United States of America v. Colt Francis Malone

PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_____________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
COLT FRANCIS MALONE,
Defendant - Appellant.
No. 20-1183
_______________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 1:19-CR-00339-PAB-1)
_________________________________
Grant R. Smith, Assistant Federal Public Defender, Office of the Federal
Public Defender, Districts of Colorado and Wyoming (Virginia L. Grady,
Federal Public Defender, with him on the briefs), Denver, Colorado, for
Defendant-Appellant.
Cyrus Y. Chung, Office of the United States Attorney, District of Colorado
(Jason R. Dunn, United States Attorney, with him on the briefs), Denver,
Colorado, for Plaintiff-Appellee.
____________________________________
Before BACHARACH, EBEL, and PHILLIPS, Circuit Judges.
___________________________________
BACHARACH, Circuit Judge.
____________________________________
FILED
United States Court of Appeals
Tenth Circuit
August 30, 2021
Christopher M. Wolpert
Clerk of Court
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This appeal concerns a traffic stop. During the stop, law-enforcement
officers ordered the passenger, Mr. Colt Francis Malone, to exit the car. He
complied, and the officers found a pistol. Based on the presence of this
pistol, the government charged Mr. Malone with possession of a firearm
after a felony conviction. See 18 U.S.C. § 922(g)(1).
Mr. Malone moved to suppress evidence of the pistol, arguing that
the officers had violated the Fourth Amendment by prolonging the traffic
stop. The district court denied the motion to suppress, leading Mr. Malone
to enter a conditional guilty plea and to appeal.
We affirm. Even if the officers had detoured from the mission of the
traffic stop, the district court had made a factual finding that the officers
did not prolong the stop and Mr. Malone waived any challenge to that
finding. So introduction of the pistol into evidence would not have violated
the Fourth Amendment.
1. When the officers ask Mr. Malone to exit the car, they discover a
pistol under his seat.
While surveilling a hotel known for criminal activity, law-
enforcement officers saw a car pull into the hotel’s parking lot. The
officers watched one of the car’s occupants visit a room on the first floor
and return to the car; after she returned, the car left. When it did, the
officers notified Detective Adam Brewer and Officer Brook Hathaway, who
spotted the car. Detective Brewer and Officer Hathaway then saw the
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driver commit a traffic violation (a wide right hand turn) and pulled the car
over.
While Officer Hathaway approached the passenger’s side of the car,
Detective Brewer went to the driver’s side. Responding to Detective
Brewer’s questions, the driver identified herself as Ms. Darlene Tucker and
provided her driver’s license. Detective Brewer also asked Ms. Tucker for
the car registration and proof of insurance. She couldn’t immediately find
these documents, so she started looking for them. The passenger, Mr.
Malone, also provided his identification and mentioned that he was on
parole for burglarizing a pawn shop.
With this information from Mr. Malone, Detective Brewer
 told Ms. Tucker to continue looking for her registration and
proof of insurance and
 returned to the patrol car.
There Detective Brewer learned from the dispatcher that Mr. Malone was a
suspected gang member. Detective Brewer decided to investigate further.
He then joined Officer Hathaway at the passenger side of the car.
(Neither officer stayed with Ms. Tucker.) Officer Hathaway told Mr.
Malone to get out of the car, and he did. Detective Brewer then led Mr.
Malone to the back of the car and started to pat him down.
After Mr. Malone had left the car, Officer Hathaway saw a liquor
bottle near Mr. Malone’s seat. As Officer Hathaway went to pick up the
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bottle, he saw a firearm magazine. The officers then searched the car and
found a pistol under the seat.
2. Standard of Review
When we review the denial of a motion to suppress, we
 view the evidence in the light most favorable to the
government,
 accept the district court’s findings of fact unless they are
clearly erroneous, and
 consider de novo the ultimate question of reasonableness.
E.g., United States v. Mayville, 955 F.3d 825, 829 (10th Cir. 2020). A
finding of fact is clearly erroneous only if it lacks factual support or the
Court has “a definite and firm conviction that the district court erred.”
United States v. Chavez, 734 F.3d 1247, 1250 (10th Cir. 2013) (quoting
United States v. Jarvison, 409 F.3d 1221, 1224 (10th Cir. 2005)).
3. In general, a traffic stop must last no longer than needed to
investigate the traffic violation.
Traffic stops constitute Fourth Amendment “seizures” and must be
reasonable. Whren v. United States, 517 U.S. 806, 809–10 (1996). A traffic
stop is reasonable only if
 it is justified from the start and
 the officers’ actions are “reasonably related in scope to the
mission of the stop” (investigation of the suspected traffic
violation).
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United States v. Mayville, 955 F.3d 825, 829 (10th Cir. 2020) (quoting
United States v. Cone, 868 F.3d 1150, 1152 (10th Cir. 2017)). To fulfill
this mission, officers may make ordinary inquiries related to the traffic
stop (like questions about registration and insurance), determine whether
to issue a ticket or warning, and address “related safety concerns.”
Rodriguez v. United States, 575 U.S. 348, 354–55 (2015). But officers
cannot take more time than necessary to address the traffic violation.
United States v. Cortez, 965 F.3d 827, 837 (10th Cir. 2020). So the stop
becomes “‘unlawful’” if officers
 detour from the mission without reasonable suspicion and
 “‘prolong[]’” the stop (regardless of whether the detour “occurs
before or after [an] officer issues a ticket”).
Rodriguez, 575 U.S. at 356–57 (quoting Illinois v. Caballes, 543 U.S. 405,
407 (2005)).
4. Mr. Malone waived any challenge to the district court’s factual
finding that the exit order had not prolonged the traffic stop.
Mr. Malone does not challenge the legality of the initial traffic stop
or the officers’ conduct after they saw the firearm magazine. He instead
focuses on the order to exit the car, arguing that this order violated the
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Fourth Amendment by creating a detour that prolonged the traffic stop. We
disagree.
We assume for the sake of argument that the exit order constituted a
detour. But even with this assumption, Detective Brewer’s actions would
have been lawful if they hadn’t prolonged the traffic stop. See United
States v. Mayville, 955 F.3d 825, 832–33 & n.2 (10th Cir. 2020) (rejecting
a Fourth Amendment challenge to a dog sniff because officers were still
completing related paperwork); see also Rodriguez v. United States, 575
U.S. 348, 354–55 (2015) (stating that questioning for an unrelated
investigation and a dog sniff would not violate the Fourth Amendment if
they had not prolonged the traffic stop). 1
1 Five other circuits have held in published opinions that unrelated
investigations—like inquiries into criminality or dog sniffs—violate the
Fourth Amendment only if they prolong the traffic stop. See United States
v. Gholston, 1 F.4th 492 (7th Cir. 2021) (rejecting a Fourth Amendment
challenge to a dog sniff because the district court did not clearly err “in
finding that [the officer] [had] not unlawfully prolong[ed] the stop”);
United States v. Buzzard, 1 F.4th 198 (4th Cir. 2021) (stating that even if
the law-enforcement officer’s question had “exceeded the scope of the
stop’s mission,” the question would have “passe[d] constitutional muster”
because it hadn’t prolonged the traffic stop); United States v. Yusuf, 993
F.3d 167, 182–83 (3d Cir. 2021) (rejecting a Fourth Amendment challenge
because the traffic stop had not been prolonged in light of the driver’s need
to continue looking for the registration and proof of insurance); United
States v. Lott, 954 F.3d 919, 924–25 (6th Cir. 2020) (rejecting a Fourth
Amendment challenge because a law-enforcement officer’s “questions
about criminal activity unrelated to the traffic stop” did not prolong the
traffic stop); United States v. Fuehrer, 844 F.3d 767, 773 (8th Cir. 2016)
(rejecting a Fourth Amendment challenge to a dog sniff because the
officers were still completing paperwork). In unpublished opinions, four
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The critical issue is thus whether the alleged detour prolonged the
traffic stop. This question is factual, not legal. E.g., United States v.
