United States v. Ramos-Burciaga ( 2020 )

FILED
United States Court of Appeals
Tenth Circuit
December 18, 2020
UNITED STATES COURT OF APPEALS
Christopher M. Wolpert
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-2174
(D.C. No. 1:17-CR-02236-WJ-1)
DULCE ISABEL RAMOS-BURCIAGA, (D. N.M.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TYMKOVICH, Chief Judge, BRISCOE , and MURPHY, Circuit Judges.
I. Introduction
Appellant, Dulce Isabel Ramos-Burciaga, appeals the denial of her motion
to suppress illegal drugs found in her possession. Ramos-Burciaga argues she
was seized at a Greyhound bus station by agents from the Drug Enforcement
Administration (“DEA”) and this illegal detention tainted any subsequent consent
she gave to the search of her backpack. Even assuming she was not seized,
*
This order and judgment is not binding precedent except under the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.
Ramos-Burciaga argues her consent to search was coerced and the district court
clearly erred when it found otherwise.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we hold that Ramos-
Burciaga was not seized and the search of her backpack does not bear any indicia
of unlawful coercion. Accordingly, we affirm the denial of her motion to
suppress.
II. Background
Ramos-Burciaga was traveling by Greyhound bus from Arizona to
Colorado. She exited the bus when it stopped in Albuquerque, retrieved her
luggage, and entered the terminal. As she sat inside the terminal waiting for her
bus to Denver, she was approached by DEA Special Agent Jarrell Perry. Agent
Perry had been given information by a confidential informant that a Greyhound
customer named Dulce Ramos had begun her journey in Glendale, Arizona; was
destined for Denver, Colorado; had paid cash for her ticket; and had checked one
piece of luggage. He testified that, based on this information, Dulce Ramos “was
a person [he] wished to speak with.” Agent Perry also testified, however, that
when he approached Ramos-Burciaga at the bus station, he did not know she was
the woman identified by the informant as Dulce Ramos.
Agent Perry identified himself as a police officer and showed Ramos-
Burciaga his DEA badge. The government submitted a transcript of the exchange
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between Agent Perry and Ramos-Burciaga, the relevant excerpts of which are set
out below:
Agent Perry: Hello, ma’am, how ya doin’ today?
Ramos-Burciaga: Ah…
Agent Perry: I’m a police officer . . .
Ramos-Burciaga: Ah-hah.
Agent Perry: . . . and we check the station here for security. May I
speak to you for a moment?
Ramos-Burciaga: Uh, yeah.
Agent Perry: Do you speak English okay?
Ramos-Burciaga: Yeah.
Agent Perry: Okay. May I speak to you for a moment?
Ramos-Burciaga: Yeah, sure.
....
Agent Perry: Okay. Here’s your ticket back. Do you have ID with
you Miss uh, Ramos?
Ramos-Burciaga: Yeah, but what happen (UI)?
Agent Perry: It’s just for security here at the 1 station cuz Amtrak,
ur, Greyhound doesn’t really have any security so we come down
here and speak with passengers for security reasons.
Ramos-Burciaga: Okay.
....
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Agent Perry. Yeah, we just check the station here. It’s just for
security, speaking to all the passengers.
Ramos-Burciaga: All right.
Agent Perry: Yeah.
Ramos-Burciaga: It’s like, vi, vi, violence here or something?
Agent Perry: Well, no, it’s just that Greyhound uh . . . really doesn’t
have any security when you board. Did you board in Phoenix?
Ramos-Burciaga: Yeah.
Agent Perry: Okay. Uh, there’s not really any security on the busses
so basically you can carry whatever you want on the bus. Weapons,
illegal narcotics, anything illegal. Weapons, hopefully no explosives
but you can . . . anything illegal.
Ramos-Burciaga: Mh-hm.
Agent Perry: You know, there’s no security, so there’s no, no
checks. So sometimes we got a problem with people carryin’ uh . . .
Ramos-Burciaga: Oh, no.
Agent Perry: . . . things on the busses . . .
Ramos-Burciaga: I never do . . .
....
Agent Perry: Okay. Would you consent for a search of your bag for
contraband, ma’am?
Ramos-Burciaga: Yeah, sure.
....
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Agent Perry: Yeah. Do you have any other luggage with you other
than this bag?
