F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 22 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 02-2262
(D.C. No. CR-00-1503)
EDUARDO ACUÑA-RAMÍREZ, (D. N.M.)
Defendant - Appellant
ORDER AND JUDGMENT*
Before HARTZ, BALDOCK, and McCONNELL, Circuit Judges.**
A New Mexico State Police officer stopped a vehicle driven by Defendant
Eduardo Acuña-Ramírez for speeding. After issuing a citation, the officer asked
Defendant if he could search Defendant’s vehicle. Defendant consented to the search.
Prior to searching the car, the officer conducted a patdown frisk of the passenger in the
car, and discovered cocaine in his pocket. Another officer then conducted a patdown
*
This order and judgment is not binding precedent, except under the doctrines of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.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. 34.1(G). The case is therefore ordered
submitted without oral argument.
frisk of Defendant, and found more cocaine. The officers placed both Defendant and the
passenger in handcuffs, and the officers called for a canine search unit to come to the
scene. The canine alerted to the dashboard area of the vehicle, where the officers found a
duct-taped bundle just above the glove box in the dashboard. Officers subsequently
found two more bundles in the dashboard, and a third in the front quarter panel.
A federal grand jury charged Defendant in a three-count superseding indictment
with conspiracy to possess with intent to distribute 50 grams and more of cocaine base,
and 500 grams and more of methamphetamine, in violation of 21 U.S.C. § 846;
possession with intent to distribute 50 grams and more of cocaine base, in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(A); and possession with intent to distribute 500 grams and
more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A).
Defendant entered a conditional guilty plea, reserving the right to appeal the district
court’s denial of his suppression motion. The district court sentenced Defendant to
seventy months imprisonment. Defendant appeals the district court’s denial of his
suppression motion. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
I.
On October 29, 2000, New Mexico State Police Officer Nick Ramos was parked in
the center median on Interstate 40 near Albuquerque, where he was operating his
stationary radar equipment as part of the police department’s effort to slow down traffic
near a construction project. At approximately ten minutes to midnight, Officer Ramos
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clocked a 1989 Pontiac with Arizona license plates going 59 miles per hour in a 55 mile
per hour zone. Officer Ramos activated his emergency lights, and the Pontiac pulled over
into a blocked-off area of the construction zone on the left side of the road. Defendant
was driving the Pontiac and co-defendant Jesus Salazar was in the front passenger seat.
Officer Ramos approached the driver side window and asked Defendant for his driver’s
license, proof of insurance, and registration. According to Ramos’ testimony, Defendant
was very nervous as indicated by his cracking voice and trembling hands, and his
unwillingness to look at the officer. Officer Ramos initially spoke to Defendant in
English, but then switched to Spanish.
Officer Ramos told Defendant he stopped Defendant for speeding. He asked
Defendant to step out of the car and stand at the front of his patrol car. After determining
no warrants existed for Defendant’s arrest and Defendant’s documentation checked out,
Officer Ramos began writing a speeding citation. While writing the citation, Officer
Ramos asked Defendant where he had come from and where he was going. Defendant
responded he had come from Phoenix and was headed to Santa Rosa, New Mexico, to
visit a friend. Defendant was unable to provide an address or phone number for the
friend, but said that he had been there once and was going to try to find his friend once he
got to Santa Rosa. According to Defendant, they were going to be in Santa Rosa for two
days. Defendant was nervous during this conversation, shifting from side to side, pacing,
and steadying himself once on a divider.
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Officer Ramos left Defendant standing at the front of his patrol vehicle and
approached Defendant’s car to get the vehicle identification number. Officer Ramos then
asked Salazar, who was still sitting in Defendant’s car, where they were headed. Salazar
became nervous, stared straight ahead and said they were going to New Mexico. Salazar
could not identify to what town they were going. He said they were going to visit his aunt
and uncle in New Mexico because his aunt was ill. According to Salazar, they were
going to stay in New Mexico for twenty days.
Officer Ramos returned to where Defendant was standing and told him he was
going to give him a speeding ticket. Officer Ramos asked whether Defendant wanted to
appear in court or pay the fine, and Defendant said he would rather pay the fine.
Defendant signed the citation, acknowledging his guilt. Officer Ramos then handed
Defendant the citation and all of Defendant’s documentation. Defendant turned around
and began walking back to his car. Officer Ramos then asked Defendant whether he was
carrying any large sums of money. Defendant turned around and said no. Officer Ramos
then asked if Defendant was carrying any drugs. Defendant became very nervous again.
He looked away from the officer, shook his head and said no. Defendant stated he was a
good person and would not do something like that. Officer Ramos asked him if he had
any cocaine, methamphetamine, or marijuana. Defendant shook his head no. Officer
Ramos then asked Defendant if he could search Defendant’s car. Defendant consented.
