                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            MAR 3 2004
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
                                                        No. 03-6165
 vs.                                               (D.C. No. 02-CR-70-T)
                                                        (W.D. Okla.)
 EUGENE ISIAH ROBERTS,

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, HENRY, and TYMKOVICH, Circuit Judges. **


       Defendant-Appellant Eugene Isiah Roberts appeals from the district court’s

denial of his motion to suppress evidence which led to his conviction for

possession with intent to distribute 18 ounces of cocaine base, 21 U.S.C.

§ 841(a)(1), (b)(1)(A), (count 1); possession with intent to distribute one kilogram

of cocaine powder, 21 U.S.C. § 841(a)(1), (b)(1)(B), (count 2); and maintaining a

       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
place for the manufacture of cocaine base, 21 U.S.C. § 856(a)(1), (count 3). Our

jurisdiction arises under 28 U.S.C. § 1291, and we affirm.



                                    Background

      On February 15, 2002, while on routine patrol, Officer Donald Holland of

the Oklahoma City Police Department received information from another officer

indicating that an individual driving a dark Nissan Maxima may be in possession

of crack cocaine. Sometime later in his shift, Officer Holland noticed a dark

Nissan Maxima with one occupant, parked in the parking lot of a strip mall.

There were no other vehicles in the parking lot at the time nor were there any

businesses operating in the strip mall. In hopes of investigating further, the

officer parked his vehicle behind the Maxima, approached the driver’s side

window, and made contact with the occupant, Mr. Roberts. He asked Mr. Roberts

what he was doing. Mr. Roberts responded that he was paying bills, which he

showed to the officer. The officer then informed Mr. Roberts that the area was a

high crime area known for drug trafficking, and asked if he had any drugs or guns

in the car. Mr. Roberts replied that he did not and was then asked for his

permission to search the vehicle. Though the parties disputed the issue, the

district court found that Mr. Roberts consented to a search of his vehicle. 1 R.

Doc. 83 at 3-4. Following a routine pat-down search, Mr. Roberts was placed in


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the back seat of the officer’s locked vehicle while the search was underway. The

search revealed fifty-six grams of crack cocaine. Mr. Roberts was then placed

under arrest. Later that day, on the basis of evidence seized from Defendant’s

vehicle, a search warrant was issued for Defendant’s residence. Upon execution

of the warrant police recovered large sums of cash, cocaine, and equipment used

to manufacture cocaine base. 1 R. Doc. 96.

      Mr. Roberts moved to have the evidence against him suppressed as

derivative evidence claiming that he did not consent to the search of the car and

that he was illegally seized in the course of the encounter. 1 R. Doc. 73 at 9-11.

Denying the motion to suppress, the district court credited the testimony of the

officer and held that a consensual encounter occurred. 1 R. Doc. 83 at 6. The

court did not reach the government’s alternative argument that if not consensual,

the encounter was a valid investigative detention. 1 R. Doc. 79 at 7. The court

further found that Mr. Roberts voluntarily consented to the search of his vehicle.

1 R. Doc. 83 at 7. After a jury trial, Mr. Roberts was sentenced to life

imprisonment on count one, 324 months imprisonment on count two, and 240

months imprisonment on count three, with sentences to be served concurrently.

      On appeal, Mr. Roberts does not challenge the district court’s factual

finding that he did in fact give voluntary consent to search the vehicle. Rather, he

argues that his encounter with the officer ripened into an illegal arrest when he


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was ordered to put his hands behind his back and was placed in the locked patrol

vehicle. He contends that because such a seizure was not supported by any degree

of articulable suspicion, any evidence subsequently retrieved from his vehicle and

residence constitute derivative evidence (“fruit of the poisonous tree”) and must

be suppressed.



                                      Discussion

         “When reviewing the denial of a motion to suppress we accept the factual

findings of the district court unless they are clearly erroneous.” United States v.

Hunicutt, 135 F.3d 1345, 1348 (10th Cir. 1998). Whether consent is voluntary is

a question of fact that is reviewed for clear error. United States v. Taverna, 348

F.3d 873, 877-79 (10th Cir. 2003). The question whether a seizure has occurred

under the Fourth Amendment is reviewed in light of the totality of the

circumstances. United States v. Ringold, 335 F.3d 1168, 1171-72 (10th Cir.

2003).

         Mr. Roberts’s challenge fails on two independent grounds. First, although

the district court did not reach the issue of whether the encounter could be viewed

as an investigative detention supported by reasonable suspicion, its factual

findings without a doubt establish reasonable suspicion. The officer had been

told to be on the lookout for a Nissan Maxima whose driver might have crack


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cocaine. Mr. Roberts’s vehicle matched the description. Although Mr. Roberts

explained his presence in an empty parking lot (paying bills), an objectively

reasonable officer could discount that explanation and conclude that criminal

activity (drug transaction) was afoot. We note that an officer may take reasonable

precautions to protect his safety during an investigative detention, without the

encounter ripening into an arrest. See United States v. Shareef, 100 F.3d 1491,

1502 (10th Cir. 1996); United States v. Perdue, 8 F.3d 1455, 1463 (10th Cir.

1993). The officer testified that after Mr. Roberts consented to a search of his

person and his car, he placed him in the patrol vehicle “strictly for my safety.” 2

R. at 20.

      I didn’t want to perform my search and be vulnerable to an attack
      while I’m doing my search with my back turned to anybody. That’s
      just standard practice for the way that we do things.

Id. We thus reject the contention that Mr. Roberts was subjected to an illegal

arrest when he was ordered to put his hands behind his back and was placed in the

locked patrol vehicle. Moreover, valid consent can be given by a person being

legally detained. United States v. Soto, 988 F.2d 1548, 1557. Thus, the

derivative evidence claim fails.

      Second, in order to prevail on a motion to suppress evidence as derivative

evidence, a defendant must establish both illegal police activity and some nexus

between the illegal police activity and the evidence obtained. United States v.


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DeLuca, 269 F.3d 1128, 1132 (10th Cir. 2001); United States v. Nava-Ramirez,

210 F.3d 1128, 1131 (10th Cir. 2000). “In order to show such a factual nexus, at

a minimum, [Defendant] must adduce evidence . . . showing the evidence sought

to be suppressed would not have come to light but for the government’s

unconstitutional conduct.” DeLuca, 269 F.3d at 1132 (internal quotation marks

and citations omitted). Mr. Roberts has failed to demonstrate any such nexus

between the allegedly illegal seizure and the challenged evidence. The district

court found that Mr. Roberts gave his voluntary consent to search prior to the

seizure in question. Even assuming an unlawful seizure, Mr. Roberts has not

demonstrated how that seizure yielded the evidence in question.

      In support of his position, Mr. Roberts relies on Wong Sun v. United

States, 371 U.S. 471 (1963). That case and its progeny, see, e.g., United States v.

Melendez-Garcia, 28 F.3d 1046, 1053-54 (10th Cir. 1994), are readily

distinguishable insofar as in those cases the illegal police conduct preceded the

means by which the evidence was obtained, thus establishing the requisite factual

nexus between the evidence and the illegal conduct. By contrast, any unlawful

police activity here occurred after voluntary consent had been obtained.

Consequently, Mr. Roberts could not establish that, but for the alleged illegal

seizure, the evidence would not have come to light as required by DeLuca.

      Insofar as Mr. Roberts argues that an unlawful seizure vitiated his consent


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to search, that position is not supported by our caselaw. In United States v.

Manjarrez, 348 F.3d 881, 887 (10th Cir. 2003), a recent case with analogous

facts, the defendant had given the police consent to search his vehicle. The

officer then conducted a pat-down search of defendant’s person to ensure he had

no weapons. The defendant subsequently challenged the validity of the search

claiming that the illegal pat-down search vitiated his previous consent to search

the vehicle. Concluding otherwise, the court explained “[w]e are unable to

discern how a subsequent pat-down, lawful or not, could bear upon the

voluntariness of [d]efendant’s prior consent.” Id.

      AFFIRMED.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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