       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    United States v. Garrido-Santana             No. 02-6076
    ELECTRONIC CITATION: 2004 FED App. 0052P (6th Cir.)
                File Name: 04a0052p.06                    OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR
                                                          THE WESTERN DISTRICT OF TENNESSEE, Memphis,
                                                          Tennessee, for Appellant. Thomas A. Colthurst,
UNITED STATES COURT OF APPEALS                            ASSISTANT UNITED STATES ATTORNEY, Memphis,
                                                          Tennessee, for Appellee.
              FOR THE SIXTH CIRCUIT
                _________________                                             _________________

 UNITED STATES OF AMERICA , X                                                     OPINION
             Plaintiff-Appellee, -                                            _________________
                                   -
                                   -  No. 02-6076           KENNEDY, Circuit Judge. Defendant Elvis Garrido-
            v.                     -                      Santana entered a conditional plea of guilty to one count of
                                    >                     possessing cocaine with the intent to distribute in violation of
                                   ,                      21 U.S.C. § 841(a) (1). Defendant appeals the district court’s
 ELVIS A. GARRIDO -SANTANA , -
          Defendant-Appellant. -                          denial of his motion to suppress evidence. Defendant also
                                                          appeals the district court’s application of a sentence
                                  N                       enhancement for obstruction of justice under United States
       Appeal from the United States District Court       Sentencing Guidelines (“U.S.S.G.”) § 3C1.1 and its denial of
    for the Western District of Tennessee at Memphis.     a sentence reduction for acceptance of responsibility under
   No. 97-20204—Samuel H. Mays, Jr., District Judge.      U.S.S.G. § 3E1.1. For the reasons explained below, we
                                                          AFFIRM the denial of defendant’s suppression motion and
               Argued: December 5, 2003                   his sentence.

         Decided and Filed: February 20, 2004                                    I. Background

  Before: KENNEDY, MARTIN, and MOORE, Circuit                Defendant Garrido-Santana was indicted on one count of
                    Judges.                               possessing cocaine with the intent to distribute in violation of
                                                          21 U.S.C. § 841(a) (1). Defendant failed to appear for his
                  _________________                       arraignment on that charge after being released on bond.
                                                          Based upon this failure to appear, the government secured a
                       COUNSEL                            superseding indictment that added a second count charging
                                                          defendant with violating 18 U.S.C. § 3146(a)(1). Defendant
ARGUED: Needum L. Germany, OFFICE OF THE                  was ultimately arraigned upon being extradited from the
FEDERAL PUBLIC DEFENDER FOR THE WESTERN                   Dominican Republic, the country to which he fled. Defendant
DISTRICT OF TENNESSEE, Memphis, Tennessee, for            filed a motion to suppress evidence flowing from police
Appellant. Thomas A. Colthurst, ASSISTANT UNITED          officers’ traffic stop of the rental vehicle that defendant was
STATES ATTORNEY, Memphis, Tennessee, for Appellee.        driving. After conducting an evidentiary hearing, the
ON BRIEF: Doris A. Randle-Holt, Stephen B. Shankman,      magistrate judge, to whom the district court had referred

                            1
No. 02-6076           United States v. Garrido-Santana         3    4    United States v. Garrido-Santana             No. 02-6076

defendant’s suppression motion, issued a report and                 tractor-trailer had maintained the posted speed or had slowed
recommendation advising the district court to deny that             down. Lomax’s accurately-calibrated speedometer and radar
motion. Adopting the magistrate judge’s proposed findings           “clocked” the sedan at 71 mph. Activating his squad car
and recommendation, the district court denied defendant’s           lights, Lomax pulled the sedan over for speeding.
suppression motion. Defendant entered a conditional plea of
guilty to count one of possessing cocaine with the intent to          Upon approaching the driver’s side door of the sedan,
distribute in violation of 21 U.S.C. § 841(a) (1), expressly        Lomax asked defendant, who was traveling alone, for his
reserving his right to appeal the denial of his suppression         driver’s license. Defendant handed Lomax a Puerto Rico
motion. The district court, pursuant to the government’s            driver’s license in the name of “Elvis A. Garrido.”
motion, dismissed count two charging defendant with failing         Examining the license, Lomax found it to be valid and
to appear at his arraignment. However, in sentencing                current. Lomax informed defendant that he had stopped him
defendant on count one, the district court relied on this failure   for speeding. Lomax then inquired about defendant’s place
to appear in enhancing defendant’s sentence by two levels           of departure and destination. Defendant replied that he had
under U.S.S.G. § 3C1.1 for obstruction of justice and in            come from Houston, Texas, and was heading to New York to
refusing to reduce defendant’s sentence under U.S.S.G.              visit his mother. Asked if he lived in Puerto Rico, defendant
§ 3E1.1 for acceptance of responsibility. After applying all        answered in the affirmative. Lomax testified that he was
of the relevant factors, the district court ultimately arrived at   suspicious of the fact that defendant, a resident of Puerto
a Guidelines’ range in which it sentenced defendant to ninety-      Rico, was driving a car with Texas plates. After Lomax asked
seven months of imprisonment followed by three years of             about the vehicle’s ownership, defendant informed Lomax
supervised release.                                                 that it was a rental car. Defendant produced the rental
                                                                    agreement for which Lomax asked. The rental agreement
           II. Defendant’s Suppression Motion                       evidenced the following: 1) another individual named “Junior
                                                                    Santana,” a resident of New York, had rented the vehicle at
                      A. Relevant Facts                             the Hobby Airport, in Houston, Texas, on September 16,
                                                                    1997; 2) the vehicle was to be returned to that airport by 7:00
   In denying the suppression motion, the district court found      p.m. the following day–September 19th; 3) a notation of “add
the following facts. On the morning of September 18, 1997,          driver $10.50"; and 4) an illegible signature near Junior
Patrolman Terry M. Lomax (“Lomax”) of the Shelby County             Santana’s signature. Lomax noticed that the rental agreement
Sheriff’s Department was parked in a marked squad car in the        did not list defendant, in typewriting, as an additional driver.
grassy median strip of Interstate 40 in Shelby County,              Upon being asked, defendant informed Lomax that “Junior
Tennessee. When a 1997 Chrysler LHS sedan–the vehicle               Santana” was his cousin. Defendant told Lomax that
that defendant was driving–passed his position, Lomax               defendant had flown from Puerto Rico to Miami, Florida, and
pointed his radar speed-clocking unit at the sedan. Yet, the        then to Houston, Texas, where he and his cousin had rented
radar picked up only a large tractor-trailer that was traveling     the vehicle for defendant to drive to New York. Lomax was
in the east-bound lane adjacent to the sedan; it indicated that     aware that the vehicle that defendant was driving was known
the tractor-trailer was proceeding at the posted speed limit of     to have easily accessible places in which to hide narcotics.
65 mph. After the sedan passed the tractor-trailer, Lomax
pulled his vehicle out of the median and pulled alongside the         Believing that the rental agreement did not list defendant as
sedan. As he testified, Lomax did not know whether the              an additional driver, Lomax ran a license plate check to
No. 02-6076           United States v. Garrido-Santana        5    6       United States v. Garrido-Santana                 No. 02-6076

