United States v. Cardenas-Alatorre

                                                                     F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                    PU BL ISH
                                                                      May 8, 2007
                   UNITED STATES COURT 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. 06-2101
 JESUS CARDEN AS-ALA TOR RE,

       Defendant-Appellant.



                 Appeal from the United States District Court
                       for the District of New M exico
                          (D .C . No. CR-05-1158 JC)


Roger A. Finzel, Assistant Federal Public Defender, Albuquerque, New M exico,
for Defendant-Appellant.

David N. W illiams, Assistant United States Attorney (David C. Iglesias, United
States Attorney, with him on the brief), Albuquerque, New M exico, for Plaintiff-
Appellee.


Before H E N RY, A ND ER SO N, and GORSUCH, Circuit Judges.


G O R SU CH, Circuit Judge.


      Jesus Cardenas-Alatorre seeks reversal of his conviction for possession

with intent to distribute a substantial quantity of methamphetamine, contending

primarily that the statute under which he was stopped while driving on a New
M exico highway is unconstitutionally vague and, therefore, the drugs discovered

pursuant to that stop should have been suppressed. The state statute in question

makes it a misdemeanor for a car’s license plate to be obscured by “foreign

material,” at least in any way that renders the plate less than “clearly legible.”

Reluctant to venture into constitutional thickets unnecessarily, we hold that,

whatever the constitutional status of the statute in question, the arresting officer

acted in an objectively reasonable manner and, under Supreme Court precedent,

this suffices to permit the fruits of the search to be used against M r. Cardenas-

Alatorre. It is on this basis that we affirm his conviction.

                                           I

      Around noon on M ay 11, 2005, Deputy Peter Roth of the Bernalillo County

Sheriff’s Department stopped M r. Cardenas-Alatorre on Interstate 40 just outside

of Albuquerque, New M exico. Appellant’s Br. 3; Tr. at 9-11. 1 Deputy Roth

testified that he pulled over M r. Cardenas-Alatorre because a license plate frame,

one of those supplied by auto dealers anxious for free advertising, obscured a

portion of the license plate on his car – specifically, the entirety of the name of

the state of registration, Arizona. Tr. at 10. This, Deputy Roth believed,

constituted a violation of a New M exico statute requiring a license plate to be




      1
        Citations to the transcript refer to the hearing on defendant’s motions to
suppress evidence and dismiss the indictment held in the United States District
Court of New M exico on September 22, 2005.

                                          -2-
attached to the rear of every vehicle that is “clearly visible[] and . . . free from

foreign material and in a condition to be clearly legible.” N.M . Stat. Ann. § 66-3-

18(A) (1998 N.M . Laws, Ch. 48, § 4 (eff. July 1, 1998)) (in effect on M ay 11,

2005). 2 The license plate frame did not, however, obscure other pertinent

information, including the license plate number, the registration stickers, the

image of the distinctive A rizona saguaro cactus, or the top half of the state’s

“Grand Canyon State” motto. Tr. at 37-40; Def.’s Ex. A. During questioning by

the district court judge, Deputy Roth admitted that, based on the information that

was visible, the license plate “appeared” to be issued by Arizona, though he had

qualms it might be “fictitious” because he could not see the word “Arizona.” Tr.

at 40.

         During the ensuing conversation with M r. Cardenas-A latorre, Deputy Roth

expressed his concern about the obscuring license plate frame and then asked for,

and obtained, M r. Cardenas-Alatorre’s vehicle registration, insurance information,

and driver’s license. Tr. at 12-13. 3 In doing so, Deputy Roth detected that “there

was an extreme odor of air freshener which is, in my past experience, a masking

agent” for drugs; he also thought M r. Cardenas-A latorre appeared “extremely



         2
         The statute w as subsequently amended; however, no portion of the statute
relevant to this case was altered. See 2005 N.M . Laws, Ch. 16, § 1 (eff. June 17,
2005).
         3
        Deputy Roth spoke with the defendant in Spanish as the defendant
appeared not to understand or speak English well. Tr. at 12.

