United States v. Sumrall , 115 F. App'x 22 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 27 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
No. 04-5005
v.
(D.C. No. 03-CR-111-K)
(Northern District of Oklahoma)
JAMES ELI SUMRALL,
Defendant-Appellee.
ORDER AND JUDGMENT*
Before TACHA, Chief Judge, McWILLIAMS, Senior Circuit Judge, and PORFILIO,
Senior Circuit Judge.**
On August 13, 2003, James Eli Sumrall (“defendant”) was charged in a
two-count indictment filed in the United States District Court for the Northern District of
Oklahoma as follows: In Count 1, defendant was charged with knowingly possessing, on
February 18, 2003, an Armsco, .22 caliber revolver and seven live rounds of Winchester
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
**
Neither party requested oral argument. After examining the briefs and the
appellate record, this three-judge panel has determined unanimously that oral argument
would not be of material assistance in the determination of this appeal. See Fed. R. App.
P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral
argument.
Super X .22 caliber ammunition, and that, as of that date, he had been previously
convicted of two crimes punishable by imprisonment for a term exceeding one year, those
crimes were then identified in the indictment by date and offense, all in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). In the second count of the indictment, defendant was
charged with possessing on February 18, 2003, the firearm and ammunition identified in
the first count at a time when he was an unlawful user of methamphetamine and
marijuana in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2).
On October 15, 2003, a superseding indictment containing five counts was filed
against the defendant in the United States District Court for the Northern District of
Oklahoma. Counts 1 and 2 in the superseding indictment were the same as the two counts
charged in the original indictment. Count 3 of the superseding indictment charged
defendant with a violation of 18 U.S.C. §§ 922(g)(8) and 924(a)(2), occurring on
February 18, 2003. Count 3 was based on defendant’s alleged possession of the loaded
Armsco, .22 caliber revolver mentioned in Counts 1 and 2, while he was subject to a
restraining order. We are not concerned in this appeal with any of the first three counts in
the superseding indictment. Counts 4 and 5 of the superseding indictment are the only
two counts that we are concerned with in this appeal.
Count 4 charged the defendant with possessing, on or about October 3, 2003, a
Ruger, .22 caliber revolver, five live rounds of Winchester Super X .22 caliber
ammunition and one live round of Federal .22 caliber ammunition after having been
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previously convicted of the two offenses set forth in Count 1 of the original indictment in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Count 5 charged defendant with
possessing on October 3, 2003, the firearm and ammunition identified in Count 4 at a
time when he was an unlawful user of methamphetamine and marijuana, in violation of
18 U.S.C. §§ 922(g)(3) and 924(a)(2).
The background facts out of which this case arises are not really in any particular
dispute. A deputy of the Tulsa County sheriff’s office was on patrol on October 3, 2003,
when he pulled up at the intersection of South 65th West Avenue and Southwest
Boulevard and noticed that a GMC van in front of him had “expired tags.” Preparatory to
making a “stop,” the officer activated his overhead lights. The driver of the van did not
immediately stop. Rather, he continued driving and waived his arm out the window,
apparently acknowledging that he knew the officer was following him. There was a
rather deep ditch on the right hand side of the road. Intermittently, the officer also
activated his siren. The driver of the van drove on some five or six blocks, with the
officer still following him, where he made a right hand turn onto private property and
stopped his van in the backyard of a residence. The property the driver turned onto was a
residential/business yard, which, it developed later, he rented. According to the officer,
the driver of the van immediately got out of the van and locked the driver’s side door.
The driver of the van then walked to the back bumper of the van and was met by the
officer. The driver of the van was the defendant.
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The defendant first asked the officer why he had been stopped. The officer stated
that he told the defendant that his van had expired tags. The driver, according to the
officer, appeared “very nervous”, and seemed to be attempting to go around to the
passenger’s side of the van. In any event, the officer immediately “cuffed” the defendant,
hands behind his back, for “officer safety.” After the defendant was handcuffed, but
before he was “arrested,” the officer ran a records check, and ascertained that the
defendant’s driver’s license had been suspended and that there were several outstanding
warrants for his arrest, one of which was based on the indictment returned on August 13,
2003, and mentioned in paragraph one. At this point, the officer “arrested” the defendant
and a body search disclosed a marijuana pipe. Defendant, still handcuffed behind his
back, was then placed in the back seat of the officer’s patrol car, which was stopped about
two feet from the defendant’s van. A backup officer arrived during the stop, but left on
another call believing that the defendant was “secured.” The defendant had already
surrendered his car keys to the officer and told the officer which key to use to open the
car door. The officer opened the car door and proceeded with a search of the interior of
the van incident to a possible impoundment of the van. He found a fully loaded Ruger,
.22 caliber revolver, close to the passenger seat beneath some trash and papers. Tubing
and funnels used for manufacturing methamphetamine were also found. The revolver
found in the van was the basis for both Counts 4 and 5. The van and the defendant were
then taken to police headquarters.