ensure that the vehicle was not stolen. At some point, Lomax       Lomax was placing defendant in the squad car, defendant
began filling out a warning citation–a courtesy ticket that        volunteered that he had been stopped twice before on his trip
carries no penalties–for defendant’s speeding. Lomax               and had been searched. When Lomax questioned defendant
advised defendant that he was giving defendant a warning           about these stops, defendant stated that he had no
citation but that he was still awaiting the return of a computer   documentation for them. Upon being asked, defendant
check. Lomax observed that, even after he had informed             affirmed that he had been in possession of the vehicle at all
defendant that he would only receive a warning ticket,             times during his trip. Because defendant would have been
defendant continued to exhibit signs of nervousness, such as       unable to exit the squad car, Lomax instructed him on how to
avoiding eye contact, laughing nervously, and fidgeting;           use its public address system in case he needed to
based upon his experience, Lomax found this nervousness            communicate with the officers.
unusual. Returning the rental agreement and license to
defendant, Lomax explained the courtesy citation, which he            Recalling that it affords easy access to the gas tank, in
was still filling out, to defendant. Lomax asked if defendant      which drugs have been smuggled, they opened the trunk of
had any illegal contraband, such as drugs or stolen goods, in      the vehicle.1 Upon pulling the carpet back, Lomax saw a
his vehicle. Defendant replied in the negative. Lomax asked        sliver plate, which four bolts fastened and which provided
if defendant would consent to a search of the vehicle.             access to the gas tank sending unit, a device that signals the
Defendant answered in the affirmative. Lomax gave                  dashboard about the amount of gasoline in the gas tank. Lane
defendant the courtesy citation to sign. After defendant           and Lomax noticed that the bolts fastening the silver plate had
signed the citation, Lomax gave defendant a copy of the            scratches around them as if they had been removed and then
citation as well as a consent-to-search form. Lomax advised        replaced. Because the vehicle was new and had very low
defendant to read the consent form and to ask any questions        mileage, Lomax found this apparent removal of the plate
that he might have before signing it. Defendant signed the         unusual. Lomax believed that the tools in the passenger
consent form. Approximately ten minutes had elapsed                compartment were to be used in removing the silver plate so
between the initial traffic stop and defendant’s execution of      as to access the gas tank. Lomax and Lane removed the
the consent form.                                                  trunk’s silver plate to access the gas tank. By inserting a fiber
                                                                   optic scope into the top of the gas tank, Lomax observed
  Around the time that defendant signed the consent form,          white cellophane-covered bundles in the gas tank. Believing
Patrolman Dale Lane (“Lane”)–also of the Shelby County             that these bundles contained illegal narcotics, Lomax and
Sheriff’s Department–arrived. Although they used a drug            Lane arrested defendant. At no time during the search did
detection dog to survey the vehicle, the dog did not alert to      defendant object to its duration or scope. Sometime after the
the presence of narcotics. Both Lomax and Lane quickly             completion of the search, Lomax received the computer check
looked around the sedan. At some point, Lane and Lomax
saw unopened packages of a pair of pliers and an adjustable
wrench in a bag on the floor of the front passenger seat.
While standing beside the rear of the vehicle, Lane informed
                                                                       1
Lomax that he smelled a strong odor of gasoline. Lomax                    Although it is unclear whether Lomax examined the vehicle’s access
smelled nothing as he suffered from sinus congestion at the        plate and suspected its removal before he observed the tools in the
time. They asked defendant, who was standing near the rear         passenger compartment and before he placed defendant in the squad car,
                                                                   it is clear that Lomax and Lane removed the access plate only after these
of the vehicle, to sit in the back of Lane’s squad car. As         events.
No. 02-6076           United States v. Garrido-Santana        7    8       United States v. Garrido-Santana                    No. 02-6076

