                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         July 29, 2005
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 04-5166
 v.                                              (D.C. No. 04-CR-15-EA)
                                                       (N.D. Okla.)
 JOHANNAS ANTON GREEN,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges. **


      Defendant-Appellant Johannas Green was convicted on a conditional plea

of guilty of possession of a firearm and ammunition after former conviction of a

felony. 18 U.S.C. §§ 922(g)(1), 924(a)(2). He was sentenced to 64 months

imprisonment followed by three years supervised release and was fined $3,000.

He now appeals the denial of his motion to suppress evidence based upon an

      *
        This order and judgment is not binding precedent, except under the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.
unlawful arrest and/or an unlawful search and seizure of his vehicle. We affirm.



                                     Background

        About 4:30 a.m. on January 4, 2004, Mr. Green drove to the Creek Nation

Tulsa Casino, parked his vehicle, and went into the casino. A sign at the entrance

of the casino parking lot warns that all persons and vehicles are subject to search,

and that it is unlawful to carry firearms on casino property. A security guard in

the parking lot observed that the wing window on the driver’s side of Mr. Green’s

vehicle was broken. Suspecting a stolen vehicle, she requested assistance. While

shining a flashlight into the passenger side of the vehicle to see if the steering

wheel had been “popped,” the guard observed a gun in the middle of the front

floorboard.

      Meanwhile, Mr. Green emerged from the casino. Apparently noticing the

officers near his vehicle, he went back in only to emerge a few seconds later. He

asked the officers about their presence near the vehicle. Mr. Green was asked for

identification; he responded that his identification was in the vehicle. A tribal

police officer (but one that was not cross-deputized) requested Mr. Green’s keys

several times. When the keys were not forthcoming, the officer told him that he

would be arrested for disobeying a police officer and for having a firearm when it

was prohibited by tribal law. Mr. Green then fled the scene.


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      Thereafter, another tribal police officer, one cross-deputized by the Bureau

of Indian Affairs, arrived on the scene and was briefed about Mr. Green and his

vehicle. The cross-deputized officer recalled an encounter with Mr. Green less

than a month previously. During that encounter, the cross-deputized officer

learned that Mr. Green was residing in a halfway house for recently released

inmates. He also recalled that Mr. Green had broken the vehicle’s window in

order to retrieve keys.

      The cross-deputized officer personally observed the gun in Mr. Green’s

vehicle, and then had the vehicle impounded and inventoried after deciding that it

had been abandoned. In response to a variety of theories urged by Mr. Green for

suppression of the evidence, the district court held that (1) the law enforcement

personnel acted on reasonable suspicion in investigating Mr. Green’s vehicle as a

possible stolen vehicle, (2) though the non cross-deputized law enforcement

personnel may have lacked the authority to arrest Mr. Green in connection with a

federal offense, they certainly had the authority to detain and refer him to the

proper authorities, (3) Mr. Green voluntarily abandoned the vehicle upon his

flight. In the alternative, the district court held that (4) the cross-deputized tribal

officer had probable cause to search and inventory the vehicle based upon his

suspicion that Mr. Green was a convicted felon and his observation of the gun in

the vehicle.


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      On appeal, Mr. Green argues that the search and seizure by the tribal police

was unlawful. He contends that the district court erred in finding that (a) Mr.

Green voluntarily abandoned his vehicle, (b) the tribal police had probable cause

to arrest Mr. Green or authority to impound and inventory his vehicle with a

search warrant. The predicate of Mr. Green’s claims is that tribal law cannot be

enforced against non-Indians and consequently, the events that led to Mr. Green’s

flight were improper. Mr. Green argues that the search and seizure is based upon

probable cause developed after it occurred, and that a search warrant was

required. He argues that the tribal police lacked a search warrant, probable cause,

consent from Mr. Green, or exigent circumstances.



                                    Discussion

      When reviewing a district court’s denial of a motion to suppress, we view

the evidence in the light most favorable to the government, accepting the district

court’s factual findings unless clearly erroneous. United States v. Cantu, 405

F.3d 1173, 1176 (10th Cir. 2005). Fourth amendment reasonableness is reviewed

de novo. Id.

      The district court did not err in denying the motion to suppress. Tribal

criminal jurisdiction may extend to both member and non-member Indians. 25

U.S.C. § 1301(2); United States v. Lara, 541 U.S. 193, 209 (2004). It does not


                                        -4-
extend to non-Indians. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195

(1978). That said, tribal officers do have the authority to investigate violations of

law on tribal land, and detain persons, including non-Indians, suspected of

violating the law. Duro v. Reina, 495 U.S. 676, 696-97 (1990) (“Tribal law

enforcement authorities have the power to restrain those who disturb public order

on the reservation, and if necessary, to eject them. Where jurisdiction to try and

punish an offender rests outside the tribe, tribal officers may exercise their power

to detain the offender and transport him to the proper authorities.”); United States

v. Terry, 400 F.3d 575, 579-80 (8th Cir. 2005). Moreover, tribal authorities may

investigate unauthorized possession of firearms on gaming premises which is

proscribed by tribal law. See Muscogee (Creek) Nation Code Ann., tit. 21., § 5-

116(C).

      An officer may seize evidence of a crime if it is in plain view, its

incriminating character is immediately apparent, and the officer has a lawful right

of access to the item. Horton v. California, 496 U.S. 128, 136-37 (1990). The

security guard certainly could investigate whether Mr. Green’s vehicle was in fact

stolen. We have suggested that incriminating evidence that may be seen through

the window of a vehicle may be in plain view. United States v. Sparks, 291 F.3d

683, 692 (10th Cir. 2002). This view may be assisted by a flashlight without any

infringement of Fourth Amendment rights. Texas v. Brown, 460 U.S. 730, 739-40


                                         -5-
(1983) (plurality opinion); United States v. Ortiz, 63 F.3d 952, 954 (10th Cir.

1995).

         Having personally observed the gun and knowing Mr. Green’s background

as a felon, we have no doubt that the cross-deputized officer had probable cause

to conclude that the gun was evidence of a crime. Thus, no warrant was required

for law enforcement to seize the gun. See Soldal v. Cook County, Ill., 506 U.S.

56, 68 (1992) (seizure of property in plain view without a warrant is authorized

only when probable cause exists to associate property with criminal activity);

Sparks, 291 F.3d at 690-91; United States v. Hatten, 68 F.3d 257, 261 (8th Cir.

1995). Given our holding, it is unnecessary to address whether Mr. Green

abandoned the vehicle thereby justifying the inventory search and whether Mr.

Green gave implied consent to search his vehicle by entering the casino property.

         AFFIRMED.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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