935 F.3d 1124
10th Cir.2019Background
- Officer Dollar approached Manuel Romero at a church after spotting him peering into a window and knowing of recent church thefts/vandalism in the area; Dollar observed a pocket-knife clip and a bulge suggesting another knife.
- Dollar asked if Romero had weapons, ordered him not to reach for his belt, to set down his phone and water bottle, and to submit to a pat-down; Romero expressed confusion but largely complied (set items down, raised hands) after Dollar threatened arrest and drew a taser.
- Romero began lowering to the ground within five seconds of the command to do so; a pat-down revealed a knife; Dollar arrested Romero for resisting/obstructing an officer under N.M. Stat. § 30-22-1(D) and searched Romero’s backpack, finding a firearm.
- Romero was charged under 18 U.S.C. § 922(g)(1) and § 922(j); he moved to suppress the gun, arguing there was neither reasonable suspicion for the frisk nor probable cause for the arrest.
- The district court denied suppression, finding both a lawful Terry frisk and probable cause for arrest (and alternatively that any legal mistake was reasonable); Romero appealed after pleading guilty with a reserved suppression challenge.
- The Tenth Circuit majority reversed: it assumed (without deciding) the frisk was lawful but held Officer Dollar lacked probable cause to arrest Romero under § 30-22-1(D), so the search incident to arrest was unconstitutional; the court also rejected the district court’s reasonable-mistake-of-law alternative.
Issues
| Issue | Romero's Argument | Dollar/Government's Argument | Held |
|---|---|---|---|
| Whether officer had probable cause to arrest Romero for resisting/obstructing under N.M. Stat. § 30-22-1(D) | Romero: He did not refuse or overtly resist—he complied with orders and any delay/answers were not the resolute noncompliance the statute requires | Govt: Romero failed to immediately comply with multiple orders (set items down, hands on wall, go to ground), giving probable cause to arrest for refusal to obey | Reversed: No probable cause—Romero’s conduct did not amount to the kind of overt, repeated refusal required by New Mexico caselaw |
| Whether the search of Romero’s backpack was lawful as incident to arrest | Romero: Search incident to an unlawful arrest is unconstitutional; suppress firearm | Govt: Search valid because arrest was supported by probable cause (and alternatively a reasonable mistake of law) | Reversed: Because arrest lacked probable cause, the search-incident-to-arrest was unconstitutional; suppression warranted |
| Whether Officer Dollar’s mistake of law (relying on § 30-22-1(D)) was reasonable under Heien | Romero: The statute has been interpreted by New Mexico courts; mistake was not reasonable | Govt: Even if probable cause lacking, officer reasonably (but mistakenly) believed conduct violated statute | Rejected: Not reasonable—state caselaw clearly defined resisting/abusing and Romero’s conduct did not fit; Heien not applicable here |
| Whether to decide validity of the Terry frisk | Romero: Also argued no reasonable suspicion for frisk (alternative ground) | Govt: Frisk lawful under Terry (officer reasonably believed Romero armed and dangerous) | Majority: Assumed without deciding that frisk was lawful and based reversal on lack of probable cause for arrest (did not resolve frisk issue) |
Key Cases Cited
- Terry v. Ohio, 392 U.S. 1 (1968) (framework for limited protective pat-downs when officer reasonably suspects criminal activity and that suspect may be armed and dangerous)
- Katz v. United States, 389 U.S. 347 (1967) (warrantless searches/seizures generally unreasonable under Fourth Amendment)
- United States v. Robinson, 414 U.S. 218 (1973) (search incident to a lawful custodial arrest requires no additional justification)
- Ornelas v. United States, 517 U.S. 690 (1996) (probable cause review is de novo with due weight to inferences by factfinders)
- Heien v. North Carolina, 574 U.S. 54 (2014) (Fourth Amendment can tolerate reasonable mistakes of law for reasonable-suspicion stops)
- United States v. Morris, 247 F.3d 1080 (10th Cir. 2001) (definition of probable cause for arrest)
- Keylon v. City of Albuquerque, 535 F.3d 1210 (10th Cir. 2008) (evasive speech alone does not satisfy resisting/obstructing under N.M. law)
- Storey v. Taylor, 696 F.3d 987 (10th Cir. 2012) (examples of overt refusal to obey repeated officer commands)