UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ DEON LAMON JONES, Plaintiff - Appellee,

v. JOSE MANRIQUEZ; GREGORY BLACK, Defendants - Appellants. No. 19-1144 (D.C. No. 1:17-CV -01131-CMA-SKC) (D. Colo.)

_________________________________ ORDER AND JUDGMENT *

_________________________________ Before BRISCOE , MORITZ , and CARSON , Circuit Judges.

_________________________________ Officers Jose Manriquez and Gregory Bl ack appeal the district court’s order denying their motion for summary judgm ent on Deon Jones’s 42 U.S.C. § 1983 Fourth Amendment claims. For the reas ons discussed below, we reverse. Background Around 1:30 a.m. on April 26, 2016, Jones sat in hi s car parked in a spot reserved for business in a parking garage attached to a residential building. The parking garage was marked with no-tres passing signs and was in a high-crime area specifically known for trespass violations. The officers, al so parked in the parking

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judi cata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32. 1; 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 23, 2020 Christopher M. Wolpert Clerk of Court2 garage, noticed Jones, ran his license pl ate, and learned th at his car was not registered to the address of the attached residential bu ilding. Suspecting Jones of trespass, the officers a pproached him and activated their body cameras. Jones informed Manriquez that he was waiting fo r a friend. He then started his car but turned it off after Black told him to. Black asked Jones to get out of the car, but Jones did not immediately comply. Eventually, Jone s got out of the car and kneeled next to the driver’s side door. Black and other officers then handcuffe d and arrested Jones for violating a Denver ordinance requiring compliance wi th a police officer’s lawful orders. See Denver, Colo., Rev. Mun. Code ch. 38, art. II, § 38-31(c). While Jones was handcuffed and lying next to his car, Black searched him, including by reaching into Jones’s pocket and removing a piece of pa per. Shortly thereafte r, and while Jones remained handcuffed next to his car, Ma nriquez opened the passenger-side door and looked under the seat and around the front ar ea of Jones’s car. Although officers later found that Jones was carryi ng a small amount of a suspect ed controlled substance, the city attorney ultimately de clined to prosecute him. Jones then brought this § 1983 su it against Black and Manriquez. 1 Relevant to this appeal, he claimed they violated his Fourth Amendment rights when they (1) detained him without reasonable suspic ion, (2) arrested him without probable

1 Jones included other defendants, but none are relevant to this appeal.3 cause, 2 (3) searched him, and (4) searched his car. The officers moved for summary judgment, arguing that they were entitled to qualified immunity on all four claims. The district court denied the motion with respect to each clai m. First, it found that a jury could determine that the offi cers violated the F ourth Amendment when they detained Jones because the jury could find that the officers did not reasonably suspect Jones of any crime. And the distri ct court denied qualified immunity on this claim, finding it clearly established that i nvestigative detentions require reasonable suspicion. Second, the distri ct court determined that b ecause a reasonable jury could find that the officers lacked reasonable susp icion to detain Jones, a jury could also find that the stop was consensual and that the officers’ orders were not lawful. Accordingly, the district court determined that a jury could find that the officers lacked probable cause to believe that Jone s committed any crime, including failing to obey lawful orders, and thus could determine that the officers violated the Fourth Amendment when they arrested Jones. And the district court further concluded that this right was clearly established because , under Supreme Court precedent, “officers cannot arrest an individual for failing to identify himself when the officers lack reasonable suspicion of criminal activity.” App. vol. 2, 359.

2 The first claim in Jones’ s complaint, entitled “Unl awful Seizure of Person,” includes allegations of both an unlawful se izure and an unlawful arrest. App. vol. 1, 19. Because the standards fo r determining whether a se izure and an arrest are different, we analyze these al legations as two separate claims, as do the parties. See United States v. Sokolow , 490 U.S. 1, 7 (1989) (notin g that seizures require reasonable suspicion); Koch v. City of Del City , 660 F.3d 1228, 1239 (10th Cir. 2011) (noting that arrests requi re probable cause).4 Third, the district court found that be cause a reasonable jury could find that Jones’s arrest violated the Fourth Amendmen t, it could also find that the search was unlawful as it would not be incident to a la wful arrest. And the district court denied qualified immunity on this claim, finding it clearly established th at officers may not conduct a search pursuant to an unlawful arre st. Finally, the district court determined that a reasonable jury could find that Ma nriquez’s belief that Jones was dangerous was unreasonable and thus coul d find that the search of Jones’s car was unlawful. And the district court denied qualified im munity on this claim as well, finding it clearly established that without a belief that a detainee is dangerous, an officer cannot search his or her car. The officers appeal. Analysis When reviewing a summary-judgment order denying qualified immunity, we have jurisdiction to review “abstract issues of law” but not the “district court’s factual conclusions.” 3 Fancher v. Barrientos , 723 F.3d 1191, 1198 (10th Cir. 2013)

