F I L E D

United States Court of Appeals

Tenth Circuit

JAN 31 2003

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOSEPH RUSSELL MIKULSKI,

Defendant - Appellant.

No. 01-4169

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D.C. No. 2:00-CR-227-S)

Benjamin A. Hamilton, Salt Lake City, Utah, for the Defendant-Appellant.

Wayne T. Dance, Assistant United States Attorney (Paul M. Warner, United

States Attorney, with him on the brief), Salt Lake City, Utah, for the 

Plaintiff-Appellee.

Before KELLY , BALDOCK , and HENRY , Circuit Judges.

HENRY , Circuit Judge.
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Joseph Russell Mikulski was charged in a one-count indictment with

possession of stolen mail in violation of 18 U.S.C. § 1708. After the district court

denied Mr. Mikulski’s motion to suppress, Mr. Mikulski entered a conditional

plea of guilty to the charge. Mr. Mikulski received a sentence of sixty months of

imprisonment. He now appeals the district court’s denial of his motion to

suppress. He argues that the evidence should be suppressed because (1) the

officers exceeded their jurisdictional authority when they arrested him; (2) the

officers lacked reasonable suspicion to detain him; and (3) the subsequent

detention was also unlawful. We hold that the officers’ actions were permissible

under Utah Code Ann. § 77-9-3, which allows an officer to exercise authority

outside of his established jurisdiction when a public offense is committed in an

officer’s presence. We also hold that the initial questioning and the subsequent

detention of Mr. Mikulski were permissible. For the reasons stated below, we

affirm the decision of the district court.

I. BACKGROUND

The background facts are not in dispute, and we reiterate them as found by

the district court. On February 9, 2000, Detective Wally Perschon was assisting

other deputies from Utah County, Utah in trying to recover stolen property. The

property had been stolen in Utah County, but information from an informant
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suggested that the property was (1) located in the West Valley-Kearns area of Salt

Lake County at a house located at 4560 West 5780 South, and (2) in the

possession of a man named Johnnie Green. Detective Perschon did not have a

physical description of Mr. Green, other than that he was a white male who drove

a truck.

Detective Perschon, accompanied by three other members of the Utah

County Sheriff’s office, Detectives Richard Case, Darrin Durfey, and Sergeant

Jerry Monson, traveled to Salt Lake County to locate the property and to talk to

Mr. Green. No other officers from either Salt Lake County or the West Valley

City Police Department were contacted or present at any time during the Utah

County officers’ visit to Salt Lake County until after Mr. Mikulski’s arrest. 

Upon reaching the address at approximately 9:00 pm, Sergeant Monson and

Detective Case knocked on the door of the house at 4650 West 5780 South. The

occupants informed them that Mr. Green had just left, and the officers waited

inside the house. In order to avoid detection, Detectives Perschon and Durfey

waited for Mr. Green approximately one block down the street from the residence

in an unmarked green vehicle.

After about fifteen minutes, a man and a woman exited the house to smoke

cigarettes on the porch. During this time, a pickup truck approached the house

and pulled to the side of the street opposite to oncoming traffic, right before the
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house’s driveway. An individual exited the passenger’s side and approached the

house. According to testimony from Detective Perschon, the individuals on the

porch appeared to wave the passenger off, and the individual returned to the

truck. 

Detective Perschon, with Detective Durfey, suspecting that Johnny Green

was in the truck, drove up to the truck. Detective Perschon did not use emergency

lights and he did not block the truck. The detectives, dressed in plainclothes,

approached the truck, one on each side of the pickup. While approaching the

vehicle, Detective Perschon noticed the truck lacked a front license plate. The

detectives identified themselves and showed the truck’s occupants, a male driver

and a female passenger, their badges. Detective Perschon testified that he was

uncertain at what point in time Detective Durfey and Sergeant Monson joined him

around the truck. Detective Perschon testified that as he approached the vehicle,

Mr. Mikulski appeared “very nervous” but “[n]ot aggressive.” Rec. vol. II, at 47

(Motion to Suppress Hr’g, dated Aug. 4, 2000). Detective Perschon asked the

driver who he was, and the driver identified himself as Joseph, but stated that he

had no identification. 

