[Copyrighted Material Omitted]
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. No. 1:12-CR-00258-WJM-1).
John T. Carlson, Assistant Federal Public Defender (Warren R. Williamson, Federal Public Defender, Interim, and Virginia L. Grady, Federal Public Defender, Interim, with him on the briefs), Denver, Colorado, for Defendant -- Appellant.
Robert M. Russell, Assistant United States Attorney (John F. Walsh, United States Attorney, and W. Aaron Vandiver, Special Assistant United States Attorney, with him on the brief), Denver, Colorado, for Plaintiff -- Appellee.
Before BRISCOE, Chief Judge, TYMKOVICH, and PHILLIPS, Circuit Judges.
PHILLIPS, Circuit Judge.
At a street intersection in Aurora, Colorado, police officers barricaded 20 cars carrying 29 people after learning that one of the cars contained a tracker secreted in money stolen minutes earlier during a bank robbery. Delays in obtaining and properly using a homing beacon slowed police in isolating which car had the stolen money. Twenty-nine minutes into the stop, police removed Christian Paetsch from his car after seeing him act suspiciously and disobey their orders by putting his hands back inside his car. About an hour after this, and after police had removed everyone from their cars, they looked through Paetsch's car window and saw a money band that banks use to wrap currency. Soon afterward, an officer with a homing beacon isolated the tracker's signal as coming from Paetsch's car. In total, police detained the other 28 people for 2 hours and 18 minutes.
After conditionally pleading guilty to a bank robbery and a firearm charge, Paetsch appealed the district court's denial of his motion to suppress evidence. He maintains that the barricade's group seizure was unreasonable at its inception and, if not, became unreasonable because of its duration and the police's tactics used during the barricade. We evaluate the stop at its two separate stages affecting Paetsch--first, the 29 minutes he was detained as part of the general barricade seizure, and, second, the 64 minutes or so after officers developed individualized suspicion of him due to his suspicious behavior. Finding that Paetsch's Fourth Amendment rights were not violated at either stage, we affirm the district court's order denying his suppression motion.
On June 2, 2012, at about 3:47 p.m., a Saturday, Christian Paetsch walked into a Wells Fargo Bank in Aurora, Colorado, wearing gloves, a bee-keeper's mask, and dark clothes that concealed him from head to toe. In one hand Paetsch held an air horn, and in the other, a handgun. After blasting the air horn, he yelled for everyone to get down on the floor. He then snatched stacks of money from the teller's
drawer, stuffed them into his coat pockets, and fled.
Unknown to Paetsch, one of the stacks of money contained a Global Positioning System (GPS) tracking device. Seconds after Paetsch had stolen the money from the teller drawer, the tracker began transmitting a silent signal to the Aurora Police Department, which allowed police to follow the tracker's street location on a computer monitor. Using these tools, police could locate the tracker to about a 60-foot diameter. Soon after the money left the bank, dispatchers began radioing the tracker's location to police officers in the field.
About five minutes after the robbery, dispatch reported that the tracker had stopped about a half-mile from the bank. Three minutes later, dispatch reported that the tracker was again moving, this time at speeds of 30 to 40 miles per hour, which likely meant that the currency, the tracker, and the bank robber were traveling in a car. Soon after this, dispatchers reported that the tracker was moving eastbound on Iliff Avenue toward Buckley Road and then that it had stopped at the intersection.
At 4:01 p.m., about 14 minutes after the bank robbery, Officer Kristopher McDowell arrived at the intersection and saw traffic stopped at a red light. Dispatch told him that the tracker was still stopped there. Before the light turned green, under pressure to make a quick decision, Officer McDowell blocked the traffic with his patrol car and signaled with his arms and hands that the cars must remain stopped. Within minutes, several patrol cars arrived and barricaded the motorists from leaving in either direction. Using a public-address system, police ordered the motorists to raise their hands, outside their car windows if possible, and not to move. In all, the officers stopped a group of 20 cars containing 29 people.
