F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
September 15, 2006
UNITED STATES COURT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES of A M ER ICA,
Plaintiff-Appellee,
v.
No. 05-8031
ANTONIO GUERRERO-ESPIN OZA,
Defendant-Appellant.
Appeal from the United States District Court
for the District of W yoming
(D .C . No. 03CR-00247-W FD)
Ronald G. Pretty, Cheyenne, W yoming, for D efendant-Appellant Antonio
Guerrero-Espinoza.
David A. Kubichek, Assistant United States Attorney (M atthew H. M ead, United
States Attorney, with him on the brief) for Plaintiff-Appellee United States of
America.
Before T YM KOV IC H, HOL LOW AY, and EBEL, Circuit Judges.
EBEL, Circuit Judge.
In this direct criminal appeal, Defendant-Appellant Antonio
Guerrero-Espinoza (“Guerrero”) asserts that the district court erred in denying his
motion to suppress illegal drugs discovered in his minivan by a W yoming state
trooper during a traffic stop. At the time the trooper stopped the minivan for
speeding, Guerrero, the minivan’s registered owner, was riding as a passenger and
another individual was driving. The trooper took the driver to the trooper’s patrol
car and eventually completed the traffic stop when he returned the driver’s
license, issued the driver a warning, and let him out of the patrol car. Since the
traffic stop had ended, the trooper no longer had authority to detain Guerrero or
the driver further. Before the driver returned to the minivan, however, the trooper
reinitiated contact with him and then with Guerrero, questioning them about their
travel plans and the possible presence of drugs in the minivan. The Government
asserts that Guerrero consented to this further detention and questioning. W hile a
completed traffic stop can evolve into a consensual encounter between a citizen
and a trooper, it can only do so if a reasonable person in the same circumstances
would feel free to decline to answ er the trooper’s questions and leave. In this
case, however, because the trooper completed the traffic stop outside G uerrero’s
presence and because the released driver never returned to the minivan, a
reasonable person in Guerrero’s position would not have realized the traffic stop
had ended and he was free to leave. Therefore, as far as Guerrero was concerned,
the traffic stop did not evolve into a consensual encounter. For these reasons, w e
REM AND this case to the district court with orders to VACATE Guerrero’s
convictions.
I. B ACKGR OU N D .
2
A jury convicted Guerrero of three drug charges: possessing 1) more than
500 grams of cocaine and 2) approximately twenty pounds of marijuana, with the
intent to distribute both, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and
(D ); and 3) conspiring to possess those amounts of cocaine and marijuana, with
the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and (D),
846. 1 The district court sentenced Guerrero to seventy months on each of counts
one and three, and sixty months on count two, all to run concurrently. Guerrero
now appeals, challenging his convictions and sentence.
On appeal, Guerrero argues the district court 1) erred in denying his motion
to suppress the state trooper’s discovery of the drugs; 2) denied Guerrero his
Sixth Amendment right to confront witnesses when the court allowed the
Government to present hearsay evidence of statements the van’s driver and
Guerrero’s wife made during the traffic stop, and between Guerrero and his wife;
and 3) abused its discretion in permitting a state trooper to testify to a recorded
1
21 U.S.C. § 841(a)(1) provides that “it shall be unlawful for any person
know ingly or intentionally . . . to manufacture, distribute, or dispense, or possess
with intent to manufacture, distribute, or dispense, a controlled substance.” And
21 U.S.C. § 841(b)(1), in relevant part, provides the following penalties: “In the
case of a violation of subsection (a) of this section involving . . . 500 grams or
more of . . . cocaine . . . such person shall be sentenced to a term of imprisonment
which may not be less than 5 and not more than 40 years.” Id.
§ 841(b)(1)(B)(ii)(II). “In the case of less than 50 kilograms of
marihuana, . . . such person shall . . . be sentenced to a term of imprisonment of
not more than 5 years . . . .” Id. § 841(b)(1)(D). Further, 21 U.S.C. § 846
provides that “[a]ny person who attempts to commit any offense defined in this
subchapter shall be subject to the same penalties as those prescribed for the
offense, the commission of which was the object of the attempt or conspiracy.”
