UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. WENDELL RAY CAUDLE, Defendant - Appellant. No. 21-7005 (D.C. No. 6:20-CR -00020-RAW-1) (E.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , PHILLIPS , and MORITZ , Circuit Judges.

________________ _________________ Wendell Ray Caudle appeals an order denying his motion to suppress incriminating evidence found as a result of a patdown search dur ing a traffic stop. Because the district court properly determin ed that the arresting officer reasonably suspected Caudle was armed and dangerous, we affirm.

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This orde r and judgment is not binding precedent, except under the doctrines of law of the ca se, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### February 18, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-7005 Document: 010110647111 Date Filed: 02/18/2022 Page: 12 Background 1 Caudle’s appeal stems from a traffic st op that occurred on Christmas Eve in 2019. Around 2 a.m., while on patrol in a remote, poorly lit area , Deputy Sheriff John Jones noticed a truck whose license-plate tag was obstructed by a “toy skeleton face” attached to the truck’s hitch. App. 61. As the truck pulled over, Jones also noticed that the driver’s side mi rror was shattered into pi eces “like a spider web.” Id. at 62. Jones approached the truck and informed th e driver, later identified as Caudle, about the reason for the stop. After requesting a driver’s license and proof of insu rance, Jones asked where Caudle was going. Caudle said he was on hi s way to visit his cousin in a nearby town, which Jones found odd given the late hour and the indirect route Caudle was taking. During this initial conversation, Ca udle “appeared to be very nervous” and was “visibly shaking.” Id. at 66. Jones told Caudle to keep his hands on the steering wheel and then returned to his patrol vehicle. Once back at his vehicle, Jones gave Ca udle’s information to dispatch so they could check for outstanding warrants. Jones declined to ask disp atch to look up the status of Caudle’s driver’s lic ense (a process that takes longer than a warrants check) because he could not see Caudle through the truck’s tinted back window and was therefore concerned about staying in his pa trol vehicle for too long. Adding to his

1 We describe the facts based on the evidence pres ented at the suppression hearing, viewed in the light most favor able to the district court’s ruling. See United States v. Young , 964 F.3d 938, 942 (10th Cir. 2020). Appellate Case: 21-7005 Document: 010110647111 Date Filed: 02/18/2022 Page: 23 concern, Jones recognized Caudle’s name fr om a case he had been working on that week—a drug investigation involv ing “a pretty large quantity” of methamphetamine—and knew from training and experience that “meth dealers commonly carry weapons to protect both their person and product.” Id. at 66–67. So after checking for warrants, J ones returned to Caudle’s truc k “to make sure he wasn’t doing anything.” Id. at 69. At Jones’s request, Caudle stepped out of the truck. When Caudle asked why he had been pulled over, Jones again not ed the shattered mi rror and obstructed license-plate tag. Jones walked Caudle to the back of the truck, where Caudle removed the skeleton toy and tossed it into the truck bed. Jones then asked Caudle to place his hands on the side of the truck so Jones could check for weapons. But when Jones reached to pat Caudle’s left pocket, Caudle “slapped [Jon es’s] hand away” and tried to move toward s the driver’s seat. Id. at 71. Concerned about Caudle becoming “very combative” and “resisting” in res ponse to the weapons check, Jones briefly returned to his vehicl e to call for backup. Id. at 73. When Jones returned and tried the patdown a second time, Caudle pushed Jone s away and again moved towards the driver’s seat. At that point, Jones pinned Caudle up against the truck. Caudle started “kicking his feet and throwing his head back,” so Jones “took [Caudle] to the ground” and tried to handcuff him. Id. at 74. After struggling to secure Caudle’s hands, Jones threatened to use pepper spray and then di d so when Caudle continued to fight back. Sometime later, while J ones and Caudle remained on the ground, Appellate Case: 21-7005 Document: 010110647111 Date Filed: 02/18/2022 Page: 34 another officer arrived and warned Caudle th at he would be tase d if he did not stop fighting. Caudle continued fighting, so th e other officer tased Caudle on his lower back. Once Jones had handcuffed Caudle, he recovered a loaded and cocked firearm from Caudle’s left pocket. During an invent ory search of Caudle’ s truck, Jones also found methamphetamine a nd drug paraphernalia. After the government brought criminal charges against Caudle based on these events, he moved to supp ress the incriminating evid ence found in his pocket and truck, arguing (among other things) that th ey were fruits of an unlawful patdown search. The district court denied the mo tion, rejecting Caudle’s objections to a magistrate judge’s determin ation that Jones had reasona ble suspicion to patdown Caudle for weapons. 2 Ultimately, Caudle pleaded guilty to po ssession with intent to distribute methamphetamine and possession of a firear m in furtherance of a drug-trafficking crime, reserving the right to appeal the order de nying his suppression motion. 3 The district court imposed a 118-month pr ison sentence, and Caudle appeals. Analysis When, as here, a defendant challenges an order denying a motion to suppress, we accept the district court’s fa ctual findings unless they are clearly erroneous and

