F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
July 12, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v.
No. 05-8097
JO H N F. LA D EA U X ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of W yoming
(D .C . No. 04-CR-0062-W FD)
Submitted on the briefs: *
David M . Gosar, Jackson, W yoming, for D efendant - Appellant.
M atthew H. M ead, United States Attorney, L. Robert M urray, Assistant United
States Attorney, Cheyenne, W yoming, for Plaintiff - Appellee.
Before HA RTZ, EBEL and T YM KOVICH, Circuit Judges.
EBEL, Circuit Judge.
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G ). The case is therefore ordered submitted without oral argument.
In this case, Defendant-Appellant John Ladeaux contends that two requests
made of him during a traffic stop— to (1) exit the vehicle and (2) roll up the
windows and open the vents— violated his Fourth Amendment rights such that the
contraband discovered during the stop must be suppressed. Because the district
court did not properly consider the effect of the second request 1 under the burden-
shifting scheme set out in United States v. Nava-Ramirez, 210 F.3d 1128 (10th
Cir. 2000), we remand this case for the district court to address that issue in the
first instance.
BACKGROUND
On February 14, 2002, Ladeaux and two companions, Shawn Richards and
Jess Byerley, were traveling on Interstate 80 near Cheyenne, W yoming in a
vehicle driven by Byerley. W yoming Highway Patrolman Benjamin Peech was
positioned along the highway conducting stationary radar enforcement. Peech
noticed that Byerley was not wearing a seatbelt. He also observed Byerely’s
vehicle quickly approach another vehicle that was traveling below the speed limit,
close within twenty or twenty-five feet, follow it closely for some distance, and
then move into the left lane (without using a turn signal) to pass. These events
prompted Peech to pull Byerley’s vehicle over. As he approached the vehicle, he
1
W e note that it is unclear whether this was actually an order requiring
compliance or merely a voluntary request. See infra at 8-9. We will refer to this
as a “request” throughout this opinion, but on remand the district court will have
to decide whether it was a voluntary request or a mandatory demand and to whom
the request/demand w as directed.
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noticed that Ladeaux— the back-seat passenger— was attempting to fasten his
seatbelt. Peech informed Byerley that he had stopped him for follow ing too close
and failing to signal; Peech also cited Byerely and Ladeaux for not wearing a
seatbelt. At Peech’s request, Byerley accompanied him back to the patrol car so
that Peech could issue the citations.
During their conversation in the patrol car, Peech noticed that Byerley
seemed “very, very nervous.” Peech requested a second trooper, David Chatfield,
to respond with a drug sniffing dog. Peech acknowledged that he did not have
any reasonable suspicion that narcotics were in the vehicle, but rather that he
merely had a “hunch” which prompted him to call in Chatfield.
Chatfield responded quickly, while Peech was still w riting the citations.
Chatfield ordered Richards and Ladeaux to step out of the vehicle; he also
requested that the windows be rolled up and the vents turned on. 2 The dog alerted
to the trunk of the vehicle; a search of the trunk and the luggage therein revealed
fifteen pounds of marijuana and 1.2 pounds of cocaine. Ladeaux later admitted to
his role in the possession of the controlled substances and was indicted on federal
drug charges.
2
Chatfield testified that rolling up the window and turning on the vents
both keeps the dog from jumping through the window and forces the air out of the
car to make it easier for the dog to sniff.
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Ladeaux filed a motion to suppress all evidence obtained during the traffic
stop, which was denied. Ladeaux then entered a conditional guilty plea,
preserving his right to appeal the denial.
D ISC USSIO N
In review ing the denial of a motion to suppress, we “view the evidence in
the light most favorable to the government, accept the district court’s findings of
fact unless clearly erroneous, and review de novo the ultimate determination of
reasonableness under the Fourth Amendment.” United States v. Apperson, 441
F.3d 1162, 1184 (10th Cir. 2006) (quotation omitted).
On appeal, Ladeaux does not challenge the validity of the initial stop or the
length of the detention. Rather, he argues only that Chatfield exceeded the
permissible scope of the stop when he ordered Ladeaux out of the vehicle and
requested the window s be rolled up and the vents turned on. W e address these
issues in turn.
I.
Ladeaux argues that the order to exit the vehicle was unconstitutional
because there existed no reasonable suspicion or probable cause to believe that
the vehicle contained drugs when the order was given. However, in M aryland v.
