UNITED STATES of America, Plaintiff-Appellee, v. Samuel Terraye WINDOM, Defendant-Appellant.
No. 16-1027
United States Court of Appeals, Tenth Circuit.
FILED July 24, 2017
863 F.3d 1322
Bryan D. Fields, Assistant United States Attorney (Robert C. Troyer, Acting United States Attorney, with him on the brief), Office of the United States Attorney, Denver, Colorado, for Plaintiff-Appellee.
Before HARTZ, BALDOCK, and HOLMES Circuit Judges.
HOLMES, Circuit Judge.
Defendant-Appellant Samuel Terraye Windom entered a conditional guilty plea to one count of being a felon in possession of a firearm, in violation of
I
Mr. Windom was detained and arrested on April 1, 2015, following an incident at Challengers Sports Bar and Restaurant (“Challengers“) in Aurora, Colorado. Just before midnight on that evening, a female Challengers employee contacted the Aurora Police Department (“APD“) to report that an unknown male, later identified as Mr. Windom, had flashed a gun to bar patrons and claimed to be a Crips gang member. The employee indicated, however, that the individual-whom she further described as a thirty-three year-old black male, 6‘2” or 6‘3” tall, with braided hair, wearing jeans and a black jacket with a cobra on the back-had not threatened or injured any patron. By the time the em
APD‘s dispatch relayed the “weapons call” to several local officers, advised them of the nature of the alleged conduct, and provided Mr. Windom‘s physical description. Aplt.‘s Ex. A-1, at 3. The APD officers that first arrived on the scene, however, found the Murano in the parking lot, without an individual matching Mr. Windom‘s description, and the en-route officers therefore turned their attention to the other vehicle described by the caller (i.e., the Cadillac).
APD Officer Jeremy McElroy was approaching Challengers in his patrol vehicle when he observed a Cadillac matching the description from the call traveling in the opposite direction approximately two miles from Challengers. Officer McElroy made a u-turn and proceeded to follow the vehicle, and after backup arrived, he initiated “a high-risk traffic stop,” R., Vol. III, at 79, based on his belief that the vehicle contained “a gang member” “armed with a gun,” R., Suppl. Vol. I, at 19 (Tr. Mot. Hr‘g, dated Sept. 4, 2015). More specifically, Officer McElroy drew his weapon and pointed it at the pulled-over Cadillac, wedged himself behind his door jamb for protection, and activated “spotlighting . . . to light the vehicle.” R., Vol. III, at 79-80. Meanwhile, at least two more APD officers provided “lethal cover,” that is, “they [too] had their guns drawn and pointed at the Cadillac, as well as its occupants.” Id. at 80. After the officers assumed their covered positions, Officer McElroy “yell[ed]” for the occupants to “get [their] hands up[and] turn the car off,” and directed “them [to] throw the keys out [of] the driver‘s side window.” R., Suppl. Vol. I, at 20.
Officer McElroy then ordered all of the occupants to exit the vehicle and assume the prone position-i.e., to lie face-down on the ground with legs crossed. The driver emerged first, and while her initial response was “somewhat argumentative,” she complied with the officer‘s instructions and assumed the prone position. Id. Mr. Windom then emerged from the front passenger door, and Office McElroy immediately noticed that he matched the description that the Challengers employee had provided: e.g., a black man, about 6‘2” tall, with braided hair wearing a black jacket and blue jeans. Mr. Windom assumed the prone position without objection. Finally, a third occupant-a pregnant female-exited from one of the rear passenger doors and was ordered to get “down on her knees” outside of the vehicle. Id. at 22.
Some of the officers checked the Cadillac to ensure that it had no other occupants and then proceeded to handcuff and pat down each individual, while other officers kept watch, providing “lethal cover.” Id. At that point, the officers positively identified the male occupant as Mr. Windom, found a Smith & Wesson revolver in his pocket during the course of a pat-down, and arrested him for the crime of disorderly conduct based on his actions at Challengers.
