U.S. v. Galvan-Muro, GALVAN-MUR

• Citation: 141 F.3d 904
• Decision Date: 15 April 1998
• Docket Number: No. 97-2857,D,GALVAN-MUR,97-2857
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rogelioefendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 904

141 F.3d 904

UNITED STATES of America, Plaintiff-Appellee, v. Rogelio GALVAN-MURO, Defendant-Appellant.

No. 97-2857.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 18, 1997.

Decided April 15, 1998.

David R. Stickman, Assistant Federal Public Defender, Omaha, NE, for Defendant-Appellant.

Nancy A. Svoboda, Assistant U.S. Attorney, Omaha, NE, for Plaintiff-Appellee.

Before BEAM, HEANEY, and JOHN R. GIBSON, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Rogelio Galvan-Muro appeals his conviction of possessing with the intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 841(a)(1) (1994). Galvan argues that the district court ¹ erred in failing to suppress the cocaine seized during a search of his car. He contends there was not reasonable suspicion to justify his detention, and that he did not voluntarily consent to the search of his car. We affirm the conviction.

On January 31, 1996, Nebraska State Trooper Goltz pulled over Galvan for speeding. Goltz recorded the stop on his in-car video camera system, which records whatever is in front of the cruiser. Goltz asked Galvan for his license and car registration. Galvan told Goltz that he was heading to Chicago for a business meeting. Goltz returned to his patrol car where he asked the dispatcher to run several computer checks on Galvan.

After about ten to fifteen minutes, Goltz had the information from two of his computer checks. He learned that Galvan had a valid driver's license, and that he had been arrested on a narcotics charge and a vehicle tampering charge. Goltz issued a written warning for speeding.

Goltz returned to the car and handed Galvan his warning. He returned Galvan's license and car registration and asked Galvan if he had ever been arrested. Galvan admitted that he had been arrested for being in a stolen vehicle. Goltz thought it unusual that Galvan admitted his arrest for one felony but not to the drug felony. Goltz explained to Galvan that Interstate 80 is often used to transport drugs. He asked Galvan whether he had any drugs or weapons in the car. Galvan replied "no," and Goltz asked: "You don't have any problem if I search your car?" Galvan's faint response cannot be heard on the videotape, but Goltz testified that Galvan responded "yes," shaking his head indicating to Goltz that he could search his car. Goltz then said: "You understand I can search your car?" Galvan nodded his head, said "yes," and asked Goltz if he wanted him to open the trunk. Goltz did not use a consent to search or waiver of rights form, relying instead on the video and audio recording of the consent.

Because of the extreme cold, Goltz told Galvan he could sit in his patrol car. Goltz took the police dog out of the back of his car, and walked the dog around Galvan's car. The dog did not alert. Goltz searched the inside of the car, the trunk of the car, and the luggage inside the rear of the car. The initial search lasted about five minutes. At that point, a second police officer arrived on the scene to tell Goltz that his radio microphone was not working. Goltz inadvertently turned off the audio for his videotape when he adjusted the radio switch. From this point on, there is no sound to go along with the videotape.

Goltz returned to his patrol car to call the Nebraska State Patrol dispatch. They told him that one of the computer searches showed that United States Customs was investigating Galvan for false modifications of vehicles through his limousine business, specifically, building false compartments.

Two other officers arrived. After being told the above information, one of the officers opened the trunk of the vehicle and observed that one of the support beams was a different color than the rest of the vehicle and that the trunk contained "bondo," a compound used for vehicle modifications. The officers then located a false compartment in the trunk where they found approximately twenty kilograms of cocaine.

Galvan moved to suppress all evidence seized as a result of the search of his car, arguing that his consent was not knowing and voluntary. The magistrate judge denied the motion, and the district court adopted the magistrate judge's report and recommendation. Galvan then entered a conditional plea of guilty and appealed the denial of his motion to suppress evidence.

I.

Galvan concedes that Goltz had probable cause to stop him for a speeding violation. He argues, however, that after obtaining Galvan's identification, asking about his trip, and running the computer checks, the traffic stop should have concluded. He contends that Goltz's further questioning converted the otherwise legitimate stop into an investigatory stop, and that there was not reasonable suspicion to justify such a detention under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

The district court concluded that Galvan's consent occurred during a "consensual encounter," and that after Goltz returned to Galvan his license and registration there was no seizure as a reasonable person would feel free to leave.

Galvan argues that this case is indistinguishable from United States v. Ramos, 42 F.3d 1160 (8th Cir.1994), cert. denied, 514 U.S. 1134, 115 S.Ct. 2015, 131 L.Ed.2d 1013 (1995). In that case, a police officer stopped two brothers because the passenger was not wearing a seat belt. Id. at 1161. Neither the computer check nor the driver's answers to the officer's question raised suspicion. Id. Nevertheless, the officer kept the two brothers separated and asked them additional questions. Id. at 1162. We held that although the initial stop was legitimate, the scope of the officer's additional questioning and delay was not reasonably related to the circumstances justifying the stop. Id. at 1164. The court decided that the additional questions and delay escalated the stop into a Terry stop requiring reasonable suspicion. Id.

This case is distinguishable from Ramos. First, when the officer in Ramos asked for permission to search the vehicle, the brothers were separated. Even though the officer had returned the driver's license, the separation of the driver and passenger prevented the driver from terminating the encounter such that a reasonable person would not feel free to leave. Id. at 1162-64. Circumstances indicative of a seizure may include " 'the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.' " United States v. White, 81 F.3d 775, 779 (8th Cir.) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.)), cert. denied, --- U.S. ----, 117 S.Ct. 518, 136 L.Ed.2d 406 (1996). The ultimate determination of whether a seizure occurred is a question of law which we consider de novo. See id. The underlying facts used to decide whether a seizure occurred are reviewed for clear error. See United States v. McKines, 933 F.2d 1412, 1426 (8th Cir.) (en banc), cert. denied, 502 U.S. 985, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991).

The district court adopted the report of the magistrate judge, who found that the exchange between Galvan and Goltz was...