2 Caudle’s suppression motion also disputed the validity and length of the stop, but he did not object to the magistrate j udge’s findings on those issues and does not pursue those issues on appeal. 3 In exchange for Caudle’s guilty plea, the government dism issed a separate charge for being a felon in posse ssion of a firearm or ammunition. Appellate Case: 21-7005 Document: 010110647111 Date Filed: 02/18/2022 Page: 45 review the ultimate determination of F ourth Amendment reas onableness de novo. United States v. Fager , 811 F.3d 381, 384–85 (10th Ci r. 2016). Caudle’s challenge centers on his argument that the distri ct court should ha ve suppressed the incriminating evidence found in his pocke t and truck because Jones obtained those items by conducting an unconstitutional pat down search. We assess that argument below after setting out the releva nt Fourth Amendment principles. A patdown is a search a nd is thus subject to the Fourth Amendment’s reasonableness requirement. United States v. Garcia , 751 F.3d 1139, 1142 (10th Cir. 2014). To avoid a constitutional violation, an officer con ducting a patdown must have “reasonable suspicion that an indi vidual is ‘armed and dangerous.’” Id. (quoting United
States v. Rice , 483 F.3d 1079, 1082 (10th Cir. 2007)). This standard is not onerous: It does not demand “absolute[] certain[ty] that th e individual is armed,” nor even probable cause to that effect. Id. at 1143–44 (quoting Terry v. Ohio , 392 U.S. 1, 27 (1968)). Instead, reasonable suspicion merely requi res some “minimum level of objective justification” for the patdown. Id. at 1143 (quoting Rice , 483 F.3d at 1083). When assessing whether such a justification ex ists, we consider the totality of the circumstances, accounting for the officer’s “reasonable inferences based on training, experience, and common sense.” Id. (quoting Rice , 483 F.3d at 1083). Here, the district court identified several circumstances contri buting to Jones’s reasonable suspicion that Caudle was armed and dangerous. One contributing factor is the ti me and place of the patdown. See Fager , 811 F.3d at 386. Our precedents recognize that “a nigh ttime stop in a sparsely travelled area Appellate Case: 21-7005 Document: 010110647111 Date Filed: 02/18/2022 Page: 56 . . . heighten[s] a reasonable o fficer’s concerns for safety.” Garcia , 751 F.3d at 1145– 46. Similar concerns arose here because, as the district court found , Jones was patrolling alone, late at night, in a remote, poorly lit ar ea. What’s more, Jones could not see through the truck’s tinted back window , meaning he could not ensure that Caudle’s hands stayed on the steering wheel while he confirmed Caudle’s information from his vehicle. Cf. United States v. Stanfield , 109 F.3d 976, 981 (4th Cir. 1997) (“[W]e can conceive of almost nothing more dangerous to a law[-]enforcement officer in the context of a traffic stop than approaching an automobile whos e passenger compartment is entirely hidden from the officer’s view by da rkly tinted windows.” (empha sis omitted)). These conditions provide some support for Jones’s decision to patdown Caudle to ma ke sure he did not have a weapon. See Garcia , 751 F.3d at 1146 (citing co nditions officer faced, which included “working alone on a sparsely travelled st reet and having to turn his back to [the suspect],” as factors “support [ing] reasonable suspicion”); United States v. Gurule , 935 F.3d 878, 887 (10th Cir. 2019) (holding that reasonable suspicion for patdown existed in part because search occurred at night, in dark gas-station pa rking lot, near “a darkened field”). Caudle’s ties to Jones’s ongoing drug investigation also contribute to reasonable suspicion. We have explained that prior en counters between a defendant and an officer may affect reasonable suspicion. Fager , 811 F.3d at 386. Although the record reveals no prior encounters between Jones and Caudle, the district court credited Jones’s testimony that Jones had recently been i nvestigating Caudle as a suspect in a methamphetamine-sales investigation and recognized his name from that Appellate Case: 21-7005 Document: 010110647111 Date Filed: 02/18/2022 Page: 67 investigation. 4 Caudle’s potential involvem ent in this recent ac tivity bolstered Jones’s suspicion that Caudle was armed because Jones’s training and experience taught him that “meth dealers commonly carry wea pons [for] protect[ion].” App. 66–67. One additional factor supporting reasonabl e suspicion is al so worth noting: Caudle was “very nervous” and “visibly shak ing” during his initia l conversation with
Jones. Id. at 66. While nervous behavior in the pres ence of a police officer is usually “of limited significance” in the reasonable-suspici on analysis, it takes on added weight when a suspect displays “unusually severe or pers istent” nervousness of the kind exhibited by Caudle. Garcia , 751 F.3d at 1146 n.11 (quoting United States v. Kitchell , 653 F.3d 1206, 1220 (10th Cir. 2011)). And here, Jones tes tified that Caudle’s behavior was not “a normal type of nervousness.” App. 106. Acco rdingly, Caudle’s nervous behavior further adds to reasonable suspicion. 5

