                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                     October 11, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 05-3306
          v.                                             (D. Kansas)
 JA IM O N D D . M A RTIN ,                     (D.C. No. 04-CR-20100-CM )

               Defendant - Appellant.



                              OR D ER AND JUDGM ENT *


Before KELLY, A ND ER SO N, and BEAM , ** Circuit Judges.




      Defendant-Appellant Jaimond D. M artin pled guilty to one count of

possession with intent to distribute fifty grams or more of crack cocaine, in

violation of 21 U.S.C. § 841(a) and (b)(1)(A )(iii). He appeals the denial of his

motion to suppress the cocaine which was found in his car at the time of his

arrest. W e affirm.




      *
       This order and judgment is not binding precedent, except under the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.
      **
        The Honorable C . Arlen Beam, United States Circuit Judge, Eighth
Circuit Court of Appeals, sitting by designation.
                                  BACKGROUND

      On July 11, 2004, Kansas City, Kansas, police officer Brian W hisner

received a call from dispatch directing him to respond to an alleged aggravated

assault. Dispatch told Officer W hisner that an elderly woman had called to

inform the police that a young African-American male in his 20’s, later identified

as defendant M artin, had parked his car, described as a red and silver older model

Chevrolet with tags reading “CLASSIC,” on her property. The woman further

stated that, when her husband had gone outside to confront the young man, the

young man had pointed a gun at him. 1

      W hile the officer was driving to the location of the alleged assault, he saw

a car matching the description of the car involved in the assault. Officer W hisner

testified that, when the driver of the Chevrolet (defendant M artin) saw the

officer’s police vehicle, he “whipped off” the street and “whipped off” into a

driveway. Tr. of Suppression Hr’g at 8-9, R. Vol. II. The driveway turned out to

belong to M artin’s parents. Furthermore, the Chevrolet was registered at that

address in M artin’s name.

      Officer W hisner testified that he parked his police vehicle on the street

behind a fir tree. He stated that M artin ran from his car, not in the direction of



      1
       Officer W hisner testified that he learned “probably two hours after” he
arrested M artin that the victim of the alleged aggravated assault had told an
investigating officer that M artin had returned the gun to a neighbor. Tr. of
Suppression Hr’g at 30, R. Vol. II.

                                          -2-
the front door of the house, but rather towards nearby woods. W hisner further

testified that he drew his gun and ordered M artin to stop because he observed

something in M artin’s hand which the officer thought was a gun. As it turned

out, M artin held a cell phone in his hand.

      Officer W hisner apprehended M artin, walked him to the front of the police

car, handcuffed him, patted him down and placed him under arrest. He found no

contraband or weapon on M artin. The officer then placed M artin in the caged

area in the back of his police vehicle.

      The police car was approximately forty feet from M artin’s car. W hisner

testified that the driver’s door of M artin’s car w as open and the engine running.

He further testified that he walked over to the car “to secure th[e] vehicle,” id. at

12, and because “possibly [there would be] a gun laying around or on the ground

nearby.” Id. at 13. As he stood in front of the open door of the car, he saw a “big

ball of what [he] believed [to be] crack cocaine” lying “[r]ight smack in the

driver’s seat.” Id. Officer W hisner also saw a Crown Royal bag on the

floorboard, out of which more crack cocaine and marijuana spilled.

      At that point, W hisner called for back-up. Other officers arrived and took

photographs of the scene. Field tests revealed the drugs were indeed cocaine and

marijuana.

      Two defense witnesses contradicted certain parts of W hisner’s testimony.

Trina W hite, an acquaintance of M artin’s whose best friend was M artin’s

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neighbor, testified that she was visiting her friend the morning of M artin’s arrest.

She testified that she saw M artin drive slowly (five miles per hour) up the street,

with a police car following him slowly. She further testified that M artin got out

of his car, closed the car door, and began walking up the front steps of his

parents’ house. W hite also testified that W hisner parked his police car right

behind M artin’s car in the driveway of M artin’s parents’ house. Another

neighbor, Antonio Johnson, 2 similarly testified that he saw M artin drive slowly

down the street, with a police car following him, and that M artin got out of his

car, closed the car door and proceeded up the front steps of the home. In

contradiction to W hite’s testimony, Johnson testified that the police car was

parked on the street, not in the driveway. 3

      After listening to this testimony at the suppression hearing, the district

court noted the conflicts between the various accounts given:

      [T]he court would find that the court heard conflicting testimony as
      to the events preceding the seizure of the evidence at issue[.] Officer
      W hisner testified that when he encountered defendant’s vehicle
      defendant sped away and whipped into the driveway of his residence
      and that defendant ran from his vehicle to elude the police officer
      leaving his vehicle’s side door open. Defendant’s witnesses,


      2
      Johnson is married to W hite’s best friend, whom W hite was visiting the
morning of M artin’s arrest.
      3
        Both Johnson and W hite observed M artin’s arrest from Johnson’s house.
Johnson was on his back porch and White was on the front porch. Johnson
testified that his back porch was perhaps “600 feet,” or at least “one and a half”
football fields length, away from M artin’s driveway. Tr. of Suppression Hr’g at
93-94, R. Vol. II.

                                          -4-
      specifically Trina W hite and Antonio Johnson, testified that they saw
      defendant drive very slowly down the street with a police vehicle
      following and that after closing defendant’s driver’s side door
      defendant walked up to the door of his residence before a police
      officer motioned for him to come to his car and calmly spoke to him
      from the driveway. It’s clear to the court that there was conflicting
      testimony . . . . In light of the conflicting testimony presented, quite
      frankly, the court has serious concerns about Officer W hisner’s
      testimony up to the point in time when defendant was placed into
      handcuffs. And that’s because defendant’s w itnesses, M iss W hite
      and M r. Johnson, appeared credible to the court and did not appear to
      have any motive to testify dishonestly.

