UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JOSEPH JUSTIN GATES, Defendant - Appellant. No. 20-4106 (D.C. No. 1:19-CR-00027-DB-1) (D. Utah)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before McHUGH , BALDOCK , and BRISCOE , Circuit Judges.

________________ _________________ Joseph Justin Gates entered a conditiona l guilty plea to one count of being a felon in possession of a fire arm and ammunition, reserving the right to challenge the district court’s denial of his motion to suppress. We conclude that Mr. Gates was not seized until Officer Curtis Ri cks exited his patrol car, ordered Mr. Gates to “come here,” and drew and deploye d his taser. We further conclude that reasonable suspicion supported Mr. Gates’s seizure at that juncture. Therefore, we affirm the district court’s denial of Mr. Gates’s motion to suppr ess and affirm Mr. Gates’s conviction.

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 20, 2021 Christopher M. Wolpert Clerk of Court Appellate Case: 20-4106 Document: 010110621232 Date Filed: 12/20/2021 Page: 12 I. BACKGROUND
A. Mr. Gates’s Arrest On a cold March evening wh en some snow covered th e ground, Officer Ricks, who had twenty-two years of experience as a police officer and six years of experience with the South Ogden City Poli ce Department, conducted a vehicle patrol in the area of 37th Street and Riverdale Road in South Ogden City, Utah. Around 11:00 p.m. Officer Ricks was driving west on 37th Street toward the intersection of Riverdale Road in a marked , black South Ogden City pa trol car with the word “police” down the side and overhead emerge ncy lights on the roof. As he approached a strip mall with a twenty-four-hour, self -service carwash, Officer Ricks spotted Mr. Gates. Mr. Gates was in itially standing near a carwa sh bay that housed a coin machine and power box for the car wash. The bays of the ca rwash have three walls, a roof, and an opening in the fr ont through which cars can en ter. Officer Ricks did not see any vehicle or other items that might be washed in proximity of the carwash bay and Mr. Gates. As Officer Ricks approached in his vehicle, Mr. Gates moved behind and crouched below a four- to five-foot retaining wall. Officer Ricks found Mr. Gates’s location and conduc t suspicious and intended to turn into the strip mall, by using an entrance near th e intersection of 37th Street and Riverdale Road, to further observe Mr. Gates’s actions. But, be fore Officer Ricks c ould drive the short Appellate Case: 20-4106 Document: 010110621232 Date Filed: 12/20/2021 Page: 23 distance to the intersection, he saw, thr ough his rearview mirror, Mr. Gates climb the retaining wall and run across the middle of 37th Street. Officer Ricks made a U-turn, activat ed his “alley light” (a non-emergency spotlight), and pulled up alon gside Mr. Gates as Mr. Ga tes walked on a sidewalk. When Officer Ricks reached Mr. Gates’s position, he lowered the window on his patrol car and called out to Mr. Gates, seeking an explanation for Mr. Gates’s presence at the carwash near the coin machine. 1 Mr. Gates responded by moving away from Officer Ricks’s car , behavior which Officer Ri cks perceived as Mr. Gates starting to “conceal[] himself.” Id. at 31. Officer Ricks also observed a “bulge” on Mr. Gates’s “waistline” that was out side of his tucked in shirt. Id. at 30. But Officer Ricks was not able to identify the object causing the bulge. With Mr. Gates moving away from him and having observed the bulge, Officer Ricks exited his vehicle and instru cted Mr. Gates to “come here.” Id. at 31. Mr. Gates did not obey this command and, instead, a ttempted to flee on foot. Officer Ricks pursued Mr. Gates and deployed his taser in an effort to halt Mr. Gates’s flight. The taser temporarily stopped Mr. Gates, but he removed one of the probes and continued running. In continued pursuit, Officer Ricks tackled, struggled with, and ultimately subdued Mr. Gates. Officer Ricks identified the bulge in Mr. Gates’s waistline as a

