                                                                         F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       January 5, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


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

               Plaintiff - Appellee,                     No. 06-1037
          v.                                             (D. Colorado)
 BR ETT FLO YD YEO M ANS,                         (D.C. No. 04-CR -407-PSF)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before M U RPH Y, A ND ER SO N, and O’BRIEN, Circuit Judges.




      Following the denial of his motion to suppress, Brett Floyd Yeomans was

found guilty by a jury of one count of possession of a rifle and shotgun by a

previously convicted felon and one count of possession of ammunition by a

previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). He pled guilty

to a third count, possession of five grams of a mixture or substance containing

methamphetamine by a person previously convicted of a drug offense, in violation

of 21 U.S.C. § 841(a) and (c). After Yeomans’ motions for a new trial and for


      *
       This order and judgment is not binding precedent except under the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 (eff.
Dec. 1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
reconsideration of his motion to suppress were denied, the district court sentenced

Yeomans to 100 months on counts one and two, and twenty-four months on count

three, all to run concurrently. Yeomans appeals and we affirm.



                                 BACKGROUND

      On M ay 22, 2004, the M offat County Justice Center dispatch center

informed Colorado State Trooper M arty Smith that M offat County law

enforcement personnel had learned, through a series of tips, that a gold Jeep

Cherokee would be traveling on Highway 13 from M eeker, Colorado, to Craig,

Colorado, and would possibly be transporting illegal narcotics. The dispatch

center additionally informed Trooper Smith that the driver of the Jeep was named

Steven Barley and that there were two passengers, Brett Yeomans and Brian

Johnson. W hen Smith requested criminal histories on all three men, dispatch

informed him that none had any outstanding warrants, but Yeomans was on

probation and there were two restraining orders on him, involving a boy and a

woman. 1 Smith did not know why the restraining orders were placed on

Yeomans, but he testified he suspected they related to domestic violence. See Tr.

of M ots. Hr’g at 75, Appellant’s App. at 83. Smith was told that he would have




      1
       Trooper Smith testified at the hearing on the motion to suppress that
persons subject to restraining orders are not permitted to purchase firearms. Tr.
of M ots. Hr’g at 11-12, Appellant’s App. at 19-20.

                                        -2-
to develop his own basis for stopping the Jeep, as the anonymous tip was an

insufficient basis by itself for stopping the car.

      Trooper Smith then left the dispatch center and drove southbound on

Highway 13 looking for the Jeep Cherokee. Two other law enforcement

personnel, Deputy Daniel Burke and Deputy Todd W heeler, also heard and

responded to the dispatch center’s message.

      Trooper Smith saw the Jeep Cherokee traveling towards him at eighty-two

miles per hour in a sixty-five mile-per-hour zone. Smith accordingly turned

around and stopped the Jeep. Deputy Burke pulled his car over behind Trooper

Smith’s car.

      Before he approached the Jeep, Trooper Smith called dispatch to check on

the Jeep’s license plates. Dispatch informed Smith that records showed Barley

was the registered owner and there were no other irregularities regarding the

vehicle. Smith and Burke approached the Jeep together, Smith on the driver’s

side and Burke on the passenger’s side. They observed Barley in the driver’s seat

and Yeomans was the only passenger. 2 As the officers approached the car, both

Sm ith and B urke saw tw o long guns in cases on the back seat of the Jeep. As

they approached the front of the car, they also noticed some shotgun amm unition



      2
       As explained more fully, infra, at the time the officers approached the car,
they had not yet identified the passenger as Yeomans. They made that
determination later during the stop. For ease of reference, however, we identify
Yeomans by name throughout this factual recitation.

                                           -3-
on the dashboard on the passenger side, where Yeomans w as sitting. Smith

testified that his normal practice upon observing guns in a vehicle was to take

them out of their cases and see whether they were loaded. He further testified,

however, that because Deputy Burke was accompanying him and could watch the

vehicle occupants, he did not deem that necessary. But he said that the status of

the guns “was stuff that [he] was going to check later on in the contact.” Tr. of

M ots. Hr’g at 24, Appellant’s App. at 32.

