                                                                               F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                          UNITED STATES COURT OF APPEALS
                                                                              October 17, 2006
                                           TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                                 Clerk of Court


 UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,                        No. 05-4324
            v.                                                     D. Utah
 DANIEL DWIGHT ROLLINS,                                  (D.C. No. 2:04-CR-747-TC)

                   Defendant - Appellant.



                                  ORDER AND JUDGMENT *


Before KELLY, BEAM,** and HARTZ, Circuit Judges.


        Daniel Dwight Rollins was found guilty of being a user or addict of a controlled

substance in possession of a firearm and ammunition after entry of a conditional plea. He

now appeals, claiming that the district court1 erred in denying his motion to suppress

evidence discovered during a search incident to his arrest.

        We affirm.



        *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The 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.
        **
       The Honorable C. Arlen Beam, United States Circuit Judge, Eighth Circuit Court
of Appeals, sitting by designation.
        1
            The Honorable Tena Campbell, United States District Judge for the District of
Utah.
I.     BACKGROUND

       On July 29, 2004, Detective Michael Lynes of the West Valley City, Utah, Police

made a routine visit to the local Extended Stay America hotel. Hotel staff, after

participating in a police-sponsored neighborhood narcotics watch, recognized patterns

indicative of criminal activity. The staff reported excessive foot traffic between rooms

329 and 333. Lynes learned that both rooms were registered to Travis Craven and

Heather White, and after running those names through a Utah warrant database, found an

existing felony forgery warrant for Craven. In order to ascertain whether Craven was in

either room 329 or 333, Lynes called for backup.

       The officers knocked simultaneously on the doors of rooms 329 and 333, with

Lynes taking room 333 while another officer, Detective Cheshire, knocked on the door of

room 329. Upon knocking, Cheshire heard movement in the room and identified himself

as a police officer. When a male voice inside the room asked the purpose of Cheshire's

visit, Cheshire responded that he was serving a felony warrant on Craven. The voice

replied that Craven was in room 333. Suspecting that the voice might be Craven,

Cheshire persisted until a male individual, later found to be Rollins, opened the door.

       Not knowing Rollins, Cheshire asked him for identification. Having none, Rollins

gave Cheshire a name and date of birth. Cheshire checked that information against a

Utah database and found that no such person existed. After Rollins gave a second false

name, Cheshire confronted Rollins with his false information and, without telling Rollins,

decided that he had probable cause to arrest him for providing false information.

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Cheshire continued his investigation and Rollins continued to mislead him as to his

identity. Approximately thirty minutes later, Cheshire moved Rollins to a nearby bed,

handcuffed him, and advised him he was under arrest for giving false information, a class

B misdemeanor under Utah law.

       Nearly ten minutes after being informed he was arrested, Rollins truthfully

identified himself. This allowed Cheshire to search the warrants database where he found

multiple outstanding warrants for Rollins, including some for narcotics crimes and one

for violating felony parole. Detective Cheshire testified that this new information shifted

the investigation from Craven's felony forgery warrant to Rollins' outstanding narcotics

warrants and violation of parole. This also compounded the awareness and alertness of

the officers. Another male detained in the room, J.D. Stevens, was also found to have an

outstanding felony warrant.

       Shortly thereafter, having found Craven in room 333, Detective Lynes returned to

room 329 where Cheshire advised him of Rollins' identity, false information, and

outstanding warrants. Upon learning of Rollins' and Stevens' warrants, Lynes determined

that Rollins' arrest, previously for misdemeanor false informing, now included a fugitive

felon arrest. At this point, a search incident to arrest was conducted. At the time, Stevens

was seated in a chair next to the bed and Rollins sat on the bed. Both were handcuffed.

Lynes found a backpack containing a firearm under the covers of the bed, approximately

two feet from Rollins.




                                            -3-
       Rollins moved to suppress the evidence found in the bag, arguing that it was seized

in violation of his Fourth Amendment rights. After extensive evidentiary hearings on the

arrest and search, the district court denied Rollins' motion to suppress the firearm. The

court held that because Rollins had no reason to believe he was under arrest until he was

handcuffed, the arrest did not occur until approximately thirty-five minutes into the

encounter. Up to that point, according to the district court, the seizure was an

“investigative detention” under Terry v. Ohio, 392 U.S. 1 (1968). According to the

district court, the search, which took place after Rollins identified himself and his

warrants were revealed, occurred only ten to fifteen minutes after his arrest. And, since it

was conducted in the immediate vicinity of Rollins, the court found the search valid

because it was sufficiently contemporaneous as to both space and time.

