United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 22-2753
                         ___________________________

                             United States of America

                                       Plaintiff - Appellee

                                         v.

                           Lorenzo Devon Lemons, Sr.

                                    Defendant - Appellant
                                  ____________

                     Appeal from United States District Court
                    for the Northern District of Iowa - Eastern
                                  ____________

                          Submitted: September 22, 2023
                             Filed: October 18, 2023
                                 ____________

Before SMITH, Chief Judge, MELLOY and ERICKSON, Circuit Judges.
                              ____________

ERICKSON, Circuit Judge.

       Lorenzo Devon Lemons, Sr., was charged with possessing a firearm by a
prohibited person, in violation of 

(g)(1) and 924(a)(2), after law
enforcement discovered a gun on him during an investigatory stop. Lemons moved
to suppress the firearm, claiming the officers’ mistaken belief that he was a wanted
fugitive nine inches taller than him rendered the stop unreasonable. The district
court1 denied his motion and sentenced him to a term of 37 months’ imprisonment.
Because reasonable suspicion of criminal activity independent of the mistaken
identification justified the detention, we affirm.

I.    BACKGROUND

        On September 13, 2021, Dubuque, Iowa police officers Benjamin Goerdt and
Calvin Harridge (“Officers”) conducted surveillance of an apartment belonging to
the girlfriend of wanted fugitive Christopher Williams. Williams, who had
outstanding arrest warrants, had led police on a high-speed chase the day before and
crashed his vehicle. He later escaped from the hospital in a car registered to his
girlfriend. Police records described Williams as a six-foot-tall African American
male in his twenties with a stocky build, full head of hair, and a beard that wrapped
around his face.

       At 12:30 a.m., the Officers parked their unmarked police vehicle half a block
away from Williams’s girlfriend’s apartment. The apartment was located on the
second floor of the building and accessible by an outside staircase. At the beginning
of the Officers’ 90-minute surveillance, they noticed multiple men standing on a
porch at the top of the staircase, including Lemons. Lemons is a five-foot-three
African American male in his twenties with a stocky build, full head of hair, and a
goatee. The Officers immediately focused on Lemons due to his build and facial
hair, and because he was “acting as if . . . [he] didn’t want to be noticed.”

       Around 12:47 a.m., a marked squad car drove past the apartment. Lemons
reacted by going inside the apartment and turning off the lights. When the squad car
left, Lemons came back outside. The Officers surveilled Lemons for another hour,
watching him and his colleagues move between the porch, staircase, sidewalk, and
a neighboring residence. Despite their use of binoculars, the Officers testified that


      1
        The Honorable C.J. Williams, United State District Judge for the Northern
District of Iowa.
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their surveillance was partially obscured by the apartment porch’s railing, parked
cars, and the darkness of the early morning.

       At 1:48 a.m., the Officers drove past Lemons and his colleagues on the
sidewalk to get a better look. As they passed, Lemons peeked his head over the top
of a parked van and stared at the Officers. The Officers drove around the block and,
after some discussion, decided that Lemons was Williams. They approached him in
their vehicle intending to detain him.

       At 1:50 a.m., Officer Harridge activated the police car’s emergency lights in
front of the apartment and Officer Goerdt exited the vehicle. Lemons immediately
began to run across the street. Officer Goerdt ran after Lemons, shouting for him to
stop and get on the ground. Officer Harridge followed close behind. Lemons soon
yielded, dropping to his stomach in a grassy area across from the apartment. As the
Officers struggled to apprehend Lemons, he repeatedly yelled that he was not
Williams and resisted being handcuffed. Lemons also pushed his waist into the
ground causing the Officers to suspect that he might be hiding a weapon.

       By this time, Officer Gary Pape (also a Dubuque police officer) arrived at the
scene. A bystander who had been with Lemons approached Officer Pape and told
him that Lemons had the bystander’s legally registered gun on him. Officer Pape
then pulled a handgun from the front of Lemons’s waistband. The Officers finally
handcuffed Lemons and got him to his feet at 1:54 a.m. Once Lemons was on his
feet, the Officers were able to determine that he was not Williams. Lemons was
arrested for interference with official acts.

