United States v. Lujan

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 3 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 98-2275
v. (D. New Mexico)
GERALD JOHN LUJAN, JR., (D.C. No. CR-98-37-JC)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before ANDERSON , TACHA , and BALDOCK , Circuit Judges.

On June 29, 1998, after the district court denied his motion to suppress,

Gerald John Lujan pled guilty to possession with intent to distribute marijuana, in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2. Lujan now

appeals from the district court’s denial of his motion to suppress. For the reasons

discussed below, we affirm the judgment of the district court.

*
This order and judgment is not binding precedent, except under the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.
 BACKGROUND

Except where noted, the following facts were found by the district court at

the suppression hearing and are undisputed on appeal. On January 6, 1998,

United States Border Patrol Agent Luis Armendariz was on patrol in Las Cruces,

New Mexico. At that time, Armendariz had over six years of experience as a

Border Patrol agent and had participated in over 200 drug seizures, approximately

150 of which had involved searches of vehicles with hidden compartments. The

area which Armendariz was patrolling on January 6 was an area near the junction

of Interstates 10 and 25, only 35 miles north of the Mexican border, and was

known to Border Patrol agents as an area of heavy drug trafficking. The area

contained numerous motels, service stations, and fast food restaurants, and

Armendariz had personally been involved in several drug seizures in this small

area.

Areas such as this one, which are near border-area freeways and typically

have a great number of people driving through them, are known to Border Patrol

agents as “staging areas” where drug traffickers can pull off the freeway, move

inconspicuously to a pay phone, and contact persons in other vehicles, known as

“scout vehicles,” which have driven on to ascertain whether the permanent Border

Patrol checkpoints are operational at that particular time. Armendariz had, on

numerous occasions, witnessed drug traffickers in staging areas loitering near pay

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phones waiting to contact their scout vehicles. He stated that drug traffickers

prefer pay phones because calls from such phones are more difficult to trace than

calls from cellular phones or home phones.

On January 6, at approximately 4:30 P.M., Armendariz observed a maroon

Lincoln parked near a Comfort Inn motel. This particular vehicle caught

Armendariz’s attention because, just in the past few days, he had discovered a

cache of drugs in a hidden compartment of a Lincoln. Armendariz stated that

drug traffickers often use large vehicles, because such vehicles have easily

modifiable cavities which can be used to create concealed compartments. He also

stated that drug traffickers tend to act in patterns with respect to the type of

vehicles they use, and that they often use the same model or make of vehicle until

law enforcement officers become aware that this particular vehicle is in favor, at

which time the traffickers begin to use a different make of vehicle.

Armendariz saw the lone occupant of the Lincoln, the Defendant Lujan,

exit the vehicle and walk across the parking lot to a bank of pay phones.

Armendariz watched as Lujan made two calls from a pay phone. As Lujan was

talking on the pay phone, Armendariz pulled his unmarked vehicle into a parking

stall adjacent to the Lincoln, and ran a registration check on the car’s license

plates. He discovered that the Lincoln was registered to one Manuel Diaz of

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Bernalillo, New Mexico. Bernalillo is a town near Albuquerque and is located

approximately 250 miles north of Las Cruces.

While Lujan was talking on the pay phone, he glanced in Armendariz’s

direction two times. After completing his conversation, Lujan left the pay phone

area and walked across the parking lot to the entrance of a Chevron station.

When he reached the door of the Chevron, he hesitated for a moment, then elected

not to enter the station. Lujan then walked back into the parking lot toward the

Lincoln and Armendariz’s vehicle. As he approached the two cars, he saw

Armendariz sitting in the unmarked car. Although the car was unmarked,

Armendariz was wearing his green Border Patrol uniform. When Lujan saw

Armendariz, he quickly jerked his head away, and, instead of stopping at the

vehicles, he “veered and walked past the [vehicles]” and walked toward the

entrance to the Comfort Inn. I R. Tab 34, at 3. One to two minutes later,

Armendariz exited his vehicle and followed Lujan into the Comfort Inn.

As Armendariz was walking into the motel, Lujan was walking back out of

it. The two men met just outside the entry to the motel. At this late afternoon

hour, there were many other people around. As Lujan walked past Armendariz,

the agent identified himself as a Border Patrol agent. Armendariz did not block

Lujan’s path, and did not make any threats or unholster or even handle his

weapon. Armendariz asked Lujan whether he was a citizen of the United States.

