                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                     UNITED STATES COURT OF APPEALS                 August 1, 2017
                                                                 Elisabeth A. Shumaker
                                   TENTH CIRCUIT                     Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                     No. 16-2093
 IVAN DANIEL COCA,                            (D.C. No. 2:15-CR-4115-KG-1)
                                                         (D.N.M.)
          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, and HARTZ, and BALDOCK, Circuit
Judges.


      Defendant Ivan Coca, a previously convicted felon, entered a conditional plea

of guilty to possessing a firearm in violation of 18 U.S.C. § 922(g). He now appeals

the district court’s order denying his motion to suppress evidence establishing such

possession. Our jurisdiction arises under 28 U.S.C. § 1291. Per our standard

practice in such situations, we view the evidence in a light most favorable to the

Government, accept the district court’s findings of fact unless they are clearly

erroneous, and review de novo the ultimate question of reasonableness under the

Fourth Amendment. United States v. Lopez, 849 F.3d 921, 925 (10th Cir. 2017).


      *
         This order and judgment is not binding precedent except under the doctrines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.
Applying these standards, we affirm.

                                          I.

      The facts as revealed during the suppression hearing are undisputed. On the

afternoon of August 27, 2015, United States marshals received information that

Richard Gutierrez, a known gang member, might be present at 1505 La Fonda Drive,

Apartment 3811, in Las Cruces, a unit of the Buena Vista Apartments. Gutierrez was

wanted for violating the terms of his federal supervision by failing to report. A

federal warrant for his arrest was outstanding.        Around 3:00 p.m., marshals

conducting surveillance on Apartment 3811 witnessed a male subject exit the

apartment. The subject, later identified as Defendant Coca, was wearing a baseball

cap, white muscle shirt, and shorts. He was walking westbound across La Fonda

Drive. Marshals radioed their observations to assisting officers in the vicinity. One

of those officers was Cody Austin of the Las Cruces Gang Task Unit.

      Officer Austin promptly spotted Defendant walking west along a drainage

culvert running more or less perpendicular from La Fonda Drive to Stull Drive.

Austin stopped his vehicle, got out, and yelled at Defendant, who was several yards

away. Once Austin had Defendant’s attention, Austin asked if they could speak. At

that point, Defendant turned around and walked toward Austin.             Austin then

recognized Defendant with whom he had “past dealings.” Rec. vol. II, at 16. After

Austin radioed the marshals’ service and assisting units to advise of the situation, he

asked Defendant where he was coming from. Defendant told Austin he was coming

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from the Telshor Manor Apartments. Those apartments were located on the other

side of the freeway. Austin “called him out on it,” and let Defendant know he

believed he was lying. Id. Austin told Defendant that just moments prior he had

been seen coming out of Buena Vista Apartment 3811. At that point, Austin asked

Defendant “if he would have a seat for me.” 1 Id. Defendant sat down in the grass

alongside the culvert. Seconds after Defendant sat down, Las Cruces Officers

Horatio Rivera, also a part of the Gang Task Unit, and Anthony Lucero, a part of the

K-9 Unit, arrived on the scene. Meanwhile, Austin radioed dispatch to check for

outstanding warrants against Defendant.

      All three officers stood near Defendant while waiting for the dispatch report.

Defendant remained seated. Austin was speaking with Defendant when he noticed

in plain view a new tattoo, “CB,” on Defendant’s neck. Austin believed “CB” stood

for Cruces Boys, a Las Cruces prison gang. With Defendant’s cooperation, Officer

Rivera photographed the tattoo per the common practice of the Gang Task Unit.

After taking one or two photos while Defendant was seated, Rivera asked him to

stand up for further photos. When Defendant did so, Austin spotted a handgun

behind a folded T-shirt tucked in Defendant’s waistband. See Government’s Exh.

2. Austin knew Defendant was a convicted felon. He promptly seized the handgun



      1
         Austin testified that in “all my contacts, either consensual or nonconsensual,
I pose it in a question for them. I will ask them, ‘can you do me a favor and have a
seat?’ Try to avoid any conflict.” Rec. vol. II, at 17.

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and placed Defendant under arrest.

                                          II.

      In his motion to suppress, Defendant argued that Officer Austin had detained

him in violation of the Fourth Amendment, and this unlawful detention led to

discovery of the handgun.      The Government responded that prior to Austin’s

discovery of the handgun, the entire encounter with Defendant was consensual. In

the alternative, the Government posited that Austin had reasonable suspicion to

detain Defendant once Defendant told him he was coming from the Telshor Manor

rather than the Buena Vista Apartments. Following a suppression hearing, the

district court ruled from the bench. The court first held the initial encounter between

Austin and Defendant was consensual. Austin asked Defendant if they might speak

and Defendant responded by turning around and approaching Austin. But, according

to the court, the encounter was no longer consensual once Austin asked Defendant

about his prior whereabouts and, unsatisfied with his response, requested Defendant

to sit while dispatch ran a check for warrants:

      It was within a very short period of time, moments after they contacted
      one another on that grassy area that Officer Austin asked and Mr. Coca
      stated that he was coming from a location that Officer Austin construed
      to be false or inconsistent with the information Officer Austin had
      received from the other officers who were conducting surveillance.

