from the United States District Court for the District of
Colorado (D.C. No. 1:14-CR-00445-CMA-1)
C. Murphy, Assistant U.S. Attorney (John F. Walsh, United
States Attorney, with him on the briefs), Denver, Colorado,
Timothy P. O'Hara, Assistant Federal Public Defender
(Virginia L. Grady, Federal Public Defender with him on the
brief), Denver, Colorado, for Defendant-Appellee.
BRISCOE, SEYMOUR, and LUCERO, Circuit Judges.
SEYMOUR, Circuit Judge.
Hernandez was charged under 18 U.S.C. § 922(g)(1) with
one count of being a felon in possession of a firearm. He
filed a motion to suppress the evidence retrieved after his
encounter with two Denver police officers one evening,
claiming the evidence was obtained in violation of the Fourth
Amendment. The district court granted the motion. The
government appeals, and we affirm.
October, 20, 2014, at approximately 7:43 p.m., Denver police
officers Wile Morghem and Daniel Walton were patrolling West
10th Avenue near its intersection with Mariposa Street in
Denver, Colorado, in a marked police vehicle. It was dark out
and the intersection was unlit. The two officers observed Mr.
Hernandez walking next to a fenced construction site. The
officers considered this part of town "to be a
high-crime area due to its proximity to the Lincoln Park
housing project and the frequency of theft and drug dealing
occurring therein." Aplt. App. at 108.
district court found, Officer Morghem immediately suspected
for several reasons that Mr. Hernandez was engaged in
First, Mr. Hernandez was dressed entirely in black clothing
and wore two backpacks. Second, Officer Morghem had been
notified of prior thefts of construction materials and copper
piping from construction sites. In particular, at least a
month prior to this incident, Officer Morghem had arrested an
individual for trespassing inside of the construction area
and stealing sheet metal. He also believed that Mr. Hernandez
might be acting as a "lookout" for thefts - though
he admitted that he did not see other individuals walking
around in the construction site or notice anything occurring
within the site to arouse his suspicion. Third, Morghem found
it "odd" that Mr. Hernandez was walking next to the
construction site, because there was a sidewalk he could have
used on the other side of the street.
Id. at 108.
officers pulled alongside Mr. Hernandez in their police
cruiser and Officer Morghem began talking to Mr. Hernandez
through the open window. During this exchange, the officers
used normal speech, did not shine a spotlight or flashlight
on Mr. Hernandez, and kept their firearms holstered inside
the cruiser. Officer Morghem first asked Mr. Hernandez if
they could talk to him, to which Mr. Hernandez responded by
saying, "Yeah, what's up?" Id. at 109.
Mr. Hernandez kept walking while he responded to Officer
Morghem's question, and the officers "had to
continue driving in order to follow him during their
conversation." Id. Officer Morghem next asked
Mr. Hernandez where he was coming from and what he was doing,
to which Mr. Hernandez replied that he was coming from his
grandmother's house and was "just trying to go
home." Id. Officer Morghem pressed Mr.
Hernandez for his grandmother's address, but Mr.
Hernandez could not remember it. Up to this point, the entire
conversation took place while Mr. Hernandez was walking, with
the two officers driving close beside him. Officer Walton
noted in the police report he filed the next day that Mr.
Hernandez "tried not to stop and talk to us."
Id. at 80.
Walton asked Mr. Hernandez if he would stop so they could
talk to him. Mr. Hernandez complied and stopped walking.
Officer Morghem then asked Mr. Hernandez for his name and
date of birth. Mr. Hernandez provided his real name but a
false birth date. Although Officer Morghem did not have Mr.
Hernandez's correct date of birth, he was able to pull up
additional information on Mr. Hernandez via the in-car
computer. He found Mr. Hernandez's mug shot and
determined that he had an active warrant for a parole
Officer Morghem informed Officer Walton about the active
warrant, Officer Walton put the car in park and both officers
exited the vehicle to approach Mr. Hernandez. Once Mr.