1 Although there is body cam era video of Officer Ri cks’s interaction with Mr. Gates, Officer Ricks di d not activate the camera and the audio recording when making initial contact with Mr. Gates. Rather, the audio activated only when Mr. Gates fled a few moment s after Officer Ricks made initial contact with him. Accordingly, we rely primarily on O fficer Ricks’s suppre ssion hearing testimony when describing his interaction with Mr . Gates prior to Mr. Gates’s flight. Appellate Case: 20-4106 Document: 010110621232 Date Filed: 12/20/2021 Page: 34 loaded .44 caliber revolver. Mr. Gates was arrested on several state charges. At the time of his arrest, Mr. Gates had eight pr ior criminal convictions, including three felony convictions.
B. Procedural History A federal grand jury indicted Mr. Ga tes on one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). Mr. Gates filed a motion to s uppress the firearm Officer Ri cks recovered. The district court held a suppression heari ng at which only Officer Rick s testified. Officer Ricks testified about his encounter with Mr. Ga tes and his basis for believing Mr. Gates was about to engage in criminal conduct wh en he spotted him at the carwash near the coin machine. Officer Ricks also testified that the area of 37th Street and Riverdale Road had been “deemed a high-crime area.” Id. at 21. In support of this categorization, Officer Rick s relied upon his pers onal experience patrolling the area, noting that he spent 80% of his twelve-hour patrol shifts in th e area of 37th Street and Riverdale Road because of the crime ra te in the area. Officer Ricks identified several types of crimes he had previously worked in th e area, includi ng “[r]etail thefts, thefts, burglaries, drug sales, dr ug distribution, drug us e,” and “a couple of robberies.” Id. Through post-hearing briefing, Mr. Gates argued Officer Ricks lacked reasonable suspicion to conduct a Terry 2 stop when Officer Ricks approached him.

2 See Terry v. Ohio , 392 U.S. 1 (1968). Appellate Case: 20-4106 Document: 010110621232 Date Filed: 12/20/2021 Page: 45 Inherent in Mr. Gates’s argument was that Officer Ricks’s initial contact with him— in which Officer Ricks, from the patrol car, asked Mr. Gates about his purpose for being at the carwash—qualified as a seizur e. The Government argued (1) Mr. Gates was not seized until Officer Ri cks exited his vehicle and ordered Mr. Gates to “come here” such that the bulge on Mr. Gates’ s waistline was part of the reasonable suspicion calculus; and (2) even if Mr. Ga tes was seized when Officer Ricks first approached, Officer Ricks had reasonabl e suspicion at that point based on Mr. Gates’s presence in a high- crime area late at night, his presence at the carwash near the coin machine and without a vehicle, and his evasive behavior. Mr. Gates countered that the Government had not esta blished that the area of 37th Street and Riverdale Road was a high-crime area. The district court denied Mr. Gates’ s motion to suppress and announced two conclusions in reaching its ruling. First, the district court concluded Mr. Gates was not seized until Officer Ricks exited his vehi cle and ordered him to “come here.” In support of this conclusion, the district court observe d (1) Officer Ricks did not activate the emergency lights on his patrol car, (2) Officer Rick s remained in his patrol car when initia lly speaking to Mr. Gates, (3) Officer Ricks did not display a weapon, (4) Officer Ricks approached Mr . Gates in a non-aggressive manner, (5) Mr. Gates’s movement and course of tr avel was not blocked or restrained, and (6) Officer Ricks did not initially command Mr. Gates to stop. Second, the district court concluded Officer Rick s had reasonable suspicion to stop Mr. Gates at the outset based on Mr. Gates’s presence at th e carwash near the coin machine and Appellate Case: 20-4106 Document: 010110621232 Date Filed: 12/20/2021 Page: 56 without a car, the high-crime nature of th e area, the time of day, and Mr. Gates’s attempt to conceal himself and then flee from the carwash. Following denial of his motion to s uppress, Mr. Gates entered a conditional guilty plea, preserving the suppression issue for appeal. The district court sentenced Mr. Gates to a term of 27 months’ impris onment, to be followed by a 36-month term of supervised release. Mr . Gates timely filed this a ppeal. On appeal, Mr. Gates renews his arguments that (1 ) he was seized when Officer Ricks initiated contact with him by pulling alongside him and asking abou t his presence at the carwash; and (2) Officer Ricks lacked reasonable suspici on to seize him at that point in time. Encompassed in this second proposition, Mr. Gates argues the Government failed to adequately support the conclusion that the area of 37th Street and Riverdale Road was a high-crime area.
II. DISCUSSION We state the standard of review before analyzing the point at which Mr. Gates was seized and whether reas onable suspicion supported th e seizure at that time.
A. Standard of Review We apply an overarching de no vo standard of review to a district court’s denial of a motion to suppress. United States v. Juszczyk , 844 F.3d 1213, 1214 (10th Cir. 2017). The question of when a seizure o ccurred is a question of law subject to de novo review. United States v Salazar , 609 F.3d 1059, 1063–64 (10th Cir. 2010). Likewise, whether a seizure is reasonable is a question of law that we review de

