                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            APR 13 2004
                                    TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                      No. 03-3264
           v.                                                 D. Kansas
 MARCO ANTONIO                                    (D.C. No. 02-CR-40123-JAR)
 CASTRO-HOLGUIN,

                Defendant - Appellant.


                              ORDER AND JUDGMENT          *




Before TACHA, Chief Judge , ANDERSON , and BALDOCK , 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)(2); 10th Cir. R. 34.1(G). This cause is

therefore ordered submitted without oral argument.




       This order and judgment is not binding precedent, except under the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.
      Marco Antonio Castro-Holguin entered a conditional guilty plea to

possessing with intent to distribute 100 kilograms or more of a mixture or

substance containing a detectable amount of marijuana, in violation of 21 U.S.C.

§ 841(a), reserving his right to bring the instant appeal of the district court’s

denial of his motion to suppress. Mr. Castro-Holguin argues the district court

should have granted the motion due to Fourth Amendment violations involving

(1) the police’s initial stop of his vehicle, (2) his detention during the course of

the stop, and (3) the police’s search of his vehicle.



                                  BACKGROUND

      According to the district court’s description of the facts in its order denying

the motion to suppress, Deputy Knowles of the Lyon County Sheriff’s Department

stopped Castro-Holguin’s car, a black El Camino traveling northbound on I-35, at

approximately 6:30 a.m. on May 6, 2002, because it did not appear to have a

visible license plate. In response to Deputy Knowles’ request for a driver’s

license, Castro-Holguin produced a Mexican passport and visa. Deputy Knowles

then asked Castro-Holguin to come with him to his patrol car while the deputy ran

a check on his identification papers. In the patrol car, the deputy asked Castro-

Holguin about his travel plans, and Castro-Holguin told him he was traveling

from Mexico to Kansas City for vacation. Deputy Knowles then received


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verification of Castro-Holguin’s identification. When the deputy proceeded to

show Castro-Holguin the problem with the license plate, he observed that the car

did have a plate but it was covered by a tinted material.

      Deputy Knowles returned Castro-Holguin’s identification papers and then

asked him for consent to search the car. According to the deputy’s testimony, he

used the Spanish word “buscar” to mean “search,” but Castro-Holguin did not

appear to understand. The deputy then showed Castro-Holguin a consent to

search form written in Spanish. Castro-Holguin spent approximately twenty-five

seconds reading the form. The deputy testified that Castro-Holguin then nodded

and said “si.” The videotape of the stop, admitted into evidence, was not

recording audio at this point, and the angle of the camera did not capture Castro-

Holguin’s head. Castro-Holguin and the deputy then moved toward the El

Camino, and Castro-Holguin helped the deputy lower the car’s tailgate.

      According to Deputy Knowles’ testimony, during his search of the car he

noticed a sound deviation in the bed, saw carpet had been glued on the back wall

of the interior, and noticed fresh silicone in the seams. These details made him

suspect the car had a hidden compartment. He located the compartment behind

the back interior panel at approximately 6:45 a.m. and found 100 kilograms of

marijuana inside.




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       Castro-Holguin filed a motion to suppress on January 28, 2003, challenging

the initial stop, detention, and search of the El Camino. Following a hearing, the

district court issued an Order Denying Defendant’s Motion to Suppress on April

23, 2003. The court held that the initial stop was justified by reasonable

suspicion, based on the court’s finding that the car’s “license plate was obscured

to the point that from a few feet away in the early morning hours, it was not

visible.” R. Vol. I, tab 41, at 5-6. The court also held that the subsequent

detention did not exceed the permissible scope of a traffic stop because, after the

deputy returned Castro-Holguin’s identification papers, their encounter became

consensual. The court then held that the deputy’s search of the car was

reasonable because it was based on Castro-Holguin’s voluntary consent.

       Castro-Holguin subsequently entered a conditional plea of guilty and was

sentenced to twenty-six months imprisonment, following which he would be

surrendered to immigration authorities for deportation proceedings. He now

appeals the denial of his motion to suppress.



                                      DISCUSSION

       “When reviewing the denial of a motion to suppress, we accept the factual

findings of the district court unless they are clearly erroneous and view the

evidence in the light most favorable to the district court’s determination.”    United


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States v. Williams , 271 F.3d 1262, 1266 (10th Cir. 2001) (citations omitted).

“We are mindful that at a hearing on a motion to suppress, the credibility of the

witnesses and the weight given to the evidence, as well as the inferences and

conclusions drawn therefrom, are matters for the trial judge.”       United States v.

Caro , 248 F.3d 1240, 1243 (10th Cir. 2001) (internal quotation marks omitted).

“However, the ultimate determination of reasonableness under the Fourth

Amendment is a question of law which we review de novo.”           Id.

       We analyze the reasonableness of a routine traffic stop under the principles

developed in Terry v. Ohio , 392 U.S. 1 (1968), for investigative detentions.

United States v. Botero-Ospina       , 71 F.3d 783, 786 (10th Cir. 1995) (en banc). The

conduct of a police officer in stopping a vehicle must be “‘justified at its

inception,’” and the ensuing detention of the vehicle and its occupants must be

“‘reasonably related in scope to the circumstances which justified the interference

in the first place.’”     United States v. Holt , 264 F.3d 1215, 1220 (10th Cir. 2001)

(en banc) (quoting Terry , 392 U.S. at 20).

