United States v. Sanchez

FILED
United States Court of Appeals
Tenth Circuit

February 10, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 08-5047
LUIS GONZALES SANCHEZ, JR.,
a/k/a Luis Sanchez,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. NO. 4:07-CR-00141-JHP-2)

William D. Lunn, Tulsa, Oklahoma, for Defendant - Appellant.

Jeffrey A. Gallant, Assistant United States Attorney, (David E. O’Meilia, United
States Attorney, with him on the brief), for Plaintiff - Appellee.

Before HARTZ, HOLLOWAY, and O’BRIEN, Circuit Judges.

HARTZ, Circuit Judge.
 Luis Gonzalez Sanchez Jr. 1 was standing by a vehicle in the driveway of

the house of Omar Silvar when police officers arrived to execute a search warrant

for the house. An officer ordered him to get down, but he fled. He was quickly

apprehended, and a search of his person yielded incriminating evidence. About

an hour later, after the search of the house was completed, Mr. Sanchez was

formally arrested. He pleaded guilty in the United States District Court for the

Northern District of Oklahoma to a charge of possession of marijuana with intent

to distribute, see 21 U.S.C. §§ 841(a)(1) and (b)(1)(D). His plea reserved his

right to appeal the denial of his motion to suppress the evidence seized from his

person and Silvar’s house, and he has appealed that decision.

We have jurisdiction under 28 U.S.C. § 1291 and affirm the district court’s

decision denying suppression. In particular, we hold as follows: (1) The search

warrant for the house was lawful even though the affidavit for the warrant

provided no direct evidence of criminal conduct at the house. If law-enforcement

officers have probable cause to believe that a person is a supplier of illicit drugs,

then the officers have probable cause to search the person’s home for such

contraband and evidence. (2) Officers executing a search warrant of a home may

detain persons they encounter standing by a vehicle in the home’s driveway. (3)

1
Mr. Sanchez signed his name as Luis Sanchez Gonzalez Jr. several times
in his plea agreement in district court. But to be consistent with the charging
documents and other materials in this case, we refer to him as Luis Gonzalez
Sanchez Jr.

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In Oklahoma if such a person flees the officers after being ordered to get down,

the officers have probable cause to arrest him for violation of a statute prohibiting

obstruction of an officer performing his duties. (4) Officers may search the

person of one who is apprehended after such flight, even though (a) the

apprehended person is not formally arrested until the search of the home has been

completed, and (b) the formal arrest is not for the offense of obstructing an

officer. We also hold that the district court did not err in any challenged

procedural rulings related to the suppression hearing.

We first address the validity of the search warrant. Then we describe the

events during the execution of the warrant and explain why the officers’ actions

were lawful. Finally, we discuss the district court’s procedural rulings at the

suppression hearing.

I. VALIDITY OF THE SEARCH WARRANT 2

The search warrant in question authorized officers to search for marijuana,

drug paraphernalia, drug-sale proceeds, firearms, cellular telephones, pagers,

records, ledgers, computers, keys, unexplained wealth, and proof of ownership at

the “house, building or premises, the curtilage thereof and appurtenances

thereunto belonging” at 713 South Norwood Avenue in Tulsa, Oklahoma.

2
We need not address whether Mr. Sanchez has standing to challenge the
warrant, because “even assuming that defendant does have standing, it is clear
that there was no constitutional violation.” United States v. Scarborough, 128
F.3d 1373, 1377 n.2 (10th Cir. 1997).

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R. Vol. I Doc. 34-3 at 2. Supporting the warrant was an affidavit of Tulsa Police

Department Officer Ronald Leatherman, which set forth the following

information: Leatherman had a bachelor’s degree in criminal-justice

administration, had worked for the Tulsa Police Department for seven years, and

was a narcotics investigator in the department’s Special Investigations Division.

He had received training in narcotics-investigation techniques from federal and

Oklahoma agencies. During a two-week period a confidential informant had

made multiple purchases of marijuana from a seller identified as Seth. Before

each transaction Leatherman would listen to a telephone conversation between the

informant and Seth in which Seth set a location for the exchange and stated that

he would check with his supplier. After searching the informant’s person and

vehicle for drugs, surveillance officers would follow the informant to the location

set by Seth and watch the informant purchase the marijuana from Seth using cash

provided by the police. The informant gave the officers the marijuana he had

purchased from Seth. At each transaction the officers observed a white Chevrolet

pickup driven by an unknown man. The informant identified the man as Seth’s

supplier and said that the man gave the marijuana to Seth at the time of the buys.

