United States v. Contreras

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH
October 31, 2007
Elisabeth A. Shumaker
UNITED STATES CO URT O F APPEALS Clerk of Court

TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,
v. No. 06-4144
ELSA CONTRERAS, a/k/a Elsa
Juaregui, a/k/a Elisa Juarequi, a/k/a
Elsa Taurequi,

Defendant-Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF UTAH
(D.C. NO . 2:04-CR-00716-DK W )

Submitted on the briefs:

Roger K . Scowcroft, Salt Lake City, Utah for the Defendant-Appellant.

Stephen J. Sorenson, Assistant United States Attorney (Brett L. Tolman, United
States Attorney, with him on the briefs), Salt Lake City, Utah for the Plaintiff-
Appellee.

Before M cCO NNELL, T YM KOVICH, and BALDOCK , Circuit Judges. *

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
M cCO NNELL, Circuit Judge.

This case considers a matter of first impression for this circuit: whether the

Sentencing Guidelines enhancement for obstruction of justice, United States

Sentencing Guidelines M anual § 3C1.1 (2002), applies w hen a defendant’s

obstructive conduct occurred during the prosecution of state charges preceding

the federal indictment, but both federal and state charges were based on the same

underlying conduct. W e hold that, in this case, it does. W e also hold that the

search of M s. Contreras’s car did not violate her constitutional rights.

Accordingly, we affirm both the conviction and the sentence.

I. Background

On October 2, 2004, Elsa Contreras was stopped on Interstate 15 in Beaver

County, Utah, for following the car ahead of her too closely. The officer,

Sergeant Bauer, observed that M s. Contreras was pale and “shaking very badly.”

R. Vol. II, at 14. W hile he was examining M s. Contreras’s license and rental car

agreement, he asked about her travel plans. She said that she had left Nebraska

on September 30 and driven to Las Vegas to visit a brother and a relative who had

traveled there from M exico. Although both the officer’s testimony and the

district court order state that M s. Contreras told the officer that she arrived in Las

Vegas on the morning of October 2, that statement is unsupported by the

videotape of the encounter. Instead, the recording reflects that M s. Contreras told

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the officer only that she had left Nebraska on September 30, driven to Las Vegas,

and was now, two days later, on her w ay back to Nebraska. She explained to the

officer that she did not like to fly. The location of the traffic stop was about a

three-hour drive from Las Vegas.

Sergeant Bauer told the defendant that he was not going to give her a ticket

and to “drive safe.” R . Supp. V ol. I, at 4. Then, still standing at her car window ,

he asked, “You wouldn't mind opening your trunk real quick before I let you go,

would you?” Id. The defendant agreed, and the officer opened the trunk and

began to search. He noticed that the spare tire w as not sitting properly in its well

and asked M s. Contreras if he could check it. She agreed. Further inspection

revealed that the tire contained something other than air. Through a series of

negotiations, Sergeant Bauer convinced M s. Contreras, however reluctantly, to

accompany him to a service station to check the tire. At the service center, the

officer broke down the tire and found seven packages of methamphetamine.

M s. Contreras was arraigned on state charges and held at the Beaver

County Jail for five days. She was released on bond on October 7, after which

she fled to M exico. The federal government indicted her on October 20, 2004, on

one count of possessing 500 grams or more of methamphetamine with an intent to

distribute, a violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2.

The following day, a federal warrant was issued for her arrest. No testimony or

evidence indicates that the federal government took any additional action to

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investigate the crime or to bring M s. Contreras into custody, other than the

issuance of the indictment and arrest w arrant.

In November, the state court issued a warrant for failure to appear when

M s. Contreras missed a court date. Eight months later, in July 2005, she was

stopped crossing the border, the federal warrant was discovered, and she was

arrested and placed in federal custody. On M arch 20, 2006, M s. Contreras

pleaded guilty to violating §§ 841(a)(1) and (b)(1)(A ), preserving her right to

appeal.

The Presentence Report (PSR ) recommended a sentencing enhancement

under U nited States Sentencing Guidelines § 3C1.1 for obstruction of justice. A s

a basis for the enhancement, the PSR cites M s. Contreras’s failure to appear at her

state-court hearing. The PSR calculated a total offense level of 25 and a criminal

history category of I, resulting in a sentencing range of 57-71 months. W ithout

the enhancement for obstruction of justice, the range would have been 46-57

months.

