F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 12, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 05-3353
v.
(District of K ansas)
(D.C. No. 05-CR-10040-01-W EB)
IG N A CIO ZA V A LA ,
Defendant-Appellant.
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 05-3303
v.
(District of K ansas)
(D.C. No. 05-CR-10040-02-W EB)
JOSE ALBERTO LO PEZ-M ORA LES,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before BR ISC OE, EBEL, and M U RPH Y, Circuit Judges.
*
This order and judgment is not binding precedent, except under the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. Introduction
W e have consolidated the present appeals for purposes of disposition. A
grand jury indicted both Ignacio Zavala and Jose Alberto Lopez-M orales on one
count of possession with intent to distribute more than 100 kilograms of
marijuana in violation of 21 U.S.C. § 841(a)(1). Zavala and Lopez-M orales both
filed motions to suppress the contraband. The United States District Court for the
District of Kansas denied their motions to suppress. Zavala and Lopez-M orales
entered conditional guilty pleas and the district court sentenced each man to sixty
months’ incarceration. Zavala and Lopez-M orales appeal the district court’s
denial of their motions to suppress. This court exercises jurisdiction pursuant to
28 U.S.C. § 1291 and affirms the district court’s ruling.
II. Background
On February 16, 2005, Zavala was driving his Chevrolet van east on
Interstate 70 in Kansas. Lopez-M orales was riding in the passenger seat of the
van. At approximately 10:20 in the evening, Kansas Highway Patrol Trooper
Jerrad Goheen pulled Zavala over after noticing Zavala’s van had only one
w orking headlight. When G oheen approached the van, Zavala did not roll down
his window. Instead, he attempted to talk to Goheen through the small vent
window on his door. Goheen asked Zavala to open the van door so they could
-2-
talk. W hen Zavala complied with Goheen’s request, Goheen noticed an
overw helming smell of air freshener emanating from the van.
Goheen explained that he stopped Zavala’s vehicle because only one of its
headlights w as operational. Zavala told Goheen he knew of the problem. He
showed Goheen a warning ticket he had received from another Kansas Highway
Patrol Officer, Trooper Troy Smith. Smith had stopped Zavala for the same
problem roughly an hour earlier. Zavala also produced his license and proof of
insurance.
Goheen asked Zavala and Lopez-M orales where they were from and where
they were going. Zavala replied that they had been visiting family in Denver for
about a week and were headed to North Carolina. Goheen next asked to see
Lopez-M orales’ identification. Zavala translated Goheen’s request into Spanish,
then translated Lopez-M orales’ response: Lopez-M orales had no identification
because he had just been released from jail, where he had been incarcerated for
drug possession.
Goheen went to his patrol car and requested a driver’s license and criminal
history check on Zavala. W hile awaiting a response from dispatch, he contacted
Trooper Smith and inquired about the previous traffic stop. Smith told Goheen he
had done a quick and routine traffic stop and had issued Zavala a warning citation
without performing any additional investigation. After he finished talking to
-3-
Smith, dispatch informed Goheen that Zavala’s driver’s license was valid; at that
point, dispatch did not give Goheen information on Zavala’s criminal history.
Goheen returned to the van, where Zavala and Lopez-M orales had been
waiting. He returned Zavala’s license and insurance information and told Zavala
he could probably find a replacement headlight at a nearby W al-M art. Goheen
told Zavala and Lopez-M orales to have a safe trip, then backed away from the
van. As Zalava prepared to pull away, however, Goheen walked back toward the
van and asked whether he could ask the men a couple of quick questions. Zavala
agreed. Goheen asked whether Zavala and Lopez-M orales had a couple of
minutes, and Zavala indicated they did.
Goheen asked Zavala and Lopez-M orales whether they knew the address of
the family members w ith whom they had been staying in Denver. Zalava told
Goheen he did not know the address. Goheen then asked Lopez-M orales about
his former conviction. Lopez-M orales informed Goheen he was convicted for
possession of a small amount of marijuana. Goheen inquired as to whether the
men had guns, drugs, or large amounts of cash with them. After receiving a
negative response, Goheen asked, “You don’t mind if I look inside the car?”
Zavala told Goheen he did not mind.
Goheen requested that Zavala and Lopez-M orales step out of their vehicle
and stand by the front of the van. W hen Lopez-M orales exited the van, Goheen
noticed the distance between the van’s floor and ceiling seemed too short. Upon
-4-
seeing this, Goheen suspected the van had been altered to accommodate either a
false floor or false ceiling. Goheen therefore began to inspect the van to
determine whether there was a hidden compartment. Goheen noted the bolts
holding down the rear seats had been scratched as though they had been removed.
