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United States v. Hammond

United States Court of Appeals, Tenth Circuit

May 15, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
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.


         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 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. Id. at 16. 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." Id. at 11. According to Officer Ricks, he did so

[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.

Id. at 11-12. 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." Id. at 11.

         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." Id. at 13. 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, and ...

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