441 F.3d 1252 (10th Cir. 2006), 04-3230, United States v. Alcaraz-Arellano

Docket Nº:04-3230.
Citation:441 F.3d 1252
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Gerardo ALCARAZ-ARELLANO, Defendant-Appellant.
Case Date:March 30, 2006
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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441 F.3d 1252 (10th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

Gerardo ALCARAZ-ARELLANO, Defendant-Appellant.

No. 04-3230.

United States Court of Appeals, Tenth Circuit.

March 30, 2006

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS, D.C. NO. 03-CR-40015-01-SAC

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Marilyn M. Trubey, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with her on the brief), Topeka, KS, for the Defendant-Appellant.

James A. Brown, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with him on the brief), Topeka, KS, for the Plaintiff-Appellee.

Before HENRY, McKAY, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

On February 11, 2003, Gerardo Alcaraz-Arellano was indicted in the United States District Court for the District of Kansas

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on one count of possessing with intent to distribute three kilograms of cocaine and one count of possessing with intent to distribute one kilogram of heroin. See 21 U.S.C. § 841(a)(1). He pleaded guilty to the second count. Before pleading guilty he had moved to suppress evidence seized during a vehicle search after a traffic stop and, alleging selective enforcement (racial profiling), had moved to dismiss the indictment. The district court denied both motions. Mr. Alcaraz-Arellano's plea agreement preserved his right to appeal the district court's rulings on the motions, and he now appeals those rulings. Mr. Alcaraz-Arellano's opening brief also raised a challenge to his sentence, but he later filed a pleading with this court abandoning the challenge. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I. MOTION TO SUPPRESS

A. Background

On February 9, 2003, Russell County Sheriff's Deputy Kelly Schneider, who was driving westbound on I-70, determined by radar that Mr. Alcaraz-Arellano, who was driving eastbound, was driving 77 mph in a 70 mph zone. Deputy Schneider turned around to pursue Mr. Alcaraz-Arellano's car, a gold 2001 Oldsmobile Alero. He pulled alongside the car and observed two men inside, both of whom appeared to be Hispanic. He then directed Mr. Alcaraz-Arellano to stop. Mr. Alcaraz-Arellano brought his car to the side of the highway at 2:42:20 p.m. The stop was recorded by a videorecorder inside Deputy Schneider's patrol car.

Deputy Schneider exited his car, stood behind Mr. Alcaraz-Arellano's car, and signaled to Mr. Alcaraz-Arellano to come to him. Mr. Alcaraz-Arellano complied. When Deputy Schneider asked for his license, Mr. Alcaraz-Arellano retrieved his license from his car and gave it to Deputy Schneider. Deputy Schneider then asked for Mr. Alcaraz-Arellano's registration, and Mr. Alcaraz-Arellano again returned to his car, obtained the registration, and gave it to him. Deputy Schneider examined the documents, which showed that Mr. Alcaraz-Arellano was licensed to drive in New York and had purchased the car in California three days earlier. The address for Mr. Alcaraz-Arellano on the registration was in California. In response to Deputy Schneider's questions, Mr. Alcaraz-Arellano said that he lived in New York, had traveled to California, had stayed there one and one-half days, had purchased the car, and was en route back to New York. Deputy Schneider observed that Mr. Alcaraz-Arellano appeared extremely nervous.

At 2:44:30 p.m. Deputy Schneider returned to his patrol car. At 2:45:09 he invited Mr. Alcaraz-Arellano into the patrol car, telling him, "let's get you where it's warm." Deputy Schneider then informed Mr. Alcaraz-Arellano that he was writing him a warning, which would not cost him any money. While he was writing the warning ticket, Deputy Schneider asked Mr. Alcaraz-Arellano when he had bought the car and what he did for a living. Mr. Alcaraz-Arellano told Deputy Schneider, among other things, that he worked in landscaping, but had not worked for two months.

At 2:46:38 p.m. Deputy Schneider radioed the dispatch operator to verify Mr. Alcaraz-Arellano's license. The operator responded with the license information at 2:52:06 p.m. During that interval Deputy Schneider continued questioning Mr. Alacaraz-Arellano, asking whether he liked his car, whether there was much snow in New York, who his passenger was, where his passenger lived, what he typically did during the winter since he had not worked for a couple months, whether he owned the car, and how much he paid for it. Mr. Alcaraz-Arellano

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said that he had bought the car for $4,000.

