afoot.



                                             II.

      Turning to the facts of this case, Officer Daley had reasonable suspicion

Defendant was both armed and dangerous. A reasonable suspicion inquiry must

be based on the “totality of the circumstances, taking into account an officer’s

reasonable inferences based on training, experience, and common sense.” United

States v. Rice, 483 F.3d 1079, 1083 (10th Cir. 2007). Defendant was the only

person in the vicinity of a potential home break-in. Daley observed Defendant do

a 180-degree turn when he caught sight of a police car.          These facts were

suspicious enough to warrant further investigation. “Officers are not required to

ignore the relevant characteristics of a location in determining whether the

circumstances are sufficiently suspicious to warrant further investigation.”

Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (emphasis added).             Here,

Defendant’s presence near the scene of a police investigation was at least enough

to raise some suspicion, however slight, particularly because Defendant was the

only person seen in the vicinity. Additionally, “nervous, evasive behavior is a

pertinent factor in determining reasonable suspicion.”     Id.   Defendant’s 180-

degree turn upon seeing a police car was an indication of nervousness that

legitimately increased Officer Daley’s suspicion. These two facts, standing alone,


                                         -9-
were not enough for reasonable suspicion of criminal activity, but were at least

enough to prompt further investigation. Officers are entitled to approach people

and ask questions based on a hunch, or even with no suspicion at all. See United

States v. Drayton, 536 U.S. 194, 200 (2002).

      Once Officer Daley initiated the consensual encounter, he quickly

developed reasonable suspicion Defendant was armed.         In fact, Officer Daley

knew Defendant was armed with a knife because he saw the knife’s tip in

Defendant’s right coat pocket.      Furthermore, Officer Daley had reasonable

suspicion Defendant was armed with a gun. Unlike in Terry, this suspicion was

not based on the abstract proposition that a person involved in a particular crime

may have a gun. Terry, 392 U.S. at 28 (concluding it was reasonable to suspect

men contemplating a daytime robbery would be armed).              Instead, Daley’s

suspicion was based on his direct observation that Defendant had “his left hand in

his pocket” and “it appeared that there was something that was making it larger

than just what an arm or hand would make a coat stick out.” In Mimms, the

Supreme Court upheld a frisk where the officer noticed a “large bulge under [the

defendant’s] sports jacket.” 434 U.S. at 107. The only “criminal activity” at

issue in Mimms was driving with an expired license plate, a crime unassociated

with weapons. Id. Yet the Court said, “The bulge in the jacket permitted the

officer to conclude that Mimms was armed . . . .” Id. at 112. So the bulge in

Defendant’s left pocket was sufficient to give Officer Daley reasonable suspicion

that Defendant was armed with a gun, in addition to the visible knife.


                                       - 10 -
                                         A.

      Although the Court recognizes Daley had reasonable suspicion Defendant

was armed, the Court nevertheless concludes “there was no indication that

[Defendant] was presently dangerous to Officer Daley or other citizens.” Court’s

op. at 10. The Court is correct that “[b]eing armed does not ineluctably equate

with dangerousness.”    Id. at 10–11.      For example, a retired policeman or a

cooperative citizen licensed to carry a gun may not present a danger to police,

depending on the circumstances. But the Supreme Court had indicated that an

armed person is usually dangerous, at least if he is detained by the police. In

Mimms, the state conceded “the officer had no reason to suspect foul play from

the particular driver at the time of the stop, there having been nothing unusual or

suspicious about his behavior.” 434 U.S. at 109. Yet the Court said the bulge

“permitted the officer to conclude that Mimms was armed and thus posed a

serious and present danger to the safety of the officer.” Id. at 112 (emphasis

added).   The Mimms Court apparently treated being armed as equivalent with

being dangerous, even when there was no suspicious activity other than an

expired license plate. 3 Yet here, the Court simply ignores the danger posed by
      3

        This is not to say Mimms renders the “dangerous” inquiry superfluous,
however. Mimms can likely be explained based on the confrontational
circumstances inherent in a traffic stop. When an officer conducts a traffic stop,
he has restricted a person’s liberty and potentially made that person feel
threatened or angry enough to harm the officer. Wilson, 519 U.S. at 414. In such
a situation, any armed person is potentially dangerous. In a consensual encounter
such as the one involved here, the officer has not restricted the person’s liberty
and the person is free to walk away. Florida v. Royer, 460 U.S. 491, 497–98
(1983). But an officer can nevertheless reasonably fear danger from an armed

                                        - 11 -
Defendant’s potential possession of a firearm.

