                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-1359
                                   ___________

United States of America,            *
                                     *
          Plaintiff - Appellee,      *
                                     *    Appeal from the United States
v.                                   *    District Court for the District
                                     *    of Nebraska.
Marcos Andrew Munoz,                 *
                                     *
          Defendant - Appellant.     *
                                ___________

                             Submitted: November 18, 2009
                                Filed: January 13, 2010
                                 ___________

Before MURPHY, SMITH, and BENTON, Circuit Judges.
                           ___________

BENTON, Circuit Judge.

       Marcos Andrew Munoz pled guilty to being a felon in possession of a firearm,
in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In the plea agreement, Munoz
reserved the right to appeal the denial of his motion to suppress. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms.

                                          I.

      On November 6, 2005, Munoz was driving a rented Pontiac east on Interstate
80 in Nebraska when stopped for speeding by State Trooper Robbie Jackson. The
stop was videotaped by a camera in the cruiser, and audio-recorded by a microphone
on the officer. Trooper Jackson asked Munoz for his driver’s license; he responded
he did not have one, it had been suspended. Trooper Jackson asked for the vehicle’s
registration and was handed the rental agreement. The Pontiac was rented by the
passenger, Kristy Smith. Munoz told Trooper Jackson that he began driving after
Smith got tired. Trooper Jackson directed Munoz to the passenger seat of the cruiser.
There, he asked for Munoz’s name, date of birth, and travel plans. Trooper Jackson
called dispatch to check Munoz’s criminal record. Dispatch relayed that Munoz had
“a criminal history,” but provided no specifics.

      Re-approaching the Pontiac, Trooper Jackson asked Smith for her identification
and about her travel plans. Smith handed him her driver’s license. Trooper Jackson
returned to the cruiser and called dispatch with Smith’s information.

       Trooper Jackson told Munoz he would release him with only a citation. He
handed Munoz the rental agreement and explained the citation. As Munoz reached
for the door handle to exit the cruiser, Trooper Jackson said, “OK, well I would like
to ask you guys for a moment of your time.” He told Munoz about a recurring
problem of drugs being driven into Nebraska from Colorado. Trooper Jackson asked
for permission to search the Pontiac, saying that he would also ask Smith because she
had rented it. Munoz replied that Trooper Jackson would have to ask Smith. Trooper
Jackson told Munoz to remain in the cruiser.

       Trooper Jackson returned to the Pontiac with Smith’s driver’s license. He told
her that Munoz was going to get a ticket, the traffic stop was over, and she should take
over driving. He then asked her for a little bit more cooperation. He told Smith about
the drug trafficking problem and asked permission to search the Pontiac. Smith
consented to the search. Trooper Jackson asked if there was anything illegal in the
vehicle. She responded that other than some alcohol or beer bottles, she was not
aware of anything. Trooper Jackson asked Smith to exit the Pontiac and escorted her
to the back seat of the cruiser. While they were there, Munoz asked whether Trooper

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Jackson should use a drug dog. Trooper Jackson said he did not need one and closed
the cruiser door.

       Back at the Pontiac, Trooper Jackson began searching the front passenger area.
There was a backpack on the floorboard. Trooper Jackson did not know who it
belonged to. He picked it up and placed it on the passenger seat, hearing the clinking
of glass bottles inside. He unzipped the bag and removed beer bottles. Trooper
Jackson noticed that the backpack still seemed heavy. Unzipping the front pouch, he
found a loaded .45 caliber handgun. Trooper Jackson said, “bingo.” He asked Smith
if the backpack was hers; she said it was Munoz’s. Drawing his weapon, Trooper
Jackson placed Munoz under arrest.

       Trooper Jackson continued the search. In the backpack, he found a digital scale
and a small quantity of methamphetamine. Next, in the console between the front
seats, he found two glass pipes, which, based on his training and experience, he
recognized as “crack pipes.”

                                           II.

