                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           February 28, 2007
                                        TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                            Clerk of Court


 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                         No. 06-4060
           v.                                                  (D. Utah)
 STEPHEN MURPHY,                                   (D.C. No. 1:05-CR-00066-PGC)

                Defendant - Appellant.




                               ORDER AND JUDGMENT *


Before HENRY, HOLLOWAY, and McCONNELL, Circuit Judges.


       After arresting the passenger of a vehicle driven by Stephen Murphy, police

discovered two handguns, one of which had a defaced serial number. Mr. Murphy was

subsequently indicted for unlawfully possessing a firearm with an obliterated serial

number in violation of 18 U.S.C. § 922(k). Following the denial of his motion to

suppress, Mr. Murphy conditionally pleaded guilty. He now appeals, reiterating his

claims below that (1) he was unlawfully detained and (2) the search of the vehicle was not

a valid search incident to arrest. We have jurisdiction under 28 U.S.C. § 1291 and 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         This order and judgment is not binding precedent except under the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. BACKGROUND

                                A. D ETENTION & S EARCH

       On May 13, 2005, at approximately 12:45 a.m., Officer Bryce Weir of the Roy

City Police Department observed a vehicle without its headlights on pull out from a row

of parked cars in the parking lot of Kwik City Muffler, an automobile repair shop located

on 4000 South Street in Roy, Utah. Officer Weir then observed the vehicle engage its

headlights and turn onto the road. This vehicle was being driven by Mr. Murphy and

contained one passenger, Joshua Baxter.

       Officer Weir immediately suspected that a vehicle burglary was taking place

because Kwik City Muffler was closed and kept cars awaiting service in its parking lot

overnight. Officer Weir also testified that the neighborhood where Kwik City Muffler is

located is known for its high incidence of automobile thefts and burglaries, especially in

the spring. Officer Weir began following the vehicle but did not turn on his emergency

lights or siren. Approximately 30 seconds later, without any direction from Officer Weir,

Mr. Murphy pulled over to the side of the road.

       After parking ten to fifteen feet behind the vehicle, Officer Weir approached it

from the driver’s side, identified himself, and informed Mr. Murphy that he was “not

being detained” and was “free to leave at any time.” Rec. vol. II, at 15. Officer Weir

then asked Mr. Murphy to identify himself and explained his concerns regarding Mr.

Murphy’s presence in Kwik City Muffler’s parking lot.

       Mr. Murphy did not have a driver’s license or any documentation connecting him

                                            -2-
to the vehicle. He gave Officer Weir his name and date of birth, and stated that the

vehicle belonged to his girlfriend, Heidi Wheelwright. He also denied being “at” Kwik

City Muffler and told Officer Weir that he was just turning around to catch up to a

friend’s truck that had just passed. Id. at 16. Having not seen any other vehicles in the

area “with lights or stopped or moving,” Officer Weir “asked him what truck” and told

Mr. Murphy that he did not believe him because he saw the vehicle’s headlights turn on

before it exited the parking lot. Id. Mr. Murphy insisted that he saw his friend’s truck

and had simply been turning around. Officer Weir then asked Mr. Baxter for his name

and date of birth, but he refused to give them.

       At 12:50 a.m., Officer Weir returned to his patrol car to run computer checks on

Mr. Murphy and the vehicle. He also called police dispatch, reported a “suspicious

circumstance,” and requested back-up. Id. at 30. The computer check on Mr. Murphy

revealed “a number of pages . . . of incidents,” including arrests for “burglaries, thefts,

and narcotics.” Id. at 18-19. The check also indicated that Mr. Murphy was a member of

the Silent Aryan Warriors, a white supremacist gang involved in local burglaries, thefts,

and narcotics trafficking. The computer check on the vehicle confirmed Mr. Murphy’s

statement that Heidi Wheelwright was the vehicle’s registered owner. Id. at 53-54.

       At approximately 12:51 a.m., Officer Curtis Gibson arrived on the scene. Another

officer, Brian Seward, also arrived around this time. Officer Weir then re-approached the

vehicle to have Mr. Murphy “confirm what he was telling [him].” Id. at 20.

       After briefly speaking with Mr. Murphy and asking him to step out of the vehicle,

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Officer Weir asked Mr. Baxter if he would step out of the car and speak with him. Mr.

