United States v. Guerrero

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
January 2, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,
v. No. 06-3123
TA N ZITA RO G U ER RER O,

Defendant-Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF KANSAS
(D .C . N O. 05-CR-40003-01-SAC)

James A. Brown, Assistant United States Attorney (Eric F. M elgren, United
States Attorney, with him on the brief), Topeka, Kansas, for Plaintiff-Appellee.

Daniel E. M onnat, M onnat & Spurrier, W ichita, Kansas, for the Defendant-
Appellant.

Before HA RTZ, O’BRIEN, and M cCO NNELL, Circuit Judges.

M cCO NNELL, Circuit Judge.

This case presents a variation on the usual traffic-stop search-and-seizure

case: namely, that there was no traffic stop to begin with. Tanzitaro Guerrero and

Alfredo Torres were parked at a gas station when they attracted the interest of a
pair of officers eating lunch at a nearby sandwich shop. Starting from a near-idle

inquiry, the officers, through observation and questioning, formulated a

reasonable suspicion that the two men were transporting illegal drugs. The

officers temporarily seized M r. Guerrero’s driver’s license and subsequently

acquired consent to search the car, where they discovered a quantity of

methamphetamine.

W e hold that the detention was supported by reasonable suspicion, and thus

that it neither violated the Fourth Amendment nor tainted the search that followed

it. W e also hold that the search itself w as consensual. Accordingly, we affirm

the district court’s decision not to suppress the evidence found in the car and

uphold M r. G uerrero’s conviction.

I. Background

On Jan. 8, 2005, at 12:30 p.m., M r. Guerrero and M r. Torres stopped at a

Phillips-66 station in Topeka, Kansas. Two Kansas police officers, Brian Rhodd

and Tom Bronaugh, were eating lunch at a nearby Quizno’s sandwich shop.

Deputy Rhodd’s suspicion was aroused by the difference in the two men’s dress –

one was in jeans and one in dress clothes – and ages, and the fact that their

license plate was from California, which he considered to be a drug source state.

Deputy Rhodd approached M r. Torres and M r. Guerrero and questioned them

separately about their travel plans.

-2-
 Deputy Rhodd found the two defendants’ stories suspicious: M r. Torres

said they were both headed to K ansas City to w ork construction for two w eeks;

M r. Guerrero said he was going to K ansas City for a day to drop off M r. Torres,

his uncle, and then would return immediately to Los Angeles. 1 W hen Deputy

Rhodd asked M r. Guerrero how his uncle had traveled to California, M r. Guerrero

did not know. Deputy Rhodd observed that M r. Guerrero’s demeanor shifted at

this point from “being defensive to overly polite and overly cooperative, which

made me believe that something wasn’t right w ith him.” Aplt. A pp. at 126.

Deputy Rhodd also noticed that the car key was alone on a single key ring and

that there was unspecified religious paraphernalia on the gear shift of the car,

both of which he considered characteristic of drug runners. He looked through

the window and saw that clothes were simply thrown across the back seat; none of

them seemed to be intended for construction work, and he did not observe any

construction tools.

Deputy Rhodd then asked to see the two men’s identifying documents and

the car’s registration. M r. Guerrero provided a California driver’s license and the

car’s registration, and M r. Torres provided a M exican identification card, which

the officer thought might not be authentic. W hen Deputy Rhodd asked to whom

the car was registered, he thought M r. Guerrero attempted to read the name off

1
Subsequent questioning made clear that the two men are not, in fact, blood
relatives.

-3-
the registration. M r. Guerrero said that the car belonged to his girlfriend,

“Goudimas;” the registration indicated that the owner was “Elizabeth Goudima.”

Deputy Rhodd took the documents back to his patrol car, and he asked the

two men no questions for ten to twelve minutes while he ran M r. Guerrero’s

licence and the car’s registration. He discovered that the license and registration

were valid, and the there were no outstanding warrants for M r. G uerrero’s arrest.

