                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          APR 2 2001
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 00-2036
v.                                                (District of New Mexico)
                                                 (D.C. No. CR-99-569-BB)
AMKAR NOE SANDOVAL,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before HENRY, HOLLOWAY, and MURPHY, Circuit Judges.


I. INTRODUCTION

      Defendant Amkar Noe Sandoval entered a conditional guilty plea to one

count of possession with intent to distribute cocaine. Sandoval appeals the

district court’s denial of his motion to suppress, arguing he was unlawfully

detained without reasonable suspicion beyond the time necessary to issue a

citation. See Fed. R. Crim. P. 11(a)(2) (providing that a defendant, with approval


      *
       This order and judgment is not binding precedent, except under the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.
of the court and consent of the government, may enter conditional guilty plea and

reserve right to appeal an adverse determination of pretrial motion). This court

exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms the district

court’s denial of the motion to suppress. 1

II. BACKGROUND

      The following facts are viewed in a light most favorable to the government,

the prevailing party below. See United States v. Hunnicutt   , 135 F.3d 1345, 1348

(10th Cir. 1998).   In April 1999, New Mexico State Police Officer Wayne Harvey

observed a maroon Chrysler with Texas license plates proceeding northbound on

Interstate Highway 25 at a high rate of speed. He engaged his patrol radar and

clocked the car traveling at 92 miles per hour in a 75 mile-an-hour zone. Officer

Harvey pulled the car over and called in its license plate number to determine if it

was a stolen or wanted vehicle. Officer Harvey did not receive a report from

dispatch indicating to him that the car was stolen. The entire encounter was

recorded on videotape from a video camera contained in the officer’s police unit;

the videotape was played at the suppression hearing.




      1
       The government asks this court to affirm the district court’s denial on
grounds that Sandoval has no standing to challenge the search of the car. Because
we agree with the district court that Sandoval has standing, we affirm on the
merits. See United States v. Rubio-Rivera, 917 F.2d 1271, 1274-75 (10th Cir.
1990).

                                         -2-
      Officer Harvey approached the car and requested to see Sandoval’s driver’s

license and his vehicle registration or insurance. Sandoval handed Officer Harvey

a driver’s license and the registration to the car, which he obtained from the glove

compartment. Officer Harvey explained to Sandoval that he was going to issue

him a speeding citation and informed him of his options for paying the ticket.

Officer Harvey returned to his patrol car to issue the citation. As he was writing

the citation, he noticed that Sandoval was not the registered owner of the car, nor

did he have the same last name or address as the registered owner. The car was

registered to Claudia Espinosa, who lived in El Paso. Officer Harvey also noticed

that Sandoval was “fidgeting around, moving back and forth” as if he was “either

uncomfortable or nervous.”

      Officer Harvey returned to the car and handed Sandoval his license, the

registration, and an envelope in which to mail the fine for the speeding ticket, but

he did not provide him with a copy of the ticket. The officer explained the

citation to Sandoval once more and then inquired about his travel plans. Sandoval

indicated that he was traveling to Denver for a week. Officer Harvey asked

Sandoval who owned the vehicle. Sandoval replied that it belonged to his cousin.

Officer Harvey testified that he asked Sandoval for his cousin’s name, and

Sandoval “proceeded to clear his throat numerous times. He was searching for an

answer.” Sandoval picked up the registration, which he had placed on the


                                         -3-
passenger seat, and read the name on the registration card. Officer Harvey

testified that he thought it was odd that Sandoval was driving his cousin’s vehicle

yet did not know his cousin’s name.

      Officer Harvey asked Sandoval to step out of the car so he could issue the

citation. Although Officer Harvey testified that he normally did not ask a person

to step out of the car when issuing a ticket, he did so in this case because

Sandoval was nervous, refused to make eye contact with him, and did not know

the name of the owner of the car. Officer Harvey testified that these factors led

him to suspect that the car was stolen and not yet reported as such, or that

Sandoval “might have contraband within the vehicle or on his person.”

      Officer Harvey and Sandoval moved to the rear of the car to avoid the

approaching traffic. Officer Harvey asked Sandoval where his luggage was, and

Sandoval replied that it was in the trunk. The officer asked Sandoval whether he

could look at the luggage, and Sandoval replied, “Sure,” and proceeded to open

the trunk. The trunk contained two winter jackets and a small athletic duffel bag.

Officer Harvey moved these items to ensure there was no concealed weapon. As

he moved the contents of the trunk, Officer Harvey noticed a black, circular

retaining screw approximately three or four inches in diameter, something he had

never before seen in a vehicle.




                                          -4-
      Officer Harvey reexplained the citation to Sandoval and gave him his copy

of the ticket. Once Sandoval received the citation, Officer Harvey asked, “May I

search or look into the back of your area right here?” and, with his hand,

indicated that we was referring to the trunk area. Officer Harvey testified that

Sandoval replied, “Sure, go ahead.” Officer Harvey asked Sandoval to stand on

the unimproved portion of the right-of-way and began to search the trunk and its

contents. Officer Harvey examined the retaining screw, undid it, lifted the carpet

and a piece of plywood, and found a concealed compartment. The compartment

contained 18 kilograms of cocaine. Ultimately, police officers discovered three

secret compartments containing 50 kilograms of cocaine.

      Sandoval was charged in a two-count indictment with possessing cocaine

with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and

carrying a firearm during a drug trafficking crime, in violation of 18 U.S.C. §

924(c)(1). He entered a not guilty plea and later filed a motion to suppress the

cocaine obtained during the traffic stop. The United States District Court for the

District of New Mexico denied Sandoval’s motion to suppress following a

hearing on the issue.

      Pursuant to a plea agreement, Sandoval subsequently entered a conditional

guilty plea to the possession charge and the firearm charge was dropped. The

district court sentenced Sandoval to sixty-three months imprisonment, followed


                                         -5-
by three years supervised release. On appeal, Sandoval argues the district court

erred in denying his motion to suppress because the officer detained him without

reasonable suspicion. He further asserts that his consent to search the trunk was

not voluntary.

III. DISCUSSION

A. Standard of Review

       In reviewing the denial of a motion to suppress, this court reviews the

district court’s findings of fact for clear error, giving deference to the inferences

the district court draws from its findings.     See United States v. Gigley , 213 F.3d

509, 513-14 (10th Cir. 2000). Weighing the credibility of witnesses is solely

within the province of the district court.     See Hunnicutt , 135 F.3d at 1348. We

review the district court’s legal conclusions as to the reasonableness of the

officer’s actions de novo . See United States v. Soto , 988 F.2d 1548, 1551 (10th

Cir. 1993).

B. Reasonable Suspicion

       Sandoval argues that he was unlawfully detained beyond the time necessary

to issue a traffic citation in violation of the Fourth Amendment. Generally, an

investigative detention must not last any longer than necessary to effectuate the

purpose of the stop.    See United States v. Patten   , 183 F.3d 1190, 1193 (10th Cir.

1999). Questioning beyond the time it takes to issue a citation is permissible


                                              -6-
only if “(1) during the course of the traffic stop the officer acquires an

objectively reasonable and articulable suspicion that the driver is engaged in

illegal activity; or (2) the driver voluntarily consents to the officer’s additional

questioning.” United States v. Elliott , 107 F.3d 810, 813 (10th Cir. 1997)

(quotation omitted).

       While returning Sandoval’s driver’s license and the vehicle registration,

Officer Harvey lawfully questioned Sandoval about his travel plans.       See United

States v. McSwain , 29 F.3d 558, 561 (10th Cir. 1994). After questioning

Sandoval about the identity of the vehicle owner, Officer Harvey lawfully asked

Sandoval to step out of the car.   See Pennsylvania v. Mimms , 434 U.S. 106, 111

(1977). Officer Harvey testified that he did so because Sandoval was nervous,

refused to make eye contact with him, and did not know the name of the owner of

the vehicle, an individual Sandoval had asserted was his cousin. This led him to

believe that the car was stolen but not yet reported, or that there was contraband

in the vehicle or on his person. Officer Harvey asked Sandoval where his

luggage was located and whether the car contained contraband or large sums of

money. He had not yet issued Sandoval a citation at this point. Because

Sandoval had not consented to further questioning, his continued detention was

lawful only if the officer had a reasonable suspicion that Sandoval was engaged

in an illegal activity.


                                          -7-
       This court examines the totality of the circumstances to determine whether

Officer Harvey had an objective justification to detain Sandoval beyond the time

necessary to issue a citation.   See United States v. Houston , 21 F.3d 1035, 1038

(10th Cir. 1994). Officer Harvey indicated during the suppression hearing that

Sandoval was “fidgeting around, moving back and forth” as if he was “either

uncomfortable or nervous.” Although the district court made no findings about

Sandoval’s nervousness, we must view the facts in a light most favorable to the

government. See Hunnicutt , 135 F.3d at 1348. Sandoval’s nervousness is

relevant to a determination of reasonable suspicion, even if it is not sufficient by

itself to establish reasonable suspicion.   See United States v. Soto-Cervantes   , 138

F.3d 1319, 1324 (10th Cir. 1998).

       In ruling on Sandoval’s motion to suppress, the district court concluded

that Sandoval’s inability to name the registered owner of the car was a “proper

factual predicate for the officer to follow up and have a reasonable suspicion to

ask additional questions.” Even though the car Sandoval was driving had not

been reported as stolen, Sandoval indicated to Officer Harvey that it belonged to

his cousin. Sandoval, however, was unable to tell the officer the name of his

cousin or the owner of the car without looking at the registration. Officer Harvey

widened the scope of his questioning only after he noticed Sandoval’s

nervousness and asked Sandoval who owned the vehicle. Combined with his


                                            -8-
nervousness, Sandoval’s inability to offer proof of ownership or to produce

satisfactory proof of entitlement to operate the vehicle generated an objectively

reasonable suspicion of criminal activity, thereby warranting further questioning.   2



See Hunnicutt , 135 F.3d at 1349; Soto , 988 F.2d at 1556.