At 4:08 p.m., seven minutes after Officer McDowell had stopped traffic, Lieutenant Christen Lertch arrived and took charge. He confronted a difficult situation. First, the police had little information about the bank robber's physical appearance. They knew only that one of the bank tellers thought the robber was male based on his voice, guessing that he was a Caucasian in his 20s or 30s. Second, the police had no information about what kind of car the bank robber was driving. Third, although the police knew that the bank robber was likely in one of those 20 cars, they could not say which particular car because the GPS could pinpoint the tracker's location only to a 60-foot diameter.
Lt. Lertch told dispatch to have officers working with " Safe Streets," an FBI task force, get a homing beacon to the scene as soon as possible. These beacons allow police to pinpoint a tracker's location to a 10-foot diameter. Dispatch notified Lt. Lertch that task-force officers were already coming with the beacon and would arrive within 20 to 30 minutes. Thirty minutes later, Lt. Lertch requested an update, and, after checking, dispatch told him it would be another 20 to 30 minutes. Frustrated, he then demanded to speak with the FBI Task-Force Officer, T.J. Acierno, a deputy sheriff working on the FBI's " Safe Streets" program, impressing upon him with strong language the need for him to arrive as soon as possible.
Because it was a Saturday, Officer Acierno had begun the day off duty. When he learned of the bank robbery, he was at his home on the northwest side of Denver, about 25 miles from the barricade. To assist, Officer Acierno first needed to drive about 13 miles to an FBI office north of downtown Denver to get the beacon and then another 16 miles to get to Lt. Lertch on the southwest side of the city. He was delayed, first because he realized on the
way that he had forgotten his keys to the FBI office and needed to return home to get them, and second because his siren broke along the way.
At about 4:30 p.m., before Acierno arrived with the beacon, police officers removed occupants from three of the cars toward the back of the group of 20. In two of those cars, officers had noticed the solo occupants behaving suspiciously. An officer saw a man in a car (a sports utility vehicle) shifting in his seat, repeatedly looking around, and failing to keep his hands outside his car as ordered. Officers removed the man from his car. He was the bank robber, Christian Paetsch.
To remove Paetsch from his car, a team of four officers approached it from the rear, with weapons drawn. They ordered Paetsch out of his car and on the ground. Paetsch complied. Officers approached him, handcuffed him, and sat him on a curb away from the cars. The officers used the same procedure to remove the other motorist who had acted suspiciously. They removed the occupants of a third car for tactical reasons.
At about 4:55 p.m., Officer Acierno finally arrived with the beacon. Despite his training, it soon became evident that he was unable to use the beacon correctly to locate the GPS tracker. Even so, he did get a weak signal from one of the 20 cars, specifically from Paetsch's car. Because he could not use the beacon to its full capabilities, Officer Acierno called Patrick Williams, a Colorado state trooper also working as a " Safe Streets" task-force officer. Officer Williams was interviewing witnesses at the bank. Officer Acierno requested help with the handheld beacon, and Officer Williams began making his way to the barricade. No one told Lt. Lertch that Officer Williams was coming.
Meanwhile, at a standstill after Officer Acierno's disappointing performance with the beacon, Lt. Lertch ordered that his officers remove all occupants from the remaining 17 cars--again they did so using weapons and ballistic shields. Officers treated adults traveling without children as suspects and handcuffed them. At least in some cases, officers at close range fixed their firearms on the heads and bodies of the people removed from their cars. After ensuring that none were armed, officers sat them on the curb.
By 5:25 p.m., the officers had cleared out every car. Then they did a " secondary search," peering through car windows to ensure that nobody was hiding. R. vol. 3, at 197--98. During this secondary search, an officer saw through Paetsch's car window a $2,000 " money band" --a slip of colored paper that banks use to wrap stacks of money. Id. at 198--99. Upon being informed of this, Lt. Lertch and several other officers came over to see the money band.
Shortly after this, Officer Williams arrived. An expert in using handheld beacons, he set its functions correctly and quickly got a very strong signal from inside Paetsch's car. Officers then arrested Paetsch and put him in the back of a police car. A search of his car revealed more incriminating evidence: $22,956 in cash, two handguns, boxes of ammunition, a mask, a wig, a pair of gloves, an empty air ...