3 The district court stated that it did not make inde pendent factual findings at the summary-judgment stage and instead incorporated the findings from the magistrate judge’s recommendation on the officers’ motion to dismiss—even though the standards for determining facts at these two stages are different. See Bell v. Fur Breeders Agric. Co-op ., 348 F.3d 1224, 1230 (10th Cir. 2003) (reviewing “the difference in the standards applied to” mo tions to dismiss and motions for summary judgment). We note that the better practice is for di strict courts to explicitly set forth the universe of facts they rely on wh en granting or denying summary judgment on qualified-immunity grounds. See Lewis v. Tripp , 604 F.3d 1221, 1226 (10th Cir. 2010). But in this particular case, despite the district cour t’s statement that it was not making separate factua l findings at the summary-judgmen t stage, the analysis section of its summary-judgment order includes f actual recitations. And importantly, the parties do not dispute the dist rict court’s consideration of any facts relevant to our decision here. For example, Jones notes that the district court considered the facts5 (second quoting Fogarty v. Gallegos , 523 F.3d 1147, 1154 (10th Cir. 2008)). In doing so, we review “the district cour t’s grant of summary judgment de novo, employing the same legal standard a pplicable in the district court.” Thomson v. Salt Lake Cty. , 584 F.3d 1304, 1311 (10th Cir. 2009). Under that st andard, “we must grant qualified immunity unless [Jones] can show (1) a reasonable jury could find facts supporting a violation of a constitutional ri ght, which (2) was clea rly established at the time of the [officers’] conduct.” Henderson v. Glanz , 813 F.3d 938, 952 (10th Cir. 2015). Although the office rs’ assertion of qualified immunity alters Jones’s burden at summary judgment, we “still view the facts in the light most favorable to [Jones] and resolve all factua l disputes and reasonable in ferences in [his] favor.” Id. I. Constitutional Violation Jones alleges four separate Fourth Amendment violations: an unreasonable investigative detention, arrest, search of his person, and search of his car. As the analysis of each alleged violation turns on a separate standard, we consider each separately. First, the investigative detention was unr easonable if the officers did not have reasonable suspicion. Sokolow , 490 U.S. at 7. That is , Manriquez and Black must have witnessed an “objective manifestation that [Jones wa s], or [was] about to be, engaged in criminal activity.” United States v. Cortez , 449 U.S. 411, 417 (1981).

that he was “parked in a parking spot re served for business” and that the area surrounding the parking garage is “known fo r trespass.” Aplee. Br. 27. And in so doing, he does not dispute these facts.6 Reasonable suspicion “contains two elements ”: (1) “the assessme nt must be based upon all the circumstances” and (2) that asse ssment “must raise a suspicion that the particular individual being stop ped is engaged in wrongdoing.” Id. at 418. But this level of suspicion is not hi gh—“[a]ll reasonable suspici on requires is ‘some minimal level of objective justification.’” U.S. v. Albert , 579 F.3d 1188, 1197 (10th Cir. 2009) (quoting Sokolow , 490 U.S. at 7). Manriquez a nd Black argue they reasonably suspected Jones of trespass in violati on of both Denver and Colorado law because they reasonably suspected th at he did not have permi ssion to be in the parking
garage. See Colo. Rev. Stat. § 18-4-503(1); Denve r, Colo., Rev. Mun. Code ch. 38, art. IV, § 38-115. Thus, to ju stify the investigative detenti on of Jones, the totality of the circumstances must have supported a suspicion that Jones did not have permission to be in the parking garage. Here, before the officers detained J ones, they had observed the following: Jones sat in a car around 1:30 a.m. parked in a parking spot reserved for business. The parking garage was attached to a reside ntial building in an area with high crime rates and a history of trespass, and the ga rage was marked with no-trespassing signs. The car was not registered to the address of the residential build ing attached to the parking garage. When the officers approached Jones, he told them he was waiting for a friend. Thus, to meet his burden on appeal, Jones must demonstrate that these facts, taken as a whole, do not give rise to reasonable suspic ion that he was trespassing. See Cortez , 449 U.S. at 417 (1981) (noting that when conducting reasonable-suspicion7 analysis, “the totality of the circumstances—the whole pi cture—must be taken into account”). In attempting to carry his burden, Jones first argues that the officers’ suspicion was not reasonable because it was not particul arized to him. Specifically, he contends that the officers’ suspicion stemmed entirely from the area ’s history of trespass and high crime rate as opposed to facts specific to Jones. It is true that presence in a high-crim e area alone is insu fficient to establish reasonable suspicion. Illinois v. Wardlow , 528 U.S. 119, 124 (2 000). But it is a “relevant contextual consideration[].” Id . And here, the officers had more than just knowledge that Jones was in a high-crime area. Jones was in the garage around 1:30

