Stop of Defendant Walking with Two Backpacks in High-crime Area Was Without Reasonable Suspicion

S v. Hernandez, No. 15-1116, 2/9/17 (Colo) - In a published opinion, a divided panel affirms the grant of a motion to suppress based on an illegal stop without reasonable suspicion. Defendant was walking next to a construction site in a high-crime area at 7:43 p.m., dressed all in black and with two backpacks. Two cops were patrolling in the area in a marked unit and spotted him. They pulled up next to him and started asking him questions. Defendant kept walking while answering the questions and the cops drove along beside him. Defendant told them that he was on his way home from his grandmother’s housed, but did not know her address. One of the cops noted in his report the next day that defendant “tried not to talk to us.” The cop then asked defendant if he would stop so they could talk to him and he did. The cops wound up learning that defendant had an active warrant for a parole violation, even though defendant gave a false date of birth, so they put the car in park and got out and approached him, at which point he began to walk away quickly. One of the cops saw him reach for his waistband and asked him if he had a gun, which he admitted he did. The cop grabbed him, causing the gun to fall out of his waistband. He was then arrested for felon in possession.

Held - (1) asking defendant to stop and talk was, considering the totality of the circumstances, a seizure; and (2) again considering the totality of the circumstances, there was no reasonable suspicion to justify it. The majority considered it a close case, but held that the district court got it right in granting defendant’s motion to suppress. Judge Briscoe could not have disagreed more with the majority (Judge Seymour, joined by Judge Lucero). To her, this was clearly not a stop, and there was reasonable suspicion even if it was.

A very interesting quirk here is that the government had submitted a Rule 28(j) letter calling the panel’s attention to the Supreme Court’s recent decision in Utah v. Strieff, in which the court held that discovery of an outstanding warrant during an illegal stop attenuated the original illegality and permitted introduction of evidence found on the defendant after he was arrested on the warrant. The majority found that the government had waived any argument based on Strieff because the government could have raised the argument below, as did the defendant in Strieff, two other circuits had already ruled the same way the Supremes did in Strieff, and Strieff supplemented governing law by applying the factors from Brown v. Illinois rather than change it.