                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAY 6 1997
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 96-6251
 v.                                               (D.C. No. CR-96-37-M)
                                                       (W.D. Okla.)
 JUAN FRANCISCO JASSO-
 TREVINO,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Paul Antonio Lacy, Assistant Federal Public Defender, Oklahoma City,
Oklahoma, for Plaintiff-Appellant.

Mark A. Yancey, Assistant United States Attorney (Patrick M. Ryan, United
States Attorney, with him on the brief), for Defendant-Appellee.


Before BRORBY, HOLLOWAY and EBEL, Circuit Judges.




      *
        This order and judgment is not binding precedent except under the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.
      The Defendant in this criminal case, Mr. Juan Francisco Jasso-Trevino,

appeals his conviction of the crime of being in the United States unlawfully after

previously having been deported subsequent to a conviction for an aggravated

felony, a violation of 8 U.S.C. § 1326(a) (1994). Mr. Jasso-Trevino argues the

district court erred in denying his motion to suppress evidence obtained in

violation of the Fourth Amendment. He requests we vacate his conviction,

remand his case to the district court, and reverse the district court's denial of his

motion to suppress. We instead affirm the district court.



I. BACKGROUND

      On February 23, 1996, at approximately 1:15 a.m., while monitoring traffic

on Interstate 35, Oklahoma Highway Patrol Trooper Paul Hill observed a Buick

station wagon twice swerve right and briefly straddle the outside lane line.

Thinking the driver was either intoxicated or sleepy, Trooper Hill stopped the

vehicle for improper lane usage, a violation of Okla. Stat. Ann. tit. 47, § 11-309

(West 1988).



      Approaching the station wagon, Trooper Hill observed a male driver (Mr.

Jasso-Trevino) and a male passenger (Mr. Jasso-Trevino's father, Mr. Francisco


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Jasso-Amaro) in the front seat. He also noticed three white plastic bags and a

small blue suitcase in the rear. Upon asking Mr. Jasso-Trevino for his driver's

license, Trooper Hill learned he did not speak English but his father did.



      Seeing no indications Mr. Jasso-Trevino was intoxicated, Trooper Hill

assumed he was sleepy rather than intoxicated and decided to issue a warning for

improper lane usage rather than a citation. With Mr. Jasso-Amaro interpreting,

Trooper Hill obtained Mr. Jasso-Trevino's vehicle registration and Mexico

driver's license. He asked Mr. Jasso-Amaro to accompany him back to the patrol

car so he could explain why he was issuing a warning and inquire as to how long

Mr. Jasso-Trevino had been driving.



      Mr. Jasso-Amaro's responses to his questions raised Trooper Hill's

suspicions. Mr. Jasso-Amaro said he and his son were returning home to Mexico

after visiting relatives in Wisconsin for the past ten days. Trooper Hill thought

this inconsistent with having only one small piece of luggage approximately 14" x

14." Trooper Hill became more suspicious when Mr. Jasso-Amaro was unable to

state the addresses of the relatives they had been visiting or the city in Wisconsin

where they had stayed.




                                         -3-
      Trooper Hill asked Mr. Jasso-Amaro if they were transporting any firearms,

alcohol, tobacco, or narcotics, to which Mr. Jasso-Amaro responded "No." He

then told Mr. Jasso-Amaro that after he issued the warning to Mr. Jasso-Trevino,

he wanted Mr. Jasso-Amaro to translate, asking Mr. Jasso-Trevino if it would be

alright to look in the vehicle for those items. They returned to the station wagon,

where Trooper Hill issued the warning to Mr. Jasso-Trevino and returned his

license and registration. Trooper Hill then requested Mr. Jasso-Amaro, who had

opened the passenger door but was still standing, to explain the warning to Mr.

Jasso-Trevino, tell him he was free to go, and ask if he minded one more

question. Mr. Jasso-Amaro spoke in Spanish to his son, looked at Trooper Hill,

and shook his head. Trooper Hill told Mr. Jasso-Amaro to ask Mr. Jasso-Trevino

whether he was transporting any illegal firearms, alcohol, tobacco, or narcotics, at

which time Mr. Jasso-Amaro again spoke in Spanish to Mr. Jasso-Trevino.

