United States v. Ellis

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 19, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AM ERICA,
Plaintiff-Appellee, No. 05-4175
v. (D.C. 2:04-CR-616-PGC)
GILBERT TODD ELLIS, (D. Utah)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, M cK AY, and LUCERO, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f). The case is therefore submitted without
oral argument.
Appellant was charged with one count of possession of ammunition by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). He filed a motion to
suppress the ammunition evidence. The district court held a hearing on the
*
This order and judgment is not binding precedent, except under the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.
motion and denied it. Appellant then entered a conditional plea of guilty that
preserved his right to appeal the district court’s ruling on his motion to suppress.
Appellant was sentenced to thirty-seven months’ imprisonment. He appeals the
district court’s suppression ruling, contesting that there was no reasonable
suspicion to support his detention or his subjection to a Terry frisk.
W hen reviewing the denial of a motion to suppress based on an allegation
that officers violated a defendant’s Fourth Amendment rights, we consider the
totality of the circumstances and view the evidence in the light most favorable to
the government, accepting the district court’s findings of facts unless they are
clearly erroneous. United States v. Gay, 240 F.3d 1222, 1225-26 (10th Cir.
2001). “However, the ultimate determination of the reasonableness under the
Fourth Amendment is reviewed de novo.” United States v. Lang, 81 F.3d 955,
964 (10th Cir. 1996).
On August 24, 2004, officers w ere conducting surveillance near a
neighborhood convenience store, having received numerous anonymous
complaints through a drug tip hotline about individuals possibly buying and
selling drugs in the area. The officers observed a car pull into the convenience
store parking lot, but no one exited the vehicle. An individual then approached
the car, leaned through the window to converse with the occupants, and left. This
scenario was repeated. Appellant and the convenience store owner then
approached the car; the owner told the car’s occupants that they could not park
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there, and Appellant, who evidently recognized the driver, asked for a ride.
At this time the police officers approached the parked vehicle and ordered
the three occupants to show their hands. The driver and front seat passenger
complied, but the back seat passenger did not. As the back seat passenger
reached down below his leg, the officer drew his own weapon and ordered
Appellant and the convenience store owner (who were still standing near the
vehicle) to get down on the ground.
Another officer arrived on the scene and, having recognized Appellant from
a prior drug arrest, focused his attention on him. Appellant attempted to rise up
from the ground and repeatedly stated that he had done nothing wrong. The
officer conducted a frisk of both Appellant and the store owner. W hile searching
Appellant, the officer felt something hard in his pant pocket, which he believed
was a magazine for a gun. The officer then handcuffed Appellant, checked the
pant’s pocket, and seized the gun magazine.
Appellant argues that the district court erred in denying his suppression
motion because he contends that the officers had no reasonable suspicion to
detain him. The record reflects: (1) there were numerous citizen-informant
complaints regarding hand-to-hand drug transactions in a specified area; (2)
Appellant was observed approaching a suspicious car and talking to an occupant
immediately after two individuals had separately approached the same car
engaged in conduct consistent with a hand-to-hand drug transaction; and (3) one
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of the officers knew that Appellant had a criminal record, including an arrest for
drug possession.
A brief detention is permissible if based on “reasonable suspicion to
believe that criminal activity may be afoot.” United States v. Quintana-Garcia,
343 F.3d 1266, 1270 (10th Cir. 2003) (internal quotations omitted). The record in
this case supports this belief.
Appellant also argues that the officers had no reasonable suspicion to
justify a frisk for weapons. During the course of an investigative detention, “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) (quoting United
States v. Davis, 94 F.3d 1465, 1468 (10th Cir. 1996)). In this case, the officer’s
suspicion that Appellant was involved in drug activity, coupled with his non-
compliance with the officers’ commands to lie on the ground, supported a
reasonable suspicion that he was armed and dangerous. Reasonable suspicion that
an individual is involved in drug dealing, standing alone, may justify a frisk for
weapons because “[t]he crimes about which [the officer] was concerned are
typically associated with some sort of weapon . . . .” United States v. Johnson,
364 F.3d 1185, 1195 (10th Cir. 2005); see also Hishaw, 235 F.3d at 570-71.
Given the totality of the circumstances, especially in light of Appellant’s non-
compliance in a charged situation, we determine that the officers had reasonable
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suspicion to conduct a frisk for weapons.
W e have carefully reviewed the briefs of Appellant and Appellee, the
district court’s disposition, and the record on appeal. W e are in accord with the
district court’s denial of Appellant’s suppression motion, and we consequently
A FFIR M the district court’s June 30, 2005, sentence.
Entered for the Court
M onroe G. M cKay
Circuit Judge
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