U.S. v. Holt, 99-7150

• Decision Date: 05 September 2001
• Docket Number: No. 99-7150,99-7150
• Citation: 264 F.3d 1215
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellant, v. DENNIS DAYTON HOLT, Defendant-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

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264 F.3d 1215 (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellant,
v.
DENNIS DAYTON HOLT, Defendant-Appellee. No. 99-7150 UNITED STATES COURT OF APPEALS
TENTH CIRCUIT September 5, 2001

Appeal from United States District Court for the Eastern District of Oklahoma, (D.C. No. 99-CR-77-B)

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Copyrighted Material Omitted

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Richard A. Friedman, Appellate Section, Criminal Division, Department of Justice, Washington, D.C., (Bruce Green, United States Attorney, and D. Michael Littlefield, Assistant United States Attorney, with him on the brief) for Plaintiff-Appellant.

Michael A. Abel, Assistant Federal Public Defender, (Stephen J. Knorr, Federal Public Defender, with him on the brief), Tulsa, Oklahoma, for Defendant-Appellee.

Before TACHA, Chief Judge, and SEYMOUR, BRORBY, EBEL, KELLY, HENRY, BRISCOE, LUCERO, and MURPHY, Circuit Judges.

ON REHEARING EN BANC

PER CURIAM^*

After a divided panel affirmed the district court's suppression of evidence obtained during a search of the defendant's car incident to a traffic stop, see United States v. Holt, 229 F.3d 931 (10th Cir. 2000), this court granted rehearing en banc on the following questions: (1) whether the Fourth Amendment constrains the scope, as well as the duration, of a traffic stop, and (2) whether an officer conducting a traffic stop may ask the driver about the presence of weapons in the absence of reasonable suspicion that the driver is armed and dangerous. Consistent with the panel opinion, a majority of this court concludes that the analytical framework set forth in Terry v. Ohio, 392 U.S. 1 (1968), applies to traffic stops, and that Terry requires an analysis of both the scope and duration of a stop to determine whether the stop comports with the Fourth Amendment. In contrast to the original panel opinion, however, a majority of this court concludes that an officer conducting a traffic stop may ask the driver about the presence of loaded weapons in the absence of particularized suspicion of the existence of such firearms.

As a result, we VACATE the panel opinion, REVERSE the district court's suppression orders and REMAND the case to the district court for further proceedings, consistent with Parts I and II of Judge Ebel's opinion (subject to the caveat contained in Judge Henry's concurrence) and Parts I and II of Judge Briscoe's opinion.

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Notes:

*. Parts I and II of Judge Ebel's opinion represent the en banc opinion of this court with the exception of a caveat noted in Judge Henry's concurrence. Parts I and II of Judge Briscoe's opinion also represent the en banc opinion of this court. Part III of Judge Ebel's opinion represents only the opinion of Chief Judge Tacha and Judges Brorby, Ebel, and Kelly. Parts III and IV of Judge Briscoe's opinion represent only the opinion of Judges Seymour, Briscoe, Lucero, and Murphy. Judge Henry has filed a separate concurrence joining Parts I and II of Judge Ebel's opinion with a caveat and Parts I and II of Judge Briscoe's opinion. Judge Kelly has filed a separate opinion joining Judge Ebel's opinion. Judge Lucero, joined by Judge Seymour, has filed a separate opinion joining Judge Briscoe's opinion. Judge Murphy has filed a separate opinion joining Judge Briscoe's opinion.

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EBEL, Circuit Judge.^**

We granted en banc rehearing in this case to delineate the scope of permissible questioning during a routine traffic stop. We hold that the officer's question about the existence of a loaded weapon in the vehicle was justified on the grounds of officer safety. During a routine traffic stop, an officer may ask the stopped motorist

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whether there is a loaded firearm in the car even in the absence of particularized suspicion of the existence of such a firearm. The objective safety risks to officers during routine traffic stops in general have led courts to approve reasonable steps to insure officer safety, including asking the driver and passengers of a stopped car to exit the vehicle and conducting routine criminal history checks. These safety risks also justify limited questions about the presence of loaded weapons. Thus, we reverse the suppression of the answer given as to the presence of a loaded weapon in the vehicle and remand for further proceedings.

