This order and judgment is not binding precedent, except under the *

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I LED

United States Court of Appeals

Tenth Circuit

May 19, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 05-4175

v. (D.C. 2:04-CR-616-PGC)

GILBERT TODD ELLIS, (D. Utah)

Defendant-Appellant.

 

ORDER AND JUDGMENT

*

Before KELLY, McKAY, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.

Appellant was charged with one count of possession of ammunition by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1). He filed a motion to

suppress the ammunition evidence. The district court held a hearing on the
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motion and denied it. Appellant then entered a conditional plea of guilty that

preserved his right to appeal the district court’s ruling on his motion to suppress. 

Appellant was sentenced to thirty-seven months’ imprisonment. He appeals the

district court’s suppression ruling, contesting that there was no reasonable

suspicion to support his detention or his subjection to a Terry frisk.

When reviewing the denial of a motion to suppress based on an allegation

that officers violated a defendant’s Fourth Amendment rights, we consider the

totality of the circumstances and view the evidence in the light most favorable to

the government, accepting the district court’s findings of facts unless they are

clearly erroneous. United States v. Gay, 240 F.3d 1222, 1225-26 (10th Cir.

2001). “However, the ultimate determination of the reasonableness under the

Fourth Amendment is reviewed de novo.” United States v. Lang, 81 F.3d 955,

964 (10th Cir. 1996).

On August 24, 2004, officers were conducting surveillance near a

neighborhood convenience store, having received numerous anonymous

complaints through a drug tip hotline about individuals possibly buying and

selling drugs in the area. The officers observed a car pull into the convenience

store parking lot, but no one exited the vehicle. An individual then approached

the car, leaned through the window to converse with the occupants, and left. This

scenario was repeated. Appellant and the convenience store owner then

approached the car; the owner told the car’s occupants that they could not park
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there, and Appellant, who evidently recognized the driver, asked for a ride.

At this time the police officers approached the parked vehicle and ordered

the three occupants to show their hands. The driver and front seat passenger

complied, but the back seat passenger did not. As the back seat passenger

reached down below his leg, the officer drew his own weapon and ordered

Appellant and the convenience store owner (who were still standing near the

vehicle) to get down on the ground.

Another officer arrived on the scene and, having recognized Appellant from

a prior drug arrest, focused his attention on him. Appellant attempted to rise up

from the ground and repeatedly stated that he had done nothing wrong. The

officer conducted a frisk of both Appellant and the store owner. While searching

Appellant, the officer felt something hard in his pant pocket, which he believed

was a magazine for a gun. The officer then handcuffed Appellant, checked the

pant’s pocket, and seized the gun magazine.

Appellant argues that the district court erred in denying his suppression

motion because he contends that the officers had no reasonable suspicion to

detain him. The record reflects: (1) there were numerous citizen-informant

complaints regarding hand-to-hand drug transactions in a specified area; (2)

Appellant was observed approaching a suspicious car and talking to an occupant

immediately after two individuals had separately approached the same car

engaged in conduct consistent with a hand-to-hand drug transaction; and (3) one
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of the officers knew that Appellant had a criminal record, including an arrest for

drug possession.

A brief detention is permissible if based on “reasonable suspicion to

believe that criminal activity may be afoot.” United States v. Quintana-Garcia,

343 F.3d 1266, 1270 (10th Cir. 2003) (internal quotations omitted). The record in

this case supports this belief. 

Appellant also argues that the officers had no reasonable suspicion to

justify a frisk for weapons. During the course of an investigative detention, “an

officer may conduct a pat-down search (or ‘frisk’) if he or she ‘harbors an

articulable and reasonable suspicion that the person is armed and dangerous.’”

United States v. Hishaw, 235 F.3d 565, 570 (10th Cir. 2000) (quoting United

States v. Davis, 94 F.3d 1465, 1468 (10th Cir. 1996)). In this case, the officer’s

suspicion that Appellant was involved in drug activity, coupled with his noncompliance with the officers’ commands to lie on the ground, supported a

reasonable suspicion that he was armed and dangerous. Reasonable suspicion that

an individual is involved in drug dealing, standing alone, may justify a frisk for

weapons because “[t]he crimes about which [the officer] was concerned are

typically associated with some sort of weapon . . . .” United States v. Johnson,

364 F.3d 1185, 1195 (10th Cir. 2005); see also Hishaw, 235 F.3d at 570-71. 

Given the totality of the circumstances, especially in light of Appellant’s noncompliance in a charged situation, we determine that the officers had reasonable
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suspicion to conduct a frisk for weapons.

We have carefully reviewed the briefs of Appellant and Appellee, the

district court’s disposition, and the record on appeal. We are in accord with the

district court’s denial of Appellant’s suppression motion, and we consequently

AFFIRM the district court’s June 30, 2005, sentence.

Entered for the Court

Monroe G. McKay

Circuit Judge