Petition for Writ of Certiorari — Daryl Lee Ingram, Petitioner v. United States

Supreme Court briefFeb 23, 2018

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CAUSE NO. __________

IN THE SUPREME COURT OF THE UNITED STATES

====================================

DARYL LEE INGRAM,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

==================================

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

==================================

Respectfully submitted,

J. Lance Hopkins

CJA Panel Attorney

219 W. Keetoowah

Tahlequah, OK 74464

(918) 456-8603

Counsel for Petitioner

Daryl Lee Ingram

The Questions Presented for Review Expressed in the Terms and Circumstances of the

Case.

Whether the Supreme Court should reconsider and reverse the Court’s prior

ruling in Whren v. United States, 517 U.S. 806.116 S.Ct. 1769, 135 L.Ed.2d 89 (1996),

due to the fact that pretextual stops of automobiles by law enforcement violate the Fourth

Amendment to the United States Constitution.

List of All Parties to the Proceeding.

United States of America vs. Darly Lee Ingram.

Table of Contents and Table of Authorities.

Table of Contents

(a)

Page

The Question Presented for Review Expressed

in the Terms and Circumstances of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)

List of All Parties to the Proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)

Table of Contents and Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3, 4

(d)

Reference to the Official and Unofficial

Reports of Any Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Concise Statement of Grounds on which

Jurisdiction of this Court is Invoked . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Constitutional Provisions, Statutes, and

Rules which this Case Involves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(g)

Concise Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(h)

Direct and Concise Argument Amplifying the

Reasons Relied on for Allowance of the Writ . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)

(f)

(i)

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

Table of Authorities

Cases

Page

Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d. 132) (2007) . . . . . .

Delaware v. Heath, 929 A.2d 390 (Del.Super 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 18

State v. Ladson, 979 P.2d 833 (Wash. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12

State v. Ochoa, 206 P.3d 143 (NM 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18, 20, 22

Whren v. United States, 517 U.S. 806.116 S.Ct. 1769,

135 L.Ed.2d 89 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12, 17, 18, 20, 21, 22

Constitutional Provisions

Article I, Section 6 of the Delaware Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article II, Section 10 of the New Mexico Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

Fourth Amendment to the US Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 12, 17, 18, 19

Statutes

18 U.S.C. Sec. 841(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

18 U.S.C. Sec. 841 (b)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

21 Del. C. §4155(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Rules

Rule 14.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Rule 39.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Petitioner, by and through his attorney, J. Lance Hopkins, respectfully submits this

Petition for Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit. On

Petitioner’s behalf, counsel has submitted a Motion to Proceed In Forma Pauperis, a Proof of

Service, and a copy of the Order and Judgment from the appellate court.

This petition has been arranged in the order specified by Rule 14.1 of this Court. The

individual sections have been lettered to correspond with the subparagraphs of Rule 14.1.

Pursuant to Rule 39.2 of this Court, ten copies of this petition are being submitted for filing.

Reference to the Official and Unofficial Reports of Any Opinions.

United States v. Daryl Lee Ingram, 10th Cir. No. 16-6220, Opinion dated

February 2, 2018.

Concise Statement of Grounds on Which Jurisdicition of this Court is Invoked.

Date of Judgment sought to be reviewed: February 2, 2018

ii.

Date of any order regarding rehearing:

iii.

Cross-Petition: None

iv.

Statutory Provision Believed to Confer Jurisdicition:

None

This case involves review of a count of conviction involving a United States Criminal

Statute, and this Court has jurisdiction over such interpretation and application of United States

Statutes.

Constitutional Provisions, Statutes and Rules Which this Case Involves.

Constitutional provisions: Right against Unreasonable Searches and Seizures

pursuant to the Fourth Amendment to the United States Constitution.

ii.

Statutes involved: 18 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 841 (b)(1)(A).

Statement of the Case:

The Petitioner, Daryl Lee Ingram was indicted with possessing with intent to distribute

709 grams of a mixture of a substance containing a detectible amount of cocaine base, in

violation of 18 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 841 (b)(1)(A). Mr. Ingram was found

guilty by jury following trial, and was subsequently sentenced to mandatory life-imprisonment.

His conviction was affirmed by the Tenth Circuit Court of Appeals.

In February 2015, law enforcement agents received information from a confidential

informant (CI) that Anthony Ray Anderson was selling cocaine base from a white Honda Civic.

A subsequent registration check revealed that the Honda was registered to Lameisha Blackshire

at 3344 Southwest 24th Street in Oklahoma City, Oklahoma. On February 17, 2015, agents

conducted surveillance at that residence, and a short time later, two African-American males,

later determined to be the Petitioner, Daryl Lee Ingram, and Michael Shandelon Brown, left the

residence and entered a grey 2015 Kia Forte, which had previously been observed parked in front

of the residence. Agents observed that one of the men who entered the front-passenger side of

the vehicle, later identified as the Petitioner, Mr. Ingram, was carrying a black bag. After the

vehicle departed the residence, agents contacted uniformed officers to make an identification of

the occupants in the vehicle.

In the 2500 block of South Independence Avenue, officers stated they observed the

vehicle drive left of center and therefore decided to initiate their overhead lights to conduct a

traffic stop. The vehicle stopped approximately three blocks later after turning eastbound on

Southwest 28th Street. As officers approached the vehicle on foot, the driver accelerated rapidly

and attempted to elude the officers by speeding to approximately 60 miles per hour. The officers

got back in their vehicle and began to pursue the suspect vehicle. The driver of the suspect

vehicle eventually lost control in trying to make a turn, and the vehicle came to a stop in the yard

of a residence. Both occupants of the vehicle, Mr. Brown and Mr. Ingram, fled on foot and were

pursued and eventually cut off and apprehended and arrested by the officers. The officers

searched the vehicle and found a black bag on the front passenger side floorboard. A search of

the black bag revealed the recovery of approximately 709 grams of substance that contained a

detectible amount of cocaine base, as well as $4,980.00 in U.S. currency.

After his arrest, the Petitioner, Mr. Ingram, was interviewed by officers, waived his

Miranda rights, and gave self-incriminating statements. His statements led to the issuance of a

warrant to search an apartment he maintained in Dallas, Texas, wherein officers recovered drug

ledgers and $3,000 in currency during the search.

Motion to Suppress

Mr. Ingram’s co-defendant, Mr. Brown, filed a Motion to Suppress, contending that the

stop of the vehicles by the officers was a violation of the Fourth Amendment to the United States

Constitution. Despite the fact that the Supreme Court held in Brendlin v. California, 551 U.S.

249, 127 S. Ct. 2400, 168 L. Ed. 2d. 132) (2007), that a passenger has standing to challenge the

constitutionality of an automobile stop, trial counsel for Mr. Ingram chose not to join in the

motion.