and learned that the vehicle was not stolen. Seven bundles of      reasonable and articulable suspicion that criminal activity was
cocaine were subsequently seized from the vehicle’s gas tank.      afoot.” United States v. Hill, 195 F.3d 258, 264 (6th Cir.
                                                                   1999).
                         B. Analysis
                                                                      Defendant appeals the district court’s denial of his
  We review the district court’s legal conclusions in a            suppression motion on the ground that Lomax’s initial stop of
suppression hearing de novo and its factual findings in a          defendant’s vehicle violated the Fourth Amendment. In
suppression hearing for clear error. United States v. Smith,       particular, defendant argues that Lomax actually stopped
263 F.3d 571, 581-82 (6th Cir. 2001). The district court’s         defendant’s vehicle based upon his suspicion that defendant
determination as to the existence of probable cause justifying     was involved in illegal drug trafficking, not based upon an
a traffic stop is a question of law that we review de novo.        alleged speeding violation. However, in Whren v. United
United States v. Rodriguez-Suazo, 346 F.3d 637, 643 (6th Cir.      States, 517 U.S. 806, 813, 819 (1996), the Supreme Court
2003). The district court’s determination as to whether the        held that, as long as a police officer has probable cause to
facts establish an unconstitutional seizure under the Fourth       believe that a motorist committed a traffic violation, the
Amendment is a question of law that we review de novo.             resulting traffic stop is generally reasonable under the Fourth
United States v. Avery, 137 F.3d 343, 348 (6th Cir. 1997).         Amendment regardless of the officer’s subjective intent or
The district court’s determination of whether a search             state of mind in conducting the traffic stop. 2 Accord United
exceeded the scope of consent is a question of fact that we        States v. Bailey, 302 F.3d 652, 657 (6th Cir. 2002) (noting
review for clear error. United States v. Fowler, 42 F.3d 1389,     that “[i]t is well established . . . that an officer’s actual
1994 WL 685417, at *6 (6th Cir. 1994). When considering            motivation for making a traffic stop is irrelevant to the
the denial of a suppression motion, we must view the               constitutionality of that stop”); Wellman, 185 F.3d at 655
evidence in the light most favorable to the government.            (finding that, where probable cause for the traffic stop exists,
United States v. Wellman, Jr., 185 F.3d 651, 654-55 (6th Cir.      whether the police officer was motivated in conducting the
1999).                                                             traffic stop based upon his “suspicion that the defendant fits
                                                                   into a ‘drug courier profile’” or his membership in a drug
               1. Validity of the Traffic Stop                     interdiction unit is irrelevant to the stop’s constitutionality
                                                                   under the Fourth Amendment).
   A traffic stop is reasonable under the Fourth Amendment
where the stop was both proper at its inception and                  Alternatively, defendant contends that Lomax lacked
“reasonably related in scope to the circumstances . . . [that]     probable cause to justify the traffic stop of defendant’s
justified the . . . [stop] in the first place.” United States v.   vehicle because defendant had not, in fact, been speeding
Freeman, 209 F.3d 464, 466 (6th Cir. 2000) (quoting Terry v.
Ohio, 392 U.S. 1, 19-20 (1968)) (internal quotation marks
omitted). A police officer may lawfully stop a motorist                2
whom he has probable cause to believe has committed a                    As evidence that the stop was pre-textual, defendant underscores
                                                                   that Lomax was suspicious of defendant because he had a Puerto Rico
traffic violation. Id. However, a police officer cannot            driver’s license and was driving a vehicle with Texas tags. However, we
continue to detain a motorist after the officer has completed      note that such subjective suspicion is factually–as well as
the initial purpose of the traffic stop “unless something that     legally–irrelevant to the validity of the initial traffic stop because Lomax
occurred during the stop caused the officer to have a              only learned about defendant’s residency after he had sto ppe d defendant’s
                                                                   vehicle.
No. 02-6076          United States v. Garrido-Santana        9    10       United States v. Garrido-Santana                No. 02-6076

