F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 21 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 01-1542
(D.C. No. 00-CR-305-D)
ALFRED BALDERAMA-FEDERICO, (D. Colorado)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before MURPHY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and HARTZ,
Circuit Judge.
This is a search and seizure case. Alfred Balderama-Federico (“the defendant”)
was charged in a one count indictment with unlawfully possessing 75 kilograms of
marijuana and four grams of a mixture containing a detectable amount of heroin in
violation of 21 U.S.C. §§ 841(a)(l) and 841(b)(l)(C), and 18 U.S.C. § 2. The defendant
filed a pre-trial motion to suppress, which, after hearing, was denied. Thereafter, the
defendant entered a conditional plea of guilty pursuant to Fed. R. Crim. P. 11(a)(2). The
defendant was then sentenced to 42 months imprisonment, and three years of supervised
*
This order and judgment is not binding precedent, except under the doctrines of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.
release. The defendant now appeals the district court’s denial of his motion to suppress.
Finding no reversible error, we affirm.
On July 5, 2000, at about 10:20 p.m. on I-25 just south of Pueblo, Colorado,
Colorado State Patrol Trooper Steven Ortiz (“the trooper”) stopped a car that was being
driven by one Christine Haro and in which the defendant was the only passenger. At the
suppression hearing, the trooper, who was the only witness, testified that he stopped the
car because it was weaving over the center line of the highway. The trooper asked for,
and received, Ms. Haro’s Arizona driver’s license and was advised by the defendant that
the car belonged to him. The defendant began looking for the car registration and
insurance documents and the trooper asked Ms. Haro to step out of the car. Having
satisfied himself that Ms. Haro was not intoxicated, the trooper decided to only issue a
warning. The trooper then approached the passenger side of the vehicle, where defendant
was seated and the defendant gave him the car’s registration and proof of insurance and
also showed a Michigan driver’s license. After verifying ownership of the vehicle, the
trooper gave Ms. Haro her driver’s license and the insurance and registration papers. As
Ms. Haro walked back to her car, the trooper asked her if there were any weapons or
drugs in the vehicle. She replied “No.” The trooper then asked Ms. Haro if he could
search the car and she stated “Yes.” The trooper inquired as to whether the trunk of the
car could be opened from inside the car or if a key had to be used. Ms. Haro said she
didn’t know, and she would have to ask the defendant, who, as indicated, owned the car.
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The trooper next asked the defendant if he could search the car for weapons and drugs,
and the defendant said “Yeah.”1 With no further conversation, the defendant got out of
the car and proceeded to open the trunk, never removing his hand from the trunk lid.
When the trunk lid was opened almost all the way and revealed some duffel bags located
therein, the defendant said “See” and began to close the trunk by pushing down on the
trunk lid. The trooper said “Wait,” and pushed the lid back up, with no protest from the
defendant. The trooper then unzipped one of the duffel bags and discovered marijuana.
Both Ms. Haro and the defendant were then arrested, and following the arrest, 180 pounds
of marijuana was discovered in the trunk, and four grams of heroin were found in Ms.
Haro’s purse.
The defendant and Ms. Haro were driven in a patrol car to a police station in
Pueblo, Colorado, where they were given Miranda warnings, waived their rights and then
made certain statements to the authorities, all of which resulted in the present indictment
against the defendant. Specifically, the defendant admitted that he had purchased the
marijuana in Arizona and was transporting it to Michigan to find a buyer. He also stated
that he had purchased the heroin found in Ms. Haro’s purse for his own personal use. The
1
The trooper testified that he became “suspicious” about Ms. Haro and the
defendant because there was a “very distinct” odor of air freshener inside the car and also
because the back seat was packed with luggage, including 16 coat hangers of clothes,
which he thought would ordinarily be stowed in the trunk. However, in this regard, under
questioning by the court, the trooper admitted that his “suspicions were just not enough to
detain them at that point” and that if the defendant had said, no, you can’t search my
vehicle “I would have let him go.”
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defendant said that Ms. Haro accompanied him on the trip because it “look[ed] better” but
that Ms. Haro did not know anything about the marijuana in the trunk. The charges
against Ms. Haro were eventually dismissed.
On appeal, the main issue is whether the district court erred in concluding that the
defendant had not revoked his prior consent to search, or, at the least, had limited the
scope of his prior consent, by his act of saying “See,” and then beginning to close the
trunk lid which he had opened. In this connection, counsel, in his brief, states that an
individual’s right to revoke his consent to search is just as protected by the Fourth
Amendment as is the individual’s right, in the first instance, to refuse, or limit, permission
to search, and that our standard of review for deciding “whether consent was revoked is
similar to determining the scope of the consent given,” citing Florida v. Jimeno, 500 U.S.
248 (1991). We are in general accord therewith.
For the purposes of this particular argument, counsel concedes that the
defendant verbally consented to a search of his car, including the trunk. It is counsel’s
position that the defendant revoked his consent, or at least limited the scope of his
consent. On review of a district court’s order denying a motion to suppress, we accept a
district court’s findings of fact unless “clearly erroneous,” but our review of whether a
particular search is “reasonable” under the Fourth Amendment is de novo, using an
“objective reasonableness standard.” United States v. Flores, 48 F.3d 467, 468 (10th Cir.
