410 F.3d 1203 (10th Cir. 2005), 04-1062, United States v. Dennison

Docket Nº:04-1062.
Citation:410 F.3d 1203
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Bryan James DENNISON, Defendant-Appellant.
Case Date:June 08, 2005
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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410 F.3d 1203 (10th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,

v.

Bryan James DENNISON, Defendant-Appellant.

No. 04-1062.

United States Court of Appeals, Tenth Circuit

June 8, 2005

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        Andrew A. Vogt, Assistant United States Attorney (John W. Suthers, U.S. Attorney, with him on the brief), Denver, CO, for Plaintiff-Appellee.

        Raymond P. Moore, Federal Public Defender, Denver, CO, for Defendant-Appellant.

        Before SEYMOUR, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and HENRY, Circuit Judge.

        HENRY, Circuit Judge.

        Bryan James Dennison pleaded guilty in November 2003 to one count of unlawful possession of a machine gun and aiding and abetting its possession, in violation of 18 U.S.C. §§ 922(o), 924(a)(2), and 2. In his conditional plea agreement, Mr. Dennison reserved the right to appeal the district court's denial of his motion to suppress physical evidence and statements from a warrantless search. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm the district court's denial of Mr. Dennison's motion to suppress.

        I. BACKGROUND

        At approximately 3:00 a.m. on January 21, 2003, James Dennison and Keith Allen were parked in an Englewood, Colorado apartment complex that had a high incidence of nighttime car theft. Mr. Dennison was in the driver's seat of his gold Ford truck with a "topper" shell; Mr. Allen was in the passenger's seat. The lights and engine were turned off. Officer Christian Contos, patrolling the area, pulled up alongside the truck and asked what the two men were doing. They told Officer Contos that they had lost the keys to a Chevy pickup and were waiting for a tow truck; the Chevy vehicle was in a parking lot "an extensive distance away." Rec. vol. I, doc. 59, at 2 (Dist. Ct. Order, filed Oct. 17, 2003) [hereinafter "Dist. Ct. Order"].

        Officer Contos testified that he sensed "something didn't seem right" after the first encounter. Rec. vol. II, at 15-16

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(Hr'g on Motion to Suppress, dated Sept. 18, 2003). He drove around the apartment complex and returned to the parking lot approximately 20-30 seconds later. Mr. Dennison's truck, with its engine and lights now on, had moved closer to the Chevy truck to be towed. Officer Contos pulled up to the men again and got out of his patrol car, to further investigate and to "check and make sure [the Chevy was] their truck." Id. at 18. Mr. Allen mentioned that he had been involved in a "domestic" and was wanting to get the Chevy truck before his girlfriend came and damaged it. Id. at 19. After hearing Mr. Allen's explanation, Officer Contos remembered a recent police bulletin to watch for a gold station wagon in the vicinity of the apartment complex because the police wanted a driver or passenger for a domestic violence incident. Though the men were in a gold truck with a cab rather than a gold station wagon, Officer Contos concluded that Mr. Allen was the wanted suspect because of his admitted involvement in a "domestic" and the men's proximity to the area noted in the police bulletin.

        Officer Contos, anticipating that Mr. Allen was "probably going to get arrested," requested identification from the two men. Id. at 20, 23-24. Mr. Dennison produced a driver's license, from which Officer Contos determined that Mr. Dennison had no outstanding warrants or other police alerts. Mr. Allen had no identification, but Officer Contos obtained a warrant check upon his full name. Officer Contos learned that Mr. Allen had four outstanding arrest warrants, including a felony arrest warrant for a weapons violation. Officer Contos then called for backup assistance, and Officers Joseph Wilson and Nancy Schwan arrived shortly.

        The officers ordered Mr. Allen to exit the truck, arrested him, and placed him in the back seat of a police car away from Mr. Dennison's truck; Officers Wilson and Schwan had their guns drawn during Mr. Allen's arrest. The officers then asked Mr. Dennison to step out of the driver's side because they considered it dangerous to execute a search incident to Mr. Allen's arrest if someone were still inside. Mr. Dennison was told that he was not under arrest, but officers performed a pat-down search and handcuffed him. According to Officer Contos, these steps were taken because Mr. Allen was wanted on a weapons violation and "officer safety dictates that [officers] err on the side of caution." Id. at 30.

