PUBLISH
UNITED STATES COURT OF APPEALS Filed 9/3/96 TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ALBERT OTIS DAVIS, Defendant-Appellant. No. 95-5156

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 94-CR-179-K)
Stephen J. Greubel, Assistant Federal Public Defend er, Tulsa, Oklahoma (Stephen J. Knorr, Federal Public Defender, with hi m on the brief), for Defendant-Appellant. Lucy O. Creekmore, Assistant United States Attorney , Tulsa, Oklahoma (Stephen C. Lewis, United States Attorney, with heron the brief), for Plaintiff-Appellee.

Before EBEL , HOLLOWAY and HENRY , Circuit Judges.

EBEL , Circuit Judge.- 2 -

Defendant-Appellant Albert Otis Davis was convicted of one count of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), after he was stopped by police and found to be carrying a gun. Davis contends the district court should have suppressed the gun and h is subsequent statements as the fruits of an unlawful detention because ther e was no reasonable suspicion to justify the investigative stop pursuan t to which the gun was found. Exercising jurisdiction pursuant to 28 U.S. C. § 1291, we reverse.

I. The following are the facts in this case as found b y the district court: On December 20, 1993 at approximately 10:00 p.m., T ulsa police officers Yelton, Spitler and Staats were patrolling the areaof 1900 North Madison in Tulsa, Oklahoma. The Tulsa Police Department on prior occasions had received complaints regarding gunshots being fired in that area. One building in the area was known to the Tulsa Police Department as a "juice joint," i.e. , a business that sells liquor without a license. Officer Yelton testified at the suppression hearing that the build ing had been known as a "juice joint" for the ten years he had served as a police officer, but that legal activities such as dominoes and pool also tak e place there. Officer Yelton testified that in the past he had investigat ed two shootings in the- 3 -

area and had been involved in eight arrests in the area relating to drug sales and/or gun use. Officer Yelton also testified thatgangs, such as the Crips and the Bloods, "hang out" and sell drugs at this l ocation and that it had been the scene of gang disputes. On the night and at the time in question, the three officers arrived in a marked police car and observed a brown Monte Carlo with four occupants parked just north of the "juice joint." Upon the o fficers' arrival, one of the occupants, Defendant Albert Otis Davis, exited the Monte Carlo. As he did so, he made eye contact with Officer Yelton, then b roke eye contact and began walking toward the establishment with his han ds in his pockets. Officer Yelton knew Davis was an ex-convict who had been acquitted of a gang-related homicide. Officer Yelton also knew Davis was associated with a gang, and had received information that Davi s had been selling narcotics. However, none of Officer Yelton's priorcontact with criminal activity in the 1900 North Madison area had involve d Davis. The officers told Davis to stop and to take his han ds out of his pockets, but Davis continued walking in the same di rection and same manner. Officer Yelton testified that he was conce rned at that point with officer safety and believed defendant might be hidi ng a firearm. Officer Yelton further testified that he believed defendantwas about to enter the- 4 -

"juice joint." Officer Yelton and Officer Staats approached Davis and each officer grabbed one of Davis' arms. The officers e scorted Davis to the Monte Carlo and told him to place his hands on top of the vehicle. Instead, Davis entered the front seat of the vehicle, remove d a firearm from his coat pocket, and threw the firearm into the back seat of the vehicle. The officers recovered the firearm from the back seat and arrest ed Davis. Davis was taken to the police station, where he was read his Mirandarights, signed a waiver of those rights, and made a written statemen t.

II. On appeal from the denial of a motion to suppress e vidence, we review the evidence in the light most favorable to the government, and we review the district court’s findings of fact only for clear error. United States v. Lambert , 46 F.3d 1064, 1067 (10th Cir. 1995). We review d e

novo , however, the district court's conclusion as to wh ether the officers had reasonable, articulable suspicion of criminal activ ity at the time of the seizure. Id. ; Ornelas v. United States , 116 S. Ct. 1657, 1663 (1996).

