U.S. v. Contreras

• Decision Date: 31 October 2007
• Docket Number: No. 06-4144.,06-4144.
• Citation: 506 F.3d 1031
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Elsa CONTRERAS, a/k/a Elsa Juaregui, a/k/a Elisa Juarequi, a/k/a Elsa Taurequi, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

506 F.3d 1031

UNITED STATES of America, Plaintiff-Appellee, v. Elsa CONTRERAS, a/k/a Elsa Juaregui, a/k/a Elisa Juarequi, a/k/a Elsa Taurequi, Defendant-Appellant.

No. 06-4144.

United States Court of Appeals, Tenth Circuit.

October 31, 2007.

Roger K. Scowcroft, Salt Lake City, Utah for the Defendant-Appellant.

Stephen J. Sorenson, Assistant United States Attorney (Brett L. Tolman, United States Attorney, with him on the briefs), Salt Lake City, Utah for the Plaintiff-Appellee.

Before McCONNELL, TYMKOVICH, and BALDOCK, Circuit Judges.^*

McCONNELL, Circuit Judge.

This case considers a matter of first impression for this circuit: whether the Sentencing Guidelines enhancement for obstruction of justice, United States Sentencing Guidelines Manual § 3C1.1 (2002), applies when a defendant's obstructive conduct occurred during the prosecution of state charges preceding the federal indictment, but both federal and state charges were based on the same underlying conduct. We hold that, in this case, it does. We also hold that the search of Ms. Contreras's car did not violate her constitutional rights. Accordingly, we affirm both the conviction and the sentence.

I. Background

On October 2, 2004, Elsa Contreras was stopped on Interstate 15 in Beaver County, Utah, for following the car ahead of her too closely. The officer, Sergeant Bauer, observed that Ms. Contreras was pale and "shaking very badly." R. Vol. II, at 14. While he was examining Ms. Contreras's license and rental car agreement, he asked about her travel plans. She said that she had left Nebraska on September 30 and driven to Las Vegas to visit a brother and a relative who had traveled there from Mexico. Although both the officer's testimony and the district court order state that Ms. Contreras told the officer that she arrived in Las Vegas on the morning of October 2, that statement is unsupported by the videotape of the encounter. Instead, the recording reflects that Ms. Contreras told the officer only that she had left Nebraska on September 30, driven to Las Vegas, and was now, two days later, on her way back to Nebraska. She explained to the officer that she did not like to fly. The location of the traffic stop was about a three-hour drive from Las Vegas.

Sergeant Bauer told the defendant that he was not going to give her a ticket and to "drive safe." R. Supp. Vol. I, at 4. Then, still standing at her car window, he asked, "You wouldn't mind opening your trunk real quick before I let you go, would you?" Id. The defendant agreed, and the officer opened the trunk and began to search. He noticed that the spare tire was not sitting properly in its well and asked Ms. Contreras if he could check it. She agreed. Further inspection revealed that the tire contained something other than air. Through a series of negotiations, Sergeant Bauer convinced Ms. Contreras, however reluctantly, to accompany him to a service station to check the tire. At the service center, the officer broke down the tire and found seven packages of methamphetamine.

Ms. Contreras was arraigned on state charges and held at the Beaver County Jail for five days. She was released on bond on October 7, after which she fled to Mexico. The federal government indicted her on October 20, 2004, on one count of possessing 500 grams or more of methamphetamine with an intent to distribute, a violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2. The following day, a federal warrant was issued for her arrest. No testimony or evidence indicates that the federal government took any additional action to investigate the crime or to bring Ms. Contreras into custody, other than the issuance of the indictment and arrest warrant.

In November, the state court issued a warrant for failure to appear when Ms. Contreras missed a court date. Eight months later, in July 2005, she was stopped crossing the border, the federal warrant was discovered, and she was arrested and placed in federal custody. On March 20, 2006, Ms. Contreras pleaded guilty to violating §§ 841(a)(1) and (b)(1)(A), preserving her right to appeal.

The Presentence Report (PSR) recommended a sentencing enhancement under United States Sentencing Guidelines § 3C1.1 for obstruction of justice. As a basis for the enhancement, the PSR cites Ms. Contreras's failure to appear at her state-court hearing. The PSR calculated a total offense level of 25 and a criminal history category of I, resulting in a sentencing range of 57-71 months. Without the enhancement for obstruction of justice, the range would have been 46-57 months.

