* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### APR 10 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. THOMAS DUANE SCOTT,

Defendant-Appellant. No. 99-7113 (D.C. No. 99-CR-17-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , McKAY , and ANDERSON , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Defendant Thomas Duane Scott entered a conditional guilty plea to charges of being a felon in possession of a firearm and pos session of methamphetamine2--

with intent to distribute. He was sentenced to two concurrent terms of 200 months’ imprisonment, to be followed by concurrent three- and five-year terms of supervised release, and he was fined a $100 special assessment for each charge. Mr. Scott claims that he was arrested without probable cause. He challenges the search of a car in which he was a passenger, and he challenges the validity of a search warrant of his home. In addition, he claims that a self-incriminating statement he made while in custody was coerced. We affirm.

I. Mr. Scott and his wife went to the Wal-Mart store i n Ardmore, Oklahoma, as passengers in a car owned and driven by Joni Ell ett. At the store, he bought six boxes of over-the-counter Equate Antihistabs. Each box contains forty-eight antihistamine tablets. He immediately tried to buy six more boxes but was refused under Wal-Mart store policy, and he returne d to the car. An employee of the Wal-Mart store alerted the local police to Mr. Scott’s purchase and attempted second purchase of Equate. Officer Hamblin of the Ardmore police department in turn contacted Lt. Sturges of the Carter County, Ok lahoma narcotics task force because Officer Hamblin knew Lt. Sturges had been c onducting an investigation of Mr. Scott’s suspected drug manufacturing activit ies. They agreed to meet at the Wal-Mart store. When Mr. Scott returned to Ms. Ellett’s car in the parking lot, he was detained for about an hour by Officer H amblin. After Lt. Sturges and3--

his partner, Sgt. Watson, arrived at the scene, abo ut an hour after Mr. Scott’s initial purchase of the Equate tablets, Lt. Sturges contacted the assistant county district attorney, who advised Lt. Sturges that the re was sufficient probable cause to arrest Mr. Scott on a state violation of endeavo ring to manufacture methamphetamine. Lt. Sturges then placed Mr. Scottunder arrest. By the time Lt. Sturges and Sgt. Watson arrived, Ms . Scott and Ms. Ellett had returned to the car. Ms. Scott consented to a search of her handbag. There were ZigZag rolling papers and a package of purchas ed cigarettes in her purse. Ms. Ellett initially refused Lt. Sturgis’ request f or consent to search the car. However, after Mr. Scott’s arrest, Lt. Sturgis call ed for a drug-sniffing dog to be brought to the parking lot. Ms. Ellett overheard L t. Sturgis’ request for the drug-sniffing dog to come to the scene, and she the n consented to the search, verbally and in writing. When the dog arrived, it alerted to the right rear door of the car. The physical search of that portion of th e car disclosed a coat, which Mr. Scott claimed as his, concealing a loaded handg un and containing a baggy of crushed pills, a baggy of marijuana, and two syring es with drug residue. At that point, Ms. Scott was arrested on the misdemeanor ch arge of possession of drug paraphernalia (the rolling papers). Ms. Ellett was released. While Mr. Scott was in custody subsequent to his arrest, officials obtained two search warrants for Mr. Scott’s home, based on substantial evidence of4--

weapons possession and of illegal drug manufacture obtained by Lt. Sturges during his investigation. The first search was con ducted by federal Bureau of Alcohol, Tobacco, and Firearms agents under a feder al search warrant, yielding numerous firearms. The ATF agents noted the presen ce of drug manufacturing and distribution evidence. The second search was b ased on a state search warrant written and executed by Lt. Sturges. During the se cond search, methamphetamine and evidence of illegal drug manufacturing and dist ribution were seized. Mr. Scott was initially indicted on four felony cha rges: two counts of being a felon in possession of a firearm shipped and tran sported in interstate commerce; possession with intent to distribute more than 100 grams of methamphetamine; and maintaining a place for the manufacture, distri bution, or use of methamphetamine. An additional count, use of a fir earm during or in relation to a drug trafficking crime, was added in a superceding indictment. After his initial appearance on the pending charges, Mr. Scott initiated contact with Lt. Sturges and Sgt. Watson, telling them that he wanted to tal k with them. They agreed and accompanied him to an interview room in the facility. In an interview lasting approximately an hour, he made numerous self-incrim inating statements. The district court found that the only promise to Mr. S cott given by Lt. Sturges and Sgt. Watson during this interview was that they wou ld make his cooperation known to the prosecuting attorney.5--

The district court denied Mr. Scott’s pre-trial mot ions to suppress based on illegal arrest, to suppress the search of the vehic le, to suppress the evidence seized pursuant to the state search warrant, and to suppress his self-incriminating statement. Pursuant to a plea bargain and Fed. R. Crim. P. 11(a)(2), Mr. Scott entered a guilty plea to two of the charges, one co unt of being a felon in possession of a firearm and possession with intent to distribute more than 100 grams of methamphetamine, contingent on appeal of t he district court’s denial of his four motions to suppress. The three other char ges were dropped by the government. Mr. Scott now appeals the district court’s denial o f his motions to suppress. He challenges the legality of his detention and arr est in the parking lot, the legality of the search of Ms. Ellett’s car, the val idity of the state search warrant used to gain entry to his home, and the voluntarine ss of his confession. “When reviewing a district court’s denial of a motion to suppress, we consider the totality of the circumstances and view the evidence in a light most favorable to the government. We accept the district court’s fac tual findings unless those findings are clearly erroneous.” United States v. Gordon , 168 F.3d 1222, 1225 (10th Cir.) (internal citation omitted), cert. denied, 119 S. Ct. 2384 (1999). “[T]he ultimate determination of reasonableness und er the Fourth Amendment is a question of law reviewable de novo.” Id.6-- II. Mr. Scott claims that all the evidence against him in this case, including his statement of confession, were incident to his detention in the parking lot. In his motion to suppress in the district court, he challe nged that detention as an arrest without probable cause. As an initial matter, we reject Mr. Scott’s charact erization of his pre-arrest investigative detention in the parking lot as an “a rrest.” Investigative detention and actual arrest are distinguishable actions carri ed out for different purposes, and each bears its own standard for use. “A law en forcement officer may stop and briefly detain a person for investigative purpo ses ‘if the officer has a reasonable suspicion . . . that criminal activity “ may be afoot.”’” United States v.
Soto-Cervantes , 138 F.3d 1319, 1322 (10th Cir. 1998) ( quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). The propriety of the leng th of the detention must be considered in light of the law enforcement purposes to be served by the detention and the time reasonably needed to effectu ate those purposes. See United States v. Rutherford, 824 F.2d 831, 834 (10th Cir. 1987) (detention of “about one hour” acceptable under the circumstances of that case). In contrast, arrest requires the higher standard of probable cau se that a crime has been committed. See United States v. Wright , 932 F.2d 868, 877 (10th Cir. 1991). Thus, the issues to be examined are whether OfficerHamblin had sufficient7--

reasonable suspicion of illegal activity for warrantless detention of Mr. Scott in the parking lot of the Wal-Mart store, and whether Lt. Sturges had probable cause for a warrantless arrest. Mr. Scott argues that he did nothing illegal by pur chasing a legal over-the-counter drug at the Wal-Mart store. Howev er, Mr. Scott’s purchase of six boxes of this antihistamine immediately followe d by an attempt to purchase six more boxes of the drug, while not illegal, did give rise to reasonable suspicion of illegal activity. Equate contains pseudoephedri ne hydrochloride, an ingredient necessary to production of methamphetamine. Use of products containing pseudoephedrine hydrochloride for illegal methamphe tamine manufacture is sufficiently well-known that Wal-Mart established apolicy to limit the quantity sold to any single individual. Before this inciden t began, Officer Hamblin was aware that Mr. Scott was being investigated for the manufacture and distribution of methamphetamine, and he also had knowledge that products containing pseudoephedrine hydrochloride, such as Equate, coul d be and had been used in the manufacture of methamphetamine. Mr. Scott’s re latively brief warrantless detention in the parking lot was proper here where Officer Hamblin had a reasonable suspicion of criminal activity. The dis trict court did not err in denying Mr. Scott’s motion to suppress based on his claim o f an unjustified pre-arrest detention in the parking lot.8--

To the extent that Mr. Scott challenges the arrest itself, Lt. Sturges had personally conducted the previous investigation of Mr. Scott’s clandestine illegal methamphetamine manufacturing and distribution acti vities, and Lt. Sturges also had direct knowledge of Mr. Scott’s purchase of a l arge quantity of Equate and attempt immediately to purchase a second large quan tity at the Wal-Mart store. We agree with the district court’s ruling that thes e circumstances constituted probable cause for Mr. Scott’s arrest. See United States v. Troutman , 458 F.2d 217, 220 (10th Cir. 1972) (“[T]o constitute probabl e cause for an arrest it must be shown that at the time the officer makes the arrestthe facts and circumstances within his knowledge and of which he has reasonablytrustworthy information are such as would warrant a prudent man in believing th at the person to be arrested has committed an offense.”).

