UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. THOMAS ANTHONY PEARCE, II, a/k/a Thomas Anthony Pearce. Defendant - Appellant. No. 23-5007 (D.C. No. 4:21-CR-00237-GKF-1) (N.D. Okla.)

________________ _________________ ORDER AND JUDGMENT 

________________ _________________ Before MCHUGH , EID , and ROSSMAN , Circuit Judges.

________________ _________________ Thomas Anthony Pearce, II, appeals th e denial of his motion to suppress evidence obtained from a traffic stop that he clai ms violated the Fourth Amendment. Mr. Pearce argues the stop was not justified at its inception because there was no objectively reason able basis to susp ect he was engaged in criminal activity. Exercising jurisdicti on under 28 U.S.C. § 1291, we discern no error in the distr ict court’s suppression ruling and affirm.

 This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judicata , and collateral estoppel. It may be cited, however, for its pe rsuasive value consistent with Fed. R. App. P. 32.1 and 10th Ci r. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 11, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-5007 Document: 010111013120 Date Filed: 03/11/2024 Page: 12 I 1 In the early morning hours of Fe bruary 8, 2021, Corporal Robert Golliday of the Jenks Police Departme nt was working the night shift, patrolling the city of Jenks, Oklaho ma in his marked police cruiser. At around 2:00 a.m., he drove through one of Jenks’s “distance neighborhoods,” a residential area somewhat isolated from the rest of the city. R.II.14:18– 15:7; SR

. I.58–59. Corporal Golliday spotted a white Dodge Ram—which turned out to be Mr. Pearce’s truck—parked in the driveway of a construction site on 131st Street, a main thoroughfare. There were no streetlights nearby, and the truc k’s headlights were off. Corporal Golliday regularly patro lled the area, which was a recent target for burglaries, but he had never seen a car park ed in that spot before. As he passed, Corporal Golliday shined an alley light, a bright light on the side of his patrol car, to see if anyo ne was inside the truck. He saw someone moving in the driver’s se at. Corporal Golliday drove on for a few seconds to turn his cruiser around at a nearby T- intersection and investigate further. By the time Corporal Go lliday turned around, the truck was already driving

1 We derive these facts from the di strict court’s recitation in its memorandum and order on the motion to suppress. Because, as we will explain, we consider testimony pres ented to the district court during its evidentiary hearing, United States v. Fonseca , 744 F.3d 674, 680 (10th Cir. 2014), we rely on the transcript from that hearing as well. Appellate Case: 23-5007 Document: 010111013120 Date Filed: 03/11/2024 Page: 23 away, “accelerating down the road at high speed.” SR.I.59. Corporal Golliday activated his over head lights and signaled for the truck to stop. The truck eventually pulled over, afte r bypassing several places to safely stop. Corporal Golliday approached th e truck and encountered Mr. Pearce in the driver’s seat. B.P., later identifi ed as a minor, was seated in the front passenger seat. Because of information obtained during the stop, Mr. Pearce was arrested and then indicted in the Northern District of Oklahoma on various child pornography related offenses. 2 Before trial, Mr . Pearce moved to suppress under the Fourth Amendment “a ll evidence and material obtained directly and indirectly” from the traffic stop. SR.I.20. He argued, as relevant here, Officer Golliday lacked reasonab le suspicion to initiate the stop. 3

2 The government charged Mr. Pearce with Coercion or Enticement of a Minor in violation of 18 U.S.C. § 2422( b); Production of Child Pornography in violation of 18 U.S.C. §§ 2251(a) and 2251(e); Possession of Child Pornography in Indian Country in vi olation of 18 U.S.C. §§ 2252(a)(4)(A) and 2252(b)(2); and Distribution of Ma rijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D). SR.III.5–8.

3 In the district court, Mr. Pearce also urged suppression because the detention exceeded its permissible scop e. He abandons that argument on appeal. Reply Br. at 3 (“[T]he only issue is whether there was reasonable suspicion to initia te the stop.”). Appellate Case: 23-5007 Document: 010111013120 Date Filed: 03/11/2024 Page: 34 The district court held an eviden tiary hearing. Corporal Golliday testified about the circumsta nces of the traffic stop. 4 Mr. Pearce called no witnesses. The district court denied Mr. Pearce’s suppre ssion motion in a written order. The challenged evidence was admitted at Mr. Pearce’s jury trial, where he was convicted on all charges. This timely appeal followed. II Mr. Pearce contends the district co urt erroneously denied his motion to suppress because Corporal Gollid ay lacked reasonable suspicion to initiate an investigatory stop. The district court reje cted this argument and, on this record, so do we. A We review a district court’s deni al of a motion to suppress by “view[ing] the evidence in the light most favorable to the determination of the district court.” United States v. Johnson , 43 F.4th 1100, 1107 (10th Cir. 2022) (quoting United States v. Santos , 403 F.3d 1120, 1124 (10th Cir. 2005)). We accept the district court’s fa ctual findings unless they are clearly

erroneous. See United States v. Hammond , 890 F.3d 901, 905 (10th Cir. 2018). “While the existence of reas onable suspicion is a factual

