UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. MARC DANE RADDON, Defendant-Appellant. No. 15-4013 (D.C. No. 2:14- CR-00021-CW-1) (D. Utah)

__________________ _______________ ORDER AND JUDGMENT *

__________________ _______________ Before BRISCOE , McKAY , and BACHARACH , Circuit Judges.

__________________ _______________ This appeal involves th e denial of a motion to suppress. The motion grew out of Mr. Marc Ra ddon’s objection to a late -night search of his rental car. At the time, Mr. Raddon an d another individual were parked in an unlit section of a gas station’s pa rking lot. Suspicious of criminality, two police officers questioned Mr . Raddon and his companion and eventually search ed the car. During the search, the po lice officers found guns and ammunition , which ultimately led to Mr. Raddon ’s conviction for possession of a firearm and ammun ition after a felony conviction.

* This order and judgme nt does not constitute bi nding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be ci ted for its persuasive value under Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### December 15, 2015
Elisabeth A. Shumaker Clerk of Court2 Mr. Raddon appealed, arguing th at the police conducted an investigative detention wi thout reasonable suspicion of criminal activity. The district court reject ed the argument on the ground that the encounter involved consent rather than an investigative de tention. The government argues that this characterization was co rrect, adding in th e alternative that the police reasonably suspected crimin al activity even if the encounter involved an investigative detention. In deciding this appeal, we rely solely on the governmen t’s alternative argum ent, concluding that the police had reasonable grounds fo r suspicion. As a result, we affirm the denial of Mr. Raddon’s motion to suppress. Police encounters can take three forms:
1. consensual encounters
2. investigative detentions
3. arrests United States v. Shareef , 100 F.3d 1491, 1500 (10th Cir. 1996). The parties apparently agree that th e police did not arrest Mr . Raddon until after they had searched his rental car. But the parties disagr ee on whether the initial encounter was consensual . The government argues th at the encounter was consensual; Mr. Raddon characterizes the encounter as an investigative detention. We need not decide who is correct. Even if the initial en counter constituted an in vestigative detention,

the government defends th e ruling based on reason able grounds to suspect3 criminality. If the gover nment is correct, the search would have been permissible even if the encounter i nvolved an investigative detention. See United States v. King , 990 F.2d 1552, 1557 ( 10th Cir. 1993). The suspicion would have been reasonable if the totality of circumstances created a particularized, objective basis for an investigative detention. Poolaw v. Marcantel , 565 F.3d 721, 736 (10th Cir. 2009). The district court c onducted an evid entiary hearing and found eight

facts (among others):
1. Mr. Raddon was parked in a high-crime area.
2. The search took pl ace between approximately 11:00 and 11:30 p.m. 3. Mr. Raddon left one gas statio n and drove to a nearby gas station.
4. Mr. Raddon parked in a dark area of the park ing lot even though other spaces were lit. 5. Mr. Raddon sat in his rental car for appr oximately ten minutes. 6. Mr. Raddon flashed his headlights for a mo ment, just as an unmarked poli ce car drove by. 7. Mr. Raddon’s headlights preven ted the police officer in the unmarked car from (a ) observing what wa s going on in Mr. Raddon’s rental car and (b) getting his license tag number. 8. The gas station (where Mr. Raddon was parked ) was closed, and the only person inside was a clerk. R. vol. 2, at 132, 134 . Based on these findi ngs, the police officers’ suspicion was reasonable. Id. at 131.4 Mr. Raddon does not ch allenge any of the dist rict court’s factual findings. Instead, he argues that the suspic ion was unreasonable. In reviewing that conclusion, we consider not only the cour t’s findings but also the government’s evidence on matters go ing beyond the factual findings. See United States v. Conner , 699 F.3d 1225, 1231 (10th Cir. 2012) (relying in part on evidence, for r easonable su spicion, even though the district court had not relied on that evidence). This evidence included testimony that

 Mr. Raddon had backed into a parking sp ot, permitting him to leave by driving fo rward rather than backing out and

 only one other car was in the parking lot. R. vol. 2, at 22, 43. Together, the findings and eviden ce create reasonable suspicion of criminality:

 Why else would Mr. Raddon go fro m one gas station to another gas station’s parking lot, shortly before midnight, 1 and sit in his car for ten minutes?

 Why else would he choose to park in a dark section of a parking lot in a high-crime area? 2

1 See United States v. McHugh , 639 F.3d 1250, 1257 (10th Cir. 2011) (“We have . . . held that the fact that an incident occurred late at night or early in the morning is relevant to the . . . analysis [of reasonable suspicion].”).

