F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 8 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 96-1453
v.
GUSTAVO MENDEZ,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 96-CR-74-M)
Submitted on the briefs:
Michael G. Katz, Federal Public Defender, Warren R. Williamson, Assistant Federal
Public Defender, Audrey Baker, Research & Writing Specialist, Denver, Colorado, for
Defendant-Appellant.
Henry L. Solano, United States Attorney, John M. Hutchins, Assistant United States
Attorney, Denver, Colorado, for Plaintiff-Appellee.
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.
ANDERSON, Circuit Judge.
Defendant Gustavo Mendez, convicted and sentenced for possession of
methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B), appeals the denial of his motion to suppress evidence. We affirm.*
I.
On February 17, 1996, Colorado State Patrol Trooper Thomas Iovinella was
driving in a marked patrol car on Highway 160, west of Del Norte, Colorado. At 2:20
p.m., Iovinella stopped a Chevrolet Malibu, driven by Mendez, for speeding. As Iovinella
approached the driver’s side of the car, he noticed that a plastic “faceplate” on the
dashboard appeared crooked and that the car’s radio was “crooked and just kind of laying
in [the console].” R. Vol. 4, at 10. Iovinella explained to Mendez the reason for the stop,
and informed Mendez he would issue a warning for speeding. Iovinella requested
Mendez’s driver’s license, registration, and proof of insurance. Mendez produced a
California driver’s license in his name, and an Arizona registration in another person’s
name. Iovinella inquired regarding ownership of the vehicle, and Mendez responded that
the car belonged to his sister’s husband.
After examining the briefs and appellate record, this panel has determined
*
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
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Iovinella asked Mendez where he was headed, and Mendez replied that he was
headed to Colorado Springs to visit his sister. Iovinella asked Mendez where his sister
lived in Colorado Springs. Mendez said that he did not know the address, but knew how
to get there. Iovinella then returned to his patrol car to conduct a computer check on
Mendez’s license and registration, as well as on the vehicle plates. All the checks came
back clear, with “no wants or warrants.” Id. at 11.
When Iovinella returned to Mendez’s car, he again pressed Mendez regarding
whether he knew the location of his sister’s house. Iovinella also asked Mendez whether
he was “carrying any drugs, large sums of money, weapons or explosives.” Id. at 12-13.
When Mendez denied carrying any contraband, Iovinella asked for, and obtained,
Mendez’s oral consent to search the car. Iovinella told Mendez that he appreciated his
cooperation, and explained that he needed Mendez to sign a written consent form.
Iovinella then returned to his patrol car, radioed for backup, and prepared the consent
form.
Trooper Dingfelter, the backup, arrived eight to ten minutes later. Iovinella asked
Mendez to step out of his car and stand by Dingfelter. Iovinella then showed Mendez the
consent form, and asked him to read and sign it. Mendez signed the form.
When Iovinella entered Mendez’s car to commence the search, he smelled
marijuana. He found a jacket in the back seat and handed it to Dingfelter. While
Iovinella continued searching the car, Dingfelter looked through the pockets of the jacket
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and discovered marijuana. Dingfelter arrested Mendez and placed him in the back of the
patrol car. Dingfelter then assisted Iovinella in searching Mendez’s car.
The officers noticed that some screws were missing from the car’s dashboard. The
officers removed a few more screws and pulled off the dashboard’s faceplate. Dingfelter
reached into the vehicle’s air vent, and pulled out two balls wrapped in black duct tape.
He cut one open and discovered a substance later confirmed to be methamphetamine.
Mendez was indicted on March 4, 1996, in the District of Colorado, on one count
of possession of methamphetamine with intent to distribute. He filed a motion to
suppress evidence and statements on April 15, 1996. The district court denied the motion
on May 20, 1996, finding that Mendez’s consent to search the vehicle was voluntary.
Mendez entered a plea of guilty on July 5, 1996, conditioned on his right to appeal the
denial of his motion to suppress. Mendez was sentenced to forty-six months’
imprisonment, four years’ supervised release, and a $50 special assessment. Following
sentencing, this appeal ensued.
II.
On appeal, Mendez argues that Iovinella’s questioning regarding contraband and
consent to search was “outside the scope of the original reason for the traffic stop, and
was not based on a reasonable suspicion that appellant was involved in criminal activity.”
Appellant’s Br. at 6. Mendez requests that we reverse the district court’s denial of his
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motion to suppress, and remand the case in order for the district court to make more
specific findings regarding whether Iovinella had returned Mendez’s driver’s license and
registration prior to requesting consent to search the vehicle. Mendez argues that if
Iovinella asked for consent to search before returning the documentation, then the consent
was obtained as the result of an illegal detention.
