                                                                        FILED
                                                             United States Court of Appeals
                                      PUBLISH                        Tenth Circuit

                                                                    June 19, 2012
                   UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
 v.                                                      No. 10-6072
 MICHAEL SHANE MADDEN,

              Defendant - Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE WESTERN DISTRICT OF OKLAHOMA
                   (D.C. NO. 5:09-CR-00074-HE-1)


Francis R. Courbois, Oklahoma City, Oklahoma, for Defendant - Appellant.

Edward J. Kumiega, Assistant United States Attorney (Sanford C. Coats, United
States Attorney, and Jonathon E. Boatman, Assistant United States Attorney, with
him on the briefs), Oklahoma City, Oklahoma, for Plaintiff - Appellee.


Before MURPHY, HOLLOWAY, and O’BRIEN, Circuit Judges.


MURPHY, Circuit Judge.


I.    Introduction

      Michael Madden pleaded guilty to one count of being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1), reserving the right to appeal
the district court’s denial of his motions to suppress and to quash the indictment

for excessive delay. He argues the district court erred in denying his motion to

suppress because his detention and the subsequent search of his vehicle violated

the Fourth Amendment. He argues the district court abused its discretion by

denying his motion to quash the indictment because a preindictment delay of four

years violated his Fifth Amendment right to due process and his Sixth

Amendment right to a speedy trial.

      The district court properly denied both motions. Neither Madden’s

detention, nor the search of his vehicle, violated the Fourth Amendment.

Madden’s investigatory detention was justified by articulable and reasonable

suspicion and his subsequent arrest was supported by probable cause. Moreover,

the search of Madden’s vehicle falls within the good-faith exception to the

exclusionary rule. In addition, the preindictment delay did not violate the Fifth or

Sixth Amendments. Madden failed to show the requisite prejudice to establish a

violation of his Fifth Amendment right to due process. Furthermore, because the

delay occurred prior to Madden’s indictment, his Sixth Amendment right to a

speedy trial was not violated. Exercising jurisdiction pursuant to 28 U.S.C.

§ 1291, this court affirms the district court’s rulings.

II.   Background

      On March 3, 2005, Sergeant Juan Balderrama, an Oklahoma City police

officer, noticed Madden’s vehicle parked in the loading dock area of Grider’s

                                         -2-
grocery store. 1 The engine was off and Madden was sitting in the driver’s seat,

drawing on a sketch pad. Officer Balderrama approached the vehicle because cars

did not usually park in that location. He also thought the vehicle was illegally

parked on a pedestrian walkway and in a no-parking zone. He asked Madden

what he was doing and requested Madden’s driver’s license. Madden explained

that his car had run out of fuel and he was waiting for a friend to bring him

gasoline. Madden did not have his driver’s license with him. Because it is a

violation of both state law and city ordinance for an individual to drive without a

license in his immediate possession, Officer Balderrama asked Madden to step out

of his vehicle so Balderrama could investigate further. Officer Balderrama then

asked or directed Madden to sit in the back of his patrol car for “investigative

detention” while Balderrama obtained Madden’s personal information and ran it

through his computer.

      Once Madden was in Officer Balderrama’s patrol car, Balderrama asked

Madden if he had any drugs or weapons in his vehicle and if Balderrama could

search the vehicle. Madden denied having drugs or weapons in his vehicle and

refused to allow the officer to search it. Officer Balderrama asked Madden if he

had ever been convicted of a felony; Madden admitted he had an armed robbery

conviction and had recently been released from the state penitentiary. Officer

      1
       These facts were established by the district court at an evidentiary hearing
on June 23, 2009, and were set forth in the district court’s order, issued July 7,
2009, denying Madden’s motions to suppress and to quash the indictment.

                                         -3-
Balderrama ran a driver’s license check and learned Madden had a valid

Oklahoma driver’s license, but also learned Madden had two outstanding

municipal misdemeanor traffic warrants from 1995. Upon learning of these

outstanding warrants, Officer Balderrama arrested Madden and handcuffed him.

