UNITED ST ATES COURT OF APPEALS 

TENTH CIRCUIT 

FILED 

United States Court of Appeals 

Tenth Circuit 

APR 19 2005 

PATRICK FISHER 

Clerk 

UNITED ST A TES OF AMERICA, 

Plaintiff-Appellee, 

V. No. 04-1116 

BRUCE WILLIS RICKEY, 

(D.C. No. 03-CR-293-M) 

(Colorado) 

Defendant-Appellant. 

ORDER AND JUDGMENT* 

Before SEYMOUR, Circuit Judge, HENRY, Circuit Judge, and McWILLIAMS, Senior 

Circuit Judge. 

On June 18, 2003, in a one-count indictment filed in the United States District 

Court for the District of Colorado, Bruce Willis Rickey (the defendant) was charged as 

follmvs: 

On or about May 21, 2003, in the State and District of 

Colorado, the defendant, BRUCE WILLIS RICKEY, 

unlawfully and knowingly possessed a firearm and 

ammunition, to wit: one Amadeo Rossi S.A. Model M877 

.357 caliber magnum revolver, serial number F478902; one 

• This order and judgment is not binding precedent, except under the doctrines of 

law of the case, res judicata, and collateral estoppel. The court generally disfavors the 

citation of orders and judgments; nevertheless, an order and judgment may be cited under 

the terms and conditions of 10th Cir. R. 36.3. 

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Heritage Manufacturing .22 caliber revolver, serial number 

HR63242; one J.C. Higgins model 20 12 gauge shotgun, with 

no serial number; one Taurus model 669 .357 caliber 

revolver, serial number ND929237; and 127 rounds of CCI 

.22 caliber long rifle ammunition, in and affecting commerce, 

having been previously convicted of Smuggling Contraband 

into a Prison in El Paso County, Colorado District Court, case 

number 90CR0 1, a crime punishable by imprisonment for a 

term exceeding one year. 

All in violation of Title 18, United States Code, 

Section 922(g)(l ). 

On July 18, 2003, the defendant filed a motion to suppress "all evidence and 

statements obtained in connection with his arrest on May 21, 2003, and all evidence and 

statements deriving directly therefrom, on the grounds that such evidence and statements 

were obtained in violation of the Fourth and Fifth Amendments." The motion was prolix, 

consisting of some 13 pages. In short, counsel sought to suppress evidence obtained in a 

search of defendant's truck, in a search of a "black briefcase" found on the seat of the 

truck, and the evidence later obtained in a search of the defendant's home, as well as 

various "statements" made by him in connection with those searches. The government 

filed a response to that motion. At an evidentiary hearing on defendant's motion to 

suppress held on August 19, 2003, two officers of the Elbert County Sheriffs office 

testified. The defendant did not testify. The district court held that the search of the truck 

was a valid "inventory search'' of a vehicle which was about to be impounded, and also 

that the search was incident to a lawful arrest. The search of defendant's "black 

briefcase" was pursuant to a search warrant, and the district court held that the search of 

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the truck being valid, the search of the "black briefcase" was not "tainted." As to the 

search of defendant's house, it was conceded by the government that the evidence 

obtained in that search should be suppressed, since it was a warrantless search and made 

after the defendant had requested to see a lawyer. 

Background facts as developed at the evidentiary hearing on defendant's motion to 

suppress will hopefully put the present case in focus. The defendant, in his own name, 

owned farmland in Elbert County, Colorado. One Curtis Ashcraft leased property from 

defendant's mother's estate immediately adjacent thereto. And therein lies our problem. 

Ashcraft and the defendant did not "get along," and the former obtained a restraining 

order which ordered the defendant to "stay off' Ashcraft's property. 

