487 F.Supp.2d 1206 (2007)
UNITED STATES of America, Plaintiff,
v.
David Lee HOLMES II, Defendant.
No. 05-40066-01-SAC.
United States District Court, D. Kansas.
April 2, 2007.
*1207 *1208 Marilyn M. Trubey, Office of Federal Public Defender, Topeka, KS, for Defendant.
James A. Brown, Office of United States Attorney, Topeka, KS, for Plaintiff.

MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
This case comes before the court on three motions filed by defendant: motion to compel discovery regarding informant (Dk. 21); motion to suppress evidence and statements (Dk. 22); and motion to suppress evidence seized from cellular phones (Dk. 23). The government filed a consolidated response (Dk. 29) opposing the motions. At the hearing, the government announced that it no longer opposed the defendant's motion to suppress the evidence seized from cellular phones and further asked the court to grant the defendant's motion. The court, therefore, grants the defendant's motion to suppress (Dk. 23) based on the agreement of the parties. The government presented the testimony of Doug Garman, a Narcotics Investigator with the Topeka Police Department. After hearing this evidence and counsel's arguments and researching the issues, the court is ready to rule.
Indictment
The single-count indictment charges that on April 13, 2005, the defendant possessed with the intent to distribute 23.33 grams of cocaine base.
Summary of Facts
Narcotics Investigator Doug Garman with the Topeka Police Department testified that he frequently uses confidential informants in the investigation of drug offenses. Assessing the reliability of an informant is important in Garman's work. He explained the different steps taken and the factors evaluated in determining an informant's reliability. He investigates the informant's criminal history looking for crimes of dishonesty or prior false statements. He conducts an initial interview to learn what the informant knows and understands about the relevant local drug distribution network and then assesses whether these disclosures comport with law enforcement's general understanding of the network based on prior and ongoing investigations. If the informant clears these hurdles, officers will use the informant in controlled settings to judge the informant's reliability in providing, truthful information and in following officers' directions. For example, the informant will make one or more controlled purchases which are either recorded or subjected to other surveillance. The officers then debrief the informant and judge whether the informant has truthfully disclosed the details as confirmed by a recording or surveillance.
On April 13, 2005, Officer Garman had contact with an informant who described the defendant David Lee Holmes as being in possession of cocaine base. Officer Garman had been working with this informant since February 2005 and considered the informant to be reliable based on the following circumstances. A check of the national record systems revealed no prior criminal convictions on the informant. The informant was facing some criminal charges and was cooperating because of the charges. In his interviews, the informant provided names, residences, cars, sources, and drug trafficking details in Topeka. This information was consistent with the department's understanding of the drug distribution network in Topeka. The informant identified seven different persons as involved in the distribution of drugs in Topeka, and this information was *1209 corroborated through other sources, including different informants, law enforcement intelligence, common knowledge in the department, and other ongoing investigations. The informant then supplied information leading to the issuance of a search warrant for controlled substances. During the execution of the warrant, officers found drugs in the specific locations previously described by the informant. The informant had made four successful controlled purchases of drugs and provided truthful information during the debriefings on each purchase. The informant attempted another controlled purchase which was not completed. Garman said the informant was not to blame for unsuccessful attempt and explained that the informant's conduct in not forcing the situation bolstered Garman's opinion about the informant's reliability. Garman testified that the informant listened to the officers' instructions given and did "extremely well" in following them. Based on these factors and his experience in using the informant for the last two months, Garman believed the informant was reliable and dependable and considered the informant's degree of reliability to be "extremely high."
The informant telephoned Garman and reported that a black male named David possessed approximately one ounce of crack cocaine that was being carried in a pocket of his pants. The informant described David as wearing black clothing and a black ball cap with red on it. The informant gave the location of David and said that David would be leaving this residence in an older model, four-door tan Chevy Caprice. The informant said David would be driving the car and a passenger with him would be a black male named "Dre-Dre." Garman testified the informant's basis of knowledge was personal observation.
Garman drove by the location given by the informant and observed a tan Chevy Caprice parked outside of it. He ran the license plate on the car and learned it was registered to a Marla Hernandez. Garman knew Ms. Hernandez had been involved in the distribution of drugs, and he had participated in an undercover controlled purchase of cocaine from Ms. Hernandez.
Garman set up surveillance on the location where the car was parked and telephoned the informant. Garman asked the informant to drive by the location and confirm that the parked car was the one being used by the suspect. While the informant was driving by the location, he spoke with Garman by telephone and identified the two black males leaving the house as David and Dre-Dre. From his surveillance point, Garman also saw the same two black males leaving the house that the informant was identifying. The informant's earlier description of David, his clothing, his passenger and his car matched what Garman was seeing.
Garman began following the tan car which the defendant David Holmes was driving. Garman called Officer Youse who was assigned a marked unit to conduct the traffic stop. As Officer Youse began to signal for the stop, the suspects turned into the parking lot of a fast food restaurant The informant did not tell Garman that the suspects were carrying weapons. Garman, however, had reason to be concerned about weapons as he had been told that the suspect David was carrying an ounce of cocaine base. From his training and experience, Garman considered a person having an ounce of cocaine base in Topeka to be a middle or upper level distributor of cocaine base. Garman also testified that drug distributors, particularly cocaine base dealers in Topeka, frequently used weapons to protect their assets and to collect debts.
*1210 As he approached the parked car on foot, Garman observed the driver, and passenger look surprised to see the officers walking toward them. The defendant driver then immediately turned his gaze toward the middle of the seat and appeared to reach toward the right side of his waist. Based on his prior experience, including that as an undercover agent, Garman knew dealers frequently carried drugs and weapons in their waistbands. Consequently, the defendant's movements raised concerns that either a weapon was being accessed or contraband was being concealed. Using a loud, stern voice, Garman immediately commanded the defendant and passenger to show their hands. When neither one complied with the request and the passenger also turned toward the center and reached for his waist area, Garman pulled his weapon and repeated his command to show their hands. Both complied with this last request.
Following Garman's orders, Holmes exited the car and stepped away from it where he was handcuffed behind his back. Concerned for weapons, Garman did a pat-down search of the defendant beginning with the waistband area. As he patted the outside of the defendant's front pants pocket, Garman felt what from experience he believed was a small plastic bag of marijuana. He reached into the pocket and retrieved a plastic bag containing vegetation that resembled marijuana. He then searched the defendant's person, finding individual packages of cocaine base in the brim of the defendant's waist and inside the defendant's pants near the groan area. Officers then searched the car finding additional cocaine and a pistol with a loaded magazine in a gym bag on the back seat.
Motion to Compel Discovery Regarding Informant
Defendant's motion for discovery seeks eight categories of information relating to the informant. Citing Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the defendant argues the informant's identity and related information is relevant, helpful, and essential to a fair determination of his challenge to the lawfulness of the officer's actions in searching his person and car. The defendant considers the requested information as essential in determining the informant's credibility and reliability which are issues raised in his motion to suppress. The defendant similarly argues it is important for him to have the opportunity to interview the informant prior to the court's decision on the suppression motion and to have access to the requested information to ensure a fair trial. The defendant does not assert the informant was present at the later traffic stop or that the informant would have observed other matters relevant to any defense he could assert at trial to this drug trafficking charge.
