United States v. Paetsch

Court Case Details
Court Case Opinion

FILED

United States Court of Appeals

Tenth Circuit

PUBLISH

April 8, 2015

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff – Appellee,


v.

CHRISTIAN PAETSCH,

No. 13-1169

Defendant – Appellant.

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

1

affirm the district court’s order denying his suppression motion.

FACTS

1

We grant Paetsch’s motion to take judicial notice of the materials outside the record.

Appellant’s Br. at 56.

- 2 -

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

- 3 -

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

- 4 -

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

- 5 -

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

- 6 -

revealed more incriminating evidence:

$22,956 in cash, two handguns, boxes of

ammunition, a mask, a wig, a pair of gloves, an empty air horn package, two fake license

plates, and, of course, the GPS tracker embedded within a stack of money.

At 5:38 p.m., the police allowed the detained motorists to return to their cars but kept

them there another 30 minutes to allow crime-scene investigators to gather information.

In total, the police detained the innocent motorists from 4:01 to 6:19 p.m.

Three days later, a federal grand jury indicted Paetsch on two counts: (1) armed bank

robbery, under 18 U.S.C. § 2113(a), (d); and (2) using and brandishing a firearm during

and in relation to a crime of violence, under 18 U.S.C. § 924(c)(1)(A)(ii).

Paetsch filed a motion to suppress statements he had made to police as well as the

physical evidence seized from his car. First, he argued that the initial stop had violated his

Fourth Amendment rights because the police lacked individualized suspicion that any

particular person stopped at the intersection had committed a crime. Second, he argued

that the stop had violated his Fourth Amendment rights because the intrusion on the

individuals’ Fourth Amendment interests outweighed the government’s interests.

The district court held a 3-day hearing and heard 16 witnesses testify. After this, it

granted Paetsch’s motion to suppress the statements he had made to police officers after

invoking his right to speak to an attorney. United States v. Paetsch, 900 F. Supp. 2d 1202,

1221–22 (D. Colo. 2012). But the district court denied the motion to suppress the

evidence seized from Paetsch’s car. Id. Paetsch conditionally pleaded guilty to both

counts, reserving his right to challenge the district court’s suppression order.

- 7 -

The district court sentenced Paetsch to consecutive sentences of 2 months on the

armed-bank-robbery count (despite an advisory guideline range of 41 to 51 months, and

the mandatory minimum of 84 months on the § 924(c) count for brandishing a firearm

during the bank robbery. Paetsch appealed.

DISCUSSION

Under the Fourth Amendment, Paetsch challenges the denial of his motion to suppress

physical evidence seized from his car. He argues that the barricade was unreasonable at

its inception, unreasonable in its duration, and unreasonable in the means used to carry it

out. Specifically, he contends under Indianapolis v. Edmond that the group seizure was

not “appropriately tailored.” And, under the balancing test set forth in Brown v. Texas, he

argues that the barricade did not advance the public interest to a sufficient degree when

weighed against its resulting interference with individual liberty.

We conclude that the stop was constitutional at its inception because it was in fact

“appropriately tailored” to catch a fleeing, armed bank robber. We also conclude that the

gravity of the public concern in apprehending the armed bank robber and the likelihood

of advancing the public interest justified the intrusion on individual liberty—at least until

police developed individualized reasonable suspicion of Paetsch. After that point, we

2

have no reason to evaluate the reasonableness of the barricade seizure.

2

The Government has argued that any determination of whether the police violated

any of the other barricaded people’s Fourth Amendment rights should be determined not
here but in suits brought under 42 U.S.C. § 1983. We simply note that our analysis of the
barricade ends at the point officers developed individualized reasonable suspicion of

- 8 -

We apply a clear error standard when reviewing the district court’s findings of fact. As

noted by the district court, the operative facts are undisputed. Paetsch, 900 F. Supp. 2d at

1205. We review de novo the district court’s conclusions of law—including its finding of

reasonableness under the Fourth Amendment. United States v. Burciaga, 687 F.3d 1229,

1230 (10th Cir. 2012).

