UNITED STATES OF AMERICA v. FLYNN
FILED
United States Court of Appeals
Tenth Circuit
OCT 25 2002
PATRICK FISHER
Clerk PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA, No. 01-7065
Plaintiff - Appellee,
v.
MACK F. FLYNN, aka Maxie Flynn,
Defendant - Appellant,
Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 00-CR-75-S)
Donn F. Baker of Baker & Baker, Tahlequah, Oklahoma, for Defendant-
Appellant.
D. Michael Littlefield, Assistant United States Attorney (Sheldon J. Sperling,
United States Attorney, with him on the brief), Muskogee, Oklahoma, for
Plaintiff-Appellee.
Before SEYMOUR, BALDOCK, and BRISCOE, Circuit Judges.
SEYMOUR, Circuit Judge.
Mack F. Flynn pled guilty conditionally to violations of 21 U.S.C.
841(a)(1) and 18 U.S.C. 2, 924(c), 1952(a)(3), and 922(n). He reserved his
right to appeal "any and all adverse rulings, specifically the [] denial of his
Motion to Suppress." Aplt. App. at 43. On appeal, he contends the district court
erred in denying his motion to suppress evidence and also argues there was
insufficient evidence that the firearm found in his car was carried "during and in
relation to" the underlying crime as required by section 924(c). We affirm.
I.
On the afternoon of October 3, 2000, Mr. Flynn was driving eastbound in
the inside lane of Interstate 40 in Muskogee County, Oklahoma, when he passed a
sign reading "Drug Checkpoint 1/3 mile ahead." Just after he reached a second
sign reading "Drug Dogs in Use" and saw a police car parked ahead on the
highway with its lights on, he made an abrupt lane change and immediately took
the exit ramp for Ross Road. At the top of the exit ramp, Mr. Flynn stopped his
car briefly while his passenger, Connie Ketcher, opened the door and dropped a
large sack from the car. Two officers on the center median of I-40 observed this
and radioed the information to other officers who were hidden in the underbrush
near the top of the exit ramp. Those officers emerged from the underbrush,
examined the sack, and advised the officers remaining on I-40 that the sack
contained "a lot of dope." Then, as Mr. Flynn approached the stop sign at Ross
Road, officers stopped him and placed him under arrest. The contents of the
package thrown from the car, as well as another package that Ms. Ketcher
revealed she was carrying when police stopped the car, later tested positive for
methamphetamine.
Mr. Flynn conditionally pled guilty to four federal offenses in connection
with this incident. On appeal, he challenges the denial of his motion to suppress
the evidence obtained by the officers, arguing that it was acquired in violation of
his Fourth Amendment rights. Mr. Flynn also contends that an essential element
of the offense was never shown with respect to the second count, mandating
reversal of that conviction.
II.
In reviewing a district court's denial of a motion to suppress, we accept the
district court's findings of fact unless they are clearly erroneous. United States v.
Bute, 43 F.3d 531, 534 (10th Cir. 1994); United States v. Neu, 879 F.2d 805, 807-
08 (10th Cir. 1989). We review de novo the ultimate question of whether a search
or seizure was reasonable under the Fourth Amendment. Bute, 43 F.3d at 534.
The first issue in this appeal concerns Mr. Flynn's conviction for
possession with intent to distribute methamphetamine. Mr. Flynn appeals the
denial of his motion to suppress the evidence obtained by the officers, including
both the package dropped from the car at the top of the exit ramp and the package
Mr. Flynn's passenger presented to the officers who stopped the car. He contends
all evidence was obtained in violation of his Fourth Amendment rights. We
disagree.
As to the package dropped from the car, the Fourth Amendment allows for
warrantless search and seizure of abandoned property. United States v.
Hernandez, 7 F.3d 944, 947 (10th Cir. 1993). The test for abandonment is
whether the defendant retained a reasonable expectation of privacy in the
property. Id. If, for example, the defendant continues to try to protect the
property from the police, it has not been abandoned. Smith v. Ohio, 494 U.S. 541,
543-44 (1990) (holding bag thrown on hood of car not abandoned when police
had to remove defendant's hand from bag in order to search it).