prior to that stop. At the suppression hearing, Lomax testified   had the opportunity to view the witness[es] on the stand and
that, while pacing defendant’s vehicle with his squad car, he     [to] assess . . . [their] demeanor.”). Because defendant was
used both his calibrated speedometer and his radar to             speeding in violation of Tennessee law, Lomax had probable
determine that defendant’s vehicle was traveling at 71 mph in     cause to stop defendant’s vehicle.
a 65 mph zone. Defendant asserts that this testimony is
unworthy of belief. Yet, the only evidence that defendant            Defendant also appeals the district court’s denial of his
offers to refute this testimony is his own testimony at the       suppression motion on the ground that the traffic stop was not
suppression hearing. In particular, defendant testified that he   reasonably related in scope and duration to the initial purpose
did not “think” that he was speeding because he knew that the     of the stop–the speeding violation. Defendant contends that
posted speed limit was 65 mph, he had cruise control, he had      this initial purpose ended when defendant signed the courtesy
never broken the law, and he had never been stopped for           ticket and Lomax returned the rental agreement and driver’s
speeding. However, the district court reasonably found that       license to defendant.3 According to defendant, Lomax then
defendant was not a credible witness. For example, defendant      prolonged the detention when he, in effect, informed
later testified that police had stopped him and had given him     defendant that he could not leave because Lomax was
a courtesy citation the night before Lomax had stopped him.       awaiting the return of a computer check. The thrust of
Defendant also demonstrated his propensity to lie under oath      defendant’s argument is that it was not “reasonably related”
when, in 1997, he failed to appear at his arraignment despite     to the speeding violation for Lomax to have conducted a
having promised the district court, as a condition of his bond,   computer check to ensure that defendant was lawfully
that he would appear at all required proceedings. In an           operating the vehicle because such a check was unnecessary
attempt to negate Lomax’s testimony, defendant contends that      and, thus, unreasonable under the totality of the
it would have been unreasonable for defendant to have sped        circumstances. Defendant contends that a reasonable police
past Lomax’s squad car since it was clearly visible to passing    officer would infer from defendant’s illegible signature near
motorists and was positioned so as to pursue any violators        the renter’s signature and the notation of “add driver $10.50"
easily. Similarly, defendant argues that it would have been       on the rental agreement that defendant was lawfully operating
even more unreasonable for him to have continued to speed         the vehicle. At the suppression hearing, Lomax testified that,
after Lomax began pacing defendant’s vehicle. However, as         after looking at the rental agreement “closely,” he ran the
the district court aptly observed, “[c]ommon experience           computer check on the vehicle’s license plate because he did
teaches that speeding motorists are usually apprehended when      not see defendant’s name “listed”–or printed–on the
police are positioned to observe them and often when the          agreement. Lomax elaborated that about ninety-nine percent
motorist can observe the officer as well.” The district court     of the rental agreements that he had seen listed the name of
correctly recognized that, in any event, no evidence in the
record demonstrates that defendant is a reasonable motorist.
Viewing the evidence in the light most favorable to the                3
                                                                        Defendant argues that Lomax testified that defendant signed the
government, the district court did not clearly err in choosing    warning ticket before Lomax returned the rental agreement and driver’s
to credit Lomax’s testimony that defendant was speeding over      license. However, Lomax actually testified–and the district court
defendant’s self-interested and inconsistent testimony to the     found–that Lom ax returned the rental agreement and d river’s license to
contrary. See Peveler v. United States, 269 F.3d 693, 702         defendant while Lomax was filling out the courtesy citation and before
                                                                  defendant signed it. In any event, after returning defendant’s documents
(6th Cir. 2001) (“We are generally reluctant to set aside         and issuing a copy o f the signed courtesy ticket, Loma x did continue to
credibility determinations made by the trier of fact, who has     detain defendant pending the completion of the computer check.
No. 02-6076              United States v. Garrido-Santana             11    12   United States v. Garrido-Santana             No. 02-6076

the additional driver in the same type of print in which the                examining defendant’s driver’s license probably would have
renter’s name was listed. Lomax testified that he first                     focused upon the picture and the expiration date, as Lomax
recognized the signature on the rental agreement as                         did. We note that, even if the rental agreement reasonably
defendant’s after he had returned to the police station and was             appeared to authorize defendant as an additional driver, a
comparing that document with defendant’s driver’s license                   reasonable police officer would still have good reason to run
and the courtesy ticket that defendant had signed. As to                    a license plate check. For example, defendant may have
whether it was reasonable to believe that the vehicle was                   forged that authorization, or the rental company may have
stolen, Lomax underscored that, along with defendant’s name                 rescinded such authorization, even if initially valid, due to a
not being printed on the rental agreement, Lomax knew of                    violation of the rental agreement. As the Supreme Court has
instances in which authorized individuals had not done                      recognized, states have a critical interest in ensuring that
something that the rental agreement required them to do. As                 motorists observe licensing and registration requirements as
Lomax testified, “[t]here are always reasons to do checks.”                 well as a legitimate interest in controlling automobile thefts.
                                                                            Delaware v. Prouse, 440 U.S. 648, 658, 659 n.18 (1979). We
   Defendant contends that Lomax’s testimony is incongruous                 note that defendant’s detention until the completion of the
with the facts. To the extent that defendant asks us to set                 computer check–sometime after the search of the vehicle–was
aside the district court’s determination that Lomax was a                   not intrusive. The pendency of the computer check was
credible witness, we find no reason to accept such an                       largely co-extensive with the vehicle search, to which
invitation. See Peveler, 269 F.3d at 702. Moreover,                         defendant consented before Lomax had finished issuing the
defendant’s focus upon Lomax’s subjective intent in or                      warning citation and to whose duration defendant never
justification for running the computer check on the license                 objected. During the unknown amount of time between the
plate is misplaced. “[T]he touchstone of the Fourth                         completion of the search and that of the computer check,
Amendment is reasonableness . . . measured in objective                     defendant was under lawful custodial arrest based upon the
terms by examining the totality of the circumstances.” Ohio                 fruits of the search. In sum, under the totality of the
v. Robinette, 519 U.S. 33, 39 (1996) (internal quotation marks              circumstances, it was objectively reasonable and within the
omitted; emphasis added). Here, while the rental agreement                  bounds of the traffic stop for Lomax to have requested a
displayed defendant’s signature and a charge for an additional              computer check to ensure that defendant was lawfully
driver, defendant’s signature was illegible and located in an               operating the vehicle. See id. at 663 (“[E]xcept in those
odd location on that agreement. A reasonable officer likely                 situations in which there is at least articulable and reasonable
would not have recognized that illegible signature as                       suspicion that a motorist is unlicensed or that an automobile
belonging to defendant unless and until he placed defendant’s               is not registered, or that either the vehicle or an occupant is
driver’s license directly beside the rental agreement and                   otherwise subject to seizure for violation of law, stopping an
compared their respective signatures.4 A reasonable officer                 automobile and detaining the driver in order to check his
                                                                            driver’s license and the registration of the automobile are
                                                                            unreasonable under the Fourth Amendment.”) (emphasis
    4
                                                                            added); Wellman, 185 F.3d at 656 (holding that the police
      Although defendant contends that Lom ax had four documents in his     officer “lawfully asked defendant to sit in the squad car while
possession containing defendant’s signature–his driver’s license, the       he wrote a courtesy citation and performed record checks of
rental agreement, the courtesy citation, and the consent-to-search form–,
Lomax only had d efendant’s driver’s license and the rental agreement in
                                                                            his driver’s license and registration” as it was within the
his possession at the time that he requested the license p late check.      scope of the traffic stop for speeding); United States v.
No. 02-6076                United States v. Garrido-Santana                13     14       United States v. Garrido-Santana                      No. 02-6076

