                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 05 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-30023

              Plaintiff - Appellee,              D.C. No. 4:09-cr-00154-BLW-2

  v.
                                                 MEMORANDUM *
ANAYELL NIETO-ROJAS,

              Defendant - Appellant.



                    Appeal from the United States District Court
                              for the District of Idaho
                  B. Lynn Winmill, Chief District Judge, Presiding

                      Argued and Submitted February 6, 2012
                               Seattle, Washington

Before: SCHROEDER, ALARCÓN, and GOULD, Circuit Judges.

       Nieto-Rojas (“Appellant”) appeals the district court’s decision denying her

motion to suppress evidence.

       Appellant and her two passengers were being monitored by Idaho officers

for possible involvement in a drug transaction. After she drove into Utah, an Idaho



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
officer requested Utah officers to stop Appellant’s car if they could do so. Idaho

police requested both trying to obtain identity of the occupants of the vehicle and

seeing if money from the drug buy could be recovered.

       Utah Trooper Rindlisbacher pulled the vehicle over on a busy highway for

excessive window tinting. He issued Appellant citations for excessive tint on her

windows, for illegally transporting beer into Utah, and for not having a driver’s

license. He told Appellant that he would have to impound the car because neither

she nor her passengers had a valid driver’s license. Trooper Rindlisbacher told

Appellant that she could call someone to get picked up and was free to leave when

her ride arrived. The district court found that the “officers[’] demeanor toward

[Appellant] was, for most of the encounter, deferential and protective rather than

commanding.” Trooper Rindlisbacher directed Appellant where to sit and where to

stand, but this is to be expected on a busy highway. Thus, the record shows the

seizure and temporary detention of Appellant ended when she was issued the

citation for her traffic violations.

       Appellant and her passengers were requested to leave the vehicle so that two

other officers could conduct an inventory search of the impounded vehicle. A

drug-sniffing dog alerted on the exterior of the passenger door to a controlled

substance. The K-9 officer opened the door on the passenger side. The dog


                                       Page 2 of 7
entered and alerted to the odor of a controlled substance on the front seat on the

passenger side of the vehicle. A search of the interior of a vehicle after a drug-

sniffing canine has alerted to the odor of a controlled substance after walking

around its exterior is not unreasonable under the Fourth Amendment. Illinois v.

Caballes, 543 U.S. 405, 409-10 (2005).

      After the dog alerted to the odor of a controlled substance on the passenger

side of the front seat, Trooper Rindlisbacher first questioned and searched the

passenger who had been sitting there. Next, he asked Appellant to move over to

the car, pointed at the seat and said that “the dog said” there were drugs there, and

asked her if the people in the car had drugs. He asked her if she had drugs on her,

and she said no. He said, “Do you care if I look? Do you have anything in your

pockets or purse? Do you care if I look?” She said no. He said, “Do you

understand?” to which she replied, “No. I don’t know.” He said, “You spoke

English fine before. Do you care if I look in your purse and in your pocket? Do

you understand?” She paused about five seconds, sighed, and then said okay. He

asked her one more time whether she understood and if it was okay, and she said

yes. He then searched her purse, found a gun, and arrested her. He also found

more than $2,000 in cash, some of which consisted of pre-recorded bills from the

drug transaction the Idaho police were monitoring.


                                     Page 3 of 7
      Appellant moved to suppress the evidence found in the search on the

grounds that her consent was not voluntary. The district court denied her motion.

Appellant entered a conditional guilty plea to conspiracy to distribute a controlled

substance and attempted escape from custody,1 preserving her right to appeal the

district court’s denial of her motion to suppress the evidence. We now address the

issue of suppression in this appeal.

      “[A] district court’s determination whether a defendant voluntarily

consented to a search depends on the totality of circumstances and is a question of

fact we review for clear error.” United States v. Washington, 490 F.3d 765, 769

(9th Cir. 2007). We consider five factors in determining voluntariness: (1)

whether Appellant was in custody; (2) whether the arresting officers had their guns

drawn; (3) whether Miranda warnings were given; (4) whether Appellant was

notified that she had a right not to consent; and (5) whether Appellant had been

told a search warrant could be obtained. United States v. Jones, 286 F.3d 1146,

1152 (9th Cir. 2002). “These factors serve merely as guideposts, not as a

mechanized formula to resolve the voluntariness inquiry.” United States v. Brown,

563 F.3d 410, 415 (9th Cir. 2009) (internal quotation marks and citations omitted).



      1
        The attempted escape occurred after Nieto-Rojas had been arrested and is
not part of the subject of this appeal.

                                       Page 4 of 7
We must look to the totality of the circumstances to determine whether the district

court committed clear error.

      The district court held that Appellant was not in custody when her purse was

searched, reasoning that the officers were deferential and protective rather than

commanding, that they asked rather than demanded to search her purse, that they

did not physically control her at any time or display their weapons, and that they

told her multiple times that she was free to go when her ride arrived. Appellant

argues she was in custody because there were three officers on the scene, she was

cited for traffic violations, English was not her native language, she watched the

officers conduct an inventory search of the car, her passenger was searched in front

of her, and she was told that she could leave when her ride came but she was not

told she could leave before. We agree with the district court that Appellant was not

in custody. Appellant was told several times she would be free to leave when her

ride came. She did not ask to leave before her ride came. It was not unreasonable

for the officer to stay with Appellant and her passengers while she waited for a

ride, given the dangers of the busy highway.

      Even if we were to conclude that the district court erred and Appellant was

in custody, her consent was voluntary under the totality of the circumstances. This

case is not similar to Washington, which Appellant cites. Washington, 490 F.3d at


                                     Page 5 of 7
776. There, the court found significant that Washington’s consent was made at

night on a dark street, that he was outnumbered two-to-one, that he was searched in

a vulnerable position (with his hands on top of the squad car), and that there was a

“unique situation in Portland between the African-American community and the

Portland police.” Id.

      Here, Appellant was not alone—she was with her two passengers at all

times. The stop and request for search was made in broad daylight in a busy

location with others present. The officers told her more than once that she would

be free to go when her ride arrived. Throughout the encounter, the officers had

been generally pleasant to Appellant. They never made her stand in a vulnerable

position like in Washington. We have reviewed the full record including the video

of the stop. We hold that under the totality of the circumstances Appellant

voluntarily consented to the search of her purse and that her consent was never

withdrawn.2

      Appellant argues that the use of the drug-sniffing dog was illegal and that

the fact that the dog alerted to drugs in her car coerced her to consent. Viewing the

dog’s alert under the totality of the circumstances, it did not coerce the consent.


      2
         While Trooper Rindlisbacher was searching Appellant’s purse, she told
him that her ride was there. She did not ask him to stop his search, and less than
thirty seconds later he found the gun in her purse.

                                     Page 6 of 7
      We also hold that the search of Appellant’s purse did not exceed the scope

of consent. “The standard for measuring the scope of a suspect’s consent under the

Fourth Amendment is that of ‘objective’ reasonableness—what would the typical

reasonable person have understood by the exchange between the officer and the

suspect?” Florida v. Jimeno, 500 U.S. 248, 251 (1991). The officers asked to look

in Appellant’s purse. She consented. Her consent, without an express limitation,

gave the police permission to search her purse in the manner they did. Id. at 252.

She at no time told them to stop or withdrew her consent. The search did not

exceed the scope of Appellant’s consent.

      AFFIRMED




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