On May 5, 2015, a federal grand jury in Colorado indicted Mr. Windom on one count of being a felon in possession of a firearm, in violation of
Following a hearing, the district court denied the suppression motion, concluding that the officers had “reasonable and articulable suspicion” that, within the Cadillac, they would encounter an “armed and dangerous” individual, R., Vol. III, at 86, “who identified himself as a gang member, [had] show[n] a gun to patrons at a restaurant and bar and [had] caus[ed] enough concern for a private citizen to call and report the matter to police,” id. at 91. In other words, although the district court recognized that “the use of force [could] elevate [an investigative] encounter to an arrest,” it found the officers’ “display of firearms” in this instance “permissible without probable cause,” because the officers “reasonably believe[d]” that they needed firearms to protect themselves from a potentially dangerous situation. Id. at 92.
In the aftermath of the district court‘s suppression decision, Mr. Windom entered a conditional guilty plea, in which he reserved the right to appeal from that decision. Following his plea, the district court sentenced Mr. Windom to forty-six months’ imprisonment, and he brought this timely appeal.
II
Mr. Windom contends that the district court erred in denying his suppression motion, arguing that officers discovered the firearm during the course of an unreasonable seizure in violation of the Fourth Amendment. Mr. Windom acknowledges that the officers had reasonable suspicion to stop the vehicle, but he takes the position that the officers’ use of force exceeded the bounds of an investigative stop, thus converting the stop into an arrest without probable cause. Therefore, he argues, the seizure was unlawful and the firearm that the officers subsequently discovered should be suppressed. The government argues that based on the totality of the circumstances known to the officers at the time of the stop-notably, their reasonable suspicion that an allegedly armed suspect who claimed to be a gang member was in the vehicle-they were justified in taking heightened precautionary measures during the stop.
A
“When reviewing the 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. Mosley, 743 F.3d 1317, 1322 (10th Cir. 2014) (quoting United States v. Apperson, 441 F.3d 1162, 1184 (10th Cir. 2006)); accord United States v. Madrid, 713 F.3d 1251, 1255 (10th Cir. 2013). The only issue in this appeal is whether the force used by the officers in seizing Mr. Windom was reasonable in the context of an investigative detention; if not, under the circumstances present here-where the officers undisputedly
B
The
In Terry v. Ohio, 392 U.S. 1 (1968), however, the Supreme Court recognized “the narrow authority of police officers who suspect criminal activity to make limited intrusions on an individual‘s personal security [i.e., to effect a seizure] based on less than probable cause.” Michigan v. Summers, 452 U.S. 692, 698 (1981). “The exception to the probable-cause requirement for limited seizures of the person recognized in Terry and its progeny rests on a balancing of . . . competing interests to determine the reasonableness of the type of seizure involved within the meaning of the Fourth Amendment‘s general proscription against unreasonable searches and seizures.” United States v. Place, 462 U.S. 696, 703 (1983) (quoting Terry, 392 U.S. at 20). “The touchstone of our analysis under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen‘s personal security.‘” Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977) (quoting Terry, 392 U.S. at 19).
To determine the reasonableness of a particular seizure, and thus its constitutionality, “[w]e must balance the nature and quality of the intrusion on the individual‘s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Tennessee v. Garner, 471 U.S. 1, 8 (1985) (alteration in original) (quoting Place, 462 U.S. at 703); see also Summers, 452 U.S. at 700 n.12 (describing “reasonableness-the balancing of competing interests“-as “the key principle of the Fourth Amendment” (quoting Dunaway v. New York, 442 U.S. 200, 219 (1979) (White, J., concurring))); United States v. Moran, 503 F.3d 1135, 1141 (10th Cir. 2007) (“We determine the constitutionality of an investigatory stop by balancing ‘the nature and quality of the intrusion on personal security against the importance of the governmental interests alleged to justify the intrusion.‘” (quoting Hensley, 469 U.S. at 228)).