Detective Perschon asked again for identification, and the driver again

stated that he had none. At this point, Detective Perschon suspected that the

driver was hiding his identity. Detective Perschon testified that other than the
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missing front plate and a potential parking violation, he had no reason to believe

that Mr. Mikulski had committed a crime. 

Detective Perschon testified that he then asked the driver to step out of the

truck to search him for identification and to check for weapons. Detective

Perschon admitted that although he had no reason to believe that the driver was

armed, his standard practice was to conduct a frisk in the interest of officer

safety. Detective Perschon also testified that Mr. Mikulski’s nervous demeanor

made the detective concerned for his own safety.

Before conducting a pat-down search, Detective Perschon asked the driver

if he had any weapons on his person. The driver responded that he had a knife on

his belt. Detective Perschon told Mr. Mikulski to put his hands on the vehicle

where the detective could see them. Detective Perschon performed a pat-down

search, which also revealed a pistol in the driver’s left front pocket. Detective

Perschon placed the driver under arrest for carrying a concealed firearm. 

Detective Perschon told the driver not to move, and requested assistance in

securing the weapon. After handcuffing Mr. Mikulski, Detective Perschon

conducted a further pat-down search that revealed drugs in the driver’s left shirt

pocket. Detective Perschon also found a wallet on the driver with several pieces

of identification, with various names. Mr. Mikulski identified himself as Joseph

Mikulski. Detective Perschon directed another officer to run a records check,
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because of the conflicting identifications. Mr. Mikulski was eventually turned

over to Salt Lake County authorities. The Salt Lake County Sheriff’s Office

agreed to transport Mr. Mikulski to jail and to impound the vehicle. 

After contacting the Salt Lake County authorities, Detective Perschon

testified that he conducted a vehicle inventory, because “[the Salt Lake County

authorities] didn’t want to.” Rec. vol. II, at 61. The inventory revealed a

backpack containing multiple and conflicting pieces of identification, and

equipment to make false identifications, credit card statements, and bills that were

not in Mr. Mikulski’s name, other people’s property, cameras, telephones, and

more drugs. The stolen mail formed the predicate for the indictment for violation

of 18 U.S.C. § 1708.

II. DISCUSSION

In reviewing the district court’s denial of Mr. Mikulski’s motion to

suppress, we view the evidence in the light most favorable to the district court’s

determination and accept the factual findings of the district court unless they are

clearly erroneous. United States v. Wood , 106 F.3d 942, 945 (10th Cir. 1997).

Our ultimate determination of reasonableness under the Fourth Amendment is a

question of law that we review de novo. See id.

Mr. Mikulski, in challenging the district court’s denial of his motion to

suppress, argues that (1) the officers exceeded their authority by exercising power
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beyond the limits of their jurisdiction in violation of Utah Code Ann. § 77-9-3;

(2) the initial encounter was not consensual; and (3) the subsequent detention and

pat-down search were also unlawful. First, we consider Mr. Mikulski’s charge

that the officers acted unlawfully in exceeding their jurisdiction. We then turn to

the balance of Mr. Mikulski’s arguments.

A. Extra-jurisdictional activities

Mr. Mikulski contends that when the Utah County officers decided to

venture into Salt Lake County to locate Johnnie Green, that they were required to

notify Salt Lake County authorities, pursuant to Utah Code Ann. § 77-9-3, which

adopts the Uniform Act on Fresh Pursuit. The statute provides that:

(1) Any peace officer authorized by any governmental entity of this

state may exercise a peace officer's authority beyond the limits of such

officer's normal jurisdiction as follows:

(a) when in fresh pursuit of an offender for the purpose of arresting and

holding that person in custody or returning the suspect to the

jurisdiction where the offense was committed;

(b) when a public offense is committed in such officer’s presence;

(c) when participating in an investigation of criminal activity

which originated in the officer's normal jurisdiction in cooperation

with the local authority; or

(d) when called to assist peace officers of another jurisdiction.

(2) (a) Any peace officer, prior to taking any action authorized by

Subsection (1), shall notify and receive approval of the local law

enforcement authority, or if the prior contact is not reasonably

possible, notify the local law enforcement authority as soon as

reasonably possible.

