                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        April 16, 2009
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                        Clerk of Court
                                      TENTH CIRCUIT


 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
                                                            No. 07-5178
                                                     D.C. No. 06-CR-206-CVE
 v.
                                                    Northern District of Oklahoma
 LEVI McRAE LUGINBYHL, JR.,

           Defendant - Appellant.


                                   ORDER AND JUDGMENT*


Before HARTZ, HOLLOWAY and O’BRIEN, Circuit Judges.



       Defendant-appellant Levi Luginbyhl was convicted at jury trial of being a felon in

possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) &

924(a)(2), and possession of an unregistered shotgun without a serial number and with a

barrel less than 18 inches long, in violation of 26 U.S.C. §§ 5841, 5845(a)(1), 5861(d), &

5871. He was sentenced to 95 months’ imprisonment on both Counts I and II to run

concurrently, 3 years’ supervised release, standard and special conditions of supervision,

a $1,000 fine and a $200 special assessment. On a timely appeal, he challenges the denial



       *
        This order and judgment is not binding precedent, except under the doctrines of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.
of his motion to suppress the firearm on the theory that the discovery of the weapon was

the fruit of an unlawful arrest or detention. Exercising jurisdiction under 28 U.S.C. §

1291, we affirm.



                                             I

       Early on a mid-November afternoon in 2006, a “complaint-taker” for the Tulsa

police received a call from the home of Yvette Hill. The caller was Ms. Hill’s daughter.

The caller said that there was a man in the backyard of a neighbor’s house who was

“stealing stuff in the back of his house.” The complaint-taker asked for a description of

the man, and then asked whether he was white, black, Indian or Hispanic. The caller said

the man looked like a Mexican and was “going crazy.” The caller then gave the phone to

her mother, Ms. Hill.

       Hill said the man looked like he was “on drugs or something” because he was

“doing some weird stuff.” She later described his actions as “some crazy karate stuff.”

As Ms. Hill remained on the line with the complaint-taker, she said that her neighbor had

returned and was “confronting” the man. The complaint-taker then heard Ms. Hill tell

someone to “go and get the gun and shoot this man,” and warned Ms. Hill not to use a

gun because it would “make it worse.”

       The complaint-taker asked if the man was assaulting the neighbor, and Hill

responded, “right now he’s just talking to him.” Hill stated, “This man looks like he is

crazy or something because he is doing his hands all crazy ways and . . . see he was out

                                            -2-
here doing martial arts. I guess he’s on drugs or something.” Hill told the complaint-taker

that she thought the neighbor “told him to get out of his yard so he’s leavin’.” She

repeated that he was “going toward the sidewalk . . . . The owner made him leave. So

he’s fine, I mean, I guess.”

       While Ms. Hill was still on the line, the complaint-taker relayed the information to

a police dispatcher who, within two minutes after the phone call began, notified Tulsa

Police Officer Steve Williams about a “suspicious subject” at the Hill’s address. The

dispatcher described the suspect as a Hispanic male in his thirties, wearing all black, and

told Williams that the caller believed the man to be “possibly on drugs in the neighbor’s

yard and the person who lives there is now confronting the Hispanic male.”

       A different dispatcher then told Williams: “The elderly neighbor said something

about getting a gun. It looks like somebody . . . our caller told the neighbor not to get a

gun. It now looks like the subject may be walking away.” Officer Williams apparently

misunderstood this message, however, because he later testified that “the way I

interpreted the dispatch to me was that there was a gun, or someone may have a gun, or

somebody was going to go get a gun. And the dispatcher wasn’t sure whether – excuse

me – whether it was the complainant or whether it was the individual that was in the

backyard that was referencing the gun.” In his report, Officer Williams said that, on

arriving at the scene he had been “advised that the subject stated he was going to get a

gun and was last seen walking northeast towards E. 16th.”

       Officers Williams and Don Arent both responded to the dispatch, driving separate

                                             -3-
cars. They arrived at the Hill residence almost simultaneously. Officer Arent went

straight to the house, and because the subject had last been seen leaving northbound,

Officer Williams went around the block and drove west on East 16th Street. He saw a

subject matching the description coming from between two houses at about 8500 East

16th Street.

