                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        June 20, 2006
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 05-1414
          v.                                            (D. Colorado)
 C HA PEN D . PEEK ,                               (D.C. No. 04-CR-494-B)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before M U RPH Y, A ND ER SO N, and TYM KOVICH, Circuit Judges.




      Chapen D. Peek pled guilty to possessing a firearm after a felony

conviction, in violation of 18 U.S.C. § 922(g)(1), and was sentenced to seventy

months’ imprisonment, followed by three years of supervised release. In his plea

agreement, he reserved his right to appeal the district court’s denial of his motion

to suppress, and he now brings that appeal. For the reasons set forth below, we

affirm.



      *
       This order and judgment is not binding precedent, except under the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.
                                  BACKGROUND

      The search that Peek challenged in his motion to suppress took place in the

basement bedroom of Tina Arellano, a participant in Colorado’s intensive

supervision program, which allows certain offenders serving a sentence following

a state conviction to serve their time in the community while w earing an ankle

bracelet, subject to supervision by the Parole Division of the Colorado

Department of Corrections. At the time, Arellano, who was serving a sentence

for a drug offense, was residing at the home of her stepfather, Adlido Gurule.

      On November 18, 2004, Gurule went to the parole office and spoke with

Officer Barbara Clementi, the parole officer assigned to supervise Arellano, and

Officer Clementi’s supervisor, Officer Phillip Aragon. According to Officer

Aragon’s later testimony, Gurule “indicated that M s. Arellano was using drugs,

and there w ere a lot of . . . shady characters hanging around the house. He

believed that they were trafficking narcotics out of his home . . . .” Tr. of M ot. to

Suppress Hr’g at 10, R. Vol. II. Officer Clementi testified that Gurule “stated

that he was just fed up with what was going on at his residence, that he believed

his . . . stepdaughter w[as] involved in drugs, using and trafficking, and there was

a lot of traffic in his residence.” Id. at 59. Gurule indicated that he wanted to

stop the activities that he suspected were occurring in his home but did not want

others to know of his involvement, and therefore told Officer Clementi “that he




                                         -2-
would give [her] a 911 page if there was anybody that he thought was coming in

his residence selling drugs.” Id. at 61.

      Officer Clementi testified that, based on what Gurule said and on her

observation, during Arellano’s last visit to her office one or two days previously,

of fresh track marks on Arellano’s arm and sores on her face, she suspected

Arellano was using drugs in violation of the conditions of her supervision.

Officer Clementi therefore planned to go to Arellano’s house to conduct an on-

site urinalysis drug test. That evening, she and Officer Aragon were already

driving towards Arellano’s residence when they received a 911 page from Gurule.

      According to Officer Clementi, when the officers arrived at the house and

rang the doorbell, Gurule let them inside, saying “Come on in, go downstairs,

they’re at it again.” Id. at 64. Officer Aragon testified that Gurule said “They’re

downstairs” and “They’re at it right now.” Id. at 14. Gurule then showed them

the stairs leading to the basement, and the officers went downstairs and down the

hall to the bedroom, the door of which was half closed. Officer Clementi testified

that she pushed the door open and saw Arellano sitting in a chair to the right and

a man, later identified as Peek, sitting on a bed to the left, leaning against the

wall, and wearing a jacket. The room was cluttered with furniture, clothing, and

CD equipment, among other things. Neither officer saw any drugs or drug

paraphernalia in plain view .




                                           -3-
      According to the parole officers, O fficer Clementi then asked Peek what his

name w as, and Peek answered that his name w as “Frank.” Officer Aragon had

been Peek’s parole officer in 1996 and testified that, after hearing Peek speak, he

recognized Peek and told him “That’s not your name, your name is Chapen Peek.”

Id. at 21. According to Peek, this exchange did not take place.

      Officer Aragon then asked for Peek’s driver’s license and told him he was

going to run a warrants check. According to Officer Aragon, at this point Peek

became “very nervous,” with sweat “dripping down along the side of his face.”

