                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                            April 9, 2007
                                  TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                            Clerk of Court


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

               Plaintiff-Appellee,                         No. 06-5163
          v.                                            (N.D. Oklahoma)
 CH RISTOPHER M ICH AEL                            (D.C. No. 06-CR-45-HDC)
 H ELTO N,

               Defendant-Appellant.




                             OR D ER AND JUDGM ENT *


Before H E N RY, SE YM OU R, and EBEL, Circuit Judges. **


      In M ay 2006, Christopher M ichael Helton pleaded guilty to being a felon in

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

924(a). M r. Helton entered into a plea agreement after the district court denied

his m otion to suppress the evidence that served as the basis of this conviction. H e




      *
        This order and judgment is not binding precedent except under the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.
      **
        After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G ).
The case is therefore ordered submitted without oral argument.
reserved the right to raise this appeal. W e exercise jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742, and affirm.

                                    I. BACKGROUND

A.    F ACTS

      The district court found the following with regard to M r. Helton’s arrest:

      The District Court of Tulsa County issued a felony arrest warrant for
      Lisa Spiegal. 1 On January 9, 2006, Duane Guthrie, a bail bond recovery
      agent, contacted Tulsa Police Officer M ark Kennedy and related that
      Guthrie had seen M s. Spiegal exit a dark Ford truck and enter the
      residence at 23 North Louisville Avenue in Tulsa. Kennedy knew
      G uthrie, had relied on information Guthrie gave him in the past, and
      had never known Guthrie to give unreliable information. Kennedy, a
      member of the Northern O klahoma Fugitive Task Force, had a file in
      his vehicle that contained Spiegal’s picture, descriptive information,
      and a copy of her outstanding warrant. . . . At the scene, Guthrie
      identified a dark Ford truck with tinted w indows in the driveway of the
      residence as the same truck from which Spiegal exited. Kennedy
      surveilled the residence with binoculars. Kennedy saw a woman whom
      he believed to be Spiegal sitting on the passenger side of the dark Ford
      truck with tinted windows.

      Defendant Helton exited the residence, entered the dark Ford truck, and
      drove away with the woman. Officer Kennedy followed the truck in an
      unmarked vehicle and around the 800 block of North Louisville turned
      on his emergency equipment. Helton did not immediately stop, so
      Kennedy briefly turned on his vehicle’s siren. Helton turned into the
      drivew ay of 802 North Louisville, exited the truck, and walked tow ard
      the residence. Kennedy exited his vehicle, observed that Helton
      appeared nervous, and asked Helton to raise his hands. Helton did not
      comply and continued walking toward the residence, his right hand in



      1
         M s. Spiegel is also sometimes referred to as M s. Lisa Batt, which is
apparently an alias. W e also note that the district court spells M s. Spiegel’s name
with an “a” but the government and M r. Helton spell it with an “e” (Spiegel). It
is not clear w hich is correct.

                                          2
      his pocket. Kennedy again asked Helton to raise his hands. H elton
      continued to walk away with his left hand raised. Using his right hand,
      Helton rem oved a .32 caliber handgun and a glass smoking pipe from
      his w aistband and threw both into a bush. Helton then raised both
      hands and at Kennedy’s command laid on the ground.

      After arresting Helton, Kennedy determined that the truck’s passenger
      was not Lisa Spiegal. . . .

Dist. Ct. Order at 1-2 (emphasis supplied) (internal quotation marks omitted).

B.    D ISTRICT C OURT D ECISION AND I SSUES ON A PPEAL

      The district court concluded that both the initial traffic stop and the

detention of M r. Helton were reasonable under the Fourth Amendment. The court

observed that M r. Guthrie was a proven and reliable informant and that Officer

Kennedy made every effort to make an accurate identification. Thus, under the

totality of the circumstances O fficer Kennedy’s reliance on the warrant for M s.

Spiegel’s arrest was both objectively reasonable and in good faith. Therefore, the

fact that he was ultimately mistaken about the passenger’s identity did not

invalidate the stop.

