Full Opinion (html_with_citations)

Appellate Case: 21-6149      Document: 010110786445       Date Filed: 12/20/2022    Page: 1
                                                                                   FILED
                                                                       United States Court of Appeals
                                        PUBLISH                                Tenth Circuit

                       UNITED STATES COURT OF APPEALS                       December 20, 2022

                                                                           Christopher M. Wolpert
                              FOR THE TENTH CIRCUIT                            Clerk of Court
                          _________________________________

  UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

  v.                                                          Nos. 21-6149
                                                      (D.C. No. 5:13-CR-00231-F-1)
  DAVID ASHARD SAMILTON,                                      (W.D. Okla.)

        Defendant - Appellant.

  –––––––––––––––––––––––––––––––––––

  UNITED STATES OF AMERICA,

        Plaintiff - Appellee,
                                                              No. 21-6150
  v.                                                  (D.C. No. 5:20-CR-00284-F-1)
                                                              (W.D. Okla.)
  DAVID ASHARD SAMILTON,

        Defendant - Appellant.
                       _________________________________

 Submitted on the briefs:*

 Susan M. Otto, Federal Public Defender and Laura K. Deskin, Research & Writing
 Specialist, Oklahoma City, Oklahoma, on the brief for Defendant – Appellant.

 Robert J. Troester, U.S. Attorney and David R. Nichols, Jr, Assistant U.S. Attorney,
 Oklahoma City, Oklahoma, on brief for Plaintiff – Appellee.


       *
         After examining the briefs and appellate record, this panel has determined
 unanimously to honor 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
 submitted without oral argument.
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                          _________________________________

 Before MATHESON, CARSON, and ROSSMAN, Circuit Judges.

                          _________________________________

 MATHESON, Circuit Judge.
                    _________________________________

       Patrol Sergeant Mark Garrett seized a firearm from underneath David

 Samilton’s passenger seat during a vehicle stop. Based on the firearm, (1) a jury

 convicted Mr. Samilton of being a felon in possession, and (2) the district court

 revoked his supervised release in an unrelated case. On appeal in both cases, Mr.

 Samilton challenges the district court’s denial of his motion to suppress the firearm.1

 Exercising jurisdiction under
28 U.S.C. § 1291
, we affirm.

                                   I. BACKGROUND

                                   A. Factual History2

       On September 13, 2020, the Oklahoma City Police Department received a

 911 call from a Rodeway Inn hotel clerk. The clerk said a four-door, dark-colored

 car had been in the parking lot for several hours, and a Black female driver and a

 white, bearded male passenger were sitting inside. The clerk also said the man had a



       1
        Mr. Samilton and the Government each filed identical briefs in both cases.
 See Case Nos. 21-6149; 21-6150. Because the record is more comprehensive in Case
 No. 21-6150, we cite to the record in that case.
       2
          Because Mr. Samilton appeals the denial of his motion to suppress, we state
 the facts in the light most favorable to the district court’s decision. See United States
 v. Cortez,
965 F.3d 827, 833
 (10th Cir. 2020).

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 “pistol[] in his hand and was waving it around inside the car,” ROA, Vol. III at 10,

 and had been knocking on hotel room doors. The clerk did not believe the man was a

 hotel guest.

          Sergeant Garrett and several other officers3 were dispatched to the scene. At

 the suppression hearing, Sergeant Garrett said the Rodeway Inn was located in a high

 crime area. When he worked there, he sometimes encountered three to five armed

 robberies per week. The 911 caller’s report about the male passenger’s open display

 of a firearm “[wa]s very uncommon” and troubling to him. Id. at 13.

    Initial Search

          When Sergeant Garrett arrived, he found a black sedan in the hotel parking lot

 with a Black female driver and a bearded male passenger.4 He activated his body

 camera and approached the sedan. Bodycam footage at 00:08-00:33. While walking

 toward the car, he observed the passenger make “furtive movements . . . towards the

 floorboard area towards his knees, multiple hand movements [sic],” which he

 interpreted as “trying to hide a firearm.” ROA, Vol. III at 22. He also heard a noise

 that sounded “like a firearm or a magazine that goes into a firearm had been thrown

 from the vehicle and hit the pavement.” Id. at 19.


