United States v. Sawyer

F I L E D
United States Court of Appeals
Tenth Circuit

March 20, 2006
PUBLISH
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,
v.
No. 05-5002
PAUL MICHAEL SAWYER, also
known as Motor Mike, also known as
Mike Paul Sawyer,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 03-CR-145-H)

Richard A. Friedman, Assistant United States Attorney, Washington, D.C. (David
C. O’Meilia, United States Attorney, and Leena Alam, Assistant United States
Attorney, with him on the briefs, Tulsa, Oklahoma) for Plaintiff-Appellant.

Stanley D. Monroe, Tulsa, Oklahoma, for Defendant-Appellee.

Before PORFILIO and EBEL, Circuit Judges, and HERRERA, District Judge. *

HERRERA, District Judge.

Honorable Judith C. Herrera, United States District Judge for the District
*

of New Mexico, sitting by designation.
 The Government appeals the district court’s order granting Defendant Paul

Michael Sawyer’s (“Defendant”) motion to suppress evidence. We exercise

jurisdiction under 18 U.S.C. Section 3731 and reverse.

I. Factual Background.

On August 17, 2000, Detectives Michael Todd Brown and Jack Cross of the

Lawrence, Kansas Police Department (the “Kansas Officers”) decided to pursue

an investigation into a stolen motorcycle ring by traveling to Bartlesville,

Oklahoma to interview Defendant Paul Michael Sawyer (“Defendant”). In

preparation for their trip, the Kansas Officers attempted to telephone Sergeant Jay

Hastings of the Bartlesville Police Department on August 17 and August 18,

2000. The Kansas Officers were unable to speak with Sergeant Hastings, but left

a message for Hastings on August 18, 2000.

On August 18, 2000, the Kansas Officers departed for Bartlesville in

attempt to locate and interview Defendant. Upon their arrival in Bartlesville, the

Kansas Officers stopped first at the Bartlesville Police Department hoping to find

a Bartlesville police officer to accompany them. No Bartlesville officers were

available.

The Kansas Officers proceeded to Defendant’s motorcycle shop, where

Defendant conducted a business of motorcycle sales. When the officers knocked

on the door of the business, no one answered. An individual at a nearby business

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informed the Kansas Officers that Defendant was employed by Reda Pump. The

Kansas Officers proceeded to Reda Pump, where they informed the manager, or

person in charge, that they needed to speak with Defendant. Detective Brown was

wearing his badge, firearm, handcuffs, phone, and pager on his belt. Detective

Cross was wearing similar equipment on his belt. The Kansas Officers either

presented their badges to the manager or their badges were visible to the manager

during the conversation. The manager directed the Kansas Officers to a large

conference room located on the business’s premises, where the officers waited for

Defendant. Thereafter, the manager brought Defendant to the conference room

and left.

Detective Brown informed Defendant that he and Detective Cross were

police officers from Lawrence, Kansas investigating crimes that had occurred in

their jurisdiction. Detective Brown further indicated that Defendant was not

under arrest and that he and Detective Cross did not have authority to arrest

Defendant. Detective Brown also advised Defendant of his Miranda rights, using

a blue card that the local district attorney’s office had issued to the Lawrence,

Kansas Police Department. Thereafter, Detective Brown asked Defendant if he

would speak with them, and Defendant responded in the affirmative. The Kansas

Officers conversed with Defendant for approximately one hour.

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 During the interview, Detective Brown asked Defendant to prepare a

written statement, and Defendant agreed. The Kansas Officers provided

Defendant with a Lawrence, Kansas Police Department form on which to write a

statement. After Defendant finished writing the statement, Detective Brown

asked whether Defendant would take him and Detective Cross to Defendant’s

motorcycle shop, and Defendant agreed.

The Kansas Officers, driving their police vehicle, followed Defendant, who

was driving his own vehicle, to the shop. Upon their arrival, Defendant unlocked

the door and allowed the Kansas Officers to enter. Once inside, the Kansas

Officers requested that Defendant consent to a search of the premises by

completing and signing an official Lawrence, Kansas Police Department consent

form. The Kansas Officers explained that they wanted to formalize Defendant’s

consent to search so that they could have it for their records. Defendant signed

the form.

The Kansas Officers began to search the motorcycle shop, and when they

were concluding their search, the officers contacted the Bartlesville Police

Department to request that a Bartlesville officer bring a camera to the shop.

Three Bartlesville officers arrived on the scene, took photographs, and at the

request of the Kansas Officers, seized six engines. The Kansas Officers took

Defendant’s records from his office and subsequently proceeded to Defendant’s

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residence where they obtained additional records from Defendant’s wife.

Thereafter, the Kansas Officers further interviewed Defendant at the Bartlesville

Police Department.

At some point between August 19, 2000, and August 23, 2000, the Kansas

Officers notified the Bartlesville police officers of the results of their examination

of the serial numbers on the engines that they had seized from Defendant’s shop.

The following day, the Bartlesville officers obtained a search warrant from an

Oklahoma state court judge authorizing a second search of Defendant’s shop,

using the information obtained by the Kansas Officers from the first search as the

basis for their warrant application. The warrant resulted in the seizure of

seventeen additional motorcycle engines.

The Kansas Officers at all times were acting in furtherance of an

investigation on behalf of the Lawrence, Kansas Police Department. The Kansas

Officers did not at any time act, or purport to act, as private citizens or

volunteers. Rather, at all times, the Kansas Officers represented themselves as

acting on official business.

II. Procedural Background.

On October 10, 2003, the Government indicted Defendant in the Northern

District of Oklahoma, charging him with conspiracy to possess stolen property,

which had traveled in interstate commerce, in violation of 18 U.S.C. Section 371,

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and possession of motorcycle engines with altered or obliterated vehicle

identification numbers, with the intent to sell such engines, in violation of 18

U.S.C. Section 2321. On November 14, 2003, Defendant filed a motion to

suppress, arguing that the district court should suppress all evidence obtained

from both searches of his motorcycle shop on the ground that the Kansas Officers

lacked authority to conduct an investigation in Oklahoma and that his consent to

search therefore was invalid.

After conducting evidentiary hearings on December 1, 2003, and December

4, 2003, the district court certified the following question to the Oklahoma Court

of Criminal Appeals:

Whether police officers from Lawrence, Kansas, who
identified themselves as police officers to the owner of a
building located in Bartlesville, Oklahoma, but informed
the owner prior to requesting consent to search that they
were from Kansas and without authority to arrest him,
could legally conduct such a search in Oklahoma, and
whether the fruits of the subsequent search are
admissible in evidence, considering that both Oklahoma
and Kansas have statutory prohibitions against police
officers acting in their official capacities outside their
respective jurisdictions?

On June 8, 2004, in a three-two decision, the Oklahoma Court of Criminal

Appeals ruled that the Kansas Officers lacked authority to request consent to

search Defendant’s business. United States v. Sawyer, 92 P.3d 707, 709-10 (Ok.

Ct. Crim. App. 2004), App. 181-82. The Oklahoma court ruled that the detectives

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lawfully could be present and conduct an investigation in Oklahoma, but lawfully

could not conduct a search or seizure. Id. at 710 n.3, App. 182. Because the

Kansas Officers obtained Defendant’s consent to search while representing

themselves as officers on official business, the Oklahoma court held that

Defendant’s consent to search was invalid under state law. Id. at 710 & n.3, App.

182. The Oklahoma court stated that the fruits of that search should be

suppressed under the Fourth Amendment. Id. at 710-11, App. 182-83.

After receiving the Oklahoma court’s response to the certified question and

conducting a further hearing for argument by counsel on August 13, 2004, the

district court granted Defendant’s motion to suppress. Although the court

concluded during the hearings that Defendant’s consent to search voluntarily was

given, see 12/4/03 Tr. at 77-78, App. 139-40; see also id. at 65, 72, 79, App. 127,

134, 141; 2/4/04 Tr. at 13, App. 160; 8/13/04 Tr. at 28, App. 215, the district

court nonetheless held that, “because the Kansas officers could not lawfully

request consent[,] . . . the search in this case is constitutionally infirm” and “the

fruits of that illegal search cannot be used as evidence in this case,” Sawyer, No.

