F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 6 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 96-6251
v. (D.C. No. CR-96-37-M)
(W.D. Okla.)
JUAN FRANCISCO JASSO-
TREVINO,
Defendant-Appellant.
ORDER AND JUDGMENT *
Paul Antonio Lacy, Assistant Federal Public Defender, Oklahoma City,
Oklahoma, for Plaintiff-Appellant.
Mark A. Yancey, Assistant United States Attorney (Patrick M. Ryan, United
States Attorney, with him on the brief), for Defendant-Appellee.
Before BRORBY, HOLLOWAY and EBEL, Circuit Judges.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
The Defendant in this criminal case, Mr. Juan Francisco Jasso-Trevino,
appeals his conviction of the crime of being in the United States unlawfully after
previously having been deported subsequent to a conviction for an aggravated
felony, a violation of 8 U.S.C. § 1326(a) (1994). Mr. Jasso-Trevino argues the
district court erred in denying his motion to suppress evidence obtained in
violation of the Fourth Amendment. He requests we vacate his conviction,
remand his case to the district court, and reverse the district court's denial of his
motion to suppress. We instead affirm the district court.
I. BACKGROUND
On February 23, 1996, at approximately 1:15 a.m., while monitoring traffic
on Interstate 35, Oklahoma Highway Patrol Trooper Paul Hill observed a Buick
station wagon twice swerve right and briefly straddle the outside lane line.
Thinking the driver was either intoxicated or sleepy, Trooper Hill stopped the
vehicle for improper lane usage, a violation of Okla. Stat. Ann. tit. 47, § 11-309
(West 1988).
Approaching the station wagon, Trooper Hill observed a male driver (Mr.
Jasso-Trevino) and a male passenger (Mr. Jasso-Trevino's father, Mr. Francisco
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Jasso-Amaro) in the front seat. He also noticed three white plastic bags and a
small blue suitcase in the rear. Upon asking Mr. Jasso-Trevino for his driver's
license, Trooper Hill learned he did not speak English but his father did.
Seeing no indications Mr. Jasso-Trevino was intoxicated, Trooper Hill
assumed he was sleepy rather than intoxicated and decided to issue a warning for
improper lane usage rather than a citation. With Mr. Jasso-Amaro interpreting,
Trooper Hill obtained Mr. Jasso-Trevino's vehicle registration and Mexico
driver's license. He asked Mr. Jasso-Amaro to accompany him back to the patrol
car so he could explain why he was issuing a warning and inquire as to how long
Mr. Jasso-Trevino had been driving.
Mr. Jasso-Amaro's responses to his questions raised Trooper Hill's
suspicions. Mr. Jasso-Amaro said he and his son were returning home to Mexico
after visiting relatives in Wisconsin for the past ten days. Trooper Hill thought
this inconsistent with having only one small piece of luggage approximately 14" x
14." Trooper Hill became more suspicious when Mr. Jasso-Amaro was unable to
state the addresses of the relatives they had been visiting or the city in Wisconsin
where they had stayed.
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Trooper Hill asked Mr. Jasso-Amaro if they were transporting any firearms,
alcohol, tobacco, or narcotics, to which Mr. Jasso-Amaro responded "No." He
then told Mr. Jasso-Amaro that after he issued the warning to Mr. Jasso-Trevino,
he wanted Mr. Jasso-Amaro to translate, asking Mr. Jasso-Trevino if it would be
alright to look in the vehicle for those items. They returned to the station wagon,
where Trooper Hill issued the warning to Mr. Jasso-Trevino and returned his
license and registration. Trooper Hill then requested Mr. Jasso-Amaro, who had
opened the passenger door but was still standing, to explain the warning to Mr.
Jasso-Trevino, tell him he was free to go, and ask if he minded one more
question. Mr. Jasso-Amaro spoke in Spanish to his son, looked at Trooper Hill,
and shook his head. Trooper Hill told Mr. Jasso-Amaro to ask Mr. Jasso-Trevino
whether he was transporting any illegal firearms, alcohol, tobacco, or narcotics, at
which time Mr. Jasso-Amaro again spoke in Spanish to Mr. Jasso-Trevino.
