F I L E D

United States Court of Appeals

Tenth Circuit

MAY 24 2002

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v.

JOE WAYNE SPARKS,

Defendant - Appellee.

No. 01-7097

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. No. 01-CR-35-S)

Jonathan L. Marcus, Attorney, Department of Justice, Washington, D.C. (Sheldon J.

Sperling, United States Attorney, and D. Michael Littlefield, Assistant United States

Attorney, Eastern District of Oklahoma, with him on the briefs), for the appellant.

Donn F. Baker, Baker & Baker, Tahlequah, Oklahoma, for the appellee.

Before SEYMOUR, Circuit Judge, BALDOCK, Senior Circuit Judge, and BRISCOE,

Circuit Judge.

BRISCOE, Circuit Judge.

The United States appeals from the district court’s order granting defendant Joe

Sparks’ motion to suppress evidence obtained during searches of his vehicle and
2

residence. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, reverse the district

court’s suppression order, and remand for further proceedings.

I.

On the morning of June 2, 1999, dispatchers at the Sallisaw, Oklahoma, Police

Department received a 911 call from a resident who reported seeing a plastic bag

containing a white powdery substance on the side of a road just outside the city limits of

Sallisaw. The caller had not touched the bag. Detective John Owens went to the reported

location and found a large plastic bag containing “a large amount of a white powder . . .

wrapped in Saran Wrap.” Aplt. App. at 50. According to Owens, the bag was on the

edge of the road beside a tinhorn and was in plain view as he approached. Owens took

the bag to the Sequoyah County Sheriff’s Office, where he performed a field test and

concluded that it contained approximately one pound of methamphetamine. Based upon

the field test results, the decision was made to prepare a decoy bag, filled primarily with

rice flour instead of methamphetamine, that looked identical to the one retrieved by

Owens. Owens placed the decoy bag in the location where he found the original bag, and

set up surveillance “to see who, if anyone, would come back and pick it up.” Id. at 51-52.

Approximately two hours later, Owens observed a Dodge truck approach the area

from the south, make a left turn heading west, and stop in the middle of the turn near the

bag. The driver, defendant Sparks, got out of the truck, retrieved the decoy bag, and

returned to his truck. Owens stopped Sparks as he began to drive away and arrested him. 
3

Sparks’ truck was impounded and inventoried by law enforcement officials. During the

inventory search, officials found a loaded 9 millimeter handgun in plain view on the

driver's side floorboard, a roll of “Saran Wrap type wrapping” similar to the wrapping in

the original bag, a green leafy substance, and a smoking pipe. Id. at 136.

Following Sparks’ arrest, Owens prepared an affidavit for a search warrant of

Sparks’ residence. As probable cause for believing relevant evidence would be found

there, Owens described the events leading to the arrest of Sparks. Owens further noted

that, from the location where the bag was found and Sparks was arrested, Owens “could

see . . . Sparks’ residence, as indicated by his drivers license, as well as . . . Sparks’ place

of business.” Id. at 12. Owens alleged that, based upon his experiences with drug

investigations, it was common for drug dealers to maintain in their residences

paraphernalia and “records and ledgers evidencing their trafficking activities.” Id. at 13. 

Based upon Owens’ affidavit, a search warrant was issued for Sparks’ residence. 

Officers from the Sequoyah County Sheriff’s Office executed the warrant that same day

(June 2, 1999) and seized a variety of evidence, including a plastic bag containing an offwhite powder substance, stainless steel scales, plastic bags, a revolver and two shotguns,

and papers containing “number figures.” Id. at 18. 

On May 9, 2001, a federal grand jury indicted Sparks based upon his activities on

June 2, 1999. Specifically, the indictment charged Sparks with one count of possession

with intent to distribute in excess of 400 grams of methamphetamine, in violation of 21
4

U.S.C. § 841(a)(1) and (b)(1)(B), and one count of using and carrying a firearm (the 9

millimeter handgun found in his truck) during and in relation to a drug trafficking crime,

in violation of 18 U.S.C. § 924(c)(1). Aplt. App. at 9-10. Sparks was arrested in

connection with the federal indictment on May 16, 2001. 

Immediately prior to his arrest, Sparks was driving north on a highway that ran

through Sallisaw. Detective Owens and Clint Johnson, a member of a local drug task

force, followed Sparks’ truck and turned on their overhead lights. Sparks parked his

truck in the parking lot of a convenience store owned by his family, got out of his truck,

and took two or three steps toward the rear of the truck. Johnson got out of his vehicle,

approached Sparks, and informed Sparks he was under arrest. Johnson handcuffed

Sparks and turned him over to Drug Enforcement Administration agents. After doing so,

Johnson, in accordance with Sparks’ wishes, removed the keys from the truck and took

them inside the convenience store.

