United States v. Burtons

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

TENTH CIRCUIT November 4, 2014

Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 13-6234
(D.C. No. 5:11-CR-00126-R-1)
TRAVONN LEON BURTONS, (W.D. Okla.)

Defendant - Appellant.

ORDER AND JUDGMENT*

Before MATHESON, PHILLIPS and MORITZ, Circuit Judges.

During a drug investigation, police officers detained and questioned Appellant

Travonn Leon Burtons. After a positive drug dog alert, they searched his car and located

a firearm. Police also obtained a search warrant and searched a storage unit he rented,

finding firearms and ammunition. Based on the evidence seized, a federal grand jury

charged Mr. Burtons with one count of being a felon in possession. Mr. Burtons filed a

motion to suppress, contending the police seized evidence in violation of the Fourth

* This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Amendment. At the suppression hearing, he also alleged the police had elicited his

statement about the gun in his car in violation of the Fifth Amendment.

The district court denied his motion. He then entered a conditional guilty plea,

reserving the right to appeal the denial of his motion to suppress. Mr. Burtons now

appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

A. Factual Background

1. Police Search Nathaniel Burtons’s Home

On October 6, 2010, the Oklahoma City Police Department (“OCPD”) and the

Drug Enforcement Agency (“DEA”) executed a search warrant at a house owned by Mr.

Burtons’s brother, Nathaniel Burtons (“Nathaniel”). Officers found approximately three

ounces of cocaine and five grams of marijuana, a scale containing drug residue, a large

amount of cash, and various documents, including a receipt for a storage unit at Rite

Place Storage registered to Mr. Burtons. The police arrested Nathaniel.

The police also arrested Robbie Roberson, who was at the house during the search.

DEA Agent Mark Wolf interviewed Mr. Roberson, who admitted to being a drug courier.

He said he had made four trips between July 2010 and October 2010 from Los Angeles to

Oklahoma City to deliver drugs to Nathaniel’s house. Mr. Roberson asserted Mr.

Burtons and Nathaniel were drug trafficking partners and multi-kilogram cocaine dealers.

He also stated he delivered a coffee can containing cocaine to Nathaniel two days earlier.

-2-
He saw Mr. Burtons pick up the coffee can and give Nathaniel $500 to pay Mr.

Roberson’s courier fee. Mr. Roberson had $511 in cash at his arrest.

2. Police Investigate Storage Unit

That evening, OCPD Officer Jeff Springer visited the Rite Place Storage facility

listed on the receipt found at Nathaniel’s house. He located the storage unit listed on the

receipt and informed the facility’s manager he was investigating the renter of the unit.

Officer Springer was unable, however, to procure a canine unit to smell the storage unit,

so he left.

The next morning, at approximately 8:30 a.m., Officer Springer and OCPD

Officer Roy Williams returned to Rite Place Storage and called for a canine unit. At

about 9:15 a.m., OCPD Detective Richie Willis arrived with his certified drug dog. The

dog swept the unit but did not alert to the presence of drugs.1

The officers returned to the front office, where they reviewed the rental agreement

and the activity log associated with the unit. The rental agreement, which was signed on

July 6, 2010, confirmed Mr. Burtons was the renter of the unit. The activity log revealed

Mr. Burtons had accessed the unit 23 times in the preceding three months, with

increasing access in the five weeks before the search of Nathaniel’s house.

1
At the suppression hearing, Officer Springer testified that Detective Willis
informed him an alert was unlikely because the door to the unit was closed and the unit
had no airflow.

-3-
3. Mr. Burtons Arrives and Police Detain Him

While the officers were in the front office, Mr. Burtons arrived at the facility and

attempted to access his unit. He was unable to do so because the facility’s manager had

placed a company lock on the door. Mr. Burtons went to the front office to ask about the

lock.

The facility’s owner informed the officers Mr. Burtons had arrived. The officers

left the office and met Mr. Burtons outside as he was entering a Honda Accord. Officer

Springer approached the front driver’s side door. He informed Mr. Burtons that he was

not under arrest but was being detained for investigative purposes, and asked him to exit

his vehicle. Mr. Burtons complied. Officer Springer frisked him and did not find any

weapons.

