United States v. Parker ( 2022 )

Appellate Case: 21-7035 Document: 010110673901 Date Filed: 04/21/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 21, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-7035
(D.C. No. 6:19-CR-00095-RAW-1)
CHARLES OWENS PARKER, JR., (E.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, HOLMES and ROSSMAN, Circuit Judges.
_________________________________
Charles Owens Parker, Jr., appeals the district court’s denial of his motion to
suppress evidence obtained during a traffic stop. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
I.
In 2019, Mr. Parker was charged with being a felon in possession of a firearm
and ammunition in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). He filed a
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
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motion to suppress the evidence obtained during a traffic stop under the theory that
two firearms recovered from the vehicle should have been suppressed as the fruits of
an unconstitutional stop under the Fourth Amendment. Following a hearing, the
magistrate judge issued findings and a recommendation to deny Mr. Parker’s motion.
The district court overruled Mr. Parker’s objections and adopted the judge’s findings
and recommendation. Mr. Parker then entered into a conditional plea agreement that
preserved his right to appeal the denial of his motion to suppress. He was sentenced
to 70 months’ imprisonment. Exercising his reserved right, Mr. Parker now appeals.
II.
At the suppression hearing, Okmulgee County Sheriff Deputy Elijah Presley
testified that at approximately 3:30 a.m. on August 29, 2019, he was driving alone in
his patrol car when he observed a GMC Yukon pulling a trailer. He observed that the
taillight on the right side of the trailer was not functioning and decided to investigate.
To that end, he activated his emergency lights and followed the vehicle when it
pulled off the road and into a hotel parking lot.
Based on his experience and training, which included more than 5,000 traffic
stops, 500 of which involved defective taillights, Deputy Presley decided to first
approach the passenger side of the vehicle. The passenger, who was later identified
as Mr. Parker’s fiancée, Patricia McGraw, had the window rolled down. As soon as
Deputy Presley reached the open window, he saw the handle of a firearm wrapped in
black tape and tucked between the driver’s seat and the center console. Although
Deputy Presley admitted that it was dark outside and the interior lights in the vehicle
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were not on, he testified that he could make out what appeared to be a chopped down
stock, which had a circular nub or handle. He told the occupants to keep their hands
where he could see them and crossed in front of the vehicle to the driver’s door.
As soon as Deputy Presley reached the driver’s door, he told the driver, who
was later identified as Mr. Parker, to step out of the vehicle. As he was exiting the
vehicle, Mr. Parker “started pleading with [Deputy Presley], ‘Come on, man. Please
don’t do this to me, please.’” R., Vol. 1 at 78. Curious as why Mr. Parker was so
upset, Deputy Presley asked if he was worried about the firearm because he was
“a convicted felon[,]” and Mr. Parker admitted “that he was, in fact, a convicted
felon.” Id. at 79. Deputy Presley then handcuffed Mr. Parker, removed the firearm,
and walked Mr. Parker to his patrol car.
Deputy Presley gave Mr. Parker a Miranda warning1 and he indicated that he
understood his rights and was willing to talk. Deputy Presley asked if there were any
other weapons in the vehicle and Mr. Parker said there was a shotgun in the back
seat. In the meantime, Deputy Presley verified Mr. Parker’s criminal record through
dispatch and further learned that the vehicle was owned by Ms. McGraw. Deputy
Presley returned to the vehicle, obtained Ms. McGraw’s consent for a search, and
found the shotgun in the back seat. Once he confirmed that Ms. McGraw had a valid
driver’s license, Deputy Presley allowed her to leave with the vehicle and trailer.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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Shonterra Terri Thomas, Mr. Parker’s cousin, also testified at the suppression
hearing. She told the magistrate judge that the day before the traffic stop, she
followed Mr. Parker, who was driving the Yukon with the trailer attached, home from
a store where she had purchased some construction supplies. According to
Ms. Thomas, the trailer’s taillights were in working order. Ms. Thomas admitted that
she loved her cousin and would do anything for him.
