The Tenth Circuit Court of Appeals issued its opinion in United States v. Hernandez on Thursday, February 9, 2017.
Phillip Hernandez was charged with one count of being a felon in possession of a firearm in violation of 18 U.S.C § 922(g)(1). The district court granted his motion to suppress the evidence, as it was obtained in violation of the Fourth Amendment’s prohibition against unlawful seizure during his encounter with two police officers. The government appealed, claiming that the court should apply the subsequent decision in Utah v. Streiff, and arguing that the district court failed to properly apply the Spence factors to the seizure.
On October 20, 2014, two police officers observed Phillip Hernandez walking near a construction site in a known high crime area. The uniformed officers asked Hernandez if they could speak to him, and began asking him questions while driving along side him in their marked police car as Hernandez continued walking. The officers eventually asked Hernandez to stop so they could ask him additional questions. While questioning Hernandez, the officers discovered an active warrant against him and that Hernandez was in possession of a firearm. Hernandez filed a motion to suppress the firearm evidence, which the district court granted.
On appeal, the government asserted that the Supreme Court’s decision in Utah v. Streiff should apply to this case. In Streiff, the Supreme Court ruled that courts may admit illegally obtained evidence as long as the link between the evidence and the illegal method is sufficiently remote, in a case where the evidence in question was obtained by police officers who illegally stop someone and later discover an existing warrant against that person. The Tenth Circuit, however, rejected the application of the decision in Streiff, agreeing with Hernandez that the government had waived the right to present this argument as they had failed to assert it at the district court level.
The court next turned to the government’s argument that the lower court improperly applied the Spence factors to Hernandez’s encounter with the two officers because officers are free to approach individuals and question them. The court stated that the crucial test to determine if an unlawful seizure has occurred is if the officer’s conduct would lead a reasonable person under similar circumstances to believe they were not free to ignore the police presence and leave the situation. The court agreed with the district court’s application of the factors enumerated in United States v. Spence, stating that once the police officers asked Hernandez to stop, because there were two uniformed police officers in a police car at night without other witnesses present, a reasonable person would not have felt he could walk away.
Finally, the court addressed if the officers had reasonable suspicion to justify an investigative detention. In considering the reasonableness of the detention, the court looked at if there were “specific and articulable facts and rational inferences drawn from those facts” that gave the officers reasonable suspicion that Hernandez was involved in criminal activity. The court looked at the officer’s stated reasons for suspicion, including that Hernandez was walking near a construction site where there had been prior thefts, Hernandez was in a high crime area, Hernandez chose not to walk on the side of the street with a sidewalk, and Hernandez was dressed in all black clothing and carrying two backpacks. The court ultimately determined that, although the level of suspicion required for a Terry stop is less than that required for an arrest, the circumstances in this case did not rise to the requisite level for the officers to stop Hernandez.
Justice Briscoe dissented, stating that he believed the encounter between Hernandez and the officers was more along the lines of a consensual encounter and did not constitute an unlawful seizure considering the circumstances.
The Tenth Circuit affirmed the district court’s grant of a motion to suppress the evidence.