United States v. Kinzalow

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 5, 2007
• Docket: 06-6223
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS June 5, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee, No. 06-6223 v. (D.C. No. CR -05-122-1-F) (W .D. Okla.) BRITT EDW ARD KINZALOW ,

Defendant - Appellant.

OR D ER AND JUDGM ENT *

Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges. **

Defendant-Appellant Britt Edward Kinzalow appeals the district court’s

denial of his motion to suppress evidence obtained during an inventory search of

his vehicle by Oklahoma City police on June 1, 2005. See United States v.

Kinzalow, 2005 W L 2978331, at *2 (W .D. Okla. Nov. 7, 2005). M r. Kinzalow

entered a conditional guilty plea to one-count of being a felon in possession of a

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument. firearm, 18 U.S.C. § 922(g)(1), and was sentenced to 188 months’ imprisonment

followed by five years’ supervised release. He now appeals the denial of his

motion to suppress. See Fed. R. Crim. P. 11(a)(2) (conditional plea). Our

jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

Background

On June 1, 2005, Oklahoma City police officers proceeded to a duplex

apartment building to execute an arrest warrant for M iron M oaning (“M iron”), a

known gang member wanted in connection with a drive-by shooting. Based on

information provided by an informant, police believed that M iron was located at

Apartment B of the duplex. The apartment had been rented by Loriel Soto (the

girlfriend of M iron’s brother). The police believed that M iron routinely carried a

firearm and knew that the duplex was located within an area that had a high

incidence of serious crimes including murder, rape, robbery, and manufacturing

and trafficking in drugs.

W hen police arrived at the duplex, a Dodge truck was parked in the

driveway and was the only vehicle present. As two officers approached the

duplex, they observed M iron walking out of a back bedroom and into the living

room area. W hen the officers entered, M iron left the living room and attempted

to return to the bedroom. One of the officers, Officer Coniglione, followed M iron

into the bedroom to effect an arrest. Officer Coniglione then observed what he

-2- believed was a small plastic bag containing marijuana on a table beside the bed.

The other officer, Officer W alsh, entered the duplex behind Officer Coniglione

and immediately observed Antonio M oaning (M iron’s brother), M s. Soto, and M r.

Kinzalow sitting in the living room. To secure the premises, Officer Walsh

ordered them to get on the ground and handcuffed them.

Because the officers did not possess a search warrant for the premises, they

requested and obtained M s. Soto’s written permission to search the apartment for

the w eapon used in the drive-by shooting. During their conversation with M s.

Soto, she informed the officers that she did not like M r. Kinzalow and did not like

him hanging around her boyfriend because M r. Kinzalow often had guns and

drugs with him.

Thereafter, another officer, Officer White, removed A ntonio M oaning, M s.

Soto, and M r. Kinzalow from the apartment while Officer Coniglione searched the

premises. During that search, Officer Coniglione found a handgun in a closet

within the same bedroom where M iron had been arrested. He also found a set of

keys on a table in the living room which had a small pill container containing

eight diazepam (a controlled substance) pills. W hen the officer inquired to whom

the keys belonged, M r. Kinzalow responded that they were his.

Once outside, Officer White asked M r. Kinzalow whether he had any guns,

knives, drugs, or anything sharp that might poke the officer during the pat down.

M r. Kinzalow responded that he had a knife in his left pocket and an ounce of

-3- marijuana in his right pocket. Officer W hite removed both items and completed

the pat-down search. He thereafter arrested M r. Kinzalow and placed him in the

patrol car.

After M r. Kinzalow was arrested, M s. Soto informed the officers that she

did not want his Dodge truck to remain at the duplex and that she had not invited

M r. Kinzalow to her apartment. She did not specifically request that the truck be

impounded or file a trespass complaint. The officers testified that the bed of the

truck was full of M r. Kinzalow ’s personal effects and that the only way to secure

the vehicle and the items it contained was to have it impounded. Thus, pursuant

to Oklahoma City Police Department policy § 183.20(G), the officers impounded

the truck for safekeeping. W hile the truck was still in the driveway of the duplex,

the officers conducted an inventory search of the truck. The inventory search

revealed marijuana and the firearms giving rise to the current charge.

Discussion

The burden of establishing a Fourth Amendment violation lies with the

defendant. United States v. Patterson, 472 F.3d 767, 775 (10th Cir. 2006).

“W hen reviewing the denial of a motion to suppress, we accept the district court's

factual findings unless clearly erroneous, and we review the evidence in the light

most favorable to the government. However, we review de novo the ultimate

determination of reasonableness under the Fourth A mendment because that is a

-4- legal conclusion.” U nited States v. Chavira, 467 F.3d 1286, 1290 (10th Cir.

2006) (citation omitted).

