263 F.3d 1155 (10th Cir. 2001), 00-3138, United States v Zubia-Melendez

Docket Nº:00-3138
Citation:263 F.3d 1155
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LORENZO ZUBIA-MELENDEZ, Defendant-Appellant.
Case Date:August 24, 2001
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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263 F.3d 1155 (10th Cir. 2001)



LORENZO ZUBIA-MELENDEZ, Defendant-Appellant.

No. 00-3138

United States Court of Appeals, Tenth Circuit

August 24, 2001

Appeal from the United States District Court for the District Court of Kansas.(D.C. No. 99-CR-20092-02-GTV)

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Michael L. Harris, Assistant Federal Public Defender, Kansas City, Kansas, for Defendant-Appellant.

Nancy Landis Caplinger, Assistant United States Attorney (Jackie N. Williams, United States Attorney for the District of Kansas, with her on the brief), Kansas City, Kansas for Plaintiff-Appellee.

Before EBEL, ANDERSON and BALDOCK, Circuit Judges.

EBEL, Circuit Judge.

Defendant-Appellant Lorenzo Zubia-Melendez appeals the district court's denial of his motion to suppress evidence seized from his vehicle following a traffic stop and subsequent search of his vehicle. After the district court denied the motion, Appellant entered a conditional guilty plea on one count of possession with intent to distribute more than 5 kilograms of cocaine in violation of 21 U.S.C. §841(a)(1). Appellant argues on appeal that the traffic stop preceding the search was not supported by probable cause, that the questions asked by the officer were not reasonably related to the purpose of the traffic stop, and that Appellant did not freely and voluntarily consent to the search of his car. Exercising jurisdiction pursuant to 28 U.S.C. §1291, we AFFIRM.


Appellant's car, a 1999 Chevrolet Tahoe with Texas plates, was parked in the parking lot of a Best Western motel in Kansas City, Kansas, on the night of October 13, 1999. Ray Bailiff, a Kansas Highway Patrol Trooper assigned to the Drug Enforcement Administration ("DEA"), noticed the vehicle and checked its license plates against the motel registration card, at which point he learned that the vehicle was registered to Appellant and that Appellant had paid for the motel room with cash. Officer Bailiff also checked whether the car had recently crossed the border between the United States and Mexico and learned that the car had crossed the border at 10:08 a.m. on October 12, 1999. Finally, Officer Bailiff checked the motel's phone records and discovered that at least one telephone call had been made from Appellant's room to individuals whom Officer Bailiff knew were involved in the drug trade.

The vehicle was then placed under surveillance. Kansas Highway Patrol Officer David Heim, a member of the surveillance team, was told that the car had recently crossed the border between the United States and Mexico and that officers believed the car might be being used in drug trafficking activity. He was instructed to stop the car if an opportunity presented itself. He was not specifically informed of the many investigative activities undertaken

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by other officers in regard to Appellant prior to that point in time.

The vehicle left the motel parking lot on October 14, 1999, at approximately 10:15 a.m. Officer Heim was advised by radio that the car was leaving the motel and traveling northbound on Seventh Street toward the I-35 interchange. Officer Heim pulled in behind the vehicle and followed it as it drove along Seventh Street and across the Kansas River Bridge. This is a four-lane highway, with two lanes of northbound traffic and two lanes of southbound traffic. The car was in the far right lane of northbound traffic. Officer Heim testified that the driver of the car allowed the car to drift approximately 2 feet into the left lane of northbound traffic, but that the car came "right back over" after only a "couple of seconds." Officer Heim then initiated a traffic stop, which he explained at the suppression hearing with the statement: "[I]t's a violation of the law to cross over the lane lines. It didn't give a signal and it just looked like it was drifting basically out of control into the other lane."

Officer Heim's car is equipped with a video recorder. Although Officer Heim stated that he activated the recorder "as soon as he realized that the vehicle was across the lane line," the video recording does not show the vehicle straddling the two lanes; instead, the video recording shows the tires of the vehicle close to touching the white dividing line between the two northbound lanes. Heim explained that there was a "very slight" delay between the time he turned on the recorder and the time when the recording commenced.

After stopping the vehicle, Officer Heim proceeded to question both Appellant, who owned the car but was riding in the passenger seat at the time of the stop, and the driver, later identified as Jorge Javier Galindo-Diaz. Officer Heim first asked Galindo-Diaz for his driver's license, but Galindo-Diaz stated that he did not have one. Officer Heim ordered Galindo-Diaz out of the car and toward the back of the vehicle, and briefly remained at the passenger-side door of the vehicle to question Appellant. Officer Heim asked Appellant for the name of the driver, which the Appellant stated he did not know despite his assertion that the driver was his brother-in-law. Appellant stated that he and his wife, as well as the driver, had stayed at a motel the previous night. Officer Heim then questioned Galindo-Diaz. Galindo-Diaz stated that he did not know Appellant's name and that he had stayed at his Kansas City home (and not in a motel) the previous night. At that point, Officer Heim returned to Appellant, who again asserted that he had stayed with Galindo-Diaz in a motel the night before. Appellant also told Officer Heim that he was the registered owner of the vehicle and provided the vehicle's registration information to the officer. The registration indicated that the vehicle's insurance was expired. Officer Heim briefly took the Appellant out of the vehicle to frisk him and then placed him back inside the vehicle on the passenger's side.

Because the stories of the two men conflicted, Officer Heim became suspicious that the two might be engaged in criminal activity. Officer Heim therefore issued a warning on the traffic violation1 and, without telling either man that he was free to

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go or that they could move from the positions into which he had ordered them, asked Galindo-Diaz if he could search the car for drugs. Galindo-Diaz replied "yes." Because Appellant had asserted ownership of the vehicle, Officer Heim then asked him for permission to search the car for drugs. Appellant initially responded to the question by stating, "No, never." Officer Heim then immediately asked again if he could search the vehicle and Appellant replied "Yeah, no matter."2

Officer Heim understood this exchange to provide consent to search Appellant's car. The search of the car, which lasted approximately 16 minutes, was initially unsuccessful because the drug-sniffing dog gave false alerts on a bag in the backseat of the vehicle. Officer Heim then took the dog out of the car and continued the search. He noticed that the molding in the right rear corner of the vehicle "wasn't fitting just exactly like it would have from the factory" and the screws holding it in place looked tampered with. Eventually, Officer Heim was joined by three other officers and they uncovered 5.7 kilograms of cocaine hydrochloride in a hidden compartment.

All of the above testimony, as well as the videotape itself, was presented at the suppression hearing. In addition, both Appellant and Galindo-Diaz testified with the help of an interpreter. Galindo-Diaz testified that he did not believe he had crossed the white dividing line while driving because he was aware that he was being followed and was trying to drive carefully. He could not conclusively say he had not crossed the line but stated "I don't remember, but I don't remember doing it or I don't think I'll do it. And you can't see it on the tape. I don't think I'll cross it."

Appellant testified that he did not understand what he was being asked when Officer Heim asked him if he could search the vehicle. He admitted on cross-examination, however, that he had understood Officer Heim's request for his name and identification, as well as his question regarding ownership of the vehicle.

The district court denied the motion to suppress. Important to this appeal are the following aspects of the district court's conclusion: (1) the court specifically found the testimony of Officer Heim relating to the purpose of the stop to be credible; (2) the court found that Officer Heim had reasonable suspicion to detain the Appellant and Galindo-Diaz to ask about narcotics based upon their conflicting answers to the officer's questions and Galindo-Diaz's lack of a valid driver's license; and (3) the court stated that Appellant understood enough English to consent voluntarily to the search.


I. Standard of Review

"In reviewing the denial of a motion to suppress, we must accept the district court's factual findings unless clearly erroneous and we view the evidence in the light most favorable to the prevailing party." United States v. Springfield, 196 F.3d 1180, 1183 (10th Cir. 1999). The ultimate determination of the reasonableness of a warrantless search or seizure under

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the Fourth Amendment is a determination of law that we review de novo. See United States v. Pena, 920 F.2d 1509, 1513-14 (10th Cir. 1990).

II. Analysis

A. The initial traffic stop was supported by probable cause

The first question we must address is whether the initial seizure of the vehicle was supported by probable cause. The government bears the burden of proof to justify warrantless searches and seizures. See United States v. Maestas, 2 F.3d 1485, 1491 (10th Cir. 1993). The standard of...

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