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Lujan replied in the affirmative. According to Armendariz’s testimony at the

suppression hearing, Lujan appeared “extremely nervous,” his face appeared

tense, and he had a “deer in the headlights look” on his face. II R. at 24. At this

point, Armendariz asked Lujan for proof of his citizenship, and Lujan produced

his driver’s license. When Lujan handed over the license, Armendariz noticed

that Lujan’s hands were trembling.

An examination of the license revealed that Lujan was indeed a United

States citizen, living in Las Vegas, New Mexico. However, Armendariz also saw

that the name on the license was “Gerald Lujan” and not “Manuel Diaz.” This

fact was significant to Armendariz, because his experience had demonstrated that

most vehicles used in drug trafficking are not registered to the person driving the

vehicle. Armendariz then asked Lujan who owned the vehicle, and Lujan replied

that a man named “John” was the owner. Lujan supplied a last name as well, but

Armendariz could not recall the last name given to him by Lujan. Armendariz did

recall, however, that the last name was something other than Diaz.

At this point, there is a discrepancy in the testimony which the district court

did not resolve. Armendariz stated that at this point, he gave Lujan’s driver’s

license back to him after questioning him about it. Lujan, by contrast, testified

that Armendariz placed the license in the front pocket of his uniform and did not

return it until much later.

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 In any event, Armendariz then asked to see the Lincoln’s registration.

Lujan walked over to the car and retrieved the registration information. The

registration certificate bore the name of Manuel Diaz. Armendariz pointed out to

Lujan that the name on the certificate was not “John,” the name Lujan had given

previously as the owner of the vehicle. Lujan then became even more nervous

than before, and stated simply that he could not explain the discrepancy, and that

he had borrowed the Lincoln from his uncle.

Armendariz then asked Lujan where he had come from, and Lujan reported

that he had driven down from Albuquerque. Armendariz could observe no

luggage in the Lincoln, however, and asked Lujan about this. Lujan responded

that he had stopped in town at a friend’s house and had dropped off his luggage.

Lujan also told Armendariz that he had been experiencing engine trouble with the

Lincoln and that the reason he stopped at the pay phone was to call his friend to

come to pick him up.

At about this point, a purple car arrived and parked beside the Lincoln.

David de la Paz emerged from the vehicle, and Lujan identified de la Paz as the

friend with whom he had left his luggage, and whom he had telephoned from the

pay phone. De la Paz confirmed these details upon questioning by Armendariz.

Armendariz then asked Lujan if he could search the trunk of the Lincoln.

Lujan gave consent to the search of the trunk, and even opened the trunk himself.

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Upon examination, Armendariz observed that the trunk appeared empty, but that

he noticed “a discrepancy in the depth of the [trunk] between the backrest of the

back seat and the trunk area . . . leading out towards the trunk where the lid

opens.” II R. at 34. Based on his experience, Armendariz thought that this

discrepancy could indicate the presence of a hidden compartment. At that point,

Armendariz retrieved his dog, a trained and certified drug-sniffing dog, from his

unmarked vehicle.

At some point during the course of these events, de la Paz asked

Armendariz if he could leave to go pick up his daughter, and Armendariz told him

that he was not free to leave.

As the dog approached the rear of the Lincoln, it “alerted”—indicated that

the scent of drugs or contraband was present. The dog then jumped into the

trunk, and ran around in it, then jumped out and back in again. While the dog

was in the trunk, Armendariz again observed it alert to the presence of

contraband.

Armendariz then radioed for backup. When the other agents arrived,

Armendariz conducted a search of the trunk and discovered a hidden compartment

containing approximately 160 pounds of marijuana. Agents then arrested both

Lujan and de la Paz.

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 On January 21, 1998, a federal grand jury returned a one-count indictment

against Lujan, charging him with possession with intent to distribute more than 50

kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and

18 U.S.C. § 2.

On March 16, 1998, Lujan moved to suppress the marijuana found in the

trunk of the Lincoln, arguing that Armendariz had not had the requisite

reasonable articulable suspicion to detain and question Lujan, and that Lujan had

not given voluntary consent to open and search the trunk of the Lincoln.