Ms. McGraw also testified at the hearing. She explained that at the time of the
incident, she and Mr. Parker were moving from Boley, Oklahoma to Okmulgee,
Oklahoma, and had loaded a “recliner[,] . . . bed, air conditioner, rugs . . . [and] all
kinds of stuff on [the trailer].” Id. at 111. Ms. McGraw said that she needed to use
the restroom and that is why they pulled into the hotel parking lot—not because
Deputy Presley had activated his emergency lights. According to Ms. McGraw,
Deputy Presley approached the passenger side of the vehicle and asked for her
driver’s license and registration. He took the documents to his patrol car and came
back to the vehicle—this time to the driver’s side—and asked Mr. Parker to step out
of the truck. Ms. McGraw could not hear what was said other than Deputy Presley
telling Mr. Parker that he was handcuffing him for safety reasons. Then, according
to Ms. McGraw, Deputy Presley “leaned over into the vehicle on the driver’s side,
and that’s when he saw the gun.” Id. at 105. “[T]he gun was on the [floor] behind
the driver’s seat[] covered. The only thing that was showing was a little bit of a
barrel.” Id. “After [Deputy Presley] found the two guns, he took Mr. Parker back to
his [patrol] vehicle. Then . . . he came around to my side again [and] . . . asked me to
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get out.” Id. She confirmed that she owned the vehicle and admitted that she
consented to a search. Once the search was completed and the shotgun had been
removed, Deputy Presley let her leave with the vehicle and trailer.
Ms. McGraw, who had “never pulled anything behind a car before,” was
nervous and went in the wrong direction when she pulled out of the parking lot. Id.
at 106. When she realized her mistake, she “put the brakes on” “to turn around,” and
in doing so, “looked behind [her] because there was a car behind [her], and . . . saw
[the] lights on [the trailer] and [knew the] lights were working because the car
stopped for [her.]” Id. at 107.
III.
The magistrate judge found credible Deputy Presley’s testimony that he
observed a defective taillight and therefore had a reasonable suspicion that the driver
violated Oklahoma’s traffic regulations, which require all vehicles, including trailers,
to be operated in a safe condition. In particular, the judge found:
This Court has considered the credibility of Deputy Presley and
Ms. Thomas and Ms. McGraw and their relative motivations and
circumstances and finds the officer’s version of the facts to be accurate.
Ms. Thomas is a direct relative of [Mr. Parker] who she loves and supports,
which would understandably shade her testimony in [Mr. Parker’s] favor.
Moreover, she testified of conditions which existed the day before the
traffic stop, which creates a break in time between her observation and the
observations of Deputy Presley. Similarly, Ms. McGraw testified that
[Mr. Parker] is her fiancée—again creating a motivation for [sh]ading the
truth in favor of [Mr. Parker]. Additionally, Ms. McGraw’s position of
observation was necessarily compromised by the position and content[s] of
the trailer. Deputy Presley was in a significantly better position to evaluate
the condition of the equipment on the trailer.
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Id. at 36. Thus, the judge concluded that “[t]he evidence stemming from the stop
should not be suppressed on the basis of a lack of a reasonable articulable belief that
a violation occurred.” Id. at 36-37. The judge further found that the seizure of the
firearms was warranted under the plain-view and consent doctrines. Because there
were no Fourth Amendment violations, the judge recommended that Mr. Parker’s
motion to suppress be denied. Mr. Parker then filed objections directed at the judge’s
factual findings.
IV.
The district court reviewed the hearing transcript and agreed with the judge’s
credibility determination. It further denied Mr. Parker’s request for a de novo
evidentiary hearing. The court acknowledged that it was required to review
Mr. Parker’s objections de novo, which means “considering the actual testimony, and
not merely . . . reviewing the magistrate’s report and recommendation,” id. at 121
(internal quotation marks omitted), but ruled that “[a]n additional hearing is not . . .
required,” id. at 120. See United States v. Raddatz, 447 U.S. 667, 674-75 (1980)
(noting the district court is required to make a de novo determination—not to conduct
a de novo hearing). The court overruled the objections and adopted the judge’s
findings and recommendation to deny Mr. Parker’s motion to suppress.
V.
“[T]his court must review de novo the reasonableness of the government’s
action under the Fourth Amendment.” United States v. Kitchell, 653 F.3d 1206, 1216
(10th Cir. 2011) (internal quotation marks omitted). However, “[i]n assessing a
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denial of a motion to suppress, this court accepts the factual findings of the district
court, and its determination of witness credibility, unless they are clearly erroneous.
Moreover, this court must view the evidence presented at the suppression hearing in
the light most favorable to the Government.” Id. at 1215-16 (citation and internal
quotation marks omitted). “Judging the credibility of the witnesses, determining the
weight to be given to evidence, and drawing reasonable inferences and conclusions
from the evidence are within the province of the district court.” Id. at 1216 (internal
quotation marks omitted).
“A finding of fact is clearly erroneous if it is without factual support in the
record or if the appellate court, after reviewing all the evidence, is left with a definite
and firm conviction that a mistake has been made.” United States v. Pulliam,
748 F.3d 967, 970 (10th Cir. 2014) (internal quotation marks omitted). This means
that “[w]e must uphold any district court finding that is permissible in light of the
evidence.” Id. (internal quotation marks omitted).