      Furthermore, this case is even stronger than Mimms because it involves

additional suspicious circumstances not present in Mimms. 4 Defendant was in the

vicinity of a criminal investigation and appeared desirous of avoiding law

enforcement. He was visibly armed with a knife, yet said “no” when asked if he

had any “weapons.” In Ryburn, the Court said the officer’s entry of the house “to

avoid injury to themselves or others was imminently reasonable” based on the

woman’s response of “turning and running into the house after refusing to answer

a question about guns.” Ryburn, 132 S. Ct. at 992. Similarly, Officer Daley was

faced with a person who was clearly lying about his possession of a weapon.

Based on the totality of the circumstances, Officer Daley could reasonably

conclude that Defendant was trying to conceal his possession the knife or

additional weapons. This suspicion justified a protective frisk.

                                        B.

      In concluding Defendant was not “dangerous,” the Court errs in three

important ways. First, the Court unreasonably dismisses the dangers posed by

knives.   The Court says, “A folded knife in a person’s pocket hardly poses a

danger to an armed officer six to eight feet away.” This cannot be the law. Six to

person4 during a consensual encounter. See Orman, 486 F.3d at 1176.

       These circumstances distinguish the present case from Professor LaFave’s
hypothetical, quoted by the Court, of a bulge in “the pocket of a pedestrian who is
not engaged in any suspicious conduct.” 4 Wayne R. LaFave, Search and Seizure
§ 9.6(a) (2004) (emphasis added). Here, Officer Daley had observed suspicious
conduct, even if the conduct did not give rise to reasonable suspicion.

                                       - 12 -
eight feet is a distance that can be covered in two or three steps. This is hardly

enough distance to render a knife unthreatening. See Estate of Larsen ex rel.

Sturdivan v. Murr, 511 F.3d 1255, 1261 n.1 (10th Cir. 2008) (noting that Denver,

Colorado’s police training manual “instructs that knife-wielding persons within

21 feet pose an ‘imminent threat’ to officers based on the time in which the

distance can be closed in an attack”).

      Nor does it matter that the knife was folded. Even a folding knife can be

opened quickly and used as a weapon. The Seventh Circuit upheld the patdown

of a vehicle passenger who had a “folded pocket knife visible in his front left

pocket.” United States v. Robinson, 615 F.3d 804, 805 (7th Cir. 2010). The

Court said the officers were “authorized by Terry to make sure that he had

nothing else in his possession that would endanger their safety.”       Id. at 807.

Likewise, the Eighth Circuit upheld a patdown where an officer observed a

“small, folded knife” on the dashboard of a stopped car. United States v. Sanders,

196 F.3d 910, 912 (8th Cir. 1999). So the Court is wrong to conclude that a

folded knife “hardly poses a danger” to an officer only a few steps away.

      Next, the Court’s reasoning is flawed because it misses the knife’s greater

significance. Regardless of whether the knife posed a danger, its presence refuted

Defendant’s statement that he had no weapons.         A reasonable officer could

conclude that a person trying to conceal his possession of a knife may also be

concealing other weapons.     He could also conclude the person was dangerous

based on his desire to conceal a weapon from police detection. See United States


                                         - 13 -
v. Simpson, 609 F.3d 1140, 1149 (10th Cir. 2010) (“[L]ies, evasions or

inconsistencies about any subject . . . may contribute to reasonable suspicion.”).

The Court says “many law-abiding citizens would not consider themselves armed

with a weapon, while carrying a folded pocket knife.”                Court’s op. at 13.

Whether this is true or not, it is irrelevant for several reasons.

      First, we measure the reasonableness of police conduct based on a

reasonable officer’s viewpoint, not a citizen’s. A court must ask whether “the

facts available to the officer at the moment of . . . the search ‘warrant a man of

reasonable caution in the belief’ that the action taken was appropriate.” Terry,

392 U.S. at 21–22 (emphasis added). See also United States v. Sanchez, 519 F.3d

1208 (10th Cir. 2008) (“An officer may conduct a pat-down search if he or she

harbors an articulable and reasonable suspicion that the person is armed and

dangerous.” (internal quotation marks omitted) (emphasis added)).            Whether a

law-abiding citizen would consider a knife a “weapon” is entirely different from

whether a police officer could reasonably fear a knife might be used as a weapon.