      At some point another officer arrived and he and Officer Balderrama

inventoried and impounded Madden’s vehicle. The search yielded a firearm and

two magazine clips. After the search, Officer Balderrama transported Madden to

the Oklahoma County jail.

      Madden was charged in state court with being a felon in possession of a

firearm in violation of Okla. Stat. Ann. tit. 21, § 1283. On September 20, 2005,

at the conclusion of the preliminary hearing on the charge, the state trial court

concluded that, while Madden’s arrest was proper, the search of his vehicle was

invalid because the vehicle was improperly impounded and inventoried. Thus, the

court sustained Madden’s demurrer, suppressed the evidence found during the

search, and the state felon-in-possession charge was dismissed.

      On February 1, 2006, Madden pleaded guilty to two unrelated state felony

drug charges. He was released from state custody on December 18, 2008. Based

on the March 3, 2005 incident in Grider’s parking lot, Madden was indicted on

March 3, 2009 by a federal grand jury on one count of felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1).




                                         -4-
       Madden filed motions, inter alia, to quash the indictment for a speedy-trial

based claim of excessive delay and suppress the firearm and ammunition as fruit

of an illegal seizure and search. Following an evidentiary hearing, the district

court issued an order denying Madden’s motions. Madden subsequently pleaded

guilty pursuant to a conditional plea agreement, reserving his right to appeal the

district court’s rulings on his motions to suppress and to quash.

       On appeal, Madden asserts the district court erred in denying his motion to

suppress, arguing his detention was unjustified at its inception. He also argues

the subsequent search of his vehicle was not warranted as an inventory search and

the good-faith exception to the exclusionary rule does not apply. He asserts the

district court abused its discretion by denying his motion to quash because the

government deliberately deprived him of his right to substantive due process and

a speedy trial by waiting until his release from state prison—four years after the

date of the firearm offense—to seek an indictment in this case.

III.   Analysis

       A.    Motion to Suppress

       In reviewing a district court’s denial of a motion to suppress, this court

considers the totality of the circumstances and views the evidence in the light

most favorable to the government. United States v. Kimoana, 383 F.3d 1215,

1220 (10th Cir. 2004). The district court’s factual findings are reviewed for clear




                                         -5-
error. Id. The ultimate determination of reasonableness under the Fourth

Amendment, however, is a question of law reviewed de novo. Id.

      Madden argues the district court erred in denying his motion to suppress

because his detention was not justified at its inception. Specifically, he argues he

was seized the moment Officer Balderrama approached his car and Balderrama

lacked reasonable suspicion of criminal activity to justify the seizure. The district

court concluded the encounter between Officer Balderrama and Madden began as

a consensual one; by the time it evolved into an investigatory detention

Balderrama had reasonable suspicion justifying the detention; and Madden’s

eventual arrest was supported by probable cause. We agree.

      This court has previously identified three categories of police-citizen
      encounters: (1) consensual encounters which do not implicate the
      Fourth Amendment; (2) investigative detentions which are Fourth
      Amendment seizures of limited scope and duration and must be
      supported by a reasonable suspicion of criminal activity; and (3)
      arrests, the most intrusive of Fourth Amendment seizures and
      reasonable only if supported by probable cause.

United States v. Ringold, 335 F.3d 1168, 1171 (10th Cir. 2003) (quotation

omitted). As part of a consensual encounter, an officer may approach an

individual, ask a few questions, ask to examine the individual’s identification, and

even ask for consent to search “as long as the police do not convey a message that

compliance with their requests is required.” Florida v. Bostick, 501 U.S. 429,

434, 435 (1991). “So long as a reasonable person would feel free to disregard the

police and go about his business, the encounter is consensual and no reasonable

                                         -6-
suspicion is required.” Id. at 434 (alteration omitted). “[T]o determine whether a

particular encounter constitutes a seizure, a court must consider all the

circumstances surrounding the encounter to determine whether the police conduct

would have communicated to a reasonable person that the person was not free to

decline the officers’ requests or otherwise terminate the encounter.” Id. at 439.

Officer Balderrama approached Madden’s parked vehicle, asked Madden what he

was doing, and requested Madden’s driver’s license. There is no evidence

suggesting Officer Balderrama conveyed a message that compliance with his

requests was required. See Ringold, 335 F.3d at 1172. A reasonable person in

Madden’s position would feel free to decline Officer Balderrama’s requests or

otherwise terminate the encounter. See United States v. Angulo-Fernandez, 53

F.3d 1177, 1179 (10th Cir. 1995); see also INS v. Delgado, 466 U.S. 210, 217-18

(1984). Thus, the initial encounter between Madden and Officer Balderrama was

consensual and does not implicate the Fourth Amendment.

      “Of course, the nature of the police-citizen encounter can change—what

may begin as a consensual encounter may change to an investigative detention if

the police conduct changes and vice versa.” United States v. Zapata, 997 F.2d

751, 756 n.3 (10th Cir. 1993). In this case, what began as a consensual encounter

became an investigative detention when Officer Balderrama asked Madden to step

out of his vehicle and then asked or directed Madden to sit in the back of his

patrol car while he obtained Madden’s personal information and ran it through his

                                         -7-
computer. The district court properly concluded, however, that Madden’s

detention was reasonable under the Fourth Amendment. To initiate a seizure by

means of an investigative detention, an officer must have an articulable and

reasonable suspicion that the person seized is engaged in criminal activity.

United States v. Lambert, 46 F.3d 1064, 1069 (10th Cir. 1995). “In determining

whether reasonable suspicion exists, the totality of the circumstances—the whole

picture—must be taken into account. Based upon that whole picture, the

detaining officers must have a particularized and objective basis for suspecting

the particular person . . . of criminal activity.” Id. Officer Balderrama found

Madden sitting in the driver’s seat of his parked vehicle. Madden told Officer

Balderrama his car ran out of fuel and he was waiting for a friend to bring

gasoline. He also told Officer Balderrama he did not have his driver’s license

with him. It is a violation of state law (Okla. Stat. tit. 47, § 6-112) and city

ordinance (Oklahoma City, Okla., Mun. Code ch. 32, art. I, § 32-12) for an

individual to drive without a valid driver’s license in his immediate possession.

Therefore, based on the totality of the circumstances, Officer Balderrama had a

particularized and objective basis for suspecting Madden of driving without a

license in his immediate possession in violation of both state law and city

ordinance. In other words, Officer Balderrama had an articulable and reasonable




                                          -8-
suspicion Madden was engaged in criminal activity, justifying Madden’s

investigatory detention. 2

      Finally, while Madden does not appear to challenge the validity of his

arrest, it too was justified. An arrest is justified if probable cause exists to

believe a person is committing or has committed a crime. United States v.

Espinosa, 782 F.2d 888, 891 (10th Cir. 1986). Madden was arrested after Officer

Balderrama learned he had two outstanding municipal misdemeanor traffic

warrants. Thus, Madden’s arrest was justified because probable cause existed to

believe Madden had committed a crime. In sum, Madden’s detention was

justified at its inception and remained justified through his arrest, and therefore,

did not violate the Fourth Amendment.

      Madden also argues the district court erred in denying his motion to

suppress because, even if his detention was justified, the subsequent search of his

vehicle was not. This argument also fails. The district court properly concluded

the search of Madden’s vehicle was not a valid search incident to arrest in light of

Arizona v. Gant, 556 U.S. 332, 351 (2009). Madden was seated in the back of

Officer Balderrama’s patrol car at the time of the search and it was not reasonable

to believe his vehicle contained evidence of the offense of arrest, i.e., evidence of

two outstanding municipal misdemeanor traffic warrants. See Gant, 556 U.S. at


      2
       Madden does not argue his detention was unreasonable in either scope or
duration. Thus, we do not reach that issue.

                                          -9-
343-44, 351; United States v. McCane, 573 F.3d 1037, 1040 (10th Cir. 2009).