Id. at 22. The warrants check produced no indication of any outstanding

w arrants. O fficer A ragon then told Peek that he was going to conduct a pat-dow n

search of his person for officer safety. Officer Aragon testified that he believed

Peek might have a weapon because of Peek’s nervousness and because, on a

previous occasion in June 2004, he had found a knife in the possession of

Arellano and was aware that Arellano “was involved in a lot of narcotics

transaction.” Id. at 26. According to Officer Aragon, in his experience “a lot of

times narcotics and firearms are synonymous.” Id.

      The officers testified that when Officer Aragon told Peek he was going to

conduct a pat-down search, Peek exclaimed “no!” Id. at 24. Officer Aragon then

asked Peek if he had a weapon, and Peek first responded negatively, then stated

that he did have a weapon. The officers then drew their weapons, told Peek to




                                         -4-
place his hands on top of his head, “opened [Peek’s] jacket and saw a black

shoulder holster with a stainless revolver inside” it. Id. at 25.

      Peek was placed under arrest and indicted on one count of violating 18

U.S.C. § 922(g)(1), based on his possession of the firearm after a prior state

conviction for attempted escape. He filed a motion to suppress the firearm as

evidence, arguing that the officers detained and searched him in violation of the

Fourth A mendment. Follow ing a hearing, the district court held that the officers’

initial detention of Peek was valid based on the officers’ reasonable suspicion that

Peek was involved in criminal activity. Assessing the factual dispute between

Peek and the officers over whether Peek had actually given a false name when the

officers first entered Arellano’s room, the court stated that it had “no reason to

question the parole officers’ credibility.” Order at 7, R. Vol. I, doc. 23.

However, the court stated that its determination of whether the officers had

reasonable suspicion that Peek was armed and dangerous “does not hinge on

whether [Peek] lied about his name” but instead required reference to “other

specific facts.” Id. at 8. The court explained its conclusion that there was

reasonable suspicion justifying a pat-down search as follow s:

             It is uncontested that both officers are experienced in the
      tactics and circumstances of narcotics use and trafficking. And it is
      well known to both police and parole officers that weapons are
      frequently used to protect drug supplies. The officers confronted
      Arellano and [Peek] in Arellano’s small, cluttered bedroom, a
      confined space, her “turf.” The officers were dealing with suspected



                                          -5-
      narcotics users and/or traffickers, each of whom was either [under
      intensive supervision] or had been on parole.

            Officer Aragon found an illegal knife on Arellano’s person a
      few months before the bedroom encounter. The officers had
      reasonable suspicion that she might be armed. [Peek] contends that
      during his parole, he was cooperative, never armed, and never
      considered a threat. W hile those facts were verified by Officer
      Aragon during his testimony, they carry little weight under the
      circumstances.

             The officers were there under their authority to obtain a urine
      sample from Arellano. In the confined space of the basement
      bedroom with one exit, [Peek] was obviously nervous. He was
      sweating and fidgeting. He was involved with a known drug user
      and drug seller who had an illegal weapon in the past. And he
      probably lied about his name. I conclude that given the totality of
      the circumstances, both officers had more than sufficient reasonable,
      articulable suspicion to believe that [Peek] might be armed and
      dangerous.

Id. at 9. The court thus denied Peek’s motion to suppress. As indicated above,

Peek entered a conditional guilty plea and appealed the district court’s denial of

his motion.



                                   D ISC USSIO N

      W hen reviewing the district court’s denial of a m otion to suppress

evidence, “‘w e 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




                                         -6-
Amendment.’” United States v. Apperson, 441 F.3d 1162, 1184 (10th Cir. 2006)

(quoting United States v. Katoa, 329 F.3d 1203, 1205 (10th Cir. 2004)).

      The district court analyzed the events leading up to the parole officers’

discovery of Peek’s firearm using the framew ork set forth for investigative

detentions by police officers in Terry v. Ohio, 392 U.S. 1 (1968). Neither party

contests Terry’s applicability, and we agree it applies here. 1 Under Terry, “[a]

lawful investigative detention of limited scope and duration does not require

probable cause as long as the police officer has reasonable suspicion that the

person seized is engaged in criminal activity.” United States v. Dennison, 410

F.3d 1203, 1207 (10th Cir.) (citing Terry, 392 U.S. at 30-31), cert. denied, 126 S.