Bradshaw, 102 F.3d 204 (6th Cir. 1996) (holding that the                          circuit has yet to decide this issue expressly.7 Because
police officer “could lawfully detain . . . [defendant in the                     additional justification supported the questioning here, we
back of the squad car] until he had finished performing radio                     need not decide such an important legal issue. Rather, we
checks and issuing the citation” because it was “well within                      leave that determination for a case whose record affords a
the bounds of the initial stop.”); Hill, 195 F.3d at 269                          more appropriate basis upon which to make it. First, in
(holding that a driver’s license check was within the original                    asking defendant whether he possessed any illegal
scope of a traffic stop based upon a traffic violation). Thus,                    contraband, Lomax did not exceed the time necessary to
we reject defendant’s contention that Lomax needed a                              complete the original purpose of the traffic stop. At that time,
reasonable suspicion that defendant was unlawfully operating                      Lomax had not yet completed the initial purpose of the traffic
the vehicle to justify this detention.5
  Alternatively, defendant claims that Officer Lomax                              that they prolong custody, but questions that do not increase the length of
exceeded the bounds of the initial traffic stop for speeding                      the detention (or that extend it by o nly a brief time) do not make the . . .
when he asked whether defendant possessed any illegal                             [detention] itself unreasonable or require suppression of evidence found
contraband. The circuit courts generally agree that the Fourth                    as a result of the answers.”) with U nited States v. Murillo, 255 F.3d 1169,
                                                                                  1174 (9th C ir. 200 1) (“D uring a tra ffic stop, a police officer is allowed to
Amendment requires that, absent additional justification, any                     ask questions that are reasonably related in scope to the justification for
questioning during a valid traffic stop must not prolong the                      his initiation of contact . . . . In order to broaden the scope of questioning,
detention necessary to complete the initial purpose of that                       he must articulate suspicious factors that are particularized and
stop; however, there is some disagreement as to whether the                       objective.”), and Un ited States v. H olt, 264 F.3d 1215, 12 28-31 (10th Cir.
Fourth Amendment also requires that, absent additional                            2001) (holding that “the Fourth Amen dment reasonableness of a traffic
justification, such questioning must be reasonably related in                     stop based on probab le cause must be jud ged by examining both the
                                                                                  length of the detention and the manner in which it is carried out,” and,
subject matter to the purpose of the initial traffic stop.6 This                  thus, rejecting the argume nt that the nature of any questioning during a
                                                                                  traffic stop is irre levant so long as it does not unreaso nably prolo ng that
                                                                                  stop’s duration).
    5                                                                                  7
      In particular, defendant contends that Lomax only conducted the                    In United States v. Palomino, we held that a police officer did not
check beca use defendant, a resident o f Puerto Rico, was driving a vehicle       violate the Fo urth Amendment when, following a traffic stop based upon
with Texas license tags; according to defendant, such a ground does not           probab le cause of a traffic violation, the officer asked the defendant about
afford Lomax reasonable suspicion that defendan t was unlaw fully                 whether he possessed illegal contraband because the officer “did not
operating the vehicle because it is logistically unlikely for a car with          detain . . . [the defendant] longer than was necessary for the original
Puerto Rico tags to b e in the United S tates.                                    purpo se of the stop, and because there was reaso nable suspicion to
    6
                                                                                  conduct the brief questioning.” 100 F.3d 446, 449-50 (6th Cir. 1996)
      Com pare United States v. Sha bazz, 993 F.2d 43 1, 436-37 (5th Cir.         (emp hasis added). One could argue that Palomino implicitly holds that
1993) (holding that questions, which, in themselves, are neither searches         questioning during a traffic stop must be reasonably related to the initial
nor seizures, are relevant to whether a detention has exceeded its lawful         purpo se of that stop because, absent this requiremen t, it need not have
duration, and that the police officer’s questioning of defendants regarding       found that reasonable suspicion for suc h questioning existed. However,
their recent whereabouts did not exceed the original scope of the traffic         this conclusion is invalid because one of the premises upon which it relies
stop–for speeding–because it occurred while a computer check was                  is false. It does not necessarily follow from the premise that additional
pending and, thus, did not extend the duration o f the initial stop ), and        justification–other than that which justified the initial traffic stop–de feats
United States v. Childs, 277 F .3d 94 7, 949 (7th Cir. 200 2) (“Be cause          the defendant’s Fourth Amendment claim that such additional justification
questions are neither se arche s nor seizures, . . . [q]uestions asked during     is required to defeat the defendant’s Fourth Amendment claim . See
detention may affect the rea sonablene ss of that detention . . . to the extent   Childs, 277 F.3d at 951.
No. 02-6076              United States v. Garrido-Santana              15     16     United States v. Garrido-Santana                     No. 02-6076

