Lead Opinion
ORDER AND JUDGMENT
Defendant-Appellant Joseph Paul House entered a conditional plea of guilty to one count of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and was sentenced to thirty-nine months’ imprisonment and three years’ supervised release. On appeal, he argues that the district court erred by denying his motion to suppress because (1) the initial encounter with the arresting officer was not a consensual encounter, and (2) even if it was, the officer’s subsequent frisk was not based upon reasonable suspicion. While we cannot agree with the first point, the second is well-taken and we reverse.
Background
At 12:30 in the afternoon on November 20, 2009, Officer Aaron Daley had just finished investigating a “suspicious activity” call from a woman who heard noises coming from her basement. The woman claimed that her dog alerted toward the basement and ran downstairs; the women fled until police arrived. United States v. House, No. 2:10-CR-007,
Another patrol car approached the intersection where Mr. House was standing, and Mr. House did an “immediate turnaround,” walking in the opposite direction. Id. The officer got into his car, turned around, and approached Mr. House at another intersection. The officer thought that Mr. House avoided making eye contact. Id. The officer then parked his car and approached Mr. House from the rear. Id. Mr. House was holding a cell phone to his ear with his right hand and his left hand was in the poсket of his “puffy” coat. Id.,
Mr. House finally turned around, holding his cell phone in his right hand, and kept his left hand in his coat pocket. Id. The officer noticed what appeared to be a bulge in Mr. House’s left coat pocket “that was making it larger than just what an arm or hand would make a coat stick out.”
Discussion
When reviewing a denial of a motion to suppress, we “view the evidence in the light most favorable to the government, accept the district court’s findings of fact unless clearly erroneous, and review de novo the ultimate determination of reasonableness under the Fourth Amendment.” United States v. Katoa,
A. Was the Initial Encounter Between House and the Officer Consensual?
We review de novo “the relevant circumstances to determine whether an interaction between an individual and a law enforcement officer is a consensual encounter that does not implicate the Fourth Amendment.” United States v. Abdenbi,
[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.
Id. at 1276 (alteration in original) (quoting United States v. Little,
Relevant circumstances used to determine whether an interaction between an officer and an individual is consensual include:
(1) the threatening presence of several officers; (2) the brandishing of a weapon by an officer; (3) physical touching by*786 an officer; (4) aggressive language or tone of voice by an officer indicating сompliance is compulsory; (5) prolonged retention of an individual’s personal effects; (6) a request to accompany an officer to the police station; (7) interaction in a small, enclosed, or non-public place; and (8) absence of other members of the public.
United States v. Rogers,
In Rogers, a police officer patrolling the halls of a hotel known for drug activity and prostitution saw the defendant, whom he knew from past encounters as “Graveyard,” exiting a hotel suite. Id. at 1134. The officer asked the defendant if he could speak to him, and the defendant seemed more nervous than in past encounters. Id. The defendant backed into a suite and informed the officer that the officer should talk to another man who was lying on a bed. At this point, the officer noticed a bag of marijuana in plain view and arrested both men. Id. at 1134-35. We held that the enсounter was consensual because, given the totality of the circumstances, the “[o]fficer ... did not touch Defendant, use aggressive language, brandish a weapon, or retain any of Defendant’s personal effects.” Id. at 1138.
In this case, only one officer was present for most of the interaction, which took place on a public sidewalk in the middle of the day. The officer remained some distance from Mr. House before the frisk, and the district court found credible the officer’s characterization of the interaction as “an everyday encounter.” House,
B. Did Officer Daley Have Reasonable Articulable Suspicion to Frisk?
In Terry, the Supreme Court stated that “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous ... he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.”