Mayville, 955 F.3d 825, 829–33 (10th Cir. 2020). For this factual question,
the district court found that the officers’ actions had not prolonged the
stop. This finding was arguably supported by Ms. Tucker’s inability to find
her proof of insurance or the vehicle registration. R. vol. 4, at 146.
Given the factual nature of this issue, we could disturb the finding
only if it were clearly erroneous. Mayville, 955 F.3d at 829–33; see p. 4,
above. But we can’t consider the possibility of clear error because Mr.
Malone expressly waived any challenges to the district court’s factual
findings. In his opening brief, Mr. Malone stated that he “[wa]s not
challenging any of the district court’s factual findings.” Appellant’s
Opening Br. at 12. In response, the government pointed out that Mr.
Malone had not argued clear error. Gov’t’s Resp. Br. at 12–13.
other circuits have reached the same conclusion. See Negrito v.
Buonaugurio, 836 F. App’x 36, 39 (2d Cir. 2020) (rejecting a Fourth
Amendment challenge because the defendant had not adequately alleged
extension of the traffic stop from unrelated inquiries); United States v.
Gladney, 809 F. App’x 220, 226 (5th Cir. 2020) (rejecting a Fourth
Amendment challenge to unrelated questions because the officer was
waiting for resolution of safety concerns); United States v. Kash, 751 F.
App’x 1007, 1010 (9th Cir. 2018) (rejecting a Fourth Amendment
challenge to unrelated questions because related checks were ongoing);
United States v. Rivas, 746 F. App’x 826, 828–29 (11th Cir. 2018)
(rejecting a Fourth Amendment challenge to a dog sniff, reasoning that the
officer had ongoing inquiries relating to a traffic violation).
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Mr. Malone did not reply. And even if he had, the Court ordinarily
does not allow the use of a reply brief to withdraw a concession. See
United States v. Mullikin, 758 F.3d 1209, 1210 n.2 (10th Cir. 2014); see
also Hasan v. AIG Prop. Cas. Co., 935 F.3d 1092, 1099 (10th Cir. 2019)
(“When an appellee advances an alternative ground” to affirm and “the
appellant does not respond” to the alternative argument in the reply brief,
the appellant “waives, as a practical matter . . . , any objections not
obvious to the court to specific points urged by the appellee.”) (quoting
Hardy v. City Optical Inc., 39 F.3d 765, 771 (7th Cir. 1994)).
Only in response to questions at oral argument did Mr. Malone urge
clear error. Oral Arg. at 3:40–12:30. But “issues may not be raised for the
first time at oral argument.” United States v. Abdenbi, 361 F.3d 1282, 1289
(10th Cir. 2004). So Mr. Malone waived his new argument of clear error.
Mr. Malone nonetheless argues that the detour added time to the stop,
stating that
 the district court incorrectly assumed that a detour couldn’t add
time if the mission were incomplete and
 the exit order added time because no one was attending to Ms.
Tucker.
Neither argument is persuasive.
The district court recognized the possibility for a detour to add time
to the middle of a traffic stop. See R. vol. 4, at 144 (recognizing that an
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exit order had added time to the traffic stop); see also Part 3, above. Given
this possibility, the court properly considered whether the exit order had
added time to the traffic stop. On this factual question, the court answered
“no” and Mr. Malone didn’t challenge this factual finding until he
responded to our questions at oral argument.
Mr. Malone also points out that both officers were focusing on him,
with neither officer attending to Ms. Tucker. But if she were still looking
for the registration and proof of insurance, the officers could have
investigated Mr. Malone while they were waiting. See United States v.
Yusuf, 993 F.3d 167, 183 (3d Cir. 2021) (holding that the traffic stop was
not prolonged because “the search for the insurance card and registration
was a plainly valid reason to continue the stop”). So the officers’ focus on
Mr. Malone didn’t necessarily add time to the traffic stop.
* * *
We affirm. The district court found that the exit order hadn’t
prolonged the traffic stop, and Mr. Malone waived a challenge to this
finding. This factual finding established the reasonableness of the traffic
stop even if the officers’ actions had constituted a “detour.”
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