                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           FEB 20 2002

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellant,
                                                       No. 00-1513
 v.                                                 (D.C. No. 00-S-412)
                                                        (D. Colo.)
 KARL WALKER,

          Defendant-Appellee.




                          ORDER AND JUDGMENT *


Before SEYMOUR, LUCERO and MURPHY, Circuit Judges.



      The government appeals from the decision of the district court suppressing

the evidence seized from a vehicle belonging to defendant Karl Kevin Walker

after he was arrested for DUI. We affirm. 1

      *
       This order and judgment is not binding precedent, except under the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.
      1
        Evidence was also seized from Mr. Walker’s residence pursuant to a
search warrant. The government concedes that the validity of the search of the
home depends on the legality of the warrantless search of the vehicle because the
facts supporting the search warrant were “fruits” of the automobile search.
      Shortly after midnight, Mr. Walker drove his automobile the wrong way

down a clearly-marked and well lighted highway exit ramp. Concerned that Mr.

Walker might be impaired, Deputy Sheriff Paula Ace stopped him after he backed

up the exit ramp. After calling for backup, she approached the vehicle and asked

Mr. Walker for his drivers license and insurance card. She testified that Mr.

Walker had watery, bloodshot eyes and there was a faint odor of alcohol on his

breath. When Deputy Romero arrived, she told him of the possible DUI. Deputy

Romero asked Mr. Walker to get out of the car and to perform two field sobriety

tests, a head-tilt maneuver and a one-leg stand. When Mr. Walker failed to pass

these tests, the officers informed him he was under arrest for DUI, after which he

agreed to take a breathilizer test back at the police station. Deputy Ace

handcuffed him, put him in her patrol car, and left for the station. A 20-year old

passenger in the car, Mary Perry, remained with the automobile along with

Deputy Romero and Deputy Powell, who had arrived on the scene.

      Before leaving the scene, Mr. Walker had refused to consent to a search of

his car. Deputy Romero called his supervisor, Investigator Littlefield, who told

him Mr. Walker was a known drug dealer. Thereafter, Deputies Romero and

Powell decided to “inventory” the automobile. The deputies discovered

methamphetamine in two containers, one under the passenger seat of the car and

one under the driver’s seat. They placed Ms. Perry under arrest and transported


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her to the police station where she provided information about methamphetamine

in Mr. Walker’s residence. Based on that information, the officers obtained a

search warrant for Mr. Walker’s home, where they discovered additional

methamphetamine.

      Mr. Walker was charged in a one-count indictment for possession of

methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1)

and (b)(1)(B). He moved to suppress the evidence, claiming that the warrantless

search of the automobile violated the Fourth Amendment. The government

responded that the search was either a valid inventory search or a search incident

to Mr. Walker’s arrest. After an evidentiary hearing, the district court granted the

motion to suppress. The court held that the inventory search violated sheriff

department policy and that the search was not incident to the arrest because it did

not take place until after Mr. Walker had departed for the police station.

      The government does not appeal the determination that there was not a

valid inventory search, challenging only the district court’s legal conclusion that

there was not a valid search incident to Mr. Walker’s arrest. Because the

government does not question the district court’s findings, our review is de novo.

United States v. Humphrey, 208 F.3d 1190, 1201 (10th Cir. 2000).

      We have clearly held in this circuit that officers may not search an

automobile incident to an arrest after the defendant has been removed from the


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scene of the arrest. United States v. Lugo, 978 F.2d 631, 634-35 (10th Cir. 1992).

We recently affirmed Lugo in United States v. Edwards, 242 F.3d 928, 937-38

(10th Cir. 2001 (“Because Edwards was incapacitated with handcuffs and sitting

in the back of a police car approximately 100-150 feet away from the rental car,

any justification to conduct a search incident to arrest had dissipated.”).

      Relying on New York v. Belton, 453 U.S. 454 (1981), and Humphrey, 208

F.3d at 1202, the government argues that Lugo and Edwards were incorrectly

decided. In Humphrey, without citing Lugo, this court upheld a search incident to

an arrest after the defendant was handcuffed and placed in a squad car,

notwithstanding officer safety was not a concern. Humphrey does not govern this

case, however. It is factually distinguishable because here, as in Lugo, the

defendant had already left the scene before his car was searched. Moreover, to

the extent Humphrey may be inconsistent with Lugo, we are bound by the earlier

decision. See Haynes v. Williams, 88 F.3d 898, 900 n.4 (10th Cir. 1996). Finally,

Lugo considered Belton, noting that it upheld an automobile search “‘as a

contemporaneous incident of that arrest.’” Lugo, 978 F.2d at 634 (quoting Belton,

453 U.S. at 460). The search here was not contemporaneous with Mr. Walker’s

arrest.

          We AFFIRM the decision of the district court granting suppression of the




                                          -4-
evidence. 2

                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Circuit Judge




      2
        We admonish counsel to be cognizant of our local rules. Mr. Walker did
not attach to his brief the district court’s oral findings and conclusions. See 10th
Cir. R. 28.2(A)(2). The government failed to correct this omission. See id.
28.2(B).

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