                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                 UNITED STATES COURT OF APPEALS                             SEP 20 1999

                                 TENTH CIRCUIT                         PATRICK FISHER
                                                                                Clerk



 UNITED STATES OF AMERCA,

          Plaintiff-Appellee,
                                                         No. 98-6331
 v.                                                 (D.C. No. CR-98-30-C)
                                                         (W.D. Okla.)
 JOHN ADRIAN DRISKILL, JR.,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL and MURPHY, Circuit Judges.



      John Adrian Driskill, Jr. entered a conditional guilty plea to, inter alia,

manufacturing methamphetamine. He challenges the denial of his motion to

suppress and the computation of drug quantities for determining his sentence. We

affirm.

      On January 30, 1998, the Oklahoma Bureau of Narcotics acted on a tip that


      *
       This order and judgment is not binding precedent, except under the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.
Albert Mize was manufacturing methamphetamine in a storage unit at Storage

USA. The manager of Storage USA informed police officers that Mr. Driskill had

just entered the facility in a Camaro pulling a trailer, and was waiting for Mr.

Mize to rent another unit. Agent Roberts drove to Mr. Driskill’s location at

Storage USA and parked in a manner that did not block him. After Agent Roberts

approached Mr. Driskill and identified himself, Mr. Driskill immediately reached

for the floor of his vehicle. Believing Mr. Driskill was reaching for a gun, Agent

Roberts drew his weapon, instructed Mr. Driskill to “freeze,” and demanded to

“see his hands.” Rec., vol. III, at 22-23. Mr. Driskill got out of his vehicle and

fled from police over the fence surrounding the property.

      After Mr. Driskill’s abrupt departure from his vehicle, it began to roll

forward because it was still in gear with the engine running. When it came to rest

against a building, Agent Roberts got into the vehicle, placed it in park, and

turned off the engine. At that time he saw two guns in Mr. Driskill’s vehicle and

smelled the “strong odor” of chemicals consistent with a methamphetamine

laboratory. He then retrieved his drug detection canine, which alerted to both the

vehicle and the trailer. Upon searching the vehicle and trailer, he discovered

methamphetamine, precursor chemicals, and equipment used to manufacture

methamphetamine.

      At Mr. Driskill’s suppression hearing, the district court held Agent Roberts


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had reasonable suspicion and a right to approach Mr. Driskill’s vehicle. The

court further found that Agent Roberts believed Mr. Driskill was reaching for a

weapon. Turning to the search of Mr. Driskill’s vehicle and trailer, the court

determined that Mr. Driskill “abandoned the vehicle and abandoned any

reasonable expectation of privacy” when he fled. Rec., vol. III, at 51-52. Based

on these findings, the court found Mr. Driskill’s detention and the search

reasonable under the Fourth Amendment. The district court’s determination of

reasonableness under the Fourth Amendment is a conclusion of law which we

review de novo. See United States v. Davis, 94 F.3d 1465, 1467 (10th Cir. 1996).

      Mr. Driskill first argues the district court violated his due process rights to

notice and a fair opportunity to be heard by finding without notice that he

abandoned his property and denying his motion to suppress based on that theory

when it was never argued by the government and he was not afforded an

opportunity to rebut it. In response, the government analogizes the district court’s

substitution of a different legal theory to an appellate court’s agreement with a

trial court’s result, but not its reasoning. See, e.g., United States v. Soto-

Cervantes, 138 F.3d 1319, 1322 (10th Cir. 1998).

      An appellate court may affirm on any ground not raised in the trial court

only if the record is sufficiently clear to permit reliance on that ground, and if

both parties had an adequate opportunity to develop the record on the issue. See


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Griffith v. Colorado Div. Youth Serv., 17 F.3d 1323, 1328 (10th Cir. 1994);

Seibert v. University of Okla. Health Sciences Center, 867 F.2d 591, 597 (10th

Cir. 1989); see also United States v. Parr, 843 F.2d 1228, 1232 (9th Cir. 1988)

(“We are foreclosed, however, from affirming the district court’s suppression of

evidence on a theory not presented below when by doing so we unfairly deprive

the defendant of the opportunity to adduce evidence.”). Whether a defendant

“abandoned” property in the Fourth Amendment sense is a fact-intensive

determination which would ordinarily require an adequately developed record.

See e.g., LaFave, Search and Seizure, § 2.5(a). Nevertheless, even assuming Mr.

Driskill could or would have put on evidence that he did not abandon his vehicle,

any error the district court may have made in relying on an abandonment theory

was harmless in light of our conclusion that Mr. Driskell’s detention and the

subsequent search were reasonable based on the record and theories presented in

the district court. 1

       Police officers do not violate the Fourth Amendment when they approach



       1
        Mr. Driskill cites Cole v. Arkansas, 333 U.S. 196 (1948), to support his
argument that the court’s reliance on a theory he never had an opportunity to
rebut denied him due process. See id. at 200-201 (reversing conviction where
evidence did not support the crime charged, but did support finding of guilt of
another crime). The facts of Cole are distinguishable in an important respect.
Rather than substituting a different criminal charge, the trial court here
substituted only a different legal theory to deny Mr. Driskill’s motion to suppress.


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an individual simply to ask questions. See Florida v. Royer, 460 U.S. 491, 497

(1983) (plurality opinion); United States v. Bell, 892 F.2d 959, 965 (10th Cir.

1989). Agent Roberts testified he merely intended to ask Mr. Driskill about his

relationship with Mr. Mize and his reason for renting a storage unit with him.