Baxter agreed. Officer Weir repeated his concerns regarding the pair’s presence in the

parking lot and again asked Mr. Baxter for his name and date of birth. Rather than

refusing outright, Mr. Baxter offered a name and a July 15, 1984 date of birth. After

checking this information on his computer and conducting some further questioning,

Officer Weir learned that Mr. Baxter had lied. After Officer Weir informed him of this

discovery, Mr. Baxter gave a different name and birth date. Officer Weir soon learned

this information was also false. Mr. Baxter then provided a social security number.

       Meanwhile, Officer Gibson “had [Mr. Murphy] sit on the curb” and continued to

question him about “whether he had permission to be in possession of the vehicle.” Id. at

64. During their conversation, Mr. Murphy gave Officer Gibson a room number at a

motel where he said Ms. Wheelright could be reached. Officer Gibson radioed an officer

from the Ogden Police Department to go to this motel and speak to Ms. Wheelright.

Fifteen minutes later, Officer Gibson learned that the officer was unable to contact Ms.

Wheelright at the motel.

       Shortly thereafter, Officer Weir’s computer check of the social security number

proffered by Mr. Baxter revealed two outstanding warrants for his arrest. At

approximately 1:25 a.m., Mr. Baxter was arrested, handcuffed, and placed in the back

seat of Officer Weir’s patrol car.

       At 1:26 a.m., an officer from the Riverdale Police Department arrived to conduct a

K-9 search of the car. The K-9 search began almost immediately after the officer arrived

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and lasted “a couple of minutes.” Id. at 27. After the dog failed to alert, Officer Weir

conducted a hand search of the vehicle’s passenger compartment. He discovered a bag

containing two firearms, one of which had a defaced serial number. Around 2:00 a.m.,

Mr. Murphy was arrested.

                              B. P ROCEDURAL B ACKGROUND

       Mr. Murphy was charged with one count of possessing a firearm with an

obliterated serial number in violation of 18 U.S.C. § 922(k). He filed a motion to

suppress the firearm.

       After a hearing at which Officers Weir, Gibson, and Seward testified, the district

court denied Mr. Murphy’s motion. Although evidence was introduced that the encounter

between the officers and Mr. Murphy was consensual, the district court concluded that

Mr. Murphy’s detention was valid under the Fourth Amendment because reasonable

suspicion to detain Mr. Murphy “immediately arose” during his initial encounter with

Officer Weir and persisted throughout the detention. Rec. vol. III, doc. 55, at 7-10. The

district court also held that Officer Weir discovered the gun through a valid search

incident to arrest under New York v. Belton, 453 U.S. 454 (1981).

       Mr. Murphy conditionally pleaded guilty and was sentenced to 51 months’

imprisonment and 36 months’ supervised release. He timely filed a notice of appeal.

                                             II.

       On appeal, Mr. Murphy challenges both the reasonableness of his detention and

the propriety of the search that yielded the gun.

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                                  A. S TANDARD OF R EVIEW

       We review the district court’s factual findings underlying a motion to suppress for

clear error, but review its legal determinations de novo. United States v. Bradford, 423

F.3d 1149, 1156 (10th Cir. 2005). When a suppression motion has been denied, the

evidence is viewed in the light most favorable to the government. Id.

                               B. L AWFULNESS OF D ETENTION

       On appeal, Mr. Murphy concedes that he voluntarily pulled over and that Officer

Weir permissibly approached his vehicle, asked questions, and requested information.

United States v. Drayton, 536 U.S. 194, 200 (2002) (“Law enforcement officers do not

violate the Fourth Amendment’s prohibition of unreasonable seizures merely by

approaching individuals on the street or in other public places and putting questions to

them if they are willing to listen.”). Neither Mr. Murphy nor the government, however,

pinpoint the precise moment when the initially consensual encounter became an

involuntary detention. Thus, we adopt the view of the district court that Mr. Murphy was

detained within the meaning of the Fourth Amendment when Officer Weir returned from

his patrol car and resumed his questioning.

       Under Terry v. Ohio, 392 U.S. 1 (1968), an officer may briefly detain an

individual for investigatory purposes without violating the Fourth Amendment “when the

officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v.