We have considered a variety of unlawful activities supportive of a reasonable, articulable suspicion that a person is armed and dangerous. Drug trafficking comes to mind, see United States v. Garcia,
In United States v. Harris,
This court also found reasonable articu-lable suspicion that a suspect was armed and dangerous when an officer pulled over a car for a lawful traffic stop at 2:30 am in a high crime area, a backseat passenger gave the officer a false identity, and a background check on one of the passengers revealed that he had a lengthy criminal history of violent сrime and was “known to be armed and dangerous.” United States v. Rice,
In a recent Fourth Circuit case, however, the court held that a pat down search of a passenger pursuant to a lawful traffic stop at night was unlawful when based only on “caution data” that the passenger had a prior criminal history involving armed robbery and his misrepresentation that his driver’s license was valid. United States v. Powell,
As the Sixth Circuit noted in United States v. Johnson, “before an officer effectuates a limited frisk for weapons ... the officer must have a reasonable belief that the suspect is both (1) armed, and (2) dangerous.”
Here, a reasonable officer could conclude that Mr. House was armed. Officer Daley observed a folded knife in Mr. House’s pocket and a bulge under his jacket.
In fact, when the officer first saw Mr. House, he was walking toward the residence in question some fifteen minutes after the police first arrived there to investigate.
It is likely that many law-abiding сitizens would not consider themselves armed with a weapon, while carrying a folded pocket knife, when approached on the street and questioned unexpectedly by an officer. To allow a search based on the hunch that a citizen walking down the street is illegally carrying a firearm, without more, serves to erode the precious protections of the Second and Fourth Amendments. See Terry,
An officer is free to initiate a consensual encounter without any articulable suspicion. Such an encounter may develop previously unconfirmed suspicions of criminal behavior and/or result in genuine concerns for officer safety. United States v. Jones,
C. The Dissent
The dissent is simply incorrect when it states that Mr. House was “in the vicinity of a potential home break in.” At most, the officer was responding to a suspicious noise call which he then investigated and found no evidence of any crime, let alone a break-in. Mr. House was walking toward the residence more than fifteen minutes after the call to police, and then turned away at the sight of law enforcement. Although the dissent posits' that a person who is armed and detained is usually dangerous relying upon Pennsylvania v. Mimms,
The dissent suggests that we dismiss the danger posed by knives, miss the significance of Mr. House’s answer that he had no weapons, require an officer to consider whether a folded knife is a weapon, focus too heavily on the knife, and ignore the threat of the firearm. It contends that this case is controlled by Ryburn v. Huff, . — . U.S.-,
This case differs markedly. We have considered the totality of the circumstances. No one disagrees that a knife can be dangerous, but context matters. Here, the folded knife was observed from several feet away. The officer removed the knife prior to the challenged protective frisk. Given the facts found by the district court, the officer could conclude that Mr. House was armed, despite his dеnial. But the facts fall far short of any danger, let alone imminent danger. By the officer’s own admission, Mr. House was cooperative.
In short, the dissent simply comes too close to equating being armed with being dangerous regardless of the circumstances. The examples relied upon by the dissent as illustrating circumstances where an armed person might not be considered dangerous — where law enforcement is aware that a citizen is a retired policeman or cooperative with a license to carry a gun — portend too little Fourth Amendment protection for the average citizen and elide the distinction between armed and dangerous.
REVERSED.
Notes
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.
. Manjarrez does not, in fact, stand for the рroposition that reasonable articulable suspicion of criminal activity is unnecessary before conducting a Terry frisk. The encounter in Manjarrez began as a traffic stop based upon reasonable suspicion, a brief detention took
. The officer's testimony suggests that he immediately frisked Mr. House after he saw the knife and Mr. Housе responded that he did not have any weapons on him:
Q: "And so at that point, after you had asked him if he had weapons and he said no, you put his hands behind his back once you saw the tip of the knife, right?”
A: "Yes.”
Q: "And you pulled the knife out of the pocket?”
A: "Yes, I did.”
Q: "Then you continued to frisk at that point the rest of his body?”
A: "Just the areas that I believed are the high probable areas for weapons.”
Dissenting Opinion
dissenting.
