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.
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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.
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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
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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,
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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
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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.
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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
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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”).
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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
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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,
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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.
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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).
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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
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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.
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United States v. Guerrero
Court: Court of Appeals for the Tenth Circuit
Date filed: 2007-01-02
Citations: 472 F.3d 784
Copy Citations