FILED
                                                                     United States Court of Appeals
                                      PUBLISH                                Tenth Circuit

                       UNITED STATES COURT OF APPEALS                        May 15, 2018

                                                                          Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                            Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-1102

AJOHNTAE HAMMOND,

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                             for the District of Colorado
                          (D.C. No. 1:16-CR-00201-RBJ-1)
                       _________________________________

Josh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender
with him on the briefs) office of the Federal Public Defender, Denver, Colorado,
appearing for the appellant.

James C. Murphy, Assistant United States Attorney (Robert C. Troyer, Acting United
States Attorney with him on the brief) Office of the United States Attorney, Denver,
Colorado, appearing for the appellee.
                        _________________________________

Before BRISCOE, EBEL, and PHILLIPS, Circuit Judges.
                   _________________________________

EBEL, Circuit Judge.
                         _________________________________

      In 2016, two members of the Aurora Police Department pulled over a car in

which Ajohntae Hammond was riding as the passenger in a busy intersection in

Aurora, Colorado. The question we must decide in this appeal is whether the officers
had reasonable suspicion to believe Hammond was armed and dangerous to justify

frisking him for weapons. The pat-down they conducted revealed a gun in

Hammond’s pocket and Hammond was charged with being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). Based on information the officers

gleaned from the department’s Police Information Management System (“PIMS”)

prior to the pat-down that connected Hammond and the car to gang activity and

weapons possession, along with the officers’ observation that Hammond was wearing

gang colors, we hold that the officers possessed reasonable suspicion to justify the

pat-down search. Therefore, exercising jurisdiction pursuant to 28 U.S.C. § 1291, we

AFFIRM the district court’s decision denying Hammond’s motion to suppress the

firearm.

                                 I.   BACKGROUND

      It was approximately 9:15 PM on the evening of March 16, 2016, when

Officer Randall Ricks and his partner, Officer Jonathan McCants, pulled up behind a

black Chevrolet Monte Carlo stopped at a red light. Noticing that the Monte Carlo

had a brake light out, Officer Ricks ran a search for the vehicle’s license plate in the

PIMS. From this search Officer Ricks learned that the car had been seized in

connection with a weapons possession case in mid-February of that year, and that an

individual named Ajohntae Hammond had been arrested as part of that case. From

there, Officer Ricks ran a PIMS search for Hammond, which revealed that in addition

to his arrest for the weapons possession case mentioned in connection to the Monte

Carlo, Hammond had also been listed as a suspect in a separate weapons possession

                                            2
case, and had been flagged in the system as a documented gang member. At this

point Officer McCants turned on his lights and sirens, and pulled over the Monte

Carlo on the basis of the broken brake light.

      The Monte Carlo pulled into a parking lot just past the intersection of South

Chambers and East Alameda in Aurora, Colorado. At the district court Officer Ricks

agreed that this was a “major” and “well-lit” intersection with several commercial

businesses and apartment complexes, and that there was traffic traveling in both

directions at the time of the stop. Aplt. App. Vol. III at 15–16. He added that while

“the area itself” is one he paid “particular attention to” as a high-crime neighborhood,

the intersection itself was not a high-crime area. 

In fact the Aurora Police

Department building is located at one corner of the intersection.

      Officers Ricks and McCants then approached the Monte Carlo. While Officer

McCants began to interact with the driver, Officer Ricks—with Hammond’s name

and criminal history in mind—knocked on the passenger window and asked that it be

rolled down. The passenger, later identified as Hammond, opened the door and

explained that the window did not roll down. Officer Ricks then asked for

identification, and after first asking why Officer Ricks needed to see his

identification, Hammond handed Ricks his ID, which confirmed that he was, in fact,

Ajohntae Hammond.

      It was at this point that Officer Ricks “decided that Mr. Hammond would be

asked to step out of the vehicle and would be pat [sic] down for weapons.” 

According to Officer Ricks, he did so

                                           3
      [b]ased on the fact that I had, prior to the stop, learned that Mr.
      Hammond had been arrested once for weapons possession, listed as an
      offender suspect in one case and was listed as a gang member. And
      through my training and experience, I know that gang members are
      often known to carry weapons on or about their person.

