U.S. v. Dejear

• Decision Date: 09 January 2009
• Docket Number: No. 07-6281.,07-6281.
• Citation: 552 F.3d 1196
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jason A. DEJEAR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

552 F.3d 1196

UNITED STATES of America, Plaintiff-Appellee, v. Jason A. DEJEAR, Defendant-Appellant.

No. 07-6281.

United States Court of Appeals, Tenth Circuit.

January 9, 2009.

Paul Antonio Lacy, Assistant Federal Public Defender, Oklahoma City, OK, for the Defendant-Appellant.

Edward J. Kumiega, Assistant United States Attorney (John C. Richter, United States Attorney with him on the brief), Oklahoma City, OK, for the Plaintiff-Appellee.

Before HENRY, Chief Judge, and BRISCOE, and LUCERO, Circuit Judges.

HENRY, Chief Judge.

On January 8, 2007, Oklahoma City police officers discovered a handgun and marijuana in a car in which the defendant Jason DeJear was sitting. The government subsequently charged Mr. DeJear with firearm and drug offenses, and a jury convicted him of (1) possession of marijuana (a violation of 21 U.S.C. § 841(a)(1)); and (2) possession of a firearm after a felony conviction (a violation of 18 U.S.C. § 922(g)(1)). The district court sentenced him to concurrent terms of 24 months (on the possession of marijuana count) and 120 months (on the possession of a firearm count), followed by a three-year term of supervised release.

In this appeal, Mr. DeJear argues that the district court erred in denying his motion to suppress the evidence that the officers discovered in the car because they (1) lacked reasonable suspicion to detain him; (2) failed to administer Miranda warnings before questioning him; and (3) failed to obtain a warrant before searching the car. We are not persuaded by these arguments and therefore affirm Mr. DeJear's convictions.

I. BACKGROUND

The relevant facts are not disputed. On January 8, 2007, Oklahoma City Police Officers Morrison, Stephens, and Doyle were on patrol in the Springlake district of Northeast Oklahoma City in three separate cars. At about 4:55 p.m., the officers drove by 2305 N.E. 22nd Street. According to the officers, that house was at an intersection that had a history of criminal activity.

As they approached the house, the officers saw three people sitting in a Chevrolet Caprice in the driveway. They parked their patrol cars, and Officer Morrison walked toward the Caprice. He noticed a man in the backseat on the passenger side holding a baseball bat in his hands. Mr. DeJear was sitting sideways in the front passenger seat, with the door open and his feet outside the door.

According to Officer Morrison, Mr. DeJear then looked at him "in a very nervous state." Rec. vol. II, at 28 (Tr. of April 26, 2007 Hr'g). In Officer Morrison's words, "[Mr. DeJear's] eyes widen. He takes his hands—in the back part of the front seat towards the bottom, he starts stuffing both hands down there in a very erratic and nervous state. He keeps looking up at me." Id.

Officer Morrison asked Mr. DeJear to show his hands. When Mr. DeJear did not comply, Officer Morrison drew his weapon and yelled the command for Mr. DeJear to show his hands. When Mr. DeJear again did not comply, Officer Morrison yelled the command again. At that point, Mr. DeJear complied—showing the officer his hands. Officer Morrison asked what Mr. DeJear had been stuffing, and Mr. DeJear replied, "Some weed." Id. at 31.

The officers arrested Mr. DeJear, placed him in handcuffs, and searched his car. They found four bags of marijuana and a gun.

In February 2007, a federal grand jury returned a three-count indictment against Mr. DeJear, charging him with (1) possession of marijuana with intent to distribute it; (2) possession of a firearm in furtherance of a drug trafficking crime; and (3) being a felon in possession of a firearm. Prior to trial, Mr. DeJear filed a motion to suppress.

In support of his motion, Mr. DeJear argued that Officer Morrison lacked reasonable suspicion to detain him (by pointing his gun at him and telling him to show his hands). Secondly, he argued that Officer Morrison violated his Fifth Amendment rights by asking him the question about what he was stuffing without first giving Mr. DeJear proper Miranda warnings. Finally, Mr. DeJear contended that the officers' search of the car (which revealed the marijuana and the gun) violated the Fourth Amendment because it was conducted without a warrant.

The district court rejected all three arguments. As to the initial detention, the district court said:

Before he could initiate the voluntary contact, the encounter escalated into a Terry stop. Officer Morrison noticed [Mr. DeJear's] unusual actions, the stuffing of an item or items into the space between the seat back and the seat bottom, and his nervousness. [Mr. DeJear's actions] coupled with his refusal to show his hands, considered in conjunction with Officer Morrison's knowledge regarding the high incidence of crime, including the dealing of narcotics, in this area, were sufficient to give Officer Morrison reasonable suspicion that [Mr. DeJear] was engaged in criminal activity.