III. Mr. Scott claims that the search of Ms. Ellett’s ca r in the parking lot was illegal, and he appeals the district court’s denial of his motion to suppress the fruits of that search. Mr. Scott characterizes the incident as a detention of Ms. Ellett and her car without legal justification after she initially refused to consent to a search of the car, and he characterize s her consent for the search as coerced. These arguments are unavailing. The dist rict court correctly held that1 Even if Mr. Scott did have standing to challenge th e search, the search as

conducted was permissible because the car’s owner, present at the scene, voluntarily gave her consent. “We determine whethe r a consent was voluntary after evaluating the totality of the circumstances. A person who is being detained may still give a voluntary consent . . . .” United States v. McRae , 81 F.3d 1528, 1536-37 (10th Cir. 1996) (internal citations omitte d). Consent must be “unequivocal and specific and freely and intelligen tly given,” and it must be given “without implied or express duress or coercion.” Id. at 1537 (citation omitted). Under the circumstances of this incident, Lt. Stur ges had justification to briefly detain Ms. Ellett and her car in light of her passe nger’s suspicious conduct and legal detention and arrest. Although she initiallyrefused to consent to the search, within minutes she gave verbal and written consent upon overhearing that a drug-sniffing dog had been requested. Lt. Sturges’ s request for a drug-sniffing dog was reasonable under these circumstances and di d not constitute coercion for permission to search. The district court properly denied Mr. Scott’s motion to suppress the fruits of the search of Ms. Ellett’s c ar.

9-- Mr. Scott, as a mere passenger, lacks standing to c hallenge the search. See United States v. Eylicio-Montoya , 70 F.3d 1158, 1162 (10th Cir. 1995). 1

IV. Mr. Scott challenged the validity of the state sear ch warrant to search his home, located in a rural area of Carter County, Okl ahoma, for drugs and evidence of drug manufacturing and distribution, noting thatthe warrant contained an incorrect location description for his home. He ap peals the district court’s denial of his motion to suppress the fruits of the search. He argues that the warrant described the place to be searched as the first str ucture on Highway 76 south of-10-

Highway 53 East, when in fact the place to be searc hed was the first residence but the third structure on Highway 76 south of Highway 53 East. The descr iption of the premises to be searched in the state search warrant was: a white wood framed single story, single family dwe lling located at HC 63 Box 1400, Healdton, Carter County, Oklahoma. More particularly the first structure south of Highway 5 3 East on Highway 76, west side of the roadway. The front door of th e house faces east. The same being the house occupied by THOMAS DUANE S COTT, DOB: 01-19-62, SSN: 427-21-3770 . . . . R. Vol. I, tab 32, “Response to Defendant’s Motion to Suppress Search Pursuant to State Search Warrant,” Ex. A, Attachment B, page 000034. We determine the sufficiency of a search warrant de novo. See United States v. Dahlman , 13 F.3d 1391, 1394 (10th Cir. 1993). The description of the premises of a search warrantis required to be given with sufficient particularity that the executing of ficer can ascertain the place to be searched with reasonable effort. See id. After review of the evidence presented to the district court, we agree with the district c ourt that the description on this warrant satisfies the particularity standard, consi dering the location of this house and the personal knowledge of Lt. Sturges, the offi cer who was familiar with the house and its location, who wrote the description f or the warrant, and who was present for its execution.

V.-11-

And, finally, Mr. Scott claims that the authorities elicited his self-incriminating statement through fraudulent pro mises that the charge against his wife would be dropped, that she would be releas ed, and that the prosecutors would exercise leniency toward him. We review the voluntariness of a confession under the de novo standard. See United States v. Lugo , 170 F.3d 996, 1003 (10th Cir. 1999). The district court’s underlying factua l findings are accepted unless they are clearly erroneous. See United States v. Nguyen , 155 F.3d 1219, 1222 (10th Cir. 1998). Careful review of the record on appeal does not support Mr. Scott’s contentions. He was not in restraints at any time pertinent to making these self-incriminating statements. He approachedLt. Sturges and Sgt. Watson and requested an interview. He was read his Mirandarights. He executed a written waiver of those rights. The interview sess ion lasted about an hour. Neither Lt. Sturges nor Sgt. Watson made any promis es other than to make Mr. Scott’s cooperation known to the prosecuting authorities. Neither Lt. Sturges nor Sgt. Watson made any threats or exhibited any u se of force. There is no indication other than Mr. Scott’s self-serving test imony at the suppression hearing that the government made fraudulent inducements to obtain his self-incriminating statement. We agree with the district court’s deni al of this claim. The judgment of the United States District Court fo r the Eastern District of Oklahoma is AFFIRMED.-12- Entered for the Court

Deanell Reece Tacha Circuit Judge