Wardlow, 528 U.S. 119, 123 (2000) (citing Terry, 392 U.S. at 30). We analyze an

investigative detention by employing a “two-part test.” United States v. West, 219 F.3d

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1171, 1176 (10th Cir. 2000). First, we ask whether the detention was supported by

reasonable suspicion. Second, we ask whether the detention was reasonable in scope and

duration. Id.

       The district court concluded that Officer Weir and the other officers had

reasonable suspicion to detain Mr. Murphy based on the following factual findings: Mr.

Murphy “lied” to Officer Weir “about . . . prowling without his lights in an area where

there were a number of vehicles parked,” Rec. vol. III, doc. 55, at 7; the vehicle “was

registered in the name of different person,” id. at 10; Mr. Murphy had multiple prior

contacts with law enforcement and was a member of a “very dangerous and violent,

active gang,” id. at 8; and Mr. Murphy was in the company of a felon with warrants out

who “would have been a confederate to any burglary that was involved with the

defendant,” id. at 10.

       Mr. Murphy first challenges several of the district court’s factual findings. He

then argues that his detention was neither supported by reasonable suspicion nor

reasonable in scope, thereby rendering the firearm the fruit of an illegal detention.

1.     Factual Findings

       “A finding of fact is clearly erroneous if it is without factual support in the record

or if [we], after reviewing all the evidence, [are] left with a definite and firm conviction

that a mistake has been made.” Manning v. United States, 146 F.3d 808, 812 (10th Cir.

1998) (internal quotation marks omitted). Viewing the evidence in the light most

favorable to the government, we are not convinced that any of the district court’s findings

                                             -7-
lack factual support, nor are we persuaded that a mistake was made. For the sake of

judicial economy, we do not address each of Mr. Murphy’s challenges separately. We

note, however, that each of the district court’s findings was properly drawn from the

uncontradicted testimony of Officers Weir, Gibson, and Seward. We therefore accept the

district court’s factual findings.

2.     Reasonable Suspicion

       Reasonable suspicion is a “particularized and objective basis for suspecting the

person stopped of criminal activity.” Ornelas v. United States, 517 U.S. 690, 696 (1996)

(internal quotation marks omitted). In analyzing the presence of reasonable suspicion, we

examine the totality of the circumstances and consider both the factors weighing for and

against the existence of reasonable suspicion. United States v. Ledesma, 447 F.3d 1307,

1316 (10th Cir. 2006). We do not scrutinize each factor in isolation; we evaluate the

factors en masse to discern whether, “viewed from the standpoint of an objectively

reasonable police officer,” there was a “particularized and objective basis” for suspecting

legal wrongdoing. Ornelas, 517 U.S. at 695-96 (internal quotation marks omitted).

       We hold that, from an objective standpoint, a reasonable officer standing in the

shoes of Officer Weir could articulate numerous reasons for suspecting Mr. Murphy of

criminal activity, namely vehicle burglary or theft. Before detaining Mr. Murphy, Officer

Weir knew the following: Mr. Murphy had been in the parking lot of a closed business at

nearly 1 a.m. and the business stored unattended vehicles in its parking lot; Mr. Murphy

insisted he had only used the business’s parking lot to turn around and follow a friend’s

                                            -8-
truck even though that was inconsistent with Officer Weir’s own observations; and Mr.

Murphy failed to provide a driver’s license or any documentation linking himself to the

vehicle. See United States v. Hendricks, 319 F.3d 993, 1002 (7th Cir. 2003) (vehicle

“parked at [an early] hour of the morning behind a closed business” supports reasonable

suspicion of a burglary); United States v. Moore, 22 F.3d 241, 243-44 (10th Cir. 1994) (a

suspect’s lying to officers supports reasonable suspicion of criminal activity); United

States v. Fernandez, 18 F.3d 874, 879 (10th Cir. 1994) (“the defendant’s lack of a valid

registration, license, bill of sale, or some other indicia of proof to lawfully operate and

possess the vehicle in question, . . . giv[es] rise to objectively reasonable suspicion that

the vehicle may be stolen.”). Moreover, Mr. Murphy’s conduct took place in a

neighborhood known for its high incidence of automobile thefts and burglaries. See

United States v. Dennison, 410 F.3d 1203, 1208 (10th Cir. 2005) (“presence in a high

crime area” supports determination of reasonable suspicion) (quoting Wardlow, 528 U.S.

at 124).