C. Voluntary Consent

      After inquiring about Sandoval’s travel plans, Officer Harvey asked him

about his luggage. Sandoval indicated that his bag was in the trunk, and Officer

Harvey asked if he could take a look. Sandoval replied affirmatively and opened

the trunk. Officer Harvey noticed a small duffle bag and two winter jackets. He

moved the jackets aside to uncover any hidden weapons. As he moved the

jackets, Officer Harvey discovered a circular retaining screw unlike any he had

ever seen before in the trunk of an automobile. He then handed Sandoval a copy

of the citation. Almost immediately, Officer Harvey asked Sandoval for

permission to search the car while simultaneously waving his hand over the

trunk. Sandoval responded, “Sure, go ahead.” Officer Harvey proceeded to


      2
        Sandoval argues that continued detention must be based on an officer’s
reasonable suspicion of a particular criminal activity. He further argues that the
officer must have suspected possession of narcotics, which was not supported by
the facts, because the car had not been reported stolen. This court need not
address the issue of whether a reasonable suspicion determination needs to be tied
to a specific criminal activity. The facts, as discussed supra, supported Officer
Harvey’s reasonable suspicion of illegal activity that warranted further
questioning about the vehicle’s proper owner and Sandoval’s possession of
contraband or weapons.

                                            -9-
search the trunk, Sandoval’s luggage, and the tire well. This search produced the

evidence Sandoval seeks to suppress.

       Whether Sandoval knowingly and voluntarily consented to either the initial

or subsequent search is a question of fact.      3
                                                     See Patten , 183 F.3d at 1194. The

district court found that Sandoval’s detention, which lasted from the moment he

was stopped until the moment he was handed the citation, was lawful. Because

the district court found that the detention was lawful, it necessarily must have

found that Sandoval consented to the initial search of the trunk. Additionally,

the district court found that after Officer Harvey handed the citation to Sandoval,

the encounter became consensual and Sandoval gave voluntary consent to the

second search of the trunk.

       To establish voluntary consent, the government bears the burden of

proving “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.” Soto , 988 F.2d at 1557. On similar facts in          Soto , this court upheld the

district court’s finding of voluntary consent.         See id. at 1558. Like the officer in



       3
        Although the evidence Sandoval seeks to exclude was not discovered until
the second search, the lawfulness of the first search impacts the analysis this court
must undertake. If Officer Harvey’s initial search of the trunk was illegal, we
must either conduct a taint analysis or remand to the district court for such an
analysis. See United States v. Fernandez, 18 F.3d 874, 881 & n.7 (10th Cir.
1994). Because the initial search was consensual, this court does neither.

                                              -10-
Soto, Officer Harvey “did not unholster his weapon, did not use an insisting tone

or manner, did not physically harass [Sandoval], and no other officers were

present. Further, the incident occurred on the shoulder of an interstate highway,

in public view.” Id. Officer Harvey asked for permission to look in the trunk

before both searches. Sandoval testified at the suppression hearing that he gave

an affirmative response to Officer Harvey’s initial request before proceeding to

open the trunk himself. Officer Harvey testified that Sandoval responded

affirmatively to the second request as well.

      Sandoval argues on appeal, however, that his consent to search was not

freely given either before or after Officer Harvey gave him a copy of the citation.

He claims Officer Harvey accused him of lying and used a raised tone of voice

during their interaction. Further, Sandoval asserts that his inability to leave the

encounter before being given the citation and Officer Harvey’s failure to tell

Sandoval that he was free to leave once he was given the ticket militate against a

finding of voluntary consent.

      Sandoval’s consent to the initial search is not vitiated simply because he

did not have a copy of his citation at the time of consent. Even a person being

detained can consent to a search.   See United States v. Doyle , 129 F.3d 1372,

1377 (10th Cir. 1997). Moreover, Officer Harvey was not obligated to inform

Sandoval that he was free to leave once the detention was over and before


                                         -11-
Sandoval gave consent to the second search, particularly when the officer

exercised no coercion or duress.   See Elliott , 107 F.3d at 814. Having carefully

reviewed the videotape and record, this court rejects Sandoval’s assertions and

concludes that the district court properly found that Sandoval voluntarily

consented to a search of the vehicle’s trunk.

IV. CONCLUSION

      This court concludes the district court properly denied Sandoval’s motion

to suppress cocaine seized by Officer Harvey during a traffic stop. The officer

objectively possessed reasonable and articulable suspicion that Sandoval was

engaged in an illegal activity. Further, Sandoval voluntarily consented to both

the initial search and the search that produced the cocaine. Accordingly, this

court AFFIRMS .

                                       ENTERED FOR THE COURT:



                                       Michael R. Murphy
                                       Circuit Judge




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