Trooper Hill then told Mr. Jasso-Amaro to ask whether it would be okay if he
searched the vehicle. Mr. Jasso-Amaro again spoke in Spanish to Mr. Jasso-
Trevino, who responded by shaking his head and saying "Si."
Construing this as consent to a search, Trooper Hill ordered Mr. Jasso-
Trevino and Mr. Jasso-Amaro to exit the station wagon and stand in front of his
patrol car. He then, for safety reasons, called in other officers who monitored the
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situation while he searched the station wagon with a drug-sniffing canine. The
dog alerted twice on the outside driver's rear wheel well, as well as on an interior
rear compartment located over that wheel well. Upon opening the compartment,
Trooper Hill discovered marijuana seeds and residue. During the course of
Trooper Hill's search, neither Mr. Jasso-Trevino nor Mr. Jasso-Amaro indicated a
lack of consent to the search.
After finding the marijuana remnants, Trooper Hill, through his dispatcher,
contacted the "EPIC" database in El Paso, Texas, to have background checks run
on the detainees. The background check showed Mr. Jasso-Trevino had been
convicted of trafficking in narcotics, was never to reenter the country and should
be arrested for illegal reentry. Trooper Hill then arrested Mr. Jasso-Trevino for
illegal reentry and detained Mr. Jasso-Amaro for marijuana possession. While
patting them down, he found bundles of cash totaling $5,275 in Mr. Jasso-
Trevino's pants and jacket, and $970 on Mr. Jasso-Amaro. Trooper Hill then had
Mr. Jasso-Amaro read Mr. Jasso-Trevino his rights from a card stating a Spanish
version of the Miranda warnings.
Trooper Hill transported Mr. Jasso-Trevino to the Oklahoma County Jail.
Between 8:30 a.m. and 9:00 a.m., Immigration and Naturalization Service
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officials removed Mr. Jasso-Trevino from jail and took him to their Oklahoma
City office. There agents interviewed him after reading him his Miranda rights in
Spanish. Mr. Jasso-Trevino admitted he had been deported from the United
States for trafficking in narcotics and had illegally reentered the country.
Subsequently, a grand jury indicted Mr. Jasso-Trevino for violating 8
U.S.C. § 1326(a). After the district court's denial of his motion to suppress, he
entered a conditional plea of guilty, preserving for appeal the issues raised in his
motion to suppress. Those issues are now before us.
II. ANALYSIS
Mr. Jasso-Trevino's assertions on appeal are threefold. He claims that
although Trooper Hill's initial traffic stop may have been reasonable and justified,
the trooper's subsequent actions were not reasonably related in scope to the
circumstances justifying the original detention. He further contends Trooper Hill
did not have valid consent to search the vehicle. Lastly, Mr. Jasso-Trevino argues
his admission to the Immigration and Naturalization Service agents is
inadmissible because it was given while he was illegally confined, as that
confinement was the product of an unlawful detention, search and seizure.
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The Fourth Amendment bars unreasonable searches and seizures. United
States v. Shareef, 100 F.3d 1491, 1499 (10th Cir. 1996) (citing Wilson v.
Arkansas, 115 S. Ct. 1914, 1916 (1995)). When reviewing the denial of a motion
to suppress evidence allegedly obtained in violation of the Fourth Amendment, we
accept the factual findings of the district court unless they are clearly erroneous.
United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996). We are mindful
the credibility of witnesses, the weight to be given evidence, and the inferences to
be drawn therefrom are matters for the trial judge. Id.; United States v.
Fernandez, 18 F.3d 874, 876 (10th Cir. 1994). However, the ultimate
determination of whether a search was reasonable under the Fourth Amendment is
a question of law subject to de novo review. Hernandez, 93 F.3d at 1498.
"A traffic stop is a seizure within the meaning of the Fourth Amendment."
