United States v. Michael Lynn Cash

• Decision Date: 04 November 2013
• Docket Number: Nos. 12–7072,12–7079.,s. 12–7072
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Michael Lynn CASH, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

733 F.3d 1264

UNITED STATES of America, Plaintiff–Appellee,

v.Michael Lynn CASH, Defendant–Appellant.

Nos. 12–7072, 12–7079.

United States Court of Appeals,Tenth Circuit.

Nov. 4, 2013.

William D. Lunn, Tulsa, OK, appearing for Appellant.

Christopher Wilson, Assistant United States Attorney (Mark F. Green, United States Attorney, Shannon L. Henson and Linda A. Epperley, Assistant United States Attorneys, on the brief), Office of the United States Attorney for the Eastern District of Oklahoma, Muskogee, OK, appearing for Appellee.

Before KELLY, MATHESON, and BLACKBURN,^* Circuit Judges.

MATHESON, Circuit Judge.

On March 22, 2011, Defendant–Appellant Michael Lynn Cash was pulled over after Officer Timothy McEachern observed him commit a traffic violation. During the stop, Officer McEachern saw in plain view an artificial bladder device. He also learned that Mr. Cash was on the way to take a drug test for Steve Brittingham, his federal probation officer. Suspecting that Mr. Cash was planning on using the bladder device to defeat a urine drug test—a violation of Oklahoma state law—Officer McEachern detained him until Officer Brittingham arrived at the scene.

Shortly after Officer Brittingham arrived, he observed a firearm in plain view in the back seat of Mr. Cash's car—a clear violation of the terms of Mr. Cash's supervised release. A scuffle ensued in an effort to take Mr. Cash into custody and to render the firearm safe. Mr. Cash was eventually subdued and placed in the back of Officer McEachern's cruiser. He was not given warnings under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The officers conducted an inventory search of Mr. Cash's vehicle and found methamphetamine, Lortab, and used syringes in addition to the firearm. In the meantime, Mr. Cash called Officer Brittingham over to the police cruiser and initiated a brief conversation with him. During this interaction, Mr. Cash told Officer Brittingham that he had been dealing drugs and feared for his life.

A federal grand jury indicted Mr. Cash on three counts: possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A); and as a felon in possession of firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Mr. Cash moved to suppress both (1) the physical evidence obtained from the search and (2) his statements to Officer Brittingham. The district court denied both motions, holding that neither Mr. Cash's Fourth nor Fifth Amendment rights were violated. Mr. Cash was convicted on all counts after a jury trial. He now appeals the district court's denial of both motions to suppress. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

Because Mr. Cash appeals “from the denial of motions to suppress, we recite the facts in the light most favorable to the government and accept the district court's findings of fact unless they are clearly erroneous.” United States v. Briggs, 720 F.3d 1281, 1283 (10th Cir.2013).

A. Factual History

At approximately 3:30 p.m. on March 22, 2011, Officer McEachern, a patrol officer with the City of Durant Police Department, stopped Mr. Cash for a routine traffic violation. Roughly thirty minutes before the stop, Officer McEachern had been advised that several narcotics officers observed Mr. Cash's vehicle—a green Jeep Liberty—outside a known drug house. Officer McEachern was instructed to “develop his own [probable cause]” and pull Mr. Cash over. ROA, Vol. I at 64. At the time, Officer McEachern was aware that the vehicle belonged to Mr. Cash, and he learned through safety bulletins that Mr. Cash was known to use drugs and possess guns. Officer McEachern also knew that Mr. Cash had previously been arrested for both possession of methamphetamine with intent to distribute and public intoxication.

When Officer McEachern observed the traffic violation, he activated the lights on his patrol cruiser (“cruiser”).¹ After stopping Mr. Cash's vehicle, Officer McEachern notified the police dispatcher and approached Mr. Cash's vehicle. At the suppression hearing, Officer McEachern testified that he told Mr. Cash why he had been stopped and then asked for his driver's license and insurance verification. He also testified that he observed in plain view on the front passenger seat a device consisting of an elastic band with a rubber bladder, a tube, and a clamp, which he recognized from his prior experience as a device for defeating a urine drug test (“bladder device”).

According to Officer McEachern, Mr. Cash told him that he was late for a urinalysis appointment with his federal probation officer, Steve Brittingham. Officer McEachern observed that Mr. Cash's behavior—“jittery, moving about, talking rapidly, seem[ing] very nervous”—was consistent with being under the influence of a controlled substance. ROA, Vol. I at 66.

