United States v. Scott

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 10, 2000
• Docket: 99-7113
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 10 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-7113 (D.C. No. 99-CR-17-S) THOMAS DUANE SCOTT, (E.D. Okla.)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before TACHA, McKAY, and ANDERSON, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

Defendant Thomas Duane Scott entered a conditional guilty plea to charges

of being a felon in possession of a firearm and possession of methamphetamine

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. with intent to distribute. He was sentenced to two concurrent terms of 200

months’ imprisonment, to be followed by concurrent three- and five-year terms of

supervised release, and he was fined a $100 special assessment for each charge.

Mr. Scott claims that he was arrested without probable cause. He challenges the

search of a car in which he was a passenger, and he challenges the validity of a

search warrant of his home. In addition, he claims that a self-incriminating

statement he made while in custody was coerced. We affirm.

I.

Mr. Scott and his wife went to the Wal-Mart store in Ardmore, Oklahoma,

as passengers in a car owned and driven by Joni Ellett. At the store, he bought

six boxes of over-the-counter Equate Antihistabs. Each box contains forty-eight

antihistamine tablets. He immediately tried to buy six more boxes but was

refused under Wal-Mart store policy, and he returned to the car. An employee of

the Wal-Mart store alerted the local police to Mr. Scott’s purchase and attempted

second purchase of Equate. Officer Hamblin of the Ardmore police department in

turn contacted Lt. Sturges of the Carter County, Oklahoma narcotics task force

because Officer Hamblin knew Lt. Sturges had been conducting an investigation

of Mr. Scott’s suspected drug manufacturing activities. They agreed to meet at

the Wal-Mart store. When Mr. Scott returned to Ms. Ellett’s car in the parking

lot, he was detained for about an hour by Officer Hamblin. After Lt. Sturges and

-2- 2 his partner, Sgt. Watson, arrived at the scene, about an hour after Mr. Scott’s

initial purchase of the Equate tablets, Lt. Sturges contacted the assistant county

district attorney, who advised Lt. Sturges that there was sufficient probable cause

to arrest Mr. Scott on a state violation of endeavoring to manufacture

methamphetamine. Lt. Sturges then placed Mr. Scott under arrest.

By the time Lt. Sturges and Sgt. Watson arrived, Ms. Scott and Ms. Ellett

had returned to the car. Ms. Scott consented to a search of her handbag. There

were ZigZag rolling papers and a package of purchased cigarettes in her purse.

Ms. Ellett initially refused Lt. Sturgis’ request for consent to search the car.

However, after Mr. Scott’s arrest, Lt. Sturgis called for a drug-sniffing dog to be

brought to the parking lot. Ms. Ellett overheard Lt. Sturgis’ request for the

drug-sniffing dog to come to the scene, and she then consented to the search,

verbally and in writing. When the dog arrived, it alerted to the right rear door of

the car. The physical search of that portion of the car disclosed a coat, which

Mr. Scott claimed as his, concealing a loaded handgun and containing a baggy of

crushed pills, a baggy of marijuana, and two syringes with drug residue. At that

point, Ms. Scott was arrested on the misdemeanor charge of possession of drug

paraphernalia (the rolling papers). Ms. Ellett was released.

While Mr. Scott was in custody subsequent to his arrest, officials obtained

two search warrants for Mr. Scott’s home, based on substantial evidence of

-3- 3 weapons possession and of illegal drug manufacture obtained by Lt. Sturges

during his investigation. The first search was conducted by federal Bureau of

Alcohol, Tobacco, and Firearms agents under a federal search warrant, yielding

numerous firearms. The ATF agents noted the presence of drug manufacturing

and distribution evidence. The second search was based on a state search warrant

written and executed by Lt. Sturges. During the second search, methamphetamine

and evidence of illegal drug manufacturing and distribution were seized.

Mr. Scott was initially indicted on four felony charges: two counts of being

a felon in possession of a firearm shipped and transported in interstate commerce;

possession with intent to distribute more than 100 grams of methamphetamine;

and maintaining a place for the manufacture, distribution, or use of

methamphetamine. An additional count, use of a firearm during or in relation to a

drug trafficking crime, was added in a superceding indictment. After his initial

appearance on the pending charges, Mr. Scott initiated contact with Lt. Sturges

and Sgt. Watson, telling them that he wanted to talk with them. They agreed and

accompanied him to an interview room in the facility. In an interview lasting

approximately an hour, he made numerous self-incriminating statements. The

district court found that the only promise to Mr. Scott given by Lt. Sturges and

Sgt. Watson during this interview was that they would make his cooperation

known to the prosecuting attorney.