In order to be effective, abandonment must be voluntary. It is considered
involuntary if it results from a violation of the Fourth Amendment. Hernandez, 7
F.3d at 947. "[P]olice pursuit or investigation at the time of abandonment does
not of itself render the abandonment involuntary." United States v. Jones, 707
F.2d 1169, 1172 (10th Cir. 1983); see also California v. Hodari, 499 U.S. 621,
629 (1991); United States v. Klinginsmith, 25 F.3d 1507, 1510 (10th Cir.1994).
However, property is considered to have been involuntarily abandoned if the
defendant discards it as a consequence of illegal police conduct. See, e.g., United
States v. Garzon, 119 F.3d 1446, 1451 (10th Cir. 1997) (finding property not
abandoned when left on bus after police issued unlawful order to remove all
possessions from bus). Mr. Flynn maintains he only discarded the property on
the ramp "as a result of . . . law enforcement's illegal conduct in operating a
narcotics checkpoint." Aplt. Reply Br. at 7. He relies on City of Indianapolis v.
Edmond, 531 U.S. 32 (2000), for the general proposition that drug checkpoints
constitute illegal police conduct and therefore his abandonment of the property
must be considered involuntary.
This reliance is misplaced. Mr. Flynn never reached a drug checkpoint. He
discarded the property prior to being stopped by the police. Up to that moment,
he acted voluntarily in response to a ruse established by the police (i.e. the signs
warning of a fictitious checkpoint on I-40). The posting of signs to create a ruse
does not constitute illegal police activity. See Klinginsmith, 25 F.3d at 1508. In
fact, had Mr. Flynn continued driving eastbound on I-40, he would never have
been stopped because the checkpoint warned of by the signs did not exist. Even
the police car ahead on I-40 was unoccupied. The officers put up the signs only
as a ruse to observe suspicious behavior by those who might take the nearest exit
after seeing the signs.
Mr. Flynn claims the officers waiting in a car on Ross Road, under the I-40
overpass, were operating an illegal drug checkpoint. The legality (or even the
existence) of a checkpoint on Ross Road, however, is irrelevant, as other officers
stopped Mr. Flynn before he turned onto Ross Road. The creation of a ruse to
cause the defendant to abandon an item is not illegal. See id. (approving
implicitly a nearly identical ruse). Here the defendant abandoned the property
before being stopped by the police. He retained no reasonable expectation of
privacy in the object. The abandonment in this situation was voluntary. See
Jones, 707 F.2d at 1172.
The police may stop a car when they have developed a reasonable
individualized suspicion of wrongdoing. City of Indianapolis, 531 U.S. at 37. In
the case before us, when the officers discovered the package thrown from the car
contained drugs, they had a reasonable individualized suspicion sufficient to stop
the car. Thus, the seizure of the second item Mr. Flynn sought to suppress the
package that Ms. Ketcher presented to police was also lawful, as probable cause
already existed at that point for a warrantless search and seizure.
We hold the district court did not err in denying Mr. Flynn's motion to
suppress the evidence. Reviewing de novo the ultimate question of
reasonableness under the Fourth Amendment, we conclude the seizure of evidence
in this case was valid.
III.
The second issue Mr. Flynn raises in this appeal concerns his conviction for
possession of a firearm. Mr. Flynn asserts the district court erred in convicting
him of this offense because there was no evidence that the firearm found in his
car was carried "during and in relation to" the underlying crime, as required by
the statute under which he was convicted. 18 U.S.C. 924(c). However, Mr.
Flynn pled guilty to this count and did not challenge the sufficiency of any
element of the indictment below. By entering a voluntary plea of guilty, Mr.
Flynn waived all non-jurisdictional defenses. United States v. Davis, 900 F.2d
1524, 1525-26 (10th Cir. 1990). We therefore affirm the district court's finding
of guilt as to this count of the indictment.
IV.
For the foregoing reasons, we AFFIRM the judgment of the district court.