F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 17, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-8123
PABLO GARCIA, (D.C. No. 04-CR-33-D)
(D. Wyo.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before HENRY, BALDOCK, and MURPHY, Circuit Judges.
A jury convicted Defendant Pablo Garcia of possession with intent to distribute over
five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Defendant
was sentenced to 121 months imprisonment and five years supervised release. On appeal
Defendant argues the district court erred in denying his motion to suppress or, in the
alternative, his motion for judgment of acquittal. We have jurisdiction under 28 U.S.C. §
1291, and affirm.
*
This order and judgment is not binding precedent, except under the doctrines of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.
The facts leading to Defendant’s arrest, as found by the district court on the motion
to suppress and as heard by the jury at trial, are as follows: Wyoming Highway Patrol
Trooper Ben Peech stopped an SUV in which Defendant was a passenger on Interstate 80
eastbound after observing the SUV following a wrecker too closely. Trooper Peech
identified seventeen-year-old Ramon Murillo as the driver of the SUV. Other occupants of
the SUV included Murillo’s girlfriend and their son, as well as his “buddy” Jessie. Trooper
Peech explained the reasons for the stop and asked Murillo for his driver’s license,
registration, and proof of insurance. Murillo produced an “interim driver’s license” and a
high school picture ID card. Defendant, who was seated in the front passenger seat, handed
Trooper Peech the rental agreement for the SUV. Unsure of whether he would issue Murillo
a warning or a ticket, he asked Murillo to accompany him back to the patrol car where
Trooper Peech intended to counsel him about the dangers of following too closely.
Trooper Peech observed Murillo seemed very nervous. His hands were shaking when
he handed Trooper Peech his paperwork, his breathing was rapid, and he seemed to be
perspiring from his forehead and face. Initially, Trooper Peech thought Murillo may be
nervous because he was a relatively young driver encountering law enforcement for the first
time. Trooper Peech discussed the dangers of following too closely and told Murillo he was
going to issue him a warning. Murillo’s nervousness continued even after being told he was
going to get a warning. While Trooper Peech filled out the warning ticket, he asked Murillo
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about his travel plans. Murillo stated he and the passengers were traveling to Chicago to visit
his aunt and would be staying in Chicago until after the New Year’s. Trooper Peech noticed,
however, the rental agreement indicated the SUV was due back in California by December
27th.
Trooper Peech asked Murillo who had rented the SUV. Murillo responded his
grandfather, the Defendant. Trooper Peech reviewed the rental agreement and noticed
Defendant was the only authorized driver on the rental agreement. Trooper Peech gave
Murillo the warning and his paperwork and asked him to wait in the patrol car while he spoke
to Defendant about the risk of allowing an unauthorized person to drive the rented SUV.1
Trooper Peech approached Defendant and told him that per the rental agreement, Murillo was
not authorized to drive the rented SUV and Defendant would have to drive. Trooper Peech
asked for Defendant’s identification to verify Defendant had rented the SUV. While Trooper
Peech verified this information, he asked Defendant if he would answer some questions
about his travel plans. Defendant consented. Defendant stated they were going to Chicago
to visit an aunt. Defendant stated, however, they would be there approximately two to three
days because the SUV was due back in California by December 27th. Defendant indicated
he understood he should not let unauthorized persons drive the SUV. As Trooper Peech
walked back to the patrol car, Defendant moved to the driver’s side of the SUV.
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Trooper Peech testified that in his experience if a rental company is notified that
the rented vehicle has been stopped while an unauthorized person was driving the vehicle,
the rental company will usually ask law enforcement to retrieve the car from the renter.
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Trooper Peech allowed Murillo to exit the patrol car and told him to “have a safe trip.”
As Murillo walked back to the SUV, Trooper Peech asked him if he would answer a few
more questions. Murillo agreed. Trooper Peech asked Murillo again about his travel plans
and the occupants of the SUV. Murillo again stated they were going to be in Chicago until
after New Year’s and that Jessie was his friend and had been living with him for a while
because his parents had gone to a lake for Christmas. Trooper Peech approached Jessie and
asked him if he would answer some questions, to which Jessie agreed. Trooper Peech asked
Jessie the same questions he asked Murillo in an effort to compare stories. Jessie stated they
were going to Chicago and would return before New Year’s. Jessie further stated he did not
live with Murillo but instead lived in the garage above his grandmother’s house.
Inconsistencies in the two stories, Murillo’s nervousness, and the quick turnaround
trip heightened Trooper Peech’s suspicions. Trooper Peech asked Defendant if they had any
drugs, guns, large amounts of cash, or any contraband in the SUV. All the occupants
indicated no. Trooper Peech asked Defendant, both in Spanish and English, if he could
search the car, to which Defendant and the other occupants agreed. Defendant opened the
rear window and tailgate for Trooper Peech. Trooper Peech immediately noticed all the rear
seat bolts had been recently altered. Blue flakes of paint on the carpeting covered the floor
of the car. The bolts on the rear seats had recent tool-markings, and the paint on the bolts
was disturbed. The front seat bolts did not appear to have been altered.
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Trooper Peech walked back to his car and radioed for a drug canine. Once on the
scene, the drug canine was deployed around the car and alerted to the back seat of the SUV
on the driver’s side. Trooper Peech began inspecting the rear driver’s side seat. Trooper
Peech pulled back the seat cover on the back rest portion of the seat and noticed the foam that
would normally be in the seat had been cut away. Trooper Peech could see five “bricks”
inside the seat. Using his pocket knife, he stuck one of the “bricks” and noticed it contained
a white powder. Based on his experience, he believed the “bricks” contained cocaine. The
white powder subsequently tested positive for cocaine.
II.
On appeal Defendant challenges the district court’s denial of his motion to suppress
as well as its denial of his motion for judgment of acquittal. See Fed. R. Crim. P. 29. As to
the former, Defendant has argued throughout that Trooper Peech unlawfully detained him
after the purpose of the stop was completed. Specifically, Defendant argues Trooper Peech
completed the purpose of the stop when he gave Murillo the warning and returned his
paperwork. According to Defendant, all subsequent questioning and detention exceeded the
purpose of the stop and violated Defendant’s Fourth Amendment rights. As to the latter,
Defendant argues the Government did not present any evidence suggesting Defendant knew
the cocaine was in the SUV or that he intended to distribute the cocaine. Thus, according to
Defendant, no reasonable jury could have so found. We reject each contention in turn.
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A.
In reviewing the denial of a motion to suppress, we consider the totality of the
circumstances and view the evidence in a light most favorable to the Government. We
accept the district court’s factual findings unless clearly erroneous. See United States v.
Rosborough, 366 F.3d 1145, 1148 (10th Cir. 2004). The ultimate determination of
reasonableness under the Fourth Amendment is a question of law reviewable de novo. Id.
An investigative detention may only last as long as necessary to effectuate the purpose
of the stop. See United States v. Manjarrez, 348 F.3d 881, 885 (10th Cir. 2003). The scope
of the detention must be carefully tailored to its underlying justification. Id. Generally, an
officer must allow the driver to leave once the initial justification for the traffic stop has
concluded. Id. During a routine traffic stop, an officer may ask questions, examine
documentation, and run computer verifications as necessary to determine whether the driver
has a valid license and is entitled to operate the vehicle. United States v. Wood, 106 F.3d
942, 945 (10th Cir. 1997) (emphasis added). The officer may detain the driver and the
vehicle as long as reasonably necessary to make these determinations. Id.
