1

The Honorable Richard G. Kopf, United States District Judge for the District

of Nebraska, adopting the recommendation of the Honorable David L. Piester, United

States Magistrate Judge for the District of Nebraska. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-1480

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Claude Sledge, III, also known *

as Desmond Fowler, *

*

Appellant. *

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Submitted: June 14, 2006

Filed: September 7, 2006

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Before BYE, LAY, and RILEY, Circuit Judges.

___________

RILEY, Circuit Judge.

Claude Sledge III (Sledge) conditionally pled guilty to possession with intent

to distribute more than five grams of cocaine base, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1), and to criminal forfeiture, in violation of 21 U.S.C. § 853,

reserving the right to appeal the district court’s1

 order denying Sledge’s motion to
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suppress. On appeal, Sledge challenges the denial of his suppression motion. We

affirm. 

I. BACKGROUND

A. Factual Background

On May 5, 2005, Lincoln (Nebraska) Police Department (LPD) Officer Robert

Smith (Officer Smith) was conducting surveillance of a liquor store from his police

cruiser, which was located in a used car lot near the store. Around 12:15 a.m., Officer

Smith observed a car pull into the liquor store’s front parking lot. Officer Smith saw

a young man, who appeared to be “in his early 20s or close to 20,” exit the car’s front

passenger seat and enter the liquor store.

While the young man was inside the liquor store, another car arrived at the store

parking lot and parked two stalls to the right of the first car. The young man exited

the store shortly after entering and returned to the first car empty-handed. The second

car’s driver, later identified as Tetus Therien (Therien), then walked over to the first

car’s passenger side. Officer Smith observed Therien engage in a conversation and

shake hands with, or possibly take “money or something” from, someone sitting in the

first car. Therien then entered the liquor store and, a short time later, exited the store

carrying what appeared to be an eighteen-pack of beer. Following another brief

“hand-exchange,” Therien handed the beer inside the first car’s open right rear

passenger door and returned to the second car.

Believing he had just witnessed the illegal procurement of alcohol for a minor,

Officer Smith drove his cruiser across the street and parked behind the first car,

preventing it from leaving. Officer Smith approached the open passenger side

window of the first car and asked the driver, nineteen-year-old Jennifer Carriker

(Carriker), for her identification. Upon doing so, Officer Smith recognized Sledge and

another man, Fred Baxter (Baxter), sitting in the car’s back seat. Officer Smith had

arrested both men on earlier occasions, and recalled LPD had active broadcasts on
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LPD had two active broadcasts concerning Sledge: (1) a broadcast to issue a

citation to Sledge for possession of marijuana, a misdemeanor infraction; and (2) a

broadcast to interview Sledge regarding a disturbance. 

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them for unrelated violations, which Officer Smith confirmed by police radio.2

Officer Smith radioed for assistance, and within minutes five additional officers

arrived at the scene, including LPD Officers John Clarke (Officer Clarke) and Kocian

(Officer Kocian).

After instructing Baxter to exit the car to talk about a broadcast regarding

Baxter, Officer Smith directed Officer Clarke to stand near the car’s left rear door in

case Sledge attempted to get out and run. While talking to Baxter, Officer Smith

heard Officer Clarke ask Sledge to get out of the car. A few moments later, Officer

Smith saw Officer Clarke begin a pat-down search on Sledge, who had his back

toward Officer Clarke. Officer Smith then observed Sledge “turn to try and run away,

and Officer Clarke grabbed him,” resulting in a struggle between Officer Clarke,

Officer Kocian, and Sledge. A third officer ran over, and the four individuals fell to

the ground. When the officers returned Sledge to a standing position, he was

handcuffed.

The officers placed Sledge under arrest for failing to comply and for resisting

arrest. While searching Sledge incident to the arrest, officers located in Sledge’s left

front pants pocket $229 in cash and two baggies containing an off-white substance,

and located a similar baggie containing an off-white substance in Sledge’s right front

pants pocket. The substances field-tested positive for cocaine base (crack cocaine).