At sentencing, the government voiced its support for the enhancement:

Well, just for the record, Your Honor, I do believe that the issue here is that she was arrested and charged in this offense and it is irrelevant which sovereign pursued the investigation. She fled following her arrest and following a charge being filed in this instant offense. Under the guidelines, I do believe that that does qualify for obstruction of justice....

The Court: I agree with you on that point. R. Vol. III, at 8-9.

The judge sentenced Ms. Contreras to 57 months, the bottom of the sentencing range.

Ms. Contreras timely appealed, objecting both to the search of her trunk and to the sentencing enhancement.

II. Fourth Amendment

Ms. Contreras argues on appeal that the search of the trunk of her car was illegal because her detention was not based on reasonable suspicion and her consent to the search was tainted. We find that the officer had reasonable suspicion to detain Ms. Contreras, and that she freely and voluntarily consented to the search of her trunk.

In reviewing the denial of a motion to suppress, we accept the factual findings of the district court unless they are clearly erroneous. United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998). The ultimate determination of reasonableness under the Fourth Amendment is a question of law, which we review de novo. Id.

A. Initial 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. . . ." United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir.1995). Utah law at the time of the stop at issue prohibited following "another vehicle more closely, than is reasonable and prudent." Utah Code Ann. § 41-6-62 (2000) (current version at Utah Code Ann. § 41-6a-711 (2005)). The district court accepted Sergeant Bauer's testimony that he stopped Contreras because she was following a semi-truck too closely. Ms. Contreras does not challenge that finding on appeal, nor does she challenge the district court's holding that the stop was valid. Therefore, we turn to the validity of the extended stop following Sergeant Bauer's initial detention of Ms. Contreras.

B. Extension of Stop

Once an officer has returned the motorist's license and other papers and issued any citation he intends to give, he must usually allow her to proceed on her way without additional questioning. United States v. Patten, 183 F.3d 1190, 1193 (10th Cir.1999). Further detention must be justified by an "objectively reasonable and articulable" suspicion of illegal activity based on the totality of the circumstances. United States v. Williams, 271 F.3d 1262, 1268 (10th Cir.2001). We affirm the district court's conclusion that Sergeant Bauer's detention of Ms. Contreras beyond the scope of the initial traffic stop was supported by reasonable suspicion.

Sergeant Bauer's testimony paints a convincing picture of reasonable suspicion. The officer reported that the defendant was shaking so badly that she could not hold on to the papers in her hand. More importantly, she offered an account of her travel plans that seemed suspicious at best and incredible at worst. Ms. Contreras claimed to have driven more than 1,200 miles to see her family, only to turn around within a day and begin the 1,200-mile drive back. Add the presence of food wrappers from a California restaurant and the fact that she was driving a rental car — which Sergeant Bauer knew to be "often used by narcotics traffickers . . . [because] it can't be seized," R. Vol. II, at 21 — and Ms. Contreras's conduct begins to strongly resemble that of a narcotics courier transporting a load between the West Coast and Nebraska.

We have noted numerous times that implausible travel plans can form a basis for reasonable suspicion. United States v. Alcaraz-Arellano, 441 F.3d 1252, 1260 (10th Cir.2006); United States v. Kopp, 45 F.3d 1450, 1453-54 (10th Cir.1995). We have also credited the idea that drug couriers often use third-party rental cars. Williams, 271 F.3d at 1270. Although we have found nervousness to be "of only limited significance in determining whether reasonable suspicion exist[s]," United States v. Wood, 106 F.3d 942, 948 (10th Cir.1997), it does add to the overall calculus of suspicious behavior, especially when, as here, it is extreme. Taken as a whole, Sergeant Bauer's assessment that Ms. Contreras's actions created reasonable suspicion of narcotics activity is more than sufficient.

C. Consent Given to Search Trunk

While a warrant is not required to search a motor vehicle, "the search otherwise [must be such] as [a] magistrate could authorize." California v. Carney, 471 U.S. 386, 394, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). In other words, an officer must have probable cause to search a vehicle without a warrant or he must rely on some other exception to the warrant requirement.¹ Consent is one such exception to the warrant requirement. United States v. Zubia-Melendez, 263 F.3d 1155, 1162 (10th Cir.2001) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)).

The central question in determining whether consent to a search is voluntary is "whether the police conduct would have communicated to a reasonable person that the...