      Smith asked Barley and Yeomans who owned the guns and asked if they

were loaded. He was told by Yeomans that they were his (Yeomans’) weapons,

that they were not loaded, and that he was taking them to his residence in Craig,

Colorado, for storage. Trooper Smith nonetheless testified that he “had a reason

to believe [the guns] might be [loaded], with the presence of the ammunition and

the weapons in the same vehicle.” Id. at 57, Appellant’s App. at 65.

      Barley provided Trooper Smith with his driver’s license and vehicle

registration. Smith testified that Barley was “obviously nervous. His hands were

shaking as he was trying to get his driver’s license and stuff out.” Id. at 25,

Appellant’s App. at 33. W hen asked why the two men were speeding, Yeomans

responded that he had a medical emergency in that his nephew had been struck by

a car and was in a hospital in Craig. 3 Smith told Barley that he would be issued a

      3
       As it turned out, Smith had heard a broadcast from dispatch earlier in the
day, before he became involved in the search for the Jeep, that a young boy had
                                                                     (continued...)

                                          -4-
citation for speeding. Smith and Burke then returned to Smith’s patrol car with

Barley’s driver’s license, where Smith requested an additional records check and

began to write out the citation. A total time of six minutes had elapsed, from the

time the officers first approached the car to the time they went back to Smith’s

patrol car to check Barley’s license and begin writing the citation. Id. at 27,

Appellant’s App. at 35. The additional records check revealed nothing adverse

about the Jeep or its occupants.

      W hile Trooper Smith was sitting in his patrol car writing out the citation,

he directed D eputy Burke to return to the Jeep and find out the name of Y eomans’

injured nephew. Burke did so, then reported to Smith that Yeomans could not

remember his injured nephew’s last name. Thinking it was unusual that Yeomans

did not remember his nephew’s last name, Smith “stopped writing the citation,”

id. at 30, Appellant’s A pp. at 38, and he and Burke walked back to the Jeep to

inquire further. At this point, ten or eleven minutes had passed since the officers

first stopped the Jeep. Id. at 31, Appellant’s App. at 39. Smith and Burke

testified that Yeomans w as “very nervous,” “fidgety,” and unable to speak in

complete sentences. Id. at 94, 96, Appellant’s A pp. at 102, 104. Yeomans again

indicated he could not remember his nephew’s last name. At some point in this

      3
       (...continued)
been hit by a car in M eeker or Craig. During the stop, Smith found out from
dispatch that the child’s first name was Kolby and that he, in fact, had two last
names. At some time during the traffic stop, Smith informed Yeomans and
Barley that the child had been treated and released from the hospital.

                                         -5-
phase of the stop, Smith obtained Yeomans’ identification. Smith then asked

Barley and Yeomans if they were carrying large quantities of cash or narcotics, to

which both replied they were not. Smith asked both men for consent to search the

Jeep and both consented. W hen they were asked to get out of the Jeep, both

Barley and Yeomans did so. 4 At approximately this point in the stop, Trooper

Smith requested a canine drug-detecting unit.

      After Yeomans got out of the car, Deputy Burke patted him down “for

weapons.” Id. at 33, Appellant’s App. at 41. At this point, Deputy W heeler had

also arrived at the scene. W hile patting Yeomans down, Burke discovered in

Yeomans’ pockets a marijuana pipe, a plastic bag containing suspected marijuana,

and a glass vial containing suspected methamphetamine. Yeomans was

handcuffed and arrested. This occurred some eighteen minutes after the Jeep was

initially stopped. After Yeomans was taken to jail, a search of Yeomans at the

jail revealed further drug paraphernalia and some .22 caliber ammunition in his

pockets. M eanwhile, the search of the Jeep revealed, in addition to the two guns

and ammunition the officers had already seen, various drugs and drug

paraphernalia.




