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Date: 08-10-2021

Case Style:

United States of America v. TEVITA FINAU TAFUNA

Case Number: 20-4078

Judge: Bobby R. Baldock


Plaintiff's Attorney: Jennifer P. Williams, Assistant United States Attorney (John W. Huber, United States
Attorney, with her on the brief)

Defendant's Attorney:

Denver, CO - Criminal defense Lawyer Directory


Denver, CO - Criminal defense lawyer represented defendant with a unlawful possession of a firearm charge.

Around 1:00 a.m. on January 25, 2019, Defendant was sitting in the passenger
seat of a car parked in the corner of a large apartment complex. The car was backed
into an uncovered parking space. Defendant’s friend, who owned the car, was in the
driver’s seat. Two other individuals were sitting in the back seat.
While patrolling the apartment complex, Officer Jeffrey Nelson noticed the
parked car and its occupants. Officer Nelson pulled up to the car at an angle, with
the front of his police vehicle pointed toward the driver’s side door. He did not block
in the parked car with his police vehicle or otherwise obstruct its path of egress. The
police vehicle’s “takedown lights”—bright lights arranged across the top of a police
vehicle designed to illuminate the area in front of the vehicle—were activated, but
the vehicle’s flashing red and blue lights were not.
Officer Nelson exited his vehicle and, with his weapon holstered, approached
the driver’s side of the parked car in a way that did not impede the car’s path of exit.
He asked the individuals sitting in the car what they were doing and also asked for
their names and birth dates. Meanwhile, Officer Nelson noticed an open beer can in
Appellate Case: 20-4078 Document: 010110553919 Date Filed: 07/27/2021 Page: 2
the center console next to Defendant. The occupants of the car said they were just
hanging out and talking. Defendant identified himself, said he was on parole, and
stated that he had a knife on him. Officer Nelson told the four individuals he was
going to run their names and then returned to his vehicle.
During his records search, Officer Nelson discovered that Defendant was listed
as having a gang affiliation and as potentially armed and violent. After retrieving the
records, Officer Nelson requested backup, which took 10 to 15 minutes to arrive.
When Officer Austin Schmidt got to the scene, he looked up Defendant’s
parole agreement. That agreement contains a search provision and a standard
weapons clause, under which Defendant agreed to not “purchase, possess, own, use,
or have under [his] control, any explosive, firearm, ammunition, or dangerous
weapon, including archery or crossbows.” The parole agreement also has a special
condition that prohibited Defendant from using, possessing, consuming, or having
access to alcoholic beverages.
With this newfound knowledge, Officer Nelson reapproached the parked car
and asked Defendant to step out of the vehicle. Officer Nelson conducted a pat down
and discovered that Defendant was carrying a pocketknife. Defendant said he used
the pocketknife to open boxes at his job. Officer Nelson then searched the car and
found a firearm underneath the passenger seat. At that point, officers arrested all of
the car’s occupants. Officer Nelson gave Defendant his Miranda warnings and
questioned him at the scene. Defendant admitted to possessing the firearm.
Appellate Case: 20-4078 Document: 010110553919 Date Filed: 07/27/2021 Page: 3
A grand jury indicted Defendant for possession of a firearm after a felony
conviction, in violation of 18 U.S.C. § 922(g)(1). Defendant filed a motion to
suppress the firearm and his confession. The district court granted the motion on the
ground that Officer Nelson did not have probable cause to search the car Defendant
had occupied during the encounter. Shortly after the district court issued its order,
the Government moved for reconsideration. It argued that Defendant lacked standing
to challenge the search of the car and that he was not unconstitutionally detained.
This time, the district court agreed with the Government.
The district court first determined Defendant lacked standing to challenge the
search of the car he had occupied because he did not own or have a possessory
interest in the vehicle. That determination is not at issue here. Next, the district
court found the officers did not seize Defendant at any time during their encounter
with him before they had developed reasonable suspicion to do so. The district court
