UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Frank McHUGH, Defendant-Appellant.
No. 10-5065.
United States Court of Appeals, Tenth Circuit.
April 4, 2011.
639 F.3d 1250
The Court‘s concerns about the potential for waste of judicial resources and administrative inefficiencies are clearly present in this case. As the Court explained in Roper,
[r]equiring multiple plaintiffs to bring separate actions, which effectively could be “picked off” by a defendant‘s tender of judgment before an affirmative ruling on class certification could be obtained, obviously would frustrate the objectives of class actions; moreover it would invite waste of judicial resources by stimulating successive suits brought by others claiming aggrievement.
445 U.S. at 339, 100 S.Ct. 1166.
The Third, Fifth, and Seventh Circuits have concluded that offers of judgment will not render moot class actions for monetary relief in which a class certification motion is already pending. See Lusardi v. Xerox Corp., 975 F.2d 964, 975 (3d Cir.1992); Zeidman, 651 F.2d at 1051; Susman v. Lincoln Am. Corp., 587 F.2d 866, 870 (7th Cir.1978). We find no authority on which to distinguish the case in which a class certification motion is pending or filed within the duration of the offer of judgment from our case: any Article III interest a class may or may not have in a case is or is not present from its inception. See Susman, 587 F.2d at 869 n. 2 (noting that “[i]t would be arguable, on the same theory, that a complaint with class action allegations sufficiently brings the interests of the class members before the court, at least where the court proceeds with reasonable promptness to reach the issue of class action maintenance” but declining to reach the question). We need not and do not decide the impact of a Rule 68 offer of judgment made in a collective, or “opt-in” action. See, e.g., Sandoz, 553 F.3d at 920; Darboe v. Goodwill Industries of Greater New York & Northern New Jersey, Inc., 485 F.Supp.2d 221, 223-24 (E.D.N.Y.2007).
In sum, we hold that a named plaintiff in a proposed class action for monetary relief may proceed to seek timely class certification where an unaccepted offer of judgment is tendered in satisfaction of the plaintiff‘s individual claim before the court can reasonably be expected to rule on the class certification motion. That certainly is the case here, given the parties’ agreement to proceed according to a specific schedule to resolve the class certification issues and given the Plaintiff‘s indisputable compliance with that schedule.
REVERSED and REMANDED.
Thomas Scott Woodward, United States Attorney, and Joel-lyn Alicia McCormick, Assistant United States Attorney, Northern District of Oklahoma, for Plaintiff-Appellee.
Julia L. O‘Connell, Federal Public Defender, Amanda M. Folsom, Assistant Federal Public Defender, and Barry L. Derryberry, Research and Writing Specialist, Office of the Federal Public Defender, Northern District of Oklahoma, for Defendant-Appellant.
Before O‘BRIEN, SEYMOUR, and HOLMES, Circuit Judges.*
HOLMES, Circuit Judge.
Kenneth Frank McHugh conditionally pleaded guilty to possession of a firearm and ammunition by a felon, in violation of
BACKGROUND1
After the two men got inside, Mr. Terrero pulled his vehicle behind the Impala and shined his spotlight on it. Mr. Terrero then approached the car to question the men. Mr. McHugh, who was in the driver‘s seat, told Mr. Terrero “that he was there to pick up his friend [who had] passed out inside of his vehicle“; Mr. McHugh‘s companion, who had just been seen ducking through the parking lot, was pretending to be unconscious in the passenger‘s seat. Id. at 14. Mr. Terrero testified that during this interaction Mr. McHugh “was trying to conceal something with his right hand ... between the driver‘s side seat and the center console.” Id. at 14-15. Mr. Terrero asked Mr. McHugh to “keep his hands where [he] could see them,” but Mr. McHugh repeatedly went “back to trying to conceal his right hand.” Id. at 15.
