from the United States District Court for the District of
Colorado (D.C. No. 1:15-CR-00202-RM-1)
Rasch-Chabot, Assistant Federal Public Defender (Virginia L.
Grady, Federal Public Defender, and Dean Sanderford,
Assistant Federal Public Defender, with him on the briefs),
Office of the Federal Public Defender, Denver, Colorado, for
D. Fields, Assistant United States Attorney (Robert C.
Troyer, Acting United States Attorney, with him on the
brief), Office of the United States Attorney, Denver,
Colorado, for Plaintiff-Appellee.
HARTZ, BALDOCK, and HOLMES Circuit Judges.
HOLMES, Circuit Judge.
Samuel Terraye Windom entered a conditional guilty plea to
one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g). Mr. Windom now appeals
from the district court's denial of his motion to
suppress the firearm, arguing that officers obtained the
firearm as part of an unconstitutional seizure. More
specifically, Mr. Windom takes the position that officers
used unreasonable "high-risk" traffic stop
procedures to investigate a "completed
misdemeanor"-that is, Mr. Windom's flashing of a
firearm in public-and submits that the unreasonable nature of
the force involved in the stop elevated it from an
investigative detention to an arrest without probable cause.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we
affirm the district court's order
denying Mr. Windom's suppression motion.
Windom was detained and arrested on April 1, 2015, following
an incident at Challengers Sports Bar and Restaurant
("Challengers") in Aurora, Colorado. Just before
midnight on that evening, a female Challengers employee
contacted the Aurora Police Department ("APD") to
report that an unknown male, later identified as Mr. Windom,
had flashed a gun to bar patrons and claimed to be a Crips
gang member. The employee indicated, however, that the
individual-whom she further described as a thirty-three
year-old black male, 6'2" or 6'3" tall,
with braided hair, wearing jeans and a black jacket with a
cobra on the back-had not threatened or injured any patron.
By the time the employee called APD, Mr. Windom had left
Challengers but remained in the parking lot immediately
outside. As the call progressed, the employee observed him
getting into one of two vehicles-either a Nissan Murano
("Murano") or an older model, light blue Cadillac
sedan ("Cadillac") that was immediately next to the
Murano-and stated that he appeared to have headed westbound
out of the parking lot.
dispatch relayed the "weapons call" to several
local officers, advised them of the nature of the alleged
conduct, and provided Mr. Windom's physical description.
Aplt.'s Ex. A-1, at 3. The APD officers that first
arrived on the scene, however, found the Murano in the
parking lot, without an individual matching Mr. Windom's
description, and the en-route officers therefore turned their
attention to the other vehicle described by the caller (i.e.,
Officer Jeremy McElroy was approaching Challengers in his
patrol vehicle when he observed a Cadillac matching the
description from the call traveling in the opposite direction
approximately two miles from Challengers. Officer McElroy
made a u-turn and proceeded to follow the vehicle, and after
backup arrived, he initiated "a high-risk traffic stop,
" R., Vol. III, at 79, based on his belief that the
vehicle contained "a gang member" "armed with
a gun, " R., Suppl. Vol. I, at 19 (Tr. Mot. Hr'g,
dated Sept. 4, 2015). More specifically, Officer McElroy drew
his weapon and pointed it at the pulled-over Cadillac, wedged
himself behind his door jamb for protection, and activated
"spotlighting . . . to light the vehicle."
R., Vol. III, at 79-80. Meanwhile, at least two more
APD officers provided "lethal cover, " that is,
"they [too] had their guns drawn and pointed at the
Cadillac, as well as its occupants." Id. at 80.
After the officers assumed their covered positions, Officer
McElroy "yell[ed]" for the occupants to "get
[their] hands up[ and] turn the car off, " and directed
"them [to] throw the keys out [of] the driver's side
window." R., Suppl. Vol. I, at 20.
McElroy then ordered all of the occupants to exit the vehicle
and assume the prone position-i.e., to lie face-down on the
ground with legs crossed. The driver emerged first, and while
her initial response was "somewhat argumentative, "
she complied with the officer's instructions and assumed
the prone position. Id. Mr. Windom then emerged from
the front passenger door, and Office McElroy immediately
noticed that he matched the description that the Challengers
employee had provided: e.g., a black man, about 6'2"
tall, with braided hair wearing a black jacket and blue
jeans. Mr. Windom assumed the prone position without
objection. Finally, a third occupant-a pregnant female-exited
from one of the rear passenger doors and was ordered to get
"down on her knees" outside of the vehicle.
Id. at 22.
the officers checked the Cadillac to ensure that it had no
other occupants and then proceeded to handcuff and pat down
each individual, while other officers kept watch, providing
"lethal cover." Id. At that point, the
officers positively identified the male occupant as Mr.
Windom, found a Smith & Wesson revolver in his pocket
during the course of a pat-down, and arrested him for the
crime of disorderly conduct based on his actions at
5, 2015, a federal grand jury in Colorado indicted Mr. Windom
on one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). Shortly after the
Indictment, Mr. Windom moved to suppress the firearm as fruit
of an illegal seizure, arguing that "the conduct of the
law enforcement officers following the traffic stop
constituted an arrest of the occupants of the vehicle,
including Mr. Windom, from the moment the officers drew their
weapons and ordered the occupants to exit the vehicle."
R., Vol. I, at 59 (Mot. to Suppress Evid., . Mr. Windom
argued that the officers' use of "high-risk"
stop techniques was unreasonable under the circumstances,
thereby converting the purported investigative detention into
an arrest without probable cause in violation of the Fourth
a hearing, the district court denied the suppression motion,
concluding that the officers had "reasonable and
articulable suspicion" that, within the Cadillac, they
would encounter an "armed and dangerous"
individual, R., Vol. III, at 86, "who identified himself
as a gang member, [had] show[n] a gun to patrons at a
restaurant and bar and [had] caus[ed] enough concern for a
private citizen to call and report the matter to police,
" id. at 91. In other words, although the
district court recognized that "the use of force [could]
elevate [an investigative] encounter to an arrest, " it
found the officers' "display of firearms" in
this instance "permissible without probable cause,
" because the officers "reasonably believe[d]"
that they needed firearms to protect themselves from a
potentially dangerous situation. Id. at 92.
aftermath of the district court's suppression decision,
Mr. Windom entered a conditional guilty plea, in which he
reserved the right to appeal from that decision. Following
his plea, the district court sentenced Mr. Windom to
forty-six months' imprisonment, and he brought this
Windom contends that the district court erred in denying his
suppression motion, arguing that officers discovered the
firearm during the course of an unreasonable seizure in
violation of the Fourth Amendment. Mr. Windom acknowledges
that the officers had reasonable suspicion to stop the
vehicle, but he takes the position that the officers' use
of force exceeded the bounds of an investigative stop, thus
converting the stop into an arrest without probable cause.
Therefore, he argues, the seizure was unlawful and the
firearm that the officers subsequently discovered should be
suppressed. The government argues that based on the totality
of the circumstances known to the officers at the time of the