In his Motion to Suppress, Brown through counsel set forth the following facts:

In February of 2015, Detective Jeff Reed (hereinafter “Detective Reed” or “Reed”) of the

Oklahoma City Police Department received information from a confidential informant that

Anthony Anderson (hereinafter “Anderson”), an alleged member of the Rollin’ 90s Crips, was

allegedly distributing cocaine in the Western District of Oklahoma from Anderson’s white

Honda Civic. A registration check of the Honda Civic revealed that the vehicle was registered

to Lameisha Blackshire at 3344 S.W. 24th Street (hereinafter “the residence”) in Oklahoma

City. On February 17, 2015, while Detective Reed was conducting surveillance on the

residence, Reed observed two black males arrive at the residence in a gray Kia Forte, exit

their vehicle, and enter the residence. After a few minutes, Detective Reed observed Anderson

exit the residence and look into the Honda Civic, but could not ascertain whether Anderson

retrieved or placed anything inside the Honda. Detective Reed then contacted Lt. Coniglione of

the Oklahoma City Police Gang Enforcement Unit and instructed Coniglione to establish a

perimeter and initiate a traffic stop on the Kia Forte as soon as it left the residence. Soon

thereafter, the two black males exited the residence, returned to their vehicle, began driving

eastbound on S.W. 24th Street, and turned south onto S. Independence Avenue.

As the Kia proceeded southbound and approached the 2500 block of S.

Independence, Sgt. Ritchie and Lt. Coniglione allegedly observed the Kia cross the center of the

road. Neither Sgt. Ritchie nor Lt. Coniglione indicated that they observed any further driving

irregularities. Sgt. Ritchie activated his emergency equipment and the Kia stopped at

approximately S.W. 28th and Independence. As Sgt. Ritchie approached the Kia and attempted

to make contact with the driver, the driver of the Kia accelerated the vehicle and attempted to

elude the officers. After a brief pursuit, the Kia stopped in the area of S.W. 21st Street and both

suspects fled on foot. Both suspects, identified as the Petitioner, Daryl Ingram (passenger) and

Michael Brown (driver), were apprehended by law enforcement and taken into custody. A

search of the Kia by law enforcement revealed 709 grams of cocaine and $4,980.00 in U.S.

currency, that were both found in a black bag on the passenger side of the vehicle.

In his motion to suppress, Brown contended that the initial traffic stop of his vehicle was

not justified, because the isolated incident of his vehicle drifting left of center did not establish

probable cause or reasonable suspicion that he violated Oklahoma City municipal traffic law.

The Government filed a response opposing the motion (District Court Document 48). The

District Court held a hearing on the motion on May 28, 2015,

At the motion hearing, Lt. Coniglione testified that the location on the street where

Brown’s and Ingram’s vehicle was stopped did not have yellow line markers:

Q. Let's talk a little bit more about this street. Would it be fair to say that this street

is characterized by intermittent lane markings?

A. Yes.

Q. Correct. In other words, it is not like we have a solid yellow line all the way down

the street, correct?

A. That's right, yes.

Q. It is your testimony that Mr. Brown drove left of center at approximately the 2500

block of South Independence?

A. That's probably pretty close, it was in between 25th and where the railroad grade

begins.

Q. That is actually quite a bit of distance away from that point of view

on Government's Exhibit 1, which is published before the Court right

now. That would be probably about four or five blocks?

A. No.

Q. We are looking at the 2800 block of South Independence.

A. The best thing I can do to tell you where it occurred is it occurred

between 25th Street, and before the yellow line markers or the grade

crossing began.

Lt. Coniglione also testified that the amount of time that Ingram’s and Brown’s vehicle

drifted left of center was brief.

Q. How long did this car drive left of center?

A. I would say it was brief.

Q. It was brief?

A. Yes, sir.

In addition, Lt. Coniglione testified that the location of the center of the road was

ambiguous:

Q. This may be a silly question, but how do you judge where the center of the road

is, because that's kind of ambiguous, isn't it? What appears center to you may be

different from what I believe, correct?

A. I'm sure people have different opinions, yes.

Q. Sure, it is ambiguous, is it not?

A. You could call it that, yes.

After the hearing was concluded, Court subsequently entered a written order and opinion

denying the motion.

Direct and Concise Argument Amplifying the Reason Relied on for Allowance of the

Writ.

PROPOSITION ONE: The Supreme Court must reconsider and reverse the Court’s prior

ruling in Whren v. United States, 517 U.S. 806.116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), due to

the fact that pretextual stops of automobiles by law enforcement violate the Fourth

Amendment to the United States Constitution.

The stop of the vehicle in the matter bar was obviously pretextual, and the law

enforcement officer who stopped the vehicle in which Mr. Ingram was a passenger did not deny,

and basically admitted, that the stop was pretextual. The Government does not deny that the stop

was pretextual, but throughout the case has argued that the stop was lawful under Whren v.

United States, supra.

The Supreme Court decision in Wren has not been without controversy, and multiple

state courts have declined to follow its holding when applying pretextual stops to their respective

state constitutions. Many legal commentators argue that Whren has led to a dramatic increase in

racial-profiling by law enforcement.

In State v. Ladson, 979 P.2d 833 (Wash. 1999), police officers Mack and county

sheriff's detective Ziesmer were on proactive gang patrol. The officers explained they did not

make routine traffic stops while on proactive gang patrol, although they used traffic infractions

as a means to pull over people in order to initiate contact and questioning. The trial court

factually found:

While on gang patrol, officer Mack selectively enforces traffic violations

depending on whether he believes there is the potential for intelligence gathering in

such stops.

On the day in question Richard Fogle attracted the attention of officers Mack and

Ziesmer as he drove by. Fogle and his passenger Thomas Ladson were both African–American.

Although the officers had never seen Ladson before, they recognized Fogle from an

unsubstantiated street rumor that Fogle was involved with drugs. The trial court found, “Officer

Mack's suspicions about Fogle's reputed drug dealing was his motivation in finding a legal

reason to initiate the stop of Fogle's vehicle.”

The officers tailed the Fogle vehicle looking for a legal justification to stop the car. They

shadowed the vehicle while it refueled at a local filling station and then finally pulled Fogle over

several blocks later on the grounds that Fogle's license plate tabs had expired five days earlier.

The officers did not deny the stop was pretextual.

The police then discovered Fogle's driver's license was suspended and arrested him on the

spot. After securing Fogle in handcuffs in the squad car, the police conducted a full search of the

car “incident to Fogle's arrest.” Then they turned their attention to the passenger, Thomas

Ladson. They ordered Ladson to exit the vehicle, patted him down, and required him to stand

against the car while they searched its interior. The police searched Ladson's jacket which was

in the passenger's seat and found a small handgun. Ladson was placed under arrest and searched.

On Ladson's person and in his jacket the police found several baggies of marijuana and some

$600 in cash.

Ladson was charged with unlawful possession of a controlled substance with intent to

deliver while armed with a deadly weapon, and possession of a stolen firearm. He filed a pretrial

motion to suppress the evidence on the grounds it was obtained during an unconstitutional

pretextual traffic stop. The trial court agreed and granted the motion. The State appealed and

shortly thereafter the United States Supreme Court decided Whren v. United States,supra ,

holding pretextual traffic stops do not violate the Fourth Amendment to the United States

Constitution. Accordingly the Court of Appeals, relying on Whren, reversed the suppression

order. Ladson appealed, and the Supreme Court of Washington reversed the Court of Appeals

and reinstated the trial court order suppressing the motion, finding that pretextual stops violated

the Constitution of the State of Washington.

