United States v. Velazquez , 349 F. App'x 339 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
October 16, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 08-3318
v. (D.C. No. 5:07-CR-40019-JAR)
(D. Kan.)
JOSE H. VELAZQUEZ,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, HOLLOWAY, and GORSUCH, Circuit Judges.
Jose Velazquez was indicted on one count of possession of cocaine with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Following the district
court’s denial of his pretrial motion to suppress evidence, Mr. Velazquez pled
guilty and was sentenced, subject to a reservation of rights permitting him to
appeal the district court’s suppression ruling. That right he pursues now. For
substantially the reasons given by the district court, we believe his suppression
motion was properly denied and affirm.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
This case began when Kansas Highway Patrol Troopers Jerett Ranieri and
Andrew Dean stopped Mr. Velazquez’s car on Interstate 70 after seeing that
license plates were improperly displayed and witnessing him make an improper
lane change. Trooper Ranieri approached the passenger’s side of the vehicle,
explained the reason for the stop, and asked Mr. Velazquez for his driver’s
license, registration, and insurance. While Mr. Velazquez looked for these items,
the trooper asked him some questions about his travel plans. Mr. Velazquez
replied that he had come from California, but then offered different versions
about where he was headed – first saying he was traveling to St. Louis, Missouri,
then stating that his destination was St. Louis, Illinois. At the same time, the
trooper detected a strong odor of air freshener coming from the vehicle, which he
thought, together with Mr. Velazquez’s varying accounts of his itinerary and other
factors, suspiciously suggestive of drug trafficking activity. Adding to this, the
registration that Mr. Velazquez originally gave the trooper did not match the tag
on the vehicle. Although Mr. Velazquez subsequently gave Trooper Ranieri a
registration that matched the tag, the trooper thought that Mr. Velazquez’s
possession of two tags for the vehicle might have indicated that he “was maybe
crossing the Border” between the United States and Mexico, “and he didn’t want
to have the tags that he was crossing the Border on.” R. Vol. II at 65-66.
After receiving Mr. Velazquez’s paperwork, Trooper Ranieri returned to his
car and ran a criminal history check. The Kansas Highway Patrol dispatch
-2-
advised the trooper that Mr. Velazquez had an extensive drug trafficking history.
This history included an arrest for transporting large amounts of marijuana across
the border between the United States and Mexico. After finishing his checks,
Trooper Ranieri walked back to Mr. Velazquez’s car, returned Mr. Velazquez’s
paperwork, and indicated that he had issued him only a traffic warning. The
trooper then said: “You guys take care. Thanks for your time.” R. Vol. I at 98.
After this, Trooper Ranieri took a few steps away from Mr. Velazquez’s car, and
toward his own car. But then Trooper Ranieri returned to Mr. Velazquez’s car
and asked, “There’s uh, nothing–no illegal drugs or anything in your trunk?” R.
Vol. II at 68-69. Mr. Velazquez answered no. Trooper Ranieri asked if he could
“take a look and check,” R. Vol. II at 110, and Mr. Velazquez agreed, popping
open the trunk. Only after Mr. Velazquez opened his trunk did Trooper Ranieri’s
partner, Trooper Dean, exit the pair’s police cruiser and assist with the search.
The search revealed 19.05 kilograms of cocaine. Mr. Velazquez was
arrested and, after receiving his Miranda warnings, admitted that he knew he was
transporting illegal drugs for delivery in St. Louis. A Kansas grand jury indicted
Mr. Velazquez on one count of possession of cocaine with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1).
Before the district court, Mr. Velazquez moved to suppress the evidence
taken from his vehicle, as well as his post-arrest inculpatory statements. The
district court denied Mr. Velazquez’s motions, finding that the traffic stop was
-3-
valid, that his acquiescence to the search was voluntary and part of a consensual
encounter, and that, in any event, reasonable suspicion of drug trafficking existed
to support the detention. Thus, the court concluded that neither the drugs nor the
statements should be suppressed. After the district court denied Mr. Velazquez’s
motions, he entered a conditional plea of guilty, preserving his right to appeal the
district court’s disposition of his suppression motions.
Before us, Mr. Velazquez does not contest his initial traffic stop. Neither
does he contest the voluntariness of his incriminating statements or his consent to
the search of his vehicle. He does seek suppression of his statements and the
drugs found during the search, however, on the basis that Trooper Ranieri
unlawfully continued his detention in violation of the Fourth Amendment after the
initial traffic stop ended. Essentially, then, he contends suppression is
appropriate because all of the incriminating evidence against him emerged only
by dint of an unlawfully extended seizure. In assessing this argument, we review
questions of law de novo but accept the district court’s factual findings unless
clearly erroneous, and we are obliged to view the evidence in the light most
favorable to the government, as the prevailing party. See United States v.
Alcaraz-Arellano, 441 F.3d 1252, 1258 (10th Cir. 2006).
Everyone before us concedes that the search of Mr. Velazquez’s car and his
incriminating statements came after his traffic stop was completed. After
finishing a traffic stop, an officer’s further seizure or search of a driver is
-4-
impermissible under the Fourth Amendment unless: (1) the driver voluntarily
consents to it; or (2) during the course of the stop, the officer acquires an
objectively reasonable and articulable suspicion that the driver is engaged in
illegal activity. United States v. Sandoval, 29 F.3d 537, 540 (10th Cir. 1994).