The Supreme Court in Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), recognized the compelling public interest in favor of effective law enforcement and created a privilege that permits the government to withhold the identity of informants. United States v. Mendoza-Salgado, 964 F2d 993, 1000 (10th Cir.1992). Though anonymity encourages and protects informants, the Supreme Court held that the privilege yields to fairness if the informant's identity "is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause." Roviaro, 353 U.S. at 60-61, 77 S.Ct. 623. A decision on disclosure of identity entails "balancing the public interest in protecting the flow of information against the individual's right to prepare his defense." 353 U.S. at 62, 77 S.Ct. 623. Striking a proper balance depends on "the particular circumstances of each case, taking into consideration the *1211 crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Id.
The burden is on the defendant to come forward with evidence establishing that the Roviaro criteria favor disclosure. United States v. Blevins, 960 F.2d 1252, 1258-59 (4th Cir.1992). "`Mere speculation about the usefulness of an informant's testimony is not sufficient to warrant disclosure.'" United States v. Mathis, 357 F.3d 1200, 1208 (10th Cir.2004) (quoting United States v. Brantley, 986 F.2d 379, 383 (10th Cir.1993)). Generally, the Tenth Circuit requires disclosure when the informant's testimony "might be relevant to the defendant's case and justice would best be served by disclosure." United States v. Reardon, 787 F.2d 512, 517 (10th Cir. 1986). In practice, the Tenth Circuit has not required disclosure "where the information sought `would be merely cumulative,' or where the informer did not participate in the illegal transaction," Mendoza-Salgado, 964 F.2d at 1001 (quoting United States v. Scafe, 822 F.2d 928, 933 (10th Cir.1987)) (other citations omitted), where the informant is not a participant or witness to the crime, United States v. Brantley, 986 F.2d at 383, or where the informant is a mere tipster, United States v. Wynne, 993 F.2d 760, 766 (10th Cir.1993).
The defendant has not shown the identify of the informant would be relevant and essential to his defense in the suppression hearing and at trial. Apparently, the defendant seeks to learn the informant's identity in the bare hope of finding some error in Garman's testimony about the informant's reliability or some conflict between Garman's account of what the informant told him and what the informant remembers telling him. The Roviaro balance tips against disclosure when the defendant can offer nothing but the mere hope of finding some relevance. For example, the rule in the Tenth Circuit is that "[t]o obtain disclosure of a confidential informant referred to in a search warrant affidavit, the defendant must make a substantial showing that the affiants knowingly made false statements, or made statements with reckless disregard for the truth.'" United States v. Hogan, 933 F.Supp. 1008, 1015 (D.Kan.1996) (quoting United States v. Hernandez, 829 F.2d 988, 992 (10th Cir.1987), cert. denied, 485 U.S. 1013, 108 S.Ct. 1486, 99 L.Ed.2d 714 (1988)). The Supreme Court similarly has upheld the informant's privilege when the informant's involvement was limited to the probable cause issue and the informant's testimony was not needed in light of the officer's testimony on the same issues. See United States v. Barker, 623 F.Supp. 823, 836 (D.Colo.1985) (citing McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967)).
In McCray, the Supreme Court held:
There can be no doubt, upon the basis of the circumstances related by Officers Jackson and Arnold, that there was probable cause to sustain the arrest and incidental search in this case. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 [(1959)]. Unlike the situation in Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 [(1964)], each of the officers in this case described with specificity "what the informer actually said, and why the officer thought the information was credible." 379 U.S. at 97, 85 S.Ct. at 229. The testimony of each of the officers informed the court of the "underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant . . . was `credible' or his information `reliable.' " Aguilar v. State of Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 [(1964)]. See United *1212 States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 [(1965)]. Upon the basis of those circumstances, along with the officers' personal observations of the petitioner, the court was fully justified in holding that at the time the officers made the arrest "the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense." Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879 [(1949)]; Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 [(1959)]; Beck v. State of Ohio, supra, 379 U.S. at 91, 85 S.Ct. at 225. It is the petitioner's claim, however, that even though the officers' sworn testimony fully supported a finding of probable cause for the arrest and search, the state court nonetheless violated the. Constitution when it sustained objections to the petitioner's questions as to the identity of the informant. We cannot agree.
McCray v. Illinois, 386 U.S. at 304-305, 87 S.Ct. 1056. The Supreme Court distinguished Roviaro as addressing the privilege in the setting of a trial with the critical issue of the defendant's guilt as opposed to a preliminary hearing with only the issue of probable cause. Id. at 309, 87 S.Ct. 1056. The Court made it clear that the informant's privilege does not yield to a due process argument based on nothing more than speculation that the officers lied about the informant. "Nothing in the Due Process Clause of the Fourteenth Amendment requires a state court judge in every such hearing to assume the arresting officers are committing perjury." Id. at 313, 87 S.Ct. 1056. Thus, "although the Due Process Clause has been held to require the Government to disclose the identity of an informant at trial, provided the identity is shown to be relevant and helpful to the defense, Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), it has never been held to require the disclosure of an informant's identity at a suppression hearing. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967)." United States v. Raddatz, 447 U.S. 667, 679, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980).
Investigator Garman testified to being particularly concerned for the safety of the informant in this case. He explained that his report was written to withhold details about the informant's basis of knowledge in order to protect the informant's identity. When officers searched the car being driven by the defendant, they found an Uzistyle pistol with a loaded magazine stowed in a gym bag on the back seat. The government has articulated reasons for withholding the informant's identity and consistently has taken steps to preserve it. The presence of a loaded firearm at the crime scene is some evidence confirming the reasons for concern.
Investigator Garman testified with specificity as to what the informant had told him and why he considered the informant credible. He further described what measures he personally took to assess the reliability of the particular information. On these facts and circumstances, Investigator Garman was justified in treating the informant's statement and his visual confirmation of certain details as reasonably trustworthy information. The defendant points to no serious omissions or concerns with Garman's testimony about the informant as to even warrant an in camera hearing. Finding that the defendant has not carried his burden of proving the necessity of disclosure, the court denies the defendant's motion.
Motion to Suppress Evidence and Statements (Dk.22)
The defendant challenges both the initial stop and the subsequent searches of his *1213 person and car as unlawful. With regard to the stop, the defendant denies that Garman had a sufficient basis to treat the informant as reliable. The defendant contends that Garman lacked a reasonable belief of risk or danger to justify handcuffing him as part of the traffic stop and, alternatively, that Garman lacked probable cause to arrest and handcuff him. The defendant challenges the pat-down search as unjustified, for the officers were without information that he was armed or dangerous and the furtive movements of the defendant and the passenger are not enough. Thus, the officer exceeded his lawful authority for an investigative detention and lacked probable cause to proceed with the actions taken. Finally, the defendant seeks to suppress his statements subsequently made as following on the heels of an illegal search and seizure.
The government argues the informant's tip provided reasonable suspicion to justify the initial stop and investigative detention and, alternatively, contends the same tip along with the officers' independent partial corroboration of it provided probable cause to arrest the defendant. The government insists the officers' use of handcuffs and pat-down search was justified under the circumstances.