          3
         In its findings of fact, the district court observed that although Sergeant
 Garrett “was not the only officer involved, . . . he was certainly, by any standard, the
 principal officer involved.” ROA, Vol. I at 61. Sergeant Garrett conducted the
 search that found the gun.
          4
              The only discrepancy from the 911 caller’s report was that Mr. Samilton is
 Black.

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       Sergeant Garrett opened the passenger door and asked what had been tossed

 out the window. Bodycam footage at 00:42-00:44. The passenger denied tossing

 anything, id. at 00:44-00:46, and showed Sergeant Garrett a hotel room key and his

 driver’s license, id. at 01:26-01:29, which identified him as David Samilton. When

 Sergeant Garrett asked whether he had any guns, Mr. Samilton said no. Id. at

 01:29-01:31. After receiving consent, Sergeant Garrett frisked Mr. Samilton but did

 not find a weapon. Id. at 01:33-01:54. Sergeant Garrett then walked Mr. Samilton to

 his police vehicle and directed him to sit in the back seat. Id. at 02:08-02:40.

       In the police vehicle, Sergeant Garrett asked Mr. Samilton whether there was a

 gun in the sedan. Id. at 02:50-51. Mr. Samilton gave evasive responses—he said

 “you checked me” and “I don’t have no gun,” but avoided stating directly whether

 there was a gun in the vehicle. Bodycam footage at 02:52-03:05. Finally, Sergeant

 Garrett said: “[L]isten to the question I’m asking. Is there a gun inside that car?”

 Id. at 03:08-03:13. Mr. Samilton responded, “no, not to my knowledge.” Id. at

 03:12-03:14.

       Sergeant Garrett testified that this interaction made him suspicious. In his

 experience,5 individuals who are authorized to carry firearms will freely disclose the

 presence of a firearm, but individuals who carry firearms illegally often refuse to




       5
         Sergeant Garrett testified that he had almost a decade of law enforcement
 experience.

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 admit the presence of a firearm and “separate[] themselves from wherever the gun

 is.” ROA, Vol. III at 21-22.

       After leaving Mr. Samilton in the police vehicle, Sergeant Garrett returned to

 the sedan and asked the female driver whether there was a gun in the car. Bodycam

 footage at 03:32-03:33. After prevaricating, she said there was a gun “on the right

 side of the door,” referring to the passenger side of the car. Bodycam footage at

 04:13-04:17. Sergeant Garrett asked if he could look in the car, and the driver said,

 “I don’t care.” Id. at 04:20-04:22. Sergeant Garrett then examined the area near the

 passenger seat and promptly found a live 9-millimeter round on the floor. See ROA,

 Vol. III at 26-27. For the next several minutes, Sergeant Garrett inspected the

 passenger seat and the area outside the sedan. See bodycam footage at 04:22-05:55.

 He found no gun.

    Extended Search

       Sergeant Garrett next walked back to the police vehicle and asked Mr.

 Samilton where he tossed the gun. Id. at 06:03-06:06. Mr. Samilton again denied

 disposing of a gun. Id. at 06:07-06:21. Sergeant Garrett continued inspecting the

 area around the sedan and the interior of the car. Id. at 06:31-08:06.

       About eight minutes into the stop, Sergeant Garrett returned to the police

 vehicle, placed Mr. Samilton in handcuffs, and frisked him again, but did not find a

 firearm. Id. at 08:16-10:04. More searching ensued as Sergeant Garrett once again

 examined the interior of the sedan and the surrounding area. Id. at 10:50-12:30.



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       After again finding no firearm, Sergeant Garrett began to enter Mr. Samilton’s

 and his female companion’s information into a police database. Id. at 12:43. He also

 asked Mr. Samilton whether he was a felon, and Mr. Samilton confirmed that he was.

 Id. at 12:49-52.

    Final Search

       After he finished entering Mr. Samilton’s information, about nineteen minutes

 into the stop, Sergeant Garrett resumed searching for the firearm. Id. at 18:59.

 Shortly thereafter, Sergeant Garrett found a firearm that had been concealed under

 the passenger seat of the sedan. Id. at 19:34-19:55.