03-CR-145-H, slip. op. at 14, App. 236.

III. Discussion.

“It is well settled under the Fourth and Fourteenth Amendments that a

search conducted without a warrant issued upon probable cause is per se

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unreasonable . . . subject to only a few specifically established and well-

delineated exceptions.” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)

(citations and internal quotation marks omitted). “It is equally well settled that

one of the specifically established exceptions to the requirements of both a

warrant and probable cause is a search that is conducted pursuant to consent.”

Id. (citations omitted). Federal law governs the question whether consent is valid,

even though the police actions are those of state police officers. See United

States v. Miller, 452 F.2d 731, 733 (10th Cir. 1971) (citations omitted). Under

federal law, consent is valid if it is “‘freely and voluntarily given.’” Schneckloth,

412 U.S. at 222 (quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968)).

The validity of consent to search requires a factual determination based upon the

totality of the circumstances of whether the consent was “the product of an

essentially free and unconstrained choice by [the] maker,” id. at 225, or whether it

was “the product of duress or coercion, express or implied,” id. at 227.

The district court found that the consent secured by the Kansas Officers

was voluntary and not the product of duress. 1 That finding is not challenged

1
Although the district court did not address the voluntariness of
Defendant’s consent in its written opinion, during the hearings on the motion to
suppress, the court found that Defendant’s consent met the voluntariness
requirements of the Fourth Amendment. See 12/4/03 Tr. at 77-78, App. 139-40;
see also id. at 65, 72, 79, App. 127, 134, 141; 2/4/04 Tr. at 13, App. 160; 8/13/04
Tr. at 28, App. 215. Because the record on this point is sufficiently clear, we
need not remand this case for a written finding. See United States v. King, 222
(continued...)

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here. 2 Rather, on appeal, the Government contends that the district court erred

when it held that Defendant’s consent to conduct the initial search of the premises

of his business, although voluntary, was nonetheless invalid because the Kansas

Officers were acting outside of their jurisdiction in violation of Oklahoma law.

“In reviewing a district court’s ruling on a motion to suppress evidence, we

view the evidence in the light most favorable to the prevailing party.” United

States v. Oliver, 363 F.3d 1061, 1065 (10th Cir. 2004) (citation and internal

quotation marks omitted). We accept the district court’s findings of fact unless

they are clearly erroneous. Id. “The ultimate question of whether a search and

seizure was reasonable under the Fourth Amendment is a question of law that we

review de novo.” Id. (citation and internal quotation marks omitted). We accept

a state court’s determination of state law as conclusive. Nelson v. Warden of Kan.

State Penitentiary, 436 F.2d 961, 962 (10th Cir. 1971) (citations omitted).

1
(...continued)
F.3d 1280, 1283 n.2 (10th Cir. 2000) (declining to remand where the record was
“sufficiently detailed and developed”); United States v. Soto, 988 F.2d 1548,
1554-55 (10th Cir. 1993) (declining to remand despite lack of specific findings
where the relevant facts were undisputed).
2
Defendant does not cross-appeal the district court’s decision, including
the district court’s finding of voluntariness or the court’s failure to find that
Defendant was seized or otherwise coerced. Accordingly, the voluntariness of the
search, as well as the question whether Defendant was seized for purposes of the
Fourth Amendment, are not before us for review. We therefore do not consider
Defendant’s arguments related to these issues. See Answer Br. at 16-17 (setting
forth case law and argument regarding seizure and voluntariness).

