United States v. Mendoza , 817 F.3d 695 ( 2016 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 25, 2016
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-7042
ISMAEL COBIAN MENDOZA,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 6:14-CR-00077-RAW-1)
_________________________________
Chance Cammack, Research and Writing Specialist (Julia L. O’Connell, Federal Public
Defender, and Scott A. Graham, Assistant Federal Public Defender, with him on the
briefs), Office of the Federal Public Defender, Muskogee, Oklahoma, for Defendant-
Appellant.
Edward Snow (Mark F. Green, United States Attorney, and Linda A. Epperley with him
on the brief), Office of the United States Attorney, Muskogee, Oklahoma, for Plaintiff-
Appellee.
_________________________________
Before KELLY, BRISCOE, and HARTZ, Circuit Judges.
_________________________________
HARTZ, Circuit Judge.
_________________________________
Defendant Ismael Mendoza appeals the district court’s denial of his motion to
suppress drugs found in two ice chests in the vehicle he was driving. He argues (1) that
his consent to search the vehicle was invalid because he gave his consent while an officer
was unlawfully detaining him, (2) that the search of the first chest exceeded the scope of
his consent when the officer dumped its packaged contents (frozen seafood) on the
pavement and pried open the chest’s lining, and (3) that the search and destruction of the
second ice chest was unlawful because the officers did not have probable cause specific
to that chest.
We affirm. The officer had reasonable suspicion justifying Defendant’s detention
when he consented to the search. The search of the first chest did not exceed the scope of
Defendant’s consent; Defendant, who was observing the search, raised no objection to the
manner of the search, and the officers’ actions did not destroy or render useless the chest
or its contents before they saw a drug package in the lining. And the search of the second
chest was lawful because the officers had probable cause to search the vehicle and
destruction of the chest was reasonable in the circumstances.
I. BACKGROUND
We summarize the evidence at the suppression hearing. On November 3, 2014,
Defendant was driving a rental car on Interstate 40 in Oklahoma when he was stopped for
speeding by Oklahoma Highway Patrol Trooper Matthew Mize. Defendant, who was
traveling alone, drove a half mile before pulling over, a longer distance than was typical.
Trooper Mize observed signs of “hard travel,” such as food and trash in the passenger
seat, suggesting that Defendant had been trying to avoid stopping on his way to his
destination. R., Vol. 2 at 17. Defendant appeared nervous. He was visibly shaking when
he handed over his driver’s license and did not calm down during the stop. When Mize,
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who recognized that the car was a rental, asked for the rental agreement, Defendant
produced insurance papers instead. Mize then reached into the vehicle and got the rental
agreement himself.
Mize asked Defendant to sit in the patrol car (which was facing the rear of
Defendant’s vehicle) while he filled out a warning ticket. In the patrol car Defendant told
Mize that he was traveling from his home in Tucson, Arizona, to Memphis, Tennessee, to
visit family for two weeks. The rental agreement, however, indicated that Defendant was
going to return the car in five days. Defendant also told Mize that he was a construction
worker but work was slow so he was taking a vacation. Mize noticed that his hands were
not typical of those who perform manual labor; they were clean and well-manicured.
Although Mize told Defendant that he was only going to issue him a warning, Defendant
did not calm down as others do. He remained nervous, sitting in a rigid position in the
patrol car and staring at his vehicle.
After Mize issued the written warning, Defendant was starting to exit the patrol
car when Mize asked him: “Hey sir, can I ask you a question?” R. Supp. (Video
Recording) at 9:04. Defendant responded, “What’s that?” Id. at 9:06. At Mize’s request,
Defendant sat back down in the car and closed the door. Mize then questioned him about
the difference between his reported travel plans and the rental-agreement dates.
Defendant backtracked, stating that he was actually returning to Tucson within the rental
period. Mize then asked Defendant if he could search Defendant’s vehicle, and
Defendant agreed. Asked whether he had any firearms or illegal drugs in the vehicle,
Defendant denied having any, but he told Mize that he had fish and shrimp in the back.
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Mize left Defendant in the patrol car and told him to honk the horn if he wanted to stop
the search. Defendant did not honk the horn at any time during the search.
Trooper Daren Koch responded to a call by Mize to assist with the search of
Defendant’s car. In his patrol car was a dog trained to alert to the presence of drugs, but
the troopers did not use it. The troopers observed two ice chests in the vehicle, one in the
trunk and one in the back seat. They first opened the ice chest in the trunk, which
contained wrapped fish and shrimp. Koch thought the chest was seven or eight years old
and showed signs of tampering: one of the hinges was broken, the lip of the inner lining
was partially separated from the outer shell, and one screw was missing while several
others looked as if they had been taken in and out multiple times. Also, he found it
significant that Defendant was traveling with seafood because smugglers sometimes use
the smell of seafood to mask the presence of drugs. After removing the seafood packages
from the ice chest and placing them on the ground, Koch used an upholstery tool to pry
the inner and outer liners farther apart. This separation may have caused indents in the
foam but otherwise did not damage the ice chest. Although Koch had performed similar
searches on many ice chests that did not contain contraband, he had never been notified
by the owners that he had damaged them.
