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United States v. Windom

United States Court of Appeals, Tenth Circuit

July 24, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
SAMUEL TERRAYE WINDOM, Defendant-Appellant.

         Appeal from the United States District Court for the District of Colorado (D.C. No. 1:15-CR-00202-RM-1)

          Jacob 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 Defendant-Appellant.

          Bryan 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.

          Before HARTZ, BALDOCK, and HOLMES Circuit Judges.

          HOLMES, Circuit Judge.

         Defendant-Appellant 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.


         Mr. 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.

         APD's 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., the Cadillac).

         APD 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.

         Officer 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.

         Some of 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 Challengers.

         On May 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 Amendment.

         Following 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.

         In the 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 timely appeal.


         Mr. 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 ...

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