       Mr. Murphy essentially argues that any reasonable suspicion of a vehicle theft

dissipated once Officer Weir returned to his car and learned that (1) “[t]he vehicle was

not reported stolen,” (2) Mr. Murphy truthfully provided Officer Weir “with the name of,

and the nature of his relationship with, the registered owner of the vehicle,” and (3) the

vehicle did not exhibit “any signs of vandalism that are common with stolen and/or

burglarized vehicles.” Aplt’s Br. at 16.

       We disagree. As an initial matter, the fact that the vehicle had not been reported

                                              -9-
stolen is irrelevant because Officer Weir’s observations would have led a reasonable

officer to suspect that Mr. Murphy could have stolen the vehicle moments prior to

detaining him. While it is true that Mr. Murphy correctly identified Ms. Wheelright as

the registered owner and that the car did not bear any signs of vandalism, these facts are

not particularly ameliorative given the assortment of suspicious factors in this case.

       Indeed, if anything, the reasonable suspicion of criminal activity increased as the

detention progressed because Officer Weir’s initial suspicions never abated and additional

suspicious circumstances came to light. First, while at his car, Officer Weir discovered

Mr. Murphy was a gang member with a significant arrest record. United States v.

Feliciano, 45 F.3d 1070, 1074 (7th Cir. 1995) (“[G]ang association and recent relevant

criminal conduct, while of doubtful evidentiary value in view of the strictures against

proving guilt by association or by a predisposition based on past criminal acts, is a

permissible component of the articulable suspicion required for a Terry stop.”). Several

minutes later, the police discovered that Mr. Murphy’s passenger, Mr. Baxter, had lied

about his name and had two outstanding warrants for his arrest. See Dennison, 410 F.3d

at 1212-13 (outstanding warrants for passenger’s arrest supports determination of

reasonable suspicion of a threat to officer safety); Wyoming v. Houghton, 526 U.S. 295,

304-05 (“[A] car passenger . . . will often be engaged in a common enterprise with the

driver, and have the same interest in concealing the fruits or evidence of their

wrongdoing.”). Finally, the officers, despite their attempts to contact the vehicle’s

registered owner, were not able to confirm that Mr. Murphy had permission to possess it.

                                            -10-
The officers therefore had reasonable suspicion to detain and question Mr. Murphy.

3.     Reasonable in Scope

       Mr. Murphy alternatively argues that “his hour-plus detention” was unreasonable

because it exceeded the permissible scope of an investigatory detention and evolved into

a de facto arrest. Aplt’s Br. at 16.

       An investigative detention may become an arrest if it lasts for an unreasonably

long time. United States v. Sharpe, 470 U.S. 675, 685 (1985). There are, however, no

“hard-and-fast time limits” for an investigative detention, United States v. Montoya De

Hernandez, 473 U.S. 531, 543 (1985), and, in determining a detention’s validity, we must

“consider the law enforcement purposes to be served by the stop as well as the time

reasonably needed to effectuate those purposes.” Sharpe, 470 U.S. at 685. Accordingly,

“[i]n assessing whether a detention is too long in duration to be justified as an

investigative stop, we . . . examine whether the police diligently pursued a means of

investigation that was likely to confirm or dispel their suspicions quickly, during which

time it was necessary to detain the defendant.” Id. at 686.

       Here, nothing in the record indicates that the officers were dilatory in carrying out

their on-the-scene investigation. From questioning Mr. Murphy to attempting to contact

Ms. Wheelright at the motel, the officers’ investigatory acts proceeded in a logical

sequence. Furthermore, according to Officer Gibson’s uncontradicted account, the

officers were “still trying to investigate” whether Mr. Murphy had permission to have the

vehicle following Mr. Baxter’s arrest. Rec. vol. II, at 68. Nothing in the record indicates

                                             -11-
that the officers were doing otherwise when the firearms were discovered.

