United States v. Buchanan ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
January 21, 2009
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
__________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 07-6144
(W.D. Okla.)
STANLEY STEVEN BUCHANAN, (D.Ct. No. 06-CR-182-C)
Defendant - Appellee.
____________________________
ORDER AND JUDGMENT*
Before KELLY, BALDOCK, and O’BRIEN, Circuit Judges.**
Stanley Steven Buchanan appeals from his conviction and sentence for possession
with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1).
Specifically, Buchanan challenges the district court’s denial of his motion to suppress
evidence and the length of his sentence. We AFFIRM.
I. BACKGROUND
On September 20, 2005, two plain-clothed Oklahoma City Police Department
*
This order and judgment is not binding precedent except under the doctrines of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.
**
Submitted on the briefs.
officers, Craig Engles and Roger Martinez, checked on a known informant’s tip regarding
the location of two stolen vehicles, a white 2003 Chevy Tahoe and an older brown pickup
truck. The officers went to the address provided, an automobile shop, where they saw a
white Chevy Tahoe up on blocks and an older brown pickup parked in an outside lot.
Both vehicles appeared to be stripped. As the officers sat in their unmarked vehicle a few
hundred yards away, they watched a black pickup driven by Buchanan pull into the lot
between the two vehicles. Buchanan got out of his truck and began rummaging through
various vehicle parts contained in the bed of the brown truck. Apparently noticing the
presence of the officers, Buchanan got back in his truck. The officers pulled up and
parked behind him, blocking his exit. As the officers approached Buchanan, they
displayed their badges and identified themselves as police officers. At the same time,
Buchanan got out of his truck leaving the door open. Officer Engles asked Buchanan if
he had a driver’s license and Buchanan said “No.” (R. Appx. at 98.) He then asked if
Buchanan’s license was suspended and Buchanan responded, “Yes.” (Id.)
In the meantime, Officer Martinez had checked the status of the brown truck and
informed Engles it was stolen.1 As Engles approached Buchanan to handcuff him, he
glanced in Buchanan’s truck and saw a “residue-coated methamphetamine pipe” sticking
up out of the seat. (Id. at 100.) Officer Engles arrested Buchanan for driving with a
suspended license and possession of drug paraphernalia and placed him on the tailgate of
the officers’ vehicle. The officers called for a marked police car to transport Buchanan to
1
The Chevy Tahoe was not stolen.
2
jail and requested a wrecker to tow Buchanan’s truck. While waiting for assistance to
arrive, Engles searched the cab of Buchanan’s truck. He found a bag behind the seat
containing a baggie of marijuana, three baggies of methamphetamine, two small baggies
of narcotic pills, a set of digital drug scales and a metal drug spoon. In an open briefcase
on the passenger seat Engles found a semiautomatic pistol.
Indicted on four felony counts,2 Buchanan moved to suppress the evidence found
in his truck claiming he was arrested without probable cause and the search subsequent to
his arrest was an unlawful inventory search. The district court denied his motion.
Buchanan then pled guilty to one count of possession with intent to distribute
methamphetamine in exchange for dismissal of the remaining charges. He reserved the
right to appeal from the denial of his motion to suppress and did not waive other appeal
rights. The district court accepted his plea and sentenced Buchanan to 84 months
imprisonment followed by four years of supervised release.
II. DISCUSSION
A. Motion to Suppress
In his motion to suppress, Buchanan claimed the arrest occurred at the moment the
officers pulled their vehicle behind his truck, blocking his ability to exit the lot.
Buchanan argued there was no probable cause to make an arrest at that point, rendering
Engles’ initial discovery of the methamphetamine pipe unlawful. Additionally, he
2
One count was based on drugs found during a subsequent search of Buchanan’s
business. Because this count was dismissed as a result of his guilty plea, we do not
address it here.
3
contended under Oklahoma law, the subsequent search of his truck was an invalid
inventory search because his truck was located on private property. The government
countered the initial stop was a valid Terry stop and Buchanan was legally arrested at the
point he was handcuffed by officer Engles. Therefore, the following searches were
lawful under the Fourth Amendment.
“When reviewing the denial of a motion to suppress, we view the evidence in the
light most favorable to the government, accept the district court's findings of fact unless
clearly erroneous, and review de novo the ultimate determination of reasonableness under
the Fourth Amendment.” United States v. Gambino-Zavala, 539 F.3d 1221, 1225 (10th
Cir. 2008) (quotations omitted).
1. Initial Stop
We have recognized three types of police-citizen encounters: (1) consensual
encounters, (2) a brief, non-intrusive investigative stop pursuant to Terry v. Ohio, 392
U.S. 1 (1968) and: (3) detention by arrest. See United States v. Lang, 81 F.3d 955, 964-
65 (10th Cir. 1996)). Justification for a Terry stop is based on a reasonable, articulable
suspicion that criminal activity is afoot. See United States v. Cortez, 449 U.S. 411, 417-
18 (1981). The district court correctly rejected Buchanan’s argument that the stop was an
arrest. It determined the officers performed a valid Terry stop when they blocked
Buchanan’s truck from exiting the premises. Considering the totality of the
circumstances, the district court concluded the officers had reasonable, articulable
suspicion to detain Buchanan because: (1) the officers were acting pursuant to a tip from
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a known and reliable informant; (2) the presence of the vehicles matching the description
provided by the informant at the location identified corroborated the information; (3) the
vehicles appeared to be stripped; (4) Buchanan’s rummaging through the parts in the
truck bed; and (5) his attempt to leave the scene when he noticed the officers’ presence.
