United States v. Verner, 659 F. App'x 461

Background

Tulsa Police investigated a suspected meth sale at a Flying J based on a confidential informant tip identifying a black male in a Jeep; officers observed Keenan Verner at the scene interacting with multiple vehicles.
Officers stopped a Kia carrying Verner and another man; five uniformed officers approached with firearms displayed (one firearm pointed), ordered occupants out, and immediately handcuffed both men. A brief patdown found no weapons.
Officers reported smelling marijuana from the Kia; after running records, they discovered outstanding misdemeanor warrants for both men and formally arrested them. A drug dog alerted and, following the formal arrest, a search of Verner yielded >50 grams of methamphetamine and statements by Verner.
Verner moved to suppress, arguing the initial seizure was a de facto arrest (pointing guns, handcuffs) unsupported by probable cause and that the evidence was the fruit of that illegal arrest; the government did not dispute nexus below nor argue suppression should be denied even if the seizure was an arrest.
The district court granted suppression, finding the encounter was an arrest at its inception, lacked probable cause, and (because the government did not contest nexus) suppression was warranted.
The government moved for reconsideration, first raising for the first time a nexus/attenuation theory based on the officers’ asserted detection of marijuana; the district court denied reconsideration as meritless and untimely. On appeal, the Tenth Circuit affirmed, holding the government forfeited the nexus argument by failing to timely raise it below.

Issues

Issue	Verner's Argument	Government's Argument	Held
Was the initial encounter an investigative detention (Terry stop) or a de facto arrest?	The show of force (5 officers, drawn weapons, handcuffs) converted the stop into an arrest at inception.	The stop was a lawful Terry stop that escalated only after probable cause developed.	Court: District court correctly found the encounter was a de facto arrest at its inception.
Was Verner’s arrest supported by probable cause?	No — police lacked probable cause at the outset; warrants were discovered later via records check.	Argued later that probable cause existed once officers smelled marijuana.	Court: Arrest was not supported by probable cause as evaluated by the district court on the presented record.
Is there a factual nexus between the illegality (illegal arrest) and the evidence (meth, statements)?	The meth and statements would not have been discovered but for the unlawful arrest; nexus established.	On appeal only: the smell of marijuana (detected before the warrant) broke the causal chain, so evidence is not fruit of illegal arrest.	Court: Government forfeited/waived this nexus argument by failing to raise it in district court; district court’s finding of nexus stands.
Was the government’s motion for reconsideration a proper vehicle to introduce the nexus theory?	N/A	The government asserted reconsideration was appropriate because the nexus issue emerged after the suppression ruling and defendants had not contested the officers' marijuana-scent testimony.	Court: Denial of reconsideration affirmed; the government could and should have raised the theory earlier and the district court did not abuse discretion.

Key Cases Cited

Hudson v. United States, 210 F.3d 1184 (10th Cir. 2000) (view facts in light most favorable to prevailing party below)
Mosley v. United States, 743 F.3d 1317 (10th Cir. 2014) (pointing guns generally elevates detention to arrest absent officer-safety justification)
Nava-Ramirez v. United States, 210 F.3d 1128 (10th Cir. 2000) (defendant bears initial burden to show nexus between illegality and challenged evidence)
Christy v. United States, 739 F.3d 534 (10th Cir. 2014) (motions to reconsider appropriate in criminal cases but should not advance arguments that could have been raised earlier)
Crow v. Shalala, 40 F.3d 323 (10th Cir. 1994) (appellate courts generally will not consider arguments not presented to the district court)
United States v. Eastteam, 426 F.3d 1301 (10th Cir. 2005) (preservation rule applies in criminal appeals)
Williams v. United States, 504 U.S. 36 (1992) (appellate courts may review issues the lower court "pressed" or "passed upon")
Hernandez-Rodriguez v. United States, 352 F.3d 1325 (10th Cir. 2003) (when district court sua sponte resolves an issue, appellant may challenge that ruling on appeal)
Okland Oil Co. v. Conoco Inc., 144 F.3d 1308 (10th Cir. 1998) (changing to a new theory on appeal is not preserved by raising a related theory below)
Abdenbi v. United States, 361 F.3d 1282 (10th Cir. 2004) (refusing to consider suppression theories not raised in district court)
Ladeaux v. United States, 454 F.3d 1107 (10th Cir. 2006) (defendant must show but-for causation between illegality and discovered evidence)
Lebahn v. Owens, 813 F.3d 1300 (10th Cir. 2016) (court is not obligated to craft counterarguments for the non-movant)