The Supreme Court of Washington stated the following:

We conclude the citizens of Washington have held, and are entitled to hold, a

constitutionally protected interest against warrantless traffic stops or seizures on a

mere pretext to dispense with the warrant when the true reason for the seizure is

not exempt from the warrant requirement. We therefore hold pretextual traffic

stops violate article I, section 7, because they are seizures absent the “authority of

law” which a warrant would bring. Const. art. I, § 7.

State v. Ladson, supra, at 842.

Accordingly, the Washington Supreme Court chose not to follow the United State

Supreme Court decision in Whren in adjudicating the invalidity of pretextual stops, finding

prextual stops in violation of the Constitution of the State of Washington. Therefore, the

Supreme Court should consider revisiting the decision in Whren. The Fourth Amendment of the

United States Constitution prohibits warrantless traffic stops or seizures on a mere pretext to

dispense with the warrant when the true reason for the seizure is not exempt from the warrant

requirement. Pretextual stops violate the Fourth Amendment, because they are seizures “absent

probable cause”.

The Superior Court of Delaware, Kent County, also declined to follow Whren in

Delaware v. Heath, 929 A.2d 390 (Del.Super 2006).

Officer Shyers of the Harrington, Delaware Police Department arrived at a home to serve

warrants in a drug investigation. After failing to make contact with the individuals, Officer

Shyers returned to his patrol car, intent on obtaining a search warrant for the residence. As

Officer Shyres backed out of the driveway of the home and into the intersection of New and

Thorpe Streets, the defendant, Vernon Heath, brought his vehicle, a black Chrysler 300, to a stop

before the driveway to allow the officer's car onto the roadway. Upon making eye contact with

the defendant, Officer Shyres rolled down his window, and inquired whether the defendant was

turning onto New Street, which Officer Shyers testified he knew to be a high drug area of

Harrington. The defendant responded that he was headed “around the corner” toward Clark

Street. The conversation then ended. Defendant continued on Thorpe Street making a left-hand

turn onto East Street, which intersects with Clark Street.

Upon seeing the tags to the Defendant's vehicle, Officer Shyres ran the registration on his

in-car computer, and noted that the vehicle came back to a Bridgeville or Greenwood address.

He testified that this information aroused his suspicions, because those two towns are south of

Harrington, whereas the defendant's intended course took him north. The officer doubled back

to follow the defendant, encountering him before the defendant made the left-hand turn from

East Street onto Clark Street. The officer continued his pursuit as the defendant made the turn

onto Clark Street, passing both Ward Street and Delaware Avenue. As the defendant crossed the

Conrail railroad tracks that intersect Clark Street, he activated his left turn signal, turning south

onto Hanley Street. Officer Shyers then activated his emergency equipment. In response, the

defendant pulled his vehicle over to the side of Hanley Street.

In the affidavit of probable cause, Officer Shyres stated the reason for the stop was the

defendant's violation of 21 Del. C. §4155(b), which stated that “[a] signal of intention to turn or

move right or left when required shall be given continuously during not less than the last 300 feet

or more than one-half mile traveled by the vehicle before turning.” According to Officer Shyres,

the defendant signaled for approximately 20 to 30 feet prior to turning left onto Hanley Street.

Officer Shyres proceeded to make a traffic violation stop, though he admitted on crossexamination at the suppression hearing that his additional purpose in stopping the vehicle was to

investigate whether the defendant or his passenger were connected with the warrants the officer

had attempted to serve on New Street.

Officer Shyres approached the vehicle, and requested the defendant's license, registration,

and insurance. During this initial contact with the defendant, the officer noticed the defendant's

eyes were bloodshot. The officer stated, however, that the defendant did not appear nervous or

confused or under any substance influence. Additionally, Officer Shyres observed many air

fresheners hanging from the handles in the ceiling of the backseat of the defendant's vehicle.

Based on training Officer Shyres received in drug interdiction courses, he testified that several

air fresheners can be used as a masking agent to hide the bouquet of certain controlled

substances. The testimony did not make mention of the actual number of air fresheners in the

backseat, or whether any were hanging from the rear-view mirror. When Officer Shyres spoke

to the defendant, he did not notice any odor emanating from the air fresheners, nor did he notice

an odor of alcohol, marijuana, or other controlled substance associated with the defendant or

coming from the car.

At this point, at the officer's request, the defendant produced his license. Officer Shyres

returned to his vehicle to run the defendant's license through the computer system. The license

was valid, and the defendant had no active warrants. Although the defendant was later charged

with Failure to Have Registration Card in Possession and Failure to Have Insurance

Identification in Possession, the officer testified he was unsure if the defendant provided either

the registration or proof of insurance. Despite the confusion on this issue, the officer knew, from

having previously run the tag number, that the vehicle was properly registered to a person in

Bridgeville or Greenwood, who the officer would later discover was the defendant's sister. In

addition, while the defendant's passenger, who of course was not driving, was unable to produce

a driver's license, he did provide Officer Shyres with his name, permitting the officer to confirm

the passenger's identity, and to determine the absence of any warrants for his arrest. During this

time, Office Longski arrived on the scene to assist Officer Shyres with the traffic stop.

Instead of issuing the Defendant a citation for the traffic offenses for which he was

stopped, allowing him to continue on his way, Officer Shryres asked the defendant out of the car

to conduct what he termed a “road side investigation.” At the suppression hearing, Officer

Shyres was asked if this continued investigation had anything to do with the defendant's alleged

failure to signal. He responded that it did not.

Later in his testimony he stated that he would not have stopped the Defendant had a

traffic violation not been committed.

After asking the defendant to step out of the vehicle the officer conducted a pat down

search. That, he stated, was his usual practice. At the suppression hearing, Officer Shyres

testified that his statement at the preliminary hearing that he never had any indication that either

the defendant or his passenger was armed was true. Once the pat down was completed, Officer

Shyres then began questioning the defendant as to his business abroad and destination. The

Defendant replied that he was returning home to Greenwood (which is south of the detention

site) after an evening at the Midway Slots where he had won $300 to $400. Officer Shyres

believed this story to be implausible because the defendant was “traveling north” and Hanley

Street was not the most direct route out of town. The defendant responded that he always drove

through Harrington in order to get home. In addition, the defendant stated that he had just

dropped off a friend nearby, although he could not provide a name or the location. Officer

Shyres stated that he was suspicious of even the defendant's story regarding his visit to Midway

Slots, because the passenger was 19 years old, and one must be 21 in order to enter the slot

parlors. The exchange ended. Officer Shyres had the defendant stand between his police vehicle

and Officer Longski's vehicle.

Next, Officer Shyres asked the passenger to step out of the vehicle. He then immediately

conducted a pat down search. During the search, the officer felt a large soft item in his top right

pocket. The passenger stated it was cigarettes, but the officer did not believe it felt like

cigarettes. Officer Shyres reached in the passenger's pocket, and retrieved 29 sandwich bags

containing a green leafy substance which later testing revealed to be marijuana. The passenger

was immediately arrested and placed in the backseat of Officer Shyres's patrol car.

At this point, Officer Shyres asked the defendant for his consent to search the vehicle.