4 Corporal Golliday also testified about the stop at Mr. Pearce’s trial. Appellate Case: 23-5007 Document: 010111013120 Date Filed: 03/11/2024 Page: 45 determination, the ultimate determinat ion of the reasonabl eness of a search or seizure under the Fourth Amendment is a question of law reviewed de novo.” United States v. Fonseca , 744 F.3d 674, 6 80 (10th Cir. 2014) (quoting United States v. White , 584 F.3d 935, 944 (10th Cir. 2009)). B The Fourth Amendment protects in dividuals “against unreasonable searches and seizures.” U.S. Const. amend. IV. Interactions between police and citizens generally fall into one of several categories: “consensual encounters, investigativ e stops, and arrests.” Oliver v. Woods , 209 F.3d 1179, 1186 (10th Cir. 2000). The stop at issue here was an investigative detention. “An investigative detentio n, which is also referred to as a Terry stop, is a seizure within the meaning of the Fourth Amendment, but unlike an arrest, it need not be supported by probable cause.” Id. To satisfy the Fourth Amendment, an investigative detention must be “justified at its inception,” United States v. King , 990 F.2d 1552, 1557 (10th Cir. 1993) (quoting Terry v. Ohio , 392 U.S. 1, 20 (1968)), and “reasonably related in scope to the circumstances” prompting the stop, Terry , 392 U.S. at 20. This appeal concerns only the first requirement. To be “justified at its inception, ” an investigative detention must be supported by reasonable suspicion—“‘a particulariz ed and objective basis’ for suspecting legal wrongdoing.” United States v. Arvizu , 534 U.S. 266, 273 Appellate Case: 23-5007 Document: 010111013120 Date Filed: 03/11/2024 Page: 56 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417–18 (1981)). We apply this objective standard from “the perspective of [a] reasonable officer

. ” United States v. Guerrero, 472 F.3d 784, 787 (10th Cir. 2007) (emphasis omitted) (quoting United States v. Quintana-Garcia , 343 F.3d 1266, 1270 (10th Cir. 2003)). While not an onerous standard, United States v. Simpson , 609 F.3d 1140, 1153 (10th Cir. 2010), reasonable suspicion demands “something more than an inchoate and unparticularized suspicion or hunch,” United States v. Hauk, 412 F.3d 1179, 1186 (10th Cir. 2005) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). Instead, the “officer must point to specific, articulable facts.” Simpson , 609 F.3d at 1147. Our reasonable suspicion analysis “req uires a court to a ssess the totality of the circumstances, not to cons ider facts in isolation.” United States v. Youn g, --- F.4th --- No. 21-2066, 2023 WL 36 08101, at *5 (10th Cir. May 24, 2023) (citing United States v. Soto , 988 F.2d 1548, 1555 (10th Cir. 1993) (“Whether . . . an investigative detent ion is supported by an objectively reasonable suspicion of ille gal activity does not depe nd upon any one factor, but on the totality of the circumstanc es.”)). And “reasonable suspicion may exist even if it is more likely than not that the indi vidual is not involved in any illegality.” United States v. McHugh , 639 F.3d 1250, 1256 (10th Cir. 2011) (quoting United States v. Albert, 579 F.3d 1188, 1197 (10th Cir. 2009))

. Appellate Case: 23-5007 Document: 010111013120 Date Filed: 03/11/2024 Page: 67 C The district court concluded Corpor al Golliday reasonably suspected Mr. Pearce was involved in criminal activity “based on the time of day, the unusual location of the vehicle, repo rts of crime in the area, and the obviously suspicious behavior of driv ing away from Golliday at a high rate of speed.” SR.I.64. The district co urt made these factual findings:

 Mr. Pearce’s truck was parked “near a construction site in an unlit area” at 2:00 a.m. SR.I.58–59.

 Corporal Golliday passed the truc k in his marked police car.

 Corporal Golliday had never “seen a vehicle parked in that location on his regular patrols th rough the area.” SR.I.59.