Shortly after Sparks was handcuffed, Detective Owens looked into the open

driver’s door of Sparks’ truck and observed some small (2 x 2-inch) plastic bags in the

center of the truck’s front seat. Johnson, after returning from taking the keys inside the

convenience store, also observed the bags. Based upon their observation of the small

bags, Owens and Johnson proceeded to search the cab of the truck. They found a wooden

marijuana pipe on the floorboard, and more small plastic bags in the ashtray. Owens also

searched the bed of the truck and found, inside a brown bag in a bucket, two “eight balls”
5

of methamphetamine packaged in small plastic bags. The brown bag also contained a

small plastic bag with approximately four grams of marijuana. The three bags containing

drugs were identical to the empty bags found inside the cab of the truck.

Shortly after Sparks’ arrest, Johnson prepared an affidavit for a search warrant of

Sparks’ residence (the same residence that was searched by authorities on June 2, 1999). 

As probable cause for the search, Johnson outlined the details of Sparks’ arrest earlier that

day and the evidence that was found in Sparks’ truck. Johnson further alleged he had

been advised that Sparks, following his arrest, had “admitted to being in possession of

approximately one pound of methamphetamine” on June 2, 1999. Aplt. App. at 21. 

Johnson also alleged he had been advised that, during an interview with a DEA agent on

May 5, 2001, Sparks admitted he had in his residence a set of scales of the type

“commonly used to weigh controlled dangerous substances.” Id. Johnson outlined the

results of the search of Sparks’ residence on June 2, 1999, noting items of incriminating

evidence that had been recovered by law enforcement officials. Based upon all of this

information, as well as his training and experience, Johnson opined “that Sparks [wa]s

actively involved in the distribution of controlled dangerous substances,” and likely was

keeping paraphernalia and records of drug transactions at his residence. Id. A search

warrant was issued and executed that same day (May 16, 2001). The items recovered

from the residence included cash, numerous small bags, two sets of digital scales, plastic

containers with a white powdery residue, a pair of night vision binoculars, and two
1

 Sparks also filed a motion to suppress statements he made to law enforcement

officers following his arrest on May 16, 2001 (e.g., his admission that, on June 2, 1999,

he placed the bag of methamphetamine by the side of the road). That motion was denied

by the district court and is not at issue in this appeal. 

6

firearms. Id. at 26.

Sparks moved to suppress items seized in (1) the June 2, 1999, search of his

residence, (2) the May 16, 2001, search of his truck, and (3) the May 16, 2001, search of

his residence.1

 After conducting an evidentiary hearing, the district court granted Sparks’

motion in its entirety. The government has since filed a timely notice of appeal from the

district court’s suppression order. See 18 U.S.C. § 3731 (allowing for a government

appeal “from a decision or order of a district court suppressing or excluding evidence”).

II.

The government challenges the district court’s suppression order in its entirety. In

reviewing the district court’s suppression order, we accept the district court’s factual

findings unless clearly erroneous, review questions of law de novo, and view the evidence

in the light most favorable to the prevailing party. See United States v. Holt, 264 F.3d

1215, 1228 (10th Cir. 2001) (en banc). 

June 1999 search of Sparks’ residence

The district court suppressed evidence found during the June 2, 1999, search of

Sparks’ residence based on its conclusion that the underlying search warrant was not

supported by probable cause. The district court also concluded that the “good faith
7

exception [did] not save the search in question.” Aplt. App. at 232.

The Fourth Amendment states that “no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation.” U.S. Const. amend. IV. “In determining

whether a search warrant is supported by probable cause, this court reviews the

sufficiency of the affidavit upon which a warrant is issued by looking at the totality of the

circumstances and ensuring ‘that the magistrate had a substantial basis for concluding that

probable cause existed.’” United States v. Basham, 268 F.3d 1199, 1203 (10th Cir. 2001)

(quoting United States v. Tisdale, 248 F.3d 964, 970 (10th Cir.2001), cert. denied, 122 S.

Ct. 1120 (2002)), cert. denied, 122 S. Ct. 1336 (2002). “Probable cause to issue a search

warrant exists only when the supporting affidavit sets forth facts that would lead a

prudent person to believe there is a fair probability that contraband or evidence of a crime

will be found in a particular place.” Id. at 1203. 

In concluding that the search warrant for Sparks’ residence was not supported by

probable cause, the district court focused on the affidavit submitted by Detective Owens

in support of the warrant. The district court noted that Detective Owens’ own probable

cause determination (i.e., that drug-related evidence would be found in Sparks’ residence)

was based primarily on Sparks’ arrest earlier that day after picking up the decoy bag. The

district court concluded, however, that Sparks’ arrest “was invalid.” Aplt. App. at 230. 

