F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 27 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 02-7026
v.
(D.C. No. 01-CR-48-S)
(E.D. Oklahoma)
JUAN HOOPER, aka Frank William
Halstead,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL, LUCERO, and O’BRIEN, Circuit Judges.
Juan Hooper entered a conditional guilty plea to possession of cocaine with
intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2,
reserving the right to appeal the district court’s denial of his motion to suppress.
Hooper now appeals and, exercising jurisdiction pursuant to 28 U.S.C. § 1291, we
affirm.
*
The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
I
On June 14, 2001, Oklahoma Highway Patrol trooper Shawn Lee Griffey
pulled over the van Hooper was driving on Interstate 40 after observing him
traveling at fifty-six miles per hour in a forty-five mile per hour construction
zone. Griffey informed Hooper that he had been stopped for speeding and
requested his driver’s license and insurance verification. Hooper gave Griffey a
California driver’s license in the name of Frank Halstead, informed Griffey that
the vehicle was rented, and provided the car-rental agreement. The agreement
stated that the period of the rental was June 4 to June 11, 2001, and that the
vehicle was rented to Hector Jauregui. Also noted on the agreement was a
statement that there were “[n]o ‘additional authorized operators’ without Hertz’
prior written approval.” (Appellant’s App. at 4.) Hooper did not provide Griffey
with any additional documentation indicating that he was authorized to operate
the vehicle. Griffey asked who Jauregui was, and Hooper said he was a friend
who rented the car for him because Hooper had bad credit. Hooper told Griffey
that he was on his way to Harrisburg, Pennsylvania, to visit relatives and was on
the third day of his trip.
After reviewing the driver’s license and rental agreement provided by
Hooper, Griffey asked Hooper to exit the vehicle and have a seat in his patrol car.
Hooper complied, and Griffey gave him a warning for the speeding
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violation. The district court found that as Hooper was signing the warning,
Griffey asked him “if he had anything illegal in the vehicle,” to which Hooper
replied he did not. (Id.) The court further found that as Griffey was handing
Hooper back the driver’s license, rental agreement, and warning, Griffey asked if
he could “look inside the vehicle.” (Id.) Hooper said that Griffey could “go
ahead and look.” (Id.)
Before beginning his search, Griffey had Hooper stand away from the
vehicle in an adjacent ditch, some fifteen to twenty feet away. While conducting
his search of the van, Griffey “noticed that the plastic molding from the floor and
the rear quarter panel did not seem to fit together in a proper manner.” (Id. at 5.)
He removed the ashtray from the molding and saw the corner of a plastic package;
he felt the package and believed it to be tightly packed, containing an illegal drug.
Griffey arrested Hooper, and in a further search of the vehicle discovered thirteen
additional packages, which were later determined to contain cocaine. During the
book-in process, Hooper correctly identified himself as Juan Hooper, rather than
Frank Halstead.
On September 4, 2001, Hooper filed a motion to suppress. This motion was
denied on September 20, 2001. On appeal, Hooper contends that the district court
erred because he was illegally detained, because any consent he gave to a search
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of the van was the involuntary product of an illegal detention, and because the
officer’s search exceeded the scope of the consent given by Hooper.
II
In reviewing the district court’s denial of Hooper’s motion to suppress, we
view the evidence in the light most favorable to the district court’s determination
and accept the factual findings of the district court unless they are clearly
erroneous. United States v. Wood, 106 F.3d 942, 945 (10th Cir. 1997). Our
ultimate determination of reasonableness under the Fourth Amendment is a
question of law that we review de novo. Id.
A traffic stop is a “seizure” within the meaning of the Fourth Amendment,
United States v. Anderson, 114 F.3d 1059, 1063 (10th Cir. 1997), and such a stop
is properly analyzed as an investigative detention that must be supported by a
reasonable, articulable suspicion that criminal activity is afoot. United States v.
Sokolow, 490 U.S. 1, 7 (1989). Applying the principles of Terry v. Ohio, we
evaluate the reasonableness of the stop based on “whether the officer’s action was
justified at is inception, and whether it was reasonably related in scope to the
circumstances which justified the interference in the first place.” 392 U.S. 1, 20
(1968).
