                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        May 18, 2011
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                        Clerk of Court
                                     TENTH CIRCUIT



 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 10-5119
 ANDRE DARNELL THOMAS,                            (D.C. No. 4:10-CR-00052-GKF-1)
                                                            (N. D. Okla.)
           Defendant-Appellant.



                                  ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, EBEL and HOLMES, Circuit Judges.



       Defendant Andre Thomas entered a conditional plea of guilty to one count of

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

922(g)(1) and 924(a)(1), and was sentenced to a term of imprisonment of twenty-seven

months. Thomas now appeals, focusing solely upon his handcuffing and claiming the

district court erred in denying his motion to suppress the firearm and ammunition.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, 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        This order and judgment is not binding precedent, except under the doctrines of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.
                                              I

                                    Factual background

       At approximately 6:30 a.m. on February 12, 2010, Tulsa police officer Joel Spitler

was dispatched to investigate a suspicious vehicle located behind the Dash Inn, a

convenience store located at 1532 East Apache Street. The vehicle was reported to have

its lights on and engine running. While en route to the scene, another officer came on the

radio and advised that the vehicle in question may also have been involved in a shooting

incident the night before.

       When he arrived at the Dash Inn, Spitler observed a silver Lincoln, parked in the

back of the store, with its lights on and engine running. Spitler got out of his patrol car,

approached the suspicious vehicle, and noted that there was a black male, later identified

as Thomas, sitting in the driver’s seat slumped over the steering wheel. Also, Spitler was

able to observe that the car’s transmission was in the drive position. Based upon these

observations, Spitler tentatively concluded that Thomas was either “injured or he may

have been just drunk or high on something which made him pass out.” ROA, Vol. 2 at

13. Spitler, however, observed no blood inside the car or at the scene.

       Two additional officers, Greg Evans and Gerard Stege, arrived on the scene to

assist Spitler. Spitler and Stege determined the doors of the vehicle were locked. Stege

then located a stick, leaned over the open sunroof of the vehicle, inserted the stick

through the sunroof, and used the stick to push a button that unlocked the doors of the

vehicle. The officers chose not to alert or otherwise awaken Thomas “in case he was an

                                              2
armed robbery suspect or a shooting suspect” who might be armed and dangerous. Id.

Spitler opened the driver’s side door of the car and Evans, with Spitler’s assistance,

removed Thomas from the vehicle and handcuffed him.

       Evans “took control of [Thomas] at that point” and “backed him up a few feet

away” from the vehicle. Id. at 23. Evans asked “a couple of general questions to see if

[he] could get a response from” Thomas. Id. at 24. Thomas responded “[a] little bit

slower than what [Evans] . . . consider[ed] normal,” and was “a little slurred in his speech

. . . .” Id. Thomas stated “that he [had taken] some footballs” (street slang for Xanax),

and “must have fallen asleep.” Id. Evans proceeded to conduct a pat-down search of

Thomas for purposes of officer safety. As he did so, Evans noticed there was a

protruding object in Thomas’s right rear pants pocket that appeared to be a handgun.

Evans removed the item, which was a .38 caliber Charter Arms handgun. Evans then

stepped away from Thomas and proceeded to unload live rounds of ammunition from the

gun. As Evans was unloading the gun, Thomas “stated something to the effect that he

had the gun only for safety reasons because it was a bad drug area that he was in.” Id. at

28. This statement was volunteered by Thomas and was not in response to any question

posed by the officers.

                                  Procedural background

       On April 6, 2010, a federal grand jury indicted Thomas on one count of being a

felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1)

and 924(a)(1). Thomas moved to suppress “all evidence obtained” on the grounds that

                                             3
the officers conducted a warrantless search and seizure of his person. Id., Vol. 1 at 9. In

a separately filed motion, Thomas also sought to have his statement suppressed on the

grounds that the officers failed to advise him of his Miranda rights.

