Thursday, November 15, 2012

Tenth Circuit US v. Guardado 11-4169

Decision here.

   Guardado was walking around a high crime area at 1:00 AM with several other people.  They were dressed mostly in brown and one of them had a backpack.  Meanwhile, the police were targeting that area because of an ongoing tagging feud between two gangs (and also because it was a high-crime area, as evidenced by recent agg assaults and such). A couple of officers saw Guardado and his compatriots, and decided to stop them.  They based their decision on the criminal activity in the area, the fact that Guardado & Co. were walking in an area where there wasn't much other pedestrian traffic, the time of night, the fact that brown was the color of one of the gangs in the area, and the fact that taggers usually carry their equipment in backpacks.

   One of the officers illuminated the suspects with a spotlight and got out of the car.  Someone yelled "cops!" and Guardado took off running.  The officers chased after him while ordering him to stop, but Guardado kept running (while running he kept one of his hands in front of his body, near his waistband).  The cops tackled Guardado struggled with him briefly, handcuffed him, and found a gun concealed in the front of his pants.  He was charged with being a felon in possession of a firearm.

   In court, Guardado moved to suppress the gun.  When his motion was denied, he entered a conditional guilty plea and appealed the denial of his motion.  His argument was that there was no reasonable suspicion to justify the stop, so the gun was the fruit of an illegal seizure.

   The Tenth Circuit held that Guardado was not seized until he was tackled (because a person is seized only when an officer, by means of physical force or show of authority, terminates or restrains his freedom of movement.  While he was running, his freedom of movement had not yet been restrained).  Accordingly, the court did not consider whether or not there was reasonable suspicion when the officer got out of his car to contact Guardado.  The court only considered whether or not there was reasonable suspicion at the time that the stop was effected.

   Factors contributing to reasonable suspicion in this case included the high crime area, the time of night, Guardado et al's clothing and backpack, and Guardado's headlong flight from law enforcement ("the consummate act of evasion").  The court was careful to point out that there's a significant difference between simply walking away (which doesn't really create RS) and suddenly running away (which is highly suspicious).  The court also explained that reasonable suspicion requires only a minimal level of objective justification that criminal activity is afoot.  Furthermore, reasonable suspicion doesn't require that the police be able to identify a specific, particular crime; if the facts support a suspicion of criminal activity in general, that's enough.  And suspicion is a pretty low threshold, which can even be met where an innocent explanation is more likely than a suspicious one.

   So the court is willing to give us a lot of leeway on the issue of RS (although there have been plenty of other cases which show that the court's patience is not inexhaustible).  The stop of Guardado was justified at the moment it occurred, whether or not it was justified at the moment that the police decided to stop him (the court doesn't say what it thinks about that, and reminds us that the officers' subjective intent to stop Guardado is irrelevant).  Guardado's conviction was upheld.

1 comment:

  1. Although I agree with the court's conclusion on this one, I think that the explanation of how they arrived at their conclusion gives law enforcement a LOT of rope to hang ourselves with.

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