Officer Springer called Detective Willis and asked him to return with his drug dog.

While waiting for the canine unit to arrive, Officer Springer informed Mr. Burtons that he

was going to have a drug dog sniff the car. He asked Mr. Burtons if the car contained

anything that could harm the dog or its handler. Mr. Burtons replied there were no drugs

in the vehicle, but he did have a gun in a computer case inside the vehicle. In light of this

statement about the unsecured weapon in Mr. Burtons’s vehicle and his knowledge of

Mr. Burtons’s criminal history, Officer Springer handcuffed Mr. Burtons.

Approximately 30 to 45 minutes later, Detective Willis returned with his drug dog.

The dog sniffed the exterior of Mr. Burtons’s car and alerted to the presence of illegal

-4-
drugs in the passenger compartment. Officers searched the vehicle. They located the gun

in the computer case but did not find any drugs.

4. Police Execute a Search Warrant on the Storage Unit

Later that day, OCPD Officer Eric VanGurp applied for a search warrant for Mr.

Burtons’s storage unit. An Oklahoma state court judge issued the search warrant, which

the officers executed. They found two rifles and ammunition.

B. Procedural Background

1. Indictment and Motion to Suppress

On April 5, 2011, a federal grand jury indicted Mr. Burtons for one count of felon

in possession of a firearm or ammunition in violation of 18 U.S.C. § 922(g)(1).

Mr. Burtons moved to suppress, arguing officers lacked reasonable suspicion to

initiate the investigative detention and, as a result, the evidence seized during the search

of his car, the statement he made during the detention, and the evidence seized from the

storage unit were tainted. Mr. Burtons also challenged the search warrant for the storage

unit as invalid under Franks v. Delaware, 438 U.S. 154 (1978), because the affiant,

Officer VanGurp, knowingly or recklessly included false statements in and omitted

material information from the affidavit in support of the warrant.

2. District Court Order Denying Motion to Suppress

After an evidentiary hearing, the district court denied Mr. Burtons’s motion to

suppress. First, it ruled reasonable suspicion supported Mr. Burtons’s initial detention

-5-
because, based on the totality of the circumstances, Officer Springer had “a

‘particularized and objective basis’ for suspecting [Mr. Burtons] might be about to

engage in legal wrongdoing on October 7, 201[0].” App. at 102.

Second, it concluded Mr. Burtons’s statement about the gun was not obtained in

violation of the Fifth Amendment because he was not “in custody” nor was he subject to

“interrogation.” App. at 105-06.

Third, the court concluded the dog sniff and subsequent search of the car were not

unconstitutional because they occurred during a valid investigative detention, officers

properly arrested Mr. Burtons after he admitted to possessing a firearm, and “a canine

sniff of an already legitimately detained automobile is not a ‘search’ within the meaning

of the Fourth Amendment.” App. at 107 (quoting United States v. Hunnicutt, 135 F.3d

1345, 1350 (10th Cir. 1998)).

Finally, the court rejected Mr. Burtons’s Franks challenge to the search warrant.

It also concluded the search of the storage unit was proper because Mr. Burtons’s rental

agreement with Rite Place Storage precluded him from having a reasonable expectation

of privacy in the unit and provided his consent to the search.

3. Guilty Plea, Sentencing, and Appeal

On June 21, 2011, Mr. Burtons pled guilty and was sentenced. The district court

granted his motion for habeas relief under 28 U.S.C. § 2255 due to ineffective assistance

of counsel and vacated his plea, sentence, and judgment.

-6-
 On July 1, 2013, Mr. Burtons entered a conditional plea, reserving his right to

appeal the court’s denial of his motion to suppress. The district court sentenced him to

180 months in prison and four years of supervised release. Mr. Burtons timely appealed.

II. DISCUSSION

On appeal, Mr. Burtons challenges the denial of his motion to suppress the

evidence and statement obtained during his investigative detention, arguing: (1) the

initial investigative detention was unjustified, (2) the frisk and canine sniff were beyond

the scope of the detention, and (3) his statement made during the detention was elicited in

violation of Miranda and the Fifth Amendment.