Tr. of Suppression Hr’g at 130-31. R. Vol. II. The court nevertheless denied

M artin’s motion to suppress, stating “even if this court were to rely solely on

defendant’s w itnesses . . . the seizure of the crack cocaine and marijuana in

defendant’s vehicle is still a law ful seizure . . . under the plain view and inventory

exceptions to the warrant requirement.” Id. at 131.

      As indicated, M artin pled guilty to one count of possession with intent to

distribute cocaine, and aiding and abetting. The government filed notice of a

prior offense pursuant to 21 U .S.C. § 851. M artin w as sentenced to 240 months’

imprisonment, the minimum mandatory based upon the government’s filing the

notice of prior offense under § 851. M artin appeals the denial of his motion to

suppress, arguing:

      In light of the district court’s finding that Officer W hisner lacked
      credibility concerning the events leading up to M r. M artin’s arrest, a
      remand is necessary for further findings in connection with the
      court’s denial of the motion to suppress under the plain view and
      inventory search doctrines.



                                          -5-
Appellant’s Op. Br. at 1.



                                    D ISC USSIO N

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

unless they are clearly erroneous and view the evidence in the light most

favorable to the ruling.” United States v. Ojeda-Ramos, 455 F.3d 1178, 1180

(10th Cir. 2006). W e review de novo, however, “the ultimate determination of

reasonableness under the Fourth Amendment.” Id.

      The district court found the w arrantless search of M artin’s car and seizure

of the drugs were justified under either the plain view or the inventory exception

to the Fourth Amendment’s warrant requirement. The government also argues on

appeal that the seizure of drugs can be upheld because they were seized in the

course of a search incident to a valid arrest.

      M artin argues that, because the district court “made no finding about the

[car] door’s position, or whether the drugs would have been in plain view were

the door closed,” a remand is required “for further findings on whether the drugs

were, in fact, in plain view from the officer’s perspective outside the closed car.”

Appellant’s Op. Br. at 10. M artin argues this is particularly necessary because

the district court specifically questioned the reliability of O fficer W hisner’s

testimony concerning his pursuit of M artin, given the fact that it was contradicted

by two other witnesses, whom the district court specifically found credible on that

                                          -6-
point. Thus, he argues, we have reason to doubt the reliability of W hisner’s

testimony about whether the car door was open or not and whether the drugs were

really in plain view. He further argues that the search and seizure were not

justified under the inventory exception or as a search incident to a valid arrest.

      M artin’s counsel perceptively identifies an anomaly in the district court’s

findings concerning the credibility of Officer W hisner and she argues

persuasively that a remand is necessary. Nonetheless, we ultimately conclude that

such a remand is not required. Rather, we hold that the district court’s finding

that the drugs seized w ere in plain view is not clearly erroneous. Because we

conclude that the plain view doctrine permitted the seizure of the drugs, we need

not reach the issues of whether the seizure was justified under the inventory or

search incident to an arrest exceptions to the warrant requirement.

      The “plain view” doctrine allows a law enforcement officer to seize
      evidence of a crime, without violating the Fourth Amendment, if
      “(1) the officer was lawfully in a position from which the object
      seized was in plain view, (2) the object’s incriminating character was
      immediately apparent (i.e., there was probable cause to believe it was
      contraband or evidence of a crime), and (3) the officer had a lawful
      right of access to the object.”

United States v. Angelos, 433 F.3d 738, 747 (10th Cir. 2006) (quoting United

States v. Thomas, 372 F.3d 1173, 1178 (10th Cir. 2004)). The district court found

that all three elements of the plain view doctrine were satisfied here, including

finding that it was irrelevant whether M artin’s car door was open or not “because

the police have a right of access to contraband inside a vehicle even when the

                                          -7-
vehicle’s doors and windows are closed.” Tr. of Suppression Hr’g at 132, R. Vol.

II.

      M artin does not dispute that W hisner was lawfully in a position to look in

M artin’s car, nor does he dispute the incriminating nature of the drugs. He argues

that W hisner’s testimony that the car door was open, permitting a clear view of

the drugs inside, was not reliable because the district court had already found

unreliable W hisner’s testimony about other aspects of his encounter w ith M artin.

W e do not agree. The district court specifically stated that it had “serious

concerns about Officer W hisner’s testimony up to the point in time when

defendant was placed in handcuffs.” Tr. of Suppression Hr’g at 131, R. Vol. II

(emphasis added). However, the seizure of the drugs from the car occurred after

that time. Given the court’s conclusion that the plain view doctrine justified the

seizure, the district court obviously implicitly found Officer W hisner’s testimony

about the car door and the location of the drugs was credible.

      Although the troopers’ testimony is at odds with that of the
      defendant’s witness, when there are two permissible views of the
      evidence, the factfinder’s choice between them cannot be clearly
      erroneous. Implicit in the district court’s order denying
      [defendant’s] motion to suppress is the court’s resolution of
      credibility issues in favor of the troopers.

United States v. Toro-Pelaez, 107 F.3d 819, 824-25 (10th Cir. 1997) (internal

quotations and citation omitted). The court did not find all of O fficer W hisner’s




                                          -8-
testimony unreliable, only a specific part of it. And it implicitly found the

remainder of his testimony to be credible.

      Furthermore, we find no clear error in the district court’s conclusion that

the drugs were clearly visible to Officer W hisner. The officer’s testimony, based

upon his observations and perception when he was standing only a few feet from

the car containing the drugs, is only slightly contradicted by two witnesses

watching from hundreds of feet away. See, supra, n.3.



                                  C ON CLU SIO N

      For the foregoing reasons, we AFFIRM the denial of M artin’s m otion to

suppress.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




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