                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                JUN 3 1997
                                    TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk


 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
                                                             No. 96-8099
 v.
                                                      (D.C. No. 96-CR-71-ALL)
                                                        (District of Wyoming)
 ALEJANDRO VILLEGAS-GUZMAN,

           Defendant-Appellant.




                                 ORDER AND JUDGMENT*


Before SEYMOUR, Chief Judge, PORFILIO and BALDOCK, Circuit Judges.



       Alejandro Villegas-Guzman contends the district court erred in denying his motion

to suppress evidence obtained from a search of a vehicle in which he was a passenger.

We conclude he is precluded from objecting to the seizure because consent to search was

given by the driver of the car and affirm.




       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
       Mr. Villegas-Guzman was a passenger in a 1979 Chevy van that passed Wyoming

Highway Patrolman David Chatfield on Interstate 80. The van bore Iowa plates and had

what appeared to be curtains covering its back windows. Because Officer Chatfield

thought he might have stopped the van in the past year or so, he decided to follow it for a

few miles. During that time, Officer Chatfield observed the van drift across the center

line of the highway for a few seconds and then return to the right-hand lane. He also

observed the van follow another car with only two vehicle lengths between them.

Believing that both observations constituted violations of Wyoming’s traffic code, Officer

Chatfield pulled the van over to the side of the road.

       Upon approaching the vehicle, Officer Chatfield asked the driver, Salvadore

Flores-Perez, for his driver’s license and registration. Mr. Flores-Perez provided the

documents, explaining that the van belonged to Ramon Trevino, Mr. Villegas-Guzman’s

brother-in-law. Officer Chatfield then asked for and received Mr. Villegas-Guzman’s

driver’s license as well. Mr. Villegas-Guzman’s license was from Iowa, the state in

which the vehicle was registered, while Mr. Flores-Perez’s license was from California.

Mr. Flores-Perez further explained that he and Mr. Villegas-Guzman were on vacation

and returning to Des Moines, Iowa, from Los Angeles, California. During this encounter,

Mr. Flores-Perez appeared nervous and offered to provide pay stubs from his employment

in Iowa, though Officer Chatfield had not asked about his work.




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       Officer Chatfield returned to his patrol car and contacted the dispatch center to

verify the documents he had been given. He then requested a canine officer to meet him

at his location with a narcotics detection dog. A few minutes later, the dispatch center

confirmed that the licenses were valid and that the van was indeed registered to Mr.

Trevino of Des Moines, Iowa. Nevertheless, Officer Chatfield kept the documentation in

his car while he waited another five to ten minutes for the canine officer to arrive.

       The first canine officer to arrive at the scene told Officer Chatfield that his dog had

been in a fight and could not perform the search, although he had already called another

canine unit. Officer Chatfield continued to hold the licenses and registration until the

second canine officer arrived a few minutes later. He then returned the documents to Mr.

Flores-Perez and told him that he was “good to go.” Immediately thereafter, Officer

Chatfield asked Mr. Flores-Perez if he had any weapons, large sums of money, or illegal

drugs in the van. Mr. Flores-Perez answered no. Officer Chatfield then asked Mr.

Flores-Perez if he could search the van for those items, receiving an affirmative reply. At

this point, the second canine officer walked his dog around the van and the dog alerted to

the presence of narcotics. The first canine officer’s dog also sniffed the van, alerting to

the same area. The police then located packages of marijuana under the van.

       Mr. Villegas-Guzman was ultimately charged with possession with intent to

distribute marijuana and aiding and abetting. He moved to suppress the marijuana as the




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fruit of an illegal search, but the district court denied his motion. Mr. Villegas-Guzman

then entered a conditional guilty plea, reserving his right to appeal the suppression issue.

       The district court held Officer Chatfield’s stop of the van in which Mr. Villegas-

Guzman was riding was proper because his observations could have indicated the van’s

driver was sleepy, inattentive, or impaired. The court also held Officer Chatfield’s

detention of the van was proper because the passengers’ origin and destination were both

reputed centers of drug activity, the owner of the van was absent, and the van’s curtains

were drawn. Finally, the district court held the search of the van was proper because Mr.

Flores-Perez consented to it, though the court acknowledged that under the circumstances

he might have felt “forced into a search.” Having found that Officer Chatfield’s stop,

detention and search of the van were proper, the court denied Mr. Villegas-Guzman’s

motion to suppress.

       On appeal, Mr. Villegas-Guzman argues the district court erred in holding that the

traffic stop of the van was proper because Officer Chatfield lacked reason to believe a

violation of Wyoming’s traffic code had occurred. He also maintains his detention after

Officer Chatfield verified the van’s registration and its occupants’ drivers’ licenses was

unreasonable because there was no objective basis for suspecting him of criminal activity.

Specifically, Mr. Villegas-Guzman argues that each circumstance relied on by Officer

Chatfield to establish reasonable suspicion is perfectly consistent with innocent travel.




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       When reviewing the denial of a motion to suppress, we accept the factual findings

of the district court unless they are clearly erroneous and view the evidence in a light most

favorable to the government. United States v. Carhee, 27 F.3d 1493, 1496-97 (10th Cir.

1994). However, we review de novo a district court’s determination of whether law

enforcement officers had reasonable, articulable suspicion of criminal activity at the time

of a seizure because the ultimate determination of reasonableness under the Fourth

Amendment is a question of law. Id. at 1497.

       We believe the outcome of this case is driven by United States v. Eylicio-

Montoya, 70 F.3d 1158 (10th Cir. 1995), in which a passenger moved to suppress the

seizure of contraband from a vehicle in which she was riding on the ground it was the

fruit of an illegal detention. While concluding “a passenger has standing to challenge a

constitutionally improper traffic stop, detention, or arrest on Fourth Amendment grounds

even though, when the seizure occurs, she has no possessory or ownership interest in

either the vehicle in which she is riding or in its contents,” id. at 1164, we nonetheless

reversed the district court’s suppression order because we concluded the contraband

would have been discovered anyway and was therefore admissible under the “inevitable

discovery rule.” Id. at 1165-67. We believe a similarly intervening exception is

applicable in this case, depriving Mr. Villegas-Guzman of the right to suppression.

       Assuming for the sake of argument only that either the stop or the detention in this

case was constitutionally wanting, we can see no reason for concluding the seizure of the


                                             -5-
marijuana was the product of either Fourth Amendment violation. Breaking the link

between the detention and the seizure of contraband was Mr. Flores-Perez’s consent to

the search. Defendant voiced no objection to that consent at the time it was given;

therefore, he is now precluded from arguing the seizure of the contraband violated his

constitutional rights. See United States v. Langston, 970 F.2d 692, 698 (10th Cir. 1992)

(by remaining silent while the driver gave permission to search, passenger did not give

the officer reason to believe he had any interest in the area searched).

       Having reached this conclusion, we need not consider the other issues raised.

Judgment AFFIRMED.


                                           ENTERED FOR THE COURT


                                           John C. Porfilio
                                           Circuit Judge




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