Initial Stop
An officer conducting a traffic stop must point to "specific and articulable facts and rational inferences drawn from those facts" that give rise to a reasonable suspicion of criminal activity. United States v. Fernandez, 18 F.3d 874, 878 (10th Cir.1994) (quotation omitted). Reasonable suspicion requires the officer to act on "something more than an inchoate and unparticularized suspicion or hunch." United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1, (1989) (internal quotation marks omitted). Reasonable suspicion of criminal activity is a "likelihood of criminal activity . . . that need not rise to the level required for probable cause, and . . . falls considerably short of satisfying a preponderance of the evidence standard." United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (quotations and citations omitted); see United States v. Hauk, 412 F.3d 1179, 1185-89 (10th Cir.2005) ("Reasonable suspicion may be established by information that is different in quantity or content and less reliable than the information required to establish probable cause." (internal quotations and citations omitted)). Courts are to view reasonable suspicion as a "fluid concept[]" which finds its substance in the particular settings under question. Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Even conduct that is wholly innocent may sustain a finding of reasonable suspicion in some circumstances. Sokolow, 490 U.S. at 9-10, 109 S.Ct. 1581. Indeed, "[a] determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct." United States v. Arvizu, 534 U.S. at 277, 122 S.Ct. 744.
The burden rests with the government to prove the reasonableness of the officer's suspicion. United States v. Salzano, 158 F.3d 1107, 1111 (10th Cir.1998). "A variety of factors may contribute to the formation of an objectively reasonable suspicion of illegal activity." United States v. Hunnicutt, 135 F.3d at 1349. "The law does not specify a minimum of factors necessary to constitute reasonable suspicion." United States v. Gutierrez-Daniez, 131 F.3d at 942 (citation omitted). Arriving at reasonable suspicion is a process dealing with probabilities, not hard certainties, "`as understood by those versed in the field of law enforcement.'" United States v. Gutierrez-Daniez, 131 F.3d at 942 (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). Instead of closing their eyes to suspicious circumstances, *1214 officers may call on their own experience and training to judge facts and even "perceive meaning in actions that appear innocuous to the untrained observer." United States v. Gutierrez-Daniez, 131 F.3d at 942 (citation omitted).
In evaluating a claim of reasonable suspicion, the court assesses the totality of the circumstances, avoids pigeonholing facts as suspicious or not, and "gives deference to a trained law enforcement officer's ability[1] to distinguish between innocent and suspicious circumstances." United States v. Mendez, 118 F.3d 1426, 1431 (10th Cir.1997). In other words, courts "may not evaluate and reject each factor in isolation." United States v. Gandara-Salinas, 327 F.3d 1127, 1130 (10th Cir.2003). "A confidential tip may justify an investigatory stop if under the totality of the circumstances the tip furnishes both sufficient indicia of reliability and sufficient information to provide reasonable suspicion that criminal conduct is, has, or is about to occur." United States v. Leos-Quijada, 107 F.3d 786, 792 (10th Cir.1997) (citations omitted).
Under the reliability prong, the court considers "the credibility or veracity of the informant's knowledge, the basis of the informant's knowledge, and the extent to which the police are able independently to verify the reliability of the tip." Id. (citations omitted). Investigator Garman testified at length on the informant's reliability as demonstrated in his earlier disclosures of information, his involvement in controlled purchases of drugs and subsequent debriefings, and his detailed information used to secure an earlier search warrant that led to the discovery of drugs. The informant provided information that was specific and detailed with regard to the kind of drugs involved, the names and descriptions of those involved, the location of the suspects, and the car that was being driven. Investigator Garman conducted surveillance that corroborated what the informant had disclosed about location and description of the suspects and their car. At Garman's request, the informant came to the location and confirmed the identity of the suspects and their vehicle while Garman was also watching the location. Garman also determined the car being driven by the defendant was registered to a person whom he personally knew was involved in the distribution of drugs.
Under the content prong, the informant told the officer that the defendant was in the drug, trafficking business and currently possessed one ounce of crack cocaine. Investigator Garman understood that the informant was speaking from personal knowledge or observation of the suspects. The corroborating matches between the detailed information provided and the officer's subsequent observations sufficiently bolsters the tip. Under the totality of the circumstances, the informant's tip gave reasonable suspicion to make an investigative detention.

