                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 22, 2013
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellant,
                                                        No. 12-4139
 v.                                            (D.C. No. 11-CR-00116-CW-1)
                                                          (D. Utah)
 LANCE CLAYTON PETERSEN,

          Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, GORSUCH, and BACHARACH, Circuit Judges.


      After receiving a tip that someone was prowling around an unfinished

apartment complex in the middle of the night, responding officers heard noises

coming from inside. They spotted, too, a pickup truck parked with its bed resting

against the entrance to the building, as if ready for easy loading and leaving.

Given those facts and a number of recent thefts from nearby construction sites,

the officers suspected something not at all good was afoot.




      *
         This order and judgment is not binding precedent except under the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.
      Soon one of the officers encountered a man wandering just outside the

building. When asked, the man gave his name as “Lance Petersen,” a name that

matched the name of the truck’s registered owner. Asked what he was up to, Mr.

Petersen replied that he was out for an evening’s stroll and insisted that he had

never stepped foot inside the building.

      This the officer did not believe. And after a little prodding, Mr. Petersen

admitted that he had lied. He admitted, too, that he had been inside the building.

Yet even now he professed he was merely engaging in some innocent apartment

hunting. Somewhat incongruously, though, when asked why he left the building

Mr. Petersen motioned toward a sign about video surveillance and said he didn’t

want trouble.

      Officers grew even more concerned when Mr. Petersen kept putting his

hands in his pockets despite repeated requests not to do so. Worried for their

safety, officers handcuffed Mr. Petersen and continued their questioning. After

asking for some form of identification, Mr. Petersen replied that his wallet was in

the truck and gave an officer permission to retrieve it. As the officer opened the

truck’s door, he smelled marijuana but didn’t pursue the issue just then and

instead grabbed the wallet. Returning to Mr. Petersen, the officer asked about the

smell and Mr. Petersen conceded that marijuana was indeed in the truck, though

when later asked for permission to search the truck he refused. This didn’t

dissuade the officers, though, because they soon searched the truck all the same.

                                          -2-
There they found a loaded revolver as well as marijuana — discoveries that led to

Mr. Petersen’s indictment in federal court for being a felon unlawfully in

possession of a firearm and for possession of a controlled substance.

      Mr. Petersen responded with a motion to suppress. He pursued a number of

theories why the search of his truck was unlawful and the evidence found there

should be excluded from any criminal proceeding. Agreeing with one of Mr.

Petersen’s theories, the district court granted the motion. The district court held

that officers had reasonable suspicion to detain Mr. Petersen as part of an

investigation into potential criminal activity. It held, too, that the handcuffing

was an appropriate measure for officer safety. But it also held that what started

out fine enough became unlawful as it progressed. The court was uncertain

exactly when the lawful investigatory stop ended and the unlawful detention

began, but it was sure that point came before the officers asked Mr. Petersen for

permission to search the truck. Because Mr. Petersen should have been released

and free to go before his truck was searched, the district court reasoned, the

evidence found in the search was tainted and had to be suppressed.

      The government now appeals. As the government sees it, by the time the

officers asked Mr. Petersen for permission to search his truck reasonable

suspicion had seasoned into probable cause. Probable cause to think Mr. Petersen

was guilty of burglary. Given this, the government submits, Mr. Petersen was

lawfully detained from the moment he was first stopped to the time he was taken

                                         -3-
to jail. And given that, the government argues, the theory of exclusion the district

court endorsed was in error.

      Probable cause for an arrest is said to exist if the “facts and circumstances

within [the officers’ collective] knowledge and of which they [have] reasonably

trustworthy information [are] sufficient to warrant a prudent man in believing that

the [suspect] . . . committed . . . an offense.” Beck v. Ohio, 379 U.S. 89, 91

(1964). This standard “does not require proof beyond a reasonable doubt. It does

not even require the suspect’s guilt to be more likely true than false. Instead the

relevant question is whether a substantial probability existed that the suspect

committed the crime.” Kerns v. Bader, 663 F.3d 1173, 1188 (10th Cir. 2011)

(citations omitted) (internal quotation marks omitted).

      By the time the officers asked to search the truck, we have no doubt a

reasonably prudent person on the scene would have thought Mr. Petersen very

probably guilty of burglary. In Utah, the crime of burglary does not require a

spiriting away of goods but is completed when (among other things) a person (1)

enters a premises unlawfully (2) with the intent to commit theft. Utah Code Ann.

