                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  January 2, 2008
                    UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 05-4234
          v.                                             (D. of Utah)
 OCTAVIO ROJAS-SILOS,                           (D.C. No. 2:04-CR-471-DKW)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges. **


      Octavio Rojas-Silos was convicted of possessing methamphetamine with

intent to distribute in violation of 21 U.S.C. § 841(a)(1). Before trial, Rojas-Silos

moved to suppress the evidence of the methamphetamine. The district court

denied the motion. On appeal, Rojas-Silos argues that (1) the district court’s




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
ruling on the suppression motion was erroneous, and (2) there was insufficient

evidence to support his conviction.

      We AFFIRM.

                                  I. Background

      Utah trooper Steve Salas pulled over a pickup truck in which Rojas-Silos

was a passenger after observing several potential traffic violations. He first

noticed a crack in the windshield on the truck’s passenger side, and then observed

the truck’s driver change lanes without signaling and change lanes again by

signaling for less than three seconds as required by Utah law.

      After approaching the vehicle, Salas observed one small clothing bag in the

bed of the truck for the two adult male occupants. The vehicle had an Iowa

license plate and had been traveling eastbound. When Salas asked the driver,

Kenneth Slater, for a driver’s license, Slater could not produce one. Slater could

not identify the first or last name of his passenger (Rojas-Silos) or the last name

of the owner of the vehicle.

      Salas took Slater to his patrol car to issue a citation and determine whether

Slater was licensed to drive the vehicle. While waiting for a vehicle registration

check from police headquarters, Salas asked Slater several questions. During

their conversation, Slater’s reasons for driving the truck through Utah changed.

Slater first claimed he was driving back to Iowa after vacationing in Los Angeles;

he next said he had gone to Los Angeles to pick-up his passenger; and he finally

                                         -2-
said his father had paid him to visit several car-detailing shops in Los Angeles to

learn how those shops operated.

      Slater also told Salas he had departed Iowa on Wednesday, arrived in Los

Angeles on Friday, and left Los Angeles on Sunday. Slater and Rojas-Silos

shared a motel room Friday and Saturday nights. Slater also stated Rojas-Silos

was moving to Iowa, even though he did not have any bag, luggage, or clothing

with him. The small duffle bag in the truck belonged to Slater.

      While Slater was still in the patrol car, Salas returned to the truck to ask

Rojas-Silos a few questions. Rojas-Silos stated he was going to Council Bluffs,

which was inconsistent with Slater’s statement that they were going to Dennison.

Rojas-Silos confirmed the two men did not know each other when he said he did

not know Slater’s name. Finally, Rojas-Silos denied that a new-looking cell

phone in the truck’s center console belonged to him, even though Slater also

denied ownership of the phone.

      Trooper Salas obtained permission from both Slater and Rojas-Silos to

search the vehicle. Within the truck’s tailgate, Salas discovered eight large

packages of methamphetamine, totaling 3,400 grams. A small amount of

methamphetamine was also found in Slater’s pocket. Salas arrested them, and

later learned Rojas-Silos had paid for the motel room and spent Saturday in

conversations with suspected drug dealers.




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      Before trial, Slater and Rojas-Silos moved to suppress evidence of the

methamphetamine. The district court denied their motions. A jury convicted

Slater and Rojas-Silos of the count charged. They were sentenced to 120-months

imprisonment and 60-months supervised release. We have already affirmed

Slater’s conviction on appeal. United States v. Slater, 184 F. App’x 717 (10th

Cir. 2006). We now consider Rojas-Silos’s arguments that (1) the district court

should have suppressed the methamphetamine because Rojas-Silos did not validly

consent to the search, and (2) there was insufficient evidence to support the jury’s

conclusion that Rojas-Silos knowingly possessed the methamphetamine. We

reject both arguments.

                                   II. Discussion

      A. Consent

      Whether Rojas-Silos freely and voluntarily consented to the search of the

vehicle is a question of fact based on the totality of the circumstances. United

States v. Pena, 143 F.3d 1363, 1366 (10th Cir. 1998). We review for clear error.

Id. An individual may consent to a search while being legally detained. “The

detention is only one factor to be considered in determining whether consent was

voluntarily and freely given based on the totality of the circumstances.” United

States v. Contreras, 506 F.3d 1031, 1037 (10th Cir. 2007).

      The district court did not err in concluding Rojas-Silos validly consented to

the search. We have already determined trooper Salas had reasonable suspicion

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to prolong the initial traffic stop. See Slater, 184 F. App’x at 720 (summarizing

facts supporting reasonable suspicion Slater and Rojas-Silos were engaged in

transporting drugs). Rojas-Silos was therefore legally detained. See, e.g., United

States v. West, 219 F.3d 1171, 1176 (10th Cir. 2000) (noting an officer can extend

a traffic stop if “the officer has reasonable articulable suspicion of other crimes”).

The record clearly establishes trooper Salas obtained free and voluntary consent

from both Rojas-Silos and Slater to search the vehicle. Trooper Salas did not

brandish his weapon, physically touch either individual, or use an aggressive

tone. In short, Rojas-Silos fails to point to any evidence tending to show his

consent was not validly given.

      We therefore conclude the district court did not err in admitting evidence of

the methamphetamine.

      B. Sufficiency of the Evidence

      We will uphold a conviction if “viewing the evidence in the light most

favorable to the government and drawing all reasonable inferences therefrom, a

reasonable jury could have found the defendant guilty beyond a reasonable

doubt.” United States v. Muessig, 427 F.3d 856, 861 (10th Cir. 2005). In this

case, the government had to prove Rojas-Silos (1) possessed the controlled

substance, (2) with knowledge, and (3) intended to distribute or dispense the

controlled substance. See United States v. Delgado-Uribe, 363 F.3d 1077, 1084




                                          -5-
(10th Cir. 2004); United States v. Lauder, 409 F.3d 1254, 1259 (10th Cir. 2005).

Rojas-Silos contests only the second element. 1

       Rojas-Silos’s argument that he lacked knowledge of the methamphetamine

in the truck is unpersuasive, because there was more than sufficient evidence for

the jury to discount his credibility and believe he had knowledge of the drugs.

The record establishes the following: (1) Rojas-Silos had conversations with

suspected drug dealers in Los Angeles; (2) Rojas-Silos paid for the motel room he

and Slater shared in Los Angeles; (3) Salas testified drug organizations often

provide a cell phone to a person who is hauling narcotics; (4) Rojas-Silos and

Slater both denied ties to the cell phone in the truck’s center console; (5) Rojas-

Silos was traveling across the country with another man whose name he did not

know; (6) Rojas-Silos and Slater gave inconsistent stories about the purpose of

their trip; and (7) Rojas-Silos and Slater named different cities as the destination

of their trip.

       We conclude this evidence, viewed in the light most favorable to the jury’s

verdict, leads to a plausible inference Rojas-Silos had knowledge of the drugs in




       1
         To the extent Rojas-Silos also challenges whether he “possessed” the
methamphetamine, we conclude the jury could have so found under the theory of
constructive possession. See, e.g., Lauder, 409 F.3d at 1259 (holding “a
conviction for constructive possession is properly sustained where the evidence
supports at least a plausible inference that the defendant had knowledge of and
access to the contraband” (internal quotation marks omitted)).

                                         -6-
the truck’s tailgate—i.e., Rojas-Silos knowingly possessed the methamphetamine.

The jury was not required to believe Rojas-Silos’s alternative version of events. 2

                                  III. Conclusion

      For the reasons set forth above, we AFFIRM.

                                       Entered for the Court,

                                       Timothy M. Tymkovich
                                       Circuit Judge




      2
         As the prosecutor pointed out, Rojas-Silos’s explanation for his trip to
Los Angeles strains credulity. In closing argument, the prosecutor stated,
“Remember that Mr. Silos’s story was that he saved up money from roofing in
Iowa to take this vacation to California. You will recall that the only thing he did
in California was spend a total of $70 at a Super 8 motel room, to spend the night
with a guy that he does not know, and went to a flea market and didn’t buy
anything, and there was nothing found in his truck other than the clothes on his
back, and then he spent the day with Mr. Slater, who he claims to not know, and
claims to not speak English so he can’t even communicate with this guy and that
is his vacation. Does that story make sense?” R., Vol. 4, Doc. #96, at 105.

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