Trooper Hill then told Mr. Jasso-Amaro to ask whether it would be okay if he

searched the vehicle. Mr. Jasso-Amaro again spoke in Spanish to Mr. Jasso-

Trevino, who responded by shaking his head and saying "Si."



      Construing this as consent to a search, Trooper Hill ordered Mr. Jasso-

Trevino and Mr. Jasso-Amaro to exit the station wagon and stand in front of his

patrol car. He then, for safety reasons, called in other officers who monitored the


                                         -4-
situation while he searched the station wagon with a drug-sniffing canine. The

dog alerted twice on the outside driver's rear wheel well, as well as on an interior

rear compartment located over that wheel well. Upon opening the compartment,

Trooper Hill discovered marijuana seeds and residue. During the course of

Trooper Hill's search, neither Mr. Jasso-Trevino nor Mr. Jasso-Amaro indicated a

lack of consent to the search.



      After finding the marijuana remnants, Trooper Hill, through his dispatcher,

contacted the "EPIC" database in El Paso, Texas, to have background checks run

on the detainees. The background check showed Mr. Jasso-Trevino had been

convicted of trafficking in narcotics, was never to reenter the country and should

be arrested for illegal reentry. Trooper Hill then arrested Mr. Jasso-Trevino for

illegal reentry and detained Mr. Jasso-Amaro for marijuana possession. While

patting them down, he found bundles of cash totaling $5,275 in Mr. Jasso-

Trevino's pants and jacket, and $970 on Mr. Jasso-Amaro. Trooper Hill then had

Mr. Jasso-Amaro read Mr. Jasso-Trevino his rights from a card stating a Spanish

version of the Miranda warnings.



      Trooper Hill transported Mr. Jasso-Trevino to the Oklahoma County Jail.

Between 8:30 a.m. and 9:00 a.m., Immigration and Naturalization Service


                                         -5-
officials removed Mr. Jasso-Trevino from jail and took him to their Oklahoma

City office. There agents interviewed him after reading him his Miranda rights in

Spanish. Mr. Jasso-Trevino admitted he had been deported from the United

States for trafficking in narcotics and had illegally reentered the country.



      Subsequently, a grand jury indicted Mr. Jasso-Trevino for violating 8

U.S.C. § 1326(a). After the district court's denial of his motion to suppress, he

entered a conditional plea of guilty, preserving for appeal the issues raised in his

motion to suppress. Those issues are now before us.



II. ANALYSIS

      Mr. Jasso-Trevino's assertions on appeal are threefold. He claims that

although Trooper Hill's initial traffic stop may have been reasonable and justified,

the trooper's subsequent actions were not reasonably related in scope to the

circumstances justifying the original detention. He further contends Trooper Hill

did not have valid consent to search the vehicle. Lastly, Mr. Jasso-Trevino argues

his admission to the Immigration and Naturalization Service agents is

inadmissible because it was given while he was illegally confined, as that

confinement was the product of an unlawful detention, search and seizure.




                                          -6-
      The Fourth Amendment bars unreasonable searches and seizures. United

States v. Shareef, 100 F.3d 1491, 1499 (10th Cir. 1996) (citing Wilson v.

Arkansas, 115 S. Ct. 1914, 1916 (1995)). When reviewing the denial of a motion

to suppress evidence allegedly obtained in violation of the Fourth Amendment, we

accept the factual findings of the district court unless they are clearly erroneous.

United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996). We are mindful

the credibility of witnesses, the weight to be given evidence, and the inferences to

be drawn therefrom are matters for the trial judge. Id.; United States v.

Fernandez, 18 F.3d 874, 876 (10th Cir. 1994). However, the ultimate

determination of whether a search was reasonable under the Fourth Amendment is

a question of law subject to de novo review. Hernandez, 93 F.3d at 1498.



      "A traffic stop is a seizure within the meaning of the Fourth Amendment."