                                          -3-
nervous.” Id. at 14-15. Accordingly, Deputy Roth ordered M r. Cardenas-

Alatorre to step out of the vehicle. Id. at 18. After conducting a computer

investigation in his patrol car, Deputy Roth confirmed that the car driven by M r.

Cardenas-Alatorre was not stolen and no outstanding warrants existed for either

M r. C ardenas-A latorre or his passenger, Felis Sosa-Reyes. Id. at 21. Deputy

Roth then turned on the video camera affixed to his patrol car, returned M r.

Cardenas-Alatorre’s documents, and issued M r. Cardenas-Alatorre a citation for

failure to display the license plate properly. Id. at 21-22. 4

      As the traffic stop wound down, Deputy Roth asked M r. Cardenas-A latorre

if he could speak with him further, to which M r. Cardenas-Alatorre responded,

“About?” Id. at 23, 88-89. Deputy Roth replied by asking whether M r. Cardenas-

Alatorre had any illegal items inside the car, including drugs, to w hich M r.

Cardenas-A latorre answered in the negative. Id. at 24-26, 58-59. Deputy Roth

next sought permission to search the vehicle. M r. Cardenas-A latorre variously

shrugged and nodded his head affirmatively in response. Id. at 25-26, 59-60; see

generally DVD. Deputy Roth asked the question again and M r. Cardenas-

Alatorre then verbally responded definitively, yes. Id. at 60-61. 5 At about this


      4
        Entered as part of the record was a digital video disc which recorded both
the audio and visual content of much of the M ay 11, 2005 stop (the “DVD”).
      5
         Deputy Roth subsequently clarified his request to search the car by
specifically asking whether he could search the entire car, including every
compartment within the car. M r. Cardenas-Alatorre again responded in the
                                                                      (continued...)

                                          -4-
point, New M exico State Police Sergeant Rudy M ora, who had been patrolling the

area independently, saw Deputy Roth’s car and stopped at the scene. Id. at 27-28,

99. Sergeant M ora had with him a trained narcotics detection dog. Id. at 27, 99-

100; DVD. As Sergeant M ora walked the dog around the perimeter of the

vehicle, the dog alerted to the area near the glove box. Tr. at 100-03. Deputy

Roth then searched that area and found two wrapped packages containing

methamphetamine. Id. at 31-33.

      M r. Cardenas-Alatorre moved the district court to suppress the

methamphetamine seized during the traffic stop and to dismiss the indictment. In

support of these motions, M r. Cardenas-Alatorre argued (i) that the traffic stop

was an unlawful seizure because it was based upon an unconstitutionally vague

statute; (ii) even assuming the statute were constitutional, Deputy Roth did not

have reasonable suspicion to stop M r. Cardenas-Alatorre because he did not

violate the statute; and (iii) M r. Cardenas-A latorre did not voluntarily consent to

the search of his car. The district court rejected these arguments and M r.

Cardenas-Alatorre thereafter pled guilty subject to his right to appeal the district

court’s denial of his motions. Appellee’s Br. 6. 6



      5
       (...continued)
affirmative. See DVD at 4:26-4:51.
      6
         On appeal, M r. Cardenas-Alatorre pursues only his motion to suppress on
the three bases aforementioned; he does not seek reversal of the district court’s
denial of his motion to dismiss the indictment.

                                         -5-
                                           II

      Before us, M r. Cardenas-Alatorre argues primarily that the fruits of the

officers’ search of his car should be suppressed because the New M exico statute

at issue, at least as applied, 7 is unconstitutional. M r. Cardenas-A latorre submits

that the statute is so opaque that police officers and prosecutors can use it as

something of a blank slate on which to write their own private conceptions of

what the law ought to be, thereby effecting traffic stops capriciously and in

violation of the Constitution’s prohibition against statutes of “standardless sweep”

that fail to establish “minimal guidelines to govern law enforcement.” Kolender

v. Lawson, 461 U.S. 352, 358 (1983).