       On June 8, 2010, the district court conducted an evidentiary hearing on Thomas’s

motions. During the hearing, the government presented testimony from Spitler and

Evans. Thomas presented no witnesses. At the conclusion of the evidence, the district

court orally denied Thomas’s motions, stating, in pertinent part:

       The Court concludes that the officers were justified in gaining entry under
       their community care-taking function. Under the circumstances here it was
       not unreasonable not to knock on the window. The car was in unusual – an
       unusual circumstances being at the back of this particular convenience store
       in a field with the lights on, engine running and in drive. To have knocked
       on that window with the car in drive with an individual who very likely
       could have been and, in fact, after the investigative detention turned out to
       be or very likely appeared to be, I don’t have evidence that he was, but
       appeared to be intoxicated, would have been foolhardy. So it was not
       unreasonable for the officers to have taken the position and taken the steps
       that they took. The officers were justified in doing the pat-down search
       because the defendant appeared to be intoxicated, because they had been
       informed, although later corrected, that the car may have been involved in a
       shooting the night before, reasonable suspicion existed to conduct the
       protective search and the statements made by the defendant were, under the
       testimony presented to the Court here today, made spontaneously and
       unprompted by questions by the officers.

Id., Vol. 2 at 34-35.

       On June 17, 2010, Thomas entered a conditional plea of guilty to the charge

alleged in the indictment. In doing so, Thomas “specifically reserved . . . the right to

appeal the [district court’s] oral ruling of June 8, 2010, denying [his] Motions to

Suppress.” Id., Vol. 1 at 29; see id. at 37 (“The defendant reserves the right to appeal the

                                              4
denial of the motion to suppress”). The district court subsequently sentenced Thomas to a

twenty-seven month term of imprisonment, to be followed by a three-year term of

supervised release.

                                              II

       Thomas challenges on appeal the denial of his motion to suppress the firearm and

ammunition, arguing that Evans “lacked a lawful basis for using handcuffs” on him.1

Aplt. Br. at 4. “Upon review of the denial of a motion to suppress, we view the evidence

in the light most favorable to the government, accept the district court’s findings of fact

unless clearly erroneous, and review de novo the ultimate determination of

reasonableness under the Fourth Amendment.” United States v. Polly, 630 F.3d 991, 996

(10th Cir. 2011) (internal quotation marks omitted). We “may affirm the district court on

any basis supported by the record.” United States v. McCane, 573 F.3d 1037, 1040 (10th

Cir. 2009).

       “To suppress evidence as the fruit of [an] unlawful detention or unlawful search,”

Thomas “must make two showings: (1) that the detention [or search] did violate his

Fourth Amendment rights; and (2) that there is a factual nexus between the illegality and

the challenged evidence.” United States v. Jarvi, 537 F.3d 1256, 1260 (10th Cir. 2008)

(internal quotation marks omitted; brackets in original). “In other words, [Thomas] must


       1
         Thomas effectively concedes on appeal that the officers were justified in
approaching his car, assessing the situation, inserting a stick through the open sunroof in
order to unlock the car doors, opening the driver’s side door, and removing him from the
car. Further, Thomas does not contend that the handcuffing constituted an arrest.

                                              5
show that” Evans unlawfully handcuffed him and that, “if [Evans] had not [handcuffed

him],” neither Evans nor the other officers “would . . . have ended up” observing and

ultimately seizing the firearm in his back pocket. Id.

       Turning to the first of these required showings, it is well established that

“[h]andcuffing may be appropriate during an investigative detention—an investigative

detention does not become unreasonable just because officers handcuff an individual.”2

Lundstrom v. Romero, 616 F.3d 1108, 1122 (10th Cir. 2010). “Officers are authorized to

handcuff individuals during the course of investigative detentions if doing so is

reasonably necessary to protect their personal safety or maintain the status quo.” Id.

“However, the use of handcuffs is greater than a de minimus intrusion and thus requires

the government to demonstrate that the facts available to the officer would warrant a man

of reasonable caution in the belief that the action taken was appropriate.” Id. (internal

quotation marks omitted).

       Thomas contends, in arguing the illegality of his handcuffing, that any

“[l]egitimate concerns that he could pose a danger while inside his vehicle or as a result

of being intoxicated were resolved when [he] was removed from his car and was


       2
         The record in this case establishes that the officers initiated the encounter with
Thomas and his vehicle for several purposes: to determine whether Thomas was in need
of medical care; to ensure the safety of Thomas and others persons in the area; and to
determine whether Thomas was or had been involved in any wrongdoing (particularly the
shooting that allegedly occurred the night before). This fact does not alter our analysis in
any way, since investigative detentions and community caretaking detentions are
effectively subject to the same standards. United States v. Garner, 416 F.3d 1208, 1213
(10th Cir. 2005).

                                              6
cooperative with the officers.” Aplt. Br. at 4-5. Although he concedes that his “possible

intoxication . . . added a layer of uncertainty because intoxicated people are often

unpredictable,” id. (internal quotation marks omitted), he argues that “[r]emoving him

from the vehicle served to dissipate any concern for safety once he demonstrated full

compliance and did not act or speak in an ‘unpredictable’ way.” Id. at 9. Thomas further

argues that the “report from an officer who was not present at the scene linking

[Thomas’s] vehicle to a violent crime the night before did not justify the use of

handcuffs” because “[n]o description of the vehicle involved in the crime was provided at

the suppression hearing, and [he] was not suspected to match any perpetrator’s

description.” Id. at 5. Lastly, Thomas argues that handcuffing was unnecessary to

maintain the status quo because “[t]he officers outnumbered” him three to one “and did

not face resistance from him or bystanders.” Id. at 10.

       We reject Thomas’s arguments. To begin with, Officer Evans “was certainly

justified in having some concern for his safety” based upon the fact that he and the other

officers first encountered Thomas slumped over the steering wheel of his vehicle.

Novitsky v. City of Aurora, 491 F.3d 1244, 1254 (10th Cir. 2007) (reaching similar

conclusion with respect to officer who encountered individual in a fetal position in the

back of a parked car). Specifically, those circumstances would have given rise to an

objectively reasonable belief that Thomas may have been under the influence of alcohol

or drugs. Officer Evans testified, based upon his experience in dealing with hundreds of

individuals who were under the influence of drugs and alcohol, that such individuals “are

                                              7
unpredictable,” with some being “respectful” and “others . . . becom[ing] wild on the spur

of the moment.” ROA, Vol. 2 at 26. Moreover, the fact that Thomas’s vehicle was in the

drive position, with the engine running, would have reasonably heightened Evans’s

concern for his own safety and the safety of the other two officers. In particular, an

intoxicated driver, left unrestrained, could have attempted to reenter the car and drive

away. In addition to these facts, Evans and the other two officers had been advised by

another officer of the possibility that Thomas’s vehicle may have been involved in a

recent shooting incident. Although the officers were not provided with a great deal of

detail regarding the prior crime or the suspects involved in that crime, a reasonable officer

armed with that basic knowledge would nevertheless have been concerned that Thomas

might be armed and dangerous. Considering all of these facts together, we conclude that

Thomas “posed [an] objective threat to officer safety,” thereby justifying Evans’s

decision to handcuff Thomas following his removal from the vehicle. Lundstrom, 616

F.3d at 1123.

       Even assuming, for purposes of argument, that Evans was not justified in

handcuffing Thomas, Thomas cannot establish a factual nexus between his handcuffing

and the discovery of the firearm. “To succeed in suppressing the [firearm], [Thomas]

must show the discovery would not have come to light but for the government’s

unconstitutional conduct.” United States v. Sanchez, 608 F.3d 685, 691 (10th Cir. 2010)

(internal quotation marks omitted; emphasis in original). Understandably, Thomas makes

no attempt to argue that, absent the handcuffing, Evans would not have conducted a

                                             8
routine pat-down search or otherwise observed the firearm protruding from Thomas’s

pocket.

      We AFFIRM the district court’s denial of Thomas’s motion to suppress the firearm

and ammunition.



                                              Entered for the Court


                                              Mary Beck Briscoe
                                              Chief Judge




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