Rec. vol. I, doc. 20, at 3-4 (Order filed April 30, 2007).

Second, as to Officer Morrison's question about "stuffing," the district court applied the exception to Miranda set forth in New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). The district court stated that, in Quarles, "the Supreme Court crafted a `narrow exception' so that in certain situations a police officer may question a suspect in custody before giving a Miranda warning without running afoul of the constitution." Rec. vol. I, doc. 20, at 4-5. In order to fall within the exception, the question must arise out of "an objectively reasonable need to protect the police or the public from any immediate danger associated with [a] weapon." Id. at 5 (quoting Quarles, 467 U.S. at 659 n. 8, 104 S.Ct. 2626). "The exception allows officers to `follow their legitimate instincts when confronting situations presenting a danger to the public safety.'" Id. (quoting Quarles, 467 U.S. at 659, 104 S.Ct. 2626). In the Supreme Court's view, "`[w]e think police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.'" Id. (quoting Quarles, 467 U.S. at 658-59, 104 S.Ct. 2626).

Applying Quarles to the facts here, the district court found:

The question asked by Officer Morrison addressed a real and substantial risk to the safety of the officers. Indeed, although [Mr. DeJear] did not admit to stuffing a gun, there was a handgun in the car, available to the other occupants to be used against the officers.

Id. at 5.

Finally, the court ruled that because there was probable cause to arrest Mr. DeJear (once he admitted that he was stuffing "some weed" into the seat), there was probable cause to search the car and no warrant was needed. The court relied on the Supreme Court's holding in Thornton v. United States, 541 U.S. 615, 623, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004) that "`[o]nce an officer determines that there is probable cause to make an arrest, it is reasonable to allow officers to ensure their safety and to preserve evidence by searching the entire passenger compartment.'" Rec. vol. I, doc. 20, at 6 (quoting Thornton, 541 U.S. at 623, 124 S.Ct. 2127).

After the district court denied the motion to suppress, the case proceeded to trial. A jury acquitted Mr. DeJear of the first two counts of the indictment (possession of marijuana with the intent to distribute and possession of a firearm in furtherance of a drug trafficking crime). It convicted him of the lesser-included offense of possession of marijuana and being a felon in possession of a firearm.

The district court sentenced Mr. DeJear to a term of 24 months' imprisonment on the possession of marijuana count and to a concurrent term of 120 months' imprisonment on the felon-in-possession count. The court also imposed concurrent terms of one and three years' supervised release.

II. DISCUSSION

Mr. DeJear now argues that the district court erred in denying his motion to suppress. In reviewing the district court's decision, we examine its factual findings for clear error and view the evidence in the light most favorable to the government. See United States v. Patterson, 472 F.3d 767, 775 (10th Cir.2006). We review de novo the reasonableness of a search or seizure under the Fourth Amendment. United States v. Lyons, 510 F.3d 1225, 1234 (10th Cir.2007). The credibility of witnesses, the weight accorded to evidence, and the reasonable inferences drawn therefrom fall within the province of the district court. United States v. Kimoana, 383 F.3d 1215, 1220 (10th Cir. 2004).

A. Reasonable Suspicion for the Initial Detention

Mr. DeJear first argues that Officer Morrison lacked reasonable suspicion to detain him. He observes that the officer had not received any information indicating that illegal activity was occurring. Moreover, as they first approached the scene, none of the officers saw anything suspicious. "In sum, officers saw three people in a car lawfully parked in a private residence in a high crime area." Aplt's Br. at 18.

Mr. DeJear acknowledges that Officer Morrison saw him make stuffing movements toward the seat. But, he contends, these furtive movements were also insufficient to establish reasonable suspicion. He cites a Tenth Circuit decision, United States v. Humphrey, 409 F.2d 1055, 1059 (10th Cir.1969), which contains the statement that "the allegedly furtive movements alone establish nothing." Mr. DeJear also invokes a district court case, United States v. Smith, 614 F.Supp. 25, 28 (D.D.C.1984), in which an officer saw a driver make furtive movements as though trying to hide something under the seat. Mr. DeJear observes that the furtive movements were viewed by the D.C. district court as part of the totality of the circumstances that supported reasonable suspicion but that the furtive movements were not sufficient, standing alone, to establish such suspicion.

Mr. DeJear's arguments are not persuasive. Under the ...