We agree these facts collectively establish the officers’ reasonable, articulable suspicion
of criminal activity. Buchanan neither disputes these facts nor argues they do not meet
the Terry requirements.3
Buchanan further argues Engles lacked probable cause to arrest him at the time he
was handcuffed because there was no evidence supporting a reasonable belief Buchanan
had committed a crime. Therefore, Engles’ observation of the pipe in the truck during or
following the handcuffing was an invalid search. As noted by the district court,
Buchanan’s admission he was driving on a suspended license was, in itself, sufficient to
effect an arrest. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“if an
officer has probable cause to believe that an individual has committed even a very minor
criminal offense in his presence, he may, without violating the Fourth Amendment, arrest
the offender.”)
3
Buchanan makes one cryptic reference in his brief wherein he states: “Defendant
submits that when the officers first approached Defendant, he was subject of a Terry stop
for all intents and purposes, and therefore be beyond the permissible scope of such a
stop.” (Appellant’s Br. at 6-7.) Aside from the typographical error, this argument is
incoherent.
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2. Search of Buchanan’s Truck
Buchanan argues the search following his arrest was an unlawful inventory search
under Oklahoma law. He ignores, however, the actual basis for the court’s ruling.4 It
correctly concluded the search was valid under federal law on two separate bases: (1) it
was a valid search incident to arrest, see United States v. Brothers, 438 F.3d 1068, 1073
(10th Cir. 2006) (holding search incident to a lawful arrest rule applied when the search
was conducted within a few minutes of the Defendant’s lawful arrest and the defendant
had not yet been removed from the scene); and (2) the officers had probable cause to
believe the vehicle contained contraband or evidence. See United States v. Ross, 456 U.S.
798, 804-09, 825 (1982) (noting a search of a vehicle that is supported by probable cause
is not unreasonable if based on facts justifying a warrant be issued, even though a warrant
is not obtained)). Buchanan does not challenge the district court’s accurate conclusions.
B. Sentencing
The presentence report (PSR) determined Buchanan’s total offense level was 23
and his Criminal History Category was VI, resulting in a guidelines range of 92 to 115
months imprisonment. Buchanan made several objections to the PSR which were
resolved at the sentencing hearing. Based on a prospective amendment to the guidelines,
the district court granted Buchanan a downward departure under USSG §4A1.3 for over-
representation of criminal history, resulting in a guidelines range of 84 to 105 months
4
“A state-law violation does not . . . necessarily rise to the level of a federal
constitutional violation.” United States v. Gonzales, 535 F.3d 1174, 1182 (10th Cir.),
cert. denied, —S.Ct.—, 2008 WL 4819972 (Dec. 8, 2008).
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imprisonment.5 The district court sentenced Buchanan to 84 months.
Buchanan claims his sentence is substantively unreasonable. He argues he “made
a legitimate argument for a below-guidelines sentence” and, “in light of all circumstances,
including [his] clear need and request for drug treatment [he] should have properly been
sentenced to the minimum term allowable . . . . five years (60 months).” (Appellant’s Br.
at 11-12.)
The Federal Rules of Appellate Procedure require the argument section of an
appellant’s brief to contain “appellant's contentions and the reasons for them, with
citations to the authorities and parts of the record on which the appellant relies.” Fed. R.
App. P. 28(a)(9)(A). “Mere conclusory allegations with no citations to the record or any
legal authority for support do not constitute adequate briefing.” MacArthur v. San Juan
County, 495 F.3d 1157, 1161 (10th Cir. 2007) (quotations omitted). “Issues will be
deemed waived if they are not adequately briefed.” Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 841 (10th Cir. 2005) (quotations omitted). Buchanan offers no
explanation why the district court’s departure was insufficient. He does not identify any
specific errors and provides no citation to the record or law supporting his position.
“[W]here an appellant has provided defective briefs, the court in its discretion may
5
The district court applied the 2006 United States Sentencing Guidelines. This
version of the guidelines properly counted two of Buchanan’s prior convictions
separately. However, under the 2007 version which would become effective five months
after the date of Buchanan’s sentencing, the convictions could properly be treated as one
and would have reduced Buchanan’s Criminal History Category by one level. As a result,
the court determined it would depart downward because Buchanan’s actual criminal
history was over-represented.
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scrutinize the merits of the case insofar as the record permits.” MacArthur, 495 F.3d at
1161 (quotations omitted). A review of the sentencing transcript, provided by the
government, evidences no reason to exercise our discretion to review this issue.
AFFIRMED.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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