        Munoz appeals the denial of his motion to suppress the evidence found in the
backpack. This court reviews “the district court’s factual determinations in support
of its denial of a motion to suppress for clear error and its legal conclusions de novo.”
United States v. Hogan, 539 F.3d 916, 921 (8th Cir. 2008). “This court will affirm
the district court’s denial of a motion to suppress evidence unless it is unsupported by
substantial evidence, based on an erroneous interpretation of applicable law, or, based
on the entire record, it is clear a mistake was made.” Id.




                                          -3-
      Denying the motion to suppress, the district court1 assumed that Munoz was
seized in violation of the Fourth Amendment. The court also assumed that the search
of Munoz’s backpack was unlawful. However, the district court ruled that the
contraband in the backpack would have been inevitably discovered.

                                           A.

        Munoz does not argue that the initial traffic stop for speeding was unlawful, or
that it was improper for Trooper Jackson to ask questions about travel plans, collect
documentation, and run background checks. Rather, Munoz contends that his
detention was unreasonably extended once the traffic citation was issued and his
documents were returned. The district court assumed that the stop was unreasonably
extended (bypassing the argument whether Munoz was free to leave after he received
the citation). However, the facts found by the district court, all of which are supported
in the record, demonstrate that the encounter became consensual at this time. See
United States v. Alvarez-Manzo, 570 F.3d 1070, 1075 (8th Cir. 2009) (whether
officer’s acts constitute a seizure is a question of law, reviewed de novo).

       After making a traffic stop, an officer may detain the driver while he completes
“a number of routine but somewhat time-consuming tasks related to the traffic
violation, such as computerized checks of the vehicle’s registration and the driver’s
license and criminal history, and the writing up of a citation or warning.” United
States v. Barragan, 379 F.3d 524, 528-29 (8th Cir. 2004), quoting United States
v.$404,905.00 in U.S. Currency, 182 F.3d 643, 647 (8th Cir. 1999). “Once this initial
investigation is finished, however, the purpose of the traffic stop is complete and
further detention of the driver or vehicle would be unreasonable, ‘unless something

      1
         The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska, adopting the report and recommendation of the Honorable David L.
Piester, United States Magistrate Judge for the District of Nebraska.


                                          -4-
that occurred during the traffic stop generated the necessary reasonable suspicion to
justify a further detention’ or unless the continued encounter is consensual.” United
States v. Flores, 474 F.3d 1100, 1103 (8th Cir. 2007), quoting United States v. Jones,
269 F.3d 919, 925 (8th Cir. 2001). If the encounter becomes consensual, it is not a
seizure, “the Fourth Amendment is not implicated, and the officer is not prohibited
from asking questions unrelated to the traffic stop or seeking consent to search the
vehicle.” Id.

       Whether an encounter is consensual depends on the facts of the case. Jones,
269 F.3d at 925. “A seizure does not occur simply because a law enforcement officer
approaches an individual and asks a few questions or requests permission to search
an area.” Flores, 474 F.3d at 1103. A person is seized within the meaning of the
Fourth Amendment when, under the totality of the circumstances, “a reasonable
person would have believed that he was not free to leave.” Jones, 269 F.3d at 925.
Circumstances of a seizure may include “the threatening presence of several officers,
the display of a weapon by an officer, some physical touching of the person of the
citizen, or the use of language or tone of voice indicating that compliance with the
officer’s request might be compelled.” Flores, 474 F.3d at 1103, quoting United
States v. White, 81 F.3d 775, 779 (8th Cir. 1996); see also United States v. Nunley,
873 F.2d 182, 184-85 (8th Cir. 1989) (defendant was seized when officers’ statements
were more than routine questioning, and suggested to defendant that she was the
particular focus of an investigation). Conversely, if a reasonable person feels free to
“disregard the police and go about his business,” the encounter is consensual. Florida
v. Bostick, 501 U.S. 429, 434 (1991), quoting California v. Hodari D., 499 U.S. 621,
628 (1991). “The test is necessarily imprecise, because it is designed to assess the
coercive effect of police conduct, taken as a whole, rather than to focus on particular
details of that conduct in isolation.” Michigan v. Chesternut, 486 U.S. 567, 573
(1988).