“When reviewing the denial of a motion to suppress evidence, we view the
evidence in the light most favorable to the government and the district court’s findings,
and we review the district court’s factual findings only for clear error.” United States v.
Anderson, ___ F.3d ___, 1997 WL 287031, at *3 (10th Cir. May 30, 1997). We review
de novo the district court’s ultimate determination of reasonableness under the Fourth
Amendment. Id.
A routine traffic stop is a seizure under the Fourth Amendment. United States v.
Botero-Ospina, 71 F.3d 783, 786 (10th Cir. 1995) (en banc), cert. denied, 116 S. Ct. 2529
(1996). Governed by the principles of Terry v. Ohio, 392 U.S. 1 (1968), a traffic stop
“must be justified at its inception and the detention must be ‘reasonably related in scope
to the circumstances which justified the interference in the first place.’” Anderson, 1997
WL 287031, at *4 (quoting Terry, 392 U.S. at 20). In this case, there is no dispute that
Mendez’s speeding justified the initial stop. Therefore, we turn to whether “the
investigative detention exceeded permissible Fourth Amendment bounds.” Id.
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An officer conducting a routine traffic stop may run computer checks on the
driver’s license, the vehicle registration papers, and on whether the driver has any
outstanding warrants or the vehicle has been reported stolen. Id.; United States v. Elliot,
107 F.3d 810, 813 (10th Cir. 1997); United States v. McRae, 81 F.3d 1528, 1535 n.6
(10th Cir. 1996). However, once the computer checks confirm that the driver has
produced a valid license and proof of entitlement to operate the car, the driver must be
permitted to proceed on his way, without further delay by police for additional
questioning. Anderson, 1997 WL 287031, at *4; Elliot, 107 F.3d at 813. Further
questioning is permissible only if (1) “the encounter between the officer and the driver
ceases to be a detention, but becomes consensual, and the driver voluntarily consents to
additional questioning,” Anderson, 1997 WL 287031, at *4, or (2) during the traffic stop
the officer gains a reasonable and articulable suspicion that the driver is engaged in illegal
activity. Id.; Elliot, 107 F.3d at 813.
A. Consensual Encounter
In this case, Iovinella checked--and cleared--Mendez’s documentation, and issued
Mendez a warning for speeding. Iovinella then proceeded to ask Mendez whether he was
carrying contraband, and whether he would consent to a search of his vehicle. The
district court found that these additional questions “would not be relevant to the reason
for the stop.” R. Vol. 4 at 86. The government does not dispute this finding, but argues
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that the additional questions were justified by the consensual nature of the prolonged
encounter. Specifically, the government contends that once Iovinella returned Mendez’s
documentation and thanked him for his cooperation, “one would infer a closure to the
detention.” Appellee’s Br. at 13.
While determining whether an officer and driver are engaged in a consensual
encounter typically requires the court to focus on the totality of the circumstances in a
particular case, this circuit has consistently applied at least one bright-line rule: an officer
must return a driver’s documentation before the detention can end. Anderson, 1997 WL
287031, at *5; Elliot, 107 F.3d at 814; McRae, 81 F.3d at 1534 n.3; United States v.
Gregory, 79 F.3d 973, 979 (10th Cir. 1996); United States v. Sandoval, 29 F.3d 537, 540
(10th Cir. 1994) (“no ‘reasonable person’ would feel free to leave without such
documentation”); United States v. McKneely, 6 F.3d 1447, 1451 (10th Cir. 1993) (noting
“the clear line historically drawn between police-citizen encounters which occur before
and after an officer returns a person’s driver’s license, car registration, or other
documentation”). At the suppression hearing, Mendez raised the issue of whether
Iovinella returned his driver’s license and registration before or after asking questions
unrelated to the stop. Iovinella testified that he returned the documentation immediately
after the computer checks came back clear, and before any additional questioning. R.
Vol. 4, at 12, 28, 39. Defense counsel noted, however, that the written consent form
signed by Mendez included the vehicle identification number of Mendez’s car. Counsel
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suggested during cross-examination that Iovinella must have still had the registration at
the time he prepared the form. Iovinella admitted that he wrote the vehicle identification
number on the form after asking Mendez for oral consent, but he claimed he obtained the
number from the dispatcher, rather than from the vehicle registration.1 Id. at 37.