Use of Handcuffs and Pat-down Search
"The allowable scope of an investigative detention cannot be determined by reference to a bright-line rule." United States v. Neff 300 F.3d 1217, 1220 (10th Cir.2002). "[C]ommon sense and ordinary human experience must govern over rigid criteria." Id. The Tenth Circuit has recognized that "`[a] law enforcement agent, faced with the possibility of danger, has a right to take reasonable steps to protect *1215 himself and an obligation to ensure the safety of innocent bystanders, regardless of whether probable cause to arrest exists.'" United States v. Carter, 360 F.3d 1235, 1240 (10th Cir.2004) (quoting United States v. Merkley, 988 F.2d 1062, 1064 (10th Cir.1993)). To put it another way, though not every investigative detention warrants handcuffs, "a Terry stop does not become unreasonable just because police officers use handcuffs on a subject or place him on the ground." United States v. Neff, 300 F.3d at 1220. The use of handcuffs is proper if there is "a reasonable, articulable ground for fearing danger from the suspects." Id. at 1221; see Carter, 360 F.3d at 1240.
Another safety measure officers can take to secure their safety and maintain the status quo is a pat-down search for weapons. United States v. Garcia, 459 F.3d 1059, 1063 (10th Cir.2006). A pat-down constitutes a Fourth Amendment search. Id. "The purpose of the limited pat-down search is not to discover evidence of a crime, but to allow the officer to pursue his investigation without fear of violence." Id. (quotations and citations omitted). Rather than a regular part of investigative detentions, pat-downs are reserved for when "the facts available to the officer would warrant a man of reasonable caution to believe that a frisk would be necessary to protect himself." United States v. Manjarrez, 348 F.3d 881, 886 (10th Cir.2003), cert. denied, 541 U.S. 911, 124 S.Ct. 1622, 158 L.Ed.2d 259 (2004).
"[A]n individual's involvement with drug transactions or distribution can support reasonable suspicion to frisk that individual for weapons." Garcia, 459 F.3d at 1064 (citing United States v. Hishaw, 235 F.3d 565, 570-71 (10th Cir.2000) (and case cited therein including, United States v. Perrin, 45 F.3d 869, 873 (4th Cir.1995) ("[I]t is certainly reasonable for an officer to believe that a person engaged in the selling of crack cocaine may be carrying a weapon for protection."), cert. denied, 515 U.S. 1126, 115 S.Ct. 2287, 132 L.Ed.2d 289 (1995)), cert. denied, 533 U.S. 908, 121 S.Ct. 2254, 150 L.Ed.2d 241 (2001)); see also United States v. Johnson, 364 F.3d 1185, 1194-95 (10th Cir.2004) (Drug dealing is a crime "typically associated with some sort of weapon."); United States v. Bustos-Torres, 396 F.3d 935, 943 (8th Cir. 2005) ("Because weapons and violence are frequently associated with drug transactions, it is reasonable for an officer to believe a person may be armed and dangerous when the person is suspected of being involved in a drug transaction."), cert. denied, 545 U.S. 1109, 125 S.Ct. 2557, 162 L.Ed.2d 284 (2005).
Based on the reliable tip that the suspect was in possession of larger amount of crack cocaine indicative of drug dealing, Investigator Garman reasonably believed the defendant may be in possession of a weapon. Courts have recognized furtive and evasive gestures to be an additional factor in proof of reasonable suspicion. See United States v. Carter, 360 F.3d at 1240 (evasive action taken in response to the officer's presence); United States v. Ridley, 1998 WL 778381 (10th Cir.1998) (furtive movements support a finding of reasonable suspicion). The similar furtive movements of both the driver and passenger in reaching around their waists as the officer approached their stopped car escalate an officer's reasonable concern for his safety and that of others. Weapons frequently are carried or hidden in the waistbands, the same area where both suspects were seen reaching. Upon seeing these furtive gestures, Investigator Garman showed his immediate concern for safety by shouting at the suspects to show him their hands. Considering the number of suspects, their similar furtive gestures, their delayed response in complying with *1216 Garman's requests and their suspected drug dealing, Garman reasonably and appropriately handcuffed the defendant and conducted a pat-down for weapons.
During the pat-down search of the defendant's outer clothing, Garman felt what he believed from training and experience was a small plastic bag of marijuana. Garman then reached into the defendant's front pocket and seized the plastic bag that appeared to contain marijuana. In Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), the Supreme Court upheld such a seizure by analogy to the plain-view doctrine:
If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.
Id. "The Supreme Court concluded that a `plain feel' exception to the warrant requirement would justify the seizure of contraband detected during a pat down because the officer knew the nature of the item." United States v. Thomson, 354 F.3d 1197, 1200 (10th Cir.2003) (footnote omitted), cert. denied, 541 U.S. 1081, 124 S.Ct. 2438, 158 L.Ed.2d 997 (2004). Thus, upon detecting the plastic bag of marijuana during the pat-down search, Investigator Garman lawfully reached into the defendant's pocket and seized it.
In light of the above findings and analysis, the court deems it unnecessary to consider at this time the government's alternative arguments for denying the defendant's motion to suppress.
IT IS THEREFORE ORDERED that the defendant's motion to compel discovery regarding informant (Dk. 21) and motion to suppress evidence and statements (Dk. 22) are denied;
IT IS FURTHER ORDERED that the defendant's motion to suppress evidence seized from cellular phones (Dk. 23) is granted on the agreement of the parties.
NOTES
[1]  Indeed, courts are "to accord deference to the officer's ability to draw on his own experience and specialized training to make inferences from and deductions about the cumulative information available to him that might well elude an untrained person." United States v. Johnson, 364 F.3d 1185, 1193 (10th Cir.2004) (citations and internal quotations omitted).


443 F.2d 579
DOYN AIRCRAFT, INC., a corporation, Plaintiff-Appellee,v.James C. WYLIE and Atlas Aviation Sales, Inc., a corporation, Defendant-Appellant.
No. 228-70.
United States Court of Appeals Tenth Circuit.
June 4, 1971.

Donald L. Martin, Houston, Tex., for defendant-appellant.
Gerald L. Michaud, Wichita, Kan. (Bradley Post, Wichita, Kan., on the brief), for plaintiff-appellee.
Before BREITENSTEIN and HILL, Circuit Judges, and LANGLEY, District Judge.
HILL, Circuit Judge.

1
Doyn Aircraft brought suit against Wylie to recover for breach of contract, fraud, and for conversion of seventeen Supplemental Type Certificates (STC's).1 After trial to the court without a jury, judgment was entered in Doyn Aircraft's favor awarding $32,000 for breach of contract, $3,000 for expenses in securing new STC's, and $15,000 as reasonable attorney's fees. The sum of $6,043.77 due and owing from Doyn Aircraft to Wylie was offset against the judgment, making the net recovery $43,596.23. Wylie appeals.

2
Doyn Aircraft is a Kansas corporation with its principal place of business in Wichita; Wylie is a Texas citizen. In August, 1965, Wylie visited Means, the president of Doyn Aircraft, in Wichita to investigate the possibility of becoming a distributor for airplane conversion kits manufactured by Doyn Aircraft under the authority of the seventeen STC's. It was known from the outset that Doyn Aircraft was in financial difficulties, and that financing would be needed to pursue the proposed venture. Negotiations continued between the parties until October 16, 1965, when Means traveled to Houston and executed a distributorship contract.

3
Wylie signed the agreement as trustee for a corporation that would be Doyn Aircraft's exclusive distributor. The distributor was to purchase a minimum of eight conversion units per month, commencing January 1, 1966. Upon thirty days' notice either party could terminate the contract for designated reasons, and if a dispute arose over the meaning of the contract terms, Texas law would govern.

4
To provide financing for the venture, Means simultaneously executed a promissory note in the principal sum of $28,000 to the order of Wylie. Appellant then gave Means a $22,460 check which represented the cash proceeds of the note. After Means left for Kansas, Wylie became unsure of the agreement and stopped payment on the check. After more fully investigating the financial and legal status of Doyn Aircraft, Wylie met with the other parties in Wichita on November 4 and 5, 1965, in an attempt to iron out the difficulties and reconstruct the details of the venture.

5
The precise details as to what occurred with regard to the distributorship contract are clouded by faulty and conflicting memories. Wylie and his lawyer have no recollection that a new contract was negotiated nor that the "Houston contract" was altered. The Doyn Aircraft witnesses recall that the "Houston contract" was retyped with changes made, resulting in a new contract. There seems to be no dispute that Wylie agreed to send Means a $25,000 check, less the $6,043.77 debt, once he returned to Houston; that the STC's were transferred to Wylie as security for the loan; that an option to repurchase was executed; and that Wylie agreed that after he returned to Houston, he would execute an exclusive use agreement to allow Doyn Aircraft to continue manufacturing the conversion units. Immediately following the meetings, Wylie caused the STC's to be registered in his name.

