FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                            May 14, 2019
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellant,

 v.                                                           No. 18-2095
                                                    (D.C. No. 5:17-CR-02487-MV-1)
 QUINCY D’OWN NASH, a/k/a Quincy                                (D.N.M.)
 Nash,

       Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MORITZ, KELLY, and EID, Circuit Judges.
                  _________________________________

      In this interlocutory appeal, the government challenges the district court’s

order suppressing certain evidence.1 As we explain below, we agree with the

government that the district court erred when it found a law-enforcement officer

exceeded the permissible scope of a weapons patdown and thereby violated the

Fourth Amendment. Accordingly, we reverse the district court’s suppression order

and remand for further proceedings.



      *
          This order and judgment isn’t binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
        1
          We have jurisdiction over this appeal under 18 U.S.C. § 3731. See § 3731
(“An appeal by the United States shall lie to a court of appeals from a[n] . . . order of
a district court suppressing . . . evidence . . . .”).
                                      Background

      Hobbs Police Officer Jayson Hoff initiated a traffic stop after he saw Quincy

Nash throw a lit cigarette out of a moving vehicle and noticed that the vehicle’s

license plate wasn’t legible. When Hoff approached the vehicle and spoke to Nash,

he noticed that Nash’s speech was lethargic and slurred, his eyes were bloodshot and

watery, and his answers to Hoff’s questions didn’t make sense. Hoff suspected that

Nash was intoxicated, so he radioed for backup to conduct field sobriety tests.2

      After two backup officers arrived, Hoff asked Nash to get out of the vehicle.

Hoff noticed “two large bulges in the front two pockets of [Nash’s] jeans.” App.

vol. 2, 121. Suspecting that Nash might be armed and dangerous, Hoff patted Nash

down for weapons.

      Hoff described the patdown in this way: “I secured [Nash’s] hands behind his

back. I held his fingers, and I swiped the outside of his clothing with the inside of my

hand on the right side and then on the left side.” 

Hoff then testified about

“what happened . . . during the pat[]down search.” 

He said:

             When I was patting down the left front pocket, I heard and felt a
      crackle, which I knew, through my training and experience, to be a
      plastic bag. It felt like a plastic baggie or a Ziplock baggie. And I felt a
      bulge, which was consistent through my training and experience to be
      dope, as I worded it.




      2
         The Hobbs Police Department requires its officers to record field sobriety
tests on video, but Hoff’s video camera wasn’t working. So he needed a backup
officer to record the testing.
                                            2


asked Nash “if that was a baggie.” 

it wasn’t. Hoff told

Nash that it felt like a baggie of drugs, and he asked Nash if he could search the

pocket. Nash responded by asking if he was under arrest. Rather than answering

Nash’s question, Hoff said he was “going to reach in and get that bag of dope.” 

Hoff could do so, “Nash broke [a]way and tried to run.” 

quickly caught, subdued, and arrested Nash for resisting an

officer. See N.M. Stat. Ann. § 30-22-1. A backup officer then searched Nash incident

to that arrest. In Nash’s left pocket, the officer found a baggie containing 31 grams of

a substance that field-tested positive for methamphetamine. In Nash’s right pocket,

the officer found a cell phone, a package of cigars, and a baggie of a substance that

field-tested positive for marijuana. During an inventory search of the vehicle Nash

was driving, Hoff found a loaded handgun under the driver’s seat.

      The government charged Nash with possessing methamphetamine with intent

to distribute, possessing a firearm in furtherance of a drug-trafficking crime, and

being a felon in possession of a weapon. See 18 U.S.C. § 841; 

Nash moved to suppress the evidence found in his pockets and in the

vehicle. At the suppression hearing, Hoff and the backup officers testified as

described above. Additionally, the government introduced the audio recording of

these events, along with a transcript of the recording.3



      3
         Given the progression of events, Hoff never conducted the field sobriety
tests. As such, neither of the backup officers with working video cameras ever turned
them on. So the record includes only audio and a written transcript of the audio.
                                           3
      In a written order, the district court rejected three of Nash’s four suppression

arguments. First, it found that the initial traffic stop was reasonable because Hoff saw

Nash throw a cigarette out of the vehicle and reasonably thought Nash’s license plate

wasn’t legible. See N.M. Stat. Ann. § 30-8-4 (prohibiting littering); 

(requiring “clearly legible” license plates). Second, the district court found that Hoff

reasonably prolonged the stop to investigate whether Nash was under the influence of

drugs or alcohol. Third, it concluded that Hoff had reasonable suspicion to conduct a

weapons patdown before beginning the field sobriety tests. See Terry v. Ohio, 

, 27 (1968) (permitting officer to conduct weapons patdown if officer

reasonably suspects that individual is “armed and dangerous”).

