                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 18, 2012
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellant,

 v.                                                     No. 11-2142
                                              (D.C. No. 1:10-CR-02453-MV-1)
 ALFREDO ARAGONES,                                        (D.N.M.)

          Defendant-Appellee.



                             ORDER AND JUDGMENT *


Before GORSUCH and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.



      After a police officer found Alfredo Aragones with a sawed-off rifle, he

was arrested for being a felon unlawfully in possession of a firearm. In response

to the charge, Mr. Aragones moved to suppress evidence of the gun, claiming it

was discovered during an unconstitutional seizure. The district court agreed and

granted the motion. The government now appeals that decision, and we reverse.




      *
        This order is not binding precedent except under the doctrines of law of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.
      Many details are disputed, but on appeal the parties have agreed to the

following essential facts as found by the district court and they suffice to resolve

this matter.

      As Mr. Aragones was walking along a street in a high crime neighborhood

of Albuquerque one day, a police officer approached in a patrol car. The officer

noticed Mr. Aragones had a large tattoo on the back of his head, one “consistent

with gang affiliation.” D. Ct. Op. at 2. As soon as Mr. Aragones saw the officer,

he turned abruptly away and approached the back door of a nearby house. The

outer wrought iron door was closed, but the interior door was open, allowing Mr.

Aragones to see into the home. Mr. Aragones didn’t verbally communicate with

the residents of the house, though they could see him; instead, he stood at the

door, looking in. The officer exited his car and asked Mr. Aragones to approach

him, but Mr. Aragones ignored the request. As the officer began to walk toward

him, Mr. Aragones looked left and right in a manner the officer described as

“consistent with . . . an individual that’s looking for an exit . . . his best exit route

to run.” Id. At that point, the officer also noticed Mr. Aragones had his hand in

his pocket. Fearing Mr. Aragones might have a weapon, the officer asked him to

remove his hand, but again Mr. Aragones did not respond. The officer then

continued to approach (possibly with his gun drawn and pointed at the ground)

and this time ordered Mr. Aragones to remove his hand from his pocket. Still

again, Mr. Aragones did not comply. The officer then grabbed Mr. Aragones’s

                                          -2-
wrist, handcuffed him, and discovered the sawed-off rifle in his trousers. All this

happened quickly: the district court found that Mr. Aragones had been standing

at the door for only a matter of seconds when the officer grabbed his wrist.

      In approaching the motion to suppress, the district court began by holding

that for purposes of the Fourth Amendment the officer “seized” Mr. Aragones at

the moment he ordered Mr. Aragones to remove his hand from his pocket. The

court reasoned that the seizure began then because by then a reasonable person

would not have believed he was “free to leave.” See Michigan v. Chesternut, 486

U.S. 567, 573 (1988). As the Supreme Court has explained, however, the “not

free to leave” test “states a necessary, but not a sufficient, condition for seizure.”

California v. Hodari D., 499 U.S. 621, 628 (1991) (emphasis in original). In the

absence of actual physical restraint, an assertion of authority, like the oral

direction the officer gave here, cannot constitute a seizure unless the suspect

actually submits to it. See id. at 629; see also United States v. Salazar, 609 F.3d

1059, 1064 (10th Cir. 2010). Because Mr. Aragones didn’t submit to the officer’s

order to remove his hand from his pocket, he was not seized at that moment. See

United States v. Harris, 313 F.3d 1228, 1234-35 (10th Cir. 2002) (a suspect who

failed to submit to an officer’s assertion of authority — including an order to

remove his hands from his pockets — was not seized until the officer used

physical force); United States v. Martin, 613 F.3d 1295, 1300-01 (10th Cir. 2010).

This is not to question Mr. Aragones was soon “seized” for Fourth Amendment

                                          -3-
purposes, only to say it didn’t occur at the moment he disregarded the officer’s

direction, as the district court held.