In its oral ruling denying Mendez’s motion to suppress, the district court stated:
There has been this question raised as to how [Iovinella] got the vehicle
identification number [at the time he filled out the written consent form].
His response was that he obtained it from the dispatcher. There’s some
question about that as to whether the officer still had the registration form at
that time and had not returned it, as he testified, that is, returned it before he
asked the question about contraband and asked for the oral consent to
search. I don’t find that to be a significant issue in the case.
Id. at 84. The district court did not consider this a significant issue because it believed the
rule requiring the return of documentation prior to additional questioning applied
principally to cases where there is “an ambiguity with respect to the [oral] consent.” Id. at
87. Finding that there was no question Mendez understood the written consent form, and
that there was a ten minute delay between the oral and written consents during which
Mendez could have reconsidered, the district court concluded the consent was voluntary,
and that a “substantially contemporaneous[]” return of Mendez’s documentation was
sufficient. Id. at 86-88.
1
Investigator McGinniss, who also testified at the suppression hearing, confirmed
that officers can, and sometimes do, obtain vehicle identification numbers from dispatch.
R. Vol. 4, at 76-77. When asked by defense counsel how such information is normally
obtained, however, McGinniss testified it is normally obtained from the registration or the
car itself. Id. at 66.
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Having reviewed the district court’s entire oral ruling, we agree with Mendez that
the district court did not make sufficient findings regarding whether Iovinella returned
Mendez’s documentation before, or after, the additional questioning. Without knowing
the point at which Iovinella returned Mendez’s documents, we cannot determine the
earliest point at which the encounter could have become consensual. See Elliot, 107 F.3d
at 814 (return of documentation is a necessary, but not always sufficient, condition of a
consensual traffic-stop encounter). Contrary to Mendez’s arguments, however, this does
not necessarily require a remand. The additional questioning was justified if, during the
traffic stop, Iovinella gained a reasonable and articulable suspicion that Mendez was
engaged in illegal activity. Anderson, 1997 WL 287031, at *4.
B. Reasonable and Articulable Suspicion2
The government relies upon the following as providing Iovinella with reasonable
and articulable suspicion: Mendez told Iovinella that the car, which was registered in
Arizona, belonged to his sister’s husband, yet he was headed to visit his sister in Colorado
Springs; Mendez did not know his sister’s address; there was no luggage in the back seat;
2
The district court did not rule upon the issue of reasonable and articulable
suspicion. Yet, neither Mendez nor the government mentions this point, and each party
argues the issue on appeal. “[B]ecause the proceedings below resulted in a record of
amply sufficient detail and depth from which the determination may be made,” we resolve
the issue. United States v. McSwain, 29 F.3d 558, 562 (10th Cir. 1994) (citation
omitted); see also McRae, 81 F.3d at 1532 n.1.
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and the dashboard’s faceplate “wasn’t quite straight and looked as if it had been repaired
or replaced,” Appellee’s Br. at 16, and the radio was loose in the console. When
evaluating these factors, we judge the officer’s conduct in light of common sense and
ordinary human experience. McRae, 81 F.3d at 1534. “Our task . . . is not to pigeonhole
each purported fact as either consistent with innocent travel or manifestly suspicious,”
United States v. Lopez-Martinez, 25 F.3d 1481, 1484 (10th Cir. 1994), but rather to
determine whether the totality of the circumstances justify the detention. McRae, 81 F.3d
at 1534. We make our determination with deference to a trained law enforcement
officer’s ability to distinguish between innocent and suspicious circumstances, id.,
remembering that reasonable suspicion represents a “minimum level of objective
justification” which is “considerably less than proof of wrongdoing by a preponderance of
the evidence.” United States v. Sokolow, 490 U.S. 1, 7 (1989) (citation omitted).
Initially, we discount Iovinella’s reliance on the lack of luggage on the vehicle’s
back seat. Although activities entirely consistent with innocent travel can, and frequently
do, contribute to reasonable suspicion, id. at 9, some facts are so innocuous and “so
susceptible to varying interpretations” that they carry little or no weight. United States v.
