F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 21 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-3031
(D.C. No. 97-CR-10080-01-JTM)
SALVADOR CHAVEZ-CEJA, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY , McKAY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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.
Defendant Salvador Chavez-Ceja appeals his conviction for possession of
methamphetamine with intent to distribute. On May 25, 1997, defendant was
driving from his home in California to Kansas City. He was stopped by Kansas
Highway Patrol Trooper Robert Jimerson while driving on Interstate 70. The
traffic stop was videotaped. A search of defendant’s vehicle during the stop
yielded seven and a half pounds of methamphetamine. Defendant filed a motion
to suppress the methamphetamine seized from his vehicle. Following an
evidentiary hearing, the district court denied the motion. Defendant was
convicted after a jury trial. Defendant contends the district court erred in denying
his motion to suppress.
Background .
Trooper Jimerson testified he stopped defendant’s car because it did not
have a front license plate, required by California law, and a towel was covering
the passenger’s side window, obstructing the driver’s view. Trooper Jimerson
testified that as he approached defendant’s car, he noticed that the back
floorboard of the vehicle looked shallow, appearing to have been altered. The
trooper asked for defendant’s driver’s license and registration, which defendant
provided to him. Trooper Jimerson testified at the suppression hearing that
defendant and his passenger appeared to be “extremely nervous, hands were
shaking, I could see they were breathing very heavily.” R. Vol. II, Doc. 50 at 6.
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Trooper Jimerson also testified that he noticed a strong smell of air freshener
coming from the vehicle. The trooper went to his patrol car, verified defendant
lived in Whittier, California, and wrote out a warning ticket. Defendant does not
dispute that Trooper Jimerson’s initial stop was justified.
After Trooper Jimerson gave defendant the warning ticket and returned his
driver’s license and registration papers, he asked the occupants if they had time to
answer a few questions. The trooper asked the occupants a few questions. After
observing that defendant appeared to speak limited English, he asked the
passenger if he spoke better English than defendant, and the passenger said his
English was a little better. Trooper Jimerson asked the occupants if they had
anything illegal in the car and, specifically, if they had any drugs or weapons. He
was told they did not. The trooper then asked defendant in English if he could
look in the car and, in Spanish, if he could search the car. 1
Trooper Jimerson
testified that defendant answered “si” and pulled the car’s trunk release. As the
district court observed, defendant’s response is not audible on the videotape of
the traffic stop, but the trunk did pop open immediately after Trooper Jimerson
requested consent to search the vehicle. See R. Vol. I, Doc. 28 at 3 and
1
In Spanish, Trooper Jimerson asked, “Puedo registrar su carro?” R. Vol. II,
Doc. 50 at 33, and videotape. Translated, this means, “May I search your car?” or
“May I examine your car?” See Cassell’s Spanish-English, English-Spanish
Dictionary (1978).
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videotape. The district court found that defendant’s consent was freely,
knowingly and intelligently given. 2
Defendant does not dispute the district
court’s findings that Trooper Jimerson’s questioning was justified by an
objectively reasonable suspicion of criminal activity and that the encounter was
consensual.
After defendant opened the car trunk, Trooper Jimerson asked defendant
and his passenger to get out of the car and stand ten feet in front of it during the
search, which they did. The trooper first searched the trunk, then moved to the
passenger side of the vehicle. He looked at, and felt underneath, the vehicle and
the passenger seat. Trooper Jimerson testified that as soon as he put his hand
underneath, he noticed evidence of a hidden compartment. See R. Vol. II, Doc.
2
In his motion to suppress, defendant did not deny that he consented to the
search, arguing instead that his consent was not freely, knowingly or intelligently
given, see R. Vol. I, Doc. 21 at 8-9, and that the search exceeded the scope of the
consent given, id. at 11. Defendant’s brief on appeal, filed by his attorney,
concedes that defendant consented to the search of the vehicle, arguing only that
the search exceeded the scope of the consent. See Appellant’s Brief at 2-9.
However, defendant subsequently filed a pro se motion stating that he wished to
deny that he had given permission to search the vehicle and asking this court to
order his attorney to submit a statement of facts denying that he gave consent to
the search. Defendant’s motion is denied. If defendant is seeking to argue that
he did not give any permission for the search, this claim was not raised in the
district court, and we will not address it for the first time on appeal. See Sac &
Fox Nation v. Hanson , 47 F.3d 1061, 1063 (10th Cir. 1995). If defendant is
claiming that his consent was not voluntarily given, we have reviewed the record,
including the videotape of the traffic stop, and agree with the district court’s
conclusion that defendant’s consent was freely and knowingly given. See R. Vol.
I, Doc. 28 at 8.
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50 at 10. The trooper then asked defendant and his passenger to move further
away from the car, and called for additional police assistance. Trooper Jimerson
removed two bolts from the passenger front seat, removed the seat, lifted the
carpet and then removed four bolts holding down a square metal plate under the
seat, which was the door to a hidden compartment. This compartment did not
contain any contraband. However, another officer discovered a similar hidden
compartment under the driver’s seat, which contained almost eight pounds of
methamphetamine. Defendant and his passenger were then placed under arrest.
The defendant argued at the suppression hearing that Trooper Jimerson
exceeded the scope of his consent to search the vehicle. The district court held
that once Trooper Jimerson observed the first hidden compartment, he had
probable cause to search it and to search the car for other hidden compartments.
Analysis .