As he separated the liners, Koch noticed that the lining contained what appeared to
be spray foam that did not originally come with the ice chest. When he pried the lining
farther apart, he saw the corner of a black, taped bundle. During his time as a law-
enforcement officer, Koch had often encountered similar bundles containing drugs. He
then tore open the outer lining of the ice chest and found 13 bundles containing marijuana
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(later weighed at 890 grams). The troopers next similarly dismantled the second ice
chest, finding two bundles containing methamphetamine (weighing 879 grams).
Defendant was indicted in the Eastern District of Oklahoma on one count of
possession with intent to distribute methamphetamine and marijuana. See 21 U.S.C.
§ 841(a)(1), (b)(1)(A), (b)(1)(D). He moved to suppress evidence from the traffic stop,
arguing that the search violated his Fourth Amendment rights; but the district court
denied the motion. He then pleaded guilty to the indictment as part of a conditional plea
agreement under which he reserved the right to appeal the denial of his motion to
suppress. He was sentenced to 87 months’ imprisonment.
II. DISCUSSION
When reviewing a district court’s denial of a motion to suppress, “this court views
the evidence in the light most favorable to the government and accepts the district court’s
findings of fact unless clearly erroneous.” United States v. Jackson, 381 F.3d 984, 988
(10th Cir. 2004). “The ultimate determination of reasonableness under the Fourth
Amendment, however, is reviewed de novo.” Id.
Defendant challenges the legality of this encounter on three grounds. First, he
contends that the troopers failed to obtain valid consent to search. Second, he argues that
the troopers exceeded the scope of his consent by prying open the lining of the first ice
chest and putting the contents on the ground. Third, he challenges the troopers’
destruction of the second ice chest without individualized probable cause that it contained
unlawful drugs.
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A. Validity of Consent
A search can be conducted when officers have received a valid consent. See
Florida v. Jimeno, 500 U.S. 248, 250–51 (1991). Defendant challenges the validity of his
consent, however, on the ground that his consent was given while he was being detained
in violation of the Fourth Amendment.
“When a consensual search follows a Fourth Amendment violation, the
government must prove both (1) that the consent was voluntary under the totality of the
circumstances, and (2) that there was a break in the causal connection between the
illegality and the evidence thereby obtained.” United States v. Fox, 600 F.3d 1253, 1257
(10th Cir. 2010) (internal quotation marks omitted). Defendant argues that his detention
was unlawful after Trooper Mize issued the written warning, marking the end of the
justification for the stop. Ordinarily, “once an officer returns the driver’s license and
registration, the traffic stop has ended and questioning must cease; at that point, the driver
must be free to leave.” United States v. Moore, 795 F.3d 1224, 1229 (10th Cir. 2015)
(brackets and internal quotation marks omitted). Defendant contends that he did not
consent to further detention when he responded “What’s that” to Mize’s request to ask an
additional question, R. Supp. (Video Recording) at 9:04, and Mize therefore illegally
extended the traffic stop.
But we need not address whether Defendant consented to extending the stop,
because Defendant was lawfully detained up to the time he consented to the search of his
vehicle. A traffic stop may be extended after the initial reason for the stop (here, a traffic
violation) has been satisfied if the officer has “an objectively reasonable and articulable
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suspicion that illegal activity has occurred or is occurring.” Moore, 795 F.3d at 1229
(internal quotation marks omitted). Such reasonable suspicion was present here. Most
importantly, Defendant’s travel plans made no sense. He was driving intensely (leaving
food and trash on the passenger seat) from Tucson to Memphis for a two-week vacation
when the rental car was to be returned in five days in Tucson. “We have credited
inconsistent travel plans as a factor contributing to reasonable suspicion when there are
lies or inconsistencies in the detainee’s description of them.” United States v. Simpson,
609 F.3d 1140, 1148–49 (10th Cir. 2010). But cf. id. at 1149 (“In contrast, this circuit has
been reluctant to deem travel plans implausible—and hence a factor supporting
reasonable suspicion—where the plan is simply unusual or strange because it indicates a
choice that the typical person, or the officer, would not make.”). Also, Defendant
showed various signs of extreme nervousness: taking a half mile to pull over, visibly
shaking, handing over his insurance papers rather than the rental agreement, and
remaining nervous even after the trooper informed him he would only receive a warning.