1. Did the Barricade Violate Paetsch’s Fourth Amendment Rights?

The Fourth Amendment protects against unreasonable searches and seizures. U.S.

Const. amend. IV. Generally, a seizure made without individualized suspicion of

wrongdoing is unreasonable. City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000)

(holding that a roadway checkpoint randomly stopping motorists without individualized

reasonable suspicion for the primary purpose of general crime control—interdicting

illegal drugs—violated the Fourth Amendment). A traffic stop is a “seizure within the

meaning of the Fourth Amendment.” Delaware v. Prouse, 440 U.S. 648, 653 (1979).

Because roadblocks and checkpoints seize people without individualized reasonable

suspicion, they would violate the Fourth Amendment if subject to that general rule. And,

even here, where police had GPS information showing that the tracker (and likely the

bank robber) were in one of the 20 cars, police initially lacked reasonable, articulable

suspicion of any particular person.


Paetsch, so nothing in this opinion speaks to the constitutionality of the barricade after
that point.

- 9 -

But the “touchstone of the Fourth Amendment is reasonableness, not individualized

suspicion.” Samson v. California, 547 U.S. 843, 855 n.4 (2006). Accordingly, the

Supreme Court has carved out exceptions to the general rule where the primary purpose

of a group seizure went beyond ordinary crime control. See Edmond, 531 U.S. at 37–38.

3

For example, the Court has upheld a border patrol roadblock

designed to intercept illegal

aliens. United States v. Martinez-Fuerte, 428 U.S. 543, 545 (1976). And it has upheld a

sobriety checkpoint aimed at removing drunk drivers from the road to protect public

safety. Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 447 (1990). In those situations,

the Court has not required individualized reasonable suspicion, instead favoring a group-

level balance of interests, weighing the public interest against intrusions on individuals’

liberty.

4

In Indianapolis v. Edmond, the Court explained in dictum

that “there are

circumstances that may justify a law enforcement checkpoint where the primary purpose

would otherwise, but for some emergency, relate to ordinary crime control.” 531 U.S. at

44. As one example, the Court noted, “the Fourth Amendment would almost certainly

permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or

5

to catch a dangerous criminal who is likely to flee by way of a particular route.”

Id. The

3

As we use the terms in this opinion, roadblocks include checkpoints and barricades.

4

We are bound by the Court’s dictum on this issue. See United States v. Orona, 724

F.3d 1297, 1311 (10th Cir. 2013) (reiterating that “we are bound by Supreme Court dicta
almost as firmly as by the Court’s outright holdings, particularly when the dicta is recent
and not enfeebled by later statements”).

5

Along the same lines, Justice Jackson addressed how reasonableness can

accommodate emergencies in these words that help us and support Edmond:

- 10 -

Court distinguished the exigencies in those scenarios from “the circumstances under

which authorities might simply stop cars as a matter of course to see if there just happens

to be a felon leaving the jurisdiction.” Id.

Here, the police knew far more than that an armed bank robber was fleeing on a

“likely route”: they knew that the stolen money (and likely the armed criminal who stole

it) sat in a car idling at that very intersection. And, because the police barricaded only the

20 cars possibly containing the bank robber, their barricade was appropriately tailored to

achieve its constitutional purpose—“to catch a dangerous criminal who is likely to flee

6

by way of a particular route.”

See United States v. Abbott, 265 F. App’x 307, 309 (5th

If we assume, for example, that a child is kidnaped and the officers throw a
roadblock about the neighborhood and search every outgoing car, it would
be a drastic and undiscriminating use of the search. The officers might be
unable to show probable cause for searching any particular car. However, I
should candidly strive hard to sustain such an action, executed fairly and in
good faith, because it might be reasonable to subject travelers to that
indignity if it was the only way to save a threatened life and detect a vicious
crime. But I should not strain to sustain such a roadblock and universal
search to salvage a few bottles of bourbon and catch a bootlegger.