More specifically, the district court stated:

The package in question was in plain view. It was clearly sitting by the

road for everyone to see. Defendant picking up a strange package outside
2

 The government has challenged this factual finding on appeal. During the

evidentiary hearing on Sparks’ motion to suppress his post-arrest statements, Detective

8

of his subdivision without more is consistent with innocent activity. 

Anyone passing by could have picked up the package thinking it was trash

or some other dangerous substance which they wanted removed from the

neighborhood. There was nothing obvious about the picking up of the

package that would lead officers to believe defendant knew it contained

drugs. The officers had no other information about this defendant

indicating he was involved in drug activities. There was no information

from a confidential informant, a controlled buy or information from another

surveillance. The only information these officers had was that defendant

was the person that picked up the package in question. Further, Detective

Owens testified he arrested the defendant immediately after getting into his

car. Thus, the defendant had little opportunity to open the package to

ascertain its contents. The court finds Detective Owens simply did not have

enough facts to lead a reasonable person to believe that an offense had been

committed by defendant. (Citation omitted.) Accordingly, there was

insufficient probable cause to arrest the defendant at that point in time.

Id. at 231. The district court also concluded that even if Sparks’ arrest was valid, the

affidavit for the search warrant was still “lacking in probable cause.” Id. at 232. 

According to the district court, Sparks’ behavior on the morning of June 2, 1999,

“without more,” was “consistent with innocent activity.” Id. Further, the court noted,

“Detective Owens was uncertain if defendant was living in the home outside of town at

the time,” and “knew the home outside of town was under construction and that defendant

owned a home in town as well.” Id.

Focusing first on the arrest of Sparks, we conclude the district court erred in

characterizing the June 2, 1999, arrest as invalid. It is true that the district court found

that the bag was on the side of a public road in plain view.2 It is further true that at least
Owens testified that the bag was in plain view as he walked toward it, and likewise would

have been in plain view to a person who was driving by and looking toward it. Aplt. App.

at 50-51. Defendant Sparks also testified that the decoy package was in plain view. Id. at

100. During the evidentiary hearing on Sparks’ motion to suppress physical evidence

seized during the search of his truck and the searches of his residence, Owens testified

that the decoy package was beside a small bush or weed of some kind, and would have

been difficult for Sparks to see from the direction from which he approached. Id. at 135

(“I don’t think he [Sparks] could have seen it.”). We are not persuaded that Owens’ latter

testimony was sufficient to render clearly erroneous the district court’s factual finding

regarding the visibility of the decoy package to a passing motorist.

9

one innocent passerby (i.e., the person who called 911) saw the bag and was curious

about its contents. The question here, however, is “the degree of suspicion that . . .

attache[d]” to Sparks’ actions in retrieving the bag. Illinois v. Gates, 462 U.S. 213, 243

n.13 (1983); see id. (noting that “probable cause requires only a probability or substantial

chance of criminal activity,” and that, “therefore, innocent behavior frequently will

provide the basis for a showing of probable cause”). Although Sparks’ actions could

theoretically have been innocent, we believe a prudent, cautious and trained police officer

more likely would have construed those actions as indicating Sparks was familiar with

and had some connection to the original bag containing methamphetamine. See generally

Ornelas v. United States, 517 U.S. 690, 700 (1996) (indicating “that a police officer may

draw inferences based on his own experience in deciding whether probable cause

exists”); United States v. Santana-Garcia, 264 F.3d 1188, 1192 (10th Cir. 2001) (“We

measure probable cause against an objective standard and evaluate it in relation to the

circumstances as they would appear to a prudent, cautious and trained police officer.”);
10

see also United States v. Arvizu, 122 S. Ct. 744, 750-51 (2002) (indicating that, in

determining whether reasonable suspicion exists, police officers may “draw on their own

experience and specialized training to make inferences from and deductions about the

cumulative information available to them that might well elude an untrained person”)

(internal quotations omitted). Unlike the 911 caller, who closely observed the bag and its

contents but did not touch it, Sparks acted as though he was familiar with the bag. In

particular, the uncontroverted evidence indicates that Sparks stopped his truck, walked

directly to the bag, picked it up (without making any attempt to examine it), and then

returned immediately to his truck. The district court further found that after returning to

his truck with the bag, Sparks started to leave. Aplt. App. at 226 (“The vehicle started to

leave and was then stopped by the officers.”). Considered in their entirety, we conclude

these circumstances would have led a reasonable person to believe that Sparks was

engaged in, or otherwise connected to, the trafficking of methamphetamine (given the

large quantity of methamphetamine found in the bag). Thus, we conclude that probable

cause existed for Detective Owens to arrest Sparks. See United States v. Morris, 247

F.3d 1080, 1088 (10th Cir. 2001) (“An officer has probable cause to arrest if, under the

totality of the circumstances, he 'learned of facts and circumstances through reasonably

trustworthy information that would lead a reasonable person to believe that an offense has

been or is being committed by the person arrested.'”) (quoting United States v. VazquezPulido, 155 F.3d 1213, 1216 (10th Cir. 1998)).
3

 In light of this conclusion, we find it unnecessary to determine whether the good

faith exception outlined in United States v. Leon, 468 U.S. 897 (1984), is applicable.