Ramos-Burciaga: No, that’s it.
....
Agent Perry: Yeah. How ‘bout this bag over here? Is this your bag
on your back here?
Ramos-Burciaga: Yeah, that’s uh, the (unintelligible) I have.
Agent Perry: Okay. Will you give me permission to search that too?
Ramos-Burciaga: Why?
Agent Perry: Just to make sure you don’t have anything illegal,
ma’am.
Ramos-Burciaga: I don’t, nothing (chuckles).
Agent Perry: Okay.
Ramos-Burciaga: What happen? I’m . . . nervous right now.
Agent Perry: Oh, there’s no reason to be nervous. As I explained to
you over there, it’s just for security at the bus station. Is that a purse
or a backpack?
Ramos-Burciaga: My purse.
Agent Perry: Okay. Okay. Would you give me permission to search
it or no?
Ramos-Burciaga: But why?
Agent Perry: Just to make sure you don’t have anything illegal
inside, ma’am. Let me ask you this, since you’re not answering the
question, can you just open up, show me the contents then . . .
without me searchin’ it? That okay with you?
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Ramos-Burciaga: Yeah, of course.
Agent Perry: Okay.
....
Agent Perry: Can you just take your stuff outta there so I can see in
the bottom?
Ramos-Burciaga: Yeah, sure.
....
Agent Perry: . . . [C]an you take this out so I can see what you have
in the bottom? I can’t see what you have in the bottom of it.
Ramos-Burciaga: Yes.
After Ramos-Burciaga shifted the contents of her backpack, Agent Perry
was able to see an oblong-shaped bundle wrapped in black electrical tape. He
testified that he knew from experience it was a bundle of illegal narcotics.
Ramos-Burciaga was immediately arrested. She was subsequently charged with
one count of possession with the intent to distribute one kilogram or more of
heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Ramos-Burciaga
moved to suppress the heroin, arguing it was discovered during an
unconstitutional search after she was illegally seized. 1 The district court denied
the motion to suppress the drugs, finding the encounter between Ramos-Burciaga
1
Ramos-Burciaga also moved to suppress statements she made during a
custodial interrogation. The district court ruled in favor of Ramos-Burciaga and
the statements were suppressed.
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and Agent Perry was consensual and further finding that Ramos-Burciaga
voluntarily consented to the search of her backpack. After her motion was
denied, Ramos-Burciaga entered a conditional guilty plea, reserving the right to
appeal the district court’s denial of her motion to suppress.
III. Discussion
A. Seizure
The Fourth Amendment protects “[t]he right of the people to be secure in
their persons . . . against unreasonable . . . seizures.” U.S. Const. amend. IV.
When this court reviews “the denial of a motion to suppress, we accept the
district court’s factual findings and determinations of witness credibility unless
they are clearly erroneous.” United States v. Moran, 503 F.3d 1135, 1139 (10th
Cir. 2007) (quotation omitted). “[T]he ultimate issue of whether a seizure
occurred is a question of law, which we review de novo.” United States v.
Guerrero, 472 F.3d 784, 786 (10th Cir. 2007).
There are three types of police-citizen encounters: (1) consensual
encounters, which do not implicate the Fourth Amendment; (2) investigative
detentions, which must be justified by reasonable suspicion of criminal activity;
and (3) arrests, which must be justified by probable cause. See United States v.
Roberson, 864 F.3d 1118, 1121 (10th Cir. 2017). According to Ramos-Burciaga,
her encounter with Agent Perry at the Greyhound bus terminal was an
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investigative detention not justified by reasonable suspicion. The district court
determined the encounter was consensual.
With respect to consensual encounters, it is well-established that “officers
do not violate the Fourth Amendment’s prohibition on unreasonable seizures
merely by approaching individuals on the street or in other public places and
putting questions to them if they are willing to listen . . . provided they do not
induce cooperation by coercive means.” United States v. Drayton, 536 U.S. 194,
200–01 (2002) (citations omitted). When evaluating “whether a particular
encounter constitutes a seizure, a court must consider all the circumstances
surrounding the encounter to determine whether the police conduct would have
communicated to a reasonable person that the person was not free to decline the
officers’ requests or otherwise terminate the encounter.” Florida v. Bostick, 501
U.S. 429, 439 (1991). “So long as a reasonable person would feel free to
disregard the police and go about his business, the encounter is consensual and
no reasonable suspicion is required.” Id. at 434 (citation omitted). The
reasonable person inquiry “focuses on the objective viewpoint of one in the
defendant’s circumstances.” United States v. Carbajal–Iriarte, 586 F.3d 795,
801 (10th Cir. 2009). The following facts are relevant to a determination of
whether an encounter is consensual:
(1) the threatening presence of several officers; (2) the brandishing
of a weapon by an officer; (3) physical touching by an officer;
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(4) aggressive language or tone of voice by an officer indicating
compliance is compulsory; (5) prolonged retention of an individual’s
personal effects; (6) a request to accompany an officer to the police
station; (7) interaction in a small, enclosed, or non-public place; and
(8) absence of other members of the public.
United States v. Rogers, 556 F.3d 1130, 1137–38 (10th Cir. 2009). This list of
facts “is not exhaustive, nor is any one factor dispositive.” Id. at 1138. “We
review de novo the relevant circumstances to determine whether an interaction
between an individual and a law enforcement officer is a consensual encounter
that does not implicate the Fourth Amendment.” Id. at 1137 (quotation and
citation omitted).
Ramos-Burciaga challenges several aspects of the district court’s ruling.
According to her, the court’s errors included finding that: (1) the agents did not
stand in threatening positions, (2) Agent Perry did not use assertive language or
gestures, (3) Agent Perry did not deceive her by representing he was conducting a
security check, and (4) she was not targeted for questioning. The record,
however, contains sufficient evidence to support all these findings.
There is no dispute that at least two DEA agents were involved in the
encounter. While Agent Perry was searching Ramos-Burciaga’s suitcase, Agent
Larry Pantoja approached the pair and stood behind Ramos-Burciaga who was
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seated. 2 Although Ramos-Burciaga claims she was unable to leave the area
because Agent Perry stood directly in front of her and Agent Pantoja directly
behind her, Agent Perry testified that neither he nor Agent Pantoja obstructed
Ramos-Burciaga’s “ingress or egress” and did not physically touch her. Thus, the
district court’s finding that “neither agent blocked [Ramos-Burciaga’s] ability to
leave, and they were not in threatening positions” is supported by Agent Perry’s
testimony.
Likewise, there is support for the district court’s finding that Agent Perry
did not use assertive language or gestures. Ramos-Burciaga replicated Agent
Perry’s gestures when she testified at the suppression hearing, and the district
court observed the gestures. 3 Thus, the court’s finding that Agent Perry’s hand
gestures were not threatening to a reasonable person in Ramos-Burciaga’s
position was based on its observations of Ramos-Burciaga’s hand movements
during her testimony. The district court was not required to accept her subjective
interpretation of Agent Perry’s presence as “imposing.” Further, the district
2
Ramos-Burciaga has not identified a single case standing for the
proposition that the mere presence of more than one officer is sufficient, standing
alone, to establish a “threatening presence.” Instead, in an analogous context, this
court concluded a similar police-citizen encounter was non-coercive. See United
States v. Benard, 680 F.3d 1206, 1211 (10th Cir. 2012).
3
Ramos-Burciaga testified Agent Perry “was gesturing with his hands, like
he was expecting me to give [my identification] to him.” While giving this
testimony, the record shows that Ramos-Burciaga mimicked Agent Perry by
putting her “open palm out in front of her.”
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court noted it weighed the testimony of Ramos-Burciaga and Agent Perry and
listened to the audio recording of the encounter before finding that Agent Perry
“did not use any threatening gestures or intimidating body language.” The court
specifically found that, based on the audio, Agent Perry’s demeanor was “calm
and respectful,” undermining Ramos-Burciaga’s description of his overall
conduct as intimidating and coercive.
Ramos-Burciaga also challenges the district court’s finding that Agent
Perry did not act deceptively by telling her he was conducting a security check.
