F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 24 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 00-3138
LORENZO ZUBIA-MELENDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the District Court of Kansas
(D.C. No. 99-CR-20092-02-GTV)
Michael L. Harris, Assistant Federal Public Defender, Kansas City, Kansas, for
Defendant-Appellant.
Nancy Landis Caplinger, Assistant United States Attorney (Jackie N. Williams,
United States Attorney for the District of Kansas, with her on the brief), Kansas
City, Kansas for Plaintiff-Appellee.
Before EBEL, ANDERSON and BALDOCK, Circuit Judges.
EBEL, Circuit Judge.
Defendant-Appellant Lorenzo Zubia-Melendez appeals the district court’s
denial of his motion to suppress evidence seized from his vehicle following a
traffic stop and subsequent search of his vehicle. After the district court denied
the motion, Appellant entered a conditional guilty plea on one count of possession
with intent to distribute more than 5 kilograms of cocaine in violation of 21
U.S.C. §841(a)(1). Appellant argues on appeal that the traffic stop preceding the
search was not supported by probable cause, that the questions asked by the
officer were not reasonably related to the purpose of the traffic stop, and that
Appellant did not freely and voluntarily consent to the search of his car.
Exercising jurisdiction pursuant to 28 U.S.C. §1291, we AFFIRM.
BACKGROUND
Appellant’s car, a 1999 Chevrolet Tahoe with Texas plates, was parked in
the parking lot of a Best Western motel in Kansas City, Kansas, on the night of
October 13, 1999. Ray Bailiff, a Kansas Highway Patrol Trooper assigned to the
Drug Enforcement Administration (“DEA”), noticed the vehicle and checked its
license plates against the motel registration card, at which point he learned that
the vehicle was registered to Appellant and that Appellant had paid for the motel
room with cash. Officer Bailiff also checked whether the car had recently crossed
the border between the United States and Mexico and learned that the car had
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crossed the border at 10:08 a.m. on October 12, 1999. Finally, Officer Bailiff
checked the motel’s phone records and discovered that at least one telephone call
had been made from Appellant’s room to individuals whom Officer Bailiff knew
were involved in the drug trade.
The vehicle was then placed under surveillance. Kansas Highway Patrol
Officer David Heim, a member of the surveillance team, was told that the car had
recently crossed the border between the United States and Mexico and that
officers believed the car might be being used in drug trafficking activity. He was
instructed to stop the car if an opportunity presented itself. He was not
specifically informed of the many investigative activities undertaken by other
officers in regard to Appellant prior to that point in time.
The vehicle left the motel parking lot on October 14, 1999, at
approximately 10:15 a.m. Officer Heim was advised by radio that the car was
leaving the motel and traveling northbound on Seventh Street toward the I-35
interchange. Officer Heim pulled in behind the vehicle and followed it as it drove
along Seventh Street and across the Kansas River Bridge. This is a four-lane
highway, with two lanes of northbound traffic and two lanes of southbound
traffic. The car was in the far right lane of northbound traffic. Officer Heim
testified that the driver of the car allowed the car to drift approximately 2 feet
into the left lane of northbound traffic, but that the car came “right back over”
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after only a “couple of seconds.” Officer Heim then initiated a traffic stop, which
he explained at the suppression hearing with the statement: “[I]t’s a violation of
the law to cross over the lane lines. It didn’t give a signal and it just looked like
it was drifting basically out of control into the other lane.”
Officer Heim’s car is equipped with a video recorder. Although Officer
Heim stated that he activated the recorder “as soon as he realized that the vehicle
was across the lane line,” the video recording does not show the vehicle
straddling the two lanes; instead, the video recording shows the tires of the
vehicle close to touching the white dividing line between the two northbound
lanes. Heim explained that there was a “very slight” delay between the time he
turned on the recorder and the time when the recording commenced.
After stopping the vehicle, Officer Heim proceeded to question both
Appellant, who owned the car but was riding in the passenger seat at the time of
the stop, and the driver, later identified as Jorge Javier Galindo-Diaz. Officer
Heim first asked Galindo-Diaz for his driver’s license, but Galindo-Diaz stated
that he did not have one. Officer Heim ordered Galindo-Diaz out of the car and
toward the back of the vehicle, and briefly remained at the passenger-side door of
the vehicle to question Appellant. Officer Heim asked Appellant for the name of
the driver, which the Appellant stated he did not know despite his assertion that
the driver was his brother-in-law. Appellant stated that he and his wife, as well
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as the driver, had stayed at a motel the previous night. Officer Heim then
questioned Galindo-Diaz. Galindo-Diaz stated that he did not know Appellant’s
name and that he had stayed at his Kansas City home (and not in a motel) the
previous night. At that point, Officer Heim returned to Appellant, who again
asserted that he had stayed with Galindo-Diaz in a motel the night before.
