Officer Lacked Reasonable Suspicion to Arrest Defendant for Failing to Obey a Lawful Order

United States v. Romero, Jr., --- F.3d ---, 2019 WL 4197484 (10th Cir. Sept. 5, 2019): In this felon-in-possession and possession-of-a-stolen firearm case, the 10th agrees the Las Cruces cop lacked probable cause to arrest Mr. Romero for resisting a lawful order and thus had no right to search Mr. Romero’s backpack--in which the weapon was found--incident to the arrest. The majority did not address whether the officer initially had reasonable suspicion to order Mr. Romero to submit to a frisk.

The facts were that the Las Cruces officer saw Mr. Romero looking into the window on the front entry of a church at about 5:30 p.m. on a Friday. The officer went back to question the person he saw. At that time, Mr. Romero was filling up a water bottle from a hose on the side of the church and had a cell phone that he was charging. The officer immediately and rudely escalated the exchange and within seconds had pointed his taser at Mr. Romero and within about a minute had Mr. Romero on the ground getting arrested. The majority (Judges Ebell and Lucero) correctly concluded that Mr. Romero did not refuse to obey the officer’s commands in any way that would constitute unlawful resistance under NMSA 1978, 30-22-1(D). Since there was no unlawful resistance, the officer’s arrest was not supported by probable cause and no right to search the backpack incident to the arrest. Moreover, the majority rejected the government’s argument that, even if the arrest was not supported by probable cause, the officer made a reasonable mistake of law. The Court relied on the decision in US v. Cunningham, 630 Fed.Appx. 873 (10th Cir. 2015) (Unpublished), in which the panel had held that an officer’s mistake of law may be reasonable if (1) the law is ambiguous and (2) the law has not been previously construed by the relevant courts. In this case, the potentially ambiguous language has been clarified on several prior occasions by the NM courts. It was not objectively reasonable for the officer to make any mistake of law. Accordingly, the district court’s denial of the motion to suppress was reversed.

Tymkovich dissented, based on a second-by-second parsing of the video of the incident concluding that there was reasonable suspicion to pat Mr. Romero down and Mr. Romero “resisted” by taking a few seconds to comply with the officer’s orders.