When evaluating the reasonableness of a traffic stop under Terry, we engage in a two-part inquiry-asking, first, whether the stop was “justified at its inception,” and second, whether “the officers’ actions [were] ‘reasonably related in scope to the circumstances which justified the interference in the first place.‘” Madrid, 713 F.3d at 1256 (quoting Terry, 392 U.S. at 20). Under Terry‘s first prong, an officer may “make a forcible stop of a person when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity.” Place, 462 U.S. at 702 (second emphasis added); see also Florida v. Royer, 460 U.S. 491, 498 (1983) (“[C]ertain seizures are justifiable under the Fourth Amendment if there is articulable suspicion that a person has committed or is about to commit a crime.“); Summers, 452 U.S. at 698 n.7 (same); United States v. McHugh, 639 F.3d 1250, 1255 (10th Cir. 2011) (“An investigatory detention ‘is justified at its inception “if the specific and articulable facts and rational inferences drawn from those facts give rise to a reasonable suspicion a person has or is committing a crime.“‘” (quoting United States v. DeJear, 552 F.3d 1196, 1200 (10th Cir. 2009))).
Here, Mr. Windom acknowledges that the officers had reasonable suspicion to stop the vehicle.1 But Mr. Windom challenges the manner in which they executed the stop, arguing that their seizure involved such a heightened degree of force that it converted an investigative stop into an arrest that needed to be (but was not) justified by probable cause. Therefore, we focus on Terry‘s second inquiry-whether the officers’ conduct was “reasonably related in scope to the circumstances which justified the interference in the first place.” Madrid, 713 F.3d at 1256 (quoting Terry, 392 U.S. at 20). And, in that regard, we center our inquiry on whether the officers’ use of high-risk stop techniques was reasonable under the circumstances. See Place, 462 U.S. at 708 (examining “whether the [officers‘] conduct . . . was such as to place the seizure within the general rule requiring probable cause for a seizure or within Terry‘s exception to that rule” (emphasis added)); see Mimms, 434 U.S. at 108-09 (“The touchstone of our analysis
As noted, “[d]etermining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual‘s Fourth Amendment interests against the countervailing governmental interests at stake.” Mosley, 743 F.3d at 1329 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). The safety of law enforcement is a “legitimate and weighty” concern, Mimms, 434 U.S. at 110; therefore, “officers may use force during a Terry-type detention to the extent that ‘such steps [are] reasonably necessary to protect their personal safety and to maintain the status quo during the course of [the] stop.‘” Novitsky v. City of Aurora, 491 F.3d 1244, 1254 (10th Cir. 2007) (alterations in original) (quoting Hensley, 469 U.S. at 235); accord Mosley, 743 F.3d at 1328-29.
In evaluating the reasonableness of officers’ use of force we apply an objective standard, asking whether the “facts available to the officer at the moment of the seizure . . . [would] warrant a man of reasonable caution in the belief that the action taken was appropriate.” Madrid, 713 F.3d at 1256 (alteration in original) (emphasis added) (quoting Terry, 392 U.S. at 22); see also Mosley, 743 F.3d at 1329 (same); cf. Graham, 490 U.S. at 396 (“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.“).
Further, in evaluating officers’ actions we are mindful of “‘the facts and circumstances of each particular case’ and give ‘allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.‘” Hood, 774 F.3d at 643 (quoting Graham, 490 U.S. at 396-97); accord Mosley, 743 F.3d at 1329 (“This test ‘requires careful attention to the facts and circumstances of each particular case . . . .‘” (quoting Graham, 490 U.S. at 396)). “[B]right-line rules do not govern the permissible scope of an investigative detention.” United States v. Copening, 506 F.3d 1241, 1248 (10th Cir. 2007). “[I]n evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria.” United States v. Sharpe, 470 U.S. 675, 685 (1985).