                                         -5-
       The factual findings of the district court show that Munoz was no longer seized
once Trooper Jackson handed him the citation and rental agreement. Trooper Jackson
was the only officer present, he did not display his weapon, he did not touch Munoz,
he returned everything Munoz needed to continue his trip, he merely requested further
cooperation, and his statements describing the drug trafficking problem did not
suggest that Munoz was the particular focus of a drug trafficking investigation. The
fact that Munoz reached for the door handle before Trooper Jackson asked for a
moment of his time shows that Munoz felt free to leave, but then agreed to cooperate
further. Munoz told Trooper Jackson that he should ask for Smith’s consent to search
the Pontiac, indicating that he was allowing the continuation of the encounter. That
Trooper Jackson told Munoz to remain in the cruiser while he spoke with Smith – as
Munoz suggested – did not turn the consensual encounter back into a seizure. See
United States v. McManus, 70 F.3d 990, 992-93 (8th Cir. 1995) (officer’s direction
to defendant to come back and have a seat did not transform consensual encounter into
seizure); United States v. Angell, 11 F.3d 806, 809-10 (8th Cir. 1993) (officer’s
statement to “Stay there” or “Hold it right there” did not transform consensual
encounter into seizure), abrogated on other grounds as recognized by United States
v. McKinney, 120 F.3d 132, 133 (8th Cir. 1997). But see United States v. Garrett, 47
F. Supp. 2d 1257, 1265 (D. Kan. 1999) (ruling, without extended discussion, that
driver was seized after officer directed him to remain in the patrol car while officer
spoke with passenger). Because Munoz was no longer seized, his Fourth Amendment
rights were not violated while Trooper Jackson obtained Smith’s consent to search.

      Alternatively, even if Munoz remained seized after the citation and documents
were returned to him, any violation was de minimis. Only two-and-a-half minutes
elapsed between Trooper Jackson’s request for a moment of Munoz’s time and
Smith’s consent to search the Pontiac. In total, only five minutes elapsed between his
request for a moment of Munoz’s time and his discovery of the handgun. See United
States v. Suitt, 569 F.3d 867, 873 (8th Cir. 2009) (seizure of three minutes from
lawful conclusion of stop until dog sniff provided probable cause was de minimis

                                         -6-
intrusion); United States v. Robinson, 455 F.3d 832, 834 (8th Cir. 2006) (seizure of
a few minutes from lawful conclusion of stop until officers had probable cause was
de minimis intrusion); United States v. Alexander, 448 F.3d 1014, 1016-17 (8th Cir.
2006) (seizure of four minutes from lawful conclusion of stop until dog sniff provided
probable cause was de minimis intrusion). The district court’s factual findings, which
are not clearly erroneous, show that Munoz was not detained in violation of his rights.

                                           B.

      The district court also assumed that Trooper Jackson violated Munoz’s rights
when he searched the backpack without his consent. Trooper Jackson obtained
Smith’s consent to search the Pontiac. Munoz does not contend that his consent was
necessary to authorize a search of the car. Rather, he contends that Smith’s consent
did not include his backpack.

       “Consent to search . . . may be given either by the suspect or by some other
person who has common authority over, or sufficient relationship to, the item to be
searched.” United States v. James, 353 F.3d 606, 613 (8th Cir. 2003). “Common
authority” is determined by “mutual use, joint access, and control, and is a question
of fact.” Id. (citation omitted). An officer cannot “rely on a third party’s consent to
intentionally bypass a person who is present, has a superior privacy interest in the
premises, and actively objects to the search.” United States v. Esparza, 162 F.3d 978,
980 (8th Cir. 1998), citing United States v. Brokaw, 985 F.2d 951, 953 (8th Cir.
1993). However, a search is lawful “where officers reasonably rely on the consent of
a third party who demonstrates apparent authority to authorize the search, even if the
third party lacks common authority.” United States v. Nichols, 574 F.3d 633, 636
(8th Cir. 2009), citing Illinois v. Rodriguez, 497 U.S. 177, 188 (1990). “Apparent
authority is present when ‘the facts available to the officer at the moment . . . warrant
a man of reasonable caution in the belief that the consenting party had authority over’”
the thing searched. Id., quoting Rodriguez, 497 U.S. at 188.

