U.S. v. Evans, No. 90-6304

CourtU.S. Court of Appeals — Tenth Circuit
Writing for the CourtBefore TACHA, BARRETT and BRORBY; BRORBY
Citation937 F.2d 1534
Docket NumberNo. 90-6304
Decision Date08 July 1991
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Daryl Lee EVANS, Defendant-Appellant.

Page 1534

937 F.2d 1534
UNITED STATES of America, Plaintiff-Appellee,
v.
Daryl Lee EVANS, Defendant-Appellant.
No. 90-6304.
United States Court of Appeals,
Tenth Circuit.
July 8, 1991.

Page 1535

Leslie Kaestner, Asst. U.S. Atty. (Timothy D. Leonard, U.S. Atty., with her on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Jerome T. Kearney, Asst. Federal Public Defender, Oklahoma City, Okl., for defendant-appellant.

Before TACHA, BARRETT and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

This appeal arises from the district court's denial of Defendant Daryl Lee Evans's, motion to suppress evidence. Defendant states the issues presented for review as follows: "Whether the district court erred in denying appellant's motion to suppress evidence seized pursuant to an unlawful

Page 1536

employment of a drug courier profile and unlawful Terry investigation;" and "[w]hether the district court erred when it denied appellant's motion to suppress evidence seized pursuant to an unlawful search of the carry-on luggage without a search warrant." We affirm.

I.

On April 25, 1990, Detective Sergeants Gary Eastridge and Glenn Ring of the Oklahoma City Police Department were working at the Union Bus Station in Oklahoma City as part of an interdiction program to detect and deter the arrival of drugs into the area. At approximately 2:00 p.m. that day, the officers observed a bus, which had originated in Los Angeles, arrive at the station and its passengers disembark. Among the passengers observed by the officers was Daryl Lee Evans. Mr. Evans was carrying a gray, soft sided bag. As Mr. Evans proceeded through the terminal, the officers noticed him scanning the area and acting in a very nervous manner. Mr. Evans then placed the gray bag he was carrying between his feet as he watched the luggage being unloaded from the bus.

Based on these observations and Sergeant Ring's experience and training in detecting drug couriers, the officers approached Mr. Evans, identifying themselves as narcotics officers, asked Mr. Evans for identification, and explained their reason for speaking with him.

Mr. Evans produced his identification while the conversation ensued but became increasingly nervous. Sergeant Ring then asked if Mr. Evans would allow the officers to search his carry-on bag. Mr. Evans told the officers he did not have the keys to the bag but subsequently produced two claim tags for other luggage that he claimed contained the keys. Mr. Evans gave the tags to Sergeant Eastridge, who attempted, but was unable, to locate the other luggage. The officers continued their conversation with Mr. Evans. Sergeant Ring stated he thought it was unusual that Mr. Evans did not have the keys to the bag on his person, whereupon Sergeant Ring asked Mr. Evans if he could pat him down to try and find the keys, and Mr. Evans consented. Both officers then proceeded to pat down Mr. Evans, and Sergeant Eastridge discovered a lump near the calf of Mr. Evans's leg. When Sergeant Eastridge inquired about the lump, Mr. Evans responded that it was "weed."

Following this, Mr. Evans was advised he was under arrest and was taken to an interior office at the bus station. Sergeant Ring then informed Mr. Evans that due to his arrest his carry-on bag would be inventoried before submitting it to the Oklahoma City property room according to department policy. Sergeant Ring then pried open a zipper on the bag and removed from the compartment a taped plastic bundle. Sergeant Ring noticed the bundle was sealed and packaged like kilograms of cocaine he had seized in the past. Sergeant Ring then asked Mr. Evans if there were any additional narcotics, and Mr. Evans said there were two other packages similar to the one already discovered. Sergeant Ring then asked Mr. Evans if he would consent to the officers opening the taped bundle. At this point, Mr. Evans advised that he wanted the search to cease until the officers obtained a search warrant, and the search ceased.

Mr. Evans was then transported to the police station, and Sergeant Ring and Sergeant Eastridge sought and secured two search warrants--one for the taped bundle, and one for the other compartment of the bag. After obtaining these warrants, all three bundles were opened. The contents tested positive for the substance cocaine hydrochloride.

II.