Applying these principles, we have held that, “[u]nder certain circumstances, the steps officers may permissibly take to protect their safety include drawing their weapons, placing a suspect in handcuffs, or
Further, the Supreme Court has repeatedly recognized the inherent danger that officers face when confronting a suspect in a vehicle. See, e.g., Mimms, 434 U.S. at 110 (holding that police officers may order individuals to exit a vehicle during a Terry traffic stop based in part on the “inordinate risk confronting an officer as he approaches a person seated in an automobile“); Adams v. Williams, 407 U.S. 143, 148 n.3 (1972) (citing a study that found “approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile“); see also United States v. Robinson, 414 U.S. 218, 234 n.5 (1973) (noting “that a significant percentage of murders of police officers occur[] when the officers are making traffic stops“). We too have acknowledged the “dangerous dilemma” that police officers face when executing a Terry stop involving suspects in an automobile, especially where, as here, the officers have a reasonable suspicion that the suspect is armed. Merritt, 695 F.2d at 1273 (quoting United States v. Jackson, 652 F.2d 244, 249 (2d Cir. 1981)). In particular, in such circumstances, where the officers’ suspicion does not rise to the level of probable cause, they face an untenable dilemma:
If the officer approaches a suspected robber with his gun still in his holster, he increases the risk that he will be shot. If, on the other hand, he protects himself by drawing his gun, he increases the risk that a court will set the criminal free by construing his action as an illegal arrest.
Merritt, 695 F.2d at 1273 (quoting Jackson, 652 F.2d at 249-50).
Indeed, when an officer has a reasonable belief that a suspect he is investigating at close range is armed, “it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” Long, 463 U.S. at 1047 (emphasis added) (quoting Terry, 392 U.S. at 24); see also Perdue, 8 F.3d at 1463 (“The Fourth Amendment does not require that officers unnecessarily risk their lives when encountering a suspect whom they reasonably believe to be armed and dangerous.“). Notably, we have held that “the governmental interest in the safety of police officers outweighs the individual‘s Fourth Amendment interest when an officer has an objective basis to believe that the person being lawfully detained is armed and dangerous.” United States v. King, 990 F.2d 1552, 1561 (10th Cir. 1993) (emphasis added); see also United States v. Holt, 264 F.3d 1215, 1222 (10th Cir. 2001) (en banc) (Ebel, J., for the court) (“The Supreme Court has found it ‘too plain for argument’ that the government‘s interest in officer safety is ‘both legitimate and weighty,’ given the ‘inordinate risks confronting an officer as he approaches a person seated in an automobile.‘” (quoting Mimms, 434 U.S. at 110)), overturned on other grounds by Muehler v. Mena, 544 U.S. 93 (2005) (holding that the content of police questions in the course of a legitimate stop raise no Fourth Amendment issues if the questions do not unrea
Thus, in light of the foregoing principles, we must determine whether the totality of the circumstances known to the officers justified the nature of the particular seizure at issue here. See Mosley, 743 F.3d at 1328-29 (“In evaluating whether the precautionary steps taken by an officer [during a stop] were reasonable, the standard is objective-would the facts available to the officer at the moment of the seizure warrant a man of reasonable caution in the belief that the action taken was appropriate.” (quoting Novitsky, 491 F.3d 1244)). We conclude that, under these circumstances, the degree of force used by the officers was reasonable and justified.
1
Putting a finer point on Mr. Windom‘s argument, he contends that the high-risk stop techniques the officers used in executing the stop were unreasonable given that the officers only possessed reasonable suspicion that he was guilty of a completed misdemeanor. In other words, he contends that, although a completed misdemeanor may give rise to reasonable suspicion sufficient to justify an ordinary investigative stop, a completed misdemeanor may not form the basis for the use of high-risk stop techniques because the government interest in solving past misdemeanor crimes fails to support such an intrusion on personal security.
In support of this proposition, Mr. Windom relies largely on two of our prior cases-Moran and Madrid-in which we held that a completed misdemeanor could provide reasonable suspicion sufficient to justify an investigative detention. See Madrid, 713 F.3d at 1257; Moran, 503 F.3d at 1142-43. In particular, relying on the Supreme Court‘s decision in Hensley, we held in Moran that past crimes-whether
Mr. Windom correctly points out that, unlike the circumstances of his stop, both Madrid and Moran involved minimally intrusive, brief investigative stops. But his reliance on Moran and Madrid is misplaced. In both of those cases, we considered only whether the officers’ reasonable suspicion of a completed misdemeanor was sufficient to justify an investigative stop at its inception, i.e., prong one of Terry. See Madrid, 713 F.3d at 1257 (“The only issue in this appeal is whether the seizure of Mr. Madrid was justified at its inception.” (emphasis added)); Moran, 503 F.3d at 1140 (considering whether a “stop . . . based on suspicion of . . . a completed misdemeanor . . . violate[s] the Fourth Amendment“). We did not have occasion in these two cases to consider the issue presented here, which relates to Terry‘s second prong, i.e., the reasonableness of the scope of the detention. Specifically, we did not examine in those cases under what circumstances officers’ use of force in conducting an investigative detention-after effecting a permissible initial stop-will convert the detention into an arrest that must be justified by probable cause. Therefore, Moran and Madrid are largely inapposite to resolving the question before us.
2
Once the officers lawfully stopped the vehicle, the government‘s interest in officer safety took on heightened salience. Specifically, the information that the officers possessed provided them with an objective basis to believe that Mr. Windom would be armed and dangerous.2 Once the officers lawfully stopped the vehicle, they had reason to take steps “to protect their personal safety and to maintain the status
Critically, the officers conducted the Terry stop in a high-crime area at around midnight, after receiving a tip that would have led a reasonable officer to believe that one of the occupants of the vehicle they had just stopped had flashed a firearm in public, and had also proclaimed membership in the Crips, a notoriously dangerous street gang.3 More specifically, the confluence of these two interlocking factors would have reasonably led officers to believe that they might confront an armed and dangerous individual, see Copening, 506 F.3d at 1248 (describing a “loaded gun” as “an inherently dangerous weapon“); United States v. Garcia, 459 F.3d 1059, 1066 (10th Cir. 2006) (describing “some degree of gang affiliation” as an additional fact that supported the reasonableness of a precautionary frisk by officers), who potentially posed “an immediate threat to the[ir] safety.” Mosley, 743 F.3d at 1329 (quoting Graham, 490 U.S. at 396).
Indeed, the circumstances present here are analogous to those in Perdue, in which we concluded that the officers were justified in conducting a Terry stop with weapons drawn. In Perdue, officers conducted a Terry stop similar to the one at issue here after witnessing a truck enter a long dirt road leading to a remote building that the officers knew housed weapons. 8 F.3d at 1458-59. Notably, the officers stopped the defendant‘s car “with weapons drawn” and “ordered Mr. Perdue and his fiancee to get out of the car and lie face down.” Id. at 1458. Although the government conceded that the officers lacked probable cause for an arrest, we concluded that the Terry stop was “reasonable as conducted,” based on the officers’ knowledge that the building-which the driver had not reached-contained firearms. Id. at 1462-63. We explained that “[t]he Fourth Amendment does not require that officers unnecessarily risk their lives when encountering a suspect whom they reasonably believe to be armed and dangerous,” id. at 1463, and concluded that police officers may “take such steps as [are] reasonably necessary to protect their personal safety and to maintain the status quo,” id. at 1462 (alteration in original) (quoting Hensley, 469 U.S. at 235).
Given those factual circumstances, we reasoned that the officers’ knowledge of the firearms found in the building justified “any concern [they] had for their personal safety,” id. at 1463; more specifically, based on this information about the weap-
Similarly, in Copening, we considered the reasonableness of “felony takedown” procedures virtually identical to the tactics employed here,4 in response to an “anonymous” tip that a male caller had seen “a bald, African-American man . . . (1) exit a vehicle . . . [outside of a convenience store]; (2) drop a pistol [while exiting]; (3) pick up the pistol; (4) return to the vehicle; (5) ‘stash’ the pistol in the vehicle‘s seat; and (6) enter the [convenience store].” 506 F.3d at 1243 (emphasis added).
On appeal, the defendant argued-much like Mr. Windom-that these facts failed to “justify officers’ use of the ‘felony takedown’ procedure” because officers based the Terry stop on a “technical offense” in circumstances lacking any indication of impending “violence or threat.” Id. at 1248. We, however, rejected these arguments, concluding that “the ‘felony takedown’ procedure” constituted the “appropriate ‘precautionary measure,’ under the[] circumstances.” Id. (quoting United States v. Shareef, 100 F.3d 1491, 1506 (10th Cir. 1996)). Those circumstances included the officers’ reasonable belief that there was a “loaded gun . . . in the [vehicle],” the “safety risk attendant to detaining the truck‘s occupants on a suspected weapons violation,” and “the ‘need to detain multiple defendants.‘” Id. (quoting Muehler, 544 U.S. at 100). The facts here match and even exceed those in Copening, insofar as the officers in Copening had no reason to believe that the suspect was a member of a violent gang.