Before conducting the search of the car, Officer Ramos asked Defendant whether
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he could do a patdown frisk for weapons. Defendant agreed. Officer Ramos found no
weapons or contraband on Defendant during this search. Officer Ramos then told
Defendant to remain standing near his patrol vehicle. He again asked Defendant for
permission to search the car and Defendant again consented. By this time, another New
Mexico State Police Officer, Augustine Samaniego, arrived on the scene.
Officer Ramos then approached the vehicle and asked Salazar to exit the vehicle.
During a patdown frisk of Salazar, Officer Ramos noticed a large bulge in Salazar’s
pocket. He requested permission to put his hand in Salazar’s pocket, and Salazar
consented. Officer Ramos pulled out the bulge, which turned out to be a wad of tissues or
napkins. Lying on top of the wad of tissue was a ziploc baggie containing what appeared
to be cocaine. Officer Ramos then arrested Salazar, and asked Officer Samaniego to frisk
Defendant. During this patdown search, Officer Samaniego discovered a small vial of
what appeared to be cocaine. Officer Samaniego arrested Defendant.
The officers called for canine support to search the car. While waiting for the
canine unit to arrive, the officers searched the interior, undercarriage, and trunk of the
vehicle. They found no drugs or weapons during these searches. Officer Ramos noticed
some screws on the dashboard had fresh marks on them, as if they had been removed
recently. He also found two small bags of clothing in the trunk.
The canine unit arrived and conducted a search of the car. The dog did not alert to
the outside of the vehicle, but did alert to the interior dashboard area. The officers
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searched the dashboard and discovered a silver duct-taped package just above the glove
box in the dashboard. The Officers then took the vehicle to the New Mexico State Police
office, where they found three more silver duct-taped packages. They located two
packages behind the dashboard, and a third in the front quarter panel.
Following his arrest and indictment, Defendant filed a motion to suppress. At the
evidentiary hearing, Defendant denied he was speeding. Instead, he claimed he had his
cruise control set for 53 miles per hour. Defendant admitted he consented to the searches,
but believed he had no choice but to do so. He acknowledged the officers never
threatened or physically harmed him. He also admitted Officer Ramos returned his
paperwork to him before he started asking him questions. The district court held both the
initial traffic stop and the scope of the stop were lawful.
II.
In reviewing the district court’s denial of a motion to suppress, we view the
evidence in the light most favorable to the Government. United States v. De la Cruz-
Tapia, 162 F.3d 1275, 1277 (10th Cir. 1998). We accept the district court’s factual
findings unless they are clearly erroneous. Id. The ultimate determination of
reasonableness under the Fourth Amendment is a question of law we review de novo. Id.
A traffic stop is a seizure under the Fourth Amendment analyzed under the principles of
Terry v. Ohio, 392 U.S. 1, 19-20 (1968). See United States v. West, 219 F.3d 1171, 1176
(10th Cir. 2000). To be reasonable under the Fourth Amendment, a traffic stop must be
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justified at its inception and the officer’s actions during the detention must be reasonably
related in scope to the circumstances which justified the interference in the first place. Id.
A.
Defendant first argues the district court erred by finding the traffic stop was
justified at its inception. “‘[A] traffic stop is valid under the Fourth Amendment if the
stop is based on an observed traffic violation or if the police officer has reasonable
articulable suspicion that a traffic or equipment violation has occurred or is occurring.’”
United States v. Callarman, 273 F.3d 1284, 1286 (10th Cir. 2001) (quoting United States
v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc)).
At the suppression hearing, Officer Ramos testified that he was trained to operate
radar, that he regularly tested his radar unit, and he believed it was working properly on
the day of Defendant’s arrest. Officer Ramos testified he clocked Defendant’s vehicle at
59 miles per hour in a 55 mile per hour zone. Ruling from the bench, the district court
rejected Defendant’s argument that no reasonable suspicion supported the initial stop.
The district court specifically found Officer Ramos’ testimony “credible in that regard.”
Defendant now argues this finding was clearly erroneous because (1) at least one
other district judge has questioned Officer Ramos’ credibility in another case; (2) Officer
Ramos did not mention he frisked Defendant for weapons and found nothing until
confronted with his report on cross examination; and (2) Officer Ramos ticketed
Defendant for speeding in a 55 mile per hour zone, but another officer who lives in the
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area testified the speed limit where Defendant was stopped is 45 miles per hour.
Credibility findings are particularly within the district court’s province. See
Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575-76 (1985). We find nothing
in the record suggesting the district court’s credibility finding was clearly erroneous. A
court may discount witness testimony even though the witness was not dishonest or
intentionally misleading. For example, the witness may have been confused, mistaken, or
had a faulty memory. Absent a finding Officer Ramos committed perjury or some kind of
intentional wrongdoing in another proceeding, we are not persuaded that another court’s
credibility finding is even relevant to the district court’s credibility finding in this case,
much less undermines that finding to such a degree that it is clearly erroneous.
Nor are we concerned about the apparent discrepancies in Officer Ramos’
testimony. When confronted with his report, Officer Ramos admitted he previously
frisked Defendant and found no weapons or contraband. The district court was able to
view Officer Ramos and decide for itself whether his conflicting testimony was due to
forgetfulness, carelessness, or a more sinister reason. And Officer Mora’s testimony that
Defendant was stopped in a 45 mile per hour zone does not necessarily contradict Officer
Ramos’ testimony. Officer Ramos testified he clocked Defendant in a 55 mile per hour
zone, but had to catch up to Defendant before he could pull him over. Viewing the
evidence in the light most favorable to the Government, Officer Ramos clocked
Defendant in a 55 mile per hour zone, but did not manage to pull him over until they were
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in a 45 mile per hour zone. Officer Mora was not involved in the initial stop, and would
not have known precisely where Officer Ramos first observed Defendant speeding. In
any event, even if we assume Officer Mora is correct, Defendant’s own testimony
confirms he was speeding. Defendant testified he set his cruise control at 53 miles per
hour. If in fact he was driving through a 45 mile per hour zone as Officer Mora believed,
then Defendant was speeding, and Officer Ramos had reasonable suspicion to stop him.
B.
Defendant next argues Officer Ramos’ actions during the detention were not
reasonably related in scope to the circumstances which justified the interference in the
first place. Defendant argues (1) Officer Ramos should not have questioned Defendant
once he handed Defendant the citation and his documentation; (2) a reasonable person in
Defendant’s position would not have felt free to leave; and (3) Officer Ramos did not
have reasonable suspicion to prolong the detention.
The district court found the officers’ actions were reasonably related to the
circumstances which justified the initial stop. The district court noted that officers are
permitted to ask questions about where motorists are coming from and where they are
going. The court found that Defendant’s and Salazar’s inconsistent answers to these
questions “opened the door to everything else that happened thereafter.” The court
further found the amount of time Defendant was delayed was not unreasonable because
“they had to allow for a certain amount of time to get the canine Lady on the scene,” and
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the canine search itself took a reasonable amount of time.
We agree. “[Q]uestions relating to a driver’s travel plans ordinarily fall within the
scope of a traffic stop.” United States v. Williams, 271 F.3d 1262, 1267 (10th Cir. 2001);
see also United States v. Holt, 264 F.3d 1215, 1221 (10th Cir. 2001) (en banc).
Defendant was very nervous and was unable to provide even a general address for his
destination, supposedly the house of a friend. His version of their travel plans was
inconsistent with his passenger’s story. According to Defendant, they were headed to
Santa Rosa for two days to visit Defendant’s friend. According to Salazar, who also was
very nervous, they were headed to some unidentified town in New Mexico for twenty
days to visit Salazar’s uncle and ailing aunt. Assuming without deciding that Defendant
was still “seized” for Fourth Amendment purposes after Officer Ramos returned all of his
paperwork,1 Officer Ramos had reasonable suspicion to take the minimally intrusive step
of asking Defendant a few questions. See, e.g., United States v. Kopp, 45 F.3d 1450,
1453-54 (10th Cir. 1995). Upon further questioning, Officer Ramos’ suspicions only
increased, as Defendant became even more nervous at the mention of drugs. Defendant
1
“A traffic stop may become a consensual encounter 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. Hernandez, 93 F.3d 1493, 1498 (10th
Cir. 1996). “Whether an encounter is a detention or a consensual encounter depends on
whether the police conduct would have conveyed to a reasonable person that he or she
was not free to decline the officer’s requests or otherwise terminate the encounter.” Id.
The district court made no finding on whether the traffic stop turned into a consensual
encounter after Officer Ramos issued the citation and gave back all of Defendant’s
paperwork.
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subsequently consented to a search of his car. Based on these circumstances, the thirty-
eight minute delay between the time Ramos issued the ticket and the canine unit arrived
was not unreasonable. See Williams, 271 F.3d at 1271 (fifteen minute wait for canine
unit reasonable); United States v. Villa-Chaparro, 115 F.3d 797, 802-03 (10th Cir. 1997)
(thirty-eight minute wait for canine unit reasonable). Because we conclude Officer
Ramos had reasonable suspicion to continue questioning Defendant, we need not consider
Defendant’s argument that his consent to the search was vitiated by an illegal detention.
Defendant has not identified any grounds other than an illegal detention to suggest his
repeatedly given consent to the search was involuntary.
AFFIRMED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
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