Consent was granted. Officer Longski conducted the search, discovering a small white chunky

substance on the rear floor behind the driver's seat, which field-tested positive as cocaine. The

Defendant was placed in Officer Longski's patrol car. Both the defendant and passenger were

transported to the Harrington Police Department. Upon arriving at the station, the defendant was

placed in an interrogation room. The two officers watched on closed circuit television as the

defendant placed an unidentifiable item into the garbage can. The defendant then placed a gum

wrapper in the can, pushed both items to the bottom, and urinated in the can. The officers then

placed the defendant in a holding cell, and searched the garbage can. The search revealed what

later field-tested positive as 18 grams of cocaine. Officer Shyres stated that the interrogation

room is cleaned on Sundays and Wednesdays. This occurred on a Monday night. According to

the testimony, no one else had been in the room before the defendant.

As a result of the foregoing, the defendant was charged with multiple drug related

offenses.

The defendant filed a motion to suppress, contending that the initial traffic stop was

pretextual, as it was effected for the purpose of conducting an otherwise illegal search, in

violation of Article I, Section 6 of the Delaware Constitution.

The language of Article I, Section 6 of the Delaware Constitution, which is very similar

to the Fourth Amendment to the United States Constitution, states as follows:

The people shall be secure in their persons, houses, papers and possessions,

from unreasonable searches and seizures; and no warrant to search any place, or

to seize any person or thing, shall issue without describing them as particularly as

may be; nor then, unless there be probable cause supported by oath or affirmation.

The Fourth Amendment to the United States Constitution states the following:

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and no

warrants shall issue, but upon probable cause, supported by oath or affirmation,

and particularly describing the place to be searched, and the persons or things to be

seized.

Although the stop was obviously pretextual, the State argued that the stop was lawful

under the rationale of the United States Supreme Court in Whren. The Superior Court declined

to follow the Supreme Court’s rational in Whren, finding that pretextual stops are in violation of

Article I, Section 6 of the Delaware Constitution, and therefore granted the defendant’s motion to

suppress.

The Superior Court stated the following:

Allowing the police unfettered discretion to use a Title 21 traffic violation to

search for evidence to support an officer's hunch about a Title 11 or Title 16 offense

becomes, in circumstances confronting the Court in this case, the equivalent of

granting the police a general warrant to search and seize virtually all travelers on

the roads of this State. Is, then, the mere possessing of probable cause to stop a

vehicle for a traffic violation not sufficient to secure the constitutionality of the stop

for unrelated searches? While the expectancy of privacy has been determined to be

decidedly diminished as to automobiles as compared to homes, some fundamental

rights do exist. Article I, Section 6, in the context of the purely pretextual traffic

search, is significant by its prevention of the general warrant. Based on the

language, previous interpretation, and unique history of Article I, Section 6, purely

pretextual stops run afoul of the underlying purpose of that provision. To be clear,

the Court certainly is not holding that all stops based on probable cause of a

violation of a Title 21 traffic offense are somehow unconstitutional. Rather, the

concern is with those traffic stops demonstrated to have been made exclusively for

the purpose of investigating an officer's hunch about some other offense.

Delaware v. Heath, supra, at 402.

Under the rational of the United States Supreme Court decision in Whren, police have

been granted a general warrant to search and seize virtually all travelers on the roads of the

United States and her territories. Such pretextual stops clearly run afoul of the underlying

purpose of the Fourth Amendment to the United States Constitution. Traffic stops demonstrated

to have been made exclusively for the purpose of investigating an officer's hunch about some

other offense without question run afoul of the Fourth Amendment.

The Supreme Court of New Mexico also failed to follow the U.S. Supreme Court’s

rational in Whren, in State v. Ochoa, 206 P.3d 143 (NM 2008).

During a drug trafficking investigation, Agent Edmondson, an officer with the Drug Task

Force, saw an unfamiliar vehicle parked at the residence of a suspected drug trafficker. The

agent returned several times to check on the vehicle. During one of those checks, the agent saw

the vehicle driving away from the residence. The agent testified that the driver was not wearing

a seatbelt.

Agent Edmondson testified he wanted to identify and question the driver. So, he radioed

a uniformed officer, Officer Martinez, to see if the officer could stop the vehicle. Officer

Martinez testified that Agent Edmondson told him "there was a black utility vehicle heading

north on 7th and the driver wasn't wearing a seatbelt."

Based on Agent Edmondson's information, Officer Martinez located and followed the

vehicle. The officer testified that he could not see from behind the vehicle whether the driver was

wearing a seatbelt because the car had tinted windows. The officer followed for a short distance

then stopped and approached the vehicle. The driver's side window was down and the officer

immediately recognized the driver as the defendant, whom the officer knew had outstanding

warrants for his arrest. Officer Martinez testified that he did not recall whether the defendant

was wearing a seatbelt.

Officer Martinez confirmed the warrants, arrested the defendant, then placed him in the

officer's patrol car. Meanwhile, Agent Edmondson and two other officers arrived. Agent

Edmondson spoke with the defendant. Defendant gave the agent consent to search the vehicle

and told the agent there was a pipe and methamphetamine in the vehicle. The officers found the

pipe and, with defendant's help, the methamphetamine. Officer Martinez also conducted an

inventory search and found a handgun. Defendant was charged with possession of a controlled

substance and possession of drug paraphernalia.

Defendant's motion to suppress evidence arising from the traffic stop alleged that the

vehicle search was in violation of the Fourth Amendment of the United States Constitution and

Article II, Section 10 of the New Mexico Constitution. The District Court denied the Motion.

The defendant entered a conditional guilty plea and appealed the District Court's decision to the

Court of Appeals of New Mexico. The Court of Appeals reversed the District Court on other

grounds, holding that the stop violated the misdemeanor arrest rule, which required that the

offense be committed in the officer's presence to justify a warrantless arrest for its

violation." The State of New Mexico filed a Petition for Certiorari with the Supreme Court of

New Mexico. The New Mexico Supreme Court reversed the Court of Appeals, finding that the

misdemeanor arrest rule does not apply to investigatory stops; however, the Supreme Court

remanded to the Court of Appeals to determine whether the stop was pretextual and, if so,

whether Article II, Section 10 of the New Mexico Constitution prohibited pretextual stops.

On remand, the New Mexico Court of Appeals held that the stop was pretextual, and that

the pretextual stop was prohibited by the Constitution of New Mexico.

In making its decision, the New Mexico Court of Appeals declined to follow the rationale

of the United States Supreme Court in Whren.

The Court of Appeals of New Mexico stated the following:

The Whren opinion, authorizing pretextual traffic stops, has suffered

widespread criticism of its legal reasoning, policy choices, and consequences. See,

e.g., Phyllis W. Beck & Patricia A. Daly, State Constitutional Analysis of Pretext

Stops: Racial Profiling and Public Policy Concerns, 72 Temp. L.Rev. 597, 597

(1999) (“Scholars, journalists, and lawyers promptly and vociferously assailed

the Whren decision as legally incorrect, technically flawed, and fundamentally

unfair.”); David O. Markus, Whren v. United States: A Pretext to Subvert the

Fourth Amendment, 14 Harv. BlackLetter L.J. 91, 96–109 (1998) (explaining how

the Whren decision disregarded the purpose of the Fourth Amendment's

“reasonableness” requirement, inexplicably dismissed the Supreme Court's own

statements condemning police pretext, relied on unpersuasive evidentiary problems

with discerning subjective intent, and disempowered the courts from ferreting out

police perjury and weighing the evidence); Patricia Leary & Stephanie Rae

Williams, Toward a State Constitutional Check on Police Discretion to Patrol the

Fourth Amendment's Outer Frontier: A Subjective Test for Pretextual Seizures, 69

Temp. L.Rev. 1007, 1025 (1996) (describing the Whren decision as “a rickety piece

of judicial scholarship ... built upon unreasoned distinctions, perversions of

precedent, a question-begging unarticulated and unsupported premise,

bootstrapping, logical inconsistencies, and a narrow vision of the Fourth

Amendment”).

State v. Ochoa, supra, at 148-149.

The New Mexico Court of Appeals also stated:

One of the main criticisms of Whren is its failure to acknowledge that

because the extensive traffic code regulates all manner of driving “ ‘[w]hether it be

for failing to signal while changing lanes, driving with a headlight out, or not giving

‘full time and attention’ to the operation of the vehicle, virtually the entire driving

population is in violation of some regulation as soon as they get in their cars, or

shortly thereafter.' ” Ladson, 979 P.2d at 842 n. 10 (quoting Peter Shakow, Let He

Who Never Has Turned Without Signaling Cast the First Stone: An Analysis of Whren

v. United States, 24 Am. J. Crim. L. 627, 633 (1997)). We have previously recognized

that the underlying concern of the United States Supreme Court and other courts

and commentators addressing police pretext is the unbridled police discretion that

results from the extensiveness of the traffic code:

[G]iven the pervasiveness of ... minor [traffic] offenses and the ease with

which law enforcement agents may uncover them in the conduct of virtually

everyone, [the requirement of a traffic violation] hardly matters, for ... there exists

“a power that places the liberty of every man in the hands of every petty officer,”

precisely the kind of arbitrary authority which gave rise to the Fourth Amendment.

State v. Bolton, 111 N.M. 28, 33, 801 P.2d 98, 103 (Ct.App.1990) (alteration in original)

(quoting 1 Wayne R. LaFave, Search and Seizure, § 1.4(e), at 95 (2d ed. 1987)).

This concern with practically limitless discretion afforded officers enforcing traffic

laws is not merely hypothetical. Given the ubiquity of driving in this country, it is

ordinary traffic stops that are “among the most common encounters regular citizens

have with police.” David A. Harris, The Stories, the Statistics, and the Law: Why

“Driving While Black” Matters, 84 Minn. L.Rev. 265, 298 (Dec. 1999). Furthermore,

“the statistics show that [pretextual traffic stops] are not simply disconnected

anecdotes or exaggerated versions of personal experiences, but rather established

and persistent patterns of law enforcement conduct.” Id. at 299. Thus, we are not

persuaded as the Whren court was, that probable cause and reasonable suspicion

standards are sufficient to limit police discretion to enforcement of traffic offenses.

This is because driving a vehicle is ubiquitous in American life. The extensive

regulation of all manner of driving subjects virtually all drivers to the whim of

officers who choose to selectively enforce the traffic code for improper purposes. We

believe the United States Supreme Court has drawn a distinction without a

difference. The concerns that justify testing officers' subjective motivations in

suspicionless checkpoints and inventory searches as a practical matter are at least

equally applicable to “ordinary” traffic stops. See Wayne R. LaFave, The Routine

Traffic Stop From Start to Finish: Too Much “Routine,” Not Enough Fourth

Amendment, 102 Mich. L.Rev. 1843, 1854 (2004) (“Indeed, it is likely true that the

probable-cause requirement in the context of minor traffic offenses provides

considerably less protection against arbitrariness than do the ‘standardized

procedures' and ‘reasonable legislative or administrative standards' requirements

for inventories and administrative inspections, respectively.” (internal quotation

marks omitted)).

State v. Ochoa, supra, at 150.

As a result of the United States Supreme Court’s decision in Whren, all drivers on

America’s roadways are subjected to the whim of officers who choose to selectively enforce the

traffic code for improper purposes. The Whren opinion has suffered widespread criticism of its

legal reasoning, policy choices, and consequences. Scholars, journalists, and lawyers have

promptly and vociferously assailed the Whren decision as legally incorrect, technically flawed,

and fundamentally unfair. Considering such controversy and criticism, in combination with the

large number of state courts that have declined to follow the rationale of the Whren decision in

adjudicating the state constitutionality of pretextual stops, now is the appropriate time for the

United States Supreme Court to reconsider its two-decade-old decision in Whren.

CONCLUSION

The stop of the vehicle in the matter bar was obviously pretextual, and the law

enforcement officer who stopped the vehicle in which Petitioner was a passenger did not deny,

and basically admitted, that the stop was pretextual. The Government does not deny that the stop

was pretextual, but throughout the case has argued that the stop was lawful under Whren v.

United States, supra.

The Supreme Court decision in Wren has not been without controversy, and multiple

state courts have declined to follow its holding when applying pretextual stops to their respective

state constitutions. Many legal commentators argue that Whren has led to a dramatic increase in

racial-profiling by law enforcement.

Accordingly, it is time for the Supreme Court to reconsider its decision in Whren, hold

the prextual stops violate the Fourth Amendment, and issue a Writ of Certiorari and ultimately

reverse Mr. Ingram’s convictions.

Appendix:

Opinion delivered upon the rendering of judgment by the court whose

United States v. Daryl Lee Ingram, No. 16-6220 (10th Cir., February 2,

2018).

ii.

Any other opinions rendered in the case necessary to ascertain the grounds of

judgment:

None

iii.

Any order on rehearing:

None

iv.

Judgment sought to be reviewed other than opinion referenced in (1): None

CONCLUSION

For the foregoing reasons, Petitioner respectfully requests that a Writ of Certiorari issue

for review of the Order and Judgment of the United States Court of Appeals for the Tenth Circuit

in United States v. Daryl Lee Ingram, No. 16-6220 (10th Cir., February 2, 2018).

Respectfully submitted,

BY: _/s/ J. Lance Hopkins___________

J. Lance Hopkins, OBA#14852

CJA Panel Attorney

219 W. Keetoowah

Tahlequah, OK 74464

(918) 456-8603

(918) 456-1407 (fax)

Lance.Hopkins@lunalunallp.net

bacaviola@yahoo.com

Counsel for Petitioner

Daryl Lee Ingram

CERTIFICATE OF COMPLIANCE

As required by Fed.R.App. P.32(a)(7)(C), I certify that this petition for certiorari is

proportionally spaced and contains 5,935 words. I relied on Microsoft Word count to obtain

word count, and I used Times New Roman, 12 pt.

I certify that the information on this form is true and correct to the best of my knowledge

and belief formed after a reasonable inquiry.

_/s/ J. Lance Hopkins

J. Lance Hopkins

Appellate Case: 16-6220

Document: 01019939692

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UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA,

Page: 1

FILED

United States Court of Appeals

Tenth Circuit

February 2, 2018

Elisabeth A. Shumaker

Clerk of Court

Plaintiff - Appellee,

DARYL LEE INGRAM, a/k/a Black, a/k/a

Clacc, a/k/a Ninety Black, a/k/a BJ,

No. 16-6220

(D.C. No. 5:15-CR-00053-M-1)

(W.D. Okla.)

