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

### AUG 22 2002 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 01-4184 JAMES EDWARD NEFF,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH (D.C. NO. 2:00-CR-408 ST)

Scott Keith Wilson, Assistant Federal Public Defend er (Steven B. Killpack, Federal Public Defender, with him on the briefs), S alt Lake City, Utah, for Defendant-Appellant. Diana Hagen, Assistant United States Attorney (Paul M. Warner, United States Attorney, with her on the brief), Salt Lake City, U tah, for Plaintiff-Appellee.

Before HARTZ , McKAY , and O’BRIEN , Circuit Judges.

HARTZ , Circuit Judge.-2-

Defendant entered a conditional guilty plea to one count of possession of an unregistered short-barreled shotgun, in violation o f 26 U.S.C. §§ 5861(d) and 5845, subject to his right to appeal the district c ourt’s denial of his motion to
suppress . See Fed. R. Crim. P. 11(a)(2) (conditional pleas). Onappeal he contends that the district court erred in not suppr essing evidence obtained as a result of his investigative detention. In particul ar, he argues that it was unreasonable to handcuff him throughout the detenti on, the detention therefore became an arrest, and the arrest was not supported by probable cause. The government, somewhat surprisingly, does not argue that the officers had probable cause to arrest Defendant; it relies on its content ion that the handcuffing was reasonable in the circumstances. We have jurisdict ion under 28 U.S.C. § 1291. We affirm.
Facts At approximately 1:40 a.m. on September 2, 2000, We st Valley City police detective Eric Reed, FBI special agent Juan Becerra , and two or three other detectives were gathered outside a convenience stor e. The neighborhood was known as a high crime area where many children live and play. A pregnant woman approached the officers and stated that she h ad seen an apparently intoxicated man behaving oddly on Harvey Street. S he said he was carrying a gun, which she believed to be a “short type rifle,” in the sleeve of his jacket. She-3-

described the man, said his arms were stiff as he w alked, and provided his home address. The witness also told the officers her ow n name, address, telephone number, and place of employment. When the officers arrived at Harvey Street, they no ticed a man standing on the street who fit the witness’s description. The man, Defendant, saw the officers and walked away at a brisk pace in the direction of the address the witness had given. The officers followed him. As they neared his apartment, they briefly lost sight of him because a pickup truck parked on the apartment’s front lawn blocked their view. Although Reed turned on his patrol carlights and asked Defendant to stop, Defendant continued walking. Other officers also unsuccessfully asked Defendant to stop. Upon arriving at the landing in front of his apartment, Defendant reached for his chest or waist. The offi cers drew their weapons and ordered him to stop and drop to the ground. Defend ant complied. Defendant appeared intoxicated and smelled of alcoh ol. Reed frisked and handcuffed him. In Defendant’s jacket he felt a “h ard bulge,” which Reed discovered to be 16 live rounds of 20-gauge shotgunshells. Reed informed Defendant that he was being held beca use of a report that he had a concealed weapon. Although the testimony of the officers conflicted as to whether Defendant initially denied having a gun, th ey agreed that he soon stated that the gun was in a green box in his apartment. Defendant’s mother, who shared-4-

the apartment with him, consented to a search of th eir apartment. The officers found the green box, but it did not contain a gun. With his mother’s encouragement to tell the officers where the gun wa s, Defendant then said it was in the cab of the truck parked in front of the apartment, which he had walked past a few minutes earlier. In the cab of the truck Ree d discovered the shotgun and observed that the barrel was shortened in length. Defendant was advised of his Mirandarights, which he waived. He admitted that he knew the shortened barrel made the gun illegal to possess and that the illegality was the reason why he was able to buy the gun at a reduced price.After being indicted for possession of an unregiste red short-barreled shotgun, Defendant moved to suppress the gun and hi s statements to the police about the location of the gun. He claimed that (1) the investigative stop became an arrest when the officers held him at gunpoint an d then handcuffed him for a prolonged period and (2) the arrest was unlawful be cause it was not supported by probable cause. The district court ruled that the officers’ use of handcuffs was reasonable as part of a stop authorized by Terry v. Ohio , 392 U.S. 1 (1968).
Discussion On appeal from the denial of a motion to suppress, we view the evidence in the light most favorable to the government and acce pt the district court’s findings-5-

of fact unless clearly erroneous. United States v. Gama-Bastidas , 142 F.3d 1233, 1237 (10th Cir. 1998). Here, Defendant has not cha llenged the district court’s findings of fact. The issue on appeal is solely wh ether, given those facts, the officers’ conduct violated the Fourth Amendment. W e review this issue de novo. United States v. Perdue , 8 F.3d 1455, 1462 (10th Cir. 1993) (“The ultimate legal determination of reasonableness under the Fourth Am endment is subject to de novo review.”). In addressing the constitutionality of an investigative stop, “the inquiry is twofold. First, the officer’s action must be ‘just ified at its inception.’” United States v. King , 990 F.2d 1552, 1557 (10th Cir. 1993) (quoting Terry , 392 U.S. at 20). Second, “the officer’s action [must b e] ‘reasonably related in scope to the circumstances which justified the interferen ce in the first place.’” Id. If a police-citizen encounter exceeds the limits of a Terrystop, the detention becomes an arrest that must be supported by probable cause. See Perdue , 8 F.3d at 1462. Defendant does not contest his initial detention. He argues, however, that the police exceeded the permissible scope of an investi gative Terrystop due to the length of the detention and the use of handcuffs. He claims that his detention therefore became an arrest. The allowable scope of an investigative detention c annot be determined by reference to a bright-line rule; “common sense and ordinary human experience-6-

