                                                                                  FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit

                       UNITED STATES COURT OF APPEALS                     February 14, 2011
                                                                         Elisabeth A. Shumaker
                                        TENTH CIRCUIT                        Clerk of Court


 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.                                                  No. 09-3336
                                                   (D. Ct. No. 2:08-CR-20082-JWL-1)
 DERRICK L. LASLEY,                                             (D. Kan.)

                Defendant - Appellant.


                               ORDER AND JUDGMENT*


Before TYMKOVICH, TACHA, and BALDOCK, Circuit Judges.


       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)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

       Defendant-appellant Derrick L. Lasley entered a conditional plea of guilty to one

count of possessing 50 grams or more of cocaine base (“crack”) with intent to distribute,

in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). Pursuant to his plea agreement,

Mr. Lasley reserved the right to appeal the district court’s denial of his motion to


       *
        This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
suppress. He now appeals that ruling. We have jurisdiction under 28 U.S.C. § 1291 and

AFFIRM.

                                   I. BACKGROUND

       During the early morning of April 24, 2008, Kansas City, Kansas police officer

David Sunderman observed a vehicle, which Mr. Lasley was driving, fail to stop at a stop

sign. Officer Sunderman followed the vehicle onto an interstate, ran the vehicle’s tag,

and initiated a traffic stop. While asking Mr. Lasley for his driver’s license, Officer

Sunderman observed a front-seat passenger pushing an object between his seat and the

door. A subsequent check of Mr. Lasley’s records revealed that he had a warrant for his

arrest. Accordingly, Officer Sunderman placed him in custody.

       At that point, Officer Michael Moulin arrived on the scene to assist Officer

Sunderman. The officers conducted a search incident to arrest which revealed crack

cocaine and marijuana in Mr. Lasley’s pants. Officer Sunderman then arrested the

passenger pursuant to an outstanding warrant that was discovered during the course of the

stop. A subsequent search of the vehicle revealed more crack cocaine in the area between

the passenger seat and the passenger door.

       Mr. Lasley was charged in a three-count indictment with: (1) possession of 50

grams or more of crack with intent to distribute in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(A)(iii) and 18 U.S.C. § 2; (2) possession of marijuana in violation of 21 U.S.C. §

844(a); and (3) possession of crack with intent to distribute in violation of 21 U.S.C. §




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841(a)(1) and (b)(1)(C).1 Mr. Lasley filed a motion to suppress the drugs found on his

person and in his vehicle, challenging the legality of the initial traffic stop and the scope

of the subsequent search incident to arrest.

       During the suppression hearing, Officer Sunderman and Mr. Lasley provided

different accounts of the traffic stop and the subsequent search. Officer Sunderman

testified that he observed Mr. Lasley roll through the stop sign without coming to a

complete stop, and that he discovered the crack on Mr. Lasley’s person hanging out of the

waistband of his pants during a pat-down search. He further testified that after finding the

crack, he pulled back the front of Mr. Lasley’s waistband and discovered the marijuana

deeper in his pants. Mr. Lasley, however, testified that he made a complete stop at the

stop sign, and he claimed that the crack cocaine discovered on his person was not hanging

out of his waistband, but was concealed under his genitals. Thus, Mr. Lasley alleged that

the search which revealed the crack was much more invasive than the pat-down search

Officer Sunderman described.

       The district court found Officer Sunderman credible, remarked that his account of

the incident was “extremely believable,” and found Mr. Lasley’s divergent account of the

incident to be unconvincing. Specifically, the court found that Officer Sunderman

observed Mr. Lasley run the stop sign, and that the officers discovered the crack cocaine

hanging out of Mr. Lasley’s waistband rather than under his genitals. In the alternative,


       1
      Count 3 arose from an incident that occurred more than a month before Officer
Sunderman arrested Mr. Lasley. That incident is not the subject of this appeal.

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the court held that because Mr. Lasley was legally arrested, the crack cocaine found on

his person would have inevitably been discovered during a subsequent search, even if it

were concealed in the manner Mr. Lasley alleged. Accordingly, the court denied Mr.

Lasley’s motion to suppress.

       Mr. Lasley then conditionally pleaded guilty to Count 1 of the indictment,

preserving his right to appeal the denial of his motion to suppress. The government

dismissed the remaining counts. Mr. Lasley was subsequently sentenced to 120 months’

imprisonment, and this appeal followed.

                                      II. DISCUSSION

       Mr. Lasley raises two arguments on appeal. First, he challenges the factual basis

for the traffic stop, arguing that the district court clearly erred in finding that Officer

Sunderman observed him violate a traffic law. Second, he contends that the search of his

person exceeded the permissible scope of a search incident to arrest. We address each of

Mr. Lasley’s arguments in turn.

