                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                 UNITED STATES COURT OF APPEALS                            FEB 13 2002

                                 TENTH CIRCUIT                        PATRICK FISHER
                                                                                Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 01-3117
 v.                                          (D.C. No. 00-CR-10102-01-MLB)
                                                        (D. Kansas)
 RENE R. GONZALES,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, ALARCON, ** and ANDERSON, Circuit Judges.



      Rene R. Gonzales entered a conditional plea of guilty to count one of an

indictment charging unlawful possession with intent to distribute

methamphetamine in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2. He

appeals the denial of his motion to suppress evidence. We affirm.

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
        The Honorable Arthur L. Alarcon, United States Circuit Judge, United
States Court of Appeals for the Ninth Circuit, sitting by designation.
      While patrolling I-70 west of Colby, Kansas, on the afternoon of July 16,

2000, state highway patrol sergeant Terry Kummer observed the car driven by Mr.

Gonzales twice cross the fog line by approximately two feet within a one-mile

span. After pulling the car over and inspecting Mr. Gonzales’ license and rental

car agreement and briefly conversing with the driver, Sergeant Kummer, issued a

warning ticket and stated “have a safe trip.” At that point, Kummer admittedly

had no intention of allowing Gonzales to leave the scene.

Within seconds, Sergeant Kummer resumed his conversation with Mr. Gonzales,

stating “Can I ask you a few questions?” Gonzales answered in the affirmative,

with Kummer then inquiring whether the driver was carrying any guns or

weapons. Mr. Gonzales answered “no,” and then opened the vehicle’s trunk lid

with the remote release when Kummer asked to search the trunk space. Having

found no contraband in this area, Sergeant Kummer pointed toward the passenger

side of the vehicle, asking “Mind if I look over there?” Without a discernable

response from Mr. Gonzales, at least as was evident from the videotape recording

of the incident, Kummer walked around the car. He opened the car’s rear,

passenger-side door after Mr. Gonzales unlocked it, either manually by reaching

over the seat or by using the remote release.

      Sergeant Kummer opened the lid to a cooler located in the back seat.

Conversing with Mr. Gonzales about the contents of the cooler while


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simultaneously rummaging through it, Sergeant Kummer located a plastic

container, which he opened. In it he discovered what he believed to be an illegal

substance. He placed Mr. Gonzales under arrest.

      Mr. Gonzales was indicted for possession of methamphetamine with intent

to distribute. The district court denied his motion to suppress the evidence

obtained from the vehicle search as well as his motion for reconsideration. He

then entered a conditional plea of guilty to count one of the indictment and was

sentenced to an 87-month term of imprisonment.

      On appeal, Mr. Gonzales asserts that the district court erred in failing to

suppress evidence obtained from the traffic stop on the following grounds: the

initial stop was unjustified; even if the stop was justified, the continued detention

and questioning exceeded the permissible scope of the stop; and there was no

“objectively reasonable and articulable suspicion” sufficient to justify the

continued detention.

      We review factual findings from the denial of a criminal defendant’s

motion to suppress evidence for clear error, viewing the evidence in the light

most favorable to the government. See United States v. Gordon, 173 F.3d 761,

765 (10 th Cir. 1999). We review de novo questions of law, including ultimate

determinations of reasonableness. See id.

      Addressing the first argument raised on appeal, we find no error in the


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district court’s determination that the initial stop of Mr. Gonzales’ vehicle was

justified. A traffic stop constitutes a “seizure” within the meaning of the Fourth

Amendment and is therefore subject to the “reasonableness” requirement. See

Delaware v. Prouse, 440 U.S. 648, 653 (1979). This requirement is met if the

officer has either probable cause to believe that a traffic violation was committed

by the motorist, or a reasonable articulable suspicion that the driver violated the

jurisdiction’s traffic regulations. See United States v. Ozbirn, 189 F.3d 1194,

1197 (10 th Cir. 1999). After hearing the testimony, the district court found

Sergeant Kummer’s testimony to be both credible and sufficient to either support

probable cause to stop Mr. Gonzales’ car, or alternatively, to provide a reasonable

articulable suspicion for the stop. We see no error in this determination.

      Nor are we persuaded the district court erred in determining that Mr.

Gonzales voluntarily consented to the continued detention and questioning, as

well as to the search of his vehicle and its contents. Once a driver has produced a

valid driver’s license and vehicle registration, an officer conducting a routine

traffic stop is prohibited from continuing to detain the motorist, subject to two

exceptions. See United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10 th Cir.

1994) (internal citations omitted). Applicable to this case is the exception created

when the encounter between the officer and the citizen becomes consensual. See

id. Correctly applying a totality of the circumstances test, the district court found


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that the initial stop had become a “consensual encounter” between Mr. Gonzales

and Sergeant Kummer. The evidence supports that conclusion.

      Finally, we find no error in the district court’s determination that Mr.

Gonzales voluntarily consented to the search of his automobile. In general, a

warrantless search is permissible when the acting officer obtains valid consent to

perform the search in question. See Florida v. Jimeno, 500 U.S. 248, 250-51

(1991). The scope of this search is limited by the scope of the consent given, and

is assessed according to an objective standard of reasonableness. See id at 251-

252. Under this standard, a suspect’s general consent to search an area is deemed

to extend to a search of any containers within that area that could hold

contraband, unless the suspect has limited the scope of the search consented to or

has withdrawn consent to the search. See id. A defendant’s failure to limit or

withdraw the consent indicates the search was performed in accordance with the

consent given. See United States v. Gordon, 173 F.3d at 766.

      Applying these principles to the facts of this case supports our conclusion

that the search of the cooler and its plastic container did not exceed the scope of

Mr. Gonzales’ consent. The warrantless search of the vehicle was justified by

Mr. Gonzales’ voluntarily consent to it. The district court’s findings establish

that under an objective standard, Gonzales’ general consent to search would

include areas of the automobile in which weapons or drugs could be found.


                                         -5-
Sergeant Kummer asked Gonzales if he was carrying any of these items, and

immediately after Gonzales answered “no,” Kummer asked to inspect the trunk.

Mr. Gonzales answered affirmatively by opening the trunk lid with the remote

release. Clearly this search would reasonably be understood to be for the items

just mentioned by Sergeant Kummer.

      Mr. Gonzales did not expressly or impliedly limit the bounds of the search,

nor did he clearly object to the search once Sergeant Kummer asked to extend it

to the rear passenger compartment of the vehicle. Gonzales again failed to object

to the continued search once Kummer had gained access to the back seat, opened

the cooler, rummaged through it, and then opened a container within the cooler.

Under an objective standard of reasonableness, these extended searches did not

exceed the boundaries of Gonzales’ original consent, because all the areas

searched were within the areas consented to, namely the passenger compartment

of the vehicle, and they were all capable of containing contraband.

      For the foregoing reasons, Mr. Gonzales’ conviction and sentence are

AFFIRMED.

                                              ENTERED FOR THE COURT

                                              Stephanie K. Seymour
                                              Circuit Judge




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