The district court held an evidentiary hearing on April 3, 1998. Armendariz

testified first, followed by de la Paz and Lujan. Armendariz was then called as a

rebuttal witness as well. On June 1, 1998, the district court denied Lujan’s

motion. See I R. Doc. 34. The court held that the first stage of the encounter

between Armendariz and Lujan was consensual. However, after Lujan handed

Armendariz his driver’s license and (according to Lujan) Armendariz did not

return it, the district court found that the encounter was no longer consensual, but

that Armendariz had reasonable suspicion to detain and question Lujan. The

court listed eleven facts that it held collectively amounted to reasonable

articulable suspicion. Also, the district court held that Lujan “freely consented to

an inspection of the trunk of his vehicle,” id. at 12, and that the search of the

trunk was lawful and did not violate Lujan’s Fourth Amendment rights.

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 Following the district court’s denial of his motion to suppress, Lujan pled

guilty to the count in the indictment. The plea was a conditional guilty plea,

which allows him to appeal the district court’s decision to deny his motion to

suppress. The district court accepted Lujan’s plea, and sentenced him to 24

months’ imprisonment and three years’ supervised release.

DISCUSSION

In his appellate briefs, Lujan raises the same two points raised before the

district court below: (1) that Armendariz did not have the required reasonable

articulable suspicion to detain and question Lujan; and (2) that Lujan did not

voluntarily consent to Armendariz’s search of the trunk of the Lincoln. Although

Lujan’s oral argument was largely focused on the second issue, we will

nevertheless address the issues in the order presented in the appellate briefs.

I. Did Armendariz Have Reasonable Suspicion to Detain Lujan?

“When reviewing a district court’s denial of a motion to suppress, we

accept its factual findings unless clearly erroneous and view the evidence in the

light most favorable to the government.” United States v. Hargus , 128 F.3d 1358,

1361 (10th Cir. 1997), cert. denied , 118 S. Ct. 1526 (1998). It is the province of

the trial court to assess the credibility of witnesses at the suppression hearing and

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to determine the weight to be given to the evidence presented, and we must give

such determinations due deference. Id. However, the district court’s ultimate

conclusion that law enforcement officers had reasonable articulable suspicion of

criminal activity is reviewed de novo. United States v. Salzano , 158 F.3d 1107,

1111 (10th Cir. 1998).

There are three general types of police-citizen encounters: “(1) consensual

encounters which do not implicate the Fourth Amendment; (2) investigative

detentions which are Fourth Amendment seizures of limited scope and duration

and must be supported by a reasonable suspicion of criminal activity; and (3)

arrests, [which are] the most intrusive . . . and [are] reasonable only if supported

by probable cause.” United States v. Davis , 94 F.3d 1465, 1467-68 (10th Cir.

1996) (citations omitted). The second of these types of encounters is at issue in

this case: an investigative detention which must be supported by a reasonable

articulable suspicion of criminal activity.

A suspect “has been ‘seized’ within the meaning of the Fourth Amendment

only if, in view of all the circumstances surrounding the incident, a reasonable

person would have believed that he was not free to leave.” United States v.

Mendenhall , 446 U.S. 544, 554 (1980). The district court held, and the parties do

not contest, that Lujan was “seized” for Fourth Amendment purposes when he

surrendered his driver’s license to Armendariz, and, assuming arguendo that

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Lujan’s version of the disputed fact is correct, when Armendariz refused to return

Lujan’s license. See Florida v. Royer , 460 U.S. 491, 501-02 (1983) (plurality

opinion) (holding that when a suspect’s ticket and driver’s license were retained

by identified narcotics agents, the suspect was “effectively seized for the purposes

of the Fourth Amendment”); United States v. Lambert , 46 F.3d 1064, 1068 (10th

Cir. 1995) (stating that “what began as a consensual encounter quickly became an

investigative detention once the agents received [the suspect’s] driver’s license

and did not return it to him”). Armendariz could lawfully detain Lujan in such a

manner only if he had reasonable articulable suspicion that Lujan was engaged in

criminal activity. 1

Reasonable articulable suspicion is “something more than an ‘inchoate and

unparticularized suspicion or hunch,’” but is something “less than proof of

wrongdoing by a preponderance of the evidence.” United States v. Sokolow , 490

U.S. 1, 7 (1989) (citations omitted). The “probable cause” standard, which

requires only “a fair probability that contraband or evidence of a crime will be

found,” Illinois v. Gates , 462 U.S. 213, 238 (1983), is a more demanding standard

than the reasonable articulable suspicion standard. See Sokolow , 490 U.S. at 7.