6
Once Wylie returned to Houston with the STC's in his name, he refused to send Means the check, he refused to execute the exclusive use agreement, he refused to return the STC's which he held only as security for the loan he refused to negotiate and kept them instead as security for the $6,043.77 debt; he refused to place any orders with Doyn Aircraft, and he formed Atlas Aviation Sales, Inc., the anticipated corporation, and allowed that entity to manufacture the conversion kits under the authority of the seventeen STC's. Means attempted to halt Wylie's unauthorized use of the STC's but was unsuccessful. Eventually Means was successful in getting other STC's from the FAA to permit Doyn Aircraft to continue manufacturing the conversion kits.

7
This action was originally instituted in the Kansas state courts but was removed to federal court by Wylie. From the outset, and on appeal, appellant has maintained that the federal court in Kansas is without subject matter and in personam jurisdiction. In the petition for removal, without waiving the right to contest the issue of personal jurisdiction, Wylie stated that he had been personally served in Houston, Texas; that the matter in dispute exceeds $10,000; that Doyn Aircraft is a Kansas corporation with its principal place of business in that state; and that Wylie is a Texas citizen.

8
Federal subject matter jurisdiction is conferred here by 28 U.S.C. § 1332. The removal statute, 28 U.S.C. § 1441, generally allows a defendant to remove "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." Original jurisdiction is here based on diversity of citizenship, which Wylie has, by his petition for removal, tacitly admitted. "The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between * * * citizens of different States * * *." 28 U.S.C. § 1332(a).2

9
The brunt of appellant's attack on the power of the Kansas federal court to try the case focuses on whether it was vested with in personam jurisdiction. The resolution of that question, it is agreed, depends upon the application of the Kansas long-arm statute. See Walker v. Field Enterprises, Inc., 332 F.2d 632 (10th Cir. 1964). K.S.A. 60-308(b) generally provides that a nonresident submits to the jurisdiction of the Kansas courts as to a cause of action which arises from his transacting business within the state.

10
The statute is based on the minimum contacts test laid down in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), "and whether due process is satisfied depends upon the quality and nature of the activities of the defendant, which must be determined on a case by case basis." Woodring v. Hall, 200 Kan. 597, 438 P. 2d 135, 141 (1968). Before jurisdiction may be entertained over a nonresident on the basis of transacting business within the state, three basic factors must coincide: "(1) the nonresident must purposefully do some act or consummate some transaction in the forum state; (2) the claim for relief must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice * * *." White v. Goldthwait, 204 Kan. 83, 460 P.2d 578, 582 (1969).

11
Wylie argues that since the distributorship agreement was executed in Texas and was to be governed by the laws of that state, he has not transacted business in Kansas so as to satisfy the minimum contacts standard. Thus the Kansas courts have no basis for asserting personal jurisdiction over him regarding any breach of the distributorship contract. The connection, of course, hinges on the assertion that Wylie did not transact business during the November 4 and 5 visit to Wichita. The trial court overruled this contention on a motion to dismiss for want of jurisdiction, and we are impelled to the same conclusion.

12
Wylie purposefully transacted business within the state. In Woodring v. Hall, 438 P.2d at 144, the Kansas Supreme Court said: "In a broad sense, `business' is transacted within the state when an individual is within or enters this state in person or by agent and, through dealing with another within the state, effectuates or attempts to effectuate a purpose to improve his economic conditions and satisfy his desires."

13
Appellant first traveled to Kansas in August, 1965, in an attempt to begin negotiations for an agreement whereby he would distribute conversion kits for Doyn Aircraft. Even if that contact is insufficient, Wylie spent November 4 and 5 in Wichita attempting to perfect the abortive Houston agreement. The trial court found that at the Wichita meeting the parties reaffirmed the Houston contract, in effect perfecting and implementing the original agreement. Although there is a factual dispute on this point and testimony of the witnesses diverges, there is enough evidence supporting the trial court's finding to preclude a holding of clear error. Moreover, the loan by which the venture was to be financed was renegotiated, an agreement regarding the transfer of the STC's was reached, and the terms of an exclusive use agreement were drawn. We conclude that these acts were "business transactions" in the sense that Wylie was trying to effectuate a purpose to improve his economic conditions and satisfy his desires, and that in so doing he purposely availed himself of the privilege of conducting activities within the State of Kansas.

14
Having sustained the trial court's finding that the distributorship contract was perfected in Kansas, and that the loan agreement, along with the transfer of the STC's, was effectuated in the forum state, it follows that the claims for relief flow out of the same "business transactions". And considering the quality, nature and extent of the activities in Wichita in August and November, 1965, and considering the benefits and protections of the laws of the State of Kansas to all litigants, we are unable to conclude that traditional notions of fair play and substantial justice are affronted. The trial court properly assumed in personam jurisdiction over Wylie as to the distributorship contract, the loan agreement, and the exclusive use agreement.

15
The second point raised by appellant urges that the trial court erred in awarding attorney's fees to appellee. The argument is that appellee "is restricted in its right to recovery of attorney's fees to that portion of its suit brought directly on the [distributorship] contract." The dissension originates from appellant's misapprehension that attorney's fees were allowed on the causes of action arising out of the other contracts. This is resolved by a reading of the trial court's memorandum which allows the attorney's fees "as provided by Paragraph 15 of Exhibit 1 [the distributorship contract]." We find no indication that the award had any other source of support.

16
Another part of this argument is that assuming the propriety of awarding attorney's fees, appellee failed to maintain its burden of proving the reasonableness of the fee. The contention is premised on Texas law which does require a tender of proof of reasonableness. Great American Reserve Insurance v. Britton, Tex., 406 S.W.2d 901 (1966). Kansas law governs this issue. "Upon questions of the burden of proof, which are substantially within Erie rather than procedural, the law of the state in which the federal court is held * * * must be applied by the federal court." 1A Moore's Federal Practice, ¶ 0.311[1] at 3409.

17
In Kansas, if the case is a proper one for assessment of attorney's fees, such an award by the trial court does not depend upon expert testimony as to the value of such legal services. If there is no evidence as to the reasonableness of the attorney's fees, the trial court may apply its own knowledge and professional experience in determining the value of the services rendered. Wolf v. Mutual Benefit Health and Accident Assn., 188 Kan. 694, 366 P.2d 219, 234 (1961); Wollard v. Peterson, 145 Kan. 631, 66 P.2d 375, 378 (1937); Elliott v. Crystal Springs Oil Co., 106 Kan. 248, 187 P. 692, 693 (1920). We have been advised of no reason why, if the law allows the trial judge to set the amount, the award of attorney's fees should be altered, so the amount is sustained.

