* After examining the briefs and appellate record, this panel has determined

unanimously to grant 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

ordered submitted without oral argument. 

FILED

United States Court of Appeals

Tenth Circuit

March 10, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FLOYD EUGENE FISHER,

Defendant-Appellant.

No. 09-6142

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. 5:08-CR-00293-F-1)

Submitted on the briefs:*

Perry W. Hudson, Oklahoma City, Oklahoma, for Defendant-Appellant.

Robert J. Troester, Acting United States Attorney, Andre' B. Caldwell, Assistant

U.S. Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before HARTZ, McKAY, and ANDERSON, Circuit Judges.

McKAY, Circuit Judge.

Appellate Case: 09-6142 Document: 01018381317 Date Filed: 03/10/2010 Page: 1 
-2-

Floyd Eugene Fisher was convicted of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1) after police officers responding to

an emergency “shots-fired” call found him at the scene armed with a .44 caliber

revolver and ammunition. He appeals his conviction, arguing that the

Government’s introduction of this evidence at trial violated his Fourth

Amendment rights. We have jurisdiction under 28 U.S.C. §1291, and we affirm.

I. Background

On July 23, 2008, Oklahoma City police officer Jenny Scott-Beard and her

partner were dispatched to the defendant’s residence based on a 9-1-1 call

indicating that someone had fired a gun there. The officers arrived on the scene

at 9:15 p.m., three minutes after the call came in. Immediately upon their arrival,

Sergeant Beard was waved down by a woman who told her that a “black male

wearing a gold shirt” had “shot at her and her son.” R. Vol. 3 at 17. Sergeant

Beard then approached the only car parked in the driveway of the residence,

which had its brake lights illuminated. With her weapon drawn, she yelled at the

car’s occupants to “get their hands up.” Id. at 19. At that point the defendant,

who was sitting in the front passenger seat, rolled down his window and stuck out

his hands, revealing a gold sleeve. He then opened the door and started to get out

of the car, at which point Sergeant Beard noticed the butt of a gun sticking out

Appellate Case: 09-6142 Document: 01018381317 Date Filed: 03/10/2010 Page: 2 
1 Terry v. Ohio, 392 U.S. 1 (1968).

-3-

from under his seat. She immediately ordered the defendant to the ground,

handcuffed him, and seized the gun.

The defendant moved to suppress the gun and ammunition, arguing that he

was unlawfully seized in violation of the Fourth Amendment because Sergeant

Beard had no reasonable basis to suspect the occupants of the car of criminal

activity. The district court disagreed. After a hearing, it denied the motion,

concluding that “the standard of reasonable suspicion was met when the Terry1

stop occurred” and that although the investigative stop was more aggressive than

usual, the aggression was justified by the circumstances. Id. at 48 (footnote

added). Among the facts the court found persuasive was the speed with which the

officers arrived on the scene; the fact that gunplay was involved; that it was a

high-crime area; the illumination of the car’s brake lights, which may have

indicated it was about to depart; and the fact that defendant matched the suspect’s

description. 

The defendant does not challenge these factual findings on appeal; nor does

he challenge the reasonableness or intrusiveness of Sergeant Beard’s actions after

he rolled down his window. His argument is limited to the first prong of the

Terry analysis, that is, whether Sergeant Beard’s decision to detain the car was

justified at its inception. He contends that the facts, viewed objectively, were

Appellate Case: 09-6142 Document: 01018381317 Date Filed: 03/10/2010 Page: 3 
-4-

insufficient to justify a reasonable suspicion of criminal activity on the part of

any particular occupant of the vehicle, and thus his Fourth Amendment rights

were violated from the moment Sergeant Beard ordered him to show his hands.

II. Discussion

In reviewing the denial of a motion to suppress, “we view the evidence in

the light most favorable to the government and accept the district court’s findings

of fact unless clearly erroneous.” United States v. Neff, 300 F.3d 1217, 1219

(10th Cir. 2002). The ultimate determination of reasonableness under the Fourth

Amendment, however, is a question of law that is reviewed de novo. United

States v. Perdue, 8 F.3d 1455, 1462 (10th Cir. 1993).

“[A] police officer can temporarily detain an individual suspected of

criminal activity if the officer can point to ‘specific and articulable facts which,

taken together with rational inferences from those facts, reasonably warrant that

intrusion.’” Id. at 1461 (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). “The

Fourth Amendment requires only a minimal level of objective justification for

making a Terry stop.” United States v. Melendez-Garcia, 28 F.3d 1046, 1051

(10th Cir. 1994) (internal quotation marks omitted). Such an investigative stop

can be justified by “considerably less than proof of wrongdoing by a

preponderance of the evidence;” yet the Fourth Amendment requires “something

more than an inchoate and unparticularized suspicion or hunch.” Id. (internal

quotation marks omitted). 