       Officer Williams stopped his patrol car and asked the man, later identified as

Luginbyhl, to approach. When he did, Officer Williams asked him for a form of

identification, and Luginbyhl verbally identified himself. Before or just after identifying

himself, Luginbyhl said that he did not recognize the officer’s authority, Williams

testified, “due to the fact that he had signed some kind of paper or something.” This

unusual assertion caused Officer Williams to wonder if Luginbyhl might be intoxicated or

have mental problems. He also began to consider the possibility that he might be dealing

with some type of anti-government individual, who was likely to be carrying some type

of weapon. Officer Williams was also concerned that Luginbyhl was a burglar, and might

be carrying some kind of tool such as screwdriver or pry bar that could be turned into a

weapon and used against him.

       For safety, Officer Williams waited until Officer Arent arrived to pat Luginbyhl

down, about five to ten minutes from the initial contact. Officer Williams directed

Luginbyhl to place his hands behind his head and interlock his fingers, and Luginbyhl

initially complied. When Officer Williams grabbed his hands to do the patdown, he felt

Luginbyhl hesitate to comply. Through Luginbyhl’s heavy coat, Officer Williams felt a

                                            -4-
tool or weapon on his left side. He lifted the coat and saw the butt of what appeared to be

a firearm stuck between Luginbyhl’s pants and shirt. Officer Williams then swept

Luginbyhl’s feet out from underneath him and took him to the ground. He notified

Officer Arent that Luginbyhl had a gun, and Williams then recovered the gun and placed

handcuffs on Luginbyhl.

       The gun recovered from Luginbyhl was a loaded, 16-gauge, sawed-off shotgun.

The officers also recovered a roll of duct tape, a stocking cap, and a pair of handcuffs

from Luginbyhl’s person.

       Defendant testified both at the suppression hearing and at trial. He said that he

went into the backyard to look at a trailer he had noticed there before, which looked like a

trailer used to sell concessions at carnivals and fairs. He said that he had sold concessions

at carnivals in the past and thought that he might get a job with the owner of the trailer.

When defendant got there he noticed a lot of rocks with crystals. When the owner

approached him, defendant said, defendant asked him about a job and whether he could

have some of the crystals. Defendant admitted that he had practiced some martial arts

moves before the homeowner arrived, saying that it was cold and he did that to warm

himself.

                                              II

       The district court found the detention of defendant reasonable under two

alternative theories. Although she said the parties had focused on whether the detention

was justified under Terry v. Ohio, 392 U.S. 1 (1968), the judge first reasoned that the

                                             -5-
detention was valid under the theory of law enforcement’s community caretaker function.

Law enforcement officers “are not only permitted, but expected, to exercise what the

Supreme Court has termed ‘community care taking functions, totally divorced from the

detection, investigation, or acquisition of evidence” relating to a crime. United States v.

King, 990 F.2d 1552, 1559 (10th Cir. 1993). A brief, non-investigatory detention is

permissible when articulable facts indicate the need to assure the safety of the public or

the individual being detained.

       This detention was reasonable under the care taking function, the judge reasoned,

citing these facts: defendant had walked into the backyard of a private residence; his

conduct had alarmed the neighbors; the neighbors had reported that he might be on drugs;

and the officer had a mistaken, but good faith, belief that defendant might have been

going to get a gun (as explained below). Because defendant appeared to be either on

drugs or in a “psychotic episode,” Officer Williams could stop him to check on his

condition and determine whether he posed a threat to himself or others. “At a minimum,”

the judge said, the officer was aware that neighbors were concerned by defendant’s

“bizarre behavior,” and so the officer was obligated, not just permitted, to investigate the

situation to ensure the safety of the community. And for the same reasons, the protective

frisk of defendant was justified.