3
conversation between Guerrero and his wife that occurred in the back of a patrol
car. Guerrero further argues that 4) the statutory mandatory minimum sentence
that applied to two of his convictions was unconstitutional. Because we conclude
the district court erred in denying Guerrero’s motion to suppress, we do not
address Guerrero’s other issues. Having jurisdiction to consider this appeal under
18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, therefore, we REM AND this case to
the district court with instructions to VACATE Guerrero’s convictions.
II. STANDA RD O F REVIEW
“W hen reviewing a district court’s denial of a motion to suppress, we view
the evidence in the light most favorable to the government, accepting the district
court’s factual findings unless clearly erroneous. Fourth amendment
reasonableness is reviewed de novo.” United States v. Gregoire, 425 F.3d 872,
875 (10th Cir. 2005) (citation omitted). The Government bears the burden of
demonstrating reasonableness. See United States v. Herrera, 444 F.3d 1238, 1242
(10th Cir. 2006).
III. D ISC USSIO N
A. Relevant Facts.
Viewing the evidence 2 in the light most favorable to the government, see
id., the evidence presented at the pretrial suppression hearing established the
2
W e GRANT Guerrero’s motion to supplement the record to include the
videotape of the traffic stop.
4
following: On October 19, 2003, a state trooper, Benjamin Peech, stopped a
white minivan with a M ississippi license plate that was travelling eastbound on
Interstate 80 just east of Cheyenne, W yoming. The trooper’s radar gun indicated
that the minivan was travelling eighty-four miles per hour, in excess of the posted
seventy-five-miles-per-hour speed limit. The minivan’s occupants included
Alfredo Anguiano-Cipres (“Cipres” or “the driver”), Guerrero, 3 and Guerrero’s
wife, Edelmira Hernandez-M ancilla (“Hernandez”).
The trooper stopped the van at 8:06 a.m. He approached the driver, Cipres,
and asked for his driver’s license, the vehicle’s registration, and proof of
insurance. Because Cipres did not speak English very well, the trooper spoke to
Cipres in Spanish. Cipres produced a California driver’s license.
At this same time, Guerrero, the minivan’s owner who was sitting in the
front passenger seat, was going through a stack of papers he had retrieved from
the glove box, apparently looking for the vehicle’s registration. The trooper
offered to help Guerrero find the registration and Guerrero agreed, handing
Trooper Peech this entire stack of papers. The trooper took the stack of papers
back to his patrol car, accompanied by Cipres.
W hile sitting in his patrol car with Cipres, the trooper wrote Cipres a
warning for speeding. The trooper also eventually located the vehicle’s
3
During the suppression hearing, Guerrero is frequently referred to as Jose
Ortego M oreno.
5
registration in the stack of documents Guerrero had given him–the van was
registered in M ississippi to Guerrero. The trooper, however, was unable to locate
any indication that the minivan was insured. Trooper Peech gave Cipres the
warning and handed him back his driver’s license, but indicated to Cipres that the
trooper had to speak further with Guerrero about the vehicle’s insurance. Cipres
remained in the patrol car. Trooper Peech testified that Cipres w as not free to
leave the patrol car at that time.
Leaving Cipres in the patrol car, Trooper Peech went to the passenger side
of the minivan to verify with Guerrero that he was the van’s owner and to ask him
about the van’s insurance. This occurred at 8:16 a.m. The trooper spoke with
Guerrero in both Spanish and English after Guerrero indicated that he could speak
English pretty well. Guerrero acknowledged that he owned the van and told the
trooper that: he had been in M exico for the past three months; during that time he
had left the van with his brother; and the brother was supposed to pay the
insurance on the van. Guerrero never produced any proof of insurance. 4
Trooper Peech gave Guerrero back the stack of papers taken from the
minivan’s glove compartment, including the vehicle’s registration, and then
returned to his patrol car. There, he opened the door of the patrol car to allow
4
W yoming requires motorists to have liability coverage. See W yo. Stat.
