United States of America v. Leonel Miller Hinojosa , J R .

*The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District
of Kentucky, sitting by designation.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0247p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA ,
Plaintiff-Appellee,
v.
LEONEL M ILLER HINOJOSA , J R .,
Defendant-Appellant.
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No. 12-2258
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:12-cr-00047-1—Janet T. Neff, District Judge.
Decided and Filed: August 23, 2013
Before: ROGERS and COOK, Circuit Judges; VAN TATENHOVE, District Judge.*
_________________
COUNSEL
ON BRIEF: Craig A. Frederick, Grand Rapids, Michigan, for Appellant. Heath M.
Lynch, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for
Appellee.
_________________
OPINION
_________________
ROGERS, Circuit Judge. Leonel Hinojosa, Jr. pled guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1), but he reserved his right
to appeal the district court’s denial of his motion to suppress the pistol that formed the
basis of the charge. He does so now, arguing that an unconstitutional search and seizure
led to the discovery of the gun. The district court found that the questioning leading up
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to Hinojosa’s arrest and search occurred during a consensual encounter. A reasonable
person would have felt that he was free to terminate the encounter, and therefore
Hinojosa was not seized. The encounter did not violate the Fourth Amendment.
On the afternoon of January 18, 2012, Officers Justin Wonders and Eric Shaffer
of the Kalamazoo Police Department were on their patrol in a high-crime, high-drug area
of the city. They observed a vehicle, occupied by Hinojosa, parked at a house next door
to a house that had been the site of past drug activity and neighborhood complaints. The
officers watched Hinojosa back the car up out of the driveway, then pull back in, park,
exit the vehicle, walk up the driveway toward some garbage cans, walk back toward the
car, then again walk toward the garbage cans and back. Finally, Hinojosa walked into
the house through the front door. He remained in the house for under one minute, and
then he got into the car and drove away. The officers followed Hinojosa for several
blocks until he turned into the driveway of a subdivided house, where he parked his car.
Officer Wonders knew that there had been reports of drug manufacturing in one of the
several apartments in the building.
Officer Wonders exited the unmarked police car and approached Hinojosa’s
vehicle. Meanwhile, Officer Shaffer parked the police car in such a manner that it would
not have blocked Hinojosa’s car if it had attempted to back out of the driveway. As
Officer Wonders approached Hinojosa, who was still sitting in his car, he held up his
hand in a signal that he wanted to talk, and he approached the car with his hand on his
service weapon.
Allowing Officer Wonders to question Hinojosa, Officer Shaffer approached
another man standing in the parking lot of the building. He briefly questioned the man
and then told him to go inside his apartment.
When Officer Wonders reached Hinojosa’s car, he knocked on the driver’s side
window and asked “Hey, can I talk to you real quick?” Hinojosa, still with his window
rolled up, asked the officer why he wanted to talk, and the officer responded that he just
wanted to talk about “nothing major” “real quick.” When Hinojosa asked what was
going on, Officer Wonders told him that they were responding to tips regarding

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No. 12-2258 United States v. Hinojosa Page 3
suspicious activity and that the officers “were just trying to confirm or deny [their]
suspicions” about his odd behavior in the other driveway. The officer then asked
Hinojosa whether he had any identification on his person. When Hinojosa produced his
driver’s license, Officer Wonders took it from his hand, walked away from the vehicle
with the license, and called Hinojosa’s information in to the police dispatcher. The
dispatcher ran a check on the license information and informed Officer Wonders that the
license had been suspended and that Hinojosa was on parole. Because he had observed
Hinojosa driving, Officer Wonders placed Hinojosa under arrest for driving with a
suspended license. During the arrest, the officer asked Hinojosa whether he had
anything illegal on him, and Hinojosa replied that he was carrying a pistol, which Officer
Wonders removed from Hinojosa’s waistband.
After being indicted for being a felon in possession of a firearm, Hinojosa moved
to suppress the pistol, but the district court denied the motion. The court was skeptical
that the officers had reasonable suspicion to support a Terry stop, but found that the
officers engaged in a consensual encounter with Hinojosa. The district court found that
the officers left Hinojosa a way of exiting the driveway, although the way may not have
been his preferred means of exiting. The court concluded, based on credibility
assessments, that Officer Wonders was probably accusatory in his questioning, that the
officer had his hand on his gun, and that the officer held up his hand as he was
approaching Hinojosa “to signal just a second, please, I would like to talk with you,” but
concluded that none of this behavior was threatening nor did it rise to the level of
coercive conduct. Hinojosa pled guilty and timely appealed, challenging the denial of
his motion to suppress.
Police officers are permitted to engage in so-called “consensual encounters” with
citizens without running afoul of Fourth Amendment prohibitions on searches and
seizures. See Florida v. Bostick, 501 U.S. 429, 434 (1991); United States v. Waldon, 206
F.3d 597, 602–03 (6th Cir. 2000). “[T]here are three types of permissible encounters
between the police and citizens:” a consensual encounter, an investigative detention or
seizure of the person, and an arrest. Waldon, 206 F.3d at 602. A consensual encounter

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“may be initiated without any objective level of suspicion.” Id. (citation omitted). An
investigative detention or seizure of the person “if non-consensual, must be supported
by a reasonable, articulable suspicion of criminal activity.” Id. (citation omitted). And
an arrest is “valid only if supported by probable cause.” Id. (citation omitted).
In light of all the circumstances present in this case, none of the officers’ actions
during the encounter with Hinojosa prior to the arrest, either individually or collectively,
amounted to a seizure, and Hinojosa’s arrest instead was the result of a consensual
encounter. See Michigan v. Chesternut, 486 U.S. 567, 573–74 (1988); United States v.
Campbell, 486 F.3d 949, 954 (6th Cir. 2007). The officers left Hinojosa a reasonable
means of egress such that Hinojosa was physically capable of terminating the encounter
and leaving the area at any time. See United States v. Carr, 674 F.3d 570, 573 (6th Cir.
2012). As the district court concluded, if Officer Wonders’s hand was on his gun as he
approached Hinojosa, it was reasonable under the circumstances and was neither
threatening nor coercive. This action, given the officer’s concerns about criminal
activity in the area, was, in the court’s words, “much different . . . from drawing a
weapon out of a holster.”
Moreover, Hinojosa clearly consented to the questioning. Although Officer
Wonders may have held up his hand to indicate that he wanted to talk to Hinojosa, he
then asked if he could discuss some questions with Hinojosa, and Hinojosa agreed to do
so. This type of encounter is not a seizure. See United States v. Peters, 194 F.3d 692,
698 (6th Cir. 1999). Police officers “may approach individuals and propose initial
questions without having any reasonable suspicion of criminal activity, if the police do
nothing to convey to [the individual] that he is not free to leave.” Id.
Likewise, the officers were free to ask for Hinojosa’s identification, given that
they did not condition Hinojosa’s departure on his production of that identification or
“convey a message that compliance with their requests is required.” See Florida v.
Bostick, 501 U.S. at 437; United States v. Campbell, 486 F.3d at 956. Although
Hinojosa may have subjectively felt impelled—for instance by custom, courtesy, respect,
or even eagerness to please—to hand over his license when the officer asked whether he

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had identification, the law distinguishes a mere request for identification from a
command for the same. See United States v. Campbell, 486 F.3d at 956–57.
Because the circumstances in this case support a conclusion that the encounter
was a consensual one that did not rise to the level of an investigative detention or
seizure, the district court was correct in denying Hinojosa’s motion to suppress the
pistol, and we affirm the district court’s judgment.

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