M r. Kinzalow first argues that his initial detention was a violation of his

Fourth Amendment right to be free from unreasonable searches and seizures, and

thus the fruits of the inventory search of his truck, which would not have occurred

but for the unlawful detention, should be suppressed. In Terry v. Ohio, 392 U.S.

1 (1968), the Supreme Court held that law enforcement officials may stop an

individual in the absence of probable cause so long as the official is “able to point

to specific and articulable facts” which lead the official to believe the individual

might be involved in a criminal deed. Id. at 21-22. Thereafter, the C ourt

extended the Terry rule to allow “protective sweeps”— a search of a home

conducted incident to arrest and solely to ensure officer protection— based only

on reasonable suspicion “that the area swept harbored an individual posing a

danger to the officer or others.” See M aryland v. Buie, 494 U.S. 325, 327 (10th

Cir. 1990). W e have since held that Buie also applies to “temporary seizures of

persons (i.e. ‘protective detentions’)” because “the ability to search for dangerous

individuals provides little protection unless it is accompanied by the ability to

temporarily seize any dangerous individuals that are located during the search . . .

.” United States v. M addox, 388 F.3d 1356, 1362 (10th Cir. 2004).

The required level of suspicion required to effect a protective detention

varies, however, depending upon the area in w hich the detention occurs. W here

-5- an individual is in an area immediately adjoining the arrestee, the individual may

be placed in temporary protective detention even in the absence of probable cause

or a reasonable suspicion that the individual poses a threat to officer safety. See

id. at 1362-63 (citing Thompson v. City of Lawrence, 58 F.3d 1511, 1517 (10th

Cir. 1995)). On the other hand, where an individual is on the arrest scene but is

not in an area immediately adjoining the arrestee, the individual may only be

detained where officers possess a reasonable suspicion that the individual poses a

danger. See id. at 1363.

In the instant case, the evidence in the record, viewed in the light most

favorable to the government, leads us to conclude that M r. Kinzalow was seated

in an area immediately adjoining M iron M oaning when he w as arrested. Thus,

pursuant to Buie and M addox, M r. Kinzalow could be detained for officer safety

purposes regardless of whether the officers possessed a reasonable suspicion that

he posed a danger. Officer W alsh testified that when he entered M s. Soto’s

apartment, M r. Kinzalow was seated in an armchair to the south of a coffee table

which was next to the doorway of the bedroom where M iron was eventually

arrested. Aplt. App. at 64. W hile no scaled diagram is in the record, the distance

between the bedroom and the living room was not great–in the time it took for the

officers to quickly enter the apartment and make the arrest, M iron left the

bedroom, entered the living room, turned around, and again entered the bedroom.

See Aplt. App. at 47. Given the close proximity of the living room where M r.

-6- Kinzalow was seated to the bedroom where M iron w as arrested, the officers’

initial detention of M r. Kinzalow was reasonable. Cf. Thompson, 58 F.3d at 1517

(deeming a temporary detention for officer safety purposes reasonable in the

absence of reasonable suspicion based on the detainee’s presence in the same

business establishment as the arrestee); compare with M addox, 388 F.3d at 1362-

63 (holding that reasonable suspicion was required to detain an individual for

officer safety reasons in a carport outside the dwelling where the arrest occurred).

Apart from his initial detention, M r. Kinzalow also challenges Officer

W hite’s inquiry as to the presence of weapons and drugs on his person and the

pat-down search that followed. Once a detention is deemed to have been legal at

its inception, we look only to “whether it was reasonably related in scope to the

circumstances which justified the interference in the first place.” M addox, 388

F.3d at 1368 (citing Terry, 392 U.S. at 20). “In that regard, this circuit has

concluded that an officer may conduct a pat-down search (or ‘frisk’) if he or she

harbors an articulable and reasonable suspicion that the person is armed and

dangerous.” United States v. Hishaw, 235 F.3d 565, 570 (10th Cir. 2000)

(internal quotations omitted).

Here, M s. Soto’s comments to the officers to the effect that M r. Kinzalow

often had guns and drugs w ith him is sufficient, standing alone, to justify the pat-

down search, but adding to Officer W hite’s reasonable suspicion was the fact that

narcotics had been discovered in the apartment, see United States v. Garcia, 459

-7- F.3d 1059, 1065-66 (10th Cir. 2006) (basing a finding of reasonable suspicion, in

part, on the fact that an officer “observed a baggie of what appeared to be

methamphetamine lying near the door of the apartment”), a known gang member

was present in the apartment, see id. at 1066-67, and the neighborhood in which

the duplex was located was a particularly dangerous one, see United States v.