18
Wylie's third point is that he should not be personally liable upon the distributorship agreement since he signed it as trustee for a corporation to be formed. Whether we use appellant's argument or follow the reasoning of the trial court, Wylie is personally liable. The main thrust of his argument is that under Texas law, where his corporation was formed, a promoter incurs no personal liability if a contract is made on behalf of a corporation to be formed, provided the third party agrees to look to the corporation and not the promoters for payment. Schwedtman v. Burns, 11 S.W.2d 348 (Tex.Civ.App.1928); Weeks v. San Angelo National Bank, 65 S.W.2d 348 (Tex.Civ.App.1933). The fallacy in the argument is in the fact that the contract will not support Wylie's assertion that appellees were not charging him with responsibility in the performance of the agreement. Paragraph 8 of the distributorship contract provides: "It is expressly agreed and understood that this contract is being made by JAMES C. WYLIE for the benefit of a corporation to be formed, and all rights hereunder of the Distributor are assignable by the said WYLIE, and upon such assignment and assumption of liabilities by the assignee, the said WYLIE shall not have any liability hereunder." (emphasis added). Appellant admits that he never assigned the contract rights to his corporation. That failure fastens liability squarely on him as provided in the agreement.

19
The trial court approached the problem from the standpoint that Wylie's corporation (Atlas Aviation, Inc.) was the alter ego of Wylie and served merely as a business conduit for him. The doctrine of alter ego "fastens liability on the individual who uses a corporation merely as an instrumentality to conduct his own personal business, such liability arising from fraud or injustice perpetrated not on the corporation but on third persons dealing with the corporation. Under it the court merely disregards corporate entity and holds the individual responsible for his acts knowingly and intentionally done in the name of the corporation." Kilpatrick Bros., Inc. v. Poynter, 205 Kan. 787, 473 P.2d 33, 42 (1970). In the dealings here relevant, the identities of the individual and the corporation merged, and to segregate them as appellant desires would cause an inequitable result. We cannot detect clear error in the trial court's findings.

20
Appellant finally alleges that the trial court erred in failing to compel appellee to elect its remedy. One inconsistent remedy was voluntarily abandoned prior to the trial. And the trial court obviously found that the remainder were not inconsistent. See, Waddell v. Blanchard, 171 Kan. 280, 232 P.2d 467 (1951). Upon a perusal of the pleadings, the pre-trial conference and pretrial order, as well as the trial court's memorandum, the lower court's action must be sustained.

21
In concluding, we note appellee's charges that the appendix submitted by appellant is wholly insufficient. The fifteen page appendix to appellant's brief is an obviously inadequate attempt to accurately represent a record which consists of over 260 pages of motions, orders, exhibits, etc.; over 365 pages of depositions; nearly 100 pages of transcript from the pre-trial conference; and a 527-page transcript of the trial. To assure a meaningful review of the issues on appeal, we have requested and received from the trial court the eight-volume record. Thus the decision herein rests on a consideration of the eight-volume record and appellant's appendix.

22
Affirmed.

Notes:

1
 STC's are issued by the Federal Aviation Administration for the purpose of allowing modification work to aircraft. They do not, however, grant exclusive rights since any number of people can acquire an STC for the same type of modification

2
 28 U.S.C. § 1332(c) reads: "For the purposes of this section and section 1441 of this title, a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business * * *."


                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT

                                No. 08-1617

BEAUVAIS BELLEVUE,

                  Petitioner,

             v.

MICHAEL B. MUKASEY, Attorney General,

                  Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Submitted:    December 31, 2008               Decided:   January 27, 2009

Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Arnedo S. Valera, LAW OFFICES OF VALERA & ASSOCIATES, Fairfax,
Virginia, for Petitioner. Gregory G. Katsas, Assistant Attorney
General, William C. Peachey, Assistant Director, Mona Maria
Yousif, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Beauvais       Bellevue,      a       native   and    citizen   of    Haiti,

petitions for review of an order of the Board of Immigration

Appeals       (“Board”)       affirming          the    immigration       judge’s     order

denying       sua    sponte     reopening        of    his    removal   proceedings     and

declining to exercise its discretion to do the same.                                We lack

jurisdiction to review the Board’s discretionary authority to

sua sponte reopen proceedings.                       See Lenis v. U.S. Att’y Gen.,

525    F.3d    1291,     1292-93      (11th      Cir.    2008)      (collecting     cases);

Tamenut v. Mukasey, 521 F.3d 1000, 1004 (8th Cir. 2008) (same).

Accordingly, we deny the petition for review.                           We dispense with

oral    argument        because       the    facts      and    legal    contentions     are

adequately          presented    in    the    materials        before    the   court    and

argument would not aid the decisional process.

                                                                         PETITION DENIED

                                                 2


508 P.2d 798 (1973)
Jesse M. GALLEGOS and Margaret Gallegos, Plaintiffs-Appellees,
v.
Carl GRAFF and Frieda Graff, Defendants-Appellants.
No. 72-329.
Colorado Court of Appeals, Div. I.
April 10, 1973.
Anthony J. Pasquale, Denver, for defendants-appellants.
Selected for Official Publication.
ENOCH, Judge.
This action was brought by Jesse M. and Margaret Gallegos, plaintiffs-appellees, against Carl and Frieda Graff, defendants-appellants, to recover damages for alleged defects in a house. After a trial to the court, judgment was entered in favor of the plaintiffs in the sum of $525 for the replacement of the furnace, $75 for the repair of the roof, and the cost of maintaining the action. We reverse.
The Graffs bought the house new in 1954 and made it their home for 15 years. In July 1969 the Gallegoses purchased the house through a real estate sales agent and immediately moved in. Testimony at the trial revealed that there was some mention by the Graffs to the Gallegoses that the *799 house was in "good condition," but nothing of specificity was asked for nor offered by any of the parties. In September of that same year, the Gallegoses attempted to operate the furnace, but they found that it was defective and would have to be replaced. A new furnace was installed. It was also discovered that the roof had a minor leak, and although the Gallegoses obtained an estimate, they did not have the roof repair work done.
The trial court, in its finding of fact, found neither fraud nor misrepresentation present in the transaction. It isolated the real and only issue as one of implied warranty. The court ruled that, regardless of the seller's lack of knowledge at the time of the sale, the seller is liable for damages due to a defective furnace and a leaky roof if such were the conditions at the time of the sale. As basis for the ruling, the trial court relied on the Uniform Commercial Code and the Colorado Jury Instructions.
It should first be noted that the Uniform Commercial Code does not apply to the transfer of interests in real property. C.R.S.1963, XXX-X-XXX, XXX-X-XXX. Although real property may make up all or part of the consideration paid in a transaction, "the transfer of the interest in realty or the transferor's obligations in connection therewith" are not affected by the code. C.R.S.1963, XXX-X-XXX(2).
Further, in promulgating the Colorado Jury Instructions, it was not the purpose of the Supreme Court to compile a restatement or an encyclopedia of prevailing law. The intent was to provide clear and impartial forms for use by the trial court in preparing instructions for juries. The forms are to be used with discrimination, keeping in mind that they are not law in themselves and, in order to continually provide accurate assistance to juries, must be refined and modified in accord with changes in statutes and the body of appellate decisions. Colorado Jury Instructions p. xxi.
In any event, it was error to find that the Graffs were liable on the theory of implied warranty. It is true that the implied warranty doctrine is available to the buyer of a newly constructed house against the builder-vendor to hold the builder-vendor responsible for complying with the building codes, accomplishing the construction in a workmanlike manner, and delivering the house in a condition suitable for habitation. Carpenter v. Donohoe, 154 Colo. 78, 388 P.2d 399. This implied warranty, however, does not extend to the Gallegoses as purchasers of a used home from the Graffs who were not the builders of it. H. B. Bolas Enterprises, Inc., v. Zarlengo, 156 Colo. 530, 400 P.2d 447; Wright v. Creative Corporation, 30 Colo. App. 575, 498 P.2d 1179.
The judgment of the lower court is reversed with directions to enter a judgment for defendants.
PIERCE and SMITH, JJ., concur.