       A.      Standard of Review

       “We review de novo the reasonableness of a search or seizure under the Fourth

Amendment.” United States v. Worthon, 520 F.3d 1173, 1178 (10th Cir. 2008). “In

reviewing the district court’s denial of a motion to suppress, we review the court’s factual

findings for clear error and view the evidence in the light most favorable to the

government.” Id. “A finding of fact is not clearly erroneous unless it is without factual

support in the record, or unless the court after reviewing all the evidence, is left with a

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definite and firm conviction that the district court erred.” United States v. Apollo

Energies, Inc., 611 F.3d 679, 683–84 (10th Cir. 2010). Moreover, “when there are two

permissible views of the evidence, the factfinder’s choice between them cannot be clearly

erroneous.” United States v. Toro-Pelaez, 107 F.3d 819, 824 (10th Cir. 1997) (quotations

omitted).

       B.     The Traffic Stop

       Mr. Lasley’s challenge to the initial traffic stop is purely factual. Indeed, he does

not assert that, accepting Officer Sunderman’s testimony as true, the officer did not have

reasonable suspicion to initiate a traffic stop. Rather, Mr. Lasley contends that, as a

matter of fact, he did not run a stop sign, and that Officer Sunderman’s testimony to the

contrary was not credible.

       To begin, there is support in the record for the district court’s specific finding that

Officer Sunderman observed Mr. Lasley run a stop sign. Officer Sunderman

unequivocally testified to that effect, and in the plea agreement, Mr. Lasley stipulated that

“[o]n April 24, 2008, at approximately 3:52 a.m., Officer Sunderman . . . observed a

silver Mitsubishi fail to stop at a posted stop sign.” Furthermore, Mr. Lasley does not

point to any evidence in the record that leaves this court with a definite and firm

conviction that the district court erred in its factual finding. Finally, Mr. Lasley’s

challenge to the district court’s credibility determination is misplaced, because we do not

reassess the credibility of witnesses on appeal. United States v. Avery, 295 F.3d 1158,

1167 (10th Cir. 2002). For these reasons, the district court did not clearly err in

                                             -5-
determining that the traffic stop was premised on an observed traffic violation.

       C.     The Search Incident to Arrest

       Mr. Lasley’s challenge to the search of his person is both factual and legal. He

contends that the district court clearly erred in finding that during the search incident to

arrest, the officers discovered crack cocaine hanging out of Mr. Lasley’s waistband.

Instead, Mr. Lasley maintains that the drugs found on his person were concealed behind

his genitals, and that the officers therefore engaged in an invasive search to discover

them. He contends that such an invasive search exceeded the permissible scope of a

search incident to an arrest for traffic warrants.

       Even assuming that the drugs were concealed in the manner Mr. Lasley suggests,

and that they were discovered pursuant to a full search of Mr. Lasley’s person, the search

was permissible. The Supreme Court has long held that “in the case of a lawful custodial

arrest a full search of the person is not only an exception to the warrant requirement of

the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” United

States v. Robinson, 414 U.S. 218, 235 (1973) (emphasis added). The Court has also

indicated that the permissible scope of a search incident to arrest is not necessarily

defined by the existence or absence of evidence of the particular crime for which the

arrest is made. See id. at 234 (“The standards traditionally governing a search incident to

lawful arrest are not [] commuted to the stricter Terry standards by the absence of

probable fruits or further evidence of the particular crime for which the arrest is made.”).

       Additionally, we have upheld a search incident to arrest in circumstances similar to

                                              -6-
those presented by this case. In United States v. McKissick, 204 F.3d 1282, 1296 (10th

Cir. 2000), the defendant challenged a search incident to arrest in which officers

discovered cocaine concealed in his groin area. He challenged the search on the grounds

that it was “an invasive search conducted with [the defendant’s] pants pulled down, in full

view of the public.” Id. There, we held that the officer “was justified in conducting a

full, warrantless search of [the defendant’s] person incident to his arrest, and the

discovery of the cocaine on [the defendant’s] person was the result of a lawful search

incident to arrest.” Id. at 1297.

       Here, Mr. Lasley does not challenge the legality of his arrest. And, because he

was lawfully in custody, the officers were permitted to conduct a full search of his person.

Therefore, the scope of the search incident to Mr. Lasley’s arrest was permissible, even if

we assume that it was executed in the manner he claims.

                                    III. CONCLUSION

       For the foregoing reasons, we conclude that the district court correctly denied Mr.

Lasley’s motion to suppress. Accordingly, we AFFIRM.

                                           ENTERED FOR THE COURT,



                                           Deanell Reece Tacha
                                           Circuit Judge




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