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On December 4, 2003, the defendant apparently filed a motion to dismiss Counts 4
and 5 as being in violation of the double jeopardy clause of the Fifth Amendment. He
also apparently filed a motion to sever Counts 4 and 5 for trial purposes. Neither of those
motions is in the record before us. On that same date, the defendant also filed a “motion
to quash and suppress . . . evidence illegally obtained and which is the basis for the
government’s prosecution of the defendant in Counts Four and Five of the indictment.”
That motion is in the present record. The defendant claimed that the search of his van on
October 2, 2003, by the Tulsa County Sheriff’s Office was in violation of the Fourth
Amendment. In support of that argument, counsel argues that the search was not justified
either as an “inventory search” or as a “search incident to an arrest.”
On December 18, 2003, the government filed a consolidated response to all three
of the defendant’s pre-trial motions. As to defendant’s motion to suppress the use at trial
of the loaded .22 caliber Ruger found in a search of his van, the government argued that
such did not violate the Fourth Amendment and urged three bases therefor: (1) the search
was incident to a lawful arrest; (2) exigent circumstances justified the search, and (3) the
firearm was discovered during an inventory search. At the hearing on the motions, held
January 5, 2004, the government called the deputy who arrested the defendant. He
testified in detail. The defendant did not testify, and his counsel called one witness, a
Michael Jones, who was the owner of the property which had been rented by the
defendant and the place where the defendant ultimately stopped his van.
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On January 12, 2004, the district court entered a detailed order in which it granted
defendant’s motion to quash and suppress and held that, in view of his ruling on the
motion to suppress, the motions to dismiss Counts 4 and 5, or sever them for trial, were
rendered moot. In granting defendant’s motion to suppress, the district court concluded
that the search was neither a valid inventory search in connection with a lawful
impoundment nor was the search incident to a lawful arrest. On appeal, the government
does not contend that the district court erred in determining that the search was not a valid
inventory search. It does contend, however, that the district court erred in holding that the
search was not incident to a lawful arrest. The government appeals the district court’s
suppression order under 18 U.S.C. § 3731. On appeal, the government raises only one
issue, which it frames as follows:
“Whether the district court properly suppressed the firearm
seized from defendant’s van during a search incident to his
arrest.”
In our review of a district court’s grant, or denial, of a motion to suppress
evidence, we accept the district court’s finding of facts, unless they are clearly erroneous.
United States v. Zubia-Melendez, 263 F.3d 1155, 1159 (10th Cir. 2001). However, the
final determination of whether a search and seizure is reasonable under the Fourth
Amendment is renewed de novo. Id. at 1159-60.
The Fourth Amendment provides that “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures,
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shall not be violated . . . .” There are exceptions to that prohibition. Searches and
seizures pursuant to a search warrant based on probable cause are not “unreasonable,” and
are, of course, recognized by the language of the Fourth Amendment itself. And there are
other exceptions, such as an inventory search, a search based on “officer safety,” and a
“search incident to a lawful arrest.” We are only concerned in this case with whether the
district court correctly held that the search here involved was not incident to a lawful
arrest. We disagree with the district court and hold that the search was incident to a lawful
arrest.
The cases bearing on the question as to just what constitutes a search incident to a
lawful arrest are legion. In our discussion, we shall begin with New York v. Belton, 453
U.S. 454 (1981). In Belton, the Supreme Court framed the question there at issue to be as
follows:
“When the occupant of an automobile is subjected to a lawful
custodial arrest, does the constitutionally permissible scope of
a search incident to his arrest include the passenger
compartment of the automobile in which he was riding?”
Id. at 455.
The court answered its question in the affirmative. In Belton, there were four
persons in the car and Belton was apparently a passenger in the car, and not the driver. In
our case, the defendant was the driver of the car and was the only occupant therein. In
Belton, the court stated that “a lawful custodial arrest creates a situation which justifies
the contemporaneous search without a warrant of the person arrested and of the
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immediately surrounding area . . . because of the need ‘to remove any weapons that [the
arrestee] might seek to use in order to resist arrest or effect his escape’ and the need to
prevent the concealment or destruction of evidence.” Id. at 457 (citing Chimel v.
California, 395 U.S. 752 (1969)). In Belton, the Court also cited with approval language
from United States v. Robinson, 414 U.S. 218 to the effect that “[i]n the case of a lawful
custodial arrest a full search of the person is not only an exception to the warrant
requirement of the Fourth Amendment, but also is a ‘reasonable’ search under that
Amendment.” Belton, 453 U.S. at 459. The ultimate holding in Belton was that “when a
policeman has made a lawful custodial arrest of the occupant of an automobile, he may,
as a contemporaneous incident of the arrest, search the passenger compartment of that
automobile.” Id. at 460.
