U.S. v. Ringold, No. 02-3251.

• Decision Date: 15 July 2003
• Docket Number: No. 02-3254.,No. 02-3251.
• Citation: 335 F.3d 1168
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tony A. RINGOLD; Ronald A. Brown, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

335 F.3d 1168

UNITED STATES of America, Plaintiff-Appellee, v. Tony A. RINGOLD; Ronald A. Brown, Defendants-Appellants.

No. 02-3251.

No. 02-3254.

United States Court of Appeals, Tenth Circuit.

July 15, 2003.

Lanny D. Welch, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with him on the brief), Wichita, KS, for Plaintiff-Appellee United States of America.

Paul S. McCausland, Young, Bogle, McCausland, Wells & Blanchard, P.A. Wichita, Kansas for Defendant-Appellant Ringold.

Timothy J. Henry, Assistant Federal Public Defender for the District of Kansas (David J. Phillips, Federal Public Defender, with him on the brief), for Defendant-Appellant Brown.

Before SEYMOUR and KELLY, Circuit Judges, and SHADUR, District Judge.^*

SHADUR, District Judge.

Tony A. Ringold ("Ringold") and Ronald A. Brown ("Brown") were indicted on January 30, 2002 for possession with the intent to distribute 179 pounds of marijuana in violation of 21 U.S.C. § 841(a)(1). Defendants filed a joint motion to suppress the evidence of the marijuana on the ground that it had been obtained in violation of their Fourth Amendment rights. After an evidentiary hearing the district court denied that motion (Nos. 02-10008-01 and 02-10008-02, 2002 WL 539042 (D.Kan. Apr.9, 2002)). [cited "Opinion at — "] Each defendant then entered a guilty plea pursuant to Fed.R.Crim.P. 11(a)(2), conditioned on his right to appeal the suppression ruling. We affirm the district court in both cases.

Facts

On January 15, 2002 Kansas Highway Patrol Sergeant Travis Phillips ("Phillips") was driving a marked Kansas highway patrol vehicle eastbound on Interstate 70. He was accompanied by WaKeeney Police Department Officer Jason Walt ("Walt"). Near milepost 140 in Trego County, Phillips observed an eastbound Chevrolet Blazer in the right hand lane with California license plates. Following behind the Blazer, Phillips ran a check on the license plate and learned that it was a rental car.

After the plate checked out, Phillips drove the patrol car alongside the Blazer for a few moments before passing it. He saw two African-American males looking straight ahead down the road (Brown was driving and Ringold was in the front passenger seat) and noted a "tree-type" air freshener hanging from the rearview mirror. Phillips pulled ahead of the Blazer and moved back into the right hand lane. When he was about a quarter to a half mile ahead of the Blazer, Philips slowed his car as he saw the Blazer turn off of the Interstate at Ellis, Kansas. Telling Walt that he wanted to see why the Blazer had left the Interstate, Philips made a u-turn, also got off at the Ellis exit and observed the Blazer pulling into Shuster's Service Station, a gas station and convenience store.

At the station Brown parked the Blazer on the outside of the pump island nearest the store, paid the attendant and then went to the bathroom while Ringold began pumping gas into the car. There were no other cars in front of or behind the Blazer. Phillips pulled up to a parking area adjacent to the service station, parking the patrol car at an angle partially outside a spot so that his car was pointing somewhat toward the front door of the service station. Phillips' car was at least 15 or 20 feet northeast of the Blazer and was not blocking it from moving forward or backward.

After getting out of the patrol car Phillips and Walt bought soft drinks from a machine in front of the station and walked over to Ringold, who was putting gas in the car. Phillips stood on one side of Ringold and engaged him in conversation, while Walt stood in the vicinity where he could hear, but he did not say anything. Both Phillips and Walt were armed, but their guns were holstered. Defendants and the two officers were of roughly the same physical stature.

After the two discussed the cold weather and snow, Phillips asked Ringold where he was from and whether he was on vacation. Ringold responded that he was from Los Angeles and was driving through Kansas on the way to Philadelphia to attend his grandmother's funeral. During that discussion Brown came out of the service station and heard Ringold's comment about the funeral before checking the pump and going back to the station to get his change.

Phillips told Ringold that he sometimes got reports of illegal drugs or weapons being transported from places like Los Angeles to Philadelphia and asked Ringold if he were carrying anything like that. After Ringold denied that he had any drugs or guns, Phillips asked Ringold if he could take a look in the car. Ringold said that he could do so. Ringold opened the side door of the Blazer, but Phillips asked if he could look in the hatchback at the rear of the car. Either Ringold or Brown, who had returned to the car from the service station, pushed a button to unlock the back of the Blazer. Once the hatchback was open, Phillips found two large suitcases and asked Ringold if he could look inside them. One of the suitcases was locked, and when Ringold indicated that he did not have a key Phillips asked if he could break the lock. Ringold said "yes." When Phillips cut the lock and opened the suitcase he found a large bale of marijuana inside. Further searching revealed three more large bales of marijuana.

After the ensuing criminal charges were brought against both defendants, each moved to suppress the evidence of the marijuana. Denying that motion, the district court found that Phillips' encounter with defendants did not amount to a seizure and that they had voluntarily consented to the search of the Blazer. Defendants appeal that ruling.

Standard of Review

In reviewing the denial of a motion to suppress, we view the evidence in the light most favorable to the district court's determination (United States v. Williams, 271 F.3d 1262, 1266 (10th Cir.2001)). To that end we will uphold the district court's factual findings unless they are clearly erroneous (id.).

By contrast, the ultimate determination of whether the police action at issue was reasonable under the Fourth Amendment is a question of law that we review de novo (id.). Although the proponent of a motion to suppress bears the burden of proof in general terms (United States v. Moore, 22 F.3d 241, 243 (10th Cir.1994), citing Rakas v. Illinois, 439 U.S. 128, 130-31 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)), whenever the government relies on a defendant's consent to validate a search it bears the burden of proving the consent valid (United States v. Pena, 143 F.3d 1363, 1366 (10th Cir.1998)).

Voluntariness of the Encounter

As United States v. Torres-Guevara, 147 F.3d 1261, 1264 (10th Cir.1998)(internal quotation marks and citation omitted) has recounted:

This court has previously identified three categories of police-citizen encounters: (1) consensual encounters which do not implicate the Fourth Amendment; (2) investigative detentions which are Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity; and (3) arrests, the most intrusive of Fourth Amendment seizures and reasonable only if supported by probable cause.

Defendants argue that their encounter with Phillips was an investigative detention that was not supported by reasonable suspicion in violation of the Fourth Amendment.

Over a decade ago Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) reconfirmed the operative standard that still applies today:

We adhere to the rule that, in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.

That inquiry is an objective one. As United States v. Laboy, 979 F.2d 795, 798 (10th Cir.1992), citing Bostick, has explained:

As long as a reasonable innocent person, as opposed to a person knowingly carrying contraband, would feel free to leave, such encounters are consensual and need not be supported by reasonable suspicion of criminal activity.

We have identified various factors as relevant to the Bostick totality-of-the-circumstances approach. United States v. Hill, 199 F.3d 1143, 1147-48 (10th Cir. 1999) has reiterated a previously-provided nonexhaustive list:

the threatening presence of several officers; the brandishing of a weapon by an officer; some physical touching by an officer; use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory; prolonged retention of a person's personal effects such as identification and plane or bus tickets; a request to accompany the officer to the station; interaction in a nonpublic place or a small, enclosed place; and absence of other members of the public.

But as Hill, id. at 1148 made clear, no single factor can dictate whether a seizure occurred. Accordingly, "[w]e have steadfastly refused to view any one of these factors as dispositive" (id., quoting United States v. Glass, 128 F.3d 1398, 1406 (10th Cir.1997)).

Defendants do not dispute that objective and fact-specific approach — they argue instead that the totality of the circumstances demonstrates that a reasonable person in either defendant's position would not have felt free to terminate the encounter or to ignore Phillip's questions. We disagree under the controlling caselaw. Considering all of the circumstances in those terms, we conclude that the interaction between Phillips and defendants amounted to a consensual encounter that did not implicate the Fourth Amendment and that defendants' consent to the search of their car was voluntary.

It is undisputed that Phillips and Walt approached defendants after their vehicle was already stopped and in the public space outside the service station, in full view of other patrons. Although Phillips and Walt...