                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 December 9, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellant,                    No. 09-2021
          v.                                           (D. New Mexico)
 LUIS CEBALLOS,                                (D.C. No. 1:08-CR-00994-JB-1)

               Defendant - Appellee.


                            ORDER AND JUDGMENT *


Before BRISCOE, McWILLIAMS, and MURPHY, Circuit Judges.



I.    Introduction

      Defendant-Appellee Luis Ceballos was charged in a multi-count indictment

with drug and firearm offenses. The evidence supporting the charges was

obtained as a result of a traffic stop. Ceballos moved to suppress the evidence,

arguing the stop was a seizure not supported by probable cause or reasonable

articulable suspicion. The district court granted Ceballos’s motion, rejecting the

Government’s argument that the encounter between Ceballos and the officer was


      *
        This order and judgment is not binding precedent except under the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.
wholly consensual and concluding the officer did not have reasonable articulable

suspicion to initially detain Ceballos. The government filed this interlocutory

appeal pursuant to 18 U.S.C. § 3731. Because we conclude the officer had

reasonable articulable suspicion to temporarily detain Ceballos, we reverse the

district court’s ruling.

II.   Background

      On June 11, 2007, Officer Valentin Gallegos was patrolling an area in

Taos, New Mexico, when he observed a person, later determined to be a teenage

girl, dressed in dark clothing walking down a main road. Gallegos testified the

pedestrian caught his attention because it was late at night, there was not much

traffic, and she was wearing clothing that covered her face. While seated in his

patrol car waiting for the pedestrian to pass in front of his headlights, Gallegos

observed a white pickup truck slow down as it drove past the pedestrian. The

truck continued along the main road for approximately fifty or sixty yards but

then made a U-turn and traveled back toward the pedestrian. When the pedestrian

left the main road and began walking eastbound down a residential side street, the

truck also turned down the side street. Gallegos parked at the top of the side

street and observed the truck pull up next to the pedestrian and stop.

      Gallegos turned down the residential street and contacted the pedestrian.

She told Gallegos the driver of the truck had offered her a ride but she declined,

telling him she “just lived down the road in the condos.” She also told Gallegos

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she did not know the driver. Gallegos then watched the truck as it traveled

eastbound down the street and pulled into a driveway. Instead of turning around

and returning to the main road, however, the truck backed out of the driveway and

parked just east of the driveway, pointed in the direction the pedestrian was

walking. Gallegos testified the truck was stopped with its lights off in a very

dark area of the road.

      Gallegos activated his emergency lights and pulled up behind the truck.

After calling in the license plate number, Gallegos got out of his patrol car and

approached the truck. The driver, defendant-appellee Luis Ceballos, confirmed

the female pedestrian had refused his offer of a ride. Gallegos testified he

smelled alcohol on Ceballos’s breath “almost immediately” after he started

talking to him. Gallegos asked Ceballos for his license, registration, and proof of

insurance. Ceballos admitted he did not have a driver’s license but reached into

his glove box to retrieve the registration and proof of insurance. As Ceballos

leaned forward, Gallegos observed what appeared to be a rifle between the front

seats. When asked, however, Ceballos denied possessing a weapon. At that

point, Gallegos asked Ceballos to step out of the truck.

      Gallegos placed Ceballos in the back seat of the patrol car and returned to

Ceballos’s truck to retrieve the firearm. While removing the firearm from the

truck, Gallegos observed a large amount of cash scattered around the passenger

seat and a wallet that could not close because it contained so much money.

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Officers later discovered cocaine and an additional firearm in the vehicle. A pat-

down search uncovered more cocaine and ammunition.

       Ceballos was arrested and charged with being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1); possession with intent to distribute

less than 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1); and

possession of a firearm in furtherance of a drug trafficking crime, in violation of

18 U.S.C. § 924(c)(1)(A)(i). He moved to suppress the evidence seized during

the encounter with Officer Gallegos, as well as his post-arrest inculpatory

statements. After an evidentiary hearing at which both Ceballos and Gallegos

testified, the district court granted the motion, concluding the initial traffic stop

violated the Fourth Amendment because it was a seizure not supported by

reasonable articulable suspicion. The Government then brought this interlocutory

appeal. See 18 U.S.C. § 3731.