79 B.R. 490 (1987)
In re Robert D. FAUTH, Susan K. Fauth, Debtors.
Bankruptcy No. 87-40276.
United States Bankruptcy Court, D. Montana.
November 6, 1987.
John Forsythe, Billings, Mont., for debtors.
Victoria L. Francis, Billings, Mont., for Prudential Ins. Co.
Dunlap and Caughlan, Butte, Mont., trustee.
John F. O'Keefe, Sp. Asst. U.S. Atty., Helena, Mont., for SBA.

ORDER CONFIRMING CHAPTER 12 PLAN
JOHN L. PETERSON, Bankruptcy Judge.
Hearing on the Debtors' Chapter 12 Plan, as amended by stipulation with Prudential Insurance Company, was held on October 14, 1987. All creditors have consented to the Plan except the U.S. Small Business Administration (SBA), which has filed with the Court a motion to include in the findings of fact matters relating to the liquidation value of the Debtors' assets, so that the Plan will comply with § 1225(a)(4) of the Code. While SBA does not seem to object to the Plan, evidently it feels that by liquidating the farm assets under Chapter 7, it will receive more by that process than it would from payments due it as an unsecured creditor from the Debtors' net disposable income.
As I understand SBA's position, it claims that about $40,000.00 worth of machinery which is essential to continued operation of the farm is unencumbered, and therefore, upon liquidation would be paid ratably among unsecured creditors. Under the Plan, the net disposable income proposed to be paid to unsecured creditors totals $15,021.00 over the 3 year Plan period. The Debtors' liquidation analysis shows, however, that upon liquidation there would be no assets remaining after payments to secured creditors to satisfy any portion of unsecured claims. Thus, the claim by SBA that it would receive more on liquidation under Chapter 7 than by confirmation of the Plan is without merit.
Even if I were to assume that SBA's position on liquidation is correct, the Plan is nevertheless still confirmable. Under *491 § 1225(a)(4), known as the "best interest of creditors" test, see, In re Chapman, 51 B.R. 663, 668 (Bankr.D.C.1985), an unsecured creditor must receive value as of the effective date of the Plan which is not less than the amount which such creditor would receive if the estate were liquidated under Chapter 7. But the inquiry on confirmation does not end there if the unsecured creditor, such as SBA, objects that the Plan does not comply with 1225(a)(4). For if SBA is correct, and liquidation must proceed, then the clear intent of Congress to keep the family farmer in operation would be thwarted. Congress did not intend such result. Rather, Congress, in such cases, has provided an exclusive remedy to the objecting unsecured creditor in Subsection (b)(1) of § 1225. That subsection requires that the objecting unsecured creditor must be treated in either one of two ways, namely, (A) its allowed claim must be paid in full, or (B) all of the debtor's projected disposable income must be committed under the Plan to payments of claims. In this fashion, then, the family farm can continue in operation with the land, equipment and machinery which is essential to make it a viable enterprise. The Plan in this case does just that. It commits the Debtors' disposable income to the payment of unsecured claims, and thus the liquidation of the farm is avoided. Unless 1225(a)(4) and 1225(b)(1) are applied in this manner, § 1225(b)(1) could, in some instances, be superfluous. In sum, Congress has met the best interest of creditor's test by opting against liquidation of the farm in favor of continued operation with the attendant commitment that all of the disposable income will be used to pay claims. In most cases, § 1225(a)(4) is easily met since there would be no assets available upon liquidation. In those sparse cases where liquidation of necessary, but unencumbered, assets may result in more payment of unsecured claims, the relief to unsecured creditors is compromised by allowing the family farm to remain viable upon the conditions set forth in 1225(b)(1).
IT IS ORDERED:
(1) The Debtors' Plan as amended and modified by the stipulation with Prudential Insurance Company is confirmed.
(2) The Debtors shall pay the the Trustee the sums provided for in the Plan at the times and amounts provided therein.
(3) Compensation of the Trustee is fixed at 5% of all payments made to creditors during the term of the Plan.
(4) Necessary and actual expenses of the Trustee shall be approved upon order of this Court.
(5) The value of collateral securing debts due holders of secured claim is fixed at the values stated in the Amended Plan as modified by the stipulation with Prudential Insurance Company.
(6) Upon completion of the Debtors' Plan according to its final terms, all judgments and U.C.C. filings shall be satisfied.
(7) Payment to Debtors' attorney for fees and costs advanced is allowed in the sum of $2,654.70.
(8) The life of this Plan is three years.
(9) This Order is subject to any objections filed within 15 days by any party in interest.


776 F.2d 1059
Helmanv.Department of Army
85-819
United States Court of Appeals,Federal Circuit.
7/18/85
MSPB, 23 M.S.P.R. 164
Affirmed