We conclude the officers had reasonable suspicion to detain Mr. Burtons. We

decline to reach Mr. Burtons’s challenge to the scope of his detention because he waived

this argument by failing to raise it in the district court. We also decline to reach Mr.

Burtons’s Miranda challenge because, even if the statement were unlawfully obtained, no

evidence was seized as a result of his statement.

Mr. Burtons also appeals the district court’s rejection of his Franks challenge and

its determination the rental agreement provided consent for officers to search his storage

unit. Because Mr. Burtons was charged with only one count of felon in possession, and

-7-
because we determine the gun seized from his vehicle was lawfully obtained, we need not

reach these issues.2

A. Standard of Review

In reviewing “a district court’s denial of a motion to suppress, we review de novo

the district court’s ultimate determination of reasonableness under the Fourth

Amendment.” United States v. Ruiz, 664 F.3d 833, 838 (10th Cir. 2012). “[W]e accept

the district court’s factual findings unless they are clearly erroneous and we view the

evidence in the light most favorable to the prevailing party.” Id.

B. Legal Background

The Supreme Court has identified three types of police-citizen contacts:

consensual encounters, investigative detentions, and arrests. United States v. Garcia, 459

F.3d 1059, 1062-63 (10th Cir. 2006). An encounter is not consensual if “a reasonable

person would not feel free to leave or disregard the contact” under the circumstances.

Lundstrom v. Romero, 616 F.3d 1108, 1119 (10th Cir. 2010). Because both investigative

detentions and arrests are nonconsensual, they are seizures for Fourth Amendment

purposes and must pass constitutional muster. See id. at 1119-20.

An investigative detention occurs when police officers detain a person “for

2
Mr. Burtons’s counsel conceded this point at oral argument. See Oral Arg. At
12:44-12:54.

-8-
purposes of investigating possibly criminal behavior even though there is no probable

cause to make an arrest.” Terry v. Ohio, 392 U.S. 1, 22 (1968). An investigative

detention is reasonable if it (1) is justified at its inception by “specific and articulable

facts” that “give rise to a reasonable suspicion a person has or is committing a crime,”

and (2) is “reasonably related in scope to the circumstances which justified the

interference in the first place.” United States v. DeJear, 552 F.3d 1196, 1200 (10th Cir.

2009). Although reasonable suspicion is a less rigorous standard than probable cause, it

requires “more than an inchoate and unparticularized suspicion or hunch.” United States

v. McHugh, 639 F.3d 1250, 1255 (10th Cir. 2011) (quotations omitted).

In determining whether reasonable suspicion exists, we consider the totality of the

circumstances “rather than assessing each factor or piece of evidence in isolation.” Id. at

1256. “Under this objective standard, we ask whether the facts available to the detaining

officer, at the time, warranted an officer of reasonable caution in believing the action

taken was appropriate.” Id. (quotations omitted). Officers “need not rule out the

possibility of innocent conduct” and may “draw on their own experience and specialized

training to make inferences from and deductions about the cumulative information

available to them that might well elude an untrained person.” United States v. Arvizu,

534 U.S. 266, 273, 277 (2002) (quotations omitted).

-9-
 C. Analysis

1. The Initial Detention

Mr. Burtons argues the initial detention violated the Fourth Amendment because

Officer Springer lacked reasonable suspicion to detain him. We agree with the district

court that Officer Springer had reasonable suspicion Mr. Burtons was engaging in

criminal activity at the time he initiated the detention.

First, the receipt for the storage unit registered to Mr. Burtons found along with

drugs, scales, and a large amount of money in Nathaniel’s house the day before supported

the detention. Officer Springer knew from training and experience that drug traffickers

often store drugs, proceeds, and other evidence relating to their drug transactions in

storage facilities. The activity logs bolstered the officer’s suspicion. Further, Mr.

Burtons attempted to access the storage unit the morning after his brother’s house had

been searched.