W ilson, 519 U.S. 408 (1997), the Supreme Court established a bright-line rule
that, during a lawful traffic stop, officers may order passengers out of the car as a
matter of officer safety. Id. at 415. See also United States v. Holt, 264 F.3d
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1215, 1222 (10th Cir. 2001) (en banc) (“An officer . . . may order the driver and
passengers out of the vehicle in the interest of officer safety, even in the absence
of any particularized suspicion of personal danger.”). As Ladeaux does not
challenge the stop itself, his argument that being ordered out of the car was
unlaw ful must fail. The district court therefore properly rejected this argument in
ruling on Ladeaux’s motion to suppress.
II.
Ladeaux also argues that the request to close the windows and open the
vents impermissibly expanded the scope of the detention, as Chatfield had no
reasonable suspicion or probable cause sufficient to justify the request. The
district court considered this and the order to exit the vehicle as one, ruling that
“the order from Trooper Chatfield to roll up the windows and get out of the
vehicle” was permissible under W ilson. However, W ilson deals only with
ordering occupants out of the vehicle; it does not specifically address other,
ancillary requests. See 519 U.S. at 415. W e therefore remand for the district
court to consider in the first instance whether the evidence obtained during the
stop ought to be suppressed based on the request to close the windows and open
the vents. See, e.g., United States v. Foote, 413 F.3d 1240, 1251-52 (10th Cir.
-5-
2005) (remanding for the district court to consider, in the first instance, issues
that the district court had not adequately addressed). 3
On remand, the district court should follow the burden-shifting scheme set
forth in United States v. Nava-Ramirez, 210 F.3d 1128 (10th Cir. 2000). Nava-
Ramirez involved a defendant who was a non-owner passenger in a vehicle that
was stopped and searched. Id. at 1130. The question presented in Nava-Ramirez
was what showing such a passenger had to make in order to seek suppression of
evidence obtained during the search which, according to the defendant, occurred
while the defendant was being unconstitutionally detained. Id. at 1130-31. W e
recognized that “although a defendant may lack the requisite possessory or
ownership interest in a vehicle to directly challenge a search of that vehicle, the
defendant may nonetheless contest the lawfulness of his own detention and seek
to suppress evidence found in the vehicle as the fruit of the illegal detention.” Id.
at 1131. However,
[t]o successfully suppress evidence as the fruit of an unlawful
detention, a defendant must first establish that the detention did violate
his Fourth Amendment rights. The defendant then bears the burden of
3
The G overnment argues that Illinois v. Caballes, 543 U.S. 405 (2005),
compels this court to find that no Fourth Amendment violation occurred. In
Caballes, the Supreme Court held that the use of a dog-sniff during a lawful
traffic stop is not unconstitutional where the sniff does not extend the length of
the detention. Id. at 408-09. The salient difference between Caballes and this
case, however, is that there was no order in Caballes comparable to Chatfield’s
request directed at the occupants of the vehicle in this case. Ladeaux objects not
to the dog-sniff, but rather to the request; Caballes simply does not reach this
question.
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demonstrating a factual nexus between the illegality and the challenged
evidence. Only if the defendant has made these two showings must the
government prove that the evidence sought to be suppressed is not “fruit
of the poisonous tree,” either by demonstrating the evidence would have
been inevitably discovered, was discovered through independent means,
or was so attenuated from the illegality as to dissipate the taint of the
unlawful conduct.
Id. (citations, quotations omitted). In order for a defendant to meet his burden of
showing a “factual nexus,” he must, “[a]t a minimum . . . adduce evidence at the
suppression hearing showing the evidence sought to be suppressed would not have
come to light but for the government’s unconstitutional conduct [directed toward
that complaining defendant].” Id. (emphasis added). In other words, “[i]n order
to meet his initial burden under Nava-Ramirez and demonstrate the required
factual nexus, [a defendant] must show that the [contraband] would never have
been found but for his, and only his, unlawful detention.” United States v.
DeLuca, 269 F.3d 1128, 1133 (10th Cir. 2001). 4
4
W e recognize that this requirement has been criticized as forcing the
defendant essentially to disprove that the evidence would have been inevitably
discovered, contrary to the general rule that the government bears the burden of
proving that unconstitutionally obtained evidence is nonetheless admissible under
the inevitable discovery doctrine. See DeLuca, 269 F.3d at 1145 n.1 (Seymour,
J., dissenting); see also Nix v. W illiams, 467 U.S. 431, 444 (1984) (placing the
burden on the government to prove inevitable discovery); United States v.
Eylicio-M ontoya, 70 F.3d 1158, 1165 (10th Cir. 1995) (same). Further, we
acknowledge that at least one prominent Fourth Amendment treatise has criticized
Nava-Ramirez generally as “undermin[ing] the rationale for the exclusionary
rule” and encouraging “flagrantly illegal” violations of passengers’ Fourth
Amendment rights during traffic stops. W ayne R. LaFave, Search and Seizure §
11.4(d) (4th ed. 2004) (quotation omitted). However meritorious these criticisms
may be, “we are bound by the precedent of prior panels absent en banc
(continued...)