      The district court also found that M r. Helton was subject to two separate

seizures. The first was the traffic stop. However, the district court concluded

that the initial seizure terminated “[w]hen [M r.] Helton ignored Officer Kennedy

and walked aw ay.” Id. at 3. According to the district court, the second seizure

occurred when M r. Helton was placed under arrest after Officer K ennedy saw him

fling a pistol and a glass smoking device into the bushes, thereby creating



                                          3
probable cause. Alternatively, the court found that, even if the entire interaction

constituted a seizure, “[c]onsiderations of officer safety” rendered it reasonable

under the Fourth Amendment. Id. at 4.

      M r. Helton reserved the right to appeal (1) whether the initial stop of his

vehicle was supported by reasonable suspicion; and (2) whether he continued to

be seized under the Fourth Amendment after he began to walk away from the

scene of the stop.

                                 II. D ISC USSIO N

A.    S TANDARD OF R EVIEW

      “W hen reviewing the 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).

B.    T HE T RAFFIC S TOP

      The Fourth Amendment provides: “The right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no W arrants shall issue, but upon probable

cause, supported by oath and affirmation, and particularly describing the place to

be searched, and the persons or things to be seized.” U .S. Const. amend. IV .

Because it is a seizure for the purposes of the Fourth Amendment, a traffic stop

                                          4
must be reasonable. United States v. Taverna, 348 F.3d 873, 877 (10th Cir. 2003).

In order to assess the reasonableness of a traffic stop, we look to the principles

governing investigative detentions. United States v. Guerrero-Espinoza, 462 F.3d

1302, 1307 (10th Cir. 2006). This court examines the reasonableness of

investigative detention under totality of the circumstances from the perspective of

a reasonable officer. United States v. Quintana-Garcia, 343 F.3d 1266, 1270

(10th Cir. 2003).

      It is important to note that the mere fact that M r. Helton’s passenger was

not the individual named in the warrant does not render the initial stop invalid.

Hill v. California, 401 U .S. 797, 804 (1971) (upholding the validity of an arrest

based on a misidentification of the individual in the warrant because “[s]ufficient

probability, not certainty, is the touchstone of reasonableness under the Fourth

Amendment and on the record before us the officers’ mistake was understandable

and the arrest a reasonable response to the situation facing them at the time.”).

Instead, the stop was valid if Officer Kennedy reasonably relied on that warrant

under the totality of the circumstances.

      M r. Helton contends that Officer Kennedy did not have reasonable

suspicion to make the initial traffic stop, in part, because he could not say with

certainty that M s. Spiegel was not still in the house. In addition, M r. Helton

emphasizes that M s. Spiegel’s Department of Corrections photos contain an

ethnic description classifying M s. Spiegel as Native American, and the passenger

                                           5
in M r. Helton’s car was caucasian. He also makes much of the fact that Officer

Kennedy used binoculars to observe the passenger of M r. H elton’s car.

      Despite M r. Helton’s contentions, we agree with the district court, which

concluded,

      a reliable and disinterested source[] informed Officer Kennedy that he
      could find Lisa Spiegal, a person wanted on an outstanding felony
      warrant, at a particular location and that she had been the passenger in
      a particular vehicle. Officer Kennedy, equipped w ith binoculars, an
      arrest warrant, a photograph, and the identifying characteristics of Lisa
      Spiegal, believed in good faith that the passenger of the vehicle was
      Lisa Spiegal.

Dist. Ct. Order at 4. In short, Officer Kennedy’s identification of the passenger

as M s. Spiegel and his decision to stop the vehicle on the basis of the arrest

warrant were reasonable.

      M r. Helton’s argument that Officer Kennedy’s use of binoculars

undermines the reasonability of his reliance on the warrant is unpersuasive. The

implication of M r. Helton’s contention is that if the officer had to use binoculars,

then he was not close enough to the suspect. However, there was no testimony

that Officer Kennedy was unable to see the suspect without binoculars; rather,

Officer K ennedy used binoculars to get a closer look and verify the tip.