At sentencing, the government voiced its support for the enhancement:

W ell, just for the record, Your H onor, I do believe that the issue here is
that she was arrested and charged in this offense and it is irrelevant which
sovereign pursued the investigation. She fled following her arrest and
follow ing a charge being filed in this instant offense. Under the guidelines,
I do believe that that does qualify for obstruction of justice. . . .

The Court: I agree with you on that point.

R. Vol. III, at 8-9.

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The judge sentenced M s. Contreras to 57 months, the bottom of the sentencing

range.

M s. Contreras timely appealed, objecting both to the search of her trunk

and to the sentencing enhancement.

II. Fourth Amendment

M s. Contreras argues on appeal that the search of the trunk of her car was

illegal because her detention was not based on reasonable suspicion and her

consent to the search was tainted. W e find that the officer had reasonable

suspicion to detain M s. Contreras, and that she freely and voluntarily consented to

the search of her trunk.

In reviewing the denial of a motion to suppress, we accept the factual

findings of the district court unless they are clearly erroneous. United States v.

Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998). The ultimate determination of

reasonableness under the Fourth Amendment is a question of law, which we

review de novo. Id.

A. Initial Traffic Stop

“[A] traffic stop is valid under the Fourth Amendment if the stop is based

on an observed traffic violation or if the police officer has reasonable articulable

suspicion that a traffic or equipment violation has occurred or is occurring . . . .”

United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995). Utah law at

the time of the stop at issue prohibited following “another vehicle more closely

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than is reasonable and prudent.” Utah Code Ann. § 41-6-62 (2000) (current

version at Utah Code Ann. § 41-6a-711 (2005)). The district court accepted

Sergeant Bauer’s testimony that he stopped Contreras because she was following

a semi-truck too closely. M s. Contreras does not challenge that finding on

appeal, nor does she challenge the district court’s holding that the stop was valid.

Therefore, we turn to the validity of the extended stop following Sergeant Bauer’s

initial detention of M s. Contreras.

B. Extension of Stop

Once an officer has returned the motorist’s license and other papers and

issued any citation he intends to give, he must usually allow her to proceed on her

way without additional questioning. United States v. Patten, 183 F.3d 1190, 1193

(10th Cir. 1999). Further detention must be justified by an “objectively

reasonable and articulable” suspicion of illegal activity based on the totality of

the circumstances. U nited States v. Williams, 271 F.3d 1262, 1268 (10th Cir.

2001). W e affirm the district court’s conclusion that Sergeant Bauer’s detention

of M s. Contreras beyond the scope of the initial traffic stop was supported by

reasonable suspicion.

Sergeant Bauer’s testimony paints a convincing picture of reasonable

suspicion. The officer reported that the defendant was shaking so badly that she

could not hold on to the papers in her hand. M ore importantly, she offered an

account of her travel plans that seemed suspicious at best and incredible at worst.

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M s. Contreras claimed to have driven more than 1,200 miles to see her family,

only to turn around within a day and begin the 1,200-mile drive back. Add the

presence of food wrappers from a California restaurant and the fact that she was

driving a rental car – which Sergeant Bauer knew to be “often used by narcotics

traffickers . . . [because] it can’t be seized,” R. Vol. II, at 21 – and M s.

Contreras’s conduct begins to strongly resemble that of a narcotics courier

transporting a load between the W est Coast and Nebraska.

W e have noted numerous times that implausible travel plans can form a

basis for reasonable suspicion. United States v. Alcaraz-Arellano, 441 F.3d 1252,

1260 (10th Cir. 2006); United States v. Kopp, 45 F.3d 1450, 1453-54 (10th Cir.

1995). W e have also credited the idea that drug couriers often use third-party

rental cars. William s, 271 F.3d at 1270. Although we have found nervousness to

be “of only limited significance in determining whether reasonable suspicion

exist[s],” United States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997), it does add

to the overall calculus of suspicious behavior, especially when, as here, it is

extreme. Taken as a whole, Sergeant Bauer’s assessm ent that M s. Contreras’s

actions created reasonable suspicion of narcotics activity is more than sufficient.

C. Consent Given to Search Trunk

W hile a warrant is not required to search a motor vehicle, “the search

otherwise [must be such] as [a] magistrate could authorize.” California v.

Carney, 471 U.S. 386, 394 (1985). In other words, an officer must have probable

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cause to search a vehicle without a warrant or he must rely on some other

exception to the warrant requirement. 1 Consent is one such exception to the

warrant requirement. United States v. Zubia-M elendez, 263 F.3d 1155, 1162

(10th Cir. 2001) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)).

The central question in determining whether consent to a search is

voluntary is “whether the police conduct would have communicated to a

reasonable person that the person was not free to decline the officers’ request . . .