Appellant also told Officer Heim that he was the registered owner of the vehicle
and provided the vehicle’s registration information to the officer. The
registration indicated that the vehicle’s insurance was expired. Officer Heim
briefly took the Appellant out of the vehicle to frisk him and then placed him
back inside the vehicle on the passenger’s side.
Because the stories of the two men conflicted, Officer Heim became
suspicious that the two might be engaged in criminal activity. Officer Heim
therefore issued a warning on the traffic violation 1 and, without telling either man
that he was free to go or that they could move from the positions into which he
had ordered them, asked Galindo-Diaz if he could search the car for drugs.
Galindo-Diaz replied “yes.” Because Appellant had asserted ownership of the
1
It is unclear whether Officer Heim handed Galindo-Diaz the registration
for the vehicle at this time. The exchange takes place off-screen. While Officer
Heim did not mention returning the registration during his testimony at the
suppression hearing, it appears from the videotape that he is not carrying it when
he approaches Appellant immediately after obtaining permission to search the car
from Galindo-Diaz. In any event, Zubia-Melendez does not make an argument on
the basis of whether the registration had been returned.
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vehicle, Officer Heim then asked him for permission to search the car for drugs.
Appellant initially responded to the question by stating, “No, never.” Officer
Heim then immediately asked again if he could search the vehicle and Appellant
replied “Yeah, no matter.” 2
Officer Heim understood this exchange to provide consent to search
Appellant’s car. The search of the car, which lasted approximately 16 minutes,
was initially unsuccessful because the drug-sniffing dog gave false alerts on a bag
in the backseat of the vehicle. Officer Heim then took the dog out of the car and
continued the search. He noticed that the molding in the right rear corner of the
vehicle “wasn’t fitting just exactly like it would have from the factory” and the
screws holding it in place looked tampered with. Eventually, Officer Heim was
joined by three other officers and they uncovered 5.7 kilograms of cocaine
hydrochloride in a hidden compartment.
All of the above testimony, as well as the videotape itself, was presented at
the suppression hearing. In addition, both Appellant and Galindo-Diaz testified
2
Officer Heim stated that he asked a second time to search the car because
he believed Appellant had not understood the question due to Appellant’s “blank
look like he was just trying to hang with me in conversation.” Officer Heim
further testified that the blank expression on Appellant’s face disappeared when
he asked the question a second time, and that Appellant then consented to the
search. He admitted on direct examination, however, that he did not come to the
conclusion that the Appellant had not understood his question the first time until
he watched the videotape being played in court at the suppression hearing.
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with the help of an interpreter. Galindo-Diaz testified that he did not believe he
had crossed the white dividing line while driving because he was aware that he
was being followed and was trying to drive carefully. He could not conclusively
say he had not crossed the line but stated “I don’t remember, but I don’t
remember doing it or I don’t think I’ll do it. And you can’t see it on the tape. I
don’t think I’ll cross it.”
Appellant testified that he did not understand what he was being asked
when Officer Heim asked him if he could search the vehicle. He admitted on
cross-examination, however, that he had understood Officer Heim’s request for
his name and identification, as well as his question regarding ownership of the
vehicle.
The district court denied the motion to suppress. Important to this appeal
are the following aspects of the district court’s conclusion: (1) the court
specifically found the testimony of Officer Heim relating to the purpose of the
stop to be credible; (2) the court found that Officer Heim had reasonable
suspicion to detain the Appellant and Galindo-Diaz to ask about narcotics based
upon their conflicting answers to the officer’s questions and Galindo-Diaz’s lack
of a valid driver’s license; and (3) the court stated that Appellant understood
enough English to consent voluntarily to the search.