      The curative aim of the void for vagueness doctrine is vital and twofold,

seeking to ensure that penal statutes “define the criminal offense with sufficient

definiteness” in order both to apprise the citizenry of what conduct is prohibited

and to prevent police from arbitrarily enforcing the laws and thereby effectuating

a form of state-sanctioned discrimination. Kolender, 461 U.S. at 357. The

arbitrary enforcement problem is especially troublesome because it carries w ith it



      7
         “Vagueness challenges to statutes not threatening First Amendment
interests are examined in light of the facts of the case at hand; the statute is
judged on an as-applied basis.” M aynard v. Cartwright, 486 U.S. 356, 361
(1988). Animating this rule is the courts’ aspiration to avoid invalidating penal
statutes on vagueness grounds “simply because difficulty is found in determining
whether certain marginal offenses fall within their language.” See generally
United States v. Nat’l Dairy Products Corp., 372 U.S. 29, 32-36 (1963).


                                          -6-
the potential to emasculate the rights of citizens – conditioning their ability to go

about their daily business on “the whim of any police officer.” See Shuttlesworth

v. City of Birmingham, 382 U.S. 87, 90 (1965). 8 If the N ew M exico statute was,

as M r. Cardenas-Alatorre alleges, unconstitutionally vague as applied in this case,

it follows that the traffic stop and the search of the car culminating in the

methamphetamine possession would have occurred in violation of his Fourth

Amendment right against unreasonable searches and seizures. The traditional

remedy for such violations, of course, is the exclusion of the evidence obtained as

a result of the unlawful search. Illinois v. Krull, 480 U.S. 340, 347 (1987); see

also Hudson v. M ichigan, – U.S. –, 126 S.Ct. 2159, 2163-64 (2006); M app v.

Ohio, 367 U.S. 643 (1961).

      But this remedy is not exceptionless. The Supreme Court has repeatedly

instructed that the exclusionary rule ought not to be deployed when officers act in

good faith – that is, in “objectively reasonable reliance” upon a statute – even

though the statute ultimately may be found unconstitutional. Krull, 480 U.S. at

355; see also United States v. Leon, 468 U.S. 897 (1984). The rationale

animating the good faith exception is, we are told, in harmony with the



      8
          Not incidentally, vague laws also pose a danger to separation of pow ers:
“‘if the legislature could set a net large enough to catch all possible offenders,
and leave it to the courts to step inside and say who could be rightfully detained,
and who should be set at large[,t]his would, to some extent, substitute the judicial
for the legislative department of government.’” Kolender, 461 U.S. at 358 n.7
(quoting United States v. Reese, 92 U.S. 214, 221 (1875)).

                                         -7-
underlying purpose of the exclusionary rule, for if “the officer is acting as a

reasonable officer would and should act in similar circumstances[, e]xcluding the

evidence can in no w ay affect his future conduct unless it is to make him less

willing to do his duty.” Leon, 468 U.S. at 920 (internal quotation omitted).

      W e find this exception applicable and dispositive here. Even assuming

(without deciding) that M r. Cardenas-Alatorre is correct that the New M exico

statute is unconstitutional as applied to him, we are unable to conclude that

Deputy Roth acted in an objectively unreasonable manner. 9 Although the

statute’s opening directive that license plates must be located “in a place and

position so as to be clearly visible,” might not, when read in isolation, be the

most specific statutory command know n to bar and bench, the follow ing clause

adds that the plate must “be maintained free from foreign material and in a

condition to be clearly legible.” This latter language arguably complements what

precedes, narrowing the contours of the conduct prohibited by the statute. 10


      9
          Our path in this case is consistent with our general wish to avoid, when
possible, deciding constitutional questions and thereby overturn legislative
enactments and etch in stone rules of law beyond the reach of most democratic
process. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 345 (1936)
(Brandeis, J., concurring) (“‘It must be evident to any one that the power to
declare a legislative enactment void is one which the judge, conscious of the
fallibility of the human judgment, will shrink from exercising in any case w here
he can conscientiously and with due regard to duty and official oath decline the
responsibility.’” (quoting 1 Cooley, Constitutional Limitations 332 (8th Ed.))).
      10
          See NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941) (L. Hand,
J.) (“W ords are not pebbles in alien juxtaposition; they have only a communal
                                                                       (continued...)