II.    DISCUSSION

       When reviewing a district court's denial of a motion to suppress evidence, “‘we

review the district court’s factual findings for clear error, its conclusions of law de novo,

and view the evidence in the light most favorable to the prevailing party.’” United States

v. White, 326 F.3d 1135, 1137 (10th Cir. 2003) (quoting United States v. Gallegos, 314

F.3d 456, 458 (10th Cir. 2002)). We thus review the district court's conclusions regarding

the timing of the arrest and the breadth of the search de novo, viewing the supporting

evidence in a light most favorable to the government.

       A warrantless search violates the Fourth Amendment unless it falls within one of

the enumerated exceptions to the warrant requirement. See, e.g., United States v.

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Edwards, 242 F.3d 928, 937 (10th Cir. 2001). These exceptions include, among others,

warrantless searches incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 762-

63 (1969). A search incident to arrest allows a search not only of the arrestee, but also of

the area within his “immediate control,” meaning “the area from within which he might

gain possession of a weapon or destructible evidence.” Id. at 763.

       The inquiry into the propriety of a search incident to arrest is a dual one. First, we

ask whether the arrest was in fact lawful. United States v. Anchondo, 156 F.3d 1043,

1045 (10th Cir. 1998). Second, we examine whether the search was contemporaneous,

both spatially in terms of areas within the defendant's “immediate control” and temporally

in terms of the incidents rendering the arrest permissible. Edwards, 242 F.3d at 937.

Rollins concedes the lawful nature of his arrest. Rollins contests only the district court's

assessment of the location and timing of the arrest as they relate to the time and space

requirements of the search.

       A.     Arrest Location

       Rollins claims that his arrest took place within ten minutes after the inception of

the interaction with Cheshire, while the two stood near the kitchenette in room 329.

Rollins argues that an arrest at this location makes a search of the bed, located in the same

hotel room but several feet away, too far removed from his “grab” space and thus beyond

the spatial scope of a valid search.

       Assuming, arguendo, that Rollins' arrest actually occurred near the kitchenette, a

circumstance with which we disagree, the search was still valid. When police have

                                             -5-
probable cause to arrest a defendant, as they uncontestedly did here, “a limited,

warrantless search of a motel room incident to the lawful arrest of its occupants is

permissible.” United States v. Burns, 624 F.2d 95, 101 (10th Cir. 1980) (approving use

of drug-detecting dog without warrant on entire room). The fact that Rollins was in one

part of the room does not exclude other parts of the room from the search. Burns

explicitly states that “[t]his principle applies where, as here, the arrest occurs at an

entrance way.” Id.

       Rollins further claims he did not have “immediate control” over the area searched

because he was handcuffed. However, the presence of handcuffs is not singularly

determinative of the scope of the arrestee's “immediate control.” Rather, a number of

factors are considered, including the number of officers on the scene, the positioning of

the officers and arrestees with regard to the area searched, and the likelihood of escape.

United States v. Parra, 2 F.3d 1058, 1066 (10th Cir. 1993). We conduct this analysis

remembering that “the fact that the detainee is under the control of officers does not

eliminate the risk that he will gain access to a weapon.” United States v. Dennison, 410

F.3d 1203, 1213 (10th Cir.) (quotations omitted) (upholding search incident to arrest

when arrestee was handcuffed in an area different from the area searched), cert. denied,

126 S. Ct. 468 (2005).

       When analyzing searches incident to arrest and the rationale of officer safety the

test is “objective rather than subjective, and therefore the officer need not personally be in

fear.” Id. This court has noted that “‘[c]ustodial arrests are often dangerous; the police

                                              -6-
must act decisively and cannot be expected to make punctilious judgments regarding what

is within and what is just beyond the arrestee’s grasp.’” Parra, 2 F.3d at 1066 (alteration

in original) (quoting United States v. Lyons, 706 F.2d 321, 330 (D.C. Cir. 1983)). For

this reason, “accessibility, as a practical matter, is not the benchmark.” United States v.

