* Honorable Judith C. Herrera, United States DistrictJudge for the District

of New Mexico, sitting by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### March 20, 2006 Elisabeth A. Shumaker Clerk of Court PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. PAUL MICHAEL SAWYER, also known as Motor Mike, also known as Mike Paul Sawyer, Defendant-Appellee. No. 05-5002

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 03-CR-145-H)

Richard A. Friedman, Assistant United States Attorn ey, Washington, D.C. (David C. O’Meilia, United States Attorney, and Leena Alam , Assistant United States Attorney, with him on the briefs, Tulsa, Oklahoma) for Plaintiff-Appellant. Stanley D. Monroe, Tulsa, Oklahoma, for Defendant-Appellee.

Before PORFILIO andEBEL, Circuit Judges, and HERRERA , District Judge. *

HERRERA , District Judge.- 2 -

The Government appeals the district court’s order g ranting Defendant Paul Michael Sawyer’s (“Defendant”) motion to suppress e vidence. We exercise jurisdiction under 18 U.S.C. Section 3731 and rever se. I. Factual Background. On August 17, 2000, Detectives Michael Todd Brown and Jack Cross of the Lawrence, Kansas Police Department (the “Kansas Off icers”) decided to pursue an investigation into a stolen motorcycle ring by t raveling to Bartlesville, Oklahoma to interview Defendant Paul Michael Sawyer(“Defendant”). In preparation for their trip, the Kansas Officers att empted to telephone Sergeant Jay Hastings of the Bartlesville Police Department on A ugust 17 and August 18, 2000. The Kansas Officers were unable to speak wit h Sergeant Hastings, but left a message for Hastings on August 18, 2000. On August 18, 2000, the Kansas Officers departed fo r Bartlesville in attempt to locate and interview Defendant. Upon th eir arrival in Bartlesville, the Kansas Officers stopped first at the Bartlesville P olice Department hoping to find a Bartlesville police officer to accompany them. N o Bartlesville officers were available. The Kansas Officers proceeded to Defendant’s motorc ycle shop, where Defendant conducted a business of motorcycle sales. When the officers knocked on the door of the business, no one answered. An i ndividual at a nearby business- 3 -

informed the Kansas Officers that Defendant was emp loyed by Reda Pump. The Kansas Officers proceeded to Reda Pump, where they informed the manager, or person in charge, that they needed to speak with De fendant. Detective Brown was wearing his badge, firearm, handcuffs, phone, and p ager on his belt. Detective Cross was wearing similar equipment on his belt. T he Kansas Officers either presented their badges to the manager or their badg es were visible to the manager during the conversation. The manager directed the Kansas Officers to a large conference room located on the business’s premises, where the officers waited for Defendant. Thereafter, the manager brought Defenda nt to the conference room and left. Detective Brown informed Defendant that he and Dete ctive Cross were police officers from Lawrence, Kansas investigating crimes that had occurred in their jurisdiction. Detective Brown further indicated that Defendant was not under arrest and that he and Detective Cross did no t have authority to arrest Defendant. Detective Brown also advised Defendant of his Mirandarights, using a blue card that the local district attorney’s offi ce had issued to the Lawrence, Kansas Police Department. Thereafter, Detective Br own asked Defendant if he would speak with them, and Defendant responded in the affirmative. The Kansas Officers conversed with Defendant for approximatelyone hour.- 4 -

During the interview, Detective Brown asked Defendant to prepare a written statement, and Defendant agreed. The Kansa s Officers provided Defendant with a Lawrence, Kansas Police Departmentform on which to write a statement. After Defendant finished writing the st atement, Detective Brown asked whether Defendant would take him and Detectiv e Cross to Defendant’s motorcycle shop, and Defendant agreed. The Kansas Officers, driving their police vehicle, followed Defendant, who was driving his own vehicle, to the shop. Upon the ir arrival, Defendant unlocked the door and allowed the Kansas Officers to enter. Once inside, the Kansas Officers requested that Defendant consent to a sear ch of the premises by completing and signing an official Lawrence, Kansas Police Department consent form. The Kansas Officers explained that they want ed to formalize Defendant’s consent to search so that they could have it for th eir records. Defendant signed the form. The Kansas Officers began to search the motorcycle shop, and when they were concluding their search, the officers contacte d the Bartlesville Police Department to request that a Bartlesville officer b ring a camera to the shop. Three Bartlesville officers arrived on the scene, t ook photographs, and at the request of the Kansas Officers, seized six engines. The Kansas Officers took Defendant’s records from his office and subsequentl y proceeded to Defendant’s- 5 -