Hernandez saw the officers exit, he began to walk away
quickly. Officer Morghem noticed Mr. Hernandez reach for his
left waistband and asked him if he had a gun. Mr. Hernandez
replied, "yes, " and Officer Walton quickly grabbed
his arm. A black revolver fell to the ground, and the
officers placed Mr. Hernandez under arrest.
Hernandez was indicted on one count of being a felon in
possession of a firearm under 18 U.S.C. § 922(g)(1). He
filed a motion to suppress, alleging that the seizure of his
person was unreasonable under the Fourth Amendment because
"it was not based on reasonable, articulable
suspicion." Aplt. App. at 11. After an evidentiary
hearing, the district court granted the motion, concluding
that the officers had "seized" Mr. Hernandez
without reasonable suspicion to do so, in violation of the
Fourth Amendment. Regarding the "seizure, " the
court held that Officer Walton's request to Mr. Hernandez
to stop walking was "a show of authority such that a
reasonable person in [his] position would not have felt free
to decline the Officers' requests or terminate the
encounter." Id. at 114. With respect to
reasonable suspicion, the court reasoned that the officers
had nothing more than inchoate and inarticulate hunches for
suspecting Mr. Hernandez of criminal activity.
first address an issue that arose after briefing and oral
arguments were completed in this case when the Supreme Court
issued its opinion in Utah v. Strieff, 136 S.Ct.
2056 (2016). The Court determined that the attenuation
doctrine-a rule that allows courts to admit illegally
obtained evidence as long as the connection between the
evidence and the illegal method is sufficiently remote or
attenuated-applies to situations where police officers
illegally stop someone who they later realize has a valid,
pre-existing, and untainted arrest warrant. Id. at
2063. After the Court's decision in Strieff, the
government in this case filed a supplemental authority letter
pursuant to Fed. R. App. P. 28(j) ("Rule 28(j)
letter"), requesting that we remand the case to the
district court to determine if, and to what extent,
Strieff applies to these facts. Mr. Hernandez
contended in response that the government had waived the
attenuation argument by failing to assert it below. We agree
with Mr. Hernandez.
is well established that we will not consider issues raised
for the first time in a Rule 28(j) letter . . . because, in
part, the language of Rule 28(j) 'underscores that an
appellant's supplemental authority must relate to an
issue previously raised in a proper fashion . . .
.'" Thacker v. Workman, 678 F.3d 820, 842
(10th Cir. 2012) (citations omitted) (quoting United
States v. Levy, 379 F.3d 1241, 1244 (11th Cir. 2004)).
In Thacker, we rejected a party's attempt to
argue the impact of a recently decided Supreme Court case,
which held that federal habeas courts could hear
ineffective-assistance-of-trial-counsel claims that were not
raised in the initial-review collateral proceeding if the
defendant lacked effective post-conviction counsel.
Id. at 842 (citing Martinez v. Ryan, 132
S.Ct. 1309 (2012)). Because Mr. Thacker "most certainly
could have argued in his federal habeas petition . . . that
ineffective assistance of post-conviction counsel was the
'cause' for his failure to raise his ineffective
assistance of trial counsel claim" but failed to do so
until filing his Rule 28(j) letter, we refused to consider
the issue. Id.
even though the government in this case could not have
predicted the outcome of Strieff, it could have
argued, just as the State of Utah did in Strieff,
that the attenuation doctrine should be applied in situations
where a defendant is illegally stopped but the police later
discover a valid, pre-existing, and untainted arrest warrant.
In fact, the government had ample precedent to argue this
point because two of our sister circuits had already adopted
the same approach. See United States v. Green, 111
F.3d 515, 521-23 (7th Cir. 1997) ("Where a lawful arrest
pursuant to a warrant constitutes the 'intervening
circumstance' (as in this case), it is an even more
compelling case for the conclusion that the taint of the
original illegality is dissipated."); see also
United States v. Simpson, 439 F.3d 490, 495-97 (8th Cir.
2006) (holding the defendant's "outstanding arrest
warrant constitute[d] an extraordinary intervening
circumstance that purge[d] much of the taint associated with
the officers' unconstitutional conduct").
that the government has waived its attenuation
reviewing a district court's ruling on a motion to
suppress evidence, we view the evidence in the light most
favorable to the prevailing party and accept the district
court's findings of fact unless they are clearly
erroneous." United States v. Oliver, 363 F.3d
1061, 1065 (10th Cir. 2004) (quoting United States v.
Massie, 65 F.3d 843, 847 (10th Cir. 1995)). "A
finding of fact is clearly erroneous if it is without factual
support in the record or if, after reviewing all of the
evidence, we are left with the definite and firm conviction
that a mistake has been made." In re Vaughn,
765 F.3d 1174, 1180 (10th Cir. 2014) (quoting In re
Peterson Distrib., Inc., 82 F.3d 956, 959 (10th Cir.
1996)). In making this determination, we keep in mind that
"[i]t is the province of the trial court to assess the
credibility of witnesses at the suppression hearing and to
determine the weight to be given to the evidence presented,
and we must give such determinations due deference."
United States v. Le, 173 F.3d 1258, 1264 (10th Cir.
1999) (citing United States v. Hargus, 128 F.3d
1358, 1361 (10th Cir. 1997)). "The ultimate question of
whether a search and seizure was reasonable under the Fourth
Amendment is a question of law that we review de novo."
Oliver, 363 F.3d at 1065 (quoting Massie,
65 F.3d at 847).
the defendant "bears the burden of proving whether and
when the Fourth Amendment was implicated (i.e., the point at
which he . . . was 'seized'), " United
States v. Carhee, 27 F.3d 1493, 1496 (10th Cir. 1994),
the "government bears the burden of proving the
reasonableness of the officer's suspicion."
United States v. Simpson, 609 F.3d 1140, 1146 (10th
Cir. 2010). We address in turn the government's
contentions that the district court erred in holding Officers
Walton and Morghem seized Mr. Hernandez without reasonable
suspicion in violation of the Fourth Amendment.
Whether a Seizure Occurred
Fourth Amendment, applied to the states through the
Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643
(1961), prohibits unreasonable seizures by law enforcement
officers. U.S. Const. amend. IV. But "[t]he Fourth
Amendment does not proscribe all contact between the police
and citizens." INS v. Delgado, 466 U.S. 210,
215 (1984). For instance, "law enforcement officers do
not violate the Fourth Amendment by merely approaching an
individual on the street or in another public place, by
asking him if he is willing to answer some questions, [or] by
putting questions to him if the person is willing to
listen." Florida v. Bostick, 501 U.S. 429, 434
(1991) (quoting Florida v. Royer, 460 U.S. 491, 497
(1983) (plurality opinion)). These are referred to as
consensual encounters which do not implicate the Fourth
Amendment. See United States v. Lopez, 443 F.3d
1280, 1283 (10th Cir. 2006). It is "[o]nly when the
officer, by means of physical force or show of authority, has
in some way restrained the liberty of a citizen [that a
court] may conclude that a 'seizure' has
occurred." Terry v. Ohio, 392 U.S. 1, 19 n.16
determining whether an encounter between a police officer and
a citizen is consensual, "the crucial test is whether,
taking into account all of the circumstances surrounding the
encounter, the police conduct would 'have communicated to
a reasonable person that he was not at liberty to ignore the
police presence and go about his business.'"
Bostick, 501 U.S. at 437 (quoting Michigan v.
Chesternut, 486 U.S. 567, 569 (1988)). "[T]he test
allows officers to make inquiries so long as they don't
throw their official weight around unduly." United
States v. Tavolacci, 895 F.2d 1423, 1425 (D.C. Cir.
1990). There are no per se rules that govern this
inquiry; "[r]ather, every case turns on the totality of
the circumstances presented." United States v.