The government argues that both of these conditions were met in this case, and
the district court so held. Because we agree that Mr. Velazquez voluntarily
consented to additional questioning and to the search of his vehicle, and because
that alone is sufficient to dispose of this case, we have no need to reach the
question whether his continued detention was also supported by reasonable
suspicion of drug trafficking. We likewise have no reason to reach the
government’s additional argument that Mr. Velazquez’s continued detention was
justified because probable cause existed to arrest him for a traffic infraction.
A traffic stop may become a consensual encounter if the officer returns the
driver’s license and registration and proceeds to ask questions “without further
constraining the driver by an overbearing show of authority.” United States v.
Bradford, 423 F.3d 1149, 1158 (10th Cir. 2005). Under this standard, “an officer
is not required to inform a suspect that she does not have to respond to
questioning or that she is free to leave.” Id. But 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 indicating that
compliance might be compelled may suggest that the detention has not ended.”
-5-
United States v. Anderson, 114 F.3d 1059, 1064 (10th Cir. 1997) (internal
quotation mark omitted).
We agree with the district court that we are bound by our precedent to
conclude that Mr. Velazquez’s discussion with Trooper Ranieri, after receiving
his warning, was consensual. The district court found that Trooper Ranieri
returned Mr. Velazquez’s documentation, told him to take care, walked briefly
away from the vehicle, and then stepped forward again before asking Mr.
Velazquez if he had anything illegal in the car. Although Trooper Ranieri did not
specifically inform Mr. Velazquez that he was free to leave, he did say, “You
guys take care. Thanks for your time” and took a few steps away from the car.
We cannot say that any of these factual findings was clearly erroneous, and we
have repeatedly found facts along these lines sufficient to suggest an end to the
traffic stop detention and sufficient to signal that subsequent conversation with
the officer is consensual. See, e.g., United States v. Ledesma, 447 F.3d 1307,
1315 (10th Cir. 2006) (“Phrases like ‘thank you’ and ‘have a safe one’ signal the
end of an encounter, and afford a defendant an opportunity to depart. Although
[the officer] did not explicitly inform [the defendant] and her passenger that they
were free to leave, [his] words of farewell suggested that any subsequent
discussion was consensual.”); United States v. Wallace, 429 F.3d 969, 975 (10th
Cir. 2005) (initial detention transformed into a consensual encounter when trooper
returned driver’s paperwork, issued a citation, and said, “That’s all I’ve got”);
-6-
Anderson, 114 F.3d at 1064 (detention became consensual when trooper handed
driver a warning citation and returned his papers, even though trooper did not tell
driver he was free to go); United States v. Elliott, 107 F.3d 810, 814 (10th Cir.
1997) (detention ended and encounter became consensual when officer returned
documentation, even though officer never told driver he was free to go); United
States v. Werking, 915 F.2d 1404, 1409 (10th Cir. 1990) (because initial detention
ended when officer returned license and registration, subsequent questioning was
consensual, even if officer did not tell driver he was free to go).
As in Werking, the only real show of authority in this case was Trooper
Ranieri’s police uniform and patrol car with still-flashing lights. Although we
have recognized that a prudent citizen very well may not be inclined to leave the
presence of a uniformed police officer on the side of a public highway after a
lawful stop, we have also previously held that such facts alone do not create the
level of coercion required to constitute a “seizure” within the meaning of the
Fourth Amendment. Indeed, at oral argument, counsel conceded that this case
and Werking are virtually on “all-fours.” As a panel of this court, we are of
course bound to apply this court’s precedents, not revisit them.
Of course, our precedent would suggest a different result if there were
some suggestion that Trooper Ranieri had, for example, displayed his weapon,
physically touched or threatened Mr. Velazquez, leaned on Mr. Velazquez’s car,
or used a commanding tone of voice. See, e.g., Elliott, 107 F.3d at 814; United
-7-
States v. Turner, 928 F.2d 956, 959 (10th Cir. 1991). But no such facts are
present in this record. Neither does the fact that there was more than one officer
present at the scene, without more, suffice to render the encounter non-consensual
under our precedent, particularly given that Trooper Dean remained in his car
until after Mr. Velazquez authorized the contested search. See United States v.
Chavira, 467 F.3d 1286, 1291 (10th Cir. 2006) (holding that there was no
coercive show of authority when two officers were present, but one stayed in his
patrol car until after the trooper obtained consent to search); Wallace, 429 F.3d at
975 (finding encounter consensual despite the presence of two troopers because
“only the original trooper asked the driver for his consent”). We are therefore
obliged to conclude that, once Trooper Ranieri returned Mr. Velazquez’s
documents, told him to “take care,” and stepped away from the vehicle, the
detention became “an ordinary consensual encounter between a private citizen and
a law enforcement official.” Werking, 915 F.2d at 1408.
The district court’s denial of Mr. Velazquez’s motion to suppress is
affirmed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
-8-