                                 B. Procedural History

       A grand jury indicted Mr. Samilton for being a felon in possession of a

 firearm. He filed a motion to suppress the firearm, arguing that Sergeant Garrett had

 unreasonably prolonged the traffic stop in violation of the Fourth Amendment.6

 After holding a hearing, the district court concluded that (1) the traffic stop was

 justified at its inception and (2) reasonable suspicion supported Sergeant Garrett’s

 decision to extend the stop. The court also found no factual nexus between Mr.

 Samilton’s detention and the seizure of the firearm. It explained that the sedan



       6
         Mr. Samilton also moved to suppress the statements he made to Sergeant
 Garrett before Sergeant Garrett issued any Miranda warnings, and the district court
 suppressed those statements. See Aplt. Br. at 16-17. But the fruits of un-Mirandized
 statements are not per se inadmissible, see United States v. Patane,
542 U.S. 630, 639
 (2014), and Mr. Samilton does not raise a Miranda issue on appeal. Aplt. Br.
 at 16-17.

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 belonged to the female driver, who consented to the search, so the discovery of the

 firearm did not result from any alleged violation of Mr. Samilton’s rights. The court

 thus denied Mr. Samilton’s motion to suppress the firearm.

       The case proceeded to trial, and the jury found Mr. Samilton guilty. The

 district court sentenced Mr. Samilton to 120 months in prison. The court also

 revoked his supervised release term on an unrelated offense and imposed an

 additional 14-month sentence.

                                   II. DISCUSSION

       The timeline of Sergeant Garrett’s interactions with Mr. Samilton can be

 divided into three distinct periods, as measured by the bodycam timestamps:

    1. Initial search, 00:00 to 05:55—Sergeant Garrett’s first encounter with Mr.
       Samilton and initial search of the vehicle and surrounding area.

    2. Extended search, 05:55 to 12:52—Sergeant Garrett’s repeated searches of
       Mr. Samilton’s person, the vehicle, and the surrounding area until he learned
       Mr. Samilton was a felon.

    3. Final search, 12:52-19:49—Sergeant Garrett’s communications with dispatch
       and further searches until he found the firearm.

       Mr. Samilton does not dispute that reasonable suspicion supported the initial

 search and the final search. Aplt. Br. at 15-16. He thus focuses on the extended

 search period, the approximately seven-minute window between (1) Sergeant

 Garrett’s concluding his initial search of the sedan and surrounding area, and (2) his

 learning that Mr. Samilton was a felon. Id.; bodycam footage at 05:55-12:52.

       Mr. Samilton argues that after Sergeant Garrett’s initial search failed to

 produce a firearm, “any reasonable suspicion that criminal activity was afoot had

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 dissipated.” Aplt. Br. at 13.7 “Once officers found no firearm after a thorough

 search,” Mr. Samilton contends, “he should have been permitted to go on his way.”

 Id. at 17. He argues the district court thereby erred in denying his motion to suppress

 the firearm. Id. at 14.

                                 A. Standard of Review

       “In reviewing the denial of a motion to suppress, we accept the district court’s

 factual findings unless clearly erroneous . . . .” United States v. Hammond,
890 F.3d 901, 905
 (10th Cir. 2018). In conducting our review, we “view the evidence in the

 light most favorable to the determination of the district court.” United States v.

 Johnson,
43 F.4th 1100, 1107
 (10th Cir. 2022) (quotations omitted).

                                 B. Legal Background

    Investigative Detentions

       The Fourth Amendment protects individuals from unreasonable seizures.

 U.S. Const. amend. IV.8 Evidence collected as part of an unconstitutional seizure is

 thus generally inadmissible. See Terry v. Ohio,
392 U.S. 1, 29
 (1968).

       “This court has recognized three types of police-citizen encounters:

 (1) consensual encounters which do not implicate the Fourth Amendment;



       7
        Because Mr. Samilton’s brief does not contain internal pagination, we count
 page numbers from the beginning of the document.
       8
         Through its incorporation in the Fourteenth Amendment, the Fourth
 Amendment applies to searches and seizures conducted by state officers. See Mapp v.
 Ohio,
367 U.S. 643, 655
 (1961).

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 (2) investigative detentions which are Fourth Amendment seizures of limited scope

 and duration and must be supported by a reasonable suspicion of criminal activity;

 and (3) arrests, the most intrusive of Fourth Amendment seizures and reasonable only

 if supported by probable cause.” Hammond,
890 F.3d at 904
 (quotations omitted).

