Opinion
Case No. 02-40127-01-SAC
December 19, 2002
MEMORANDUM AND ORDER
This case comes before the court on defendant Alfredo Roman-Roman's application and suggestions in support to suppress evidence. (Dk. 18). The government opposes the motion. Having reviewed the pleadings and evidence admitted at the evidentiary hearing held on December 12, 2002, the court issues this order.
Facts
The facts are few and undisputed. On October 17, 2002 at approximately 10:20 a.m., Kansas State Trooper Andrew Dean was on routine patrol in Geary County, Kansas on Interstate 70 when he observed a blue Chrysler mini-van move from the passing lane into the other eastbound lane in front of another vehicle. Trooper Dean determined that the mini-van had done so without a safe distance between the two vehicles, and had then failed to maintain a single lane. Accordingly, Trooper Dean stopped the mini-van. Defendant does not contest the legality of the initial stop.
After stopping the mini-van, Trooper Dean approached the passenger side of the vehicle and spoke to the driver, who was identified by her California driver's license as Rosa Florez. Trooper Dean advised her of the purpose of the stop, and asked for relevant documentation. Ms. Florez advised that she was driving a rental vehicle, and in response to Trooper Dean's questions, told him that she and her passenger, Alfredo Roman-Roman, were traveling from California to Alabama to visit friends or family. She also stated that the passenger, who was also identified by his California driver's license, did not speak English.
The requested documentation was then produced, including a rental agreement showing that the mini-van had been rented by Alfredo Roman-Roman in Los Angeles, California two days earlier. Trooper Dean noticed that both adults appeared to be "very nervous," and that two small children were in the vehicle. After returning to his vehicle, reviewing the documents, receiving criminal history reports, and preparing the warning citation, Trooper Dean returned to the van and asked the occupants why they had taken I-70 rather than I-40, which he knew to be a more direct route between Los Angeles and Alabama. Ms. Florez replied that Mr. Roman-Roman had been driving, and translated the question to him. He replied that this was the route "they" had told him to take. Trooper Dean then returned the documentation to the driver and gave them a warning citation for making an improper lane change and failing to maintain a single lane of traffic. He then advised them: "Well, you guys are free to go — thanks for your time, O.K.?"
Trooper Dean then immediately asked: "Do you mind if I ask you a couple more questions, though, before you get going?" Ms. Florez replied that she did not. Trooper Dean then asked: "You guys don't have any drugs or guns or anything in the car, do you?" to which Ms. Florez replied negatively. Trooper Dean then asked, "Do you mind if we take a look?" and both occupants indicated their consent to that request. Trooper Dean asked them to step out of the vehicle, which they did, removing the children as well.
During the subsequent search of the vehicle, Trooper Jimerson, Trooper Dean's supervisor who had been riding with him, noticed that where the molding met the roof line, it was "curled up." Because the vehicle was new and a rental, he believed, based upon his experience, that someone had removed the molding and panel for purposes of concealing illegal substances or other contraband. He then removed the loose molding, pulled the back side panels out, and found approximately 69 pounds of methamphetamine wrapped in cellophane bundles hidden in the wall panels of the mini-van.
Trooper Jimerson testified that in every case (numbering 10 to 20) in which he had seen evidence that the molding or paneling had been tampered with on rental cars, he had found drugs or drug money concealed behind the panels.
Legality of Detention
Defendant does not challenge either the legality of the initial stop or the legality of the detention preceding Trooper Dean's return of the driver's documents to her. Defendant's sole assertion in his brief is that the Trooper's detention of defendant beyond the purpose of the initial stop is illegal, and that his consent was not sufficiently attenuated from his illegal detention to have been given freely and voluntarily.
General Law — Scope of Detention
The Fourth Amendment protects individuals from unreasonable searches and seizures. See U.S. Const. amend IV. An unconstitutional seizure may render an otherwise constitutional search invalid under the Fourth Amendment if the search resulted from the illegal seizure or detention. United States v. Miller, 84 F.3d 1244, 1250 (10th Cir.), cert. denied, 519 U.S. 985 (1996), overruled on other grounds, United States v. Holland, 116 F.3d 1353, 1357-59 (10th Cir.), cert. denied, 522 U.S. 902 (1997), overruled in part on other grounds, Bousley v. United States, 523 U.S. 614 (1998).
As established by Supreme Court precedent, there are three general types of police-citizen encounters: "(1) consensual encounters which do not implicate the Fourth Amendment; (2) investigative detentions which are Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity; and (3) arrests, [which are] the most intrusive . . . and [are] reasonable only if supported by probable cause." United States v. Davis, 94 F.3d 1465, 1467-68 (10th Cir. 1996) (citations omitted).
If an encounter between a police officer and a motorist is consensual, the Fourth Amendment ban on unreasonable searches and seizures does not come into play. See United States v. Walker, 933 F.2d 812, 816-17 (10th Cir. 1991), cert. denied, 502 U.S. 1093 (1992). "A consensual encounter is the voluntary cooperation of a private citizen in response to non-coercive questioning by a law enforcement officer." United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996). Supreme Court precedent is clear "that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free 'to disregard the police and go about his business,' the encounter is consensual.'" Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting California v. Hodari D., 499 U.S. 621, 628 (1991)). "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968).
In deciding if a police-citizen encounter amounts to a seizure, "the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'" United States v. Hill, 199 F.3d 1143, 1147 (10th Cir. 1999) (quoting Bostick, 501 U.S. at 437), cert. denied, 121 S.Ct. 83 (2000). Put another way, "[a] person is seized only when that person has an objective reason to believe he or she is not free to end the conversation with the officer and proceed on his or her way." United States v. Hernandez, 93 F.3d at 1498 (citation omitted). No per se or absolute rules govern this inquiry. See Ohio v. Robinette, 519 U.S. 33, 39 (1996). "Rather, every case turns on the totality of the circumstances presented." United States v. Little, 18 F.3d 1499, 1503 (10th Cir. 1994).
Factors relevant to whether a reasonable person would not feel free to terminate the encounter with police include: the threatening presence of several officers; the brandishing of a weapon by an officer; some physical touching by an officer; use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory; prolonged retention of a person's personal effects such as identification and plane or bus tickets; a request to accompany the officer to the station; interaction in a nonpublic place or a small, enclosed place; and absence of other members of the public. United States v. Sanchez, 89 F.3d 715, 718 (10th Cir. 1996). No one factor is dispositive in this analysis. United States v. Glass, 128 F.3d 1398, 1406 (10th Cir. 1997).
Analysis
Defendant asserts that a reasonable person would not have felt free to disregard Trooper Dean's request because it was asked immediately after they were told they were free to go, and because it was phrased so as to tacitly indicate that they were required to answer the questions before they left.
The court disagrees that Trooper Dean's choice of words would indicate to a reasonable person that compliance with his request to answer a few more questions was compulsory. Rather than indicating that they could not go until they answered a few more questions, Trooper Dean's question "mind answering a few questions before you get going?" reemphasized his previous statement that they were free to leave. Additionally, defendant has shown no reason why the fact that the question followed on the heels of Trooper Dean's statement that they were free to go, bears any weight in this analysis. No coercion has been shown.
It is undisputed that all the documents in the possession of the Trooper were returned before the questioning and delay which defendant challenges. The Terry detention ended when Trooper Dean handed the occupants the documents he had reviewed, and told them they were free to go. Although other factors could show a seizure after that point, none has been shown here. Accordingly, there is no factual basis for finding that defendant was illegally detained. Rather, the contact after Trooper Dean returned the documentation and told them they were free to go was the result of a consensual encounter.
General Law — Consent
In his brief, defendant asserted solely that his consent to search of the vehicle was involuntary because it was the product of an illegal detention. Given the court's rejection above of the illegal detention theory, this argument fails.
At the evidentiary hearing, defendant surprised the government by alleging that the search exceeded the scope of the consent. As the court understands this new argument, defendant admits that he consented to the Trooper's "taking a look" in the vehicle, but denies that such consent extends to the Trooper's physical manipulation of the vehicle itself.
Whether omission of this issue from the brief was a mere oversight or an intentional omission by counsel is immaterial at this point.
The court examines the totality of the circumstances to determine whether a search remains within the boundaries of the consent given. United States v. Hooper, 47 Fed. Appx. 531, 534, 2002 WL 1972407,*3 (10th Cir. Aug. 27, 2002).
The general standard for measuring the scope of consent is based on "objective reasonableness." United States v. Pena, 143 F.3d 1363, 1367-68 (10th Cir. 1998). Scope "is generally defined by its expressed object," and "is limited by the breadth of the consent given." United States v. Elliott, 107 F.3d 810, 814-15 (10th Cir. 1997) (quotations and citations omitted). Failure to object to a search is an indication the search is within the scope of consent. See Pena, 143 F.3d at 1368.
United States v. Park-Swallow, 2002 WL 31538785, *1 (10th Cir. Nov. 14, 2002). Where the expressed purpose of the search is to look for drugs or contraband, "that certainly implies that the officer could look wherever drugs might be hidden." United States v. Ramstad, 308 F.3d 1139, 1146-1147, (10th Cir. 2002) citing Pena, 143 F.3d at 1367-68.