He also observed the van’s carpeting looked as though it had been glued down in
an unusual way. As Goheen carried out his inspection, he received a report from
dispatch informing him that Zavala had a criminal history involving drugs. After
receiving the report, Goheen continued to scrutinize the van. He observed the
van’s seat belts were bolted not to the head liner itself, but to some point beyond
the head liner. Goheen felt sure the seat belts had not been factory-mounted this
way.
Goheen determined he wanted to perform a more thorough inspection of the
van. He asked whether Zavala would mind following him to the Highway Patrol
office so he could inspect the van more closely. After consulting with Lopez-
M orales, Zavala declined Goheen’s request.
Goheen contacted a sheriff’s officer who was nearby and asked for
assistance. He then resumed his examination of the van. Further inspection lead
Goheen to believe there was a false compartment in the ceiling of the van. W hen
he asked Zavala w hether the ceiling of the van had been modified, Zavala told him
it had not been altered. W hen the sheriff’s officer Goheen had called arrived on
the scene, the officer agreed with Goheen that the ceiling of the van had been
-5-
altered. Goheen instructed Zavala and Lopez-M orales to get in their van and
follow him to the Highway Patrol office. The men complied with Goheen’s
request. Inspection at the Highway Patrol office revealed that a compartment had
been welded into the ceiling of the van. Law enforcement officials discovered
approximately 271 pounds of marijuana in the compartment.
A grand jury charged both Zavala and Lopez-M orales in a one-count
indictment with possession with intent to distribute more than 100 kilograms of
marijuana in violation of 21 U.S.C. § 841(a)(1). Zavala and Lopez-M orales each
filed motions to suppress the drugs. The district court combined their motions and
held a suppression hearing, during which it heard testimony from Troopers Goheen
and Smith and viewed the patrol car’s video tape of Goheen’s stop. The district
court issued a M emorandum and Order denying defendants’ motions to suppress.
Lopez-M orales and Zavala entered conditional guilty pleas, waiving their
rights to appeal or collaterally attack their prosecutions, convictions, and sentences
except with respect to the district court’s denial of their motions to suppress. The
court sentenced each man to sixty months’ imprisonment follow ed by four years’
supervised release. Zavala and Lopez-M orales appeal the district court’s denial of
their motions to suppress.
-6-
III. Discussion
A. Lopez-M orales’ Standing to Seek Suppression of the Contraband
The government asserts this court need not reach the merits of Lopez-
M orales’ claim on appeal because Lopez-M orales, as a mere passenger in a van
belonging to Zavala, has no standing to challenge the constitutionality of G oheen’s
search. W hether a defendant has standing to challenge a search is a legal question
subject to de novo review. United States v. DeLuca, 269 F.3d 1128, 1131 (10th
Cir. 2001).
Because Fourth Amendment rights are personal, “a defendant cannot claim a
violation of his Fourth Amendment rights based only on the introduction of
evidence procured through an illegal search and seizure of a third person’s
property or premises.” Id. (quotation omitted). Accordingly, “w ithout a
possessory or property interest in the vehicle searched, passengers lack standing to
challenge vehicle searches.” Id. at 1132 (quotation omitted). That said, when a
defendant “lack[s] the requisite possessory or ownership interest in a vehicle to
directly challenge a search of that vehicle, the defendant may nonetheless contest
the lawfulness of his own detention and seek to suppress evidence found in the
vehicle as the fruit of the [defendant’s] illegal detention.” Id. (second alteration in
original) (quotation omitted).
“To successfully suppress evidence as the fruit of an unlawful detention, a
defendant must first establish that the detention did violate his Fourth Amendment
-7-
rights. The defendant then bears the burden of demonstrating a factual nexus
between the illegality and the challenged evidence.” United States v. Nava-
Ramirez, 210 F.3d 1128, 1131 (10th Cir. 2000) (citation and quotation omitted).
To satisfy the nexus requirement, a defendant must show the evidence he seeks to
have suppressed “would never have been found but for his, and only his, unlawful
detention.” DeLuca, 269 F.3d at 1133 (emphasis omitted). Thus, when the
detained defendant is a mere passenger in vehicle belonging to another person, this
court has determined he must show “that had he . . . requested permission or
otherwise attempted to depart the scene, he would have been able to leave in [the
owner’s] car.” Nava-Ramirez, 210 F.3d at 1131.
Lopez-M orales concedes he has no possessory interest in Zavala’s van.