(b) Unless specifically requested to aid a peace officer of another

jurisdiction or otherwise as provided for by law, no legal responsibility

for a peace officer's action outside his normal jurisdiction, except as
1

 No allegation of hot pursuit exists here. Ross was a § 1983 action arising

from the plaintiff’s arrest by an Oklahoma state police officer of the Cherokee

Indian defendant on Indian Tribal Trust land. We held that the extrajurisdictional arrest was invalid and stated that “[a]bsent exigent circumstances,

[an arrest executed outside of the arresting officer’s jurisdiction] is presumptively

unreasonable,” and “violates the Fourth Amendment.” Ross, 905 F.2d at 1353-54.

2

 Despite this concession, the government declined to “address whether the

arrest occurred outside of the officers’ territorial jurisdiction.” Aple’s Br. at 22. 

The government’s omission of discussion of this obviously relevant issue is not

helpful to this court.

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provided in this section, shall attach to the local law enforcement

authority.

Utah. Code Ann. § 77-9-3 (emphasis added).

The government cites little helpful authority to directly support its

contention that upon discovery of the partially loaded firearm, in the interest of

officer safety, exigent circumstances existed to justify the warrantless arrest.

Rather, the government curiously cites Ross v. Neff , 905 F.2d 1349 (10th Cir.

1990), where we noted that an arrest made in hot pursuit would likely be

constitutionally valid. 1 See id. at 1354, n.6. The government also concedes that

before the district court, it admitted that “the officers did not comply with Utah

State law in coordinating their investigation with local law enforcement in Salt

Lake County.” Aple’s Br. at 22, n.8 2

Here, the magistrate judge and the district court did not conclude that

exigent circumstances existed, but, rather, determined that the officers’ violation
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of state law did not rise to the level of a federal constitutional violation. In so

finding, the district court relied upon United States v. Green , 178 F.3d 1099, 1106

(10th Cir. 1999), where we upheld a warranted search conducted by officers

“outside their jurisdiction as defined by state law.” 

In Green, we noted that the “exclusionary rule is only concerned with

deterred [federal] Constitutional violations,” id. (internal quotation marks and

citations omitted), and that “the fact that the arrest, search, or seizure may have

violated state law is irrelevant as long as the standards developed under the

Federal Constitution were not offended.” Id. However, we also noted in Green

that Ross was easily distinguishable because Ross “involved a warrantless arrest

outside the arresting officer’s jurisdiction,” Green , 178 F.3d at 1106 (emphasis in

original), and that Green involved a warranted search. We noted that “[a]

warrantless arrest is vastly different from a warranted search,” and reiterated

Ross’s holding that a warrantless arrest outside the arresting officer’s jurisdiction

is presumptively invalid. See id. (“[W]e decline to extend Ross to the context of

warranted searches.”).

The officers’ violation of state law is not, without more, necessarily a

federal constitutional violation. See United States v. Baker, 16 F.3d 854, 856 n.1

(8th Cir. 1994) (“A police violation of state law does not establish a Fourth

Amendment violation. However, the question of compliance with state law may
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well be relevant in determining whether police conduct was reasonable for Fourth

Amendment purposes.”). We thus must determine whether the officers’ actions

amounted to a federal violation.

The Seventh Circuit recently distinguished Ross in an instructive opinion,

Pasiewicz v. Lake County Forest Preserve Dist. , 270 F.3d 520, 527 n.3 (7th Cir.

2001). In Pasiewicz , the plaintiff, after his acquittal on a public indecency

charge, filed a § 1983 action alleging, in part, that the arresting officers acted

without jurisdiction and without a warrant. The plaintiff had been arrested within

the jurisdiction of the Illinois State forest preserve police forces. See id. By

statute, a state officer’s extraterritorial jurisdiction must be directed by the forest

preserve’s chief of police or other head. See id. at 526.

The Seventh Circuit noted that unlike in Ross, Pasiewicz did not implicate a

state officer’s ability “to arrest a Native American on tribal trust land.” Id. at 526

n.3 (citing Ross, 905 F.2d at 1352). Rather, Pasiewicz “concern[ed] the

jurisdiction of officers acting between political subdivisions of the same state .” 

Id. (emphasis added); compare with Ross , 905 F.2d at 1354 (holding that “[t]he

‘borrowing’ provision of [the Assimilative Crimes Act] . . . does not grant states

independent authority to enforce their own laws over Indians on Indian land”) and

with United States v. Baker , 894 F.2d 1144, 1147 (10th Cir. 1990) (suppressing

evidence because county district court exceeded its jurisdiction when it issued a
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search warrant for property on a tribal reservation because the state had no

jurisdiction over the reservation to enforce state law, including to execute a

search warrant, unless Congress consented to the state’s jurisdiction).

Here, the situation is analogous to that in Pasiewicz . Utah law authorizes

the assumption of criminal jurisdiction by any peace officer authorized by “any

[Utah] governmental entity.” § 77-9-3. We remain troubled for several reasons,

however. First, there is no allegation of fresh pursuit. Second, the Utah County

detectives had ample time to coordinate a four-person investigation in Salt Lake

County, but apparently never considered § 77-9-3(2)(a)’s requirement that they

“notify and receive approval of the local law enforcement authority” before

setting off to conduct surveillance at the residence located at 4560 West 5780

South. Furthermore, it seems clear that the officers knew they were outside their

jurisdiction, because they contacted the Salt Lake authorities after the arrest. 

“Such a blatant disregard of state law and the chain of command . . . weigh[s] on

the scales of reasonableness.” Pasiewicz , 270 F.3d at 527 (noting that the

officers did not “kn[ow] they lacked jurisdiction”).

The government tries to emphasize that exigent circumstances, analogous to

the immediacy of “fresh pursuit,” existed here. This argument is difficult to

accept. The government concedes that the Utah county officers ignored the state

statute, but it refuses to acknowledge that any exigency may have responsibly
3

 Section 77-7-2 states:

A peace officer may make an arrest under authority of a warrant or may,

without warrant, arrest a person: 

(1) for any public offense committed or attempted in the presence of

any peace officer . . . .

Utah Code Ann. § 77-7-2(1).

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been avoided through adherence to the statute, via notification of the Salt Lake

County authorities. Although it might not be reasonable to expect an officer to

anticipate the events that ensue during a traffic stop, the Utah County officers

here had complete control of the parameters of the investigation, when and where

it occurred, and who was involved. It is reasonable to expect the assurance that

officers will comply with the relevant laws so as to avoid the manufacture of

“exigencies.” See United States v. Morgan, 743 F.2d 1158, 1163 (6th Cir. 1984)

(noting that in the context of a warrantless arrest, “[p]olice officials . . . are not

free to create exigent circumstances to justify their warrantless intrusions.”).

Despite the apparent violation of state law, we cannot say that the officers’

actions amounted to a federal violation. Detective Perschon, upon noticing that

the pickup truck lacked a front license plate, had probable cause to believe that a

public offense had been committed. See State v. Trane , No. 20010068, 2002 WL

31055998, at *8, 57 P.3d 1052 (Utah Sept. 17, 2002) (holding officer authorized

to make arrest for misdemeanor and noting that “[t]he term ‘public offense’ under

section 77-7-2(1) generally includes misdemeanors”). 3 Detective Perschon soon
4

 Separately, we note that Utah has evaluated a violation of § 77-9-3 and

determined that the “legislature has not seen fit to enact any statutory remedy” for

such misconduct. Fixel , 744 P.2d at 1369. “It is only where the violation also

implicates fundamental, constitutional concerns, is conducted in bad-faith or has

substantially prejudiced the defendant that exclusion may be an appropriate

remedy.” Id. (internal quotation marks omitted) (emphasis in original). Here, in

contrast, we have determined that the violation does not implicate constitutional

deprivation of rights, there has been no allegation of bad faith, and there has been

no suggestion of prejudice.

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learned that Mr. Mikulski was armed. Under the totality of the circumstances,

any contact with the local law enforcement authority at this time was not

“reasonably possible.” Utah Code Ann. § 77-9-3(2)(a). We hold, that under the

facts before us, he was then authorized to arrest Mr. Mikulski. Furthermore. the

record indicates that the officers contacted the Salt Lake County officials soon

after Mr. Mikulski’s arrest.