Officer Ricks also noted that Hammond was wearing “clothing

commonly worn by members of the Crip street gang,” namely a “[g]ray and blue LA

Dodgers hat, gray pants and gray shoes and a blue belt.” 

      At first, Hammond objected to Officer Ricks’s request for him to exit the

vehicle. He ultimately, however, calmly complied with the order when Officer

McCants “interjected and told him, because he was a documented gang member, we

wanted to make sure he didn’t have any weapons on him.” 

As Hammond

exited the Monte Carlo he continued to ask the officers questions, but was not

aggressive in his tone. After Officer McCants joined him on the passenger side of

the car, Officer Ricks conducted a pat-down search of Hammond, eventually

discovering a loaded .32 caliber Beretta Tomcat in the front pocket of his sweatshirt.

      After securing the weapon and placing Mr. Hammond under arrest, the officers

confirmed that Hammond had a prior felony conviction. On this basis the

government charged Hammond with one count of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1).

      Hammond moved to suppress the gun as fruit of an illegal search. Specifically

he argued that Officers Ricks and McCants did not have reasonable suspicion that he

was armed and dangerous when they ordered him out of the car and conducted their

pat-down search. After a suppression hearing the district court denied the motion,

                                          4
and Hammond conditionally pled guilty, reserving the right to appeal the denial to

this Court.

                                II.   DISCUSSION

      The Fourth Amendment protects persons against “unreasonable searches and

seizures.” U.S. Const. amend. IV.1 This Court has recognized three types of police-

citizen encounters: (1) “consensual encounters which do not implicate the Fourth

Amendment”; (2) “investigative detentions which are Fourth Amendment seizures of

limited scope and duration and must be supported by a reasonable suspicion of

criminal activity”; and (3) “arrests, the most intrusive of Fourth Amendment seizures

and reasonable only if supported by probable cause.” United States v. Davis, 

, 1467-68 (10th Cir. 1996) (internal quotations and citations omitted)

(“Davis I”). The government does not argue that this encounter was consensual or

that it was supported by probable cause. We therefore treat the encounter here as an

investigative detention.

      During the “course of a valid investigative detention, an officer may conduct a

limited protective search (‘frisk’) if the officer harbors an articulable and reasonable

suspicion that the person is armed and dangerous.” 

(citing United States

v. King, 

, 1557 (10th Cir. 1993)). Here, Hammond does not challenge

the validity of the original traffic stop, and so the question before us is whether

Officers Ricks and McCants had reasonable suspicion that Hammond was armed and


1
 The Fourth Amendment is enforceable against the States through the Due Process
Clause of the Fourteenth Amendment. Mapp v. Ohio, 

, 655 (1961).
                                            5
dangerous at the time they decided to frisk him for weapons. In reviewing the denial

of a motion to suppress, we accept the district court’s factual findings unless clearly

erroneous, and review de novo the question of whether the search was reasonable

under the Fourth Amendment. United States v. Davis, 

, 1288 (10th

Cir. 2011) (“Davis II”) (citing United States v. Gregoire, 

, 875 (10th

Cir. 2005)).

       The reasonableness of a pat-down search during an investigative detention is

governed by the Supreme Court’s analysis in Terry v. Ohio, 

(1968). See,

e.g., United States v. Garcia, 

, 1142 (10th Cir. 2014)) (“Garcia II”). In

Terry, the Supreme Court held that a pat-down search, while brief, is a “serious

intrusion upon the sanctity of the person, which may inflict great indignity and arouse

strong resentment, and it is not to be undertaken lightly.” 

–18.

The Court further held, however, that “there must be a narrowly drawn authority to

permit a reasonable search for weapons for the protection of the police officer, where

he has reason to believe that he is dealing with an armed and dangerous individual.”