 The truck’s lights were off, but wh en Corporal Gollid ay “turned on his side alley light” as he drove by, he “observed a person in the vehicle.” SR.I.59, 64.

 There was a history of vehicle break ins and co nstruction-site theft in the neighborhood.

 After Corporal Golliday passed the truck, Mr. Pearce “fled the area at a high rate of speed.” SR.I. 64. Based on Corporal Golliday’s “training and experience,” he be lieved Mr. Pearce “was driving faster than the posted speed limit of 45 miles per hour.” SR.I.59. “Considering the totality of the ci rcumstances,” the district court determined Corporal Golliday “had re asonable suspicion to initiate an investigative detentio n.” SR.I.64. Mr. Pearce makes three main argumen ts on appeal. First, he contends the district court clearly erred in find ing he was speeding. This appears to Appellate Case: 23-5007 Document: 010111013120 Date Filed: 03/11/2024 Page: 78 be Mr. Pearce’s only attack on the di strict court’s factual findings. Second, Mr. Pearce challenges the district cour t’s ultimate conclusion that, under the totality of the circumstances, reas onable suspicion supported the stop. Third, Mr. Pearce urges reversal under United States v. Hernandez , 847 F.3d 1257, 1268 (10th Cir. 2017). As we explain, these arguments are unavailing.
1 Mr. Pearce claims the district cour t’s finding that he fled from Corporal Golliday “at a high rate of speed ” is clearly errone ous. We disagree. We will reverse a district co urt’s factual findings on clear-error review only if they are “without factual support in the record or if, after reviewing all the evidence, we are left with a defini te and firm conviction that a mistake has been made.” Johnson , 43 F.4th at 1107 (quoting United States v. Morales , 961 F.3d 1086, 1090 (10th Cir. 2020)). This standard is not satisfied here. Corporal Golliday’s testimony at th e suppression hearing supports the district court’s finding. Corporal Gollid ay testified he spotted Mr. Pearce’s truck, turned his police cruiser around to investigate, and then “observed [the truck] leaving the area at a high rate of speed.” R.II.21:20–24. Corporal Golliday thought the truck was exceedi ng the posted speed limit of 45 miles per hour. SR.I.59; R.II. 22:20–24, 43:2–8. He admitted he did not use a radar Appellate Case: 23-5007 Document: 010111013120 Date Filed: 03/11/2024 Page: 89 gun but testified about using his “train ing and experience” to estimate Mr. Pearce’s speed. R.II.43:7–8. The distric t court credited Corporal Golliday’s testimony that Mr. Pearce was speeding, and we see no reason to disturb that conclusion. Mr. Pearce says we uphold stops bas ed on speeding only when there is “more information in addition to th e [officer’s] estimate.” Opening Br. at 14 (citing United States v. King , 209 F. App’x 760, 762 (10th Cir. 2006) (noting officer’s use of a radar gun to measure a suspect’s speed)). As an initial matter, the distric t court found Corporal Go lliday “did not stop [Mr. Pearce] solely to inve stigate a speeding violation.” SR.I.64. Instead, Corporal Golliday relied “on a range of factors,” including the late hour, the truck’s proximity to a construction site , and the truck’s speed as it left the area to support the stop. SR.I.63–64. But even still, we have never suggested an officer’s visual estima tion of speed categorically cannot support a traffic stop at its inception. Rather, “[i]t’s long be en the case that an officer’s visual estima tion can supply probable ca use to support a traffic stop for speeding in appr opriate circumstances.” United States v. Ludwig , 641 F.3d 1243, 1247 (10th Cir. 2011). 5

5 We note the government does no t argue Corporal Golliday’s visual estimation of Mr. Pearce’s speed est ablished probable cause for the stop. Appellate Case: 23-5007 Document: 010111013120 Date Filed: 03/11/2024 Page: 910 Perhaps recognizing this principle, Mr. Pearce argues it was not appropriate in this case to rely on Corporal Golliday’s visual estimation. Mr. Pearce explains Corporal Golliday asse ssed his speed at night, in an area without streetlights, and when Corporal Golliday was himself “accelerating to catch up to Mr. Pearce.” Reply Br. at 8–9. These facts do not render the district court’s finding clearly erroneou s. Even if we could say “there are two permissible views of the evidence” presented to the district court, “the factfinder’s choice between them cannot be clea rly erroneous.” United States v. Pikyavit , 527 F.3d 1126, 1130 (10th Cir. 2008) (quoting Anderson

v. Bessemer City, 470 U.S. 564, 574 (1985)). An d in any event, Mr. Pearce fled from law enforcement. 6 Defense counsel conceded at oral argument he did “not specifically challenge[]” the district court’s finding of flight as

The government simply contends Mr. Pe arce’s speed was part of the totality of the circumstances support ing reasonable suspicion.

