                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       August 11, 2006
                                   TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                         Clerk of Court

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

          Plaintiff - Appellee,
                                                         No. 05-5228
 v.                                            (D.C. No. 05-CR-088-001-TCK)
                                                         (N.D. Okla.)
 ER IK PA U L C HR ISTIA N ,

          Defendant - Appellant.



                              OR D ER AND JUDGM ENT *


Before KELLY, M cKA Y, and LUCERO, Circuit Judges. **


      Defendant-Appellant Erik Paul Christian pled guilty to transporting child

pornography in interstate commerce, 18 U.S.C. § 2252(a)(1), on a conditional

plea and was sentenced to 70 months and five years supervised release. Pursuant

to the conditional plea, he appeals the district court’s denial of his motion to

suppress. On appeal, M r. Christian argues that the police had insufficient



      *
        This order and judgment is not binding precedent, except under the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.
probable cause for his arrest, and thus the evidence discovered during the

subsequent search incident to arrest should have been suppressed as fruit of the

poisonous tree. W e exercise jurisdiction pursuant to 28 U.S.C. § 1291, and

affirm.



                                     Background

      On April 2, 2005, Tulsa police officers Jonathan Lartigue and Philip

W hitehead were on routine patrol when they observed five Native Americans in a

bank parking lot. Believing these individuals to be intoxicated, they decided to

conduct a pedestrian check. III R. at 51. After instructing the five individuals,

four males and one female, to sit on the ground, the officers obtained

identification from them. Officer Lartigue went to the patrol car to run a records

check. Id. at 6-7. During that time of initial contact, tw o more officers arrived.

      M eanwhile, M r. Christian walked into the bank parking lot and approached

Officer Lartigue, who was in the patrol car. M r. Christian asked the officer if he

could ask a question, id. at 7-8, 9, and the officer told M r. Christian that he was

busy, and would assist him if he “could wait a minute”, id. at 9-10. The officer

asked M r. Christian to step away until the officer was through.

      M r. Christian then turned towards the other three officers who were

watching the five suspects, and asked Officer W hitehead if he could ask him a

question. Officer W hitehead asked M r. Christian if it was an emergency, and M r.

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Christian said “No.” Id. at 62-63. The officer then gestured to an area

approximately thirty feet away, and told M r. Christian that if he would wait over

there, they would deal with him when they completed their investigation. Id. at

63. At that point, M r. Christian became “irate”, id. at 38, and raised his voice as

“if he[] [was] trying to talk to the other officers” who were a few feet away from

Officer W hitehead, and he asked “Are all you fucking cops busy?”. I R. Doc 11,

at 2.

        Officer W hitehead told M r. Christian that he was obstructing the

investigation and he needed to “go over there right now” or he was “fixing to go

to jail.” III R. at 39. Although M r. Christian never stepped between the officers

and the five suspects, he did step between Officer W hitehead and the two backup

officers. Id. at 65. M r. Christian continued towards Officer W hitehead and the

other two back-up officers. Officer W hitehead asked M r. Christian for

identification and M r. Christian refused. Id. at 39-40. At that point, the officer

placed M r. Christian under arrest for interference with a police officer, in

violation of Okla. Stat. Ann. tit. 21, § 540. 1 After the arrest and before

transporting him to jail, the officers searched M r. Christian’s backpack for

contraband that would not be allowed in jail, and discovered a printed image of



        1
        That statute provides that “[e]very person who willfully delays or
obstructs any public officer in the discharge or attempt to discharge any duty of
his office, is guilty of a misdemeanor.”


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child pornography, as well as various compact discs (CD-ROM s) which later

proved to contain child pornography.

      After indictment, M r. Christian filed a motion to suppress the child

pornography because the officers lacked probable cause to arrest him. See I R.

Doc. 11. After an evidentiary hearing, the district court denied the motion. III R.

81-82. The district court held that the officers had a reasonable basis for

believing that M r. Christian violated the Oklahoma statute against obstructing or

delaying a police officer because he (1) was in an “irate status” and did not obey

lawful commands, (2) was warned several times, (3) created a safety issue for the

officers, and (4) refused to provide identification. Id.



                                     Discussion

      W hen reviewing the denial of a motion to suppress, this court examines the

totality of circumstances and review s the evidence in the light most favorable to

the government. United States v. Banks, 451 F.3d 721, 727 (10th Cir. 2006). W e

accept the district court’s factual findings unless they are clearly erroneous and

we review de novo a district court’s determination that a search or seizure is in

accordance with the law. Id.