B. Procedural Background

Sledge was indicted for possession with intent to distribute more than five

grams of cocaine base and for criminal forfeiture. Sledge moved to suppress the crack

cocaine. During the suppression hearing, Officer Clarke testified he was familiar with

Sledge from earlier contacts, and given Sledge’s history of verbal and physical

resistive behavior, Officer Clarke was concerned Sledge may become violent during
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the encounter in May 2005. Officer Clarke also testified Sledge became angry when

informed the officers needed to talk to Sledge about his broadcasts. Officer Clarke

asked if he could pat Sledge down, and Sledge responded in the affirmative. Sledge

initially complied with Officer Clarke’s request to turn around and to put his hands

up. However, once Officer Clarke began the pat down, Sledge “threw his arms

down.” Officer Clarke again asked Sledge to raise his hands, which Sledge initially

did, but Sledge put his arms down again. Officer Kocian then grabbed Sledge. Sledge

started “twitching and moving and keeping his left arm down,” and then “took off

running.” According to Officer Clarke, Sledge ran approximately five yards before

he was apprehended, taken to the ground, handcuffed, and placed under arrest.

In contrast, Sledge testified Officer Clarke did not ask permission to conduct

the pat-down search, but simply ordered Sledge to turn around. Sledge also testified

Officer Clarke began digging in Sledge’s left front pants pocket after the pat down and

began questioning Sledge about how much money he had. Sledge told Officer Clarke

to stop digging in his pocket and then “brushed” Officer Clarke’s hand and tried to get

away from him, at which time Sledge was taken to the ground. 

Additionally, Carriker testified she did not hear Officer Clarke ask Sledge for

consent to the pat-down search. Carriker further testified: (1) after the pat-down

search began, Sledge’s arms “moved down as if he was uncomfortable with it, and the

officers were telling him to put his arms back up”; (2) the officers “were being very

aggressive”; (3) Sledge tried to get away from the officers, but only took two or three

steps before the officers took him to the ground; and (4) Sledge attempted to get away

from the officers twice.

Following the suppression hearing, the magistrate judge recommended denying

the motion, concluding (1) Officer Smith had reasonable suspicion to investigate

whether alcohol had been procured for a minor and also had reasonable grounds to

detain Sledge based on the active broadcasts; (2) Sledge initially complied with the

pat-down search, although the evidence was unclear whether Sledge gave verbal
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consent; (3) Officer Clarke could perform the pat-down search without consent

because he had cause to fear for his safety; (4) Sledge tried to run away from the

officers; and (5) the officers acted reasonably in apprehending Sledge and restraining

him with handcuffs.

After conducting a de novo review, the district court adopted the magistrate

judge’s recommendation, concluding both the detention and pat-down search of

Sledge were unlawful, but Sledge’s resistance provided probable cause to arrest

Sledge under Nebraska law for obstructing a peace officer and thus allowed the

officers to conduct a search incident to the arrest. Following Sledge’s conditional

guilty plea, the district court sentenced Sledge to 70 months’ imprisonment and

4 years’ supervised release, as well as forfeiture of $229. 

On appeal, Sledge renews his challenge to the search incident to the arrest,

arguing the officers unlawfully detained, pat-searched, and physically restrained him,

and that Sledge’s actions, whether or not a violation of state law, did not remove the

taint of the illegal arrest.

II. DISCUSSION

“When considering a suppression order, we review the district court’s factual

findings for clear error and review de novo its conclusion about whether the Fourth

Amendment was violated during the search.” United States v. Janis, 387 F.3d 682,

686 (8th Cir. 2004) (citation omitted). Under this standard, “we must affirm the

district court’s decision on a suppression motion unless it is not supported by

substantial evidence on the record; it reflects an erroneous view of the applicable law;

or upon review of the entire record, [we are] left with the definite and firm conviction

that a mistake has been made.” Id. (internal quotation omitted). 

“In our circuit, resistance to an illegal arrest can furnish grounds for a second,

legitimate arrest.” United States v. Schmidt, 403 F.3d 1009, 1016 (8th Cir. 2005); see,

e.g., United States v. Dawdy, 46 F.3d 1427, 1431 (8th Cir. 1995) (holding “a
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defendant’s response to even an invalid arrest . . . may constitute independent grounds

for arrest”). “When a defendant commits a new and distinct crime during an unlawful

detention, the Fourth Amendment’s exclusionary rule does not bar evidence of the

new crime.” United States v. Hunt, 372 F.3d 1010, 1012, (8th Cir. 2004). “A

contrary rule would virtually immunize a defendant from prosecution for all crimes

he might commit that have a sufficient causal connection to the police misconduct.”

United States v. Bailey, 691 F.2d 1009, 1017 (11th Cir. 1982) (holding “police may

legally arrest a defendant for a new, distinct crime, even if the new crime is in

response to police misconduct and causally connected thereto”).