According to the district court, Officer Daley was called to investigate a report that a woman “heard a noise and believed someone may have been in her basement.” After concluding a fruitless fifteen-minute investigation of the house, Officer Daley saw Defendant walking toward the house. Daley had seen no one else in the vicinity. Daley then observed Defendant make an abrupt about-face upon seeing a police car drive past. His suspicions aroused, Officer Daley initiated an on-foot consensual encounter with Defendant. When eight to ten feet away from Defendant, Daley observed an exposed folding knife in Defendant’s right coat pocket. He also saw Defendant’s left hand resting on a large bulge in his left coat pocket. When Officer Daley asked Defendant if he had any weapons, Defendant said “no,” despite the visible knife in his pocket. Officer Daley then frisked Defendant and found, in addition to the knife, a .44 caliber revolver in the area of Defendant’s left pocket. On these facts, this Court concludes “there was no indication that [Defendant] was presently dangerous to Officer Daley or other citizens,” and that the frisk was unconstitutional. Court’s Op. at 788. Although the Court recognizes “a reasonable officer could conclude that [Defendant] was armed,” id., the Court ignores the totality of the circumstances and the serious threat that a suspected firearm posed to Officer Daley’s safety. Instead, the Court cavalierly dismisses Daley’s suspicion regarding a firearm as a mere “hunch.” Id. at 789. Because the Court’s holding disregards settled precedent and exposes officers to unreasonable dangers, I dissent.
I.
This case gives rise to two questions: (1) whether a protective frisk is ever permissible in the absence of reasonable suspicion that criminal activity is afoot, and if so, (2) whether Daley had a constitutionally justifiable basis for conducting a protective frisk in this case. Acknowledging the question is an open one, the Court assumes without deciding that a protective frisk is permissible without reasonable suspicion of criminal activity. The Court does not reach this first question because it concludes Officer Daley had no reasonable suspicion Defendant was “dangerous.”
Neither the Supreme Court nor the Tenth Circuit has decided whether an officer may lawfully frisk a person absent reasonable suspicion of criminal activity. The Supreme Court first recognized the concept of a stop and frisk, justified on suspicion less than probable cause, in Terry v. Ohio,
Terry simply did not decide whether a frisk can take place absent reasonable suspicion of criminal activity. Justice Harlan made this clear in his concurring opinion, where he said he, unlike the majority, “would make it perfectly clear that the right to frisk in this case depends upon the reasonableness of a forcible stop to investigate a suspected crime.” Terry,
A.
First, the strong governmental interest in officer safety is present even in consensual encounters. Courts cannot ignore the “need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest.” Terry,
Even though a person is “free to leave” during a consensual encounter, I.N.S. v. Delgado,
Other situations could also lead an officer to fear for his safety during a consensual encounter. For example, a person might become belligerent or show signs of mental instability during a consensual encounter, even if the person’s actions do not give rise to suspicion of criminal activity. See United States v. Brown,
In a case decided just this term, the Supreme Court upheld the right of officers to enter a home based on safety concerns, even without probable cause of criminal activity. Ryburn v. Huff, 565 U.S.-,
B.
Second, requiring reasonable suspicion of criminal activity would hamstring officers’ ability to investigate suspicious behavior. If an officer may not conduct a frisk unless he has reasonable suspicion a crime is afoot, then he must protect himself by entirely avoiding those he reasonably believes are dangerous but not necessarily engaged in criminаl conduct. See United States v. Burton,
C.
Third, requiring reasonable suspicion of criminal activity before a frisk would prevent officers from taking “reasonable steps to ensure their safety” during consensual encounters. Maryland v. Buie,
Obviously police officers may not frisk simply any person on the street who they suspect is armed. Officers must have reasonable suspicion the subject is “armed and presently dangerous.” Terry,
II.
Turning to the facts of this case, Officer Daley had reasonable suspicion Defendant was both armed and dangerous. A reasonable suspicion inquiry must be based on the “totality of the circumstances, taking into account an officer’s reasonable inferences based on training, experience, and common sense.” United States v. Rice,
Once Officer Daley initiated the consensual encounter, he quickly developed reasonable suspicion Defendant was armed. In fact, Officer Daley knew Defendant was armed with a knife because he saw the knife’s tip in Defendant’s right coat pocket. Furthermore, Officer Daley had reasonable suspicion Defendant was armed with a gun. Unlike in Terry, this suspicion was not based on the abstract proposition that a person involved in a particular crime may have a gun. Terry,
A.
