Filed: May 15, 2019
Latest Update: Mar. 03, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT May 15, 2019 _ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellant, v. No. 18-2095 QUINCY D'OWN NASH, a/k/a Quincy Nash, Defendant - Appellee. _ ORDER _ This matter is before the court sua sponte to correct a clerical error in the second full paragraph on page four of the court’s May 14, 2019 order and judgment. In order to correct that clerical error, the Cler
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT May 15, 2019 _ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellant, v. No. 18-2095 QUINCY D'OWN NASH, a/k/a Quincy Nash, Defendant - Appellee. _ ORDER _ This matter is before the court sua sponte to correct a clerical error in the second full paragraph on page four of the court’s May 14, 2019 order and judgment. In order to correct that clerical error, the Clerk..
More
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 15, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 18-2095
QUINCY D'OWN NASH, a/k/a Quincy
Nash,
Defendant - Appellee.
_________________________________
ORDER
_________________________________
This matter is before the court sua sponte to correct a clerical error in the second
full paragraph on page four of the court’s May 14, 2019 order and judgment. In order to
correct that clerical error, the Clerk of Court shall issue the attached corrected order and
judgment effective nunc pro tunc to the date that the original order and judgment was
filed.
Entered for the Court,
ELISABETH A. SHUMAKER, Clerk
by: Chris Wolpert
Chief Deputy Clerk
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.” Id. at 124. Hoff then testified about
“what happened . . . during the pat[]down search.”
Id. at 125. 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
Id. Hoff then asked Nash “if that was a baggie.”
Id. Nash said 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.”
Id.
But before Hoff could do so, “Nash broke [a]way and tried to run.”
Id.
The officers 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; id. § 924(c); id.
§ 922(g)(1). 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); id. § 66-3-18
(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,
392
U.S. 1, 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 Hoff 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, 847 F.3d 1257, 1263 (10th Cir. 2017) (quoting United States v. Oliver,
363 F.3d 1061, 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.”
Id.
(quoting In re Vaughn,
765 F.3d 1174, 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.”
Id. (quoting Oliver, 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.” Terry, 392 U.S. at 29. 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.”
Id. And “[i]f 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, 508 U.S. 366, 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. Id.
So, contrary 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.” Id. at 208 (emphasis added). These statements further support Hoff’s
testimony that he felt the baggie during the patdown.
7
completed his protective frisk.” Id. at 201. 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.
Id.
Moreover, unlike 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.
id. at 200 (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.” Hernandez, 847 F.3d at 1263 (quoting
Vaughn, 765 F.3d at
1180). 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
Dickerson, 508 U.S. at 372 (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, 313 F.3d
1228, 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