Defendant contends that he gave limited, rather than general consent to search, in agreeing that Trooper Dean could take a "look." Defendant relies upon United States v. Wald, 216 F.3d 1222, 1228 (10th Cir. 2000), where the court found that consent was not general when limited to a "quick look inside the vehicle." The court recognized the general proposition that a defendant's "failure to object when the search exceeds what he later claims was a more limited consent is an indication the search was within the scope of consent," (citation omitted), but found that rule to apply only when the defendant initially gave a general authorization to search. Id. There, the court found no consent despite defendant's failure to object to the officer's search of the trunk, as the limited consent to take a "quick look inside" the passenger compartment did not encompass a prolonged look inside the trunk.
In United States v. Pena, 920 F.2d 1509 (10th Cir. 1990), cert. denied, 501 U.S. 1297 (1991), the Tenth Circuit rejected an argument strikingly similar to that made by this defendant, where the scope of consent for an officer to "look" inside a car was allegedly exceeded by the officer's use of a screwdriver to remove the rear panel of the vehicle. The Tenth Circuit stated that it would not "attach an unduly restrictive meaning to the officer's request to 'look' inside the vehicle," and concluded that the "search was conducted within the general scope of the permission granted." 920 F.2d at 1515.
Similarly, in Hooper, 47 Fed. Appx. at 534, the defendant told the officer that he could "go ahead and look" after the officer asked if he could "look inside the vehicle." While conducting his search of the van, the officer noticed that the plastic molding from the floor and the rear quarter panel did not seem to fit together properly, so he removed the ashtray from the molding and saw a package which contained illegal drugs. The Tenth Circuit rejected defendant's assertion that the officer's removal of the ashtray was beyond the scope of his consent to "look inside the vehicle," applying the court's reasoning in Pena. Accordingly, the court finds no support in the governing authorities for defendant's assertion that his consent for Trooper Dean to "take a look" was limited, rather than general.
Defendant additionally cites cases involving destruction of property or invasion into locked compartments, apparently because of Trooper Jimerson's removal of rubber molding and movement of the rear side panels which concealed the controlled substances. See United States v. Osage, 235 F.3d 518, 2000 CJ C.A.R. 6671 (10th Cir.Dec 15, 2000) (defendant's failure to object to a search of a sealed can did not permit the officer to "destroy the can or render it completely useless for its intended function."); Florida v. Jimeno, 500 U.S. 248, 252 (1991) ("It is very likely unreasonable to think that a suspect, by consenting to the search of his trunk, has agreed to the breaking open of a locked briefcase within the trunk . . ."); United States v. Strickland, 902 F.2d 937 (11th Cir. 1990) (defendant's consent to search of entire vehicle did not include permission to slash a spare tire to investigate its contents). Such cases from other jurisdictions are not persuasive, as no destruction of property or invasion into locked compartments has been shown.
Defendant fails to recognize that under Tenth Circuit law, partial disassembly of property may be justifiable when, as here, general consent is given and no subsequent objection to the search is made.
[Tenth Circuit] case law recognizes permission to search contemplates a thorough search. United States v. Torres, 663 F.2d 1019, 1027 (10th Cir. 1981). Specifically, we have recently held officers with consent to search may search the entire vehicle if the suspect "does not limit the scope of a search, and does not object when the search exceeds what he later claims was a more limited consent." United States v. Bustillos-Munoz, 235 F.3d 505, 515 n. 5 (10th Cir. 2000). We have also upheld general consent searches that partially disassembled vehicles when the defendant did not object. See United States v. McRae, 81 F.3d 1528, 1537-38 (10th Cir. 1996) (removing trunk carpeting); United States v. Santurio, 29 F.3d 550, 553 (10th Cir. 1994) (unscrewing strip holding down interior carpet and removing carpet); United States v. Pena, 920 F.2d 1509, 1515 (10th Cir. 1990) (removing rear quarter panel vent and cardboard found beneath); United States v. Espinosa, 782 F.2d 888, 892 (10th Cir. 1986) (removing back seat).
United States v Felix, 12 Fed. Appx. 827, 831, 2001 WL 629622, *3 (10th Cir. June 7, 2001).
The court finds that defendant gave general consent for the trooper to search his vehicle, that the defendant never objected to the duration or scope of the search, that his consent was reasonably interpreted by the officer to give consent to proceed as he did, See Ramstad, 308 F.3d at 1147, and that the scope of the search did not exceed the consent given by the defendant.
Because the law is clear and the court has no hesitation in finding that defendant freely consented to the search conducted, the court declines to address the government's alternative theory that the search of the vehicle was justified based upon probable cause. See Ross, 456 U.S. at 817-19, 823; Carroll v. United States, 267 U.S. 132, 136, 172-73 (1925) (search may include some injury to vehicle or items therein if the damage is reasonably necessary to gain access to a specific location where the officers have probable cause to believe that the object of their search is located.)
IT IS THEREFORE ORDERED that defendant's motion to suppress evidence (Dk. 18) is denied.