CA10: Officers pulled up next to def walking along road and finally told him to stop; this was a seizure without RS

Defendant was walking down the street at night and a police car pulled up beside him and officers were talking to him as he walked. Finally they told him to stop. This was a seizure for which there was no reasonable suspicion. He was near a construction site where there had been thefts, but he was doing nothing wrong. That necessarily would make anybody walking near there subject to a stop, and that’s just not the law. Also, the government did not raise Strieff attenuation because that case was decided after briefing and oral argument [but should have been known to be pending by then because cert. was granted Oct. 1, 2015] so it is waived. United States v. Hernandez, 2017 U.S. App. LEXIS 2324 (10th Cir. Feb. 9, 2017) (2-1):

As we have explained excessively now, Mr. Hernandez was alone at night being closely followed by a police car with two uniformed and armed officers who asked him to stop walking even though he was answering their questions. In contrast, the defendant in Drayton was surrounded by people, was questioned by plainclothes officers, and was never asked to stop acting in a particular way. The dissent describes the bravery it would have taken for the defendant in Drayton to terminate his encounter with the officers but fails to mention that he “would have been allowed to do so without argument.” See id. at 198. Mr. Hernandez attempted the very act that would have been permitted in Drayton, but he was asked to halt.

We admit this is a close case and there is a dearth of case law directly on point with the facts here, but to claim that numerous Supreme Court precedents have held “consensual far more authoritative encounters between officers and citizens,” Dissent at 1, is simply incorrect and misleading. Reading the record in the light most favorable to Mr. Hernandez, see United States v. De la Cruz-Tapia, 162 F.3d 1275, 1277 (10th Cir. 1998), we cannot say the district court erred in concluding that a reasonable person in Mr. Hernandez’s circumstances would not have felt free to leave.