U.S. v. Burkley

• Decision Date: 15 January 2008
• Docket Number: No. 07-6000.,07-6000.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Derrick A. BURKLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

513 F.3d 1183

UNITED STATES of America, Plaintiff-Appellee, v. Derrick A. BURKLEY, Defendant-Appellant.

No. 07-6000.

United States Court of Appeals, Tenth Circuit.

January 15, 2008.

James M. Murphy (Francis R. Courbois, Oklahoma City, Oklahoma, on the brief), Dallas, Texas, for Defendant-Appellant.

Mary M. Smith, Assistant United States Attorney (John C. Richter, United States Attorney, with her on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before TACHA, McKAY, and LUCERO, Circuit Judges.

McKAY, Circuit Judge.

Following a jury trial, Defendant was convicted of possessing marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (count one), carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (count two), and being an unlawful user of marijuana in possession of firearms, and ammunition in violation of 18 U.S.C. § 922(g)(3) (count three). He was sentenced to a total of 120 months' imprisonment. The district court also entered a verdict and order of forfeiture with respect to the firearms, ammunition, and currency found in Defendant's vehicle at the time of his arrest. We have jurisdiction over this appeal under 28 U.S.C. § 1291.

BACKGROUND

Defendant's convictions stem from a search of his vehicle pursuant to a traffic stop and arrest. A police officer responding to a disturbance call at the Broadway Village Apartments in Oklahoma City, Oklahoma, was driving approximately one-and-a-half car lengths behind Defendant when Defendant made a right turn from the highway onto the access road for that apartment complex without signaling his intention to turn. The officer, who was driving a marked patrol car, turned into the apartment complex after Defendant. Defendant then began using his turn signal while going around bends and curves in the winding roadway. The officer initiated a traffic stop based on Defendant's initial failure to signal and subsequent use of his turn signal where it was not necessary.

The officer approached Defendant's car and instructed him to roll down his window. When Defendant complied, the officer noticed the strong smell of marijuana emanating from inside of the car. Defendant admitted that he did not have a driver's license. The officer also observed marijuana residue on Defendant's shirt, and Defendant admitted that he had been smoking marijuana earlier that evening. The officer decided to place Defendant under arrest. Two other officers, having responded to the initial disturbance call at the apartment complex, arrived to assist the arresting officer. Defendant, who is paralyzed from the waist down, informed the officers that he would need them to retrieve his wheelchair from the back seat in order for him to exit the vehicle. Defendant also told the officers that he had a weapon in the car. When the officers opened the back door of the vehicle to retrieve the wheelchair, they observed a .50 caliber Desert Eagle handgun tucked into the folds of the wheelchair and a Carbon-15 handgun on the floorboard, both within Defendant's reach. After assisting Defendant into the wheelchair, one of the officers conducted a patdown search of Defendant and found two haggles of marijuana, a prescription bottle of medication, and over $3000 in cash inside Defendant's pants.

The officers then searched the vehicle. Under the driver's seat, the officers discovered a digital scale and two cell phones, which rang continuously during the search. The officers found a magazine and rounds 'for the Desert Eagle in the center console and a loaded magazine for the other handgun on the rear floorboard. On the back seat, the officers discovered a black bag containing cash, marijuana, ammunition, and bottles of prescription medication. Hidden under the back seat were five, vacuum-sealed bundles of U.S. currency. The total amount of marijuana found in the vehicle and in Defendant's possession was 157 grams; the total amount of money was $242,250.

After being arrested and advised of his rights, Defendant told officers that he owned the guns found in his car and carried them for his personal protection. He denied selling drugs, but admitted using marijuana on a regular basis for alleged medicinal purposes. He stated that the money found in the vehicle was given to him by a man he knew only as "Broadway" for the purpose of booking rap groups from St. Louis. Although he claimed to have known Broadway for seven or eight years, Defendant could not provide a last name for Broadway nor give any information regarding Broadway's current whereabouts.

