US v. Lopez-Mendoza

• Decision Date: 15 April 2010
• Docket Number: No. 09-2189.,09-2189.
• Citation: 601 F.3d 861
• Parties: UNITED STATES of America, Appellee, v. Santiago LOPEZ-MENDOZA, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

601 F.3d 861

UNITED STATES of America, Appellee, v. Santiago LOPEZ-MENDOZA, Appellant.

No. 09-2189.

United States Court of Appeals, Eighth Circuit.

Submitted: March 12, 2010.

Filed: April 15, 2010.

COPYRIGHT MATERIAL OMITTED

Gregory C. Damman, argued, Seward, NE, for appellant.

Bruce Gillan, AUSA, argued, Lincoln, NE, for appellee.

Before SMITH, BENTON, and SHEPHERD, Circuit Judges.

BENTON, Circuit Judge.

Santiago Lopez-Mendoza pled guilty to one count of possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1). In the plea agreement, Lopez-Mendoza reserved the right to appeal the district court's¹ denial of his motion to suppress. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, this court affirms.

I.

At about 8:30 a.m. on December 29, 2007, Rene Manuel Vargas-Miranda and his passenger, Santiago Lopez-Mendoza, pulled into a Nebraska gas station in a Dodge Magnum with New York plates. Vargas-Miranda entered to buy coffee, and talked casually with county deputy Randy Brown inside. Brown was in uniform and visibly armed. Vargas-Miranda mentioned his car belonged to his girlfriend in New York, and he was driving there to stay two or three weeks.

As Vargas-Miranda was leaving, Deputy Brown asked for his license and registration. Vargas-Miranda provided a California driver's license. He did not have registration, but produced an insurance card with the name Jessica Roldan. The deputy took the card and asked Vargas-Miranda the name of the car's owner. Vargas-Miranda tried to read the card in the deputy's hand, then said Lopez-Mendoza's girlfriend owned the car. When asked how he and Lopez-Mendoza planned to return to California, Vargas-Miranda said they would probably rent a car.

Deputy Brown approached the car and asked Lopez-Mendoza who owned it. Lopez-Mendoza answered "Jessica Roldan." Asked about travel plans, Lopez-Mendoza said he and Vargas-Miranda were going to New York for two or three days and flying back to California. At this point, Vargas-Miranda said that Lopez-Mendoza does not speak English; Lopez-Mendoza then told the deputy he does not speak English. The deputy noticed seven or eight air fresheners in the vehicle. He turned on the camera in his nearby patrol car.

Deputy Brown returned Vargas-Miranda's documents and thanked him for talking. He then asked if Vargas-Miranda had drugs in the car. Vargas-Miranda replied "no." Asked about heroin, Vargas-Miranda laughed and said he left it at home.

Deputy Brown asked, "Do you care if I look and see?," simultaneously pointing two fingers first toward his eyes and then at the car. Vargas-Miranda said "go ahead," but after a pause added, "You don't got no right. I wasn't even driving." Deputy Brown responded, "Well I'm asking you. I'm just asking you. I'm asking you. But like you said, it's all consensual. I'm just asking you." After asking about weapons, he went on to say, "Well, I'll tell you what, since you said I could look, I'm going to go ahead and look real quick, and then get you guys on your way." In response, Vargas-Miranda nodded his head.

Deputy Brown asked Vargas-Miranda and Lopez-Mendoza to stand by a nearby picnic table while he searched the car. After calling for back-up, Deputy Brown drove his patrol car behind the Dodge Magnum and got his drug-sniffing dog out of the car. Circling the Dodge Magnum, the dog did not alert. The deputy searched the rear cargo area, using a cordless drill to remove mismatched drywall screws from a side panel. Meanwhile, another officer arrived and placed Vargas-Miranda and Lopez-Mendoza in his patrol car.

Finding nothing in the rear area, Deputy Brown moved to the glove compartment. He saw a loose piece of fabric and noticed the rivets used to tack it to the back of the glove compartment had been removed. He found a duct-taped package wedged in the space between the glove compartment and the radio. The dog alerted when sniffing there. The car was towed and the package removed — it contained three pounds of heroin. The search lasted about 30 minutes before the drugs were found. The car was not damaged.

Lopez-Mendoza and Vargas-Miranda were indicted for possessing heroin with intent to distribute. Lopez-Mendoza entered a conditional guilty plea, reserving his right to appeal the denial of his motion to suppress. The district court sentenced Lopez-Mendoza to 151 months imprisonment.