residence where they obtained additional records fr om Defendant’s wife. Thereafter, the Kansas Officers further interviewed Defendant at the Bartlesville Police Department. At some point between August 19, 2000, and August 2 3, 2000, the Kansas Officers notified the Bartlesville police officers of the results of their examination of the serial numbers on the engines that they had seized from Defendant’s shop. The following day, the Bartlesville officers obtain ed a search warrant from an Oklahoma state court judge authorizing a second sea rch of Defendant’s shop, using the information obtained by the Kansas Office rs from the first search as the basis for their warrant application. The warrant r esulted in the seizure of seventeen additional motorcycle engines. The Kansas Officers at all times were acting in furtherance of an investigation on behalf of the Lawrence, Kansas Pol ice Department. The Kansas Officers did not at any time act, or purport to act , as private citizens or volunteers. Rather, at all times, the Kansas Offic ers represented themselves as acting on official business. II. Procedural Background. On October 10, 2003, the Government indicted Defend ant in the Northern District of Oklahoma, charging him with conspiracy to possess stolen property, which had traveled in interstate commerce, in violation of 18 U.S.C. Section 371,- 6 -

and possession of motorcycle engines with altered o r obliterated vehicle identification numbers, with the intent to sell suc h engines, in violation of 18 U.S.C. Section 2321. On November 14, 2003, Defendant filed a motion to suppress, arguing that the district court should suppress all evidence obtained from both searches of his motorcycle shop on the gr ound that the Kansas Officers lacked authority to conduct an investigation in Okl ahoma and that his consent to search therefore was invalid. After conducting evidentiary hearings on December 1 , 2003, and December 4, 2003, the district court certified the following question to the Oklahoma Court of Criminal Appeals:

Whether police officers from Lawrence, Kansas, who identified themselves as police officers to the own er of a building located in Bartlesville, Oklahoma, but inf ormed the owner prior to requesting consent to search that they were from Kansas and without authority to arrest hi m, could legally conduct such a search in Oklahoma, an d whether the fruits of the subsequent search are admissible in evidence, considering that both Oklah oma and Kansas have statutory prohibitions against poli ce officers acting in their official capacities outsid e their respective jurisdictions? On June 8, 2004, in a three-two decision, the Oklah oma Court of Criminal Appeals ruled that the Kansas Officers lacked autho rity to request consent to search Defendant’s business. United States v. Sawyer , 92 P.3d 707, 709-10 (Ok. Ct. Crim. App. 2004), App. 181-82. The Oklahoma co urt ruled that the detectives- 7 -

lawfully could be present and conduct an investigat ion in Oklahoma, but lawfully could not conduct a search or seizure. Id. at 710 n.3, App. 182. Because the Kansas Officers obtained Defendant’s consent to search while representing themselves as officers on official business, the Ok lahoma court held that Defendant’s consent to search was invalid under state law. Id. at 710 & n.3, App. 182. The Oklahoma court stated that the fruits of that search should be suppressed under the Fourth Amendment. Id. at 710-11, App. 182-83. After receiving the Oklahoma court’s response to th e certified question and conducting a further hearing for argument by counse l on August 13, 2004, the district court granted Defendant’s motion to suppre ss. Although the court concluded during the hearings that Defendant’s cons ent to search voluntarily was given, see 12/4/03 Tr. at 77-78, App. 139-40; see also id. at 65, 72, 79, App. 127, 134, 141; 2/4/04 Tr. at 13, App. 160; 8/13/04 Tr. at 28, App. 215, the district court nonetheless held that, “because the Kansas of ficers could not lawfully request consent[,] . . . the search in this case is constitutionally infirm” and “the fruits of that illegal search cannot be used as evi dence in this case,” Sawyer , No. 03-CR-145-H, slip. op. at 14, App. 236. III. Discussion. “It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon prob able cause is per se1 Although the district court did not address the vo luntariness of