Defendant - Appellant.

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before HARTZ, PHILLIPS, and MORITZ, Circuit Judges.

_________________________________

Daryl Lee Ingram filed two appeals challenging separate but related drug

convictions. Here, Ingram contests his conviction for possession with intent to

distribute cocaine base, or crack cocaine, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(A)(iii). Specifically, he disputes the legality of the traffic stop that led to his

arrest. We conclude that the traffic stop was lawful. Exercising jurisdiction under 28

U.S.C. § 1291, we affirm.

* 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.

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BACKGROUND

The traffic stop

During a multi-agency federal and state investigation into the Rollin’ 90’s

gang in Oklahoma City, Oklahoma, a confidential informant told Detective Jeff Reed

of the Oklahoma City Police Department that a man named Anthony Anderson was

selling crack cocaine from a white Honda Civic. Before receiving the tip, Detective

Reed knew that Anderson was a Rollin’ 90’s gang member. Detective Reed also

knew that Anderson had felony drug convictions. Acting on the informant’s tip,

Detective Reed checked the Honda’s registration and learned that the car was

registered to Lameisha Blackshire at 3344 Southwest 24th Street in Oklahoma City.

On February 17, 2015, Detective Reed surveilled 3344 Southwest 24th Street.

As he drove down the street in an unmarked police car, Detective Reed “passed

within a few feet” of Michael Shandelon Brown and Ingram, who were in a grey Kia

Forte traveling the other direction. Suppl. R. Vol. III at 296:1–13. Detective Reed

took a quick glance at the Kia’s occupants, one of whom he believed was Tyree

Cade. Detective Reed knew that Cade had an active felony warrant and was wanted

in a drug conspiracy investigation. Suppl. R. Vol. III at 289:10–290:3. Detective

Reed hadn’t previously encountered Brown or Ingram. Rather, Detective Reed

thought Brown was Cade because Brown’s “features were similar” to Cade’s and

Detective Reed knew that the residence at 3344 Southwest 24th Street was associated

with the Rollin’ 90’s. Id. at 285:22–24, 286:2–5, 289:17–290:3.

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Detective Reed continued driving and parked in a vacant house’s driveway

down the street. Meanwhile, Brown and Ingram parked in front of 3344 Southwest

24th Street. Detective Reed positioned himself so he could see the Kia and reached

for a pair of binoculars to see whether he was correct about Cade, but by the time he

got situated, Brown and Ingram were already on the front porch of 3344 Southwest

24th Street, headed inside.

Next, Detective Reed called the Oklahoma City Police Department’s Gang

Enforcement Unit, specifically, Lieutenant Robert Coniglione, to tell him that he

believed Cade was at 3344 Southwest 24th Street. Detective Reed asked Lieutenant

Coniglione whether he “and his troops could come over” to the house “to set up on”

the Kia, so they “could stop it to see if Tyree Cade was in the car.” Suppl. R. Vol. III

290:19–21. After requesting assistance, Detective Reed surveilled the house for

another fifteen minutes, during which time he saw Anderson (the alleged white

Honda Civic crack-cocaine dealer) come out of the house and lean into the Honda

parked in the driveway. He didn’t see whether Anderson put something into the car

or took anything out of it. A few minutes later, Detective Reed saw Brown and

Ingram leave the house, get back into the Kia, and drive away. Detective Reed

noticed that the person he believed might be Cade, but who was actually Brown, was

driving the car, and that Ingram, whom Detective Reed hadn’t encountered before

this incident, was the passenger. He also noticed that when Ingram got back into the

Kia, he was carrying a black bag.

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Lieutenant Coniglione and his riding partner, Sergeant Andrew Ritchie,

responded to Detective Reed’s assistance request. When they arrived in the area,

Detective Reed told Lieutenant Coniglione which direction the Kia had traveled.

Lieutenant Coniglione and Sergeant Ritchie quickly found the Kia in the

neighborhood of 3344 Southwest 24th Street and followed it by two or three car

lengths. While following the Kia, Lieutenant Coniglione saw the Kia fail to

“maintain its position in its lane” and “drift[] left of center” in the road. Suppl. R.

Vol. III at 309:18–20. Lieutenant Coniglione testified that he saw the Kia cross the

center of the road by about “a quarter of a vehicle width.” Id. at 312:9–11. The time

was 3:15 p.m., and the officers’ view was unobstructed. Even though the road didn’t

have a painted center line where Lieutenant Coniglione had seen Brown drift left of

center, he could see a yellow center line farther down the “[r]elatively straight” road.

Id. at 310:13–18, 311:7–11, 313:13–16.

Sergeant Ritchie and Lieutenant Coniglione activated their car’s emergency

lights, and the Kia stopped. Lieutenant Coniglione and Sergeant Ritchie stepped out

from the car and walked toward the Kia. When they reached the rear bumper, “the

driver just put [the Kia] in gear and fled the scene.” Id. at 316:2–4. Sergeant Ritchie

and Lieutenant Coniglione returned to their car and “chased after” the Kia, reaching

speeds of 60 miles per hour in a 25-mile-per-hour zone. Id. at 98:12–17, 316:5–9.

While taking a turn too fast, the driver lost control of the Kia, crashed into the front

yards of some houses lining the street, and became stuck.

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In response to radio transmissions, Detective Wes Cadena and Sergeant

George Anderson separately responded to the car chase, learning from a dispatcher

that the Kia had crashed. Upon arriving, the two officers saw Brown and Ingram flee

the Kia on foot. The two officers chased Brown and Ingram through a yard, past a

guard barrier, down an embankment, and up a creek bed before finally subduing and

arresting them.

After Detective Cadena and Sergeant Anderson arrested Brown and Ingram,

Lieutenant Coniglione searched the Kia and found the black bag that Detective Reed

had seen Ingram carry from Anderson’s house. The bag contained 650.7 grams of

crack cocaine and $4,980. Lieutenant Coniglione found the bag on the frontpassenger-side floorboard. The government charged Brown and Ingram each with

possessing more than 280 grams of cocaine base with intent to distribute it, in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(A).

II.

The district court proceedings

Before trial, Brown filed a motion to suppress the crack cocaine and money

seized from the Kia, arguing that the traffic stop was unjustified at its inception.

Ingram didn’t join the motion. Brown argued that “the isolated incident of drifting

left of center, unaccompanied by other driving irregularities,” is not a traffic violation

under Oklahoma City ordinances. Suppl. R. Vol. V at 5. Specifically, Brown argued

that if a roadway lacks clearly marked traffic lanes, then § 32-191(b) of the

Oklahoma City Municipal Code (entitled “Changing lanes”) merely requires that

“vehicles shall nevertheless keep in line or follow a straight course as nearly as

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practical . . .” Suppl. R. Vol. V at 8 (quoting Okla. City Mun. Code ch. 32, art. V §

32-191(b) (1980)). Brown contended that under this forgiving standard, a driver who

drifts across the center of a roadway hasn’t committed a traffic violation.

