F I LED

United States Court of Appeals

Tenth Circuit

February 5, 2007

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 06-2139

EVERETT CHARLES BRAKEMAN,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. NO. CR-04-2524 RB)

David J. Kimmelman, El Paso, Texas, for Defendant - Appellant.

Kelly H. Burnham, Assistant United States Attorney, Las Cruces, New Mexico,

(David C. Iglesias, United States Attorney, Albuquerque, New Mexico, and Terri

J. Abernathy, Assistant United States Attorney, Las Cruces, New Mexico, on the

brief) for Plaintiff - Appellee.

Before LUCERO, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and

HARTZ, Circuit Judge.

HARTZ, Circuit Judge.

Everett Brakeman was convicted in the United States District Court for the

District of New Mexico on two counts of being a felon in possession of firearms
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and ammunition, one count of possession with intent to distribute less than five

grams of methamphetamine, and one count of carrying a firearm during and in

relation to a drug-trafficking crime. He appeals his convictions, claiming that the

district court erred in denying his motion to suppress evidence seized as the result

of two violations of the Fourth Amendment: (1) a warrant used to search his

residence was defective because its description of the place to be searched was

not sufficiently particular and (2) an officer’s pat-down search of his person

impermissibly extended to the contents of a glasses case after it was removed

from his pocket. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I. BACKGROUND

A. Search Warrant

On May 29, 2004, Chaves County Sheriff’s Deputy Marcos Franco had just

responded to a call regarding a loud party when he observed Danny Calloway

running from Mr. Brakeman’s residence in a mobile-home park near the

intersection of South Main and Monksdale in Roswell, New Mexico. When

Franco stopped to determine what had happened, Calloway said that

Mr. Brakeman had just shot at him. Calloway explained that he had gone to the

mobile-home park to try to dispel suspicions that he had stolen drugs from

Mr. Brakeman. He said that he had been shot at while he was looking for

Mr. Brakeman outside his residence.
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Deputy Franco was familiar with Mr. Brakeman and his home. During his

field training the location had been pointed out to him as the residence of

Mr. Brakeman, who was well known to the police. He had also stopped

Mr. Brakeman previously and had routinely driven through the area. The primary

building on the property was Mr. Brakeman’s residence, which also served as his

shop. It was white with a red stripe and a gray roof. An RV was connected to the

residence by what appeared to be a utility connection. There was also at least one

outbuilding on the property. A portion of the property was bordered by a chainlink fence partly lined with white “security” strips to block the view from outside.

On the fence in front of the residence was a placard with the number “205” in

white reflective lettering.

The day after his interview of Calloway, Deputy Franco applied for a

warrant to search Mr. Brakeman’s property for a gun and other evidence of the

shooting. He completed an affidavit describing the property to be searched as

follows:

The property is located at 205 Monksdale in Roswell, New Mexico,

Chaves County. The property is described as a white mobile home

with red trim, single-wide. The front door faces south and the back

door faces the north. The roof is constructed with metal, gray in

color and is flat. The property has a chain link fence with white

security lining. The address is displayed on a black metal box in the

front yard, south side of the property as 205 in white letters, also has

the name of Higgins, also in white letters. A shed, white in color, is

located on the northwest side of the residence.
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R. Doc. 61 at 2 (Mem. Op. & Order, June 1, 2005) (brackets omitted). A judge

authorized the warrant. The record does not include the warrant itself, but we

assume that the affidavit was attached to it. Boilerplate language on New

Mexico’s official search-warrant form states that a copy of the affidavit is

attached to the warrant and authorizes a search of the place described in the

affidavit. See N.M.R.A., Form 9-214; see also United States v. Williamson,

1 F.3d 1134, 1136 n.1 (10th Cir. 1993) (affidavit for warrant can be considered in

assessing particularity of warrant when incorporated by reference and attached to

warrant).

Deputy Franco and other officers executed the warrant on May 31. 

Mr. Brakeman was present when the officers arrived. He told them that a .22 rifle

was inside the RV. In the course of executing the warrant, officers searched the

residence, the RV connected to the residence, and an automobile on the property. 

They found a .22 rifle, a .25 automatic handgun, ammunition, paraphernalia for

methamphetamine production, and marijuana.