11

We also conclude the district court erred in holding that Detective Owens lacked a

reasonable basis for believing that Sparks lived in the residence identified in the search

warrant. According to the evidence, Sparks owned or maintained two residences, one

inside the city limits of Sallisaw and one just outside the city limits (within eyesight of

where the bag was found). Although Detective Owens did not have conclusive proof that

Sparks was living in the residence outside the city limits, he testified that he drove by that

residence on a regular basis and had seen Sparks there on numerous occasions. Further,

although Owens was aware that construction of a portion of the residence had not been

completed (i.e., the exterior brick work), Owens testified that “[f]rom the outside [h]e

couldn’t tell that [Sparks] didn’t live there.” Aplt. App. at 178. Lastly, and perhaps most

importantly, Owens’ affidavit noted that Sparks’ driver’s license listed that address (i.e.,

the house outside the city limits) as his place of residence. Id. at 12.

Because the arrest of Sparks was valid and Owens had a reasonable basis for

believing that Sparks resided in the house located outside the city limits, we conclude that

probable cause existed for the search warrant.3 Given the large quantity of

methamphetamine found in the bag, and given Sparks’ apparent connection with the bag

(in light of his actions in retrieving the decoy package), it was reasonable for Owens to

conclude that Sparks was involved in the distribution of methamphetamine. In turn, it
4 The district court also concluded that the search in question was neither incident to

arrest nor an inventory search. Aplt. App. at 234-35. The government has not challenged

these conclusions on appeal.

12

was reasonable for Owens to believe there was a fair probability that additional evidence

of crime (e.g., drug paraphernalia and/or sales records) would be found in Sparks’ nearby

residence. See United States v. Whitner, 219 F.3d 289, 297-99 (3d Cir. 2000) (citing

various cases and agreeing that evidence of involvement in the drug trade is likely to be

found where drug dealers reside).

May 2001 search of Sparks’ truck

In suppressing the evidence seized from Sparks’ truck following his arrest on May

16, 2001, the district court concluded that the plain view doctrine was inapplicable

because Sparks “was arrested at the rear end of the truck” and, therefore, “the officers did

not see any evidence of drug activity in plain view at the time they arrested defendant.” 

Aplt. App. at 234. The court further concluded that the automobile exception did not

apply because, in its view, the officers lacked probable cause to believe there was

contraband in the truck. More specifically, the court concluded that the presence of the

small plastic bags on the front seat of the truck was “insufficient probable cause to justify

a search of the cab of the truck.” Id. at 235.4

As recognized by the district court, the search of Sparks’ truck potentially

implicates two key exceptions to the Fourth Amendment’s warrant requirement. The first

is the automobile exception. “The Supreme Court has held that ‘police officers who have
13

probable cause to believe there is contraband inside an automobile that has been stopped

on the road may search it without obtaining a warrant.’” United States v. Anderson, 114

F.3d 1059, 1065 (10th Cir. 1997) (quoting Florida v. Meyers, 466 U.S. 380, 381 (1984)). 

If this justification for searching a vehicle exists, it does not vanish simply because the

vehicle has been immobilized. See United States v. Vasquez-Castillo, 258 F.3d 1207,

1212 (10th Cir. 2001). Nor does it require a reviewing court to determine that the vehicle

might have been driven away, or its contents tampered with, during the period required to

obtain a search warrant. Id. The second exception is the “plain view doctrine.” This

doctrine allows a police officer to properly seize evidence of a crime without a warrant if:

“‘(1) the officer was lawfully in a position from which to view the object seized in plain

view; (2) the object’s incriminating character was immediately apparent – i.e., the officer

had probable cause to believe the object was contraband or evidence of a crime; and (3)

the officer had a lawful right of access to the object itself.’” United States v. Carey, 172

F.3d 1268, 1272 (10th Cir. 1999) (quoting United States v. Soussi, 29 F.3d 565, 570 (10th

Cir. 1994)); see United States v. Hensley, 469 U.S. 221, 235 (1985) (concluding that,

during the course of a lawful stop, police are entitled to seize evidence revealed in plain

view in the course of the stop).

