                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                            May 23, 2006
                                  TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                            Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                         No. 05-7082
          v.                                             (E.D. Oklahoma)
 LETICIA A. RODRIGUEZ, a/k/a                            (05-CR-00005-W )
 Rebecca Garcia-Beltran,

               Defendant-Appellant.



                               OR DER & JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      After examining the briefs and the appellate record, this three-judge panel

has determined unanimously to grant the Appellant’s unopposed motion to submit

this appeal on the briefs. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The

case is therefore ordered submitted without oral argument.

      Defendant-appellant Leticia A. Rodriguez was indicted on one count of

possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1)



      *
        This order and judgment is not binding precedent, except under the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
may be cited under the terms and conditions of 10th Cir. R. 36.3.
and (b)(1)(A)(ii). After the district court denied her motion to suppress evidence

that was found in her vehicle during a traffic stop, M s. Rodriguez entered a plea

of guilty to the indictment, with the condition that she could appeal the

suppression ruling. This ruling is the only issue on appeal. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court’s denial of

her motion to suppress.

                                I. BACKGROUND

      On December 1, 2004, Oklahoma H ighway Patrol Trooper Cody Hyde

stopped M s. Rodriguez for having a defective tag lamp. At his request, she joined

him in his patrol car while he checked her registration and wrote her a warning

citation. During this time, Trooper Hyde asked M s. Rodriguez a number of

questions related to her travel plans. M s. Rodriguez clearly was not fluent in

English, and Trooper Hyde sometimes interspersed a Spanish word in his

questions to facilitate dialogue. Nonetheless, she knew and understood enough

English to comply with Trooper Hyde’s requests and explain to him that she was

on her way to Atlanta to purchase a truck. After writing M s. Rodriguez the

warning citation, he returned her license and registration, told her she did not

have to pay any money, and to be careful on her trip.

      Immediately after this, Trooper Hyde asked M s. Rodriguez whether he

could ask her a couple more questions. The district court found that M s.

Rodriguez responded “I don’t . . . . Do I need to take the paper to get my taillight

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or my license tag light fixed?” Rec. vol. II, at 9 (Tr. of Suppression Hr’g, dated

Feb. 16, 2005). Trooper Hyde answered this question, and then proceeded to ask

her whether she had any guns in her car, and whether she had any drugs like

marijuana or cocaine in the car. M s. Rodriguez, without hesitation, answered

“no” to each of these questions. W hen Trooper Hyde asked whether he could

search the car, she replied “yes.” During the search, Trooper Hyde located

cocaine in M s. Rodriguez’s vehicle.

      The Government indicted M s. Rodriguez for one count of possession of

cocaine with intent to distribute. She filed a motion to suppress the evidence

found during the search of her vehicle, arguing (1) that Trooper Hyde lacked

reasonable suspicion to search, and that she did not consent to the extension of

the traffic stop, and (2) that M s. Rodriguez did not give knowing and intelligent

consent to search her vehicle because she was unable to communicate

meaningfully with Trooper Hyde. At a hearing, where the parties stipulated to the

admission of a videotape of the stop, the district court denied M s. Rodriguez’s

motion to suppress. The district court found that “[d]uring that exchange [where

the Trooper asked additional questions], there was no hesitation on [M s.

Rodriguez’s] part, at all, which leads me to believe that she fully understood the

questions that were being asked and intelligently made a decision [to] consent to a

search and to consent to an extended stop.” Id.

      M s. Rodriguez pleaded guilty to the one-count indictment, with the

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condition that she could appeal the district court’s decision on the suppression

motion. The district court sentenced her to 71 months’ imprisonment, plus a term

of 60 months’ supervised release. This appeal followed, with M s. Rodriguez

raising the same tw o arguments that she did below.

                                 II. D ISC USSIO N

      In reviewing a denial of a motion to suppress, we accept the district court’s

factual findings unless they are clearly erroneous. United States v. Bradford, 423

F.3d 1149, 1156 (10th Cir. 2005). Those findings include determinations of

credibility, the weight to be given to the evidence, as well as reasonable

inferences and conclusions that may be drawn from the evidence. United States v.

Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998).      The question of whether an

individual consented to a search of the vehicle is a question of fact that we review

for clear error. United States v. Rosborough, 366 F.3d 1145, 1149 (10th Cir.

2004). W e view the evidence in the light most favorable to the government, but

the “ultimate determination of reasonableness under the Fourth Amendment . . . is

a question of law which we review de novo.” Bradford, 423 F.3d at 1156.

      The Fourth Amendment protects “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. C ONST . amend. IV. A traffic stop constitutes a “seizure” within

the meaning of the Fourth Amendment, “even though the purpose of the stop is

limited and the resulting detention quite brief.” Delaware v. Prouse, 440 U.S.