      After he was indicted for being a felon in possession of a firearm, Lemons
moved to suppress the firearm. Following a hearing, the magistrate judge issued a
report and recommendation denying the motion, which the district court adopted
with minor modifications. Lemons pled guilty pursuant to a conditional plea
preserving his right to appeal the district court’s denial of his suppression motion.
The appeal followed.
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II.   DISCUSSION

       A denial of a motion to suppress is reviewed de novo and the factual
determinations underlying the court’s decision are reviewed for clear error. United
States v. Polite, 

 (8th Cir. 2018). We may affirm on any ground
supported by the record. United States v. Murillo-Salgado, 

 (8th
Cir. 2017).

      Lemons contends the Officers’ mistaken identification of him as Williams
was unreasonable, rendering the stop invalid. We need not decide whether the
Officers had reasonable suspicion that Lemons was Williams because the Officers
had sufficient independent reasonable suspicion of criminal activity to detain
Lemons.

        If a law enforcement officer has reasonable and articulable suspicion that
criminal activity is afoot, he may conduct a brief investigatory stop. Haynes v.
Minnehan, 

 (8th Cir. 2021). “[T]he fact that the officer does not
have the state of mind which is hypothecated by the reasons which provide the legal
justification for the officer’s action does not invalidate the action taken as long as
the circumstances, viewed objectively, justify that action.” Scott v. United States,

 (1978).

       In evaluating whether an officer has reasonable suspicion, we consider the
totality of the circumstances in light of the officer’s experience. Polite, 

. Relevant factors include “time of day or night, location of the suspect parties,
and the parties’ behavior when they become aware of the officer’s presence.” United
States v. Dawdy, 

 (8th Cir. 1995). “[N]ervous, evasive
behavior,” and unprovoked flight are also highly pertinent. Illinois v. Wardlow, 

 (2000) (determining presence in a high-crime area coupled with
unprovoked flight upon seeing police constituted reasonable suspicion of criminal
activity).


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        Here, the Officers had sufficient evidence to establish reasonable suspicion
justifying Lemons’s detention. First, time of the encounter. It was 12:30 a.m. when
the Officers began their surveillance, and they detained Lemons at approximately
1:50 a.m. Second, the encounter took place in a high-crime area. The Officers were
aware of multiple reports of subjects in that neighborhood with firearms, and the
apartment Lemons freely entered was associated with an armed and dangerous
fugitive. Third, Lemons’s behavior when he became aware of law enforcement’s
presence. Upon noticing another police car, Lemons disappeared into his
girlfriend’s apartment, extinguished the lights, and only returned when the vehicle
left. Officer Goerdt testified to the suspicious nature of this behavior.

      Moreover, Officer Harridge described Lemons’s action of staring at the
Officers when they conducted their own drive-by as “hypervigilant” and indicative
that Lemons was “watching . . . [his] back.” Most important is Lemons’s
unprovoked flight when the Officers approached on foot. Even if it only lasted a
few seconds, such flight constituted the “consummate act of evasion,” Wardlow, 

, and Lemons provided no innocent explanation for it. In Wardlow, the
Supreme Court decided that unprovoked flight and presence in a high-crime area
alone were sufficient to establish reasonable suspicion. Here, we have the facts
present in Wardlow plus Lemons’s additional furtive behavior. The totality of the
circumstances established reasonable suspicion of criminal activity sufficient to
detain Lemons.

        While Lemons also argues that his continued detention was unreasonable once
he was on the ground and it was obvious that he was not Williams, because Lemons’s
initial detention was based on independent reasonable suspicion of criminal activity,
the Officers’ mistaken identification does not invalidate Lemons’s continued
detention. Furthermore, once Lemons was on his stomach, his evasive action of
pushing his waist into the ground to hide the firearm and his continued failure to
cooperate with the Officers justified prolonging the stop.



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III.   CONCLUSION

     For the foregoing reasons, we affirm the district court’s denial of Lemons’s
motion to suppress the firearm.
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