In holding that the search in the instant case was not incident to a lawful arrest, the
district court cited, inter alia, United States v. Lugo, 978 F.2d 631, 634-5 (10th Cir. 1992)
and United States v. Edwards, 242 F.3d 928, 937-8 (10th Cir. 2001). In Lugo, we
reversed the defendant’s conviction of possession of cocaine with an intent to distribute
and held that the warrantless search of the defendant’s van was not justified since the
search was conducted at a time when the defendant had been arrested and taken from the
scene and was, in fact, miles away from the scene of his arrest in the back seat of a patrol
car that was transporting him to a nearby county jail. In so doing, we stated that a
“warrantless search incident to an arrest is not valid if it is ‘remote in time or place from
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the arrest’,” citing Chimel v. California, 395 U.S. 752, 784 (1969) In Edwards, we also
reversed the district court and held that the search of an automobile was not a valid search
incident to an arrest when the defendant was “handcuffed, informed . . . that he was under
arrest, and placed in the backseat of a patrol car,” at the time of the actual search.
We believe a recent case has bearing on the instant one. See Thornton v. United
States, 124 S.Ct. 2127 (2004), decided May 24, 2004. In Thornton, the Supreme Court
stated that Belton had held that when a police officer has made a lawful custodial arrest of
an occupant of an automobile, the Fourth Amendment allowed the officer to search the
passenger compartment of that vehicle as a contemporaneous incident of arrest. In
Thornton, the Supreme Court extended the rule of Belton to cover the situation “where an
officer does not make contact until the person arrested has left the vehicle.” In our case,
the officer did not make contact with the defendant until after he had exited the van and
locked the door and was standing by the side of his van. In Thornton, as in the instant
case, the defendant was handcuffed, arrested, and placed in the back seat of the patrol car
at the scene of the arrest at the time of the actual search. Notwithstanding that fact, the
Supreme Court in Thornton held that the search of the automobile was an incident to a
lawful custodial arrest.1 We recognize that in Thornton, the fact that the defendant at the
time of the search was handcuffed and seated in the rear seat of the patrol car at the scene
1
Thornton was decided subsequent to the date of the district court’s order in the
instant case. However, Thornton was addressed by the parties in their briefs filed in this
case.
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of the arrest apparently was not relied on by the defendant as a ground for holding that the
search was not incident to a lawful arrest. The issue resolved in Thornton was that the
rule of Belton, i.e., the lawful arrest of an occupant of an automobile made the ensuing
search of the vehicle a search incident to a lawful arrest, was extended to include, not just
an “occupant,” but would also include a “recent occupant.” Such being the case, we
decline to hold that the search in the instant case was invalid because the defendant was
handcuffed and seated in the patrol car, the Supreme Court in Thornton having validated
a search as being incident to an arrest where the defendant was also handcuffed and
seated in the patrol car, just as the defendant was in the present case.
In sum, the defendant was lawfully arrested and under the facts and circumstances
surrounding that arrest, the ensuing search of the front area of the van was incident to that
arrest. The facts and circumstances which we rely on are summarized as follows: (1) The
defendant was driving a van having “expired tags,” and the officer followed the van,
intending to make a “stop”; (2) the officer activated his overhead lights and intermittently
turned on his siren; (3) the defendant did not stop and drove some five or six blocks
where he turned into the backyard of a residence, which he rented; (4) the officer in his
patrol car followed the defendant and stopped his patrol car about two feet behind the
van; (5) the defendant quickly exited his van and locked the front door; (6) when
confronted by the officer, the defendant seemed nervous and fidgety, and the officer
handcuffed the defendant for his own safety; (7) the officer made a record check and
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determined that there were outstanding warrants for defendant’s arrest; (8) the officer
arrested defendant and placed him in the rear seat of the patrol car, which was still two
feet behind the van; and (9) with a key given him by the defendant, the officer opened the
door of the van and found, under papers and trash, a fully loaded Ruger revolver near the
passenger seat. Such, to us, is a “search incident to a lawful arrest.” Certainly, there was
“temporal and spatial proximity.” The fact that at the very moment of the actual search
the defendant was handcuffed and in the back seat of the patrol car does not dictate a
contrary conclusion. Persons have been known to “slip” handcuffs, and, in this
connection, the officer testified he “kept an eye” on the defendant even though he had
been cuffed and placed in the rear seat of his patrol car. And, as already stated, in
Thornton, the Supreme Court validated a search of an automobile as being an incident of
a lawful arrest where the defendant was in the precise situation as the defendant in the
present case.
Judgment reversed.
Entered for the Court,
Robert H. McWilliams
Senior Circuit Judge
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