stop because he was still filling out the courtesy citation and,              upon consent as the basis for a warrantless search, the scope
as discussed above, was still waiting for the return of the                   of the consent given determines the permissible scope of the
computer check on the vehicle’s license plate. Second,                        search.” United States v. Gant, 112 F.3d 239, 242 (6th Cir.
assuming that this questioning was not reasonably related to                  1997). “The standard for measuring the scope of a suspect’s
the speeding violation and, thus, that it required additional                 consent under the Fourth Amendment is that of objective
justification, Lomax had a reasonable suspicion that                          reasonableness . . . .” Florida v. Jimeno, 500 U.S. 248, 251
defendant was engaged in criminal activity so as to validate                  (1991). The proper question is “what would the typical
his inquiry into whether defendant possessed any illegal                      reasonable person have understood by the exchange between
contraband. At the time of this questioning, Lomax had the                    the officer and the suspect.” Id. A reasonable person likely
following information available to him: 1) defendant’s route                  would have understood his consent to exclude a search that
was circuitous and impractical in that defendant had flown                    would damage his property. See id. at 251-52. Generally, the
from Puerto Rico to Miami and then to Houston only to rent                    expressed object of the search defines the scope of that
a vehicle to drive to New York; 2) Junior Santana, a resident                 search. Id. at 251.
of New York, had rented the vehicle in Houston so that
defendant could drive it to New York; 3) the rental agreement                    Before Lomax obtained defendant’s consent to search the
had an illegible, additional signature in an irregular location               vehicle, he had asked defendant whether he possessed any
rather than defendant’s typed name listing him as an                          illegal contraband, such as drugs or stolen goods. In so
additional driver; 4) at the time of the traffic stop, defendant              asking, Lomax thereby had informed defendant that those
was heading towards New York the day before the rental                        widely-varied items would be the object of any search.
agreement required the vehicle to be returned in Houston;                     Defendant, per the consent-to-search form that he executed,
5) defendant was unusually nervous; and 6) Lomax knew,                        consented to a search of the vehicle without expressly
based upon his training, that the model vehicle that defendant                limiting the scope of that search. It was objectively
was driving had easily accessible hiding places for narcotics.                reasonable for Lomax and Lane to have concluded that this
Lomax’s questioning defendant about whether he possessed                      general consent to search the vehicle included consent to
any illegal contraband was not unreasonable under the Fourth                  search any container within that vehicle that might have held
Amendment.                                                                    illegal contraband. As Lomax testified, it was well-known
                                                                              that the model vehicle that defendant was driving had an
        2. The Scope of Defendant’s Consent to Search                         easily accessible gas tank in which to hide narcotics.
                                                                              Moreover, the accessing and search of the gas tank caused no
  Defendant appeals the district court’s denial of his                        damage to either the vehicle, in general, or the gas tank, in
suppression motion on the ground that the search of                           particular. Therefore, it was objectively reasonable for
defendant’s gas tank exceeded the reasonable scope of
defendant’s consent.8 “When law enforcement officers rely
                                                                              suppressed beca use defendant was subject to an illegal detention at the
    8
                                                                              time that Lomax secured defendant’s consent. It is true that any consent
     Defendant has abandoned his argument on appeal that he did not           that a suspect gives while being subject to an illegal seizure may be
consent to the search o f the vehicle. See Somm er v. Da vis, 317 F.3d 686,   tainted and, thu s, invalid. See Florida v. Royer, 460 U.S. 491, 507-08
691 (6th Cir. 2003) (holding that plaintiffs abandoned an issue on appeal     (1983); United States v. Guimond, 116 F.3d 16 6, 170-71 (6th Cir. 1997).
by not presenting any argument on it in their briefs). Rather, defendant      However, we reject such an argument here because, as discussed above,
argues on ap peal that any evidenc e flowing from the search mu st be         defendant’s detention at the time that he consented to the search w as legal.
No. 02-6076               United States v. Garrido-Santana               17     18   United States v. Garrido-Santana             No. 02-6076

Lomax and Lane to have believed that defendant’s general                        concerning the application of the Sentencing Guidelines”)
consent to search the vehicle encompassed consent to search                     (emphasis added); United States v. Emuegbunam, 268 F.3d
the vehicle’s gas tank. The Fourth Amendment did not                            377, 389 (6th Cir. 2001) (holding that we review de novo
require either officer to obtain separate permission to search                  interpretations of treaties).
the gas tank. See Jimeno, 500 U.S. at 252. We note that,
although defendant had the opportunity to do so, he never                          The principle of specialty “requires that the requesting
objected to the officers’ search of the gas tank and, thus,                     country not prosecute for crimes . . . for which an extradition
neither clarified that the scope of his sweeping consent                        was not granted.” Demjanjuk v. Petrovsky, 776 F.2d 571, 583
excluded such a search nor revoked his consent. See United                      (6th Cir. 1985), vacated on other grounds, 10 F.3d 338 (6th
States v. Pena, 920 F.2d 1509, 1514-15 (10th Cir. 1990)                         Cir. 1993). Incorporating this principle of specialty, Article
(holding that a search of a vehicle’s vent panel was within the                 IV of the extradition treaty with the Dominican Republic
scope of the defendant’s consent to “look” inside the vehicle                   provides that “[n]o person shall be tried for any crime or
where the defendant never “attempted to limit or retract his                    offence other than that for which he was surrendered.”
[general] consent” upon seeing the officer begin to remove                      Convention for the mutual extradition of fugitives from
that panel). The district court did not clearly err in finding                  justice, June 19, 1909, U.S - Dom. Rep., 36 Stat. 2468
that the search of the gas tank fell within the reasonable scope                (emphasis added). The verb to try denotes “to conduct the
of defendant’s consent to search the vehicle. See United                        trial of.” Webster’s Third New International Dictionary 2457
States v. Zapata, 180 F.3d 1237, 1243 (11th Cir. 1999)                          (1986). In its request for extradition, the government stated
(holding that the search of a vehicle’s interior door panel was                 that it sought defendant’s return to “stand trial” only on count
within the scope of the defendant’s general consent to search                   one of possessing cocaine with the intent to distribute in
for narcotics, weapons, or money because the door panel                         violation of 21 U.S.C. § 841(a)(1); the government
could contain such items).                                                      recognized that count two concerning defendant’s failure to
                                                                                appear at his arraignment in violation of 18 U.S.C.
                    III. Defendant’s Sentence                                   § 3146(a)(1) was not an extraditable offense. Defendant
                                                                                concedes that the government did not violate the express
   Defendant appeals the district court’s application of a                      terms of the extradition treaty because it did not, in fact,
sentence enhancement for obstruction of justice under                           prosecute defendant for this failure to appear. Rather,
U.S.S.G. § 3C1.1 on the ground that it violates the extradition                 defendant argues that the government’s promise to prosecute
treaty with the Dominican Republic.9 We review the                              defendant only for the narcotics offense entails the implicit
interrelation between the extradition treaty and the application                promise that it would also not punish defendant for the
of U.S.S.G. § 3C1.1 of the Sentencing Guidelines de novo.                       failure-to-appear offense.       Additionally, according to
See United States v. Humphrey, 279 F.3d 372, 379 (6th Cir.                      defendant, the district court’s consideration of that failure to
2002) (holding that “[w]e review de novo questions of law                       appear in enhancing defendant’s sentence on the narcotics
                                                                                offense constituted punishment for it contrary to the implicit
                                                                                understanding and spirit of the extradition treaty.
    9
      Defendant does not claim that U .S.S.G. § 3 C1.1 is otherwise                However, the Supreme Court seemingly eschewed such an
inapp licable to his sentence but, rather, simply argues that the extradition   argument in Witte v. United States, 515 U.S. 389 (1995). The
treaty with the Dominican Republic trumps the Sentencing Guidelines and
renders the application o f this provision im proper.
                                                                                issue in Witte concerned the Double Jeopardy Clause of the
No. 02-6076          United States v. Garrido-Santana       19    20     United States v. Garrido-Santana                        No. 02-6076

Fifth Amendment, which bars “successive prosecution or               In United States v. Lazarevich, 147 F.3d 1061, 1063 (9th
multiple punishment for ‘the same offence.’” Id at 391. In        Cir. 1998), the Ninth Circuit held that the district court’s
that case, the district court had determined the defendant’s      consideration of a non-extraditable offense of child abduction
sentence for attempted possession of marijuana with the intent    in increasing the defendant’s sentence for passport fraud–the
to distribute by considering, along with other relevant           offense for which defendant was extradited–did not constitute
conduct, various quantities of cocaine that defendant had         “punishment” so as to violate the extradition treaty’s
previously imported. Id. at 393-94. Defendant was later           incorporated rule of specialty permitting punishment only for
indicted for conspiring and attempting to import this cocaine.    the extradited offense. As that court reiterated, extradition
Id. at 395. Defendant argued that this current indictment on      treaties are made “within an historical and precedential
the cocaine offenses “constitute[d] a second attempt to punish    context . . . that includes the long-standing practice of United
him criminally for the same cocaine offenses.” Id. at 397.        States[’] courts of considering relevant, uncharged evidence
Defendant implicitly contended that the district court’s          at sentencing.” Id. at 1064 (holding that, given the long
consideration of the cocaine in sentencing defendant on the       history of considering relevant evidence, like other criminal
marijuana offense constituted the initial punishment for the      behavior, in sentencing–consideration that the Sentencing
cocaine offenses. See id. However, the Supreme Court held         Guidelines now mandates–as well as Supreme Court
that the consideration of “related criminal conduct to enhance    precedent, such as Witte, the extradition treaty “contemplated
a defendant’s sentence for a separate crime within the            consideration of relevant offenses”).
authorized statutory limits does not constitute punishment for
that conduct[.]” Id. at 399; see United States v. Maney, 226         Here, we assume arguendo that the extradition treaty
F.3d 660, 667-68 (6th Cir. 2000) (relying upon Witte to hold      contains an implicit promise not to punish defendant for his
that the district court’s consideration of the defendant’s        failure to appear at his arraignment, rather than merely an
various escape attempts in applying an § 3C1.1 enhancement        express promise not to prosecute defendant for any offense
and in denying a § 3E1.1 reduction was not “punishment” for       other than that for which he was extradited. However, we
that conduct because defendant’s sentence was within the          find that, following the reasoning of both Witte and
statutorily authorized range and, thus, that defendant’s          Lazarevich, the § 3C1.1 enhancement to defendant’s sentence
subsequent conviction and sentence for one of those escape        on the narcotics offense based upon defendant’s failure to
attempts did not raise any issues of double punishment).          appear at his arraignment did not constitute “punishment” for
Rather, the Court clarified that such consideration constitutes   that conduct so as to violate any implicit proscription against
“punishment” only for the offense of conviction. Id. at 401-      such punishment in the extradition treaty. 10 The district court
04. Thus, the Supreme Court held that the Double Jeopardy
Clause did not proscribe sentencing a defendant on a criminal
offense when the conduct underlying that offense was a factor          10
                                                                          W e note that defendant, in challenging his sentence, may lack
in determining the defendant’s sentence for a previous            standing to rely upon the extradition treaty’s incorporated rule of
conviction. Id. at 391, 406. Although it is formally a double     specialty. This circuit has not expressly decided whether an extradited
jeopardy case, its underlying analytical foundation and, in       individual has standing to seek the enforcement of that rule. See
particular, its conception of “punishment” is nevertheless        Demjanjuk, 776 F.2d at 583-84 (observing that a serious question existed
instructive here.                                                 as to whether the defendant had standing to assert the rule of specialty
                                                                  because “[t]he right to insist on a pplication o f . . . [that principle] belongs
                                                                  to the requested state, not to the individual whose extradition is requested”
                                                                  yet addressing the merits of such a claim). Other circuit courts either have
No. 02-6076                United States v. Garrido-Santana                21     22   United States v. Garrido-Santana           No. 02-6076

sentenced defendant on the narcotics charge to 97 months of                       because that latter challenge, as discussed above, fails, the
imprisonment–well within that offense’s statutory maximum                         former challenge likewise fails.
of 480 months of imprisonment.             See 21 U.S.C.
§ 841(b)(1)(B).                                                                     For the foregoing reasons, we AFFIRM the denial of
                                                                                  defendant’s suppression motion and his sentence.
  Defendant also appeals the district court’s denial of a
sentence reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1 on the ground that, to the extent that a
sentence enhancement under U.S.S.G. § 3C1.1 is improper for
the reason asserted above, such a reduction is consequently
proper. See USSG § 3E1.1, comment. (n. 4) (“Conduct
resulting in an enhancement under § 3C1.1 . . . ordinarily
indicates that the defendant has not accepted responsibility for
his criminal conduct. There may, however, be extraordinary
cases in which adjustments under both §§ 3C1.1 and 3E1.1
may apply.”). Because defendant made his challenge to the
denial of a § 3E1.1 reduction contingent upon the success of
his challenge to the application of a § 3C1.1 enhancement and



declined to decide this issue or have considered the issue yet disagree as
to its proper resolution. See United States v. Saccoccia, 58 F.3d 754, 767
n.6 (1st Cir. 1995) (observing the inner-circ uit split but taking no position
on the issue); United States v. LeBaron, 156 F.3d 621, 627 (5th Cir. 1998)
(clarifying that the Fifth Circuit has yet to decide whether an extradited
individual has standing to raise the rule of specialty); Un ited States ex rel.
Saroop v. Ga rcia, 109 F.3d 165 , 168 (3rd Cir. 1997) (“Because treaties
are agreements betwe en natio ns, individ uals ordinarily may not challenge
treaty interpretations in the absence of an express provision within the
treaty or an action brought by a signato ry nation.”); United States v. Levy,
905 F.2d 326, 329 n.1 (10th Cir. 1990) (holding that an extradited
defendant has standing to assert a rule of specialty claim); United States
v. Najohn , 785 F.2d 1420, 1422 (9th Cir. 1986) (holding that an extradited
individual “may raise whatever objections [based upon the rule of
specialty that] the rendering country might ha ve”); United States v.
Puentes, 50 F.3d 1567, 1572 (11th Cir. 1995 ) (same); Leighnor v. Turner,
884 F.2d 385, 388 (8th Cir. 1989) (holding that it is bound to follow a
prior opinion that held the same). However, because we find that
defendant’s sentence did not violate the extradition treaty’s incorporated
rule of specialty, we ne ed no t decid e whether de fendant has standing to
assert such a claim.