After one of the transactions, officers followed the man to 713 S. Norwood. He

drove his truck on a circuitous but nonstop route home, a driving pattern that

Leatherman described as “[a] tactic commonly used by drug dealers to avoid

detection by law enforcement officials.” Id. Doc. 34-4 at 3. Utility records

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showed that Omar Silvar resided at 713 S. Norwood. A driver’s license photo

obtained from the Oklahoma Department of Public Safety confirmed that Silvar

was the pickup driver seen by officers at the buys.

Leatherman’s affidavit further states that “[t]hrough [his] training and

experience, [he] ha[s] also learned that individuals that sell/distribute illegal

drugs often store additional quantities of illegal drugs . . . at their residence. It is

also common for individuals that distribute illegal drugs to store the money they

receive from selling illegal drugs at their residence.” Id. It goes on to say that

“[t]he fact that Omar Silvar returned to his residence (without stopping at any

other locations) after delivering marijuana to ‘Seth’ during the controlled

purchases indicates that Silvar has the proceeds from selling the marijuana at his

residence.” Id.

Mr. Sanchez does not challenge the sufficiency of Leatherman’s affidavit to

establish probable cause that Silvar was involved in marijuana trafficking. Nor

does he challenge the sufficiency of the evidence that Silvar lived at 713 S.

Norwood. What he challenges is the existence of probable cause to believe that

Silvar’s home would contain drugs, drug paraphernalia, drug-sale proceeds, or

other evidence of an offense. He argues that the affidavit does not establish that

Silvar ever received the proceeds from the buys, does not establish that he was a

“Mister Big” supplier (rather than a mere courier), and does not point to any

illegal drug activity at 713 S. Norwood itself. We disagree.

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 “[P]robable cause to issue a search warrant . . . exists when the supporting

affidavit sets forth sufficient facts that would lead a prudent person to believe that

a search of the described premises would uncover contraband or evidence of a

crime.” United States v. Rowland, 145 F.3d 1194, 1204 (10th Cir. 1998). The

magistrate presented with a warrant application must make a “practical,

common-sense decision based on the totality of the circumstances as set forth in

the affidavit.” Id. (internal quotation marks omitted). We “afford . . . great

deference” to the issuing magistrate’s probable-cause determination unless there

is “no substantial basis for concluding that probable cause existed.” United States

v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000) (internal quotation marks

omitted).

By that standard, the affidavit was sufficient. The informant’s statements,

corroborated by what Leatherman heard in the telephone conversations and

Silvar’s presence at the buys, were sufficient evidence that Silvar was a drug

supplier. And we think it merely common sense that a drug supplier will keep

evidence of his crimes at his home. In United States v. Sparks, 291 F.3d 683,

689–90 (10th Cir. 2002), we said that when police officers have probable cause to

believe that a suspect is involved in drug distribution, there is also probable cause

to believe that additional evidence of drug-trafficking crimes (such as drug

paraphernalia or sales records) will be found in his residence. A leading treatise

notes our decision in Sparks as among those in which courts have not required

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particular facts to support the inference that a drug trafficker keeps his supply at

his residence. See 2 Wayne R. LaFave, Search and Seizure § 3.7(d), at 421–22

n.170 (4th ed. 2004); cf. id. at 421–22 (“[I]t is commonly held that this gap can be

filled merely on the basis of the affiant-officer’s experience that drug dealers

ordinarily keep their supply, records and monetary profits at home.”) (footnote

omitted). Accordingly, the search warrant was supported by probable cause.

Mr. Sanchez relies on United States v. Nolan, 199 F.3d 1180 (10th Cir.

1999), contending that we held the search-warrant affidavit in that case

inadequate “because it made no reference to the defendant conducting any of his

drug activities from the house.” Aplt. Br. at 19. But that is a misreading of our

opinion. True, we raised the question whether probable cause to search the

residence of a person suspected of drug trafficking may rest on “observations of

illegal activity outside of the home . . . even in the absence of an allegation that

any illegal activity occurred in the home itself.” Nolan, 199 F.3d at 1183

(internal quotation marks omitted). We did not, however, answer this question.

Rather, we left the answer for another day, affirming the use of the seized

evidence at trial under the good-faith exception to the exclusionary rule. See id.

at 1184. Sparks, upon which we rely, answered the question three years later.

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II. EXECUTION OF THE WARRANT

A. The Events

Corporal Dale Francetic of the Tulsa Police Department began conducting

surveillance of 713 S. Norwood shortly before 6 p.m. on February 23, 2007.

Initially, no vehicles were present. Within a few minutes, however, Silvar, the

alleged supplier, arrived in the white pickup truck that officers had seen him

driving when they observed the informant’s marijuana purchases. Silvar backed

the truck, whose cargo bed carried some boxes, into the driveway of the

residence. Mr. Sanchez then arrived in a red Chevrolet pickup truck. Officers

had seen this truck outside Silvar’s residence while conducting surveillance on at

least one prior occasion, but had not seen Mr. Sanchez himself. Soon afterwards

a man later identified as David Saldivar arrived in a white Ford Mustang.

Francetic drove by the house. Seeing no one in the front yard or in the vehicles,

he assumed that the men were inside the house.

At about 7 p.m. Leatherman, leading eight other officers, approached the

house on foot to serve the search warrant. (Francetic remained parked a block

away to intercept anyone who might flee the scene.) Silvar, Mr. Sanchez, and

Saldivar were standing in the driveway behind Silvar’s truck, apparently

unloading the boxes. Leatherman announced that the officers were with the Tulsa

Police Department and that they had a search warrant. He ordered the men to get

on the ground. Mr. Sanchez and Saldivar ran. Mr. Sanchez covered only a short

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distance before he was caught, handcuffed, and searched. Officers seized from

his pockets $2,036 in cash, a cell phone, and a set of keys. They later determined

that one of the keys opened the house’s front door and that the cell phone

contained an image of Mr. Sanchez holding a firearm similar to one found in the

house. The search of the house yielded, among other items, about $5,000 in cash,

430 grams of marijuana (some of it packaged for sale), an unloaded .45-caliber

machine-gun pistol, a loaded .38-caliber revolver, boxes of ammunition for both

weapons, digital scales on which marijuana residue was present, and boxes of

plastic baggies. At 8 p.m., after the officers had completed the search,

Mr. Sanchez was formally arrested for possession of marijuana with intent to

distribute, possession of a firearm during the commission of a felony, failure to

have a tax stamp for the marijuana, and resisting arrest.

B. Discussion

Mr. Sanchez’s sole challenge to the execution of the warrant is to the

search of his person when he was apprehended after fleeing. In our view, the

search was valid as incident to an arrest that could be justified for the Oklahoma

offense of obstructing an officer. To reach that conclusion we must examine (1)

the officers’ authority to detain Mr. Sanchez as they approached the house to

execute the warrant; (2) whether Mr. Sanchez’s flight constituted obstructing an

officer, in violation of Oklahoma law; and (3) whether the search of Mr. Sanchez

can be justified as a search incident to arrest even though (a) the formal arrest

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occurred about an hour after the search and (b) Mr. Sanchez was formally arrested

for offenses other than obstructing an officer. We discuss these issues in turn.

1. Authority to Detain Mr. Sanchez

The leading case on the authority of police officers to detain persons while

executing a search warrant is the Supreme Court’s opinion in Michigan v.

Summers, 452 U.S. 692 (1981). In Summers the defendant was descending the

front steps of a house when officers arrived to execute a search warrant. See id.

at 693. The officers detained him during their search. After finding narcotics and

then determining that he owned the house, they arrested him. See id. at 693 n.1.

A search of defendant’s person incident to that arrest yielded heroin, which he

sought to suppress. See id. at 694.

The Supreme Court held that the officers had the authority to detain

Mr. Summers as they searched the house, regardless of the absence of any

specific information about Mr. Summers personally. Several considerations led to

this conclusion. One was the protection afforded by the search warrant itself:

[The warrant] provides an objective justification for the detention. A
judicial officer has determined that police have probable cause to
believe that someone in the home is committing a crime. Thus a
neutral magistrate rather than an officer in the field has made the
critical determination that the police should be given a special
authorization to thrust themselves into the privacy of a home. The
connection of an occupant to that home gives the police officer an
easily identifiable and certain basis for determining that suspicion of
criminal activity justifies a detention of that occupant.