United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir. 1995), cert. denied,
116 S. Ct. 2529 (1996). However, ordinary traffic stops are more analogous to
investigative detentions than custodial arrests. Shareef, 100 F.3d at 1500.
Accordingly, we analyze such stops under the principles stated in Terry v. Ohio,
392 U.S. 1 (1968). Shareef, 100 F.3d at 1500. Under Terry, to determine the
reasonableness of an investigative detention, we apply a two-pronged analysis,
examining first "whether the officer's action was justified at its inception," and
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second "whether it was reasonably related in scope to the circumstances which
justified the interference in the first place." 392 U.S. at 20.
Mr. Jasso-Trevino does not contest the validity of the initial stop; 1 rather,
he focuses on the second Terry inquiry, asserting the scope of the detention was
excessive and not reasonably related to the justification for the original stop. The
Supreme Court has informed us that although the permissible scope of an
investigatory detention depends on "the particular facts and circumstances of each
case," it must in any case "last no longer than is necessary to effectuate the
purpose of the stop" and "be carefully tailored to its underlying justification."
Florida v. Royer, 460 U.S. 491, 500 (1983). Thus,
"[a]n officer conducting a routine traffic stop may request a driver's
license and vehicle registration, run a computer check, and issue a
citation. When the driver has produced a valid license and proof that
he is entitled to operate the car, he must be allowed to proceed on his
way, without being subject to further delay by police for additional
questioning."
Fernandez, 18 F.3d at 878 (quoting United States v. Guzman, 864 F.2d 1512,
1519 (10th Cir. 1988)). However, if the officer "has an objectively reasonable
1
His restraint is wise, for "a traffic stop is valid under the Fourth
Amendment if the stop is based on an observed traffic violation." Botero-Ospina,
71 F.3d at 787. It is undisputed Mr. Jasso-Trevino violated Oklahoma law by
improperly swerving out of his traffic lane.
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and articulable suspicion that illegal activity has occurred or is occurring," or if
the driver consents, the officer can further detain the driver for additional
questioning unrelated to the original stop. United States v. Gonzalez-Lerma, 14
F.3d 1479, 1483 (10th Cir.), cert. denied, 511 U.S. 1095 (1994). In determining
whether the officer could have formed a reasonable and articulable suspicion of
criminal activity, we consider "the totality of the circumstances," Fernandez, 18
F.3d at 878, including "the ability of a trained law enforcement officer to
distinguish between innocent and suspicious actions," United States v. Martinez-
Cigarroa, 44 F.3d 908, 912 (10th Cir.) (Baldock, J., concurring), cert. denied,
115 S. Ct. 1386 (1995), though "[a]n officer's 'inchoate and unparticularized
suspicion or "hunch''' is insufficient to give rise to reasonable suspicion."
Fernandez, 18 F.3d at 878 (quoting United States v. Sokolow, 490 U.S. 1, 7
(1989)).
Here, while still engaged in a legitimate traffic stop, Trooper Hill acquired
an "objectively reasonable and articulable suspicion" Mr. Jasso-Trevino was
participating in illegal activity. Initially, Mr. Jasso-Amaro's claim he and his son
were returning from a ten-day vacation did not square with Trooper Hill's
observation the station wagon contained insufficient luggage for that period of
time, indicating something was amiss. See United States v. Arango, 912 F.2d
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441, 447 (10th Cir. 1990) (inadequate amount of luggage for alleged two-week
vacation, combined with driver's inability to provide credible proof of vehicle
ownership, provided reasonable suspicion of illegal activity), cert. denied, 499
U.S. 924 (1991). Upon further questioning, Mr. Jasso-Amaro was unable to
provide the addresses of the relatives he claimed he and his son had been visiting,
or even name the city in which they had allegedly spent the past ten days. See
United States v. Kopp, 45 F.3d 1450, 1453-54 (10th Cir.), cert. denied, 115 S. Ct.