While the officer “need not be absolutely certain that the individual is

armed,” he must be sure that “a reasonably prudent man in the circumstances would

be warranted in the belief that his safety or that of others was in danger.” 

possesses this reasonable suspicion, an officer is permitted to “conduct a carefully

limited search of the [suspect’s] outer clothing . . . in an attempt to discover weapons

which might be used to assault him.” 

                                           6
      The Terry analysis, while developed in reaction to encounters among police

and pedestrians, also applies in the context of a traffic stop. See, e.g., Arizona v.

Johnson, 

, 330 (2009). Once a vehicle has been lawfully detained

pursuant to a valid traffic stop, the officers may order the driver and passengers out

of the car without violating the Fourth Amendment. 

Further, an officer

may perform a pat-down of a driver and any passengers “upon reasonable suspicion

that they may be armed and dangerous.” 

(quoting Knowles v. Iowa, 

, 117-18 (1998)). “While reasonable suspicion cannot be based on a ‘mere

hunch,’ it also ‘need not rise to the level required for probable cause, and falls

considerably short of satisfying a preponderance of the evidence standard.’”

Davis 

(quoting United States v. Arvizu, 

,

274(2002)). The purpose of this pat-down, however, “is not to discover evidence of a

crime, ‘but to allow the officer to pursue his investigation without fear of violence.’”

United States v. Manjarrez, 

, 886–87 (10th Cir. 2003) (quoting Adams

v. Williams, 

, 146 (1972)).

      In assessing whether officers have reasonable suspicion to effectuate this stop,

courts look to the “totality of the circumstances” surrounding the interaction.

Davis 

. “This process allows officers to draw on their own

experience and specialized training to make inferences from and deductions about the

cumulative information available to them that might well elude an untrained person.”

(quoting 

).



                                            7
      For example, in United States v. DeJear, 

, 1200–01 (10th Cir.

2009), this Court found reasonable suspicion for a Terry frisk notwithstanding the

fact that when the officers originally approached the car containing the defendant the

car was lawfully parked and they had no information illegal activity was occurring.

There, after officers approached the vehicle, they noticed that the passengers were “in

a very nervous state,” and that one of the men in the backseat of the car was holding

a baseball bat. 

The Court reasoned that these observations, combined

with the vehicle’s location in a high-crime neighborhood and the fact that the officers

had recently observed individuals wearing gang colors parked outside the same

house, were sufficient to establish reasonable suspicion that the suspect was armed

and dangerous. 

words, the officers’ experiences during the interaction

heightened their suspicion enough to meet the Terry standard.

      The facts in this case also bear resemblance to those in Garcia II. There, a

single officer pulled over a car on a “sparsely traveled avenue,” and arrested the

driver for driving with a suspended license. Garcia 

. With the

driver arrested, the officer was required to inventory the car, which meant the

passenger needed to be removed from the vehicle. 

officer was alone,

this entailed ordering the passenger out of the car and then necessarily turning his

back on the passenger while conducting the search. See 

the

passenger out of the car, the officer recognized him as Mr. Garcia, whom the officer

had encountered two weeks prior. 

first encounter the officer had

arrested Mr. Garcia—whom he knew as a drug user with a criminal history—but Mr.

                                           8
Garcia had been unarmed. 

Mr. Garcia upon ordering him out

of the car, the officer also noticed that he was acting “nervous” and was “possibly

hiding something.” 

      On the basis of, (1) his previous encounter, (2) Garcia’s criminal history,

including an armed robbery felony, (3) a concern that the officer was alone and

would have to turn his back on Mr. Garcia, (4) Mr. Garcia’s nervousness, and (5) Mr.

Garcia’s history with drugs, the officer decided to conduct a pat-down for weapons.

This Court held that, while any one of these facts alone would be

insufficient to support reasonable suspicion, the totality of the circumstances meant

the officer had reasonable suspicion that Garcia was armed and dangerous. 

      So too here. As did the officer in Garcia II, Officers Ricks and McCants

possessed reasonable suspicion that Hammond was dangerous, and here that

suspicion of dangerousness was inexorably linked to a concern about firearms. As a

result of their PIMS search, the officers knew that Hammond had been arrested

recently in connection with weapons possession, that he had previously been a

suspect in another weapons case, and that he was listed as a suspected gang member,

which the officers knew often suggested the presence of guns.

