                                                                                        F I L E D
                                                                                United States Court of Appeals
                                                                                        Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                        MAR 28 1997
                                        TENTH CIRCUIT
                                                                                   PATRICK FISHER
                                                                                              Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                                No. 96-6210
           v.                                                     (W.D. Oklahoma)
 JUAN GOMEZ-ASCENCIO,                                         (D.C. No. CR-96-32-A)

                Defendant - Appellant.


                                 ORDER AND JUDGMENT*


Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

       Juan Gomez-Ascencio entered a conditional guilty plea to one count of

transporting illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). He now appeals

the district court’s denial of his motion to suppress evidence obtained after Oklahoma


       *
        This order and judgment is not binding precedent, except under the doctrines of law of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.
City police officers stopped him for a traffic violation. Mr. Gomez-Ascencio contends

that he was unlawfully detained and that his consent to search and further detention were

invalid because the actions of the officers subsequent to the traffic stop were not

reasonably related to the circumstances justifying the stop. We affirm.



                                     BACKGROUND

       At approximately 10:15 p.m. on January 29, 1996, Officers Jesse Trillo and

Damon Alexander of the Oklahoma City Police Department observed Mr. Gomez-

Ascencio’s van traveling north on Interstate 35. The van was straddling the solid white

line on the shoulder of the road, and weaving between the right lane and shoulder. The

van also appeared heavily laden, with the back end lower than the front end. Concerned

that the driver could be tired or under the influence of alcohol or drugs, the officers

stopped the van. Officer Trillo approached the van on the passenger’s side, advised Mr.

Gomez-Ascencio of the nature of the stop, and asked for his driver’s license in Spanish.

R. Vol. II at 5-7.

       Using a flashlight, Officer Trillo looked inside the van and noticed several

apparently Hispanic people “huddled underneath blankets” in the back. Id. at 9-10.

During the suppression hearing, when asked at what point he realized Mr. Gomez-

Ascencio may have illegal aliens as passengers, Officer Trillo testified: “Pretty much just

a few minutes within the traffic stop. I saw everybody huddled under blankets. There


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appeared to not be enough seating for everyone. At that point that arose my suspicions.”

Id. at 17. Moreover, approximately two weeks prior to this traffic stop, Officer Trillo

participated in a similar stop involving a van full of illegal aliens. Id. at 17.

       Officer Trillo took Mr. Gomez-Ascencio’s Illinois driver’s license to Officer

Alexander in the patrol car, in order to check the license and any outstanding warrants or

traffic tickets. While Officer Alexander checked defendant’s license, Officer Trillo

returned to the van and asked Mr. Gomez-Ascencio to step out and move to the back of

the van. Officer Trillo pat searched Mr. Gomez-Ascencio, and asked him about his travel

plans and his relationship to the other people in the van. Mr. Gomez-Ascencio explained

that he was traveling home to the Chicago area and that the people in the van were friends

he was taking with him. Officer Trillo then returned to the front of the van to talk with

the other passengers and determine whether they would confirm Mr. Gomez-Ascencio’s

story. Officer Trillo questioned the passengers in Spanish, who largely did not respond to

his questions, simply mumbling and remaining huddled under the blankets. They claimed

not to know Gomez-Ascencio, and only referred to him as “amigo.” Id. at 12, 15.

       The computer check revealed that Mr. Gomez-Ascencio’s license was valid, but

that he had a prior arrest for smuggling illegal aliens. Officer Trillo then asked for and

received Mr. Gomez-Ascencio’s consent to search the van. Officer Trillo asked the

passengers to get out of the van, pat searched each one, and requested identification.

There were fourteen undocumented aliens in the van. Id. at 12-15, 50. The officers


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quickly searched the van, asked the passengers to return to the van, and contacted the

Immigration and Naturalization Service (INS). The officers transported Gomez-Ascencio

and the passengers to the INS office, where they relinquished custody at approximately

11:20 p.m. Id. at 16, 49. At 10:30 the following morning, INS special agent Richard

Garza met with Mr. Gomez-Ascencio and advised him of his Miranda rights. He waived

his rights and admitted to transporting illegal aliens. Id. at 51-57.