Brinegar v. United States, 338 U.S. 160, 183 (1949) (Jackson, J., dissenting).

6

Different courts have considered whether a roadblock is “appropriately tailored” at

separate points in the analysis. Analyzing a programmatic checkpoint in Lidster, the
Supreme Court treated it as a consideration in weighing the second Brown factor. The
Court said, “The stop advanced this grave public concern to a significant degree. The
police appropriately tailored their checkpoint stops to fit important criminal investigatory
needs.” Lidster, 540 U.S. at 427. In Abbott, which analyzed an emergency roadblock like
ours, the Fifth Circuit considered it a threshold question before turning to whether the
roadblock was reasonable under the circumstances. It held that the roadblock at issue was
not “unconstitutional per se” because it was “properly tailored to detect evidence of a
particular criminal wrongdoing rather than for general crime control.” Abbott, 265 F.
App’x at 309. Finally, in Palacios, the Second Circuit discussed the issue in conjunction
with the third Brown factor. It said that there was appropriate tailoring because the

- 11 -

Cir. 2008) (concluding an emergency roadblock was “properly tailored” because officers

used an electronic tracking device to limit the search area). As such, the barricade’s group

seizure did not violate the Fourth Amendment simply because it lacked individualized

suspicion of a particular motorist. But that does not entirely resolve whether the barricade

comported with the Fourth Amendment. We still must examine whether it was reasonable

under the totality of the circumstances.

To do so, we return to the Fourth Amendment’s underlying principles and weigh the

public interest justifying the seizure against the intrusion on individual liberty. Courts

analyzing roadblocks have balanced those interests under three factors the Supreme Court

announced in Brown v. Texas: “the gravity of the public concerns served by the seizure,

the degree to which the seizure advances the public interest, and the severity of the

interference with individual liberty.” 443 U.S. 47, 51 (1979); see, e.g., Illinois v. Lidster,

540 U.S. 419, 427–28 (2004) (analyzing a checkpoint under the Brown factors);

Martinez-Fuerte, 428 U.S. at 556–64 (same); United States v. Abbott, 265 F. App’x 307,

309 (5th Cir. 2008) (per curiam) (analyzing under the Brown factors an emergency

roadblock set up to catch a bank robber); United States v. Rogers, 244 F. App’x 541, 542–

43 (5th Cir. 2007) (per curiam) (same).

1.1 The Gravity of the Public Concern

Officers at the roadway intersection knew that Paetsch was fleeing a bank robbery,

and they knew he had brandished a firearm. These circumstances represent a

detention of patrons of a dance club was properly limited in scope and duration. Palacios,
589 F.3d at 565.

- 12 -

“substantial” public threat. See United States v. Abbott, 265 F. App’x 307, 309 (5th Cir.

2008) (per curiam) (“The public concern of apprehending armed bank robbers was

substantial.”); 4 Wayne R. LaFave, Search and Seizure § 9.7(a), at 955–56 nn. 26–37 (5th

ed. 2012) (collecting cases upholding the use of roadblocks to address serious crimes).

Paetsch himself admits that “there was a grave public concern animating the dragnet

stop.” Appellant’s Br. at 42.

1.2

The Degree to Which the Seizure Advanced the Public Interest

When reviewing programmatic checkpoints, the Supreme Court has measured the

second Brown factor based on what percentage of the total seizures uncovered

wrongdoing. Officers here detained 20 cars, and one contained a bank robber. This 5%

“hit” rate is higher than the hit rate of other roadblocks that the Supreme Court has found

effective. See, e.g., Sitz, 496 U.S. at 455 (finding a checkpoint that resulted in arrest for

1.6% of drivers passing through to be effective); Martinez–Fuerte, 428 U.S. at 554

(finding a checkpoint that uncovered illegal aliens in 0.12% of the vehicles passing

through to be effective).

7

Of course, an emergency barricade like ours differs from a programmatic checkpoint.