.” Florida v. Bostick, 501 U.S. 429, 439 (1991); United States v. Rosborough,

366 F.3d 1145, 1149 (10th Cir. 2004). In this case, there is ambiguity as to

whether M s. Contreras’s detention had ceased at the time she consented to the

search. On the one hand, Sergeant Bauer had returned her documents and told her

to “drive safe,” which would ordinarily be an indication that she was free to go.

R. Supp. Vol. I, at 4. On the other hand, after M s. Contreras said “okay” to these

valedictory remarks, the officer stepped back briefly and asked her: “You

wouldn’t mind opening your trunk real quick before I let you go, would you?” Id.

W e interpret this as indicating that she was not yet free to go, or at least that a

reasonable motorist might interpret the words “before I let you go” as

countermanding the dismissal implied by the earlier words, “drive safe.” Yet the

1
The district court in its order and both parties in their appellate briefs
addressed the search issue in terms of reasonable suspicion rather than probable
cause, but we assume they must have meant the latter. Because we resolve the
search issue on the basis of consent, any error that may have occurred in this
respect is inconsequential.

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videotape suggests that M s. Contreras may have interjected her consent before

Sergeant Bauer had reached the end of his sentence— before he uttered the w ords,

“before I let you go.” If so, then at the time she gave her consent, she had been

released from custody and the officer had not yet communicated anything to the

contrary.

The videotape, however, is not entirely audible because Sergeant Bauer and

M s. Contreras were talking at the same time. It is not clear what exactly M s.

Contreras said and whether her interjection was a consent, or if she gave her

consent only after Sergeant Bauer had finished speaking. However, the timing of

her consent is not decisive. A person may voluntarily consent to a search even

while being legally detained. United States v. Flores, 48 3d. 467, 468-69 (10th

Cir. 1995). The detention is only one factor to be considered in determining

whether consent was voluntarily and freely given based on the totality of the

circumstances. United States v. Nicholson, 983 F.2d 983, 988 (10th Cir. 1993).

On this record, even assuming that M s. Contreras was still under lawful

detention at the time, we agree with the district court that her consent to the

search was voluntary. Factors that support this conclusion include: (1) Sergeant

Bauer’s casual phrasing of the request; (2) his tone of voice; (3) his lack of a

show of force; (4) his stop in broad daylight on an interstate highw ay; and (5) M s.

Contreras’s repeated responses of “okay” when the officer reiterated his requests

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for consent. Nothing in the videotape or the testimony at the hearing provides

any reason to believe that M s. Contreras was acting under compulsion.

M s. Contreras also contends that even if she consented to the opening of

her trunk, she did not consent to a search of it. The general rule is that “when a

suspect does not limit the scope of a search, and does not object when the search

exceeds w hat he later claims w as a more limited consent, an officer is justified in

searching the entire vehicle.” United States v. West, 219 F.3d 1171, 1177

(internal quotations and citations omitted). The court determines from the totality

of the circumstances whether a search remains within the boundaries of the

consent, viewing the evidence in the light most favorable to the government. W e

ask, “[W]hat would the typical reasonable person have understood by the

exchange between the officer and the suspect?” United States v. Wald, 216 F.3d

1222, 1228 (10th Cir. 2000) (quoting Florida v. Jimeno, 500 U.S. 248, 251

(1991)).

W e agree with the district court that a reasonable person granting consent

to open the trunk would have expected that Sergeant Bauer intended to inspect the

interior of the trunk, not just the trunk’s hinges. Once properly in the trunk, the

officer quickly developed probable cause to believe the spare tire contained

contraband. In any event, Sergeant Bauer returned twice to M s. Contreras and

obtained further permission when he wished to examine the spare tire after he

noticed that it did not fit comfortably under its cover.

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 Because we find M s. Contreras voluntarily consented to the search of her

trunk and the extension of the stop was based on reasonable suspicion, there was

no Fourth A mendment violation. W e uphold the district court’s denial of M s.

Contreras’s motion to suppress.

III. O bstruction of Justice

A. Obstruction of State-Court Charges

“[W]e review a district court’s factual findings for clear error, and we

review its legal interpretation of the guidelines de novo.” United States v.

Norman, 129 F.3d 1393, 1398 (10th Cir. 1997).

Section 3C1.1 of the Sentencing Guidelines requires that an offender’s

offense level be increased by two levels

[i]f (A) the defendant willfully obstructed or impeded, or attempted
to obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to (i) the defendant’s
offense of conviction and any relevant conduct; or (ii) a closely related
offense. . . .

