United States v. Jeffrey Comstock ( 2011 )

FILED
NOT FOR PUBLICATION JUL 18 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10426
Plaintiff - Appellee, D.C. No. 2:08-cr-00348-PMP-RJJ-
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v.
JEFFREY THOMAS COMSTOCK, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Submitted July 14, 2011 **
San Francisco, California
Before: SILVERMAN and GRABER, Circuit Judges, and LYNN, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Barbara M. G. Lynn, United States District Judge for
the Northern District of Texas, sitting by designation.
Jeffrey Comstock appeals the district court’s denial of a motion to suppress
evidence supporting his drug conviction. We have jurisdiction pursuant to 28
U.S.C. § 1291 and affirm.
The district court did not err in holding that two traffic violations provided
probable cause for the trooper to stop the car. Nev. Rev. Stat. §§ 484.361(1)(c) and
484.305(1)(b) (2008); Whren v. United States, 517 U.S. 806, 810-13 (1996).
Comstock’s claim that the trooper unreasonably prolonged the detention is
not supported by the record. During the first five minutes of the stop, the trooper
pulled the car over, requested Comstock’s license and the car registration, had
Comstock exit the vehicle, and explained the traffic violations. The trooper then
made a simultaneous records request for Comstock and the passenger, who was the
registered owner of the car. None of these actions violated Comstock’s Fourth
Amendment rights. Arizona v. Johnson, 129 S. Ct. 781, 786 (2009); United States
v. Diaz-Castaneda, 494 F.3d 1146, 1152-53 (9th Cir. 2007). The records request
took only four minutes, and the trooper did not need separate reasonable suspicion
to ask Comstock about his travel while waiting for an answer to the records check.
United States v. Mendez, 476 F.3d 1077, 1080-81 (9th Cir. 2007). As soon as the
records request was complete, the trooper returned the documents to Comstock and
advised Comstock that he was free to leave. At that point, only nine minutes had
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elapsed. The record does not support Comstock’s argument that the stop was
unnecessarily prolonged.
Comstock’s claim that he was not free to leave at the end of the stop also is
not supported by the record. The trooper returned the documents, told Comstock
that he was free to leave, and allowed Comstock to walk away before asking if he
could ask another question. The trooper did not have his gun drawn and was not
threatening. The mere fact that the trooper asked Comstock’s permission to ask
another question did not render Comstock’s consent involuntary or constitute a
seizure. Martinez-Medina v. Holder, No. 06-75778, 2011 WL 855791, at *4 (9th
Cir. Mar. 11, 2011).
Nor did the district court clearly err by finding that Comstock’s written
consent to search the car was voluntary and knowing. Consent is voluntary if,
under the totality of the circumstances, it was “freely and intelligently given.”
United States v. Basher, 629 F.3d 1161, 1167 (9th Cir. 2011). In this case,
Comstock was not in custody. Rather, he had been told that he was free to leave.
The trooper advised Comstock that he did not need to consent or to sign the form
and that the consent form was not a traffic ticket. Comstock verbally consented
and then read and signed the written consent form. The consent form provided that
“no promises, threats, force, or physical or mental coercion of any kind” had been
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used to obtain consent. Finally Comstock did not appear to be disoriented and was
coherent. The record does not support Comstock’s claims that he was not free to
leave or was too intoxicated to consent to the search of the car.
Finally, the district court did not clearly err by finding that Comstock’s
Miranda waiver was knowing or err by holding that the Miranda waiver was
voluntary. The waiver is voluntary if it was made by “free and deliberate choice
rather than intimidation, coercion, or deception” and knowing if “made with a full
awareness of both the nature of the right being abandoned and the consequences of
the decision to abandon it.” Cox v. Del Papa, 542 F.3d 669, 675 (9th Cir. 2008)
(internal quotation marks omitted). There is no evidence of intimidation, coercion,
or deception by the agents in this case. Comstock waived his Miranda rights at the
beginning of the interview after the agent read Comstock his rights and gave him a
written copy of his rights. Comstock confirmed that he understood his rights,
signed the waiver, and agreed to answer questions. He was coherent, responsive,
aware of his surroundings, and gave a detailed confession. The record does not
support Comstock’s claim that his written waiver was not voluntary or that he was
too intoxicated to waive his rights.
AFFIRMED.
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