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 The district court held that although the consent obtained from the Kansas

Officers was voluntary under the Fourth Amendment, that consent nonetheless was

invalid and constitutionally infirm because the Kansas Officers did not, as a

threshold matter, have authority under Oklahoma law to request Defendant’s

consent. Sawyer, No. 03-CR-145-H, slip op. at 14, App. 236. The district court

recognized that compliance with the Fourth Amendment is a question of federal,

and not state, law and that “violation of state law does not render the search per se

unreasonable” under the Fourth Amendment. 3 Id. at 9, App. 231. The district

court explained, however, that “state law informs the question of whether the

consent obtained by the Kansas officers, in violation of law, was valid,” because

“[i]f state law does not control the consequences of the unlawful behavior of the

Kansas officers, the state of Oklahoma will have seen its laws disregarded by law

enforcement officers that it did not authorize and that it cannot sanction.” Id. at

11, App. 233. The district court concluded that the “Kansas officers could not

lawfully request consent,” and that the consent obtained therefore was invalid

3
The Oklahoma Court of Criminal Appeals determined that the Kansas
Officers lacked authority to request consent to search Defendant’s business.
Sawyer, 92 P.3d at 709-10, App. 181-82. Based upon the Oklahoma court’s
holding, the district court properly concluded that “[t]he act of the Kansas
officers in requesting [Defendant’s] consent to search was clearly contrary to
Oklahoma law, and the consent to search given by [Defendant] is therefore
invalid under Oklahoma law.” Sawyer, No. 03-CR-145-H, slip. op. at 8, App. 230
(citations omitted).

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under the Fourth Amendment. Id. at 11, 14, App. 233, 236. We review the district

court’s conclusion of law de novo and reverse.

The federal test for determining the validity of consent to search does not

require a district court to consider whether a law enforcement officer has authority

under state law to request consent. Rather, the federal test for determining the

validity of consent to search requires a factual determination based upon the

totality of the circumstances of whether the consent was the product of an

“essentially free and unconstrained choice by [the] maker” or whether it was the

product of “duress or coercion, express or implied.” Schneckloth, 412 U.S. at 225,

227. Factors to consider within the federal totality of the circumstances test

include physical mistreatment, use of violence, threats, promises, inducements,

deception, trickery, or an aggressive tone, the physical and mental condition and

capacity of the defendant, the number of officers on the scene, and the display of

police weapons. See United States v. Pena, 143 F.3d 1363, 1367 (10th Cir. 1998);

United States v. Rosborough, 366 F.3d 1145, 1149 (10th Cir. 2004) (citation

omitted). Whether an officer reads a defendant his Miranda rights, see, e.g.,

United States v. Dozal, 173 F.3d 787, 796 (10th Cir. 1999), obtains consent

pursuant to a claim of lawful authority, see, e.g., Bumper, 391 U.S. at 548-49, or

informs a defendant of his or her right to refuse consent, Schneckloth, 412 U.S. at

227, also are factors to consider in determining whether consent given was

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voluntary under the totality of the circumstances. The federal totality of

circumstances test does not require an analysis of the legal parameters of the

Kansas Officers’ jurisdictional authority under state law. See, e.g., United States

v. Little, 18 F.3d 1499, 1503 (10th Cir. 1994) (the totality of the circumstances test

is “fact specific”--i.e., based upon on “‘all the circumstances surrounding the

encounter’”) (emphasis added); see also Schneckloth, 412 U.S. at 233 (to

determine whether consent is voluntary, a court must “analyz[e] all of the

circumstances of an individual consent”). Accordingly, the district court erred in

finding the consent, although voluntary under the Fourth Amendment, nonetheless

invalid.

The district court erroneously relied upon our holding in Marshall v.

Columbia Lea Regional Hospital, 345 F.3d 1157 (10th Cir. 2003), in support of its

decision. In Marshall, police officers conducted a blood test without obtaining a

warrant. Id. at 1161. In a subsequent Section 1983 suit, the state argued, and the

district court agreed, that probable cause and exigent circumstances rendered the

blood test reasonable under the Fourth Amendment. See id. at 1171. The federal

test for exigent circumstances asks in part whether a state assigns a high level of

interest to the evidence the government seeks to admit. Id. at 1175 (citations

omitted). Because the federal test requires us to consider state interests, we

properly looked to New Mexico law as an indicator of state interests. We

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concluded that because New Mexico law banned compulsory blood testing, with or

without a warrant, in misdemeanor cases involving no physical injuries, the federal

exigent circumstances exception did not logically apply. Id. at 1174, 1176, 1181.