United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir. 1995), cert. denied,

116 S. Ct. 2529 (1996). However, ordinary traffic stops are more analogous to

investigative detentions than custodial arrests. Shareef, 100 F.3d at 1500.

Accordingly, we analyze such stops under the principles stated in Terry v. Ohio,

392 U.S. 1 (1968). Shareef, 100 F.3d at 1500. Under Terry, to determine the

reasonableness of an investigative detention, we apply a two-pronged analysis,

examining first "whether the officer's action was justified at its inception," and


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second "whether it was reasonably related in scope to the circumstances which

justified the interference in the first place." 392 U.S. at 20.



      Mr. Jasso-Trevino does not contest the validity of the initial stop; 1 rather,

he focuses on the second Terry inquiry, asserting the scope of the detention was

excessive and not reasonably related to the justification for the original stop. The

Supreme Court has informed us that although the permissible scope of an

investigatory detention depends on "the particular facts and circumstances of each

case," it must in any case "last no longer than is necessary to effectuate the

purpose of the stop" and "be carefully tailored to its underlying justification."

Florida v. Royer, 460 U.S. 491, 500 (1983). Thus,

      "[a]n officer conducting a routine traffic stop may request a driver's
      license and vehicle registration, run a computer check, and issue a
      citation. When the driver has produced a valid license and proof that
      he is entitled to operate the car, he must be allowed to proceed on his
      way, without being subject to further delay by police for additional
      questioning."

Fernandez, 18 F.3d at 878 (quoting United States v. Guzman, 864 F.2d 1512,

1519 (10th Cir. 1988)). However, if the officer "has an objectively reasonable



      1
        His restraint is wise, for "a traffic stop is valid under the Fourth
Amendment if the stop is based on an observed traffic violation." Botero-Ospina,
71 F.3d at 787. It is undisputed Mr. Jasso-Trevino violated Oklahoma law by
improperly swerving out of his traffic lane.


                                          -8-
and articulable suspicion that illegal activity has occurred or is occurring," or if

the driver consents, the officer can further detain the driver for additional

questioning unrelated to the original stop. United States v. Gonzalez-Lerma, 14

F.3d 1479, 1483 (10th Cir.), cert. denied, 511 U.S. 1095 (1994). In determining

whether the officer could have formed a reasonable and articulable suspicion of

criminal activity, we consider "the totality of the circumstances," Fernandez, 18

F.3d at 878, including "the ability of a trained law enforcement officer to

distinguish between innocent and suspicious actions," United States v. Martinez-

Cigarroa, 44 F.3d 908, 912 (10th Cir.) (Baldock, J., concurring), cert. denied,

115 S. Ct. 1386 (1995), though "[a]n officer's 'inchoate and unparticularized

suspicion or "hunch''' is insufficient to give rise to reasonable suspicion."

Fernandez, 18 F.3d at 878 (quoting United States v. Sokolow, 490 U.S. 1, 7

(1989)).



      Here, while still engaged in a legitimate traffic stop, Trooper Hill acquired

an "objectively reasonable and articulable suspicion" Mr. Jasso-Trevino was

participating in illegal activity. Initially, Mr. Jasso-Amaro's claim he and his son

were returning from a ten-day vacation did not square with Trooper Hill's

observation the station wagon contained insufficient luggage for that period of

time, indicating something was amiss. See United States v. Arango, 912 F.2d


                                          -9-
441, 447 (10th Cir. 1990) (inadequate amount of luggage for alleged two-week

vacation, combined with driver's inability to provide credible proof of vehicle

ownership, provided reasonable suspicion of illegal activity), cert. denied, 499

U.S. 924 (1991). Upon further questioning, Mr. Jasso-Amaro was unable to

provide the addresses of the relatives he claimed he and his son had been visiting,

or even name the city in which they had allegedly spent the past ten days. See

United States v. Kopp, 45 F.3d 1450, 1453-54 (10th Cir.), cert. denied, 115 S. Ct.