Evidence at the suppression hearing showed that the affidavit’s description

of the location was ambiguous. The records of the County Assessor showed that

4242 South Main was the address for the entire trailer park that included

Mr. Brakeman’s property, and that 205 Monksdale (the address in the affidavit)

was the mailing address for David Higgins, owner of the mobile-home park and

Mr. Brakeman’s neighbor and landlord. Mailboxes for the trailers were in a kiosk
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at the corner of Monksdale and South Main. Similar to Mr. Brakeman’s

residence, Higgins’s home was white with a red stripe and gray roof, and was at

least partly surrounded by a chain-link fence lined with white security strips. The

black mailbox (labeled “Higgins” and “205”) referred to in the affidavit sat

directly in front of his home rather than Mr. Brakeman’s. Deputy Franco testified

that to obtain the address for the affidavit, he had reviewed the Sheriff’s

department files relating to Mr. Brakeman. They showed that on previous

occasions Mr. Brakeman had given law-enforcement officers both 205 Monksdale

and 4242 South Main as his address, but he had given the Monksdale address

more frequently. Based on his familiarity with the area, Franco had decided that

the Monksdale address was more appropriate for use in the affidavit. The officers

searched only Mr. Brakeman’s property.

B. Pat-Down Search 

On September 15, 2004, Sergeant Daniel Ornelas and Deputy George

Wallner of the Chaves County Sheriff’s Department were on patrol when they

drove by an RV being driven by Mr. Brakeman. As the RV passed, Ornelas

noticed in his rearview mirror that the RV had no license plate, so he made a

U-turn to follow and stop Mr. Brakeman. Mr. Brakeman pulled into a business

parking lot before Ornelas activated his emergency lights. A pickup truck with

four passengers stopped near Mr. Brakeman’s vehicle. Ornelas recognized two of

the pickup’s passengers from previous drug-related incidents.
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Sergeant Ornelas stopped near Mr. Brakeman’s vehicle, turned on his

emergency lights, and approached Mr. Brakeman. He asked Mr. Brakeman to get

out of the vehicle, but Mr. Brakeman did not immediately do so. Ornelas and

Deputy Wallner then approached the pickup. The occupants seemed nervous and

were evasive in explaining what they were doing. Wallner noticed that the pickup

also had no license plate and that the ignition had been altered so that it could be

operated with a screwdriver. Ornelas asked the occupants to exit the vehicle.

Meanwhile, Deputy Wallner noticed that Mr. Brakeman had finally gotten

out of the RV and appeared to be walking away from the officers. Wallner

ordered Mr. Brakeman to stand near the back of the RV, and Mr. Brakeman

complied. After backup officers arrived, Wallner asked Mr. Brakeman for

identification, which he produced. When Wallner asked him whether he had any

weapons on him, Mr. Brakeman responded that he had a pocketknife, but he said

that he did not know where it was.

Deputy Wallner conducted a pat-down search. While patting down the

outside of Mr. Brakeman’s clothing, he felt an object shaped like a knife. He

asked Mr. Brakeman whether it was the knife he had mentioned, and

Mr. Brakeman responded that he did not know. Wallner reached into the pocket

and retrieved a thin blue case, approximately five to six inches long, an inch

wide, and half an inch thick. In Wallner’s opinion the case could have contained

a knife. When asked whether the knife was inside the case, Mr. Brakeman
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responded that it was his glasses case. Wallner then opened the case and

discovered several baggies of a substance that turned out to be methamphetamine. 

Wallner arrested Mr. Brakeman. Later he discovered the knife in one of

Mr. Brakeman’s pockets. An inventory search of the RV produced a handgun.

C. Court Proceedings

After being indicted on eight counts of drug and firearm offenses,

Mr. Brakeman filed motions to suppress evidence seized during the May 31,

2004, search of his home and the September 15, 2004, pat-down search. The

district court denied both motions.

On June 17, 2005, a jury found Mr. Brakeman not guilty on four counts but

convicted him on two counts of being a felon in possession of firearms and

ammunition, see 18 U.S.C. §§ 922(g)(1), 924(e)(1); one count of possession with

intent to distribute less than five grams of methamphetamine, see 21 U.S.C.

§ 841(a)(1) and (b)(1)(C); and one count of carrying a firearm and ammunition

during and in relation to a drug-trafficking crime, see 18 U.S.C.

§ 924(c)(1)(A)(I). He was sentenced to 248 months’ imprisonment.

II. DISCUSSION

A. Standard of Review

“When reviewing the denial of a motion to suppress, we accept the factual

findings of the district court unless they are clearly erroneous. . . . On appeal of a

denial of a suppression motion, we consider the totality of the circumstances and
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view the evidence in the light most favorable to the government.” United States

v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998). “Determinations relating to

the sufficiency of a search warrant . . . are conclusions of law . . . review[ed] de

novo.” United States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir. 2000). 

