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

### April 11, 2006
Elisabeth A. Shumaker Clerk of Court PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. BOBBY JUDE LOPEZ,

Defendant-Appellee. No. 05-1323

Appeal from the United States District Court

for the District of Colorado (D.C. No. 04-CR-500-D)
James C. Murphy, Assistant United States Attorney ( William J. Leone, United States Attorney, Philip A. Brimmer, Assistant Unite d States Attorney, with him on the briefs), Denver, Colorado, for Plaintiff-Appell ant. Lynn C. Hartfield, Research and Writing Specialist (Raymond P. Moore, Federal Public Defender, John A. Chanin, Assistant Federal Public Defender, with her on the brief), Denver, Colorado, for Defendant-Appelle e.

Before HENRY , BALDOCK and MURPHY , Circuit Judges.

MURPHY , Circuit Judge.-2-

I. Introduction Appellant Bobby Jude Lopez was charged in a two-cou nt indictment with possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841, and possession of ammunition by a previously convic ted felon, in violation of 18 U.S.C. § 922(g)(1). Before trial, Lopez moved to s uppress the evidence recovered from a search of his person and his car. Lopez argued the evidence was the fruit of an unlawful detention. The district c ourt granted Lopez’s motion, concluding Lopez was seized in violation of the Fou rth Amendment when a police officer approached him on the street, requested ide ntification, and then held his driver’s license while running a computer check. T he government brought this appeal, challenging the district court’s conclusion Lopez’s detention was unconstitutional. Exercising jurisdiction pursuantto 18 U.S.C. § 3731, we affirm the district court’s order granting Lopez’s suppres sion motion. II. Background During a routine patrol on November 24, 2004, Denv er police officer Bryce Jackson observed two men standing in the midd le of the street next to a car parked with its engine running. The two men were D efendant Lopez and his friend Randy Romero. Jackson testified the car was not obstructing traffic but he made the decision to contact Lopez and Romero becau se it was very early in the morning and the street borders a high-crime area. Before exiting his patrol car,-3-

Jackson checked the license plate of the car on his mobile data terminal. He learned the car had not been reported stolen and itwas registered to a woman in Westminster, Colorado. Jackson stopped his car approximately twenty feet b ehind Lopez and Romero. His spotlight was on, but not his overheadlights or siren. Jackson asked the men if either of them owned the car and L opez responded that the car belonged to him. Jackson then approached the two m en and asked them for identification. Romero produced a Colorado identif ication card and Lopez produced a Colorado driver’s license. The address on Lopez’s license matched the address of the registered owner of the car. Ne vertheless, Jackson took Lopez’s license to his patrol car and ran a warrant s check. Jackson testified he did not ask Romero and Lopez to remain by the car. Romero, however, testified Jackson instructed them to stay by the car and the district court found that Jackson “told the men to wait by the rear of the pa rked car.” The government does not challenge this finding as clearly erroneou s. The warrants check revealed Lopez had an outstandin g warrant for a misdemeanor charge of harboring a minor. Based on this information, Jackson called for backup and a second officer arrived appr oximately five minutes later. Lopez was arrested and searched. During the search , Jackson found crack cocaine-4-

in Lopez’s pants pocket. When Jackson searched Lop ez’s car, he discovered a .22 revolver under the front seat, some plastic sandwic h bags, and an electronic scale. Lopez was charged in a two-count indictment with po ssession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841, and possession of ammunition by a previously convicted felon, in viol ation of 18 U.S.C. § 922(g)(1). Shortly after the indictment was filed, Lopez moved to suppress the evidence recovered at the time of his arrest. The district court held a suppression hearing, at which both Jackson and Romero testified . After the hearing, the district court issued a written order suppressing the drugs and other evidence, concluding they were the fruits of an unlawful dete ntion. The district court accepted the government’s concession that Jackson d id not have reasonable suspicion of criminal activity when he first contac ted Lopez. Next, relying on case law from this court and other circuits, the co urt concluded Lopez was not free to leave, and thus seized, once Jackson took p ossession of his driver’s licence and retained it to run the computer check. The gov ernment has appealed the district court’s ruling, arguing the encounter betw een Lopez and Jackson was consensual and thus did not implicate the Fourth Am endment. III. Discussion When reviewing the grant of a motion to suppress, t his court examines the evidence in the light most favorable to the defenda nt and accepts the district-5-