In an emergency situation, the hit-rate analysis does not fully capture the substantial

7

In the roadblock cases cited above, Martinez-Fuerte and Sitz, the Supreme Court

examined programmatic checkpoints in which the police decided in advance to detain a
random sample of dozens or hundreds of cars traveling along a particular route. They did
so on the probability that they would find criminal activity. In our emergency barricade,
by contrast, the police made a split-second decision to seize 20 cars in an emergency. And
they did so based on specific evidence that they had ensnared an armed bank robber.
Because our case is narrowly focused on a single armed bank robber and the emergency

- 13 -

weight of the second Brown factor in our case. Programmatic checkpoints address general

public concerns, such as highway safety (Sitz) or border control (Martinez-Fuerte). Each

“hit” incrementally advances the public interest—for example, by taking one drunk driver

off the road. An emergency barricade, by contrast, addresses a specific concern—here,

the threat posed by an armed, fleeing bank robber. In this context, a “hit” resolves the

concern completely. This barricade’s outcome proves its effectiveness: Paetsch in

custody.

Not only was the barricade effective, but police knew it would be effective before

setting it up. Edmond teaches that law enforcement must only employ an emergency

roadblock absent individualized suspicion where a criminal is “likely to flee by way of a

particular route.” 531 U.S. at 44. Here police had reliable information that they had

penned the bank robber at the traffic intersection. See Palacios v. Burge, 589 F.3d 556,

559, 564 (2d Cir. 2009) (holding a group seizure lacking individualized suspicion valid

under the Fourth Amendment partly because the police “were armed with reliable

information that the perpetrators were among the group of individuals”). Further, the

officers knew that they had access to a handheld beacon that would pinpoint the tracker

and thus, most likely, the bank robber.


he presented to public safety, we must weigh the Brown factors somewhat differently. For
example, because of the emergency, we disagree with Paetsch that “all roadblocks” “must
be brief and minimally intrusive, never ‘generat[ing] concern or … fright on the part of
lawful travelers.’ ” Appellant’s Br. at 30 (internal quotation from Martinez-Fuerte, 428
U.S. at 557–58). Instead, the roadblock cases stand for the more general proposition that
the balance of the Brown factors must prove favorable. This means that as the public
interest increases so too does the latitude the Fourth Amendment provides. See supra,
note 6.

- 14 -

Perhaps, as Paetsch suggests, the police could also have advanced the public interest

by continuing to pursue Paetsch rather than barricading traffic at the stoplight. But

“reasonableness under the Fourth Amendment does not require employing the least

intrusive means….” Bd. of Educ. of Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, 837

(2002).

In fact, the means chosen to advance the public interest need only represent one

“choice among … reasonable alternatives.” Sitz, 496 U.S. at 453. Here, the district court

found that the barricade advanced the public interest more effectively and less

dangerously than the alternative proposed by Paetsch. Paetsch, 900 F. Supp. 2d at 1213–

14. With dozens of officers after him, Paetsch would likely have noticed the police in hot

pursuit. Id. at 1214. As the district court found, this could have led to a dangerous high-

speed chase, or to Paetsch discarding or disabling the GPS tracker, a possibility

mentioned by Officer Michael Thrapp at the suppression hearing. Id. Further, because of

the moderate-to-heavy traffic conditions, officers might have been unable to locate the

tracker to any particular car had they continued pursuing the signal. And, finally, police

had to consider that the tracker’s battery would last only four hours. In light of these

factual circumstances and the Supreme Court’s admonition not to “indulge in unrealistic

second-guessing,” United States v. Sokolow, 490 U.S. 1, 11 (1989) (internal quotation

marks omitted), we conclude that the decision to barricade the 20 cars reasonably

advanced the public interest.

1.3 The Severity of the Interference with Individual Liberty

- 15 -

The roadblock cases instruct us to weigh the first two Brown factors against the

third—the severity of the interference with individual liberty. Here, police seized 29

people. When officers developed individualized suspicion of Paetsch, they had detained

the innocent people in their cars for 29 minutes. While we sympathize with the innocent

motorists caught in the barricade resulting from Paetsch’s armed bank robbery, we

conclude that these intrusions on individual liberty do not tip the scale in Paetsch’s favor.