                                         -8-
Under this view, the law, taken as a whole, sets out to proscribe “foreign

material” (including the auto dealer’s advertising frame) to the extent that it

prevents all of the plate from being clearly legible – that is, readable. 11

      This understanding of the statute – allowing officers to effect stops only

when foreign material prevents them from reading the information contained on a

license plate – would seem to channel and constrain the discretion of law

enforcement at least to a sufficient degree that we would be unable to say that the

law lacks “minimal guidelines.” Kolender, 461 U.S. at 358-59. This

interpretation of the statute also appears to be consistent with how the current

leading New M exico case reads the law, 12 how other jurisdictions have interpreted




      10
         (...continued)
existence; and not only does the meaning of each interpenetrate the other, but all
in their aggregate take their purport from the setting in which they are used.”).
      11
         See Oxford English Dictionary (2d ed. 1989), available at Oxford
English Dictionary, http://dictionary.oed.com (last visited Feb. 15, 2007)
(“legible” is defined as “[t]hat can be read. . . [a]ccessible to readers . . .
readable”).
      12
          In State v. Hill, 34 P.3d 139, 146-47 (N.M . Ct. App. 2001), the
defendant, whose trailer hitch obscured registration stickers on his license plate,
argued that in order to violate the statute “the plate itself must be obscured, not
merely the registration sticker.” Id. at 147. The New M exico Court of Appeals
rejected that argument and upheld the conviction because it determined that
“registration plate” within the meaning of the statute “is a broad term” and thus
the “legibility and visibility of the registration plate would include legibility and
visibility of any renewal sticker.” Id.

                                          -9-
similar state statutes, 13 and how Deputy Roth interpreted the law here, stopping

M r. Cardenas-Alatorre precisely because “foreign material” prevented him from

being able to read the word “Arizona.” It is worth pausing to underscore,

however, that all of this is to say merely that the New M exico statute is

susceptible to an interpretation that gives it a sufficiently clear and definitive

meaning such that we cannot say any reasonable officer would have been on

notice that the law fell beyond the constitutional pale; nothing in our analysis on

this score is meant to prejudge whether a vagueness challenge to the New M exico

law shouldn’t or wouldn’t ultimately succeed. 14


      13
          See State v. Hayes, 660 P.2d 1387, 1389-90 (K an. Ct. App. 1983) (in
construing a Kansas statute nearly identical to that at issue here, the court held
that “all of the tag must be legible, including the state name, which may be the
most important information on the tag,” even though the state m otto was visible
and the “statute does not specifically state that the state name must be visible.”
(emphasis in original)). W e note that Hayes has been cited with approval by this
Court on two separate occasions. See United States v. Edgerton, 438 F.3d 1043,
1048 (10th Cir. 2006); U nited States v. Ledesma, 447 F.3d 1307, 1313 (10th Cir.
2006). See also People v. White, 93 Cal. App. 4th 1022, 1025-26 (2001) (noting
“that the Legislature meant a license plate must not be obstructed in any manner
and must be entirely readable” where the statute required that license plates be
“mounted in a position to be clearly visible, and shall be maintained in a
condition so as to be clearly legible” (emphasis added and internal quotation
omitted)). W e further note that the existence of statutes nearly identical to the
New M exico statute undercuts M r. Cardenas-A latorre’s argument that “other state
statutes” “state precisely what on the plate must be ‘clearly visible.’” A ppellant’s
Br. 15.
      14
         The cases M r. Cardenas-Alatorre relies upon all involve statutes or
regulations much broader and less specific in nature than the New M exico law
before us. See Smith v. Goguen, 415 U.S. 566, 568-69, 573-74 (1974) (the statute
criminalized “treat[ing] contemptuously the flag of the U nited States”; the Court
                                                                      (continued...)

                                        - 10 -
      Our conclusion is confirmed, indeed compelled, by the Supreme Court’s

application of the good faith exception to a parallel vagueness challenge in

M ichigan v. DeFillippo, 443 U.S. 31 (1979). There, the defendant argued that a

Detroit ordinance which made it a misdemeanor to refuse to provide identification

to police upon request was unconstitutionally vague; accordingly, he submitted,

the fruits of the search conducted incident to his arrest for violating the ordinance

should have been suppressed. Id. at 34. The Court framed the issue presented in

DeFillippo much as M r. Cardenas-Alatorre has framed the issue before us –

asking whether the officer acted in an objectively reasonable fashion when

enforcing the statute in question or whether he “should have known the ordinance

was invalid and would be judicially declared unconstitutional.” Id. at 37.

