                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           AUG 6 2003
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 02-1556
 v.
                                                     (No. 02-CR-90-M)
                                                       (D. Colorado)
 CONRADO COTA-HERRERA,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and LUCERO, Circuit Judges.


      Convicted of illegal reentry following a prior deportation for an aggravated

felony in violation of 8 U.S.C. § 1326(a), Conrado Cota-Herrera appeals the

district court’s denial of his motions to suppress evidence. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.




      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
                                            I

      On the morning of January 24, 2002, on an interstate highway in the city of

Fruita, Colorado, State Trooper Oreolt observed a white van drifting into the

shoulder. Judging from the compression on the rear suspension, Oreolt noted that

the van was likely carrying large quantities of cargo or passengers. After the van

failed to timely signal as it turned off the highway, Oreolt followed the van off

the exit and into the parking lot of a fast-food restaurant. Between the freeway

exit and the parking lot, the van committed another traffic violation when it drove

straight through a right-hand turn lane.

      As he walked toward the van in the parking lot, Oreolt noticed that the

vehicle had California license plates and tinted windows, and that many

passengers were crowded in the back. In English and broken Spanish, he

communicated to the driver, Cota-Herrera, the reason for the stop. When Oreolt

requested Cota-Herrera’s driver’s license, registration, and insurance, he saw that

there were approximately fifteen passengers of Mexican or Central American

descent in the van, but could not detect any luggage or clothing. Cota-Herrera

was unable to produce proof of insurance, but he provided the officer with a

driver’s license and the vehicle registration; the name on the registration did not

match the name on the license. Cota-Herrera explained that the owner of the van

was not present, but that he had permission to drive it. Oreolt then asked Cota-


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Herrera, in English and then in Spanish, whether all of the passengers were

properly documented, at which point Cota-Herrera’s English-language skills

faltered. Based on the large number of passengers, their tired appearance, their

failure to provide documentation, the absence of luggage, and a smell emanating

from the van that he associated with long journeys, Oreolt contacted the

Immigration and Naturalization Service (“INS”) reporting a possible alien-

smuggling load. While waiting, Oreolt retained Cota-Herrera’s driver’s license

and registration. In addition to his suspicions regarding the immigration status of

the occupants, Oreolt testified that he had a secondary reason for detaining the

vehicle—for lack of insurance and proof of lawful possession of the van.

      When INS agents White and Cooper arrived fifteen to twenty minutes later,

Oreolt handed over the driver’s license and registration to the agents and issued a

verbal warning to Cota-Herrera for the traffic violations. White, with his INS

badge displayed and a firearm at his waist, approached the vehicle. After briefly

speaking with Cota-Herrera, White proceeded to open the sliding door of the van,

and noticed between twelve and fifteen passengers cramped, without seat belts,

inside. In accordance with standard INS procedure, White identified himself as

an immigration agent and asked the passengers in Spanish whether they were in

the United States illegally. He received affirmative responses from some of the

passengers, and no negative responses. Based on these responses, Agent White


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moved the entire group, including Cota-Herrera, into INS vans and transported

them to the INS facility for further investigation.

      Once the group was in administrative custody at the INS office, the INS

collected the group’s property for tagging, at which time Cota-Herrera identified

himself to officials with a different name. Before being advised of their rights or

being placed under arrest, each individual in the group was asked a series of

routine biographical questions from a “213” form. (2 R. at 57.) This form is

completed for all aliens in administrative custody and is used to initiate

deportation and removal proceedings. As part of this inquiry, INS agents asked

Cota-Herrera when, where, and how he entered the United States. Everyone in

the group was then processed through a fingerprint-identification system, which

identified the driver’s name as Cota-Herrera. Upon identifying him, the INS read

Cota-Herrera his rights under Miranda v. Arizona, 382 U.S. 436 (1966), after

which time Cota-Herrera refused to answer any further questions. INS officials

ordered Cota-Herrera’s “A-file,” received a few days later, which revealed that he

had previously been deported. (3 R. at 27.)

      On February 25, 2002, Cota-Herrera was indicted for illegally reentering

the United States after previously being deported pursuant to a felony conviction,

in violation of 8 U.S.C. § 1326(a). He filed two motions to suppress evidence

resulting from the allegedly unlawful detention of the van and its passengers and


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the statements he made prior to being informed of his Miranda rights. Rejecting

both motions on June 24, 2002, the district court found that the detention was

permissible under the Fourth Amendment, and that the motion to suppress Cota-

Herrera’s statements was moot because the government did not intend to submit

the statements at trial. Subsequently, Cota-Herrera filed a third motion to

suppress, again arguing that his statements to law-enforcement officers were

obtained in violation of Miranda, which was also denied. Following a jury trial,

Cota-Herrera was convicted of illegal reentry after deportation, and sentenced to

sixty-three months’ imprisonment. We consider Cota-Herrera’s direct appeal

from the denial of his suppression motions.

                                         II

      In reviewing the denial of a motion to suppress, “we accept the district

court’s factual findings unless clearly erroneous, and view the evidence in the

light most favorable to the government. However, we review de novo the

ultimate determination of the reasonableness of the search under the Fourth

Amendment.” United States v. Bustillos-Munoz, 235 F.3d 505, 511 (10th Cir.

2000) (quotation omitted). In claiming a violation of his Fourth Amendment

rights, Cota-Herrera challenges both (1) Trooper Oreolt’s initial detention of the

van and its passengers, and (2) the INS’s detention of the group.