The government countered that Oklahoma City ordinance § 32-192 was in fact

the traffic law applicable to Brown’s case. Section 32-192 provides that “[u]pon all

roadways of sufficient width a vehicle shall be driven to the right of the center of the

roadway,” subject to exceptions not at issue. Okla. City Mun. Code ch. 32, art. V §

32-192 (1980). The district court agreed with the government, concluding that § 32192’s omission of the “as nearly as practical” language used in § 32-191 “[was] a

clear indication that strict compliance is required.” Suppl. R. Vol. I at 38.

The court also determined that Lieutenant Coniglione was “a credible witness”

and that “he observed the vehicle veer into the center lane about a quarter length of

the body of the car[.]” Id. at 37. Based on Lieutenant Coniglione’s testimony, the

court found that Brown’s left-of-center drift “amount[ed] to an observed traffic

violation giving rise to a reasonable inference that a traffic violation ha[d] occurred.”

Id.

Ingram and Brown went to trial. During the trial, Ingram didn’t object to the

admission of the crack cocaine from the Kia. The jury found Ingram guilty of

possessing cocaine base with the intent to distribute it. The district court sentenced

him to two concurrent life-without-release imprisonment terms because of his two

earlier felony drug offense convictions, in line with 21 U.S.C. §§ 851, 841(a)(1),

(b)(1)(A). Ingram now appeals.

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DISCUSSION

A. The standard of review

The parties disagree about the applicable standard of review. Generally, “[w]e

review de novo the ‘ultimate determination of Fourth Amendment reasonableness.’”

United States v. Little, 18 F.3d 1499, 1503 (10th Cir. 1994) (en banc) (quoting United

States v. Allen, 986 F.2d 1354, 1356 (10th Cir. 1993)). When reviewing a district

court’s denial of a motion to suppress, “we accept the factual findings of the district

court . . . unless they are clearly erroneous.” United States v. Gregory, 79 F.3d 973,

977 (10th Cir. 1996).

But in this case, Ingram didn’t file a motion to suppress in the district court, or

even join Brown’s. Though we ordinarily review claims first raised on appeal for

plain error, we apply a different standard for suppression issues not raised in the

district court.

In United States v. Burke, 633 F.3d 984, 988 (10th Cir. 2011), we held that a

Rule 12 “suppression argument raised for the first time on appeal is waived (i.e.,

completely barred) absent a showing of good cause,” even though we had in earlier

cases engaged in plain-error review after the defendant failed to make the

suppression motion before trial. Relying on Burke, the government argues that

Ingram’s suppression argument is barred. Appellee Br. at 9.

We decided Burke before the Advisory Committee on Criminal Rules’s recent

amendments to Rule 12. Subsection (e) of the version of Rule 12 then in force

provided that “[a] party waives any Rule 12(b)(3) defense, objection or request not

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raised by the deadline the court sets under Rule 12(c) or by an extension the court

provides. For good cause, the court may grant relief from the waiver.” Fed. R. Crim.

P. 12(3) (West 2013). But in 2014 the advisory committee deleted subsection (e)

from Rule 12 and expanded subsection (c) into three parts. Fed. R. Crim. P. 12(c)

(West 2017). The committee replaced Rule 12(e) with new Rule 12(c)(3) which

states, “If a party does not meet the deadline for making a Rule 12(b)(3) motion, the

motion is untimely. But a court may consider the defense, objection, or request if the

party shows good cause.” Id. at (c)(3).

The advisory committee stated that it had removed the word “waiver” from

Rule 12 “to avoid possible confusion.” Fed. R. Crim. P. 12(c), advisory committee’s

note to 2014 amendments. The committee explained that

[a]lthough the term waiver in the context of a criminal case ordinarily

refers to the intentional relinquishment of a known right, Rule 12(e) has

never required any determination that a party who failed to make a

timely motion intended to relinquish a defense, objection, or request

that was not raised in a timely fashion.

Id.

The government argues that because the committee notes state that “[n]ew

paragraph 12(c)(3) retains the existing standard for untimely claims,” the 2014

amendments weren’t meant to substantively change Rule 12. Appellee’s Br. at 10 n.3

(quoting Fed. R. Crim. P. 12(c), advisory committee’s note to 2014 amendments).

And so, according to the government, Burke remains good law and bars Ingram from

first raising a suppression issue on appeal.

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The Sixth Circuit disagreed with this same argument in United States v. Soto,

794 F.3d 635, 650–52 (6th Cir. 2015). The court concluded that the 2014 advisory

committee had consciously decided to omit the word “waiver” from Rule 12 to

clarify that “courts may no longer treat a party’s failure to file a timely 12(b)(3)

pretrial motion as an intentional relinquishment of a known right.” 794 F.3d at 652.

Ingram argues that he didn’t “knowingly and voluntarily” waive his right to

challenge the legality of the stop. Appellant’s Reply Br. at 2, 4. This argument tracks

the reasoning of Soto because at bottom, Ingram contends that failing to raise a

suppression claim under Rule 12 doesn’t waive that claim. And if the Soto court and

Ingram are correct, then Ingram is entitled to plain-error review.

Our circuit hasn’t addressed whether the advisory committee’s 2014 Rule 12

amendments affect our holding in Burke. And we decline to settle the issue now.

Instead, even if the plain-error standard1 governed Ingram’s suppression claim,

Ingram would falter on its first prong. The district court didn’t err in finding that

Lieutenant Coniglione saw Brown commit a traffic violation by crossing the center of

the road.

B. The reasonableness of the traffic stop

The Fourth Amendment protects “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.”

To show plain error, a party must demonstrate that the district court

committed (1) an error, (2) that is plain, (3) that affects her substantial rights, and (4)

that seriously affects the fairness, integrity, or public reputation of judicial

proceedings. United States v. Olano, 507 U.S. 725, 732 (1993).

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U.S. Const. amend. IV. A traffic stop is reasonable under the Fourth Amendment if

(1) it is justified at its inception, and (2) the resulting search and seizure was

reasonably related in scope to the circumstances that justified the initial stop. Terry v.

Ohio, 392 U.S. 1, 19–20 (1968). Whether the stop was justified at its inception

depends on “the totality of the circumstances.” United States v. Salazar, 609 F.3d

1059, 1068 (10th Cir. 2010). To stop Brown and Ingram, Lieutenant Coniglione

needed “a particularized and objective basis” for doing so. United States v. Arvizu,

534 U.S. 266, 273 (2002) (internal quotation marks omitted). If police officers

witness a traffic violation, then the traffic stop is justified at its inception. United

States v. Eckhart, 569 F.3d 1263, 1271 (10th Cir. 2009).