      A warrantless arrest is constitutionally valid if the arresting officer had

probable cause to make the arrest. Chimel v. California, 395 U.S. 752, 762-63

(1969); U nited States v. Edw ards, 242 F.3d 928, 933-34 (10th Cir. 2001). As we

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have explained:

             Probable cause exists where the facts and circumstances
             within the officers’ knowledge, and of which they have
             reasonably trustw orthy information, are sufficient in
             themselves to warrant a man of reasonable caution in the
             belief that an offense has been or is being comm itted.
             Although it is not necessary that the officer possess
             knowledge of facts sufficient to establish guilt, mere
             suspicion is insufficient to establish probable cause . . . .
             [P]robable cause must be evaluated in light of
             circumstances as they would have appeared to a prudent,
             cautious, trained police officer.


Edwards, 242 F.3d at 934 (quoting United States v. M aher, 919 F.2d 1482, 1485-

86 (10th Cir. 1990)) (alterations in original).

      Viewing the facts in the light most favorable to the government, we agree

with the district court that the police had probable cause to arrest M r. Christian

for obstructing an officer. W e note that the question before us is not whether he

was actually obstructing or interfering (as M r. Christian frames the issue), but

rather whether an objectively reasonable officer could conclude that M r. Christian

was violating the Oklahoma statute. From that officer’s perspective and based on

the factual findings of the district court, M r. Christian was becoming increasingly

agitated and distracting the officers as they handled another situation where they

were outnumbered. The officers repeatedly asked M r. Christian to move away

from the area and warned him that if he did not, he would be placed under arrest.

M r. Christian refused and continued towards the officers. A reasonable officer



                                          -5-
could have concluded at that time that M r. Christian was interfering with their

investigation, and as such, the officers had probable cause to arrest him. 2

      The Oklahoma cases that M r. Christian cites, Aplt. Br. at 6-8, while

instructive in the analysis, do not suggest that the officers here did not have

probable cause to arrest M r. Christian for interference. In Knoff v. State, 192 P.

596, 597 (Okla. Crim. App. 1920), the court interpreted “obstructing” as meaning

to “oppose” an officer, obstructing the officer himself and not the business the

officer is conducting. Here, Officer W hitehead testified that he felt M r. Christian

was distracting him and then, while physically separating Officer W hitehead from

his back-up officers, refused several requests, and a subsequent order to leave the

area. This could sufficiently delay or obstruct an officer in the performance of

his duties.   M oreover, in M arsh v. State, 761 P.2d 915, 916 (Okla. Crim. App.

1988) the Oklahoma court held that a person need not use physical force to be

obstructing an officer, and in Trent v State, 777 P.2d 401, 402 (Okla. Crim App.

1989), it held that belligerent refusal to leave a scene could obstruct an officer,

even absent physical obstruction. W e think that in light of these cases and M r.

      2
          M r. Christian’s First Amendment rights are not implicated here. It was
not M r. Christian’s language that furnished the probable cause for his arrest–
rather, it was his refusal to obey the officer’s request to leave the immediate area
until they concluded their business. That in and of itself furnished sufficient
probable cause for the arrest. W e also reject M r. Christian’s argument that his
refusal to provide identification cannot form the basis for an arrest, see Hiibel v.
Sixth Judicial District Court of Nevada, 542 U.S. 177, 188-90 (2004), but again,
we note that his refusal to leave the immediate area was sufficient for probable
cause.

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Christian’s actions as a whole, Officer W hitehead reasonably believed he had

probable cause to arrest. 3

      Because the officers had probable cause to arrest, we must address whether

their subsequent search of M r. Christian’s backpack was constitutionally

permissible. “[A] lawful custodial arrest creates a situation which justifies the

contemporaneous search without a warrant of the person arrested and of the

immediately surrounding area.” New York v. Belton, 453 U.S. 454, 457 (1981).

The scope of the search must be limited to the suspect’s immediate control.

Chimel, 395 U.S. at 763; United States v. Franco, 981 F.2d 470, 472 (10th Cir.

1992). The officer’s search of the backpack falls within these limits and was

valid under the Fourth Amendment.

      A FFIR ME D.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




      3
       Again, we note that the issue is not whether M r. Christian could or w ould
be convicted for violating the Oklahoma statute, but rather whether the officer
reasonably believed he was committing the offense.

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