United States v. Criollo-Casteneda , 89 F. App'x 173 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 17 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 03-4136
vs. (D.C. No. 2:02-CR-372-DAK)
(D. Utah)
JOEL CRIOLLO-CASTENEDA,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
BRISCOE, Circuit Judge.
Defendant-Appellant Joel Criollo-Casteneda entered a conditional plea to
possession of 500 grams or more of methamphetamine with intent to distribute, 21
U.S.C. § 841(a)(1), and was sentenced to 70 months imprisonment and three years
supervised release. He now appeals the denial of his motion to suppress, arguing
that the consent search of his vehicle was unlawful because it was the product of
an unlawful detention. We affirm.
*
This order and judgment is not binding precedent, except under the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.
Background
On May 15, 2002 at approximately 1:10 p.m. while traveling through Utah,
Mr. Criollo-Casteneda was clocked on radar going 83 miles per hour in a 75-mile-
per-hour zone by Utah Highway Patrol Sergeant Paul Mangelson. The officer
informed Mr. Criollo-Casteneda that he had been pulled over for speeding and the
officer asked to see his driver’s license. Mr. Criollo-Casteneda informed the
officer that he did not have a license. He did, however, produce a registration
indicating that the vehicle belonged to one Zaira Berenience Corravubuios. The
officer noticed a strong minty odor emanating from the vehicle, though he could
detect no obvious source. The officer testified that such an odor often masks the
odor of narcotics. The officer also noticed a pen cap with no corresponding pen,
some used napkins on the passenger seat, and a cell phone. According to the
officer, the pen cap, napkins and cell phone were indicative of narcotics
consumption. The officer also observed that the vehicle’s ignition key was on a
key ring by itself with a tag like car dealers use to track inventory. The officer
thought that the vehicle might be stolen or in the wrong hands, but he did not run
a check on the vehicle to see if it was stolen. Finally, the officer noticed that Mr.
Criollo-Casteneda’s eyes appeared glassy and bloodshot, suggesting personal
consumption.
The officer suspected that Mr. Criollo-Casteneda may have been using or
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transporting illegal drugs. Accordingly, before returning the vehicle registration
or otherwise advising Mr. Criollo-Casteneda of the consequences of driving
without a license, the officer requested permission to search the vehicle. Mr.
Criollo-Casteneda gave his consent to search and did not object at any time while
the search occurred. The search revealed two packages of methamphetamine
(smeared with toothpaste) hidden in the rear quarter panel of the vehicle. Mr.
Criollo-Casteneda was arrested and advised of his rights.
After concluding that Mr. Criollo-Casteneda had standing to challenge the
search of the vehicle, the district court concluded that Mr. Criollo-Casteneda gave
voluntary consent to the search of his vehicle and that search did not exceed the
scope of that consent. The district court prefaced its holding by stating that
“[t]here is nothing to suggest that the initial stop or subsequent detention of
Criollo-Casteneda was improper, and Defendant does not contend otherwise.” I
R. Doc. 19 at 5. The district court relied upon the defendant’s concession at oral
argument that “we do not challenge the detention of the defendant following the
stop of the vehicle” based upon defendant’s operating the vehicle in violation of
Utah Code. II Supp. R. at 10.
Discussion
The parties disagree about the standard of review. Ordinarily, we review
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the findings of the district court on a motion to suppress in the light most
favorable to the prevailing party; Fourth Amendment reasonableness is reviewed
de novo. United States v. Tueller, 349 F.3d 1239, 1242 (10th Cir. 2003). The
government suggests that our review should be for plain error because (1) the
detention argument now raised was not raised by the defendant in his motion to
suppress or at the suppression hearing, and (2) the defendant actually conceded
the detention issue at the suppression hearing. We agree.
We recently held “that when the district court explicitly resolves an issue
of law on the merits, the appellant may challenge that ruling on appeal even if he
failed to raise the issue in district court,” and the ordinary standard of review
applies, not plain error. United States v. Hernandez-Rodriguez, 352 F.3d 1325,
1328 (10th Cir. 2003). Here, the district court remarked that nothing suggested a
constitutionally suspect initial stop or detention, but it is clear that it did not
evaluate this legal issue, nor develop additional facts that would have assisted in a
more comprehensive resolution. There simply was no reason for the district court
to go further given the Defendant’s concession of this issue. Our review is thus
for plain error–requiring “(1) an error; (2) that is plain or obvious; (3) that affects
substantial rights, and (4) that seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. at 1329.