therefore granted the Government’s motion for reconsideration and vacated its prior
order suppressing the firearm and Defendant’s confession.
Defendant then entered a conditional guilty plea in which he reserved the right
to appeal the district court’s denial of his motion to suppress. This is his appeal.
When reviewing a district court’s decision on a motion to suppress, we review
de novo whether and at what point a seizure occurred. United States v. Salazar, 609
F.3d 1059, 1063–64 (10th Cir. 2010). And when, like here, a district court denies
Appellate Case: 20-4078 Document: 010110553919 Date Filed: 07/27/2021 Page: 4
such a motion, we accept its factual findings unless they are clearly erroneous and
view the evidence in the light most favorable to the Government. Id. at 1063.
Not all encounters with law enforcement officers implicate the Fourth
Amendment; rather, different police-citizen interactions trigger different standards.
United States v. Madden, 682 F.3d 920, 925 (10th Cir. 2012). Consensual encounters
fall entirely outside the scope of the Amendment. Id. Investigative detentions—
seizures of limited scope and duration that are commonly known as Terry stops—
must be supported by reasonable suspicion of criminal activity. Id. And custodial
arrests, the most intrusive of Fourth Amendment seizures, require probable cause. Id.
Our task here is to determine whether officers detained Defendant without
reasonable suspicion in violation of the Fourth Amendment. Importantly for our
purposes, Defendant concedes that Officer Nelson had reasonable suspicion to detain
him after he told the officer he was on parole and had a knife. The pivotal question,
then, is whether Officer Nelson’s interaction with Defendant before that point rose to
the level of a seizure for which reasonable suspicion is required. If the answer is no,
Defendant has no valid Fourth Amendment challenge.1
An investigative detention has occurred only when an officer, “by means of
physical force or show of authority, has in some way restrained the liberty of a
citizen.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). To determine whether an officer
Defendant does not argue his detention was unreasonable in either scope or
duration. So we need not and do not reach those issues. Madden, 682 F.3d at 926 n.2.
Appellate Case: 20-4078 Document: 010110553919 Date Filed: 07/27/2021 Page: 5
has made such a show of authority, we sometimes ask whether “a reasonable person
would have believed that he was not free to leave.” Brendlin v. California, 551 U.S.
249, 255 (2007) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)
(Stewart, J., concurring)). But “when a person ‘has no desire to leave’ for reasons
unrelated to the police presence,” the better question is “whether ‘a reasonable person
would feel free to decline the officers’ requests or otherwise terminate the
encounter.’” Id. (quoting Florida v. Bostick, 501 U.S. 429, 435–36 (1991)). Under
either formulation, we consider all the circumstances surrounding the encounter. Id.;
United States v. Hernandez, 847 F.3d 1257, 1263–64 (10th Cir. 2017).
To be clear, the test is not what the defendant himself thought, but what a
reasonable, law-abiding person would have thought had he been in the defendant’s
shoes. United States v. Sanchez, 89 F.3d 715, 717–18 (10th Cir. 1996). Factors that
help courts measure the coercive effect of a police-citizen encounter include: (1) the
location of the encounter, particularly whether it occurred in an open place within the
view of people other than officers or a small, enclosed space without other members
of the public nearby; (2) the number of officers involved; (3) whether an officer
touched the defendant or physically restrained the defendant’s movements; (4) the
officer’s attire; (5) whether the officer displayed or brandished a weapon; (6) whether
the officer used aggressive language or tone of voice that indicated compliance with
a request might be compelled; (7) whether and for how long the officer retained the
defendant’s personal effects, such as identification; and (8) whether the officer
advised the defendant that he had the right to terminate the encounter. United States
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v. Lopez, 443 F.3d 1280, 1284 (10th Cir. 2006). The defendant has the burden of
showing he was detained. Hernandez, 847 F.3d at 1263.
Here, Defendant argues he was detained without reasonable suspicion at two
