United States v. Hernandez, 847 F.3d 1257

Background

On Oct. 20, 2014, two uniformed Denver officers in a marked cruiser observed Phillip Hernandez walking at night next to a fenced construction site in a high‑crime area.
Officers pulled alongside and questioned Hernandez as he continued walking; he answered while the car paralleled him.
An officer asked Hernandez to stop; he complied, provided his name and a false DOB, and officers learned via in‑car computer of an outstanding warrant.
When officers exited the cruiser and approached, Hernandez began to walk away, reached toward his waistband, said he had a gun, and a revolver fell out; he was arrested.
Hernandez moved to suppress, arguing the encounter became a Fourth Amendment seizure without reasonable suspicion; the district court granted suppression.
The Tenth Circuit affirmed, holding (1) the officers’ request that Hernandez stop, given the circumstances, converted the encounter into a seizure; (2) the officers lacked reasonable suspicion; and (3) the government waived any Strieff/attenuation argument raised for the first time on appeal.

Issues

Issue	Hernandez's Argument	Government's Argument	Held
Whether the officers’ interaction became a Fourth Amendment "seizure" when they asked Hernandez to stop	The request to stop—two uniformed officers paralleling him at night in an unlit area—was a show of authority; a reasonable person would not feel free to leave	Officers were permitted to approach and question; mere request to stop did not transform a consensual encounter into a seizure	Seizure occurred: totality (night, isolated location, marked car paralleling, two officers, officer’s request and plaintiff’s attempt to avoid) supports that a reasonable person wouldn’t feel free to leave (affirmed)
Whether officers had reasonable, articulable suspicion to justify an investigative detention (Terry stop)	Officers’ facts (location near construction site with recent thefts; high‑crime area; walking in street vs. sidewalk; dark; black clothing; two backpacks) did not amount to particularized suspicion; combined facts were inchoate hunches	These facts, plus Hernandez’s failure to recall his grandmother’s address when questioned, justified reasonable suspicion to stop him	No reasonable suspicion: district court correctly found officers’ stated factors were only generalized hunches; government did not raise the grandmother‑address argument below and waived it on appeal; court agrees suppression appropriate
Whether Strieff attenuation doctrine could cure an initial illegal stop (warrant discovery attenuated taint)	Hernandez: government waived attenuation by not arguing it below	Government: after Strieff (decided while appeal pending) argued attenuation may apply and the case should be remanded	Court declined to consider Strieff: government waived the attenuation argument by failing to raise it in district court and may not raise it for the first time in a Rule 28(j) letter; remand not warranted

Key Cases Cited

Terry v. Ohio, 392 U.S. 1 (establishes investigative stop standard requiring reasonable suspicion)
Utah v. Strieff, 136 S. Ct. 2056 (Supreme Court application of attenuation doctrine where an outstanding warrant is discovered)
Florida v. Bostick, 501 U.S. 429 (consensual encounters: officers may approach and ask questions)
Michigan v. Chesternut, 486 U.S. 567 (contextual factors: police car paralleling pedestrian can be intimidating but not dispositive)
INS v. Delgado, 466 U.S. 210 (consensual encounters in workplace context)
Florida v. Rodriguez, 469 U.S. 1 (consensual encounter where officer asked subject to step aside and talk)
United States v. Drayton, 536 U.S. 194 (bus passenger encounter: focus on coerciveness, not location)
Illinois v. Wardlow, 528 U.S. 119 (suspicion from nervous flight or presence in high‑crime area)
Sokolow v. United States, 490 U.S. 1 (reasonable suspicion assessed under totality of the circumstances)
United States v. Simpson, 609 F.3d 1140 (10th Cir.: outstanding warrant as intervening circumstance; reasonable suspicion burden on government)