                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        June 11, 2007
                                 TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court


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

               Plaintiff-Appellee,
                                                          No. 06-3131
          v.                                          (District of K ansas)
 ALFRED O TO RR ES,                            (D.C. NO. 05-CR-40003-02-SAC)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before HA RTZ, O’BRIEN, and M cCO NNELL, Circuit Judges.


      Alfredo Torres and his traveling companion, Tanzitaro Guerrero, were

arrested at a rest stop in Topeka on January 8, 2005. The encounter began with a

voluntary encounter with state police, followed by a temporary seizure of M r.

Torres’s and M r. Guerrero’s identifying documents. After the seizure ended, the

state officer asked for consent to search the vehicle, received it, and found more

than 4 kilograms of methamphetamine. The factual background of the vehicle




      *
       This order and judgment is not binding precedent, except under the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.
search and subsequent arrest is detailed in M r. G uerrero’s appeal, United States v.

Guerrero, 472 F.3d 784, 785-86 (10th Cir. 2007).

      In a suppression hearing, the district court found that the detention of the

two men was supported by reasonable suspicion, and that M r. Guerrero’s

subsequent consent was not tainted. The court also held that M r. Torres did not

have standing to challenge the search of the car: “[N]o evidence was presented to

show that defendant Torres had either lawful ownership or lawful possession of

the vehicle, or that he had a possessory interest in the drugs found, or otherwise

had a reasonable expectation of privacy in the vehicle.” Order at 15.

      M r. Torres and M r. Guerrero each pleaded guilty to one count of possessing

methamphetamine with an intent to distribute, in violation of 21 U.S.C. §

841(a)(1). Each reserved the right to appeal the constitutionality of the vehicle

search. W e D EN Y the Government’s motion to dismiss M r. Torres’s appeal as

moot, and we A FFIR M the district court’s ruling that the detention was

supported by reasonable suspicion.

      The Government claims that the appeal is moot because M r. Torres failed

to argue, in his opening brief, that he had standing to contest the search of the

vehicle. But the case is obviously not moot: M r. Torres w as convicted and is

serving his sentence, so the appeal presents a live controversy. The real question

is waiver. “Issues not raised in the opening brief are deemed abandoned or

waived.” Coleman v. B-G M aint. M gmt. of Colo., Inc., 108 F.3d 1199, 1205 (10th

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Cir. 1997). “It is not sufficient to merely mention an issue in a reply brief.”

Coleman, 108 F.3d at 1205.

      Construing the government’s mootness argument as a waiver argument, it

still fails, because M r. Torres disputes the legality of his detention rather than the

legality of the search of the vehicle. W hile so-called Fourth Amendment

“standing” is required to challenge a search, United States v. Arango, 912 F.2d

441, 445-46 (10th Cir. 1990), standing is not required to contest a search that

occurs during or as a direct result of an illegal detention. As w e explained in

United States v. Nava-Ramirez, “although a defendant may lack the requisite

possessory or ownership interest in a vehicle to directly challenge a search of that

vehicle, the defendant may nonetheless contest the lawfulness of his own

detention and seek to suppress evidence found in the vehicle as the fruit of the

illegal detention.” 210 F.3d 1128, 1131 (10th Cir. 2000). M r. Torres need not

have a reasonable expectation of privacy in the vehicle in order to contest his

detention.

      That said, M r. Torres’s appeal fails on the merits. To begin, we do not

accept M r. Torres’s contention that we must assess an encounter that begins

voluntarily more stringently than we would an encounter that begins as a

compulsory traffic stop. Guerrero, 472 F.3d at 787. Voluntary questioning is

“the sort of consensual encounter that implicates no Fourth Amendment interest.”




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Florida v. Rodriguez, 469 U.S. 1, 5-6 (1984). 1 That the purpose of that

questioning “was drug interdiction not a traffic stop,” A ppellant Br. at 12, is

immaterial to our analysis. So long as the basis for reasonable suspicion was

gained through proper means— whether during voluntary questioning or a traffic

seizure— the nature and form of our review remains identical. See, e.g. Florida v.

Royer, 460 U.S. 491 (1983); United States v. Lam bert, 46 F.3d 1064, 1068 (10th

Cir.1995).

      Nor can we agree with M r. Torres that reasonable suspicion was lacking

here. As discussed at length in Guerrero, “factors cited by Deputy Rhodd

coalesce into a scenario sufficient to give rise to a reasonable suspicion of

criminal activity.” Guerrero, 472 F.3d at 788. Specifically, M r. Torres’s and M r.

Guerrero’s divergent stories concerning the purposes and details of their travel

were sufficiently inconsistent to arouse the officer’s legitimate suspicion that



      1
         M r. Torres does not appear to dispute that his initial encounter with police
was consensual; he argues only that the officer’s allegedly improper motive
should affect our analysis of reasonable suspicion. And indeed, a consent
argument would be futile under these facts:
       [P]olice questioning, by itself, is unlikely to result in a Fourth Amendment
       violation. . . . Unless the circumstances of the encounter are so intimidating
       as to demonstrate that a reasonable person would have believed he was not
       free to leave if he had not responded, one cannot say that the questioning
       resulted in a detention under the Fourth Amendment.
I.N.S. v. Delgado, 466 U.S. 210, 216 (1984).
       Similarly, M r. Torres does not contest the district court’s finding that he
has no independent standing to object to the search for reasons other than its
resulting from an illegal detention. Accordingly, we do not consider those issues
on appeal.

                                         -4-
illegal narcotics trafficking was underw ay. United States v. Kopp, 45 F.3d 1450,

1453-54 (10th Cir. 1995).

      Accordingly, we D EN Y the motion to dismiss the appeal as moot, and w e

A FFIR M the district court’s ruling that the evidence is admissible.

      Judge Hartz concurs in the judgment only.

                                                    Entered for the Court,

                                                    M ichael W . M cConnell
                                                    Circuit Judge




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