       Castro-Holguin first challenges the initial stop of his car. “An initial

traffic stop is valid under the Fourth Amendment . . . if the officer has a

reasonable articulable suspicion that a traffic or equipment violation has occurred

or is occurring.”       United States v. Hunnicutt , 135 F.3d 1345, 1348 (10th Cir.

1998). Deputy Knowles stopped Castro-Holguin based on a suspected violation


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of Kansas law, which requires vehicles to have rear license plates “in a place and

position to be clearly visible, and . . . maintained free from foreign materials and

in a condition to be clearly legible.” Kan. Stat. Ann. § 8-133. Castro-Holguin

argues, citing expert testimony and photographs, that his license plate was in fact

legible from thirty yards away despite its plastic covering. He questions Deputy

Knowles’ credibility in stating otherwise. The district court, however, found that

the tinted plastic covering on the license plate obstructed its visibility and that the

deputy in fact “could not see the license plate clearly.” R. Vol. I, tab 41, at 6.

We have reviewed the record, which includes photographs of the back of the car,

and do not consider the district court’s finding clearly erroneous. We thus hold

that Deputy Knowles had reasonable suspicion of an equipment violation

justifying his stop of Castro-Holguin’s car.

       Castro-Holguin next challenges the scope of his detention during the traffic

stop. We have held that a police officer may, during a routine traffic stop, “ask

about the driver’s authority to operate the vehicle,” check the driver’s license and

registration, and ask about travel plans.    Holt , 264 F.3d at 1221. Normally, once

a 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. (internal quotation marks

omitted). However, further questioning may occur if the motorist consents to


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such questioning or if the detaining officer has a reasonable articulable basis for

suspecting the motorist of criminal activity.         United States v. West , 219 F.3d

1171, 1176 (10th Cir. 2000).

       In this case, the district court found that the encounter between Deputy

Knowles and Castro-Holguin became consensual, and thus no longer a seizure

under the Fourth Amendment, after the deputy returned Castro-Holguin’s

identification papers. Castro-Holguin disputes this finding, arguing that Deputy

Knowles did not allow him to return to his car and did not tell him he was free to

go. We have held that there is no bright-line rule requiring an officer to tell the

motorist he is free to go or to refuse to answer further questions before an

encounter may become consensual.          See id. at 1176-77; United States v. Patten ,

183 F.3d 1190, 1194 (10th Cir. 1999). Rather, “[w]hether an encounter can be

deemed consensual depends on ‘whether the police conduct would have conveyed

to a reasonable person that he or she was not free to decline the officer’s requests

or otherwise terminate the encounter.’”         West , 219 F.3d at 1176 (quoting   United

States v. Hernandez , 93 F.3d 1493, 1498 (10th Cir. 1996)).

       Here, there is no indication that Deputy Knowles forcibly prevented Castro-

Holguin from returning to his car. The deputy was the only officer present at the

time and testified that he did not raise his voice, display any weapon, or otherwise

make a coercive show of authority. We recognize that, as Castro-Holguin points


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out, the deputy’s testimony could be interpreted to suggest that the

communication problems he was having with Castro-Holguin after he returned the

identification papers and attempted to request permission to search the car

prevented Castro-Holguin from understanding that the traffic stop had ended. R.

Vol. IV at 56. However, the determination of whether an encounter was

consensual “‘calls for the refined judgment of the trial court.’”   Patten , 183 F.3d

at 1194 (quoting United States v. Werking , 915 F.2d 1404, 1409 (10th Cir.

1990)). We do not consider the court’s findings on this matter clearly erroneous

and thus uphold its conclusion that the encounter following the return of Castro-

Holguin’s papers was consensual.

       Castro-Holguin also challenges Deputy Knowles’ search of the car, arguing

that he did not voluntarily consent to the deputy’s request to search.

Voluntariness “‘is a question of fact to be determined from all the

circumstances.’”    United States v. Taverna , 348 F.3d 873, 878 (10th Cir. 2003)

(quoting Ohio v. Robinette , 519 U.S. 33, 40 (1996)). In the context of

warrantless searches based on consent, the government bears the burden of

establishing that consent was given freely and intelligently without implied or

express duress or coercion.    Id. Here, the district court found that Castro-

Holguin’s consent was voluntary. The court reasoned that although it was unclear

from the videotape whether Castro-Holguin nodded or said “si” after reading the


                                             -8-
consent form in Spanish, as Deputy Knowles testified he did, Castro-Holguin’s

subsequent action of “open[ing] the tailgate for the deputy, without any apparent

prompting,” corroborated the deputy’s testimony. R. Vol. I, tab 41, at 8.

Although Castro-Holguin argues there are other “plausible explanation[s]” for his

behavior, Appellant’s Br. at 16, he has not established that the district court’s

finding is clearly erroneous. His reliance on       Bumper v. North Carolina , 391 U.S.

543 (1968), is misplaced because there is no indication Deputy Knowles

“claim[ed] . . . lawful authority” to search the car.    See id. at 549 (holding

consent to search was involuntary where police claimed to have a warrant

authorizing the search). We therefore uphold the district court’s determination

that the deputy’s search of the car was justified by consent.



                                      CONCLUSION

       For the foregoing reasons, the district court’s denial of the motion to

suppress is AFFIRMED.

                                                    ENTERED FOR THE COURT


                                                    Stephen H. Anderson
                                                    Circuit Judge




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