B. Particularity of the Search Warrant

Mr. Brakeman argues that the warrant to search his property was not

sufficiently particular to satisfy the Fourth Amendment. He contends that the

warrant described not his property but rather that of his neighbor, Mr. Higgins,

and that when the officers executed the warrant and saw the mailbox with

Higgins’s name on it, they “were put on notice that their warrant was not

sufficiently particular” and should have stopped the search. Aplt. Br. at 11. He

further claims that the property description and the address were incorrect, so the

sole source of information regarding the place to be searched was the executing

officers’ knowledge, in contravention of Williamson, 1 F.3d at 1136 (warrant

invalid because “the officer’s knowledge [cannot be] the sole source of

information identifying the physical location of the [place to be searched]”).

The Fourth Amendment states that warrants shall issue only “upon probable

cause” and that they must “particularly describ[e] the place to be searched, and

the persons or things to be seized.” U.S. Const. amend. IV. As we have stated,

“The danger that the particular description requirement seeks to avoid is the threat

of general and exploratory searches.” United States v. Lora-Solano, 330 F.3d
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1288, 1294 (10th Cir. 2003). Accordingly, “[p]ractical accuracy rather than

technical precision controls” our determination of the adequacy of a warrant’s

description of the place to be searched. Id. at 1293 (brackets and internal

quotation marks omitted). “A technically wrong address does not invalidate a

warrant if it otherwise describes the premises with sufficient particularity so that

the police can ascertain and identify the place to be searched.” Id.

As an initial matter we note that the record on appeal does not contain the

warrant, any accompanying attachments (such as the affidavit), or any helpful

maps, photos, or other exhibits. The only available description of the place to be

searched is that quoted in the district court’s decision, which presumably took the

description from the affidavit. Our review of this issue is accordingly very

limited. As Mr. Brakeman appears to acknowledge in his brief by repeating word

for word much of the district court’s findings of facts, we must accept the facts as

determined by the district court in its June 1, 2005, order, and review only the

district court’s legal conclusions. See United States v. Martin, 15 F.3d 943,

944–45 (10th Cir. 1994) (we adopt district court’s factual findings when

defendant does not challenge those findings and the record is insufficient for us to

review them); cf. United States v. Brewer, 630 F.2d 795, 803 (10th Cir. 1980)

(defendants’ claim that search warrant was defective is not reviewable when

appellate record did not include the challenged affidavit).
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The warrant’s description was sufficiently particular. Indeed, it

describes—in some detail—Mr. Brakeman’s property. Mr. Brakeman

acknowledged as much when he conceded at oral argument that his property was

at the “physical location” of 205 Monksdale.

The problem is that the description also fits Mr. Higgins’s property. And

the County Assessor’s records suggest that “officially” the address in the affidavit

is that of Higgins rather than Mr. Brakeman. Nevertheless, as a “[p]ractical”

matter, Lora-Solano, 330 F.3d at 1293 (brackets and internal quotation marks

omitted), the ambiguity was immaterial. To the extent that the warrant was

unclear as to whether the property to be searched was Higgins’s or

Mr. Brakeman’s, Deputy Franco’s personal knowledge resolved the matter. 

Mr. Brakeman correctly cites Williamson, 1 F.3d at 1136, for the proposition that

an officer’s knowledge cannot be the sole means of determining what property is

to be searched. But “[t]his court has not gone so far as to say that an officer’s

knowledge may not cure a technically inaccurate warrant—Williamson

acknowledged just the opposite, provided that the officer’s knowledge is not the

sole source of the location.” Lora-Solano, 330 F.3d at 1294; see Harman v.

Pollock, 446 F.3d 1069, 1079 (10th Cir. 2006) (per curiam) (“inaccuracies” in the

warrant were inconsequential because of the executing officer’s “personal

knowledge of the physical description of the structures to be searched”); United

States v. Occhipinti, 998 F.2d 791, 799 (10th Cir. 1993) (“[T]he knowledge of the
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executing officer can be considered in determining the sufficiency of the

description [in a warrant].”); United States v. Sturmoski, 971 F.2d 452, 458 (10th

Cir. 1992) (presence of officer familiar with the place to be searched “provided

additional reliability that the correct premises would be searched”). But cf. Groh

v. Ramirez, 540 U.S. 551, 560 (2004) (Fourth Amendment requirement that

“persons or things to be seized” be particularly described not met when warrant

failed to describe the items at all because “there can be no written assurance that

the Magistrate actually found probable cause to search for, and to seize, every

item mentioned in the affidavit”).

We disagree with Mr. Brakeman’s contention that Deputy Franco’s

knowledge was the sole source of the officers’ information regarding the location. 

The description provided in the affidavit was in many respects quite detailed. 

Indeed, listing the address as 205 Monksdale appears to have provided more

assistance to the executing officers than would have the actual mailing address of

the property—4242 South Main, the address of the entire mobile-home park. The

description was sufficiently accurate that any ambiguity could be cured by

Franco’s personal knowledge.