       Mr. Murphy argues that the length of his detention was unreasonable by

suggesting that the officers should have “traveled back up the road a half a block to

investigate the automobiles” at Kwik City Muffler. Aplt’s Br. at 16-17. In hindsight, this

might have been one way for the officers to approach the investigation; nevertheless, the

officers’ decision not to go to Kwik City Muffler does not discredit the approach they

actually employed. Sharpe, 470 U.S. at 686-87 (“A creative judge engaged in post hoc

evaluation of police conduct can almost always imagine some alternative means by which

the objectives of the police might have been accomplished. But the fact that the

protection of the public might, in the abstract, have been accomplished by less intrusive

means does not, itself, render the search unreasonable.”) (alterations and internal

quotation marks omitted). Thus, Mr. Murphy’s detention was reasonable in scope.

       Accordingly, we hold that Mr. Murphy’s detention did not run afoul of the Fourth

Amendment.

                             C. S EARCH INCIDENT TO A RREST

       Mr. Murphy next argues that the firearm was not discovered during a valid search

incident to arrest and, consequently, should be suppressed as the fruit of an illegal search.

       The Fourth Amendment prohibits unreasonable searches, but it is well established

that, “when a policeman has made a lawful custodial arrest of the occupant of an

automobile, he may, as a contemporaneous incident of that arrest, search the passenger

compartment of that automobile.” New York v. Belton, 453 U.S. 454, 460 (1981). An

                                            -12-
officer’s right to conduct such a search is based on “the need [of police officers] to

remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect

his escape and the need to prevent the concealment or destruction of evidence.” Id. at 457

(internal quotation marks omitted).

       Mr. Murphy argues that the firearm was not discovered during a valid search

incident to arrest because Mr. Baxter was handcuffed and secured in the backseat of

Officer Weir’s patrol car when the search was conducted. Specifically, he posits that

applying the search incident to arrest exception to this case “perverts the rationale

underlying the Belton rule” because “there was no way Baxter could have access to

Murphy’s vehicle.” Aplt’s Br. at 18 (internal quotation marks omitted).

       The Supreme Court has never directly addressed the question whether the search

incident to arrest exception applies when an arrestee is handcuffed and inside a patrol car

during the search. Nonetheless, the Court recently sanctioned a search under Belton

where it was performed after a police officer “handcuffed [the arrestee] . . . and placed

him in the back seat of the patrol car.” Thornton v. United States, 541 U.S. 615, 618,

623-24 (2004) (affirmatively answering the question whether Belton applied to “recent

occupant[s]” of automobiles).

       Similarly, we have approved searches of automobiles incident to arrest under

Belton when the arrestee was handcuffed and in a patrol car during the search. See e.g.,

United States v. Humphrey, 208 F.3d 1190, 1202 (10th Cir. 2000) (reasoning that “Belton

emphasized that its holding created a ‘bright line’ rule intended to provide specific and

                                            -13-
coherent guidance to officers in the field”). We have, however, refused to apply the

search incident to arrest exception when a search was “remote in time or place from the

arrest.” Dennison, 410 F.3d at 1210 (quotations omitted). See, e.g., United States v.

Lugo, 978 F.2d 631, 635 (10th Cir. 1992) (Belton rule inapplicable when defendant “had

been taken from the scene” and “was handcuffed and sitting in the back seat of a patrol

car proceeding toward [the jail]” during the search); United States v. Edwards, 242 F.3d

928, 937 (10th Cir. 2001) (Belton rule inapplicable when defendant “was incapacitated

with handcuffs and sitting in the back of a police car approximately 100-150 feet away”

during search and there was “no evidence whatsoever that [defendant] had any control

over the rental car immediately preceding or at the time of his arrest”).

       In light of the Supreme Court’s decision in Thornton and our decision in

Humphrey, we hold that Officer Weir’s search was a valid search incident to arrest. Like

the arrestees in Thornton and Humphrey, Mr. Baxter was handcuffed and seated in

Officer Weir’s patrol when the firearm was discovered. Furthermore, unlike Lugo and

Edwards, where the arrestees were large distances away from the location of the search,

the record indicates that Officer Weir’s patrol car was parked only ten to fifteen feet away

from the searched vehicle.




                                            -14-
                                         III

      For the foregoing reasons, we AFFIRM the district court’s denial of Mr. Murphy’s

motion to suppress.



                                                Entered for the Court,



                                                Robert H. Henry
                                                Circuit Judge




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