                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               DEC 21 1998
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                            No. 97-3344
 v.
                                                     (D.C. No. 97-CR-10051-2)
                                                        (District of Kansas)
 STEVEN BLAIR SPEAL,

          Defendant - Appellant.




                             ORDER AND JUDGMENT *


Before ANDERSON, KELLY and LUCERO, Circuit Judges.



      Steven B. Speal appeals his conviction and sentence for multiple drug and

firearms offenses. He challenges the denial of motions to suppress physical

evidence and inculpatory statements obtained by police following a traffic stop of

the vehicle in which he was traveling. He also alleges it was error to sentence

him as a career drug offender. We exercise jurisdiction pursuant to 28 U.S.C. §

1291, and affirm.



      *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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

      Speal’s convictions arise from a traffic stop conducted by Trooper Scott

Mayfield. Because Latonia Benson, the driver of the stopped vehicle, was unable

to produce a driver’s license or any valid identification, Mayfield asked her

passenger, appellant Speal, for his license in order to determine if he could drive

the vehicle. Speal produced an Illinois license in the name “Chris McMillan.”

However, a computer check yielded no record of an Illinois license issued under

that name. A valid Oklahoma license did exist for “Latonia Benson,” but

Mayfield remained unsure as to whether Benson had correctly identified herself.

A concurrent computer check also revealed that the couple’s vehicle was

registered to Joe Paddock, rather than to John Benson, the person whom Benson

claimed as the owner of the car.

      As Mayfield issued Benson a ticket, Trooper Mike Geer, newly arrived on

the scene, removed Speal to his patrol car for questioning. Informed that a

license for Chris McMillan was not “coming up through the State of Illinois,”

Speal admitted that he had lied about his identity, had numerous prior felony

convictions, and had recently been released from jail. IV R. at 87-89. Geer’s

supervising sergeant then directed Geer to handcuff Speal and read him his

Miranda rights. When the sergeant searched Speal, he found $7,000 in his

pockets. And, after Benson agreed to a search of the vehicle, Mayfield also


                                         -2-
discovered multiple guns and two garbage bags filled with marijuana. A later

inventory search revealed a quantity of methamphetamine as well.

       Speal was ultimately convicted of conspiracy to distribute a controlled

substance in violation of 21 U.S.C. § 846; possession with intent to distribute

methamphetamine and marijuana in violation of 21 U.S.C. § 841(a)(1); possession

of a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1);

and two counts of possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

He was sentenced to life imprisonment without possibility of parole.

                                            II

       We decide, first, that Speal is without standing to challenge the search of

the vehicle. To have standing, a party must have an objectively reasonable,

subjective expectation of privacy in the area searched.   See Smith v. Maryland ,

442 U.S. 735, 740 (1979) . Under this standard, “a ‘passenger qua passenger’ has

no reasonable expectation of privacy in a car in which he asserts neither a

property interest nor a possessory interest and where he disclaims any interest in

the seized object.”   United States v. Jefferson , 925 F.2d 1242, 1249 (10th Cir.

1991) (citing Rakas v. Illinois , 439 U.S. 128, 148-49 (1978)).

       In this case, Speal neither owned the vehicle nor did he have permission

from the owner to use it. In addition, he failed to object to or attempt to limit the

search. Although Benson stated that some of the clothes in the vehicle belonged


                                            -3-
to Speal, that is insufficient to establish a reasonable expectation of privacy in the

vehicle. Nor, given Speal’s failure to present evidence that he owned the

contraband, is the presence of   Speal’s fingerprints on a bag of marijuana. 1

                                            III

       Although Speal cannot challenge the vehicle search, he can challenge the

vehicle stop and his own detention.      See United States v. Eylicio-Montoya     , 70

F.3d 1158, 1164 (10th Cir. 1995);      United States v. Erwin , 875 F.2d 268, 270

(10th Cir. 1989). Nonetheless, w      e affirm the district court’s findings that the

vehicle stop and Speal’s detention in Geer’s patrol car for questioning were both

proper.

                                             A

       A traffic stop is analogous to an investigative detention.      See United States

v. Shareef , 100 F.3d 1491, 1500 (10th Cir. 1996). To be legal, the stop must be

justified at its inception and the subsequent detention “reasonably related in scope

to the circumstances which justified the interference in the first place.” Terry v.