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      As to Oreolt’s detention of the van and its passengers, Cota-Herrera does

not challenge the legality of the initial traffic stop. Rather, he claims that his

continued detention after he provided a license and registration was unjustified

under the Fourth Amendment. “We have consistently applied the principles of

Terry v. Ohio, 392 U.S. 1 (1968), to routine traffic stops.” United States v. Holt,

264 F.3d 1215, 1220 (10th Cir. 2001). During a routine traffic stop, the officer is

entitled to request a driver’s license and registration, but “once the motorist has

produced a valid license and proof that he is entitled to operate the car, he must

be allowed to proceed on his way, without being subject to further delay by police

for additional questioning.” Id. at 1221. “Further delay is justified only if the

officer has reasonable suspicion of illegal activity or if the encounter has become

consensual.” Id.

      In the instant case, Cota-Herrera provided Oreolt with his driver’s license

and the vehicle registration, but was neither able to prove that he was entitled to

operate the van, as the owner identified on the registration was not present, nor

able to produce proof of insurance. These facts alone created reasonable

suspicion for Oreolt to detain the van and the driver, notwithstanding Oreolt’s

testimony that these were not the sole reasons for the detention. See United

States v. Galindo-Gonzales, 142 F.3d 1217, 1224 (10th Cir. 1998) (holding that

driver’s failure to provide proof of lawful possession of the vehicle creates


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reasonable suspicion that the car may have been stolen, even though the officer

“did not characterize his questioning about the passengers as part of an

investigation of a possible car theft”). The existence of reasonable suspicion is

particularly apparent when evaluating the lack of insurance and proof of lawful

possession in conjunction with the other facts observed by Oreolt: the van’s out-

of-state license plates, the large number of individuals in the van, their tired

appearance, the smell emanating from the van indicating a long trip, and Cota-

Herrera’s apparent inability to respond to Oreolt’s questions, posed in both

English and Spanish, regarding whether the passengers were documented. Taken

together, these facts establish the reasonable suspicion necessary to justify the

fifteen- to twenty-minute detention of the van and its passengers until INS

officials arrived.

      Next, Cota-Herrera challenges the lawfulness of the detention once the INS

officials arrived at the scene and then transported the group to the INS facility.

Cota-Herrera complains that INS Agent White opened the door of the van and

questioned its occupants without making an independent inquiry as to whether

there was reason to suspect a violation of immigration laws. Given that Agent

White’s actions were informed by the call he received from Colorado State Patrol,

requesting his assistance in investigating the van and its driver for possible alien

smuggling, we hold that White’s decision to approach the van and open the


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sliding door was justified. See 8 U.S.C. § 1357(a)(1) (authorizing INS officials

to interrogate, without warrant, “any alien or person believed to be an alien as to

his right to be or to remain in the United States”); United States v. Hensley, 469

U.S. 221, 229–33 (1985) (holding that a police officer may, in detaining and

questioning an individual, rely on a bulletin posted by another police department,

as long as the department that posted the bulletin possessed reasonable suspicion

to justify the stop and/or detention).

      After asking the occupants about their legal status and receiving responses

confirming that at least some of the passengers were undocumented, while

receiving no responses indicating that anyone was properly documented, White

was justified in transporting the passengers to the INS facility for further

investigation and administrative processing. See United States v. Treto-Haro, 287

F.3d 1000, 1006 (10th Cir. 2002) (holding that an individual’s admission of

illegal-alien status creates probable cause for arrest); United States v. Santana-

Garcia, 264 F.3d 1188, 1193 (10th Cir. 2001) (same). Based on the passengers’

responses, White also had probable cause to arrest Cota-Herrera for a violation of

federal immigration laws. See, e.g., 8 U.S.C. § 1324(a)(1)(A)(ii) (criminalizing

the transport of undocumented aliens). Thus, we agree with the district court that

“[t]he INS agents acted within their statutory and regulatory authority in taking

all of the van occupants into custody for the purpose of determining the legality


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of their presence in the United States.” (1 R. Doc. 38 at 4.) For these reasons,

we affirm the district court’s conclusion that the detention did not violate the

Fourth Amendment.

                                         III

      Cota-Herrera also contends that his statements to law-enforcement officers

violated his Miranda rights. Miranda, of course, involved the admissibility of a

defendant’s statements. 384 U.S. at 439. In denying Cota-Herrera’s motions to

suppress, the district court concluded that the claim was moot as the government

did not seek to introduce into evidence any of Cota-Herrera’s statements taken

before he was informed of his Miranda rights. On appeal, Cota-Herrera proffers

no support for the contrary conclusion, and concedes that these statements were

not introduced at trial. See United States v. Minjares-Alvarez, 264 F.3d 980, 984

(10th Cir. 2001) (holding that because none of the defendant’s statements

obtained in violation of Miranda were submitted to the jury, “whatever

deprivation of rights [defendant] may have suffered at that point did not affect his

trial”). Further, there is no indication that evidence admitted at trial was derived

from Cota-Herrera’s statements taken before he was informed of his Miranda

rights under the fruit-of-the-poisonous-tree doctrine. Cf. United States v. Patane,

304 F.3d 1013, 1029 (10th Cir. 2002) (suppressing the physical fruits of a




                                         -9-
Miranda violation), cert. granted, 123 S. Ct. 1788 (2003). Thus, we hold that the

district court acted properly in dismissing Cota-Herrera’s Miranda claim.

                                        IV

      The judgment of the district court is AFFIRMED.



                                      ENTERED FOR THE COURT



                                      Carlos F. Lucero
                                      Circuit Judge




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