      M r. Helton’s contentions about M s. Spiegel’s ethnicity are similarly

unavailing. The mere fact that M s. Spiegel’s department of corrections

documents identify her as Native American does not mean that it was

unreasonable for Officer Kennedy to conclude she looked caucasian. W hile the

                                           6
state m ay feel the need to classify people into one ethnicity another, the reality is

that ethnic identity and appearance frequently defy rigid categorization. M any

people w ho identify themselves as A merican Indian may not appear to be full-

blood. In fact, Officer Kennedy’s experience bears out the truth of this

observation: he testified at the suppression hearing that his wife is half Native

American, but that she appears caucasian. Furthermore, it is important to note

that whether M s. Spiegel’s warrant picture and description sufficiently matched

the passenger are questions of fact that this court should not overturn absent clear

and convincing evidence to the contrary. M r. Helton has presented no evidence

that w ould allow us to disturb the district court’s finding.

      Finally, M r. Helton’s observation that M r. Guthrie never informed Officer

Kennedy that M s. Spiegel was leaving the house is frivolous. Nothing indicates

that the informant was in a position to relay such information; nor does the

absence of this affirmative declaration on M r. Guthrie’s part give us grounds to

overturn the district court’s conclusion that Officer Kennedy reasonably believed

that the woman in M r. H elton’s vehicle was M s. Spiegel.

C.    S EIZURE OF M R . H ELTON F OLLOWING THE T RAFFIC S TOP

      The government does not quarrel with M r. Helton’s contention that he was

seized within the meaning of the Fourth Amendment after he exited the vehicle.

Instead, the government maintains that Officer K ennedy’s reasonable safety

concerns justified the seizure. Accepting the government’s concession for the

                                           7
purposes of this order, we focus only on whether it was reasonable for Officer

Kennedy to order M r. Helton to remain in the vehicle and, once he exited, to

order him to stop walking away and put his hands in the air.

      The essence of the officer safety inquiry is whether the officer’s actions

were reasonable in light of the potential threat. United States v. M elendez-

Garcia, 28 F.3d 1046, 1052 (10th Cir. 1994). W e evaluate Officer Kennedy’s

comm and to M r. Helton in light of the totality of the circumstances. United

States v. W illiams, 271 F.3d 1262, 1268 (10th Cir. 2001) (“[W]hether an

investigative detention is supported by an objectively reasonable suspicion of

illegal activity turns on our review of the totality of the circumstances.”).

      In this case, the totality of the circumstances included a traffic stop on the

basis of an arrest warrant for felony drug charges and M r. Helton’s unusual

decision to walk away from Officer Kennedy with his right hand concealed. The

Supreme Court has observed that an officer faces “inordinate risk . . . as he

approaches a person seated in an automobile.” Pennsylvania v. M imms, 434 U.S.

106, 110 (1977). “Indeed, it appears that a significant percentage of murders of

police officers occurs when the officers are making traffic stops.” Id. (internal

quotation marks omitted). M oreover, in executing an arrest based on probable

cause, officers may temporarily detain a bystander if his or her relationship with

the arrestee is unclear and if reasonable concerns for officer safety justify doing

so. Thompson v. City of Lawrence, 58 F.3d 1511, 1517 (10th Cir. 1995).

                                           8
       Taking into account the totality of the circumstances, we agree with the

district court that

       it was reasonable for Officer Kennedy to order Helton to return to the
       truck once Helton exited. Helton appeared nervous and his right hand
       was obscured from Officer Kennedy’s view. Helton’s actions created
       an objectively reasonable apprehension for an officer’s safety during a
       traffic stop and therefore an order to return to the car was reasonable
       under the Fourth Amendment.

Dist. Ct. Order at 4. Notwithstanding M r. Helton’s attorney’s personal guarantee

that M r. Helton was merely disposing of his firearm in the bushes, it was clearly

reasonable for Officer Kennedy to believe that M r. Helton’s temporary detention

was necessary to ensure his own safety.

                               III. C ON CLU SIO N

       Accordingly, we AFFIRM the district court’s denial of M r. Helton’s motion

to suppress.


                                       Entered for the Court,


                                       Robert H. Henry
                                       Circuit Judge




                                          9
