## F I L E D United States Court of Appeals Tenth Circuit 

### July 15 2003 

### PATRICK FISHER

Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. TONY A. RINGOLD; RONALD A. BROWN, Defendants - Appellants. Nos. 02-3251 and 02-3254

Appeal from the United States District Court

for the District of Kansas (D.C. No. 02-CR-10008-WEB)
Lanny D. Welch, Assistant United States Attorney (E ric F. Melgren, United States Attorney, with him on the brief), Wichita, Kansas f or Plaintiff-Appellee United States of America. Paul S. McCausland, Young, Bogle, McCausland, Wells & Blanchard, P.A., Wichita, Kansas for Defendant-Appellant Ringold. Timothy J. Henry, Assistant Federal Public Defenderfor the District of Kansas (David J. Phillips, Federal Public Defender, with h im on the brief) for DefendantAppellant Brown.* The Honorable Milton I. Shadur, United States District Judge for the

Northern District of Illinois, sitting by designation. -2- Before SEYMOUR and KELLY , Circuit Judges, and SHADUR , District Judge. *

SHADUR, District Judge.

Tony A. Ringold (“Ringold”) and Ronald A. Brown (“B rown”) were indicted on January 30, 2002 for possession with th e intent to distribute 179 pounds of marijuana in violation of 21 U.S.C. §841( a)(1). Defendants filed a joint motion to suppress the evidence of the mariju ana on the ground that it had been obtained in violation of their Fourth Amendment rights. After an evidentiary hearing the district court denied that motion (Nos. 02-10008-01 and 02-10008-02, 2002 WL 539042 (D. Kan. Apr. 9, 2002))

. [cited “Opinion at --”] Each defendant then entered a guilty plea pursuant to Fed. R. Crim. P. 11(a)(2), conditioned on his right to appeal the suppression ruling. We affirm the district court in both cases.
Facts On January 15, 2002 Kansas Highway Patrol Sergeant Travis Phillips (“Phillips”) was driving a marked Kansas highway patrol vehicle eastbound on Interstate 70. He was accompanied by WaKeeney Poli ce Department Officer-3-

Jason Walt (“Walt”). Near milepost 140 in Trego Co unty, Phillips observed an eastbound Chevrolet Blazer in the right hand lane w ith California license plates. Following behind the Blazer, Phillips ran a check o n the license plate and learned that it was a rental car. After the plate checked out, Phillips drove the pat rol car alongside the Blazer for a few moments before passing it. He sawtwo African-American males looking straight ahead down the road (Brown was dri ving and Ringold was in the front passenger seat) and noted a “tree-type” air f reshener hanging from the rearview mirror. Phillips pulled ahead of the Blaz er and moved back into the right hand lane. When he was about a quarter to a half mile ahead of the Blazer, Philips slowed his car as he saw the Blazer turn of f of the Interstate at Ellis, Kansas. Telling Walt that he wanted to see why the Blazer had left the Interstate, Philips made a u-turn, also got off at the Ellis ex it and observed the Blazer pulling into Shuster’s Service Station, a gas stati on and convenience store. At the station Brown parked the Blazer on the outsi de of the pump island nearest the store, paid the attendant and then wentto the bathroom while Ringold began pumping gas into the car. There were no othe r cars in front of or behind the Blazer. Phillips pulled up to a parking area a djacent to the service station, parking the patrol car at an angle partially outsid e a spot so that his car was pointing somewhat toward the front door of the serv ice station. Phillips’ car was-4-

at least 15 or 20 feet northeast of the Blazer and was not blocking it from moving forward or backward. After getting out of the patrol car Phillips and Wa lt bought soft drinks from a machine in front of the station and walked over t o Ringold, who was putting gas in the car. Phillips stood on one side of Ringold and engaged him in conversation, while Walt stood in the vicinity wher e he could hear, but he did not say anything. Both Phillips and Walt were armed, b ut their guns were holstered. Defendants and the two officers were of roughly the same physical stature. After the two discussed the cold weather and snow, Phillips asked Ringold where he was from and whether he was on vacation. Ringold responded that he was from Los Angeles and was driving through Kansas on the way to Philadelphia to attend his grandmother’s funeral. During that d iscussion Brown came out of the service station and heard Ringold’s comment abo ut the funeral before checking the pump and going back to the station to get his change. Phillips told Ringold that he sometimes got reports of illegal drugs or weapons being transported from places like Los Ange les to Philadelphia and asked Ringold if he were carrying anything like that. After Ringold denied that he had any drugs or guns, Phillips asked Ringold if he could take a look in the car. Ringold said that he could do so. Ringold op ened the side door of the Blazer, but Phillips asked if he could look in the hatchback at the rear of the car.-5-

Either Ringold or Brown, who had returned to the car from the service station, pushed a button to unlock the back of the Blazer. Once the hatchback was open, Phillips found two large suitcases and asked Ringol d if he could look inside them. One of the suitcases was locked, and when Ringold i ndicated that he did not have a key Phillips asked if he could break the lock. R ingold said “yes.” When Phillips cut the lock and opened the suitcase he fo und a large bale of marijuana inside. Further searching revealed three more larg e bales of marijuana. After the ensuing criminal charges were brought aga inst both defendants, each moved to suppress the evidence of the marijuan a. Denying that motion, the district court found that Phillips’ encounter with defendants did not amount to a seizure and that they had voluntarily consented to the search of the Blazer. Defendants appeal that ruling. Standard of Review In reviewing the denial of a motion to suppress, we view the evidence in the light most favorable to the district court’s de termination (United States v. Williams , 271 F.3d 1262, 1266 (10th Cir. 2001)). To that e nd we will uphold the district court’s factual findings unless they are c learly erroneous (id .). By contrast, the ultimate determination of whether the police action at issue was reasonable under the Fourth Amendment is a ques tion of law that we review de novo (id .). Although the proponent of a motion to suppress bears the burden-6-

of proof in general terms (United States v. Moore , 22 F.3d 241, 243 (10th Cir. 1994), citing Rakas v. Illinois , 439 U.S. 128, 130-31 n. 1 (1978)), whenever the government relies on a defendant’s consent to valid ate a search it bears the burden of proving the consent valid (United States v. Pena , 143 F.3d 1363, 1366 (10th Cir. 1998)). Voluntariness of the Encounter As United States v. Torres-Guevara , 147 F.3d 1261, 1264 (10th Cir. 1998)(internal quotation marks and citation omitted ) has recounted: This court has previously identified three categori es of police-citizen encounters: (1) consensual encounters which do not implicate the Fourth Amendment; (2) investigative detentions whic h are Fourth Amendment seizures of limited scope and duration an d must be supported by a reasonable suspicion of criminal act ivity; and (3) arrests, the most intrusive of Fourth Amendment sei zures and reasonable only if supported by probable cause. Defendants argue that their encounter with Phillips was an investigative detention that was not supported by reasonable suspicion in v iolation of the Fourth Amendment. Over a decade ago Florida v. Bostick , 501 U.S. 429, 439 (1991) reconfirmed the operative standard that still appli es today: We adhere to the rule that, in order to determine w hether a particular encounter constitutes a seizure, a court must consi der all the circumstances surrounding the encounter to determin e whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ re quests or otherwise terminate the encounter.-7-

That inquiry is an objective one. As United States v. Laboy , 979 F.2d 795, 798 (10th Cir. 1992), citing Bostick , has explained: As long as a reasonable innocent person, as opposedto a person knowingly carrying contraband, would feel free to l eave, such encounters are consensual and need not be supportedby reasonable suspicion of criminal activity. We have identified various factors as relevant to t he Bosticktotality-of-thecircumstances approach. United States v. Hill , 199 F.3d 1143, 1147-48 (10th Cir. 1999) has reiterated a previously-provided nonexhau stive list: the threatening presence of several officers; the b randishing of a weapon by an officer; some physical touching by an officer; use of aggressive language or tone of voice indicating that compliance with an officer’s request is compulsory; prolonged retention of a person’s personal effects such as identification and plane o r bus tickets; a request to accompany the officer to the station; in teraction in a nonpublic place or a small, enclosed place; and abs ence of other members of the public. But as Hill , id . at 1148 made clear, no single factor can dictate whether a seizure occurred. Accordingly, “[w]e have steadfastly refu sed to view any one of these factors as dispositive” (id ., quoting United States v. Glass , 128 F.3d 1398, 1406 (10th Cir. 1997)). Defendants do not dispute that objective and fact-s pecific approach--they argue instead that the totality of the circumstance s demonstrates that a reasonable person in either defendant’s position would not hav e felt free to terminate the encounter or to ignore Phillip’s questions. We dis agree under the controlling-8-

caselaw. Considering all of the circumstances in t hose terms, we conclude that the interaction between Phillips and defendants amo unted to a consensual encounter that did not implicate the Fourth Amendme nt and that defendants’ consent to the search of their car was voluntary. It is undisputed that Phillips and Walt approached defendants after their vehicle was already stopped and in the public space outside the service station, in full view of other patrons. Although Phillips and Walt were in uniform and armed, both were roughly the same physical size as Brown and Ringold and neither touched or brandished his weapon during the encounter. While Phillips had parked his police vehicle at an angle rather th an within one of the nearby parking stalls, defendants do not challenge the dis trict court’s finding [Opinion at 3-4] that the patrol car was not blocking defendants ortheir car from leaving the station. Although Phillips’ questioning during the course of the encounter turned from the weather to the subject of illegal d rugs and guns, the district court also found [Opinion at 4] that Phillips was polite and that the conversationwas friendly in tone. Defendants urge that the approach mandated by Bosti ckrequires that we consider the interaction between the officers and d efendants on Interstate 70 in determining the nature of the service station encou nter. Although we agree that such an approach comports with the totality-of-the- circumstances concept, we-9-

find that earlier interaction does not convert the later meeting into a nonconsensual encounter. Unlike the archetypical highway drug seizure that b egins with a stop for some traffic violation, Phillips and Walt did not p ull Defendants over on the Interstate. Rather defendants themselves chose to leave the highway and voluntarily stopped their vehicle at the service st ation. That distinction is key because, as Bostick , 501 U.S. at 434 has quoted from Terry v. Ohio , 392 U.S. 1, 19 n. 16 (1968)): Obviously, not all personal intercourse between pol icemen and citizens involves “seizures” of persons. Only whenthe officer, by means of physical force or show of authority, has i n some way restrained the liberty of a citizen may we conclude that a “seizure” has occurred. Thus the fact that Phillips drove past defendants o n the Interstate without pulling them over, before his ensuing turnaround and approa ch to them at the service station, did not amount to a show of authority thatwould indicate to a reasonable person that he had to comply with Phillips’ inquiri es. Likewise, the fact that Phillips parked the patrol car at an angle rather than in one of the marked parking spots was not a coerci ve act that would communicate to a reasonable person that he could no t decline Phillips’ questioning. As found by the district court, [Opinion at 3-4] the patrol car was well back and to the side of defendants’ vehicle an d was not impeding their path1 Brown seeks to call United States v. Robinson , No. 99-10018-01, 1999 WL

358742, at *1 (D. Kan. May 12, 1999) to his aid. But Robinsonis clearly distinguishable because of its express finding that the officer there intentionally parked his cruiser so as to block the path of the defendant’s vehicle. -10- in any way. 1 Further, Phillips then approached defendants’ carin a nonthreatening manner after buying a soft drink. W e cannot conclude that Phillips’ askew parking choice imbued the ensuing e ncounter with a heightened sense of coercion that would have communicated to areasonable person that he was not free to terminate the encounter. Next defendants contend that a reasonable person wo uld not have felt free to decline Phillips’ questioning because the office rs positioned themselves in such a way that Ringold was encircled between them, the gas pump and his vehicle. But observing that “the location of the encounter i s but one factor in the totality of the circumstances,” Hill , 199 F.3d at 1148 (citing Bostick , 501 U.S. at 439 and United States v. Little , 18 F.3d 1499, 1504 (10th Cir. 1994)(en banc)) con cluded that encounters in even more cramped and confined e nvironments such as buses or train cars could be consensual. Here, although Phillips and Walt were standing on either side of Ringold and the gas pump, nothing prevented Ringold from simply entering his vehicle and driving away. Defendants also argue that the encounter constitute d an investigative detention because Phillips asked Ringold potentiall y incriminating questions about transporting drugs and guns. But United Stat es v. Little , 60 F.3d 708, 712-11-

(10th Cir. 1995)(“Little II ”) has made clear that the mere fact that officers ask incriminating questions is not relevant to the tota lity-of-the-circumstances inquiry--what matters instead is “the manner” in wh ich such questions were posed. As Little II , id . (internal quotation marks omitted) said: Accusatory, persistent, and intrusive questioning c an turn an otherwise voluntary encounter into a coercive one. In contrast to Little II , here there is no evidence, let alone a district c ourt finding, that Phillips’ questioning of Ringold reac hed that level of implied coercion. To be sure, the conversation moved from innocuous weather discussion and travel-related inquiries to questions of an inc riminating nature about illegal drugs and guns. But even the latter questions were not worded or delivered in such a manner as to indicate that compliance with a ny officer directives (or even inquiries) was required. Defendants do not dispute that the officers remained polite throughout the encounter, and Brown himself acknowledged that the officers did not display an intimidating or coerciv e demeanor. Finally, defendants point out that they were never advised during the encounter that they could decline to answer Phillip s’ questions or that they were free to leave. To be sure, the lack of notificatio n of an individual’s right to refuse consent may be a relevant fact to consider, but as United States v. Broomfield , 201 F.3d 1270, 1275 (10th Cir. 2000)(citation omitt ed) has explained: Moreover, there is nothing unlawful about the pract ice of-12-

approaching individuals and asking them potentiallyincriminating questions, and there is no per se rule requiring law enforcement officials to specifically advise those individuals they do not have to answer police questions. It might perhaps be contended that all of this is u nduly formalistic and does not give sufficient play to the natural tendency of any person--the wholly innocent individual as well as someone transporting contraband--to feel somewhat cowed when a law enforcement officer approaches and begin s to ask questions, particularly those probing into the possibility of illegal activity. But even apart from the difficulties that a more restrictive appro ach would pose for entirely legitimate law enforcement efforts, it is too late in the day--the law is too firmly established--to convert that notion into a more dem anding test for the legality of a noncustodial encounter with an officer. In sum, the interaction between Phillips and defend ants, when viewed in its totality, falls clearly within the lines of a conse nsual encounter as drawn by Supreme Court precedent and our own prior rulings. Under all of the circumstances here, the officers’ conduct would nothave conveyed to a reasonable person that “he was not free to decline the officers’ requests or otherwise terminate the encounter” (Bostick , 501 U.S. at 439). As such, the encounter was consensual rather than an investigati ve detention and therefore did not constitute a seizure within the meaning of the Fourth Amendment.-13- Voluntariness of Consent to Search It has long been established that an officer may co nduct a warrantless search consistent with the Fourth Amendment if the challenging party has previously given his or her voluntary consent to th at search (see , e.g. , Schneckloth
v. Bustamonte , 412 U.S. 218, 219 (1973); Pena , 143 F.3d at 1365-66). Here, although defendants argue that their consent to the car search could not be viewed as voluntary because it was tainted by an illegal i nvestigatory detention, our conclusion that defendants’ encounter with Officer Phillips was not an investigatory detention torpedoes that contention. But it is worth adding that on the evidence here, d efendants’ consent to the search was voluntary in all events. Ringold’s affi rmative consent, given orally to Phillips at each stage of the search, was unequivoc al. Although Brown claimed not to have consented to the search, the district c ourt found that he nodded his head affirmatively [Opinion at 5] --and its finding must be credited. Furthermore, Brown was present at the vehicle durin g the search, knew that it was happening and made no attempt to stop it. So the government has another string to its bow. W e also hold that defendants’ consent to the search of their car was both voluntary and valid. Conclusion For the foregoing reasons, we AFFIRM the district c ourt’s decision denying each defendant’s motion to suppress.