United States v. Jackson , 587 F. App'x 483 ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 16, 2014
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 13-7062
v. (D.C. No. 6:12-CR-00096-JHP-1)
(E.D. Okla.)
SAMUEL ALLEN JACKSON,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before GORSUCH, SEYMOUR and PHILLIPS, Circuit Judges
Samuel Allen Jackson conditionally pled guilty to possessing with intent to
distribute fifty grams or more of methamphetamine, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(B). Mr. Jackson reserved his right to appeal the district
court’s denial of his motion to suppress evidence. We affirm.
On August 14, 2012, Agents Derek Brown and Rodney Derryberry of the
District 16 District Attorney’s Drug Task Force were driving near the Choctaw
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. It may be cited
for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
Travel Plaza, a casino in Poteau, Oklahoma, when they observed a blue Chevrolet
pickup truck they suspected belonged to Mr. Jackson. 1 After running the license
plate, they confirmed he owned the vehicle. Agent Brown had previously
received several reports indicating Mr. Jackson was distributing narcotics in the
Poteau area and that narcotics were regularly distributed at the casino. The
agents therefore set up surveillance in the parking lot near Mr. Jackson’s vehicle,
where they had an unobstructed view of both his truck and the casino.
The agents observed Mr. Jackson exit the casino. Agent Derryberry, who
had previous dealings with Mr. Jackson, confirmed his identity. Mr. Jackson
pulled his vehicle to the side of the casino, and a man approached it a short time
later. The man, later identified as Lewis Ping, appeared nervous and walked to
and from the casino to Mr. Jackson’s vehicle twice while on his cell phone before
making contact with Mr. Jackson. The agents then observed Mr. Ping exchange
money with Mr. Jackson for an item passed by Mr. Jackson through the driver’s
side window, after which Mr. Ping walked away. Based on their training and
experience, the agents believed they had witnessed a hand-to-hand drug
transaction.
Agent Brown approached Mr. Ping, taking him to the ground.
Simultaneously, Agent Derryberry directed Mr. Jackson to exit his vehicle, at
1
These facts are taken from the findings made by the magistrate judge after
an evidentiary hearing, which the district court adopted. They are based primarily
on Agent Brown’s testimony at the hearing.
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which time he observed in plain view, in a compartment on the driver’s side door,
several baseball or golf ball size bags of what both agents believed to be “crystal
meth.” 2 Rec., vol. II at 19-21. Also, Mr. Ping admitted to Agent Brown that he
had purchased methamphetamine and swallowed it.
Mr. Jackson filed a motion to suppress the methamphetamine, contending
the agents’ actions amounted to an illegal investigative detention. The magistrate
judge who presided over the suppression hearing issued a Report and
Recommendation, finding “[t]he officers’ suspicion that [Mr.] Jackson was
engaging in criminal activity was more than reasonable under the circumstances”
and concluding the evidence should not be suppressed. Id. at 28. The district
court adopted the Report and Recommendation. Mr. Jackson then pled guilty
pursuant to a written plea agreement in which he waived his appellate and post-
conviction rights but reserved his right to appeal the district court’s denial of his
motion to suppress.
In reviewing the 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, but we 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.” United States v. Ruiz, 664 F.3d 833, 838 (10th Cir. 2012).
The Fourth Amendment protects individuals from “unreasonable searches
2
Lab analysis subsequently confirmed their belief .
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and seizures.” U.S. Const. amend. IV. “An investigative, non-consensual
detention constitutes a seizure under the Fourth Amendment.” United States v.
Briggs, 720 F.3d 1281, 1284 (10th Cir. 2013). “[P]olice can stop and briefly
detain a person for investigative purposes if the officer has a reasonable suspicion
supported by articulable facts that criminal activity ‘may be afoot,’ even if the
officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989)
(quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)). We consider the “totality of the
circumstances” when “reviewing an investigatory stop for reasonable suspicion”
to determine “whether the detaining officer ha[d] a particularized and objective
basis for suspecting legal wrongdoing.” United States v. Neff, 681 F.3d 1134,
1138 (10th Cir. 2012) (internal quotation marks and citation omitted). Although
this requires the officer’s detention to be based on “something more than an
inchoate and unparticularized suspicion or hunch . . . the level of suspicion
required for a Terry stop is obviously less demanding than that for probable
cause.” Sokolow, 490 U.S. at 7 (same).
On appeal, Mr. Jackson argues the officers did not have reasonable
suspicion to detain him and therefore the seizure of methamphetamine from his
car and his arrest were unreasonable under the Fourth Amendment. He relies
primarily on Terry and United States v. Davis, 94 F.3d 1465 (10th Cir. 1996),
contending that his presence in an area known for criminal activity and the hand-
to-hand exchange of money for something with Mr. Ping did not rise to the level
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of reasonable suspicion required for a lawful Terry stop. We disagree.
In Davis, 94 F.3d at 1468, the government relied on the following four facts
for detaining Mr. Davis: he exited from a car parked “outside a known criminal
establishment”; he made eye contact with officers, looked away, and then refused
to stop when directed; he had his hands in his pocket; and the officers knew he
had a criminal record. We held that the officers’ reasons for stopping the
defendant, standing alone or taken together, did not amount to “the necessary
‘reasonable, articulable suspicion’ to justify their detention of Davis.” Id. at
1470.
Here, however, the agents witnessed suspicious conduct, including what
appeared to be a hand-to-hand drug transaction in an area known for drug
trafficking by a person they had reason to believe was a drug dealer. See United
States v. Hishaw, 235 F.3d 565, 570 (10th Cir. 2000) (officer observed defendant
making hand-to-hand contact outside apartment being used to distribute drugs).
Viewing the totality of the circumstances, we agree with the magistrate judge that
there was reasonable suspicion to believe Mr. Jackson was engaged in criminal
activity. Accordingly, we AFFIRM.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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