specific junctures during his initial encounter with Officer Nelson. Defendant first
contends that Officer Nelson detained him the moment he parked his police vehicle at
an angle to the parked car and activated the vehicle’s takedown lights. Second,
Defendant says he was detained when Officer Nelson approached the parked car on
foot and asked the occupants for their names and birth dates. We disagree with
Defendant that he was detained at either point in time.
As for Officer Nelson’s initial approach, nothing in the record indicates he
drove his vehicle aggressively when he pulled up near the parked car in which
Defendant sat. True, Officer Nelson was driving a marked police vehicle, the very
presence of which might be “somewhat intimidating.” Michigan v. Chesternut, 486
U.S. 567, 575 (1988). But Officer Nelson did not activate a siren, turn on his
vehicle’s flashing red and blue lights, or issue any commands to the occupants of the
parked car. See id. at 574–76 (acknowledging four officers in marked police cruiser
targeted the defendant, but concluding no seizure occurred because other indicia of
coercion was lacking). And while Officer Nelson’s police vehicle was parked at an
angle so that it faced the driver’s side of the car, it did not obstruct the car’s path of
exit or otherwise impede Defendant’s movement. See Sanchez, 89 F.3d at 718
(holding no seizure occurred when an officer “pulled his patrol car up to [the
defendant’s] vehicle” but “did not obstruct or block [the defendant’s] vehicle or
Appellate Case: 20-4078 Document: 010110553919 Date Filed: 07/27/2021 Page: 7
prevent [him] from leaving the parking lot had he chosen to do so”). These
circumstances would not have made a reasonable person feel unable to ignore the
police presence and go about his business. See Bostick, 501 U.S. at 437.
Officer Nelson’s use of his police vehicle’s takedown lights to illuminate the
parked car—as opposed to turning on flashing emergency lights—does not change
that conclusion. Other circuits have agreed that shining a bright light into a vehicle is
not inherently coercive. See, e.g., United States v. Tanguay, 918 F.3d 1, 7–8 (1st Cir.
2019) (no seizure when an officer used “a flashlight and floodlight to illuminate the
interior of the SUV”); United States v. Mabery, 686 F.3d 591, 597 (8th Cir. 2012) (no
seizure when an officer shined a spotlight on the defendant’s vehicle); United States
v. Clements, 522 F.3d 790, 792, 794–95 (7th Cir. 2008) (no seizure when officers
directed their cruiser’s spotlight on a parked car and then approached); United States
v. Washington, 490 F.3d 765, 770 (9th Cir. 2007) (no seizure when an officer
approached and used flashlight to illuminate the interior of the defendant’s car).
That’s “because to rule otherwise would be to prevent officers from safely visiting
parked vehicles at night.” Tanguay, 918 F.3d at 7–8.
Of course, whether takedown lights (or other lights similarly designed to
illuminate an area) are used is one factor to consider when examining all the
circumstances surrounding a police-citizen encounter. And when the use of
takedown lights is accompanied by other coercive behavior—such as blocking a car
in its parking space or issuing verbal commands—a detention is more likely to have
occurred. See United States v. Delaney, 955 F.3d 1077, 1082–84 (D.C. Cir. 2020)
Appellate Case: 20-4078 Document: 010110553919 Date Filed: 07/27/2021 Page: 8
(finding show of authority when officers used takedown lights; encounter occurred in
a dimly lit and narrow parking lot; gunshots were sounding all around; and, “most
importantly,” officers parked their cruiser in a way that impeded the defendant’s
movement); United States v. Packer, 15 F.3d 654, 657 (7th Cir. 1994) (seizure found
when officers’ vehicles were in front of and behind the defendant’s vehicle and had
their takedown lights shining, and one officer approached with a flashlight shining
and told the vehicle’s occupants to put their hands in the air).
But unlike those cases on which Defendant relies, no other coercive behavior
or circumstances accompanied Officer Nelson’s use of his vehicle’s takedown lights.
The encounter did not take place in a narrow parking lot while gunshots were
sounding all around. See Delaney, 955 F.3d at 1082–84. Officer Nelson did not
issue any verbal commands. See Brown v. City of Oneonta, 221 F.3d 329, 340 (2d
Cir. 2000) (seizure when an officer shined a spotlight and issued a verbal command).