At that point, Mr. McHugh‘s “friend” pretended to wake up and attempted to exit the vehicle. In response, Mr. Terrero went to the passenger side of the vehicle and kicked the door shut. Mr. Terrero noticed a screwdriver and a hammer in the vehicle, which he stated “are the kinds of tools people use to break into people[‘]s cars.” Id. at 15-16. Then, when Mr. McHugh “became agitated” and “insisted [o]n getting out of the vehicle,” Mr. Terrero sprayed him with pepper spray. Id. at 16. Mr. Terrero then pulled his firearm and held the two men at gunpoint while he called 9-1-1. He reported to the police dispatcher that he was detaining two subjects at gunpoint and that he believed they had a gun in their vehicle. Mr. Terrero continued holding the men at gunpoint while he waited for the police to arrive.
Upon arrival, the officers “observed the security officer behind the car with his lights on it and pointing his gun at the car and the two subjects in the car.” Id. at 31. Before Officer Oakes approached the Impala, Mr. Terrero told the officer that “the two subjects had been seen lurking through the complex, that ... they were acting hinky on him,” “that when he approached them he just felt uneasy,” and “that they were not obeying his commands.” Id. at 31, 34. Officer Oakes then approached the driver‘s side of the vehicle and “commanded the driver to reach out and open his door and to start backing out towards the back of the car.” Id. at 31. The officer stated that he did this as a “safety precaution[].” Id. at 32. Mr. McHugh obeyed this command, and “[a]s he stepped out of the car he advised [the officer] that he had a gun,” but did not state where it was. Id. At that time—after Mr. McHugh admitted that he was armed—Officer Oakes handcuffed Mr. McHugh, patted him down, and located a revolver in his back pocket.
On November 2, 2009, Mr. McHugh was charged with one count of possession of a firearm and ammunition by a felon, in violation of
Following the district court‘s denial of his motion to suppress, Mr. McHugh conditionally pleaded guilty to the felon-in-possession charge, reserving his right to appeal the district court‘s denial of his motion. The district court sentenced Mr. McHugh to sixty months’ imprisonment, followed by a term of three years of supervised release. Mr. McHugh then filed this timely appeal.
In reviewing the district court‘s denial of a motion to suppress, “we review the court‘s factual findings for clear error and view the evidence in the light most favorable to the government.” United States v. Worthon, 520 F.3d 1173, 1178 (10th Cir.2008). “[W]e review de novo the ultimate determination of reasonableness under the Fourth Amendment.” United States v. Thompson, 524 F.3d 1126, 1132 (10th Cir.2008); see also United States v. Thomson, 354 F.3d 1197, 1199-1200 (10th Cir.2003) (“We review de novo the district court‘s legal conclusion concerning whether a Fourth Amendment violation occurred.“).
DISCUSSION
The single issue presented on appeal is whether the police officer‘s initial investigatory detention of Mr. McHugh was reasonable under the Fourth Amendment.2 The Fourth Amendment protects individuals from “unreasonable searches and seizures,”
Furthermore, when determining if a detention is supported by reasonable suspicion, we “defer to the ability of a trained law enforcement officer to distinguish between innocent and suspicious actions.” United States v. Zubia-Melendez, 263 F.3d 1155, 1162 (10th Cir.2001) (internal quotation marks omitted). We “judge the officer‘s conduct in light of common sense and ordinary human experience,” United States v. Mendez, 118 F.3d 1426, 1431 (10th Cir.1997), and “we consider the reasonableness of an officer‘s actions using an ‘objective standard,‘” United States v. Winder, 557 F.3d 1129, 1134 (10th Cir.) (quoting United States v. Sanchez, 519 F.3d 1208, 1213 (10th Cir.2008)), cert. denied, U.S. —, 129 S.Ct. 2881, 174 L.Ed.2d 591 (2009). The detaining officer‘s “‘subjective beliefs and intentions’ are, quite simply, irrelevant.” Id. (quoting United States v. DeGasso, 369 F.3d 1139, 1143 (10th Cir.2004)). Under this objective standard, we ask “whether ‘the facts available’ to the detaining officer, at the time, warranted an officer of ‘reasonable caution’ in believing ‘the action taken was appropriate.‘” Id. (quoting Terry, 392 U.S. at 21-22, 88 S.Ct. 1868).
