* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### FEB 17 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JOSHUA MAGERS, Defendant-Appellant. No. 03-4292 (District of Utah) (D.C. No. 2:02-CR-352-01-TC)

ORDER AND JUDGMENT *

Before SEYMOUR , MURPHY , and McCONNELL , Circuit Judges.

I. Introduction Appellant, Joshua Magers, was charged in a four-cou nt indictment with drug and firearms crimes. Magers filed a motion to suppress evidence seized during a roadside search of his vehicle and a subse quent search of his apartment. The district court denied the motion and the matterproceeded to trial. The jury convicted Magers of Counts I, III, and IV. He was sentenced by the district court-2-

to 110 months’ imprisonment and five years’ supervi sed release. Magers then brought this appeal challenging the denial of his s uppression motion. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the denial of Magers’ motion to suppress. II. Background In January 2002, detectives with the West Valley Ci ty Police Department received information from two confidential informan ts that individuals were possibly manufacturing methamphetamine at an apartm ent located in West Valley City. Based on this information, the detectives de cided to conduct surveillance at the apartment. They observed several people walk t o and from the apartment and then drive away in two separate cars. The detectiv es divided into two groups and followed the two cars. Detectives Crandall and Stokes began to follow a Fo rd Mustang driven by Magers. Shortly thereafter, they requested assistance from West Valley City police officer, Michael Fullwood. Officer Fullwood testified that he stopped Magers’ vehicle after it failed to come to a comple te stop before making a right turn at a red light. Fullwood further testified th at as he approached Magers’ vehicle, he observed two female passengers who were not wearing seat belts. Detective Crandall testified that he also noticed t hat the two female passengers-3-

were not wearing seat belts. The failure to wear aseat belt is a secondary offense under Utah law. Utah Code Ann. § 41-6-182. Officer Fullwood spoke to Magers while Crandall andStokes spoke to the female passengers. Fullwood testified that Magers produced a valid driver’s license and registration for the Mustang. He furth er testified that after a check revealed there were no outstanding warrants on Mage rs, he returned the documents to Magers and told him he was free to leave. Neither of the two female passengers, however, was able to produce ide ntification. A check of their social security numbers and dates of birth revealedthat one of the women, Stephanie Hymas, had two outstanding warrants for h er arrest. The officers detained Hymas and asked if they could search her p ersonal property. She consented. Her bags were removed from the Mustang, placed on the trunk, and searched. While the officers searched Hymas’ bags, Magers remained in the vehicle and did not ask the officers to remove the bags. Before their search of Hymas’ bags was completed, the officers received a call from Detective Gray who had stopped the secondvehicle. Gray told Detective Stokes that a search of that vehicle had led to the discovery of several blister packages of ephedrine, a substance used in the production of methamphetamine. When Stokes informed Gray that Ma gers was the driver of the Mustang, Gray told Stokes that he had recently arre sted Magers for possession of-4-

methamphetamine. The officers then called for a dr ug dog to inspect Magers’ vehicle. After the dog indicated for drugs in the vehicle, it was searched and officers found approximately fifteen grams of metha mphetamine. The officers arrested Magers. While the officers searched Magers’ vehicle, Detect ive Gray returned to the apartment and obtained consent to enter from the in dividual who answered the door. Detective Stokes, who was also at the apartm ent with Detective Gray, then received a call from Detective Crandall informing h im that the officers had found methamphetamine in Magers’ vehicle. Gray telephone d a Utah state judge who issued a telephonic search warrant for the apartmen t. Additional drugs and several firearms were found in the apartment.
III. Discussion After Magers was indicted, he moved to suppress the evidence found in both the vehicle and the apartment. Magers first ar gued that Officer Fullwood lacked probable cause to believe he had committed atraffic violation because Utah law does not prohibit a motorist from making aright turn at a red light without stopping. See Utah Code Ann. § 41-6-24. The district court conc luded, however, that the applicable statute made it clear that a motorist must make a complete stop before turning at a red light. The c ourt also rejected Magers’ argument that he was illegally detained beyond the scope of the initial traffic1 Although Magers also argued before the district cou rt that there was no

probable cause to justify the search of his vehicle , he does not challenge the district court’s ruling on that issue in this appea l. -5- stop. Noting that Magers was not handcuffed or rem oved from his vehicle and that Officer Fullwood returned Magers’ license and registration to him and told him he was free to leave, the court concluded that a reasonable person in Magers’ position would have felt free to leave. Thus, Mage rs was not seized under the Fourth Amendment. See United States v. Hernandez , 93 F.3d 1493, 1498 (10th Cir. 1996). The district court considered, but rej ected, Magers’ argument that he did not believe he was free to leave because the of ficers had placed Hymas’ belongings on the truck of his car. The court note d that Magers never asked the officers to remove the bags from the top of the car