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DISCUSSION
I. Standard of Review
“In reviewing the denial of a motion to suppress, we must accept the
district court’s factual findings unless clearly erroneous and we view the evidence
in the light most favorable to the prevailing party.” United States v. Springfield,
196 F.3d 1180, 1183 (10th Cir. 1999). The ultimate determination of the
reasonableness of a warrantless search or seizure under the Fourth Amendment is
a determination of law that we review de novo. See United States v. Pena, 920
F.2d 1509, 1513-14 (10th Cir. 1990).
II. Analysis
A. The initial traffic stop was supported by probable cause
The first question we must address is whether the initial seizure of the
vehicle was supported by probable cause. The government bears the burden of
proof to justify warrantless searches and seizures. See United States v. Maestas, 2
F.3d 1485, 1491 (10th Cir. 1993). The standard of proof imposed upon the party
who carries the burden, in this case the government, is a preponderance of
evidence. See United States v. Matlock, 415 U.S. 164, 177 (1974).
Stopping an automobile and detaining its occupants constitutes a seizure
within the meaning of the Fourth Amendment, even though the purpose of the
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stop is limited and the detention is brief. See United States v. Gregory, 79 F.3d
973, 977 (10th Cir. 1996); see also Delaware v. Prouse, 440 U.S. 648, 653 (1979).
“Therefore, the stop is ‘subject to the constitutional imperative that it not be
“unreasonable” under the circumstances.’” United States v. Ozbirn, 189 F.3d
1194, 1197 (10th Cir. 1999) (quoting Whren v. United States, 517 U.S. 806, 810
(1996)). A traffic stop is reasonable under the Fourth Amendment if the officer
has either “(1) probable cause to believe a traffic violation has occurred, or (2) a
reasonable articulable suspicion that this particular motorist violated any one of
the multitude of applicable traffic and equipment regulations of the jurisdiction.”
Ozbirn, 189 F.3d at 1197 (quotation marks and citations omitted).
Here, Officer Heim testified that he saw the vehicle drift approximately two
feet over the dividing line into the left lane of northbound traffic, which he
considered a violation of Kansas law. 3 See Kan. Stat. Ann. § 8-1522. The Kansas
statute states that “[w]henever any roadway has been divided into two (2) or more
clearly marked lanes for traffic, . . . [a] vehicle shall be driven as nearly as
practicable entirely within a single lane and shall not be moved from such lane
3
The government does not argue that Galindo-Diaz’s weaving created
reasonable suspicion for Officer Heim to conduct a safety stop for possible
intoxication or fatigue, as allowed under Kansas law in certain limited
circumstances. See State v. Vistuba, 840 P.2d 511, 514 (Kan. 1992) (allowing
safety stops where the “safety reasons are based upon specific and articulable
facts”).
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until the driver has first ascertained that such movement can be made with
safety.” See id. Although the videotape submitted by the government does not
show the vehicle crossing over the dividing line between the two northbound
lanes of traffic, it does show that Galindo-Diaz tended to drive on the left side of
the lane and that his tires were at least close to touching the dividing line in the
first few frames. This is consistent with Officer Heim’s testimony that he
activated the video recorder only after observing the traffic violation, and
experienced a slight delay before the videotape began to record, and thus that the
videotape is not a comprehensive record of the traffic violation. More important
to our analysis, the district court specifically found that Officer Heim’s testimony
was credible as to the purpose of the traffic stop, which necessarily involved its
crediting Officer Heim’s relation of events while simultaneously discounting
Galindo-Diaz’s testimony that he did not believe he crossed the white dividing
line.
We see no reason to question the credibility determinations of the district
court. We therefore find that Officer Heim had probable cause to believe that a
traffic violation had occurred once he saw the vehicle cross over into the left lane
of northbound traffic. 4
In Ozbirn, 189 F.3d at 1198, we held that “under the language of the
4
Kansas statute, when an officer merely observes someone drive a vehicle outside
(continued...)
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B. The questioning of Appellant and Galindo-Diaz was reasonably related
to the purposes of the stop
This court has stated that an officer conducting a traffic stop may request
vehicle registration and a driver’s license, run a computer check, ask about travel
plans and vehicle ownership, and issue a citation. See United States v. Hunnicutt,
135 F.3d 1345, 1349 (10th Cir. 1998); United States v. Rivera, 867 F.2d 1261,
1263 (10th Cir. 1989). After the officer has issued the citation, however, the
driver “must be allowed to proceed on his way, without being subject to further
delay by police” if he has produced “a valid license and proof that he is entitled to
operate the car.” See United States v. Lee, 73 F.3d 1034, 1039 (10th Cir. 1996).
An officer who is presented with the requisite information may nevertheless
detain a suspect for further questioning if the officer has an “objectively
reasonable and articulable suspicion that illegal activity has occurred or is
4
(...continued)
the marked lane, he does not automatically have probable cause to stop that
person for a traffic violation.” We thus stated that a court must conduct a fact-
specific inquiry into “all the surrounding facts and circumstances to determine
whether the officer had the probable cause necessary to justify the stop.” Id. In
this case, however, Appellant has not argued that Officer Heim did not have
probable cause to stop the vehicle after observing it briefly weave outside the
driver’s lane only one time. For that reason, we deem the issue waived and will
not address it on appeal. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979,
984 n.7 (10th Cir. 1994).
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occurring” or if the suspect consents to additional questions. See United States v.
Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir. 1994).
We agree with the district court that Officer Heim’s actions between the
time of the stop and his request to search the car were reasonable under the
circumstances. It is undisputed that Officer Heim was entitled to request vehicle
registration and a driver’s license from Galindo-Diaz. See Hunnicutt, 135 F.3d at
1349. Despite the fact that he was driving the car, Galindo-Diaz could not
produce a valid driver’s license, nor any other form of photo identification, when
they were requested by Officer Heim. Once it was established that Galindo-Diaz
could not provide evidence of his identity or authority to drive the vehicle,
Officer Heim was justified in requesting identifying information from Appellant.
Cf. United States v. Galindo-Gonzales, 142 F.3d 1217, 1224 (10th Cir. 1998)
(“[W]e have concluded that officers confronted with a motorist who cannot
produce proof of ownership may ask questions about the identity and travel plans
of the driver and passengers.”). This is not to say that Officer Heim immediately
should have been able to question Appellant on matters irrelevant to the scope of
the vehicle stop, but only that he was allowed to ask Appellant for his name and
the name of the driver, as well as the connection between, and travel plans, of the
two men. When Appellant was asked for his name and that of the driver,
Galindo-Diaz, Appellant told Officer Heim that Galindo-Diaz was his brother-in-
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law, but that Appellant did not know his name. Officer Heim then asked Galindo-
Diaz for Appellant’s name, and Galindo-Diaz stated that he did not know it. To
further complicate the men’s story, Appellant claimed that he, his wife and
Galindo-Diaz had all stayed together the night before at a hotel. Galindo-Diaz, on
the other hand, stated that he lived in Kansas City and had stayed at home the
night before. Finally, both men demonstrated a reluctance to answer questions
that might have been the result of language difficulties, but might also have been
an attempt at concealment.
Once Officer Heim received these dubious and inconsistent answers to his
questions, he developed reasonable, articulable suspicion that the two men might
be engaged in criminal activity, thereby justifying their continued detention for
further investigation. We have held that implausible or contradictory travel plans
can contribute to a reasonable suspicion of illegal activity. See United States v.
Kopp, 45 F.3d 1450, 1453-54 (10th Cir. 1995). We have also stated that courts
should “defer to ‘the ability of a trained law enforcement officer to distinguish
between innocent and suspicious actions.’” United States v. McRae, 81 F.3d
1528, 1534 (10th Cir. 1996) (quoting United States v. Martinez-Cigarroa, 44 F.3d
908, 912 (10th Cir. 1995) (Baldock, J., concurring)). In this case, the
contradictions, implausibilities and potentially evasive actions of Appellant and
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Galindo-Diaz would cause an experienced officer to become suspicious that the
men were engaged in criminal activity.
We therefore conclude that Officer Heim did not exceed the scope of the
traffic stop by detaining Appellant and Galindo-Diaz in order to further
investigate potential criminal activity for which he had developed reasonable,
articulable suspicion in the course of his questioning.
C. The district court correctly concluded that Zubia-Melendez freely and
voluntarily consented to the search of his car
It is well-established that warrantless searches violate the Fourth
Amendment unless they fall within a specific exception to the warrant
requirement. See United States v. Karo, 468 U.S. 705, 717 (1984). “[T]he
government has the burden of proving that an exception to the warrant
requirement applies.” United States v. Maestas, 2 F.3d 1485, 1491 (10th Cir.
1993); see also United States v. Pena, 143 F.3d 1363, 1366 (10th Cir. 1998)
(holding that the government has the burden of proving voluntary consent to
conduct a warrantless search). Consent is one such exception to the warrant
requirement, see Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973), and this
court has therefore held that a vehicle may be searched if a person in control of
the vehicle has given his voluntary consent to the search, see United States v.
Santurio, 29 F.3d 550, 552 (10th Cir. 1994).
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Whether voluntary consent was given is a question of fact, determined by
the totality of the circumstances and reviewed for clear error. See United States
v. Melendez-Garcia, 28 F.3d 1046, 1054 (10th Cir. 1994). We have utilized a
two-part test to make this determination: “First, the government must proffer
‘clear and positive testimony that consent was unequivocal and specific and freely
given.’ Furthermore, the government must prove that this consent was given
without implied or express duress or coercion.” See McRae, 81 F.3d at 1537
(quoting United States v. Angulo-Fernandez, 53 F.3d 1177, 1180 (10th Cir.
1995)).
The conversation in which Officer Heim handed Galindo-Diaz the warning
ticket and requested consent to search the vehicle occurred off-screen in the
videotape, but it appears that the vehicle registration documents were returned to
Galindo-Diaz at that time. Officer Heim then approached the Appellant, who was
still sitting in the passenger’s seat in the vehicle. The officer asked to search the
vehicle for drugs and Appellant, who did not speak good English, replied, “No,
never.” The officer then asked again to search the vehicle and Appellant replied
“Yeah, no matter.”
We acknowledge that the issue of whether Appellant’s consent was freely
and voluntarily given is a close one. When he was first asked for consent to
search the vehicle, Appellant refused. The fact that Appellant initially told
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Officer Heim he could not search the car does not, however, render his
subsequent consent involuntary, cf. United States v. Flores, 48 F.3d 467, 468-69
(10th Cir. 1995) (holding that the defendant’s hesitation before opening the trunk
of her car did not make her subsequent consent involuntary), especially because
Appellant’s consent appears to have come without hesitation when he was asked a
second time for permission to search the vehicle.
The next question, then, is whether Appellant truly understood Officer
Heim’s question before giving his consent. We acknowledge that Appellant has
trouble speaking and understanding English; the videotape of the traffic stop
demonstrates his confusion at several points during the encounter, and he testified
at the suppression hearing with the assistance of an interpreter. Appellant
admitted at the suppression hearing, however, that he understood the officer’s
request for his name, identification, and ownership of the vehicle. Indeed, the
district court specifically found at the suppression hearing that Appellant and
Officer Heim “could converse sufficiently to understand one another, both with
respect to Mr. Zubia’s understanding of what was said to him in English and also
what was said by Trooper Heim in the few Spanish words that he used.” We do
not find the district court’s conclusion in this regard to be clearly erroneous, and
therefore find that Appellant had sufficient familiarity with the English language
to understand and respond to Officer Heim’s request. Cf. United States v. Corral,
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899 F.2d 991, 994 (10th Cir. 1990) (holding that defendant with limited
knowledge of English voluntarily consented because he understood the officer’s
questions, answered questions in English and demonstrated an overall working
knowledge of English).
Finally, we find no error in the district court’s conclusion that Appellant’s
consent to the search was not explicitly or implicitly coerced by Officer Heim and
was therefore voluntary. Officer Heim neither told Appellant that he was free to
leave nor informed him that he could refuse consent, and we have held that both
factors should be considered in determining whether consent was voluntary. See
Gregory, 79 F.3d at 979. In addition, at the time consent was given, Appellant
had been detained for approximately eleven minutes, had been frisked once, and
was sitting in the passenger seat of a vehicle that he could not drive away because
he had neither keys nor a driver’s license. But our review of the videotape of the
traffic stop reveals no physical or verbal coercion by Officer Heim. In addition,
Appellant’s answer, “Yeah, no matter,” when asked a second time for permission
to search the vehicle was given without hesitation, and Appellant did not at any
time attempt to stop Officer Heim from continuing his search of the vehicle.
In reviewing the totality of the circumstances, we cannot conclude that the
district court clearly erred in finding that Appellant’s consent to search the
vehicle was freely and voluntarily given.
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CONCLUSION
For the foregoing reasons, we find that the district court did not err in
denying Appellant’s motion to suppress evidence seized during the search of his
vehicle. The district court is therefore AFFIRMED.
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