-4- 4 The district court denied Mr. Scott’s pre-trial motions to suppress based on

illegal arrest, to suppress the search of the vehicle, to suppress the evidence

seized pursuant to the state search warrant, and to suppress his self-incriminating

statement. Pursuant to a plea bargain and Fed. R. Crim. P. 11(a)(2), Mr. Scott

entered a guilty plea to two of the charges, one count of being a felon in

possession of a firearm and possession with intent to distribute more than 100

grams of methamphetamine, contingent on appeal of the district court’s denial of

his four motions to suppress. The three other charges were dropped by the

government.

Mr. Scott now appeals the district court’s denial of his motions to suppress.

He challenges the legality of his detention and arrest in the parking lot, the

legality of the search of Ms. Ellett’s car, the validity of the state search warrant

used to gain entry to his home, and the voluntariness of his confession. “When

reviewing a district court’s denial of a motion to suppress, we consider the

totality of the circumstances and view the evidence in a light most favorable to

the government. We accept the district court’s factual findings unless those

findings are clearly erroneous.” United States v. Gordon, 168 F.3d 1222, 1225

(10th Cir.) (internal citation omitted), cert. denied, 119 S. Ct. 2384 (1999).

“[T]he ultimate determination of reasonableness under the Fourth Amendment is a

question of law reviewable de novo.” Id.

-5- 5 II.

Mr. Scott claims that all the evidence against him in this case, including his

statement of confession, were incident to his detention in the parking lot. In his

motion to suppress in the district court, he challenged that detention as an arrest

without probable cause.

As an initial matter, we reject Mr. Scott’s characterization of his pre-arrest

investigative detention in the parking lot as an “arrest.” Investigative detention

and actual arrest are distinguishable actions carried out for different purposes,

and each bears its own standard for use. “A law enforcement officer may stop

and briefly detain a person for investigative purposes ‘if the officer has a

reasonable suspicion . . . that criminal activity “may be afoot.”’” United States v.

Soto-Cervantes, 138 F.3d 1319, 1322 (10th Cir. 1998) (quoting United States v.

Sokolow, 490 U.S. 1, 7 (1989)). The propriety of the length of the detention

must be considered in light of the law enforcement purposes to be served by the

detention and the time reasonably needed to effectuate those purposes. See

United States v. Rutherford, 824 F.2d 831, 834 (10th Cir. 1987) (detention of

“about one hour” acceptable under the circumstances of that case). In contrast,

arrest requires the higher standard of probable cause that a crime has been

committed. See United States v. Wright, 932 F.2d 868, 877 (10th Cir. 1991).

Thus, the issues to be examined are whether Officer Hamblin had sufficient

-6- 6 reasonable suspicion of illegal activity for warrantless detention of Mr. Scott in

the parking lot of the Wal-Mart store, and whether Lt. Sturges had probable cause

for a warrantless arrest.

Mr. Scott argues that he did nothing illegal by purchasing a legal

over-the-counter drug at the Wal-Mart store. However, Mr. Scott’s purchase of

six boxes of this antihistamine immediately followed by an attempt to purchase

six more boxes of the drug, while not illegal, did give rise to reasonable suspicion

of illegal activity. Equate contains pseudoephedrine hydrochloride, an ingredient

necessary to production of methamphetamine. Use of products containing

pseudoephedrine hydrochloride for illegal methamphetamine manufacture is

sufficiently well-known that Wal-Mart established a policy to limit the quantity

sold to any single individual. Before this incident began, Officer Hamblin was

aware that Mr. Scott was being investigated for the manufacture and distribution

of methamphetamine, and he also had knowledge that products containing

pseudoephedrine hydrochloride, such as Equate, could be and had been used in

the manufacture of methamphetamine. Mr. Scott’s relatively brief warrantless

detention in the parking lot was proper here where Officer Hamblin had a

reasonable suspicion of criminal activity. The district court did not err in denying

Mr. Scott’s motion to suppress based on his claim of an unjustified pre-arrest

detention in the parking lot.

-7- 7 To the extent that Mr. Scott challenges the arrest itself, Lt. Sturges had

personally conducted the previous investigation of Mr. Scott’s clandestine illegal

methamphetamine manufacturing and distribution activities, and Lt. Sturges also

had direct knowledge of Mr. Scott’s purchase of a large quantity of Equate and

attempt immediately to purchase a second large quantity at the Wal-Mart store.

We agree with the district court’s ruling that these circumstances constituted

probable cause for Mr. Scott’s arrest. See United States v. Troutman, 458 F.2d

217, 220 (10th Cir. 1972) (“[T]o constitute probable cause for an arrest it must be

shown that at the time the officer makes the arrest the facts and circumstances

within his knowledge and of which he has reasonably trustworthy information are

such as would warrant a prudent man in believing that the person to be arrested

has committed an offense.”).

