F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 3 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 03-6165
vs. (D.C. No. 02-CR-70-T)
(W.D. Okla.)
EUGENE ISIAH ROBERTS,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, HENRY, and TYMKOVICH, Circuit Judges. **
Defendant-Appellant Eugene Isiah Roberts appeals from the district court’s
denial of his motion to suppress evidence which led to his conviction for
possession with intent to distribute 18 ounces of cocaine base, 21 U.S.C.
§ 841(a)(1), (b)(1)(A), (count 1); possession with intent to distribute one kilogram
of cocaine powder, 21 U.S.C. § 841(a)(1), (b)(1)(B), (count 2); and maintaining a
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
place for the manufacture of cocaine base, 21 U.S.C. § 856(a)(1), (count 3). Our
jurisdiction arises under 28 U.S.C. § 1291, and we affirm.
Background
On February 15, 2002, while on routine patrol, Officer Donald Holland of
the Oklahoma City Police Department received information from another officer
indicating that an individual driving a dark Nissan Maxima may be in possession
of crack cocaine. Sometime later in his shift, Officer Holland noticed a dark
Nissan Maxima with one occupant, parked in the parking lot of a strip mall.
There were no other vehicles in the parking lot at the time nor were there any
businesses operating in the strip mall. In hopes of investigating further, the
officer parked his vehicle behind the Maxima, approached the driver’s side
window, and made contact with the occupant, Mr. Roberts. He asked Mr. Roberts
what he was doing. Mr. Roberts responded that he was paying bills, which he
showed to the officer. The officer then informed Mr. Roberts that the area was a
high crime area known for drug trafficking, and asked if he had any drugs or guns
in the car. Mr. Roberts replied that he did not and was then asked for his
permission to search the vehicle. Though the parties disputed the issue, the
district court found that Mr. Roberts consented to a search of his vehicle. 1 R.
Doc. 83 at 3-4. Following a routine pat-down search, Mr. Roberts was placed in
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the back seat of the officer’s locked vehicle while the search was underway. The
search revealed fifty-six grams of crack cocaine. Mr. Roberts was then placed
under arrest. Later that day, on the basis of evidence seized from Defendant’s
vehicle, a search warrant was issued for Defendant’s residence. Upon execution
of the warrant police recovered large sums of cash, cocaine, and equipment used
to manufacture cocaine base. 1 R. Doc. 96.
Mr. Roberts moved to have the evidence against him suppressed as
derivative evidence claiming that he did not consent to the search of the car and
that he was illegally seized in the course of the encounter. 1 R. Doc. 73 at 9-11.
Denying the motion to suppress, the district court credited the testimony of the
officer and held that a consensual encounter occurred. 1 R. Doc. 83 at 6. The
court did not reach the government’s alternative argument that if not consensual,
the encounter was a valid investigative detention. 1 R. Doc. 79 at 7. The court
further found that Mr. Roberts voluntarily consented to the search of his vehicle.
1 R. Doc. 83 at 7. After a jury trial, Mr. Roberts was sentenced to life
imprisonment on count one, 324 months imprisonment on count two, and 240
months imprisonment on count three, with sentences to be served concurrently.
On appeal, Mr. Roberts does not challenge the district court’s factual
finding that he did in fact give voluntary consent to search the vehicle. Rather, he
argues that his encounter with the officer ripened into an illegal arrest when he
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was ordered to put his hands behind his back and was placed in the locked patrol
vehicle. He contends that because such a seizure was not supported by any degree
of articulable suspicion, any evidence subsequently retrieved from his vehicle and
residence constitute derivative evidence (“fruit of the poisonous tree”) and must
be suppressed.
Discussion
“When reviewing the denial of a motion to suppress we accept the factual
findings of the district court unless they are clearly erroneous.” United States v.
