United States v. Franco Antonio Alarcon-Gonzalez

SETH, Circuit Judge,

concurring:

I concur in the reversal and remand of this case as ordered by the majority. I would, however, place the reversal on the following:

This encounter took place in a residential area of Aurora, Colorado, in a driveway leading from the street to a house set back from the street. Apparently there were no other persons present except the officers, the Defendant, and Defendant’s fellow worker. Defendant was helping to unload a roofing company truck. There were four to six officers who had come up the street to the driveway in what were obviously two police cars and three Immigration and Naturalization Service cars. The police officers were in uniform and were obviously armed. The group of officers made up what was a “team” created to interrogate men working in the area as “roofers.” The team connotes a cohesive group, each member with a function, with all to act together. This is the “team” which walked up the driveway toward the Defendant. It must be considered to have been a “show of authority.” It must have been a threatening presence. This must be taken together with the shout by an officer in the team of “freeze” intended to be directed to the person (not the Defendant) who had his hand in the truck removing a stapling device which looked like a handgun but was soon recognized as a harmless tool.

Taking all the circumstances together there was no consensual encounter at the outset but instead was an intimidating challenge by the “team” by its appearance, number, movements, arms, uniforms and the verbal challenge. When the group arrived a question was asked about the tool, directed to Defendant’s fellow worker. No answer was received. The record states that the team captain “introduced” himself, but the record does not reveal how warmly this “introduction” was received. The questions then began apparently with all the above mentioned present.

The Supreme Court in the several opinions wherein the “reasonable person” doctrine as to seizure has been applied as discussed presents an unusual number of separate opinions in each ease. For example, in Florida v. Royer, 460 U.S. 491 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983), there are five opinions. INS v. Delgado, 466 U.S. 210 , 104 S.Ct. 1758 , 80 L.Ed.2d 247 (1984), was the first majority opinion using the doctrine. However, the number of separate opinions do not necessarily conclude that different dispositions be made.

In these opinions there are recurring terms which include the consideration of a “show of authority,” “the threatening presence of a number of officers,” “weapons,” “intimidation”, “an order to halt,” “uniforms,” and generalities as to location. “Circumstances of the encounter are so intimidating” and use of language or tone of voice indicate that compliance might be compelled.

In considering the “totality of the circumstances” the impact of these listed conditions, if present, is examined, together with the question whether police conduct itself, when communicated to a reasonable person, would cause such a person to feel free to leave, to feel no need to respond or cooperate, or to feel that he could terminate the encounter.

The location where the encounter took place or continued is always a factor. Per se consequences as to certain locations have been excluded. See Florida v. Bostick, 501 U.S. 429 , 111 S.Ct. 2382 , 115 L.Ed.2d 389 (1991), as to bus passengers. Also, our court in an en banc opinion excluded what was developing to be a per se rule as to encounters in passenger train roomettes or compartments. United States v. Little, 18 F.3d 1499 (10th Cir.1994).

Any per se rule is obviously gone, but the “reasonable person” doctrine is still alive and well although there may have been mentioned a new definition of “seizure,” which may only be one of semantics, but indicates a more physical aspect. See Brower v. County of Inyo, 489 U.S. 593 , 109 S.Ct. 1378 , 103 L.Ed.2d 628 (1989). We apply Little , however, because we have no physical seizure here. We consider United States v. Ward, 961 F.2d *295 1526 (10th Cir.1992), United States v. Bloom, 975 F.2d 1447 (10th Cir.1992), and United States v. Zapata, 997 F.2d 751 (10th Cir.1993), after the impact of the Little holding. It is apparent that in those “train encounter cases,” the fact that the incident took place in a roomette or compartment cannot be a determinative factor. As mentioned, the train opinions were approaching a per se rule. United States v. Dimick, 990 F.2d 1164 (10th Cir.1993). The Little en banc opinion made it clear that all factors and circumstances surrounding an encounter must be considered without any single one being a determinative factor, relying on and quoting Bostick and citing Bloom. Bloom held that the particular place of the encounter is but one factor in the totality of the circumstances. In Little the court stated:

“Just as Bostick explicitly rejected any categorical distinctions based on the location of a police-citizen encounter on a bus (inside the bus, outside the bus, or in the bus terminal lobby), so, too, we reject the argument that the location of an encounter on a train (outside the train, in a public coach, or in a private roomette) is determinative of the seizure question. Any implication to the contrary from our previous opinions is overruled.”

18 F.3d at 1504 (footnote omitted). Citing Bloom, 975 F.2d at 1453, n. 6 , the Little court noted that again the basic question was “whether a reasonable person would believe that he or she is unable to terminate the encounter.” 18 F.3d at 1505 . The Little court then held that the trial court was in error because it “apparently gave determinative weight to both the roomette setting and the failure to specifically advise Ms. Little that she need not answer questions....” 18 F.3d at 1506 .

The court in Little did not decide whether a private place should be distinguished from a public place, but only rejected the train roomette as the reason for a distinction. Little cited Bostick on this point, and stated:

“Bostick explicitly held that the particular location of an encounter is but one factor in the ‘totality of the circumstances’ test ‘[wjhere the encounter takes place is one factor, but it is not the only one.’ ”

18 F.3d at 1503 .

Justice Powell, concurring in the result in Delgado , stated that “the systematic and public nature of the [factory] survey serve[d] to minimize any concern or fright on the part of the lawful employees.” 466 U.S. at 224 , 104 S.Ct. at 1767 . The Supreme Court in Berkemer v. McCarty, 468 U.S. 420 , 104 S.Ct. 3138 , 82 L.Ed.2d 317 (1984), a Miranda case, considered the importance of an encounter in a public place in the “reasonable person” analysis. A “public place” is of course a place where the individual is in the view of persons other than the officers. In Zapata , we stated specifically and as of general application:

“We consider a number of factors in determining whether a police-citizen encounter becomes a seizure; 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,’ Ward, 961 F.2d at 1531 ; ....”

997 F.2d at 756 . This was not changed by Little. See also Justice Powell concurring in the result in Delgado . The private place compared to a public place was held to be a factor in United States v. Ray, 973 F.2d 840 (10th Cir.1992), and United States v. Ward, 961 F.2d 1526 (10th Cir.1992).

In my view, the location where the encounter here took place is entirely different from that in Delgado , and so different that it must be a factor of importance to be added to the entire circumstances.

In my view, when all the circumstances are considered together it appears that there was no consensual encounter at the outset. Instead, there was a challenge by the presence of the team, its actions and the shouted command in a “private place” as the term is used in the above opinions. There is nothing to demonstrate that the original circumstances changed before or during the questioning. Thus there was a “seizure” when the reasonable person doctrine is applied.

I would order on remand to the trial court that Defendant’s Motion to Suppress be *296 granted, and that he be allowed to withdraw his guilty plea.