Nonetheless he argues he has standing to challenge G oheen’s search of Zavala’s
van because his detention violated the Fourth Amendment and because a factual
nexus exists between that violation and the contraband evidence he seeks to
suppress.
The evidence does not support Lopez-M orales’ contention. Even if we
assume Lopez-M orales’ detention was unconstitutional, no factual nexus links his
detention and discovery of the marijuana found in Zavala’s van. Lopez-M orales
adduced no evidence demonstrating the marijuana would not have come to light
but for his allegedly unconstitutional detention. Nor did he “put on . . . evidence
to demonstrate that had he . . . requested permission or otherwise attempted to
-8-
depart the scene, he would have been able to leave in” Zavala’s van. Id. Because
Lopez-M orales failed to show a factual nexus between his allegedly illegal
detention and the discovery of the marijuana in Zavala’s van, he has no standing to
challenge the search. W e therefore affirm the district court’s denial of Lopez-
M orales’ motion to suppress. 1
B. Zavala’s Motion to Suppress
Zavala argues Goheen violated his Fourth Amendment rights when he
detained and searched his van on the night of February 16, 2005. Accordingly, he
contends the district court erred in denying his motion to suppress the marijuana
found in his van. This court accepts the factual findings underlying a district
court’s decision to deny a suppression motion unless those findings are clearly
erroneous. Id. “We review de novo the ultimate determination on the
reasonableness of a search or seizure under the Fourth Amendment.” Id.
(1) Initial Traffic Stop
Zavala concedes G oheen’s initial stop of his van, based on the van’s
nonfunctioning headlight, was proper. He argues, however, that once he produced
a valid license and proof he was entitled to operate the van, Goheen was required
to release him without further questioning. “A law enforcement officer conducting
1
Although the district court denied Lopez-M orales’ motion to suppress on
the merits, we can affirm its decision “on any grounds supported by the record.”
United States v. White, 326 F.3d 1135, 1138 (10th Cir. 2003).
-9-
a routine traffic stop may request a driver’s license and vehicle registration, run a
computer check, and issue a citation.” United States v. Bradford, 423 F.3d 1149,
1156 (10th Cir. 2005) (quotation and alteration omitted). Similarly, “an officer
may ask routine questions about the driver’s travel plans.” Id. In light of this
court’s precedent, we conclude Goheen did not violate Zavala’s Fourth
Amendment rights when, during the course of the initial traffic stop, he ran a
computer check on Zavala’s identity and questioned Zavala about his itinerary.
(2) Consent to Further Questioning and to Search of Van
Zavala also contends Goheen violated his Fourth Amendment rights when,
after Goheen told him to have a safe trip and momentarily backed away from his
van, Goheen returned and asked whether Zavala would mind answering additional
questions. Zavala asserts the “coercive effect” of the initial traffic stop had not
yet worn off, and he was not free to decline Goheen’s request to make further
inquiries. Appellant’s Br. at 7. Similarly, he argues he was not free to decline
Goheen’s request to search the van due to the “coercive momentum” from the
initial traffic stop. Id. at 8. In short, Zavala argues his consent— both to answer
additional questions and to search the van— was not freely given.
A traffic “stop generally ends when the officer returns the driver’s license,
registration, and insurance information.” United States v. M anjarrez, 348 F.3d
881, 885 (10th Cir. 2003). An officer may engage in further “questioning
unrelated to the traffic stop,” however, “if the detention becomes a consensual
-10-
encounter.” Id. (quotation omitted). Likewise, a law enforcement officer may
conduct a warrantless search of a vehicle “if a person in control of the vehicle has
given his voluntary consent to the search.” United States v. Zubia-M elendez, 263
F.3d 1155, 1162 (10th Cir. 2001). “W hether voluntary consent was given is a
question of fact, determined by the totality of the circumstances and reviewed for
clear error.” Id.
Here, the district court noted Goheen did not use any show of authority or
coercion that would have pressured Zavala to remain and answer his questions. It
further observed Goheen’s request to ask additional questions conveyed clearly
that Zavala’s continued participation in the encounter was voluntary, and that
Zavala promptly agreed to answer the questions. Based on these observations, the
district court concluded the exchange between Zavala and Goheen became
consensual after Zavala told Goheen he would not mind answering additional
questions. For the same reasons, the district court concluded Zavala voluntarily
consented to Goheen’s request to search the vehicle. Zavala tenders no evidence
that Goheen coerced him to remain and answer additional questions or to consent
to a search of his vehicle, and offers no authority to support his “coercive
momentum” argument. We therefore conclude the district court did not clearly
err when it determined Zavala gave his consent freely.
