                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 22, 2009
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,
                                                        No. 08-4058
 v.                                           D.C. No. 1:07-CR-00043-TC-001
                                                         (D. Utah)
 RICKY RAY CRESPIN,

              Defendant-Appellant.



                           ORDER AND JUDGMENT *


 Before HENRY, Chief Judge, McWILLIAMS and GORSUCH, Circuit Judges.



      Following the discovery of a firearm during the warrantless search of a

vehicle in which Ricky Ray Crespin was a passenger, Mr. Crespin was indicted on

one count of possessing a firearm as a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1). Mr. Crespin filed a motion to suppress the firearm, contending that

the police lacked reasonable suspicion for the investigative stop and his



      *
        This order and judgment is not binding precedent except under the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.
subsequent detention. See Rec. vol. I, doc. 37 (Order filed Nov. 28, 2007). The

district court held an evidentiary hearing, and heard oral arguments on the

motion, before concluding that “[the Officer] had a reasonable suspicion that the

[vehicle] was involved in criminal activity to justify stopping the vehicle . . .

[and] there was reasonable concern for officer safety to justify the brief

detention.” Id. at 7. Accordingly, the district court denied Mr. Crespin’s motion

to suppress.

      Evaluating the totality of the circumstances in the instant case–giving due

weight to the factual inferences drawn by Officer Huckaby, the police officer

responsible for the investigatory stop, and those of the district court–we conclude

that Officer Huckaby possessed specific and articulable facts sufficient to render

the stop reasonable within the meaning of the Fourth Amendment. Accordingly,

we affirm.

                                         ~~~

      A jury convicted Mr. Crespin of possessing a firearm as a convicted felon,

and the district court sentenced him to 120 months’ imprisonment. On appeal,

Mr. Crespin argues that the warrantless search violated his Fourth Amendment

rights because the executing officer relied only on “broad, non-specific criteria in

making the stop, and lacked a particularized basis sufficient to justify a Terry




                                           2
stop.” ** See Aplt’s Br. at 7; see also Terry v. Ohio, 392 U.S. 1 (1968)).

      Beginning with Terry v. Ohio, the United States Supreme Court has

recognized that “a law enforcement officer’s reasonable suspicion that a person

may be involved in criminal activity permits the officer to stop the person for a

brief time and take additional steps to investigate further.” Hiibel v. Sixth Jud.

Dist. Ct., 542 U.S. 177, 185 (2004). Indeed, the Supreme Court has recognized

that detention of both suspects and non-suspects may be necessary in some

instances to ensure officer safety and control over a crime scene. See United

States v. King, 990 F.2d 1552, 1560 (10th Cir. 1993). To be constitutionally

valid, the officer’s action must be “justified at its inception, and . . . reasonably

related in scope to the circumstances which justified the interference in the first

place.” United States v. Sharpe, 470 U.S. 675, 682 (1985) (internal citations

omitted).

      As in all appeals from a district court’s order on a motion to suppress, we

approach Mr. Crespin’s appeal viewing the evidentiary record in the light most

favorable to the district court’s ruling and accepting its factual findings unless

clearly erroneous. We assess de novo the legal questions of whether a seizure

occurred and whether it was reasonable under the Fourth Amendment. United


      **
         Although the district court determined that both the investigatory stop
and the subsequent detention of Mr. Crespin were reasonable, Mr. Crespin’s
appeal focuses entirely on the stop itself. Accordingly, we limit our review to the
reasonableness of the investigatory stop.

                                           3
States v. Cortez-Galaviz, 495 F.3d 1203, 1205 (10th Cir. 2007).

      In the present case, Officer Ken Huckaby, an Ogden, Utah police officer,

was dispatched to a crime scene in response to a third-party complaint that a

Hispanic male, dressed in a white t-shirt and hat, had shot at a green Volkswagen

Jetta, and then left the scene on foot. Officer Huckaby testified that he arrived at

the scene–an area renowned for a “large amount of crime”–within two minutes of

his dispatch. See Aplt’s Br. at 3.

      Upon arrival, he observed “individuals dressed in gang attire with shaved

heads climb into [a] minivan.” See Rec. vol. I, doc. 37, at 5. Officer Huckaby

testified that he saw “no other activity and no one else leaving the area.” Id. at 6.

Officer Huckaby noticed that one of the minivan’s passengers “look[ed] like the

person that [he] had been after for a while that had felony warrants.” Id. He also

recognized “[another passenger] as a known gang member.” Rec. vol. I, doc. 27,

at 2. Upon seeing Officer Huckaby’s marked police vehicle, “all occupants of the

minivan reacted with the ‘oh crap look,’ resembling ‘somebody that’s got

something to hide.’” Aplee’s Br. at 12 (quoting Rec. vol. II, at 13 (Tr. of Sept. 28,

2007 Evid. Hr’g)).

      As the Supreme Court instructed in United States v. Arvizu,

      When discussing how reviewing courts should make
      reasonable-suspicion determinations, we have said repeatedly that
      they must look at the “totality of the circumstances” of each case to
      see whether the detaining officer has a “particularized and objective
      basis” for suspecting legal wrongdoing. This process allows officers

                                           4
      to draw on their own experience and specialized training to make
      inferences from and deductions about the cumulative information
      available to them that might well elude an untrained person.

534 U.S. 266, 277-278 (2002) (internal quotations omitted). Taking into account

the facts known to Officer Huckaby, and the conclusions of the district court, we

conclude that the totality of the circumstances in the instant case gave rise to

reasonable suspicion sufficient to constitutionally justify an investigatory stop.

Even though “each of these factors alone [may be] susceptible to innocent

explanation, and some factors are more probative than others[, t]aken together, we

believe they sufficed to form a particularized and objective basis for . . . stopping

the vehicle, making the stop reasonable within the meaning of the Fourth

Amendment.” Id. at 277-278; see also Illinois v. Wardlow, 528 U.S. 119, 124

(2000) (“[N]ervous, evasive behavior is a pertinent factor in determining

reasonable suspicion.”); United States v. DeJear, 552 F.3d 1196, 1201 (10th Cir.

2009) (“[T]he fact that conduct occurs in an area known for criminal activity [is

an] appropriate factor[] to consider in determining whether reasonable suspicion

exists.”). Accordingly, we AFFIRM the district court’s denial of Mr. Crespin’s

motion to suppress, and we AFFIRM his sentence and conviction.

                                               Entered for the Court


                                               Robert H. Henry
                                               Chief Judge




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