novo. United States v. Morales , 961 F.3d 1086, 1090 (10th Cir. 2020). But, “[i]n Appellate Case: 20-4106 Document: 010110621232 Date Filed: 12/20/2021 Page: 67 applying de novo review, we view the eviden ce in the light most favorable to the ruling and review the distri ct court’s factual findings under the clear-error standard.” 3 Juszczyk , 844 F.3d at 1214. “A district court’ s factual finding is clearly erroneous when it is without factual supp ort in the record or if, afte r reviewing all the evidence, we are left with a definite and firm c onviction that a mistake has been made.” Morales , 961 F.3d at 1090 (quotation marks om itted). In conducting this clear-error review within the context of a suppressi on motion, an appellate court should “give due weight to inferences drawn from thos e facts by resident judges and local law enforcement officers.” Ornelas v. United States , 517 U.S. 690, 699 (1996).
B. When was Mr. Gates Seized? The parties agree Mr. Gates was seized at the point when Officer Ricks ordered him to “come here” and drew and de ployed his taser. But Mr. Gates contends he was seized moments earlier when O fficer Ricks first pulled his patrol car alongside Mr. Gates. Before we undertake our de novo anal ysis, we discuss the legal framework used to determine wh ether an individual is seized. 1. Governing Law “[A] seizure does not occur simply b ecause a police office r approaches an individual and asks a few questions.” Florida v. Bostick , 501 U.S. 429, 434 (1991). “[E]ven when officers have no basis for susp ecting a particular i ndividual, they may

3 In a footnote, Mr. Gates challenges th e proposition that we view the evidence in the light most favorable to the district court’s rulin g; but he acknowledges his challenge is foreclosed by circuit precedent and that he raises the challenge only for the purpose of preserving the issue for further review. Appellate Case: 20-4106 Document: 010110621232 Date Filed: 12/20/2021 Page: 78 generally ask questions of th at individual . . . as long as the police do not convey a message that compliance with their requests is required.” Id. at 434–35. Thus, “[a] seizure occurs for Fourth Amendment pur poses when ‘a reasonable person would have believed that he was not free to leave.’” Jones v. Hunt , 410 F.3d 1221, 1225 (10th Cir. 2005) (quoting Michigan v. Chesternut , 486 U.S. 567, 573 (1988)). This assessment is based on “what a reasonable, law-abiding person would have thought had he been in the defendant’s shoes,” a nd not based on “what th e defendant himself thought.” United States v. Tafuna , 5 F.4th 1197, 1200 (10th Cir. 2021). In assessing whether a reasonable pers on in the defendant’s position would have felt free to leave, a court takes a holistic “tot ality-of-the-circumstances” approach. United States v. Ringold , 335 F.3d 1168, 1172 (10t h Cir. 2003). Factors to consider include: (1) the threatening presen ce of several officers; (2 ) the brandishing of a weapon by an officer; (3) physical t ouching by an officer; (4) aggressive language or tone of voice by an officer indicating compliance is compulsory; (5) prolonged retention of an individual’s personal effects; (6) a request to accompany an o fficer to the police station; (7) interaction in a small, enclosed, or non-public place; . . . (8) absence of other members of the public . . . [; and (9)] whether an officer indicated to the person that he is free to leave. United States v. Jones , 701 F.3d 1300, 1313 (10th Cir. 2012) (internal quotation marks omitted). This list of factors “is not exhaustive,” and “no single factor is dispositive.” Id . But “the strong presence of two or three factors may be sufficient to support the conclusion a seizure occurred.” United States v. Hernandez , 847 F.3d 1257, 1264 (10th Cir. 2017) (quotation marks omitted). Appellate Case: 20-4106 Document: 010110621232 Date Filed: 12/20/2021 Page: 89 In assessing an officer’s verbal interac tion with an individual, we have “made clear that the mere fact that [an officer] ask [ s ] incriminating questi ons is not relevant to the totality-of-the-circu mstances inquiry—what matters instead is the manner in which such questi ons were posed.” Ringold , 335 F.3d at 1173 (internal quotation marks omitted). In this sens e, “[a]ccusatory, persistent, and intrusive questioning can turn an otherwise voluntary enco unter into a coercive one.” Id. at 1174 (quotation marks omitted). Thus, “[t]he nature of a po lice-citizen encounter can change . . . and what may begin as a consensu al encounter may change to an investigative detention if the police conduct changes.” Hernandez , 847 F.3d at 1264 (internal quotation marks omitted). There are also specific considerations for assessing situations involving a police officer operating a vehicle when a pproaching an individual. The Supreme Court has recognized that “the very presen ce of a police car driving parallel to a [] pedestrian could be so mewhat intimidating.” Chesternut , 486 U.S. at 575. But, “standing alone,” this is not enough to constitute a seizure. See Hernandez , 847 F.3d at 1265 n.2 (quotation marks omitted) ( observing that the Supreme Court in Chesternut held individual was not seized de spite patrol car driving alongside individual before interaction) . “[W]hen [a] police officer[] pursue[s] a citizen in their squad car while the citizen is on foot, cour ts will consider whether the officer[] activated their siren or flas hers, operated their car in an aggressive manner to block the citizen’s course or othe rwise control the direction or speed of his movement, displayed their weapons, or co mmanded the citizen to halt.” Id. at 1264. An officer Appellate Case: 20-4106 Document: 010110621232 Date Filed: 12/20/2021 Page: 910 shining a bright, non-emergency light at an individual “is not inherently coercive.” Tafuna , 5 F.4th at 1201 (collecting authority on this point and noting that an opposing rule would place offi cer safety at risk when approaching a vehicle or individual at night). 2. Application The totality of the circumstances overw helmingly favors the conclusion that Mr. Gates was not seized wh en Officer Ricks first appr oached and inquired about Mr. Gates’s presence at the ca rwash. Officer Ricks was th e only officer present, he remained in his patrol car, and he spoke to Mr. Gates from a distance. Thus, when Officer Ricks initiated the in teraction, he was not in a position to restrain Mr. Gates or to take possession of Mr. Gates’s personal effects. 4 Nor did Officer Ricks display a weapon when he initially attempted to convers e with Mr. Gates. Si milarly, at that point in the encounter, Officer Ricks ne ither gave Mr. Gates any commands nor ordered him to take or refrain from any action. Further, although the interaction occurred at night when few members of the public may have been out-and-about, it happened on a public street where the degr ee of coercion is generally diminished. Finally, Officer Ricks asked a single questi on in an effort to obtain information,