2 The Court can consider the fact that the investigative detention occurred in a high-crime area. McHugh , 639 F.3d at 1257.5  Why else would he back into the parking spot, allowing a quick departure, when only one other car was in the lot? In determining whether the findings and eviden ce created reasonable suspicion, we “accord de ference to [the police officers’] ability to distinguish between innocent and suspicious actions.” United States v. Simpson , 609 F.3d 1140, 1146-47 (10th Ci r. 2010). Both police officers testified that they had regarded the circumstances as suspicious. For example, one of th e officers explained that it was suspicious for someone to flash his head lights, turn them off immediately, and remain parked in a dark section of a parking light in a high-crime area: The most peculiar circumstance I noticed was the headlight issue wher e knowing that the vehicle, based on Officer Stone’s observation, had be en to one conv enience store, left and driven to another one, and when I initially turned onto the 8590 West that the headlight s came on on the vehicle, I initially assumed th e vehicle was going to pull out of the parking stall. But after I passed the vehicle, for the headlights to turn back off and the vehicle to stay parked there and with still nobody exiting the vehicle, yes, I believe that to be suspicious, especially in that area parked in that parking lot. R. vol. 2, at 102. The other police officer a dded that he had found it suspicio us for the driver to park behind th e building, out of view, in a manner in which he could exit quickly even though it was late at night: So they pulled in to this gas station know n as the Fastrac, and they pulled behind and parked in a – basically there’s a few stalls that are behind the building. They’re pretty much out of view, it’s darker back there. They parked and they parked where they could exit onto the roadway with ease. There was6 no obstruction, so it was a straig ht shot out. And that didn’t seem like normal business, especi ally at that time of night. There was nobody else there except one car whic h belongs to the clerk that was running the place. Id. at 22. The officer added that the travel from one gas station to another suggested that the occupa nts could be under-age youngsters tryi ng to buy beer or individuals preparing to rob the clerk: And so, you know, th at kind of, you know , just added to my, okay, what are these guy s doing now? Yo u know, I’m not sure whether they were, you know, younger guy s and they were trying to buy so me alcohol at Chevron an d they got denied, so now they went down to the other place and they were going to try and buy or, you know , were they going to try and do a beer run on the place or were they going to try to rob the place? I just wasn’t sure. Id. Mr. Raddon questions the officers’ concerns, arguing that the findings and evidence co uld just as easily suggest innocent behavior. For example, Mr. Raddon says he might have been read ing a map or taking a rest. Even if thes e possibilities were plausible, they would not preclude reasonable suspicion. See United Stat es v. Pettit , 785 F.3d 1374, 1381 (10th Cir. 2015) (“[T]he ex istence of a plausible i nnocent explanation does not preclude a finding of reasonable suspicion.”). But the police could reasonably consider these possibilities as implausible. For example, the poli ce officers might have wondered how Mr. Raddon could read a map, while parked in a dark section of the7 parking lot, without using his interi or lights. Or the police might have wondered why Mr. Raddon wo uld have left the first gas station if he just wanted to rest. Even de fense counsel acknow ledged the pecu liarity of Mr. Raddon’s driving from one gas station to another. See R. vol. 2, at 120 (statement by defense c ounsel that Mr. Raddon’s “d riving pattern” was “a little weird”); Appellant’s Opening Br. at 19 (statement by defense counsel that Mr. Raddon enga ged in an “unusual ” driving pattern, “going from one gas station to another very close by”). And why woul d Mr. Raddon flash his headlights if he wa s simply resting? The po lice might consider the flashing headlights as a si gnal for another individual to engage in a drug deal or to assemble for a robbery. But it is difficul t to see how the flashing of headlights in a deserted parkin g lot would be consistent with Mr. Raddon’s desire to rest. Mr. Raddon argues that the police must not ha ve thought that their suspicions were reasonab ly grounded, for (1) they intended to arrange a consensual encounter rath er than an investigativ e detention and (2) one officer allegedly lied to the other about Mr. Raddon’s conduct. But Mr. Raddon acknowledges that the police officers’ “s ubjective thoughts and intent” do not bear on the issue of reasonable suspicion. Appellant’s Opening Br. at 23 (quoting United States v. Whitley , 680 F.3d 1227, 1234 (10th Cir. 2012)).8 In our view, the police could reason ably suspect criminality from Mr. Raddon’s peculiar actions. As a result, we uphold the deni al of the motion to suppress based on the government’s alternative argument for affirmance.

Entered for the Court

Robert E. Bacharach Circuit Judge