Atlas, 94 F.3d 447, 450-51 (8th Cir. 1996) (officers had reasonable suspicion that

a suspect was armed and dangerous in part because “the officers were responding

to a call in a dangerous neighborhood”). Asking whether M r. Kinzalow was in

possession of any weapons or drugs before conducting the pat-dow n w as also

perfectly reasonable. See M addox, 388 F.3d at 1368; see also M uehler v. M ena,

544 U.S. 93, 101 (2005) (questioning which does not prolong a detention is not a

“seizure” within the meaning of the Fourth Amendment and does not require any

additional suspicion).

The cases on which M r. Kinzalow primarily relies are unavailing. Neither

Ybarra v. Illinois, 444 U.S. 85 (1979), nor Leveto v. Lapina, 258 F.3d 156 (3rd

Cir. 2001), stand for anything more than the proposition that a pat-down search

for weapons must be based on a reasonable suspicion that the individual may be

armed and dangerous and that mere presence at the scene, standing alone, may not

give rise to such suspicion. As previously stated, however, in this case, Officer

W hite acted under a reasonable suspicion that M r. Kinzalow was armed and

dangerous and that suspicion was based on more than mere propinquity. Thus,

-8- Ybarra and Leveto are inapposite. Last, Sibron v. New York, 392 U.S. 40 (1968),

primarily concerns probable cause to arrest and the ability of officers to perform a

search incident thereto. W hile the Court in that case held that merely talking to a

known drug dealer does not give rise to probable cause (or reasonable suspicion),

see id. at 62-64, the officers here possessed more information than was present in

Sibron and certainly had an objectively reasonable apprehension of danger. In

sum, neither M r. Kinzalow’s initial detention nor Officer W hite’s subsequent pat-

down or questioning were in violation of the Fourth Amendment.

M r. Kinzalow’s final argument is that police violated the Fourth

Amendment when they impounded his Dodge truck and performed an inventory

search of it, and thus the firearms found inside should be suppressed as fruit of

the poisonous tree. In order to comport with the Fourth Amendment, the

impoundment of M r. Kinzalow’s truck must either have been sanctioned under

Oklahoma law or fell within the public safety exception of South Dakota v.

Opperman, 428 U.S. 364, 369 (1976). See United States v. Rios, 88 F.3d 867,

870 (10th Cir. 1996).

Under Oklahoma law, “a car on private property cannot be impounded

absent a request from the property owner or other specific authorization.”

M cGaughey v. State, 37 P.3d 130, 143 (Okla. Crim. App. 2001). W hile M s. Soto

did not specifically request that M r. Kinzalow’s vehicle be impounded, she did

inform the officers that she did not want it sitting in front of her apartment. See

-9- Aplt. App. at 66. M oreover, Oklahoma City policy § 183.20(G) specifically

authorizes police to impound vehicles “[w]hen the driver of a vehicle is arrested

and the officer determines impoundment is needed.” See also State v. Shorney,

524 P.2d 69, 71 (O kla. Crim. App. 1974) (“[M ]unicipalities have the authority . . .

to authorize their respective police departments to impound vehicles . . . when the

driver of a vehicle is placed under arrest and taken into custody.”). That policy

makes no distinction between vehicles found on private and public property, and

the officers in this case had a valid reason for impounding the vehicle— it was

parked in a high crime area and M r. Kinzalow’s personal effects w ere readily

accessible and vulnerable to theft. Thus, so long as M r. Kinzalow was validly

arrested— and we have held that he was— his truck could be impounded under

Oklahoma law. See Tomlin v. State, 869 P.2d 334, 343 (Okla. Crim. App. 1994)

(“The validity of an impoundment pursuant to an arrest necessarily rests on the

validity of the arrest . . . .”). Because the impoundment of M r. Kinzalow’s truck

comported with Oklahoma law , it was also reasonable for purposes of the Fourth

Amendment.

W hen a vehicle is legally impounded, police may, following standardized

procedures and in the absence of bad faith, perform an inventory search of the

contents of the vehicle. See Colorado v. Bertine, 479 U.S. 367, 372 (1987).

- 10 - Here, the officers followed Oklahoma City policy § 183.30 1 in performing an

inventory search of the truck, and M r. Kinzalow has not made the requisite

showing of bad faith. Additionally, the police interests present in this case are

identical to those justifying the inventory search in Bertine. See id. at 373

(explaining that the warrantless inventory search was justified by police interests

in safeguarding the impounded property, preventing claims of theft, vandalism, or

negligence, and averting any danger the property might pose to the police and

others). Consequently, the inventory search was justified and reasonable.

A FFIR ME D.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge

1 Oklahoma City policy § 183.30 provides that, “All vehicles impounded will be subjected to a routine custodial inventory. The inventory will be conducted at the scene of the impoundment (whenever this can be reasonably accomplished) in the presence of the wrecker driver.”

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