United States v. Ladeaux

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.

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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.

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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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