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Id. at 703–04 (footnote omitted). In addition, the detention of an occupant of the

premises that is implicitly authorized by the search warrant, “although admittedly

a significant restraint on his liberty, [is] surely less intrusive than the search

itself.” Id. at 701. Not only would most occupants wish to remain to observe the

search, but the officers are unlikely to exploit the detention to gain information

“because the information the officers seek normally will be obtained through the

search and not through the detention.” Id. And the stigma of the detention is

unlikely to add much to the stigma created by the search itself. See id. at 702.

Finally, the need for detention is compelling:

Most obvious is the legitimate law enforcement interest in preventing
flight in the event that incriminating evidence is found. Less
obvious, but sometimes of greater importance, is the interest in
minimizing the risk of harm to the officers. . . . The risk of harm to
both the police and the occupants is minimized if the officers
routinely exercise unquestioned command of the situation. Finally,
the orderly completion of the search may be facilitated if the
occupants of the premises are present. Their self-interest may induce
them to open locked doors or locked containers to avoid the use of
force that is not only damaging to property but may also delay the
completion of the task at hand.

Id. at 702–03 (citation omitted).

These considerations justify detention as a matter of course. Weighing

them is not to be a case-by-case process. Rather, the rule adopted in Summers

“does not depend upon such an ad hoc determination, because the officer is not

required to evaluate either the quantum of proof justifying detention or the extent

of the intrusion to be imposed by the seizure.” Id. at 705 n.19.

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 The issue arose again in Muehler v. Mena, 544 U.S. 93 (2005), which

elaborated on the Summers doctrine. In Muehler the police obtained a warrant to

search what was believed to be the house of a gang member who had participated

in a recent drive-by shooting. See id. at 95. The warrant authorized officers to

search for deadly weapons and evidence of gang membership, among other items.

See id. at 95–96. When the warrant was executed, Mena, one of the house’s

occupants, was awakened at gunpoint by SWAT-team officers and handcuffed.

See id. at 96. The officers also detained three other persons they encountered in

trailers in the property’s back yard. See id. at 107 (Stevens, J., concurring).

Mena and the other detainees were moved to a converted garage, where they were

held in handcuffs for the duration of the search. See id. at 96 (majority opinion).

Mena sued the officers who oversaw the warrant’s execution under 42 U.S.C.

§ 1983, claiming that she had been “detained for an unreasonable time and in an

unreasonable manner” (that is, in handcuffs), in violation of her Fourth

Amendment rights. Id. at 96 (internal quotation marks omitted).

The Court held that the detentions were reasonable. See id. at 99. The

Court relied on the holding in Summers “that officers executing a search warrant

for contraband have the authority ‘to detain the occupants of the premises while a

proper search is conducted.’” Id. at 98 (quoting Summers, 452 U.S. at 705). It

summarized Summers’s reasoning as follows:

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 Such detentions are appropriate . . . because the character of the
additional intrusion caused by detention is slight and because the
justifications for detention are substantial. . . . [T]he detention of an
occupant is “surely less intrusive than the search itself,” and the
presence of a warrant assures that a neutral magistrate has
determined that probable cause exists to search the home. Against
this incremental intrusion, . . . three legitimate law enforcement
interests . . . provide substantial justification for detaining an
occupant: “preventing flight in the event that incriminating evidence
is found”; “minimizing the risk of harm to the officers”; and
facilitating “the orderly completion of the search,” as detainees’
“self-interest may induce them to open locked doors or locked
containers to avoid the use of force.”

Id. (citations omitted) (quoting Summers, 452 U.S. at 701–03). (We note that the

third justification apparently is not a critical one, because Mena and the other

three detainees were held in the garage during the search and she was never asked

to assist in opening cabinets and dressers that the officers forced open. See id. at

107 n.5 (Stevens, J., concurring)). The Court emphasized that the authority to

detain is not dependent on specific information in the particular case. “An

officer’s authority to detain incident to a search is categorical; it does not depend

on the ‘quantum of proof justifying detention or the extent of the intrusion to be

imposed by the seizure.’” Id. at 98 (majority opinion) (quoting Summers, 452

U.S. at 705 n.19).