Roughly 34 seconds into the video, Captain Chris Cicio, Officer McEachern's backup, arrived at the scene. Shortly thereafter, at 47 seconds into the video, Officer McEachern returned to his patrol cruiser to run a license check and fill out a citation. During this time, Officer McEachern could see Mr. Cash “fidgeting around” in the vehicle through Mr. Cash's rear window. ROA, Vol. I at 66. Based on Officer McEachern's prior experience, this behavior raised his concern for officer safety.

Approximately 4 minutes, 5 seconds into the video—after completing the citation and verifying that Mr. Cash's license, tag, and warrant checks were clear—Officer McEachern returned to the driver's side window of Mr. Cash's vehicle while Captain Cicio approached the passenger window. Rather than give Mr. Cash the citation,however, Officer McEachern asked Mr. Cash to exit the vehicle. Mr. Cash refused, telling Officer McEachern either to write him a ticket or let him go. He also informed Officer McEachern that he had to get to the Kiamichi Counseling Center for a drug test. Officer McEachern believed this statement conflicted with Mr. Cash's earlier statement that he was going to see Officer Brittingham. Mr. Cash also denied having any drugs or guns in the vehicle. When asked if Officer McEachern could search his vehicle, Mr. Cash declined consent, stating that he was already late.

Approximately 5 minutes, 47 seconds into the video, Officer McEachern determined that he needed Officer Brittingham at the scene. He returned to his car and radioed dispatch. Officer McEachern testified that he suspected that Mr. Cash was on his way to cheat a drug test (a violation of Oklahoma state law) and that Mr. Cash was under the influence of narcotics. Officer McEachern also testified that he wanted Officer Brittingham to handle any parole violation; he stated that he would have given Mr. Cash a citation and let him go if Officer Brittingham had not come to the scene.

While waiting for Officer Brittingham's arrival—approximately 11 minutes, 30 seconds into the video—Officer McEachern convinced Mr. Cash to get out of the vehicle and patted him down for weapons. At this time, Officer McEachern informed Mr. Cash that he had seen the bladder device and asked Mr. Cash to sit on the curb behind the vehicle.

At 18 minutes, 45 seconds into the video, Officer Brittingham arrived. The three officers—McEachern, Cicio, and Brittingham—approached the passenger side of Mr. Cash's vehicle and looked in the unopened window. Officer Brittingham asked Mr. Cash to retrieve the device from the front seat. The passenger side door was locked, so Mr. Cash—at approximately 23 minutes, 29 seconds into the video—entered the driver's side of the vehicle, rolled down the passenger window, and handed Officer Brittingham the bladder device. Mr. Cash claimed that he did not know what the device was, why it was in his car, or who put it there. Officer Brittingham placed the device on top of Mr. Cash's car and called his superior to advise him of the situation.²

At this time, Officer McEachern noticed Mr. Cash pull a clear, Murine-brand eye drop bottle with yellow liquid inside from his pocket while he was searching for a cigarette. He asked Mr. Cash what was in the bottle, and Mr. Cash responded that it was Visine. When asked to hand it over to Office McEachern, Mr. Cash declined and stuck it back in his pocket. Officer McEachern testified that he suspected the bottle contained urine for use with the bladder device.

Still on the phone, Officer Brittingham observed what he thought to be the butt of a pistol under a gym bag on the back seat of Mr. Cash's vehicle. He motioned for Captain Cicio to come to him, communicated what he had just seen, and asked Captain Cicio to confirm the presence of a gun. After looking into the back seat, Captain Cicio yelled “gun!” He drew his service weapon and instructed Mr. Cash not to move. The officers told Mr. Cash to get out of the vehicle. After he failed to comply—at approximately 25 minutes, 30 seconds into the video—Officer McEachern pulled Mr. Cash out himself. Mr. Cash resisted by refusing to put his hands behind his back, and a struggle ensued.

Officer McEachern, Captain Cicio, and Officer Blackshear—who had recently arrived at the scene—forced Mr. Cash's arms behind his back. Officer McEachern repeatedly employed a technique called an “elbow strike” against Mr. Cash's upper body, including his head. Two other officers arrived and tackled Mr. Cash around the legs. Mr. Cash was eventually subdued, handcuffed, and put into the back of Officer McEachern's police cruiser. Over the course of the scuffle, Mr. Cash was hit “several” times. ROA, Vol. II at 148.

Officer McEachern then retrieved a Beretta .22 LR pistol from underneath the gym bag in the backseat of Mr. Cash's vehicle. The pistol's chamber was loaded, the hammer was cocked, the safety was off, and the magazine had six rounds in it. After Officer McEachern rendered the firearm...