F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 28 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 03-5011
v. D.C. No. 01-CR-125 K
RUSSELL DALE DUNN, (N.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL , MURPHY and McCONNELL , Circuit Judges. **
Russell Dale Dunn entered a conditional guilty plea to possession of a
firearm following a prior felony conviction, in violation of 18 U.S.C. § 922(g)(1).
He now appeals the denial of his motion to suppress evidence obtained during a
traffic stop, arguing that the police lacked reasonable suspicion for the stop. Mr.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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 appellate record, this panel has determined
**
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
Dunn also challenges the district court’s use of two prior Texas burglary
convictions to enhance his sentence under the Armed Career Criminals Act
(ACCA), 18 U.S.C. § 924(e). We AFFIRM the district court on both issues.
I.
On an October evening in 2001, Mr. Dunn was cruising on his motorcycle
on a four-lane street in Tulsa. Tulsa Police Officer Kirkland was heading in the
opposite direction on the same street in his patrol car. As Mr. Dunn rode past,
Officer Kirkland took note of the large “Scorpions” patch on Mr. Dunn’s leather
motorcycle jacket. The logo made Officer Kirkland curious because he had not
seen it before, and he wondered whether it represented a new biker gang in town.
He turned his patrol car around and began following Mr. Dunn.
Mr. Dunn was in the far right lane. A car in front of him slowed down to
make a right turn. 1
Mr. Dunn rode into the left lane to go around the car. He
switched back to the right lane once he was clear of the turning car. Officer
1
Mr. Dunn claims the record shows that the car did not slow down to make
a turn but rather inexplicably stopped in the middle of the road before finally
turning: “The officer did not say that the turning car had a turn signal on, or
describe any clues that indicated the car was going to turn . . .” Appellant’s Br. 9.
Appellant’s brief, however, mischaracterizes the record, as the officer clearly
testified that the vehicle slowed down, signaled its intention to turn, and then
turned: “[A] vehicle in front of Mr. Dunn slowed, signaled, [and] turned right on
Oklahoma Street . . . And Mr. Dunn changed lanes to go around that vehicle, as
the vehicle was slowing for the turn.” R. vol. VI at 67 (emphasis added).
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Kirkland noticed that Mr. Dunn did not signal his intention to change lanes. The
officer turned on his lights and pulled the motorcycle over.
Mr. Dunn dismounted from his motorcycle. As Officer Kirkland
approached, he noticed the clip of a lock-blade knife protruding from the pocket
of Mr. Dunn’s jeans. Officer Kirkland asked Mr. Dunn whether he was carrying
any other weapons. Mr. Dunn responded that he had another knife in a holster on
his belt. Officer Kirkland then conducted a pat-down search of Mr. Dunn, during
which he felt the outline of a handgun underneath Mr. Dunn’s jacket. Officer
Kirkland and a back-up officer then handcuffed Mr. Dunn and removed the
handgun and knives from his person.
A federal grand jury indicted Mr. Dunn on one count of Possession of a
Firearm and Ammunition after Former Conviction of a Felony, in violation of 18
U.S.C. § 922(g)(1). The government also alleged that Mr. Dunn’s conduct was in
violation of the Armed Career Criminals Act, 18 U.S.C. § 924(e), and that he was
eligible for the enhanced penalties provided for in that Act.
Mr. Dunn then filed a motion to suppress evidence obtained as a result of
the traffic stop. He contended that the traffic stop was not justified at its
inception because, in his view, the officer was not in position to see any traffic
violation but had instead stopped Mr. Dunn solely because he suspected him of
belonging to a motorcycle gang. Mr. Dunn also contended that the officer’s pat-
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down search and questions about weapons went beyond the permissible scope of
the stop.
Following a hearing, the district court entered a written order denying the
motion to suppress. The court found that Officer Kirkland was only thirty yards
behind the motorcycle when Mr. Dunn changed lanes. The district court also
found that the officer’s sole reason for turning around and following Mr. Dunn
was because of his interest in the origins of the “Scorpions” patch on Mr. Dunn’s
jacket. The district court was troubled by the officer’s apparent practice of biker
profiling, calling it “a parody of appropriate law enforcement.” R. doc. 13 at 5.
Nevertheless, the court recognized that, under Tenth Circuit and Supreme Court
precedent, the sole inquiry in analyzing the reasonableness of a traffic stop is
whether the particular officer had reasonable suspicion that the particular
motorist had violated any one of the multitude of applicable traffic regulations
and that any other subjective motivations the officer may have had are irrelevant.
The court held that the traffic stop was justified under that standard. The district
court also rejected Mr. Dunn’s argument that the pat-down exceeded the scope of
the stop, holding that the officer had a reasonable belief that Mr. Dunn was
armed and dangerous.
Mr. Dunn then pled guilty to the indictment but reserved his right to appeal
the denial of his suppression motion. Five months later, Mr. Dunn moved to
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reopen the suppression hearing, primarily to present his version of the events.
The district court granted the motion, and an additional hearing was held at
which Mr. Dunn and Officer Kirkland testified. Mr. Dunn denied that he had
changed lanes without signaling, claiming instead that he had swerved within his
lane when a car suddenly pulled out in front of him. He also claimed that Officer
Kirkland could not have seen the knife protruding from his pocket because of his
black clothing. Officer Kirkland testified as he had at the first hearing, namely,
that he saw Mr. Dunn execute a routine lane change without signaling and that he
saw the knife clip outside of Mr. Dunn’s pocket. The district court again denied
the suppression motion, stating that it was persuaded by Officer Kirkland’s
testimony that he was able to see the knife, particularly in light of photographs
introduced by the government showing that Mr. Dunn’s jeans were blue, not
black as Mr. Dunn had testified.
At sentencing, the government argued that Mr. Dunn was subject to a
mandatory minimum 15-year sentence under the ACCA, based on two prior
burglary convictions and a conviction for conspiracy to manufacture
methamphetamine. Mr. Dunn objected to the use of the burglary convictions,
arguing that the Texas burglary statute under which he was convicted did not
satisfy the ACCA’s definition of “burglary.” The district court overruled the
objection and sentenced Mr. Dunn to a prison term of 180 months.
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II.
On appeal, Mr. Dunn has abandoned his biker profiling and unjustified
pat-down search arguments. He now concedes for purposes of appeal that
Officer Kirkland saw him move into the left lane without signaling; but he argues
that this movement was not a violation of the relevant Oklahoma traffic law. He
contends that the Oklahoma statute does not require signaling a lane change when
it would be impracticable to do so. Because the decelerating car in front of Mr.
Dunn forced him to switch briefly to the left lane to get around it, Mr. Dunn
insists it would not have been practicable for him to signal his intention to
change lanes at least 100 feet before doing so as required by the statute. 2
Thus,
according to Mr. Dunn, a traffic stop is not justified when road or traffic
conditions necessitate this kind of brief foray into the adjoining lane. For this
proposition, Mr. Dunn relies heavily on United States v. Gregory , 79 F.3d 973
(10th Cir. 1996) , where we held that one instance of a driver weaving into the
right shoulder emergency lane on a winding, mountainous section of Interstate 70
in windy conditions did not violate a Utah statute requiring a vehicle to remain
within a single lane.
Okla. Stat. tit. 47, § 11-309(1) requires that “a vehicle shall be driven as
2
nearly as practicable entirely within a single lane and shall not be moved from the
lane until the driver has first ascertained that the movement can be made with
safety and then given a signal, not less than the last one hundred (100) feet
traveled by the vehicle, of his intention to change lanes.”
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The government contends that Mr. Dunn failed to raise this issue in district
court. The government is correct that Mr. Dunn’s legal theory on appeal is
different from the one offered in district court. Below, Mr. Dunn urged the
district court to suppress the evidence on the basis of the officer’s improper
subjective motives. Mr. Dunn also offered his own version of the facts, in which
he denied that he changed lanes at all. But he did not argue, as he does now on
appeal, that even according to the officer’s account of the facts, his actions did
not constitute a violation of the applicable Oklahoma traffic regulation. See
Singleton v. Wulff , 428 U.S. 106, 120 (1976) (“It is the general rule, of course,
that a federal appellate court does not consider an issue not passed upon
below.”).
Mr. Dunn claims that the following arguments and citations in his motion
to suppress were sufficiently specific to preserve the issue:
Routine traffic stops are governed for Fourth Amendment
purposes by the strictures of Terry v. Ohio , 392 U.S. 1, (1968) . . .
United States v. Gregory , 79 F.3d 973 (10th Cir. 1996). A stop must
be justified at the inception, and the scope of the officer’s actions
during the stop must be reasonably related to the circumstances
justifying the interference. Id.
In the present case, counsel for the Defendant cannot determine
whether Officer Kirkland’s vehicle was in a position to allow him to
actually observe the alleged illegal lane change or whether Officer
Kirkland simply stopped the Defendant based upon the assumption
that he was a motorcycle gang member. Therefore, the first prong of
the above test is failed, and the evidence and statements gained in
result must be suppressed from evidence. Gregory , supra ; United
States v. McSwain , 29 F.3d 558 (10th Cir. 1994).
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R. doc. 10 at 2. Mr. Dunn argues that his enunciation of the Terry test and his
citation to Gregory were sufficient to allow the district court to address the
argument that the lane change, as described by the officer, was not a violation of
the Oklahoma statute. We disagree. The motion simply does not contain the
relevant argument. Moreover, the motion cites Gregory not for any arguments
regarding what kinds of lane changes violate traffic regulations but for the
general propositions that traffic stops are analyzed under Terry and that evidence
obtained in violation of the Terry test must be suppressed. Such citations are too
vague to preserve an issue for appeal. See Lyons v. Jefferson Bank & Trust , 994
F.2d 716, 721 (10th Cir. 1993) (vague, arguable references to an argument in the
district court proceedings do not preserve the issue on appeal).
We are particularly reluctant to consider new arguments on appeal when
the failure to raise them below has resulted in inadequate factual findings by the
trial court. United States v. Abdenbi , 361 F.3d 1282, 1290 (10th Cir. 2004).
Here, the district court conscientiously made specific factual findings regarding
the issues that Mr. Dunn raised. However, the court understandably did not make
specific findings about the length and duration of Mr. Dunn’s detour into the left
lane, nor did it specifically address whether it was practicable for Mr. Dunn to
have signaled his intention to change lanes. Mr. Dunn’s argument on appeal
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depends on the resolution of those factual issues, and, given the inadequacy of
the findings below, we decline to consider this issue for the first time on appeal.
III.
The district court sentenced Mr. Dunn as an Armed Career Criminal under
the ACCA. The ACCA imposes a fifteen year mandatory minimum sentence for
a defendant convicted of being a felon in possession of a firearm who has three
previous convictions for a violent felony or a serious drug offense. 18 U.S.C. §
924(e)(1). The ACCA specifically defines “violent felony” to include “burglary.”
18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court has interpreted “burglary” in
the ACCA to mean the “generic, contemporary meaning of burglary” which
“contains at least the following elements: an unlawful or unprivileged entry into,
or remaining in, a building or other structure, with intent to commit a crime.”
Taylor v. United States , 495 U.S. 575, 598 (1990) (citation omitted).
Mr. Dunn argues that the Texas burglary statute which he was convicted of
violating does not fall under the Taylor definition because it allows conviction if
a person enters a building and “commits or attempts to commit a felony or theft.”
Tex. Penal Code § 30.02(a)(3) (1992). Mr. Dunn contends that this provision
lacks the coincidence of unprivileged entry and intent to commit a crime required
by Taylor . However, this Court has squarely held that the elements of the Texas
statute at issue “substantially correspond to the generic elements of burglary
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contained in Taylor .” United States v. Spring , 80 F.3d 1450, 1462 (10th Cir.
1996). Mr. Dunn acknowledges that Spring is controlling authority, but he raises
the issue only to preserve it for en banc review. We are, of course, bound by
circuit precedent.
For the foregoing reasons, we AFFIRM the district court’s denial of the
motion to suppress, as well as its judgment and sentence.
Entered for the Court
Michael W. McConnell
Circuit Judge
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