III.   Discussion

       When reviewing a grant of a motion to suppress evidence, this court

accepts the district court’s factual findings unless clearly erroneous. United

States v. Jurado-Vallejo, 380 F.3d 1235, 1238 (10th Cir. 2004). The ultimate

determination of reasonableness under the Fourth Amendment, however, is a

question of law this court reviews de novo. Id. The Government does not

challenge any of the district court’s factual findings. Instead, its appeal focuses

on the district court’s ruling that the initial detention was not reasonable under the

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Fourth Amendment because it was not justified by reasonable articulable

suspicion. 1 See United States v. Cline, 349 F.3d 1276, 1286 (10th Cir. 2003)

(stating the first step in our review of the constitutionality of a traffic stop focuses

on “whether the officer’s action was justified at its inception” (quotation

omitted)).

      The district court based its ruling, in part, on Gallegos’s testimony that he

was acting on a “hunch” when he stopped Ceballos. See United States v. DeJear,

552 F.3d 1196, 1200 (10th Cir. 2009) (reiterating that unparticularized hunches

about criminal activity are not sufficient to justify an investigative detention

under the Fourth Amendment). But Gallegos’s subjective characterization of his

actions is irrelevant. See United States v. Winder, 557 F.3d 1129, 1134 (10th Cir.

2009). This court judges his “conduct in light of common sense and ordinary

human experience, and we accord deference to an officer’s ability to distinguish

between innocent and suspicious actions.” United States v. Williams, 271 F.3d

1262, 1268 (10th Cir. 2001) (quotation and citation omitted).

      A review of the totality of the circumstances shows Gallegos was not acting

on an unparticularized hunch; during his testimony he articulated specific facts

that caused him to suspect Ceballos intended to assault or abduct the teenage

pedestrian. Specifically, at the time Gallegos initiated the traffic stop, he had


      1
      The Government does not appeal the district court’s ruling that the
encounter between Gallegos and Ceballos was an investigative detention.

                                          -5-
observed Ceballos slow his vehicle as he passed a teenage girl walking alone late

at night. He then observed Ceballos alter his route by making a U-turn and

following the girl down a narrow, nearly deserted residential street. Ceballos

pulled alongside the girl, who he did not know, and asked her if she wanted a

ride. She refused, telling him she lived up the street. Ceballos then drove further

down the road, pulled into a driveway as if to turn around and return to the main

road, but instead backed out and drove a few feet further east, in the same

direction the girl was walking. He parked in a dark location and turned off his

lights.

          The district court summarized this evidence as “a young man in a pickup

talking to a woman walking down the street.” This statement greatly

oversimplifies the situation and ignores many relevant facts that support the

objective reasonableness of the investigative detention. Additionally, the district

court’s observation that the teenage pedestrian did not manifest any apprehension

or seem concerned for her safety does not negate Officer Gallegos’s reasonable

suspicion in any way. See United States v. Johnson, 364 F.3d 1185, 1187, 1191-

92 (10th Cir. 2004).

          We agree with the Government that Officer Gallegos had reasonable

suspicion to stop and detain Ceballos. Ceballos showed an interest in a teenage

girl he did not know, to the point that he changed his route to follow her down a

dark street, offered her a ride, and then parked where the girl would be required to

                                           -6-
walk past him as she continued to her home. The facts found by the district court,

viewed in totality, amply support the constitutionality of the investigative

detention. 2

IV.    Conclusion

       The judgment of the district court granting Ceballos’s motion to suppress is

reversed and the matter remanded for further proceedings not inconsistent with

this opinion.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




       2
        Because we conclude Officer Gallegos had reasonable suspicion to stop
and detain Ceballos, it is unnecessary to address the Government’s alternative
argument that the stop was valid because Gallegos observed Ceballos commit a
traffic violation. See United States v. Woods, No. 08-3245, 2009 WL 3262018, at
*3 (10th Cir. Oct. 13, 2009).

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