-11-
(3) Probable Cause
Zavala argues he withdrew consent to further searches of his van when he
declined to voluntarily follow Goheen to the Highway Patrol station. M oreover,
he insists Goheen lacked probable cause to continue searching his van after he
withdrew his consent. Zavala therefore contends G oheen violated his Fourth
Amendment rights when Goheen continued to search his van after he had
withdrawn his consent.
Even if Zavala’s refusal to accompany Goheen to the Highway Patrol office
constituted a withdrawal of his consent to additional searches of his van, Goheen
was entitled to keep searching the vehicle if his search was supported by probable
cause. See Ornelas v. United States, 517 U.S. 690, 693 (1996) (noting a law
enforcement officer may conduct a w arrantless search of a vehicle if the officer’s
search is supported by probable cause). W hether an officer had probable cause to
search is a question this court reviews de novo. United States v. Ledesma, 447
F.3d 1307, 1316 (10th Cir. 2006). In determining whether an officer had probable
cause, we “look at the totality of the circumstances of each case to see whether the
detaining officer has a particularized and objective basis for suspecting legal
wrongdoing.” Id. (quotations omitted). W hen conducting a totality of the
circumstances review, no single factor is dispositive, and factors that may be of
limited significance in isolation may combine to give rise to probable cause. Id.
“The ultimate question is whether the facts and circumstances w ithin the officers’
-12-
knowledge . . . are sufficient in themselves to warrant a man of reasonable caution
in the belief that an offense has been or is being comm itted.” Id. (quotations
omitted).
“[V]isual evidence of a hidden compartment, without more, may provide
probable cause to conduct or expand a search.” Id. at 1317.
W hether probable cause to search a vehicle can be based on evidence
of a hidden compartment depends on two factors: (1) the probative
value of the evidence— that is, the likelihood that there really is a
hidden compartment; and (2) the likelihood that a vehicle with a
hidden compartment would, in the circumstances, be secreting
contraband.
United States v. Jurado-Vallejo, 380 F.3d 1235, 1238 (10th Cir. 2004). At the
time Zavala told Goheen he did not want to follow Goheen to the Highway Patrol
office— thereby allegedly withdrawing his consent— Goheen was aware of several
factors probative of the existence of a secret compartment in Zavala’s van.
Goheen observed the distance between the floor and ceiling of Zavala’s van was
abnormally short, indicating the existence of an unusual amount of space beneath
the floor or above the ceiling. He also noted the seat-belts were not attached to
the ceiling in a normal fashion, the rear seat bolts were scratched as though they
had been removed, and the van’s carpeting was glued down in an unusual fashion.
These modifications strongly suggest the existence of a secret compartment.
M oreover, “[i]f the vehicle had a hidden compartment, it was highly likely to
contain contraband.” Id. As this court has noted previously, “it is difficult to
-13-
imagine a licit purpose for a large hidden compartment in a vehicle the size of a
Chevy van.” Ledesm a, 447 F.3d at 1318.
Evidence of the existence of a hidden compartment, standing alone, may
have been sufficient to establish probable cause to search Zavala’s van. Id. at
1317. In this case, however, evidence suggesting a secret compartment was not
the only factor that supported a finding of probable cause. By the time Zavala
allegedly withdrew his consent to further searches of his van, Goheen had smelled
an overpowering scent of air freshener, observed that Zavala w as unable to recall
where he had stayed in Denver, and knew that Zavala and Lopez-M orales had
criminal histories involving drugs. These factors, combined with the evidence
suggesting the existence of a hidden compartment, furnished probable cause to
continue searching Zavala’s van. Cf. United States v. Anderson, 114 F.3d 1059,
1066 (10th Cir. 1997) (concluding probable cause existed when defendants gave
conflicting or vague versions of their travel itinerary, when scent of air freshener
emanated from the vehicle, when a passenger carried a pager, and when evidence
suggested a hidden compartment in the vehicle).
In sum, Goheen’s initial stop and questioning of Zavala and Lopez-M orales
was proper, Goheen obtained valid consent from Zavala to ask additional questions
and to conduct a search of the van; and, after Zavala allegedly withdrew that
consent, G oheen’s continued search was supported by probable cause.
Accordingly, Zavala’s Fourth Amendment rights were not violated, and the district
-14-
court did not err in denying Zavala’s motion to suppress the marijuana found in his
van.
IV. Conclusion
For the foregoing reasons, we affirm the decision of the United States
District Court for the D istrict of K ansas.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
-15-