4 Caudle tries to undercut this testimony in two ways. First, he asserts that Jones’s drug investigation was “a dead e nd[,] as no drugs we re ever bought or delivered.” Aplt. Br. 19. Bu t as the government points out, Jones’s testimony that Caudle had quoted a price for an ounce of methamphetamine to an informant is sufficient to establish Caudle’s involvement in drug activity, regardless of whether the deal went through. See United States v. Garcia , 459 F.3d 1059, 1065 (10th Cir. 2006) (“[A]n individual’s known connection with drug transactions is a factor supporting reasonable suspicion to frisk that individual for weapons.” (emphasis added)). Second, Caudle notes that Jones failed to mention his personal involvement with the drug investigation in his incident report. Caudle does not explain, however, why that omission undermines Jones’s testim ony about his involvement or affects the reasonable-suspicion analysis. Nor does he explain (as he mu st) why the district court clearly erred in credi ting Jones’s testimony. See United States v. Benard , 680 F.3d 1206, 1209–10 (10t h Cir. 2012) (“In reviewing the de nial of a defenda nt’s motion to suppress, we . . . accept th e district court’s findings of fact and credibility determinations unless clearly erroneous.”). 5 Notably, the district court only me ntioned this factor when addressing whether Jones had reasonable suspicion to prolong the traffi c stop, not when Appellate Case: 21-7005 Document: 010110647111 Date Filed: 02/18/2022 Page: 78 Rather than dispute these circumstances, Caudle argues that Jones’s behavior was inconsistent with his stated belief that Caud le posed a threat. For example, Caudle notes that Jones walked Caudle to th e back of the truck and allowe d him to remove the skeleton decoration, something “[n]o reas onable officer . . . afraid for his [or her] safety” would do. Aplt. Br. 18. Were Jones “truly fearful for his safety,” Caudle says, he would have frisked Caudle immediately, before allowi ng Caudle to walk around the vehicle. Id. at 19. Caudle’s view misconstrues the reasona ble-suspicion standard. Recall that reasonable suspicion requires an “ objective justification” for the patdown. Garcia , 751 F.3d at 1143 (emphasis added) (quoting Rice , 483 F.3d at 1083). As a result, our focus is on “the objective facts, not th e officer’s state of mind.” Fager , 811 F.3d at 386 (quoting United States v. Neff , 300 F.3d 1217, 1222 (10th Ci r. 2002)). This objective focus explains why we have found a patdown reasonable even when the officer conducting the search “did not himself ever indicate . . . th at he in fact felt that his safety was in jeopardy.” United States v. McRae , 81 F.3d 1528, 1536 (10th Cir. 1996). So long as “[t]he facts available to [the officer]” would permit a reasonable officer “to believe that a frisk would be necessary [for] prot ect[ion],” the search is valid. Id. The district court properly applied this objec tive standard, noting the purpor tedly inconsistent behavior Caudle highlights but neverthe less concluding (based on the factors discussed earlier)

addressing the validity of the patdown. We may nevertheless consider Caudle’s nervousness as it relate s to the patdown issue. See United States v. Nelson , 868 F.3d 885, 891 (10th Cir. 2017) ( noting our “discretion to af firm on alternative grounds ‘when the record below is suffic ient to permit us to conclude , as a matter of law, that [d]efendant’s Fourth Amendment rights were not violated’” (alteration in original) (quoting United States v. Mosley , 743 F.3d 1317, 1324 n.2 (10th Cir. 2014))). Appellate Case: 21-7005 Document: 010110647111 Date Filed: 02/18/2022 Page: 89 that Jones could have reasona bly believed Caudle had a weap on. And again, Caudle does not challenge those factors or the factual fi ndings supporting them. For these reasons, we reject Caudle’s argument about Jones’s subjective views.
Conclusion Considering the totality of the circumst ances—namely, the time and place of the patdown, Caudle’s ties to an ongoing drug investigation, and Caudle’s extreme nervousness—Jones had objective reasons to believe Caudle was armed and dangerous. Jones therefore had reasonable suspicion to pa t Caudle down for weapons, and the district court properly denied Caudle’s suppression motion. We affirm.

Entered for the Court
Nancy L. Moritz Circuit Judge Appellate Case: 21-7005 Document: 010110647111 Date Filed: 02/18/2022 Page: 9