First, the law distinguishes between Fourth Amendment rights in cars and those in

“the sanctity of private dwellings, ordinarily afforded the most stringent Fourth

Amendment protection.” Martinez–Fuerte, 428 U.S. at 561. Second, by limiting

detention to the 20 cars within the diameter of the GPS tracker, police took “reasonable

efforts to reconcile their law enforcement needs with the demands of personal privacy.”

Illinois v. McArthur, 531 U.S. 326, 332 (2001). Third, the duration of the seizure was “no

longer than reasonably necessary for the police, acting with diligence,” to identify the

perpetrator. Id. When Lt. Lertch arrived, he learned from dispatch that the handheld

beacon would arrive in 20 to 30 minutes. He reasonably relied on that estimate and

detained the motorists accordingly. Within that time, police developed individualized

reasonable suspicion of Paetsch.

Here, we find instructive the Second Circuit’s decision in Palacios v. Burge. In that

case, police detained patrons of a dance club without individualized suspicion while

searching for suspects involved in a stabbing outside the club. Palacios, 589 F.3d at 559.

Because the seizure did not occur in a private dwelling, the court afforded police more

latitude under the Fourth Amendment. Id. at 564. The court also found appropriate

- 16 -

tailoring because, based on witness information, the officers limited the seizure to men

inside the nightclub or standing in line outside. Id. Ultimately, the court found a 40-

minute detention after police rounded up the 170 men to be reasonable. Id. Here, we find

a 30-minute detention of 29 individuals to be reasonable.

Paetsch argues that we should incorporate into our analysis the privacy intrusions

suffered by all the motorists during the entire barricade. We decline to do so because

police developed individualized suspicion of Paetsch midway through it. Twenty-nine

minutes into it, they saw Paetsch acting suspiciously and disobeying their orders by

placing his hands inside his car. The district court emphasized that officers then had

“sufficient suspicion of [Paetsch] in particular to remove him from his vehicle using

invasive tactics.” Paetsch, 900 F. Supp. 2d at 1216. Based on the GPS tracking

information and Paetsch’s suspicious movements, officers had reasonable suspicion that

Paetsch might have been “armed and presently dangerous” and that “criminal activity

may be afoot.” See Terry v. Ohio, 392 U.S. 1, 30 (1968). The reasonable suspicion grew

stronger yet when Officer Acierno’s beacon got a weak signal from just one of the 20

cars—that belonging to Paetsch. Notably, that occurred before police removed everyone

from their cars.

The individualized suspicion toward Paetsch distinguishes our case from other

roadblock cases, such as

Martinez-Fuerte and Sitz. In those cases, the Supreme Court

analyzed programmatic checkpoints against intrusions on innocent motorists detained.

Those cases did not reach the situation presented here—how to analyze a Fourth

Amendment claim when officers develop individualized suspicion toward a particular

- 17 -

person after the initial checkpoint encounter. The Court itself made this distinction. In

Sitz, for example, the Court noted the decision’s limited scope by acknowledging that

there were “[n]o allegations … of unreasonable treatment of any person after an actual

detention at a particular checkpoint.” 496 U.S. at 450. The suit challenged “only the use

of sobriety checkpoints generally.” Id. Similarly, in Martinez–Fuerte, the Court

acknowledged that it was not reviewing an “exercise of discretion in … operating a

checkpoint,” which operation would be “subject to post-stop judicial review.” 428 U.S. at

559. See also Lidster, 540 U.S. at 428 (“The police stopped all automobiles

systematically.”). Paetsch cites no case like ours where police developed individualized

reasonable suspicion of a defendant midway through a group seizure.