Although the Court recognizes Daley had reasonable suspicion Defendant was armed, the Court nevertheless concludes “there was no indication that [Defendant] was presently dangerous to Officer Daley or other citizens.” Court’s op. at 788. The Court is correct that “[b]eing armed does not ineluctably equate with dangerousness.” Id. at 788. For examрle, a retired policeman or a cooperative citizen licensed to carry a gun may not present a danger to police, depending on the circumstances. But the Supreme Court had indicated that an armed person is usually dangerous, at least if he is detained by the police. In Mimms, the state conceded “the officer had no reason to suspect foul play from the particular driver at the time of the stop, there having been nothing unusual or suspicious about his behavior.”
Furthermore, this case is even stronger than Mimms because it involves additional suspicious circumstances not present in Mimms.
B.
In concluding Defendant was not “dangerous,” the Court errs in three important
Nor does it matter that the knife was folded. Even a folding knife can be opened quickly and used as a weapon. The Seventh Circuit upheld the patdown of a vehicle passenger who had a “folded pocket knife visible in his front left pocket.” United States v. Robinson,
Next, the Court’s reasoning is flawed because it misses the knife’s greater significance. Regardless of whether the knife posed a danger, its presence refuted Defendant’s statement that he had no weapons. A reasonable officer could conclude that a person trying to conceal his possession of a knife may also be concealing other weapons. He could also conclude the person was dangerous based on his desire to conceal a weapon from police detection. See United States v. Simpson,
First, we measure the reasonableness of police conduct based on a reasonable officer’s viewpoint, not a citizen’s. A court must ask whether “the facts available to the officer at the moment of ... the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate.” Terry,
Second, courts have consistently treated knives as “weapons.” In Terry, the Court noted that virtually all officer deaths and a substantial portion of officer injuries are inflicted with “guns and knives.” Id. at 24,
Third, we do not require a police officer to consider the fine distinctions of whether a folded knife is a “weapon” while making split-second determinations regarding his safety. “The reasonableness of a police officer’s actions is evaluated from the perspective of a reasonable officer on the scene, recognizing the police officer may have been forced to make split-second decisions in a stressful, dynamic, and dangerous environment.” Lundstrom v. Romero,
A final and most critical flaw in the Court’s analysis is that it focuses almost exclusively on the knife, while ignoring the threat of a firearm. Even if the Court were correct that a folded knife poses little danger at six to eight feet, a firearm certainly does pose a danger. This is especially true because Defendant’s hand was on the apparent bulge in his pocket. Defendant could have drawn and fired the gun at any time, or even fired it through his pocket. The Court points out that Daley never asked Defendant to remove his hand from his pocket. But the Fourth Amendment does not require such a preliminary step because “officers do not always have to use the least restrictive means as long as their conduct is reasonable.” Thomas v. Durastanti,
We should not second-guess Officer Daley’s determination that the subject of a consensual encounter who was obviously
. Our sister circuits are divided on the issue of whether a protective frisk requires suspicion of criminal activity. Three circuits have upheld frisks based solely on officer safety. United States v. Orman,
. This "objective reasonable basis” standard is likely the same as Terry's "objective standard” of whether "the facts available to the officer ... warrant a man of reasonable caution in the belief that the action taken was appropriate.” Terry,
. This is not to say Mimms renders the "dangerous" inquiry superfluous, however. Mimms can likely be explained based on the confrontational circumstances inherent in a traffic stop. When an officer conducts a traffic stop, he has restricted a person's liberty and potentially made that person feel threatened or angry enough to harm the officer. Wilson,
. These circumstances distinguish the present case from Professor LaFave's hypothetical, quoted by the Court, of a bulge in "the pocket of a pedestrian who is not engaged in any suspicious conduct." 4 Wayne R. LaFave, Search and Seizure § 9.6(a) (2004) (emphasis added). Here, Officer Daley had observed suspicious conduct, even if the conduct did not give rise to reasonable suspicion.