United States v. Gabaldon , 168 F. App'x 315 ( 2006 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 24, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 05-3231
(D. Ct. No. 04-CR-40100-01-RDR)
GREGORY LEE GABALDON, (D. Kan.)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before TACHA, Chief Circuit Judge, ANDERSON, and HARTZ, Circuit Judges.
After the District Court denied Defendant-Appellant Gregory Lee Gabaldon’s
motion to suppress 213 pounds of marijuana discovered in his car following a traffic stop,
Mr. Gabaldon pleaded guilty to possessing with intent to distribute a controlled substance
under 21 U.S.C. § 841(a)(1). Mr. Gabaldon now appeals the District Court’s denial of his
motion to suppress. Taking jurisdiction under 28 U.S.C. § 1291, we AFFIRM.
I. BACKGROUND
At around 8:00 a.m. on July 27, 2004, Mr. Gabaldon was pulled over by Deputy
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Sheriff Kelly Schneider for crossing the fog line on the right side of the road, which is a
violation of Kansas state law. After Mr. Gabaldon’s vehicle came to a stop, Deputy
Schneider motioned to Mr. Gabaldon to meet him between the police cruiser and Mr.
Gabaldon’s vehicle, where Deputy Schneider informed Mr. Gabaldon that he had crossed
the white line on the road and asked if he was awake. Deputy Schneider then asked for
Mr. Gabaldon’s driver’s license and registration. As Mr. Gabaldon returned to his car to
retrieve the documents, Deputy Schneider also walked to the car, where he saw several
coolers in the back seat. At least one of the coolers appeared to be sealed with silicone.
During this time, Deputy Schneider asked Mr. Gabaldon about his travel plans. He
replied that he and his passenger were traveling from Scottsdale to Chicago on vacation,
that they were going to a friend’s birthday party there, and that the friend was his
passenger’s cousin.
After running a check on Mr. Gabaldon’s license and registration, Deputy
Schneider gave him a warning ticket and returned his license and registration. Deputy
Schneider then told Mr. Gabaldon to “be careful” and to “drive safely.” The two men
began walking away from each other. After a few steps, however, Deputy Schneider
turned and said, “Hey, you mind if I ask you another question?” The following dialogue
then took place:
Mr. Gabaldon: What?
Deputy Schneider: Mind if I ask you another question?
Mr. Gabaldon: What’s that?
Deputy Schneider: We have a lot of illegal contraband up and down this road and
illegal weapons. You don’t have anything like that?
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Mr. Gabaldon: No.
Deputy Schneider: Mind if I take a look in your car?
Mr. Gabaldon: Yeah, I do.
Deputy Schneider: Why?
Mr. Gabaldon: [unintelligible]
Deputy Schneider: How about I run a dog around your vehicle?
Mr. Gabaldon: What?
Deputy Schneider: How about I run a dog around your vehicle?
Mr. Gabaldon: Around the vehicle?
Deputy Schneider: Yeah. You don’t mind?
Mr. Gabaldon: No.
The District Court found that during this conversation, Deputy Schneider used a
conversational tone of voice and did not raise it. Nor did he command or instruct Mr.
Gabaldon. In addition, he did not draw or even touch his gun. Thereafter, Deputy
Schneider’s drug dog alerted to the vehicle, and a search resulted in the discovery of 44
packages of marijuana weighing approximately 213 pounds.
After he was indicted and charged with one count of possession with intent to
distribute a controlled substance, Mr. Gabaldon filed a pretrial motion to suppress the
drugs found in his vehicle. The District Court held an evidentiary hearing on the matter
and denied the motion, concluding that under the totality of the circumstances, Mr.
Gabaldon voluntarily consented to further questioning and voluntarily gave consent to the
dog sniff. The court’s conclusion was based in part on the following findings:
The court finds no evidence of coercion by Deputy Schneider. Deputy
Schneider indicated to the defendant that he was free to go when he told
him, “Be careful.” The defendant displayed a willingness to answer the
questions posed by Deputy Schneider. He gave no indication that he did
not wish to engage in a conversation with Deputy Schneider. The court
finds that the defendant voluntarily consented to answer the questions posed
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by Deputy Schneider and that he voluntarily consented to the drug sniff of
his vehicle.
Mr. Gabaldon subsequently pleaded guilty on the condition he be permitted to
appeal the District Court’s ruling. On appeal, he argues that Deputy Schneider’s line of
questioning after the stop concluded effectively detained him without reasonable
suspicion or valid consent and therefore his ensuing consent to the dog sniff and the
discovery of the marijuana was inadmissible as “fruit of the poisonous tree.” Mr.
Gabaldon further argues that even if he was not unlawfully detained, his consent to search
the vehicle was coerced and therefore involuntary.