Significantly, Agent Roberts did not block Mr. Driskill’s vehicle when he made

the initial approach.

      Mr. Driskill argues that by ordering him out of his car at gunpoint, Agent

Roberts effectively arrested him. We have previously held the use of firearms

does not transform a Terry stop into a full custodial arrest for which probable

cause is required where the totality of the circumstances reasonably warrant the

use of such forceful techniques. See, e.g., United States v. Perdue, 8 F.3d 1455,

1462-63 (10th Cir. 1993); United States v. Merkley, 988 F.2d 1062, 1064 (10th

Cir. 1993). We agree with the district court that the totality of the circumstances

here support Agent Roberts’ reasonable suspicion that Mr. Driskill was reaching

for a weapon. By ordering Mr. Driskill to freeze and show his hands, Agent

Roberts limited his demands to only those absolutely required for his own

immediate protection. See Perdue, 8 F.3d at 1462 (police officers are not

required to take unnecessary risks and may take such steps as are reasonably

necessary to protect their personal safety); Terry v. Ohio, 392 U.S. 1, 23-24




                                         -5-
(1968). Agent Roberts acted reasonably and within the confines of Terry. 2

      Mr. Driskill next challenges the warrantless search of his vehicle as

unreasonable under the Fourth Amendment. 3 Agent Roberts’ drug detection

canine positively alerted to Mr. Driskill’s vehicle and trailer prior to the search.

Drug dog sniffs are not searches within the meaning of the Fourth Amendment

and require no supporting reasonable suspicion. See United States v. Place, 462

U.S. 696, 706-07 (1983); United States v. Morales-Zamora, 914 F.2d 200, 204-05

(10th Cir. 1990). Once Agent Roberts’ canine positively alerted to Mr. Driskill’s

vehicle and trailer, probable cause existed to search the property without first

obtaining a warrant. See United States v. Ludwig, 10 F.3d 1523, 1527 (10th Cir.

1993). The district court properly denied Mr. Driskill’s motion to suppress.

      Mr. Driskill also challenges the district court’s drug quantity determination

made for sentencing purposes, arguing the determined amount was not based on

credible evidence. The United States Sentencing Guidelines require that when

      2
       Mr. Driskill cites us to Ybarra v. Illinois, 444 U.S. 85, 93 (1979), for his
contention that the officers never had reasonable suspicion to detain him. The
Supreme Court held that Mr. Ybarra’s presence at a bar being searched under a
warrant, without more, was insufficient to support reasonable suspicion to justify
a Terry stop. Agent Roberts did not detain Mr. Driskill merely because of his
presence at Storage USA, however, but because of his gesture towards the
floorboard.
      3
        There was ambiguity in the record as to whether a search warrant was ever
procured for Mr. Driskill’s vehicle and trailer. The government does not urge on
appeal the existence of a search warrant and we therefore assume no warrant was
issued.

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any factor used to compute sentencing is in dispute, the information ultimately

relied upon by the sentencing court must have “sufficient indicia of reliability to

support its probable accuracy.” U.S.S.G. § 6A1.3(a). See also United States v.

Ruiz-Castro, 92 F.3d 1519, 1534 (10th Cir. 1996) (when drugs underlying

conviction are not seized, trial court may rely on estimate of drug quantity to

establish defendant’s guideline offense level as long as information relied on has

some basis of support in the facts). We review the district court’s factual findings

as to the quantity of drugs attributable to a defendant only for clear error. See

United States v. Morales, 108 F.3d 1213, 1225 (10th Cir. 1997).

      Agent Haskins testified at Mr. Driskill’s sentencing hearing that he

interviewed Mr. Driskill several times in July and September 1997. At that time,

Mr. Driskill admitted to manufacturing approximately one pound of

methamphetamine per week with Mr. Mize, from the first week of August 1996

through June 21, 1997, when Mr. Driskill was incarcerated on unrelated charges.

Agent Haskins computed the total drug quantity manufactured during this time

period by counting the number of weeks, subtracting time periods when Mr.

Driskill was incarcerated, and arriving at an approximate total quantity of

methamphetamine manufactured by Mr. Driskill of fifty pounds. The district

court determined fifty pounds was “the most conservative estimate” and accepted

that amount because it was “the only fair thing to do when the evidence is in


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conflict.” Rec., vol. V, at 51-52. The court held this quantity was supported by

Agent Haskins’ testimony concerning Mr. Driskill’s admissions, Mr. Mize’s

admissions, and other informants’ statements.

      Mr. Driskill argues this evidence is an insufficient basis for determining the

drug quantity because his admissions were not used to compute Mr. Mize’s

sentence and thus cannot be considered reliable. Mr. Mize’s sentence was

computed under a plea agreement different from Mr. Driskill’s, however, which

precluded Mr. Mize’s own statements regarding the quantity of drugs from being

used against him at sentencing. Mr. Mize’s sentence is thus irrelevant. See

United States v. Sardin, 921 F.2d 1064, 1067 (10th Cir. 1990) (citing cases where

co-defendants’ disparate sentences upheld because disparity was explicable from

the record). We are not persuaded the district court’s finding regarding the

quantity of drugs for which Mr. Driskill was responsible was clearly erroneous.

See United States v. Cook, 949 F.2d 289, 296 (10th Cir. 1991).

      We AFFIRM.

                                      ENTERED FOR THE COURT


                                      Stephanie K. Seymour
                                      Chief Judge




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