      4
        Deputy Burke’s testimony was ambiguous as to whether he asked Yeomans
to get out of the car or pulled him out.

                                        -6-
      Yeomans was initially indicted on three counts of possession of firearms

and ammunition by a previously convicted felon. 5 Yeomans filed a motion to

suppress the evidence found and statements made following the search of the Jeep

Cherokee. After conducting an evidentiary hearing, the district court denied the

motion. The court found that, under M aryland v. W ilson, 519 U.S. 408, 414

(1997), and United States v. Holt, 264 F.3d 1215 (10th Cir. 2001), the officers

had the right to “request[] the individuals to leave the vehicle for safety

purposes.” Tr. of M ots. Hr’g at 137, Appellant’s App. at 144. Further, the court

concluded that, given the concern that the people in the vehicle were “carrying

drugs and firarms, . . . a limited patdown, consistent with Terry v. Ohio, [392

U.S. 1 (1968)] and its progeny was appropriate.” Id. The court then found that

the discovery of “what felt like a pipe” during the patdown of Yeomans justified

the request to look at it “for safety purpose.” Id. The court dismissed the

significance of the confusion over the nephew’s last name as well as Yeomans’

alleged nervousness, but concluded that Y eomans as the “owner of the gun . . .

needed to be checked out on a criminal history, particularly because of a

restraining order, and it was unclear from this record whether there was a need to

be concerned about whether M r. Yeomans was going to an area where he was

prohibited from particularly with a firearm.” Tr. of M ots. Hr’g at 138,



      5
       Yeomans’ previous felonies were convictions for theft and attempted
escape, in violation of C olorado state law.

                                         -7-
Appellant’s App. at 145. After determining that “[t]he length of the detention

was not unreasonable, and . . . that consent was not necessary for the patdown and

the . . . pull-out of M r. Yeomans from the vehicle,” the court denied Y eomans’

motion to suppress the evidence seized from his person and the vehicle.

      The government thereafter brought a superceding indictment, in which the

original firearms charge in count three was deleted and replaced by a new charge

of possession of five grams of a mixture or substance containing a detectable

amount of methamphetamine by a person previously convicted of a drug offense,

in violation of 21 U.S.C. § 844(a) and (c).

      O n M ay 9, 2005, follow ing the severance of count three from the other tw o

counts, Yeomans proceeded to trial before a jury on the two counts of possession

of firearms and ammunition by a prohibited person. The jury found Yeomans

guilty of both counts. Yeomans then pled guilty to count three relating to the

methamphetamine possession, although he reserved the right to appeal issues

relating to his motion to suppress.

      On December 26, 2005, Yeomans filed a motion for a new trial and for

reconsideration of his motion to suppress. He sought a new trial on the two

firearms counts on the ground that he claimed he did not understand he had the

right to testify at his trial, and he sought reconsideration of the denial of his

motion to suppress on the ground that a similar motion was granted in the

Colorado state case against Barley arising out of the same stop. Following an

                                           -8-
evidentiary hearing, the district court denied both motions and imposed

concurrent sentences of 100 months on the firearms and ammunition possession

counts and twenty-four months on the drug possession count. This appeal

followed.

      Yeomans argues on appeal that “[w]hile the traffic stop was justified at its

inception, Trooper Smith exceeded the permissible scope of the stop, thus

violating Yeomans’ Fourth Amendment rights w hen he requested consent to

search for illegal drugs before completing his traffic stop.” A ppellant’s Supp. Br.

at 18. 6 He further argues there is no evidence in the record indicating that officer

safety motivated Trooper Smith to ask Yeomans for consent to search the vehicle.



                                   D ISC USSIO N

      It is w ell established that a traffic stop is a seizure subject to the Fourth

Amendment’s limitations. United States v. Alcaraz-Arellano, 441 F.3d 1252,

1257 (10th Cir. 2006). Accordingly, “[a] traffic stop is permissible under the

Fourth Amendment if the officer has a reasonable articulable suspicion that a

traffic . . . violation has occurred or is occurring.” Id. at 1257-58 (further

quotation omitted). “W hen review ing a district court’s denial of a motion to

suppress, we consider the totality of the circumstances and view the evidence in

      6
       After initial briefing and oral argument of this case, we determined that
supplem ental briefing would be helpful. We accordingly ordered the parties to
submit supplemental briefs.