      Even overlooking this problem, however, a larger one exists. An

Albuquerque public nuisance ordinance prohibits “[e]ntering upon any private

property and looking into any occupied dwelling without the consent of the

occupant or owner of the dwelling.” Albuquerque Ord. § 12-2-21(B). No one

challenges the constitutionality of this law. And no one disputes that by the time

the officer issued his (disregarded) command to Mr. Aragones he already knew of

Mr. Aragones’s (1) gang tattoo; (2) presence in a high crime area; (3) abrupt

move away from the officer as soon as he saw him; (4) glancing about in a

manner consistent with an attempt to find a route to flee; and, (5) approach to the

home’s back door without conversing with the residents visible inside. In light of

these facts, a reasonable officer could have suspected that Mr. Aragones wasn’t a

welcome guest and did not have consent to look into the home. And reasonable

suspicion of criminal activity like this is enough to permit an officer to effect a

brief investigative detention to determine whether or not a legal violation is, in

fact, taking place. See Terry v. Ohio, 392 U.S. 1, 22 (1968) (“[A] police officer

may in appropriate circumstances and in an appropriate manner approach a person

for purposes of investigating possibly criminal behavior even though there is no

probable cause to make an arrest.”).




                                         -4-
      This conclusion is compelled by the Supreme Court’s leading cases on

investigatory detentions. In Illinois v. Wardlow, 528 U.S. 119 (2000), the

defendant fled when he saw officers in a police car look in his direction. The

Court held that, while this behavior wasn’t “necessarily indicative of

wrongdoing,” it was “certainly suggestive of such” and its ambiguity permitted

the officers to stop the defendant briefly to investigate. Id. at 124. In Terry, two

men met on a street corner and then repeatedly paced up and down the street

looking into a particular store window. Although they did nothing illegal,

because a reasonable officer could have suspected them of “casing” the store for

“a stick-up,” “further investigation” by means of a brief detention was legally

permissible. 392 U.S. at 6, 22. Precisely the same must be said in this case.

Whether or not Mr. Aragones had actually done anything illegal, a reasonable

officer could have suspected him of violating the law, and this is enough to justify

an investigative detention. The most fundamental rule of law is that like cases

should be decided alike, and this one is materially indistinguishable from

Wardlow and Terry.

      In reaching its contrary holding, the district court emphasized that Mr.

Aragones’s conduct was consistent with innocent behavior. Mr. Aragones’s

abrupt turn could have arisen from “a simple interest in avoiding contact with the

police.” D. Ct. Op. at 17. And his conduct at the door was “consistent with the

most benign of conduct, including a visit to a friend’s house or calling upon a

                                         -5-
neighbor for assistance.” Id. at 19. Because of this, the district court held, the

officer should have waited longer to rule out the possibility that Mr. Aragones

was a welcome guest at the home before seizing him. Id.

         The problem is that conduct giving rise to reasonable suspicion sufficient to

support an investigative detention can be — and often is — consistent with

innocent behavior. An officer is not required by the Fourth Amendment to “rule

out the possibility of innocent conduct” before performing a brief stop to

investigate the situation. United States v. Arvizu, 534 U.S. 266, 277 (2002);

United States v. McHugh, 639 F.3d 1250, 1256 (10th Cir. 2011). Even in

Wardlow and Terry, “the conduct justifying the stop was ambiguous and

susceptible of an innocent explanation.” Wardlow, 528 U.S. at 125. All that is

required for an investigative detention consistent with the Fourth Amendment is

“some minimal level of objective justification,” based on the totality of the

circumstances, for suspecting that criminal activity “may be afoot.” United States

v. Sokolow, 490 U.S. 1, 7-8 (1989) (quotations omitted). This standard “is a less

demanding standard than probable cause and requires a showing considerably less

than preponderance of the evidence.” Wardlow, 528 U.S. at 123 (emphasis

added). And that standard was met here no less than it was in Wardlow and

Terry.




                                          -6-
      The district court’s order granting Mr. Aragones’s motion to suppress is

reversed and the case is remanded for further proceedings consistent with this

order and judgment.



                                      ENTERED FOR THE COURT

                                      PER CURIAM




                                       -7-