1721 (1995) (looking to incomplete or implausible description of travel plans as
indicia of reasonable suspicion); United States v. Soto, 988 F.2d 1548, 1554, 1556
(10th Cir. 1993) (finding reasonable suspicion where driver appeared "panicky"
and was unable to provide even a general address for the uncle who allegedly
loaned him the car he was driving). The district court, after noting Trooper Hill
to be a "very credible witness," found these objective facts gave Trooper Hill
justification to further detain Mr. Jasso-Trevino and Mr. Jasso-Amaro. We agree
that these facts, taken together, justified Trooper Hill in detaining Mr. Jasso-
Trevino beyond the scope of the initial stop.
Mr. Jasso-Trevino next asserts Trooper Hill did not have valid consent to
search the vehicle, and therefore the search violated his rights under the Fourth
Amendment. Voluntary consent to further questioning or a search may convert a
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traffic stop to a consensual encounter. See Hernandez, 93 F.3d at 1498. If an
individual is free to leave at any time, he or she is not seized within the meaning
of the Fourth Amendment. Id. Thus, the existence of reasonable suspicion or
probable cause is irrelevant if the driver of a vehicle voluntarily consents to its
search. See United States v. Angulo-Fernandez, 53 F.3d 1177, 1180 (10th Cir.
1995). Voluntariness is a question of fact to be determined by examining the
totality of the circumstances. Ohio v. Robinette, 117 S. Ct. 417, 421 (1996). The
burden of proof is on the government to provide "'clear and positive testimony
that consent was unequivocal and specific and freely and intelligently given,'" and
that "consent was given without implied or express duress or coercion." Angulo-
Fernandez, 53 F.3d at 1180 (quoting United States v. Dewitt, 946 F.2d 1497, 1500
(10th Cir.1991), cert. denied, 502 U.S. 1118 (1992)). 2
Here, we cannot say the district court's finding Mr. Jasso-Trevino
voluntarily consented to the search was clearly erroneous. Trooper Hill returned
Mr. Jasso-Trevino's license and registration to him and, through his father,
informed him he was free to go. He then asked Mr. Jasso-Amaro to ask Mr.
Jasso-Trevino whether it would be okay to search the vehicle, and Mr. Jasso-
2
Because we find the detention lawful, the government need not satisfy the
heavier burden, urged by Mr. Jasso-Trevino, applicable when consent is given
after an illegal stop. See, e.g., Fernandez, 18 F.3d at 881.
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Trevino testified he responded "Yes, okay." Though Trooper Hill did not inform
Mr. Jasso-Trevino he had the right to refuse consent, such a statement is not
necessary for consent to be valid. See United States v. Flores, 48 F.3d 467, 469
(10th Cir.), cert. denied, 116 S. Ct. 122 (1995). Notably, Trooper Hill took no
action to intimidate or coerce Mr. Jasso-Trevino: he never threatened Mr. Jasso-
Trevino; he never drew his gun; he did not touch Mr. Jasso-Trevino until the time
of the arrest; there is no indication in the record that he used an intimidating or
coercive tone of voice; and the backup troopers were approximately fifteen to
twenty feet away. See Flores, 48 F.3d at 469 (lack of intimidation or coercion
significant to finding consent voluntary); Soto, 988 F.2d at 1558 (same).
Moreover, through the course of Trooper Hill's search, Mr. Jasso-Trevino did
nothing to indicate a lack of consent; rather, he simply stood idly by. This too
weighs in favor of finding his consent to have been voluntary. United States v.
Chaidez, 906 F.2d 377, 381 (8th Cir. 1990) (citing United States v. Espinosa, 782
F.2d 888, 890-92 (10th Cir. 1986); United States v. Lopez, 777 F.2d 543, 546-48
(10th Cir.1985)).
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Because we find no unlawful detention, search or seizure, Mr. Jasso-
Trevino's argument his statements to Immigration and Naturalization Services
agents are inadmissible "fruit of the poisonous tree" must fail.
AFFIRMED.
Entered for the Court
WADE BRORBY
United States Circuit Judge
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