Although Lujan, at oral argument, appeared to abandon any argument that
1

an unlawful detention occurred prior to the point at which Armendariz asked for
consent to search the trunk of the Lincoln, it appears plain, both from Lujan’s
appellate briefs and from the case law cited above, that a detention requiring
reasonable suspicion began when Armendariz refused to return Lujan’s license.

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 In determining whether reasonable suspicion exists in a particular case,

“the totality of the circumstances—the whole picture—must be taken into

account. Based upon that whole picture the detaining officers must have a

particularized and objective basis for suspecting the particular person stopped of

criminal activity.” United States v. Cortez , 449 U.S. 411, 417-18 (1981). Even

factors that by themselves are not “proof of any illegal conduct” may be, “taken

together” in the aggregate, sufficient to “amount to reasonable suspicion.”

Sokolow , 490 U.S. at 9; see also United States v. De la Cruz-Tapia , 162 F.3d

1275, 1279-80 (10th Cir. 1998) (stating that “we assess the impact of the factors

in the aggregate, under the totality of the circumstances, incorporating the

underlying factual findings of the district court”). We must also keep in mind

“that, when used by trained law enforcement officers, objective facts, meaningless

to the untrained, can be combined with permissible deductions from such facts to

form a legitimate basis for suspicion.” Cortez , 449 U.S. at 419.

The district court listed eleven factors in support of its conclusion that

Armendariz had reasonable articulable suspicion that Lujan was involved in

criminal activity. I R. Doc. 34, at 10-12. We think these eleven factors can be

distilled to six pre-detention factors: (1) the location of the car; (2) the type of

car involved; (3) the fact that Lujan used a pay phone; (4) the fact that Lujan

seemed to try to evade Armendariz as soon as he saw him in uniform; (5) Lujan’s

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nervousness; and (6) the fact that the Lincoln was registered to a person other

than its driver. We must examine these seemingly innocuous facts and determine

whether, in the aggregate, they can amount to reasonable articulable suspicion

that Lujan was engaged in criminal activity.

The first factor, the location of the car, is clearly a factor that a law

enforcement officer may consider in determining whether to detain a suspect. In

this case, the car was parked in a location only 35 miles from the U.S.-Mexico

border, and was in a known “staging area” for drug trafficking. “[T]he fact that

an individual is in a neighborhood known for drug activity is not sufficient by

itself to support a reasonable suspicion that the individual himself is engaged in

criminal activity,” but this fact “can support a finding of reasonable suspicion

when combined with other factors.” United States v. Soto-Cervantes , 138 F.3d

1319, 1323 (10th Cir.), cert. denied , 119 S. Ct. 131 (1998); see also United States

v. Gutierrez-Daniez , 131 F.3d 939, 942-43 (10th Cir. 1997), cert. denied , 118 S.

Ct. 1334 (1998). Therefore, the fact that Armendariz noted that Lujan’s vehicle

was in a known “staging area” is a factor that may be used, in conjunction with

other factors, to support a finding that Armendariz had reasonable articulable

suspicion to detain Lujan.

The second factor—the fact that Lujan was driving a Lincoln—is also a

factor that may be considered. We have stated that “[t]he mere fact that a vehicle

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has a large capacity cannot be sufficient to support a reasonable suspicion of

criminal activity.” Salzano , 158 F.3d at 1112. However, while vehicle

characteristics cannot, by themselves, support a finding of reasonable suspicion,

they are factors that may be considered, as part of the totality of the

circumstances, along with other contributing factors. “In determining whether

there is reasonable suspicion to stop a car in the border area, officers may

consider . . . aspects of the vehicle.” United States v. Lopez-Martinez , 25 F.3d