        Mr. Dennison refused consent to search his truck, but officers believed that they were authorized to perform a search incident to Mr. Allen's arrest. When Officer Wilson started searching the truck's cab, Officer Contos was standing next to Mr. Dennison, who was handcuffed, near the rear of the truck on the passenger's side. Officer Contos testified that when Officer Wilson began the search of the passenger compartment, Officer Schwan "was getting ready, if she hadn't already, to leave" the scene with Mr. Allen to do the domestic violence paperwork. Id. at 35.

        Officer Wilson soon discovered a loaded shotgun on the back seat under a blanket. After this discovery in the back seat, Officer Contos shined his flashlight through a window of the topper shell and saw the vented barrel of a machine gun partially exposed under a blanket inside the cargo bed. Id. at 38. Officer Wilson next found a loaded handgun and drug paraphernalia in the front and back seats. Officers then determined that they had probable cause to arrest Mr. Dennison for drug and weapons charges and to conduct an inventory search of the entire vehicle. Mr. Dennison was arrested and placed in the patrol car; upon his arrest, officers impounded and inventoried the truck. After opening the locked topper shell, officers recovered in

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the cargo bed the machine gun that Officer Contos had earlier identified. A second machine gun was later found in a canvas case in the back floorboard of the back seat. Together, officers found five handguns, three rifles, three shotguns, and two machine guns in Mr. Dennison's truck.

        Both Mr. Allen and Mr. Dennison were indicted and charged with unlawful possession of a machine gun and aiding and abetting its possession, in violation of 18 U.S.C. §§ 922(o), 924(a)(2), and 2. Mr. Dennison filed a motion to suppress physical evidence and statements from the warrantless search. The district court denied the motion. It concluded that (1) the second encounter between Officer Contos and the two men was a lawful stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and (2) the warrantless search was valid incident to Mr. Allen's arrest.

        Mr. Dennison later pleaded guilty to the one-count indictment pursuant to a conditional plea agreement allowing him to appeal the district court's denial of his suppression motion. The district court sentenced Mr. Dennison to one month of imprisonment, followed by a three-year term of supervised release that includes eleven months of home detention. He timely appeals the district court's denial of his motion to suppress.

        II. STANDARD OF REVIEW

         This court reviews de novo a district court's determination of the reasonableness of a search and seizure under the Fourth Amendment. United States v. Abdenbi, 361 F.3d 1282, 1287 (10th Cir.2004). We look at the totality of the circumstances in reviewing the denial of the motion to suppress. United States v. Gay, 240 F.3d 1222, 1225 (10th Cir.2001). Furthermore, "we accept the factual findings of the district court unless they are clearly erroneous, and view the evidence in the light most favorable to the district court's determination." United States v. Williams, 271 F.3d 1262, 1266 (10th Cir.2001) (internal citation omitted). "Reviewing courts must also defer to the 'ability of a trained law enforcement officer to distinguish between innocent and suspicious actions.' " United States v. Santos, 403 F.3d 1120, 1124 (10th Cir.2005) (quoting United States v. McRae, 81 F.3d 1528, 1534 (10th Cir.1996)).

        III. DISCUSSION

        According to Mr. Dennison, the district court committed two separate errors when it denied his motion to suppress the two machine guns found in his truck. First, Mr. Dennison argues that the district court erred in finding that Officer Contos had reasonable suspicion to justify a Terry detention when he approached Mr. Dennison's truck the second time after a brief initial encounter. Second, Mr. Dennison contends that the district court erred when it concluded that the warrantless search of Mr. Dennison's truck was justified as a search incident to Mr. Allen's arrest.

        A. Challenge to the second encounter

         Mr. Dennison maintains that Officer Contos' second encounter with Mr. Dennison and Mr. Allen was an investigative detention not supported by reasonable suspicion. A lawful investigative detention of limited scope and duration does not require probable cause as long as the police officer has reasonable suspicion that the person seized is engaged in criminal activity. Terry, 392 U.S. at 30-31, 88 S.Ct. 1868. An officer making a Terry stop "must be able to articulate something more than an inchoate and unparticularized suspicion or hunch. The Fourth Amendment requires some minimal level of objective justification for making the stop. That level of suspicion is considerably

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less than proof of wrongdoing by a preponderance of the evidence." United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (internal citation and quotation marks omitted).

        The district court determined that Officer Contos' second encounter with Mr. Dennison and Mr. Allen was a lawful investigative detention under Terry. It noted that Officer Contos believed that "something...

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