U.S. v. Muldrow, 93-3138

• Decision Date: 25 March 1994
• Docket Number: No. 93-3138,93-3138
• Citation: 19 F.3d 1332
• Parties: 40 Fed. R. Evid. Serv. 675 UNITED STATES of America, Plaintiff-Appellee, v. Lealon MULDROW, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1332

19 F.3d 1332

40 Fed. R. Evid. Serv. 675

UNITED STATES of America, Plaintiff-Appellee, v. Lealon MULDROW, Defendant-Appellant.

No. 93-3138.

United States Court of Appeals, Tenth Circuit.

March 25, 1994.

Leon J. Patton (Randall K. Rathbun, U.S. Atty., with him on the brief), Asst. U.S. Atty., Kansas City, KS, for plaintiff-appellee.

John C. Donham, Overland Park, KS, for defendant-appellant.

Before BALDOCK, ALDISERT, ^* and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Mr. Muldrow appeals his jury conviction of possession of cocaine base ¹ within 1,000 feet of a school, with the intent to distribute. He contends the trial court improperly denied the motion to suppress physical evidence, improperly allowed expert testimony, and erred in failing to grant him a new trial. He also contends the evidence was insufficient to establish his guilt. We affirm.

BACKGROUND

While investigating a burglary, Officer Garner saw two men, a white man carrying a paper sack and a black man, walk past him. After passing the Officer, the two men started to run. He followed them and discovered the black man, Defendant, trying to hide in a nearby garbage area. Officer Garner asked Defendant several innocuous questions such as what was he doing there and where did he live. Defendant gave inconsistent and evasive replies. Defendant gave a name, which turned out to be false, and said he had no identification with him. At Officer Garner's request, Defendant got into the police car. Defendant was not placed under arrest, was not handcuffed, and was not patted down.

Officer Garner, with Defendant along, drove back to the nearby burglary scene. There they met Officer Sutton who confirmed there had been a burglary. Officer Garner asked Defendant about the white man Officer Garner had seen him with earlier and Defendant said he did not know what the Officer was talking about. Officer Garner then tried to verify Defendant's name and address by calling the dispatcher, a process that required them to wait for dispatch to obtain information. While they were waiting for a reply, Officer Sutton asked Defendant, who was then out of the car, if he knew anything about the burglary. Officer Sutton testified Defendant said: he did not know about it; "You can look anywhere on me;" and "I don't have anything." Thus invited, Officer Sutton searched him and found a driver's license listing its owner as a white male named James Sevart. Defendant gave an implausible explanation for having the license. Shortly after obtaining the driver's license, Officer Sutton found and arrested Mr. Sevart, who had a paper grocery sack full of cocaine. Mr. Sevart pointed out Defendant, still in Officer Garner's car, and told Officer Garner that Defendant had given him the bag of cocaine to hold. Officer Garner then arrested Defendant.

Neither Officer's written report mentions Defendant's consent to be searched. Officer Sutton's report erroneously states, "After Officer Garner advised [Defendant] that he was under arrest for burglary, I conducted a search of the party incident to a lawful arrest."

After he was granted immunity, Mr. Sevart testified he and Defendant obtained the

cocaine by burglarizing an apartment belonging to a friend of Defendant's sister.

I. Suppression of Evidence

Defendant challenges the trial court's refusal to suppress evidence obtained through the driver's license because, he contends, it was found after an arrest without probable cause. He also contends the trial court erred in finding voluntary consent because (1) the Officers lied, as shown by discrepancies between their written reports and their testimony at trial, and (2) common sense shows Defendant would not have consented to a search.

In reviewing the trial court's denial of a motion to suppress, we "accept the trial court's findings of fact, unless clearly erroneous, and ... consider the evidence in the light most favorable to the Government." United States v. Morgan, 936 F.2d 1561, 1565 (10th Cir.1991) (quoting United States v. McAlpine, 919 F.2d 1461, 1463 (10th Cir.1990)), cert. denied, --- U.S. ----, 112 S.Ct. 1190, 117 L.Ed.2d 431 (1992). However, the ultimate determination of the reasonableness of a search under the Fourth Amendment is a conclusion of law we review de novo. Id. at 1565-66.