Hill, 199 F.3d 1143, 1147 (10th Cir. 1999) (quoting
United States v. Little, 18 F.3d 1499, 1503 (10th
Cir. 1994) (en banc)).
enumerated a non-exhaustive list of factors to be considered
in determining whether a reasonable person would feel free to
terminate his encounter with the police:
the location of the encounter, particularly whether the
defendant is in an open public place where he is within the
view of persons other than law enforcement officers; whether
the officers touch or physically restrain the defendant;
whether the officers are uniformed or in plain clothes;
whether their weapons are displayed; the number, demeanor and
tone of voice of the officers; whether and for how long the
officers retain the defendant's personal effects such as
tickets or identification; and whether or not they have
specifically advised defendant at any time that he had the
right to terminate the encounter or refuse consent.
Lopez, 443 F.3d at 1284 (quoting United States
v. Spence, 397 F.3d 1280, 1283 (10th Cir. 2005)).
Moreover, when police officers pursue a citizen in their
squad car while the citizen is on foot, courts will consider
whether the officers activated their siren or flashers,
operated their car in an aggressive manner to block the
citizen's course or otherwise control the direction or
speed of his movement, displayed their weapons, or commanded
the citizen to halt. Chesternut, 486 U.S. at 575.
"Although no single factor is dispositive, the
'strong presence of two or three factors' may be
sufficient to support the conclusion a seizure
occurred." Lopez, 443 F.3d at 1284-85 (quoting
Fuerschbach v. Sw. Airlines Co., 439 F.3d 1197, 1203
(10th Cir. 2006)).
to this case, the encounter in question began when Officers
Morghem and Walton pulled alongside Mr. Hernandez in their
police cruiser and began asking him questions, which he
answered as he continued to walk down the street. This was
not a seizure. See Bostick, 501 U.S. at 434
("Our cases make it clear that a seizure does not occur
simply because a police officer approaches an individual and
asks a few questions."). The nature of a police-citizen
encounter can change, however, and "what may begin as a
consensual encounter may change to an investigative detention
if the police conduct changes and vice versa."
United States v. Madden, 682 F.3d 920, 925 (10th
Cir. 2012) (quoting United States v. Zapata, 997
F.2d 751, 756 n.3 (10th Cir. 1993)). That was the case here.
district court correctly identified the standards applicable
to determining whether a police-citizen encounter is
consensual or a seizure. The court recognized that "[n]o
per se or absolute rules govern the inquiry . . .;
rather, every case turns on the totality of the circumstances
presented." Aplt. App. at 111. Citing Spence,
397 F.3d at 1283, the court detailed the factors relevant to
making this determination, as we have done supra.
these standards, the district court determined the facts here
weighed in favor of concluding that the officers' conduct
had crossed the coercive line and that a seizure had
occurred. A key factor was Officer Walton's request that
Mr. Hernandez stop walking, but the court also emphasized
that there were two uniformed officers closely following Mr.
Hernandez in a police car, it was dark and there was no
evidence the encounter occurred within the view of other
persons, and the officers did not advise Mr. Hernandez he had
the right to terminate the encounter. Aplt. App. at 115-16.
The Supreme Court has recognized that "the very presence
of a police car driving parallel to a  pedestrian could be
somewhat intimidating." Chesternut, 486 U.S. at
575. It was in this setting that Officer Walton
"requested" Mr. Hernandez to stop walking. As we
have noted above, even Officer Walton recognized in his
contemporaneous police report that Mr. Hernandez "tried
not to stop to talk to us." Aplt. App. at 80. Reading
the circumstances of this case, as we must, in the light most
favorable to the prevailing party, Mr. Hernandez, we are
persuaded a reasonable person would have believed that
compliance with the "request" was not optional.
government takes issue with numerous findings made by the
district court and we address each in turn. The government
first contends the court failed to adequately address the
Spence factors, claiming the court's treatment
of the factors was cursory to its overriding concern that
Officer Walton asked Mr. Hernandez to stop walking so they
could talk to him. The government maintains the district
court erred in giving so much weight to Officer Walton's
request because "[o]fficers are free to approach
individuals on the street and question them." Aplt. Br.
at 9. While this is true, Spence's list of
factors is non-exhaustive, and the district court did not err
in heavily weighing Officer Walton's request for Mr.
