APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. CR-07-00108-M).
The opinion of the court was delivered by: McCONNELL, Circuit Judge.
Before HARTZ, McWILLIAMS and McCONNELL, Circuit Judges.
Defendant-Appellant Keith Thompson was approached by police officers while walking to his car at a convenience store. Four police cars pulled into the parking lot, and one parked about twelve feet behind Mr. Thompson's car. An officer asked Mr. Thompson if he had anything illegal. Mr. Thompson eventually admitted to having a gun in his pocket. He was convicted of gun possession by a convicted felon. We are now called upon to determine whether this police encounter violated the Fourth Amendment. We affirm the district court's denial of his motion to suppress.
Four squad cars were en route to a high crime area along I-35 in Oklahoma City when Officer Zepeda noticed four or five people standing in the parking lot of a 7-11 convenience store. Officer Zepeda pulled into the parking lot, followed by two of the other squad cars. The fourth squad car made a U-turn and then pulled into the lot. Officer Zepeda parked his car approximately twelve feet behind a red Mustang, later identified as belonging to Defendant-Appellant Keith Thompson. The other three officers parked their vehicles closer to the store. Based on somewhat conflicting testimony, the district court found: "it may be likelythat Thompson would not have been able to back his car out without Officer Zepeda moving his vehicle . . . ."
When the squad cars pulled into the parking lot, Mr. Thompson was coming out of the store with a drink and doughnut and walking towards his car. Two officers entered the 7-11, where they ultimately arrested someone for marijuana possession. Fully uniformed, with his weapon holstered, Officer Zepeda approached Mr. Thompson without any particularized grounds for reasonable suspicion, simply because "he was the only one that wasn't running." After asking Mr. Thompson if he could speak with him and receiving consent, Officer Zepeda asked Mr. Thompson if he had anything illegal. Mr. Thompson became nervous and did not answer the question. Officer Zepeda told him to relax and then repeated his question. Mr. Thompson responded, "I have a gun in my back pocket."
Officer Zepeda told Mr. Thompson to put his hands on the car, and then reached around and felt the gun through the outside of Mr. Thompson's back pocket. He told Mr. Thompson to leave his hands on the car, removed the weapon, and gave it to another officer who had walked over to assist him. Officer Zepeda then placed handcuffs on Mr. Thompson for investigative purposes. Upon realizing that the gun had the serial number ground off of it, the officers arrested Mr. Thompson. While running a background check, Officer Zepeda asked him if he was a convicted felon. Mr. Thompson said that he was, and his statement was confirmed through the computer background check. Six days later, Mr. Thompson was interviewed while in jail, and he confirmed his earlier admission that he illegally possessed a gun at the time of his arrest.
Mr. Thompson was charged with gun possession by a convicted felon. He filed motions to suppress evidence resulting from his encounter with Officer Zepeda and his subsequent jailhouse confession, both of which were denied. At trial, however, the government did not introduce the subsequent jailhouse confession. The jury voted to convict.
On appeal, Mr. Thompson maintains that the initial encounter with Officer Zepeda constituted a seizure, which was not supported by reasonable suspicion or probable cause. As a result, he argues that the gun and subsequent confession were fruits of the poisonous tree and should have been suppressed. Even if the initial encounter was not a seizure, Mr. Thompson argues that the subsequent search was not consensual.
According to formal legal doctrine, an encounter between an individual and the police is consensual when "a reasonable person would feel free 'to disregard the police and go about his business.'" Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting California v. Hodari D., 499 U.S. 621, 628 (1991). In addressing this question, however, we must be guided by the Court's decisions in similar cases rather than our own experience regarding how reasonable people actually respond to police investigations.*fn1
The most recent Supreme Court case relevant to this question is United States v. Drayton, 536 U.S. 194 (2002). In Drayton, the defendants were passengers on a Greyhound bus that had stopped to refuel. Three police officers boarded the bus as part of a routine drug and weapons interdiction effort. One officer stood at the back of the bus, one at the front, and the other next to or behind each passenger as he asked him questions. The Court noted that the exits of the bus were not blocked. Id. at 204. When talking to the defendants, the officer stated his purpose and asked if they had any bags on the bus. Id. at 198. The officer obtained permission to search the defendants' bag, which revealed no contraband. Noticing the defendants were wearing baggy clothes, he asked if he could check their persons. Id. at 199. Each permitted a pat down search, which revealed packages of drugs, and the officers arrested both defendants. Id. The Supreme Court held that because there was "no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, [and no] authoritative tone of voice," and the encounter took place in the presence of other citizens, the interaction was consensual and no seizure had occurred. Id. at 204.
Drawing on the decisions in Drayton and other cases, this Court has identified a list of factors relevant to ...