And, as we noted above, he did not obstruct the parked car’s path of egress. See
Delaney, 955 F.3d at 1083; Packer, 15 F.3d at 657. Officer Nelson, instead, merely
parked his vehicle in a way that allowed him to use the takedown lights to illuminate
the car Defendant occupied—conduct incident to an officer’s performance of his job
after dark. This police conduct and the setting in which it occurred would not have
caused a reasonable, law-abiding person in Defendant’s position to feel that his
liberty was restrained. So up to this point, Defendant was not detained.
Nor did the consensual encounter morph into a detention when Officer Nelson
exited his vehicle, approached the parked car on foot, and asked the car’s occupants
Appellate Case: 20-4078 Document: 010110553919 Date Filed: 07/27/2021 Page: 9
for their names and birth dates. Officers—without any basis for suspecting criminal
activity is afoot—may “approach an individual, ask a few questions, [and] ask to
examine the individual’s identification.” Madden, 682 F.3d at 925 (holding no
seizure occurred when an officer approached the defendant, who was sitting in his
parked car, asked what he was doing, and requested his driver’s license). Such
inquiries are part and parcel of a consensual encounter unless officers “convey a
message that compliance with their requests is required.” Bostick, 501 U.S. at 437.
Officer Nelson conveyed no message of mandatory compliance here. It is true
that he exited his vehicle in full uniform, with a visible firearm, and did not advise
Defendant he had the right to terminate the encounter. But these factors, while
relevant, are hardly determinative when viewed in the totality of the circumstances.
Sanchez, 89 F.3d at 718 (finding encounter consensual when an armed officer did not
inform the defendant that their interaction was voluntary).
That officers generally wear uniforms and sidearms is a well-known fact.
United States v. Drayton, 536 U.S. 194, 204–05 (2002). And like the wearing of a
police uniform, the mere “presence of a holstered firearm . . . is unlikely to contribute
to the coerciveness of the encounter absent active brandishing of the weapon.” Id. at
205. Defendant makes no claim that Officer Nelson touched, let alone brandished,
his firearm or any other weapon during the initial encounter. That Officer Nelson
was uniformed and armed, therefore, has “little weight in the analysis.” Id. at 204.
Several other factors support a conclusion that the initial encounter between
Defendant and Officer Nelson was consensual. First, when Officer Nelson
Appellate Case: 20-4078 Document: 010110553919 Date Filed: 07/27/2021 Page: 10
approached on foot, he did not prevent the parked car from pulling out had the driver
so desired or otherwise physically restrain Defendant’s freedom of movement. See
Sanchez, 89 F.3d at 718. Second, Officer Nelson was the only officer on the scene,
see Lopez, 443 F.3d at 1285, and nothing in the record indicates his presence was
threatening, see United States v. Jones, 701 F.3d 1300, 1314 (10th Cir. 2012)
(acknowledging three officers were on the scene, but finding their non-threatening
presence supported the conclusion that the encounter was consensual). Third, Officer
Nelson did not touch Defendant or any of his companions. See id.
Fourth, Defendant offers no credible evidence that, at this time, Officer Nelson
used intimidating language, spoke with an aggressive tone, or issued any verbal
commands. See Sanchez, 89 F.3d at 718; Lopez, 443 F.3d at 1286 (finding detention
when officer “specifically instructed [the defendant] to remain by his vehicle while
he ran the warrants check and then took [the defendant’s] license back to his patrol
car”). Fifth, Officer Nelson asked—he did not order—the car’s occupants to state
their names and birth dates. See Bostick, 501 U.S. at 434 (“Our cases make it clear
that a seizure does not occur simply because a police officer approaches an individual
and asks a few questions.”). And finally, Officer Nelson did not obtain or retain any
of Defendant’s personal effects during the initial encounter. Compare Sanchez, 89
F.3d at 718, with United States v. Lambert, 46 F.3d 1064, 1068 (10th Cir. 1995)
(holding that the encounter between the defendant and the narcotics agents “became
an investigative detention once the agents received [the defendant’s] driver’s license
and did not return it to him”).