        The second category—investigative detentions, commonly known as Terry

 stops—includes detention of individuals in vehicles. To be constitutional, the

 detention must be reasonable as to both the driver and any passengers. United States

 v. Nava-Ramirez,
210 F.3d 1128, 1131
 (10th Cir. 2000).9 Thus, although “a

 defendant may lack the requisite possessory or ownership interest in a vehicle to

 directly challenge a search of that vehicle, the defendant may nonetheless contest the

 lawfulness of his own detention and seek to suppress evidence found in the vehicle as

 the fruit of the illegal detention.”
Id.

        A Terry stop is constitutional if “the stop was justified at its inception” and

 “the officer’s actions during the detention were reasonably related in scope to the

 circumstances which justified the interference in the first place.” Vasquez v. Lewis,
834 F.3d 1132, 1136
 (10th Cir. 2016) (quotations omitted). A detention becomes


        9
         Although the detention of the individuals in this case was not a routine
 highway traffic stop based on a traffic violation, both parties cite cases discussing
 Terry traffic stops in their briefs. E.g., Aplt. Br. at 14-15; Aplee. Br. at 16-17. We
 have routinely applied Terry and its progeny to situations where suspects were
 detained in non-moving vehicles in parking lots. In United States v. Mosley, for
 example, police received a report that two individuals had a gun in a vehicle in a
 parking lot.
743 F.3d 1317, 1321
 (10th Cir. 2014). Officers approached the car and
 detained the passengers.
Id. at 1321-22
. We assessed the reasonableness of the
 detention and subsequent search under Terry stop principles.
Id. at 1328
.

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  unconstitutional if it is unreasonably prolonged. Valid Terry stops “must be

  temporary, lasting no longer than necessary to effectuate the purpose of the stop.”
Id.
 If an officer “observes specific and articulable facts supporting a reasonable

  suspicion that [an occupant of the vehicle] is engaged in illegal activity,” the officer

  may extend the stop beyond its initial scope. United States v. Cash,
733 F.3d 1264, 1274
 (10th Cir. 2013); see also United States v. Lopez-Martinez,
25 F.3d 1481, 1487

  (10th Cir. 1994) (suspicious behavior by a vehicle’s passenger can give rise to

  reasonable suspicion).

        If we conclude that an officer had sufficient reasonable suspicion to extend a

  Terry stop, we must then “examine whether the [officer] diligently pursued a means

  of investigation that was likely to confirm or dispel [his] suspicions quickly, during

  which time it was necessary to detain the defendant.” United States v. Goebel,
959 F.3d 1259, 1268
 (10th Cir. 2020) (quoting United States v. Sharpe,
470 U.S. 675, 686

  (1985)).

     Reasonable Suspicion

        The Fourth Amendment permits a police officer to “stop and briefly detain a

  person for investigative purposes if the officer has a reasonable suspicion supported

  by articulable facts that criminal activity ‘may be afoot.’” United States v. Sokolow,
490 U.S. 1, 7
 (1989) (quoting Terry,
392 U.S. 1 at 30
). Although reasonable

  suspicion must be more than an “inchoate and unparticularized suspicion or hunch,”

  Alabama v. White,
496 U.S. 325, 329
 (1990) (quotations omitted), “it is not, and is

  not meant to be, an onerous standard,” Shaw v. Schulte,
36 F.4th 1006
, 1014

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  (10th Cir. 2022) (quotations omitted). “[T]he level of suspicion required is

  considerably less than proof by a preponderance of the evidence or that required for

  probable cause.” United States v. Chavez,
660 F.3d 1215, 1221
 (10th Cir. 2011)

  (quotations and alterations omitted).

        “Reasonable suspicion is an objective standard,” and we “inquire[ ], based on

  the totality of circumstances, whether the facts available to the detaining officer, at

  the time, warranted an officer of reasonable caution in believing the action taken was

  appropriate.” Cash,
733 F.3d at 1273
 (quotations omitted). The detaining officer

  need only articulate “some minimal level of objective justification” for the detention.