The district court also properly concluded, however, that Officer Balderrama’s

“search of the vehicle incident to [Madden’s] arrest was objectively reasonable,

that the good faith exception is applicable, and that the fruits of the search are not

subject to suppression notwithstanding the illegality of the search.” The good-

faith exception to the exclusionary rule applies when a search is objectively

reasonable under the binding, settled case law of a United States Court of

Appeals, even if the search is later rendered unconstitutional by a Supreme Court

decision. McCane, 573 F.3d at 1044; see also Davis v. United States, 131 S. Ct.

2419, 2434 (2011) (“[W]hen the police conduct a search in objectively reasonable

reliance on binding appellate precedent, the exclusionary rule does not apply.”).

In McCane, this court concluded our pre-Gant precedent justified the search of

the passenger compartment of an arrestee’s vehicle incident to arrest even though

he was handcuffed and seated in the back of a patrol car at the time of the search

and it was not reasonable to believe his vehicle contained evidence of the offense

of arrest. 573 F.3d at 1038-39, 1041-42. We therefore held the good-faith

exception to the exclusionary rule applied and upheld the district court’s denial of

a motion to suppress evidence found during the search. Id. at 1045; see also

Davis, 131 S. Ct. at 2425-26, 2434. McCane is directly on point. The good-faith

exception applies here because the search of Madden’s vehicle was objectively

reasonable as a search incident to arrest under then-existing, well-settled law of

                                         -10-
this court. Thus, the search did not violate the Fourth Amendment and the district

court properly denied Madden’s motion to suppress.

      Madden argues the good-faith exception does not apply in this case for

several reasons. He first asserts the search of his vehicle was not objectively

reasonable because the state of Oklahoma does not recognize the good-faith

exception and Officer Balderrama should have known that. Whether Oklahoma

recognizes the good-faith exception, however, has no bearing on the outcome of

this case. This court is not bound by a state court’s interpretation of the Fourth

Amendment. Wilder v. Turner, 490 F.3d 810, 814 (10th Cir. 2007). “[I]n federal

prosecutions the test of reasonableness in relation to the Fourth Amendment

protected rights must be determined by Federal Law even though the police

actions are those of state police officers.” United States v. Green, 178 F.3d 1099,

1105 (10th Cir. 1999) (quotations omitted). Whether an “arrest, search, or seizure

may have violated state law is irrelevant as long as the standards developed under

the Federal Constitution were not offended.” Id. (quotation omitted).

      Madden also asserts Officer Balderrama conducted an inventory search, not

a search incident to arrest. He argues the well-settled law of this court at the time

of the search prohibited the impoundment and inventory search of his vehicle.

Thus, he argues the search was an invalid inventory search and cannot be saved

by the good-faith exception. Whether the impoundment and inventory search of




                                         -11-
Madden’s vehicle were proper, however, is irrelevant because the search of

Madden’s vehicle was an objectively reasonable search incident to arrest. 3

      Madden further argues that Officer Balderrama justified the search as an

inventory search rather than a search incident to arrest, and therefore, the search

is not an objectively reasonable search incident to arrest. That argument fails as

both a matter of fact and law. Officer Balderrama did not justify the search solely

as an inventory search. The probable cause affidavit filled-out and signed by

Officer Balderrama on the day of the search states that Madden’s “vehicle was

searched incident to arrest.” Officer Balderrama also testified at the suppression

hearing that he justified the search as a search incident to arrest. In any event,

Officer Balderrama’s stated justification for the search is irrelevant because the

good-faith inquiry is an objective one. The “good-faith inquiry is confined to the

objectively ascertainable question whether a reasonably well trained officer would

have known that the search was illegal . . . [considering] all of the

circumstances.” United States v. Leon, 468 U.S. 897, 922 n.23 (1984). If “the

circumstances, viewed objectively, justify the challenged action . . . that action

was reasonable whatever the subjective intent motivating the relevant officials.”

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (quotations and citation

      3
       We need not and do not decide whether the impoundment and inventory
search of Madden’s vehicle were appropriate. Thus, we also need not address
Madden’s argument that we must accord deference to the state court’s conclusion
the search of his vehicle was invalid because the vehicle was improperly
impounded and inventoried.