6 Mr. Pearce seems to contend it is significant he di d not engage in “headlong” flight, meani ng he did not “flee an approaching officer.” Reply Br. at 9. Mr. Pearce cites no authorit y defining flight so narrowly, and we are aware of none. The Supreme Court has recognized “unprovoked flight upon noticing the police” is “evasive behavi or” relevant to the reasonable suspicion analysis. Illinois v. Wardlow , 528 U.S. 119, 124 (2000) (emphasis added); see also District of Columbia v. Wesby , 583 U.S. 48, 59 (2018) (explaining suspects’ “scattering and hi ding” after noticing police could be factored into the totalit y of the circumstances). Appellate Case: 23-5007 Document: 010111013120 Date Filed: 03/11/2024 Page: 1011 clearly erroneous. 7 Oral Arg. 11:37–12:04.
2 Mr. Pearce next argues the totality of the circumstances does not support the district court’s reasonable suspicion determination. We are not persuaded. At the outset, we observe Mr. Pe arce seems to proceed from an incorrect point of departure for the Fourth Amendment analysis. Reasonable suspicion “is based on the totality of the circumstances” and not on “each of an officer’s ob servations in isolation.” United States v. Garcia , 751 F.3d 1139, 1143 (10th Cir. 2014) (quoting United States v. Rice , 483 F.3d 1079, 1083 (10th Cir. 2007)); Sokolow , 490 U.S. at 9 (“Any one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel. But we thin k taken together they amount to reasonable suspicion.”). Mr . Pearce contests the significance of several facts

7 Even if preserved, a clear-erro r challenge to the district court’s finding of flight would fail. When Co rporal Golliday first saw Mr. Pearce’s truck, it was parked with its lights off. As the go vernment highlighted at oral argument, Corporal Golliday wanted to investigate further but it took him “four to six seconds” to turn ar ound. Oral Arg. 20:20–20:46. In that time, Mr. Pearce started to drive away “at a high rate of speed.” R.II.21:20– 24. No other cars were on the road , and Corporal Golliday was aware of nothing else that could ha ve provoked Mr. Pearce’s departure. R.II.23:8–16. From that, Corporal Golliday testified he believed Mr. Pearce “was trying to get away from the police.” R.II. 22:25–23:7. Under the circumstances, we cannot say the finding Mr. Pearce fled from law enforceme nt lacks factual support in the record. Appellate Case: 23-5007 Document: 010111013120 Date Filed: 03/11/2024 Page: 1112 found by the district court, contendi ng these should not factor into the Fourth Amendment analysis because an innocent explanation attends to each. For example, Mr. Pearce posits, even at 2:00 a.m., a person could “just as likely [have been] parked in the [c onstruction site] driveway to protect the property” rather than vandalize it. Opening Br. at 16. When it comes to the reports of break-ins and theft in the area, Mr. Pearce counters an “individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reas onable particularized suspicion that the person is committing a crime.” Open ing Br. at 13. Mr. Pearce minimizes the significance of his driving away from Corporal Golliday, explaining an “individual has a right to ignore the police and go about his business” when approached by law enforcement withou t reasonable suspicion or probable cause. Reply Br. at 9 (quoting Illinois v. Wardlow , 528 U.S. 119, 125 (2000)). 8

8 As a general principle, we do not disagree. Wardlow , 528 U.S. at 125 (holding “refusal to coop erate, without more, does not furnish the minimal level of objective justifica tion needed for a detent ion or seizure.” (quoting Florida v. Bostick , 501 U.S. 429, 437 (1991))). Bu t the district court found Mr. Pearce fled, that factual finding is unchallenged, and “[f]light, by its very nature, is not ‘going about one’ s business;’ in fact, it is just the opposite.” Id. Appellate Case: 23-5007 Document: 010111013120 Date Filed: 03/11/2024 Page: 1213 The Supreme Court has forbidde n precisely “this sort of divide-and-conquer analysis.” Arvizu , 534 U.S. at 274. Regardless of what we might make of any singular fact, th e proper focus of the district court’s inquiry, and ours, is the totality of the circumstances. Looking to the totality we have no trouble concluding, as did the district court based on its thorough factual findings, that “specific, articulable facts,” Simpson , 609 F.3d at 1147, taken together, provided a “particularized and objective basis” to suspect Mr. Pearce of criminal activity, Arvizu , 534 U.S. at 273 (quoting Cortez, 449 U.S. at 417–18). 9 Mr. Pearce has not meaningfully argued otherwise.
3 Finally, Mr. Pearce urges reversal under United States v. Hernandez , where we affirmed the district cour t’s suppression ruling following an investigative stop. 847 F.3d 1257 at 1268. According to Mr. Pearce, the facts in Hernandez are analogous to those presented here, and we should find his stop, like the one in Hernandez , was based only on “inchoate suspicions and