BACKGROUND¹

On the evening of September 15, 1999, officers from the Muldrow, Oklahoma police department, accompanied by Damon Tucker, an Oklahoma Highway Patrol officer, established a driver's license checkpoint on Treat Road within the city limits of Muldrow. The admitted impetus for establishing a checkpoint at this location was the officers' suspicion that the defendant, Dennis Holt, who lived in the area, was transporting illegal drugs along Treat Road.²

At the checkpoint, the officers stopped all vehicles traveling along Treat Road and checked all drivers' licenses. At approximately 10:30 p.m., Tucker observed a Ford Ranger truck approach the checkpoint. Tucker noted that the driver of the truck, defendant Holt, was not wearing a seatbelt. After asking to see Holt's driver's license, Tucker asked Holt why he was not wearing a seatbelt. Holt stated that he lived in the area and pointed toward his house. At some point thereafter, officers from the Muldrow police department informed Tucker that Holt was the person they were seeking. Tucker asked Holt to pull over to the side of the road, exit his vehicle, and join Tucker in his patrol car.

After Holt got into the patrol car, Tucker asked for Holt's driver's license and proceeded to write a warning for the seatbelt violation. While doing so, Tucker asked Holt if "there was anything in [Holt's] vehicle [that Tucker] should know about such as loaded weapons." According to Tucker, he asks that question "on a lot of [his] stops." Holt stated there was a loaded pistol behind the passenger seat of his vehicle. Holt did not indicate whether he had a permit to carry a loaded gun (Oklahoma law requires a person carrying a permitted weapon immediately to disclose that fact when stopped by an officer), and Tucker did not ask whether Holt possessed such a permit. Tucker then asked Holt if "there was anything else that [Tucker] should know about in the vehicle." Holt stated, "I know what you are referring to" but "I don't use them anymore." Upon further questioning by Tucker, Holt indicated that he had previously used drugs, but "hadn't been involved with them in about a year or so." At that point, Tucker asked Holt for consent to search his vehicle. Holt agreed. The district court found that Tucker had not yet issued the warning to Holt for the seatbelt violation at that point, and it is

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undisputed that Tucker still had Holt's driver's license in his possession during all the above-outlined questioning. According to Tucker, approximately three to four minutes elapsed between the time he and Holt got into the patrol car and the time Holt consented to the search of his vehicle.

Tucker and Holt then got out of the patrol car and Tucker again asked Holt if there was anything else in the vehicle. Holt responded that the gun was all Tucker would find. Tucker proceeded to search the cab of the truck and found a loaded pistol behind the passenger seat. One of the Muldrow police officers, when informed by Tucker that Holt had given consent to have his vehicle searched, began looking through the camper shell on the back of the truck. During the course of his search, this officer found a small bag containing spoons, syringes, loose matches, and two small baggies of a white powdery substance. Based upon the discovery of this evidence, Tucker arrested Holt and transported him to the Muldrow jail.

Shortly after Holt's arrest, Tucker contacted an assistant district attorney for Sequoyah County regarding the possibility of obtaining a search warrant for Holt's residence based upon the evidence recovered from Holt's vehicle. The assistant district attorney concluded the evidence was not sufficient to support a search warrant for Holt's residence. He did, however, advise Tucker to utilize "a knock and talk" technique. In accordance with this advice, police officers went to Holt's residence, and Holt's mother gave verbal consent to search the premises. During the search, officers found chemical glassware in a room where Holt stayed, as well as drugs and various drug-making equipment in an outbuilding.

Holt was indicted on October 14, 1999, on two counts of possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a), one count of manufacturing methamphetamine in violation of 21 U.S.C. § 841(a), and one count of possession of a firearm in connection with a drug trafficking offense in violation of 18 U.S.C. § 924(c). Holt moved to suppress his responses to Tucker's questions and the evidence seized from his vehicle.

The district court held an evidentiary hearing on the motion at which both Tucker and Holt testified. The district court subsequently issued a written order granting the motion to suppress. Shortly thereafter, Holt filed a supplemental motion to suppress the evidence seized from his residence. That motion was granted by the district court pursuant to the government's concession that evidence obtained from the house should be suppressed if evidence obtained from the car was suppressed.³ The government now brings an interlocutory appeal challenging the suppression of the loaded gun, the drug paraphernalia found in the car and at the residence, and Holt's statements acknowledging his possession of a loaded gun and his prior drug use.

DISCUSSION

In reviewing a district court order granting a motion to suppress, we accept the district court's factual findings unless clearly erroneous, and we view the evidence in the light most favorable to those findings. United States v. Caro, 248 F.3d 1240, 1243 (10th Cir. 2001). We review

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de novo the ultimate determination of Fourth Amendment...