Some language in the two opinions could be read to support the view that

officers can detain only residents of the premises to be searched. In particular,

Summers observes that “because the detention in this case was in [Summers’s]

own residence, it could add only minimally to the public stigma associated with

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the search itself.” 452 U.S. at 702. But this relative-stigma calculus could not

have been essential to the holding. To begin with, the Court uses the term

occupant rather than resident to describe those who can be detained. Muehler

states Summers’s holding as authorizing officers “‘to detain the occupants of the

premises.’” Muehler, 544 U.S. at 98 (quoting Summers, 452 U.S. at 701). In

common speech, an occupant could be anyone present on the premises, such as a

visitor or even a salesperson. An “occupant” of an automobile need not be an

owner or renter of the vehicle. See Oxford English Dictionary 681 (2d ed. 1989)

(“Occupant, n.1-a. [a] person . . . who occupies, resides in, or is at the time in (a

place); . . . . (emphasis added)). More importantly, the Court does not explain

how officers are to determine whether a person on the premises is a resident.

(Could the officers in this case have anticipated that Mr. Sanchez would be

carrying a key to the front door?) Surely the officers are not bound to credit the

person’s representations on the matter. And the Court strongly indicates that

specific facts implicating the occupant are not necessary; the authority to detain

“does not depend on the ‘quantum of proof justifying the detention.’” Muehler,

544 U.S. at 98 (quoting Summers, 452 U.S. at 705 n.19). We therefore conclude

that the authority to detain relates to all persons present on the premises. See

United States v. Pace, 898 F.2d 1218, 1238–39 (7th Cir. 1990) (law-enforcement

interests set out in Summers justified detention of guests present in condominium

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when officers executed search warrant, despite the fact that detainees were not

residents of the condominium).

Thus, Summers and Muehler convince us that the officers executing the

search warrant had the authority to detain Mr. Sanchez. He argues that his

situation is different from those in Summers and Muehler because there was no

direct evidence that he had been in the home to be searched. But that distinction,

in our view, is not compelling. As in the Supreme Court cases, the principal

protection afforded Mr. Sanchez is that the warrant was supported by a neutral

magistrate’s determination of probable cause. Also, the officers had no more

cause than in those cases to extend or exploit the detention. And the requisite

justifications supporting detention were present here: Detention was necessary to

prevent flight and minimize danger. The occasion called for the “routine[]

exercise [of] unquestioned command of the situation.” Summers, 452 U.S. at 703.

Although Mr. Sanchez may not have been inside the home, he was on the

premises to be searched (which included the home’s curtilage). He was clearly

not just a passerby; he and Saldivar were with Silvar, the home’s owner, by

Silvar’s truck in the home’s driveway, apparently unloading boxes. In the

Summers/Muehler context we see no principled reason to distinguish a visitor in

the home from one engaged with the owner in the area immediately surrounding

the home. Other circuits have likewise permitted the detention of a person whom

officers had not seen enter or leave the home where a search warrant was being

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executed, but whose presence at the scene raised a concern about interference

with the search. See, e.g., United States v. Jennings, 544 F.3d 815, 818–19 (7th

Cir. 2008) (upholding under Summers the detention of defendant who drove up to

building to be searched and parked within SWAT team’s security perimeter

moments before search began, because officers were “reasonably concerned for

their own and for [defendant]’s safety, as well as for any activity that might

compromise the search,” even though defendant “never stepped onto the property

being searched”); United States v. Bohannon, 225 F.3d 615, 616–17 (6th Cir.

2000) (detention of nonresident who arrived at trailer as officers were wrapping

up search was lawful under Summers, even though nonresident was detained

outside trailer itself; Summers’s officer-safety rationale applies when any person

seeks entry to a place being searched); Baker v. Monroe Twp., 50 F.3d 1186,

1191–92 (3d Cir. 1995) (relatives of resident of apartment searched in DEA raid

were lawfully detained immediately outside the apartment as they arrived for

dinner).