9 The district court suggested Co rporal Golliday had reasonable suspicion to stop Mr. Pea rce even without consider ing his flight. SR.I.64 (“These facts alone would have merite d further investigation and Golliday would have been permitted to approa ch the vehicle to conduct a limited investigation even if defendant had not driven away.”). We find Mr. Pearce’s flight significant in our de novo reasonable-suspicion analysis and factor it into the totality of the circumstances. Appellate Case: 23-5007 Document: 010111013120 Date Filed: 03/11/2024 Page: 1314 unparticularized hunches.” Reply Br. at 6 (quoting Hernandez , 847 F.3d at 1270). We disagree because Hernandez is distinguishable. In Hernandez , police stopped the defendant in the early evening as he walked outside the fenced perimeter of a construction site near an intersection in downtown Denver. Hernandez , 847 F.3d at 1260–61. The defendant filed a motion to suppress evidence obtained during the stop, arguing the officers lacked reasonable suspicion. Id. The government responded the officers had re asonable suspicion because: (1) Mr. Hernandez was walking next to a construction site which had been the previous target of co nstruction material thefts; (2) he was walking in a “high crime” area (with regard to theft, gang activity, and drug dealing); (3) he was not using the sidewalk located on the other side of the street; and (4) he was wearing all black clothing and carrying two backpacks. Id. at 1268. The district court rejected the government’s arguments and granted the defendant’s motion. Id. at 1261. The panel likewise found these justifications insufficient and affirmed. Id. at 1270. True, Mr. Pearce and Mr. Hernan dez were both stopped near construction sites that had a rece nt history of theft known to law enforcement. But Mr. Hernandez walked on public property outside a construction site fence, id. at 1260, while Mr. Pearce admits he was parked on a partially built driveway within a construction site. Opening Br. at 20; R.II.16:5–17:8. Mr. Hernandez was walking near an urban intersection before Appellate Case: 23-5007 Document: 010111013120 Date Filed: 03/11/2024 Page: 1415 8:00 p.m., Hernandez , 847 F.3d at 1261, while Mr . Pearce was sitting in his parked truck in a remote neighborhood at 2:00 a.m., SR.I.59, 64; R.II.14:16– 15:2. And unlike Mr. Pearce, Mr. Hernan dez did not flee when he saw police. Hernandez , 847 F.3d at 1261 (explaining officers drove next to Mr. Hernandez as they spoke to him, an d when they asked him to stop, he complied). 10 Thus, on the record before us, we are not persuaded to reverse under Hernandez

.

10 Mr. Pearce relies on several other cases, but none advance his cause. Reid v. Georgia is factually distinguishable . 448 U.S. 438, 440–41 (1980) (finding no reasonable susp icion where a suspect arri ved on a flight from a location known to be a source of cocaine, the flight ar rived early in the morning, the suspect had limited luggage, and th e suspect and his companion appeared to “conceal the fact th at they were traveli ng together.”). So is United States v. Davis . 94 F.3d 1465, 1470 (10th Cir. 19 96) (finding no reasonable suspicion where government “fail[ed] to show any specific factual ba sis for suspecting” the defendant of a “particu lar crime” based on the defe ndant walking in a high crime area with his hands in his pocke ts and defendant’s ch oice to continue “walking in the same direction and same manner” after officers instructed him to stop (emphasis omitted)). United States v. Salazar seems to undermine Mr. Pearce’s position. 609 F.3d 1059, 1061 (10th Cir. 2010) (finding potentially innocuous conduct, like pulling into a closed busi ness next to an unoccupied commercial vehicle, supp orted reasonable suspicio n in the totality of the circumstances after the suspect a ttempted to evade officers). Appellate Case: 23-5007 Document: 010111013120 Date Filed: 03/11/2024 Page: 1516 III We AFFIRM the district court’s deni al of Mr. Pearce’s motion to

suppress.

ENTERED FOR THE COURT

Veronica S. Rossman Circuit Judge Appellate Case: 23-5007 Document: 010111013120 Date Filed: 03/11/2024 Page: 16