On May 21, 2003, two officers of the Elbert County Sheriffs office received a 

dispatch order regarding an on-going "trespass" on Ashcraft's leased premises. The 

officers proceeded to Ashcraft's property and were met by Ashcraft, who told the officers 

that the defendant was "on his property, filling water in his truck" and that the defendant 

had previously been "legally restrained from being on his property." The officers then 

proceeded to the location given by Ashcraft, where they found the defendant a few 

hundred feet from his pick-up truck. Upon arriving at the site, Deputy Hartman got out of 

his vehicle and asked the defendant "who he was," to which the defendant replied, "You 

know who I am." Hartman explained to the defendant that he was on a call regarding a 

possible violation of a restraining order, to which the defendant stated that the property 

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belonged to him and that the restraining order had expired. He also said that his lawyer 

had advised him that he was allowed to go onto the property and get water for the newly 

planted trees on his property adjacent to Ashcraft's premises. Officer Hartman informed 

the defendant that because of defendant's prior threats against law enforcement officers, 

he would be handcuffed for "officer safety," at the same time telling the defendant that he 

was not under arrest. In the search of defendant's person for possible weapons, the 

officers removed from defendant's pockets a small knife, several knife attachments, a 

multi-purpose tool, and the keys to defendant's truck. 

Hartman next called the dispatcher to find out if the restraining order was still in 

effect. After about ten minutes, Hartman was informed that the restraining order was still 

in effect. At that point, Hartman "arrested" the defendant for violation of a restraining 

order, and decided to impound defendant's truck. 

After his arrest, defendant, who was handcuffed, was placed in the rear seat of the 

patrol car, which was then driven over to the defendant's truck. At that time the 

defendant expressed concern about his dog, which had been running loose. The 

defendant asked Officer Hartman, and his fellow officer, Nail, to enter the passenger 

compartment of his truck and get a leash for the dog and to put some "gloves and some 

fertilizer pellets inside the compartment where they would not get wet." In compliance 

with defendant's instructions, Officer Hartman unlocked the driver's door, placed the 

gloves and fertilizer pellets on the dashboard and looked for the dog leash where the 

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defendant had said it would be found: "under the stuff on the passenger side of the seat." 

In looking for the leash, Hartman moved a "black briefcase" that was "laying right in the 

center of the seat behind the gearshift." In so doing, he bumped the briefcase against the 

gearshift and heard from within the briefcase a "distinct sound-a certain rattle of boxed 

ammunition." Officer Hartman knew that in 1989 the defendant had been convicted of 

attempting to bring a gun into a detention facility and, thus being a felon, was prohibited 

from possessing firearms and ammunition. After Officer Hartman told Corporal Nail that 

he could not find any leash, Nail entered the truck cab from the passenger side, and 

located a leash "under a pile of items that were all located on the passenger seat." The 

dog was caught, put on the leash, and later taken to an animal shelter. Nail also heard 

ammunition rattling from within the "black briefcase," and the two officers agreed that 

the locked briefcase could not be opened without a search warrant. When questioned 

about the "black briefcase," defendant said he didn't know anything about it, refused to 

consent to a search of it, and asked that he be permitted to call his lawyer. The next day 

the officers applied for a warrant to search the "black briefcase." A warrant issued and 

Corporal Nail forced open the briefcase and found inside a loaded .357 caliber Taurus 

handgun and nine boxes and a bag ofloose .38 and .357 caliber ammunition. 

After questioning by federal law enforcement agents, defendant admitted that he 

had three guns in his residence and consented to a search of his residence, where the 

additional weapons identified in the indictment were found. The government conceded 

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that the weapons found in the search of defendant's home should be suppressed, and they 

were. 

I. The Search of the Truck 

Defendant first argues that the district court erred in denying defendant's motion to 

suppress the evidence found in the search of his truck. As indicated, the district court 

denied that motion, holding that though there was no warrant to search the truck, the 

search of the cab of the truck was a valid inventory search of a vehicle about to be 

lawfully impounded and was a search incident to arrest, and, in either instance, did not 

violate the "reasonableness" requirement of the Fourth Amendment. Ours is a de nova 

review of whether the facts of a given case meet the Fourth Amendment requirement of 

reasonableness, and, in the course of our review, the evidence is considered in a light 

most favorable to the government and, in so doing, a district court's factual findings will 

not be disturbed unless they are clearly erroneous. United States v. Abdenbi, 361 F.3d 

1282, 1287 (10th Cir, 2004) and United States v. Le, 173 F.3d 1258, 1264 (10th Cir. 