Hunicutt, 135 F.3d 1345, 1348 (10th Cir. 1998). Whether consent is voluntary is
a question of fact that is reviewed for clear error. United States v. Taverna, 348
F.3d 873, 877-79 (10th Cir. 2003). The question whether a seizure has occurred
under the Fourth Amendment is reviewed in light of the totality of the
circumstances. United States v. Ringold, 335 F.3d 1168, 1171-72 (10th Cir.
2003).
Mr. Roberts’s challenge fails on two independent grounds. First, although
the district court did not reach the issue of whether the encounter could be viewed
as an investigative detention supported by reasonable suspicion, its factual
findings without a doubt establish reasonable suspicion. The officer had been
told to be on the lookout for a Nissan Maxima whose driver might have crack
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cocaine. Mr. Roberts’s vehicle matched the description. Although Mr. Roberts
explained his presence in an empty parking lot (paying bills), an objectively
reasonable officer could discount that explanation and conclude that criminal
activity (drug transaction) was afoot. We note that an officer may take reasonable
precautions to protect his safety during an investigative detention, without the
encounter ripening into an arrest. See United States v. Shareef, 100 F.3d 1491,
1502 (10th Cir. 1996); United States v. Perdue, 8 F.3d 1455, 1463 (10th Cir.
1993). The officer testified that after Mr. Roberts consented to a search of his
person and his car, he placed him in the patrol vehicle “strictly for my safety.” 2
R. at 20.
I didn’t want to perform my search and be vulnerable to an attack
while I’m doing my search with my back turned to anybody. That’s
just standard practice for the way that we do things.
Id. We thus reject the contention that Mr. Roberts was subjected to an illegal
arrest when he was ordered to put his hands behind his back and was placed in the
locked patrol vehicle. Moreover, valid consent can be given by a person being
legally detained. United States v. Soto, 988 F.2d 1548, 1557. Thus, the
derivative evidence claim fails.
Second, in order to prevail on a motion to suppress evidence as derivative
evidence, a defendant must establish both illegal police activity and some nexus
between the illegal police activity and the evidence obtained. United States v.
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DeLuca, 269 F.3d 1128, 1132 (10th Cir. 2001); United States v. Nava-Ramirez,
210 F.3d 1128, 1131 (10th Cir. 2000). “In order to show such a factual nexus, at
a minimum, [Defendant] must adduce evidence . . . showing the evidence sought
to be suppressed would not have come to light but for the government’s
unconstitutional conduct.” DeLuca, 269 F.3d at 1132 (internal quotation marks
and citations omitted). Mr. Roberts has failed to demonstrate any such nexus
between the allegedly illegal seizure and the challenged evidence. The district
court found that Mr. Roberts gave his voluntary consent to search prior to the
seizure in question. Even assuming an unlawful seizure, Mr. Roberts has not
demonstrated how that seizure yielded the evidence in question.
In support of his position, Mr. Roberts relies on Wong Sun v. United
States, 371 U.S. 471 (1963). That case and its progeny, see, e.g., United States v.
Melendez-Garcia, 28 F.3d 1046, 1053-54 (10th Cir. 1994), are readily
distinguishable insofar as in those cases the illegal police conduct preceded the
means by which the evidence was obtained, thus establishing the requisite factual
nexus between the evidence and the illegal conduct. By contrast, any unlawful
police activity here occurred after voluntary consent had been obtained.
Consequently, Mr. Roberts could not establish that, but for the alleged illegal
seizure, the evidence would not have come to light as required by DeLuca.
Insofar as Mr. Roberts argues that an unlawful seizure vitiated his consent
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to search, that position is not supported by our caselaw. In United States v.
Manjarrez, 348 F.3d 881, 887 (10th Cir. 2003), a recent case with analogous
facts, the defendant had given the police consent to search his vehicle. The
officer then conducted a pat-down search of defendant’s person to ensure he had
no weapons. The defendant subsequently challenged the validity of the search
claiming that the illegal pat-down search vitiated his previous consent to search
the vehicle. Concluding otherwise, the court explained “[w]e are unable to
discern how a subsequent pat-down, lawful or not, could bear upon the
voluntariness of [d]efendant’s prior consent.” Id.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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