Ct. 468 (2005). During such a detention, the officer “may also conduct a

protective frisk of the suspect’s outer clothing if he reasonably believes that the

suspect might be armed and dangerous.” United States v. M addox, 388 F.3d

1356, 1361 (10th Cir. 2004) (citing Terry, 392 U.S. at 27, 30). Here, Peek argues

that the parole officers lacked reasonable suspicion that he was involved in

criminal activity when they initially detained him, and that the officers lacked a

reasonable suspicion that he was armed and dangerous at the time Officer Aragon

announced he w as going to perform a pat-down search for weapons.



      1
        It is undisputed that Colorado parole officers are peace officers under
Colorado law, “whose authority shall include the enforcement of all laws of the
state of Colorado,” Colo. Rev. Stat. § 16-2.5-136, and who are subject to the same
certification and training requirements as any police officer, id. § 16-2.5-102.

                                         -7-
I.    Initial Detention

      Although the government and Peek disagree on whether Peek was “seized”

for Fourth Amendment purposes at the mom ent the parole officers appeared at the

doorway of Arellano’s bedroom, the government does not dispute the district

court’s conclusion that, at the latest, Peek was seized at the point that Officer

Aragon demanded his driver’s license to run a warrants check. W e agree with the

district court. At that point, the two officers w ere blocking the entrance to

Arellano’s bedroom, and the circumstances, as described above, made it clear that

Peek was not free to leave. Compare United States v. Lopez, 443 F.3d 1280,

1286 (10th Cir. 2006) (holding the defendant was seized where circumstances and

officers’ behavior made clear that the defendant was not free to refuse to provide

his driver’s license or free to leave), with United States v. Esparza-M endoza, 386

F.3d 953, 960 (10th Cir. 2004) (holding the defendant was not seized under the

circumstances although police had requested his identification).

      Peek argues that this seizure was unreasonable because the officers lacked

any reasonable suspicion of wrongdoing particular to himself, rather than

Arellano, when they arrived at Arellano’s bedroom door. He points out that

“Gurule never mentioned [Peek] by name or physical description, nor did he

allege having observed any specific illegal conduct by M r. Peek,” and contends

that Gurule’s reference to a “they” who were “at it again” downstairs was too




                                         -8-
vague to provide a basis for reasonable suspicion that he was involved in any

criminal activity. Appellant’s Op. Br. at 12. W e disagree.

      As Peek concedes, the parole officers certainly had a reasonable suspicion,

based on Officer Clementi’s own observations and Gurule’s statements, that

Arellano was involved in drug-related criminal activity. 2 Gurule’s page of

Officer Clementi and Gurule’s statements when the officers entered the house

indicated that Arellano and whoever w as w ith her downstairs w ere currently

engaging in such activity. W hen the officers arrived at Arellano’s room, the only

person there other than Arellano was Peek. W e have recognized that

      “[r]easonable suspicion is a less demanding standard than probable
cause not only in the sense that reasonable suspicion can be established with
information that is different in quantity or content than that required to establish
probable cause, but also in the sense that reasonable suspicion can arise from
information that is less reliable than that required to show probable cause.”

United States v. Valenzuela, 365 F.3d 892, 896 (10th Cir. 2004) (quoting

Alabama v. W hite, 496 U.S. 325, 330 (1990)). It was not necessary that Gurule

specifically give Peek’s name or description in order for the officers to have

reasonable suspicion that he was involved in whatever criminal activity might be

afoot. Under the circumstances here, we hold that the parole officers were




      2
       Of course, Arellano’s own privacy interests were diminished since she was
under the active supervision of the Colorado Parole Division. See Griffin v.
W isconsin, 483 U.S. 868, 873-74 (1987); United States v. Lewis, 71 F.3d 358,
361 (10th Cir. 1995).

                                         -9-
justified in detaining Peek so that they might seek to confirm or dispel that

suspicion.