U.S.S.G. § 3C1.1. The defendant in this case asserts that her conduct

occurred before the investigation or prosecution of the “instant offense of

conviction” was underway. W e disagree.

The Guidelines direct that “[t]he term ‘instant’ is used in connection with

‘offense,’ ‘federal offense,’ or ‘offense of conviction,’ as the case may be, to

distinguish the violation for which the defendant is being sentenced from a prior

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or subsequent offense, or from an offense before another court (e.g., an offense

before a state court involving the same underlying conduct).” U.S.S.G. § 1B1.1

cmt. n.1(H) (emphasis added). Thus, if M s. Contreras’s flight to M exico had

affected only state prosecution, it w ould not count for purposes of § 3C1.1.

In this case, however, M s. Contreras committed an offense that could have

been prosecuted either by state or by federal authorities. W hen she fled to

M exico, she did not know whether the prosecution she was obstructing was one

that eventually would proceed in federal court or in state court. Indeed, the

record is not clear whether, at the time she fled to M exico, the federal indictment

had yet been entered. She fled sometime after October 7, 2004; the federal grand

jury indicted her on October 20. There is no doubt, however, that her five-month

absence precluded federal authorities from proceeding with prosecution in her

case until she returned to the jurisdiction. Thus, although we agree with

defendant’s argument that the language of the guideline confines the obstruction

enhancement to obstruction of the administration of justice with respect to the

“instant” offense, meaning the federal prosecution, we hold that where a

defendant’s obstructive conduct impedes or delays prosecution by both federal

and state authorities, the enhancement is applicable.

Even if M s. Contreras slipped across the border before the grand jury did

its work, this would not make her flight any less obstructive with respect to the

federal prosecution. In United States v. M ills, this Court upheld the application of

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the obstruction enhancement to a defendant— a federal prisoner— who tampered

with videotape evidence to erase the record of his conduct. 194 F.3d 1108, 1114-

15 (10th Cir. 1999). W e held that the defendant’s action obstructed the federal

investigation even though it took place before the start of that investigation.

“Clearly, M ills knew that an investigation would be conducted, and he understood

the importance of the tape in that investigation.” Id. at 1115. If conduct may

obstruct a federal prosecution when no investigation is underway at all, it surely

must be permissible for the obstruction enhancement to apply here, where a

defendant flees the country after state investigators had uncovered evidence that

would warrant federal prosecution.

A contrary interpretation would have strange consequences. M any, if not

most, federal drug prosecutions occur as a result of state investigations. See, e.g.

Paul G . Cassell, Too Severe?, 56 Stan. L. Rev. 1017, 1040 (2004) (noting “the

increasing trend by federal prosecutors to ‘adopt’ what is essentially a state

investigation for federal prosecution”). It would make little sense to determine

the applicability of the guideline by the identity of the officers who conduct the

initial investigation rather than the nature of the ultimate prosecution. As the

Fourth Circuit has noted: “The failure of the guideline to distinguish between an

investigation by federal officials as opposed to state officials undoubtedly is

founded in a recognition that state officers are authorized to and frequently do

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investigate criminal conduct that ultimately is prosecuted under federal law.”

United States v. Self, 132 F.3d 1039, 1042-43 (4th Cir. 1997).

Seven other circuits have considered whether the obstruction of a state

investigation based on the same facts as the eventual federal conviction merits a §

3C1.1 enhancement. Of those circuits, six have held that obstruction of the state

proceeding does qualify for the enhancement; only one held that it did not.

United States v. Perez, 50 F.3d 396, 398-400 (7th Cir. 1995) (obstruction of state

proceeding does not qualify under the enhancement); United States v. Ayers, 416

F.3d 131, 134 (2d Cir. 2005) (obstruction of state proceeding qualifies under the

enhancement); United States v. Frasier, 381 F.3d 1097, 1099-1100 (11th Cir.

2004) (same); United States v. Roberts, 243 F.3d 235, 237-38 (6th Cir. 2001)

(same); United States v. Imenec, 193 F.3d 206, 209 (3d Cir. 1999) (same); United

States v. Self, 132 F.3d 1039, 1042-43 (4th Cir. 1997) (same); United States v.

Adediran, 26 F.3d 61, 65 (8th Cir. 1994) (same); United States v. Emery, 991 F.2d

907, 911-12 (1st Cir. 1993) (same).

IV. Conclusion

Accordingly, we A FFIR M M s. Contreras’s conviction and her sentence.

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