Deputy Rhodd also learned that the car had traveled back and forth to M exico a

number of times over the preceding months. He called the El Paso Intelligence

Center, which told him – wrongly, as it turned out – that M r. Guerrero was not

legally permitted to be in the country.

The officer returned the paperwork and thanked the men for their time. H e

walked away, then stopped after a few seconds, turned back around, and asked

M r. Guerrero several new questions, including, eventually, for consent to search

the car. M r. Guerrro replied that the car belonged to his girlfriend, so he could

not consent.

At this point, testimony diverges. Deputy Rhodd testified that he explained

to M r. Guerrero that he had the capacity to consent, but did not have to; M r.

Guerrero remembers no such explanation. Deputy Rhodd testified that M r.

Guerrero verbally consented when asked a second time; M r. Guerrero testified

that he refused consent, and that Deputy Rhodd then asked a third time. Both

agree that M r. Guerrero eventually extended both hands, palms up, in response to

-4-
a request for consent. Deputy Rhodd proceeded to search the car. H e found 4.5

kilograms of methamphetamine near the gas tank.

M r. Guerrero and M r. Torres were both arrested and subsequently charged

in the District of Kansas under 21 U.S.C. § 841(a)(1) with one count of

possession with intent to distribute methamphetamine. After a hearing, the

district court denied the defendants’ motion to suppress the evidence found in the

car, finding that “[a]ssuming, arguendo, that the voluntary encounter turned into a

detention for the period of time that the officer had possession of the defendants’

identifications and vehicle registration,” the detention was supported by

reasonable suspicion, and the subsequent consent was valid. Order at 11-13, 20.

Both defendants pleaded guilty, reserving the right to appeal the suppression

ruling, and M r. Guerrero was sentenced to 120 months imprisonment. He timely

appealed.

II. Discussion

A. Illegal Detention

M r. Guerrero argues that he was detained without reasonable suspicion,

and that the methamphetamine found in the car he was driving should be

suppressed as a fruit of that illegal detention. “[T]he unlawful detention inquiry

is fact-intensive, and we review the district court’s fact findings for clear error.”

United States v. Dewitt, 946 F.2d 1497, 1502 (10th Cir. 1991) (citation omitted).

H ow ever, the ultimate issue of whether a seizure occurred is a question of law,

-5-
w hich w e review de novo. United States v. Torres-Guevara, 147 F.3d 1261 (10th

Cir. 1998).

i. Seizure

The government argues that the taking of M r. Guerrero’s license and

registration did not amount to a detention, because D eputy Rhodd did not inform

the defendants that they had to hand over their papers. Rather, “he asked them

and they voluntarily complied.” A plt. Br. at 21. To be sure, if officers m erely

examine an individual’s driver’s license, a detention has not taken place. Florida

v. Royer, 460 U.S. 491, 501 (1983). But once the officers take possession of that

license, the encounter morphs into a detention: “Precedent clearly establishes that

when law enforcement officials retain an individual’s driver’s license in the

course of questioning him, that individual, as a general rule, w ill not reasonably

feel free to terminate the encounter.” United States v. Lam bert, 46 F.3d 1064,

1068 (10th Cir. 1995). During the time that Deputy Rhodd held their paperwork,

Defendants were detained.

ii. Reasonable Suspicion

Investigative detentions must be supported by reasonable suspicion, and

they must be no longer than necessary to accomplish their objectives. United

States v. Gutierrez-Daniez, 131 F.3d 939, 942 (10th Cir. 1997). Although the

great majority of reasonable suspicion cases begin as compulsory traffic stops, an

encounter that begins voluntarily and becomes a detention is subject to the same

-6-
standards. That premise is supported by the long line of airport detention cases,

in which courts have allowed law enforcement officers to approach and detain

travelers when supported by reasonable suspicion. In Royer, where detectives

detained the defendant in the boarding area on suspicion of being a drug courier,

the Court held that temporary detention supported by reasonable suspicion is

permissible “where the public interest involved is the suppression of illegal

transactions in drugs.” 460 U.S. at 498-99. We reaffirmed that position in

Lam bert, a case in which police officers detained the defendant in an airport

parking lot when no vehicular violation had occurred. Lam bert, 46 F.3d at 1064.