§ 31-4-103(a). This statute, however, does not apply if a non-resident’s vehicle is
registered in another state and the vehicle is insured in accordance with that
state’s requirements. See id.
6
Cipres to exit the vehicle. Although Trooper Peech did not tell Cipres he was free
to drive away, the trooper deemed the traffic stop to be over at this point. As
Cipres got out of the patrol car and started walking tow ard the m inivan, however,
Trooper Peech “recontacted” Cipres and asked him if the trooper could ask him
some more questions. Cipres agreed. Trooper Peech then inquired about Cipres’s
travel plans and his relationship to Guerrero. This conversation occurred on the
side of the highway while the two men were standing between the van and the
patrol car. Trooper Peech then asked Cipres if the trooper could speak to
Guerrero again. Cipres agreed. Trooper Peech returned to the van’s front
passenger area to speak with Guerrero. Although the trooper testified that Cipres
was free to get back into the minivan at this time, Cipres did not do so, but
instead remained standing on the side of the highway, at the back of the van,
during Trooper Peech’s conversation with Guerrero.
According to the state trooper, Guerrero “pretty much” agreed that the
trooper could ask him some more questions. Trooper Peech first questioned
Guerrero about his travel plans, and then asked Guerrero if he had any guns or
illegal drugs in the vehicle. Guerrero answered that he did not. The trooper
asked Guerrero twice, in both Spanish and English, if the trooper could search the
van. Guerrero twice replied that the trooper could search. Trooper Peech then
went back to Cipres, who was still standing at the back of the van. He asked
Cipres if he had anything in the car, and Cipres indicated that he had a suitcase.
7
Trooper Peech asked if he could search Cipres’s suitcase, and Cipres agreed.
Trooper Peech then asked Guerrero, Cipres, and Guerrero’s w ife, Hernandez, to
stand outside the van while he searched.
The first place Trooper Peech searched was the undercarriage of the van,
where he noticed “tooling” marks— marks indicating tools had been used on the
bolts and screws— as well as other apparent alterations on and near the gas tank.
The trooper then called for a drug-sniffing dog. He also went inside the van,
where he located what appeared to be an access point to the gas tank. W hile he
was doing this, Cipres, Guerrero, and Hernandez approached the van. Trooper
Peech asked them to get back, and then asked again if he could continue
searching. Guerrero said yes.
Two additional troopers arrived, one with a drug-sniffing dog. Trooper
Peech asked Guerrero if the dog could search the van. Guerrero eventually
agreed. The dog positively alerted to the presence of drugs. The troopers then
renewed their search efforts, discovering a hidden compartment in the gas tank.
In that compartment the troopers discovered several wrapped packages of
marijuana and cocaine.
B. Legal Analysis.
“The Fourth Amendment protects the right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” United States v. Bradford, 423 F.3d 1149, 1156 (10th Cir. 2005).
8
“The touchstone of our analysis under the Fourth Amendment is always
the reasonableness in all the circumstances of the particular invasion of
a citizen’s personal security. Reasonableness, of course, depends on a
balance between the public interest and the individual’s right to
personal security free from arbitrary interference by law officers.”
United States v. Holt, 264 F.3d 1215, 1220 (10th Cir. 2001) (reh’g en banc)
(quoting Pennsylvania v. M imms, 434 U.S. 106, 108-09 (1977) (per curiam)).
There is no question that “[a] traffic stop is a ‘seizure’ within the meaning
of the Fourth Amendment, ‘even though the purpose of the stop is limited and the
resulting detention quite brief.’” Bradford, 423 F.3d at 1156 (quoting Delaw are
v. Prouse, 440 U.S. 648, 653 (1979)). Nor is there a question that the state
trooper seized Guerrero, the passenger, along with the driver, when the trooper
pulled the minivan over for speeding. See United States v. Erwin, 875 F.2d 268,
270 (10th Cir. 1989) (recognizing passenger is also seized, for Fourth Amendment
purposes, when driver of car in which he is riding is pulled over for a traffic
stop).