Assuming the law before it was impermissibly vague, the Court found the good



      14
        (...continued)
observed that treating something “contemptuously” is an inherently subjective
determination and does not place a defendant on notice of what conduct is
prohibited); cf. Krull, 480 U.S. at 343, 359-60 (the statute provided for
administrative warrantless searches of auto dealers’ “records” by state officials
“at any reasonable time during the night or day”; the Supreme Court held, even
assuming that the statute unconstitutionally vested too much discretion in such
officials, “the additional restrictions on discretion that might have been necessary
are not so obvious that an objectively reasonable police officer would have
realized the statute was unconstitutional without them” (quotations omitted));
M arshall v. Barlow’s, Inc., 436 U.S. 307, 323-24 (1978) (holding a regulation
authorizing administrative w arrantless searches by government officials –
permitting inspection of the entirety of commercial w orkplaces at any time in
order to ferret out safety violations – unconstitutional because it “devolve[d]
almost unbridled discretion upon executive and administrative officers . . . as to
when to search and whom to search”).

                                        - 11 -
faith exception applicable and, in doing so, added critical specification to the

nature and application of the good faith exception’s “objectively reasonable

officer test” in vagueness challenges to substantive criminal law s, holding that

      [p]olice are charged to enforce laws until and unless they are
      declared unconstitutional. The enactment of a law forecloses
      speculation by enforcement officers concerning its constitutionality –
      with the possible exception of a law so grossly and flagrantly
      unconstitutional that any person of reasonable prudence would be
      bound to see its flaws. Society would be ill-served if its police
      officers took it upon themselves to determine which laws are and
      which are not constitutionally entitled to enforcement.

Id. at 38. Reasonable officers, we are unsurprisingly told, enforce the legislative

enactments they are given and do not arrogate to themselves the right to second

guess the people’s representatives, except in the most extreme of cases; the

Supreme Court’s formulation on this score seeks to balance our respect for the

primacy of the electoral process in a self-governing nation with a recognition of

the free will and the concomitant responsibility each individual has for his or her

actions. 15 And, as in DeFillippo, the good faith exception firmly disposes of the



      15
          The tension created by an executive officer’s dual obligation to follow
“superior orders,” but yet to remain mindful of when those orders run contrary to
fundamental social norms has been widely discussed in the military context. See
generally, Gary D. Solix, Obedience of Orders and the Law of War: Judicial
Application in Am erican Forum s, 15 Am. U. Int’l L. Rev. 481 (1999) (discussing
the Nuremberg “superior orders” defense; its tension with the core value of
personal responsibility; and the application of the defense in domestic and
international courts). The legitimacy of an officer’s rejection of a directive is
further complicated where, as here, the “order” emanates from a law created
through a democratic process – for the legislation represents an issue that “has
                                                                       (continued...)

                                        - 12 -
claim before us for we cannot remotely say, as we must, that M r. Cardenas-

Alatorre has established the law in question to be “so grossly and flagrantly

unconstitutional that any person of reasonable prudence would be bound to see its

flaws.” Id.; see also U nited States v. Vanness, 342 F.3d 1093, 1098 (10th Cir.

2003) (to same effect); W ayne R. LaFave, Search and Seizure § 1.3(h), at 96-97

(3d ed. 1996) (describing DeFillippo as reaching “an eminently sound result”).

                                          III

      Alternatively, and in tension with his argument that the New M exico statute

is vague, M r. Cardenas-A latorre contends that the purpose of the law is merely

and specifically to ensure that cars driven on New M exico highways are properly

registered; that the statute is narrowly tailored to accomplish this purpose by

requiring visibility only of information necessary to determine the state of

issuance, the license plate number, and registration status; and that all this

information was clearly visible on M r. Cardenas-A latorre’s plate. Appellant’s Br.