Defendant’s consent in its written opinion, during the hearings on the motion to suppress, the court found that Defendant’s consent met the voluntariness requirements of the Fourth Amendment. See 12/4/03 Tr. at 77-78, App. 139-40; see also id. at 65, 72, 79, App. 127, 134, 141; 2/4/04 Tr. at 1 3, App. 160; 8/13/04 Tr. at 28, App. 215. Because the record on this po int is sufficiently clear, we need not remand this case for a written finding. See United States v. King , 222 (continued...) - 8 - unreasonable . . . subject to only a few specifical ly established and welldelineated exceptions.” Schneckloth v. Bustamonte , 412 U.S. 218, 219 (1973) (citations and internal quotation marks omitted). “It is equally well settled that one of the specifically established exceptions to t he requirements of both a warrant and probable cause is a search that is cond ucted pursuant to consent.” Id. (citations omitted). Federal law governs the ques tion whether consent is valid, even though the police actions are those of state p olice officers. See United States v. Miller , 452 F.2d 731, 733 (10th Cir. 1971) (citations omi tted). Under federal law, consent is valid if it is “‘freely and voluntarily given.’” Schneckloth , 412 U.S. at 222 (quoting Bumper v. North Carolina , 391 U.S. 543, 548 (1968)). The validity of consent to search requires a factua l determination based upon the totality of the circumstances of whether the consen t was “the product of an essentially free and unconstrained choice by [the] maker,” id. at 225, or whether it was “the product of duress or coercion, express or implied,” id. at 227. The district court found that the consent secured b y the Kansas Officers was voluntary and not the product of duress. 1 That finding is not challenged1 (...continued)

F.3d 1280, 1283 n.2 (10th Cir. 2000) (declining to remand where the record was “sufficiently detailed and developed”); United States v. Soto , 988 F.2d 1548, 1554-55 (10th Cir. 1993) (declining to remand despi te lack of specific findings where the relevant facts were undisputed).

2Defendant does not cross-appeal the district court ’s decision, including the district court’s finding of voluntariness or th e court’s failure to find that Defendant was seized or otherwise coerced. Accordi ngly, the voluntariness of the search, as well as the question whether Defendant w as seized for purposes of the Fourth Amendment, are not before us for review. We therefore do not consider Defendant’s arguments related to these issues. See Answer Br. at 16-17 (setting forth case law and argument regarding seizure and v oluntariness). - 9 - here. 2 Rather, on appeal, the Government contends that t he district court erred when it held that Defendant’s consent to conduct th e initial search of the premises of his business, although voluntary, was nonetheles s invalid because the Kansas Officers were acting outside of their jurisdiction in violation of Oklahoma law. “In reviewing a district court’s ruling on a motion to suppress evidence, we view the evidence in the light most favorable to th e prevailing party.” United States v. Oliver , 363 F.3d 1061, 1065 (10th Cir. 2004) (citation an d internal quotation marks omitted). We accept the district c ourt’s findings of fact unless they are clearly erroneous. Id. “The ultimate question of whether a search and seizure was reasonable under the Fourth Amendment i s a question of law that we review de novo.” Id. (citation and internal quotation marks omitted). We accept a state court’s determination of state law as concl usive. Nelson v. Warden of Kan. State Penitentiary , 436 F.2d 961, 962 (10th Cir. 1971) (citations omi tted).3 The Oklahoma Court of Criminal Appeals determined t hat the Kansas

Officers lacked authority to request consent to sea rch Defendant’s business. Sawyer , 92 P.3d at 709-10, App. 181-82. Based upon the O klahoma court’s holding, the district court properly concluded that“[t]he act of the Kansas officers in requesting [Defendant’s] consent to search was clearly contrary to Oklahoma law, and the consent to search given by [D efendant] is therefore invalid under Oklahoma law.” Sawyer , No. 03-CR-145-H, slip. op. at 8, App. 230 (citations omitted). - 10 - The district court held that although the consent o btained from the Kansas Officers was voluntary under the Fourth Amendment, that consent nonetheless was invalid and constitutionally infirm because the Kan sas Officers did not, as a threshold matter, have authority under Oklahoma law to request Defendant’s

consent. Sawyer , No. 03-CR-145-H, slip op. at 14, App. 236. The d istrict court recognized that compliance with the Fourth Amendmen t is a question of federal, and not state, law and that “violation of state law does not render the search per se unreasonable” under the Fourth Amendment. 3 Id. at 9, App. 231. The district court explained, however, that “state law informs t he question of whether the consent obtained by the Kansas officers, in violati on of law, was valid,” because “[i]f state law does not control the consequences o f the unlawful behavior of the Kansas officers, the state of Oklahoma will have se en its laws disregarded by law enforcement officers that it did not authorize and that it cannot sanction.” Id. at 11, App. 233. The district court concluded that th e “Kansas officers could not lawfully request consent,” and that the consent obt ained therefore was invalid- 11 -

under the Fourth Amendment. Id. at 11, 14, App. 233, 236. We review the district court’s conclusion of law de novo and reverse. The federal test for determining the validity of co nsent to search does not require a district court to consider whether a law enforcement officer has authority under state law to request consent. Rather, the fe deral test for determining the validity of consent to search requires a factual de termination based upon the totality of the circumstances of whether the consen t was the product of an “essentially free and unconstrained choice by [the] maker” or whether it was the product of “duress or coercion, express or implied. ” Schneckloth , 412 U.S. at 225, 227. Factors to consider within the federal totali ty of the circumstances test include physical mistreatment, use of violence, thr eats, promises, inducements, deception, trickery, or an aggressive tone, the phy sical and mental condition and capacity of the defendant, the number of officers o n the scene, and the display of police weapons. See United States v. Pena , 143 F.3d 1363, 1367 (10th Cir. 1998); United States v. Rosborough , 366 F.3d 1145, 1149 (10th Cir. 2004) (citation omitted). Whether an officer reads a defendant his Mirandarights, see, e.g ., United States v. Dozal , 173 F.3d 787, 796 (10th Cir. 1999), obtains conse nt pursuant to a claim of lawful authority, see, e.g. , Bumper , 391 U.S. at 548-49, or informs a defendant of his or her right to refuse c onsent, Schneckloth , 412 U.S. at 227, also are factors to consider in determining wh ether consent given was- 12 -

voluntary under the totality of the circumstances. The federal totality of circumstances test does not require an analysis of the legal parameters of the Kansas Officers’ jurisdictional authority under state law. See, e.g. , United States v. Little , 18 F.3d 1499, 1503 (10th Cir. 1994) (the totality of the circumstances test is “ factspecific”-- i.e. , based upon on “‘all the circumstances surrounding the encounter’”) (emphasis added); see also Schneckloth , 412 U.S. at 233 (to determine whether consent is voluntary, a court mus t “analyz[e] all of the circumstances of an individual consent”). Accordin gly, the district court erred in finding the consent, although voluntary under the F ourth Amendment, nonetheless invalid. The district court erroneously relied upon our hold ing in Marshall v. Columbia Lea Regional Hospital , 345 F.3d 1157 (10th Cir. 2003), in support of its decision. In Marshall , police officers conducted a blood test without ob taining a

warrant. Id. at 1161. In a subsequent Section 1983 suit, the s tate argued, and the district court agreed, that probable cause and exig ent circumstances rendered the blood test reasonable under the Fourth Amendment. See id. at 1171. The federal test for exigent circumstances asks in part whethera state assigns a high level of interest to the evidence the government seeks to ad mit. Id. at 1175 (citations omitted). Because the federal test requires us to consider state interests, we properly looked to New Mexico law as an indicator o f state interests. We- 13 -