We, like the Utah Supreme Court, do not condone the officers’ violation of

the law or their failure to comply with proper law enforcement procedures,

particularly in an area where several municipalities must work together in order to

protect the rights of citizens and achieve the purposes of cooperative and

effective law enforcement. See State v. Fixel , 744 P.2d 1366, 1369 (Utah 1987). 4

B. Legality of the Initial Encounter

Mr. Mikulski contends that the detectives lacked the requisite reasonable

suspicion when they approached Mr. Mikulski and questioned him. The district
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court, however, determined that the initial interaction between Detective Perschon

and Mr. Mikulski was a consensual encounter. We agree. The officers did not

make a sufficient showing of authority to sufficiently convey to Mr. Mikulski that

his liberty was restrained. The detectives, dressed in plainclothes, walked up to

the truck that was stopped. The detectives’ vehicle did not block the Mr.

Mikulski’s path or exit. While the detectives displayed their badges to identify

themselves, they did not display a weapon or use any coercive language or tone. 

The questioning took place in a public setting in full view of two people on the

porch of 4560 West 5780 South and in front of the truck’s passenger. Although

“[Mr.] Mikulski was never informed by Detective Perschon that he need not

answer the detective’s questions,” Rec. vol. I, doc. 49, at 16 (Magistrate Judge’s

Report and Recommendation, filed Feb. 15, 2001), Detective Perschon gave Mr.

Mikulski “no reason to believe that [he was] required to answer the [detective’s]

questions.” United States v. Drayton , 122 S. Ct. 2105, 2112 (2002). Finally, the

record does not indicate that the officers behaved in a manner that was

threatening. We agree with the district court that the initial encounter was

consensual. See United States v. Lambert, 46 F.3d 1064, 1067 (10th Cir. 1995)

(holding that a police officer’s encounter with the defendant had been consensual,

and stating that “a seizure does not occur simply because a police officer
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approaches an individual and asks a few questions”) (citing Florida v. Bostick ,

501 U.S. 429, 434 (1991)). 

C. Continued Detention of Mr. Mikulski

Mr. Mikulski next contends that the district court erred when it determined

that Detective Perschon’s continued questioning and subsequent pat-down search

of Mr. Mikulski were supported by reasonable suspicion. After reviewing the

record in the light most favorable to the government, considering the totality of

the circumstances, and deferring to the district court’s assessment of the

credibility of the witnesses, we conclude that the district court’s factual findings

are not clearly erroneous. See, e.g., United States v. Long , 176 F.3d 1304, 1307

(10th Cir. 1999). Upon de novo review of the legal question presented, see

United States v. Caro , 248 F.3d 1240, 1243 (10th Cir. 2001), we agree with the

district court’s ultimate determination of reasonableness.

As noted above, Detective Perschon had already noted the lack of a front

license plate on the pickup truck when he approached Mr. Mikulski. In addition,

Mr. Mikulski seemed nervous and was unable to confirm his identity. Detective

Perschon testified that, in his experience, such reticence often results from a

driver whose license has been suspended or who may have an outstanding

warrant. Based on the totality of the circumstances, Detective Perschon was

justified in asking Mr. Mikulski to step out of the truck. In addition, we agree
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with the district court that Detective Perschon’s inquiry about the presence of

weapons and subsequent protective frisk were reasonable. See Terry v. Ohio , 392

U.S. 1, 30 (1968) (officer may pat-down suspect for weapons when he suspects

criminal activity and he has a reasonable fear for his own or others safety). Mr.

Mikulski told Detective Perschon he had a knife in his belt. The frisk was

justified. Cf. Terry , 392 U.S. at 27 (“The officer need not be absolutely certain

that the individual is armed; the issue is whether a reasonably prudent man in the

circumstances would be warranted in the belief that his safety or that of others

was in danger.”) (citations omitted). 

 Under the totality of these circumstances, we agree with the district court

that there was a particularized and objective basis for suspecting Mr. Mikulski of

criminal activity and that Detective Perschon’s actions during the detention were

reasonably related in scope to the circumstances that justified the extended

detention. As a result, Mr. Mikulski’s detention did not violate the Fourth

Amendment.

III. CONCLUSION

For the reasons stated above, we AFFIRM the district court’s denial of Mr.

Mikulski’s motion to suppress.