United States v. Richard W. Laboy

795 credibility organizer, judge court to for wit- by two levels tence 3Bl.l(c). nesses ....’” Given the deference we are or leader. U.S.S.G. manager, § 3, determination, required give the court’s Note U.S.S.G. Relying Application comment, (n.3), imposition his contention in 3B1.1, see no error of we § only “engaging responsible for enhancement. he was inappropriate comments exaggerated, Finally, attempts defendant to ar he argues teenagers,” defendant of front right gue was denied his to effective subject the enhancement be- issue, That assistance of counsel. howev offense. We only suggested the cause he er, justiciable appeal except on direct disagree. rare cases record where the is sufficient have the only district court did the Not ly complete proper appellate to allow re evidence, additional testi it also took trial States, v. F.2d view. Beaulieu United sentencing sides at from both mony (10th 805, Cir.1991). This is not one of defendant, listening to the hearing. After cases; therefore, those rare we refuse to find to disbelieve the court chose issue, prejudice consider the but without activity criminal manager a subsequent proper review in context. persons. find five That involving less than brought us Defendant has before clearly erroneous under is reviewed file pro supplemen se motion for leave to sup it is to determine whether standard represented by tal Because he is brief. by preponderance evidence. ported competent counsel, thoroughly his motion Backas, 901 F.2d DENIED, judg is out order denied, (10th Cir.), cert. ment of the district court is AFFIRMED. (1990). On 112 L.Ed.2d say the record we cannot basis clearly erroneous. United finding is 1561, 1573-74 — U.S. -, denied, Cir.1991), (10th cert. argues Guadalupe also by enhancing his sentence

court erred justice threat obstructing for two levels America, UNITED STATES custody while in be ening Michael James Plaintiff-Appellant, testify Although James fore trial. sentencing, his statement was contained report. James stated presentence in the LABOY, Defendant- Richard W. family told him “he and his that defendant Appellee. ” simply tes ‘never live.’ Defendant would No. 92-1115. elaboration, tified, further he did without not make the statement. Appeals, United States Court Tenth Circuit. facts, conflicting the trial face of

In the indeed the defendant had court found that Nov. therefore assume statement. We made the decided the defendant’s the court incredible.

denial was gives deference of review Our standard concerning in matters to the trial court Beaulieu, credibility. In Cir.), cert. de 3252, 111 nied, (1990) (citing 18 U.S.C. stated, 3742(e)), ‘give must due we “we § regard opportunity to the the immediate fruits suppression

dered (a small amount of crack of that arrest handgun). millimeter cocaine and nine court, the According to the district subse- and the evi- quent federal arrest warrant (a that arrest seized under warrant dence allegedly and gang- containing notebook notations) tainted were the drug-related seizure. unreasonable product of the initial review the jurisdiction to Our arises under suppression order court’s hold that the initial 3731. We U.S.C. § constitute a “seizure” encounter and Amendment implicates the Fourth reverse.

Background Qui- 1992, Detective February Jesus Atty., (Mi- Hutchins, Asst. M. John support team for an part of a nones was M. Norton, Atty., Kathleen J. chael apart- operation an narcotics undercover Till, Attys., Asst. U.S. with Guy

Tafoya, Denver, He was in Colorado. ment house Drug brief), Mountain on him outside plain in and waited clothes dressed Colo., Denver, plaintiff- Force, for Task car with building an unmarked of the appellant. officer, a raid vest bear- who wore another De- Public Szekely, Asst. Federal Charles logo and carried subma- Katz, Public (Michael Federal fender, G. officers other undercover Four gun. chine Denver, brief), Defender, him the with assisted. Colo., defendant-appellee. for un- signal from Following a distress buy inside the making the dercover McWILLIAMS, BRORBY, and Before Quinones ran into building, Detective KELLY, Judges. Circuit officers two other building and assisted prisoners to rear escorting three KELLY, Jr., Judge. Circuit PAUL up against lined building, they were where dis- from the appeals government The hand- prisoners were Two a wall. physical evi- suppression of court’s trict so that the wall with their backs cuffed in- Laboy was Defendant-Appellee dence. passersby were not visible the handcuffs intent distrib- possession with for dicted fac- was prisoner third The on the street. firearm carrying crack cocaine ute not handcuffed. street and was ing the trafficking crime. drug awith connection only officer Quinones was Detective 841(a)(1),(b)(1)(C); U.S.C. U.S.C. §§ his prisoners and standing next to the three dis- hearing, the 924(e). Following a §§ sight. out revolver was service seized at evidence suppressed court trict other side walking on the Laboy was Mr. follow-up and at arrest sidewalk initial Mr. Quinones and the street. Detective Laboy attend- Mr. high school arrest acknowledged contact, and eye Laboy made that the court concluded The district ed. other with nods. each Laboy and between encounter initial him to signalling then waved for “seizure” police constituted so. Detective Laboy did come over. since a rea- purposes, Amendment Fourth Quinones testified: felt free not have person would sonable any stuff?” him, said, got “You I I asked further found “Yeah, me, Laboy] told And then it [Mr. since unreasonable this seizure when That’s looking for?” you suspi- what by any reasonable unsupported “twenty.” Laboy] a I told or- activity, [Mr. therefore of criminal cion Cir. 1991) (citing Santillanes, United States v. “Yeah, do, yeah, I Laboy] said He [Mr. (10th Cir.1988)), cert. stuff, ...” some Ido have denied, that he testified IIR. 14-15. (1992). investigative A Terry watching an arrest knew brief, stop dur nonintrusive detention Qui- interpreted progress, ing preliminary questioning or a frisk for sign him as a that he gestures to nones’ Ohio, 21-22, weapons. Terry v. arrested, might felt that he 1868, 1880, 20 L.Ed.2d 889 away. run if he tried to be shot seizures, Terry stops are considered which Quinones asked that Detective indicated supported by suspi must stuff, any to which Mr. he had him if person cion that a has committed or is yes, and thereafter Laboy responded committing catego a crime. Id. The final Laboy arrested. was arrest, ry is an is characterized as which inquiry as court framed highly intrusive and involves detention. totality of the circum- under the “whether supported by probable Arrests must be person position in the reasonable stances a person cause to believe that a has commit Laboy would believe that he of Richard committing or is a crime. ted area and free to leave the F.2d at 1566. I questions.” R. doc. 9 the detective’s ques this case on one then ruled that “the defen- We resolve 2-3. The court whether, given surrounding all arrested tion: perceived dant circumstances, perception was reasonable.” the wave of the detective’s and that his subsequent questioning district court found hand and constitut Although the Id. at 3. authority to neighborhood was known for ed a show sufficient make a that drug dealing, person the district court believe that he or she street-level Quinones’ testimony was was not free to leave. See Florida v. found Detective — U.S. -, -, Bostick, is difficult to be- 111 S.Ct. implausible because “[i]t (1991); voluntarily engage Michigan anyone would v. lieve that Chesternut, 567, 569, drug person with another 486 U.S. 108 S.Ct. in a transaction 1975, 1977, (1988); presence three other 100 L.Ed.2d 565 immediate United Mendenhall, 544, 554, findings, supplemental v. 446 U.S. people.” Id. 1870, 1877, (1980); 64 L.Ed.2d 497 emphasized that Detective 100 S.Ct. Bloom, suspicion to v. had no reasonable United States (10th Cir.1992). a Laboy. To constitute sei stop Mr. zure, authority there must some show of be authority. and a submission to Cali Discussion — -, -, D., v. U.S. Hodari fornia fac accept the district court’s We 1547, 1551, 113 L.Ed.2d 690 erroneous, clearly but findings tual unless seizure does not occur “[A] determination of the reason the ultimate approaches a officer an indi because ques any or seizure is a search ableness questions.” vidual and asks a few by this court. of law reviewed de novo tion -, at 2386. As Ibarra, 955 F.2d v. person, long as a reasonable innocent as Cir.1992). recognized We have opposed person knowingly carrying a encounters with types three basic contraband, leave, would feel free to such in voluntary cooperation, Terry officers: and need not be encounters are consensual stops, voluntary arrests. A vestigative suspicion of crimi supported by reasonable voluntary coopera involves the encounter activity. Id. nal question tion of a citizen with noncoercive factors to consid Courts have identified several ing. Voluntary encounters not meaning analysis in the of whether a reason- of the assist ered seizures within offi- any not raise would believe Fourth Amendment and do able coercive, that he or cer’s actions constitutional issues. United States began only after with Mr. officers. disregard the not she The encounter oc the street. factors had crossed some list of A nonexclusive street, fully exposed public of sev on a threatening presence curred includes: Moreover, motioning a weapon by merely officers; public of a view. display eral officer, touching by an offi unac approach officer; physical person to some indi of voice or tone or language communication cer; by verbal companied use of officer with compliance force, inherently coercive.1 cating show per aof retention prolonged explic compulsory; Quinones never Although Detective plane tickets, as such effects personal son’s Laboy he did not have itly told to ac request luggage; identification unnecessary. advice cooperate, such station; wheth to the company 210, 216, 104 Delgado, See INS nonpublic in a occurred the encounter er (1984) 1758, 1762-63, L.Ed.2d 247 took encounter whether place; po respond will (“While most citizens Men space. See small, enclosed place so, and people do fact that request, lice 1877; 554, 100 S.Ct. denhall, 446 U.S. at they are free being told that do so without McCarty, Berkemer the con hardly eliminates respond, not to (1984); 3138, 3149, 82 L.Ed.2d response.... Unless nature sensual 1454; Bloom, F.2d at are so the encounter the circumstances Cir.1992); (10th 1526, 1533 Ward, 961 F.2d rea that a intimidating as to demonstrate 1012, F.2d Springer, 946 he was have believed person would sonable Cir.1991). (2d responded, he not if had free to not leave this of case undisputed facts The result questioning the say that one cannot factors were none reveal that Fourth Amend under in a detention ed they Laboy, would nor Ward, by Mr. perceived 1455; Bloom, at ment.”); 975 F.2d person by a reasonable perceived been have Lloyd, 1533; at 961 F.2d in the middle police, position. The in his con 447, (D.C.Cir.1989). We every taken had operation, an undercover a reasonable lawof that as a matter clude that there ensure to precaution possible to free not cross felt would have person presence. signs no outward were Quinones. Detective and encounter street participated officers Although six simply not occur does “a seizure as Just vi Quinones was only Detective operation, indi an approaches because the other had Laboy. Even to sible Mr. Bostick, questions,” fewa and asks vidual — only one to Mr. visible officers been 2386, a sei at -, at U.S. that would anything wearing officer was offi because an occur not zure does as a law him enforcement have identified him to signalling person, at cer waves an inside un official, that officer questions. a few over, asks and then come Laboy Mr. car, visible to not marked em too much placed district court The firearms No of the encounter. at the time subjective state Laboy’s Mr. on phasis only was Laboy. Not to Mr. visible were objec inquiry is an appropriate The mind. officers, he by the not touched Laboy innocent a reasonable one: whether tive estimate, at least his own was, even to leave. free felt have would person Quinones Detective yards from twenty-five at 574, 108 S.Ct. Chesternut, at U.S. been com to have claims the time at — at -, 111 S.Ct. Bostick, 1980; is no There street. cross the pelled to 491, Royer, 2388, Florida at in Quinones used Detective claim that 1335, 4, 75 n. n. language voice timidating tone of diffi Thus, have no we street. cross the Laboy compel rea- holding that reconciling our culty in verbal communication fact, the detective’s — Bostick, trolling of Florida law suggestion, do not we Contrary dissent’s -, show constituted signalled Quinones that fact Detective the Laboy. per- a reasonable to make analysis authority on whether focuses sufficient Our to Mr. actions, light not free to she when viewed he or believe the Detective’s son and the con- surrounding circumstances all testified that it was Laboy disregard ... feel person would sonable men him three black that the obvious the dis- actions with Quinones’ Detective under the wall were up against lined that Mr. determination court’s trict he, too, and that arrest- arrest being arrested. thought waved ed when en- that the initial we conclude Because over. counter between 1-2 and Order Findings, Conclusions seizure, not a Quinones was added). (emphasis Amendment, the evi- the Fourth offend n controlling majority set forth The during that arrest should seized dence Florida v. it cited Similarly, the sub- law when suppressed. been have and the evidence sequent federal warrant inquiry as whether (1991), and framed the free from that warrant under seized constitut totality of the circumstances suppressed. have been should not taint and authority to make sufficient ed a show REMANDED. REVERSED she or reasonable believe free to leave.1 dissenting. BRORBY, Judge, Circuit a nonexclusive majority sets forth The I dissent. have used conduct- list of factors courts findings can factual court’s whether or not analysis of their they are found to be if only reversed inherently co- officer’s actions were v. Ibar clearly erroneous. United pres- the factors found none of ercive and Cir.1992). ra, that the majority ignores the fact ent.- The appeal must be viewed The evidence demonstratively signaled Mr. police officer the district light favorable most our presence. his Given Laboy to come to Nothing in record findings. Id. obey propensity to society’s the district court’s suggests persuasively officers, I com- police believe requests in error. findings of fact are by holding the actions ignored mon sense findings, court, in its factual signaling the as follows: appear stated in front of street and the cross inherently coercive. black were not year an 18 old the officer W. Richard west man, walking northward the signal ordering per- hand A nonverbal Washington Street. side 100 feet cross a street travel son to the parking lot over to behind looked presence would not lead officer’s three and saw the complex apartment he or she believe a reasonable Detec- against the wall with men black police officer’s di- standing out front tive questions. rectives Washington looking across them of factors to add to the I would list Qui- Laboy and Detective Street. question of wheth- analyzing utilized contact acknowl- eye made nones are coer- officer’s actions er or anot head presence with edged each other’s cive, police officer in- conduct of the Quinones then waived nods. commands issued the nonverbal cluding Laboy that should signal [sic] this factor to Applying officer. Quinones. Mr. to Detective come over judgment analysis, I would affirm came the street and Laboy walked across district court. ten feet of about up to within distance of about Quinones, a total

feet. request terminate the or otherwise majority’s officer's disagree with the 1. I classification at -, to whether a inquiry as encounter. Bostick the person however, accurately, case, More distinction is free feels In this whether Supreme the standard as Court frames irrelevant. decline person would feel free to a reasonable

Case Details

Case Name: United States v. Richard W. Laboy

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Nov 9, 1992

Citation: 979 F.2d 795

Docket Number: 92-1115

Court Abbreviation: 10th Cir.