(D.C. No. 5:12-CR-00076-HE-1) (W.D. Okla.).
Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit Judge. [**]
ORDER AND JUDGMENT[*]
BOBBY R. BALDOCK, United States Circuit Judge.
A federal grand jury indicted Defendant Brian Heath Collins with knowingly and intentionally manufacturing 100 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1). Defendant moved to suppress the evidence against him, but the district court denied the motion. Defendant entered a conditional guilty plea, expressly reserving the right to appeal the district court's order denying his motion to suppress. Defendant now appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
On January 31, 2012, at approximately 9:45 p.m., Cotton County, Oklahoma, Deputies Tim King and David Johnson responded to a call reporting a strong chemical odor coming from a residence off of Oklahoma State Highway 70. Because of prior incidents regarding narcotics transactions, Deputy King was familiar with the residence as well as the occupant James Smith. Deputy King was also familiar with the odor of methamphetamine labs because he had searched a number of labs over the years and received extensive methamphetamine lab training from both the Drug Enforcement Administration (DEA) and the Oklahoma Bureau of Narcotics. Upon arrival, Deputies King and Johnson identified the odor coming from Smith's barn as one commonly associated with the manufacture of methamphetamine. Deputy King also observed Defendant's pickup truck and a white-colored van he recognized as belonging to Roger Parker. Deputy King was familiar with both Smith and Parker and their prior methamphetamine-related convictions. Around 10:45 p.m., deputies began the application process for a search warrant and began a stakeout of the Smith residence to ensure no one left.
Just prior to midnight, both the pickup and the van left. Suspecting it contained methamphetamine or a methamphetamine lab, Deputy King stopped Parker's van. Smelling a chemical odor on Parker and passenger Tammy Yates, Deputy King told Parker he knew they had been "cooking dope." Parker "ducked his head and shook his head yes" and consented to a search of his van in which no evidence was found. For the same reasons, two other deputies stopped Defendant's pickup. They reported Defendant was extremely nervous and had a very strong chemical odor coming from his person. A consensual search of his pickup also revealed no evidence.
At approximately 12:15 a.m., deputies executed a search warrant on the Smith property, where they found multiple items associated with the production of methamphetamine, including a drying table with pink residue, a complete methamphetamine lab, and a substance later confirmed to be methamphetamine. Officers made contact with Smith, who admitted that he had been "cooking dope" with Parker and Defendant. Based on the evidence collected in Smith's home and barn, deputies arrested Smith, Parker, Yates, and Defendant. Pursuant to a subsequent search warrant, authorities obtained cellular phone records that outlined Defendant's and others' plan to obtain pseudoephedrine from pharmacies in both Oklahoma and Texas to manufacture methamphetamine.
Prior to pleading guilty, Defendant moved to suppress all physical evidence, oral statements, cellular phone text messages, and any other evidence obtained as a result of the search of Smith's residence and the allegedly illegal stop of his truck. The district court denied Defendant's motion, holding that Defendant lacked standing to challenge the search of Smith's residence and that the stop of his pickup did not violate the Fourth Amendment. Defendant appeals the denial of his motion to suppress only with respect to the stop of his pickup. Defendant argues that at the time he was stopped, the evidence was insufficient to support the stop and thus any evidence obtained as a result must be suppressed as "fruit of the poisonous tree."
In reviewing a district court's denial of a motion to suppress, we consider the totality of the circumstances and view the evidence in the light most favorable to the Government. United States v. Madden, 682 F.3d 920, 924–25 (10th Cir. 2012). We accept the district court's factual findings unless they are clearly erroneous. Id. at 924. The ultimate determination of reasonableness under the Fourth Amendment, however, is a question of law we review de novo. Id. Here, Defendant does not challenge the district court's factual findings, but rather their legal significance. Thus, our review is de novo. To warrant suppression, a defendant must prove: (1) illegal government conduct, and (2) a "nexus between the illegality and the challenged evidence." United States v. DeLuca, 269 F.3d 1128, 1132 (10th Cir. 2001).
We turn first to the legality of Defendant's stop. Defendant does not develop an argument concerning the length of his stop or the legality of his subsequent arrest. Consequently, our review is limited to the legality of the stop at its inception. Defendant argues that at the time he was stopped, "there was not a single shred of evidence that could be considered legally sufficient to support the stop." Appellant's Br. at 5. According to Defendant, "[t]he allegation that an odor was coming from Mr. Smith's property is insufficient to support a finding of probable cause to believe that at the time his vehicle was stopped, [Defendant] was engaged in illegal activity." Id. He further contends that he "did not commit a traffic violation[, ]" that "no member of law enforcement witnessed [him] engage in any illegal activity[, ]" and the "sole reason he was stopped was because he was leaving the Smith residence." Id.
In Terry v. Ohio, 392 U.S. 1, 22 (1968), the Supreme Court recognized that a police officer may "approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." In assessing the constitutionality of an investigatory stop at its inception, we ask whether the totality of the circumstances demonstrates that law enforcement officers had reasonable suspicion that criminal activity may have been afoot. See United States v. Arvizu, 534 U.S. 266, 273 (2002); United States v. Cortez–Galaviz, 495 F.3d 1203, 1205–06 (10th Cir. 2007). For reasonable suspicion to exist, "the police officer must be able to point ...