4 Mr. Gates’s initially unimpeded fli ght following Officer Ricks’s question supports the conclusion that Mr. Gates was neither object ively restrained nor felt subjectively restrained. Appellate Case: 20-4106 Document: 010110621232 Date Filed: 12/20/2021 Page: 1011 doing so without lobbing any direct accusations at Mr. Ga tes, no less a series of accusatory or intrusive questions. Mr. Gates attempts to overcome the conc lusion that he was not seized at the outset of the interaction by pointing to two considerations—Officer Ricks did not advise him he was free to leave and Office r Ricks approached him in a patrol car. While both considerations are ce rtainly factors in our analysis, we find them to be of little weight when viewed as part of the totality of the ci rcumstances. As to the first consideration, although it is true Officer Ricks did not a dvise Mr. Gates he was free to leave, Mr. Gates attemp ted to run away from Officer Ricks almost immediately after Officer Ricks commenced the intera ction by asking a si ngle question. Thus, Mr. Gates’s reaction and conduct did not permit Officer Ricks a reasonable opportunity to advise Mr. Gate s he was free to leave. As to the second consideration, we acknowledge that a patrol car pulli ng up alongside an individual “could be somewhat intimidating.” Chesternut , 486 U.S. at 575. But this alone is not sufficient to support the finding of a seizure. And, in this case, the district court found that Officer Ricks approached Mr. Gates in a non-aggressive ma nner, a finding that is not clearly erroneous. In fact, Officer Rick s’s decision not to activate his emergency lights when he approached Mr . Gates supports the district court’s factual conclusion. 5 Further, Officer Ricks made contact wi th Mr. Gates shortly after he observed