a.m. See United States v. McHugh , 639 F.3d 1250, 1257 (10t h Cir. 2011) (“[T]he fact that an incident occurred late at night or early in the morning is relevant to the [reasonable-suspicion] analysis.”). Moreover, Jones was parked in a reserved parking spot and the officers determ ined that Jones’s car was not registered to the address associated with the parking garage—both f acts particularized to Jones. And although the area’s history of trespa ss would be insufficient to establish reasonable suspicion on its own, taken as a whole, these fact s suggest a particular ized and reasonable suspicion that Jones lacked permi ssion to be in the parking garage. See Cortez , 449 U.S. at 417. Next, Jones argues that the officers did not have reasonable suspicion because his conduct was innocent. But when dete rmining whether “reasonable suspicion exists,” an officer “need not rule out the possibility of innocent conduct.” United8 States v. Arvizu , 534 U.S. 266, 277 (2002); see also Sokolow , 490 U.S. at 9–10 (“[T]he relevant inquiry is not whet her particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that atta ches to particular types of noncriminal ac ts.” (quoting Illinois v. Gates , 462 U.S. 213, 243 n.13 (1983))). A ccordingly, the officers were not required to rule out the possibility that J ones had permission to be in the garage in order to have had reasonable suspicion that he was trespassing. Instead, even if the officers determined that Jones’s conduct was “ambiguous and susceptible of an innocent explanation,” they were nevertheless permitted to “detain [Jones] to resolve the ambiguity.” Wardlow , 528 U.S. at 126. Jones further argues that his explana tion that he was waiting for a friend should have dissipated the officers’ purpor ted reasonable suspic ion. Jones does not contend that law enforcement must always cr edit a suspect’s expl anation. Instead, he argues that in cases where la w enforcement appropriately discredited an individual’s explanation, there was good reason to doubt that explanation. See, e.g. , District of Columbia v. Wesby , 138 S. Ct. 577, 587 (2018) (d etermining that law enforcement properly discredited partygoers ’ explanation for their lawf ul presence in house where partygoers “gave vague and im plausible responses” to po lice questioning, “claimed the event was a bachelor party, but . . . could [not] identify the bachelor,” and “scattered at the sight of uniformed officers”)

. Here, Jones continues, the officers had no reason to disbelieve him. The officers , on the other hand, argue that they are “simply not required to accept a suspect’s explanation of his conduct at face value.” Aplt. Br. 27.9 But the appropriate inquiry is not wh ether and when law enforcement must believe suspects. Instead, th e appropriate reasonable-susp icion analysis considers Jones’s explanation as one fa ct among the others that comp rise the totality of the circumstances. See Arvizu , 534 U.S. at 274 (emphasizi ng that viewing facts “in isolation from each other does not take into account the ‘totality of the circumstances’”); cf. Wesby , 138 S. Ct. at 588 (noting that when determining whether law enforcement had probable cause, courts should consider “all of the surrounding circumstances, including the plausi bility of [any] explanation”). And the totality of the circumstances here—including Jones’s explanation—suggest that the officers reasonably suspected Jones of trespassing. We thus reject Jones’s argument that he “credibly explained his pres ence in a way that vitiated any possible suspicion for trespassing.” Aplee. Br. 15. Considering the totality of the circumst ances—the time of day, the high-crime area with a specific history of trespass ing, the reserved parking spot, the notrespassing signs, and the addr ess registered to Jones’s car—we determine that the officers reasonably suspected that Jones was trespassi ng, even though Jones may have had an innocent or legitimate purpose fo r being in the garage. As a result, the investigative detention did not violate his Fourth Ame ndment right to be free from unreasonable seizures. See Sokolow , 490 U.S. at 7; United States v. VillagranaFlores , 467 F.3d 1269, 1276 (10th Cir. 2006) (fi nding that law enforcement legally detained suspect when they had reasonable suspicion to believe he was trespassing).10 Our determination that the officers ha d reasonable suspicion leads to our conclusions on the constitutiona lity of Jones’s arrest and the two searches. Regarding the arrest, the officers assert that (1) because they had r easonable suspicion to detain Jones, Black’s orders to Jones were lawful and (2) by not complying with these orders, Jones violated § 38.31 (c), the Denver ordinance prohibiting the “fail[ure] to obey a lawful order of a police officer if su ch failure interferes with or hinders such police officer in the discharg e of his [or her] official duties.” In response, Jones argues only that Black’s orders were not lawful because Black lacked reasonable suspicion to detain him in th e first place. But as just ou tlined, the officers did have reasonable suspicion to detain Jones. And Jones does not as sert that Black’s orders were unlawful for any other reason. Because the officers ther efore had “probable cause to believe that [Jones had] committed even a very minor criminal offense in [their] presence,” they were permitted to arrest him without violating the Fourth Amendment. Atwater v. City of Lago Vista , 532 U.S. 318, 354 (2001). And further, because “a lawful arrest, standing alone, au thorizes a search” of the arrestee, the officers’ search of Jones af ter the arrest did not violat e Jones’s Fourth Amendment right to be free from unreasonable searches. Michigan v. DeFillippo , 443 U.S. 31, 35 (1979). Finally, Jones argues that Manriquez violated his Fourth Amendment rights by searching his car because the stop leading to the search was not “justified at its inception.” Aplee. Br. 25 (quoting United States v. King , 990 F.2d 1552, 1557 (10th Cir. 1993)). But because the officers had r easonable suspicion to detain Jones, the11 stop was “justified at its inception.” Id. (quoting King , 990 F.2d at 1557). Accordingly, this argument fails. 4 We thus find that Jones did not meet his burden of demonstrating that Manriquez violated hi s constitutional rights by searching his car.
See Henderson , 813 F.3d at 952. In sum, we determine that the officers had reasonable suspicion that Jones was trespassing, such that their investigative detention of Jones did not violate his Fourth Amendment rights. See Sokolow , 490 U.S. at 7. We also determine that when Jones did not comply with Black’s orders to exit his car, the officers had probable cause that Jones violated a Denver ordinance, such that Jones’ s arrest did not violate his Fourth Amendment rights. See Atwater , 532 U.S. at 354. Further, we determine that the officers’ search of Jones was a lawful search incident to arrest under the Fourth Amendment. See DeFillippo , 443 U.S. at 35. Finally, we determine that because the stop was justified at its incep tion, Jones did not demonstrat e that Manriquez violated his Fourth Amendment rights when he searched Jones’s car. See King , 990 F.2d at 1557. II. Clearly Established Law Even if we were to assu me that Jones established a constitutional violation on any of his four claims, we would nevert heless grant qualified immunity because

