United States v. Kinzalow

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This order and judgment is not binding precedent, except under the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
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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
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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
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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
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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.
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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
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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,
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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
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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).
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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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