Finally, because officers had the right to detain Mr. Sanchez during their

search, they had the right to order him to get down. Such an order is a reasonable

means of effecting Summers’s aims of preventing flight and minimizing the risk

of harm by the “officers routinely exercis[ing] unquestioned command of the

situation.” 452 U.S. at 703; see Burchett v. Kiefer, 310 F.3d 937, 943–44 (6th

Cir. 2002) (person who approached—but did not set foot on—premises being

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searched was properly ordered to get on the ground, and officers had right to

apprehend and detain him when he fled rather than comply with their order).

2. Mr. Sanchez’s Flight as Obstruction of an Officer

When officers ordered Mr. Sanchez to get down, he fled. We now consider

whether his flight violated Oklahoma’s statute prohibiting obstruction of an

officer, thereby providing grounds for an arrest and, more importantly, a search

incident to arrest.

Okla. Stat. Ann. tit. 21, § 540 states that “[e]very person who willfully

delays or obstructs any public officer in the discharge or attempt to discharge any

duty of his office, is guilty of a misdemeanor.” The Oklahoma courts have

interpreted the statute in a common-sense manner. For example, in Trent v. State,

777 P.2d 401 (Okla. Crim. App. 1989), the court considered the conduct of a

passenger after a traffic stop for driving under the influence. The passenger

refused to leave the scene and engaged in “loud and angry” verbal harassment of

the officer. Id. at 402–03. The court held that this conduct violated the statute

because the passenger’s actions prevented the officer from removing the driver’s

vehicle from the road and timely testing the driver’s blood-alcohol level. See id.

at 403. And in Marsh v. State, 761 P.2d 915, 916 (Okla. Crim. App. 1988), the

court held that a false statement to an officer had impeded the officer’s

investigation of a child’s death and thus constituted obstruction.

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 Mr. Sanchez’s flight unquestionably impeded the officers executing the

search warrant. Rather than conducting the search, they needed to chase and

apprehend him. Various courts, interpreting statutes similar to Okla. Stat. Ann.

tit. 21, § 540, have held that flight can constitute obstruction of an officer.

“[F]light, or attempted flight, after a command to halt constitutes obstruction of

an officer.” In re E.G., 648 S.E.2d 699, 701 (Ga. Ct. App. 2007) (internal

quotation marks omitted); see United States v. Gonzalez, 71 F.3d 819, 826–27

(11th Cir. 1996) (defendant’s flight from agents gave them probable cause to

arrest him for violating 18 U.S.C. § 111(a)(1), which prohibits “forcibly

assault[ing], resist[ing], oppos[ing], imped[ing], intimidat[ing], or interfer[ing]

with” any federal officer); People v. Allen, 167 Cal. Rptr. 502, 505 (Cal. Ct. App.

1980) (officer had probable cause to arrest defendant for obstruction because

defendant, knowing that the officer wanted to talk with him, ran and attempted to

hide). Mr. Sanchez suggests that the officers should simply have let him go and

proceeded to execute the search warrant. But we have already noted the

compelling law-enforcement and safety considerations that justify detention in

these circumstances.

Mr. Sanchez argues that his flight did not violate Oklahoma law because

the statute requires “a belligerent act directed at an officer individually.” Reply

Br. at 11. He relies on language in Knoff v. State, 192 P. 596 (Okla. Crim. App.

1920), that obstructing an officer “does not mean to oppose or impede the process

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with which the officer is [concerned], or to defeat its execution, but [rather] that

the officer himself shall be obstructed.” Id. at 597. The holding in Knoff,

however, is unremarkable. The defendant was charged with obstructing a

constable “from levying on a certain amount of cotton,” id. at 596 (internal

quotation marks omitted), and the court reversed the conviction because the

constable testified that “he had accomplished the purpose of levying” before the

defendant engaged in the allegedly obstructing conduct, id. at 597. In any event,

to the extent that language in Knoff could be read to support a requirement that

belligerence or the like is required for obstruction, that requirement is not now

good law in Oklahoma. Knoff’s language relied on Ratcliff v. State, 158 P. 293

(Okla. Crim. App. 1916) (no violation of the statute because defendant did not

know that the cow he retrieved had been taken by an officer through execution);

and Trent explicitly overruled Ratcliff insofar as it indicated that obstruction

requires the use of physical force, Trent, 777 P.2d at 402. The view of

obstruction taken in Trent and Marsh clearly encompasses Mr. Sanchez’s flight.