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648, 653 (1979). Because a routine traffic stop is more analogous to an

investigative detention than a full custodial arrest, we analyze a traffic stop under

the principles of Terry v. Ohio, 392 U.S. 1 (1968).

      Under Terry, to determine whether an investigative detention or traffic stop

was reasonable, w e ask two questions: first, whether the stop was justified at its

inception, and second, whether the scope of the detention was reasonably related

to the circumstances that justified the stop. United States v. Caro, 248 F.3d 1240,

1244 (10th Cir. 2001). M s. Rodriguez does not challenge the validity of Trooper

Hyde’s initial stop of her vehicle. Therefore, we proceed to her contention that

Trooper Hyde impermissibly exceeded the scope of that detention by asking her

questions unrelated to the traffic stop after he had issued her a warning citation.

A.    Extension of Traffic Stop

      “[D]uring [a justified] stop, an officer may ask routine questions about the

driver’s travel plans.” Bradford, 423 F.3d at 1156. “After the officer has issued

the citation, however, the driver must be allowed to proceed on his way, without

being subject to further delay by the police if he has produced a valid license and

proof that he is entitled to operate the car.” United States v. Zubia-M elendez, 263

F.3d 1155, 1161 (10th Cir. 2001) (internal quotation marks omitted). “[F]urther

detention for purposes of questioning unrelated to the initial stop is impermissible

unless (1) the officer has an objectively reasonable and articulable suspicion that

illegal activity has occurred or is occurring, or (2) the initial detention has

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become a consensual encounter.” Bradford, 423 F.3d at 1156-57.

      “A traffic stop may become a consensual encounter, requiring no

reasonable suspicion, if the officer returns the license and registration and asks

questions without further constraining the driver by an overbearing show of

authority.” United States v. West, 219 F.3d 1171, 1176 (10th Cir. 2000).

“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.” Id.

(internal quotation marks omitted). “The government bears the burden of proving

voluntary consent based on the totality of the circumstances.” United States v.

Gregoire, 425 F.3d 872, 879 (10th Cir. 2005).

      Here, the district court found that although Trooper Hyde and M s.

Rodriguez had some problems communicating, she did not hesitate to answ er his

questions. This lack of hesitation, coupled with the court’s examination of the

entire videotape of the encounter, led the court to conclude that “she fully

understood the questions that were being asked and intelligently made a decision

to . . . consent to an extended stop.” Rec. vol. II, at 9.

      After reviewing the videotape, we cannot say that the district court’s

findings were clearly erroneous. M s. Rodriguez and Trooper Hyde clearly had

some trouble communicating, but they also were able to communicate effectively

in some instances. Although M s. Rodriguez did not explicitly consent to

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remaining with Trooper Hyde to answ er additional questions, she appeared to

understand and easily answer his questions. M oreover, M s. Rodriguez admits that

Trooper Hyde had returned her license and registration before he began to ask her

additional questions. Finally, as the district court stated, “[o]n the key questions

regarding possession of guns or drugs she answered unequivocally and without

hesitation in the negative. W hen ask[ed] if she would consent to a search of her

automobile, she responded unhesitatingly in the affirmative.” Rec. vol. I, doc. 13,

at 1-2 (D ist. Ct. Order, filed Feb. 17, 2005).

      Significantly, the district court did not find, and M s. Rodriguez does not

argue, that Trooper Hyde made any overbearing show of authority when he

continued to ask her questions. Rather, she relies on a Ninth Circuit case and

contends that unless a person is explicitly told that she is free to leave then a

reasonable person would not have concluded that she is free to exit the patrol car.

See United States v. Chavez-Valenzuela, 268 F.3d 719, 725 (9th Cir. 2001)

(“Upon returning [the defendant’s] documents, [the officer] then asked him a

question implying that he suspected [the defendant] of criminal activity.

Confronted with this situation, a reasonable motorist–even with license and

registration in hand– most likely would not have believed he could disregard the

officer’s inquiry and end the conversation.”). M s. Rodriguez also argues that she

was improperly detained because she did not explicitly consent to continuing the

encounter.

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      W e disagree. In this circuit, when considering whether an individual

voluntarily consents to an encounter, we look to the “totality of the

circumstances,” and do not require “that law enforcement advise . . . that a citizen

may terminate the encounter, though this . . . may be considered in a totality of

the circumstances approach to voluntariness.” Gregoire, 425 F.3d at 879. “An

officer is not required to inform a suspect that she does not have to respond to his

questioning or that she is free to leave.” Bradford, 423 F.3d at 1158. M s.