      Second, courts have consistently treated knives as “weapons.” In Terry, the

Court noted that virtually all officer deaths and a substantial portion of officer

injuries are inflicted with “guns and knives.” Id. at 24. The Court said a frisk is

justified “to discover guns, knives, clubs, or other hidden instruments for the

assault of the police officer.” Id. at 29 (emphasis added). Consistent with Terry,

we have concluded a “frisk was justified” when a stopped driver informed the

officer he had a knife in his belt. United States v. Mikulski, 317 F.3d 1228, 1234


                                         - 14 -
(10th Cir. 2003).    As the Ninth Circuit has observed, “The possibility of a

surprise attack at close quarters with even a small knife presents danger sufficient

to justify an officer in taking reasonable protective measures . . . .” United States

v. Mattarolo, 209 F.3d 1153, 1158 (9th Cir. 2000).        To conclude that folded

knives are not “weapons” would be a serious departure from precedent and simply

unreasonable.

      Third, we do not require a police officer to consider the fine distinctions of

whether a folded knife is a “weapon” while making split-second determinations

regarding his safety.     “The reasonableness of a police officer’s actions is

evaluated from the perspective of a reasonable officer on the scene, recognizing

the police officer may have been forced to make split-second decisions in a

stressful, dynamic, and dangerous environment.” Lundstrom v. Romero, 616 F.3d

1108, 1120 (10th Cir. 2010).      The Supreme Court recently reminded us that

“judges should be cautious about second-guessing a police officer’s assessment,

made on the scene of the danger presented by a particular situation.” Ryburn, 132

S. Ct. at 991–92.    We are not to judge the dangers of a situation “[w]ith the

benefit of hindsight and calm deliberation,” but from the “perspective of a

reasonable officer on the scene.” Id. (quoting Graham v. Connor, 490 U.S. 386,

396–97 (1989)).      Officer Daley saw a folding knife, an instrument that

undoubtedly can be used as a weapon. He also observed a bulge consistent with a

handgun.    Yet Defendant denied having any weapons.           Officer Daley could

reasonably suspect Defendant was lying in an effort to conceal his possession of a


                                       - 15 -
weapon or weapons.

      A final and most critical flaw in the Court’s analysis is that it focuses

almost exclusively on the knife, while ignoring the threat of a firearm. Even if

the Court were correct that a folded knife poses little danger at six to eight feet, a

firearm certainly does pose a danger. This is especially true because Defendant’s

hand was on the apparent bulge in his pocket. Defendant could have drawn and

fired the gun at any time, or even fired it through his pocket. The Court points

out that Daley never asked Defendant to remove his hand from his pocket. But

the Fourth Amendment does not require such a preliminary step because “officers

do not always have to use the least restrictive means as long as their conduct is

reasonable.”   Thomas v. Durastanti, 607 F.3d 655, 665 (10th Cir. 2010).          An

officer should not “have to ask one question and take the risk that the answer

might be a bullet.” Terry, 392 U.S. at 33 (Harlan, J., concurring). Whatever the

Court thinks of the dangers of folding knives, it cannot deny that firearms pose a

serious threat of harm.     And the facts here clearly show Officer Daley had

reasonable suspicion Defendant possessed a firearm. Yet the Court tries to hedge

even this point. The Court says allowing a search “based on the hunch that a

citizen walking down the street is illegally carrying a firearm, without more,

serves to erode the precious protections of the Second and Fourth Amendments.”

(emphasis added).     A hunch, as Terry makes clear, is very different from

reasonable suspicion. Terry, 392 U.S. at 22. But the Court’s suggestion that the

bulge in Defendant’s coat supported only a “hunch” flies in the face of Mimms.


                                        - 16 -
434 U.S. at 112 (“The bulge in the jacket permitted the officer to conclude that

Mimms was armed and thus posed a serious and present danger to the safety of

the officer.”). The facts clearly show Officer Daley had more than a “hunch”

Defendant possessed a gun.

      We should not second-guess Officer Daley’s determination that the subject

of a consensual encounter who was obviously armed with a knife, possibly armed

with a handgun, and patently lying about his possession of a weapon was

dangerous.   We have been cautioned not to “require that police officers take

unnecessary risks in the performance of their duties.” Terry, 392 U.S. at 23. But

the Court’s holding today does exactly that. I therefore dissent.




                                       - 17 -
