                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                    UNITED STATES COURT OF APPEALS September 12, 2008
                                                                   Elisabeth A. Shumaker
                                 TENTH CIRCUIT                         Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 07-6302
          v.                                           (W.D. Oklahoma)
 TERRY GENE DECKER,                              (D.C. No. 5:07-CR-00121-L)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before PORFILIO, ANDERSON, and BRORBY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and appellant Terry Gene Decker pled not guilty to one count of

being a felon in possession of firearms and ammunition, in violation of 18 U.S.C.

§ 922(g)(1). He filed a motion to suppress the firearms and ammunition obtained


      *
        This order and judgment is not binding precedent except under the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.
in the course of a traffic stop. The district court denied Decker’s motion to

suppress, and he proceeded to a one-day jury trial, where he was found guilty.

The district court then sentenced Decker to the statutory minimum of fifteen

years’ imprisonment. Decker appeals.



                                 BACKGROUND

      In the early morning hours of August 25, 2006, Oklahoma City Police

Officer Keegan Burris, while on routine patrol in a high-crime area of Oklahoma

City, saw a car with an unreadable license plate. 1 The officer stopped the car,

which Decker was driving and in which a female was a passenger. The officer

asked both Decker and the female passenger for identification. When he ran a

warrant check on their identifications, Officer Burris discovered that the

passenger had given him a false name. It turned out that Decker, going under the

name Terry Gene Burns, had a prior burglary conviction.

      When Burris returned to the car to obtain the passenger’s proper

identification, he noticed something in Decker’s mouth. In the officer’s

experience, suspects commonly destroy or conceal contraband by putting it in

their mouths. Officer Burris accordingly asked Decker what was in his mouth.

Decker responded by spitting a piece of gum onto his hand and throwing it out the

      1
       Apparently, the tag light was out and there was a brown film obscuring the
license plate, rendering the plate unreadable from fifty feet away. Oklahoma law
requires a tag to be visible from that distance.

                                         -2-
window. The officer then told Decker he had just littered. As Decker got out of

the car to obtain the gum, Burris noticed two rifles, partially wrapped in blankets,

behind Decker’s car seat.

         Because Officer Burris was alone, in a high-crime area in the middle of the

night, and was faced with a passenger who had just lied about her identity, the

officer handcuffed Decker and frisked him for weapons. During the frisk, the

officer asked Decker for permission to “go inside” his pockets. Tr. of Mot. to

Suppress at 10, R. Vol. 2. Decker granted him permission to search his pockets,

where Officer Burris found nine .22-caliber rounds of ammunition in Decker’s

right front pocket. Upon rechecking Decker’s record to see if he had any prior

felony convictions, Officer Burris discovered he had a prior felony conviction for

burglary. Burris then arrested Decker for being in possession of a firearm after

being convicted of a felony. By this time, back-up personnel had arrived at the

scene.

         As indicated above, Decker filed a motion to suppress the firearms and

weapons found in his car. He argued that the traffic stop was invalid at its

inception because no traffic or equipment violation had occurred, that there was

no additional indicia of criminal activity to justify the continued detention and

search of the vehicle, and that the scope of the detention exceeded the

justification for the stop in the first place. The United States responded to the

motion, and the district court held an evidentiary hearing. The court denied

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Decker’s motion to suppress, finding: (1) “the totality of the evidence supports a

finding that at the time of the traffic stop, the license plate was not clearly visible

and Officer Burris could not clearly read the license plate” so “the initial stop of

the vehicle, based on the observed traffic violation, was lawful,” Order at 4, R.

Vol. 1, tab 21; (2) the officer’s “actions upon seeing the weapons in plain view

once the defendant voluntarily exited the vehicle were reasonable and justified,”

id.; and (3) “the uncontradicted evidence indicated that the search of defendant’s

pockets by Officer Burris happened after defendant gave his permission to have

his pockets searched.” Id. at 4-5.

      Following his conviction by the jury, the United States Probation Office

prepared a presentence report (“PSR”) in preparation for Decker’s sentencing

pursuant to the advisory United States Sentencing Commission, Sentencing

Manual (“USSG”) (2006). The PSR calculated Decker’s initial base offense level

was 24, but increased it to 33 because Decker’s prior criminal convictions

rendered him an armed career criminal under USSG §4B1.4. With a criminal

history category of V, the advisory Guideline sentencing range was 210 to 262

months. The statute pursuant to which Decker was convicted, however, contains

a statutory minimum of fifteen years’ imprisonment. 18 U.S.C. § 924(e)(1).

      Decker filed a sentencing memorandum and a motion for a downward

variance, arguing that various factors under 18 U.S.C. § 3553(a) counsel in favor

of a sentence lower than the advisory Guideline range. After considering the

                                           -4-
§ 3553(a) factors, the parties’ arguments, and the advisory Guideline range, the

court sentenced Decker to 180 months, a downward variance from the Guideline

sentencing range. Decker appeals, arguing that “Officer Burris, while conducting

a routine traffic stop, exceeded the reasonable scope of the stop by asking Mr.

Decker about his possession of contraband and by questioning the passenger and

Mr. Decker regarding the identity of the passenger in the vehicle, both unrelated

to the purpose of the traffic stop, and thereby violated Mr. Decker’s rights under

the Fourth Amendment.” Appellant’s Br. at 6.



                                  DISCUSSION

      We have recently summarized the law in our circuit regarding traffic stops:

      A traffic stop is a seizure for Fourth Amendment purposes, the
      propriety of which we measure under the standards set forth in Terry
      v. Ohio, 392 U.S. 1 (1968). We consider the detention as a whole,
      and the touchstone of our inquiry is reasonableness. We conduct a
      two-step inquiry when determining the constitutionality of a traffic
      stop. First we ask whether the officer’s action was justified at its
      inception. If so, we then ask whether the resulting detention was
      reasonably related in scope to the circumstances that justified the
      stop in the first place. The validity of a traffic stop under the Fourth
      Amendment turns on whether this particular officer had reasonable
      suspicion that this particular motorist violated any one of the
      multitude of applicable traffic and equipment laws of the jurisdiction.
      The government bears the burden of proving the reasonableness of
      the officer’s suspicion. The detention arising from a traffic stop does
      not become unreasonable merely because the officer asks questions
      unrelated to the initial purpose for the stop, provided those questions
      do not unreasonably extend the amount of time the subject is
      delayed.


                                         -5-
United States v. Valenzuela, 494 F.3d 886, 888 (10 th Cir. 2007) (further citations

and quotations omitted). As particularly relevant to this case and Decker’s

appeal, we reiterate that in United States v. Alcaraz-Arellano, 441 F.3d 1252,

1259 (10 th Cir. 2006), we held that officers may ask questions outside the scope of

the traffic stop, provided those questions do not appreciably prolong the length of

the stop. Moreover, our cases “do not focus on the order of events. Rather, our

cases focus on the reasonableness of the traffic stop in light of both the length of

the detention and the manner in which it was carried out.” Valenzuela, 494 F.3d

at 890.

      Under our precedents, Officer Burris’s lawful stop of Decker’s car because

Decker’s license plate was difficult to see, the officer’s questioning about the

identities of Decker and his passenger, and the officer’s inquiry about the

substance in Decker’s mouth, followed by his observation of the firearms in plain

view and his consensual search of Decker’s pockets, are all lawful. The district

court correctly denied Decker’s motion to suppress.



                                  CONCLUSION

      For the foregoing reasons, we AFFIRM the denial of the motion to

suppress.

                                               ENTERED FOR THE COURT

                                               Stephen H. Anderson
                                               Circuit Judge

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