We therefore reversed the decision of the district court and held that the

warrantless blood test violated the Fourth Amendment. Id.

In Marshall, because the federal exigent circumstances test requires a

balancing of state interests and the New Mexico statute banned the compulsory

blood testing at issue, state law was highly determinative of the federal question.

The district court here, drawing a faulty analogy to Marshall, however, held that

Oklahoma consent law is similarly determinative of the operation of the federal

consent test. Specifically, the district court explained, in Marshall “the state had

the authority to regulate what constituted exigency, although the operation of the

exigent circumstances exception was measured by federal law.” Sawyer, No. 03-

CR-145-H, slip. op. at 12, App. 234; see also id. (quoting Marshall, 345 F.3d at

1175 (“‘Our point is not that the Hobbs Defendants are subject to liability under §

1983 for violation of the New Mexico statute, but rather that the New Mexico

statute determines whether . . . exigent circumstances . . . are present here.’”)).

From here, the district court reasoned that “in the instant case, the state has the

authority to regulate the conduct of law enforcement officers, including the

authority to prohibit them from securing consent to search when outside their

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jurisdiction,” even though the operation of the consent is determined by federal

law. Id. (citations omitted).

Unlike Marshall, this case does not involve an “exigent circumstances”

analysis that requires a court to weigh a state’s interest against the rights of an

individual defendant. See, e.g., Marshall, 345 F.3d at 1175. Instead, it involves a

“consent” analysis that does not require an examination of state law or state

interests. The relevant consent inquiry is whether the consent was “unequivocal

and specific and freely and intelligently given,” or whether the police “coerce[d]

the defendant into granting . . . consent.” United States v. Pena-Sarabia, 297 F.3d

983, 986 (10th Cir. 2002); see also Schneckloth, 412 U.S. at 225, 227. The

application of the validity of consent test requires us to examine such facts and

circumstances as physical mistreatment, use of violence, threats, threats of

violence, promises or inducements, deception or trickery, the physical and mental

condition and capacity of the defendant, the number of officers on the scene, and

the display of police weapons within the totality of the circumstances. See, e.g.,

Pena-Sarabia, 297 F.3d at 987; Rosborough, 366 F.3d at 1149. The application

does not require us, as a threshold matter, to examine the officers’ compliance

with Oklahoma’s law for obtaining valid consent, and therefore easily is

distinguishable from the exigent circumstances test applied in Marshall.

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 For the same reason, Defendant’s reliance upon United States v. Ibarra, 955

F.2d 1405 (10th Cir. 1992), is not persuasive. In Ibarra, we affirmed the district

court’s decision to grant a motion to suppress evidence seized during the search of

a vehicle impounded in violation of state law. Id. at 1409. We considered state

law in Ibarra because inventory searches involve a special incorporation of state

law into Fourth Amendment jurisprudence. Specifically, an inventory search

without probable cause of an impounded vehicle is lawful under the Fourth

Amendment if the impoundment is pursuant to a state statute or administrative

procedure that authorizes the impoundment and satisfies certain constitutional

requisites. See, e.g., Florida v. Wells, 495 U.S. 1, 4-5 (1990); Colorado v.

Bertine, 479 U.S. 367, 371, 374 (1987); South Dakota v. Opperman, 428 U.S. 364,

369-71, 376 (1976). In Ibarra, the state statute did not authorize impoundment of

the vehicle, and therefore the search did not come within the inventory-search

exception to the probable cause requirement. Ibarra, 955 F.2d at 1409. In

contrast, the search in this case relies upon Defendant’s consent, and the federal

consent test does not depend upon state-law authorization.

Although state law or state interests are not highly determinative of the

outcome of the federal injury here, as they were in Marshall or Ibarra, compliance

with state law nonetheless may be relevant to the question whether Defendant’s

consent was valid under the Fourth Amendment. Cf. United States v. Mikulski,

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317 F.3d 1228, 1232 (10th Cir. 2003) (“the question of compliance with state law

may well be relevant in determining whether police conduct was reasonable for

Fourth Amendment purposes”) (citation and internal quotation marks omitted).

