326 F.3d 1135 (10th Cir. 2003), 02-2118, U.S. v. White

Docket Nº:02-2118
Citation:326 F.3d 1135
Party Name:U.S. v. White
Case Date:April 08, 2003
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1135

326 F.3d 1135 (10th Cir. 2003)

UNITED STATES of America, Plaintiff-Appellee,

v.

Firdie Earl WHITE, Defendant-Appellant.

No. 02-2118.

United States Court of Appeals, Tenth Circuit

April 8, 2003

Todd B. Hotchkiss, Frechette & Associates, P.C., Albuquerque, NM, for Defendant-Appellant.

James Miles Hanisee, Assistant United States Attorney (David C. Iglesias, United States Attorney, and Laura Fashing, Assistant United States Attorney, on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Before LUCERO, HOLLOWAY, and ANDERSON, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Defendant Firdie Earl White was convicted of possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Page 1136

He appeals the district court's denial of his motion to suppress his identity and the subsequent discovery of his status as a convicted felon following his unlawful arrest. We affirm, although on a different basis than the district court.

BACKGROUND

On December 22, 2000, an Albuquerque, New Mexico, police dispatcher informed Albuquerque police officer Anthony Simballa that an anonymous tip indicated that individuals were suspected of selling drugs at 540 Cardena, Apartm€Ú(C. Officer Simballa, along with Officer Daniel Porter, responded and went to the apartment complex at that address.

Upon their arrival at the apartment complex, they encountered Francisco Navarez and Stephanie Holguin in the parking lot. When asked if they lived there, Navarez responded that he lived in Apartment C. When Officer Simballa asked Navarez if he would mind talking to the officers in the apartment, Navarez replied, "No, follow me." R. Vol. IV at 8-9. The officers followed Navarez to the apartment, where Navarez opened the door.

When the door to Apartment C was opened, Officer Simballa saw five people inside the apartment, one of whom, later identified as defendant White, was holding a gun and pointing it towards the floor. When White saw the officers, he turned his back to the officers. Id. at 11. When the officers saw the gun, Officer Porter yelled, "gun." Id. Both officers drew their weapons and told everyone to put their hands up. White placed the gun he was holding on a table and raised his hands.

Officer Simballa secured the gun and removed the magazine, which contained six bullets, although the chamber was empty. Officer Simballa handcuffed White and patted him down. During the pat-down, Officer Parker stood in the doorway with his gun pointed towards the ground in a "low ready" position. While he was patting down White, Officer Simballa felt a small hard object in White's pocket. When asked what it was, White told Officer Simballa, "Take it out." Id. at 15. The object turned out to be a small dental floss container, which made a rattling sound when the officer removed it from White's pocket. Officer Simballa set it aside while he patted down the other individuals in the apartment, finding no other weapons. When he returned to and opened the dental floss container, the officer discovered four rocks of what turned out to be cocaine. The officers placed White under arrest, and Officer Porter read him his Miranda rights.

After White was advised of his rights, Officer Simballa asked him what the substance was that was inside the dental floss container, and White responded that it was crack cocaine. When asked what he was doing with the gun, White replied that he was thinking of buying it. At some point, White either gave Officer Simballa an identification card or told the officer his name, date of birth and social security number. Officers Simballa and Porter checked the National Crime Information Channel ("NCIC") and learned that there was a warrant outstanding for White's arrest for traffic violations. They informed White that he had an outstanding warrant. At the hearing on White's motion to suppress, Officer Simballa testified that the existence of the outstanding warrant was "also a basis for [White's] being arrested at that time." Id. at 20.

The...

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