A.- 5 -

According to the Supreme Court, there are three typ es of policecitizen encounters: (1) consensual encounters which do not implicate th e Fourth Amendment, see, e.g. , Michigan v. Chesternut , 486 U.S. 567, 574-76 (1988); INS v. Delgado , 466 U.S. 210, 218-21 (1984); (2) investigative detentions which are Fourth Amendmentseizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity, see, e.g. , United States v. Sokolow , 490 U.S. 1, 7 (1989); Terry v. Ohio , 392 U.S. 1, 30 (1968); and (3) arrests, the most intrusive of Fourth Amendment sei zures and reasonable only if supported by probable cause. Se e, e.g. , Hayes v. Florida , 470 U.S. 811, 815-16 (1985); Dunaway v. New York , 442 U.S. 200, 212-16 (1979). United States v. Bloom , 975 F.2d 1447, 1450-51 (10th Cir. 1992), overrule d in part on other grounds, United States v. Little , 18 F.3d 1499, 1504 n.5 (10th Cir. 1994). The government argues that the e ncounter between the Tulsa police officers and Davis was a lawful invest igative detention. "A seizure by means of an investigative detention ‘is constitutional only if supported by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.’" Lambert , 46 F.3d at 1069 (quoting United States v. Ward , 961 F.2d 1526, 1529 (10th Cir. 1992) (quoting Rei d v. Georgia , 448 U.S. 438, 440 (1980) (per curiam))). An offi cer who "stops" and briefly detains a person for questioning "must be able to point to specific and articulable facts which, taken togethe r with rational inferences from those facts, reasonably warrant that intrusion ." Terry v. Ohio , 392- 6 -

U.S. 1, 21 (1968). While an investigative detentio n does not require probable cause, it does demand "something more than an inchoate and unparticularized suspicion or 'hunch.'" United States v. Melendez-Garcia , 28 F.3d 1046, 1051 (10th Cir. 1994) (internal quotation marks omitted). In the course of a valid investigative detention, an o fficer may conduct a limited protective search ("frisk") if the officer harbors an articulable and reasonable suspicion that the person is armed and d angerous. United States v. King , 990 F.2d 1552, 1557 (10th Cir. 1993); United Stat es v. Santillanes , 848 F.2d 1103, 1108 (10th Cir. 1988). According to the government, the officers in this c ase possessed reasonable and articulable suspicion that Davis was engaging in criminal activity based on the following four factors: (1) D avis’ car being parked outside a known criminal establishment; (2) Davis’ actions in exiting the car when he saw the officers, making and then break ing eye contact, and refusing to stop when directed; (3) Davis’ keeping his hands in his pockets; and (4) the officers’ knowledge of Davis’ prior cri minal record. None of these factors, standing alone, provides a lawful ba sis for an investigative detention. First, "[t]he fact that [Davis] was in a neighborhood frequented by [criminals], standing alone, is not a basis for concluding that [Davis] himself was engaged in criminal conduct." Brown v. Texas , 443 U.S. 47,- 7 -

52 (1979). Similarly, the fact that Davis was appr oaching a "juice joint" does not give rise to a reasonable suspicion that c riminal activity was afoot, especially since the record shows that the establis hment also offered legitimate activities to its patrons. Davis' actions in exiting the car, making and then breaking eye contact with the officers, and then walking away fr om the officers also do not furnish the basis for a valid Terry stop. Looking at a police officer and then looking away does not provide the officer with "a particularized and objective basis for suspecting the person stopped o f criminal activity," Ornelas , 116 S. Ct. at 1661(internal quotation marks omitt ed). See, e.g. , Santillanes , 848 F.2d at 1105-08 (no reasonable suspicion when defendant, who had prior criminal record, spotted detective, v eered away, and walked at an increased pace). Moreover, while an officer does not violate the Fourth Amendment simply by approaching an individua l in a public place and asking him questions, the individual "need not answer any question put to him; indeed, he may decline to listen to the que stions at all and may go on his way." Florida v. Royer , 460 U.S. 491, 497-98 (1983) (plurality opinion) (citing Terry , 392 U.S. at 32-33 (Harlan, J., concurring); id. at 34 (White, J., concurring)). Thus, Davis' refusal to stop when asked by the officer cannot justify his detention. See Royer , 460 U.S. at 498 ("[A1 There is some debate as to whether the officers' in struction to

"stop" was an order which began the detention, or w hether the officers' request was merely precatory. This issue would tur n on whether the officers' telling Davis to stop "constituted a show of authority sufficient to make a reasonable person believe that he or she was not free to leave." United States v. Laboy , 979 F.2d 795, 798 (10th Cir. 1992). The district court did not address this issue, nor do we find itdeterminative of the question whether Davis' refusing to stop would prov ide the officers with reasonable suspicion. As stated in the text, if th e officers' "request" was merely precatory, Davis' refusal to stop could not create reasonable suspicion for a Terrystop. Royer , 460 U.S. at 498. On the other hand, if the officers' request would have made a reasonable person feel that he or she was not free to leave, then the investigative d etention began at exactly that point, and thus Davis' subsequent refusal to c omply with the officers' order to stop could not furnish the basis for the e arlier detention. - 8 - person] may not be detained even momentarily withou t reasonable, objective grounds for doing so; and [the person's] refusal to listen or answer does not, without more, furnish those ground s."). 1 The fact that Davis had his hands in his coat pocke ts on a December night in Tulsa also does not justify an investigati ve detention. There was no evidence presented at the suppression hearing in dicating that the officers possessed any particularized basis for sus pecting that Davis was armed. Rather, Officer Yelton testified at the sup pression hearing that his suspicion of Davis was based simply on his "percept ion" after ten years on the police force. Officer Yelton elaborated on what he meant by his "perception":- 9 -

