                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   March 3, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 10-3143
 v.                                            (D.C. No. 2:09-CR-20125-CM-1)
                                                           (D. Kan.)
 KEVIN JOHNSON,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and HARTZ, Circuit Judges.


      Defendant-Appellant Kevin Johnson entered a conditional plea of guilty to

possession with intent to distribute more than 50 grams of methamphetamine, 21

U.S.C. §§ 841(a)(1), (b)(1)(A), and was sentenced to 240 months’ imprisonment

and ten years of supervised release. He now appeals the district court’s denial of

his motion to suppress, arguing that the evidence underlying his guilty plea

flowed from an unlawful detention. Our jurisdiction arises under 28 U.S.C.

§ 1291 and we affirm.



      *
        This order and judgment is not binding precedent, except under the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.
                                   Background

      On September 18, 2009, a SWAT team executed a search warrant on Lot 15

of a mobile home park in Atchison, Kansas. 2 R. 90-93; Supp. R. 66-67. The

warrant authorized search for methamphetamine, firearms, and drug

paraphernalia. Supp. R. 66. In the course of securing the perimeter, officers

came across a woman sleeping on the ground between two parked cars

approximately 100 feet north of the trailer. 2 R. 44, 168; Aplee. Br. Attach. G.

The officers detained the woman with handcuffs. 2 R. 44. Inside one of the cars,

officers noticed a man—Mr. Johnson—lying in the backseat entirely covered with

a blanket. Id. at 95-96. An officer knocked on the vehicle’s window with the

barrel of his submachine gun. Id. at 96, 106. After Mr. Johnson woke up and

unlocked the car door, he was pulled out of the car, handcuffed, and placed face

down on the ground. Id. at 97-98. Mr. Johnson refused to give permission to

search the car, and he remained handcuffed while the officers ran a drug-sniffing

dog around his car. Id. at 117-18, 144. The dog alerted, and officers discovered

250 grams of methamphetamine in a subsequent search. Id. at 142-43. They then

arrested Mr. Johnson for possession of methamphetamine.

      Mr. Johnson’s car was parked partially on and partially off the road that

formed the apparent boundary of Lot 15—the drivers’ side tires were on the road,

while the passengers’ side tires rested on the edge of the yard. Supp. R. 50.

Neither party introduced evidence of Lot 15’s legal boundaries, but the district

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court concluded that the “defendant’s vehicle was parked on the premises of Lot

15.” Id. at 51.

      The record does not reveal the amount of time between Mr. Johnson’s

detention and arrest. However, the canine unit was on the scene from the outset,

2 R. 120, and Mr. Johnson was removed from the scene before the search

concluded. Id. at 30. The search of the premises lasted an hour and a half. Supp.

App. 53.



                                     Discussion

      On review of a denial of a motion to suppress, we review the district

court’s legal conclusions de novo and its factual findings for clear error, with the

evidence viewed in the light most favorable to the government. United States v.

Carbajal-Iriarte, 586 F.3d 795, 799 (10th Cir. 2009) (citation omitted). On

appeal, Mr. Johnson makes two arguments: (1) that his detention exceeded the

scope of Michigan v. Summers, 452 U.S. 692 (1981), and (2) that the officers’

display of weapons and use of handcuffs violated the Fourth Amendment. Aplt.

Br. 19. Although at oral argument the parties disputed whether the district court

found that Mr. Johnson’s car was parked on Lot 15, Mr. Johnson failed to raise

that issue in his briefs and we will not address it here. See, e.g., Bronson v.

Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007). Mr. Johnson challenges the

lawfulness of his detention, not any aspect of the subsequent searches or arrest.

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A.    Scope of Detention.

      First, Mr. Johnson argues that his detention exceeded the scope of those

permitted under Michigan v. Summers. Aplt. Br. 12. According to Mr. Johnson,

because his detention continued after officers knew he did not pose a threat and

was not connected to the trailer, “[n]one of the interests identified in

Summers were served” and continued detention violated the Fourth Amendment.

Aplt. Br. 13. In essence, this is an argument that the holding of Summers—that

police may detain occupants of a premise while executing a search warrant,

Summers, 452 U.S. at 705—extends only insofar as officers can identify one of

the three interests served by detention set forth in Summers. See Aplt. Br. 14-15.

In Mr. Johnson’s view, police must continuously monitor the situation and release

a detainee once the interests are no longer, in fact, served—regardless of how

long it takes to execute the search warrant. Id. at 16.

      In Summers, the Supreme Court held that “a warrant to search for

contraband founded on probable cause implicitly carries with it the limited

authority to detain the occupants of the premises while a proper search is

conducted.” Summers, 452 U.S. at 705 (emphasis added) (footnote omitted). In

the Court’s view, where a neutral magistrate had already issued a warrant to

search the premises, the additional intrusion of detention during the search was

minor. Id. at 701-03. The Court identified three governmental interests in

opposition to the minor intrusion: (1) “preventing flight in the event that

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incriminating evidence is found;” (2) “minimizing the risk of harm to the

officers;” and (3) “orderly completion of the search.” Id. at 702-03. Balancing

the governmental interests and the intrusion, the Court concluded that detention

for the duration of the search was constitutionally reasonable. Id. at 705.

      The Court adopted a bright-line rule, not an ad hoc balancing test—“the

[detaining] officer is not required to evaluate either the quantum of proof

justifying detention or the extent of the intrusion to be imposed by the seizure.”

Id. at 705 n.19. The bright-line nature of Summers was confirmed in Muehler v.

Mena, 544 U.S. 93 (2005). There a SWAT team executed a search warrant on the

house where Ms. Mena was sleeping. Muehler, 544 U.S. at 95-96. The SWAT

team entered her bedroom, handcuffed her at gunpoint, and confined her in a

backyard garage for the duration of the search, which lasted two or three hours.