According to Mr. Criollo-Casteneda, his continued detention beyond that
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period necessary to effectuate the original purpose of the traffic stop constituted
an illegal seizure which tainted any consent. See United States v. Melendez-
Garcia, 28 F.3d 1046, 1054 (10th Cir. 1994). When a police officer stops a
vehicle for a suspected traffic violation, a seizure has occurred within the
meaning of the Fourth Amendment. Such stops are considered akin to
investigative detentions and must be premised on a reasonable suspicion that the
motorist has violated a provision of the applicable motor vehicle code. See
United States v. Ramstad, 308 F.3d 1139, 1144 (10th Cir. 2002). The Supreme
Court has interpreted the Fourth Amendment as requiring that such investigative
detentions “last no longer than necessary to effectuate the purpose of the stop.”
Florida v. Royer, 460 U.S. 491, 500 (1983).
An officer engaged in a routine traffic stop may “request a driver’s license
and vehicle registration, run a computer check, and issue a citation.” United
States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir. 1998). Extending the length
of the detention beyond the time necessary to perform these functions requires
either that the encounter be consensual in nature or that the officer have an
objectively reasonable suspicion of criminal activity. Id. Refining this
requirement, we have held that a traffic stop cannot be transformed into a
consensual encounter while the officer remains in possession of the motorist’s
paperwork because the motorist would not feel free to terminate the encounter.
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United States v. McKneely, 6 F.3d 1447, 1451 (10th Cir. 1993).
Mr. Criollo-Castaneda argues that the officer’s request to search the vehicle
exceeded the permissible scope of the traffic stop and thus constituted an illegal
detention. Specifically, relying on Royer, Mr. Criollo-Casteneda suggests that the
permissible scope of his detention extended only so far as to allow the officer to
process violations for speeding and driving without a license. Mr. Criollo-
Casteneda contends that when the officer, in the absence of reasonable suspicion
and while still in possession of the vehicle registration, requested permission to
search the car, he exceeded the permissible scope of the detention, thereby
rendering it illegal. Accordingly, he argues, the consent to search is tainted by an
illegal detention and the products of the search should be suppressed.
The government concedes that Mr. Criollo-Casteneda’s detention was not
consensual because the officer had possession of the registration. Indeed, the
officer testified that prior to his arrest, Mr. Criollo-Casteneda “wasn’t going to
drive the vehicle away” due to the absence of a driver’s license and the officer’s
suspicion that he was impaired. II Supp. R. at 20-21. The government argues
that the officer had reasonable and articulable suspicion to detain the Defendant
beyond the initial stop and ask for permission to search the vehicle. We consider
the totality of the circumstances based on the record furnished to us. United
States v. Arvizu, 534 U.S. 266, 273 (2002). We agree with the government.
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Although we may question the persuasive value of a pen cap without a pen, used
napkins without surrounding fast food wrappers, and a cell phone standing alone,
when combined with a strong mint odor without any obvious source and the
appearance of Mr. Criollo-Casteneda’s eyes, the totality of the circumstances
adequately support reasonable suspicion. II Supp. R. at 16, 19. We hold that
there was no error, let alone plain error in the district court’s denial of the
suppression motion. Thus, the judgment is
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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No. 03-4136, United States v. Criollo-Casteneda
BRISCOE, Circuit Judge, concurring:
I concur in the order and judgment. I write separately only to highlight that
an individual can voluntarily consent to a search even though the individual is
subject to a non-consensual detention.
To the extent defendant is arguing that a voluntary and valid consent cannot
be given by a person being legally detained, he is wrong. A “[v]alid consent can
be given by a person being detained.” United States v. Soto, 988 F.2d 1548, 1557
(10th Cir. 1993). See also United States v. Orrego-Fernandez, 78 F.3d 1497 (10th
Cir. 1996) (discussing Soto and reaffirming that a person being detained on side
of highway is capable of voluntarily consenting to search of vehicle). “The
voluntariness of consent must be determined from the totality of the
circumstances, and the government bears the burden of proof on the issue.” Soto,
988 F.2d at 1557. To sustain its burden, “the government must show that there
was no duress or coercion, express or implied, that the consent was unequivocal
and specific, and that it was freely and intelligently given.” Id. Here, the district
court found that defendant's consent was voluntarily given, and this court “must
accept that finding unless it is clearly erroneous.” Id.Defendant does not argue that the district court's finding of voluntary
consent was clearly erroneous and there would be no merit to such argument. No
threat or overt coercion was applied to obtain consent. Only one officer was
present and the encounter took place in public view. The officer requested
permission to search the car only one time and there is no evidence that he used a
threatening tone or demeanor. Defendant does not argue on appeal that the scope
of the search exceeded his consent.
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