Ohio, 392 U.S. 1, 20 (1968). Under these principles



       1
         Were we to assume that Speal has standing to challenge a search of his clothing,
the result in this case would be no different. Consent to search a car is consent to search
the whole car and whatever is in it, unless such consent has been limited. See United
States v. Elliott, 107 F.3d 810, 814-15 (10th Cir. 1997). As neither Benson nor Speal
attempted to limit the terms of consent, the entire search was validated by Benson’s
voluntary consent. See United States v. McRae, 81 F.3d 1528, 1537-38 (10th Cir. 1996).

                                             -4-
      an investigative detention may be expanded beyond its original
      purpose . . . if during the initial stop the detaining officer acquires
      “reasonable suspicion,” of criminal activity, that is to say the officer
      must acquire a “particularized and objective basis for suspecting the
      particular person stopped of criminal activity.”. . . We have noted
      that “[o]ne recurring factor supporting a finding of reasonable
      suspicion. . . is the inability of a defendant to provide proof that he is
      entitled to operate the vehicle he is driving.”

United States v. Villa-Chaparro, 115 F.3d 797, 801-802 (10th Cir. 1997) (internal

citations omitted). “The government has the burden of demonstrating that the

seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently

limited in scope and duration to satisfy the conditions of an investigative seizure.”

United States v. Perdue , 8 F.3d 1455, 1462 (10th Cir. 1993) (quoting    Florida v.

Royer , 460 U.S. 491, 500 (1983)).

      Under these standards, the vehicle seizure and Speal’s investigative

detention in Geer’s patrol car were proper. Mayfield properly initiated the stop

after witnessing Benson attempt an illegal U-turn.    See Whren v. United States ,

116 S.Ct. 1769, 1772 (1996) (automobile stop is reasonable if police have

probable cause of traffic violation). He properly continued the detention of the

car and its occupants in light of Benson’s lack of identification or license, Speal’s

unverifiable license, questions about vehicle ownership, the couple’s inconsistent

stories about the purpose of the trip, the early hour, and the chosen route—one

along which guns and drugs are often transported.    Because Benson could not

produce a license or identification, Mayfield’s inquiry of Speal as to whether he

                                           -5-
could legally drive or prove the couple was authorized to use the vehicle was

reasonable. See United States v. Alvarez , 68 F.3d 1242, 1244-45 (10th Cir.

1995) (officer may pose questions to vehicle passengers during traffic stop to

determine lawful possession of vehicle);     see also United States v. Kopp , 45 F.3d

1450, 1453-54 (10th Cir. 1995) (assuming that officer may question passenger

concerning the destination of trip and noting that inconsistency in stories

supports a finding of reasonable suspicion).

       Speal’s relocation to the front seat of Geer’s vehicle does not effect a

different result.   “[T]he intrusiveness of a search or seizure will be upheld if it

was reasonable under the totality of the circumstances. . . . Reasonableness is

determined by balancing the governmental interest in crime prevention against

the citizen’s right to be free from governmental intrusion.”     United States v.

Perdue , 8 F.3d 1455, 1462 (10th Cir. 1993) (citing     Terry , 392 U.S. at 19-21). In

relocating Speal, Geer justifiably protected himself from any weapons concealed

in the couple’s vehicle.   See Maryland v. Wilson , 117 S.Ct. 882, 886 (1997)

(removal of a passenger from vehicle for security and safety reasons is legitimate

during a Terry stop). In addition, separating Benson and Speal served to limit

their opportunity to devise a consistent explanation for the trip. And relocation to

the patrol car as opposed to the highway median strip offered protection from

chilly, windy weather and highway traffic.


                                            -6-
       We do not suggest that detention in a police car never exceeds the

reasonable parameters of a    Terry stop. To the contrary, courts have repeatedly

found that when the intrusiveness of a stop outweighs the legitimate needs of law

enforcement officers, such detention is invalid.      See, e.g. , Washington v. Lambert ,

98 F.3d 1181, 1183-85, 1192 (9th Cir. 1996) (finding that two suspects

confronted by four officers and a drug dog, ordered out of their vehicle at

gunpoint, handcuffed, and placed into separate police cars for five to twenty-five

minutes were subject to arrest not    Terry stop); United States v. Richardson , 949

F.2d 851, 857-58 (6th Cir. 1991) (holding that police implemented arrest rather

than investigative detention when they placed defendant who had refused to grant

consent to search of storage locker in back seat of patrol car and questioned him

without probable cause either to make an arrest or obtain a search warrant);