On appeal, defendant contends that the district court erred in holding that
Trooper Jimerson had probable cause to extend the scope of the search beyond
merely looking inside his car. He argues that Trooper Jimerson did not actually
find a hidden compartment until he had removed the passenger seat from the car
and lifted the carpet. Thus, he asserts that the trooper was relying on his consent
until the time he found the first hidden compartment. He contends that a
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reasonable person would not have understood a request to look in the car to
include disassembling the front seat.
“The standard for measuring the scope of an individual’s consent to search
is that of ‘objective reasonableness,’ asking what the typical reasonable person
would have understood to be the scope of his or her consent under the
circumstances.” See United States v. Pena , 143 F.3d 1363, 1367-68 (10th Cir.
1998), petition for cert. filed , (U.S. July 27, 1998) (No. 98-5403). The scope of a
search “is limited by the breadth of the consent given.” United States v. McRae ,
81 F.3d 1528, 1537 (10th Cir. 1996) (quotation omitted). “We view the evidence
in the light most favorable to the government and must uphold a district court’s
finding that a search is within the boundaries of the consent unless it is clearly
erroneous.” Pena , 143 F.3d at 1368. The ultimate reasonableness of the search
and seizure is a question of law that we review de novo. See United States v.
Ibarra , 955 F.2d 1405, 1409 (10th Cir. 1992).
As evidence that the search was within the scope of the defendant’s
consent, the government notes that defendant observed the entire search and never
objected to the removal of the front seat or the dismantling of any part of the car.
See McRae , 81 F.3d at 1538 (noting that defendant’s failure to object to the
extent of the search may be considered an indication that the search was within
the scope of consent). Defendant responds that he was unable to observe the
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extent of the search because he was ordered to stand a distance from the car and
was not allowed to walk around. Regardless of defendant’s failure to object to
the search, however, we conclude that the search did not violate the Fourth
Amendment’s prohibition on unreasonable searches and seizures.
We conclude from our review of the record that defendant’s consent to
Trooper’s Jimerson’s request to search the car authorized the trooper to look at
and feel underneath the passenger seat and the exterior of the car. See United
States v. Anderson , 114 F.3d 1059, 1065 (10th Cir. 1997) (concluding that giving
consent to “scout around” vehicle authorized full search of car, including
underneath and around it); McRae , 81 F.3d at 1537 (concluding that consent to
“look in” car authorized search of car, including lifting up carpeting in trunk) .
Further, because Trooper’s Jimerson’s request to search the vehicle came
immediately after he asked if there were any drugs in the car, we think it was
clear to defendant that the object of his search was drugs. See Pena , 143 F.3d at
1368. Because “[o]ne in possession of illegal narcotics does not typically leave
them out in the open[, c]onsent to an officer’s request to search for drugs would
reasonably include areas in which one would be expected to hide drugs.” Id.
(holding that giving consent to search hotel room authorized removal of ceiling
tiles and search above ceiling because it was clear the officer was requesting
consent to search for drugs).
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We also agree with the district court that, given the other suspicious factors
present here, once Trooper Jimerson observed evidence of a hidden compartment,
he had probable cause to remove the front seat and the carpet and plate covering
the hidden compartment, and to search the entire vehicle for drugs. See
Anderson , 114 F.3d at 1066 (holding that discovery of evidence of a hidden
compartment, together with other suspicious factors, constitutes probable cause to
conduct a thorough search, collecting cases). When Trooper Jimerson initially
approached defendant’s car, and when he looked under the passenger seat and car,
he observed that the back floorboard appeared raised and altered. Experienced
law enforcement officers “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. Mendez , 118 F.3d
1426, 1432 (10th Cir. 1997) (quotation and alteration omitted). Because “signs
that a vehicle’s paneling or natural configuration has been altered often lead law
enforcement officers to the discovery of contraband,” such observations “could
contribute to . . . [a] reasonable suspicion of illegal activity.” Id.
In addition to the altered appearance of the floorboard, Trooper Jimerson
observed that defendant appeared extremely nervous and he noticed a strong smell
of air freshener. See United States v. Soto-Cervantes , 138 F.3d 1319, 1324 (10th
Cir. 1998), petition for cert. filed , (U.S. June 10, 1998) (No. 97-9471)
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(recognizing nervousness as one of the totality of circumstances that can provide
some support for reasonable suspicion); United States v. Hunnicutt , 135 F.3d
1345, 1350 (10th Cir. 1998) (same); and United States v. Alvarez , 68 F.3d 1242,
1246 (10th Cir. 1995) (McKay, J., concurring) (noting that “we have repeatedly
held that air freshener coupled with other indicia of criminal activity supports a
reasonable brief inquiry”). Thus, at the time Trooper Jimerson observed evidence
of a hidden compartment, he also had evidence of other suspicious circumstances,
which cumulatively provided probable cause to dismantle the front seat and lift
portions of the carpet to uncover and search the hidden compartment and to
search the entire vehicle for other hidden compartments. See Mendez , 118 F.3d at
1432; Anderson , 114 F.3d at 1066 . Defendant’s argument that the trooper did not
actually find the hidden compartment until after he had removed the front seat is
unavailing; it is uncontroverted that the trooper discovered evidence of a hidden
compartment as soon as he looked and felt underneath the passenger seat and the
exterior of the car.
Accordingly, judgment of the United States District Court for the District
of Kansas is AFFIRMED. All other outstanding motions are denied.
Entered for the Court
Monroe G. McKay
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Circuit Judge
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