In our view, once individualized reasonable suspicion develops, a defendant may

complain about the underlying checkpoint or barricade only for what happened up to that

time. Once police develop individualized suspicion of a person seized as part of a group,

that person may not rely on later intrusions on others detained by the barricade. To allow

Paetsch to do so would violate the principle that “Fourth Amendment rights are personal

rights that may not be asserted vicariously.” Rakas v. Illinois, 439 U.S. 128, 133 (1978).

In Plumhoff v. Rickard, 134 S. Ct. 2012 (2014), the Supreme Court recently applied

Rakas to disallow expanding Fourth Amendment rights of a driver shot and killed in a

high speed chase to include the Fourth Amendment rights of his passenger, who was also

shot and killed by police. The Court considered whether the officers had used excessive

force in violation of the Fourth Amendment. Id. at 2020. It applied the Fourth

Amendment’s “reasonableness” standard, which “requires a careful balancing of the

- 18 -

nature and quality of the intrusion on the individual’s Fourth Amendment interests against

the countervailing governmental interests at stake.” Id. Despite analyzing the totality of

the circumstances, the Court rejected the argument that the presence of the passenger

should be part of the driver’s Fourth Amendment calculus:

Our cases make it clear that Fourth Amendment rights are personal rights
which … may not be vicariously asserted. Thus, the question before us is
whether petitioners violated [the driver’s] Fourth Amendment rights, not
[the passenger’s]. If a suit were brought on behalf of [the passenger] under
either § 1983 or state tort law, the risk to [the passenger] would be of
central concern. But [the passenger’s] presence in the car cannot enhance
[the driver’s] Fourth Amendment rights. After all, it was [the driver] who
put [the passenger] in danger by fleeing and refusing to end the chase, and
it would be perverse if his disregard for [the passenger’s] safety worked to
his benefit.

Id. at 2022 (omission in original) (footnote omitted) (citations omitted) (internal

quotation marks omitted). Likewise here, it would be perverse if Paetsch’s disregard for

the safety of the community worked to his benefit by enhancing his rights. In light of

these considerations, we analyze only the liberty intrusions that occurred before

individualized suspicion of Paetsch materialized.

In a related argument, Paetsch suggests that we should incorporate into our analysis

the privacy intrusions that ultimately occurred—the two-hour detention and the invasive

police tactics—because they were foreseeable from the outset. We disagree. Our analysis

turns on the “facts known to the officers.” Alabama v. White, 496 U.S. 325, 330 (1990).

We must analyze the seizure “from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396

- 19 -

(1989). And we recognize “that police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and rapidly evolving.” Id. at 397.

Here, the officers could only act on the information they had—that the beacon would

arrive soon. We see no evidence that Lt. Lertch knew or should have known from the

outset where the task-force officers were in relation to the beacon or how Officer Acierno

8

would prove inept in operating the beacon despite his training on its use.

Lt. Lertch

surely could not have anticipated the delays caused by Officer Acierno’s forgotten keys

and broken police siren. Because the record does not establish that a reasonable officer

would have anticipated these conditions and the resulting delay, we do not include them

in our analysis.

In sum, officers set up the barricade to catch a fleeing, armed bank robber, and they

knew they had access to a handheld beacon that could pinpoint him among the 29 people

detained. Within the 30 minutes originally estimated for the beacon to arrive, police

developed individualized reasonable suspicion of Paetsch. For the first 30 minutes of the

barricade, until police obtained individualized reasonable suspicion of Paetsch, we

8

Paetsch asserts that we should apply the horizontal-collective-knowledge doctrine to

“pool” the knowledge held by all the officers involved and conclude that Lt. Lertch
constructively knew that Officer Acierno did not know how to use the handheld beacon.
Appellant’s Br. at 50 & n.7. The doctrine applies when “individual officers have
communicated the information they possess individually, thereby pooling their collective
knowledge.” United States v. Whitley, 680 F.3d 1227, 1234 n. 3 (10th Cir. 2012); see also
United States v. Shareef, 100 F.3d 1491, 1503 (10th Cir. 1996) (“The cases in which we
have applied the ‘collective knowledge’ rule all have involved actual communication
….”). It is true that, upon arriving on the scene, Officer Acierno said, “I hope I remember
how to work this.” Appellant’s Br. at 50. But that was at 4:55 p.m., after much of the
delay had already occurred. Further, such a statement would not put a reasonable officer
on notice that Officer Acierno would be unable to locate the GPS tracker.

- 20 -

conclude that the first two Brown factors—the gravity of the public concern and the

degree to which the seizure advanced the public interest—outweighed the third—the

severity of the interference with individual liberty. As such, we conclude that the

barricade did not violate Paetsch’s Fourth Amendment rights.

2. Has Paetsch Established Any Other Violation of His Fourth Amendment
Rights?

We have determined that the barricade’s group seizure was constitutional at least until

4:30 p.m. when officers developed individualized suspicion of Paetsch. After that, we

analyze Paetsch’s seizure on an individual basis. The district court found that the way in

which the officers seized Paetsch “did not amount to an arrest of [him], but was simply a

continuation of the investigative stop.” Paetsch, 900 F. Supp. 2d at 1216. This is

unchallenged on appeal. Thus, we analyze the seizure after individual suspicion

materialized as an investigatory stop and ask whether its scope and duration exceeded

constitutional bounds. See United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir. 1993).

First, we find that the means used to detain and control Paetsch were not unreasonably

intrusive. While most Terry stops can be minimally intrusive, officers may take

reasonable steps to ensure their personal safety. United States v. Shareef, 100 F.3d 1491,

1502 (10th Cir. 1996). Those steps can sometimes include the display of guns, the use of

handcuffs, and the use of other force. Id. (concluding that the display of guns, a pat down

search, and the use of handcuffs were reasonable due to the danger defendants posed).

Here, officers had near-certain information that one of the 20 cars contained a fleeing,

armed bank robber. Paetsch, sitting in one of the 20 cars, began acting suspiciously and

- 21 -

refused to comply with police commands. Reasonably concerned that he might “try to

hurt [them] and try to get away,” officers approached his car cautiously, with guns drawn.

R. vol. 3, at 294. They then ordered him to the ground, handcuffed him, and sat him on a

curb while they continued to try to definitively identify the bank robber. These represent

reasonable steps in light of the threat posed by an armed bank robber.

Second, we find that Paetsch’s detention was not unreasonably long. We do not

impose a rigid time limit on investigative detentions. United States v. Sharpe, 470 U.S.

675, 685 (1985). But the detention must “not exceed the reasonable duration required to

complete the purpose of the stop.” United States v. Rice, 483 F.3d 1079, 1082 (10th Cir.

2007). Once police had individualized reasonable suspicion of Paetsch and separated him

from the barricaded group of innocent motorists, they could detain him for the time it

actually took to get the beacon to locate the tracker. See United States v. Villa–Chaparro,

115 F.3d 797, 802–03 (10th Cir. 1997) (detention of over forty minutes spent waiting for

a drug-sniffing dog did not violate the Fourth Amendment).

Here, Paetsch’s investigatory detention lasted about an hour and a half, from the

beginning of the group seizure until his arrest. During that time, the police “diligently

pursued a means of investigation that was likely to confirm or dispel their suspicions

quickly.” Sharpe, 470 U.S. at 686. In particular, they waited for the handheld beacon. It is

true that, faced with the delays, Lt. Lertch could have let all 20 cars loose, but he was

reasonably concerned about the risk of a high-speed chase. He also decided not to release

the cars one-by-one because he was reasonably concerned that the bank robber could then

use his car as a weapon to injure an officer. The beacon’s delayed arrival prolonged

- 22 -

Paetsch’s detention, but under the circumstances, it was “no longer than reasonably

necessary” to identify Paetsch as the bank robber and arrest him. McArthur, 531 U.S. at

332.

CONCLUSION

The barricade in this case did not violate Paetsch’s Fourth Amendment rights because,

at least until individualized suspicion materialized, the public interest outweighed the

intrusions on private liberty. After that, the officers’ removal of Paetsch from his car was

not unreasonably intrusive, and the officers’ investigatory detention was not unreasonably

long. Having found no Fourth Amendment violation, we affirm the district court’s order

denying Paetsch’s motion to suppress.