III.

Mr. Scott claims that the search of Ms. Ellett’s car in the parking lot was

illegal, and he appeals the district court’s denial of his motion to suppress the

fruits of that search. Mr. Scott characterizes the incident as a detention of

Ms. Ellett and her car without legal justification after she initially refused to

consent to a search of the car, and he characterizes her consent for the search as

coerced. These arguments are unavailing. The district court correctly held that

-8- 8 Mr. Scott, as a mere passenger, lacks standing to challenge the search. See

United States v. Eylicio-Montoya, 70 F.3d 1158, 1162 (10th Cir. 1995). 1

IV.

Mr. Scott challenged the validity of the state search warrant to search his

home, located in a rural area of Carter County, Oklahoma, for drugs and evidence

of drug manufacturing and distribution, noting that the warrant contained an

incorrect location description for his home. He appeals the district court’s denial

of his motion to suppress the fruits of the search. He argues that the warrant

described the place to be searched as the first structure on Highway 76 south of

1 Even if Mr. Scott did have standing to challenge the search, the search as conducted was permissible because the car’s owner, present at the scene, voluntarily gave her consent. “We determine whether a consent was voluntary after evaluating the totality of the circumstances. A person who is being detained may still give a voluntary consent . . . .” United States v. McRae, 81 F.3d 1528, 1536-37 (10th Cir. 1996) (internal citations omitted). Consent must be “unequivocal and specific and freely and intelligently given,” and it must be given “without implied or express duress or coercion.” Id. at 1537 (citation omitted). Under the circumstances of this incident, Lt. Sturges had justification to briefly detain Ms. Ellett and her car in light of her passenger’s suspicious conduct and legal detention and arrest. Although she initially refused to consent to the search, within minutes she gave verbal and written consent upon overhearing that a drug-sniffing dog had been requested. Lt. Sturges’s request for a drug-sniffing dog was reasonable under these circumstances and did not constitute coercion for permission to search. The district court properly denied Mr. Scott’s motion to suppress the fruits of the search of Ms. Ellett’s car.

-9- 9 Highway 53 East, when in fact the place to be searched was the first residence but

the third structure on Highway 76 south of Highway 53 East. The description of

the premises to be searched in the state search warrant was:

a white wood framed single story, single family dwelling located at HC 63 Box 1400, Healdton, Carter County, Oklahoma. More particularly the first structure south of Highway 53 East on Highway 76, west side of the roadway. The front door of the house faces east. The same being the house occupied by THOMAS DUANE SCOTT, DOB: 01-19-62, SSN: XXX-XX-XXXX . . . .

R. Vol. I, tab 32, “Response to Defendant’s Motion to Suppress Search Pursuant

to State Search Warrant,” Ex. A, Attachment B, page 000034. We determine the

sufficiency of a search warrant de novo. See United States v. Dahlman, 13 F.3d

1391, 1394 (10th Cir. 1993).

The description of the premises of a search warrant is required to be given

with sufficient particularity that the executing officer can ascertain the place to be

searched with reasonable effort. See id. After review of the evidence presented

to the district court, we agree with the district court that the description on this

warrant satisfies the particularity standard, considering the location of this house

and the personal knowledge of Lt. Sturges, the officer who was familiar with the

house and its location, who wrote the description for the warrant, and who was

present for its execution.

V.

-10- 10 And, finally, Mr. Scott claims that the authorities elicited his

self-incriminating statement through fraudulent promises that the charge against

his wife would be dropped, that she would be released, and that the prosecutors

would exercise leniency toward him. We review the voluntariness of a confession

under the de novo standard. See United States v. Lugo, 170 F.3d 996, 1003 (10th

Cir. 1999). The district court’s underlying factual findings are accepted unless

they are clearly erroneous. See United States v. Nguyen, 155 F.3d 1219, 1222

(10th Cir. 1998). Careful review of the record on appeal does not support

Mr. Scott’s contentions. He was not in restraints at any time pertinent to making

these self-incriminating statements. He approached Lt. Sturges and Sgt. Watson

and requested an interview. He was read his Miranda rights. He executed a

written waiver of those rights. The interview session lasted about an hour.

Neither Lt. Sturges nor Sgt. Watson made any promises other than to make

Mr. Scott’s cooperation known to the prosecuting authorities. Neither Lt. Sturges

nor Sgt. Watson made any threats or exhibited any use of force. There is no

indication other than Mr. Scott’s self-serving testimony at the suppression hearing

that the government made fraudulent inducements to obtain his self-incriminating

statement. We agree with the district court’s denial of this claim.

The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED.

-11- Entered for the Court

Deanell Reece Tacha Circuit Judge

-12-