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1995).2
At the suppression hearing, the trooper, under questioning by the court, testified
that he “never took anything to think that he [the defendant] had revoked his consent.”
So, the trooper subjectively believed he acted reasonably in deciding that the defendant
had not revoked, or limited, his previously given consent. However, as above indicated,
the test is not “subjective reasonableness,” but “objective reasonableness.” Our de novo
review of the record made at the suppression hearing leads us to conclude that the trooper
possessed an “objectively reasonable” belief that the defendant had not revoked, or
limited, his previously given consent to search his vehicle, including the trunk and the
duffel bags located therein, and that the search was non-violative of the reasonableness
requirement of the Fourth Amendment.
As already stated, the trooper was the only witness to testify at the suppression
hearing, so it is not surprising that the “facts” in the instant case are not disputed. Our
ultimate task in this case is to determine, de novo, whether under the undisputed facts the
trooper’s belief that the defendant had not revoked, or limited, his prior consent to search
was an objectively reasonable belief. We hold that the trooper’s belief, under the
described circumstances, was an objectively reasonable belief.
What are the “facts” which, in our view, show that the trooper’s belief that the
“Objective reasonableness” means “what would the typical reasonable person
2
have understood by the exchange between the officer and the suspect.” Florida v.
Jimeno, 500 U.S. 248, 251 (1991).
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defendant had not revoked, or limited, the scope of his previously given consent to search
the entire car, which made the ensuing search of the duffel bags located in the trunk of the
car reasonable, and not unreasonable, under the Fourth Amendment? They are: (1) the
defendant verbally consented to a search of his vehicle, including the trunk and the
contents thereof, and thereafter did not at any time verbally revoke, or limit, that consent;
(2) after consenting, the defendant produced the key to the trunk of the car and did,
himself, raise the trunk lid to an open position where the trooper could see the duffel
bags; (3) at this juncture, the defendant simply said, “See,” and, with his hand, according
to the trooper, began to close the lid; (4) in response to the defendant’s “See” statement,
the trooper, who had not completed his search of the trunk, having only seen, and not
examined, the duffel bags, responded: “Wait;” (5) thereafter the defendant stopped
lowering the trunk lid, therefore this is not a case where a defendant actually closes the
trunk lid and locks it;3 and (6) the defendant did not verbally, or otherwise, contest or
object to the trooper’s request that he “wait.”4
3
In Flores, 48 F.3d at 468, the defendant “slammed the trunk closed.” However, in
that case we found it unnecessary to decide whether the closing of the trunk revoked prior
consent to search the trunk, since we went on to hold that there was a “renewed
subsequent consent.” In United States v. Ibarra, 955 F.2d 1405, 1411 (10th Cir. 1992), in
rejecting the government’s theory of “continuing consent” on other grounds, we
suggested, but did not hold, that the defendant may have revoked his initial consent by
closing and locking the trunk.
A defendant’s failure to object to the search of a particular area of an automobile
4
may be considered an indication that the search was within the scope of the consent.
United States v. Osage, 235 F.3d 518, 519-20 (10th Cir. 2000).
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Counsel alternatively argues that the trooper illegally detained the defendant after,
and beyond, the purposes of the initial stop had been accomplished, thereby rendering the
search of the trunk and duffel bags illegal. The district court rejected that argument,
holding that further detention, if any, was consensual. We agree. A “traffic stop may
become a consensual encounter, requiring no reasonable suspicion, if the officer returns
the license and registration and asks questions without further constraining the driver by
an overbearing show of authority.” United States v. West, 219 F.3d 1171, 1176 (10th Cir.
2000).
Finally, counsel suggests that the defendant’s post-arrest statements to the
authorities were “tainted by his illegal detention and the unconstitutional search of the
trunk of his car.” Having now determined that there was no illegal detention nor any
unconstitutional search of the defendant’s vehicle, including the trunk thereof, the “fruit
of the poisonous tree” argument is unavailing. There was no “poisonous tree.” Wong Sun
v. United States, 371 U.S. 471, 488 (1963).
Judgment affirmed.
Entered for the Court
Robert H. McWilliams
Senior Circuit Judge
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No. 01-1542, United States v. Balderama-Federico
MURPHY, Circuit Judge, concurring
Under the law in this circuit, the scope of consent to search, like voluntariness, is a
question of fact subject to review only for clear error. See United States v. Pena, 920
F.2d 1509, 1514 (10th Cir. 1990).1 A revocation of consent is the ultimate limitation of
the scope of that consent. Because the scope of the consent is a factual question, any
limitation of that consent, including revocation, is also necessarily a factual question
subject to review for clear error.
Although included under the caption “Conclusions of Law,” the district court’s
findings were that the scope of consent implicitly included the closed duffel bags in the
trunk and that defendant’s attempt to close the trunk lid was not a revocation of the
consent previously given. These findings are not clearly erroneous.
1
At least one other circuit has held that the question of whether a search is within
the scope of the consent is a question of law reviewed de novo. See United States v. Rich,
992 F.2d 502, 505 (5th Cir. 1993). It is well-settled, however, that this court is “bound by
the precedent of prior panels absent en banc reconsideration or a superseding contrary
decision by the Supreme Court.” Burlington N. & Santa Fe Ry. v. Burton, 270 F.3d 942,
944 (10th Cir. 2001) (quotation omitted).