Because “a routine traffic stop is more analogous to an investigative
detention than a custodial arrest,” it is governed by the
principles developed for investigative detentions set forth in Terry v.
Ohio, 392 U.S. 1 . . . (1968). To determine the reasonableness of an
investigative detention, w e m ake a dual inquiry, asking first “whether
the officer’s action was justified at its inception,” and second “whether
it was reasonably related in scope to the circumstances which justified
the interference in the first place.”
Bradford, 423 F.3d at 1156 (quoting Terry, 392 U.S. at 20). In this case,
9
Guerrero does not challenge the validity of the initial traffic stop. Rather, he
argues only that the trooper unlawfully prolonged the stop beyond the reasons that
justified the stop in the first place. 5
In the course of a routine traffic stop,
a trooper may request a driver’s license, vehicle registration and
other required papers, run necessary computer checks, and then issue
any warning or citation. Once those tasks are completed, a driver
must be allowed to proceed on his way unless reasonable suspicion
exists that the driver is engaged in criminal activity or the driver
consents to additional questioning.
Gregoire, 425 F.3d at 879 (citation omitted). “[O]nce the purpose of the stop is
satisfied and the underlying reasonable suspicion dispelled, the driver’s detention
generally must end without undue delay.” United States v. Edgerton, 438 F.3d
1043, 1047 (10th Cir. 2006). In this case, the Government does not assert that the
state trooper had reasonable suspicion of any criminal activity, apart from
speeding, sufficient to prolong the stop beyond investigation of the traffic
offense, but instead argues that Guerrero consented to the additional questioning.
The district court found that was true. That finding, however, was clearly
5
During oral argument, the Government argued that Guerrero had failed to
raise this objection in his suppression motion. But that is not the case. Guerrero
clearly argued before the district court that this traffic stop did not evolve into a
consensual encounter between Guerrero and Trooper Peech because under the
circumstances a reasonable person would not have felt free to leave. And the
district court, in denying Guerrero’s suppression motion, specifically found that
“the encounter after Trooper Peech returned the driver’s license and registration
to M r. Cipres and the envelope to M r. [G uerrero] was purely consensual.” In
light of this, we are satisfied that Guerrero adequately preserved this issue for
review.
10
erroneous. See Gregoire, 425 F.3d at 879 (reviewing the district court’s finding
of whether a detained motorist consented to additional questioning or a prolonged
detention for clear error); see also United States v. Taverna, 348 F.3d 873, 879
(10th Cir. 2003).
“A consensual encounter is simply the voluntary cooperation of a private
citizen in response to non-coercive questioning by a law enforcement official.”
United States v. Patten, 183 F.3d 1190, 1194 (10th Cir. 1999) (quotation omitted).
A “seizure,” by contrast, occurs w hen an individual “has an objective reason to
believe that he is not free to terminate his conversation with the officer and
proceed on his way.” Id. “A detention for a traffic citation can turn into a
consensual encounter after the trooper has returned the driver his documentation
so long as a reasonable person under the circumstances would believe he was free
to leave or disregard the officer’s request for information.” 6 United States v.
W allace, 429 F.3d 969, 974-75 (10th Cir. 2005) (quotation omitted).
6
In light of the Supreme Court’s decision in M uehler v. M ena, 544 U.S. 93
(2005), a trooper can validly ask questions during a law ful traffic stop that are
unrelated to the stop. See United States v. Alcaraz-Arellano, 441 F.3d 1252, 1258
(10th Cir. 2006) (holding, in light of M ena, that as long as officer’s questioning
does not extend length of traffic detention, there is no Fourth Amendment issue
regarding the content of the officer’s questions); United States v. W allace, 429
F.3d 969, 974 (10th Cir. 2005) (same). In this case, however, there is no dispute
that the traffic stop had already ended before the trooper asked Guerrero whether
there were illegal drugs in the minivan. Therefore, any questions the trooper
asked after he completed the traffic stop prolonged Guerrero’s detention. For this
reason, M ena does not control the resolution of this case. Cf. M ena, 544 U.S. at
101 (noting challenged questioning in that case did not extend time of detention).