1481, 1483-84 (10th Cir. 1994) (quoting United States v. Monsisvais , 907 F.2d

987, 990 (10th Cir. 1990) (citing United States v. Brignoni-Ponce , 422 U.S. 873,

884 (1975))). We have specifically considered the “[a]spects and [a]ppearance of

the [v]ehicle” in prior cases. Lopez-Martinez , 25 F.3d at 1486; see also United

States v. Pollack , 895 F.2d 686, 690 (10th Cir. 1990) (considering, among other

factors, the fact that the suspect “was driving a large vehicle capable of hauling a

large number of people”). Especially when we take into account the Supreme

Court’s admonition that objective facts can mean more to trained law enforcement

officers than to untrained laymen, Cortez , 449 U.S. at 419, we are convinced that

Armendariz properly considered the type of vehicle driven by Lujan. Armendariz

testified that he had personally been involved in a drug seizure involving a

Lincoln just a few days prior to his encounter with Lujan, and that drug

traffickers tend to act in patterns with regard to the type of vehicles they use.

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Thus, we conclude that, under these specific circumstances, the fact that Lujan

was driving a Lincoln is a factor that may be considered, in conjunction with

other factors, to support a finding of reasonable suspicion.

The third factor was Armendariz’s observation that Lujan used a pay phone

to place two calls immediately after exiting his vehicle. Courts have considered

this fact as part of the reasonable suspicion calculus. See , e.g. , United States v.

Gonzales , 79 F.3d 413, 422 (5th Cir. 1996) (finding that the officers had

reasonable suspicion based on, inter alia, the fact that the suspects “stopped to use

pay phones”); United States v. Rojas , 906 F. Supp. 120, 125 (E.D.N.Y. 1995)

(finding that the officers had reasonable suspicion based on, inter alia, the fact

that the suspect had “exited his home to use a pay phone on the corner on multiple

occasions, a practice frequently employed by narcotics traffickers”); cf. United

States v. Ceballos , 719 F. Supp. 119, 124 (E.D.N.Y. 1989) (considering the fact

that the suspect had made a call from a pay phone in a known narcotics location

to a beeper “as one indication that drug trafficking may be afoot”). In this case,

Armendariz testified that, in his experience, drug traffickers often used pay

phones in this particular area, and that they preferred pay phones to other types of

phones. Under these circumstances, the fact that Lujan made two calls from a pay

phone in a known narcotics location is a factor that can be considered as part of

the reasonable articulable suspicion inquiry.

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 The fourth factor contributing to Armendariz’s suspicion of Lujan is

Lujan’s apparent attempt to evade Armendariz after Lujan spotted the uniformed

officer sitting in his unmarked car. The district court found that Lujan

“approached the Lincoln beside which Agent Armendariz had parked his vehicle,

and upon getting close enough to Agent Armendariz to observe his uniform,

[Lujan] reacted by jerking his head away and by veering off in a different

direction toward the entry to the Comfort Inn instead of continuing to his car.” I

R. Tab 34, at 11. An attempt by a suspect to evade law enforcement officers is a

factor that may be considered as part of the reasonable articulable suspicion

calculus. See Florida v. Rodriguez , 469 U.S. 1, 6 (1984) (stating that the

suspect’s “attempt to evade the officers aroused further justifiable suspicion”);

Lopez-Martinez , 25 F.3d at 1483-84 (stating that “[i]n determining whether there

is reasonable suspicion to stop a car in the border area, officers may consider . . .

any obvious attempts to evade officers” (citing Brignoni-Ponce , 422 U.S. at 884-

85)). Lujan’s particular attempt to evade, however, which consisted only of

veering off and walking in another direction, cannot be the sole basis for an

officer’s reasonable suspicion. See United States v. Santillanes , 848 F.2d 1103,

1105-08 (10th Cir. 1988) (finding no reasonable suspicion in a case where the

suspect, among other things, “veered away and started to walk at an increased

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pace”). But it is a factor that may, along with other facts, be considered in the

totality of the circumstances.

The fifth factor—Lujan’s nervousness—may also, under certain

circumstances, be considered as a factor contributing to reasonable articulable

suspicion. However, “[n]ervousness alone cannot support reasonable suspicion of

criminal activity,” and we have stressed that because “most people . . . ‘exhibit

signs of nervousness when confronted by a law enforcement officer,’”

nervousness may be considered only when the suspect exhibits “signs of

nervousness beyond those normally anticipated during a citizen-police encounter.”