      But the district court accepted Nash’s fourth argument, finding that Hoff

exceeded the permissible scope of a weapons patdown when he felt the baggie in

Nash’s left pocket. The basis for this finding isn’t entirely clear from the district

court’s suppression order. But it appears the district court concluded that Hoff didn’t

feel the baggie in Nash’s left pocket until after Nash completed the patdown and

assured himself that Nash was unarmed. As a result, the district court suppressed the

drugs found in Nash’s pockets and the gun found in the vehicle because that evidence

was the “fruit[] of the poisonous tree,” discovered only as a result of Hoff’s Fourth

Amendment violation. App. vol. 1, 62.

      The government filed a motion to reconsider, arguing that the district court

erred in finding that Hoff didn’t feel the baggie in Nash’s left pocket during the

patdown. It further argued that even if the patdown was unconstitutional, the district

                                            4
court shouldn’t suppress the evidence because the actual discovery of the evidence

was attenuated from the Fourth Amendment violation. The district court rejected both

arguments and denied the government’s motion to reconsider.

      The government appeals, challenging the district court’s suppression ruling.

                                        Analysis

      “In reviewing a district court’s ruling on a motion to suppress evidence, we

view the evidence in the light most favorable to the prevailing party and accept the

district court’s findings of fact unless they are clearly erroneous.” United States v.

Hernandez, 

, 1263 (10th Cir. 2017) (quoting United States v. Oliver,

, 1065 (10th Cir. 2004)). And “[a] finding of fact is clearly erroneous if

it is without factual support in the record or if, after reviewing all of the evidence, we

are left with the definite and firm conviction that a mistake has been made.” 

re Vaughn, 

, 1180 (10th Cir. 2014)). But the ultimate issue

of whether law enforcement in fact violated “the Fourth Amendment is a question of

law that we review de novo.” 

363 F.3d at 1065).

      The government argues that the district court erred when it found that Hoff

exceeded the scope of a valid weapons patdown. “The sole justification” for allowing

an officer to conduct a patdown for weapons “is the protection of the police officer

and others nearby.” 

. Accordingly, an officer must confine the

patdown “to an intrusion reasonably designed to discover guns, knives, clubs, or

other hidden instruments for the assault of the police officer.” 

the

protective search goes beyond what is necessary to determine if the suspect is armed,

                                            5
it is no longer valid under Terry and its fruits will be suppressed.” Minnesota v.

Dickerson, 

, 373 (1993).

      Here, the district court found Hoff exceeded the scope of the patdown because

it concluded that, by the time Hoff felt the baggie in Nash’s left pocket, Hoff had

already verified that Nash was unarmed, thus ending the justification for the

patdown. This finding rested on two intermediate conclusions, both of which the

government challenges. First, the district court stated that “[t]he audio recording and

transcript clearly conflict with [Hoff’s] testimony.” App. vol. 1, 85. In the recording,

as memorialized by the transcript, Hoff stated, “I notice this right pocket, you got a

lot[ of] stuff going on. Is that a bagg[ie]?” App. vol. 3, 255. The district court

interpreted this statement to mean that, contrary to Hoff’s testimony that he felt the

baggie in Nash’s left pocket, Hoff actually felt the baggie in Nash’s right pocket.

      The district court’s interpretation is incorrect. Hoff did expressly reference

Nash’s right pocket in the recording. But significantly, about four seconds elapsed

between the reference to the right pocket and the start of Hoff’s question about the

baggie. There’s also a distinct pause of about two seconds between the end of Hoff’s

statement about “a lot[ of] stuff going on” and the start of the baggie question. 

to the district court’s conclusion, the audio doesn’t definitively

establish that Hoff felt the baggie in Nash’s right pocket. In fact, as the government

asserts, the timing of the statements in the recording appears to align with Hoff’s

testimony that he patted down Nash’s right pocket first and his left pocket second. In

any event, we conclude that the district court clearly erred when it interpreted the

                                            6
audio recording and transcript as unequivocally establishing that Hoff felt the baggie

in Nash’s right pocket. It therefore further erred when it found that the audio

recording “clearly conflict[ed] with” Hoff’s testimony that he felt the baggie in

Nash’s left pocket. App. vol. 1, 85.

      Second, and more critically, the district court found that Hoff “never testified

he found the baggie before he determined . . . Nash had no weapon.” App. vol. 1, 83.

But as the government points out, this finding contradicts Hoff’s testimony at the

suppression hearing. Hoff specifically replied to a question about “what happened . . .

during the pat[]down” by explaining that he felt a baggie in Nash’s left pocket.4 App.

vol. 2, 125 (emphasis added). That testimony establishes Hoff felt the baggie “before

he determined . . . Nash had no weapon.” App. vol. 1, 83.

      As such, this case is distinct from United States v. Perez, 408 F. App’x 198

(10th Cir. 2011) (unpublished)—the primary case the district court relied on in

concluding that Hoff didn’t feel the baggie until after he had already completed the

patdown. In Perez, we affirmed the district court’s order suppressing evidence after

finding record support for the conclusion that the officer exceeded the scope of a

valid patdown. See 408 F. App’x at 202. In so doing, we noted that the officer “never

definitively testified that he felt the object in [the defendant’s] pocket before he


      4
        The two backup officers testified similarly. One said that Hoff asked Nash
whether Nash had a bag of dope in his pocket while “Hoff was doing the pat[]down.”
App. vol. 2, 201 (emphasis added). The other said that “as soon as [Hoff] started
patting [Nash] down for weapons, [Hoff] felt what he described as . . . a bag of
dope.” 

(emphasis added). These statements further support Hoff’s
testimony that he felt the baggie during the patdown.
                                            7
completed his protective frisk.” 

But here, Hoff testified that the purpose of

the patdown was to search for weapons and nothing else and that he felt the baggie in

Nash’s pocket during the patdown. Thus, Hoff did clearly testify that he felt the

object in Nash’s pocket during, or before he completed his protective frisk. 

the record in Perez, the record here includes no other evidence

indicating that Hoff did anything other than validly pat Nash down for weapons. Cf.

(finding record support for district court’s conclusion that officer exceeded

scope of valid patdown because (1) officer testified on cross-examination that he felt

object in defendant’s right pocket “after completion of the protective frisk,” and

(2) “video show[ed] . . . a thorough frisk of the pocket area and of [d]efendant’s

lower legs before [officer’s] final touching of the right pocket”). Thus, we don’t find

Perez persuasive.

      In sum, both of the intermediate findings underlying the district court’s

conclusion that Hoff didn’t feel the baggie in Nash’s left pocket until after he

completed the patdown are clearly erroneous. There is no other support in the record

for that factual finding, and “we are left with the definite and firm conviction that a

mistake has been made.” 

(quoting 

). For these reasons, we conclude that the district court erred when it ultimately

concluded that Hoff exceeded the permissible scope of a weapons patdown.

      Hoff’s patdown therefore complied with the Fourth Amendment. See

(noting that patdown doesn’t violate Fourth Amendment

if it’s “limited to that which is necessary for the discovery of weapons which might

                                            8
be used to harm the officer or others nearby”); United States v. Harris, 

, 1237–38 (10th Cir. 2002) (finding no Fourth Amendment violation because

officer didn’t exceed scope of weapons patdown). As such, we need not reach the

government’s alternative argument that the discovery of the evidence was attenuated

from any Fourth Amendment violation.

                                     Conclusion

      Because the district court erred in concluding that Hoff exceeded the scope of

a valid patdown, we reverse its order granting Nash’s suppression motion and remand

for further proceedings.


                                           Entered for the Court


                                           Nancy L. Moritz
                                           Circuit Judge




                                          9