U.S. v. Ledesma

• Decision Date: 19 May 2006
• Docket Number: No. 05-3163.,05-3163.
• Citation: 447 F.3d 1307
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Concepcion Marie LEDESMA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

447 F.3d 1307

UNITED STATES of America, Plaintiff-Appellee, v. Concepcion Marie LEDESMA, Defendant-Appellant.

No. 05-3163.

United States Court of Appeals, Tenth Circuit.

May 19, 2006.

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

Michael S. Holland, Holland and Holland, Russell, KS, for Defendant-Appellant.

Before McCONNELL, BALDOCK, and TYMKOVICH, Circuit Judges.

McCONNELL, Circuit Judge.

This is the latest in a series of cases confronting this Court concerning traffic stops based on problems with temporary registration tags. We hold that displaying a temporary tag behind a heavily tinted rear window violates a Kansas statute requiring that licence plates appear "in a place and position to be clearly visible." See Kan. Stat. Ann. § 8-133. State troopers therefore did not exceed the permissible scope of their traffic stop by issuing a citation and requesting consent for a subsequent search. We affirm the decision of the district court.

I. Factual Background

On the afternoon of May 20, 2003, Kansas State Trooper Jerett Ranieri noticed a group of three vehicles traveling close together in the slow lane on I-70. One of the vehicles had Michigan plates. Another, a black Chevy van, had no visible licence plate or registration. Trooper Ranieri "didn't see anything at all" resembling a licence plate on the van, either "on the back of the vehicle or on the bumper of the vehicle." Appellee's Supp.App. 25. Aware that Kansas law requires licence plates to appear "in a place and position to be clearly visible," Kan. Stat. Ann. § 8-133, Trooper Ranieri conducted a traffic stop. As he approached the car on foot, he could "kind of see something" that "resembled registration" in the rear window. Appellee's Supp.App. 27, 52. Even at a distance of four or five feet, however, the "[e]xtremely dark" tinting of the rear window made the temporary tag "hard to read." Id. at 26. He could not tell, for example, what state issued the registration tag, or whether the barely-legible numbers were expiration numbers.

The driver of the car was Defendant-Appellant Maria Concepcion-Ledesma, and her passenger was Lena Beydoun. Trooper Ranieri asked Ms. Concepcion-Ledesma for her license, registration, and insurance information, and informed her that the vehicle's tag was "unreadable, not visible." Id. at 28. Trooper Ranieri then asked the women about their travel plans. They replied that they were driving from Detroit to Los Angeles for a vacation of one or two weeks. When Trooper Ranieri asked where they planned to stay in Los Angeles, they said they did not know, and that they "maybe could find some friends down there." Id. at 31. Yet Trooper Ranieri saw no luggage in the van, suggesting that the women were not actually vacationing. They denied traveling together with the two other vehicles Trooper Ranieri had seen nearby in the slow lane. He found the denial suspicious because he had observed the three vehicles traveling close together, and because at least one of the other vehicles had Michigan plates, both women had Michigan driver's licenses, and they indicated that they were traveling from Detroit. Trooper Ranieri found a number of other factors suspicious as well: (1) he smelled the odor of air freshener, which "could be used to conceal the odor of illegal drugs," id. at 34; (2) he could tell that the van was recently purchased, and he "thought that [it] was a little funny they were already taking a trip with it," id. at 39; (3) the women carried a cell phone and an atlas and (4) the women were "coming from an area where narcotics is [sic] usually warehoused or narcotics is [sic] stored. . . to another source city," id. Throughout the conversation, both women appeared "extremely nervous" to Trooper Ranieri. Id. at 30. Ms. Beydoun never made eye contact, and Ms. Concepcion-Ledesma's hands and voice were "real shaky." Id. at 29-30. Trooper Ranieri found this behavior suspicious "[b]ecause normal people will talk, and they're friendly with law enforcement officers, you know, because we're here to help." Id. at 29. He later conceded that many motorists who are innocent, or who merely receive a speeding ticket, are nervous when stopped by state troopers, but testified that the kind of nervousness he observed in this case was "the same type of nervousness that I see [in] people running loads of drugs or hiding something." Id. at 80.

Trooper Ranieri took the paperwork back to his vehicle, filled out a warning for displaying a registration tag that was not clearly visible, and returned to the side of the van. Although his testimony at the suppression hearing differed from Ms. Concepcion-Ledesma's, the district court found, based on a videotape of the stop, that Trooper Ranieri returned the women's documents. This exchange followed:

Trooper Ranieri: This is just a warning paper saying like if you get stopped again you can show them that you have been warned and if you get stopped again [inaudible].

Female voices: Okay.

Trooper Ranieri: Thank you girls. You have a safe one. Ma'am you wouldn't have anything, uh, weapons, or any type of illegal stuff in the back?

Female voices: No.

Trooper Ranieri: Could we look, could we take a minute to look back there? Just your bag and stuff.

Female voices: Yeah.

Trooper Ranieri: Just for my safety could I have you two hop out, just for my safety, just take five minutes — get you moving down the road. We have a lot of stuff moving back and forth. Thank you.

Videotape; Mem. & Order 5. Trooper Ranieri understood the women's consent to a search of their "bag and stuff" as consent to search the entire van.

Accompanied by Trooper Andrew Dean, who had recently arrived at the scene, Trooper Ranieri opened the back doors of the van. They confirmed that the only pieces of luggage the women carried were two small duffel bags. Upon opening the back doors of the van, they could also see suspicious signs of alterations to the interior of the vehicle. Specifically, Trooper Ranieri testified that:

[I]t looked like the van had been — the side walls and panels and stuff had been taken off and put back on several times, or just taken out and put back in a little jagged, because insulation — and screws and stuff were all scarred and marked up, the panels were all kind of, like they were pulled out, and you could see where the carpet and panel didn't match up, because it looked like they had been pulled away from the wall and were offset.

Id. at 44-45. Upon seeing this evidence of tampering with the interior of the vehicle, Trooper Ranieri's suspicion "skyrocketed." Id. at 45. Trooper Dean removed a foam insert from the inside of a manufactured cup holder, revealing a layer of foam. By removing the foam, he discovered vacuum sealed packages containing small tablets. Further exploration turned up tablets throughout the interior of the van. Field testing revealed that the packages contained approximately 330 pounds of pseudoephedrine, a list I chemical. See 21 U.S.C. § 802(34)(K).

Later, the troopers learned that the van in fact displayed an ordinary, valid temporary registration issued by the State of Michigan. Although no Michigan statute specifies the proper location for display of a temporary registration, the registration sticker itself contains printed instructions: "Moisten face of sticker and place on inside of lower left rear window." Id. at 55. According to Trooper Ranieri, the display of the temporary registration on the van comported with those instructions. They also learned that the van in fact contained no air freshener. On cross-examination, Trooper Ranieri admitted that he was not sure it was air freshener, but that it was "just like a smell that you'd smell, kind of a fruity sweet smell." Id. at 57. He also acknowledged that the smell could have been placed in the van by the dealership, as the van had been purchased only a few days earlier.

Ms. Concepcion-Ledesma was indicted on three counts: (1) possession of 332 pounds of pseudoephedrine, knowing or having reasonable cause to believe it would be used to manufacture methamphetamine, see 21 U.S.C. § 841(c)(2); (2) conspiracy to possess 530 pounds of pseudoephedrine, knowing or having reasonable cause to believe it would be used to manufacture methamphetamine, a Schedule II controlled substance, see id. §§ 841(c)(2), 846; and (3) traveling in interstate commerce to promote and carry on the unlawful activity of methamphetamine manufacture, see id. § 1952(a)(3)(B). The district court denied her motion to suppress the pseudoephedrine recovered from her vehicle, but ultimately dismissed the other two counts against her. She entered a conditional guilty plea as to the last count, reserving the right to bring this appeal concerning the legality of the traffic stop and ensuing search.

II. Discussion

Ms. Concepcion-Ledesma appeals from the district court's order denying her motion to suppress. She challenges three aspects of the traffic stop and search. First, she argues that Trooper Ranieri exceeded the permissible scope and duration of the stop under United States v. McSwain, 29 F.3d 558 (10th Cir.1994). Second, she argues that she did not voluntarily consent to any search of her vehicle. Third, in the alternative, she argues that at most she consented to a limited search of her "bag and stuff," and that Troopers Ranieri and Dean exceeded the scope of that consent by prying open interior panels of the van to discover the pseudoephedrine. The government concedes that she did not consent to a search behind the panels of the van, but argues that the officers had probable cause to expand the search.

A. Scope and Duration of the Traffic Stop

A traffic stop is a seizure for Fourth Amendment purposes, and must be justified by reasonable articulable suspicion under the standards set forth in Terry v. Ohio, 392 U.S....