In this case, it is undisputed that Mr. McHugh was detained or “seized” for Fourth Amendment purposes when Officer Oakes ordered him to exit the vehicle and he obeyed this command. See, e.g., Salazar, 609 F.3d at 1064 (“When an officer does not apply physical force to restrain a suspect, a Fourth Amendment seizure occurs only if (a) the officer shows his authority; and (b) the citizen ‘submit[s] to the assertion of authority.‘” (alteration in original) (quoting California v. Hodari D., 499 U.S. 621, 625-26, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991))). Here, the district court held that the detention was justified at its inception because the “facts as a whole” established “a reasonable and articulable suspicion that [Mr. McHugh] might be involved in criminal activity.” R., Vol. I, at 29. The factors considered by the district court, and asserted by the government on appeal, include (1) that the activity occurred at a late hour—2:00 a.m.; (2) that the “officers were aware that the complex had been the site for criminal activity in recent weeks and months“; (3) that “[d]ispatch ... [had] informed the officers that the subjects were suspected to have a weapon in the car“; and (4) that Mr. Terrero had conveyed to the officers that “the men had been lurking in the complex, made him feel uneasy, were acting ‘hinky,’ were not obeying his commands, and attempted to exit the vehicle despite his orders.” Id. We agree with the district court that the facts, viewed in their entirety and in the light most favorable to the government, establish that reasonable suspicion existed to justify the stop.
We have likewise held that the fact that an incident occurred late at night or early in the morning is relevant to the Terry analysis. See United States v. Clarkson, 551 F.3d 1196, 1202 (10th Cir.2009) (stating that the fact that it was “late at night” was a consideration that has been “recognized by this court as supporting reasonable suspicion“); Gallegos v. City of Colo. Springs, 114 F.3d 1024, 1029 (10th Cir.1997) (stating that “the time of night,” which happened to be around 1:00 a.m., was factored into the court‘s decision that reasonable suspicion existed). The incident in question occurred around 2:00 a.m., which is undoubtedly late enough (or early enough) to be a factor in the reasonable suspicion assessment. Accordingly, the district court was correct in considering both of these factors—the criminal history of the area and the early hour of the morning—in reaching its conclusion that reasonable suspicion existed.
The information relayed to the officers—both directly from Mr. Terrero and through the dispatch report—is also relevant. The police dispatch had informed the officers that the subjects were “suspected to have a weapon in the car.” R., Vol. III, at 30. Although this piece of information, standing alone, does not establish reasonable suspicion, it is relevant when assessing the evidence as a whole, and the court was correct to consider it.
It is also relevant that the officers were informed by Mr. Terrero, before the stop, that the men were “lurking” around the parking lot, were acting “hinky,” were not obeying the armed security guard‘s commands, and were trying to exit the vehicle despite the guard‘s orders to the contrary. This suspicious behavior on the part of Mr. McHugh (along with that of his compatriot) only adds to the “reasonable suspicion” calculus. It does not matter in this instance that the police did not observe this behavior first hand. The Supreme Court, in Adams v. Williams, rejected the theory that “reasonable cause for a stop and frisk can only be based on [an] officer‘s personal observation, rather than on information supplied by another person.” 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). When the relevant information comes from a third party, the appropriate issue is whether that information, which the police officer relied upon in acting, possessed sufficient “indicia of reliability.” Id.