Salzano , 158 F.3d at 1113 (quoting United States v. Wood , 106 F.3d 942, 948

(10th Cir. 1997)). Here, Armendariz testified, and the district court found, that

Lujan was “extremely nervous,” his “face was tense,” and “his eyes were wide

open like the eyes of a deer caught in a headlight,” and that Lujan’s hands were

trembling when he handed his driver’s license to Armendariz. I R. Tab 34, at 4.

We see nothing in the record to persuade us that this finding is clearly erroneous.

Thus, Lujan’s “extreme” nervousness may be taken into account as one factor,

among others, contributing to a reasonable suspicion that criminal activity may be

afoot.

The sixth and final factor is that Lujan did not own the vehicle he was

driving. Armendariz testified, and the district court found, that “most vehicles

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that are loaded with contraband are not registered to the driver” and that

“[f]inding that a name and address on a registration do not match a name and

address on a driver’s license is consistent with drug smuggling.” I R. Tab 34, at

4. We have held that the fact that a suspect “provided registration papers which

did not establish [the suspect] as the owner of the [vehicle]” can support, when

coupled with other factors, a reasonable suspicion of criminal activity. United

States v. Betancur , 24 F.3d 73, 78 (10th Cir. 1994); see also United States v.

Turner , 928 F.2d 956, 959 (10th Cir. 1991) (finding that an officer had a

reasonable suspicion that the suspect was engaging in criminal activity where the

suspect, among other things, “was driving a car that was not registered to him or

to his passenger”). The fact that Lujan was driving a car registered to someone

else could properly contribute to a reasonable suspicion of criminal activity.

Therefore, while it is unlikely that any of the six factors could, standing

alone, support a reasonable suspicion of criminal activity in this case, each of

them may be considered in combination with other factors, and may, in the

aggregate, contribute to a finding of reasonable articulable suspicion. In this

case, we think that the presence of all six factors leads inescapably to the

conclusion that Armendariz had a reasonable articulable suspicion that Lujan was

engaged in criminal activity. These seemingly innocuous circumstances, taken

together and viewed through the lens of an experienced Border Patrol agent, add

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up to a reasonable suspicion that Lujan was trafficking in illegal drugs. In sum,

Armendariz was acting within the law when he detained and questioned a person

who made two phone calls from a pay phone in a staging area, was driving a

vehicle known to Armendariz to be a type favored by drug traffickers and which

was registered in someone else’s name, appeared to try to evade Armendariz, and

acted “extremely nervous.”

Lujan argues, however, that any reasonable suspicion Armendariz might

have had ceased to exist when Armendariz discovered that Lujan was an

American citizen and when de la Paz arrived and confirmed part of Lujan’s story.

We disagree. Armendariz had reason to suspect that Lujan was in possession of

illegal drugs, not merely that Lujan was an illegal alien. Furthermore, de la Paz

confirmed only minor details of Lujan’s account. He confirmed that Lujan had

delivered luggage to his house, and that Lujan had called him from the pay phone.

However, Armendariz observed Lujan make two calls from the pay phone, only

one of which, presumably, was to de la Paz. Even assuming that the facts

confirmed by de la Paz are accurate, Armendariz still had reasonable suspicion to

believe that Lujan was engaged in criminal activity. 2

2
If anything, Armendariz’s reasonable suspicion was heightened, rather
than allayed, by several post-detention events. First, Lujan told Armendariz that
the Lincoln belonged to “John” rather than to the true owner, Manuel Diaz. See
United States v. Pena, 920 F.2d 1509, 1514 (10th Cir. 1990) (finding that an
(continued...)

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 Therefore, we conclude that Armendariz’s investigative detention of Lujan

was proper, and did not offend the Fourth Amendment.

II. Was Lujan’s Consent Voluntary?

Lujan’s final argument is that, even assuming that Armendariz had reason

to suspect Lujan of criminal activity, Lujan’s consent to search the trunk of the

Lincoln was not voluntarily given. Lujan argues that his consent was not

voluntary because Armendariz never informed Lujan that he was free to refuse to

consent to a search.