And Defendant’s hands did not appear to be those of a construction worker, his claimed
occupation. Detaining Defendant to ask for an explanation was reasonable in the
circumstances. See United States v. Alcarez-Arellano, 441 F.3d 1252, 1260 (10th Cir.
2006) (reasonable suspicion based in part on implausible travel plans and extreme
nervousness); United States v. Williams, 271 F.3d 1262, 1267–70 (10th Cir. 2001)
(reasonable suspicion when defendant’s reported travel plans were inconsistent with his
rental-car agreement, he displayed unusual nervousness which did not dissipate during
the stop, and he possessed a short-range radio). A few questions and answers could have
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dissipated suspicion; but Defendant’s answer to the first question did the opposite. He
forgot about the two weeks with family and said he would be back in Tucson to return the
car in time. The detention up to the consent to search was lawful.
B. First Ice Chest
Defendant contends that even if his consent was valid, the search of the first ice
chest exceeded the scope of that consent. “The standard for measuring the scope of a
suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness—
what would the typical reasonable person have understood by the exchange between the
officer and the suspect?” Jimeno, 500 U.S. at 251. The consenting party “may of course
delimit as he chooses the scope of the search to which he consents.” Id. at 252. Absent
an explicit limitation, however, “a general consent to search [a car] includes closed
containers within the vehicle, and this court has specifically ruled that a failure to object
to the continuation of a search indicates that the search was conducted within the scope of
the consent given.” United States v. Santurio, 29 F.3d 550, 553 (10th Cir. 1994) (citation
omitted). Still, “before an officer may actually destroy or render completely useless a
container which would otherwise be within the scope of a permissive search, the officer
must obtain explicit authorization, or have some other, lawful, basis upon which to
proceed.” United States v. Osage, 235 F.3d 518, 522 (10th Cir. 2000).
Defendant’s consent was to a general search without limitations. His consent
therefore extended to closed containers in his vehicle. But he contends that both prying
open the lining of the ice chest and dumping the seafood on the road damaged his
property beyond any reasonable construction of his consent. We disagree.
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Trooper Koch’s further separation of the already separated inner and outer lining
of the ice chest did not permanently damage it. The linings had been partially separated
before the search by the tampering required for the drugs to be placed between the
linings. And Koch testified:
[The o]nly damage that would be done is it would possibly leave a bit of an
imprint in the foam in there. You can separate it generally down three or four
inches away from that foam, and then that liner will go right back underneath that
lip. There’s no damage done to the exterior of it or the interior of it.
R., Vol. 2 at 49–50. We have noted that “some dismantling of an item searched” comes
within the scope of a general consent. Osage, 235 F.3d at 521–22 n.2; see, e.g., Santurio,
29 F.3d at 553 (removing screws to look under carpeting in vehicle did not exceed scope
of consent); United States v. Pena, 920 F.2d 1509, 1512, 1514–15 (10th Cir. 1990)
(removal of quarter-panel vent of vehicle with screwdriver did not exceed scope of
consent). Likewise, minor or de minimis damage does not by itself render a search
excessive. See Jackson, 381 F.3d at 989 (“[A]ny loss or contamination of the baby
powder by [the officer’s] search with his blade was de minimis and well short of the type
of ‘complete and utter destruction or incapacitation’ that was the focus of our concern in
Osage.”).
Also, Defendant had been told that he could halt the search at any time by honking
the horn, yet—despite a clear view of the troopers’ actions—he never honked the horn.
See Santurio, 29 F.3d at 553 (“[F]ailure to object to the continuation of a search indicates
that the search was conducted within the scope of the consent given.”). We hold that the
district court did not clearly err in determining that prying apart the cooler’s lining was
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within the scope of Defendant’s general consent to search. See Jackson, 381 F.3d at 988
(“The district court’s conclusion that a search is within the boundaries of a defendant’s
consent is a factual finding that this court reviews for clear error.”).
Nor was Defendant’s scope of consent exceeded, as he now argues, by the
troopers’ “dumping out fish, which needs to be kept cold, onto the road, essentially
destroying them.” Aplt. Br. at 17. It helps to know that the fish were wrapped, so they
were not contaminated by the removal. And the fish would not be spoiled by being left
outside for the short period necessary to search the chest.
Of course, as Defendant concedes, once the trooper saw a black bundle in the
lining of the first ice chest, he had probable cause to search the chest regardless of the
scope of consent. Defendant does not challenge what the troopers did to the first chest in
removing the bundles. The district court properly denied Defendant’s motion as to the
first ice chest.