3. Search Incident to Arrest

a. Timing of Arrest

The government contends that the search of Mr. Sanchez was a lawful

search incident to arrest. There is no dispute that Mr. Sanchez was arrested, and

we have already held that there was probable cause to arrest him before he was

searched. The difficulty is that the Supreme Court has said that a search incident

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to arrest must be “substantially contemporaneous” with the arrest, Shipley v.

California, 395 U.S. 818, 819 (1969) (per curiam) (internal quotation marks

omitted), and the magistrate judge, whose findings were adopted by the district

court, assumed that Mr. Sanchez had been searched immediately upon being

apprehended after fleeing, which he estimated to be about an hour before the

formal arrest.

The government argues that the search and arrest were “substantially

contemporaneous” despite the one-hour gap. It notes our statement in United

States v. Torres-Castro, 470 F.3d 992 (10th Cir. 2006), that “courts have found

that a search may be incident to an arrest in cases where the search and arrest

were separated by times ranging from five to sixty minutes.” Id. at 998. In the

two cases that we cited in support of that statement, United States v. McLaughlin,

170 F.3d 889 (9th Cir. 1999), and United States v. Hrasky, 453 F.3d 1099 (8th

Cir. 2006), the search was conducted after the arrest; but a search incident to

arrest can also precede the arrest if probable cause for the arrest preceded the

search (rather than being justified by the fruits of the search). See Rawlings v.

Kentucky, 448 U.S. 98, 111 (1980).

An hour would seem to be at the outer limits of “substantially

contemporaneous,” if not beyond. In the context of this case, however, the

government’s argument is an attractive one. The hour delay resulted from the

officers’ pursuing their primary mission—executing the search warrant. To delay

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the formal announcement of an arrest while that effort is underway strikes us as

eminently reasonable: the sooner the search is completed, the sooner the

intrusion from the search will end; and the formality of the arrest accomplishes

little when the person to be arrested is already being detained.

Nevertheless, we do not rely on the contention that two events an hour

apart may be “substantially contemporaneous.” Rather, we note that for search-

incident-to-arrest purposes we may deem the arrest to have occurred before the

formal announcement to a suspect that he is under arrest. To be sure, it appears

that there can be no search incident to arrest unless the suspect is at some point

formally placed under arrest. Cf. Knowles v. Iowa, 525 U.S. 113 (1998) (there is

no right to search incident to a traffic citation, even if officers could have

lawfully arrested the defendant rather than issuing a citation); United States v.

Ward, 682 F.2d 876, 880 (10th Cir. 1982) (search of defendant not justified as

incident to arrest; defendant was not arrested, even though there was probable

cause to believe that he was committing an offense). But the arrest itself, for

constitutional purposes, may be said to have occurred well before that formality.

Particularly instructive in this regard is Sibron v. New York, 392 U.S. 40

(1968). The Supreme Court upheld the search of one Peters as incident to an

arrest. It summarized the relevant facts as follows:

Officer Samuel Lasky of the New York City Police Department . . .
was at home in his apartment . . . at about 1 p.m. on July 10, 1964.
He . . . heard a noise at his door. . . . [W]hen he . . . looked through

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 the peephole into the hall, Officer Lasky saw “two men tiptoeing out
of the alcove toward the stairway.”. . . Believing that he had
happened upon the two men in the course of an attempted burglary,
Officer Lasky opened his door, entered the hallway and slammed the
door loudly behind him. This precipitated a flight down the stairs on
the part of the two men, and Officer Lasky gave chase. . . . [H]e
apprehended Peters between the fourth and fifth floors. . . . Officer
Lasky patted Peters down for weapons, and discovered a hard object
in his pocket. He stated at the hearing that the object did not feel
like a gun, but that it might have been a knife. He removed the
object from Peters’ pocket. It was an opaque plastic envelope,
containing burglar’s tools.

Id. at 48–49 (footnotes omitted). The Court held that the arrest occurred when the

officer seized Peters:

[I]t is clear that the arrest had, for purposes of constitutional
justification, already taken place before the search commenced.
When the policeman grabbed Peters by the collar, he abruptly
“seized” him and curtailed his freedom of movement on the basis of
probable cause to believe that he was engaged in criminal activity.
At that point he had the authority to search Peters, and the incident
search was obviously justified by the need to seize weapons and
other things which might be used to assault an officer or effect an
escape, as well as by the need to prevent the destruction of evidence
of the crime.