II.

Lopez-Mendoza appeals the suppression issue, asserting that (1) he and Vargas-Miranda were unlawfully seized, (2) Vargas-Miranda did not consent to the search of the vehicle, and (3) if Vargas-Miranda consented, the deputy's search exceeded the scope of the consent.

Considering an appeal from the denial of a motion to suppress, this court reviews the district court's factual findings for clear error, and its legal determinations de novo. See United States v. Stachowiak, 521 F.3d 852, 854 (8th Cir.2008). This court will affirm "the district court's denial of a motion to suppress `unless it is unsupported by substantial evidence, based on an erroneous interpretation of the law, or, based on the entire record, it is clear that a mistake was made.'" Id., quoting United States v. Gladney, 48 F.3d 309, 312 (8th Cir.1995).

A.

Lopez-Mendoza contends that he and Vargas-Miranda were unlawfully seized by Deputy Brown. "Law enforcement officers do not violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen." United States v. Drayton, 536 U.S. 194, 200, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). "If a reasonable person would feel free to terminate the encounter, then he or she has not been seized." Id. at 201, 122 S.Ct. 2105. A consensual encounter may become an unlawful seizure if "it loses its consensual nature." United States v. Carpenter, 462 F.3d 981, 985 (8th Cir.2006), quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).

According to Lopez-Mendoza, the encounter in this case "quickly turned into an illegal investigatory detention when Deputy Brown took Mr. Vargas-Miranda's driver's license and insurance card." But an officer does not seize a person by asking for license and registration if he does not "convey a message that compliance with his request is required." Carpenter, 462 F.3d at 985. See Bostick, 501 U.S. at 434, 111 S.Ct. 2382 ("Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred."), quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). "Even when officers have no basis for suspecting a particular individual, they may generally ask the individual questions and request to examine his or her identification." Carpenter, 462 F.3d at 985; see also United States v. Granillo, 288 F.3d 1071, 1075 (8th Cir. 2002) ("no Fourth Amendment seizure had occurred as of the time the officers approached defendant and asked for identification."). Here, Deputy Brown did not convey a message that compliance was required; as the district court found, a reasonable person in Vargas-Miranda's position would feel free to decline the deputy's request and walk away. Instead, Vargas-Miranda provided his driver's license and an insurance card. Deputy Brown reasonably interpreted the "act of providing the documents as consent to retain them for brief examination or check. ..." Carpenter, 462 F.3d at 985.

Lopez-Mendoza argues he and Vargas-Miranda were unlawfully detained when Deputy Brown started asking about drugs, requested to search the vehicle, and searched it. Before he asked to search, Deputy Brown had already returned the license and insurance card to Vargas-Miranda. See United States v. White, 81 F.3d 775, 779 (8th Cir.1996) (where the officer returned White's license and registration and issued a warning ticket following a traffic stop, "White had everything he needed to lawfully proceed on his journey," and the officer's subsequent request to search "came during the course of a consensual encounter and was permissible with or without reasonable suspicion."). After the deputy returned the documents, Vargas-Miranda and Lopez-Mendoza had everything they needed to continue their trip, and their ongoing conversation with the deputy was consensual. Deputy Brown's request to search came during this consensual encounter.

Even if the ongoing conversation were not consensual, Deputy Brown had reasonable suspicion by this time. Reasonable suspicion requires "that the officer's suspicion be based upon particularized, objective facts which, taken together with rational inferences from those facts, reasonably warrant suspicion that a crime is being committed." United States v. Jones, 269 F.3d 919, 927 (8th Cir.2001) (internal quotations omitted). While Deputy Brown's conversation with Lopez-Mendoza dispelled any concern the car was stolen, Lopez-Mendoza's different description of travel plans, sudden statement that he does not speak English, and the many air fresheners in the car, taken together, gave Deputy Brown reasonable suspicion. See United States v. Foley, 206 F.3d 802, 806 (8th Cir.2000) (holding presence of a masking odor in a vehicle, passenger's nervous behavior, passenger's inability to remember the name of his purported daughter-in-law, and vast divergence between passenger's and driver's statements about travel accommodations justified further detention of the vehicle); Jones, 269 F.3d at 928 (8th Cir.2001) (holding an inconsistent statement about travel plans "casts suspicion and doubt on the nature and legitimacy" of defendants' activity); United States v. Pulliam, 265 F.3d 736, 740 (8th Cir.2001) (holding inconsistencies in information about the trip and relationship between the driver and passenger justified further detention of the driver...