* This order and judgment is not binding precedent, e xcept under the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

### NOV 17 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. WESLEY BERNARD POKE, JR., Defendant-Appellant. No. 03-3043 (District of Kansas) (D.C. No. 02-CR-40008-01-SAC)

ORDER AND JUDGMENT *

Before SEYMOUR , MURPHY , and O’BRIEN , Circuit Judges.
After examining the briefs and appellate record, th is court has determined unanimously that oral argument would not materiallyassist the determination of this appeal. **See** Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

I. Introduction Appellant, Wesley Poke, Jr., was indicated on one c ount of possession with intent to distribute cocaine and one count of consp iracy to possess with the intent to distribute cocaine. Poke filed a motion to supp ress evidence seized during a roadside search of his vehicle. The motion was den ied and Poke entered a conditional guilty plea to the conspiracy charge. See Fed. R. Crim P. 11(a)(2). He was sentenced to sixty-three months’ imprisonmen t and four years’ supervised release. Polk then brought this appeal challenging the denial of his suppression motion. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the denial of Poke’s motion to suppress. II. Background On December 2, 2001, Clint Epperly, a trooper with the Kansas Highway Patrol, was patrolling the southbound lanes of Inte rstate 35 in Lyon County, Kansas. Trooper Epperly observed two vehicles he b elieved were traveling together. Epperly attempted to check the registrat ion of one vehicle, a Ford Expedition, but could not see a license plate or te mporary registration tag. Under Kansas law, vehicles must display a current license plate or tag. See Kan. Stat. Ann. § 8-133. Epperly, therefore, stopped the Expe dition. As he approached the vehicle with a flashlight, Epperly saw what appeare d to be a current Missouri temporary registration tag taped inside the rear wi ndow. Epperly testified at the-3-

suppression hearing that he was not able to see eve n an outline of the temporary tag until he was close to the Expedition. He attri buted this to the dark window tinting. The Expedition was driven by Poke’s co-defendant, S hawnea Brooks; Poke was the passenger. Epperly identified Brooks and P oke from their driver’s licenses. When Brooks indicated that Poke was the owner of the vehicle, Epperly asked Poke for his registration and proof of insurance. Because Poke was unable to produce proof of insurance, Epperly asked Poke t o come to his patrol car so he could determine whether Poke was the owner of the v ehicle. Epperly requested the dispatcher to determine if the driver’s licence of both Poke and Brooks were valid and whether there were any outstanding warran ts. Epperly also ran a criminal history check on both Poke and Brooks. After the computer check was completed, Epperly returned Poke’s documents to him and advised him that he was free t o leave. Epperly then asked Poke if he would answer a few additional questions; Poke agreed. Epperly asked Poke whether he was transporting firearms, drugs, o r large amounts of currency. Poke responded in the negative and Epperly requeste d permission to search the vehicle. Poke replied, “That’s fine, yes.” During the search of the Expedition, officers discovered cocaine in a bag on the back se at. Poke and Brooks were arrested.1 We admonish defense counsel for violating 10th Cir. R. 28.2(A)(1) by

failing to attach to his brief a copy of the distri ct court’s written order denying Poke’s suppression motion. -4- After the two-count indictment was returned, Poke f iled a motion to suppress the evidence seized during the search of t he Expedition and all statements made by him. Poke argued, inter alia , that the detention exceeded the scope of the initial stop and thus was unreasonable under the Fourth Amendment. He also argued that his consent to search the vehic le was not given voluntarily. At the motion hearing, Epperly testified that he co ntinued with the traffic stop even after he saw the temporary registration tag af fixed to the back of the Expedition because the tag was not “clearly visible.” See Kan. Stat. Ann. § 8- 133 (“Every license plate shall at all times be sec urely fastened to the vehicle to which it assigned . . . in a place and position to be clearly visible, and shall be maintained free from foreign materials and in a con dition to be clearly legible.”). The district court denied the suppression motion, c oncluding that the continued detention and questioning of Poke was pro per because Epperly had an “objectively reasonable articulable suspicion” thata traffic violation had occurred or was occurring. United States v. Soto , 988 F.2d 1548, 1554 (10th Cir. 1993). The court also concluded that the questions asked by Epperly were within the scope of the stop and that Poke voluntarily con sented to the search of the vehicle. 1-5-