Id. at 96, 100. In a subsequent civil rights action, Ms. Mena claimed that she was

detained in violation of the Fourth Amendment. Id. at 96. The Ninth Circuit

agreed and held that “the officers should have released Mena as soon as it became

clear that she posed no immediate threat”—an argument very similar to the one

made here. Compare id. at 97 with Aplt. Br. at 14-15.

      The Supreme Court reversed, noting that “[a]n officer’s authority to detain

incident to a search is categorical; it does not depend on the ‘quantum of proof

justifying detention or the extent of the intrusion to be imposed by the seizure.’”

Muehler, 544 U.S. at 98 (quoting Summers, 452 U.S. at 705 n.19) (emphasis

                                         -5-
added). Because the rule is categorical, Mena’s “detention for the duration of the

search was reasonable under Summers because a warrant existed to search 1363

Patricia Avenue and she was an occupant of that address at the time of the

search.” Id.

      In light of Summers and Muehler, Mr. Johnson’s first argument is

unavailing. As long as a person is an occupant of the premises identified in a

search warrant, officers have “categorical” authority to detain him or her for the

duration of the search. Id. at 98. Whether the detention in fact facilitates one of

the governmental interests acknowledged in Summers—preventing flight,

minimizing risk, or completing the search in an orderly manner—is irrelevant.

      That one officer intended to detain Mr. Johnson for investigative purposes

is of no consequence. See Aplt. Br. at 14. The relevant question is whether the

officers have the authority to detain a citizen—not their subjective intent in doing

so. United States v. Lara-Garcia, 478 F.3d 1231, 1234 (10th Cir. 2007).

      Mr. Johnson also argues that detention authority under Summers extends

only to persons present in a home or structure identified in the search warrant, or

to persons who have a demonstrable connection to that home or structure—but not

to everyone present on the property. Aplt. Br. 16. In essence, this is an argument

that Mr. Johnson’s presence on the property, without more, does not make him an

“occupant” subject to detention under Summers. However, our precedent

forecloses this argument. In United States v. Sanchez, 555 F.3d 910, 917-18

                                         -6-
(10th Cir. 2009), we held that “the authority to detain [under Summers] relates to

all persons present on the premises.” Id. at 918 (emphasis added) (citation

omitted). While it is true that in Sanchez the detainee was affirmatively engaged

with the resident of the home, id. at 915, the definition of “occupant” established

in that case applies here.

      Mr. Johnson does not argue that he was not present on the premises. Even

if he did, the district court found that he was sleeping in his car parked on Lot 15

when officers arrived to execute the warrant. Supp. R. 51. This factual finding is

not clearly erroneous, and we would not disturb it on appeal even if properly

challenged. See Carbajal-Iriarte, 586 F.3d at 799. Therefore, because Mr.

Johnson was a “person[] present on the premises” identified in the search warrant,

Sanchez, 555 F.3d at 918, his detention—which did not exceed the time required

to execute the search—did not violate the Fourth Amendment.

B.    Manner of Detention.

      Second, Mr. Johnson argues that “the highly invasive manner of Mr.

Johnson’s detention was constitutionally unreasonable” and “exceeds the manner

of detention authorized by Summers.” Aplt. Br. 11. According to Mr. Johnson,

the officers’ display of firearms and use of handcuffs converted his detention into

a full-fledged arrest, not the sort of “less intrusive” seizure authorized by

Summers. Aplt. Br. 20; Summers, 452 U.S. at 697.

      This argument is unavailing in light of Muehler. As mentioned above, in

                                         -7-
Muehler a SWAT team forcefully entered the room in which Ms. Mena was

sleeping and “placed her in handcuffs at gunpoint.” Muehler, 544 U.S. at 96.

Officers took her outside to a garage, where she was kept in handcuffs for the

entire two- to three-hour search. Id. She was released only upon completion of

the search. Id.

      The Supreme Court held that the manner of Ms. Mena’s detention did not

violate the Fourth Amendment. Id. at 98. At the outset, the Court noted that

“[i]nherent in Summers’ authorization to detain an occupant of the place to be

searched is the authority to use reasonable force to effectuate the detention.” Id.

at 98-99 (citation omitted). The Court balanced the additional intrusion imposed

by handcuffs against the governmental interest, and found that the use of

handcuffs was reasonable under the circumstances. Id. at 99. Of particular

relevance, the Court noted the government’s strong interest in using handcuffs

where the warrant authorizes search for weapons—“[i]n such inherently

dangerous situations, the use of handcuffs minimizes the risk of harm to both

officers and occupants. Though this safety risk inherent in executing a search

warrant for weapons was sufficient to justify the use of handcuffs, the need to

detain multiple occupants made the use of handcuffs all the more reasonable.” Id.

      Similar inherently dangerous circumstances are present here. The warrant

authorized search for methamphetamine and firearms, and officers testified that

the high level of traffic in the area made the search particularly dangerous. 2 R.

                                         -8-
91-92. Like in Muehler, officers encountered and detained multiple persons on

the property. Supp. R. 53-54. Accordingly, this was an inherently dangerous

situation that justified the officers’ display of firearms and use of handcuffs—just

as in Muehler. Id. at 53 (district court’s conclusion).

      Mr. Johnson attempts to distinguish Muehler based on its extraordinary

facts. Aplt. Br. 21. However, the facts are actually quite similar to those here: in

both cases, the warrant authorized search for weapons, the detainees were

awakened by SWAT teams at gunpoint, and were placed in handcuffs for the

duration of the search. See Muehler, 544 U.S. at 96. Given the similarities, we

see no basis for a different outcome.

      AFFIRMED.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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