We conclude that the search warrant was sufficiently particular to satisfy

the Fourth Amendment. 

C. Pat-Down Search
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Mr. Brakeman next challenges the pat-down search. He contends that

Deputy Wallner’s opening of the glasses case violated the Fourth Amendment

because it was beyond the scope of an otherwise permissible search. He concedes

that Wallner was justified in conducting the pat-down and that the glasses case

could have contained a weapon. But he asserts that Wallner was not justified in

opening the glasses case once it was removed from his pocket and out of his

reach.

“[W]hen police officers have a reasonable suspicion based on specific and

articulable facts that a properly detained driver may be dangerous and may gain

immediate control of weapons, they may conduct a weapons search of the driver’s

person and the passenger compartment of the vehicle.” United States v. Palmer,

360 F.3d 1243, 1246 (10th Cir. 2004) (internal quotation marks omitted). With

respect to whether a suspect “may gain immediate control” of a weapon, we have

observed that “(1) the fact that the detainee is ‘under the control’ of officers does

not eliminate the risk that he will gain access to a weapon, and (2) the time period

during which the detainee ‘may gain immediate control’ is the entire period from

the initial stop to the detainee’s departure.” Id.; see Michigan v. Long, 463 U.S.

1032, 1051-52 (1983).

Accordingly, a weapons search may extend to containers not within the

immediate reach of the suspect. In Palmer we upheld the search of a locked

glove box in an automobile even though the defendant was seated in the officer’s
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patrol car. See 360 F.3d at 1248. We reasoned that the search of the

compartment was justified even if the defendant could not access the glove box at

the moment of the search because he “would certainly have had access to the gun

[in the glove box] after the citation was issued and he was released to go.” Id.;

see United States v. McClinnhan, 660 F.2d 500, 504 (D.C. Cir. 1981) (officer

could search briefcase for weapons when it was removed from defendant’s reach

because “[m]erely separating McClinnhan from his briefcase . . . would obviate

the danger only for the length of the stop; at some point they would be compelled

to return the briefcase to [him] and thus place themselves in the danger they

sought to avoid”), abrogated on other grounds as recognized by United States v.

Thompson, 234 F.3d 725, 728 (D.C. Cir. 2000).

The glasses case could have contained a weapon, such as the knife

Mr. Brakeman proclaimed to have. Consequently, Deputy Wallner’s search could

extend to its contents to ensure that nothing dangerous was inside. Even though

Mr. Brakeman was detained and the glasses case was no longer in his possession,

Mr. Brakeman might have broken free and seized the case; and if he were later

released, he would have regained access when Wallner returned the unopened

glasses case to him. See id. Perhaps measures other than searching the glasses

case could have effectively protected the officers; but the Supreme Court has “not

required that officers adopt alternative means to ensure their safety in order to

avoid the intrusion involved in [an investigative detention].” Long, 463 U.S. at
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1052. The search of the case was thus justified and was properly “confined in

scope to an intrusion reasonably designed to discover guns, knives, clubs, or other

hidden instruments for the assault of [the officers].” Terry v. Ohio, 392 U.S. 1,

29 (1968).

Mr. Brakeman contended at oral argument (although not in his brief) that

Deputy Wallner should not have opened the glasses case before completing his

pat-down search to see whether the knife Mr. Brakeman claimed to have was

elsewhere on his body. Only if this search had not produced the knife, he argued,

would Wallner have been justified in opening the glasses case. This argument not

only was raised too late, see United States v. Gonzalez-Coronado, 419 F.3d 1090,

1094 n.7 (10th Cir. 2005) (argument raised for first time at oral argument need

not be addressed), but also ignores the purpose and justification of a weapons

search. A weapons search during a traffic stop is justified when there is

“reasonable suspicion based on specific and articulable facts” that the subject

“may be dangerous and may gain immediate control of weapons.” Palmer, 360

F.3d at 1246 (internal quotation marks omitted). Mr. Brakeman does not dispute

that a weapons search of his person was justified. Such a search did not need to

be confined to finding the single weapon Mr. Brakeman professed to have; rather,

Wallner could look for any and all weapons he may have possessed. See id. at

1248 (“Protective searches are only limited in the sense that the officer

conducting the protective search must first have a reasonable suspicion that the
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suspect is dangerous and the protective search must be directed only to locations

which may contain a weapon and to which the suspect may have access.” (internal

quotation marks omitted)). When a suspect states that he is carrying a particular

weapon and an officer finds that weapon during a pat-down search, the officer is

not required to assume that the suspect is carrying no other weapons.

We conclude that the search of the glasses case did not violate

Mr. Brakeman’s Fourth Amendment rights. 

III. CONCLUSION

We AFFIRM the district court’s judgment.