  Sokolow,
490 U.S. at 7
 (quotations omitted). Even if it is more likely that an

  individual is not involved in criminal activity, an officer still may have reasonable

  suspicion to stop and detain the individual. See United States v. McHugh,
639 F.3d 1250, 1256
 (10th Cir. 2011). “To satisfy the reasonable suspicion standard, an

  officer need not rule out the possibility of innocent conduct, or even have evidence

  suggesting a fair probability of criminal activity.” United States v. Pettit,
785 F.3d 1374, 1379
 (10th Cir. 2015) (quotations omitted).

        “Furtive movements, nervousness, and the fact that conduct occurs in an area

  known for criminal activity are all appropriate factors to consider in determining

  whether reasonable suspicion exists.” United States v. DeJear,
552 F.3d 1196, 1201

  (10th Cir. 2009). So too are “vague, inconsistent or evasive answers” to an officer’s

  logical questions. United States v. Simpson,
609 F.3d 1140, 1150
 (10th Cir. 2010).

  And an officer’s observation of a vehicle occupant “throwing an object out of the

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  [vehicle’s] window” may also contribute to the totality of the circumstances giving

  rise to reasonable suspicion. See United States v. Potter,
218 F. App’x 809, 814

  (10th Cir. 2007) (unpublished) (cited for persuasive value under Fed. R. App. P.

  32.1; 10th Cir. R. 32.1(A)).10

                                       C. Analysis

        Mr. Samilton asserts there was no reasonable suspicion that he was involved in

  criminal activity after Sergeant Garrett’s initial search of the sedan and surrounding

  area failed to produce a firearm. Aplt. Br. at 15-16. He argues Sergeant Garrett

  unconstitutionally prolonged the Terry stop during the extended search between

  05:55 and 12:52 on the bodycam footage.
Id.
 We disagree and affirm.

     Reasonable Suspicion Developed During the Initial Search to Extend
     the Stop - 00:00 to 05:55

        When Sergeant Garrett first approached the sedan, he heard a noise that

  sounded like a gun or magazine hitting the pavement. He also saw Mr. Samilton


        10
           Other circuits have held that someone throwing objects into or out of a
  vehicle can contribute to reasonable suspicion or probable cause. See United States
  v. Christian,
187 F.3d 663, 668
 (D.C. Cir. 1999) (agreeing with the district court that
  reasonable suspicion exists when someone “throws something into a car”
  immediately upon seeing an officer in “an area notorious for drug selling and stolen
  property”); Riley v. City of Montgomery,
104 F.3d 1247, 1252
 (11th Cir. 1997)
  (determining probable cause supported by, among other things, the car passenger
  “throwing things . . . out of the window of the car”); United States v. Allen,
675 F.2d 1373, 1383
 (9th Cir. 1980) (“The reasonable suspicion to stop ripened into probable
  cause to search and arrest when the crew of [a ship] was observed throwing boxes of
  cargo overboard and when the [ship] failed to respond to further communications or
  to stop.”). Here, Officer Garrett claims he heard, rather than saw, Mr. Samilton
  throw something out the window, which we view as a relevant part of the totality of
  the circumstances.

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  making furtive movements consistent with trying to hide something. From that

  moment, Sergeant Garrett had reason to suspect that Mr. Samilton had hidden

  something, either by stowing it within the sedan or discarding it outside.

  See DeJear,
552 F.3d at 1201
 (furtive movements contribute to reasonable

  suspicion); Potter,
218 F. App’x at 814
 (throwing an object out of a vehicle window

  contributes to reasonable suspicion). Given the 911 caller’s report that the male

  passenger had a gun, Sergeant Garrett also had reasonable suspicion that Mr.

  Samilton had hidden a firearm.

        Sergeant Garrett pursued this reasonable suspicion by frisking Mr. Samilton,

  questioning the driver about whether there was a gun in the car, and asking her

  permission to search the passenger side—actions which Mr. Samilton concedes were

  part of the initial, valid Terry stop. See Aplt. Br. at 15. Sergeant Garrett then had

  two additional reasons to believe there was a gun nearby: (1) the driver admitted

  there was a gun on the passenger side of the car, and (2) Sergeant Garrett found a live

  9-millimeter round on the floor near the passenger seat, where Mr. Samilton had been

  sitting. Bodycam footage at 04:13-04:17; ROA, Vol. III at 26-27. These two facts

  further supported Sergeant Garrett’s reasonable suspicion that Mr. Samilton had

  possessed and hidden a gun—either in the car or in the surrounding area.