VI.
Mr. Parker does not quarrel with the legal standards applied by the district
court in analyzing the validity of the traffic stop and seizure of the firearms; instead,
he challenges the district court’s factual determinations. In particular, Mr. Parker
raises questions surrounding (1) whether he was actually stopped by Deputy Presley
or whether he pulled into the hotel parking lot to find a restroom for Ms. McGraw;
(2) whether the taillight was in working order based on the conflicting testimony
from Ms. Thomas and Ms. McGraw; and (3) whether Deputy Presley’s testimony that
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the taillight was not functioning was credible in view of the fact that he allowed
Ms. McGraw to drive away pulling a trailer that was in an unsafe condition. He also
argues that the “butt of a gun wrapped in black electrical tape” and “tucked between
the driver’s seat and the center console,” could not be lawfully seized because the
incriminating character of the weapon was not immediately apparent as Deputy
Parker did not know that Mr. Parker was a convicted felon. Aplt. Opening Br. at
13-14. Last, Mr. Parker suggests, although the argument is difficult to follow and not
developed in any way, that Deputy Presley did not ask for permission to search Ms.
McGraw’s vehicle until after he found the shotgun, which invalidated her consent
because it was not “free and voluntary” or “obtained during an illegal detention.” Id.
at 15. These arguments are unavailing.
“A traffic stop is justified at its inception if an officer has . . . a reasonable
articulable suspicion that a particular motorist has violated any of the traffic or
equipment regulations of the jurisdiction.” United States v. Winder, 557 F.3d 1129,
1134 (10th Cir. 2009). The legal test for a traffic stop is an objective one. See id.The evidence supports the magistrate judge’s finding that Deputy Presley observed a
defective taillight on the trailer being pulled by the Yukon, which in turn led to an
objectively reasonable and articulable suspicion that the driver of the vehicle had
violated Oklahoma’s traffic laws.
As the government argues, and we agree, “[w]hether the occupants of the
Yukon were aware they were being pulled over at the time they stopped in the [hotel]
parking lot is irrelevant to whether the officer was justified in conducting what he
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thought was a traffic stop.” Aplee. Br. at 14. Moreover, even if Mr. Parker is correct
that Deputy Presley first observed the trailer in the hotel parking lot, he was justified
in making contact with the occupants of the vehicle. See United States v. Tafuna,
5 F.4th 1197, 1202 (10th Cir. 2021) (“[A] consensual encounter [did not] morph into
a detention when [a law enforcement officer] exited his vehicle, approached the
parked car on foot, and asked the car’s occupants for their names and birth dates.
Officers—without any basis for suspecting criminal activity is afoot—may approach
an individual, ask a few questions, and ask to examine the individual’s
identification.” (brackets and internal quotation marks omitted)). And the finding
that Deputy Presley’s “version of the facts [is] accurate,” R., Vol. 1 at 36, is not
clearly erroneous and must be affirmed on appeal.
There is also no merit to Mr. Parker’s argument that the firearm was not
lawfully seized under the plain-view doctrine.
Under the plain view doctrine, police officers may properly seize
evidence of a crime if (1) the officer was lawfully in a position from which
the object seized was in plain view, (2) the object’s incriminating character
was immediately apparent (i.e., there was probable cause to believe that it
was contraband or evidence of a crime), and (3) the officer had a lawful
right of access to the object.
United States v. Thomas, 372 F.3d 1173, 1178 (10th Cir. 2004).
Here, Mr. Parker maintains that the incriminating character of the firearm did
not become immediately apparent until after the item was seized. We disagree. The
magistrate judge found that “[w]hen Deputy Presley . . . approached the driver’s side
of the vehicle, [Mr. Parker] stated that he was a convicted felon, such that the officer
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had a suspicion that the weapon represented contraband. He then had the right to
access the weapon for the safety of himself and the others present.” R., Vol. 1 at
37-38. This factual finding is supported by the record and cannot be disturbed on
appeal.
Last, the magistrate judge’s findings concerning consent are also supported by
the record and cannot be disturbed. See United States v. West, 219 F.3d 1171, 1177
(10th Cir. 2000) (“Because voluntariness is a question of fact, the court must accept
the district court’s finding unless it is clearly erroneous.”). Here, the judge found
that (1) Deputy Presley did not search the vehicle and recover the shotgun until after
Ms. McGraw gave consent and (2) her consent was “unconditional [and]
unequivocal.” R., Vol. 1 at 38. Moreover, at the time she gave her consent, Ms.
McGraw was not detained, much less illegally detained.
VII.
We affirm the district court’s order denying Mr. Parker’s motion to suppress.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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