Palumbo, 735 F.2d 1095, 1097 (8th Cir. 1984). Accordingly, Rollins' handcuffs do not

invalidate the search.

       B.     Timing of the Arrest

       Having concluded that the entire room was within Rollins' “immediate control,”

we now examine the temporal restraints on a search incident to arrest. Edwards, 242 F.3d

at 937. The proper analysis is not a minute-by-minute comparison of the “time of arrest”

with the “time of search,” but rather, “[t]he relevant distinction turns . . . upon whether

the arrest and search are so separated in time or by intervening events that the latter

cannot fairly be said to have been incident to the former.” United States v. Abdul-Saboor,

85 F.3d 664, 668 (D.C. Cir. 1996).

       We first determine the time of arrest. The district court held the interaction

between Cheshire and Rollins was a Terry investigative detention until Cheshire actually

handcuffed and arrested Rollins for providing false information. We think that the arrest

may have occurred at a somewhat earlier time but the determination makes little

difference in the outcome of this case.

       An “investigative detention” is justified so long as it is supported at its inception

by a reasonable suspicion of criminal activity and the extent of the detention is related in

                                             -7-
scope to the circumstances giving rise to the interaction. See, e.g., Hiibel v. Sixth Judicial

Dist. Court of Nevada, 542 U.S. 177, 185 (2004). This temporary detention allows an

officer “in appropriate circumstances and in an appropriate manner [to] approach a person

for purposes of investigating possibly criminal behavior” to determine whether probable

cause for arrest exists. Terry, 392 U.S. at 22.

       We agree with the district court that when Cheshire first spoke to Rollins in room

329, a Terry investigative detention began. Cheshire had a reasonable suspicion that

Craven, wanted on a felony warrant, was in room 329 and detained Rollins to determine

whether he was the wanted person. Cheshire was initially unable to ascertain whether

Rollins was the wanted individual. However, after receiving two false names from

Rollins, Cheshire developed probable cause to arrest Rollins for unlawfully providing

false information. Without either handcuffing Rollins or telling him he was under arrest,

Cheshire decided he would arrest Rollins and confronted him with his use of inaccurate

names. Thus, probable cause for a misdemeanor arrest existed and the Terry detention

came to an end.

        This conclusion is, in effect, what Rollins asks for. From this position Rollins

argues that a search of the bed, thirty-five minutes after this arrest, exceeds the temporal

constraints on a search incident to arrest. However, as mentioned above, the analysis is

not a “time of arrest” versus “time of search” analysis, but rather an examination of the

entire interaction to determine whether the search was actually incident to an arrest.

Abdul-Saboor, 85 F.3d at 668.

                                             -8-
       It is relevant that only a few months before the challenged search occurred, Rollins

was arrested for another, more serious, offense. When Detective Lynes returned to room

329 and learned of Rollins' identity and outstanding felony warrants, he made the

decision to enforce those warrants, adding a felony arrest to the previous misdemeanor

arrest. The knowledge that the officers were dealing with a wanted fugitive as opposed to

a misdemeanant, while not causing fear, did cause a heightened state of alert. Based on

this new information, Lynes sensibly executed a search incident to arrest of the area

surrounding Rollins.

       Viewing the interaction as a “custodial arrest process,” id. (quotations omitted)

(emphasis added), that began as a Terry encounter, evolved into a misdemeanor arrest,

and ended eventually as a felony arrest with a search incident to arrest, the length of the

“process” was of Rollins' own creation. Had Rollins not committed the misdemeanor of

false informing and given his true identity when Detective Cheshire first approached

room 329, a warrant check would have immediately occurred leading to Rollins' arrest.

This would have been almost exactly the Burns' scenario, allowing a limited warrantless

search of the motel room where Rollins was arrested. Rollins' criminal conduct in

delaying the search for nearly an hour cannot be allowed to invalidate an otherwise valid

search. Thus, we hold that this search was executed in a temporally contemporaneous

manner, incident to a lawful arrest.




                                             -9-
III.   CONCLUSION

       Although we place the time of arrest earlier in the interaction than the district

court, the result remains the same. We affirm the district court.



                                                    ENTERED FOR THE COURT

                                                    C. Arlen Beam
                                                    Circuit Judge




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