369 F.3d 1139 (10th Cir. 2004), 03-5040, United States v. DeGasso

Docket Nº:03-5040, 03-5044.
Citation:369 F.3d 1139
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Nelly Marguerite Schmitt DeGASSO; Mario Rodriguez-Aguirre, Defendants-Appellants.
Case Date:May 12, 2004
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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369 F.3d 1139 (10th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,


Nelly Marguerite Schmitt DeGASSO; Mario Rodriguez-Aguirre, Defendants-Appellants.

Nos. 03-5040, 03-5044.

United States Court of Appeals, Tenth Circuit

May 12, 2004

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[Copyrighted Material Omitted]

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Submitted on the briefs: [*] David E. O'Meilia, United States Attorney, and Allen J. Litchfield, Assistant United States Attorney, Tulsa, OK, for Plaintiff-Appellee.

F.L. Dunn III, Tulsa, OK, for Defendant-Appellant Mario Rodriguez-Aguirre.

Paul D. Brunton, Federal Public Defender, Julia L. O'Connell, Assistant Federal Public Defender, and Barry L. Derryberry, Research and Writing Specialist, Office of the Federal Public Defender, Tulsa, OK, for Defendant-Appellant Nelly Marguerite Schmitt DeGasso.

Before TACHA, Chief Judge, BALDOCK, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

An officer of the Oklahoma Highway Patrol (OHP) stopped Defendants Nelly Marguerite Schmitt DeGasso and Mario Rodriguez-Aguirre along I-44 eastbound between Oklahoma City and Tulsa on the morning of May 27, 2002. During the course of the stop, troopers recovered forty-eight kilograms of cocaine from a cavity in the bed of the vehicle in which Defendants were traveling. Following the district court's denial of their motion to suppress, Defendants entered conditional pleas of guilty to a five-count superceding indictment related to drug trafficking. See Fed.R.Crim.P. 11(a)(2). 1 The district court sentenced Defendants to ten years imprisonment, and they appealed. We exercise jurisdiction under 28 U.S.C. § 1291. We review the district court's determination of reasonableness under the Fourth Amendment de novo. See United States v. Cervine, 347 F.3d 865, 868 (10th Cir. 2003). We affirm.


Oklahoma State Trooper Colby Cason was working I-44 on an overcast morning when he noticed a 2002 Chevrolet Avalanche apparently traveling with its fog lamps illuminated. As the Avalanche passed, Trooper Cason also observed that the truck's rear license plate was "mounted too low obscuring the lettering at the bottom on the tag." The trooper stopped the vehicle at approximately 9:38 a.m. He approached the vehicle and was able to identify the lettering on the tag as "Chihuahua," and the tag as originating from Mexico. Trooper Cason testified he was unable to run an NCIC check on a foreign tag.

Trooper Cason asked Defendant Rodriguez, the driver of the truck, to produce

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his driver's license. The trooper further asked Mr. Rodriguez to step out of the truck and take a seat in the front of the patrol car. Trooper Cason informed Mr. Rodriguez that he would issue him a warning citation. When the trooper requested proof of registration, Mr. Rodriguez, who spoke little English, indicated the registration was in the truck. The trooper, who spoke some Spanish, returned to the truck where he talked with Ms. DeGasso and retrieved the vehicle's registration. While Ms. DeGasso spoke better English than Mr. Rodriguez, neither was fluent. The district court found, however, that both Defendants readily understood Trooper Cason when he communicated with them.

During his conversations with Defendants, Trooper Cason became suspicious of criminal activity. 2 After issuing Mr. Rodriguez a warning citation and returning his license and registration, the trooper requested permission in Spanish to search the truck. Trooper Cason's request to search occurred at approximately 9:49 a.m., eleven minutes into the stop. Mr. Rodriguez replied "si." Trooper Cason placed Ms. DeGasso in the back of the patrol car before beginning the search. While seated in the patrol car, Defendants engaged in an incriminating conversation. Among other things, Mr. Rodriguez expressed his wish that Trooper Cason would keep the cocaine and release them. An OHP canine unit arrived, and the dog promptly alerted to the bed of the truck. Trooper Cason handcuffed Defendants at approximately 9:58 a.m., twenty minutes into the stop.

Following a suppression hearing, the district court held that the stop and detention and the search of Defendants' truck were reasonable under the Fourth Amendment. The court further held Defendants' incriminating statements were admissible because they had no expectation of privacy while seated in the patrol car. As to the stop, the court concluded:

[P]ursuant to 47 O.S.Supp.2001, §§ 1113(A)(2) and 12-217, Trooper Cason lawfully stopped Defendants' vehicle when he observed the vehicle's fog lamps illuminated during daylight hours when no fog was present, and because he was unable to read the origin of the license plate as the vehicle passed his patrol unit. Accordingly, the initial stop of Defendants for traffic violations was consistent with the requirements of the Fourth Amendment.

According to the district court, the subsequent detention and search were similarly reasonable under the circumstances because "the trooper acquired an objectively reasonable and articulable suspicion that the driver was engaged in criminal activity,"

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or in the alternative, Defendant Rodriguez consented to the search. 3


The law pertaining to routine traffic stops is well established. The Fourth Amendment proscribes unreasonable searches and seizures. U.S. Const. amend. IV. A traffic stop constitutes a Fourth Amendment seizure. See United States v. Taverna, 348 F.3d 873, 877 (10th Cir. 2003) (citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)). Because a routine traffic stop is more akin to an investigative detention than a custodial arrest, a traffic stop is reasonable if (1) the officer's action was justified at its inception, and (2) the officer's action was reasonably related in scope to the circumstances which justified the interference in the first place. See United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir. 1995) (en banc) (citing Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

To determine the initial validity of a traffic stop, we ask whether the stop was "objectively justified." Botero-Ospina, 71 F.3d at 788. Generally, a routine stop is objectively justified when probable cause or reasonable articulable suspicion exists to believe a traffic violation has occurred. See Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (probable cause); Botero-Ospina, 71 F.3d at 787 (reasonable articulable suspicion). The actual motivations or subjective beliefs and intentions of the officer are irrelevant. See Whren, 517 U.S. at 813, 116 S.Ct. 1769; Botero-Ospina, 71 F.3d at 787. In Botero-Ospina, the en banc Court set forth the standard for examining the constitutionality of a traffic stop:

[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring. It is irrelevant, for purposes of Fourth Amendment review, whether the stop in question is sufficiently ordinary or routine according to the general practices of the police department or the particular officer making the stop. It is also irrelevant that the officer may have had other subjective motives for stopping the vehicle. Our sole inquiry is whether this particular officer had reasonable suspicion that this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction.

Id. (internal quotations, citations, and footnote omitted).

Defendants argue that neither of the grounds accepted by the district court--the fog lights violation and license plate violation--constituted sufficient grounds for the traffic stop. As explained below, we agree with Defendants regarding the fog lights violation but affirm the district court (one member of the panel dissenting) regarding the license plate. Defendants also argue that their consent to search the vehicle was invalid because Trooper Cason improperly prolonged the detention after the warning citation was issued. The district court found that "after the trooper had returned all of the defendant's documentation to the defendant, ... Defendant

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Rodriguez was free to leave and a reasonable person would have known he was free to leave. Defendant Rodriguez's continued answering of questions by Trooper Cason, at that point in time, became consensual." That conclusion is consistent with this Court's precedents. See, e.g., United States v. Torres-Guevara, 147 F.3d 1261, 1264 (10th Cir. 1998). We therefore affirm that portion of the district court's judgment for substantially the reasons stated in the district court's Order.


Defendants first challenge the purported fog lamp violation. The statute in effect on the date of the stop stated in relevant part: "Fog lamps shall not be used in substitution of headlamps, except under conditions of rain or fog rendering disadvantageous the use of headlamps." 47 Okla. Stat. § 12-217.D, amended by 2003 Okla. Sess. Laws ch. 411, § 34 (effective Nov. 1, 2003). 4 At the same time, a separate statute required the use of head lamps "at any time from a half hour after sunset to a half hour before sunrise and at any other time when, due to insufficient light or unfavorable atmospheric conditions, persons and vehicles on the highway are not clearly discernible at a distance of five hundred (500) feet ahead...." Id. § 12-201, amended by 2003 Okla. Sess. Laws ch. 411, § 21 (effective Nov. 1, 2003). The district court concluded OHP reasonably relied on section 12-217.D to stop Defendants:

Trooper Cason reasonably believed that the Defendant had violated the Oklahoma statute regarding the use of fog lamps, therefore this Court...

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