Rodriguez’s situation is very similar to the defendant’s in Bradford, where we

explained that a reasonable person in the defendant’s position would have known

that she was free to leave.

      Although we are troubled by the fact that [the defendant] was sitting in
      the patrol car while [the officer] questioned her after handing back her
      documents, there is no indication here that [the officer] made any
      coercive show of authority . . . suggesting that the detention had not
      ended. . . . Thus, after [the officer] handed back the documents, the
      traffic stop was over, and they were engaged in a consensual encounter.

Id. at 1159 (internal quotation marks and citation omitted).

      W e therefore conclude that the district court’s finding that M s. Rodriguez

voluntarily consented to the extended encounter with Trooper Hyde was not

clearly erroneous. Because M s. Rodriguez consented to the extension of the

traffic stop, no Fourth Amendment violation occurred. W e next consider whether

M s. Rodriguez voluntarily consented to the search of her vehicle.

B.    Consent to Search Vehicle



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      Consent to further detention does not automatically give an officer

permission to search a suspect’s vehicle. W e have held that a vehicle may be

searched without probable cause “if a person in control of the vehicle has given

his voluntary consent to the search.” Zubia-M elendez, 263 F.3d at 1162.

“W hether voluntary consent was given is a question of fact, determined by the

totality of the circumstances and reviewed for clear error.” Id.

      M s. Rodriguez challenges Trooper Hyde’s search of her car, arguing that

her consent was invalid because it was the fruit of an unlawful detention. But

because we held above that her detention for additional questioning was not

unlawful, this argument fails. W e therefore proceed to M s. Rodriguez’s

additional argument, that she could not have given voluntary and intelligent

consent to the search of her vehicle because of the language barrier between her

and Trooper H yde.

      “W e have developed a two-step test for determining the voluntariness of a

consent to search: the government must (1) proffer clear and positive testimony

that consent was unequivocal and specific and freely and intelligently given, and

(2) prove that this consent was given without implied or express duress or

coercion.” United States v. Sanchez, 89 F.3d 715, 719 (10th Cir. 1996) (internal

quotation marks omitted).

      Our application of this test in Zubia-M elendez is particularly instructive.

There, the defendant, like M s. Rodriguez, spoke only limited English and had

                                          9
some difficulty communicating with the trooper. The defendant initially refused

to allow the trooper to search his vehicle, but after being asked a second time for

consent to search replied “Yeah, no matter.” 263 F.3d at 1163. At the

suppression hearing, the defendant testified and admitted that he understood some

of the officer’s questions regarding his name, identification, and ownership of the

vehicle. Nonetheless, the defendant contended that he had insufficient familiarity

with the English language to have given knowing and voluntary consent.

       In reviewing the district court’s finding of consent, we stated that “[the

defendant’s] consent appears to have come without hesitation when he was asked

a second time for permission to search the vehicle.” Id. M oreover, “the district

court specifically found . . . that [the defendant and trooper] could converse

sufficiently to understand one another.” Id. (internal quotation marks omitted).

Additionally, we explained that the fact that the trooper had “neither told [the

defendant] he was free to leave nor informed him that he could refuse consent . . .

should be considered in determining whether consent was voluntary.” Id. Our

review of the videotape evidence, however, revealed no physical or verbal

coercion on the part of the trooper. In light of the totality of the circumstances,

we acknowledged that the question “is a close one,” but held that the district

court’s finding that the defendant had given voluntary consent was not clearly

erroneous. Id.

      M s. Rodriguez’s and Trooper Hyde’s interaction was similar to the

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situation in Zubia-M elendez. Here, the district court acknow ledged that M s.

Rodriguez had some trouble communicating with Trooper Hyde, but explicitly

found that, when she was asked for her consent to search, “there was no hesitation

on the defendant’s part, at all,” and that “she [was] understanding the majority of

what was being said to her.” Rec. vol. II, at 9. Although Trooper Hyde did not

inform M s. Rodriguez she was free to leave and free to refuse consent, like in

Zubia-M elendez, our review of the videotape evidence does not reveal, nor does

M s. Rodriguez allege, that Trooper Hyde exerted any kind of physical or verbal

coercion. Thus, based on the totality of the circumstances, we cannot conclude

that the district court clearly erred in finding that M s. Rodriguez gave knowing

and voluntary consent to search her vehicle. Because M s. Rodriguez consented to

the search, the Fourth Amendment’s prohibition against searching a vehicle

without probable cause is not applicable.

                               III. C ON CLU SIO N

      For the foregoing reasons, we AFFIRM the district court’s denial of M s.

Rodriguez’s motion to suppress.



                                              Entered for the Court,



                                              Robert H. Henry
                                              Circuit Judge



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