We therefore must determine whether the Kansas Officers’ actions in

contravention of state law amounted to a federal violation.

The undisputed record indicates that Detective Brown informed Defendant

that he was not under arrest and that Detectives Brown and Cross did not have

authority to arrest him. Detective Brown further advised Defendant of his

Miranda rights. Detective Brown asked for and received permission to speak with

Defendant, asked for and received a written statement from Defendant, and asked

for and received written permission to search Defendant’s motorcycle shop. The

Kansas Officers did not escort Defendant in their police vehicle to Defendant’s

motorcycle shop, but rather entered their own vehicle and followed Defendant,

who drove his own vehicle, to the shop. There is no evidence in the record that

the Kansas Officers, during any portion of their encounter with Defendant, used

physical touching, violence, threats, promises, inducements, deception, trickery or

an aggressive tone, or that Defendant’s physical or mental condition rendered him

unable to consent knowingly and intelligently. There also is no indication in the

record that Defendant granted consent in submission to a claim of lawful

authority--i.e., a claim by the Kansas Officers that they could search the premises

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even without Defendant’s consent. Moreover, the record indicates that the Kansas

Officers contacted the Bartlesville Police Department as they were concluding the

search of the premises and that Bartlesville police officers thereafter were

involved in the investigation. Compare Mikulski, 317 F.3d at 1233 (in deciding

whether a state law violation amounts to a constitutional violation, noting that the

officers acting extra-jurisdictionally contacted officers from the appropriate

jurisdiction soon after the arrest at issue occurred). On these facts, with no

evidence of coercion, we decline to hold that the state law jurisdictional violation

rises to a constitutional level sufficient to render the consent invalid.

Our holdings in United States v. Mikulski, 317 F.3d 1228 (10th Cir. 2003),

and Ross v. Neff, 905 F.2d 1349 (10th Cir. 1990), which the district court relied

upon in support of its decision, 4 do not persuade us otherwise. In Ross v. Neff, we

held that an “arrest made outside the arresting officer’s jurisdiction violates the

Fourth Amendment.” 905 F.2d at 1353-54. In United States v. Mikulski, we

distinguished Neff, explaining that the extra-jurisdictional actions “‘concerned the

jurisdiction of officers acting between political subdivisions of the same state.’”

317 F.3d at 1232 (citations omitted). We concluded that a warrantless arrest

outside of an officer’s jurisdiction (but within the same state), did not rise to a

Although the district court did not cite Ross, by relying upon our holding
4

in Mikulski, the court relied upon our holding in Ross by implication.

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constitutional violation even though it violated state law in part because the

officers were acting between political subdivisions of the same state. Id. at 1233.

Referring to this distinction in support of its conclusion, the district court

explained that “[t]he issue in this case is not limited to one of the ‘jurisdiction of

officers acting between political subdivisions of the same state.’” Sawyer, No. 03-

CR-145-H, slip. op. at 11, App. 233 (citing Mikulski, 317 F.3d at 1232). Rather,

the state law violation implicates a state’s authority to
control within its boundaries the behavior of law
enforcement personnel from other states, where it has
had no say in any initial licensing of personnel and
where it will have no say in any subsequent discipline
for wrongful conduct. A state’s interest in controlling
law enforcement personnel within its boundaries is very
strong.

Id. (citations omitted). Although we agree that Oklahoma’s interest in monitoring

law enforcement personnel within its boundaries is strong, that interest is not

sufficient to elevate this state law violation to a federal constitutional violation.

The consent to search obtained here, with no evidence of coercion or duress, is

vastly different from the warrantless arrest conducted in Ross v. Neff. Compare

United States v. Green, 178 F.3d 1099, 1106 (10th Cir. 1999) (“[a] warrantless

arrest is vastly different from a warranted search”). Accordingly, we decline to

extend Ross to the facts of this case.

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 We also find unpersuasive the district court’s argument that suppression is

proper here because there was “no independent justification for the search”

separate from the consent obtained in violation of state law. Sawyer, No. 03-CR-

145-H, slip. op. at 13-14, App. 235-36. In support of this conclusion, the district

court distinguishes our decisions in United States v. Green and United States v.