III. Discussion In this appeal, Poke does not challenge the lawfuln ess of the initial stop but argues, instead, that once Epperly determined that the Expedition had a temporary registration tag the continued detention and questioning was unconstitutional. Poke also reasserts the argumentthat he did not voluntarily consent to the search of the vehicle. A. Standard of Review When this court reviews the denial of a motion to s uppress, we view the evidence in the light most favorable to the governm ent and accept the district court’s factual findings unless they are clearly erroneous. United States v. Price , 265 F.3d 1097, 1104 (10th Cir. 2001). The ultimate determination of whether a traffic stop was reasonable under the Fourth Amendm ent, however, is a question of law reviewed de novo

. Id . The question of whether consent to search was given voluntarily is one of fact based on the total ity of the circumstances and the district court’s ruling is reviewed for clear error. United States v. SanchezValderuten , 11 F.3d 985, 989-90 (10th Cir. 1993). The govern ment, however, bears the burden of demonstrating that the defendan t’s consent was voluntary. United States v. Ringold , 335 F.3d 1168, 1171 (10th Cir. 2003).-6-

B. Reasonableness of Traffic Stop Trooper Epperly testified that he initially stoppedthe Expedition because he believed it did not have a registration tag or l icense plate. Poke concedes that the initial stop was valid but argues that once Tro oper Epperly determined that a temporary registration tag was affixed to the back window of the vehicle, the continued detention exceeded the scope of the stop. Poke relies on United States
v. McSwain , 29 F.3d 558, 561 (10th Cir. 1994). We agree with the government, however, that McSwain does not control the outcome of this case.
In McSwain , the highway patrol officer was able to see the te mporary registration tag posted in the rear window of the v ehicle but “stopped the vehicle to verify the validity of the temporary sticker.” Id . at 560. The officer approached the vehicle and satisfied himself that t he temporary sicker was valid and had not expired. Id . The officer then had no further grounds on which to detain the occupants of the vehicle. Id . at 561. Accordingly, this court reversed the denial of the motion to suppress, concluding th at the initially valid stop evolved into an unreasonable detention. Id . at 561-62. This court distinguished the situation in McSwain from those “situations in which the officer, at th e time he or she asks questions or requests the driver’s l icense and registration, still has some objectively reasonable articulable suspicion t hat a traffic violation has occurred or is occurring.” Id . at 561 (citations and quotations omitted).2 In this appeal, Poke does not argue that Trooper Ep perly’s questioning

exceeded the scope of the stop. -7- This case involves the situation not present in McSwain . Kansas law requires that all vehicle registrations be “clearlyvisible” and “clearly legible.” Kan. Stat. Ann. § 8-133. The improper display of alicense plate or temporary registration tag is a violation of Kansas law. State v. Hayes , 660 P.2d 1387, 1389 (Kan. Ct. App. 1983) (concluding “that the display of an illegible or obscured vehicle tag is a violation of K.S.A. 8-133 even if the vehicle is duly licensed in another state”). Although Poke argues that Epperlydid not have reasonable suspicion to believe that the temporary tag was dis played improperly, he does not directly challenge the district court’s finding that Officer Epperly could not see the Expedition’s temporary tag as it traveled along the interstate. We therefore reject Poke’s argument and conclude that Officer Ep perly properly detained Poke because he continued to have an objectively reasonable suspicion that a traffic violation was occurring, albeit not the violation f or which he initially stopped the Expedition. The continued detention and questionin g of Poke was not unreasonable under the Fourth Amendment. 2
C. Consent to Search the Vehicle Poke also challenges the voluntariness of the conse nt he gave to search the Expedition. Poke contends that his consent was notvoluntary because more than-8-

one officer was present when Epperly asked for cons ent to search the Expedition, Epperly asked for consent while Poke was seated in the patrol car, and Epperly did not specifically inform him that he could decli ne to give his consent to the search. According to Poke, he was “surrounded by l aw enforcement officers in a very small confined space, in a dark, isolated location.” We conclude that the district court’s finding that Poke voluntarily consented to the search is not clearly erroneous. Notwithstanding Poke’s arguments, the record provides ample support for th e district court’s ruling. Before asking for consent, Epperly returned Poke’s documents to him and specifically informed him that he was free to leave . Further, Poke himself concedes that Epperly did not physically harass him , speak in a threatening tone of voice, or brandish his weapon.
III. Conclusion The order of the district court denying Poke’s moti on to suppress is
affirmed

. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge