U.S. v. Villa

• Decision Date: 29 December 2009
• Docket Number: No. 08-8100.,08-8100.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Josefina C. VILLA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

589 F.3d 1334

UNITED STATES of America, Plaintiff-Appellee, v. Josefina C. VILLA, Defendant-Appellant.

No. 08-8100.

United States Court of Appeals, Tenth Circuit.

December 29, 2009.

Ronald G. Pretty, Cheyenne, WY, appearing for Appellant.

David A. Kubichek, Assistant United States Attorney (Kelly H. Rankin, United States Attorney, with him on the brief), Office of the United States Attorney for the District of Wyoming, Casper, WY, appearing for Appellee.

Before TACHA and GORSUCH, Circuit Judges, and STAMP, Senior District Judge^*.

TACHA, Circuit Judge.

A jury convicted defendant-appellant Josefina Villa of possessing with intent to distribute at least 500 grams of methamphetamine and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii) and 18 U.S.C. § 2, and possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). On appeal, she challenges: (1) the denial of her motion to suppress evidence of the crimes; (2) the sufficiency of the evidence supporting her conviction for the firearm offense; and (3) her sentence for the firearm offense. We take jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

I. BACKGROUND

On the morning of December 6, 2006, Trooper McKay of the Wyoming Highway Patrol pulled over Ms. Villa for speeding on a highway east of Cheyenne, Wyoming. He approached the car on its passenger side where Angela Davis was sitting. In response to questions from the trooper, the women explained they were driving to Minnesota to visit family. Trooper McKay noticed two cell phones on the front console and two small duffel bags in the backseat. He also thought Ms. Villa was acting nervously but that Ms. Davis was acting overly friendly.

After Ms. Villa provided her license, registration, and insurance, Trooper McKay noticed that her license listed a California address but the car was registered in Nevada and the insurance information listed another Nevada address. The car also had been registered and insured only two weeks before. Trooper McKay took Ms. Villa's documents back to his patrol car, where he ran the information through his dispatch. After her information came back clear, Trooper McKay asked Ms. Villa to join him in the patrol car to clarify some questions. Ms. Villa complied. In the car, Trooper McKay began filling out a warning ticket and asked Ms. Villa where she lived. She explained that she lived in California but that the car was registered in Nevada because her boyfriend lived there. In response to additional questions from Trooper McKay, Ms. Villa stated again that she was going to Minnesota but this time said it was to visit Ms. Davis's family. Ms. Villa could not say to which city in Minnesota they were traveling. Trooper McKay finished writing the ticket, returned Ms. Villa's license, registration, and insurance information to her, and told her she was free to go.

As Ms. Villa was getting out of the patrol car, however, Trooper McKay requested permission to ask her a few more questions. Ms. Villa verbally agreed and remained in the car. Trooper McKay asked her again where the women were going in Minnesota. Ms. Villa said she did not know, because she had just woken up, but that they were planning to stay in Minnesota for two days. When Trooper McKay told her that was a long trip to make for only a two-day visit, Ms. Villa responded that she might fly back, apparently leaving her car in Minnesota.

Trooper McKay asked her to stay in the patrol car while he returned to Ms. Villa's car to question Ms. Davis about their travel plans. Ms. Villa, however, followed Trooper McKay out of the car. Ms. Davis also told Trooper McKay that she was going to Minnesota to visit family for a short time, and that she, too, might fly back. In contrast to Ms. Villa's statement, however, Ms. Davis indicated that she and Ms. Villa were related and that they were going to visit their family. When Trooper McKay asked how well Ms. Davis knew Ms. Villa, Ms. Davis responded, "like most families do. We just hang around a little bit."

Trooper McKay then asked Ms. Villa for consent to search the car. She refused. He detained both women and called a K-9 unit, which arrived approximately eleven minutes later. The dog alerted to the presence of drugs and a subsequent search of the car revealed two packages of methamphetamine under a panel.

At Ms. Villa's trial, Ms. Davis testified for the government. She explained that Ms. Villa's brother had offered them a .22-millimeter Beretta handgun for their protection during the trip. The women declined the offer but later found the gun packed in their belongings the night before they were stopped by Trooper McKay. From that point, Ms. Villa kept the gun either in her boot or in the car's console. When Trooper McKay pulled them over, Ms. Villa told Ms. Davis to put the gun in her pants. Later, when the women had been arrested and were sitting in the back of the patrol car, Ms. Davis hid the gun in the back seat. Trooper McKay found the gun two months later.

The jury convicted Ms. Villa of possessing with intent to distribute methamphetamine and aiding and abetting, and possessing a firearm in furtherance of a drug trafficking crime. The district court sentenced her to the ten-year mandatory minimum term for the methamphetamine conviction, see 21 U.S.C. § 841(b)(1)(A)(viii), and to a consecutive five-year sentence for the firearm conviction, see 18 U.S.C. § 924(c)(1)(A)(i).

II. DISCUSSION

A. Denial of Motion to Suppress

Prior to trial, Ms. Villa moved to suppress evidence seized as a result of the traffic stop and subsequent search. The district court denied the motion, which she now appeals.

The touchstone under the Fourth Amendment is reasonableness. United States v. Holt, 264 F.3d 1215, 1220 (10th Cir.2001) (en banc). The reasonableness of a traffic stop is examined under a two-part test: first, whether the officer's action was justified at its inception; and second, whether the officer's action during the stop was "reasonably related in scope to the circumstances which justified the interference in the first place." Id.

Ms. Villa does not dispute that the traffic stop was justified at its inception— i.e., that she was speeding. See United States v. DeGasso, 369 F.3d 1139, 1143 (10th Cir.2004) (a traffic stop is reasonable 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") (quoting United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir.1995) (en banc)). Instead, she first argues that once Trooper McKay had run her license and registration information through dispatch and it came back clear, there was no longer any continued need for the detention. Thus, according to Ms. Villa, Trooper McKay's instruction that she accompany him to his patrol car and his additional questions regarding her address and travel plans while he issued the ticket were unlawful.

It is well-established that:

A law enforcement officer conducting a routine traffic stop may request a driver's license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof of entitlement to operate the car, the driver must be allowed to proceed without further delay for additional questioning.

United States v. Elliott, 107 F.3d 810, 813 (10th Cir.1997). Here, however, Trooper McKay was in the process of writing the warning ticket when he asked Ms. Villa about her address and travel plans; he had not yet issued Ms. Villa the warning citation. In addition, we have often held that "questions relating to a driver's travel plans ordinarily fall within the scope of a traffic stop," United States v. Williams, 271 F.3d 1262, 1267 (10th Cir.2001), and that such questions are permissible so long as they do not prolong the stop, see United States v. Wallace, 429 F.3d 969, 974 (10th Cir.2005). Moreover, given the different addresses listed on Ms. Villa's license, insurance, and registration, it was entirely reasonable for Trooper McKay to ask Ms. Villa to come to the patrol car and to clarify which address to write on the ticket.¹

Next, Ms. Villa argues that she did not consent to further questioning by Trooper McKay after he issued the ticket and told her she was free to leave. "Typically, an officer must allow the driver to leave once the initial justification for a traffic stop has concluded." United States v. Manjarrez, 348 F.3d 881, 885 (10th Cir. 2003). Once an officer returns the driver's license and registration, the traffic stop has ended and questioning must cease; at that point, the driver must be free to leave. See id. "This general rule, however, is subject to an important exception. Additional questioning unrelated to the traffic stop is permissible if the detention becomes a `consensual encounter.'" Id. (quoting United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir.1998)). Whether the driver has consented to additional questions and detention turns on whether "a reasonable person would believe he was free to leave or disregard the officer's request for information." Id. at 886.

Ms. Villa relies primarily on two facts to argue that a reasonable person would not have felt free to disregard Trooper McKay's request to answer additional questions: (1) Trooper McKay was armed and in uniform; and (2) she had not yet fully exited his patrol car. We have held, however, that these two factors alone are not sufficient to cause a reasonable person to feel that he is not free to leave. In United States v. Bradford, 423 F.3d 1149 (10th Cir.2005), the defendant was sitting in the back of the officer's patrol car when the officer asked for answers to further questions. We explained that "[t]he fact that [the defendant] was sitting in ... [the trooper's] patrol car, without more, does not make her consent...