Second, Officer Springer knew Mr. Roberson provided Agent Wolf with

information linking Mr. Burtons to drug-trafficking activity. Officer Springer reasonably

relied on Mr. Roberson’s statements because Mr. Roberson’s identity was known, he

claimed firsthand knowledge of Mr. Burtons’s activities, and his statements implicated

himself in criminal activity. See United States v. Brown, 496 F.3d 1070, 1075 (10th Cir.

2007) (explaining that information provided by a known informant is more reliable than

information from an anonymous source); United States v. Jenkins, 313 F.3d 549, 554-55

-10-
(10th Cir. 2002) (explaining informant’s allegations were sufficiently reliable when the

informant claimed to have personally witnessed defendant’s drug transactions and

assisted in preparing drugs for distribution).

Third, Officer Springer could reasonably consider Mr. Burtons’s prior criminal

history of drug offenses because “[w]hile knowledge of a person’s prior criminal

involvement is not sufficient itself to even rise to the level of reasonable suspicion, it can

combine with other factors to support the requisite standard of suspicion. United States v.

West, 219 F.3d 1171, 1179 (10th Cir. 2000).

We conclude Officer Springer had reasonable suspicion to detain Mr. Burtons.

2. Issues Not Addressed

a. Scope of detention

Mr. Burtons also argues the scope of the detention exceeded its initial justification.

He contends Officer Springer did not have reasonable suspicion to frisk him or to detain

him an additional 30 to 45 minutes to wait for the canine unit to arrive. Mr. Burtons,

however, failed to make these arguments in the district court. He argued only that the

initial detention was unlawful and tainted the subsequently discovered evidence.

“When a motion to suppress evidence is raised for the first time on appeal, we

must decline review.” United States v. Hamilton, 587 F.3d 1199, 1213 (10th Cir. 2009)

-11-
(quotations omitted). Under Federal Rule of Criminal Procedure 12(e), “[a] party waives

any Rule 12(b)(3)3 defense, objection, or request not raised by the [pre-trial] deadline,”

absent a showing of good cause. Fed. R. Crim. P. 12(e). “[T]his waiver provision

applies not only to the failure to make a pre-trial motion, but also the failure to include a

particular argument in the motion.” United States v. Dewitt, 946 F.2d 1497, 1502 (10th

Cir. 1991). We conclude Mr. Burtons has waived these arguments he failed to raise in

the district court.

b. Statement about the gun

Mr. Burtons argues the statement he made about the gun in the vehicle was

obtained in violation of his Miranda rights. Mr. Burtons raised this issue for the first

time at the evidentiary hearing—not in his motion to suppress—which alone may be

grounds for deeming Mr. Burtons’s argument waived on appeal. Nonetheless, we need

not address this issue because, even if Mr. Burtons’s statement were obtained in violation

of Miranda, the gun was discovered as a result of the drug dog’s alert, not Mr. Burtons’s

statement. The gun from the car is sufficient to affirm Mr. Burtons’s conviction.

c. Search warrant challenge

Mr. Burtons also challenges the district court’s rejection of his Franks challenge

3
Federal Rule of Criminal Procedure 12(b)(3)(C) requires a motion to suppress
evidence to be raised before trial.

-12-
and its determination the rental agreement provided consent for officers to search his

storage unit. We decline to reach these issues because Mr. Burtons was charged with

only one count of being a felon in possession, and the firearm seized from his vehicle is

sufficient to affirm his conviction. See 18 U.S.C. 922(g)(1). Further, Mr. Burtons was

sentenced to the statutory minimum of 180 months for his conviction. See 18 U.S.C.

§ 924(e)(1). Any additional firearm and ammunition seized from Mr. Burtons’s storage

unit would have no further impact on his conviction or sentence. See United States v.

Torres, 182 F.3d 1156, 1164 n.4 (10th Cir. 1999) (explaining principles of judicial

restraint prevent us from addressing an issue that is unnecessary to the outcome of the

case). As noted previously, supra note 2, counsel for Mr. Burtons conceded we need not

reach the issues regarding the search of the storage unit if we affirm on the detention

issue.

III. CONCLUSION

For the foregoing reasons, we affirm the district court.

ENTERED FOR THE COURT

Scott M. Matheson, Jr.
Circuit Judge

-13-