Based on the transcript of the encounter, the district court found Agent Perry
truthfully told Ramos-Burciaga he speaks with passengers at the bus terminal to
determine if they are boarding busses with “anything illegal,” including weapons
and narcotics. Ramos-Burciaga, nonetheless, argues Agent Perry was not
checking passengers randomly, as he told her. Rather, he specifically targeted
her for an investigative detention based on information he received from a
confidential informant. Again, the district court’s finding to the contrary that
Ramos-Burciaga was not “targeted” is supported by Agent Perry’s testimony that
he did not know Ramos-Burciaga’s name when he approached her but learned it
only when she presented her identification. Ramos-Burciaga’s argument that the
agents had a “particularized focus” on her and she was “the sole focus of two
agents’ attention in a crowded bus station,” is not persuasive. First, as the
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district court found, Agent Perry did not focus his attention on her because he did
not know who she was. Second, based on the record in this matter, the fact
Agent Perry and Agent Pantoja spoke only to Ramos-Burciaga, instead of
multiple passengers, would not lead a reasonable person in her position to believe
the agents suspected her of committing a crime. Ramos-Burciaga does not
explain how, or if, she knew she was the only passenger Agent Perry had
approached in the terminal. Thus, we are not persuaded the district court clearly
erred in finding Agent Perry was not deceptive and did not give Ramos-Burciaga
the impression he suspected she was carrying illegal drugs.
Ramos-Burciaga also asserts Agent Perry led her to believe she was
required to speak to him, in the same way she would be required to submit to a
security check conducted by an agent with the Transportation Security
Administration (“TSA”). She argues her belief is supported by a question she
posed to Agent Perry, asking why she had been stopped. The record, however,
confirms that Agent Perry displayed a badge showing he was an agent with the
DEA, not the TSA, and specifically told Ramos-Burciaga that Greyhound does
not screen passengers when they board. In fact, Agent Perry repeated the
statement several times, telling Ramos-Burciaga that Greyhound “doesn’t really
have any security so we come down here and speak with passengers for security
reasons” and “there’s not really any security on the busses so basically you can
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carry whatever you want on the bus.” This evidence supports the district court’s
finding that Agent Perry’s statements, including his response to her question, 4 did
not deceptively convey to Ramos-Burciaga that she was required to speak to him
before being permitted to board her bus to Denver.
Finally, Ramos-Burciaga argues she has limited proficiency in English,
increasing the coerciveness of the encounter. The district court, however,
listened to the recording of the encounter and found her responses and questions
were appropriate and “indicate that she understood what she was being asked.”
Ramos-Burciaga does not identify any portion of the conversation demonstrating
this finding is clearly erroneous and the transcript does not support her assertion
she was “struggling to grasp what agents were saying and to respond
appropriately.” Appellant’s Opening Br. at 13.
Having determined that none of the district court’s factual findings are
clearly erroneous, we apply those findings to conclude Ramos-Burciaga was not
4
The audio recording of the encounter was transcribed by the government.
Ramos-Burciaga argues she asked Agent Perry, “What happened that I was
stopped?” but the transcript incorrectly indicates the second portion of her
question was unintelligible. The district court stated “[t]he audio recording of
what [Ramos-Burciaga] said is not clear, and it is difficult to discern what [she]
said after ‘what happened.’” Based on that uncertainty and Agent Perry’s
testimony that he did not recall Ramos-Burciaga asking if she was stopped, the
district court declined to find that Ramos-Burciaga asked why she was stopped.
In evaluating her claim that Agent Perry’s response to her question led her to
believe she was not free to leave, the district court assumed, but did not find, that
Ramos-Burciaga asked why she was stopped.
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seized. Based on the relevant circumstances, no reasonable person in her
position would believe she was not free to terminate the encounter. Agent Perry
approached her in a public place with other people present 5; he spoke calmly and
asked Ramos-Burciaga for permission to speak to her rather than demanding that
she interact with him; Agent Perry and Agent Pantoja were in street clothes, did
not display any weapons, and did not touch Ramos-Burciaga or make threatening
gestures; neither Agent Perry nor Agent Pantoja impeded Ramos-Burciaga’s
movement; Agent Perry truthfully told Ramos-Burciaga he was conducting a
security check because Greyhound does not check passengers’ possessions before
they board the busses; and there was no language barrier preventing Ramos-
Burciaga from understanding Agent Perry’s questions and explanations.