II. DISCUSSION
A. Standard of Review
“In reviewing a district court’s denial of a motion to suppress, we accept the
district court’s factual findings unless clearly erroneous, and we view the evidence in the
light most favorable to those findings.” United States v. Wallace, 429 F.3d 969, 974
(10th Cir. 2005). We review de novo a district court’s determination that a search or
seizure is reasonable under the Fourth Amendment. Id.B. Merits
A traffic stop is reasonable, and therefore permissible under the Fourth
Amendment, if (1) “the officer’s action was justified at its inception[;]” and (2) “the
officer’s action was reasonably related in scope to the circumstances which justified the
interference in the first place.” United States v. Bustillos-Munoz, 235 F.3d 505, 512 (10th
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Cir. 2000) (internal quotations and citations omitted). During a stop, an officer may
request a driver’s license and issue a citation. United States v. Taverna, 348 F.3d 873,
877 (10th Cir. 2003). Once the officer gives a citation, however, the driver must be
permitted to leave. Id. Further questioning “is only permissible if the officer has a
reasonable suspicion that the driver is engaged in illegal activity or the driver voluntarily
consents to additional questioning.” Id. at 877–88 (emphasis omitted). Mr. Gabaldon
does not contest the validity of the stop; rather, he maintains that he did not voluntarily
consent to the encounter and that Deputy Schneider did not have reasonable suspicion of
illegal activity.1
Whether an encounter is consensual is a fact-intensive question involving the
totality of the circumstances. United States v. Elliott, 107 F.3d 810, 813–14 (10th Cir.
1997). This court has recognized certain factors as significant when determining whether
an encounter is consensual, including the number of police officers at the scene, whether
the officer “displayed his weapon, physically touched the driver, or used a commanding
tone of voice indicating that compliance might be compelled.” Wallace, 429 F.3d at 975.
The District Court found that none of these indicia of coercion were present in this case.
Mr. Gabaldon does not challenge this factual finding, nor does he point to any
other specific actions taken by Deputy Schneider that support his assertion that the
encounter was not consensual. Instead, Mr. Gabaldon argues that the court should give
1
Because we conclude that Mr. Gabaldon consented to the encounter, we do not
reach the question of reasonable suspicion.
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greater weight to a citizen’s perception of the authority held by law enforcement officers,
as well as the difficulty a citizen may have determining whether a police officer’s
questions should be interpreted as instructions or commands. We have consistently
rejected this argument, and have specifically held that without other indicia of coercion,
“the fact that [the person posing the questions] was a uniformed police officer . . . is
insufficient to prove [the defendant] was ‘seized’ within the meaning of the fourth
amendment.” United States v. Werking, 915 F.2d 1404, 1409 (10th Cir. 1990) (citing
United States v. Mendenhall, 446 U.S. 544, 555 (1980)); see also Elliott, 107 F.3d at 814;
United States v. Turner, 928 F.2d 956, 959 (10th Cir. 1991).
We also disagree with Mr. Gabaldon’s contention that his initial refusal to permit
Deputy Schneider to search inside his vehicle indicates the encounter was nonconsensual.
To the contrary, in this case Mr. Gabaldon’s refusal demonstrates he understood that he
could, in fact, disregard Deputy Schneider’s request. We therefore conclude that the line
of questioning posed to Mr. Gabaldon after Deputy Schneider issued the citation occurred
in a consensual encounter, and, accordingly, did not implicate the Fourth Amendment.
The discovery of the marijuana is therefore not “fruit of the poisonous tree.” See United
States v. DeLuca, 269 F.3d 1128, 1132 (10th Cir. 2001) (evidence will be suppressed as
“fruit of the poisonous tree” only upon a determination that the detention was unlawful).
Mr. Gabaldon’s next argument—that despite the legality of the encounter, his
consent to the dog search was not voluntary—fails for similar reasons. Like the
determination whether an encounter is a detention or consensual, the question of whether
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a person freely and voluntarily consents to a search during a consensual encounter with a
police officer is a question of fact to be determined from the totality of circumstances.
United States v. Patten, 183 F.3d 1190, 1194 (10th Cir. 1999). This analysis involves a
two-part test. United States v. Sanchez, 89 F.3d 715, 719 (10th Cir. 1996). “[T]he
government must: (1) proffer clear and positive testimony that consent was unequivocal
and specific and freely and intelligently given and (2) prove that this consent was given
without implied or express duress or coercion.” Id. (quotations omitted).
With respect to the first factor, there is no serious question that Mr. Gabaldon
unequivocally and intelligently consented. When asked if he minded if Deputy Schneider
brought the dog out to check the vehicle, Mr. Gabaldon clearly said no. There is no
evidence in the record indicating that Mr. Gabaldon did not understand the request. As to
the second factor, we noted above that none of the typical indicia of coercion were
present during the dialogue between Deputy Schneider and Mr. Gabaldon and that
Deputy Schneider’s position as a law enforcement officer, alone, is not a sufficient
indicator of coercion. Mr. Gabaldon’s consent to the dog sniff was therefore voluntary.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the District Court’s order denying Mr.
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Gabaldon’s motion to suppress.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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