      Standing alone, a criminal record—let alone arrests or suspected gang

affiliation—“is not sufficient to create reasonable suspicion of anything[.]” United

States v. Rice, 

, 1085 (10th Cir. 2007). Nor should it be. After all,

“[i]f the law were otherwise, any person with any sort of criminal record—or even

                                           9
worse, a person with arrests but no convictions—could be subjected to a Terry-type

investigative stop by a law enforcement officer at any time[.]” United States v.

Sandoval, 

, 543 (10th Cir. 1994). Such a rule would offend the careful

balance between individual liberty and public safety that is at the heart of the Fourth

Amendment.

      But where, as here, the circumstances of the stop itself interact with an

individual’s criminal history to trigger an officer’s suspicions, that criminal history

becomes critically relevant for Terry-purposes. See, e.g., United States v. Palmer,

, 1246 (10th Cir. 2004) (holding that defendant’s status as an ex-

convict was relevant alongside evidence that he had tried “to delay his encounter

with the officer until he could hide something in his glove box”). Critically, upon

approaching the passenger side of the Monte Carlo, Officer Ricks observed

Hammond wearing colors commonly associated with the Crips gang. Furthermore,

the district court found, based on Officer Ricks’s testimony, that “there was a feud

ongoing between sets of the Bloods and Crips gangs and even between or among sets

within the Crips gang itself.” Aplt. App. Vol. III at 47.2

      At this point the officers knew that Mr. Hammond was a gang member who

had recently been arrested for weapons possession, that he was riding in the very car


2
  On cross-examination Ricks admitted that there was nothing “notable” about this
particular date in terms of feuding between the gangs, but rather that there is
basically “always” feuding between the Bloods and the Crips. Aplt. App. Vol. III
at 17. However, we accept the district court’s factual findings unless clearly
erroneous, which, upon consideration of Officer Ricks’s testimony, this is not. Davis

(citing 

).
                                           10
seized during his previous arrest, and that he was wearing gang colors. Here,

Officers Ricks and McCants had reasonable suspicion that a suspected felon, who

was actively advertising his gang affiliation, was armed. Under those circumstances,

an officer is justified in his concern that “his safety or that of others was in danger.”

.

       Certainly, the fact that here, unlike in Garcia II, there were two officers is also

relevant to the reasonable-suspicion calculus. There, the Court relied heavily on the

fact that the only officer on the scene would have to turn his back on the un-

restrained suspect while conducting an inventory search. Garcia 

.

But we have never said, nor do we today, that a second officer’s presence and ability

to “cover” the first officer eliminates a suspect’s supposed dangerousness. See, e.g.,

United States v. Guardado, 

, 1223–24 (10th Cir. 2012) (holding that

Terry frisk was justified despite the presence of two officers and only one suspect).

That is especially true where, as here, the number of people in the stopped vehicle is

the same as the number of officers at the scene. In any event, if Mr. Hammond had a

gun readily available in his clothing, it could quickly be grabbed and used against

both officers or used to hold one hostage. Thus, we do not find the presence of two

officers here ameliorates the risk to Officer Ricks.

       Our holding today is not to suggest that Mr. Hammond, or any other person

suspected or convicted of an armed crime in the past, may be indiscriminately

stopped and frisked on the basis of his criminal history and gang affiliations. Rather,

when a (1) known gang member (2) who was a suspect in a prior weapons possession

                                            11
case and who had (3) recently been arrested in connection with another weapons

case, is pulled over (4) while riding in a car that had previously been seized in

connection with the individual’s prior arrest, (5) while wearing colors which loudly

display his affiliation with a gang involved in an ongoing feud, it is reasonable for

officers to perform a brief, non-invasive search to ensure their own safety and that of

the surrounding community.

                              III.   CONCLUSION

      The totality of the circumstances surrounding Officer Ricks’s interaction with

Mr. Hammond provided reasonable suspicion that he was armed and dangerous at the

time of the traffic stop. Accordingly we AFFIRM the district court in full.




                                           12
17-1102, United States v. Hammond

PHILLIPS, Circuit Judge, dissenting

         I agree with the majority that the two officers had objectively reasonable suspicion

that Hammond was armed.1 On that point, I too rely on the information the officers

obtained from PIMS—that Hammond had three weeks earlier been arrested for illegally

possessing a weapon,2 in an encounter leading police to seize the same car stopped here;

that Hammond had more than a year earlier been a suspect in another weapon-possession

case; and that Hammond was a documented member of the Crips gang. I also rely on

Hammond’s wearing Crips-gang colors that night. For me, those are the facts relevant to

whether Hammond was armed.

         But some other facts from that evening weigh against dangerousness, unless one

takes a view that Hammond would be as likely to fire a gun at police outside their

department building in well-lit conditions with many witnesses and a congested escape

route.

         In analyzing dangerousness, we first must ask dangerous to whom? Here, the

asserted danger must be to the two officers (though, of course, any crossfire would


         1
         “Pat-down searches are constitutional when an officer has reasonable suspicion
that an individual is ‘armed and dangerous.’” United States v. Garcia (Garcia II), 

, 1142 (10th Cir. 2014) (citing United States v. Rice, 

, 1082 (10th
Cir. 2007)).
         2
          Nowhere in the record, or during oral argument, did the government identify
what made this earlier weapon possession illegal. Nor has it done so for the instant arrest,
at least until the officers learned that the already-arrested Hammond had a felony
conviction.
inadvertently endanger bystanders). So the government cannot prevail on reasonable

suspicion of danger just by showing that Hammond might later pose a danger to a rival

gang member encountered in a dark alley. Danger is specific to the moment before the

police pat down a person.

       Though reciting danger-lessening facts early in the opinion, the majority never

credits how they weigh against dangerousness. Among these factors are (1) that the stop

was for the minor violation of a burned-out taillight; (2) that the police didn’t treat the

female driver as a threat to their safety; (3) that Hammond was courteous, calm, and

compliant, not exhibiting anger, intoxication, or any other worrisome state;3 and (4) that

Hammond voluntarily stood outside the car’s passenger-side door in a well-lit, busy

intersection, surrounded by commercial buildings, with the Aurora Police Department

located on a corner.

       In its concluding paragraph, the majority tries to limit the breadth of its holding,

approving frisks (patdowns for weapons) to ensure officer safety only “when a (1) known

gang member (2) who was a suspect in a prior weapons possession case and who had

(3) recently been arrested in connection with another weapons case, is pulled over (4)

while riding in a car that had previously been seized in connection with the individual’s




       3
        The district court found “that at all times Mr. Hammond behaved himself, was
cooperative, was not aggressive. There’s no indication of any furtive movements. There’s
no indication of any nervous behaviors, none of those kinds of things, nor do the officers
claim any of that.” R. vol. 3 at 48–49.

                                              2
prior arrest, (5) while wearing colors that loudly display his affiliation with a gang

involved in an ongoing feud[.]”4 Maj. op. at 11–12.

       But the opinion will be applied more broadly than that. I expect that the

government will long cite this case as authorizing frisks, and I expect that the government

will stress that we allowed a frisk here under all of the surrounding circumstances, not

just those bearing on whether Hammond was armed. Beyond that, I expect that the

government will use this case to argue that safety-protective factors don’t matter in

considering the totality of circumstances—after all, they’re not included in the majority’s

five-factor analysis. That can’t be right.

       The majority does specifically review one risk-mitigating factor—that the stop

involved two officers and two car occupants. 

To support its conclusion that “the

presence of two officers here [doesn’t] ameliorate[] the risk[,]” the majority points out

that we have never said that equal numbers “eliminate[] a suspect’s supposed

dangerousness.” 

But neither have we said that equal numbers can never defeat

an objective reasonable suspicion of danger to the officers. We are on unplowed ground

here, and in my view, the majority goes too far in extending the circumstances supporting

frisks of persons not even suspected of a crime.

       The majority may well disagree with me that we are on unplowed ground. After

all, it relies on United States v. Guardado, 

, 1223–24 (10th Cir. 2012), as

“holding that [a] Terry frisk was justified despite the presence of two officers and only


       4
     The majority also says that the officers “suspected” and later “confirmed” that
Hammond was a felon. Maj. op. at 4, 11. I don’t see this in the record.
                                              3
one suspect.” Maj. op. at 11. But Guardado presents markedly different facts from this

case. In Guardado, a suspected gang member (Guardado) fled his compatriots when an

officer approached the group at about 1:00 a.m. in an “extremely high crime area.”

–22. As the man ran, he kept one hand in front of his body,

leading the officer to believe he was trying to conceal evidence or a weapon. 

Upon physically subduing Guardado, the officers strained to remove his hand from

underneath his body. 

so, and handcuffing him, one of the officers frisked

Guardado’s waistband for weapons. 

different situation makes Guardado a

poor candidate to support the majority’s extending the availability of frisks.

       The majority also relies on Garcia II. I see Garcia II as an easier case, with facts

far different from ours. The stop in that case was on a “sparsely travelled” avenue, with

just one officer making the stop. Garcia 

. After arresting the driver,

the officer needed to inventory the car, so the officer had to turn his back to Garcia; the

officer apparently couldn’t await backup, because of staffing issues; the officer

remembered a recent encounter in which Garcia had fled and, when caught, required

tasering after assuming a fighting stance with fists clenched; the officer knew that Garcia

had a violent felony (armed robbery); the officer knew that Garcia was a drug user,

especially heroin; and during the stop, the officer observed that Garcia acted nervously,

avoiding eye contact and playing with his hands. 

facts in Garcia II

present far more likelihood of danger to officer safety than do those here.5


       5
        The majority also relies on United States v. DeJear, 

(10th Cir.
2009), as a case where the facts “were sufficient to establish reasonable suspicion that the
                                              4
       As support for its new rule—that a person like Hammond, reasonably suspected of

being armed, always presents a danger in the majority’s listed circumstances—the

majority makes a fact finding better suited for the district court. Namely, the majority

asserts that “if Mr. Hammond had a gun readily available in his clothing, it could quickly

be grabbed and used against both officers or used to hold one hostage.” Maj. op. at 11.

Maybe so. But I think that the district court needs to make that type of finding based on

meaningful evidence from the government.6 And the district court didn’t.

       In my view, the district court collapsed armed and dangerous into one condition.

In other words, it assumed that if the officers had objectively reasonable suspicion that

Hammond was armed, then they would automatically have objectively reasonable

suspicion that he endangered them during the misdemeanor stop. See R. vol. 3 at 46–51.

The district court didn’t explain how Hammond might endanger an alert officer intently

watching him for the few minutes needed to complete the taillight stop. 

district court declared the frisk legal based on “common sense,” saying that the officer

had to do something other than ask Hammond to sit by the curb7 or ask him how he was

doing that evening or about the Denver Broncos. R. vol. 3. at 50. To spare the officer any

suspect was armed and dangerous.” Maj. op. at 8. I read DeJear as a Terry-stop case,
upholding reasonable suspicion of criminal activity, not reasonable suspicion that the
person was armed and dangerous. 

(“[T]he district court
properly concluded that [the officer] had reasonable suspicion to detain Mr. DeJear.”).
       6
          Surely the government could provide evidence, including officer testimony or
statistics, explaining common outcomes in this type of circumstance.
       7
        As opposed to frisking Hammond, which Terry recognizes is a significant Fourth
Amendment event, see Terry v. Ohio, 

, 17–18 (1968), the officers might have
protected themselves by actions less intrusive than a frisk.
                                             5
awkward small talk, I guess, the district court approves a frisk instead. I would require

more—a fact finding, based on meaningful evidence, that the officers had objectively

reasonable suspicion that Hammond would endanger them during the stop.




                                             6