Only two relevant factors lean in Ramos-Burciaga’s favor: Agent Perry did
not tell her she was free to leave and more than one officer was present during
the encounter. But these factors, when considered with all the others, provide
only weak support for her position. See United States v. Thompson, 546 F.3d
1223, 1228 (10th Cir. 2008) (holding the failure to inform a defendant of her
right to terminate the encounter “carr[ies] little weight in our analysis”); United
5
See United States v. Thompson, 546 F.3d 1223, 1227 (10th Cir. 2008)
(“Both the Supreme Court and this Court have held that the presence of other
citizens during a police encounter is one factor suggesting its consensual
nature.”).
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States v. Benard, 680 F.3d 1206, 1211 (10th Cir. 2012) (concluding the presence
of two officers did not create a coercive environment when the encounter
“occurred on a public street in broad daylight”). Accordingly, we affirm the
district court’s ruling that Ramos-Burciaga was not seized at any time before her
arrest.
B. Consent to Search
Ramos-Burciaga also argues the consent she gave to search her backpack
was not voluntary. Although a warrant is generally required before officers may
conduct a search, no warrant is necessary if the owner of the property voluntarily
consents. Florida v. Jimeno, 500 U.S. 248, 250–51 (1991). “[T]he question
whether a consent to a search was in fact ‘voluntary’ or was the product of duress
or coercion, express or implied, is a question of fact to be determined from the
totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227
(1973). The district court’s finding of voluntariness is reviewed for clear error.
United States v. Thompson, 524 F.3d 1126, 1133 (10th Cir. 2008).
Factors to consider within the federal totality of the circumstances
test include physical mistreatment, use of violence, threats, promises,
inducements, deception, trickery, or an aggressive tone, the physical
and mental condition and capacity of the defendant, the number of
officers on the scene, and the display of police weapons. Whether
an officer reads a defendant his Miranda rights, obtains consent
pursuant to a claim of lawful authority, or informs a defendant of his
or her right to refuse consent, also are factors to consider in
determining whether consent given was voluntary under the totality
of the circumstances.
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United States v. Sawyer, 441 F.3d 890, 895 (10th Cir. 2006) (citations omitted).
As we have already concluded, the encounter occurred in a public place
and Agent Perry did not threaten Ramos-Burciaga, deceive her, use an aggressive
tone, or display his weapon during the encounter. The district court’s finding
that Ramos-Burciaga’s identification and bus ticket were returned to her
immediately is not challenged. We have further concluded Ramos-Burciaga was
not seized at the time she gave her consent for Agent Perry to search her
backpack and, thus, the consent was not tainted by an illegal seizure. Cf. United
States v. Contreras, 506 F.3d 1031, 1037 (10th Cir. 2007) (“[D]etention is only
one factor to be considered in determining whether consent was voluntarily and
freely given based on the totality of the circumstances.”). Her remaining
argument—that Agent Perry coerced her into consenting by persistently
requesting permission to search her luggage—is belied by the transcript of the
encounter.
Agent Perry asked Ramos-Burciaga twice if he could search her backpack;
both times she responded by asking him why he wanted to search. Each time
Agent Perry truthfully told her his objective was to make sure she did not have
“anything illegal” in the backpack. The district court acknowledged Ramos-
Burciaga “twice declined to consent to his search of the backpack,” but also
found “she did not answer his first two requests to search her backpack.” Agent
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Perry then asked Ramos-Burciaga if she would open the backpack herself and
allow him to view its contents. She responded, “Yeah, sure.” Based on these
facts, the district court found Agent Perry did not coerce Ramos-Burciaga into
opening the backpack herself and showing him its contents when he proposed
that approach.
Under all the circumstances, as set out above, there is no clear error in the
district court’s finding that Agent Perry’s “alternative request for [Ramos-
Burciaga] to open her backpack did not become coercive.” Ramos-Burciaga
agreed without hesitation to open the backpack herself when Agent Perry
proposed this approach, despite previously questioning Agent Perry when he
asked to open it himself. This is not a situation where Ramos-Burciaga clearly
expressed her desire not to cooperate by resisting persistent demands from Agent
Perry. See Donahue v. Wihongi, 948 F.3d 1177, 1195 (10th Cir. 2020). Having
reviewed the entire record in light of the relevant circumstances, we discern no
reversible error in the district court’s finding that the government met its burden
of showing Ramos-Burciaga voluntarily consented to the search of her backpack.
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IV. Conclusion
We affirm the district court’s ruling that Ramos-Burciaga voluntarily
consented to the search of her backpack during the course of a consensual
encounter.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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