court’s factual findings unless they are clearly er roneous. United States v. Nielson , 415 F.3d 1195, 1198 (10th Cir. 2005). The ultimate determination as to whether an officer’s conduct violates the Fourth Am endment, however, is reviewed de novo. United States v. Oliver , 363 F.3d 1061, 1065 (10th Cir. 2004). This court has identified three categories of polic e-citizen encounters: “(1) consensual encounters which do not implicate the Fo urth Amendment; (2) investigative detentions which are Fourth Amendmentseizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity; and (3) arrests, the most intrusive of Fourth Amend ment seizures and reasonable only if supported by probable cause.” United States v. Torres-Guevara , 147 F.3d 1261, 1264 (10th Cir. 1998) (quotation omitted). L opez did not argue he was under arrest at the time Jackson ran the computer c heck and discovered the outstanding warrant. Consequently, we must only de termine whether the encounter between Lopez and Jackson was either cons ensual or an investigative detention. Because the government has conceded Jac kson did not have reasonable articulable suspicion to support an investigative d etention, we must affirm the district court’s grant of Lopez’s motion to suppres s if we conclude the encounter was not consensual. The Supreme Court has made clear that “a seizure d oes not occur simply because a police officer approaches an individual a nd asks a few questions.”1 The government’s brief is less than clear. To the extent the government

argues the encounter was consensual “in fact” even if Lopez was seized, that is not an argument it made before the district court. Cf

. United States v. Caro , 248 F.3d 1240, 1247 (10th Cir. 2001). Accordingly, we will not consider it for the first time in this appeal. See Robbins v. Wilkie , 433 F.3d 755, 772 (10th Cir. 2006). At oral argument, the government also asserted the right to interrogate an individual about his identity necessarily encompass es the right to run a computer check on the individual. Cf

. Hiibel v. Sixth Judicial District Court of Nevada , 542 U.S. 177, 185-86 (2004). Again, this argument was not presented to the district court and we, therefore, do not address it

. United States v. Almaraz , 306 F.3d 1031, 1040 (10th Cir. 2002) (holding arguments presented for the first time during oral argument are waived). -6- Florida v. Bostick, 501 U.S. 429, 434 (1991). To constitute a seizur e, an encounter between an officer and a citizen must inv olve the use of physical force or show of authority on the part of the officer suc h that a reasonable person would not feel free to decline the officer’s requests or terminate the encounter. Id . at 439. The government argues the encounter was consensual in its entirety because Lopez voluntarily handed his license to Jackson, th ereby implicitly consenting to Jackson’s use of the license for a reasonable perio d of time, including the time necessary to run a computer check. According to th e government, it was reasonable for Jackson to believe Lopez agreed to a llow his license to be used for a warrants check. This argument is inapposite beca use our analysis of the seizure issue focuses on assessing the encounter from the p erspective of a reasonable person in Lopez’s position, not a reasonable personin Jackson’s position. 1 See-7-

INS v. Delgado , 466 U.S. 210, 215 (1984) (“[A]n initially consens ual encounter between a police officer and a citizen can be trans formed into a seizure or detention within the meaning of the Fourth Amendment, if, in view of all the circumstances surrounding the incident, a reasonabl e person would have believed that he was not free to leave.” (quotation omitted) ). Further, it is settled that “the nature of the police-citizen encounter can change–w hat may begin as a consensual encounter may change to an investigative detention if the police conduct changes and vice versa.” United States v. Zapata , 997 F.2d 751, 756 n.3 (10th Cir. 1993). In Florida v. Royer , two plainclothes officers approached Mr. Royer atan airport and requested his driver’s license and airl ine ticket. 460 U.S. 491, 494 (1983) (plurality opinion). Royer handed the docum ents to the officers “[u]pon request, but without oral consent.” Id . (plurality opinion). Without returning his documents, the officers asked Royer to accompany th em to a small room where they questioned him further and, eventually, search ed his luggage. Id . at 494-95 (plurality opinion). Although the Supreme Court no ted it was “no doubt permissible” for the officers to ask for and examin e Royer’s ticket and license, it quickly rejected the government’s argument that the encounter between Royer and the officers was wholly consensual. Id . at 501 (plurality opinion). In reaching the conclusion Royer was seized for purposes of the Fourth Amendment, the Court examined events that occurred afterRoyer voluntarily relinquished his-8-

documents. The Court relied on information in the record demonstrating “the officers identified themselves as narcotics agents, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver’ s license and without indicating in any way that he was free to depart.” Id . (plurality opinion). Consistent with Delgado and Royer , even if we assume the encounter between Lopez and Jackson began consensually, we must still determine whetherat some point during that encounter, Jackson’s conduct would have communicate d to a reasonable person that he was no longerfree to decline Jackson’s requests or otherwise en d the
encounter. See Delgado , 466 U.S. at 215; Royer , 460 U.S. at 501 (plurality opinion). This court has enumerated a non-exhaustive list of circumstances to be considered in determining whether a police-citizen encounter amounts to a seizure: the location of the encounter, particularly whetherthe defendant is in an open public place where he is within the view of persons other than law enforcement officers; whether the officers touch or physically restrain the defendant; whether the offi cers are uniformed or in plain clothes; whether their weapons are disp layed; the number, demeanor and tone of voice of the officers; whetherand for how long the officers retain the defendant’s personal effect s such as tickets or identification; and whether or not they have specif ically advised defendant at any time that he had the right to term inate the encounter or refuse consent.-9-