United States v. Ricardo D , 912 F.2d 337, 340 (9th Cir. 1990) (finding that police

who isolated an unarmed, compliant juvenile in the back of a police car without

justification, utilized unnecessary coercion, thereby transforming an investigatory

stop into an arrest).   But such cases do not establish a per se rule against the

investigative detention of a passenger in a patrol car.     The Supreme Court has

explicitly rejected the idea of a “bright line” rule for differentiating between

proper and improper investigative detentions, finding instead that common sense

and ordinary human experience must govern over rigid criteria.        See United


                                             -7-
States v. Sharpe , 470 U.S. 675, 685 (1985). The validity of a        Terry stop must be

assessed on the facts and surrounding circumstances of the case,        see United

States v. Muldrow , 19 F.3d 1332, 1335 (10th Cir. 1994) (citing        United States v.

Cooper , 733 F.2d 1360, 1364 (10th Cir 1984)). In this case, such facts and

circumstances are sufficient to establish the reasonableness of relocation.

                                             B

       Similarly, we cannot credit Speal’s assertion that his statements to Geer

should be suppressed as violative of     Miranda ’s strictures. “[T]wo requirements

must be met before Miranda is applicable; the suspect must be in ‘custody,’ and

the questioning must meet the legal definition of ‘interrogation.’”        Perdue , 8 F.3d

at 1463. Viewing the evidence in the light most favorable to the government,          see

Lambert , 46 F.3d at 1067, we find that Speal was not subject to “custodial

interrogation” when he made his pre-      Miranda statements, and so     Miranda

warnings need not have preceded them.         See Miranda v. Arizona , 384 U.S. 436,

444 (1966).

       A person is “in custody” when he has been arrested or his freedom is

curtailed to a degree associated with a formal arrest.     See Stansbury v. California ,

511 U.S. 318, 322 (1994) (per curiam);       California v. Beheler , 463 U.S. 1121,

1125 (1983) (per curiam). The relevant inquiry for determining whether an

individual is “in custody” is whether a reasonable person in that position would


                                             -8-
“believe her freedom of action had been curtailed to a ‘degree associated with

formal arrest.’” United States v. Griffin , 7 F.3d 1512, 1518 (10th Cir. 1993)

(quoting Beheler , 463 U.S. at 1125, and Berkemer , 468 U.S. at 440). Generally,

the questioning that occurs during a traffic stop requires no    Miranda warnings,

see Martinez , 983 F.2d at 976 (citing    Berkemer , 468 U.S. at 442), because such

police-citizen encounters are brief, non-threatening, and conducted in the

presence of others.   See Berkemer , 468 U.S. at 438-39.

       During a traffic stop, however, law enforcement officials may create the

custodial interrogation that     Miranda contemplates “by employing an amount of

force that reache[s] the boundary line between a permissible     Terry stop and an

unconstitutional arrest.”      Perdue , 8 F.3d at 1464. We therefore review the

totality of the circumstances to determine whether the force employed during the

traffic stop and prior to Speal’s formal arrest created a “custody” situation under

Miranda . See United States v. Torres-Guevara       , 147 F.3d 1261, 1266 (10th Cir.

1998). We review the circumstances relating to the questioning process, such as

whether a suspect is informed that he or she may refuse to answer questions or

terminate the encounter, the tone and manner of the questioning, and the

separation of an individual from sources of moral support during questioning.

See Griffin , 7 F.3d at 1518-19. We also consider the degree of restraint placed

upon the suspect being questioned, including whether the suspect is physically


                                             -9-
restrained or coerced,   see Martinez , 983 F.2d at 977, whether the suspect’s

driver’s license or automobile registration is retained,      see Hernandez , 93 F.3d at

1499, and whether there is a threat of physical restraint created by an officer’s

display of a weapon.     See Griffin , 7 F.3d at 1519.

       Although this circuit has never before considered whether the questioning

of a suspect in a police car following a legitimate traffic     stop should necessarily

be considered custody for     Miranda purposes, other circuits have considered the

issue and declined to create a per se rule.     See, e.g. , United States v. Manbeck ,

744 F.2d 360, 378 (4th Cir. 1984)      (refusing to recognize a rule that all detentions

in a patrol car are “per se arrests,” and instead holding that where “the manner in

which [the suspect is] detained lacks most of the trappings of the formal arrest

and is fully consistent with an investigative stop,” questioning in a police car

should be analyzed as a routine     Terry traffic stop and not as a   Miranda custodial




                                              -10-
interrogation).   2
                      We therefore consider Speal’s relocation to the police car as one

factor in our determination of whether he was in custody.

       Based on the totality of circumstances,       we find that Speal was not in

custody during his pre- Miranda detention in Geer’s patrol car. There is no

evidence of coercion by Geer; rather, Geer informed Speal that he had been

unable to verify the Illinois license and simply asked if Speal had any other

identification. In response, Speal volunteered his real identity and background

information. The conversation took place in the front seat of the patrol car on

the shoulder of a public highway during the day, and was not excessive in

duration. Speal was not handcuffed. He could see his companion from his seat

in the patrol car, and had previously witnessed Mayfield question and then

release Benson, thus creating a reasonable expectation that he too would be

released. Finally, protection from highway traffic and windy, chilly conditions

further justify his relocation to the patrol car.     See Manbeck , 744 F.2d at 379



       2
          See also United States v. Baker, 78 F.3d 1241, 1244-45 (7th Cir. 1996), cert.
denied, 117 S.Ct. 1720 (1997) (where suspect sitting in officer’s patrol car without being
under arrest, “there was no need to give him Miranda warnings”); United States v.
Boucher, 909 F.2d 1170, 1174 (8th Cir. 1990) (“Miranda warnings are not imposed
because the questioning is conducted in a certain place, i.e., a patrol car.”); United States
v. Parr, 843 F.2d 1228, 1231 (9th Cir. 1988) (holding that placing a suspect in a patrol
does not constitute an arrest for Miranda purposes). All of these cases found that the
suspect was not in Miranda custody given the totality of the circumstances. See Baker, 78
F.3d at 1244-45; Boucher, 909 F.2d at 1173-74; Parr, 843 F.2d at 1231; Manbeck, 744
F.2d at 374-80.

                                              -11-
(holding that relocation to a police car for questioning due to inclement weather

is a reason that mitigates against “whatever coercive elements are otherwise

normally attendant [to a police car inquiry]”). Consequently, Speal’s statements

made in the patrol car prior to his formal arrest should not have been suppressed.

                                            IV

       We also reject Speal’s assertion that the court erred or abused its discretion

in sentencing him to life imprisonment without the possibility of parole.      We

review a district court’s factual findings at sentencing for clear error and its legal

conclusions de novo.       See United States v. Cuthberson   , 138 F.3d 1325, 1326

(10th Cir. 1998) (citing    United States v. Pappert , 112 F.3d 1073, 1078 (10th Cir.

1997)). The government bears the initial burden of showing, by a preponderance

of evidence, that a given sentence is appropriate.     See United States v. Rutter ,

897 F.2d 1558, 1560 (10th Cir. 1990). Speal’s sentence was enhanced pursuant

to U.S.S.G. § 4B1 because of his status as a career offender who had two prior

felony drug convictions.      Speal asserts that this enhancement was improper

because the two drug convictions should have been viewed as a consolidated,

single conviction. We disagree.

       Sentences are related if they result from offenses that (1) occurred on the

same occasion, (2) were part of a single common scheme or plan, or (3) were

consolidated for trial or sentencing.     See United States v. Guerreo-Hernandez     , 95


                                            -12-
F.3d 983, 986-87 (10th Cir. 1996). Sentences imposed in unrelated cases are

counted separately.    See id. at 986. Speal was arrested on October 31, 1989, for

possession with intent to distribute marijuana.     He was also arrested on December

2, 1990, for possession with intent to distribute marijuana.   Speal was convicted

of both offenses. They occurred on different occasions, and the record does not

establish that they were consolidated or committed as part of a common plan.

See United States v. Ciapponi , 77 F.3d 1247, 1252 (10th Cir. 1996).

       Nor did the sentencing court abuse its discretion when it sentenced Speal

to a lengthy prison term that exceeded the one his co-defendant received. We

review the propriety of disparate sentences under an abuse of discretion standard.

See United States v. Massey , 48 F.3d 1560, 1570 (10th Cir. 1995). The mere fact

that co-defendants receive disparate sentences does not in itself constitute an

abuse of discretion.   See United States v. Trujillo , 906 F.2d 1456, 1465 (10th

Cir. 1990) (citation omitted). Speal has an extensive criminal history and was

apprehended with large quantities of drugs and multiple firearms. His co-

defendant lacks a comparable criminal history, and the imposition of disparate




                                            -13-
sentences is therefore permissible.

      AFFIRMED.

                                      ENTERED FOR THE COURT



                                      Carlos F. Lucero
                                      Circuit Judge




                                       -14-