       The judge’s reference to the officer’s mistaken belief that the defendant might be

going to get a gun should be explained. As shown in the summary of the background

facts, the original phone call from the residence of the neighbors, Ms. Hill and her

                                             -6-
daughter, went to a “complaint-taker,” who relayed the information to a dispatcher

(actually in this case two different dispatchers were involved), who communicated with

the officers in the field. In this process some of the information got distorted. The start

of the chain was Ms. Hill’s remark to someone on her end of the line, perhaps her

daughter, to “go get the gun to shoot this man,” which the complaint-taker heard and to

which she responded by cautioning Hill not to escalate the situation. Hill’s subsequent

remarks reported that the suspect and the neighbor were only talking and then that the

suspect was leaving.

       As these reports were forwarded to the dispatcher and then to Officer Williams, the

second dispatcher told the officer that “the elderly neighbor said something about getting

a gun.” Officer Williams testified, however, that he understood the communication to be

that “the subject said he was going to get a gun.” As noted, the district judge found the

officer’s mistaken interpretation of the communication was in good faith.

       After concluding that the detention and frisk were justified under the community

caretaker function, the district judge continued by also analyzing the detention as an

investigatory stop under Terry v. Ohio. Officer Williams had a reasonable suspicion of

criminal activity, the judge found, based on these facts: (1) a caller had reported a

“suspicious subject”; (2) defendant had entered someone’s private property; (3) defendant

was “possibly on drugs”; (4) the owner of the home was confronting defendant; (5) “the

elderly neighbor said something about getting a gun.” (Quote marks are in the district

court’s order; the judge was quoting from the evidence produced at the suppression

                                             -7-
hearing.) Also, dispatch had been told that the defendant was “acting crazy.” On these

facts, the officer had reason to suspect, at a minimum, that defendant was intoxicated in

public, the judge concluded. Reasonable suspicion of a misdemeanor is sufficient under

Terry. See Gallegos v. City of Colorado Springs, 114 F.3d 1024, 1029 (10th Cir. 1997).

Although when the officer spotted defendant he was not stumbling or otherwise

exhibiting signs of drunkenness, he could have been under the influence of drugs.

       Also, Officer Williams testified that he suspected that defendant may have been

involved in attempted burglary. He testified that in his experience burglars will often

abandon their attempts and move on if a homeowner returns unexpectedly. He also

testified that burglars are often drug users looking for money to buy drugs, in his

experience, and the neighbor’s report said that defendant might be on drugs. The fact that

Williams had been advised that defendant was leaving the premises did not alter the

analysis. The belief that defendant was engaged in criminal activity was reasonable.

       The district judge also rejected defendant’s argument that the detention lasted for

an unreasonable amount of time. Officer Williams testified that he asked defendant for

his name and identification. The defendant told the officer his name but did not provide

identification. Defendant also said that he didn’t recognize the officer’s authority and

told the officer about his anti-government beliefs. Officer Williams waited five to ten

minutes for backup to arrive before he frisked defendant. The court found that the length

of detention was not excessive and that defendant himself had prolonged the encounter by

refusing to provide identification and by espousing his novel theories.

                                             -8-
                                              III

       In reviewing the denial of a motion to suppress evidence, we accept the findings of

fact made by the district court unless they are clearly erroneous, but the ultimate question

of reasonableness under the Fourth Amendment presents a question of law for our plenary

review. See, e.g., United States v. Manjarrez, 348 F.3d 881, 884 (10th Cir. 2003). We

conclude that the district court was correct in its analysis and holding that the

investigatory stop of Mr. Luginbyhl was justified by reasonable suspicion that he was

engaged in criminal activity.

       “Investigative detentions, . . . which are Fourth Amendment seizures of limited

scope and duration, are reasonable if they are supported by a reasonable suspicion that the

detained individual is engaged in criminal activity.” Novitsky v. City of Aurora, 491 F.3d

1244, 1253 (10th Cir. 2007). An investigatory detention must be “justified in its

inception” and “reasonably related in scope to the circumstances which justified the

interference in the first place.” Id. (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)).