Before trial, the court denied Defendant's motions for suppression of the evidence seized pursuant to the traffic stop and arrest and for severance of count one from counts two and three. The court also denied Defendant's motion for acquittal, which he initially made at the close of the government's case-in-chief. After the jury convicted Defendant on all three counts of the indictment, the district court entered a verdict and order of forfeiture of the firearms, ammunition, and currency found in the search of Defendant's vehicle and sentenced Defendant to a total of 120 months' imprisonment. Defendant now appeals.

DISCUSSION

Defendant argues that (1) the district court erred in denying his suppression motion, (2) the court erred in denying his motion to sever count one from counts two and three, (3) there is insufficient evidence to support his convictions on counts one and two, (4) the court erred in denying his motion for judgment of acquittal on count two, and (5) the judgment of forfeiture should be set aside.

I. Motion to Suppress

In reviewing the district court's denial of Defendant's suppression motion, we defer to the court's factual findings unless clearly erroneous, considering the totality of the circumstances and viewing the evidence in the light most favorable to the government. United States v. Gama-Bastidas, 142 F.3d 1233, 1237 (10th Cir. 1998). We analyze traffic stops under the principles articulated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), "asking first `whether the officer's action was justified at its inception,' and second `whether it was reasonably related in scope to the circumstances which justified the interference in the first place.'" United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir.1995) (quoting Terry, 392 U.S. at 20, 88 S.Ct. 1868). The traffic stop of an individual vehicle requires "at least articulable and reasonable suspicion" that the vehicle or an occupant is in violation of the law, Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), but the officer's subjective motivations for making a stop are irrelevant, Whren v. United States, 517 U.S. 806, 811-13, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). We review the district court's finding of reasonable suspicion for clear error, but we review de novo the ultimate question of reasonableness under the Fourth Amendment. United States v. Walker, 941 F.2d 1086, 1090 (10th Cir.1991).

Defendant argues that evidence obtained from the search of his vehicle should be suppressed because he did not commit a traffic offense under Oklahoma law and therefore the initial stop was unlawful under the Fourth Amendment. An Oklahoma City ordinance prohibits making a turn without signaling, Okla. City, Okla., Municipal Code ch. 32, art. VII, § 32-240 (2007); however, Defendant argues that this ordinance is invalid because it is inconsistent with the state highway code, which prohibits making a turn without signaling "in the event any other traffic may be affected by such movement," Okla Stat. tit. 47 § 11-604(A). Defendant argues that he did not violate this state statute because no evidence was introduced that his failure to signal affected traffic. Defendant further argues that his unnecessary use of turn signals on the apartment access road cannot support a finding of reasonable suspicion to justify the traffic stop.

As an initial matter, we must consider Defendant's motion to certify to the Oklahoma Supreme Court three questions related to the municipal ordinance and state statute in question. Tenth Circuit Rule 27.1(A) provides that, "[w]hen state law permits, this court may: (1) certify a question arising under state law to that state's highest court according to that court's rules; and (2) stay the case in this court to await the state court's decision of the certified question." Oklahoma state law permits the Oklahoma Supreme Court to answer questions of state law "certified to it by a court of, the United States ... if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling decision of the Supreme Court or Court of Criminal Appeals, constitutional provision, or statute of this state." Okla. Stat. tit. 20, § 1602 (2002). However, "Nile generally will not certify questions to a state supreme court when the requesting party seeks certification only after having received an adverse decision from the district court." Massengale v. Okla. Bel. of Exam'rs in Optometry, 30 F.3d 1325, 1331 (10th Cir.1994). Defendant did not seek certification of the state law questions until his case was on appeal, and we see no compelling reason for certifying these questions now. We therefore deny Defendant's motion for certification.

The district court held that—regardless of the municipal ordinance—Defendant violated state law when he failed to signal his intention to make a right turn off of the highway. We agree. We see nothing clearly erroneous in the court's factual finding that Defendant failed to signal before turning and that the police officer was traveling directly behind him at the time. We also agree with the district court's conclusion that these facts establish a violation of state law, justifying the stop of Defendant's vehicle. Clearly, a vehicle traveling approximately one-and-a-half car lengths...