11
If an encounter between an officer and a driver ceases to be a detention
and becomes consensual, and the driver voluntarily consents to
additional questioning, no further Fourth Amendment seizure or
detention occurs. A traffic stop may become a consensual encounter,
requiring no reasonable suspicion, if the officer returns the license and
registration and asks questions without further constraining the driver
by an overbearing show of authority. A consensual encounter is the
voluntary cooperation of a private citizen in response to non-coercive
questioning by a law enforcement officer. W hether an encounter can
be deemed consensual depends on whether the police conduct would
have conveyed to a reasonable person that he or she was not free to
decline the officer’s requests or otherwise terminate the encounter. An
officer is not required to inform a suspect that she does not have to
respond to his questioning or that she is free to leave. An unlawful
detention occurs only when the driver has an objective reason to believe
he or she is not free to end the conversation with the officer and
proceed on his or her own way.
Bradford, 423 F.3d at 1158 (citations, quotations omitted). “The government
bears the burden of proving voluntary consent based on the totality of the
circumstances.” Gregoire, 425 F.3d at 879.
This court “follow[s] the bright-line rule that an encounter initiated by a
traffic stop may not be deemed consensual unless the driver’s documents have
been returned to her.” 7 Bradford, 423 F.3d at 1158 (quotation, alteration omitted;
7
During a “routine traffic stop, an officer’s retention of a defendant’s
documents is significant because it indicates that the defendant, as a general rule,
did not reasonably feel free to terminate the encounter and, therefore, the
government cannot rely on the defendant’s consent to justify further detention,
questioning, or a search.” U nited States v. Burch, 153 F.3d 1140, 1143 (10th Cir.
1998). Therefore, although “determining whether an officer and driver are
engaged in a consensual encounter typically requires the court to focus on the
totality of the circumstances in a particular case, this circuit has consistently
applied at least one bright-line rule: an officer must return a driver’s
documentation before the detention can end.” United States v. M endez, 118 F.3d
(continued...)
12
emphasis added); see also W allace, 429 F.3d at 974-75. “The return of a driver’s
documentation is not, however, always sufficient to demonstrate that an encounter
has become consensual.” Bradford, 423 F.3d at 1158. “The issue [then] is
whether law enforcement conduct as perceived by a reasonable person would
comm unicate that the person was not free to decline law enforcement requests or
end the encounter.” Gregoire, 425 F.3d at 879; see also Bradford, 423 F.3d at
1158.
In this case, Trooper Peech testified, and the district court found, that the
traffic stop ended after the trooper returned Cipres’s driver’s license, gave him
the warning and opened the patrol car door so Cipres could get out of the patrol
car and return to the minivan. Under these circumstances, arguably a reasonable
person in Cipres’s position might have believed he was free to leave. See
Bradford, 423 F.3d at 1159. But there is no evidence that a reasonable person in
Guerrero’s position would have believed he was free to leave. 8 W hile the trooper
7
(...continued)
1426, 1430 (10th Cir. 1997).
8
In our cases addressing when a traffic detention concludes and whether or
not a traffic stop turns into a consensual encounter, we usually ask whether the
driver consented to extending the detention in order to answer the officer’s
questions. See, e.g., W allace, 429 F.3d at 974-75 (addressing situation where,
after traffic stop ended, driver consented to answ ering officer’s questions and to
search of vehicle); Gregoire, 425 F.3d at 874-75, 879 (holding driver consented to
additional questioning after officer issued warning); Bradford, 423 F.3d at
1158-59 (holding driver voluntarily consented to further questions after trooper
returned driver’s documentation); United States v. Rosborough, 366 F.3d 1145,
(continued...)