W e held that reasonable suspicion remains the proper standard for police to take

and run the defendant’s license, even when the encounter begins consensually:

“W hile not directly on point – the agents here were not concerned with whether

M r. Lambert could lawfully operate a motor vehicle or in issuing a traffic citation

– the principle of the traffic stop cases . . . does apply.” Id. at 1068 n.3; see also

United States v. Lopez, 443 F.3d 1280, 1282, 1286 (10th Cir. 2006) (holding

reasonable suspicion to be the proper standard for the seizure of a driver’s license

when officers approach defendants and their parked car by the side of the road).

Our precedent makes clear that officers may ask for a defendant’s license, given

reasonable and articulable suspicion, even in the absence of any compelling basis

to begin the questioning.

-7-
 Reasonable suspicion is defined as “particularized and objective basis for

suspecting the particular person stopped of criminal activity.” United States v.

Cortez, 449 U.S. 411, 417-18 (1981). In assessing reasonable suspicion, we defer

to trained law enforcement personnel, “allow[ing] officers to draw on their ow n

experience and specialized training to make inferences from and deductions about

the cumulative information available to them that ‘might well elude an untrained

person.’” Unites States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting Cortez, 449

U.S. at 418). “The evaluation is made from the perspective of the reasonable

officer, not the reasonable person,” United States v. Quintana-Garcia, 343 F.3d

1266, 1270 (10th Cir. 2003). The Supreme Court has instructed that we not

exam ine each factor adding up to reasonable suspicion individually, but that we

evaluate how convincingly they fit together into a cohesive, convincing picture of

illegal conduct. In Arvizu, the Court rejected what it called a “divide-and-

conquer analysis,” noting that reasonable suspicion may exist even if “each

observation” is “susceptible to an innocent explanation.” Arvizu, 534 U.S. at

274.

To be sure, a number of the factors Deputy Rhodd cites as providing

reasonable suspicion are justifications we have found so broad as to be indicative

of almost nothing. The fact that the defendants were traveling from a drug source

city – or, as Deputy Rhodd first noted upon approaching the car, a drug source

state – does little to add to the overall calculus of suspicion: “If travel between

-8-
two of this country’s largest population centers is a ground on which reasonable

suspicion may be predicated, it is difficult to imagine an activity incapable of

justifying police suspicion and an accompanying investigative detention. Our

holding that suspicious travel plans can form an element of reasonable suspicion

should not be taken as an invitation to find travel suspicious per se.” United

States v. Santos, 403 F.3d 1120, 1132 (10th Cir. 2005).

The presence of religious iconography in the vehicle is, similarly, not

merely consistent with innocent conduct but so broad as to provide no reasonable

indicium of wrongdoing. Cf. United States v. Valenzuela, 365 F.3d 892, 900

(10th Cir. 2004) (dismissing as “beyond the pale” the government’s argument that

the presence of American flag decals on a car contributed to reasonable

suspicion). Under some circumstances, particular religious symbols – notably

those identified with gangs – might provide meaningful indicia of reasonable

suspicion. But by citing undifferentiated “religious iconography” as grounds for

reasonable suspicion, Deputy Rhodd equates generalized religious expression

with criminal activity, a connection that we cannot support as reasonable. United

States v. Ramon, 86 F.Supp.2d 665, 677 (W .D. Tex. 2000) (“while religious

symbols on vehicles cannot shield such vehicles from a reasonable suspicion

inquiry, neither can religious symbols alone (or even together with other

inconsequential factors) be employed to justify a reasonable suspicion stop”).

-9-
 Nevertheless, other factors cited by Deputy Rhodd coalesce into a scenario

sufficient to give rise to a reasonable suspicion of criminal activity. As the

officer explained in his testimony, “people w ho may carry narcotics in their

vehicle, sometimes they’ll be matched together, they don’t really know each

other.” Aplt. App. at 115. The observations Deputy Rhodd made of M r. Torres

and M r. Guerrero supported the interpretation that the two men w ere strangers,

paired only for a drug run: they differed in age and manner of dress, and M r.

Guerrero did not seem to know how M r. Torres, his purported uncle, had arrived

into the United States from M exico. The lone key on a single ring similarly

indicated, however weakly, that this was not a car that M r. Guerrero drove

regularly. Although these factors, standing alone, would not amount to

reasonable suspicion, they were consistent with a broader story, and with the

m ore specific, suspicious factors enumerated below.

M ost important to the overall evaluation, however, are M r. Guerrero’s

uncertain answer to the question about the car’s ownership and the two men’s

differing renditions of their travel plans. The fact that M r. Guerrero, a fluent

English speaker, would mispronounce the name of his purported girlfriend, while

attempting to read her name off the registration, is an articulable, suspicious

factor. And the fact that one defendant indicated that both men were staying in

Kansas City, while the other indicated that he was only there for a quick stop,

adds strongly to Deputy Rhodd’s overall impression that the two men were

-10-
strangers, together only for the purpose of hauling drugs. See, e.g. United States

v. Kopp, 45 F.3d 1450, 1454 (10th Cir. 1995) (defendants’ “implausible and

inconsistent” travel plans created a basis for reasonable suspicion); United States

v. Zubia-M elendez, 263 F.3d 1155, 1162 (10th Cir. 2001).

iii. Termination of Detention

M r. Guerrero does not argue that Deputy Rhodd held onto his license

longer than necessary to ascertain identification and registration. Lam bert, 46

F.3d at 1068 n.3 (“[A]n individual’s identification should be retained no longer

than necessary to accomplish the purpose for its request.”). Thus the only

remaining question relating to the detention is when it ended. The government

argues, and the district court agreed, that the detention ended when M r. Rhodd

handed back defendants’ papers, thanked them for their time, and began walking

away. Although such a determination is context-specific, in general those actions

are sufficient to indicate that an individual is free to leave. United States v.

Ledesma, 447 F.3d 1307, 1315 (10th Cir. 2006) (use of the phrase “thank you”

signaled the end of detention); United States v. Elliott, 107 F.3d 810, 814 (10th

Cir. 1997) (handing back of documents enough to end detention). M r. Guerrero

claims that the detention continued because D eputy Rhodd turned around very

shortly after returning the papers and resumed his questioning. W e have held that

“returning a driver’s documentation may not end the detention if there is evidence

of ‘a coercive show of authority, such as the presence of more than one officer,

-11-
the display of a weapon, physical touching by the officer, or his use of a

comm anding tone of voice indicating that compliance might be compelled.’”

United States v. Bustillos-M unoz, 235 F.3d 505, 515 (10th Cir. 2000) (quoting

United States v. Turner, 928 F.2d 956, 959 (10th Cir. 1991)). Two of those

factors existed here, but only in the mildest of forms: Sergeant Bronaugh sat a

distance away and had no interaction with M r. Guerrero or M r. Torres, and the

police car w as stationed next to the Defendant’s car, though not in a position to

block it. There is nothing in this set of facts that counsels disturbing the district

court’s determination that the detention ended after the papers were returned. 2

B. Consent

Because M r. Guerroro’s detention was law ful and ended promptly, we are

left only to examine the voluntariness of his subsequent consent. Voluntariness is

a factual issue, determined through the totality of the circumstances. United

States v. West, 219 F.3d 1171, 1177 (10th Cir. 2000). W e review the district

court’s finding of consent under the clearly erroneous standard, because “the

credibility of the witnesses and the weight to be given the evidence, together with

the inferences, deductions and conclusions to be drawn from the evidence, are all

2
The government argues in the alternative that Deputy Rhodd had probable
cause to arrest M r. Guerrero for illegal reentry, so any detention was legal. The
district court made no such finding, and we need not reach the issue, as our other
rulings dispose of the matter.

-12-
matters” most appropriate for resolution by the district court. United States v.

Walker, 933 F.2d 812, 815 (10th Cir. 1991). This holds “particularly true where,

as here, the credibility of witnesses is important on the issue of voluntariness.”

United States v. Guzman, 864 F.2d 1512, 1521 (10th Cir. 1988).

For consent to be valid, two conditions must be met: “(1) There must be a

clear and positive testimony that consent was unequivocal and specific and freely

given; and (2) The government must prove consent was given without duress or

coercion, express or implied.” United States v. Butler, 966 F.2d 559, 562 (10th

Cir. 1992).

To satisfy the first prong of the voluntariness requirement, a defendant’s

consent must be clear, but it need not be verbal. Consent may instead be granted

through gestures or other indications of acquiescence, so long as they are

sufficiently comprehensible to a reasonable officer. United States v. Benitez, 899

F.2d 995, 998-99 (10th Cir. 1990); United States v. Gordon, 173 F.3d 761, 765-66

(10th Cir. 1999). Nor is an officer required to inform a defendant explicitly that

he is free to go before requesting permission to search, Ohio v. Robinette, 519

U.S. 33, 39-40 (1996); Ledesm a, 447 F.3d at 1314, or to refrain from renewing

his request for consent after a defendant has at first denied it, Zubia-M elendez,

263 F.3d at 1163. M oreover, we have specifically held that non-verbal consent

may validly follow a verbal refusal. United States v. Flores, 48 F.3d 467, 468-69

(10th Cir. 1995).

-13-
 The second prong, requiring that the consent be free of coercion, turns on

whether a reasonable person would believe he was free to leave or to deny the

officer’s request to search. Ledesma, 447 F.3d at 1314. In determining whether

consent was coerced, we consider factors such as:

the threatening presence of several officers; the brandishing of a weapon by
an officer; some physical touching by an officer; use of aggressive
language or tone of voice indicating that compliance with an officer's
request is compulsory; prolonged retention of a person's personal effects
such as identification and plane or bus tickets; a request to accompany the
officer to the station; interaction in a nonpublic place or a small, enclosed
place; and absence of other members of the public.

United States v. Sanchez, 89 F.3d 715, 718 (10th Cir. 1996).

M r. Guerrero essentially concedes the first element of the consent test: he

testified that his gesture was indeed meant to let Deputy Rhodd know that he

could search the car. This accords with the objective notion that a palms-up

signal indicates consent. M r. Guerrero contends, however, that that permission

was given under duress: “W ell, I was just being submissive because I couldn’t do

nothing. . . . He was going to search the car anyways.” Aplt. App. 213. The

district court gave no credence to M r. Guerrero’s claims that his consent was

coerced, and we have no basis for finding this conclusion clearly erroneous. M r.

Guerrero’s argument relies largely on the fact that he was still being detained, an

issue we dispose of above. See supra Part II.A.iii. M r. Guerrero gave his consent

only a minute or two after the initial detention ended. In the interim, Deputy

Rhodd engaged in no new use of the coercive factors laid out in Sanchez. He

-14-
merely asked several new, more targeted questions. Nothing that occurred in that

short time changes our interpretation that a reasonable man in M r. Guerrero’s

shoes would feel free to leave or to deny Deputy Rhodd’s request. The district

court also notes that neither Defendant objected during the search itself, which,

while not dispositive, is often a good indicator that consent existed. United States

v. Pena, 920 F.2d 1509, 1515 (10th Cir. 1990). The district court’s ruling is, at a

minimum, not clear error.

III. Conclusion

Because we find that M r. Guerrero was not illegally detained and that he

validly consented, we AFFIRM the judgment of the district court.

-15-