Defendant argues Trooper Peech completed the purpose of the traffic when he gave
Murillo the warning and returned his paperwork. We disagree. After asking Murillo who
had rented the SUV and reviewing the rental agreement, Trooper Peech had a legitimate
reason, before allowing Murillo to go free, to approach Defendant to confirm Defendant was,
in fact, the person who rented the SUV and was authorized to drive it. Thus, Trooper
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Peech’s conduct fell within the permissible scope of the traffic stop. See United States v.
Santana-Garcia, 264 F.3d 1188, 1193 (10th Cir. 2001) (noting an officer is authorized to
inquire as to the vehicle’s ownership or authority to operate the vehicle). The purpose of the
initial stop was completed only after Trooper Peech was able to verify this information. See,
e.g., United States v. Galindo-Gonzales, 142 F.3d 1217, 1223 (10th Cir. 1998) (noting a
defendant’s lack of indicia of proof to lawfully operate and possess a vehicle gives rise to
objectively reasonable suspicion that the vehicle may be stolen). Accordingly, Defendant’s
detention while Trooper Peech verified Defendant’s authority to operate the vehicle was not
extended beyond its original scope.
Defendant also argues the search of the vehicle exceeded the scope of his consent
because (1) he did not consent to a narcotic’s dog search, and (2) he did not consent to the
dog entering the SUV’s interior. Defendant’s arguments are meritless. “[C]onsent is not
required for a dog sniff of a lawfully detained vehicle.” United States v. Chavira, 9 F.3d 888,
890 n. 1 (10th Cir. 1993). As the Supreme Court recently explained, a canine sniff on the
exterior of a vehicle during a lawful traffic stop does not implicate legitimate privacy
interests because it “does not expose noncontraband items that otherwise would remain
hidden from public view.” Illinois v. Caballes, __ U.S. __, 125 S. Ct. 834, 838 (2005).
Based upon Murillo’s nervousness; the inconsistent stories between Murillo, Jessie, and
Defendant; and the quick turnaround trip; Trooper Peech had articulable and reasonable
suspicion necessary to continue detaining Defendant in order to determine whether the
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vehicle might contain contraband. The canine sniff occurred while Trooper Peech was
conducting this lawful detention, and, as a result, Defendant’s consent was not required.
After deploying the canine around the SUV, the canine alerted the Troopers to the back seat
on the driver’s side of the SUV. At this point, the Troopers had probable cause to search the
interior of the SUV for contraband, and the search was no longer premised on Defendant’s
consent. See United States v. Ludwig, 10 F.3d 1523, 1528 (10th Cir. 1993) (concluding a
canine alert outside the trunk of a vehicle creates probable cause to search the inside of the
trunk for drugs). Accordingly, the district court properly denied Defendant’s motion to
suppress.
B.
Defendant next argues the Government did not adduce sufficient evidence at trial to
prove beyond a reasonable doubt Defendant was guilty of possession with intent to distribute
a controlled substance. We review the record de novo to determine whether viewing the
evidence–both direct and circumstantial, together with the reasonable inferences to be drawn
therefrom–in the light most favorable to the Government, any rational trier of fact could have
found Defendant guilty of the crime beyond a reasonable doubt. See United States v. Avery,
295 F.3d 1158, 1177 (10th Cir. 2002). In conducting this inquiry, we do not weigh
conflicting evidence nor consider the credibility of witnesses. United States v. Delgado-
Uribe, 363 F.3d 1077, 1081 (10th Cir. 2004) (citation omitted). Instead, we must only
determine whether the evidence adduced at trial, if believed, would establish each element
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of the crime. Id.
The elements of the crime of possession with intent to distribute are well-established.