Mikulski, reasoning that in those cases we did find a basis independent from the

state law violation to deem the search in Green and seizure in Mikulski

constitutional.

In Green, officers of the Wichita Police Department on two occasions

searched Green’s home in Butler County, Kansas, outside of the city limits of

Wichita, pursuant to two valid search warrants--one from a Butler County judge

and one from a United States Magistrate Judge. See 178 F.3d at 1101-03. We

held that “even if th[e] officers [were] acting outside their jurisdiction as defined

by state law,” “there was no federal constitutional violation [because the] officers

obtain[ed] a warrant, grounded in probable cause . . . , from a magistrate of the

relevant jurisdiction authorizing them to search [the] particular location.” Id. at

1106. The district court reasoned that in Green, the warrants obtained by a neutral

judge “justified the searches independent of the officers’ state law violation,” and

that by contrast, here, “there was no independent determination of probable cause

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and no justification for the search independent of the state law violation.”

Sawyer, No. 03-CR-145-H, slip. op. at 13, App. 235.

Likewise, in Mikulski, the district court noted that an independent

justification existed for the search, whereas here, the district court explained, “the

unlawful acts of the Kansas officers created the relied-upon exception to the

Fourth Amendment prohibition against unlawful search and seizure.” Id. at 14,

App. 236. In Mikulski, police officers acting outside of their jurisdiction

conducted an arrest based upon illegal conduct that the officers observed. See 317

F.3d at 1229-30. The observation by the officers, the district court maintained,

constituted a basis independent from the state law jurisdictional violation to justify

the arrest. Sawyer, No. 03-CR-145-H, slip. op. at 13, App. 235. In contrast, the

district court explained, here, the sole justification for the search--consent--was

obtained in violation of state law. Id. at 14, App. 236.

We have never grafted an “independence” requirement onto our

jurisprudence concerning state law violations and whether such violations amount

to an infringement of federal constitutional rights. The touchstone of our

jurisprudence remains whether the conduct in question contravenes the federal

constitution. This inquiry does not, and has not, required a separate justification

for police conduct “independent” from a state law violation. Such a requirement

would render a state law violation conclusive of the federal question absent an

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independent justification for police conduct. State law is not determinative of the

federal question, but rather may or may not be relevant to the determination of the

federal question. See, e.g., Mikulski, 317 F.3d at 1232. Here, we have held that

the state law violation, on the record before us with no evidence of coercion, does

not rise to the level of a federal constitutional violation.

The remaining arguments in support of the district court’s opinion set forth

by Defendant likewise are not persuasive. Specifically, Defendant’s reference to

Preston v. United States, 376 U.S. 364 (1964), in which the Supreme Court held

state officers to the same federal standard as federal officers in determining

whether their actions violate federal constitutional rights, is not applicable here

because Defendant seeks the reverse--i.e., to evaluate federal constitutional rights

by state standards. Id. at 366 (citation omitted). Likewise, Defendant’s references

to the full faith and credit and privileges and immunities clauses are not persuasive

because Defendant has not demonstrated, and we do not find, that these clauses are

relevant to the constitutionality of the consent obtained here. Finally, Defendant’s

reliance upon Elkins v. United States, 364 U.S. 206 (1960), does not have merit

because Elkins simply stands for the proposition that federal courts must apply

federal standards in determining the admissibility of evidence obtained by state

law enforcement officers. Id. at 223-24.

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IV. Conclusion.

Having carefully reviewed the briefs, the record, and the applicable law, we

REVERSE the district court’s order granting the motion to suppress and

REMAND the action for further proceedings. 5

5
The Government also argues that we should reverse the district court’s
order granting the motion to suppress on the grounds that (1) the exclusionary
rule does not apply to remedy a violation of a state law, and (2) the exclusionary
rule does not apply because the Kansas Officers did not intrude upon an interest
protected by the Fourth Amendment. Because we reverse on the ground that the
consent obtained was valid under federal law, we need not reach these additional
arguments on appeal.

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