United States v. Anderson

United States v. Anderson, 62 F.4th 1260 (10th Cir. Mar. 14, 2023) (NM) The panel finds officers had reasonable suspicion to detain Anderson for jaywalking and harassment; at sentencing the district court could use a police report to support a § 2K2.1(b)(6)(B) enhancement; and the government did not violate Brady when it failed to disclose photographs and test results of the drugs on which that enhancement was based. This unfortunate concatenation of events led to Anderson's appeal. A woman flagged down a passing officer and said the man who was crossing the street had been harassing her. Officers stopped the man and asked if he had any identification. Anderson said he didn’t. They then asked him if he had any weapons. Anderson didn’t answer right away, but eventually said he did not. Because he “appeared particularly nervous, raised his hands, and was wearing a bulky jacket,” [it was December in Albuquerque] one officer patted him down for weapons. None were found. Officers continued to question him about his identity. Anderson gave a false name and social security number. The officers arrested him for concealing his identity. They searched him and found a stolen handgun in his waistband and baggies filled with a “crystal-like substance” which according to the field test was positive for methamphetamine. Anderson was charged in state court for trafficking methamphetamine but that charge was dismissed when he was indicted in federal court for being a felon in possession of a firearm. There he filed a motion to suppress which the district court denied. The panel held that decision was correct. Officers had reasonable suspicion to stop Anderson for jaywalking. The jaywalking ordinance prohibits a person from walking along or upon an adjacent roadway if there is a sidewalk. That is what the officers saw him do. Similarly, officers had a reasonable belief that Anderson had harassed the woman. She expressed concerns about her safety; the officer believed she was in distress; and she claimed Anderson would not leave her alone which established the “repetitive conduct” element of the harassment statue. Thus, the officer had “sufficient” information “to meet the low reasonable suspicion bar.” The panel also rejected Anderson’s argument that the pat-down prolonged the stop and led to the discovery of the firearm. It said, even presuming the officers unjustifiably prolonged the stop, Anderson could not establish a causal link between the Fourth Amendment violation and the officers finding the gun. The officers intended to arrest Anderson for concealing his identity anyway, so the gun would have been found irrespective of the pat-down. Additionally, there was no evidence that the pat-down induced the officers to continue questioning Anderson about his identity. Nor did Anderson argue that the pat-down led him to lie about his identity. Regarding the sentencing enhancement under § 2K2.1(b)(6)(B), the panel found there was enough evidence to prove he possessed the firearm in connection with another offense, namely, possession of methamphetamine. The district court could rely on the officer’s report, attached to the government’s sentencing pleading, in which he said that the substance found on Anderson tested positive for methamphetamine. The government also included the state court indictment charging Anderson with drug trafficking. The panel dismissed Anderson’s contention that neither were reliable support for the enhancement. It said Anderson was not entitled to “a favorable inference” from the dismissal of the state charge. That is because, that charge was dismissed when federal prosecutors took over the case. Further, although neither was admitted as evidence during the sentencing hearing, both still were part of the record. And the officer’s report was corroborated by his lapel camera video which was admitted as evidence during the suppression hearing. The panel pointed out that in McDonald, 43 F.4th 1090, 1096 (10th Cir. 2022) [an opinion reviewed in an earlier update], the accused must say that particular facts alleged are false. A district court’s fact-finding obligation is triggered only when the defense shows certain information was unreliable and “articulate[s] the reasons why the facts contained therein were untrue or inaccurate.” Here, Anderson merely objected to the claim that he possessed methamphetamine, he did not point to any specific facts in the police report that were false. Finally, the panel said the government did not violate Brady v. Maryland, 373 U.S. 83 (1963), when it did not disclose photographs of the drugs, additional test results or information about the field tests used. Anderson did not show that any of this evidence would have been favorable to him.