II.   Pat-Dow n Search for W eapons

      Peek also argues that at the time Officer A ragon declared his intention to

perform a pat-down search of Peek for weapons, the officers did not have a

reasonable suspicion that he was armed and dangerous. As indicated above, the

district court held that a pat-down search was justified at that point based on (1)

the parole officers’ reasonable suspicion that Arellano and Peek were “narcotics

users and/or traffickers,” and the connection the officers drew, based on their

experience, between drug trafficking and weapons, (2) Officer Aragon’s previous

experience “f[inding] an illegal knife on Arellano’s person a few months before,”

(3) “the confined [and cluttered] space of the basement bedroom with one exit,”

(4) Peek’s nervousness, including his excessive sweating, (5) Peek’s

“involve[ment] with” Arellano, “a known drug user and drug seller who had an

illegal weapon in the past,” (6) and the court’s conclusion that, in accord with the

officers’ version of events, Peek “probably lied about his name.” Order at 9, R.

Vol. I, doc. 23.

      Peek contends that “[n]one of these reasons is sufficient,” Appellant’s Op.

Br. at 16, and attempts to discredit each factor as a justification for believing

Peek was armed and dangerous. Specifically, Peek argues (1) that a suspect’s

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nervousness does not provide a proper basis for suspecting that he is armed, (2)

that there is no reasonable connection between Arellano’s prior possession of a

knife and the suspicion that Peek might possess a w eapon, (3) that the officers

had no basis for suspecting Peek of drug trafficking, as opposed to drug use, and

drug use alone is not associated with weapon possession, (4) that the district

court’s finding that Peek “probably” lied about his name is clearly erroneous

because it would make no sense for Peek to lie about his name to Officer Aragon,

his former parole officer, (5) that the heightened safety concerns that arise when

officers are inside a home are insufficient to support a pat-down search.

      How ever, in determining whether reasonable suspicion existed, we must

take into account the totality of circumstances, “consider[ing] whether the facts as

a whole ‘amount to reasonable suspicion,’” even where “each separate fact or

observation . . . ‘is not by itself proof of any illegal conduct.’” Dennison, 410

F.3d at 1208 (quoting U nited States v. Sokolow, 490 U.S. 1, 8 (1989)). Thus, we

have held that while “typical nervousness alone . . . is of limited significance,”

nervousness “is still among the pertinent factors a reasonable law enforcement

officer would analyze . . . and should not be completely disregarded” when

reviewing the totality of the circumstances. United States v. Johnson, 364 F.3d

1185, 1192 (10th Cir. 2004) (internal quotation omitted); see also United States v.

Harris, 313 F.3d 1228, 1236 (10th Cir. 2002) (holding court “may take into

account Defendant’s nervous behavior in determining whether . . . [a] protective

                                         -11-
frisk was justified”). Similarly, “the nature of the area in which a detention takes

place is a relevant consideration.” Johnson, 364 F.3d at 1193; see also United

States v. Shareef, 100 F.3d 1491, 1506 (10th Cir. 1996) (taking into account the

fact that the police officers had detained the suspects “in their cars, at night,” and

“could not tell whether the[y] had weapons on their persons or within reach,” in

upholding a Terry pat-down search).

      Here, Peek not only appeared nervous but, according to the officers, was

sw eating profusely. The cluttered nature of Arellano’s bedroom made it difficult

for the officers to determine whether weapons might be hidden there. The fact

that the officers were in Arellano’s home territory, and the fact that the officers

were standing in the doorway, thus blocking any means of escape, provided a

context that reasonably raised the officers’ safety concerns. M oreover, Peek was

wearing a jacket, which could also easily conceal a weapon. All of these factors,

while not dispositive by themselves, are relevant to the analysis.

      In regard to Peek’s challenge to the district court’s finding that he

“probably” lied about his name, we disagree that this finding is clearly erroneous.

As the district court explained, it was conceivable that Peek might have lied to

Officer Clementi, who entered Arellano’s bedroom first, before noticing that her

companion, Officer Aragon, was his former parole officer. This factual finding

therefore remains relevant although it is clear that the district court did not place

great weight on this factor in its “armed and dangerous” analysis.

                                          -12-
      Of greater significance is the point that the officers had a reasonable

suspicion that either Arellano or Peek or both might be involved in trafficking

drugs. United States v. Hishaw, 235 F.3d 565, 570 (10th Cir. 2000) (holding that

a reasonable suspicion that the defendant “was distributing drugs . . . also

indicated that he might be armed and dangerous” based on the connection

between drug trafficking and weapons); see also United States v. Brown, 188 F.3d

860, 865 (7th Cir. 1999) (holding that indications that a suspect might be involved

in drug trafficking “contributed to reasonable suspicion that [he] was armed and

dangerous” because “[d]rug dealing is a crime infused with violence” (internal

quotation omitted)); United States v. W oodall, 938 F.2d 834, 837 (8th Cir. 1991)

(holding that police officer’s recognition that an individual had recently been

arrested for narcotics trafficking contributed to his reasonable suspicion that the

individual was armed and dangerous). As indicated, Peek challenges the notion

that there was any indication that he was involved in drug trafficking, and argues

that to the extent a suspicion of drug use was justified, simple drug use is not

associated with weapons in the way that drug trafficking is. See, e.g., United

States v. W ald, 216 F.3d 1222, 1226-27 (10th Cir. 2000) (holding that a police

officer w ho had initiated a traffic stop was not justified in conducting a pat-dow n

search where he “suspected ‘drug usage,’” smelled burnt methamphetamine,

which is “indicative of drug usage, rather than drug trafficking,” the defendants

appeared nervous, and one had “bloodshot, glassy” eyes). At oral argument, Peek

                                         -13-
emphasized that it is far likelier that the drug purchaser will visit the drug dealer

to make a purchase rather than the other w ay around, suggesting that the officers

should have assumed Peek to be the buyer in any drug transaction they suspected

was occurring in Arellano’s bedroom. Of course, Peek’s suggested scenario does

not take into account the fact that Arellano was under intensive supervision,

which likely limited her freedom of movement outside her residence.

          In any case, however, the officers in this situation were not required to

limit their safety concerns to Arellano. It is true that an individual’s “‘mere

propinquity to others’” reasonably believed to be armed and dangerous does not

by itself justify a pat-down search of that individual. Dennison, 410 F.3d at 1211

(quoting Ybarra v. Illinois, 444 U.S. 85, 91 (1979)). However, unlike in Ybarra,

where a search of an individual who had coincidentally been a customer in a

public tavern during the execution of a search warrant was found unreasonable,

444 U.S. at 92-93, Peek’s presence in Arellano’s bedroom could not be construed

as mere coincidence. Rather, it indicated a connection between the two, and

Gurule’s statement when the officers entered the house suggested that this

connection involved illegal drug activity of some kind. Gurule’s prior statements

suggested that the activity might involve drug trafficking. Arellano’s prior

possession of a knife reinforced the suspicion that weapons might be present,

possibly passed from Arellano to Peek if they heard the officers coming down the

stairs.

                                            -14-
      Under these circumstances, viewing the evidence in the light most

favorable to the government, an experienced officer, taking into account the

totality of the circumstances, including the factors mentioned above, could

reasonably suspect that Peek was armed and presently dangerous. See Dennison,

410 F.3d at 1213 (upholding a protective sweep of defendant’s truck when

passenger was reasonably considered armed and dangerous where there was

reason to believe the defendant and the passenger were engaged in a common

illegal enterprise); Shareef, 100 F.3d at 1506 (concluding police had a

“reasonable belief that the defendants posed a danger” where police suspected one

individual of being armed and dangerous, knew the other defendants were

traveling with him, and had reasonable suspicion the other defendants were

involved in criminal activity). W e therefore uphold the district court’s conclusion

that Officer Aragon was justified in initiating the pat-down search, and affirm its

denial of Peek’s motion to suppress. 3




      3
        The government raises a number of alternative arguments in support of the
district court’s ruling. Because we uphold the ruling on the grounds set forth
here, we need not address the government’s additional arguments.

                                         -15-
                          C ON CLU SIO N

For the foregoing reasons, the judgment of the district court is AFFIRM E D.

                                        ENTERED FOR THE COURT

                                        Stephen H. Anderson
                                        Circuit Judge




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