Mr. McHugh argues that his “efforts to oppose [Mr. Terrero‘s] orders and his attempt to seize [him] cannot be viewed as indicators of criminal behavior,” given that Mr. Terrero was a private citizen—rather than a law enforcement officer—and, therefore, “had no lawful basis for seizing Mr. McHugh.” Aplt. Principal Br. at 10-13. It is well-settled that “nervous, evasive behavior,” including fleeing from law enforcement, “is a pertinent factor in determining reasonable suspicion.” Wardlow, 528 U.S. at 124, 120 S.Ct. 673; see also DeJear, 552 F.3d at 1201 (“Furtive movements, nervousness, and the fact that conduct occurs in an area known for criminal activity are all appropriate factors to consider in determining whether reasonable suspicion exists.“). However, because Mr. Terrero was not a law enforcement officer, Mr. McHugh suggests that his behavior in response to Mr. Terrero‘s presence and authority cannot be taken into consideration. We disagree. Although Mr. McHugh‘s furtive, evasive, and defiant conduct may not have been as indicative of possible criminal activity in relation to Mr. Terrero as it would have been if he had undertaken the same conduct in front of an actual law enforcement officer, it is still relevant. Specifically, Mr. Terrero was an armed security guard with an authoritative presence in the complex, whose patent objective was in part to prevent crime. Thus, he was more akin to a law enforcement officer than an apartment tenant or casual passerby who happened to be strolling through the parking lot. Therefore, Mr. McHugh‘s behavior in response to Mr. Terrero‘s presence and questioning is relevant to the reasonable suspicion analysis.
Mr. McHugh also notes in his appellate brief that the evidence known to the officers was “not indicative of a crime in the estimation of Officer Oakes,” because, “as Officer Oakes admitted, he had no reason to think that [Mr.] McHugh had committed any crime.” Aplt. Principal Br. at 15-16, 19 (emphasis added). However, as discussed above, Officer Oakes‘s subjective beliefs are irrelevant; the standard we apply is an objective one. See Winder, 557 F.3d at 1134 (“[W]e consider the reasonableness of an officer‘s actions using an ‘objective standard.‘” (quoting Sanchez, 519 F.3d at 1213)); DeGasso, 369 F.3d at 1143 (stating that an officer‘s “actual motivations or subjective beliefs and intentions” are irrelevant). Therefore, any suggestion that Officer Oakes‘s subjective beliefs and thoughts are relevant is misplaced.
In sum, we hold that reasonable suspicion existed to justify the investigatory stop at its inception. That is, we conclude that “the facts available” to [Officer Oakes], at the time, warranted an officer of “reasonable caution” in believing “the action taken was appropriate.” Winder, 557 F.3d at 1134 (quoting Terry, 392 U.S. at 21-22, 88 S.Ct. 1868). This is clearly not “a case of police officers arbitrarily stopping an individual walking down the sidewalk during the middle of the afternoon.” Gallegos, 114 F.3d at 1029; see also Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) (finding no justification for Terry stop when “the appellant‘s activity was no different from the activity of other pedestrians in that neighborhood“).4 Accordingly, the district court did not err in denying Mr. McHugh‘s motion to suppress.
Based on the foregoing analysis, we AFFIRM the district court‘s denial of Mr. McHugh‘s motion to suppress.
O‘BRIEN, J., concurring.
I agree with the result reached by the majority and do not quarrel with its resolution of the arguments presented.1 My point of departure is with the acceptance of McHugh‘s argument that a “reasonable suspicion of criminal activity” is a necessary requirement in this case. Defining the issue is the first step of the analysis; that issue is public safety, not criminal investigation. The officer‘s ultimate goal may have been to investigate possible criminal behavior, but upon arriving at the scene that ultimate goal was at least temporarily eclipsed by a more pressing and immediate need (and the matter at issue here)—to insure public safety. The exquisitely narrow issue is whether Officer Oakes could, without violating the Fourth Amendment, require McHugh to get out of his vehicle whether or not there was a reasonable and articulable suspicion that McHugh or his companion had committed or were about to commit a crime. The broader principles of Terry guide our decision; we “first ... focus upon the governmental interest which allegedly justifies official intrusion” and next consider whether the “articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In applying those principles, we must recognize the multiple roles assigned to law enforcement officers.
By design or default, the police are also expected to reduce the opportunities for the commission of some crimes through preventative patrol and other measures, aid individuals who are in danger of physical harm, assist those who cannot care for themselves, resolve conflict, create and maintain a feeling of security in the community, and provide other services on an emergency basis.
[A] warrant is not required to break down a door to enter a burning home to rescue occupants or extinguish a fire, to prevent a shooting or to bring emergency aid to an injured person. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.