1999). In our view the record supports the district court's holding that the search of the 

cab of the truck was a valid inventory search, and, or, a search incident to a lawful arrest. 

In connection with the former, see, for example, United States v. Haro-Salcedo, 107 F.3d 

769, 772 (10th Cir. 1997). In connection with the latter, see Thornton v. United States, 

541 U.S. 615 (2004) and New Yorkv. Belton, 453 U.S. 454 (1981). 

Further, the record indicates that the defendant "requested" the officers to enter the 

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truck and find a leash for his dog, which at that moment was "running wild." Retrieval of 

his dog was understandably important to the defendant and he asked, several times, the 

officers to search the truck's cab for a leash. In this setting, Officer Hartman opened the 

locked truck door on the driver's side and started looking for the leash, and a few 

moments later Officer Nail opened the door on the passenger side and found the leash. 

Under all these circumstances, the officers entered the truck's cab with not just 

defendant's consent, but his repeated requests to enter and find the dog's leash. 

II. Sentencing Enhancement 

As previously stated, three weapons, each of which was identified in the 

indictment, were found in a search of defendant's residence. The district court, with 

agreement from both the government and the defendant, suppressed the use of those 

weapons at trial. (We are not here concerned with the propriety of that ruling.) However, 

at sentencing, the district court increased defendant's offense level by two levels under 

U.S.S.G. 2K2.l(b)(l)(A). That guideline provision states that the base offense level for 

one convicted under 28 U.S.C. §922(g) shall be raised by two levels if the offense 

involved three to seven firearms. Over defendant's objections, the district court raised 

defendant's base offense level by two levels based on the three firearms found in 

defendant's home which had previously been "suppressed" on the grounds that the search 

was itself unlawful. Counsel argues that it is inconsistent to suppress the use at trial of 

the three firearms found in defendant's home, and then tum around and, at sentencing, 

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increase his base offense level because of the firearms found in a search of his home. 

Despite any facial appeal of this argument, in our view it is foreclosed by United States v. 

Ryan, 236 F.3d 1268, 1272 (10th Cir. 2001) where we spoke as follows: 

Thus under the law of this circuit, as well as the law of other 

circuits to consider the issue, the district court did not err in 

using the evidence obtained during the illegal search and 

seizure of Ryan's vehicle on June 2, 1998, unless there is 

evidence that the officers' actions in violating Ryan's rights 

were done with the intent to secure an increased sentence. 

We conclude that there is no such evidence in this case. 

We are not persuaded by counsel's suggestion that the officers who searched 

defendant's home had an "intent to secure an increased sentence" by their search of 

defendant's home and the retrieval of three firearms. In the present case, as we said in 

Ryan, "We conclude that there is no such evidence in this case." In this general 

connection, we reiterate that Officers Hartman and Nail were the only witnesses at the 

hearing on the motion to suppress, and that is the only evidentiary motion in the present 

record. 

III. The U.S.S.G. are Unconstitutional 

Counsel suggests that under the rationale of Blakely v. Washington, 124 S.Ct. 2531 

(2004), the "entire federal sentencing guidelines scheme is unconstitutional." In so doing, 

counsel recognized that "its [Blakely 's] import and ramification has yet to be determined, 

and that, accordingly, counsel raises this issue for the purpose of preserving it for further 

review." On the present record, as well as for other obvious reasons, we are disinclined 

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to hold that, on the basis of Blakely, the "entire federal sentencing guidelines scheme" is 

unconstitutional. United States v. Booker-Fan/an, 125 S.Ct. 738 (2005) does not compel 

such result. 

Judgment affirmed. 

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ENTERED FOR THE COURT 

Robert H. McWilliams 

Senior Circuit Judge 

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