                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                                                                                 MAY 8 2001
                        UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                          PATRICK FISHER
                                                                                   Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                         No. 00-1100
                                                       (D.C. No. 99-CR-175 )
 FELIPE JESUS SAUCEDO,                                  (District of Colorado)

          Defendant-Appellant.


                                ORDER AND JUDGMENT*


Before McWILLIAMS, Senior Circuit Judge, ANDERSON, Senior Circuit Judge, and
BALDOCK, Senior Circuit Judge.


      On May 18, 1999, at approximately 8:45 a.m., Colorado State Patrol Trooper

Steven Ortiz was patrolling Interstate 25 northward from Walsenberg towards Pueblo,

Colorado. Another vehicle was also proceeding north from Walsenberg towards Pueblo,

driven by Felipe Jesus Saucedo. Saucedo was driving in the left lane ahead of Ortiz.

Ortiz thereafter observed the Saucedo vehicle pass another motorist who was in the right

hand lane. Ortiz decided to stop Saucedo’s vehicle because he believed Saucedo was


      *
         This order and judgment is not binding precedent, except under the doctrines of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.
driving carelessly and had failed to drive in a single lane. He also observed that in

passing the car in the right hand lane, Saucedo had driven onto the right shoulder of the

highway. Accordingly, a stop was made. Conversation ensued between Ortiz and

Saucedo, and his passenger, Claudia Santos-Lopez. Although there was initially some

problem with Saucedo’s driver’s license and car registration, within a few minutes that

was resolved. Ortiz, after giving Saucedo a verbal warning, advised Saucedo that he was

free to leave, but suggested that his passenger drive, since Saucedo said he was “tired.”

       Before Saucedo left, Ortiz asked him if there were any drugs or weapons in the car

and Saucedo said “no.” Ortiz next asked Saucedo for permission to search the car and

Saucedo answered “yes.” Saucedo then read and signed a consent to search form which

Ortiz had filled out on the “Spanish side of the form,” Saucedo having indicated that he

“preferred Spanish.” (Ortiz is fluent in Spanish). A search of the vehicle disclosed a

large quantity of methamphetamine in the trunk, whereupon Ortiz arrested Saucedo. As

he was transporting Saucedo to police headquarters, Saucedo volunteered (not in response

to any questioning) that his passenger had “nothing to do with it.” Ortiz told Saucedo to

be quiet and wait until they got to headquarters. Once there, Saucedo was given a

Miranda warning in Spanish, and Saucedo then indicated he was willing to answer

questions. At that time, Saucedo admitted, inter alia, that he was transporting drugs from

California to Minnesota, and again said that his passenger, Santos-Lopez “had nothing to

do with it.”


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       Prior to trial, Saucedo filed a motion to suppress. At the hearing on the motion,

both Ortiz and Saucedo testified. The district court in a detailed order denied the motion

to suppress. Saucedo then entered a conditional plea of guilty to a conspiracy charge,

pursuant to Fed. R. Crim. P. 11(a)(2), and was thereafter sentenced to imprisonment for

135 months, 5 years of supervised release, and a fine of $100.00.

       Saucedo’s first argument is that Ortiz’ stop of the vehicle he was driving was

unreasonable and in violation of his Fourth Amendment rights. In an appeal of a district

court’s denial of a motion to suppress, our standard of review is to accept the district

court’s findings of fact unless such are clearly erroneous, and to view the evidence in a

light most favorable to the government. United States v. McAlpine, 919 F.2d 1461, 1463

(10th Cir. 1990). However, the ultimate question of the reasonableness of a police

officer’s actions, as required by the Fourth Amendment, is one of law which is reviewed

de novo. United States v. Ross, 920 F.2d 1530, 1533 (10th Cir. 1990). Further, in

determining whether the initial stop of a motor vehicle by a police officer is reasonable

under the Fourth Amendment, the government is not required to show that a traffic

violation actually occurred; rather, it is sufficient to show that the officer making the stop

has a “reasonable, articulable suspicion” that a traffic violation has occurred, or was

occurring. United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998)(citing U.S.

v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995)).

       The district court in its order denying Saucedo’s motion to suppress first held that


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Ortiz had, at the very minimum, a “reasonable articulable belief” that Saucedo had

violated traffic laws. The district court then went a step further and found that Ortiz had

probable cause to believe that Saucedo was in violation of traffic laws and that such being

the case, he acted “reasonably,” within the Fourth Amendment, in his stop of the vehicle.

In so doing, the district court found as follows:

              He [Ortiz] noticed a vehicle in front of him, which turned out
              to be the vehicle driven by the defendant Saucedo. It was
              apparently passing another vehicle. In so doing, it made an
              erratic lane change in front of the Trooper and of the vehicle
              it was passing, swerved on to the shoulder as though the
              driver was going to go out of control. The Trooper described
              his conduct as being careless and bordering on reckless
              conduct in driving the vehicle. Accordingly, he elected to
              stop the vehicle and did so.

       In concluding that Ortiz made a lawful stop of the vehicle driven by Saucedo, the

district court relied on United States v. Ozbirn, 189 F.3d 1194 (10th Cir. 1999). On

appeal, counsel argues that the district court’s reliance on Ozbirn was misplaced, and that

the present case is more like United States v. Gregory, 79 F.3d 973 (10th Cir. 1996). We

agree with the district court that the present case is quite similar to Ozbirn. We note that

in Ozbirn, we distinguished that case from Gregory. Ozbirn, 189 F.3d at 1198. The facts

in the instant case come within Ozbirn. In short, the district court’s finding that Ortiz had

probable cause to stop Saucedo, or at the very least had a “reasonable articulable

suspicion” that Saucedo had violated traffic laws, is supported by the record and under

applicable authorities constituted a valid stop.


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       Saucedo’s next argument is that he did not voluntarily consent to a search of his

vehicle. At the hearing on the motion to suppress, both Ortiz and Saucedo testified.

Saucedo was not fluent in English and an interpreter at that hearing was used. The

testimony of Ortiz and Saucedo differed in several respects. On the consent to search

issue, the district court basically accepted Ortiz’ version of events, which it had the right

to do.1 The district court in its order denying Saucedo’s motion to suppress stated that

there was “no question in the court’s mind that this consent to search was obtained by the

Trooper and it was obtained voluntarily.” In this connection, Ortiz testified that after he

returned identification papers to Saucedo and informed him that he and his companion

were free to go, he asked Saucedo if there were any drugs or weapons in the car, and that

Saucedo responded “no.” Ortiz said he then asked Saucedo if he could search the car and

that Saucedo responded “yes.” Ortiz stated that he then obtained a consent to search form

from his vehicle which form was printed in both English and Spanish. Saucedo indicated

that he preferred the Spanish side of the form, whereupon Ortiz then filled out the consent

to search form, presented it to Saucedo, and Saucedo read and then signed the form.

       In United States v. West, 219 F.3d 1171, 1176-7 (10th Cir. 2000), we spoke about

the police questioning of a driver after he had been told he was “free to leave” as follows:



       1
        When “there are two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.” United States v. Toro-Pelaez, 107 F.3d 819,
824 (10th Cir.), cert denied, 522 U.S. 845 (1997)(citing Anderson v. City of Bessemer
City, 470 U.S. 564, 574 (1985)).

                                             -5-
                   After the initial justification for the stop was legally
                 concluded, Deputy Barney continued to question West. An
                 officer may extend a traffic stop beyond its initial scope if the
                 suspect consents to further questioning or if the detaining
                 officer has a particularized and objective basis for suspecting
                 the person stopped of criminal activity. 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. ‘A consensual encounter is
                 the voluntary cooperation of a private citizen in response to
                 non-coercive questioning by a law enforcement officer.’
                 Whether 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.’ An
                 officer is not required to inform a suspect that he did not have
                 to respond to his questioning or that he was free to leave.
                 Therefore, an unlawful detention occurs only when the driver
                 has an ‘objective reason to believe he or she is not free to end
                 the conversation with the officer and proceed on his or her
                 own way.’ (Citations omitted.)

Id. at 1176-7.

       Saucedo argues, as was argued in West, that even if his post-stop conversation with

Ortiz was consensual, he did not voluntarily consent to a search of his car. In that regard,

we spoke in West as follows:

                 Whether a party has voluntarily consented to a search is a
                 question of fact that the district court must evaluate in view of
                 the totality of the circumstances. Because voluntariness is a
                 question of fact, the court must accept the district court’s
                 finding unless it is clearly erroneous.

Id. at 1177.

       As indicated, the district court found, in effect, that Saucedo’s conversation with

                                               -6-
Ortiz after the latter told him he was free to go was consensual in nature and that the

verbal and written consent given by Saucedo under the totality of the circumstances, was

voluntary in nature. There is nothing in the record to indicate that Saucedo’s consent to

the search resulted from “an overbearing show of authority.” In short, the record supports

the district court’s finding that the consensual encounter and the consent to search were

voluntary, and we believe such is in accord with applicable authorities.

       Saucedo’s final argument is that the Miranda warnings given him were inadequate

and therefore he did not voluntarily, knowingly and intelligently waive his Miranda

rights. The statement made by Saucedo en route to police headquarters that his

companion was not involved was volunteered and not in response to any question. The

statements made at the police headquarters were after Ortiz verbally informed Saucedo, in

Spanish, of his Miranda rights. In sum, the record and applicable authorities support the

district court’s findings that the Miranda warnings were adequate and that Saucedo did

voluntarily waive those rights. After answering some questions propounded by Ortiz,

Saucedo later declined to submit to further questioning.

       A recent case, United States v. Bustillos-Munoz, 235 F.3d 505 (10th Cir. 2000), is

almost on all fours with the present case. The facts in Munoz are strikingly similar to

those in the instant case. In Munoz, we rejected the same arguments that Saucedo

advances here: (1) the initial stop was improper, (2) the consent to search was invalid, and




                                            -7-
(3) the Miranda warnings were insufficient. The present case is almost a duplicate of

Munoz.

      Judgment affirmed.

                                                Entered for the Court,


                                                Robert H. McWilliams
                                                Senior Circuit Judge




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