318 F.2d 205, 212 (D.C.Cir.1963) (emphasis added). “[T]he business of policemen and firemen is to act, not to speculate or meditate on whether the report is correct.” Id. This principle was reflected in Mincey v. Arizona, another search case. 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). And again in Brigham City, Utah v. Stuart, where it was said, “Nothing in the Fourth Amendment required [officers] to wait until another blow rendered some-one ‘unconscious’ or ‘semi-conscious’ or worse before entering. The role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties; ...” 547 U.S. 398, 406, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (Warrantless police entry into a home to stop a fight). And yet again in Michigan v. Fisher, where the Court wrote: “Officers do not need ironclad proof of ‘a likely serious, life-threatening’ injury to invoke the emergency aid exception.” 558 U.S. 45, 130 S.Ct. 546, 549, 175 L.Ed.2d 410 (2009) (Warrantless police entry into a home prompted by demonstrated violence against property and potential risk to persons). The Court there explained: “It does not meet the needs of law enforcement or the demands of public safety to require officers to walk away from a situation like the one they encountered here. Only when an apparent threat has become an actual harm can officers rule out innocuous explanations for ominous circumstances.” Id. It does not serve us well to restrict these guiding principles to searches; the compelling reasons for immediate police action do not lose their force simply because a person is temporarily seized (rather than searched) in order to bring a dangerous circumstance under control pending a dispassionate investigation. Indeed, both Brigham City and Fisher involved not merely warrantless entries into a home, but also seizures of individuals within the home.
The Supreme Court has repeatedly said, “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.‘” Brigham City, 547 U.S. at 403, 126 S.Ct. 1943. (citations omitted). “An action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer‘s state of mind, as long as the circumstances, viewed objectively, justify the action.” Id. at 404, 126 S.Ct. 1943 (quotations omitted). Reasonableness is, of course, highly fact sensitive. “[W]e have treated reasonableness as a function of the facts of cases so various that no template is likely to produce sounder results than examining the totality of circumstances in a given case; it is too hard to invent categories without giving short shrift to details that turn out to be important in a given instance, and without inflating marginal ones.” United States v. Banks, 540 U.S. 31, 36, 124 S.Ct. 521, 157 L.Ed.2d 343 (2003)
The steps taken by these officers to diffuse a potentially deadly situation were reasonable, even assuming their actions amounted to a seizure.3 When they reached the car, the security guard put away his weapon—an action that reduced, but did not eliminate, the potential for violence. The officers reasonably believed McHugh may have a weapon, but even if they had no such belief, ordering him to exit the car was a matter of common sense and done, according to Oakes, for safety reasons.4 McHugh had been pepper-sprayed by the guard and was likely out of sorts. More important, a vehicle was involved (even though the stop was not instigated by the officers), presenting all of the dangers courts have repeatedly appreciated in such circumstances.5 Reasonable suspicion of criminal activity was not necessary. See Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (Ordering a driver and passenger out of a vehicle for officer safety following a traffic stop is justified—“We think it too plain for argument that the State‘s proffered justification—the safety of the officer—is both legitimate and weighty. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.“) (quotations omitted). Given the officers’ valid presence at the scene, the Supreme Court has stressed “[t]he risk of harm to both the police and the occupants of a stopped vehicle is minimized, ... if the officers routinely exercise unquestioned command of the situation.” Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 786, 172 L.Ed.2d 694 (2009) (quotations omitted) (Passenger removed from the back seat of a vehicle stopped for a traffic violation and frisked. The frisk was based upon suspicion of gang membership, a scanner in his pocket and his admitted criminal past).
The circumstances of this case render any inquiry into the officers’ reasonable suspicion of criminal activity by the defendant or his partner an irrelevant distraction. The question is whether “the facts available to the officer at the moment ... warrant a man of reasonable caution in the belief that the action taken was appropriate.” Id. (quotations omitted). To my lights, they did; the officers conducted themselves reasonably throughout the incident. The Fourth Amendment requires nothing more.
JEROME A. HOLMES
UNITED STATES CIRCUIT JUDGE