Deputy Schneider gave Mr. Alcaraz-Arellano the warning ticket and bid him "adios" at 2:52:44 p.m., 10 minutes after the stop. But as Mr. Alcaraz-Arellano was leaving the patrol car, Deputy Schneider requested permission to ask a few more questions. Mr. Alcaraz-Arellano agreed. Deputy Schneider asked whether he had any contraband in the car. Mr. Alcaraz-Arellano replied that he did not. Deputy Schneider asked to "look in" the car, and Mr. Alcaraz-Arellano consented.

While inspecting the trunk, Deputy Schneider noticed that its floor was green rather than gold, whereas, to his knowledge, the original undercoating almost always matches the exterior paint. He also noticed that the caulking around the floor was new, thick, and white, and that the carpet padding in the spare-tire compartment was glued to the floor , whereas in most cars the carpet padding can simply be pulled away from the floor. He then conducted a "finger test" inside the trunk, placing one hand on the inside of the trunk and one hand underneath the car, and tapping on the trunk to listen for signs of a gap between the top and the bottom. He concluded that there was such a gap and estimated it to be about three inches, indicating a concealed compartment. He told Mr. Alcaraz-Arellano that he had found a false compartment, and that he would take the car to the sheriff's department to be searched. The subsequent search revealed a hidden compartment containing three kilograms of cocaine and one kilogram of heroin.

Mr. Alcaraz-Arellano filed a motion to suppress the evidence seized during the search of his car, arguing that the traffic stop itself was illegal because he was not speeding, that Deputy Schneider's subsequent detention of him was illegal because its scope and duration exceeded what was justified by the purpose of the stop, and that Deputy Schneider did not have reasonable suspicion of criminal activity to justify the questioning during the stop. In denying Mr. Alcaraz-Arellano's motion to suppress evidence, the district court ruled that Deputy Schneider's stop of Mr. Alcaraz-Arellano was valid because he had reasonable suspicion that Mr. Alcaraz-Arellano was speeding, that Deputy Schneider's further detention and questioning of Mr. Alcaraz-Arellano was justified by reasonable suspicion, and that Mr. Alcaraz-Arellano gave valid consent for Deputy Schneider to search his car.

On appeal Mr. Alcaraz-Arellano argues that Deputy Schneider violated the Fourth Amendment by asking him questions unrelated to the initial purpose of the stop; that Deputy Schneider did not have reasonable suspicion to ask these unrelated questions; that he did not validly consent to Deputy Schneider's continued questioning of him after returning his license; that he did not validly consent to Deputy Schneider's search of his car; and that if the search was consensual, Deputy Schneider exceeded the scope of consent.

B. Analysis

Mr. Alcaraz-Arellano argues that Deputy Schneider's detention and questioning of him violated the Fourth Amendment. The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. Amend. IV. A traffic stop is a Fourth Amendment seizure "even though the purpose of the stop is limited and the resulting detention quite brief." Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). A traffic stop is permissible under the Fourth Amendment if "the officer has a reasonable articulable suspicion that a

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traffic . . . violation has occurred or is occurring." United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998). "When reviewing a district court's denial of a motion to suppress, we consider the totality of the circumstances and view the evidence in the light most favorable to the government." U.S. v. Gordon, 168 F.3d 1222, 1225 (10th Cir. 1999). "We accept the district court's factual findings unless [they] are clearly erroneous." Id. "The ultimate determination of reasonableness . . . is a question of law reviewable de novo." Id.

Deputy Schneider's initial stop of Mr. Alcaraz-Arellano is not challenged on appeal; he observed (with a radar device) Mr. Alcaraz-Arellano driving 77 mph in a 70 mph zone. Mr. Alcaraz argues, however, that the stop became unlawful when Deputy Schneider asked him questions unrelated to the purpose of the stop. In United States v. Holt, 264 F.3d 1215, 1230 (10th Cir. 2001) (en banc), we stated that the reasonableness of a traffic stop depends on both "the length of the detention and the manner in which it is carried out." It is reasonable for an officer to ask questions about the motorist's travel plans and authority to operate the vehicle. United States v. Bradford, 423 F.3d 1149, 1156 (10th Cir. 2005). Although Holt held that further questioning is justifiable only if it is reasonable in relation to the initial purpose of the traffic stop, Holt, 264 F.3d at 1228, the scope of this holding has been limited by the Supreme...

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