4 Jones does not argue that the search violated the standard set forth by Arizona v. Gant , which permits “[p]olice [to] sear ch a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasona ble to believe the vehicle contains evidence of the o ffense of arrest.” 556 U.S. 332, 351 (2009). We therefore do not consider any such argument.12 Jones does not carry his burden of showing th at the law was clearl y established at the time of the incident. See Henderson , 813 F.3d at 952. A right is clearly established if, at the time the right was violated, it was “sufficiently clear that every reasonable official would have understood that wh at he is doing violates that right.” Mullenix v.
Luna , 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Reichle v. Howards , 566 U.S. 658, 664 (2012)). Stated differently, Jone s must show that no reasonable officer facing the same circumstances as the officers here could have determined that that it was constitutional to detain, arrest, or sear ch Jones or his car. To do so, Jones must (1) “identif[y]” a factually similar “S upreme Court or published Tenth Circuit decision,” (2) show that “the clearly established weight of authority from other courts [has] found the law to be as [he] maintains,” Perry v. Durborow , 892 F.3d 1116, 1123 (10th Cir. 2018) (quoting Quinn v. Young , 780 F.3d 998, 1005 (10th Cir. 2015)), or (3) show that “the unlawfulness of the [officers’] c onduct is sufficiently clear even though existing precedent doe s not address similar circumstances,” Wesby , 138 S. Ct. at 590. Regarding the first allege d constitutional violation, Jones first looks to incircuit law and cites to a single Tenth Circuit opinion— United States v. Dell , 487 F. App’x 440 (10th Cir. 2012) (unpublished)—to support his argument that the officers violated his clearly established ri ghts when they de tained him. But Dell is too factually distinct to clearly establish law for this ca se. There, the officer observed individuals in a purportedly high-crime ar ea looking into a car’s windows and then walking away from the car after noticing the officer approach. Dell , 487 F. App’x at13 444. But the Dell district court gave little weight to the officer’s high-crime characterization, and the Dell reviewing court deferred to that factual finding. Id. at 445. Further, Dell minimized the fact that the de fendant walked away from the officer. Id. at 445. Thus, that reasonable-suspic ion analysis largely turned on the officer’s observation of individu als looking into a parked car. See id. at 445–46. Accordingly, Dell is too dissimilar to be useful here, and we therefore do not find that Tenth Circuit law clearly establis hes Jones’s right to be free from an unreasonable investigative deten tion in these circumstances. See Mullenix , 136 S. Ct. at 308. Next, Jones cites to four out-of-circui t cases for the broad proposition that “momentar[y] observa[tion of] innocuou s behavior, that could under certain circumstances also be indica tion of illicit activity,” does not give rise to reasonable suspicion. Aplee. Br. 29. But the clea rly-established-law analysis “must be undertaken in light of the specific cont ext of the case, not as a broad general proposition.” Mullenix , 136 S. Ct. at 308 (quoting Brosseau v. Haugen , 543 U.S. 194, 198 (2004) (per curiam)). And this principle is too general to clea rly establish Jones’s right here. Moreover, the four cases Jones relies on are not factually similar to the circumstances faced by the offi cers here, and “[t]he dis positive question is ‘whether the violative nature of particular conduct is clearly established.’” Id. (emphasis added) (quoting Ashcroft v. al-Kidd , 563 U.S. 731, 742 (2011)); see also United
States v. Lowe , 791 F.3d 424, 434–35 (3d Cir. 2015) (finding no reasonable suspicion to detain individual wher e officers received anonymous tip that someone matching14 individual’s description in high-crime area had gun); United States v. Hill , 752 F.3d 1029, 1029–31 (5th Cir. 2014) (finding poli ce did not have reasonable suspicion to detain driver where driver was parked in high-crime area around 11:00 p.m. and police saw his passenger leave and walk quickly toward ap artment building); United States v. Johnson , 620 F.3d 685, 688–89 (6th Ci r. 2010) (finding no reasonable suspicion to detain man where officers received anonymous call about “suspicious people around a blue Cadillac,” located Ca dillac in high-crime area, then saw man carrying bag walking past Cad illac toward different car); Patterson v. City of Cleveland , No. 97-4226, 1999 WL 68576, at *6 (6th Cir. Jan. 21, 1999) (unpublished) (finding officer did not have reasonable su spicion when she saw two men possibly exchanging something and then moving apart upon seeing officer). Thus, these four cases do not pr ovide clearly established law. We further reject Jones’s argument that the officers’ “conduct was so obviously unconstitutional that [Jones] need not” cite to a factually similar case. Aplee. Br. 32. To be sure, there are cons titutional violations that are so “obvious” that “the unlawfulness of the officer’s c onduct is sufficiently clear even though existing precedent does not addr ess similar circumstances.” Wesby , 138 S. Ct. at 590 (2018) (first quoting Brosseau , 543 U.S. at 199); see also Colbruno v. Kessler , 928 F.3d 1156, 1164–66 (10th Cir. 2019) (finding officers obviously violated individual’s due-process rights by requiring pretrial deta inee to walk naked through hospital and denying qualified immunity even in absence of factually similar case). But such an analysis typically does not apply to an officer’s judgment that “turn[s] on the15 assessment of probabilities in particular factual contexts.” Wesby , 138 S. Ct. at 590 (alteration in original) (quoting Gates , 462 U.S. at 232) (explaining why plaintiffs needed factually similar cases to clearly establish that officers did not have probable cause to arrest). And “reas onable suspicion . . . is not ‘readily, or even usefully, reduced to a neat se t of legal rules.’” Sokolow , 490 U.S. at 7 (quoting Gates , 462 U.S. at 232); see also United States v. Cortez , 449 U.S. at 418 (noting that reasonable suspicion “does not deal with hard certain ties, but with probabilities”). Thus, any right that the officers may have violated by detaining Jones was not so obvious that factually similar cases are unnecessary to clearly establish the right. Finally, Jones does not argue for any cl early established la w on his remaining three claims. We therefore decline to cons ider this prong of the qualified-immunity test for those three claims. Conclusion

Jones does not meet his burden of s howing that the officers violated his constitutional rights. And even if he did, he does not meet his burden of showing that any violated right was clearly established at the time of the incident. Thus, we hold16 that the officers are entitled to qualified i mmunity and reverse th e district court’s order concluding otherwise.

Entered for the Court
Nancy L. Moritz Circuit Judge