. 1 The court next rejected Magers’ argument that the w arrant to search the apartment was not supported by probable cause. The court determined that Detective Gray communicated the following informati on to the state judge: (1) a reliable confidential informant had provided inform ation that an individual named Josh had been manufacturing and distributing methamphetamine from the apartment; (2) a large amount of ephedrine had been found during the search of one of the cars seen leaving the apartment; (3) a d rug dog had indicated the presence of drugs in a car driven by Magers; and (4 ) Magers was the tenant of the apartment. The court concluded that this informati on was more than sufficient to-6-

establish probable cause to search the apartment. The district court then considered Magers’ argument that the telephonic warrant was invalid because it did not comport with Utah law. Although the govern ment conceded that one or more of the Utah statutory requirements were not me t, the district court rejected Magers’ argument. The court concluded that, in thi s case, the failure to comply with the statutory requirements had no bearing on the constitutionality of the search under the Fourth Amendment. United States v. Green , 178 F.3d 1099, 1106 (10th Cir. 1999) (“The Fourth Amendment is sat isfied where, as here, officers obtain a warrant, grounded in probable cau se and phrased with sufficient particularity, from a magistrate of the relevant ju risdiction authorizing them to search a particular location, even if those officer s are acting outside their jurisdiction as defined by state law.”). This court reviews the denial of a motion to suppre ss, by viewing the evidence in the light most favorable to the governm ent and accepting the district court’s factual findings unless they are clearly er roneous. United States v. Price , 265 F.3d 1097, 1104 (10th Cir. 2001). The ultimate determination of whether a search or seizure was reasonable under the Fourth A mendment, however, is a question of law reviewed de novo

. Id. Further, a search warrant and its supporting affidavit are presumed valid and a “magi strate’s determination of-7-

probable cause should be paid great deference by re viewing courts.” Illinois v.
Gates , 462 U.S. 213, 236 (1983) (quotation omitted). Having reviewed the record and considered the parti es’ arguments under the applicable standards, we conclude that the dist rict court did not err when it denied Magers’ motion to suppress. Accordingly, fo r substantially those reasons stated by the district court it its Order dated Mar ch 11, 2003, we affirm the judgment of the district court.
ENTERED FOR THE COURT

Michael R. Murphy Circuit JudgeUnited States v. Magers , No. 03-4292.

McCONNELL , J., concurring. It is not obvious to me that Mr. Magers was “object ively” free to terminate the encounter with the police, as the majority hold s. Maj. Op. 5. That he was not handcuffed, and was handed his documents and told h e could leave, would not be conclusive if other aspects of the “totality of the circumstances” indicated that this was not so. United States v. Manjarrez , 348 F.3d 881, 885–86 (10th Cir. 2003). Here, two officers were questioning Mr. Mag ers’s passengers and had placed one of the passenger’s belongings on the tru nk of his car in order to search them. While the officer dealing with Mr. Magers ha d returned his documents and told him he was free to leave, he could not do so w ithout, at a minimum, asking officers to remove things from his car: Q: And your testimony was that Mr. Magers could jus t take off? A: He could have asked us, yes. Transcript of Motion to Suppress, Testimony of Offi cer Fullwood at 66. A reasonable person might question whether he was fre e to leave if he had to ask the police to remove things from his car before he coul d actually do so. And not all the officers shared Officer Fullwood’s view of the degree of freedom Mr. Magers enjoyed. One of the officers co nducting the search of the bags testified that Mr. Magers was not free to leav e:

Q: So basically, even though he had his credentials , he was detained, wasn’t he? A: Yes, he was . . . Q: And we are still in agreement that the car could not leave?-2- A: This is correct . . . Q: So if Mr. Magers, even though he had his driver’ s license, he couldn’t just take off because you were using th e car? A: Correct. Transcript of Motion to Suppress, Testimony of Offi cer Crandall at 21–22. A flat statement by one of the officers that it was “corre ct” that the defendant “could not leave” is surely evidence that, “objectively,” he c ould not leave. At a minimum, a reasonable person in Mr. Magers’s position may well have shared that conviction. Even if Mr. Magers, after requesting that the polic e remove the items from the trunk of his car, was technically free to aband on his friends by the side of the road without transportation, there is room to doubtwhether he would have been permitted to take his car with him. As Officer Cra ndall explained, the police were “using” the car in connection with their searc h of the passengers. Mr. Magers may have been free to leave only to the exte nt that he was willing and able to abandon his car as well as his friends and hike off. I do not think we need to resolve the issue of whet her Mr. Magers was detained for purposes of the Fourth Amendment, because it is clear from the facts of the case (and Mr. Magers does not argue otherwis e) that any constraint on Mr. Magers to remain with his vehicle and friends was aproduct of a legitimate investigation of Mr. Magers’s passengers, for whichthe police had amply reasonable basis. Even if a legitimate detention o f a vehicle’s passengers—and perhaps of the vehicle as well—has the incidental e ffect of detaining the vehicle’s-3-

driver, that detention is best understood as result ing from the driver’s attachment to his vehicle or his passengers rather than being a direct consequence of police activity. See INS v. Delgado , 466 U.S. 210, 218 (1984) (factory workers’ inability to leave while INS agents asking them que stions regarding immigration status due to voluntary obligation to employer rath er than police activity); Florida v. Bostick, 501 U.S. 429, 436 (1991) (freedom of movement restr icted by factor independent of police conduct—i.e., by being a pass enger on a bus). That Mr. Magers abandoned neither car nor friends is ultimat ely attributable to his sense of his social responsibilities rather than to the acti vities of the police. I therefore concur on the ground that, whether or n ot Mr. Magers was free to go in any technical sense, the constraints were the consequence of a legitimate detention of his passengers and therefore not a vio lation of his Fourth Amendment rights.