                                         -12-
omitted); see also Leon, 468 U.S. at 922 n.23 (stating the good faith inquiry does

not include consideration of the motive with which an officer conducts a search);

Scott v. United States, 436 U.S. 128, 138 (1978) (“[T]he fact that the officer does

not have the state of mind which is hypothecated by the reasons which provide

the legal justification for the officer’s action does not invalidate the action taken

as long as the circumstances, viewed objectively, justify that action.”). Because

the search was an objectively reasonable search incident to arrest under then-

existing, well-established law of this court, the good faith exception applies

regardless of how Officer Balderrama justified the search.

      Finally, Madden argues the good-faith exception should not be applied

because, he claims, Officer Balderrama lied at the suppression hearing, and

therefore, acted in bad faith. He asserts the Supreme Court’s decision in Davis v.

United States, 131 S. Ct. 2419 (2011), supports this argument. In Davis, the

Court stated that because the exclusionary rule “exacts a heavy toll on both the

judicial system and society at large . . . [f]or exclusion to be appropriate, the

deterrence benefits of suppression must outweigh its heavy costs.” 131 S. Ct. at

2427. Madden argues that by lying at the suppression hearing, Officer

Balderrama acted in bad faith, warranting “a heavy dose of deterrence.”

Moreover, he argues invalidating the search will not exact a heavy toll on the

judicial system or society at large because Madden was merely sentenced to

probation. Thus, he argues “deterrence clearly outweighs social cost here.” This

                                          -13-
argument is also without merit. Madden’s claims that Officer Balderrama lied at

the suppression hearing are based on two aspects of Officer Balderrama’s

testimony: that (1) he had the consent of Grider’s to impound Madden’s vehicle;

and (2) he saw the magazine clips recovered during the inventory search prior to

the search. The district court found the evidence was insufficient to establish

either fact. Indeed, at the sentencing hearing, the district court stated it found

Balderrama’s testimony that he saw the magazine clips prior to conducting the

inventory search “suspicious” in light of the other evidence in the case. Despite

the court’s concerns, however, it “did not conclude . . . the officer was lying.”

Furthermore, whether Officer Balderrama lied at the suppression hearing is

irrelevant in determining whether the good-faith exception applies in this case: it

has no bearing on the “objectively ascertainable question whether a reasonably

well trained officer would have known that the search was illegal . . .

[considering] all of the circumstances.” Leon, 468 U.S. at 922 n.23. Application

of the good-faith exception is not contingent on “the subjective good faith of

individual officers.” McCane, 573 F.3d 1037, 1041 n.2 (quotation omitted); see

also United States v. Herring, 555 U.S. 135, 145-46 (2009) (“The pertinent

analysis of deterrence and culpability is objective, not an inquiry into the

subjective awareness of arresting officers.” (quotation omitted)). Additionally,

instead of supporting Madden’s argument the good-faith exception should not

apply here, Davis forecloses it. In Davis, the Court stated that “the harsh sanction

                                         -14-
of exclusion” does not apply to objectively reasonable law enforcement activity

because “[e]xcluding evidence in such cases deters no police misconduct and

imposes substantial social costs.” 131 S. Ct. at 2429, 2434. Thus, the Court held

that where “police conduct a search in objectively reasonable reliance on binding

appellate precedent, the exclusionary rule does not apply.” Id. at 2434.

      B.     Motion to Quash the Indictment

      This court reviews the denial of a motion to dismiss based on preindictment

delay for abuse of discretion. United States v. Colonna, 360 F.3d 1169, 1176

(10th Cir. 2004); United States v. Comosona, 848 F.2d 1110, 1113 (10th Cir.

1988). As to Madden’s Sixth Amendment claim, we review the district court’s

factual findings for clear error and its legal conclusions de novo. See United

States v. Gould, 672 F.3d 930, 935 (10th Cir. 2012).

      Madden argues the government deliberately deprived him of his Fifth

Amendment right to due process and Sixth Amendment right to a speedy trial by

waiting four years from the date of the offense to seek a federal indictment.