In reviewing the denial of a defendant's motion to suppress evidence, we accept the trial court's findings of fact, unless clearly erroneous, and consider all the evidence in a light most favorable to the Government. United States v. McAlpine, 919 F.2d 1461, 1463 (10th Cir.1990). However, ultimate determinations of reasonableness under the Fourth Amendment, and other questions of law, are reviewed de

Page 1537

novo. United States v. Butler, 904 F.2d 1482, 1484 (10th Cir.1990).

Mr. Evans first contends his Fourth Amendment rights were violated when the officers at the Union Bus Station approached him based on a drug courier profile. Before addressing the lawfulness of using a drug courier profile, we must determine whether any Fourth Amendment protection is due Mr. Evans under these circumstances. This court has previously identified three categories of encounters between police and citizens, each representing different levels of Fourth Amendment entitlement. We described these categories as follows:

The first is referred to as a police-citizen encounter and is characterized by the voluntary cooperation of a citizen in response to non-coercive questioning. This has been held to raise no constitutional issues because this type of contract [sic] is not a seizure within the meaning of the Fourth Amendment....

The second...

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41 practice notes
  • U.S. v. Ward, No. 90-2279
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 22, 1992
    ...by reasonable suspicion; and (3) arrests, which are even more intrusive and must be supported by probable cause. United States v. Evans, 937 F.2d 1534, 1537 (10th Cir.1991) (quoting United States v. Cooper, 733 F.2d 1360, 1363 (10th Cir.), cert. denied, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.E......
  • U.S. v. Olivares-Rangel, No. 04-2194.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 11, 2006
    ...court's decision to suppress evidence under the Fourth Amendment is a question of law that we review de novo. United States v. Evans, 937 F.2d 1534, 1536-37 (10th II. Issue on appeal This appeal raises the question of whether evidence of a defendant's identity (including statements, fingerp......
  • IN RE J.M., No. 90-FS-183
    • United States
    • December 30, 1992
    ...Cir. 1990) ("clearly erroneous" standard applied except when "case calls for the formulation of a general rule"); United States v. Evans, 937 F.2d 1534, 1538 (10th Cir. 1991); United States v. Valdez, 931 F.2d 1448, 1451 (11th Cir. 1991). 4. See note 5, infra. 5. We do not decide whether co......
  • State v. Jim, A-1-CA-36024
    • United States
    • New Mexico Court of Appeals of New Mexico
    • January 31, 2022
    ...the Fourth Amendment because it complied with the unwritten policy of a sub-unit of a police department); United States v. Evans , 937 F.2d 1534, 1538-39 (10th Cir. 1991) (holding that an inventory search of a locked carry-on bag was reasonable because police inventory search policy require......
  • Request a trial to view additional results
44 cases
  • U.S. v. Olivares-Rangel, No. 04-2194.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 11, 2006
    ...court's decision to suppress evidence under the Fourth Amendment is a question of law that we review de novo. United States v. Evans, 937 F.2d 1534, 1536-37 (10th II. Issue on appeal This appeal raises the question of whether evidence of a defendant's identity (including statements, fingerp......
  • State v. Jim, A-1-CA-36024
    • United States
    • New Mexico Court of Appeals of New Mexico
    • January 31, 2022
    ...the Fourth Amendment because it complied with the unwritten policy of a sub-unit of a police department); United States v. Evans , 937 F.2d 1534, 1538-39 (10th Cir. 1991) (holding that an inventory search of a locked carry-on bag was reasonable because police inventory search policy require......
  • IN RE J.M., 90-FS-183
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 30, 1992
    ...Cir. 1990) ("clearly erroneous" standard applied except when "case calls for the formulation of a general rule"); United States v. Evans, 937 F.2d 1534, 1538 (10th Cir. 1991); United States v. Valdez, 931 F.2d 1448, 1451 (11th Cir. 1991). 4. See note 5, infra. 5. We do not decide whether co......
  • State v. Hansen, 20010100.
    • United States
    • Supreme Court of Utah
    • December 20, 2002
    ...level two encounter involves an investigative detention that is usually characterized as brief and non-intrusive. United States v. Evans, 937 F.2d 1534, 1537 (10th Cir.1991); see also Werking, 915 F.2d at 1407 (noting a level two encounter is an investigative detention or "Terry stop"). Alt......
  • Request a trial to view additional results

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