Reviewing courts have sometimes utilized both of these exceptions in combination

in upholding warrantless vehicle searches. More specifically, if an officer has lawfully

observed an object of incriminating character in plain view in a vehicle, that observation,
14

either alone or in combination with additional facts, has been held sufficient to allow the

officer to conduct a probable cause search of the vehicle. E.g. United States v. Reinholz,

245 F.3d 765, 776 (8th Cir.) (approving search of vehicle, which contained drug

paraphernalia clearly visible through vehicle’s windows, that was parked in driveway of

residence being searched), cert. denied, 122 S. Ct. 218 (2001); United States v. Fladten,

230 F.3d 1083, 1086 (8th Cir. 2000) (concluding that observation of “[a]n item

commonly used in the manufacture of methamphetamine . . . in plain view in the back

seat” of an automobile gave officers probable cause to search other parts of the

automobile for further contraband or evidence); United States v. Garcia, 205 F.3d 1182,

1187 (9th Cir.) (concluding officer conducting traffic stop had probable cause to search

tissue box after he observed a plastic bag sticking out from between the tissues, and

because methamphetamine had already been found in the passenger’s possession), cert.

denied, 531 U.S. 856 (2000); United States v. Hatten, 68 F.3d 257, 261 (8th Cir. 1995)

(concluding that officer’s plain view observation of the barrel of a gun sticking out from

under the seat of a parked car, together with city ordinance prohibiting concealable

weapons inside vehicles and state law prohibiting concealed weapons in vehicles, gave

the officer probable cause to search the car); United States v. Leshuk, 65 F.3d 1105, 1107

n.1 (4th Cir. 1995) (concluding that presence of wire mesh and potting soil in plain view

in bed of truck, combined with the arrest of truck’s owner who was in personal

possession of marijuana plants, wire mesh, and planting materials, provided probable
15

cause to conduct warrantless search of truck); United States v. Blackstone, 56 F.3d 1143,

1146 (9th Cir. 1995) (concluding that “combination of the odor of marijuana on

[defendant] and [a] marijuana pipe lying in plain view” in defendant’s truck provided

probable cause for searching the truck). The government relies on the combination of the

two exceptions in this case. According to the government, the officers “had probable

cause to search the truck based on the plain-view sighting of the plastic baggies [on the

front seat of the truck]” and their “knowledge of defendant’s drug dealing.” Gov’t Br. at

27 n.13.

The initial question we must address is whether the small bags on the front seat of

Sparks’ truck “came lawfully within” Detective Owens’ “plain view.” Arizona v. Hicks,

480 U.S. 321, 327 (1987). The district court concluded the bags did not lawfully come

within Owens’ plain view because Sparks “was arrested at the rear end of the truck” and

Owens did not observe the bags until after Sparks’ arrest. Aplt. App. at 234. Although

the district court’s factual findings are supported by the record, its subsequent legal

conclusion is erroneous. It was uncontroverted that Sparks got out of his truck and left

the driver’s side door open. Thus, anyone walking by the truck, including Owens, could

have looked into the truck and observed the 2 x 2-inch bags in the middle of the front

seat. Stated differently, because Sparks left the driver’s side door of his truck open, he

had “no legitimate expectation of privacy shielding that portion of the interior of” his

truck which could have been “viewed from outside the vehicle by either inquisitive
5

 Following his arrest, Sparks asked one of the officers (Johnson) to retrieve the

keys from his truck and take them into the convenience store.

16

passersby or diligent police officers.” Texas v. Brown, 460 U.S. 730, 740 (1983)

(citations omitted); see Horton v. California, 496 U.S. 128, 133 (1990) (“If an article is

already in plain view, . . . its observation . . . [does not] involve any invasion of

privacy.”). The fact that Owens’ observation occurred after Sparks had been arrested

does not affect the legality of the observation. Indeed, the driver’s side door of Sparks’

truck presumably would have remained open indefinitely if one of the arresting officers

had not taken some action to close it.5 Moreover, the bags presumably would have been

in plain view even if the driver’s side door of the truck had been closed (i.e., they could

have been seen through one of the windows of the truck).

Having concluded that the bags were lawfully within Owens’ plain view, the next

question is whether that observation, either alone or in combination with Owens’

knowledge of Sparks’ allegedly illegal activities, provided Owens with probable cause to

search Sparks’ truck. Because Owens recognized the bags as being the “size and type

used to distribute drugs,” Aplt. App. at 235, we believe it is reasonable to conclude that

they were of an “incriminating character.” See Garcia, 205 F.3d at 1187 (concluding that

plastic bag sticking out from between the tissues in a tissue box was of a sufficiently

incriminating character, as least when combined with other factors, to provide probable

cause for additional search). Combined with Owens’ knowledge of Sparks’ prior drug-
17

related activities, and the fact that Owens was there to execute an arrest warrant for

Sparks which was issued as a result of his indictment for trafficking in methamphetamine,

the presence of the small bags on the front seat was sufficient in our view to provide

Owens with probable cause to believe that the truck might contain additional evidence of

criminal wrongdoing. 