Thus, he asserts the district court abused its discretion in denying his motion to

quash the indictment for excessive delay. We disagree. With respect to

Madden’s Fifth Amendment due process claim, “[p]reindictment delay is not a

violation of the Due Process Clause unless the defendant shows both that the

delay caused actual prejudice and that the government delayed purposefully in

order to gain a tactical advantage.” United States v. Johnson, 120 F.3d 1107,

                                        -15-
1110 (10th Cir. 1997). Madden has not shown the delay caused actual prejudice.

He argues that had his indictment in this case not been delayed, he would have

had the opportunity to be sentenced in this case before he began negotiating the

plea agreement associated with the state felony drug charges to which he pleaded

guilty in February 2006. He asserts the plea negotiations in that case would

inevitably have resulted in a sentence for those convictions that was concurrent

with his federal sentence in this case. Thus, he argues the preindictment delay

caused actual prejudice because the sentence he received in this case is

consecutive to, rather than concurrent with, the sentence he received for the state

drug convictions. “To constitute a showing of actual prejudice,” however, “the

defendant must show that he has suffered definite and not speculative prejudice.”

Colonna, 360 F.3d at 1177 (quotation omitted). The prejudice Madden claims he

suffered is speculative. See United States v. Uribe-Rios, 558 F.3d 347, 358-59

(4th Cir. 2009) (holding the defendant’s lost chance of serving state and federal

sentences concurrently “cannot be used to establish prejudice for purposes of

challenging pre-indictment delay”); Metoyer v. Scott, 70 F. App’x 524, 531 (10th

Cir. 2003) (unpublished) (rejecting the defendant’s argument that he suffered

prejudice because he could have served concurrent sentences); United States v.

Fuzer, 18 F.3d 517, 520 (7th Cir. 1994) (concluding the defendant failed to show

actual prejudice based on “his speculative contention that if the government had

prosecuted him promptly, he could have served his state and federal sentences

                                        -16-
concurrently”); United States v. McCoy, 977 F.2d 706, 711 (1st Cir. 1992)

(rejecting as speculative defendant’s claim that he was prejudiced because the

preindictment “delay diminished the opportunity to serve concurrent time on the

state and federal offenses”); United States v. Sherlock, 962 F.2d 1349, 1354 (9th

Cir. 1989) (holding the defendant’s argument that the preindictment delay

prevented him from serving his sentence concurrently with an earlier sentence

was “too speculative to establish actual prejudice”). Because Madden has not

shown the preindictment delay caused actual prejudice, the delay is not a

violation of his Fifth Amendment right to due process.

      Madden’s claim his Sixth Amendment right to a speedy trial was violated

also fails. “The general rule is that the speedy trial right attaches when the

defendant is arrested or indicted, depending on which comes first.” United States

v. Muniz, 1 F.3d 1018, 1024 (10th Cir. 1993). “‘Arrest,’ however, means federal

arrest. Arrest by state authorities on state charges does not trigger the speedy

trial provisions of the Federal Constitution.” United States v. Gomez, 67 F.3d

1515, 1521 (10th Cir. 1995); see also Muniz, 1 F.3d at 1024 (“Where the initial

arrest is solely for violation of state law, then it is generally accepted that this

arrest does not mark the commencement of the speedy trial right as to a

subsequent federal charge, even if based on the same activity.” (quotation

omitted)). The probable cause affidavit and the information underlying Madden’s

initial arrest, on March 3, 2005, show he was arrested for violating Okla. Stat.

                                          -17-
Ann. tit. 21, § 1283. Thus, Madden’s Sixth Amendment speedy trial right did not

attach on March 3, 2005. Instead, his speedy trial right attached on February 13,

2009, the date he was arrested on federal charges. Madden was indicted on those

charges a few weeks later, on March 3, 2009. Thus, the preindictment delay did

not violate Madden’s Sixth Amendment right to a speedy trial. See Johnson, 120

F.3d at 1109.

IV.   Conclusion

      For the foregoing reasons, this court affirms the district court’s denial of

Madden’s motions to suppress and to quash the indictment for excessive delay.




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