Mr. Windom contends that Perdue and Copening are inapposite be-
In Perdue, we explicitly noted that the ultimate determination of the reasonableness of a particular seizure under the Fourth Amendment “is determined by balancing the governmental interest in crime prevention against the citizen‘s right to be free from governmental intrusion.” Perdue, 8 F.3d at 1462 (citing Terry, 392 U.S. at 20-21). We then conclud
In sum, given the particular facts of this case, we conclude that the precautionary measures of force that the officers employed in seizing Mr. Windom were reasonable, and did not cause his seizure to rise to the level of a de facto arrest, which would have required a showing of probable cause. Consequently, the seizure here was lawful.
III
For the foregoing reasons, we AFFIRM Mr. Windom‘s conviction.
JEROME A. HOLMES
UNITED STATES CIRCUIT JUDGE
Notes
506 F.3d at 1245. Those procedures are almost identical to those used by the officers in this case.the officers (1) exit their cruisers, staying behind their driver‘s-side door, with their guns drawn; (2) obtain a view of the occupants’ hands; (3) direct the driver to throw the vehicle‘s keys on the ground, using only their left hand; (4) order the occupants to exit the vehicle, one at a time, with their hands above their head; (5) tell the suspects to back up, i.e., facing away from the officers, toward the police cruisers; and (6) handcuff the suspects, either standing, kneeling, or in a prone position, from behind. Throughout the takedown officers keep guns fixed on both the vehicle and the suspects.
Here, the “high-risk traffic stop” procedure entailed that the officers (1) exit their cruisers, staying behind their driver‘s side door, R., Vol. III, at 80; (2) “spotlight” the vehicle, id.; (3) direct the driver to “turn the car off,” and “throw the keys out [of] the driver‘s side window,” R., Suppl. Vol. I, at 20; (4) order the occupants to exit the vehicle, one at a time, with their hands above their heads, id.; (5) order the suspects to assume the prone position-i.e., to lie face-down on the ground with legs crossed, id.; R., Vol. III, at 81; (6) handcuff the suspects and perform a pat-down for weapons, R., Suppl. Vol. I, at 57-58; and (7) throughout the procedure officers maintain “lethal cover,” meaning that “they ha[ve] their guns drawn and pointed at the [vehicle], as well as its occupants,” R., Vol. III, at 80.
Mr. Windom contends that our circuit “applies a different test when the only suspected crime is a past misdemeanor.” Aplt.‘s Opening Br. at 5; see also Aplt.‘s Reply Br. at 4 (stating that “in completed-misdemeanor cases this Court applies the Hensley test, a slight variation on the Terry analysis for ongoing crimes and completed felonies . . . .“). However, the Hensley test is simply the Terry test, which in all cases instructs that we consider “the reasonableness in all the circumstances of the particular governmental invasion of a citizen‘s personal security.” Terry, 392 U.S. at 19. In other words, we analyze the reasonableness of an investigative seizure based on a completed misdemeanor the same way we analyze any other seizure involving less than probable cause. See Hensley, 469 U.S. at 228 (“The proper way to identify the limits [on investigative stops to investigate past criminal activity] is to apply the same test already used to identify the proper bounds of intrusions that further investigations of imminent or ongoing crimes. That test, which is grounded in the standard of reasonableness embodied in the Fourth Amendment, balances the nature and quality of the intrusion on personal security against the importance of the governmental interests alleged to justify the intrusion.” (emphasis added)); Moran, 503 F.3d at 1140 (“We measure the constitutional validity of an investigatory stop by the standard set forth in Terry . . . .“); see id. at 1141 (“[f]ollowing the Supreme Court‘s approach in Hensley“-which is the Terry balancing test-when evaluating the reasonableness of an investigative stop based on a completed misdemeanor).