May 2001 search of Sparks’ residence

The district court suppressed evidence seized during the May 16, 2001, search of

Sparks’ residence because, having found the search of Sparks’ truck earlier that day

illegal, it concluded the affidavit submitted in support of the search warrant lacked

sufficient information to provide probable cause for a search of the residence. Aplt. App.

at 236. We agree with the government that the district court’s conclusion is erroneous. 

For the reasons discussed above, the search of Sparks’ truck on May 16, 2001, was

legal. Thus, contrary to the conclusion reached by the district court, information

regarding the results of that search (i.e., that Sparks was in possession of

methamphetamine and small plastic bags commonly used to distribute drugs) legitimately

could have been considered in preparing the affidavit, and in turn by the state district

court in issuing the search warrant for Sparks’ residence. In addition to that information,

there was a significant amount of additional evidence that bolstered the affidavit and the

probable cause determination. This included (1) Sparks’ post-arrest admission to having

been in possession of approximately one pound of methamphetamine on June 2, 1999, (2)
18

Sparks’ admission to DEA agents on May 5, 2001, that he had a set of scales in his

residence, and (3) the results of the June 2, 1999, search of Sparks’ residence. 

Considered together, we believe this information would have led “a prudent person to

believe there [wa]s a fair probability that contraband or evidence of a crime w[ould] be

found in” Sparks’ residence. Basham, 268 F.3d at 1203. 

III.

The district court’s order granting defendant Sparks’ motion to suppress evidence

seized from his vehicle and residence is REVERSED and the case is REMANDED for

further proceedings.
1The district court found that the decoy package was in plain view and this finding was

not clearly erroneous, as the majority acknowledges.

2Picking up packages by the side of the road may not be an activity that we, as judges,

often undertake. However, for many Americans abandoned articles may provide the

necessities of life. See, e.g., MELISSA FAY GREENE, PRAYING FOR SHEETROCK (1992)

(relating the story of impoverished people in rural Georgia who, unable to purchase

building materials, “prayed for sheetrock” to fall from passing trucks so they could fix

their dilapidated homes). The majority’s opinion now makes such activity an arrestable

offense if the roadside package happens to contain drugs.

01-7097, United States v. Joe Wayne Sparks

SEYMOUR, Circuit Judge, concurring in part and dissenting in part:

In my judgment, the police lacked probable cause to arrest Mr. Sparks on June 2,

1999 for stopping to pick up a package on the side of the road. I therefore respectfully

dissent from the majority’s reversal of the district court’s order invalidating the warrant

for the June 2, 1999 search of Mr. Sparks’ home. For different reasons than the majority,

as I explain below, I agree that the May 16, 2001 search of Mr. Sparks’ truck was

supported by probable cause.

June 2, 1999 Arrest and Search

I disagree that Mr. Sparks provided the police with probable cause for his arrest by

merely stopping his vehicle and picking up a package in plain view1

 on the side of the

road close to his own residence.2
-2-

I have no quarrel with the majority that the probable cause inquiry is one based on

a totality of the circumstances, Illinois v. Gates, 462 U.S. 213, 238 (1983), and requires

only a “probability” or “substantial chance” of criminal activity, id. at 243 n.13; see also

Beck v. Ohio, 379 U.S. 89, 91 (1964). I also agree a possible innocent explanation does

not provide a safe harbor for activity that also gives rise to the probability of criminal

activity. See Gates, 462 U.S. at 243 n.13 (“By hypothesis, therefore, innocent behavior

frequently will provide the basis for a showing of probable cause”). However, these cases

do not dictate that a single instance of innocent-appearing conduct provides probable

cause. In fact, Supreme Court cases and those from our circuit support my view that

probable cause did not exist for the June 2 arrest.

“Probable cause to arrest exists when an officer has learned of facts and

circumstances through reasonably trustworthy information that would lead a reasonable

person to believe that an offense has been or is being committed by the person arrested.” 

United States v. Vazquez-Pulido, 155 F.3d 1213, 1216 (10th Cir. 1998) (citation and

quotation omitted). Probable cause thus requires a reasonable probability both that there

is criminal conduct afoot and that the particular individual police suspect is the person

engaged in that conduct. Id. 

The connection between Mr. Sparks and the illegal conduct was sparse at best. 

While the police had concrete information of criminal conduct because they knew the

original package contained methamphetamine, the mere fact that Mr. Sparks stopped to
-3-

pick up the package is insufficient to connect him with that criminal conduct. See, e.g.,

Ybarra v. Illinois, 444 U.S. 85, 90-92 (1979) (police lacked probable cause to search

defendant who was merely present in tavern in which bartender was selling heroin);

United States v. Anderson, 981 F.2d 1560, 1566 (10th Cir. 1992) (no probable cause to

arrest defendant whom police saw visiting and leaving residence that contained

marijuana, parking in same parking lot with a U-Haul previously seen at same residence,

and driving cautiously when he might have known police were following him). The act

of stopping and retrieving a package in the road is not criminal and is insufficient, on its

own, to warrant a reasonable belief that Mr. Sparks was engaging in or planning to

engage in criminal conduct. See, e.g., United States v. Welker, 689 F.2d 167, 169 (10th

Cir. 1982) (one action susceptible of multiple innocent interpretations does not provide

probable cause for arrest). While Mr. Sparks’ singular act might warrant suspicion due

to the nature of the package, more than suspicion is required to establish probable cause. 