C. Second Ice Chest
Defendant does not contest that after the troopers found drugs in the first ice chest,
they had probable cause to search his vehicle and any container that could conceal drugs
or evidence. See Wyoming v. Houghton, 526 U.S. 295, 302 (1999) (“When there is
probable cause to search for contraband in a car, it is reasonable for police officers—like
customs officials in the founding era—to examine packages and containers without a
showing of individualized probable cause for each one.”); United States v. Ross, 456 U.S.
798, 825 (1982). Officers could therefore search the second ice chest.
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But Defendant contends that the Fourth Amendment prohibited destroying the
second ice chest during the search without probable cause that the specific item contained
evidence. He argues that such individualized probable cause was not present because the
second ice chest appeared brand new, did not contain fish, and was in another part of the
vehicle.
This circuit has no precedent directly in point. In several cases in which a search
of a car destroyed part of the car or a container within it, the officers had probable cause
focused on the item destroyed. See United States v. Carbajal-Iriarte, 586 F.3d 795, 799,
802–03 (10th Cir. 2009) (probable cause to cut open upholstered seat after dog alerted to
that seat); United States v. Lyons, 510 F.3d 1225, 1232, 1241–42 (10th Cir. 2007)
(probable cause permitted destruction of spare tire when officers observed that tire
appeared to have been recently placed on the rim and was excessively heavy, and “echo
test” indicated that something was stored within the tire); see also Carroll v. United
States, 267 U.S. 132, 162, 172 (1925) (during search supported by probable cause,
officers cut open upholstered seat which was harder than expected when tapped on by
officers). None of these cases addressed what specificity, if any, was required to permit
destruction of part of the vehicle or a container.
We therefore turn to general Fourth Amendment principles. As we explain, these
compel the conclusion that the constitutionality of the manner of conducting an otherwise
lawful vehicle search is governed by whether it was reasonable under the circumstances.
To begin with, although a search warrant is generally not required to search a
motor vehicle if officers have probable cause, see Ross, 456 U.S. 798 at 804–09, the rules
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governing the search are the same as if a warrant had been obtained. The Supreme Court
has told us that the permissible scope of such a search “is no narrower—and no
broader—than the scope of a search authorized by a warrant supported by probable
cause.” Id. at 823. We infer that the manner of conducting a warrantless vehicle search
is likewise governed by the same standards as for warranted searches.
The manner of executing a search authorized by a warrant is governed by a
reasonableness standard. See Dalia v. United States, 441 U.S. 238, 257 (1979) (“[I]t is
generally left to the discretion of the executing officers to determine the details of how
best to proceed with the performance of a search authorized by warrant—subject of
course to the general Fourth Amendment protection ‘against unreasonable searches and
seizures.’” (footnote omitted)); Lawmaster v. Ward, 125 F.3d 1341, 1349 (10th Cir.
1997) (“Although the Constitution does not specifically address how an officer should
execute a search warrant, a warrant that is reasonably executed will withstand
constitutional scrutiny.”). In particular, courts determine the lawfulness of damaging or
destroying property in executing a warrant by assessing the reasonableness of the police
conduct. See United States v. Ramirez, 523 U.S. 65, 71 (1998) (upholding destructive no-
knock entry; “[t]he general touchstone of reasonableness which governs Fourth
Amendment analysis . . . governs the method of execution of the warrant. Excessive or
unnecessary destruction of property in the course of a search may violate the Fourth
Amendment . . . .”); Dalia, 441 U.S. at 258 (“[O]fficers executing search warrants on
occasion must damage property in order to perform their duty.”); Lawmaster, 125 F.3d at
1349 (“[W]hen executing a search warrant, an officer is limited to conduct that is
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reasonably necessary to effectuate the warrant’s purpose.”); 2 Wayne R. LaFave, Search
and Seizure § 4.10(d), at 971–72 (5th ed. 2012) (“The destruction of property in carrying
out a search is not favored, but it does not necessarily violate the Fourth Amendment; the
standard is reasonableness.”).
Turning to the case before us, there is no dispute that the troopers could search the
second ice chest. And we hold that dismantling the chest was reasonable under the
circumstances. After all, the troopers had just found drugs in the modified lining of the
other ice chest. Neither Defendant nor our imagination has suggested any nondestructive
way to retrieve evidence from the chest’s lining. Defendant argues that the second ice
chest was less obviously tampered with than the first one, did not have seafood in it, and
was in another portion of the car. But those considerations hardly dissipated the probable
cause to search the vehicle or the reasonableness of searching inside the lining of one ice
chest after discovering drugs secreted in the lining of another.
III. CONCLUSION
The judgment of the district court is AFFIRMED.
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