5 Officer Ricks activated only his non-em ergency spotlight, the activation of which enhances officer safety and does not transform an interact ion into a seizure. United States v. Tafuna , 5 F.4th 1197, 1201 (10th Cir. 2021). Appellate Case: 20-4106 Document: 010110621232 Date Filed: 12/20/2021 Page: 1112 Mr. Gates run across 37th Street and, ther efore, did not follow Mr. Gates for an extended period of time. The compressed timefra me of events in th is case decreases the intimidating nature of Officer Ri cks’s interaction with Mr. Gates. See United States v. Morgan , 936 F.2d 1561, 1567 (10t h Cir. 1991) (noting that officer followed suspect for “ several blocks with his red lights on” when assessing whether a seizure occurred (emphasis added)). Because a significant majority of th e factors favor the conclusion that Mr. Gates was not seized at the inception of the interac tion and the factors relied upon by Mr. Gates are of minimal value wh en considered in the context of the interaction, we conclude Mr. Gates was not seized at the outset of the interaction. Therefore, the starting point for our analys is regarding whether reasonable suspicion supported the seizure of Mr. Gates is that Mr. Gates was seized when Officer Ricks ordered him to “come here” an d drew and deployed his taser. 6

6 Our case law holds that “[w]hen an o fficer does not apply physical force to restrain a suspect, a Fourth Amendment seizure occurs only if (a) the officer shows his authority; and (b) the citizen ‘subm it[s] to the asser tion of authority.’” United States v. Salazar , 609 F.3d 1059, 1064 (10th Cir. 2010) (alteration in original) (quoting California v. Hodari D , 499 U.S. 621, 625–26 (1991)); cf. Torres v. Madrid , 141 S. Ct. 989, 1001 (“Unlik e a seizure by force, a seiz ure by acquisition of control involves either voluntary submission to a s how of authority or the termination of freedom of movement.” (emphasis added)). Under this articula tion of a seizure, Mr. Gates was not seized un til Officer Ricks’s deployment of the taser impeded his movement. However, where no aspect of the reasonable susp icion calculus upon which we rely occurred between Officer Ricks ordering Mr. Gates to “come here” and Officer Ricks deploying his taser, we need not determine the exact second at which Officer Ricks se ized Mr. Gates. Appellate Case: 20-4106 Document: 010110621232 Date Filed: 12/20/2021 Page: 1213 C. Whether Reasonable Suspicion Suppor ted the Seizure of Mr. Gates? Similar to our analysis of when Mr. Gates was seized, we start our reasonable-suspicion analys is by outlining the law governing the issue. Then we apply the law to conclude that Officer Ricks had reasonable suspicion to stop Mr. Gates when he ordered Mr. Gates to “come here” and drew and deployed his

taser. 1. Governing Law In assessing whether an officer had reas onable suspicion, this court “must look at the totality of the ci rcumstances of [the] case.” United States v. Kitchell , 653 F.3d 1206, 1218 (10th Cir. 2011). “For reasonable suspici on to exist, an officer must ‘articulate something more than an inchoate and unpar ticularized suspicion or hunch.’” United States v. Moore , 795 F.3d 1224, 1229 ( 10th Cir. 2015) (quoting United States v. Sokolow , 490 U.S. 1, 7 (1989)). Stated as an affirmativ e standard, to conduct an investigatory stop, “an officer must have a particularized and objective basis for suspecting an individual ma y be involved in criminal activity.” United
States v. Martinez , 910 F.3d 1309, 1313 (10th Cir. 2018) (internal quotation marks omitted). “Although the government bears th e burden of proving the reasonableness of an officer’s suspicion, reasonable susp icion is not, and is not meant to be, an onerous standard.” Kitchell , 653 F.3d at 1219 (internal quotation marks and citation omitted). “In deciding whether the govern ment has met its burden of showing reasonable suspicion, we judge the office r’s conduct in light of common sense and ordinary human experience a nd we accord deference to an officer’s ability to Appellate Case: 20-4106 Document: 010110621232 Date Filed: 12/20/2021 Page: 1314 distinguish between innocent and suspicious actions.” United States v. Simpson , 609 F.3d 1140, 1146 (10th Cir. 2010) (interna l quotation marks and citations omitted); see also United States v. Pettit , 785 F.3d 1374, 1379 (10th Ci r. 2015) (“We defer to all reasonable inferences made by law en forcement officers in light of their knowledge and professional experience distinguishing between innocent and suspicious actions.”). The “particularized and obj ective basis” threshold does “not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” Kitchell , 653 F.3d at 1218–19. “To satisfy the reasonable suspicion standard, an office r need not rule out the possibility of innocent conduct, or even have evidence suggesting a fair probability of criminal activity.” Pettit , 785 F.3d at 1374, 1379 (quotation ma rks omitted). “As long as an officer has a particularized and objective basis for suspecting an individual may be involved in criminal activity, he may initiate an investigatory deten tion even if it is more likely than not th at the individual is not involved in any illegality.” Id. at 1379– 80 (emphasis in original) (int ernal quotation marks omitted). 2. Application We conclude Officer Ricks had reasona ble suspicion to seize Mr. Gates when he ordered him to “come here” and drew and deployed his taser. Most notably, Mr. Gates’s presence at the ca rwash near the coin machine, without any item in sight to wash, and at 11:00 p.m. on a cold Ma rch night with snow on the ground would draw the attention and suspicion of any r easonable officer. Office r Ricks’s suspicions Appellate Case: 20-4106 Document: 010110621232 Date Filed: 12/20/2021 Page: 1415 were justifiably heightened by Mr. Gates’ s response to Officer Ricks driving down 37th Street past the carwash. 7 From Officer Ricks’s pers pective, Mr. Gates engaged in a series of evasive moves—first moving behind the retaining wall as Officer Ricks approached and then scaling the wall and running across the middle of 37th Street upon Officer Ricks passing the carwash. Thes e evasive actions, co upled with the time of day and Mr. Gates’s seemingly out-of-pl ace presence at the carwash, were likely sufficient to establish reasonable suspic ion and permit Officer Ricks to seize Mr. Gates and inquire about hi s presence at the carwash. See United States v. De La
Cruz , 703 F.3d 1193, 1198 (10th Cir. 2013) (“ Flight can create reasonable suspicion that the person fleeing is involved in criminal activity.” (emphasis omitted)). Any doubt though regarding whether Officer Ricks he ld reasonable suspicion when he ordered Mr. Gates to “come here” is resolved by Officer Ricks’s observation of a bulge on Mr. Gates’s waistline. “[I]n the circumstances faci ng the officer[] in this case, the presence of a concealed weapon would heighten reasonable suspicion that criminal activity was afoot.” United States v. Briggs , 720 F.3d 1281, 1288-89 (10th Cir. 2013); cf. United States v. Gurule , 935 F.3d 878, 886 (10t h Cir. 2019) (“As the Supreme Court [has] observed . . . , a visible and suspic ious ‘bulge’ [on a

7 Mr. Gates contends that it would have been difficu lt for him, at night, to observe that Officer Ricks wa s driving a marked patrol car . Although we watched the body camera video and were not able to cl early make out the word “police” on the side of the patrol car, th e overhead lights on Officer Ri cks’s patrol car were quite visible. Therefore, to the ex tent the district court conc luded a person in Mr. Gates’s position would have recognized Officer Ricks’ s vehicle as a police car, the court did not clearly err. Appellate Case: 20-4106 Document: 010110621232 Date Filed: 12/20/2021 Page: 1516 suspect] may alone ‘permit th e officer to conclude that the suspect was armed and thus posed a serious and present danger to the safety of the officer.’” (quoting Pennsylvania v. Mimms , 434 U.S. 106, 112 (1977))). Therefore, based on the totality of the circumstances, we conclude Office r Ricks had reasonable suspicion to seize Mr. Gates when he ordered Mr. Gates to “come here” and drew and deployed his

taser. 8
III. CONCLUSION We conclude Mr. Gates was not seized until Officer Ricks ordered Mr. Gates to “come here” and drew a nd deployed his tase r, and Officer Ricks had reasonable suspicion to seize Mr. Gates at that junc ture. Therefore, we AFFIRM the district court’s denial of Mr. Gates’ s motion to suppress and AFFIRM Mr. Gates’s conviction.

Entered for the Court
Carolyn B. McHugh Circuit Judge

8 Because of the time of day, Mr. Gate s’s unexplained presence at the carwash near the coin machine, his flight from the carwash, a nd the bulge on his waistline are sufficient to establish reasona ble suspicion, we find it unn ecessary to rely upon the purported high-crime nature of the area ar ound 37th Street and Riverdale Road in reaching our conclusion. We likewise find it unnecessary to consider Mr. Gates’s attempt to run away from Offi cer Ricks after Officer Ricks asked his initial question. Appellate Case: 20-4106 Document: 010110621232 Date Filed: 12/20/2021 Page: 16