must govern over rigid criteria.” United States v. Sharpe , 470 U.S. 675, 685 (1985). Moreover, we should not engage in “unreali stic second-guessing” of a police officer’s decision. Id. at 686. Thus, a Terrystop does not become unreasonable just because pol ice officers use handcuffs on a subject or place him onthe ground. See Perdue , 8 F.3d at 1463. Further, the “use of guns in connec tion with a stop is permissible where the police reasonably believe the weapons are necessary for their protection.” Id. at 1462 (internal quotation marks, brackets, and c itation omitted). “Since police officers should not be required to ta ke unnecessary risks in performing their duties, they are ‘authorized to ta ke such steps as [are] reasonably necessary to protect their personal safety and to m aintain the status quo during the course of [a Terry ] stop.’” Id. (quoting United States v. Hensley , 469 U.S. 221, 235 (1985)). Our decision in United States v. Shareef , 100 F.3d 1491 (10th Cir. 1996), illustrates the appropriate analysis. At approximately 3:30 a.m. three vehicles traveling together were stopped for speeding. Id. at 1495-96. None of the drivers had a driver’s license. Id. at 1496. The officer asked for identifying inform ation and radioed it to a police dispatcher. Id. At 3:55 a.m. the dispatcher reported that one of the drivers, Smith, was wanted on a weapons charge in another state and was considered armed and dangerous. Id. at 1496-97. When backup arrived, the-7-

six occupants of the three vehicles were ordered to leave the vehicles one at a time. Id. at 1497. After individually exiting the vehicle, each occupant was frisked, handcuffed, and told to kneel on the pavem ent. Id. During this procedure, which took about five minutes for each o ccupant, the officers pointed their guns at the occupant. Id. As each vehicle was emptied, it was inspected for further occupants. Id. at 1497-98. The officers then questioned the six occupants further about their possession of the vehicles. Id. at 1498. About 5:00 a.m. the officers learned that Smith was not in fact a wante d felon. Id. We held:

The reasonable belief that the defendants posed a danger justified the procedures in this case. The officers were entitled to display their weapons, to separate defendants from their vehicles, to conduct a pat do wn search, and to restrain the defendants with handcuffs until the officers had completed securing all the defenda nts. For their own safety, the officers were entitled to remove the defendants one by one, which, because of the nu mber of defendants, necessarily took time. We therefore conclude that although bordering on an illegal arre st, the precautionary measures of force employed by the off icers were reasonable under the circumstances. Id. at 1506 (quotation marks, citations, and brackets omitted). More troubling was that several of the occupants continued to be h andcuffed after the officers had determined that none of the six was armed. Id. at 1507. We wrote:

Although finding it a close question, we hold that, at lea st until 5:00 a.m. when the officers received confirmation that defendant Smith was not the individual wanted in the NCIC teletype, the use of handcuffs was reasonable. The number of suspects, the fact that the encounter too k place-8- at night, and the reasonable suspicion that one of the suspects was a wanted felon, justified the officers in keeping the defendants in handcuffs for the officer s’ safety. However, once the officers learned that Sm ith was not the individual identified in the NCIC teletype, the continued use of handcuffs constituted an unlawful arrest. Id. In short, the use of handcuffs was appropriate as long as there was a reasonable, articulable ground for fearing danger f rom the suspects. By that standard, the handcuffing of Defendant was legitimate in this case. The officers had received a reliable report that De fendant was armed with a particularly dangerous weapon. See 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment§ 3.3, at 88-89 (3d ed. 1996) (noting presumptive reliability of citizen informers). Whe n they stopped and frisked him—actions not challenged on appeal—the ammunitionon his person provided solid confirmation that he had been carrying a weap on. Although he did not have a weapon on his person, the officers had temporaril y lost sight of him during the pursuit, so it could have been hidden nearby. Further confirmation of the existence of a weapon came from Defendant’s stateme nt that “the” weapon was in his apartment. Even if Defendant, who was being watched by some officers outside, did not pose a risk of grabbing the gun inthe apartment, the officers could be somewhat skeptical that the gun was there because they had not seen him enter the apartment during their pursuit. When the gun was not where he said it would be in the apartment, the officers had additio nal grounds for concern about-9-

where he may have hidden it and whether he might be able to grab it without warning. To be sure, Defendant was outnumbered by the officers; yet the officers could reasonably believe it to be imprudent to rely on there always being someone intently watching Defendant. Distractions happen. We believe that the facts of record provide reasona ble, articulable grounds for the officers to handcuff Defendant. The office rs had reason to fear someone who was reliably reported to be carrying an unlawfu l weapon. And given the reason to believe the weapon was on or near the sus pect’s person, they had a sound basis for taking stringent precautions until they recovered it. We note that the district court found that Defendant was handcuf fed for only a few minutes before the gun was discovered. Defendant cites several appellate decisions in supp ort of his claim that his handcuffing was unreasonable. In all but one of th e cases, however, the handcuffing was upheld. None of those decisions co ntains language indicating that the specific facts in this case would preclude handcuffing. As for the one cited case that found handcuffing unjustified, we n oted that the officers “had no tips or observations that the suspects were armed o r violent.” United States v. Melendez-Garcia , 28 F.3d 1046, 1053 (10th Cir. 1994). Finally, Defendant contends that the handcuffing wa s unreasonable because there was no evidence in the record that the office rs in fact feared for their safety.-10-

In measuring the actions of a police officer under the Fourth Amendment, however, we look at the objective facts, not the of ficer’s state of mind. Maryland
v. Macon , 472 U.S. 463, 470 (1985). We AFFIRM the judgment of the district court.