Appellate Case: 20-4078 Document: 010110553919 Date Filed: 07/27/2021 Page: 11
Considering all the circumstances described above, Officer Nelson’s
conduct—parking his police vehicle at an angle to the car Defendant occupied,
activating the takedown lights, approaching the car on foot, and asking for the car’s
occupants’ names and birth dates—would not have communicated to a reasonable
person that he was unfree to “decline Officer [Nelson’s] requests or otherwise
terminate the encounter.” See Madden, 682 F.3d at 925. In other words, Defendant
was not seized during his initial encounter with Officer Nelson.
Resisting this conclusion, Defendant attempts to equate Officer Nelson’s
request for his birth date with the physical taking and retention of a driver’s license
or identification card. We are not persuaded.
When an officer “retain[s] an individual’s driver’s license in the course of
questioning him, that individual, as a general rule, will not reasonably feel free to
terminate the encounter.” Lambert, 46 F.3d at 1068. But Defendant does not cite
any authority suggesting that simply asking an individual to state his or her date of
birth, as opposed to retaining an individual’s personal property, has such a coercive
effect. And we are aware of no authority for such a proposition. To the contrary,
Officer Nelson’s request for identifying information is the type of de minimis
intrusion courts have long tolerated as a necessary part of policing. See I.N.S. v.
Delgado, 466 U.S. 210, 216 (1984) (holding that “interrogation relating to one’s
identity or a request for identification by the police does not, by itself, constitute a
Fourth Amendment seizure” (emphasis added)); see also, e.g., United States v.
Campbell, 486 F.3d 949, 952, 956–57 (6th Cir. 2007) (concluding no seizure
Appellate Case: 20-4078 Document: 010110553919 Date Filed: 07/27/2021 Page: 12
occurred when an officer first asked the defendant for identification and then asked
for his name, date of birth, and social security number); United States v. Tuttle, No.
CR-14-08015-001-PCT-DGC, 2015 WL 5736905, at *2 (D. Ariz. Oct. 1, 2015) (“The
officer asked to see Defendant’s identification, and then asked for his name and date
of birth. This did not convert an otherwise consensual encounter into a seizure.”);
United States v. Cardenas, No. 07cr2231 JAH, 2009 WL 10680614, at *2, *4 (S.D.
Cal. May 21, 2009) (finding no seizure when an agent approached two individuals
sitting in a stopped car and “questioned defendant as to his citizenship, date of birth
and where he was born”).
We also fail to see how asking for a birth date is more intrusive to a reasonable
person than requesting a government-issued form of identification that contains the
same information. If anything, the opposite is true. A standard identification card,
such as a driver’s license, not only contains a birth date but typically provides
additional information about a person—height, weight, eye color, hair color, home
address, etc. And, more importantly here, Officer Nelson’s asking for a birth date is
less suggestive of a seizure than asking for identification because the latter would
involve Officer Nelson’s retention of Defendant’s personal effects. See Sanchez, 89
F.3d at 718 (noting that the “prolonged retention of a person’s personal effects such
as identification and plane or bus tickets” is indicative of a seizure). Because an
officer’s request for identification does not amount to a seizure, it was no more a
seizure when Officer Nelson asked Defendant for his date of birth. See Delaware v.
Prouse, 440 U.S. 648, 654 (1979) (“[T]he permissibility of a particular law
Appellate Case: 20-4078 Document: 010110553919 Date Filed: 07/27/2021 Page: 13
enforcement practice is judged by balancing its intrusion on the individual’s Fourth
Amendment interests against its promotion of legitimate governmental interests.”).
All told, considering the totality of the circumstances surrounding the
encounter, we conclude that Officer Nelson’s conduct did not amount to a show of
authority sufficient to trigger the Fourth Amendment at any point before Defendant
stated he was on parole and had a knife. And because Defendant concedes that
Officer Nelson had reasonable suspicion of criminal activity at that time, we cannot
say the district court erred when it found no Fourth Amendment violation.

Outcome: For all the reasons we have given, the district court’s judgment is AFFIRMED.

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