      15
        (...continued)
already been decided by the people” through their freely elected representatives.
Brent D . W ride, Political Protest and the Illinois D efense of Necessity, 54 U. Chi.
L. Rev. 1070, 1083-85 (1987) (quotation omitted). Only in the rarest of
instances, as reflected in the standard set forth in DeFillippo, is an officer
expected to question the will of the majority embodied in a duly, and
democratically, enacted law ; like courts before us, we decline to speculate as to
the class of circumstances necessitating the exercise of such judgment. Cf.
United States v. M oylan, 417 F.2d 1002, 1009 (4th Cir. 1969) (“W e are not called
upon in this case to establish guidelines for determining in what extreme
circumstances, if any, governmental acts may be resisted.”).

                                        - 13 -
34-38. Even without the w ord “A rizona” visible, M r. Cardenas-Alatorre argues,

Deputy Roth “admitted” that the plate was an Arizona plate by virtue of other

markings on it and could see that the registration tags were current. Id. All this,

M r. Cardenas-A latorre submits, compels us to find that he had effectively

complied with the New M exico statute and, accordingly, his traffic stop was

objectively unreasonable under the Fourth Amendment.

      As it happens, however, instead of “admitting” that he knew the license

plate to be a valid Arizona plate, Deputy Roth testified that the plate appeared to

be valid, adding that, because the word “Arizona” was covered, he remained

concerned, based on past experience, that the plate may have been fraudulent.

See supra p. 3. We must also disagree with M r. Cardenas-A latorre’s (current)

pinched reading of the statute as seeking only to ensure that officers can ascertain

whether a car’s registration tags are current. As we have already indicated above,

the statute has a broader sweep, making it unlawful, at the minimum, to render

any writing on a license plate illegible (that is, unreadable) by virtue of the

presence of “foreign material”; indeed, it is precisely because of the breadth of

the statute that we emphasize the limits of our decision in Part II and the fact that

the constitutionality of the law remains open to challenge. 16



      16
          Along these lines, we also find unpersuasive M r. Cardenas-A latorre’s
rather singular interpretation of State v. Hill, 34 P.3d 139 (N .M . Ct. A pp. 2001).
M r. Cardenas-Alatorre reads Hill as holding that the statute can be violated only
                                                                         (continued...)

                                        - 14 -
                                          IV

      Finally, M r. Cardenas-A latorre submits that, even if the initial stop itself

was valid, the scope and duration of his detention were excessive because he did

not voluntarily consent to Deputy Roth’s continued questioning at the conclusion

of the traffic citation process. Appellant’s Br. 39.

      In assessing M r. Cardenas-Alatorre’s claim, we note that, under our

precedents, if, at the conclusion of a traffic stop a driver voluntarily consents to

further questioning, no seizure takes place and “the Fourth Amendment’s

strictures are not implicated.” United States v. Elliott, 107 F.3d 810, 813 (10th

Cir. 1997) (internal quotation omitted). But to decide whether consent is

voluntarily given or coercively extracted, we ask “whether a reasonable person

would believe he or she was free to leave or disregard the officer’s request” under

the totality of the circumstances. Ledesma, 447 F.3d at 1314 (quotation omitted);

see also United States v. Guerrero, 472 F.3d 784, 789 (10th Cir. 2007) (“[A]

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

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

tone of voice” may provide an objectively reasonable basis for a driver to believe



      16
         (...continued)
if an officer cannot verify whether registration stickers on the plate are for the
current year. But, though that was the specific problem at issue in Hill, the court
there made amply clear its view that “registration plate” is “a broad term” and
that the statute’s legibility requirement “include[s],” but isn’t limited to, the
readability of registration stickers on the plate. See supra note 12.

                                         - 15 -
that he or she is not free to leave. (quotation omitted)). By nature, this is a fact-

laden inquiry, depending heavily on “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.” Guerrero, 472 F.3d at 789

(quotation omitted). And we defer significantly to a district court’s factual

findings, reversing them only in the presence of clear error – that is, “a finding

must be more than possibly or even probably wrong; the error must be pellucid to

any objective observer.” Watson v. United States, __ F.3d __, 2007 W L 1300693,

at *5 (10th Cir. M ay 4, 2007).