                                          -7-
       Munoz was the owner of the backpack. There is no evidence that Smith had
joint use of it, and therefore, she did not have common authority over it. Smith’s
consent to search the Pontiac did not include Munoz’s backpack. See United States
v. Welch, 4 F.3d 761, 764 (9th Cir. 1993) (holding that one occupant of rental car did
not have the authority to consent to the search of another occupant’s purse where there
was no evidence of joint access to or shared control over it), overruled on other
grounds by United States v. Kim, 105 F.3d 1579, 1580-81 (9th Cir. 1997). Trooper
Jackson also did not reasonably believe that Smith had authority to consent to the
search of the backpack, as there were two people in the car who each had been sitting
in the passenger seat during the trip. In fact, Trooper Jackson testified that, at the time
of opening the backpack, he did not know whose it was. Because Munoz did not
consent to the search of his backpack, his Fourth Amendment rights were violated by
the search.

                                            C.

       Munoz argues the district court erred in concluding that the evidence in his
backpack would have been inevitably discovered. Although the search of Munoz’s
backpack was unlawful, “the evidence found need not be suppressed if the two prongs
of the inevitable discovery doctrine are proved by a preponderance of the evidence:
(1) there is a reasonable probability the evidence would have been discovered by
lawful means in the absence of police misconduct, and (2) the government was
actively pursuing a substantial, alternative line of investigation at the time of the
constitutional violation.” United States v. Thomas, 524 F.3d 855, 858 (8th Cir.
2008); United States v. Pruneda, 518 F.3d 597, 604 (8th Cir. 2008); see also Nix v.
Williams, 467 U.S. 431, 444 & 448 (1984).

      The district court concluded that Trooper Jackson would have lawfully searched
the console of the Pontiac even if he had not unlawfully searched the backpack. He
found crack pipes in the console, which would have provided probable cause to search

                                           -8-
anywhere in the car, including in the backpack, for further evidence of drug activity.
See United States v. Ross, 456 U.S. 798, 820-22 (1982) (probable cause justifies
search of every part of vehicle, including containers therein, that may conceal the
object of the search); United States v. Rowland, 341 F.3d 774, 785 (8th Cir. 2003)
(holding that discovering razor blades, rolling papers, and a syringe during Terry
search of vehicle provided probable cause to search every part of the vehicle and its
contents for further evidence of drugs); United States v. Fladten, 230 F.3d 1083, 1086
(8th Cir. 2000) (observation of “an item commonly used in the manufacture of
methamphetamine . . . in plain view in the back seat” of an automobile gave probable
cause to search other parts of the automobile for further contraband or evidence).

      The fact that Trooper Jackson searched the console after searching the backpack
proves, beyond a reasonable probability, that he would have eventually searched the
console. Trooper Jackson testified about his background and training in identifying
drugs and drug paraphernalia, testimony the lower court found credible. He
immediately recognized the glass pipes in the console as “crack pipes.” His discovery
of drug paraphernalia provided probable cause to search everywhere in the Pontiac,
including Munoz’s backpack, for further evidence of drugs. While looking for drug
contraband in the backpack, Trooper Jackson would have discovered the handgun.
The district court correctly ruled that the contraband in the backpack would have been
discovered by lawful means in the absence of police misconduct.

       The second prong “requires that the government prove that there was, at the
time of the search of the [backpack], an actual other investigation that would have led
to discovery of the otherwise unconstitutionally obtained evidence.” James, 353 F.3d
at 617. Before searching the backpack, Trooper Jackson had obtained Smith’s consent
to search the Pontiac, and was in the process of searching the entire car (including the
console). See Pruneda, 518 F.3d at 604. Smith’s valid consent was an actual other
investigative method of searching the Pontiac. The lawful search of the console
would have led to the discovery of the (otherwise unlawfully obtained) evidence in

                                          -9-
Munoz’s backpack. The district court properly concluded that the contraband in the
backpack would have been inevitably discovered.

                                       III.

      The judgment of the district court is affirmed.
                     ______________________________




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