       In support of its conclusion that the investigatory stop of defendant was justified at

its inception, the district court pointed to these facts: (1) a caller had reported a

suspicious subject; (2) defendant had entered someone’s private property; (3) defendant

was possibly on drugs; (4) the owner of the home was confronting defendant; (5) the

elderly neighbor said something about getting a gun. A few additional observations and

inferences may also be noted. First, and very significantly in our view, the defendant’s

unusual behavior, beginning with his intrusion into a backyard of a home, had not merely

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drawn the attention and suspicion of the neighbors but had positively alarmed them.

Also, as the district court pointed out, Officer Williams thought that dispatch had reported

that the subject was going to get a gun. The judge specifically found that this mistake

was a reasonable one, given the limitations of communication from the neighbor, through

the complaint-taker to dispatch, and ultimately to the officers over the radio.

          Then there are the inferences that a reasonable officer could make from this

information, and which Officer Williams did make. One is that the subject may have

been intoxicated on drugs or alcohol. Another is that the subject may have been a burglar

“casing” the houses in the neighborhood. We note also that these two inferences are

hardly mutually exclusive. As Officer Williams testified, in his experience many

burglaries are committed by drug-users who are trying to fund the purchase of more

drugs.1

          It is well settled that the information received by the dispatcher may be reasonably

relied upon by the field officer for the purpose of establishing probable cause to arrest or

reasonable suspicion for an investigative stop. See United States v. Hensley, 469 U.S.

221, 229-33 (1985). Under the “fellow officer” rule, “law enforcement officers may pool

their information[,] and . . . reasonable suspicion is to be determined on the basis of the

          1
         Our discussion assumes that Officer Williams detained defendant at the beginning
of their encounter when, according to the officer’s testimony, he called out to defendant
and asked him to approach. We make the assumption because the government seems
implicitly to take this position. No contentions are made in this appeal, for example, as to
whether the officer’s tone of voice suggested a request rather than a command for
Luginbyhl to approach him. We thus have no occasion to decide if the encounter began
as a strictly consensual one.

                                              -10-
collective knowledge of all the officers involved.” United States v. Hinojos, 107 F.3d

765, 768 (10th Cir. 1997). Luginbyhl argues that exculpatory information received by

dispatch must also be taken into account. He points specifically to the caller’s remarks to

the complaint-taker that nobody had a gun, that the feared confrontation between the

subject and her neighbor appeared to have ended amicably, and that the subject was

walking away toward the street.

       This argument is unavailing for Luginbyhl because this information would merely

have suggested, to the reasonable officer, that the chances of an immediate, possibly

violent confrontation involving the homeowner had apparently been reduced. But the

remaining facts were still sufficient to support the investigative stop. The denouement of

the original encounter did nothing to explain Luginbyhl’s behavior and did not eliminate

the prospect that he was either intoxicated in public, or casing the neighborhood in view

of a possible burglary, or both. Officer Williams testified that it would not be unusual, in

his experience, for a prospective burglar to peacefully retreat and pick another target upon

being discovered by a homeowner. And Officer Williams testified that burglars are often

armed or carrying tools that could be used as weapons. Thus, the peaceful conclusion of

the meeting between defendant and the homeowner did not dispel the suspicion that

defendant might be armed, even if we were to attribute to Williams the last information

given by the original complainant, information that was not actually transmitted to

Williams. It is well settled that an officer with reasonable suspicion for an investigative

detention need not have ruled out all possible innocent explanations for the observed

                                            -11-
conduct. See United States v. Vercher, 358 F.3d 1257, 1261 (10th Cir. 2004).

          Moreover, we are mindful that this argument by Luginbyhl is, in effect, an attempt

to nullify Officer Williams’ testimony that he had interpreted dispatch’s report to say that

the subject was going to get a gun and the district court’s specific finding that this mistake

was a reasonable one under the circumstances. “‘A mistaken premise can furnish grounds

for a Terry stop, if the officers do not know that it is mistaken and are reasonable in

acting upon it.’” United States v. Shareef, 100 F.3d 1491, 1505 (10th Cir. 1996) (quoting

United States v. Ornelas-Ledesma, 16 F.3d 714, 718 (7th Cir. 1994), vacated on other

grds., 517 U.S. 690 (1996)). In sum, we find that the detention was justified by

reasonable suspicion.