13
had already returned C ipres’s driver’s license and had completed w riting Cipres a
warning, there is no evidence that Guerrero knew that. Those events had all
occurred in the patrol car, out of Guerrero’s presence; Guerrero had remained in
the minivan throughout the traffic stop. Certainly Guerrero could see that
Trooper Peech eventually allowed Cipres to get out of the patrol car, after the
trooper had spoken with Guerrero about the van’s insurance. But Cipres did not
return to the van; instead, it would have appeared to a reasonable person in
Guerrero’s position that the trooper detained Cipres further, this time at the back
8
(...continued)
1148-49 (10th Cir. 2004) (holding driver voluntarily consented to search of his
vehicle after officer returned driver’s license, registration and issued a w arning);
United States v. Cline, 349 F.3d 1276, 1288 (10th Cir. 2003) (holding driver
voluntarily consented to search after officer returned driver’s license and told
driver he was free to go); United States v. M anjarraz, 348 F.3d 881, 884, 885-86
(10th Cir. 2003) (holding officer’s encounter with driver became consensual after
officer returned driver’s license, issued warning and told driver they were
“through”); Taverna, 348 F.3d at 876, 878-79 (holding traffic stop became
consensual encounter after officer returned driver’s documentation, issued
warning, and allowed driver to get out of patrol car); United States v.
Bustillos-M unoz, 235 F.3d 505, 514-15 (10th Cir. 2000) (holding traffic stop
became consensual encounter after officer returned license and vehicle
registration to driver and informed driver he was free to leave); United States v.
W est, 219 F.3d 1171, 1176-77 (10th Cir. 2000) (holding traffic stop between
officer and driver became consensual encounter after officer returned driver’s
documentation and issued warning); United States v. Ozbirn, 189 F.3d 1194, 1200
(10th Cir. 1999) (holding, e.g., driver consented to answer additional questions
after officer completed traffic stop by issuing warning). In those cases, the driver
is of course aware that the officer has already returned his license and issued a
warning or ticket. Those cases, however, are not dispositive of the issue this case
presents, where we are concerned with the passenger/vehicle owner G uerrero’s
consent to answ er additional questions, after the trooper, unbeknownst to
Guerrero, has concluded the traffic stop by returning the driver’s license and
giving the driver a warning.
14
of the van, asking him further questions. Although Cipres consented to this
further questioning, there is no evidence that Guerrero was aware of that. And
when Trooper Peech then approached G uerrero also to ask him further questions,
Cipres remained standing at the back of the van. Although the trooper testified
that he had not told Cipres to remain outside the minivan and, as far as the
trooper w as concerned, Cipres could have returned to the van at any time, there is
again no evidence that Guerrero was aware of that, either.
W hat a reasonable person in Guerrero’s position would have known is that,
as the minivan’s owner, he had been unable to provide Trooper Peech with any
proof of insurance for the minivan and he had given the trooper only what can be
described as a fairly lame story about why Guerrero could not produce any proof
of insurance. Despite the fact that the trooper had previously returned the van’s
registration to Guerrero, there is no evidence from which Guerrero could have
believed that the trooper was satisfied with Guerrero’s insurance story. So, as far
as Guerrero knew, the traffic stop had not yet ended. M ore to the point, a
reasonable person in Guerrero’s position would not have felt free at that time to
decline to answer the trooper’s questions and instead leave. Yet, because Trooper
Peech had concluded the traffic stop, unbeknownst to Guerrero, the trooper could
no longer lawfully detain Guerrero. Guerrero’s decision to answer Trooper
Peech’s additional questions, therefore, cannot be considered consent to prolong
the traffic stop; rather, it was the product of Guerrero’s unlawful detention.
15
“[A]s a general rule any evidence obtained as a result of [an unlaw ful]
detention must be excluded as fruit of the poisonous tree.” United States v.
Santana-Garcia, 264 F.3d 1188, 1191 (10th Cir. 2001); see also United States v.
Elliott, 107 F.3d 810, 813 (10th Cir. 1997) (holding that after a traffic stop ends,
and absent reasonable suspicion or voluntary consent to additional questioning,
“any evidence derived from that questioning (or a resulting search) is
impermissibly tainted in Fourth Amendment terms”) (quotation omitted); United
States v. M aestas, 2 F.3d 1485, 1493 (10th Cir. 1993) (noting that, despite
defendant’s consent to search, “the evidence obtained from the resulting search
might be excludable if the consent was obtained during an illegal detention”).
The G overnment does not argue that there is any reason in this particular case
why that general rule should not apply. See generally United States v. W alker,
933 F.2d 812, 817-18 (10th Cir. 1991) (noting an unlawfully detained defendant
could still voluntarily consent to search, if that consent was purged of any taint
from unlawful detention; noting, however, that it is the Government who bears the
burden of proving voluntariness of consent). The district court, therefore, erred
in denying Guerrero’s motion to suppress. 9
IV . C O N C LU SION
9
The G overnment does not assert any alternate grounds on which this court
could affirm the district court’s decision to deny Guerrero’s suppression motion.
See Edgerton, 438 F.3d at 1051 (declining to address whether there was
reasonable suspicion that would have justified extending a detention where
Government did not make that alternative argument).
16
For the foregoing reasons, we REM AND this case with directions to the
district court to V ACATE Guerrero’s three drug convictions. 10
10
The G overnment, of course, is free to pursue its prosecution of G uerrero
without the suppressed evidence. But based on the record before this court, it
does not appear likely that the Government would choose to do so. For that
reason, Guerrero’s remaining arguments appear to be moot and so we decline to
address them at this time.
17
05-8031, United States v. Guerrero-Espinoza.
T YM K O VIC H, Circuit Judge, dissenting.
W e have consistently applied a “bright-line” rule to requests for consent to
search during traffic encounters. Consent is properly obtained under our cases
only after a traffic stop has ended and the driver is free to leave. See, e.g., United
States v. Holt, 264 F.3d 1215 (10th Cir. 2001). Today’s holding carves out an
exception to that rule for passengers, and instead looks to the expectations of the
“objective passenger.” W hile I have some reservations about the merits of the
bright-line rule, see United States v. Wilson, 96 F.App’x. 640 (10th Cir. 2004)
(Tymkovich, J., concurring), it is the law of the Circuit and is not at issue today. 1
In my view, our precedent requires us to apply the bright-line rule to the
facts of this case. The traffic stop ended when the officer returned M r. Cipres’s
driver’s license to him with a warning and permitted him to return to his car.
Neither M r. Cipres nor M r. Guerrero were detained at that point. And nothing in
the record suggests their subsequent consent to additional questioning and the
search was the product of coercion or intimidation. Accordingly, (1) since the
traffic stop had ended, and (2) consent had been freely given, then (3) the search
of the car w as lawful.
1
M y reservations with Holt are three-fold: (1) it bars even de minimis non-
coercive requests for consent; (2) it creates an arbitrary category of questioning
(requests for consent) that are off limits, but allows questioning pertaining to
travel plans and concealed weapons; (3) it conflicts with the Supreme Court’s
totality of the circumstances approach. See Muehler v. M ena, 544 U.S. 93 (2005);
Ohio v. Robinette, 519 U.S. 33 (1996).
Our precedent is well settled that a “traffic stop may become a consensual
encounter, requiring no reasonable suspicion, if the officer returns the license and
registration.” United States v. Bradford, 423 F.3d 1149, 1158 (10th Cir. 2005).
The “voluntary cooperation of a private citizen in response to non-coercive
questioning” is a mainstay of routine encounters between police and the public,
and should be encouraged. Id. After a traffic stop has ended, when a “driver
voluntarily consents to additional questioning, no further Fourth Amendment
seizure or detention occurs.” Id. at 1159.