Id. at 67 (citation and internal quotation marks omitted). The Court was not

concerned with how long after that seizure it was before the officers formally

informed Peters of his arrest. Cf. id. at 77 (Harlan, J., concurring) (in this

context, “the prosecution must be able to date the arrest as early as it chooses

following the development of probable cause.”); 3 Wayne R. LaFave, Search and

Seizure § 5.1(a), at 12–13 (same). We can infer that in the very similar situation

in this case, the arrest of Mr. Sanchez was initiated (for purposes of the search-

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incident-to-arrest doctrine) when the officers apprehended him after his flight.

The search of Mr. Sanchez was promptly after his arrest, and can readily be

characterized as “substantially contemporaneous.” Accordingly, the search of

Mr. Sanchez was a lawful search incident to arrest.

b. Stated Grounds for Arrest

It is irrelevant that Mr. Sanchez was arrested for, among other things,

resisting arrest rather than obstruction of an officer. “[T]he legitimate basis for

an arrest is purely an objective standard and can be for any crime, not merely that

for which the defendant is ultimately charged.” Torres-Castro, 470 F.3d at 998;

see also Devenpeck v. Alford, 543 U.S. 146, 154–55 (2004) (“Those are lawfully

arrested whom the facts known to the arresting officers give probable cause to

arrest.”). Indeed, “[w]hether or not the officer intended to actually arrest the

defendant at the time of the search [incident to that arrest] is immaterial” to our

inquiry. United States v. Anchondo, 156 F.3d 1043, 1045 (10th Cir. 1998). Thus,

it does not matter that the stated grounds for Mr. Sanchez’s formal arrest did not

include obstruction of an officer. See United States v. Lugo, 170 F.3d 996, 1000,

1003 (10th Cir. 1999) (probable cause to arrest defendant, and thus authority to

search his vehicle’s passenger compartment incident to arrest, arose from

speeding violation and failure to produce a driver’s license, but defendant was

ultimately arrested only for possession of drugs found during search).

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III. CONDUCT OF SUPPRESSION HEARING

Finally, Mr. Sanchez challenges the district court’s procedural rulings at

the pretrial hearing on his motion to suppress. The evidence at the suppression

hearing consisted of the search warrant, Officer Leatherman’s report, and

Leatherman’s testimony.

Mr. Sanchez contends that the district court’s ruling on his motion to

suppress “relied too much on the hearsay of Corporal Francetic and others

contained in the police report.” Aplt. Br. at 17. But, as Mr. Sanchez

acknowledges, the law is clear that hearsay evidence is admissible at suppression

hearings. See United States v. Miramonted, 365 F.3d 902, 904 (10th Cir. 2004).

Mr. Sanchez argues that the report was unreliable because Leatherman’s

suppression-hearing testimony contradicted the report’s contents “in several

critical matters.” Aplt. Br. at 15. We disagree. The report’s statement that

Mr. Sanchez, Silvar, and Saldivar were carrying boxes into 713 S. Norwood when

the police arrived is not inconsistent with Leatherman’s testimony that he never

saw Mr. Sanchez enter the house, because the report did not purport to rely only

on observations by Leatherman, as opposed to other officers. And the report’s

listing of the four offenses for which Mr. Sanchez was arrested is not contradicted

by Leatherman’s testimony that Mr. Sanchez was arrested for marijuana and

weapons offenses, because Leatherman’s testimony did not purport to give an

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exhaustive list of the bases for Mr. Sanchez’s arrest. The district court could

properly have found that the report was reliable.

We likewise reject Mr. Sanchez’s argument that the government’s use of

Leatherman’s report was improper because Mr. Sanchez “had subpoenaed the

actual witnesses and evidence for the hearing and not had his subpoena honored.”

Aplt. Br. at 13–14. Our review of the record indicates that his subpoena was

honored and that Mr. Sanchez was not denied the opportunity to question any

witnesses or to introduce any evidence.

IV. CONCLUSION

We AFFIRM the judgment of the district court.

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