Hernandez to stop walking in light of the other circumstances
present that evening. Mr. Hernandez was in an unlit area on a
dark night with no one else around and with two uniformed and
armed officers closely following him in a marked police car
after he had indicated by walking away that he did not want
to stop to talk with them. The Court made clear in
Chesternut, 486 U.S. At 573, that "what
constitutes a restraint on liberty prompting a person to
conclude he is not free to 'leave' will vary, not
only with the particular police conduct at issue, but
also with the setting in which the conduct occurs."
government maintains the district court erred in finding that
the public exposure factor favored Mr. Hernandez. It reasons
that whether anybody is around to see the questioning is
irrelevant as long as the questioning occurs in a public
place. We disagree. Our cases view police-citizen
interactions in nonpublic places and police-citizen
interactions in the absence of other members of the public
similarly. See Spence, 397 F.3d at 1283 ("This
court does consider 'interaction in a nonpublic place . .
. and the absence of other members of the public' as
factors pointing toward a nonconsensual encounter."
(quoting United States v. Sanchez, 89 F.3d 715, 718
(10th Cir. 1996))).
government also disagrees with the district court's
treatment of the fact that multiple officers were involved,
arguing that "this court should reject the district
court's implicit holding that an officer must approach a
subject alone, or his presence will be deemed coercive."
Aplt. Br. at 11. But that is not what the district court
held. It merely stated that the number of officers is one of
many factors to consider, citing one of our cases for the
proposition that "the presence of more than one officer
increases the coerciveness of an encounter." United
States v. Ward, 961 F.2d 1526, 1533 (10th Cir. 1992),
overruled on other grounds by Little, 18 F.3d at
1504. Although the presence of two uniformed and armed
officers does not automatically transform every
police-citizen encounter into a nonconsensual one, it is a
individual is 'seized' when he has an objective
reason to believe that he is not free to terminate his
conversation with the officer and proceed on his way."
United States v. Patten, 183 F.3d 1190, 1194 (10th
Cir. 1999) (citation omitted). "The question of whether
an encounter was consensual 'calls for the refined
judgment of the trial court.'" Id. at 1409
(quoting United States v. Werking, 915 F.2d 1404,
1408 (10th Cir. 1990)). Considering the totality of the
circumstances here, that there were two uniformed police
officers driving closely alongside Mr. Hernandez in the dark
with no one else around, and that Mr. Hernandez did not stop
walking until one officer asked him to stop even though he
was answering the officers' questions, the district court
did not err in concluding there was a show of authority by
Officers Morghem and Walton sufficient to constitute a
seizure under the Fourth Amendment.
dissent claims that United States v. Drayton, 536
U.S. 194 (2002), INS v. Delgado, 466 U.S. 210
(1984), Florida v. Rodriguez, 469 U.S. 1 (1984) (per
curiam), and United States v. Mendenhall, 446 U.S.
544 (1980), where the Supreme Court held that each
police-citizen encounter was not a seizure, represent
"far more authoritative encounters between officers and
citizens" than does this case. Dissent at 1. We
disagree. In Rodriguez, 469 U.S. at 3-4, the
defendant was stopped in an airport by two detectives in
plain clothes. One officer showed the defendant his badge and
asked if he could talk to him. The Court held this initial
encounter was not a seizure. Id. at 5-6. This
encounter-with plain clothes detectives in a very public
place where the defendant was never asked to stop walking as
he was moving away from the officer-is nothing like the
encounter in the present case, which took place in an
isolated location on a dark night with uniformed police
officers closely following defendant in a police car. In
fact, in Rodriguez, the Court went on ...