“Whether a defendant freely and voluntarily gave his consent to a search is

a question of fact and is determined from the totality of the circumstances.”

United States v. Pena , 143 F.3d 1363, 1366 (10th Cir.), cert. denied , 119 S. Ct.

236 (1998). The district court found that Lujan “said that [Armendariz] could go

2
(...continued)
officer had reasonable suspicion based on, among other things, the suspect’s
statement “that the vehicle belonged to his brother” when in fact it did not, and
his complete lack of knowledge of the registered owner of the vehicle). Second,
after Lujan opened the trunk, Armendariz saw signs of a possible hidden
compartment. See United States v. Soto, 988 F.2d 1548, 1558 (10th Cir. 1993)
(upholding a finding of probable cause to arrest a suspect based on the officer’s
conclusion, after examining the back seat of the suspect’s vehicle, that there was
probably a hidden compartment there). Finally, Armendariz’s drug dog alerted to
the presence of contraband as it approached the Lincoln, and even before it
entered the trunk itself. See United States v. Ludwig, 10 F.3d 1523, 1527-28
(10th Cir. 1993) (holding that a dog alert to the trunk of a car by itself constitutes
probable cause to search the trunk).

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ahead and look [in the trunk] and that there was nothing in the trunk,” and that

Lujan himself “popped the trunk lid open.” I R. Tab 34, at 6. We must defer to

this finding of fact unless it is clearly erroneous.

In applying the totality-of-the-circumstances test, we have used a two-step

approach. First, we must determine whether the government has presented “clear

and positive testimony that consent was unequivocal and specific and freely and

intelligently given.” Pena , 143 F.3d at 1366. This part of the test is clearly met

in this case. Armendariz, de la Paz, and even Lujan himself all testified at the

suppression hearing that Lujan gave consent to search the trunk. It is undisputed

that Lujan gave unequivocal consent to search.

Second, if the first step is satisfied, we must then determine whether the

government has demonstrated that “the police did not coerce the defendant into

granting his consent.” Id. It is this portion of the test that Lujan stresses, arguing

that because Armendariz did not advise Lujan that he was free to refuse to

consent, the consent was not voluntary. However, the test is not that simple. We

have stated that “[t]he giving of such advisements is relevant to the inquiry,” but

that the failure to give such advice is “not dispositive.” United States v. Little , 60

F.3d 708, 713 (10th Cir. 1995); see also United States v. Sanchez-Valderuten , 11

F.3d 985, 990 (10th Cir. 1993) (stating that “[w]hether a defendant is informed

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that he need not consent to a search is only one factor in determining whether

consent was voluntary”).

Under the circumstances of this case, Lujan’s consent cannot be said to

have been coerced. While “any individual being subjected to an investigative

detention will feel some degree of compulsion to acquiesce to an officer’s

request,” United States v. Soto , 988 F.2d 1548, 1558 (10th Cir. 1993), there is no

evidence in this case of any duress or coercion. Here, the encounter between

Armendariz and Lujan took place in the entryway of a busy motel at 4:30 in the

afternoon, and the district court specifically found that “there were many people

around the area.” I R. Tab 34, at 4. Armendariz was, at the time consent was

initially given, the only law enforcement officer on the scene; indeed, with de la

Paz on the scene, there was only one officer and two suspects. Additionally, it is

undisputed that Armendariz did not wield, brandish, unholster, or in any other

manner make reference to his weapon during the encounter. Under remarkably

similar circumstances, we have held that consent was voluntarily given. See

Sanchez-Valderuten , 11 F.3d at 990; see also United States v. Flores , 48 F.3d

467, 469 (10th Cir. 1995) (finding consent to be voluntarily given even where the

agent retained the suspect’s driver’s license and did not inform the suspect of her

right to refuse consent, because the suspect clearly stated that she consented to

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the search and the encounter took place in a public area in the daytime and the

agent did not threaten the suspect in any way).

Therefore, we conclude that Lujan freely and voluntarily gave his consent

to search the trunk, and that Armendariz did not coerce him into consenting.

Accordingly, the search of the Lincoln’s trunk was proper.

CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

ENTERED FOR THE COURT

Stephen H. Anderson
Circuit Judge

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