concluded that because New Mexico law banned compul sory blood testing, with or without a warrant, in misdemeanor cases involving n o physical injuries, the federal exigent circumstances exception did not logically apply. Id. at 1174, 1176, 1181. We therefore reversed the decision of the district court and held that the warrantless blood test violated the Fourth Amendment. Id. In Marshall , because the federal exigent circumstances test re quires a balancing of state interests and the New Mexico statute banned the compulsory blood testing at issue, state law was highly determ inative of the federal question. The district court here, drawing a faulty analogy t o Marshall , however, held that Oklahoma consent law is similarly determinative of the operation of the federal consent test. Specifically, the district court exp lained, in Marshall“the state had the authority to regulate what constituted exigency , although the operation of the exigent circumstances exception was measured by fed eral law.” Sawyer , No. 03- CR-145-H, slip. op. at 12, App. 234; see also id. (quoting Marshall , 345 F.3d at 1175 (“‘Our point is not that the Hobbs Defendants are subject to liability under § 1983 for violation of the New Mexico statute, but r ather that the New Mexico statute determines whether . . . exigent circumstan ces . . . are present here.’”)). From here, the district court reasoned that “in the instant case, the state has the authority to regulate the conduct of law enforcemen t officers, including the authority to prohibit them from securing consent to search when outside their- 14 -

jurisdiction,” even though the operation of the con sent is determined by federal law. Id. (citations omitted). Unlike Marshall , this case does not involve an “exigent circumstan ces” analysis that requires a court to weigh a state’s i nterest against the rights of an individual defendant. See, e.g. , Marshall , 345 F.3d at 1175. Instead, it involves a “consent” analysis that does not require an examination of state law or state interests. The relevant consent inquiry is whetherthe consent was “unequivocal and specific and freely and intelligently given,” o r whether the police “coerce[d] the defendant into granting . . . consent.” United States v. Pena-Sarabia , 297 F.3d 983, 986 (10th Cir. 2002); see also Schneckloth , 412 U.S. at 225, 227. The application of the validity of consent test require s us to examine such facts and circumstances as physical mistreatment, use of viol ence, threats, threats of violence, promises or inducements, deception or tri ckery, the physical and mental condition and capacity of the defendant, the numberof officers on the scene, and the display of police weapons within the totality o f the circumstances. See, e.g. , Pena-Sarabia , 297 F.3d at 987; Rosborough , 366 F.3d at 1149. The application does not require us, as a threshold matter, to exam ine the officers’ compliance with Oklahoma’s law for obtaining valid consent, an d therefore easily is distinguishable from the exigent circumstances testapplied in Marshall

.- 15 -

For the same reason, Defendant’s reliance upon United States v. Ibarra , 955 F.2d 1405 (10th Cir. 1992), is not persuasive. In Ibarra , we affirmed the district court’s decision to grant a motion to suppress evid ence seized during the search of a vehicle impounded in violation of state law. Id. at 1409. We considered state law in Ibarrabecause inventory searches involve a special incorporation of state law into Fourth Amendment jurisprudence. Specifica lly, an inventory search without probable cause of an impounded vehicle is l awful under the Fourth Amendment if the impoundment is pursuant to a state statute or administrative procedure that authorizes the impoundment and satis fies certain constitutional requisites. See, e.g. , Florida v. Wells , 495 U.S. 1, 4-5 (1990); Colorado v. Bertine , 479 U.S. 367, 371, 374 (1987); South Dakota v. Opperman , 428 U.S. 364, 369-71, 376 (1976). In Ibarra , the state statute did not authorize impoundment o f the vehicle, and therefore the search did not come within the inventory-search exception to the probable cause requirement. Ibarra , 955 F.2d at 1409. In contrast, the search in this case relies upon Defen dant’s consent, and the federal consent test does not depend upon state-law authori zation. Although state law or state interests are not highl y determinative of the outcome of the federal injury here, as they were in Marshallor Ibarra , compliance with state law nonetheless may be relevant to the q uestion whether Defendant’s consent was valid under the Fourth Amendment. Cf. United States v. Mikulski ,- 16 -