Appellate Case: 09-6142 Document: 01018381317 Date Filed: 03/10/2010 Page: 4 
2 The district court concluded that under the circumstances, the officers acted

reasonably in displaying their weapons and ordering the vehicle’s occupants to

put up their hands, and that such action did not make the encounter tantamount to

a warrantless arrest from its inception. The defendant does not challenge this

holding, but complains the seizure was unconstitutional even if it was only an

investigative stop, “because the officers lacked a particularized and objective

basis for suspecting the particular person stopped of criminal activity.” Aplt. Br.

at 18 (internal quotation marks omitted). As such, the issue of whether the

officers’ conduct exceeded the allowable scope of an investigative detention is

not squarely before us. Nevertheless, we conclude that the initial show of force

in this case was reasonably believed necessary for officer safety and did not

elevate the stop to an arrest. See Perdue, 8 F.3d at 1462 (“The use of guns in

connection with a stop is permissible where the police reasonably believe the

weapons are necessary for their protection.”) (internal quotation marks and

alteration omitted).

-5-

Determining the constitutionality of an investigative stop is a two-part

inquiry. First, we ask whether the officer’s action was “justified at its inception.” 

Neff, 300 F.3d at 1220 (internal quotation marks omitted). We then ask whether it

was “reasonably related in scope to the circumstances which justified the

interference in the first place.” Id. (internal quotation marks omitted). The only

issue before us, however, is the reasonableness of the initial stop.2

 And because

the car was parked in this case, we examine Sergeant Beard’s initial act of

ordering its occupants, at gun point, to show their hands. 

A police officer cannot legally detain a person simply because criminal

activity is afoot. The particular person that is stopped must be suspected of

criminal activity. United States v. Goodrich, 450 F.3d 552, 560 (3d Cir. 2006). 

Defendant contends that Sergeant Beard could not have suspected him, in

Appellate Case: 09-6142 Document: 01018381317 Date Filed: 03/10/2010 Page: 5 
-6-

particular, because she did not know when she approached the car that a black

man with a gold shirt was inside. But this argument misses the central point of

the district court’s holding, which was that any reasonable police officer in

Sergeant Beard’s position would have had a particularized and objective basis for

detaining the car in which the defendant was sitting. Defendant seizes on

Sergeant Beard’s testimony that she would have approached any and all cars at

the scene looking for potential witnesses or suspects, to argue she lacked a

particular basis for suspecting him of criminal activity. Sergeant Beard’s

subjective motivations for making the stop, however, are not relevant. 

In measuring an officer’s actions under the Fourth Amendment, we look only

at the objective facts, not the officer’s state of mind. Neff, 300 F.3d at 1222;

see also United States v. Brown, 334 F.3d 1161, 1166 (D.C. Cir. 2003) (noting

that a police officer is not required to resolve the occupants’ status before

stopping a car).

Here, the objective facts support a finding of reasonable suspicion. This is

not a case where police officers were driving around a bad neighborhood stopping

random vehicles. In this case, law enforcement was responding to a 9-1-1 call

late at night, in a high crime area, with every reason to suspect gunplay, and the

only vehicle at the scene looked as if it was about to depart. We agree with the

district court that under these circumstances, the officers would have been remiss,

both for the protection of the public and themselves, in not approaching that car

Appellate Case: 09-6142 Document: 01018381317 Date Filed: 03/10/2010 Page: 6 
-7-

to investigate the situation. Other courts have upheld the constitutionality of

investigative detentions under similar circumstances. See Goodrich, 450 F.3d

at 562, 563 (upholding Terry stop where defendant “was found near in time and

geographic proximity” to the crime, and police “observed no other occupied

vehicles in the vicinity”); United States v. Raino, 980 F.2d 1148, 1150 (8th Cir.

1992) (upholding Terry stop where “the officers were responding to a late-night

call that shots had been fired in precisely the area appellant’s car was parked”).

Most notably, in United States v. Brown, 334 F.3d 1161 (D.C. Cir. 2003),

the court upheld a Terry stop by police officers responding to a report of gun fire

in a nearly deserted parking lot. Only two cars were in the lot, and the police

detained them both, eventually arresting one of the occupants for illegal

possession of a firearm. The appeals court rejected the defendant’s efforts to

suppress the firearm under the Fourth Amendment, holding that it was reasonable

for law enforcement to suspect criminal activity under the circumstances. It was

late at night; the officers were responding to a shots-fired call in a high-crime

area; and there were only two cars in the parking lot. In Brown, thirty minutes

had elapsed between the time of the call and the challenged encounter, but the

court rejected the notion that such a passage of time eliminated all reason for

suspicion, noting that “it was certainly plausible that the person or persons who

fired the gunshots might not have departed the area.” Id. at 1166. 

Appellate Case: 09-6142 Document: 01018381317 Date Filed: 03/10/2010 Page: 7 
-8-

We conclude the officers’ investigative detention in this case was likewise

reasonable. The judgment of the district court is, therefore, AFFIRMED.

Appellate Case: 09-6142 Document: 01018381317 Date Filed: 03/10/2010 Page: 8