      Now, at that point, I don’t believe the encounter was consensual. I
      believe it did evolve into a nonconsensual encounter. Because based on
      that information that Mr. Coca provided to Officer Austin it was enough
      that Officer Austin could . . . determine to detain Mr. Coca. And had
      Mr. Coca requested to leave at that particular time, I don’t believe he

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      would have been free to leave, and therefore, it was not consensual.

      I will find that Officer Austin had reasonable suspicion to detain Mr.
      Coca based on that response that Officer Austin construed to be
      misleading and inconsistent and false as to Mr. Coca’s origin, or, in
      other words, where he was walking from, and it was after that point . . .
      that Officer Austin had reasonable suspicion to detain and investigate
      further.

Rec. vol. II, at 113–114.

                                          A.

      We recognize three sorts of police-citizen interactions: consensual encounters,

investigative detentions, and arrests. A consensual encounter is not a seizure within

the meaning of the Fourth Amendment and need not be supported by suspicion of

criminal activity. In comparison, an investigative detention is an encounter during

which a police officer stops and briefly detains a person for investigative purposes.

Such detention constitutes a seizure under the Fourth Amendment and is lawful only

if the officer has a reasonable suspicion supported by articulable facts, together with

rational inferences to be drawn therefrom, that criminal activity may be afoot.

Finally, an arrest is a Fourth Amendment seizure characterized by the intrusive or

lengthy nature of the detention. Only probable cause will support an arrest. See

Morris v. Noe, 672 F.3d 1185, 1191–92 (10th Cir. 2012).

      “Reasonable suspicion is a particularized and objective basis for suspecting the

person stopped of criminal activity.” In other words, something more than an

inchoate or unparticularized suspicion or hunch is necessary.


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United States v. Rodriquez, 739 F.3d 481, 485 (10th Cir. 2013) (emphasis added).

But the standard is not particularly demanding. The circumstances necessary to

arouse reasonable suspicion fall “considerably short of satisfying a preponderance

of the evidence standard.” United States v. Arvizu, 534 U.S. 266, 274 (2002).

                                        B.

      Assuming without deciding that Officer Austin seized Defendant when he

asked him to sit down, we ask what a prudent officer cognizant of the facts and

circumstances known to Austin could reasonably suspect. 2 See Rodriguez, 739 F.3d

at 486. Austin knew the marshals were seeking to execute an arrest warrant on

Gutierrez. Austin knew both Gutierrez and Defendant were likely gang members.

Austin also knew the marshals suspected Gutierrez was inside Apartment 3811 and

that just moments prior marshals had witnessed a man exiting the apartment, the

description of whom fit Defendant. A reasonable inference from these facts is that

Defendant may very well have known Gutierrez was wanted. Finally, Austin knew

that Defendant’s response to the question about his prior whereabouts was suspect.

See United States v. Treto-Haro, 287 F.3d 1000, 1006 (10th Cir. 2002) (recognizing

that even ambiguous behavior, susceptible to innocent interpretation, may give

rise to a reasonable suspicion of criminality depending on the totality of the


      2
         A person is seized for Fourth Amendment purposes when, considering all
the surrounding circumstances, the police conduct “would have communicated to a
reasonable person that the person was not free to . . . terminate the encounter.”
Florida v. Bostick, 501 U.S. 429, 439 (1991).

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circumstances).

      In this case, the totality of the circumstances coupled with N.M. Stat. Ann

§ 30-22-1.A. would have provided a prudent officer with the suspicion necessary to

detain Defendant consistent with the Fourth Amendment. Section 30-22-1 addresses

the obstruction of justice.     Subsection A. defines obstructing an officer as

“knowingly obstructing, resisting or opposing any officer of this state or any other

duly authorized person serving or attempting to serve or execute any process or any

rule or order of the courts of this state or any other judicial writ of process.” Here,

consistent with the Fourth Amendment’s demands, a prudent officer could have

reasonably suspected that when Defendant failed to acknowledge his apparent

presence inside Apartment 3811, he was seeking to thwart the marshals and assisting

units in their efforts to execute an arrest warrant and apprehend Gutierrez.

      Because the district court properly concluded that Officer Austin had

reasonable suspicion to detain Defendant before he saw the handgun in Defendant’s

waistband, its judgment is AFFIRMED.



                                        Entered for the Court,



                                        Bobby R. Baldock
                                        United States Circuit Judge




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