317 F.3d 1228, 1232 (10th Cir. 2003) (“the questionof compliance with state law may well be relevant in determining whether police conduct was reasonable for Fourth Amendment purposes”) (citation and internal quotation marks omitted). We therefore must determine whether the Kansas Offi cers’ actions in contravention of state law amounted to a federal vi olation. The undisputed record indicates that Detective Brow n informed Defendant that he was not under arrest and that Detectives Br own and Cross did not have authority to arrest him. Detective Brown further advised Defendant of his Miranda rights. Detective Brown asked for and received per mission to speak with Defendant, asked for and received a written stateme nt from Defendant, and asked for and received written permission to search Defen dant’s motorcycle shop. The Kansas Officers did not escort Defendant in their p olice vehicle to Defendant’s motorcycle shop, but rather entered their own vehic le and followed Defendant, who drove his own vehicle, to the shop. There is n o evidence in the record that the Kansas Officers, during any portion of their en counter with Defendant, used physical touching, violence, threats, promises, ind ucements, deception, trickery or an aggressive tone, or that Defendant’s physical ormental condition rendered him unable to consent knowingly and intelligently. The re also is no indication in the record that Defendant granted consent in submissionto a claim of lawful authority-- i.e. , a claim by the Kansas Officers that they could se arch the premises4Although the district court did not cite Ross , by relying upon our holding

in Mikulski , the court relied upon our holding in Ross by implication. - 17 - even without Defendant’s consent. Moreover, the re cord indicates that the Kansas Officers contacted the Bartlesville Police Departme nt as they were concluding the search of the premises and that Bartlesville police officers thereafter were involved in the investigation. Compare Mikulski , 317 F.3d at 1233 (in deciding whether a state law violation amounts to a constitu tional violation, noting that the officers acting extra-jurisdictionally contacted of ficers from the appropriate jurisdiction soon after the arrest at issue occurre d). On these facts, with no evidence of coercion, we decline to hold that the s tate law jurisdictional violation rises to a constitutional level sufficient to rende r the consent invalid. Our holdings in United States v. Mikulski , 317 F.3d 1228 (10th Cir. 2003), and Ross v. Neff

, 905 F.2d 1349 (10th Cir. 1990), which the distric t court relied upon in support of its decision, 4 do not persuade us otherwise. In Ross v. Neff , we held that an “arrest made outside the arresting off icer’s jurisdiction violates the Fourth Amendment.” 905 F.2d at 1353-54. In United States v. Mikulski , we distinguished Neff

, explaining that the extra-jurisdictional actions “‘concerned the jurisdiction of officers acting between political subdivisions of the same state. ’” 317 F.3d at 1232 (citations omitted). We concluded that a warrantless arrest outside of an officer’s jurisdiction (but within th e same state), did not rise to a- 18 -

constitutional violation even though it violated st ate law in part because the officers were acting between political subdivisions of the same state. Id. at 1233. Referring to this distinction in support of its con clusion, the district court explained that “[t]he issue in this case is not lim ited to one of the ‘jurisdiction of officers acting between political subdivisions of the same state .’” Sawyer , No. 03- CR-145-H, slip. op. at 11, App. 233 (citing Mikulski , 317 F.3d at 1232). Rather,

the state law violation implicates a state’s author ity to control within its boundaries the behavior of law enforcement personnel from other states, where it h as had no say in any initial licensing of personnel an d where it will have no say in any subsequent discipl ine for wrongful conduct. A state’s interest in contro lling law enforcement personnel within its boundaries is very strong.

Id. (citations omitted). Although we agree that Oklah oma’s interest in monitoring law enforcement personnel within its boundaries is strong, that interest is not sufficient to elevate this state law violation to afederal constitutional violation. The consent to search obtained here, with no eviden ce of coercion or duress, is vastly different from the warrantless arrest conduc ted in Ross v. Neff

. Compare United States v. Green , 178 F.3d 1099, 1106 (10th Cir. 1999) (“[a] warrantless arrest is vastly different from a warranted search” ). Accordingly, we decline to extend Ross to the facts of this case.- 19 -