180 Ga. App. 409 (1986)
349 S.E.2d 274
RILEY
v.
THE STATE.
72867.
Court of Appeals of Georgia.
Decided September 24, 1986.
*413 Charles M. Stines, for appellant.
H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, Michael J. Bowers, Attorney General, for appellee.
BIRDSONG, Presiding Judge.
Nelson Riley, Jr., the defendant, filed his notice of appeal to this *410 court from the judgment of conviction and sentence entered on February 14, 1986, for the offense of escape from lawful confinement. The record and transcript are remarkable for the absence of information surrounding the offenses for which the accused was indicted and convicted. Defendant's brief contains an exposition of facts to which the State has agreed, thereby consenting to a decision of this case upon the facts stated. Rule 15 (b) (1), Georgia Court of Appeals.
The indictment charges defendant with the theft of a Ford truck following his escape from the Colquitt County Correctional Institute while serving a sentence for prior convictions for burglary and theft. Riley entered a plea of guilty to the escape count and the count alleging theft was nol prossed. After his return to confinement following his escape, defendant says he was appointed counsel but met with his attorney only once and never saw him again. He contends a detainer was not filed with the Department of Corrections, but admits the district attorney filed a letter with the Department advising them there was an outstanding warrant for Riley's arrest and the State intended to prosecute him. On his release from Reidsville, Riley was taken to Colquitt County for prosecution. His previously appointed attorney was relieved and another counsel was appointed in his place. A Motion to Dismiss Indictment was filed and hearing held in the Grand Jury Room on January 29, 1986. Apparently, because of the small size of the Grand Jury Room, prisoners were detained in the hallway outside the Grand Jury Room. When defendant's case was called, his counsel requested that Riley be brought before the court. "THE COURT: You can wait [for Riley] if you want to, but if you do you're going to have waived this motion. [COUNSEL]: No, Your Honor, I don't want to waive the motion." For reasons kept within the breast of the trial court and incomprehensible to this court considering the immediate presence and availability of the defendant, the hearing on this motion, and other motions presented by counsel at that time, proceeded without the presence of the defendant. Thereafter, defendant entered his plea of guilty to the offense of escape from lawful confinement. He brings this appeal. Held:
1. The absence of defendant from his pretrial hearing on his counsel's motions is enumerated as error. Our Supreme Court has emphasized, in numerous opinions, the basic constitutional right "of a person accused of crime in this State to be present at all stages of his trial. . . ." Gilreath v. State, 247 Ga. 814, 824 (279 SE2d 650). Not even defendant's counsel has the authority to waive his presence during his absence, except by "express authority, or [if his absence is] subsequently acquiesced in by him." (Emphasis deleted.) State v. Phillips, 247 Ga. 246, 248 (275 SE2d 323); see also Wilson v. State, 212 Ga. 73 (90 SE2d 557). Further, the trial court erred by intimating that counsel would "have waived this motion" if he insisted on the *411 presence of the defendant. "Waiver" is the voluntary relinquishment of a known right. Brady v. United States, 397 U. S. 742, 748 (90 SC 1463, 25 LE2d 747). The threatened forfeiture of this constitutional right of accused's presence scarcely can be said to have been "voluntary" on the part of the defendant's counsel.
The U. S. Supreme Court has addressed this issue, in pragmatic fashion, and held that a "defendant has the privilege under the Fourteenth Amendment to be present in his own person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge. . . . Nowhere in the decisions of this court is there a dictum, and still less a ruling, that the Fourteenth Amendment assures the privilege of presence when presence would be useless, or the benefit but a shadow. . . . So far as the Fourteenth Amendment is concerned, the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Snyder v. Massachusetts, 291 U. S. 97, 105-108 (54 SC 330, 78 LE 674). Hence, the general right of a defendant to be present during his trial is circumscribed by the corollary caveat that there is no reversible error unless his absence thwarts a fair and just trial. For this reason, the general rule is that the presence of a defendant is not essential at preliminary pretrial motions (United States v. Lewis, 420 F2d 686 (5th Cir. 1970); cf. Keen v. State, 164 Ga. App. 81 (3) (296 SE2d 91)), and post-trial motions (Dobbs v. State, 245 Ga. 208 (2) (264 SE2d 18); Reid v. State, 119 Ga. App. 368 (1) (166 SE2d 900)), which involve only issues of law. See generally 23 CJS 895, Crim. L., § 974 (b); 21A AmJur2d 375, Crim. L., § 911; Annot. 85 ALR2d 1111; Annot. 23 ALR4th 955.
We must also note that counsel acquiesced in the ruling of the trial court and placed no objection to the procedure adopted. The failure to make timely and specific objection at trial may be treated as waiver. Seabrooks v. State, 251 Ga. 564, 567 (308 SE2d 160); Davis v. State, 135 Ga. App. 203 (2) (217 SE2d 343). A party cannot acquiesce in the ruling of the trial court and then object on appeal. Whisnant v. State, 178 Ga. App. 742, 744 (344 SE2d 536). In the absence of objection, acquiesence in the court's ruling, and this court's finding that the hearing which was not attended by the defendant involved pure questions of law, the defendant's absence did not thwart a fair and just hearing on this matter. While we do not approve of the exclusion of the defendant at the apparent whim of the trial court, under the circumstances of this case, as augmented by appellant's counsel's acquiesence in the action, we find no reversible error. Any error was harmless beyond a reasonable doubt. LaRue v. State, 137 Ga. App. 762, 764 (224 SE2d 837).
2. Defendant contends he was "deprived of effective assistance of *412 counsel. . . ." This issue was not litigated in the trial court and we will not consider its merits when raised for the first time on appeal. Elliott v. State, 253 Ga. 417 (2) (b) (320 SE2d 361); Williams v. State, 251 Ga. 749 (20) (312 SE2d 40); Brown v. State, 251 Ga. 598 (3) (308 SE2d 182).
3. The trial court's denial of defendant's Motion to Dismiss Indictment is enumerated as error. The basis for the motion is an allegation that the State failed to file a detainer with the Department of Corrections and more than two terms of court have passed without disposing of defendant's indictment. Included within this motion is a claim that defendant has been deprived of his right to a speedy trial. Since these issues were raised together in the trial court, we will consider them together on appeal.
Although the defendant alleges the State did not file a detainer, the State says it did. This issue was not developed at trial, but defendant's admission in his brief that the district attorney filed a letter with the Department of Corrections stating there was an outstanding warrant for the defendant, and the State intended to prosecute, substantially complied with the codal definition of a "detainer." OCGA § 42-6-1 (3). The Code Chapter (OCGA Ch. 42-6) which controls detainers does not require the filing of a detainer, but only states what action is required by an inmate if a detainer is filed. To invoke the codal requirement that "an inmate . . . shall be brought to trial within two terms of court" after its filing, it is mandatory that the inmate "has caused to be delivered to the prosecuting officer [filing the detainer] and the clerk of the appropriate court . .. written notice of the place of his imprisonment and his request that a final disposition be made of [his] indictment or accusation. . . ." OCGA § 42-6-3 (a). The defendant freely admitted to the trial court that he made no demand for a speedy trial or disposition of his indictment to the appropriate authorities. The trial court denied defendant's motion to dismiss the indictment. The included issue of lack of a speedy trial was neither raised nor ruled upon by the trial court, and we will not consider it here for the first time. The statute relied upon by defendant was never actuated by a demand for trial. There are some prisoners who do not want a speedy trial on an outstanding indictment, while they are serving a period of confinement for another offense, but raise the issue on appeal solely for the purpose of alleging error. See Hall v. Hopper, 234 Ga. 625, 628 (216 SE2d 839). We find no merit to these enumerations.
Judgment affirmed. Banke, C. J., and Sognier, J., concur in judgment only.


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