During the traffic stop itself, we have previously limited police questioning
to routine inquiries into car ownership, travel plans, and possession of loaded
weapons. Id. at 1156; Holt, 264 F.3d at 1221–22. In a recent application of these
principles, however, we recognized that questioning “regardless of topic” that
does “not prolong the detention [during] the license check” is no longer off limits.
United States v. Alcaraz-Arellano, 441 F.3d 1252, 1259 (10th Cir. 2006)
(applying M uehler v. M ena, 544 U.S. 93 (2005)); United States v. Wallace, 429
F.3d 969, 974 (10th Cir. 2005). Thus, routine questioning that has a de minimis
affect on the duration of the traffic stop is now permissible.
The majority opinion conflicts with these principles. First, our cases
applying the bright-line approach naturally look to the driver’s Fourth
Amendment interests. The driver ordinarily controls the vehicle— when the driver
is free to go, the passenger is free to go. See United States v. Erwin, 875 F.2d
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268, 270 (10th Cir. 1989) (“Drivers and passengers have similar interests in . . .
[the] unreasonable seizure [context].”). The majority opinion unnecessarily
introduces a new element to an officer’s assessment of the encounter— does the
passenger know that the traffic stop has ended? To the extent the passenger
benefits from our bright-line rule preventing lawful requests for consent during
the driver’s detention, similarly the officer should benefit from the rule once the
traffic stop has ended. If the driver agrees to additional questioning at the
conclusion of a traffic stop, the encounter becomes consensual as to both the
driver and passenger. It make little sense to add to the officer’s calculus a new
“objective passenger” consideration.
In this case, after the traffic stop ended, M r. Cipres consented (1) to
additional questioning, and (2) to the officer speaking with M r. Guerrero. The
officer was detaining neither M r. Cipres nor M r. Guerrero at that time and the
subsequent search was consensual. 2
Second, the majority opinion’s new rule conflicts with our recent decision
in Alcaraz-Arellano. If the traffic encounter has not ended so far as the passenger
is concerned, as the majority maintains, any questioning that does “not prolong
2
It makes no difference that M r. Guerrero owned the car. The detention
ended when M r. Cipres w as released; M r. Cipres and M r. Guerrero consented to
further questioning at that time despite the fact that both w ere free to leave. In
addition, nothing suggests the officer was detaining M r. Guerrero for further
questioning regarding his proof of insurance after the car’s registration had been
returned.
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the detention” is permissible “regardless of topic.” 441 F.3d at 1259 (applying
M uehler v. M ena, 544 U.S. at 1471–72). Accordingly, even if M r. Guerrero was
unaware of the return of M r. Cipres’s driver’s license, he may still be subject to
consensual questioning. The additional questioning did not prolong the
detention— in any objective sense— because both driver and passenger were free
to go. The majority agrees that the traffic stop ended before M r. Guerrero was
questioned, but then concludes that the officer’s questioning “prolonged the
detention.” (O p. at 11 n.6). This conclusion cannot be squared with applicable
Tenth Circuit and Supreme Court precedent. 3
Finally, our cases should promote cooperation betw een police and citizens.
Absent a show of force, there is no good reason to add another layer of
complexity to our Fourth Amendment traffic stop jurisprudence, especially in
cases like this one where the district court found consent to additional questioning
and the search by both the driver and the passenger. In any event, I fail to see
why the Fourth Amendment would compel a per se rule barring consent obtained
during the course of a routine traffic encounter.
Applying our error standards, several conclusions follow: (1) the traffic
encounter ended for all parties w hen the officer returned M r. Cipres’s driver’s
license with a warning; (2) M r. Cipres’s consent to additional questioning was
3
Under Alcaraz-Arellano, the case would be even clearer as to M r.
Guerrero if consent had been sought while the officer was completing the routine
paperw ork associated with the traffic stop.
4
voluntary; (3) M r. Guerrero was not detained under our bright-line rule and his
consent was voluntary, and (4) even if M r. Guerrero was detained according to an
objective passenger standard, the additional questioning did not prolong the
encounter and was permissible.
I would therefore uphold the search under the totality of the circumstances.
5