We also find unpersuasive the district court’s argu ment that suppression is proper here because there was “no independentjustification for the search” separate from the consent obtained in violation of state law. Sawyer , No. 03-CR145-H, slip. op. at 13-14, App. 235-36. In supportof this conclusion, the district court distinguishes our decisions in United States v. Green and United States v. Mikulski , reasoning that in those cases we did find a basis independent from the state law violation to deem the search in Green and seizure in Mikulski constitutional. In Green , officers of the Wichita Police Department on two occasions searched Green’s home in Butler County, Kansas, out side of the city limits of Wichita, pursuant to two valid search warrants--one from a Butler County judge and one from a United States Magistrate Judge. See 178 F.3d at 1101-03. We held that “even if th[e] officers [were] acting out side their jurisdiction as defined by state law,” “there was no federal constitutional violation [because the] officers obtain[ed] a warrant, grounded in probable cause . . . , from a magistrate of the relevant jurisdiction authorizing them to search [t he] particular location.” Id. at 1106. The district court reasoned that in Green , the warrants obtained by a neutral judge “justified the searches independent of the of ficers’ state law violation,” and that by contrast, here, “there was no independent d etermination of probable cause- 20 -

and no justification for the search independent of the state law violation.” Sawyer , No. 03-CR-145-H, slip. op. at 13, App. 235. Likewise, in Mikulski , the district court noted that an independent justification existed for the search, whereas here, the district court explained, “the unlawful acts of the Kansas officers created the re lied-upon exception to the Fourth Amendment prohibition against unlawful searc h and seizure.” Id. at 14, App. 236. In Mikulski , police officers acting outside of their jurisdict ion conducted an arrest based upon illegal conduct thatthe officers observed. See 317 F.3d at 1229-30. The observation by the officers, the district court maintained, constituted a basis independent from the state law jurisdictional violation to justify the arrest. Sawyer , No. 03-CR-145-H, slip. op. at 13, App. 235. In c ontrast, the district court explained, here, the sole justificat ion for the search--consent--was obtained in violation of state law. Id. at 14, App. 236. We have never grafted an “independence” requirementonto our jurisprudence concerning state law violations and w hether such violations amount to an infringement of federal constitutional rights . The touchstone of our jurisprudence remains whether the conduct in questi on contravenes the federal constitution. This inquiry does not, and has not, required a separate justification for police conduct “independent” from a state law v iolation. Such a requirement would render a state law violation conclusive of th e federal question absent an- 21 -

independent justification for police conduct. Stat e law is not determinative of the federal question, but rather may or may not be rele vant to the determination of the federal question. See, e.g. , Mikulski , 317 F.3d at 1232. Here, we have held that the state law violation, on the record before us wi th no evidence of coercion, does not rise to the level of a federal constitutional v iolation. The remaining arguments in support of the district court’s opinion set forth by Defendant likewise are not persuasive. Specific ally, Defendant’s reference to Preston v. United States , 376 U.S. 364 (1964), in which the Supreme Court h eld state officers to the same federal standard as fede ral officers in determining whether their actions violate federal constitutiona l rights, is not applicable here because Defendant seeks the reverse-- i.e. , to evaluate federal constitutional rights by state standards. Id. at 366 (citation omitted). Likewise, Defendant’s references to the full faith and credit and privileges and imm unities clauses are not persuasive because Defendant has not demonstrated, and we do n ot find, that these clauses are relevant to the constitutionality of the consent ob tained here. Finally, Defendant’s reliance upon Elkins v. United States , 364 U.S. 206 (1960), does not have merit because Elkins simply stands for the proposition that federal cou rts must apply federal standards in determining the admissibility of evidence obtained by state law enforcement officers. Id. at 223-24.5 The Government also argues that we should reverse the district court’s

order granting the motion to suppress on the ground s that (1) the exclusionary rule does not apply to remedy a violation of a stat e law, and (2) the exclusionary rule does not apply because the Kansas Officers didnot intrude upon an interest protected by the Fourth Amendment. Because we reve rse on the ground that the consent obtained was valid under federal law, we ne ed not reach these additional arguments on appeal. - 22 - IV. Conclusion. Having carefully reviewed the briefs, the record, a nd the applicable law, we REVERSE the district court’s order granting the motion to suppress and REMAND the action for further proceedings. 5