*

This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

September 12, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 07-5185

 v. (N.D. Oklahoma)

HERMAN LEROY FRISTOE,

Defendant - Appellant.

(D.C. No. CR-07-00075-CVE)

ORDER AND JUDGMENT*

Before PORFILIO, ANDERSON, and BRORBY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Herman Leroy Fristoe was found guilty following a jury trial of possession

with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(ii). He was sentenced to 120 months’ imprisonment. He
1

The conversation in the patrol car was recorded.

-2-

filed a motion to suppress evidence seized from the car in which he was a

passenger. Fristoe appeals the denial of that motion to suppress. We affirm.

BACKGROUND

On April 15, 2007, Trooper Ty Owen of the Oklahoma Highway Patrol

observed a white SUV fail to signal as it changed lanes to enter a tollbooth. 

Trooper Owen accordingly stopped the SUV. When the trooper activated his

lights, he turned on the video recorder in his vehicle, which faced the rear of the

SUV. As Owen approached the SUV, he motioned for the driver to get out of the

car and meet him at the rear of the vehicle. The driver, Fristoe’s co-defendant

Bryan Ray, complied with Owen’s request. Fristoe remained in the passenger

seat in the SUV. Owen explained to Ray the nature of the traffic violation, told

Ray he would receive a warning, and asked for Ray’s driver’s license. The trooper

and Ray then sat inside the trooper’s patrol car, where they conversed while

Owen began writing out the warning.1

Owen testified that, during his conversation with Ray, he observed that Ray

“was extremely nervous. He was wrenching his hands, rubbing his hands on his

legs, and he was sweating.” Tr. at 10, R. Vol. III. Ray also refused to make eye

contact with Owen. Ray told Owen that he had driven to Texas to sell a dog to

“some dude.” Id. at 35. Trooper Owen testified that, in his opinion, Ray was
-3-

trying to control the conversation in order to prevent Owen from asking Ray more

questions. Owen further testified that Ray’s nervousness increased, rather than

decreased, even though Ray knew he was only receiving a warning. The trooper

testified that, based on his experience, this suggested that there was “something

going on besides just him traveling from his origination to his destination.” Id. at

12.

Ray told the trooper that the SUV had been rented by his common-law

wife, who retained the rental agreement for their tax records. Trooper Owen then

approached the SUV, intending to obtain the rental agreement. Owen said the

passenger (Fristoe) “rolled the window down about three inches.” Id. at 15. 

Upon Owen’s request, Fristoe rolled the window all the way down. When Owen

asked him if he had any idea where the rental agreement was, Fristoe looked in

the glove compartment. Trooper Owen testified that Fristoe’s “hands were

shaking uncontrollably.” Id. at 16. Owen then “asked . . . Fristoe if he would

look in the center console for the rental agreement.” Id. at 17. When Fristoe

opened the center console, Owen testified he saw “[a] black taped-up kilo-size

bundle,” id. at 18, which Fristoe told Owen was a book. When Owen stuck a

knife into the bundle, he discovered a white powder which he believed was

cocaine. Owen arrested both Ray and Fristoe.

Owen searched the SUV, discovering another bag of cocaine and some

black tar heroin. Thereafter, Fristoe and Ray were charged with possession of
2

Ray was acquitted by the jury.

-4-

more than 500 grams of cocaine with the intent to distribute it, in violation of 21

U.S.C. § 841(A)(1). Fristoe and Ray both filed motions to suppress, challenging

the search of the car as well as their detention. The district court denied both

mens’ motions. Fristoe appeals.2

DISCUSSION

When reviewing the denial of a motion to suppress evidence, “we review

the court’s factual findings for clear error and view the evidence in the light most

favorable to the government. We review de novo the reasonableness of a search

or seizure under the Fourth Amendment.” United States v. Worthon, 520 F.3d

1173, 1178 (10th Cir. 2008) (further quotation omitted), petition for cert. filed,

June 30, 2008 (No. 08-6063). “The credibility of witnesses, the weight accorded

to evidence, and the reasonable inferences drawn therefrom fall within the

province of the district court.” Id.

Fristoe argues that “Trooper Owen’s investigation of the missing rental

agreement exceeded the scope of the traffic stop,” that Fristoe’s encounter with

Owen was not voluntary, and that the evidence found as a result of these Fourth

Amendment violations should be suppressed. Appellant’s Br. at 6.

The district court concluded that no Fourth Amendment violation occurred

during the initial traffic stop, nor did any violation occur throughout its duration. 
-5-

It further concluded that the evidence seized need not be suppressed. For

substantially the same reasons stated by the district court in its thorough opinion

and order dated July 5, 2007, we affirm the denial of Fristoe’s motion to suppress. 

CONCLUSION

For the foregoing reasons, we AFFIRM the denial of Fristoe’s motion to

suppress.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge