UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JERRY DEAN GONZALES, Defendant-Appellant. No. 12-6103 (D.C. No. 5:11-CR-00213-HE-1) (W.D. Okla.)

ORDER AND JUDGMENT *

Before LUCERO , Circuit Judge, PORFILIO , Senior Circuit Judge, and MATHESON , Circuit Judge.
Jerry Dean Gonzales was convicted of possession of a fi rearm after a felony conviction in violation of 18 U.S.C. § 922(g)(1). On appeal, he challenges the district court’s decision to deny his motion to suppre ss evidence obtained during a traffic stop. We have jurisdiction unde r 28 U.S.C. § 1291, and we affirm.

* After examining the briefs and appella te record, this pa nel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 4, 2013 Elisabeth A. Shumaker Clerk of Court- 2 - I. B ACKGROUND The evidence presented at the suppression hearing, viewed in the light most favorable to the government, see United States v. Hunter , 663 F.3d 1136, 1141 (10th Cir. 2011), establishe d the following: During unrelated drug surveillance, undercover Oklahoma City police officer Sc ott Whitlock observed three men leave a house and walk toward a car. He noticed that one of the men, Mr. Gonzales, was walking in a way that suggested he was ca rrying a gun in his waistband. When the men reached the car, Office r Whitlock saw Mr. Gonzales remove a pistol from his waistband and place it in the car’s trunk. The three men then drove away. Mr. Gonzales’ brother was driving. Officer Whitlock decided to pursue th em and called for assistance from a marked police car. While fo llowing the men, Officer Wh itlock observed their car making a right turn without using a turn si gnal, a traffic violation. The three men pulled into a gas station. Shortly ther eafter the marked poli ce car arrived. Officer Whitlock and the offi cer driving the marked ca r, Officer Steele, then approached the car. After acknowledging that he did not have a driver’s license, Mr. Gonzales’ brother granted Officer Whitlo ck permission to sear ch the car. While Officer Whitlock and Mr. Gonzales’ brother m oved to the rear of the vehicle, Officer Steele observed one of the occupants in the back seat of the car moving in a suspicious way. He was pa rticularly concerned that one of the men was reaching for a gun or concealing potential evidence. In response, Officer Steele drew his weapon- 3 - and instructed the occupant and Mr. Gonzales to exit the car. Officer Whitlock also drew his weapon. The officers proceeded to handcuff the three men before resuming the search of the car. During the search, Officer Whitlock fou nd a gun and rounds of ammunition. Meanwhile, a criminal record search revealed that Mr . Gonzales was a convicted felon with an outstanding mi sdemeanor arrest warrant. He was then taken into custody and eventually charged with being a felon in possession of a firearm in violation of 18 U.S. C. § 922(g)(1). Before trial, Mr. Gonzales moved to suppress evidence obtained as a result of the search—notably the gun. The district court held an evidentiary hearing and found that the traffic stop and search were valid , and thus denied the motion. Following a jury trial, Mr. Gonzales was convi cted of violating § 922(g)(1). II. D ISCUSSION Mr. Gonzales contends on appeal, as he did in the district court, that the gun should have been suppressed because it was found as a result of an unlawful traffic stop, arrest, and search of the car. He argues specifically that the officers lacked reasonable suspicion to the ma ke the traffic stop, probable cause to make the arrest, and voluntary consent to search the car. We disagree. The Fourth Amendment protects citi zens from unreasonable searches and seizures by the government. U.S. Const. amend. IV; see United States v. Chavez, 660 F.3d 1215, 1222 (10th Cir. 2011). A traffic stop is a seizure under the Fourth- 4 - Amendment that must be supported by r easonable suspicion that the person has committed or is about to commit a crime. Brendlin v. California , 551 U.S. 249, 255 (2007); United States v. McGehee , 672 F.3d 860, 863 (10th Cir. 2012). Reasonable suspicion is measured by an objective sta ndard under which an officer’s subjective beliefs or intentions are irrelevant. See Whren v. United States , 517 U.S. 806, 813 (1996). Consent to a police search is a recognized exception to the Fourth Amendment’s requirements of both a warrant and probable cause. Schneckloth v. Bustamonte , 412 U.S. 218, 219 (1973). Consen t must be “freely and voluntarily given.” United States v. Pena , 143 F.3d 1363, 1366 (10t h Cir. 1998) (internal quotation marks omitted). “Whether a defendant freely and voluntarily gave his consent to a search is a ques tion of fact and is determin ed from the tota lity of the circumstances.” Id. (internal quotation marks omitte d). “We review de novo the reasonableness of a search or seiz ure under the Fourth Amendment.” United States v. Worthon , 520 F.3d 1173, 1178 (10th Cir. 2008). Mr. Gonzales challenges the validity of the initial traffic st op, arguing that it was pretextual and that the officer had full y intended to initiate an encounter from the moment he saw Mr. Gonzales walking to the car. But whet her Officer Whitlock intended to initiate an encounter prior to observing the traffic violation does not determine whether the encounter was valid. As noted above, “[i]t is . . . irrelevant that the officer may have had other subj ective motives for stopping the vehicle.”- 5 - United States v. Botero-Ospina , 71 F.3d 783, 787 (10th Cir. 1995) (en banc). “[A] traffic stop is justified at it s inception if it is based on an observed traffic violation.” United States v. Taverna , 348 F.3d 873, 877 (10th Cir. 2003). We have no reason to question the district court’s finding that the stop was valid. Mr. Gonzales next contends that th e initial traffic st op soon became an unlawful arrest when the officers brandish ed weapons and handcuffed Mr. Gonzales. Because the officers allege dly lacked probable cause at that point, he argues his detainment violated his Fourth Amendm ent rights and the evidence subsequently discovered should have been suppressed as fruit of the unlawful arrest. However, even assuming the officers acted unreasonably, it had no bearing on the suppression motion because the evidence was not discovere d as a result of the alleged arrest. See United States v. Shareef , 100 F.3d 1491, 1508 (10th Cir. 1996) (“Because the seizure of the vehicles was not the fruit of the unlawful detention of any of the defendants, the evidence found when those ve hicles were searched was not ‘fruit of the poisonous tree.’”) Rather, the evidence wa s obtained on account of Mr. Gonzales’ brother’s consen t to a search. And Mr. Gonzales’ brother gave Officer Whitlock consent to search be fore the conduct that Mr. G onzales asserts constituted an unlawful arrest. The sear ch, not the arrest, led to the discovery of the gun and ammunition. As to the validity of th e search, Mr. Gonzales argue s his brother’s consent was not given, and if it was given, it was not voluntary. Whether consent was coerced- 6 - depends on “whether the officer’s conduct c onstituted a coercive show of authority, such that a reasonable person would believe he was not free to decline the officer’s requests or otherwise term inate the encounter.” United States v. Rosborough , 366 F.3d 1145, 1149 (10th Ci r. 2004) (internal quotati on marks omitted). But Mr. Gonzales is unable to point to anythi ng in the record that shows his brother believed he was not free to decline the officer ’s request. Thus, th e district court did not err when it found that Mr. Gonzales’ brother’s consent was voluntary and uncoerced. The judgment of the dist rict court is affirmed.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge