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United States v. Lozano

United States Court of Appeals, Eighth Circuit

February 26, 2019

United States of America Plaintiff - Appellant
Joshimar Rodriguez Lozano Defendant-Appellee

          Submitted: January 14, 2019

          Appeal from United States District Court for the Southern District of Iowa - Des Moines

          Before SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.

          ERICKSON, Circuit Judge.

         Joshimar 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.

         I. Background

         On 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 order.[1]

         M.A. 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.

         Once 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.

         Before 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.

         Rodriguez 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.

         II. Discussion

         "[T]he 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 scrutiny." Id.

         The 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. Grant, ...

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