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Thus, on remand, the district court must initially determine w hether there
was a violation of Ladeux’s Fourth A mendment rights. On the record before us,
we note at least two critical issues in need of elucidation. First, it is unclear
whether Chatfield directed his request at Ladeaux or only at the front seat
passenger, Richards. 5 If the request was made only of Richards, Ladeaux cannot
complain of any unconstitutionality regarding that request, as a person has
standing only to challenge the violation of his own Fourth Amendment rights.
See Nava-Ramirez, 210 F.3d at 1131; see also DeLuca, 269 F.3d at 1131 (“Fourth
Amendment rights are personal.”).
Second, the character of Chatfield’s request is unclear. A Fourth
Amendment “seizure” occurs only when “‘the police conduct would have
comm unicated to a reasonable person that the person was not free to decline the
4
(...continued)
reconsideration or a superseding contrary decision by the Supreme Court.” Fogle
v. Pierson, 435 F.3d 1252, 1262 n.6 (10th Cir. 2006) (alteration omitted).
W e would also point out that, in car search cases, the “factual nexus”
requirement is only difficult to meet when the complaining party lacks the
requisite interest in the vehicle to challenge the search directly. W hen the illegal
conduct objected to is the search itself, the evidence discovered during that search
ipso facto bears a nexus to the illegality. The nexus requirement of Nava-
Ramirez thus only becomes cumbersome for a defendant in cases like the present,
where the illegality complained of is not a search (to which the defendant lacks
standing to object) but an illegal detention of that non-owner defendant.
5
The district court did not make a specific finding concerning who
Chatfield asked, and Chatfield’s testimony at the suppression hearing is
inconsistent— he stated both that he “asked the front seat passenger [Richards] if
he would roll up the windows and turn on the vents” and that he asked “them” to
open the vents and roll up the w indow s.
-8-
officers’ requests.’” Petersen v. Farnsworth, 371 F.3d 1219, 1222 (10th Cir.
2004) (quoting Florida v. Bostick, 501 U.S. 429, 439 (1991)). Thus the district
court must consider whether the request required compliance or merely solicited
cooperation. If Chatfield requested the windows be closed and the vents opened
in such a way that an objective person would have felt “free to decline the
officers’ request”— even in the absence of reasonable suspicion that the vehicle
contained narcotics— we doubt that the Fourth Amendment would be implicated at
all. 6 Cf. M uehler v. M ena, 544 U.S. 93, 100-01 (2005) (holding that questioning
a lawfully detained person on issues unrelated to the detention without
independent reasonable suspicion to support the questions did not run afoul of the
Fourth Amendment because the questioning was not a “discrete Fourth
Amendment event”). But cf. United States v. Sanchez, 89 F.3d 715, 718 (10th
Cir. 1996) (noting that a request to accompany an officer to the station could
suggest to a reasonable person that he is not free to disregard the officer). 7
6
The district court considered Chatfield to have “ordered” the window s
closed and the vents opened, but Chatfield’s testimony at the suppression hearing
suggests only a voluntary request. Of course, whether it was termed an “order” or
a “voluntary request” is merely semantic— the true inquiry is whether the request
communicated that compliance was necessary.
7
Of course, a request that extended the length of the detention would still
am ount to a Fourth A mendment violation. See M uehler, 544 U.S. at 101 (“[A]
law ful seizure can become unlaw ful if it is prolonged beyond the time reasonably
required to complete that mission.”); H olt, 264 F.3d at 1230 (“[T]he Fourth
Amendment reasonableness of a traffic stop based on probable cause must be
judged by examining both the length of the detention and the manner in which it
(continued...)
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If the district court determines that Ladeaux’s Fourth Amendment rights
were in fact violated, the court must then consider whether Ladeaux has met his
burden of showing a factual nexus between his unconstitutional seizure and the
discovery of the evidence; that is, whether he has adduced evidence to show that,
but for his illegal detention, the contraband would not have come to light.
Assuming Ladeaux sustains both of these burdens, the Government must then be
afforded the opportunity to prove that the contraband discovered was not “fruit of
the poisonous tree.”
C ON CLU SIO N
For the foregoing reasons, we AFFIRM in part and REVERSE in part the
district court’s denial of Ladeaux’s m otion to suppress and REM AND this case to
the district court for consideration of whether the evidence obtained during the
stop ought to be suppressed based on the request to close the windows and open
the vents.
7
(...continued)
is carried out.”) (emphasis added). However, as noted above, Ladeaux does not
challenge the detention’s length.
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