1721 (1995) (looking to incomplete or implausible description of travel plans as

indicia of reasonable suspicion); United States v. Soto, 988 F.2d 1548, 1554, 1556

(10th Cir. 1993) (finding reasonable suspicion where driver appeared "panicky"

and was unable to provide even a general address for the uncle who allegedly

loaned him the car he was driving). The district court, after noting Trooper Hill

to be a "very credible witness," found these objective facts gave Trooper Hill

justification to further detain Mr. Jasso-Trevino and Mr. Jasso-Amaro. We agree

that these facts, taken together, justified Trooper Hill in detaining Mr. Jasso-

Trevino beyond the scope of the initial stop.



      Mr. Jasso-Trevino next asserts Trooper Hill did not have valid consent to

search the vehicle, and therefore the search violated his rights under the Fourth

Amendment. Voluntary consent to further questioning or a search may convert a


                                         -10-
traffic stop to a consensual encounter. See Hernandez, 93 F.3d at 1498. If an

individual is free to leave at any time, he or she is not seized within the meaning

of the Fourth Amendment. Id. Thus, the existence of reasonable suspicion or

probable cause is irrelevant if the driver of a vehicle voluntarily consents to its

search. See United States v. Angulo-Fernandez, 53 F.3d 1177, 1180 (10th Cir.

1995). Voluntariness is a question of fact to be determined by examining the

totality of the circumstances. Ohio v. Robinette, 117 S. Ct. 417, 421 (1996). The

burden of proof is on the government to provide "'clear and positive testimony

that consent was unequivocal and specific and freely and intelligently given,'" and

that "consent was given without implied or express duress or coercion." Angulo-

Fernandez, 53 F.3d at 1180 (quoting United States v. Dewitt, 946 F.2d 1497, 1500

(10th Cir.1991), cert. denied, 502 U.S. 1118 (1992)). 2



      Here, we cannot say the district court's finding Mr. Jasso-Trevino

voluntarily consented to the search was clearly erroneous. Trooper Hill returned

Mr. Jasso-Trevino's license and registration to him and, through his father,

informed him he was free to go. He then asked Mr. Jasso-Amaro to ask Mr.

Jasso-Trevino whether it would be okay to search the vehicle, and Mr. Jasso-


      2
         Because we find the detention lawful, the government need not satisfy the
heavier burden, urged by Mr. Jasso-Trevino, applicable when consent is given
after an illegal stop. See, e.g., Fernandez, 18 F.3d at 881.

                                          -11-
Trevino testified he responded "Yes, okay." Though Trooper Hill did not inform

Mr. Jasso-Trevino he had the right to refuse consent, such a statement is not

necessary for consent to be valid. See United States v. Flores, 48 F.3d 467, 469

(10th Cir.), cert. denied, 116 S. Ct. 122 (1995). Notably, Trooper Hill took no

action to intimidate or coerce Mr. Jasso-Trevino: he never threatened Mr. Jasso-

Trevino; he never drew his gun; he did not touch Mr. Jasso-Trevino until the time

of the arrest; there is no indication in the record that he used an intimidating or

coercive tone of voice; and the backup troopers were approximately fifteen to

twenty feet away. See Flores, 48 F.3d at 469 (lack of intimidation or coercion

significant to finding consent voluntary); Soto, 988 F.2d at 1558 (same).

Moreover, through the course of Trooper Hill's search, Mr. Jasso-Trevino did

nothing to indicate a lack of consent; rather, he simply stood idly by. This too

weighs in favor of finding his consent to have been voluntary. United States v.

Chaidez, 906 F.2d 377, 381 (8th Cir. 1990) (citing United States v. Espinosa, 782

F.2d 888, 890-92 (10th Cir. 1986); United States v. Lopez, 777 F.2d 543, 546-48

(10th Cir.1985)).




                                          -12-
      Because we find no unlawful detention, search or seizure, Mr. Jasso-

Trevino's argument his statements to Immigration and Naturalization Services

agents are inadmissible "fruit of the poisonous tree" must fail.



      AFFIRMED.



                                       Entered for the Court


                                       WADE BRORBY
                                       United States Circuit Judge




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