Ingram advances two arguments challenging the justification of the stop:

(1) that he didn’t commit a traffic violation under § 32-191(b) of the Oklahoma City

Municipal Code, which requires only that a driver “follow a straight course as nearly

as practical”; and (2) that the stop was pretextual because “the evidence suggests that

a reasonable officer would not have stopped [the Kia] without the invalid purpose of

obtaining evidence” of drug trafficking. Appellant’s Op. Br. at 1–2, 20. We will

address each argument in turn.2

The government makes three alternative arguments: (1) that Lieutenant

Coniglione and Sergeant Ritchie had independent reasonable suspicion to stop the

Kia based on Detective Reed’s having witnessed events consistent with drug

trafficking while surveilling 3344 Southwest 24th Street; (2) that because Ingram was

never seized, evidence of the crack cocaine found in the Kia shouldn’t be suppressed;

and (3) that the seized crack cocaine was abandoned property and not entitled to

Fourth Amendment protection. Appellee Br. at 22–23, 22 n.8, 27. Because we

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1. The traffic violation

Ingram argues that a driver who just once crosses over a road’s unmarked

center hasn’t violated Oklahoma City traffic laws. Appellant’s Op. Br. at 10. He

notes that § 32-191(b) of the Oklahoma City Municipal Code merely requires that a

driver on a road with unmarked traffic lanes “follow a straight course ‘as nearly as

practical.’” Appellant’s Br. at 10–11 (quoting Okla. City Mun. Code ch. 32, art. V §

32-191(b) (1980)). Ingram argues that lawmakers adopted the “as nearly as practical”

language in § 32-191(b) because maintaining a straight course in an unmarked traffic

lane is difficult, so mistakes such as drifting over the center of the road just once are

understandably unavoidable and don’t amount to a violation of the ordinance.

Appellant’s Op. Br. at 11.

In response, the government argues that § 32-191(b) applies only when a

driver is changing lanes and that Brown wasn’t doing so when he momentarily

drifted across the center of the roadway. Appellee’s Br. at 19 (quoting Okla. City

Mun. Code ch. 32, art. V § 32-191(b) (1980)). The government asserts that Brown

violated Oklahoma City Municipal Code § 32-192, titled “Driving on right side of

roadway,” which requires “[u]pon all roadways of sufficient width a vehicle shall be

driven to the right of the center of the roadway.” Okla. City Mun. Code ch. 32, art. V

§ 32-192 (1980).

determine that the officers had a legal basis to stop Brown for crossing the center of

the road, we have no need to address these arguments.

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We agree with the government. Section 32-191 is titled “Changing lanes,” and

concerns just that. Ingram ignores the context that § 32-191(a) helpfully provides:

Whenever any roadway has been divided into two or more clearly marked

lanes for traffic . . . a vehicle shall be driven as nearly as practical entirely

within a single lane and shall not be moved from such lane until the driver has

first ascertained that such movement can be made with safety . . .

Okla. City Mun. Code ch. 32, art. V § 32-191(a) (1980) (emphasis added). Sections

32-191(a) and 32-191(b) are part of the same ordinance and relate to each other.

Section 32-191(b) itself states that if a driver needs to stop adjacent to a curb or pass

another car, he must ascertain whether the movement can be made safely and provide

a signal that he “inten[ds] to change lanes.” Okla. City Mun. Code ch. 32, art. V §

32-191(b) (1980). Ingram never contends that Brown was attempting to change lanes

when he drifted left of center, so § 32-191(b) doesn’t apply.

In contrast, § 32-192 requires drivers to remain right of the center of the

roadway. Under § 32-192’s plain language, Lieutenant Coniglione and Sergeant

Ritchie were justified in stopping Brown for failing to remain right of the center of

the roadway.3

Further, Brown likely committed a traffic violation even under his cited

ordinance requiring compliance “as nearly as practical.” See United States v.

Alvarado, 430 F.3d 1305, 1308–09 (10th Cir. 2005) (concluding that crossing the

right fog line just once in optimal road conditions justified a stop where the state

statute required compliance only as nearly as practical); United States v. Zabalza, 346

F.3d 1255, 1258 (10th Cir. 2003) (concluding that a vehicle crossing the center of a

roadway twice in optimal conditions justified a stop where the state statute required

staying in one lane as nearly as practical). But see United States v. Gregory, 79 F.3d

973, 978–79 (10th Cir. 1996) (concluding that a driver on a winding road didn’t

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The district court correctly concluded that Lieutenant Coniglione and Sergeant

Ritchie had a full basis to stop Brown for a traffic violation. So even if we were to

grant Ingram plain-error review, he still couldn’t prevail—he has failed to show any

error.

2. The allegedly pretextual stop

Ingram next argues that Lieutenant Coniglione and Sergeant Ritchie used the

traffic stop as a pretext for stopping the Kia based on their suspicions that Brown and

Ingram had been participating in drug trafficking at Anderson’s house. Appellant’s

Op. Br. at 20. He claims that “the officers would not have stopped [the] vehicle on

the basis of driving left of center, without the officers’ primary intention and

illegitimate motivation of obtaining evidence of drug trafficking.” Appellant’s

Opening Br. at 20. In this regard, Ingram primarily relies on United States v. Smith,

799 F.2d 704, 710–11 (11th Cir. 1986). Appellant’s Op. Br. at 17–21.

commit a traffic violation that justified a traffic stop when the driver crossed the right

shoulder emergency-lane line once during very windy conditions); and United States

v. Freeman, 209 F.3d 464, 466 (6th Cir. 2000) (finding no probable cause to pull

over a motor home where it partially weaved into the emergency lane for a few feet

for a limited period of time and the operative statute required drivers to stay in their

lane only as nearly as practical).

Here, Brown crossed the center of the road, and the district court found that

“the weather was sunny and not particularly windy, there were no other pedestrians,

objects, or traffic nearby to justify [Brown’s] swerving, and the driving conditions

were as good as any.” Suppl. R. Vol. I at 38 (internal quotation marks omitted). So it

was practical for Brown to keep his car within the lane and not cross the center of the

road.

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In Smith, the Eleventh Circuit concluded that a state trooper had lacked

probable cause to stop a car where the driver slightly weaved within his own lane of

traffic, didn’t look at the trooper in the marked patrol car, and drove an out-of-state

car at 3 a.m. in a manner consistent with that of a drug courier. 799 F.2d at 706–07.

The court found that the officer had begun to pursue the car “before he observed any

‘weaving’ and, [that] even after he stopped the car, he made no investigation of the

possibility of intoxication.” Id. at 710. Moreover, the court explained “that a

reasonable officer would not have stopped the car absent an additional, invalid

purpose” and rejected the traffic stop as pretextual. Id. at 711.

But Smith must succumb to the rule given in Whren v. United States, 517 U.S.

806, 813 (1996).4 In Whren, the Court held that “[s]ubjective intentions [of law

enforcement officers] play no role in ordinary, probable-cause Fourth Amendment

analysis.” 517 U.S. at 813. The Court foreclosed “any argument that the

constitutional reasonableness of traffic stops depends on the actual motivations of the

individual officers involved.” Id.

In sum, whether the officers pursued the Kia before observing a traffic

violation “is legally irrelevant.” United States v. Polly, 630 F.3d 991, 997 (10th Cir.

2011). Again, Ingram can’t satisfy the first prong of plain-error analysis because the

district court didn’t err.

The Eleventh Circuit has ruled that Whren abrogated Smith. See Riley v. City

of Montgomery, 104 F.3d 1247, 1251 (11th Cir. 1997).

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CONCLUSION

For the reasons above, we affirm Ingram’s conviction.

Entered for the Court

Gregory A. Phillips

Circuit Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.