          Luginbyhl also challenges the length of his detention and the circumstances of the

frisk to which he was subjected. Indeed, he contends that the encounter was so intrusive

as to constitute an arrest as a matter of law, and he argues that there was no probable

cause to justify an arrest. We are not persuaded that the encounter should be treated as an

arrest.

          As for the length of the detention, the district judge found that Luginbyhl himself

was responsible for its prolongation, because he used the occasion to share with Officer

Williams some of his unusual views about governmental authority, particularly as it

pertained to him. However, Officer Williams did not testify that the encounter was




                                               -12-
prolonged for this reason.2 Instead, he testified that he believed it necessary for his

protection and for the safety of those nearby to determine if Mr. Luginbyhl was armed.

Not only had Officer Williams mistakenly believed that dispatch had reported that

Luginbyhl had said something about getting a gun, but the officer’s suspicion that

Luginbyhl had been intent on burglary raised a likelihood that he would be armed.

Consequently, Williams testified, he prolonged the encounter waiting for backup to arrive

so that he would not have to perform the protective frisk alone. Considering that the

prolongation of the stop for this purpose was relatively brief, we find this reasonable. See

United States v. Walraven, 892 F.2d 972, 976 (10th Cir. 1989).

       We find that the force used in connection with the frisk was reasonable.

Luginbyhl’s argument on this point is primarily based on the contention that the

“locking” of his interlaced fingers during the frisk was excessive force, which he says is

like the “twist lock” maneuver that we found excessive under the circumstances in

Novitsky v. City of Aurora, 491 F.3d 1244 (10th Cir. 2007). First, we note that we are at a

substantial disadvantage in considering this argument because the record does not make it

clear just what the “locking” of Luginbyhl’s fingers entailed. We are not willing to


       2
        Officer Williams did testify that the unusual ideas expressed by Luginbyhl
increased his apprehension that Luginbyhl might present a threat. Because the officer had
already detained Luginbyhl by this time and because the factors justifying the initial
detention also justified, in our view, the length of the encounter and the decision to frisk
Luginbyhl, we have not relied on this factor in our analysis. This does not mean,
however, that we do not accept the officer’s testimony on this point. Nor do we mean to
discount the possibility that similar facts might be of greater significance under other
circumstances.

                                             -13-
merely assume, as Mr. Luginbyhl apparently would have us do, that this technique

involved infliction of pain, as was described in Novitsky. We find no evidence in this

record that the tactic used by Officer Williams caused pain.

         Moreover, the two cases are simply not analogous. In Novitsky, the encounter was

with a person that the officer had no reason to suspect was either involved in a criminal

act or dangerous. We have already made it clear that in this case the officer reasonably

perceived that Luginbyhl might be both involved in criminal activity and potentially

armed. Moreover, while the record does not make it clear just what the challenged tactic

was, the record does make it clear that the technique was used only during the very brief

time required to conduct a patdown of Luginbyhl’s outer clothing.

         It is well established that the use of some force does not per se transform an

investigative detention into an arrest. Officers are “authorized to take such steps as were

reasonably necessary to protect their personal safety and to maintain the status quo during

the course of the stop.” United States v. Hensley, 469 U.S. 221, 235 (1985). Under

appropriate circumstances, restraints more intrusive than were used here may be valid in a

Terry stop. See Gallegos v. City of Colorado Springs, 114 F.3d 1024, 1030-31 (10th Cir.

1987).

                                              IV

         Counsel for defendant raises other issues at defendant’s request and with a

statement under Anders v. California, 386 U.S. 738 (1967), that counsel finds them

without merit. We agree with counsel’s assessment that these contentions are, to the

                                              -14-
extent that they are comprehensible, totally frivolous.

       Therefore, the judgment of the district court is AFFIRMED. Judge Hartz concurs

in the result and joins in the entire opinion except insofar as it relies on the officer’s

misunderstanding of the communication from the dispatcher.

                                                                   Entered for the Court

                                                                   William J. Holloway, Jr.
                                                                   Circuit Judge




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