                                          -9-
the light most favorable to the government.” Id. at 1258 (further quotation

omitted). Furthermore, we must “accept the district court’s factual findings

unless [they] are clearly erroneous,” while “[t]he ultimate determination of

reasonableness . . . is a question of law reviewable de novo.” Id. (further

quotation omitted). 7 W hile his briefs and his notice of appeal are unclear on this

point, to the extent Yeomans also appeals the denial of his motion for a new trial,

we review that denial for an abuse of discretion. United States v. Gwathney, 465

F.3d 1133, 1144 (10th Cir. 2006). Similarly, “[w]e review the district court’s

denial of a motion for reconsideration for an abuse of discretion.” United States

v. Barajas-Chavez, 358 F.3d 1263, 1266 (10th Cir. 2004).

      There is no dispute that Trooper Smith’s initial stop of the car in which

Yeomans was traveling was justified. However, we have stated that “the

reasonableness of a traffic stop depends on both ‘the length of the detention and

the manner in which it is carried out.’” Alcaraz-Arellano, 441 F.3d at 1258

(quoting United States v. Holt, 264 F.3d 1215, 1230 (10th Cir. 2001) (en banc)).

      7
        W e have stated that “‘unless a party asks the district court to reconsider its
decision at trial, . . . we will not consider trial evidence w hich undermines a
district court decision rendered at a pretrial suppression hearing.’” United States
v. Humphrey, 208 F.3d 1190, 1203 (10th Cir. 2000) (quoting United States v.
Parra, 2 F.3d 1058, 1065 (10th Cir. 1993)). Neither party indicates that such a
request for reconsideration was made at trial, nor does anyone argue that there
was or was not evidence at trial which undermined the district court’s decision at
the suppression hearing. Yeomans’ motion post-trial for reconsideration of the
denial of his motion to suppress w as based upon the fact that, in the state court
proceeding against Barley stemming from the same stop and arrest, the state court
suppressed the evidence.

                                         -10-
Yeomans argues the stop became unlawful when Smith asked him questions

outside the scope of and unrelated to the purpose of the stop. In particular, he

asserts that the Fourth Amendment was violated “when [Trooper Smith]

request[ed] to search [the] vehicle for illegal drugs, without completing the traffic

stop and without any articulable suspicion or probable cause of criminal activity

because it impermissibly extends the duration and permissible scope of the traffic

stop.” Appellant’s Supp. Br. at 13.

      Several rules guide our analysis in this case. First, “[t]his court ‘follow [s]

the bright-line rule that an encounter initiated by a traffic stop may not be deemed

consensual unless the driver’s documents have been returned to [him.].’” United

States v. Guerrero-Espinoza, 462 F.3d 1302, 1308-09 (10th Cir. 2006) (quoting

United States v. Bradford, 423 F.3d 1149, 1158 (10th Cir. 2005) (further

quotation, alteration omitted; emphasis added)). In this case, since Trooper Smith

never handed back the driver’s license and other materials he had obtained from

the driver, Steven Barley, prior to Yeomans’ arrest, the encounter never became

consensual. 8 Thus, when the questioning about drugs occurred, and when

      8
       W e have recently indicated that the analysis of when the detention is over
may differ for the driver and for the passenger, at least if the passenger is the
owner, depending upon what a reasonable person in the particular position of the
driver or passenger/owner might know or perceive. See Guerrero-Espinoza, 462
F.3d at 1309-11. In Guerrero-Espinoza, we drew this distinction in part because
the driver and the passenger/ow ner were physically in slightly different places—
the driver was sitting in the officer’s patrol car, while the passenger/owner
remained in the stopped vehicle. W e held that the passenger/owner had no reason
                                                                        (continued...)

                                         -11-
Yeomans and Barley consented to a search of their car, the traffic stop continued

to be a detention, not a consensual encounter.

      As indicated, our cases have stated that both the duration and the scope of a

traffic stop are relevant to determining its legality. Yeomans argues that Trooper

Smith impermissibly expanded the scope of the stop, which was initially based

upon exceeding the speed limit, when he asked about drugs. W e have always held

that it is “reasonable for an officer to ask questions about the motorists’s travel

plans and authority to operate the vehicle.” Alcaraz-A rellano, 441 F.3d at 1258.

M ore recently, however, we recognized that, in light of recent Supreme Court

authority, M uehler v. M ena, 544 U .S. 93 (2005), “‘[a]s long as the [officer’s]

questioning did not extend the length of the detention, . . . there is no Fourth

Amendment issue with respect to the content of the questions.” Alcaraz-Arellano,

441 F.3d at 1258 (quoting United States v. W allace, 429 F.3d 969, 974 (10th Cir.

2005)). There was nothing improper, therefore, in questioning Yeomans and

Barley about drugs, so long as that questioning did not unreasonably extend the

length of the detention.



      8
        (...continued)
to know that the traffic stop had ended vis-a-vis the driver when the driver, while
sitting in the patrol car, was given his license and registration materials and told
he could leave, but in fact remained outside the detained vehicle. Here, by
contrast, since Barley and Yeomans remained together in the detained vehicle
until removed by the troopers, their reasonable perception of what was happening,
including their awareness of the fact that Barley’s license and registration
materials had not been returned, would have been the same.

                                         -12-
      On that issue, it does not appear that the questioning about drugs extended

the length of the detention. Rather, it appears that, to the extent the detention was

prolonged at all, it was because Trooper Smith and Deputy Burke were mulling

over the significance, if any, of the fact that Yeomans appeared not to know the

last name of his nephew. 9 W e therefore conclude that questioning about drugs did

not unreasonably extend the detention, and therefore did not violate the Fourth

Amendment. See id. at 1259 (“‘A traffic stop does not become unreasonable

merely because the officer asks questions unrelated to the initial purpose for the

stop, provided that those questions do not unreasonably extend the amount of time

that the subject is delayed.’”) (quoting United States v. M artin, 422 F.3d 597,

601-02 (7th Cir. 2005)).

      Furthermore, the government argues in its supplemental brief that the

detention and search of Yeomans and the Jeep were justified on the ground of

officer safety. W e agree. W hen the officers stopped the car, they knew that

Yeomans, who was the subject of two restraining orders possibly involving

domestic violence, could be an occupant of the car. As they first approached the



      9
        Trooper Smith testified that “the normal course of filling in all the blanks”
on a speeding citation required approximately ten minutes. Tr. of M ots. Hr’g at
84, Appellant’s App. at 92. He also testified that approximately six minutes
elapsed between the time he stopped the Jeep and the time he sat down in his
patrol car to begin writing out the speeding citation. Since Yeomans was
handcuffed and arrested approximately eighteen minutes after the initial stop, w e
can infer that there was a delay of two minutes from the normal time it would
take to stop a car, obtain information from the driver and write out a citation.

                                         -13-
car, they observed the guns and ammunition in the vehicle. At some point prior

to asking Yeomans and Barley to exit the vehicle, and prior to the subsequent pat-

down of Yeomans and search of the car, they learned that Yeomans owned the

weapons. That combination of information more than justified their actions in

removing Yeomans and Barley from the vehicle, patting them both down and

searching the car. “Officers can conduct a protective search of a vehicle’s

passenger compartment for weapons during an investigative detention when

officers have a reasonable belief that a suspect poses danger.” United States v.

Dennison, 410 F.3d 1203, 1210 (10th Cir. 2005). Additionally, “an officer

making a traffic stop may order both the driver and passengers to exit the vehicle

pending completion of the stop.” Id. at 1211 (citing M aryland v. W ilson, 519

U.S. 408, 414-15 (1997)). “A police officer may also ‘perform a “patdown” of a

driver and any passengers upon reasonable suspicion that they may be armed and

dangerous.’” Id. (quoting Knowles v. Iowa, 525 U.S. 113, 118 (1998)). Trooper

Smith and Deputy Burke were accordingly entitled to ask Yeomans and Barley to

get out of the vehicle, pat them down and search the interior of the car. 10 The pat-

      10
        The government argues in its supplemental brief that, at the time the
officers asked Yeomans and Barley to exit the car and submit to a pat-down, the
officers actually had probable cause to arrest Yeomans for a violation of 18
U.S.C. § 922(g)(8)(B), which prohibits a person subject to a restraining order
involving domestic abuse from possessing a gun. The government bases this
argument on the fact that the officers: (1) knew who Yeomans was, since he had
provided them with some form of identification; (2) knew he was subject to tw o
restraining orders involving a boy and a woman which they suspected related to
                                                                      (continued...)

                                         -14-
down in turn led to the discovery of the contraband on Yeomans’ person, which,

in turn, indisputably provided probable cause to arrest Yeomans. A thorough

search of the car, as well as a further search of Yeomans’ person at the jail,

inevitably and properly followed.

      Yeomans responds that there was no evidence the officers were in fact

fearful for their safety. That is irrelevant. “This court . . . has reasoned that the

test of officer safety is objective rather than subjective, and therefore the officer

need not personally be in fear.” Id. at 1213. Further, w e have “emphasize[d] . . .

that the balance [between the government’s interest in officer safety and the

motorist’s interest in privacy] does not depend on whether the officer subjectively

fears the motorist.” United States v. Holt, 264 F.3d 1215, 1225 (10th Cir. 2001)

(en banc). “That one officer is braver (or more foolhardy) than another, and

therefore not subjectively concerned for his or her safety, should not deprive that

particular officer of a right to protect his or her safety.” Id. at 1225-26. Thus, the

fact that the officers did not testify to being fearful for their safety does not

prohibit them from acting in accordance with what a reasonable officer would



      10
         (...continued)
domestic abuse, and (3) knew that Yeomans owned the weapons, because he had
already volunteered that the weapons in plain view in the car were his and that he
was transporting them to his residence. W e need not address this issue because,
as we conclude above, even without probable cause prior to the pat-down, the
officers were entitled to remove Y eomans from the car and pat him down, which
led to the discovery of contraband on his person, which in turn gave the officers
probable cause to arrest him.

                                          -15-
objectively feel justified in doing once he observed guns and ammunition in a car

stopped for speeding, in which a person subject to restraining orders is riding.

See United States v. Neff, 300 F.3d 1217, 1222 (10th Cir. 2002) (rejecting

defendant’s argument that no grounds for a Terry frisk existed “because there was

no evidence in the record that the officers in fact feared for their safety.”).

      Additionally, the officers were not obligated to conduct their investigation

in any particular order, and the fact that they did not immediately react to the

presence of weapons, or immediately frisk or arrest Yeomans, is irrelevant. Just

as there is “no constitutional right to be arrested,” there is no constitutional right

to be arrested at a particular time. Hoffa v. United States, 385 U.S. 293, 310

(1966); United States v. W ynne, 993 F.2d 760, 765 (10th Cir. 1993) (“‘The police

are not required to guess at their peril the precise moment at which they have

probable cause to arrest a suspect.’” (quoting Hoffa, 385 U.S. at 310)).

      W e accordingly conclude that the district court correctly denied Y eomans’

motion to suppress. The court also did not abuse its discretion in denying

Yeomans’ motion for a new trial and his motion to reconsider the denial of his

motion to suppress. 11



      11
         Yeomans only develops an argument about the propriety of the district
court’s denial of his motion to suppress. Because he develops no argument
concerning the denial of his motion for a new trial, nor does he make any
argument about the specific ground upon which he sought reconsideration of the
denial of his motion to suppress, we conclude that he has failed to show that the
district court abused its discretion in denying those motions.

                                          -16-
                         C ON CLU SIO N

For the foregoing reasons, the conviction is AFFIRMED.

                                      ENTERED FOR THE COURT


                                      Stephen H. Anderson
                                      Circuit Judge




                               -17-