§ 76-6-202(1). By the time the truck was searched, the officers had seen more

than enough to think both of these things about Mr. Petersen. They knew that he

had entered the complex in the middle of the night when it was closed for

business; they knew this was unusual enough to prompt a call to police; they

knew Mr. Petersen lied when first asked whether he had entered the site; they

                                         -4-
knew that, when pressed, he offered an incredible explanation for his behavior;

they knew other construction site burglaries had occurred in the area recently;

they knew that Mr. Petersen’s truck was backed against the building as if to allow

it to be loaded; and they knew that Mr. Petersen all but admitted he was on the

property unlawfully when he told the officers he left because he saw surveillance

cameras in the area and didn’t want trouble. These facts, viewed in aggregate, are

easily enough to suggest that Mr. Petersen had no legitimate business on the

construction site and had theft on his mind. See, e.g., United States v. Mercado,

307 F.3d 1226, 1230-31 (10th Cir. 2002) (“vague” and “implausible” responses

may “add[] substantial support” to probable cause determination); Teague v.

Overton, 15 F. App’x 597, 601 (10th Cir. 2001) (presence at the crime scene,

lying, and other facts can create probable cause).

      The district court’s contrary holding rests on two legal errors invited by

Mr. Petersen.

      First, the district court emphasized its understanding that the officers on the

scene conceived of Mr. Petersen as a trespass suspect rather than a burglary

suspect. It then proceeded to explain its belief that probable cause didn’t exist to

arrest Mr. Petersen for trespass under Utah law. But however all this may be, it is

irrelevant. When it comes to the Fourth Amendment, the Supreme Court has

instructed that “an arresting officer’s state of mind (except for the facts that he

knows) is irrelevant to the existence of probable cause.” Devenpeck v. Alford,

                                         -5-
543 U.S. 146, 153 (2004). “An arrest is not invalid under the Fourth Amendment

simply because the police officer[s] subjectively intended to base the arrest on an

offense for which probable cause is lacking, so long as the circumstances, viewed

objectively,” warrant an arrest “for some offense.” Morris v. Noe, 672 F.3d 1185,

1192-93 (10th Cir. 2012) (internal quotation marks omitted). And the facts the

officers uncovered in this case were sufficient, viewed objectively, to support an

arrest for the offense of burglary. That is all the Fourth Amendment requires.

      Second, the district court said there was no sign at the apartment complex

“prohibiting Mr. Petersen from entering the building” and, because of this, the

government “failed to show that Mr. Petersen entered the building unlawfully.”

But this line of reasoning conflates the crimes of burglary and trespass. When a

defendant’s only offense is crossing another’s land, Utah law seeks to make sure

the defendant knows his presence isn’t welcome. So a person generally cannot be

held criminally liable for trespass unless there is some sign, fence, or personal

notice communicating that entry is unwelcome. See Utah Code Ann. § 76-6-

206(2)(b). But when a defendant’s offense includes not just merely traipsing

across another’s property but entering with an intent to abscond with his

neighbor’s goods, the law doesn’t require such punctiliousness: the defendant is

presumed to know that sort of behavior isn’t welcome. Home owners, after all,

shouldn’t have to tack up “no trespass” signs to ensure passersby aren’t at liberty

to help themselves. The Utah Supreme Court has confirmed all this, expressly

                                         -6-
holding that the trespass statute’s “notice element” bears no “relationship” to the

state’s burglary statute. State v. Wilson, 701 P.2d 1058, 1060 (Utah 1985). When

it comes to burglary, then, the unlawful entry element doesn’t require signs, it can

be inferred from the facts, and ample facts in this case suggest Mr. Petersen’s

entry was anything but lawful.

      So it is, we must reverse. The district court granted the motion to suppress

based on the premise that Mr. Petersen was unlawfully detained at the time the

officers searched his truck. That premise, pressed on the district court by Mr.

Petersen, is in error. But in saying that much we take equal care to point out what

we do not say. In his motion to suppress, Mr. Petersen raised various other

theories — arguing, for example, that the search of his truck was unconstitutional

even assuming the propriety of his own detention. On this and other possible

theories for suppression that the district court has yet to address we say nothing.

Likewise, we do not take up the speculative question whether, if a Fourth

Amendment violation occurred, suppression is the appropriate remedy in this

case. See generally Davis v. United States, 131 S. Ct. 2419, 2427 (2011). We

hold only that the theory the district court relied on in its suppression order was

mistaken.




                                         -7-
Reversed and remanded.



                         ENTERED FOR THE COURT



                         Neil M. Gorsuch
                         Circuit Judge




                          -8-
