U.S. v. Guerrero

• Decision Date: 02 January 2007
• Docket Number: No. 06-3123.,06-3123.
• Citation: 472 F.3d 784
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tanzitaro GUERRERO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 784

472 F.3d 784

UNITED STATES of America, Plaintiff-Appellee, v. Tanzitaro GUERRERO, Defendant-Appellant.

No. 06-3123.

United States Court of Appeals, Tenth Circuit.

January 2, 2007.

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

Daniel E. Monnat, Monnat & Spurrier, Wichita, KS, for the Defendant-Appellant.

Before HARTZ, O'BRIEN, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

This case presents a variation on the usual traffic-stop search-and-seizure case: namely, that there was no traffic stop to begin with. Tanzitaro Guerrero and Alfredo Torres were parked at a gas station when they attracted the interest of a pair of officers eating lunch at a nearby sand-wich shop. Starting from a near-idle inquiry, the officers, through observation and questioning, formulated a reasonable suspicion that the two men were transporting illegal drugs. The officers temporarily seized Mr. Guerrero's driver's license and subsequently acquired consent to search the car, where they discovered a quantity of methamphetamine.

We hold that the detention was supported by reasonable suspicion, and thus that it neither violated the Fourth Amendment nor tainted the search that followed it. We also hold that the search itself was consensual. Accordingly, we affirm the district court's decision not to suppress the evidence found in the car and uphold Mr. Guerrero's conviction.

I. Background

On Jan. 8, 2005, at 12:30 p.m., Mr. Guerrero and Mr. Torres stopped at a Phillips-66 station in Topeka, Kansas. Two Kansas police officers, Brian Rhodd and Tom Bronaugh, were eating lunch at a nearby Quizno's sandwich shop. Deputy Rhodd's suspicion was aroused by the difference in the two men's dress — one was in jeans and one in dress clothes — and ages, and the fact that their license plate was from California, which he considered to be a drug source state. Deputy Rhodd approached Mr. Torres and Mr. Guerrero and questioned them separately about their travel plans.

Deputy Rhodd found the two defendants' stories suspicious: Mr. Torres said they were both headed to Kansas City to work construction for two weeks; Mr. Guerrero said he was going to Kansas City for a day to drop off Mr. Torres, his uncle, and then would return immediately to Los Angeles.¹ When Deputy Rhodd asked Mr. Guerrero how his uncle had traveled to California, Mr. Guerrero did not know. Deputy Rhodd observed that Mr. Guerrero's demeanor shifted at this point from "being defensive to overly polite and overly cooperative, which made me believe that something wasn't right with him." Aplt. App. at 126. Deputy Rhodd also noticed that the car key was alone on a single key ring and that there was unspecified religious paraphernalia on the gear shift of the car, both of which he considered characteristic of drug runners. He looked through the window and saw that clothes were simply thrown across the back seat; none of them seemed to be intended for construction work, and he did not observe any construction tools.

Deputy Rhodd then asked to see the two men's identifying documents and the car's registration. Mr. Guerrero provided a California driver's license and the car's registration, and Mr. Torres provided a Mexican identification card, which the officer thought might not be authentic. When Deputy Rhodd asked to whom the car was registered, he thought Mr. Guerrero attempted to read the name off the registration. Mr. Guerrero said that the car belonged to his girlfriend, "Goudimas;" the registration indicated that the owner was "Elizabeth Goudima."

Deputy Rhodd took the documents back to his patrol car, and he asked the two men no questions for ten to twelve minutes while he ran Mr. Guerrero's licence and the car's registration. He discovered that the license and registration were valid, and the there were no outstanding warrants for Mr. Guerrero's arrest. Deputy Rhodd also learned that the car had traveled back and forth to Mexico a number of times over the preceding months. He called the El Paso Intelligence Center, which told him — wrongly, as it turned out — that Mr. Guerrero was not legally permitted to be in the country.

The officer returned the paperwork and thanked the men for their time. He walked away, then stopped after a few seconds, turned back around, and asked Mr. Guerrero several new questions, including, eventually, for consent to search the car. Mr. Guerrro replied that the car belonged to his girlfriend, so he could not consent.