- 23 -

No. 13-1169, United States v. Paetsch

BRISCOE, Chief Judge, concurring.

I concur in the result.

Although I agree with the majority that the roadblock implemented by the police in

this case was constitutional at its inception, I disagree with the majority that the police

developed individualized reasonable suspicion of Paetsch within approximately 29

minutes of the beginning of the roadblock. To be sure, it is undisputed that

approximately 29 minutes after the initiation of the roadblock, Paetsch and another

individual were removed from their vehicles, handcuffed, and directed to sit on a nearby

curb, based upon what the police perceived to be suspicious behavior on their part. But

the record indicates that this was a protective measure taken by the police to ensure

officer and public safety, rather than an identification or seizure of the person the police

believed to be the bank robber. Quite simply, I find no support for the conclusion reached

by the majority that the police had an individualized reasonable suspicion of Paetsch at

that point in their investigation. Notably, the police informed Paetsch, after he was

removed from his vehicle and handcuffed, that he was not a suspect and they asked for,

but were denied, his consent to search his vehicle. United States v. Paetsch, 900 F. Supp.

2d 1202, 1209 (D. Colo. 2012). Further, following the removal and handcuffing of

Paetsch and the other individual, the police continued to wait for the homing beacon to

arrive and be used. And, long after Paetsch and the other individual were removed from

their vehicles and handcuffed, the police removed all persons who were single occupants

of vehicles and handcuffed them. In doing so, high-risk traffic stop techniques were

utilized, with police officers in teams, and with weapons drawn, approaching the vehicles

from behind. Ultimately, it appears that the police did not truly develop reasonable

individualized suspicion of Paetsch until at least 5:28 p.m. (approximately 87 minutes

after the initiation of the roadblock) when the police, in conducting their “secondary

search” of every vehicle, observed through the front passenger side window of Paetsch’s

vehicle “a $2,000 bank ‘money band,’ a slip of colored paper from banks that wraps

around a stack of bills.” Id. at 1210.

But, even if I were to conclude that the length of the stop resulted in a

violation of Paetsch’s constitutional rights, I am not persuaded that this is an

appropriate case in which to apply the exclusionary rule. As the Supreme Court

has explained, the exclusionary rule is a “prudential” doctrine created to “compel

respect for the constitutional guaranty” by “deter[ring] future Fourth Amendment

violations.” Davis v. United States, 131 S.Ct. 2419, 2426 (2011) (internal

quotation marks and citation omitted). Consequently, the Supreme Court has

“limited the rule’s operation to situations in which this purpose is thought most

efficaciously served.” Id. (internal quotation marks omitted). “Where

suppression fails to yield appreciable deterrence, exclusion is clearly . . .

unwarranted.” Id. at 2426-27 (internal quotation marks omitted). In other words,

“[f]or exclusion to be appropriate, the deterrence benefits of suppression must

outweigh its heavy costs.” Id. at 2427.

In this case, the record firmly establishes that the police acted in good faith,

2

both in initiating the roadblock and in attempting to identify the bank robber

among the stopped motorists. The long delay in actually identifying Paetsch as

the robber was not the result of “deliberate, reckless, or grossly negligent”

conduct on the part of the police, id. (internal quotation marks omitted), nor was

it the result of “any recurring or systemic negligence on the part of law

enforcement,” id. at 2428 (internal quotation marks omitted). Rather, the record

indicates that the delay was the result of “simple, isolated negligence” on the part

of the police in obtaining and initially using the homing beacon. Id. at 2427-28

(internal quotation marks omitted). In short, the police errors that occurred in this

case “lack[] the culpability required to justify the harsh sanction of exclusion.”

Id. at 2428.

For these reasons, I affirm the district court’s order denying Paetsch’s

motion to suppress.

3

Referenced Cases