                                       DISCUSSION

       On appeal from the denial of a motion to suppress, we view the evidence in the

light most favorable to the government and we review the district court's factual findings

only for clear error. United States v. Botero-Ospina, 71 F.3d 783, 785 (10th Cir. 1995)

(en banc), cert. denied, 116 S. Ct. 2529 (1996). We review de novo, however, whether

the officers had reasonable, articulable suspicion of criminal activity at the time of the

seizure. United States v. Shareef, 100 F.3d 1491, 1499 (10th Cir. 1996); United States v.

Carhee, 27 F.3d 1493, 1497 (10th Cir. 1994).

       Mr. Gomez-Ascencio concedes on appeal that the observed traffic violation was a

sufficient reason to stop him. Appellant’s Br. at 8 (citing Botero-Ospina, 71 F.3d at 787).

He argues, however, that the arresting officers violated his Fourth Amendment rights

because their actions subsequent to the traffic stop were not reasonably related to the

circumstances justifying the stop, resulting in his unlawful detention and an invalid


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consent to search and further detain him. Id. at 7. Specifically, he argues that the officers

should have allowed him to proceed once he provided proof of license and registration,

“without being questioned further and without questioning the passengers.” Id. at 9-10.

He urges that his statement to INS special agent Garza, and any evidence gathered as a

result of his allegedly unlawful seizure should have been suppressed. Id. at 10.

       Both the magistrate judge and the district court addressed these contentions, and

we substantially adopt their reasoning and conclusions. While an investigative detention

must “last no longer than is necessary to effectuate the purpose of the stop,” Florida v.

Royer, 460 U.S. 491, 500 (1983), an officer may retain a driver’s license and detain the

driver for further questioning if the officer acquires an objectively reasonable and

articulable suspicion that the driver is engaged in illegal activity. United States v.

Sandoval, 29 F.3d 537, 540 (10th Cir. 1994). And, it is permissible for an officer

conducting a routine traffic stop to perform a computer check on the driver’s license and

registration. United States v. McRae, 81 F.3d 1528, 1536 n.6 (10th Cir. 1996).

       In the context of and during the traffic stop, Officer Trillo, who had recent

experience with a similar arrest for alien smuggling, noticed the van was filled with

apparently Hispanic people, huddled under blankets, and without proper seats. The

passengers evaded Officer Trillo’s basic questions, and claimed to know Mr. Gomez-

Ascencio only as “amigo” even though Gomez-Ascencio said they were his friends.1 See

       1
        Officer Trillo testified: “I had asked [the passengers] earlier, ‘Who is this guy driving
                                                                                       (continued...)

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e.g., United States v. Kopp, 45 F.3d 1450, 1453-54 (10th Cir.), cert. denied, 115 S. Ct.

1721 (1995) (holding inconsistent stories from passenger and driver, among other factors,

supported continued detention); United States v. Barbee, 968 F.2d 1026, 1028 (10th Cir.

1992) (holding passengers’ behavior may create reasonable suspicion of illegal activity).

Furthermore, a routine check of Mr. Gomez-Ascencio’s license revealed his prior arrest

for alien smuggling. McRae, 81 F.3d at 1535 n.5 (stating prior arrest record can be a

factor, among others, giving rise to articulable suspicion).

       Considering the totality of these circumstances as we must, United States v.

Fernandez, 18 F.3d 874, 878 (10th Cir. 1994), the officers had an objectively reasonable

and articulable suspicion to support the detention for further questioning and the request

for consent to search. The district court’s finding that Mr. Gomez-Ascencio gave his

consent freely and voluntarily is not clearly erroneous.2

       For the foregoing reasons, and those ably set forth by the district court and

magistrate judge, we AFFIRM the district court’s denial of Mr. Gomez-Ascencio’s

motion to suppress evidence obtained during the detention and consensual search.



       1
        (...continued)
the van?’ They said, ‘I don’t know. We just call him Amigo.’” R. Vol II at 15.
       2
         Mr. Gomez-Ascencio argues that his confession to INS Agent Garza should be
suppressed because there “was not a sufficient break, temporally or in proximity, adequate to
purge the taint of the Fourth Amendment violation,” and that the “statement should have been
suppressed as fruit of Mr. Gomez’s unlawful seizure.” Appellant’s Br. at 10. Because we affirm
the district court’s holding that there was no Fourth Amendment violation, we need not reach Mr.
Gomez-Ascencio’s argument concerning the confession.

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      ENTERED FOR THE COURT


      Stephen H. Anderson
      Circuit Judge




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