At this point, testimony diverges. Deputy Rhodd testified that he explained to Mr. Guerrero that he had the capacity to consent, but did not have to; Mr. Guerrero remembers no such explanation. Deputy Rhodd testified that Mr. Guerrero verbally consented when asked a second time; Mr. Guerrero testified that he refused consent, and that Deputy Rhodd then asked a third time. Both agree that Mr. Guerrero eventually extended both hands, palms up, in response to a request for consent. Deputy Rhodd proceeded to search the car. He found 4.5 kilograms of methamphetamine near the gas tank.

Mr. Guerrero and Mr. Torres were both arrested and subsequently charged in the District of Kansas under 21 U.S.C. § 841(a)(1) with one count of possession with intent to distribute methamphetamine. After a hearing, the district court denied the defendants' motion to suppress the evidence found in the car, finding that "[a]ssuming, arguendo, that the voluntary encounter turned into a detention for the period of time that the officer had possession of the defendants' identifications and vehicle registration," the detention was supported by reasonable suspicion, and the subsequent consent was valid. Order at 11-13, 20. Both defendants pleaded guilty, reserving the right to appeal the suppression ruling, and Mr. Guerrero was sentenced to 120 months imprisonment. He timely appealed.

II. Discussion

A. Illegal Detention

Mr. Guerrero argues that he was detained without reasonable suspicion, and that the methamphetamine found in the car he was driving should be suppressed as a fruit of that illegal detention. "[T]he unlawful detention inquiry is fact-intensive, and we review the district court's fact findings for clear error." United States v. Dewitt, 946 F.2d 1497, 1502 (10th Cir.1991) (citation omitted). However, the ultimate issue of whether a seizure occurred is a question of law, which we review de novo. United States v. Torres-Guevara, 147 F.3d 1261 (10th Cir.1998).

i. Seizure

The government argues that the taking of Mr. Guerrero's license and registration did not amount to a detention, because Deputy Rhodd did not inform the defendants that they had to hand over their papers. Rather, "he asked them and they voluntarily complied." Aplt. Br. at 21. To be sure, if officers merely examine an individual's driver's license, a detention has not taken place. Florida v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). But once the officers take possession of that license, the encounter morphs into a detention: "Precedent clearly establishes that when law enforcement officials retain an individual's driver's license in the course of questioning him, that individual, as a general rule, will not reasonably feel free to terminate the encounter." United States v. Lambert, 46 F.3d 1064, 1068 (10th Cir.1995). During the time that Deputy Rhodd held their paperwork, Defendants were detained.

ii. Reasonable Suspicion

Investigative detentions must be supported by reasonable suspicion, and they must be no longer than necessary to accomplish their objectives. United States v. Gutierrez-Daniez, 131 F.3d 939, 942 (10th Cir.1997). Although the great majority of reasonable suspicion cases begin as compulsory traffic stops, an encounter that begins voluntarily and becomes a detention is subject to the same standards. That premise is supported by the long line of airport detention cases, in which courts have allowed law enforcement officers to approach and detain travelers when supported by reasonable suspicion. In Royer, where detectives detained the defendant in the boarding area on suspicion of being a drug courier, the Court held that temporary detention supported by reasonable suspicion is permissible "where the public interest involved is the suppression of illegal transactions in drugs." 460 U.S. at 498-99, 103 S.Ct. 1319. We reaffirmed that position in Lambert, a case in which police officers detained the defendant in an airport parking lot when no vehicular violation had occurred. Lambert, 46 F.3d at 1064. We held that reasonable suspicion remains the proper standard for police to take and run the defendant's license, even when the encounter begins consensually: "While not directly on point — the agents here were not concerned with whether Mr. Lambert could lawfully operate a motor vehicle or in issuing a traffic citation — the principle of the traffic stop cases . . . does apply." Id. at 1068 n. 3; see also United States v. Lopez, 443 F.3d 1280, 1282, 1286 (10th Cir.2006) (holding reasonable suspicion to be the proper standard for the seizure of a driver's license when officers approach defendants and their parked car by the side of the road). Our precedent makes clear that officers may ask for a defendant's license, given reasonable and articulable suspicion, even in the absence of any compelling basis to begin the questioning.

Reasonable suspicion is defined as "particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). In assessing reasonable suspicion, we defer to trained law enforcement personnel, "allow[ing] officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that `might well elude an untrained...