                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            MAR 15 2004
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                        No. 03-8044
                                                         (D. Wyoming)
 CIPRIANO LUNA-GONZALES , also                        D.C. No. 02-CR-198-J
 known as Cipriano Gonzales-Luna,
 also known as Juan Carlos Moreno,
 also known as Juan Charles Vaca-
 Moreno, also known as Juan Carlos
 Vaca, also known as Juan Carlos
 Vacamoreno,

          Defendant - Appellant.


                             ORDER AND JUDGMENT            *




Before KELLY , BRISCOE , and LUCERO , Circuit Judges.


      Cipriano Luna-Gonzales       entered a conditional guilty plea to a charge of

possession of methamphetamine with intent to distribute in violation of 21 U.S.C.

§ 841(a)(1)(A), preserving his right to appeal the district court’s denial of his


      *
        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judgment is not binding precedent, except under the doctrines of law of the case,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.
motion to suppress the evidence of drugs found in a search of his automobile. On

appeal, we consider whether the district court erred in finding that Luna-Gonzales

consented to the search that led to the discovery of the illegal drugs. We accept

the district court’s findings of fact unless they are clearly erroneous, United

States v. Cooper, 733 F.2d 1360, 1364 (10th Cir. 1984), viewing the evidence in

the light most favorable to the court’s findings. United States v. Obregon, 748

F.2d 1371, 1376 (10th Cir. 1984). Exercising jurisdiction under 28 U.S.C.

§ 1291, we AFFIRM.

      On October 3, 2002, Wyoming Highway Patrol Trooper Benjamin Peech

stopped the automobile driven by Luna-Gonzales for following too closely. Peech

explained the reason for the stop to the driver in English, and Luna-Gonzales

presented his license and registration upon Peech’s request. While issuing a

warning for following too closely, Peech asked Luna-Gonzales to sit in his patrol

car and questioned him as to his travel plans. After being informed by dispatch

that the license was valid, Peech returned the license and registration to Luna-

Gonzales and told him that he was free to leave. Luna-Gonzales exited the car

and began walking back toward his own automobile.

      Peech then reinitiated contact, inquiring in broken Spanish, “Es bueno por

mi hablo con sus poquito mas?” Literally translated, his question was, “[i]t’s

good for me to speak with yours little bit more?” Luna-Gonzales responded, “con


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mi?” (literally “with me?”), and Peech replied, “yeah.” Apparently then

understanding, Luna-Gonzales said “yeah” and nodded his head. The district

court found that Peech confirmed the consent several times in both English and

Spanish. Peech and Luna-Gonzales continued their earlier conversation about the

circumstances of Luna-Gonzales’ travel, first outside the patrol car and then

inside the patrol car due to the cold weather. During this conversation, Peech

also asked whether there were any bombs, dead bodies, cash, or drugs in the

automobile. Luna-Gonzales said no to each question.

      Peech then asked if he could conduct a search of the car. Luna-Gonzales

replied “go,” and gestured toward the car with his hand. Peech asked whether

Luna-Gonzales understood his question and whether it was “ok” to search. Luna-

Gonzales responded by nodding and saying “no problem.” Peech proceeded to

search the car; he observed screws under the back seat that had recently been

removed, scratch marks on the new screws, and a pungent odor of gas fumes. He

also noticed that the gas tank had been removed. These observations led Peech to

ask Luna-Gonzales to follow him to a location where there were tools to continue

the search. Luna-Gonzales agreed and followed Peech to a truck stop a few miles

away. Once there, Peech removed the gas tank’s sending unit and ultimately

retrieved packages of methamphetamine from inside the gas tank.

      Appealing the denial of his motion to suppress the evidence, Luna-


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Gonzales argues that: (1) after Peech returned the license and registration, he was

not free to leave, and thus the subsequent questioning constituted a seizure in

violation of the Fourth Amendment; and (2) his ultimate consent to the search of

the automobile was involuntary.

      With respect to Luna-Gonzales’ first argument, “[a] person has been

‘seized’ within the meaning of the Fourth Amendment only if, in view of all the

circumstances surrounding the incident, a reasonable person would have believed

that he was not free to leave.” California v. Hodari D., 499 U.S. 621, 627–28

(1991) (quotation omitted). Routine traffic stops are seizures under the Fourth

Amendment, United States v. West, 219 F.3d 1171, 1176 (10th Cir. 2000), and in

such contexts we engage in a two-part inquiry to determine whether the Fourth

Amendment has been violated. First, the stop must be justified at its inception.

Id. It is undisputed that the initial stop was justified in this case. Second, we

analyze “whether the officer’s actions during the detention were reasonably

related in scope to the circumstances which justified the interference in the first

place.” Id. (quotation omitted). During the detention, Peech’s initial questions

were limited to Luna-Gonzales’ travel plans; we have held that such questions are

permissible. See, e.g. United States v. Holt, 264 F.3d 1215, 1221 (10th Cir.

2001). Peech asked no more questions before he returned Luna-Gonzales’ license

and registration and told him that he was free to leave.


                                         -4-
      Only after Peech returned the documents and explained that Luna-Gonzales

was free to leave did Peech ask additional questions about whether the automobile

contained any contraband. Our jurisprudence generally allows such questions

when: (1) the officer has reasonable articulable suspicion that a crime is being

committed; or (2) the driver voluntarily consents to further questioning. United

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

found that Luna-Gonzales consented to further questioning; on appeal, Luna-

Gonzales contends that his apparent consent was involuntary.

      We disagree. Once an officer returns a driver’s license and registration to

the driver, the encounter is no longer a seizure if the officer tells the driver that

he is free to leave and then, without a showing of force by the officer, asks the

driver if he or she would mind answering more questions. See id. at 1498–99.

Luna-Gonzales argues that despite the return of the documents, he did not

understand that he was free to leave. However, Luna-Gonzales’ subjective

perception is not the relevant inquiry; rather, “[w]hether an encounter is a

detention or a consensual encounter 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.” Id. (citation omitted).

      We conclude that in the instant case, a reasonable person would have

considered himself free to leave. It is undisputed that Peech told Luna-Gonzales


                                           -5-
that he was free to leave, that Luna-Gonzales exited the police vehicle, and that

he then began walking back to his own automobile. Peech then asked if they

could speak a bit longer, and Luna-Gonzales agreed. At no time did Peech

display a gun or any other type of force. See United States v. Ritchie, 35 F.3d

1477, 1481 (10th Cir. 1994) (noting that whether the officer displayed force

should be used as a factor in determining whether an encounter was consensual).

      Closely tied to Luna-Gonzales’ argument that he did not consider himself

free to leave is his contention that his consent was tainted by a language barrier

which prevented him from understanding what Peech was saying during portions

of their encounter. Our review of the record, however, convinces us that the

district court was correct in its findings that Luna-Gonzales generally understood

Peech’s questions, and that his consent was knowing and intelligent.

      For example, when Peech initially asked for license and registration, Luna-

Gonzales immediately retrieved the proper documents. Moreover, Luna-Gonzales

was able to convey that he had been visiting a brother in San Francisco, that he

was traveling back to his home in Iowa, and that he had recently moved from

Seattle. Relatively complex explanations such as these would not likely have

been possible if Luna-Gonzales did not have passable English language skills.

Thus, we agree with the district court’s factual finding that Luna-Gonzales was

sufficiently proficient in English to understand his conversation with Peech.


                                         -6-
      Luna-Gonzales also argues that his ultimate consent to the search of his

automobile was not intelligently given. “Whether a consent to search that does

not follow a Fourth Amendment violation was voluntary is a question of fact to be

determined from the totality of the circumstances.” Hernandez, 93 F.3d at 1500.

More specifically, “[t]he government must show that there was no duress or

coercion, express or implied, that the consent was unequivocal and specific, and

that it was freely and intelligently given.” Id.

      As discussed above, no duress or coercion occurred in this case. In fact,

Luna-Gonzales had been told that he was free to go. Though Luna-Gonzales

again points to his difficulties with the English language as evidence that his

consent was not intelligently given, for the reasons discussed above, we conclude

that he understood the conversation well enough for his consent to the search to

be intelligent and voluntary. 1




      1
        On appeal, Luna-Gonzales argues for the first time that he did not consent
to the search conducted at the truck stop, and that it was a second search which
impermissibly extended the scope of the initial consent given. We note that in
general, “issues not raised in the district court will not be considered for the first
time on appeal.” United States v. Lotspeich, 796 F.2d 1268, 1271 (10th Cir.
1986). Our review of the record, moreover, makes it clear that when Peech
decided to extend the scope of the search, he asked Luna-Gonzales if he would
follow him elsewhere so that he could look further at the car. Luna-Gonzales
renewed his consent to this extension of the search, and for the same reasons as
described above, we conclude that his consent was voluntary and intelligent.

                                          -7-
Accordingly, we AFFIRM.

                          ENTERED FOR THE COURT



                          Carlos F. Lucero
                          Circuit Judge




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