United States v. Canada

United States v. Canada, 74 F.4th 1304 (10th Cir. 2023): Mr. Canada appealed the denial of his motion to suppress on the grounds the officers lacked reasonable suspicion to engage in a warrantless protective sweep of his vehicle. The majority Judge Rossman dissented) upheld the district court’s determination that officers had reasonable suspicion Mr. Canada was both dangerous and may gain immediate access to a weapon based on his “slow roll” and furtive movement towards the backseat. Mr. Canada was pulled over on a rainy evening for failing to use his turn signal. He was driving through a high-crime area where Officers Jensen and Sanders were conducting a proactive patrol. After the officers engaged their emergency lights, Mr. Canada took approximately fourteen seconds to come to a stop. Dash camera footage showed Officer Jensen comment, upon exiting the patrol car, that the stop appeared to be “a little bit of a slow roll here.” At the suppression hearing he testified the stop did not take “an absurd amount of time,” but it was “a little bit longer than usual.” He further testified a “slow roll” may suggest that the driver “is attempting to hide or retrieve something inside the vehicle, maybe trying to come up with an exit plan or strategy, decide if they want to stop or don’t stop.” On his approach to the passenger side of the vehicle, Officer Jensen saw Mr. Canada “strenuously arching his hips, reaching his right arm under the rear of his seat with his head facing kind of off his shoulder.” This movement caused Officer Jensen to order him to show his hands and Officer Sanders removed him from the vehicle on the driver’s side. Mr. Canada fully cooperated and a frisk revealed nothing on him. Mr. Canada was moved towards the trunk of his vehicle while Officer Jensen conducted a protective sweep under the driver’s seat and located a loaded .38 Special. The majority determined they need not address Mr. Canada’s argument that officers relied only on his furtive movements to justify their protective sweep because they could also consider the “slow roll” comment. The comment was “a contemporaneous observation from a trained officer” rather than a post hoc rationalization for the protective sweep. Practice tip: try to distinguish your case if you have dash cam/audio and the facts going to reasonable suspicion don’t come out until later through a written report and/or testimony at a suppression hearing. The majority determined the “slow roll”, and furtive movement were enough to establish reasonable suspicion that Mr. Canada was both dangerous and had access to a weapon. They reasoned that, even if officers weren’t sure whether they were going to arrest Mr. Canada, he was not handcuffed or detained in a squad car and could have broken away to access a weapon. Judge Rossman’s dissent is worth reading as it analyzes a “tension in our reasonable suspicion jurisprudence, specifically our two-part clear error/de novo standard of review.” Judge Rossman points out the Tenth Circuit’s “light most favorable” language doesn’t come from a Fourth Amendment case and that despite the Supreme Court’s directive in Ornelas requiring clear error review of factual findings and de novo review of “the ultimate questions of reasonable suspicion”, “our Circuit’s continued application of the a light-most-favorable bias does not abide the standard formulation of clear error review and is incompatible with a principled de novo analysis.” Judge Rossman was not persuaded the “slow roll” by Officer Jensen went to reasonable suspicion since Mr. Canada took only 14 seconds to stop on a dark and rainy night. She reasoned a de novo review of all the facts of the stop (weather, time of day, multilane road with other drivers) led her to conclude Mr. Canada pulled over promptly and the district court erred by crediting the “slow roll comment” at all. Please consider highlighting the issue raised by Judge Rossman in future 4th Amendment cases.