See Vazquez-Pulido, 155 F.3d at 1216 (“Probable cause to arrest does not require facts

sufficient to establish guilt, but it does require more than mere suspicion.”) (emphasis

added; citation omitted)).

The fact that the police here knew the original package contained

methamphetamine does not remedy their lack of information connecting Mr. Sparks to

any illegal activity or intent. A person’s association with a place or person known to be

involved in criminal conduct does not constitute a sufficient connection to that place or
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person to provide probable cause for arrest. See Ybarra, 444 U.S. at 90-92 (1979) (no

probable cause where “agents knew nothing in particular about Ybarra, except that he

was present, along with several other customers, in a public tavern at a time when the

police had reason to believe that the bartender would have heroin for sale.”); Sibron v.

New York, 392 U.S. 40, 62 (1968) (no probable cause where the only suspicious activity

police observed was defendant talking to several known drug addicts over eight-hour

period); see also United States v. Springfield, 196 F.3d 1180, 1183 (10th Cir. 1999)

(“‘nearness to the place of the arrest of a co-conspirator or to the place of illegal activity’

is not sufficient to establish probable cause.”) (quoting Vazquez-Pulido, 155 F.3d at

1216)); United States v. Dozal, 173 F.3d 787, 792 (10th Cir. 1999) (citing United States

v. Hansen, 652 F.2d 1374, 1388 (10th Cir. 1981) (merely traveling with drug dealers

does not create probable cause for arrest)). 

We have held there is no probable cause for arrest even where a person’s

association is less fleeting or coincidental, as it was here. See Anderson, 981 F.3d at

1566. In Anderson, the defendant was observed at a home that contained marijuana,

parked his car in the same parking lot as a rental truck also seen at the home with drugs,

and drove carefully while he was being followed by police. Id. at 1562-63. We held this

information did not establish probable cause for arrest, stating “[a]lthough [the

defendant] showed some association with the [suspicious] residence, he did not

otherwise take actions that would warrant believing he had committed or was committing
3

In this respect I disagree with the majority that because Mr. Sparks went directly to the

package and brought it back to his truck it is likely he was “familiar with” the bag, Op. at

9. The package was in plain view and Mr. Sparks left his truck mid-turn in the road to

retrieve it, making his immediate return to the truck necessary.

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a crime.” Id. at 1566. Similarly here, the fact that Mr. Sparks stopped and picked up a

package in plain view on a public road simply provided too little indication his actions or

intentions were criminal.

Mr. Sparks’ singular act of picking up the package is consistent with innocent

activity.3 We have previously held that a singular instance of an activity that has an

innocent explanation does not provide probable cause for arrest. See Welker, 689 F.2d at

169. The defendant’s conduct in Welker is comparable to Mr. Sparks’ actions here. The

police in Welker saw the defendant walk up to a mailbox, retrieve a letter, and continue

down the street. Id. at 168. The defendant’s actions took place in broad daylight without

any furtiveness, and the defendant did nothing else suspicious. Id. Here, Mr. Sparks was

making a turn near his home, stopped upon seeing the package, retrieved the package,

and returned to his truck to drive away, all in broad daylight and without apparent

furtiveness or other suspicious actions.

The case cited by the majority in support of its proposition that there is probable

cause here, United States v. Santana-Garcia, 264 F.3d 1188 (10th Cir. 2001), is hardly

comparable because there were substantially greater indications of possible criminal

activity in that case than there are here. In Santana-Garcia, the two persons stopped for a
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traffic violation admitted they were in the country illegally, police observed air fresheners

in the car, and pursuant to a consensual search police found duct-taped packages hidden

behind the glove box and dashboard radio, next to an additional air freshener. Id. at

1190-91 & n.2. While each of these actions has possible non-drug explanations, together

they provide sufficient information for a prudent officer to conclude there is a reasonable

probability of criminal activity. See Beck, 379 U.S. at 91; Gates, 462 U.S. at 238, 241-

45. Moreover, the packages the police found in Santana-Garcia were not simply out of

plain view but hidden behind parts of the car itself, 264 F.3d at 1191, giving rise to

suspicion much greater than that justifiable where, as in this case, the package was in

plain view and the defendant’s actions with respect to the package were undertaken

openly. 

Similarly, the cases cited by the government do not support its contention that

there was probable cause here. In United States v. Gordon, 173 F.3d 761, 766-67 (10th

Cir. 1999), the facts we held established probable cause for arrest were as follows: the

defendant was traveling under a false name, bought a one-way train ticket using cash,

and consented to a search that revealed he was carrying $28,000 in cash and two brickshaped plastic wrapped packages. We held there was probable cause for arrest, rejecting

the argument that police lacked probable cause at the time of arrest because they did not

know the packages contained illegal drugs. Id. We rejected the argument because, even

without that knowledge, the police had directly observed a number of actions by the
4The cases from the other circuits cited by the government are also easily distinguished

from this case because of the multiple suspicious activities of which police were aware in

those cases. See United States v. Carrillo, 269 F.3d 761, 766-67 (7th Cir. 2001) (police

had probable cause for arrest where they were informed defendant installed remotelylocking compartments in twelve vehicles, observed movement of those vehicles from

house to house suggestive of drug trafficking over period of time, and defendant drove

evasively two times police were following); United States v. Strickland, 144 F.3d 412,

415-17 (6th Cir. 1998) (holding probable cause for arrest where informant identified

defendant, set up drug sale with defendant, and police observed defendant engaged in

actions consistent with drug sale but did not verify the package exchanged contained

illegal drugs before making arrest).

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defendant that were suggestive of drug-related activity. In addition, the packages were

found in baggage the defendant himself carried on the train and identified as his. Id. 

Thus, the police had information about several suspicious circumstances that were,

moreover, all directly connected to the defendant. Here, the police had no prior

knowledge that Mr. Sparks was in any way connected with illegal drug activity or any

other criminal conduct, his conduct was not furtive, and the police had no other

indication of criminal activity on the part of Mr. Sparks. The basis for suspicion here

was paltry under our case law.4

In sum, our cases tell us that an isolated action as consistent with lawful conduct

as with illegal conduct, where there is no other indication the actor is connected with

illegal activities, does not provide probable cause for the actor’s arrest. As a result, the

search warrant for Mr. Sparks’ home was also unsupported by probable cause. I would

affirm the district court’s grant of Mr. Sparks’ motion to suppress evidence discovered in

that search.
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May 16, 2001 search of Mr. Sparks’ Truck

I join in the conclusion that there was probable cause for the vehicle search in

May 2001 but for different reasons than the majority. Because Officer Owen was

directly involved in the 1999 arrest and search, which I believe was invalid, it is

questionable in my view whether he may rely on the information he gained from those

actions for probable cause to search Mr. Sparks’ truck. Moreover, I agree with the

majority’s suggestion that the baggies sitting on Mr. Sparks’ car seat, taken alone, did not

provide probable cause for a vehicle search. The baggies are of a type commonly used

for crafts, and it cannot be that every person driving around with a common household

item such as this in their car, left there by them or their children, has created a reasonable

probability of their involvement in the drug trade. Nevertheless, I agree with the majority

that there was probable cause for the search of Mr. Sparks’ truck in May 2001 because

Officer Johnson had probable cause for the search.

Officer Johnson, like Officer Owen, could not rely solely on the presence of the

baggies in the front seat to conclude there was a reasonable probability they were for

criminal rather than innocent use. In addition to the baggies, however, Officer Johnson

possessed drug-related information about Mr. Sparks in the form of the arrest warrant

upon which Officer Johnson could reasonably rely for the search. The arrest warrant

pursuant to which the officers arrested Mr. Sparks on May 16, 2001 was for the charge,

inter alia, of possession with intent to distribute methamphetamine and use of firearms in
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drug trafficking. While these charges were based on information gained through the

invalid arrest and search conducted in June 1999, Officer Johnson was not directly

involved in these activities, nor did he have reason to believe those activities were

unlawful. Mr. Sparks has not alleged the arrest warrant had any facial shortcomings. 

Therefore, while the warrant was invalid, Officer Johnson could in good faith rely on the

information contained therein. See United States v. Leon, 468 U.S. 897, 919-21 (1984)

(police may rely on invalid warrant if that reliance is reasonable under the circumstances,

including that officer has no reason to believe warrant or information on which it is

based is invalid or insufficient). 

The nature of the charges contained in the arrest warrant gave Officer Johnson

reason to believe Mr. Sparks was involved in illegal drug trafficking. With this goodfaith belief in hand, Officer Johnson had a reasonable basis for believing the baggies he

saw on the truck seat were likely to be related to drug activity rather than an innocent

pursuit. On this basis, I concur in the judgment that the search of Mr. Sparks’ car on

May 16, 2001 was justified by probable cause. It follows that the May 2001 search of

Mr. Sparks’ house was proper as well. I respectfully dissent, however, from the

conclusion that probable cause existed for the arrest of Mr. Sparks in June 1999 and the

search of his residence based on that arrest.