      M r. Cardenas-A latorre first argues that his response to Deputy Roth’s

request to question him – “About?” – by its plain terms did not amount to consent

to further questioning. Reply Br. 14-15. W hile M r. Cardenas-A latorre’s

contention has a certain appeal, the district court construed the remark and

surrounding events somewhat differently, interpreting M r. Cardenas-Alatorre as

having consented to continue his discussion with Deputy Roth though also as

reserving the right not to answ er depending upon the particular question asked:

      “A bout?” means to me: “W hat do you want to talk to me about?” It’s
      pretty clear . . . . If he didn’t want to answer, he doesn’t have to answer.
      That’s up to him. But he answered and he gave consent to search the car.

Tr. at 145. M r. Cardenas-Alatorre identifies no convincing reason for us to reject

this interpretation as clearly erroneous. M erely providing an alternative

interpretation of the facts, as he does, will not suffice. See Watson, 2007 W L

                                         - 16 -
1300693, at *6 (“[W]e are unable to conclude that [the appellant] has met her

burden of showing clear error merely by pointing to competing testimony.”).

      Next, M r. Cardenas-Alatorre submits that, even if he did consent to further

questioning, his consent was involuntarily extracted. In support of this argument,

M r. Cardenas-Alatorre directs us to Deputy Roth’s failure to tell the defendant he

was free to leave; the “barrage of questions” D eputy Roth asked; Deputy Roth’s

tone of voice; and Sergeant M ora’s arrival with a barking drug detection dog.

Appellant’s Br. 42. 17 The district court did not make any specific findings on

these matters, but its more general finding that M r. Cardenas-Alatorre “gave

consent to search the car,” Tr. at 145, necessarily implies a rejection of the

defendant’s version of events, and we are obliged to “affirm the district court’s

suppression ruling if any reasonable view of the evidence supports that ruling.”

United States v. King, 222 F.3d 1280, 1283 n.2 (10th Cir. 2000) (citations

omitted).

      W e have view ed the DVD supplied by counsel recording the traffic

encounter between M r. Cardenas-A latorre and Deputy Roth, and it simply fails to

reflect the sort of coercive atmosphere M r. Cardenas-A latorre describes. Deputy




      17
          M r. Cardenas-Alatorre’s related suggestion that Deputy Roth had an
affirmative obligation to tell him that he w as free to go once he returned M r.
Cardenas-A latorre’s documents is foreclosed by our case law. See, e.g., United
States v. Bradford, 423 F.3d 1149, 1158 (10th Cir. 2005); see also Ohio v.
Robinette, 519 U.S. 33, 39-40 (1996).

                                        - 17 -
Roth returned M r. Cardenas-A latorre’s documents and issued the citation before

seeking permission to ask further questions; he employed no intimidating body

language or tone; and he did not block or otherwise prevent M r. Cardenas-

Alatorre from returning to his car. An illustration of the relaxed tenor of their

conversation was D eputy Roth’s joke, while casually tugging at his belt, that he is

“a little fat,” to which M r. Cardenas-Alatorre laughed and responded in kind,

“I’m a little fat, also.” Tr. at 52. The video recording also indicates that, while

Sergeant M ora arrived on the scene as this discussion took place, M r. Cardenas-

Alatorre’s back was facing the direction from which Sergeant M ora arrived; thus,

neither Sergeant M ora nor his dog were even visible to M r. Cardenas-A latorre

when Deputy Roth requested permission to search. See United States v.

M anjarrez, 348 F.3d 881, 886 (10th Cir. 2003) (consent was not coerced even

though a drug detection dog was howling loudly during the trooper’s questioning

because the dog was in the patrol car and not in direct contact with defendant); cf.

Guerrero, 472 F.3d at 789-90 (no “threatening environment” existed although tw o

officers were present because one “sat at a distance away and had no interaction

with [the defendants]”); United States v. Chavira, 467 F.3d 1286, 1291 (10th Cir.

2006). Under these circumstances, we see no legally sufficient basis for

overturning the district court’s conclusion that Deputy Roth’s continued

questioning and subsequent search of the car were part and parcel of a consensual

encounter.

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For the foregoing reasons, the judgm ent of the district court is

                                                                    Affirmed.




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