Lee, 73 F.3d 1034, 1039 (10th Cir. 1996). The vehicle Mendez was driving has a trunk, a
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location in which many, if not most, travelers store luggage. In this instance, we find only
the most minute significance in the fact that Mendez had no luggage on the back seat.3
We hold, however, that the remaining factors provided Iovinella with reasonable
suspicion permitting him to ask Mendez whether he was carrying contraband and whether
he would consent to a search of his vehicle. First, contradictory or implausible travel
plans can contribute to a reasonable suspicion of illegal activity. McRae, 81 F.3d at 1535
(driver claimed to be headed to New York in a rental car due back in Los Angeles in two
days); United States v. Kopp, 45 F.3d 1450, 1453-54 (10th Cir.) (defendant said he was
driving from California to North Carolina to deliver a “very dilapidated sofa to some
friends” and was vague about his actual destination), cert. denied, 115 S. Ct. 1721 (1995);
United States v. Sanchez-Valderuten, 11 F.3d 985, 989 (10th Cir. 1993). Here, Mendez
said that his sister lived in Colorado Springs, but claimed that the car, which was
registered in Arizona, belonged to his sister’s husband. Furthermore, Mendez could not
tell Iovinella his sister’s address in Colorado Springs.4 Although neither of these factors,
3
Of course, we might view a lack of luggage in a vehicle’s passenger compartment
much differently if the driver claimed to be making a lengthy trip and the vehicle did not
have a trunk.
4
With respect to his travel plans, Mendez first told Iovinella that he did not know
his sister’s address, but knew how to get there. At some later point, Iovinella asked
Mendez what part of town his sister lived in, and Mendez did not know. There is some
dispute over whether the later question was asked before or after Iovinella cleared
Mendez’s documents and issued the citation. For purposes of determining reasonable
suspicion, we have considered only Mendez’s initial statement that he did not know the
address, but knew how to get there.
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when viewed individually, is manifestly suspicious, both could properly contribute to a
reasonable suspicion in an experienced officer.
Second, Iovinella, a six-year veteran, observed a crooked dashboard faceplate and
dismounted radio. These observations also could contribute to an experienced law
enforcement officer’s reasonable suspicion of illegal activity. “[A]n experienced law
enforcement officer would know that drug couriers do not often leave their contraband
‘strewn across the trunk or floor of a car,’ and that they frequently hide drugs . . . inside
the cavities in a car’s panels.” United States v. Chaidez, 906 F.2d 377, 384 (8th Cir.
1990) (quoting United States v. Ross, 456 U.S. 798, 820 (1982)). Disassembled interiors,
scratched paint, missing screws or other signs that a vehicle’s paneling or natural
configuration has been altered often lead law enforcement officers to the discovery of
contraband. See, e.g., Anderson, 1997 WL 287031, at *2 (where observation of “fresh
tool marks on the gas tank” led to the discovery of a drug-filled compartment in the gas
tank); United States v. Pena, 920 F.2d 1509, 1512 (10th Cir. 1990) (where “loose,
crooked and missing screws on the interior molding” led officer to discover cocaine in the
quarter panel); United States v. Olivier-Becerril, 861 F.2d 424, 425 (5th Cir. 1988)
(where presence of bondo and glued-down carpeting led to discovery of cocaine under
trunk’s carpeting); United States v. Espinosa, 782 F.2d 888, 892 (10th Cir. 1986) (drugs
found behind loose quarter panel); United States v. Lopez, 777 F.2d 543, 546 (10th Cir.
1985) (drugs found behind stereo speakers). Hence, we hold that Iovinella’s observations
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of the dislocated dash and dismounted radio, along with Mendez’s vague travel plans,
provided Iovinella with reasonable suspicion, and justified the brief detention of Mendez
following his traffic stop.
C. The Validity of Mendez’s Consent
Having concluded that Iovinella lawfully detained Mendez during the brief period
in which he asked Mendez whether he was carrying contraband and whether he would
consent to a search of the vehicle, the only remaining question is whether Mendez’s
subsequent consent was voluntary. A person who is being detained may give a voluntary
consent to search. McRae, 81 F.3d at 1537. In determining voluntariness, we consider
whether the consent was “unequivocal and specific and freely and intelligently given,”
and whether it was given without duress or coercion. United States v. Angulo-Fernandez,
53 F.3d 1177, 1180 (10th Cir. 1995) (quoting United States v. Dewitt, 946 F.2d 1497,
1500 (10th Cir. 1991)). On appeal, Mendez’s contention that his consent was involuntary
is entirely dependent upon his argument that he gave the consent during an illegal
detention. He does not make any argument that his consent was involuntary even if
obtained during a lawful detention. We have, however, reviewed the circumstances of
Mendez’s consent, and find no signs of coercion or duress, and no reason to doubt its
specificity or that it was freely given. Accordingly, we conclude that the search was legal
and that the district court correctly denied Mendez’s motion to suppress.
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III.
For the foregoing reasons, we AFFIRM the denial of Mendez’s motion to
suppress.
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