For the purpose of Fourth Amendment analysis, we have distilled rulings of the United States Supreme Court to define "three categories of police/citizen encounters": "voluntary cooperation ... in response to non-coercive questioning," Terry-type stop, and arrest. United States v. Cooper, 733 F.2d 1360, 1363 (10th Cir.), cert. denied, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.Ed.2d 847 (1984). The first category, a police/citizen encounter where there is voluntary cooperation by the citizen in response to noncoercive questioning, is not at issue in this case because neither side alleges there was such an encounter. Thus, we must decide if this was a Terry-type stop or an arrest.

The standards [for a Terry-type stop] are set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Most courts characterize this as a brief, non-intrusive detention during a frisk for weapons or preliminary questioning.... This is considered a seizure of the person within the meaning of the Fourth Amendment, but need not be supported by probable cause. In order to justify an investigatory stop, the officer need have only specific and articulable facts sufficient to give rise to reasonable suspicion that a person has committed or is committing a crime.

The final category is an arrest which is characterized by highly intrusive or lengthy search or detention. An arrest is justified only when there is probable cause to believe that a person has committed or is committing a crime.

Id. (citations and internal quotations omitted). The determination of whether an individual is detained pursuant to a valid investigatory stop or is actually under arrest must be based upon the facts of the case. Id. at 1364.

"In evaluating the reasonableness of an investigative stop, courts are to examine 'whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.' " United States v. Santillanes, 848 F.2d 1103, 1107 (10th Cir.1988) (quoting United States v. Recalde, 761 F.2d 1448, 1454 (10th Cir.1985)). Under the exclusionary rule, evidence obtained in violation of the Fourth Amendment's prohibition against "unreasonable searches and seizures" is inadmissible at trial. However, where there has been seizure and detention of an individual in violation of the Fourth Amendment, the individual's subsequent consent to search may, "under certain circumstances, [break the causal connection between the illegal action and the consent and thereby] remove the taint of an illegal detention." Recalde, 761 F.2d at 1457 (causal connection between illegal detention and consent unbroken where police had no probable cause to extend an initially proper traffic stop). If there has been a stop in violation of the Fourth Amendment, the government has a heavier burden to carry in establishing subsequent voluntary consent than when consent is given after a permissible stop. Id.

Consent to search is voluntary if it is not the product of express or implied duress or coercion,. Schneckloth v. Bustamonte, 412 U.S. 218, 227-28, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854 (1973). To establish voluntary consent

(1) There must be clear and positive testimony that consent was "unequivocal and specific" and "freely and intelligently" given; (2) the government must prove consent was given without duress or coercion, express or implied; and (3) the courts indulge every reasonable presumption against the waiver of fundamental constitutional rights and there must be convincing evidence that such rights were waived.

United States v. Abbott, 546 F.2d 883, 885 (10th Cir.1977) (citing Villano v. United States, 310 F.2d 680, 681 (10th Cir.1962)). There is no bright line test for determining consent; each case is a question of fact to be determined from the totality of circumstances. Schneckloth, 412 U.S. at 226-27, 93 S.Ct. at 2047.

In this case, we must first determine whether Defendant was under arrest or was detained pursuant to a valid Terry stop at the time he consented to be searched and was found to be carrying another person's driver's license. Defendant argues his detention was an "arrest" based upon two phrases contained in reports written by the Officers after the incident. Officer Sutton's report states he searched Defendant after he had been placed under "lawful arrest" by Officer Garner. Officer Garner's report states he placed Defendant in "custody" when he initially questioned Defendant by the garbage area and asked him to get into the police car. The gist of this argument is that the Officers' testimony at the suppression hearing should be disregarded as lies because their written reports show Defendant was under arrest before he was searched.

Despite Officer Sutton's report, the record establishes Defendant was detained pursuant to a valid investigatory stop of the type permitted under Terry when he consented to the search. There was a report of a crime, Defendant was seen running from the area, and was found trying to hide in a nearby garbage area. These circumstances justified the Officer's action at the time he stopped Defendant to ask him who he was and what he was doing. When questioned, Defendant gave inconsistent or evasive answers to the simplest questions and said he had no identification. These facts, along with the reasonable inferences drawn therefrom, gave rise to reasonable and articulable suspicion that Defendant had been engaged in criminal activity. Back at the burglary site Officer Garner confirmed there was a crime, and Defendant denied knowledge of a companion even though the Officer had seen him...