Well, again, the training by the Tulsa Police Department and what we teach is that we look at individuals and you size t hem up, basically looking at them. And your perception is basically 90 percent what you feel

. R.O.A., Vol. III at 41 (emphasis added). Officer Yelton acknowledged the lack of any particularized basis reasonably to susp ect that Davis was in the process of committing a crime: Q. On that evening, you had no information to indicate that Mr. Davis was in possession of a firearm; is that corre ct? A. That’s correct. Q. And you had no information indicating that he was about to distribute narcotics of any kind? A. No. Q. And you had no suspicion of any law violation? A. No. Id. at 37-38. Absent a specific and articulable factu al basis, an officer's "perception" is nothing more than "an inchoate and unparticularized suspicion or 'hunch,'" Melendez-Garcia , 28 F.3d at 1051 (internal quotation marks omitted), which cannot furnish the basis for an involuntary detention. Finally, the fact that the officers were aware of D avis' criminal record does not justify the stop: Knowledge of a person’s prior criminal involvement is not, standing alone, sufficient to c reate reasonable suspicion. United States v. Sandoval , 29 F.3d 537, 542 (10th Cir. 1994).- 10 -

Even if these factors standing alone would not just ify a Terrystop, the government urges us to uphold the detention bec ause it argues that these four factors, when taken together, created a reason able suspicion of criminal activity. See United States v. Sokolow , 490 U.S. 1, 8-10 (1989) (reasonable suspicion depends on "the totality of c ircumstances--the whole picture"; even if any one factor alone is insuffici ent to justify a stop, taken together they may suffice). The district court agr eed with this argument, concluding that Davis' evasive attitude (walking aw ay from police, dropping eye contact and keeping his hands in his p ockets) in the context of his criminal history and the high crime area gave r ise to reasonable suspicion. We disagree. An investigative detentio n will be countenanced only if the officers have a specific, articulable a nd objective factual basis to believe that the person stopped is engaged in cr iminal activity. Even considering the totality of the circumstances in th is case, the government fails to show any specific factual basis for suspec ting that a particular crime was being committed by Davis at the time he w as detained. The government argues that the officers reasonably susp ected that Davis was unlawfully carrying a firearm. However, there is n o evidence whatsoever to support such a suspicion. There was no evidence that the officers spotted a suspicious bulge in Davis' coat pockets, that Davis appeared to be- 11 -

hiding anything in his pockets, that a tipster info rmed police that Davis was armed or carrying drugs, or that Davis made any thr eatening move towards the officers. Here, the factual findings of the di strict court indicate that when Davis was instructed by the officers to stop, "he continued walking in the same direction and same manner ." (Emphasis added.) There was a similar lack of any evidence that Davis was in the process of engaging in an illegal drug or alcohol transaction. On the presen t record, therefore, we hold that the officers lacked the necessary "reason able, articulable suspicion" to justify their detention of Davis.

B. The district court also concluded that because Davi s himself removed the gun from his pocket and threw it onto the back seat of the vehicle, the weapon was in "plain view" and thus the officers' s eizure of the gun did not violate the Fourth Amendment. See United States v. Hensley , 469 U.S. 221, 235 (1985) (upholding seizure of evidence in p lain view of officers during a Terrystop). However, "[t]he first and most fundamental prerequisite to reliance upon plain view as a basis for a warrantless seizure . . . is that 'the initial intrusion which brings the police within plain view of such an article' is itself lawful." 3 Wayne R. LaF ave, Search and Seizure:- 12 -

A Treatise on the Fourth Amendment§ 7.5(a), at 575 (1996) (quoting Coolidge v. New Hampshire , 403 U.S. 443, 465 (1971)). "The [plain view] doctrine serves to supplement the prior justificati on--whether it be a warrant for another object, hot pursuit, search inc ident to lawful arrest, or some other legitimate reason for being present unco nnected with a search directed against the accused." Coolidge , 403 U.S. at 466. Here, Davis' act of removing the firearm from his coat and placing i t in plain view was a direct result of his unlawful detention. Compare Hensley , 469 U.S. at 235 (“[The] police were entitled to seize evidence reve aled in plain view in the course of the lawful stop. . . .") (emphasis added). Because Davis' detention was unlawful, and because this illegality caused the evidence to be placed in plain view, the government cannot rely on the plain view doctrine to justify the seizure of the firearm.- 13 - III. For the foregoing reasons, the judgment of the dist rict court is
REVERSED and REMANDED for further proceedings consistent with this opinion.