United States v. Derry ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50892
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRELL LAMOR DERRY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-99-CR-416-1
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August 22, 2001
Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.
PER CURIAM:*
Darrell Lamor Derry appeals the district court’s denial of
his motion to suppress evidence. He argues that he was illegally
seized without probable cause when he was placed in the police
officer’s squad car inasmuch as he was not free to leave. Derry
avers that the subsequent abandonment of the contraband in the
police car was the result of the illegal seizure and thus was not
voluntary. Derry therefore asserts that the cocaine that was
found in the back of the police vehicle should have been
suppressed.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 00-50892
-2-
Although the Government did not expressly argue or develop
at the hearing on the motion to suppress that Derry consented to
being placed in the police car, it did recite in its opposition
to the motion to suppress that Derry consented to his placement
in the police car. Accordingly, the Government preserved the
issue for appeal. It is also questionable whether an appellee is
foreclosed from raising arguments in support of affirmance for
the first time on appeal. See Bickford v. Int’l Speedway Corp.,
654 F.2d 1028, 1031 (5th Cir. 1981) (reversal is inappropriate if
the ruling of district court can be affirmed on any grounds,
regardless whether those grounds were used by district court).
Moreover, Derry, as part of his plea agreement, stipulated that
he consented to being placed in the police car.
We have reviewed the record and the briefs on appeal and
affirm the district court’s denial of the motion to suppress on
the basis that because Derry consented to being placed in the
police car, his detention did not amount to a seizure in
violation of his Fourth Amendment rights. Thus, the subsequent
search of the police vehicle and the discovery of the cocaine was
not tainted by the seizure. See United States v. McSween, 53
F.3d 684, 687 n.3 (5th Cir. 1995)(court may affirm on any grounds
supported by record); see also United States v. Basey, 816 F.2d
980, 983 n.1 (5th Cir. 1987) (“[T]his Court may consider not only
the evidence from the suppression hearing but also evidence
presented during the trial.”)
AFFIRMED.