See United States v. McKissick, 204 F.3d 1282, 1291 (10th Cir. 2000). To sustain a
conviction for possession with intent to distribute under 21 U.S.C. § 841(a)(1), the
Government must prove beyond a reasonable doubt: (1) the Defendant possessed the
controlled substance; (2) the Defendant knew he possessed the controlled substance; and (3)
the Defendant intended to distribute the controlled substance. Id. Possession of a controlled
substance can be either actual or constructive. Id. Constructive possession exists where “a
person knowingly has ownership, dominion, or control over the narcotics and the premises
where the narcotics are found.” United States v. Reece, 86 F.3d 994, 996 (10th Cir. 1996)
(citation omitted). We have alternatively defined constructive possession of a controlled
substance as “an appreciable ability to guide the destiny of the drug.” United States v.Carter,
130 F.3d 1432, 1441 (10th Cir. 1997).
Because Defendant was not the only passenger in the SUV, this case involves joint
occupancy and nonexclusive possession. “In cases involving joint occupancy of a place
where contraband is found, mere control or dominion over the place in which the contraband
is found is not enough to establish constructive possession.” McKissick, 204 F.3d at 1291,
see also Reece, 86 F.3d at 996 (holding evidence insufficient to support a conviction for
possession where the government only showed defendant drove the car in which the narcotics
were found and was acquainted with the individual on whose person the narcotics were
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found). The Government must, therefore, present “direct or circumstantial evidence to show
some connection or nexus individually linking the defendant to the contraband.” McKissick,
204 F.3d at 1291 (quoting United States v. Valadez-Gallegos, 162 F.3d 1256, 1262 (10th Cir.
1998). In other words, the Government must adduce evidence supporting a plausible
inference that the defendant had knowledge of and access to the contraband. Id. After
carefully reviewing the trial record under the applicable standard, we conclude the
Government presented sufficient evidence from which a reasonable jury could find
Defendant possessed with intent to distribute the cocaine found in the SUV. The evidence
was sufficient to support an inference Defendant had knowledge of and access to the cocaine
in the SUV. First, the evidence at trial showed Defendant had within the last four months
taken at least four short trips in which he rented a car for a week, usually a mini-van, paying
approximately $500-$600 per trip for the rental cars. The evidence further showed
Defendant’s monthly income was approximately $800 per month. Second, the evidence
showed that at least on two prior trips, Defendant drove to a particular destination intending
to pick up another vehicle and drive it back to California. On one occasion Murillo drove
one of these vehicles back to Mexico. In Trooper Peech’s experience, many times the large
amounts of cash received from a drug transaction are transported in a different car than that
in which the drugs were transported so that none of the smell from the drugs lingers in the
car, thus reducing the possibility that drug canine will alert to the car if stopped. Third,
Trooper Peech testified the market value of the cocaine was between $500,000 and $2
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million dollars, and drug organizations do not trust people with that much contraband unless
they have been involved with them for some time and have shown to be trustworthy.
The reasonable inferences drawn from the evidence the Government adduced at trial
support a conclusion Defendant knew the cocaine was in the SUV, had access to the cocaine,
and had the specific intent to distribute it once in Chicago. See United States v. Taylor, 113
F.3d 1136, 1144 (10th Cir. 1997) (noting that in joint occupancy constructive possession
cases, the government must present some evidence supporting at least a plausible inference
that the defendant had knowledge of and access to the contraband). Viewed under the
totality of the circumstances, the evidence provides the necessary nexus between the cocaine
and Defendant to support his conviction. Id.
Defendant makes a last attempt to persuade us by arguing we should take into account
Murillo’s testimony at trial when considering whether the Government met its burden of
production. Murillo testified that unbeknownst to Defendant, Murillo received the cocaine
from an individual seeking to hide it, and he placed the cocaine in the SUV so that he could
get rid of it somewhere on the way to Chicago. Since the jury determines the credibility of
witnesses, the jury was at liberty to disbelieve any or all of his testimony. On appeal we may
not resolve conflicting evidence or weigh the credibility of witnesses. See United States v.
Pappert, 112 F.3d 1073, 1077 (10th Cir. 1997).
For the foregoing reasons, the judgment of the district court is–
AFFIRMED.
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Entered for the Court,
Bobby R. Baldock
Circuit Judge
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