Hooper argues that Griffey lacked the reasonable articulable suspicion of
illegal activity necessary to extend the duration of the detention. An investigative
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detention should “last no longer than is necessary to effectuate the purpose of the
stop,” and “[t]he scope of the detention must be carefully tailored to its
underlying justification.” Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality
opinion). However, it is permissible for a law enforcement officer to prolong the
length of the initial detention if the officer “has an objectively reasonable and
articulable suspicion illegal activity has occurred or is occurring.” United States
v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir. 1998).
We have consistently held that a driver’s “inability to offer proof of
ownership or authorization to operate the vehicle” is a factor that may support a
reasonable articulable suspicion of illegal activity. See, e.g., United States v.
Fernandez, 18 F.3d 874, 879 (10th Cir. 1994) (noting that a “defining
characteristic of our traffic stop jurisprudence is the defendant’s lack of a valid
registration, license, bill of sale or some other indicia of proof to lawfully operate
and possess the vehicle in question, thus giving rise to objectively reasonable
suspicion that the vehicle may be stolen”); United States v. Horn, 970 F.2d 728,
732 (10th Cir. 1992); United States v. Turner, 928 F.2d 956, 959 (10th Cir. 1991);
United States v. Arango, 912 F.2d 441, 447 (10th Cir. 1990).
Hooper was unable to provide Griffey with any documents indicating that
he was either the owner or authorized to operate the vehicle. Furthermore,
Hooper stated that he was within the weekly rental rate, which was contradicted
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by the rental agreement, and he was vague as to why he rented the vehicle for
such a long period of time before he started his trip. The totality of these
circumstances, viewed in the light most favorable to the district court’s
determination, supports a conclusion that Griffey’s further detention of Hooper
was supported by a reasonable suspicion of illegal activity.
Hooper’s second claim is that the consent he gave Griffey to search his
vehicle was involuntary because there was not enough separation in time between
his illegal detention and his grant of consent. Because we have determined that
Hooper was not illegally detained, the consent that he gave Griffey to search his
vehicle could not have been involuntary on this basis. See United States v. Hill,
199 F.3d 1143, 1150 n.5 (10th Cir. 1999). Hooper does not provide an alternative
theory as to why his consent was involuntary, and we conclude that he voluntarily
consented to the search of his vehicle.
Arguing that Griffey could only have had a reasonable suspicion that
Hooper was driving a stolen vehicle, Hooper contends that the subsequent search
was not related to this suspicion. Griffey’s search of Hooper’s vehicle, however,
was based on Hooper’s consent. Because we conclude that Hooper’s consent was
voluntary, we need not address this argument.
Finally, Hooper contends that Griffey’s search of the vehicle exceeded the
scope of Hooper’s consent. We examine the totality of the circumstances to
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determine whether a search remains within the boundaries of the consent given.
United States v. Pena, 920 F.2d 1509, 1514 (10th Cir. 1990). Hooper told Griffey
that he could “go ahead and look” after Griffey asked if he could “look inside the
vehicle.” (Appellant’s App. at 4.) While searching the vehicle Griffey removed
an ashtray, which Hooper argues was beyond the scope of his consent to “look
inside the vehicle.” In Pena, defendant argued that he only gave the law
enforcement officer consent to “look” inside his car, and that the officer’s use of
a screwdriver to remove the rear panel of the vehicle exceeded the scope of his
consent. 920 F.2d at 1515. We decided we would not “attach an unduly
restrictive meaning to the officer’s request to ‘look’ inside the vehicle,” and
concluded that the “search was conducted within the general scope of the
permission granted.” Id.
Applying the court’s reasoning in Pena, we conclude that Griffey’s removal
of an ashtray was within the scope of the permission granted by Hooper to “look
inside the vehicle.” Furthermore, Hooper did not object to this aspect of the
search. Hooper argues that it was not possible for him to object because he was
fifteen to twenty feet away from the vehicle while Griffey was conducting the
search. The district court found that “Hooper was nonetheless in a position to
object to any search technique utilized by Griffey . . . . The fact that Hooper
could not see every movement by Griffey after Griffey reached into the van did
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not preclude Hooper from initially objecting to Griffey’s entry into the van at the
sliding door.” (Appellant’s App. at 11.) We agree.
III
We AFFIRM the district court’s denial of Hooper’s motion to suppress.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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