        Sergeant Garrett also had a reasonable suspicion based on several factors that

  Mr. Samilton’s possession of the firearm constituted criminal activity.

        First, the 911 caller had reported behavior consistent with criminal activity—

  the man from the sedan brandishing a gun and knocking on hotel room doors.

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  Moreover, violent crimes, including armed robberies, frequently occurred in the area

  surrounding the Rodeway Inn, reinforcing suspicions about criminal activity. See

  DeJear,
552 F.3d at 1200-01
.

        Second, Mr. Samilton’s furtive actions suggesting he was trying to hide

  contraband were inconsistent with the behavior of a person who is permitted to carry

  a firearm.

        Third, Mr. Samilton repeatedly gave evasive replies to Sergeant Garrett’s

  questions about the firearm. For example, when Sergeant Garrett asked whether

  there was a gun in the sedan, Mr. Samilton said “you checked me” and “I don’t have

  no gun” rather than responding directly to the question. Bodycam footage at

  02:52-03:05. Mr. Samilton’s apparent nervousness and “vague, inconsistent or

  evasive answers” contributed to Sergeant Garrett’s reasonable suspicion. Simpson,
609 F.3d at 1150
.

        In sum, Sergeant Garrett “observe[d] specific and articulable facts supporting a

  reasonable suspicion” that Mr. Samilton had engaged in criminal activity by

  possessing the firearm, so he was entitled to extend the Terry stop beyond its initial

  scope. Cash,
733 F.3d at 1273
.

     The Extended Search Was Reasonable - 05:55 to 12:52

        But this does not end the inquiry. We must also determine whether Sergeant

  Garrett unreasonably extended the Terry stop or failed to act diligently in the

  approximately seven minutes between when he concluded his initial search and when

  he learned that Mr. Samilton was a felon. See Goebel,
959 F.3d at 1268
.

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        We conclude that Sergeant Garrett acted diligently and did not unreasonably

  extend the Terry stop. As discussed, he had reason to believe there was a firearm in

  the sedan, in the area surrounding the sedan, or on Mr. Samilton’s person. Sergeant

  Garrett checked these places multiple times. He inspected the interior of the sedan,

  focusing on the passenger seat, bodycam footage at 07:38-8:07, 10:49-11:14; he

  checked the area surrounding the sedan, looking where Mr. Samilton may have

  thrown the weapon from the passenger side window, id. at 06:27-7:37, 11:14-12:32;

  and he frisked Mr. Samilton to ensure the weapon was not on his person, id. at

  09:43-10:05. That Sergeant Garrett’s efforts were unsuccessful during this time

  period does not mean he was not diligent. He “accomplished a great deal in a

  relatively short time.” Goebel,
959 F.3d at 1259
 (a 17-minute detention was not

  unreasonably prolonged because officers used that time to conduct a diligent search);

  United States v. Mayville,
955 F.3d 825, 827
 (10th Cir. 2020) (upholding a 19-minute

  Terry stop because it “did not exceed the time reasonably required to execute the

  tasks relevant to accomplishing the mission of the stop”).

                                        *   *    *   *

        We conclude that (1) Sergeant Garrett’s decision to extend the Terry stop after

  his initial search was based on a reasonable suspicion of criminal activity, and

  (2) Sergeant Garrett undertook reasonable and diligent efforts to confirm his

  suspicion. The extension of the Terry stop therefore did not violate Mr. Samilton’s




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  Fourth Amendment rights.11 The firearm was properly admitted as evidence at trial

  and also was a proper basis to revoke Mr. Samilton’s supervised release.

                                   III. CONCLUSION

        We affirm the district court’s denial of Mr. Samilton’s motion to suppress the

  firearm.

                                              Entered for the Court


                                              Scott M. Matheson, Jr.
                                              Circuit Judge




        11
            In light of this conclusion, we need not determine whether the district court
  erred in its alternative holding that there was no factual nexus between Mr.
  Samilton’s detention and the discovery of the firearm.

                                             16