United States v. Spence , 397 F.3d 1280, 1283 (10th Cir. 2005) (quotation omitted). Although no single factor is dispositive , the “strong presence of two or three factors” may be sufficient to support the con clusion a seizure occurred. Fuerschbach v. Southwest Airlines Co. , 439 F.3d 1197, 1203 (10th Cir. 2006) (quotation omitted). There is no dispute that Jack son and Lopez were in an open, public place when Jackson contacted Lopez. Additio nally, Jackson was the only officer on the scene until after the warrants checkwas run and nothing in the record indicates Jackson displayed his weapon durin g the encounter. It is uncontested, however, that Jackson was driving a marked patrol car and was dressed in his uniform. The district court found t hat Jackson “shined his highpowered spotlight on Mr. Lopez and Mr. Romero as he approached them, spoke to them through his loud-speaker,” and did not advise Lopez he had the right to terminate the encounter. Further, the district cou rt found that Jackson specifically instructed Lopez to remain by the parked car and th en walked to his police cruiser with Lopez’s license. The government does not chal lenge any of these findings. The district court also analyzed “whether and for h ow long” Jackson retained Lopez’s license. Spence , 397 F.3d at 1283. The court concluded Jackson re tained Lopez’s license for more than a brief examination. The government argues it was2 Because we conclude the continued retention of Lope z’s license was undue

nearly immediately after Lopez relinquished it to J ackson, it is unnecessary to address the government’s argument that the districtcourt clearly erred when it found Jackson retained Lopez’s license for ten minutes. Accordingly, for purposes of this appeal we will assume Jackson heldthe license for only five minutes before discovering the existence of the out standing warrant. -10- reasonable for Jackson to hold Lopez’s license for five minutes 2 and, thus, Jackson did not retain Lopez’s license for an undue length of time. It is well-established that the Fourth Amendment is not implicated when an officer approaches an individual in a public place and requests, but does not demand, to see his identification. United States v. Mendenhall , 446 U.S. 544, 555 (1980) (“The respondent was not seized simply by re ason of the fact that the agents approached her, asked her if she would show them her ticket and identification, and posed to her a few questions.”) . The Supreme Court has also made clear, however, that an individual “may not be detained even momentarily without reasonable, objective grounds for doing so. ” Royer , 460 U.S. at 498. Here, Jackson testified he approached Lopez because it was late at night and Lopez was standing in a high-crime area. At the ti me he asked for Lopez’s identification, Jackson knew the address of the own er of the car next to which Lopez was standing and knew the car had not been re ported stolen. Within seconds of reviewing Lopez’s license, Jackson was able to establish Lopez’s identity and confirm that Lopez’s address matched t he address on the car-11-

registration. After that point in time, the contin ued retention of Lopez’s license was undue. This court arrived at the same conclusion in United States v. Lambert , 46 F.3d 1064, 1069 n.3 (10th Cir. 1995). In Lambert , narcotics agents followed the defendant through an airport to the parking lot. Id . at 1066. The agents asked Mr. Lambert for his driver’s license and airline ti cket, actions which this court concluded did not implicate the Fourth Amendment. Id . at 1068. We held, however, that the encounter between Mr. Lambert and the agents “became an investigative detention once the agents received Mr . Lambert’s driver’s license and did not return it to him.” Id . The government attempts to distinguish Lamberton the basis that the agents retained Mr. Lambert’ s license for approximately thirty minutes while, here, Jackson r etained Lopez’s license for only five minutes. The government’s argument falls short because our conclusion in Lambertwas not compelled by the fact that the agents held Mr. Lambert’s license for thirty minutes. Instead, we held that the retention of Mr. Lambert’s license became undue nearly immediately after the o fficers took possession of it. Id . at 1069 n.3 (stating “the retention of Mr. Lambert’s license was unjustified after the agents were able to verify his identity w ith it” and further stating that Mr. Lambert’s identity was established “almost imme diately after the agents received his license”).-12-

Having considered the relevant factors and the dist rict court’s uncontested findings of fact, we conclude the encounter between Lopez and Jackson was not consensual at the time of the warrants check and, t hus, Lopez was seized. Jackson, a uniformed officer in a marked police cru iser, not only held Lopez’s license for longer than necessary to confirm Lopez’ s identification, he specifically instructed Lopez to remain by his vehi cle while he ran the warrants check and then took Lopez’s license back to his pat rol car, thereby rendering Lopez unable to leave. Under the totality of the c ircumstances, no reasonable person in Lopez’s position would have felt free to terminate the encounter with Jackson. Because the government concedes Jackson d id not have probable cause or reasonable articulable suspicion to detain Lopez until the warrants check was completed, we conclude the seizure violated the Fou rth Amendment. IV. Conclusion The order of the district court granting Lopez’s mo tion to suppress is affirmed

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