Submitted: January 14, 2019
from United States District Court for the Southern District
of Iowa - Des Moines
SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.
ERICKSON, Circuit Judge.
Rodriguez Lozano ("Rodriguez") was indicted for
being an illegal alien in possession of a firearm and
ammunition, in violation of 18 U.S.C. §§ 922(g)(5)
and 924(a)(2). Before trial, the district court granted
Rodriguez's motion to suppress, finding the encounter
with law enforcement was not consensual at its inception and
did not become consensual at any time before Rodriguez's
arrest. Because we find the evidence in the record
establishes Rodriguez's encounter with law enforcement
was consensual and Rodriguez consented to the pat-down
search, we reverse.
October 13, 2017, at approximately 1:18 a.m., Officer Brandon
Condon, a West Des Moines, Iowa, police officer, arrived at
an apartment complex after receiving a citizen's report
of suspicious activity involving "two black males
walking around." While driving through the parking areas
of the complex, Officer Condon saw Rodriguez and
Rodriguez's friend, M.A. Rodriguez, who is Hispanic, was
in high school at the time. M.A. is a juvenile black male.
M.A. testified that in April 2018, he had recently turned 17
years old and will graduate from high school in 2020. M.A.
and Rodriguez attend the same high school. The parties
presented no direct evidence of Rodriguez's age prior to
the time the court entered its suppression
testified that Officer Condon parked his patrol car along the
curb, approximately 15 to 20 feet behind Rodriguez and M.A.,
who were walking from M.A.'s apartment and heading toward
Rodriguez's apartment. M.A. identified the vehicle as a
police car. Officer Condon exited his vehicle and approached
Rodriguez and M.A. Officer Condon called their attention by
saying something to the effect of "Hey, guys." M.A.
interpreted Officer Condon's words as a request to speak
with them. He testified he was unsure if he was free to walk
away from the officer at that point.
Officer Condon, Rodriguez, and M.A. were in close proximity,
Officer Condon asked them either what was going on or why
they were out so late and also requested their names.
Rodriguez and M.A. provided their names. Officer Condon
communicated their names back to the department. M.A.
testified he believed the officer appeared because of a
report made by a neighbor. Rodriguez and M.A. told the
officer they were walking to Rodriguez's apartment for a
sleep over. The officer learned where Rodriguez and M.A. went
to school and they talked about the sports teams Rodriguez
and M.A. were on. M.A. testified that Officer Condon was
generally "friendly" and was not
"overaggressive." After the small talk, Officer
Condon offered to give Rodriguez and M.A. a ride to
Rodriguez's apartment. Both Rodriguez and M.A. accepted
Officer Condon's offer.
allowing Rodriguez and M.A. in his patrol car, Officer Condon
advised Rodriguez and M.A. that he would have to pat them
down for his safety. Neither Rodriguez nor M.A. protested the
pat-down. M.A. testified that Officer Condon told them to
lift their arms. Officer Condon testified Rodriguez lifted
his arms without being asked to do so. Officer Condon noticed
that Rodriguez moved his arms but was not moving his feet
very far apart to facilitate the pat-down of his lower body.
Officer Condon directed Rodriguez to spread his legs once or
twice. After Rodriguez complied, Officer Condon discovered an
item concealed in the groin area of Rodriguez's pants.
Upon feeling the item, Rodriguez admitted it was a gun.
Officer Condon retrieved the gun when it fell down
Rodriguez's pant leg. He then immediately called for
backup, ordered M.A. to get on the pavement, and handcuffed
Rodriguez. M.A. was questioned and released. Rodriguez was
taken into custody.
was charged with being an illegal alien in possession of a
firearm and ammunition. He filed a motion to suppress all
evidence pertaining to the firearm, asserting Officer
Condon's contact with Rodriguez and M.A. constituted an
unconstitutional seizure. The district court agreed and
granted Rodriguez's suppression motion. The government
filed this interlocutory appeal.
Fourth Amendment prohibits only unreasonable
'seizures.'" United States v. Grant,
696 F.3d 780, 784 (8th Cir. 2012). "A seizure occurs
'if, in view of all of the circumstances surrounding the
incident, a reasonable person would have believed that he was
not free to leave.'" Id. (quoting INS
v. Delgado, 466 U.S. 210, 215 (1984)). Under this
standard, "[o]nly when the officer, by means of physical
force or show of authority, has in some way restrained the
liberty of a citizen may we conclude that a 'seizure'
has occurred." Id. (quoting Florida v.
Bostick, 501 U.S. 429, 434 (1991)). By contrast,
"[s]o long as a reasonable person would feel free to
disregard the police and go about his business, the encounter
is consensual, and no reasonable suspicion is required."
Id. (quoting Bostick, 501 U.S. at 434).
"A 'consensual' encounter between law
enforcement and a citizen triggers no Fourth Amendment
burden of proving that an encounter was consensual rests with
the government. United States v. Garcia, 888 F.3d
1004, 1008 (8th Cir. 2018) (citing United States v.
Aquino, 674 F.3d 918, 923 (8th Cir. 2012)). We review
whether an encounter amounted to a seizure de novo.