In denying Sledge’s motion to suppress, the district court concluded Sledge

forfeited any Fourth Amendment protection by resisting and running away from the

officers, thus creating probable cause to arrest Sledge for obstructing a peace officer,

in violation of Neb. Rev. Stat. § 28-906(1), and to search Sledge incident to that arrest.

We agree with this conclusion.

Under Nebraska law, “A person commits the offense of obstructing a peace

officer, when, by using or threatening to use violence, force, physical interference, or

obstacle, he or she intentionally obstructs, impairs, or hinders . . . the enforcement of

the penal law . . . by a peace officer . . . acting under color of his or her official

authority.” Neb. Rev. Stat. § 28-906(1). The mere act of running away from law

enforcement officers constitutes physical interference or obstacle within the meaning

of this provision. In re Interest of Richter, 415 N.W.2d 476, 478 (Neb. 1987). The

district court found it was undisputed Sledge tried to run away, and this finding is not

clearly erroneous. Officers Smith and Clarke, as well as Carriker, testified Sledge

tried to run away, and Sledge admitted on direct examination he “tried to get away

from” Officer Clarke. Furthermore, we agree with the district court, the officers were

engaged in “the enforcement of the penal law” during the encounter by detaining

Sledge for issuance of a citation pursuant to the police broadcasts. Thus, by running
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Although Sledge was arrested for failing to comply and resisting arrest, rather

than obstructing a peace officer, the officers’ “[s]ubjective intentions play no role in

ordinary, probable-cause Fourth Amendment analysis.” Whren v. United States, 517

U.S. 806, 813 (1996); see, e.g., United States v. Clarke, 110 F.3d 612, 614 (8th Cir.

1997) (“In analyzing [the defendant’s] arrest under the fourth amendment, we . . .

ignore the officers’ subjective intentions and focus solely on the objective question

of whether probable cause existed.” (citations omitted)). The relevant inquiry is

whether probable cause existed to arrest Sledge for some crime, and here we answer

that question in the affirmative.

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Indeed, Sledge argued before the district court Officer Kocian was effecting

an arrest when he grabbed Sledge.

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away from the officers, Sledge committed a new, distinct crime, thereby permitting

the officers lawfully to arrest him.3

Additionally, probable cause existed to arrest Sledge for resisting arrest under

Neb. Rev. Stat. § 28-904(1)(a), which provides:

A person commits the offense of resisting arrest if, while intentionally

preventing or attempting to prevent a peace officer, acting under color

of his or her official authority, from effecting an arrest of the actor or

another, he or she . . . [u]ses or threatens to use physical force or violence

against the peace officer or another.

The district court concluded, “Without some description of Mr. Sledge’s actions after

he tried to run away, [the court] cannot find that he was forcefully resisting the

officers.” We disagree. The record demonstrates, while Officer Clarke attempted to

pat down Sledge, Officer Kocian grabbed Sledge. This action constituted an actual

seizure of Sledge’s person, or, in other words, an arrest.4

 Officer Smith testified he

saw Sledge try to run away, and also saw Officer Clarke grab Sledge, resulting in “a

struggle between Officer Clarke, Officer Kocian, and Mr. Sledge.” Officer Smith then

observed a third officer run over to the group, and testified the four individuals “went

down to the ground in a pile.” In describing Sledge’s actions, Officer Clarke testified

that during the encounter Sledge (1) “was yelling, screaming, upset and irate when he
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was arrested”; (2) made several threats after he was arrested and handcuffed;

(3) “wasn’t very cooperative in that he was moving his arms”; and (4) exhibited

“resistive angry behavior.” Carriker testified Sledge attempted to get away from the

officers twice, and stated “the first time handcuffs were not used,” but “[t]he second

time, they were.” On these facts, probable cause existed to believe Sledge was

resisting arrest. See State v. Campbell, 620 N.W.2d 750, 757 (Neb. 2001) (holding

an arrestee who resists being handcuffed and struggles with officers may be convicted

of resisting arrest under Nebraska law).

Thus, even assuming arguendo the detention and pat-down search of Sledge

were invalid–a conclusion we need not reach today–Sledge’s actions provided

independent grounds for his arrest. Because the officers lawfully could arrest Sledge

for obstructing a peace officer under Neb. Rev. Stat. § 28-906, or for resisting arrest

under Neb. Rev. Stat. § 28-904, the district court correctly held the crack cocaine

discovered in the search incident to that lawful arrest is admissible. 

III. CONCLUSION

We affirm the judgment of the district court denying Sledge’s motion to

suppress.

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