* This order and judgment is not binding precedent, except under the doctrines

of law of the case, res judicata, and collateral es toppel. This court generally disfavors the citation of orders and judgments; nev ertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without or al argument. 

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

### JUL 28 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, vs. KELVEY L. SARGENT, Defendant-Appellant. No. 97-3331 (D.C. No. 96-CR-40028-01 RDR)

(D. Kan.)

ORDER AND JUDGMENT *

Before PORFILIO , KELLY , and HENRY , Circuit Judges. **
Mr. Sargent appeals from the denial of his motion t o suppress. He was convicted upon a conditional plea of possession with intent to distribute cocaine base, 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 18 U.S.C. § 2, and sentenced to 180 months imprisonment and five years of supervised re lease. On appeal, Mr. Sargent contends that once the arresting officer ha d dispelled suspicion that he- 2 -

was driving while intoxicated, Mr. Sargent should h ave been allowed on his way. Instead, the officer requested Mr. Sargent’s licens e, and when Mr. Sargent could not produce one, the officer detained him and arres ted him after learning that he was wanted for bank robbery and considered armed. Mr. Sargent challenges the retrieval of a firearm and the impoundment and even tual inventory of his vehicle (that netted the contraband) as derivative evidence

. The district court viewed Mr. Sargent’s interactionwith law enforcement as a consensual encounter, but even if characterize d as an investigative detention, as properly supported by reasonable suspicion. In reviewing the denial of a motion to suppress, we view the evidence in the lig ht most favorable to the government and are bound by the district court’s fi ndings unless clearly erroneous. United States v. Torres-Guevara , No. 97-4115, 1998 WL 378118, *3 (10th Cir. July 8, 1998). We review de novo whethe r a defendant’s interaction with law enforcement is properly classified as a co nsensual encounter not implicating the Fourth Amendment or an investigativ e detention supported by reasonable suspicion. Id. Assuming the latter, the ultimate issue of Fourth Amendment reasonableness is legal and is reviewed de novo. United States v. Botero-Ospina , 71 F.3d 783, 785 (10th Cir. 1995) (en banc), cert. denied , 518 U.S. 1007 (1996). Mr. Sargent’s vehicle was not stopped by law enforc ement, although an- 3 -

officer testified as to his concern that the vehicl e was changing lanes and speeds repeatedly, and the left rear turn signal was dim. Instead, the officer questioned Mr. Sargent about these matters when both had parke d their vehicles and were entering a fast-food restaurant. Thus, the encount er began as consensual. It became an investigatory detention only when the off icer required Mr. Sargent to accompany him to the officer’s car. See III R. 15; IV R. 7-8. This was prompted by the officer’s learning that Mr. Sargentdid not have a driver’s license or any other identification on his person. The officer testified: so I asked him to step back to my car because I’ve got things to write on there where I could [write] down his name and date of birth and also use that information to check with my dispatch er over the radio to check for a driver’s license status. IV R. 7. Given the officer’s plan and the totalityof the circumstances, no factors suggest that a reasonable person would have felt fr ee to leave after the officer learned of the lack of a license and decided to che ck on driver’s license status. The officer needed information from Mr. Sargent to initiate the check. Moreover, the officer was accompanied by another of ficer, both were in uniform and armed, and Mr. Sargent was not advised he could decline the request. See United States v. Mendenhall , 446 U.S. 544, 553-54 (1980); United States v. Glass , 128 F.3d 1398, 1406 (10th Cir. 1997). The case law is unequivocal, however, that during aconsensual encounter, an officer may request a driver’s license or other identification. See Florida v.- 4 -

Bostick , 501 U.S. 429, 437 (1991); INS v. Delgado , 466 U.S. 210, 216 (1984) (discussing that majority of Court in Florida v. Royer , 460 U.S. 491, 501 & 523 n.3 (1983), viewed request for airplane ticket and driver’s license as permissible in and of themselves); United States v. Lambert , 46 F.3d 1064, 1068 (10th Cir. 1995). Once the officer learned that Mr. Sargent l acked a license, he had reasonable suspicion to detain him, particularly gi ven the officer’s earlier observations. See Kan. Stat. Ann. §§ 8-236(a)(1) (license requirements for nonresidents) & 8-244 (1991) (requiring possession of driver’s license when operating a motor vehicle and display upon demand of peace officer) . In other words, once the consensual encounter evolved into an investigatory detention, the officer’s action was justified at the inception of the detention and was reasonably related in scope to the circumstances which justified the interference. See Terry v. Ohio , 392 U.S. 1, 20 (1968). Mr. Sargent relies upon United States v. McSwain , 29 F.3d 558 (10th Cir. 1994), and United States v. Lee , 73 F.3d 1034 (10th Cir. 1996), for the proposition that once the officer had satisfied him self that Mr. Sargent was not impaired, the encounter should have terminated and Mr. Sargent allowed to proceed on his way. Given our holding that the enc ounter was consensual until Mr. Sargent was required to accompany the officer t o check on his license, McSwain and Lee are without application. See McSwain , 29 F.3d at 562 n.1;- 5 -

Lee , 73 F.3d at 1039. The officer did not exceed the scope of what became an investigatory detention to check on a license. Onc e the officer learned that Mr. Sargent was wanted for bank robbery in the course o f that check, the officer had probable cause for arrest. AFFIRMED. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge