* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 28 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JUSTIN JENSEN, Defendant - Appellant. No. 01-4178 (D.C. No. 2:00-CR-434-S) (District of Utah)

ORDER AND JUDGMENT *

Before BRISCOE , Circuit Judge, BRORBY , Senior Circuit Judge, and MURPHY , Circuit Judge.

Defendant-appellant Justin Jensen was indicted on asingle count of possession of a firearm by a convicted felon in vio lation of 18 U.S.C. § 922(g)(1). Jensen moved to suppress the firearm, a handgun fou nd during a search of his truck, on the ground that the stop of the truck was not supported by reasonable suspicion or probable cause. The district court de nied the motion to suppress,-2-

concluding that the investigative stop of the truckwas supported by reasonable suspicion. Jensen thereafter entered a conditional guilty plea pursuant to Fed. R. Crim. P. 11(a)(2), preserving his right to appeal t he district court’s denial of his suppression motion. On appeal, Jensen does not cha llenge the district court’s factual findings. Instead, he simply asserts that the district court erred in concluding that those facts amounted to reasonable suspicion of wrongdoing. This court exercises jurisdiction pursuant to 28 U. S.C. § 1291 and affirms the district court. In the early morning of September 13, 2000, several law enforcement officers were executing a search warrant at a known drug and gang flophouse in a high crime neighborhood in Kearns, Utah. The ownerof the home, Gary Whitaker, had a history of drug use and distributio n, as well as possession of guns. While the officers were executing the warran t, Whitaker returned home and was stopped as he pulled into the driveway. He was found to be in possession of one ounce of wet methamphetamine and a semiautomati c weapon. During Whitaker’s arrest, officers saw two vehicles driving in tandem approach the area. The lead vehicle, a small truck , turned onto the street where the officers were executing the search warrant. Th e second vehicle also began to turn onto the street but aborted the turn and sped away after appearing to notice the officers in the front yard wearing conspicuousl y marked police attire. After-3-

the truck turned onto the street, it slowed to a cr awl as if the driver intended to stop at the house where the officers were executing the warrant. Deputy Sheriff Tracy Wyant testified that when executing a warrantat a known drug flophouse, officers anticipate that drug buyers or sellers may approach the house. For just this reason, Wyant indicated that officers “typical ly have a vehicle, at least one individual in a vehicle just like this in a scenari o in order to stop cars that attempt to come into a residence where we have done search warrants.” Accordingly, as the truck slowed down, the officers became “concern ed about officer safety, namely if someone was going to come by and take a s hot” at them. Deputy Wyant and FBI Special Agent Juan Becerra shined their fla shlights at the two men in the truck. The driver of the truck, later identified a s Jensen, appeared “very nervous.” Jensen’s body movements became rigid andjerky and his eyes became enlarged. Deputy Wyant described Jensen’s reaction as a “deer in the headlights” look that was suspicious. Because Jensen’s behavior seemed suspicious, DeputyWyant yelled “stop, sheriff’s office,” and other officers yelled “stop, police.” Jensen did not comply, but instead began to accelerate out of the area. D eputy Wyant and Agent Becerra began running after the truck, shouting for it to s top. Jensen still did not stop the truck; it appeared to Wyant that Jensen was “trying to get away from” or flee-4-

from the officers. Jensen was ultimately forced to slow down for two large dips in the road and finally stopped the truck as office rs caught up to him. As the truck came to a stop, Deputy Wyant approache d the driver’s side and Agent Becerra approached the passenger’s side. Aft er briefly explaining the reason for the stop, Wyant asked Jensen for identif ication and if there were any weapons in the vehicle. In response, Jensen indicated that there was a gun underneath his seat. Deputy Wyant asked Jensen to step out of the truck and told him that he was not being arrested but only detaine d for officer safety purposes. Jensen was placed in handcuffs and frisked for weap ons. With the door of the truck open, the handgun was clearly visible under t he driver’s seat. During a search of the truck, officers retrieved the gun, a scale, and a pipe used to smoke methamphetamine. Jensen was subsequently charged w ith one count of possession of a firearm by a convicted felon in vio lation of 18 U.S.C. § 922(g)(1). In response to the indictment, Jensen filed a motio n to suppress the gun. Jensen’s suppression motion was referred to a magis trate judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B). After conducting evidentiary hearings, the magistrate judge issued a report and recommendation, which recommended that Jensen’s motion be denied. The ma gistrate judge found that “Wyant was aware of the house being a drug flophous e; that [Jensen’s] truck had slowed down to a crawl; that [Jensen] acted nervous ly; and that [Jensen] had tried1 As noted above, Jensen’s primary contention on appe al is that the district

court erred in concluding that the stop of his truc k was supported by reasonable -5- to flee when initially asked to stop.” Accordingly , based on the totality of the circumstances, the magistrate judge concluded that the investigatory stop was supported by reasonable, articulable suspicion thatJensen was engaged in illegal activity. Upon de novo review, the district court adopted the report and recommendation and denied Jensen’s motion to suppre ss. Because Jensen does not challenge the district court’s findings of historical fact, but instead only its ultimate conclusion thatthe stop was supported by reasonable suspicion, our standard of review is de novo

. See United States v.
Treto-Haro , 287 F.3d 1000, 1002 (10th Cir. 2002) (“We review the ultimate determinations of reasonable suspicion to stop and probable cause to arrest de novo.”). There are three distinct types of police-citizen en counters: The first involves the voluntary cooperation of a c itizen in response to non-coercive questioning. The second is a Terry v. Ohio , 392 U.S. 1 (1968) stop, involving only a brief, non-intrusiv e detention and frisk for weapons when officers have a reasonable s uspicion that the defendant has committed a crime or is about to do s o. The third encounter is the arrest of the defendant. United States v. Madrid, 30 F.3d 1269, 1275 (10th Cir. 1994). Both Jensenand the United States agree that this case involves the second type of encounter, an investigatory detention. 1 To justify such a detention, officers “must be ab le tosuspicion of wrongdoing. In the alternative, howev er, Jensen asks this court to

“modify the law” so that “reasonable suspicion is a n insufficient basis to initiate the traffic stop of a vehicle being driven in a law ful manner at night, and that the heightened standard of probable cause is required.” Such an approach is foreclosed by this court’s recent decision in United States v. Callarman , wherein we reaffirmed that “[w]hile either probable cause o r reasonable suspicion is sufficient to justify a traffic stop, only the less er requirement of reasonable suspicion is necessary.” 273 F.3d 1284, 1287 (10thCir. 2001). Jensen is simply wrong in asserting that Callarman stands for the proposition that Terry -type traffic stops are only proper when the reasonable s uspicion of wrongdoing relates to a traffic or equipment violation. Accordingly, Jensen has not cited to a single case supporting the propriety of his proposed “modi fication.” Finally, Jensen has not advanced any convincing rationale for treating investigatory stops of vehicles at night any differently from the myriad other type s of Terrystops. -6- point to specific and articulable facts which, take n together with rational inferences from those facts, reasonably warrant the intrusion.” Terry , 392 U.S. at 21. The reasonableness of a stop is “judged by an objective standard taking the totality of the circumstances and information avail able to the officers into
account.” United States v. Lang , 81 F.3d 955, 965 (10th Cir. 1996). With this legal background in mind, Jensen asserts that the facts as found by the district court did not create reasonable sus picion of wrongdoing and that the officers effecting his stop acted on a mere hun ch. See Terry , 392 U.S. at 27 (holding that an investigatory detention must be ba sed on something more that an “inchoate and unparticularized suspicion or hunch” (quotation omitted)). In particular, Jensen notes that he was not named in t he search warrant that the officers were executing and that his identity was n ot known to any officers when-7-

they aimed their flashlights at him. Furthermore, neither he nor his passenger engaged in any contact with anyone in the vicinity of the dwelling being searched and did not exit the truck until it was stopped and they were ordered to exit by the officers. Finally, Jensen attempts to minimize the relevance of his attempt to flee after the officers requested that he stop. Jensen recognizes that the Supreme Court has held that flight in the face of a uniform ed officer creates a reasonable suspicion of wrongdoing. See Illinois v. Wardlow , 528 U.S. 119, 124-25 (2000). According to Jensen, however, he simply “reasonablyand sensibly slowed down upon approaching the scene of uniformed police acti vity at night and briefly voluntarily terminated the encounter in a reasonabl e and sensible way by speeding up within the speed limit before deciding to stop f or officers on foot.” Jensen also argues for the first time in his reply brief t hat his flight is irrelevant to the reasonable-suspicion calculus because it occurred o nly after the stop was initiated. This court finds Jensen’s arguments unavailing. Je nsen was seen approaching a known drug and gang flophouse in a hi gh crime neighborhood at 3:30 a.m. The Supreme Court has made clear that “t he fact that [a] stop occurred in a ‘high crime area’ [is] among the relevant cont extual considerations in a Terry analysis.” Wardlow , 528 U.S. at 124. Deputy Wyant testified that it was common for drug buyers and sellers to approach such flopho uses during the execution of a-8-

search warrant. Against this backdrop, Jensen appr oached the area traveling in tandem with another car that appeared to flee immed iately upon spotting the officers. The truck then “slowed to an unusually s low crawl,” leading Wyant to believe that the truck contained a drug buyer or se ller. When the officers shined their flashlights in the truck, Jensen became “very nervous,” displaying a “deer in the headlights” reaction upon seeing the police pre sence at the house. See United
States v. Soto-Cervantes , 138 F.3d 1319, 1324 (10th Cir. 1998) (holding that although itself not sufficient to support reasonabl e suspicion, nervousness is a factor to be considered as part of the totality of circumstances). Jensen then accelerated and fled despite requests from the offi cers that he stop. This behavior “is the consummate act of evasion: It is not necess arily indicative of wrongdoing, but it is certainly suggestive of such.” Wardlow , 528 U.S. at 124. Although Jensen tries to characterize his actions as innocen t behavior, the district court specifically found that he tried to flee. Furtherm ore, Jensen is wrong as a matter of law in asserting that this court cannot considerhis flight because it occurred after he was seized, i.e. , after officers requested that he stop. Jensen wa s not seized until he actually complied with the officers requests to stop, a point in time after his initial attempt to flee. See California v. Hodari D. , 499 U.S. 621, 626 (1991) (“The narrow question before us is whether, with respect to a show of-9-

authority as with respect to application of physica l force, a seizure occurs even though the subject does not yield. We hold that itdoes not.”). When the totality of the circumstances are consider ed, it becomes clear that the investigatory stop of Jensen’s truck was supported by reasonable suspicion of wrongdoing. Accordingly, the order of the United S tates District Court for the District of Utah denying Jensen’s suppression motio n is hereby AFFIRMED

. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge