PUBLISH
UNITED STATES COURT OF APPEALS
Filed 7/15/96
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
vs. No. 95-2235
ROBERT W. SANCHEZ,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CR-94-475-JP)
Stephen P. McCue, Assistant Federal Public Defender, Albuquerque, New Mexico, for
Defendant-Appellant.
Louis E. Valencia, Assistant United States Attorney, Albuquerque, New Mexico (John J.
Kelly, United States Attorney, Albuquerque, New Mexico, with him on the brief), for
Plaintiff-Appellee.
Before KELLY, BRISCOE and LUCERO, Circuit Judges.
KELLY, Circuit Judge.
Mr. Sanchez entered a conditional plea of guilty to possession with intent to
distribute cocaine, 21 U.S.C. § 841(a)(1), and now appeals from the order of the district
court denying his motion to suppress. We exercise jurisdiction pursuant to 28 U.S.C. §
1291 and affirm.
Background
On April 30, 1994, at approximately 9:30 P.M., Gary Powell, an Eastern New
Mexico University police officer, noticed a vehicle enter a university parking lot and
observed Defendant Sanchez and another individual exit the vehicle and begin walking
towards some campus dorms. In conformity with the campus policy of requesting
identification from persons walking on campus after dark, Officer Powell called to the
men from the window of the patrol car, exited the car, and then called the men over to the
car. Mr. Sanchez and his companion turned around and approached Officer Powell, who
asked them if they were students. When they responded that they were not, Officer
Powell requested identification, which neither could produce. Officer Powell then asked
Mr. Sanchez if he had identification in his vehicle, and Mr. Sanchez responded “I could”
or “I might,” II R. 17, turned, and walked back to his vehicle. With Officer Powell
behind him, Mr. Sanchez opened the passenger door of the vehicle, looked into the glove
compartment, and started rummaging through the interior of the van. Officer Powell,
who had become concerned for his own safety because he had not frisked Mr. Sanchez
and was not wearing a bullet-proof vest, directed Mr. Sanchez to exit the vehicle and
asked for permission to search the vehicle for weapons. II R. 21, 42-44. Mr. Sanchez left
the vehicle, gave Officer Powell permission to search the vehicle and, at Officer Powell’s
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request, walked to the front of the vehicle. During his search of the vehicle, Officer
Powell noticed two bundles wrapped in duct tape partially covered by a flannel shirt, all
located on the front seat of the vehicle. The officer noticed a piece of plastic sticking out
from one of the duct-taped bundles and it appeared to have a white powdery substance in
it. Relying on his police training, Officer Powell believed that the appearance of the
packages indicated that they contained cocaine. Officer Powell removed the bundles
from the van and peeled back some of the tape. When Officer Powell asked Mr. Sanchez
what the bundles contained, Mr. Sanchez ran away but eventually was apprehended. The
bundles contained about 500 grams of cocaine.
Discussion
In reviewing the district court’s denial of a motion to suppress, we apply the
clearly erroneous standard of review to the district court’s findings of fact and view the
evidence in the light most favorable to the government. United States v. Lewis, 71 F.3d
358, 360 (10th Cir.1995). The reasonableness of a search and seizure is a question of
law we review de novo. United States v. Martinez-Cigorroa, 44 F.3d 908, 910 (10th
Cir.), cert. denied, 115 S. Ct. 1386 (1995).
Mr. Sanchez claims that (1) he was seized without reasonable suspicion when
Officer Powell summoned him over to the police vehicle and asked him for identification;
and (2) Officer Powell’s seizure of the duct-taped bundles from the front seat of Mr.
Sanchez’s vehicle exceeded the permissible scope of the protective search.
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I. The Seizure
The Fourth Amendment protects citizens from unreasonable searches and seizures
by government actors. Burdeau v. McDowell, 256 U.S. 465, 475 (1921). Not all
interaction between a police officer and a citizen involves a seizure, however. Florida v.
Bostick, 501 U.S. 429, 434 (1991). A seizure occurs only when a police officer, “by
means of physical force or show of authority, . . . in some way restrain[s] the liberty of a
citizen.” Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968). The proper inquiry is an objective
one: “[a]s long as a reasonable innocent person, as opposed to a person knowingly
carrying contraband, would feel free to leave, such encounters are consensual and need
not be supported by reasonable suspicion of criminal activity.” United States v. Laboy,
979 F.2d 795, 798 (10th Cir. 1992). The subjective intentions or state of mind of either
the defendant or police is irrelevant to Fourth Amendment analysis. Whren v. United
States, No. 95-5841, 1996 WL 305735, at *5 (U.S. June 10, 1996); United States v.
Madrid, 30 F.3d 1269, 1276 (10th Cir.), cert. denied, 115 S. Ct. 527 (1994).
A seizure does not occur simply because a police officer approaches an individual,
asks questions, or requests identification. Bostick, 501 U.S. at 434. Without any basis
for suspecting the criminal involvement of a particular individual, police may
communicate and ask questions of that individual. Id. at 434-35. Courts have identified
several factors that could lead a reasonable innocent person to believe that he is not free
to disregard the police officer, including: the threatening presence of several officers; the
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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 space; and absence of other members of the public.
Laboy, 979 F.2d at 798-99.
None of these factors are present here. The encounter occurred in an open and
well illuminated parking lot. II R. 9. When he pulled his patrol car up to Mr. Sanchez’s
vehicle, Officer Powell did not obstruct or block Mr. Sanchez’s vehicle or prevent Mr.
Sanchez from leaving the parking lot had he chosen to do so. II R. 11, 62. Officer
Powell’s request “if they would come over . . . so I wouldn’t have to yell across the
parking lot,” II R. 14, is not inherently coercive. See Laboy, 979 F.2d at 799. Although
accompanied by a security aide, only Officer Powell exited the patrol vehicle to initiate
contact and interact with Mr. Sanchez and his companion. II R. 17, 55. Officer Powell
did not overtly display his weapon, II R. 18, 22, 58; use aggressive language or tone when
communicating with Mr. Sanchez, II R. 15, 62; physically make contact with either of the
men; or obtain or retain any of Mr. Sanchez’s personal effects until after seizing the
contraband. By the time Mr. Sanchez fled and Officer Powell gave chase, about 25-30
students had come out of a nearby dormitory to witness the encounter. II R. 28. Officer
Powell’s failure to inform Mr. Sanchez that interaction with him was voluntary does not
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violate the Fourth Amendment. See United States v. Little, 18 F.3d 1499, 1505 (10th Cir.
1994). On these facts, a reasonable innocent person would have felt free to terminate the
encounter and leave the scene, Laboy, 979 F.2d at 799; Bostick, 501 U.S. at 437; the
encounter was consensual and required no reasonable suspicion to justify it.
Finally, Defendant’s substantial reliance on Brown v. Texas, 443 U.S. 47 (1979) is
misplaced. In Brown, the Supreme Court found a seizure where the police stopped the
defendant and demanded identification; the defendant refused to identify himself and
asserted that the police had no right to detain him; the police frisked the defendant; and
when the defendant continuously refused to identify himself, the police arrested him.
Brown turned on the involuntary detention of the defendant. Id. at 50. Unlike the
situation in Brown, this case did not involve any animosity between the police and Mr.
Sanchez. Officer Powell did not use aggressive language or a threatening tone of voice or
even intially conduct a frisk.
II. The Search
A. Consent to Search
When the government relies on a defendant's consent for the validity of a search,
the government bears the burden of proving that defendant's consent was freely and
voluntarily given, a determination we make by evaluating the totality of the
circumstances. United States v. McRae, 81 F.3d 1528, 1536-37 (10th Cir. 1996). We
have developed a two-step test for determining the voluntariness of a consent to search:
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the government must (1) “proffer clear and positive testimony that consent was
unequivocal and specific and freely and intelligently given” and (2) “prove that this
consent was given without implied or express duress or coercion.” McRae, 81 F.2d at
1537 (quoting United States v. Angulo-Fernandez, 53 F.3d 1177, 1180 (10th Cir.1995)).
The district court correctly found that Mr. Sanchez gave consent. The totality of the
circumstances indicates that Mr. Sanchez voluntarily consented to Officer Powell’s
search the interior of his vehicle for weapons.
2. The Scope of the Search
Mr. Sanchez argues that Officer Powell’s search, during which he discovered and
removed two bundles from the vehicle and peeled back some tape on one of the bundles,
exceeded the scope of his consent. “[T]he scope of a consent to search is limited by the
breadth of the consent given.” McRae, 81 F.3d at 1537 (quoting United States v. Pena,
920 F.2d 1509, 1514 (10th Cir.1990), cert. denied, 501 U.S. 1207 (1991)). “A suspect
may of course delimit as he chooses the scope of the search to which he consents.”
Florida v. Jimeno, 500 U.S. 248, 252 (1991). To evaluate the scope of a defendant’s
consent, we employ an “objectively reasonable” standard and ask: “what would the
typical reasonable person have understood by the exchange between the officer and the
suspect?” United States v. Wacker, 72 F.3d 1453, 1470 (10th Cir.1995) (quoting Jimeno,
500 U.S. at 251). We determine from the totality of the circumstances whether a search
remains within the boundaries of the consent given and view the evidence in the light
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most favorable to the government. McRae, 81 F.3d at 1537.
After receiving consent to search, Officer Powell initially looked in the glove
compartment and then immediately “to the seat of the car . . . [where] he observed two
bundles on the seat partially covered by a flannel shirt.” II R. 57. The officer noticed a
piece of plastic sticking out from one of the duct-taped bundles and it appeared to have a
white powdery substance in it. Although he did not suspect weapons, II R. 71-72, based
on his training and experience, Officer Powell immediately believed that they contained
narcotics, II R. 25, 70. Officer Powell proceeded to pick up and more closely inspect one
of the bundles and “could clearly see there was a great deal of white powdery substance
in it.” II R. 25. At no time did Mr. Sanchez or his companion object to the search, a fact
that we have indicated “may be considered an indication that the search was within the
scope of consent.” McRae, 81 F.3d at 1538 (quoting Pena, 920 F.2d at 1515).
Under the plain view doctrine, a police officer may properly seize evidence of
crime without a warrant if “(1) the officer was lawfully in a position from which to view
the object seized in plain view; (2) the object's incriminating character was immediately
apparent--i.e., the officer had probable cause to believe the object was contraband or
evidence of a crime; and (3) the officer had a lawful right of access to the object itself.”
United States v. Soussi, 29 F.3d 565, 570 (10th Cir. 1994) (citing Horton v. California,
496 U.S. 128, 136-37 (1990)). The seizure of the bundles from Mr. Sanchez’s vehicle fits
squarely within the plain view doctrine. Officer Powell was lawfully inside Mr.
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Sanchez’s vehicle to search for weapons, and the object seized was in plain view on the
front seat. It is immaterial that Mr. Sanchez gave consent only to search for weapons; an
officer who is legally present and searching for one item need not deliberately disregard
other items but rather may lawfully seize such items “so long as the government’s plain
view seizure scrupulously adheres to the three-prong Horton test.” Soussi, 29 F.3d at
572.
Finally, Defendant’s reliance on Minnesota v. Dickerson, 508 U.S. 366 (1993) is
inapposite. In Dickerson, the Supreme Court held that the plain view doctrine did not
justify the confiscation of contraband from the pocket of a suspect, seized and searched
pursuant to Terry v. Ohio, 392 U.S. 1 (1968), where the incriminating character of the
contraband was not immediately apparent to the officer. Dickerson, 508 U.S. at 378-79
(discussing Arizona v. Hicks, 480 U.S. 321 (1987)). In this case, because Mr. Sanchez
was not seized and the object’s incriminating character was immediately apparent to
Officer Powell, II R. 57, the seizure of the bundles of cocaine was permissible. See id.;
United States v. McCarty, 82 F.3d 943, 948-49 (10th Cir. 1996).
AFFIRMED.
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