                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                 APR 8 1998
                                      TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 v.                                                           No. 97-2227
 JOSEPH F. BOZARTH,                                      (D.C. No. 96-577-HB)
                                                               (D.N.M.)
           Defendant - Appellant.




                                   ORDER AND JUDGMENT*


Before BALDOCK, BARRETT, and LOGAN, Circuit Judges.**


       Defendant Joseph F. Bozarth appeals the district court’s order denying his motion

to suppress 72 pounds of cocaine, which the Otero County, New Mexico Sheriff

discovered in his vehicle. On appeal, Defendant raises a single issue: Whether the district

court erroneously denied his motion to suppress based on its factual finding that he freely


       *
                This order and judgment is not binding precedent, except under the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.
       **
              After examining the briefs and appellate record, this three-judge panel has
determined that oral argument would not be of material assistance in the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
and voluntarily consented to the Sheriff’s search. Our jurisdiction arises under 28 U.S.C.

§ 1291. Because the district court’s finding that Defendant freely and voluntarily

consented to the Sheriff’s search is not clearly erroneous, we affirm.

                                             I.

       On September 11, 1996, an informant notified Sheriff John Lee that early the same

morning, an individual driving a two-tone, brown, four-door, three-quarter-ton pickup,

would be transporting cocaine between Las Cruces and Alamogordo, New Mexico. The

informant explained that the pickup would meet a scout vehicle prior to reaching the

border patrol checkpoint east of Alamogordo. Acting on this tip, Sheriff Lee requested

that the Otero County Narcotics Enforcement Unit establish surveillance west of the

checkpoint. Sheriff Lee assisted the Narcotics Enforcement Unit in conducting the

surveillance.

       Later that morning, Sheriff Lee observed a grey vehicle pull onto the shoulder of

the road approximately one and one-half miles west of the checkpoint. Shortly thereafter,

the Sheriff noticed a two-tone, brown, four-door, three-quarter-ton pickup pull onto the

shoulder behind the grey vehicle. Sheriff Lee observed the drivers exit their respective

vehicles and converse for a short period of time. The driver of the grey vehicle returned

to his car and proceeded east toward the checkpoint. About five minutes later, the grey

vehicle, which appeared to be acting as a scout vehicle, returned and pulled up beside the

pickup. Both vehicles then proceeded toward Alamogordo.


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       Once in Alamogordo, both vehicles stopped at the Waffle Shoppe. The drivers

remained in the restaurant for approximately forty-five minutes before returning to their

respective vehicles. Both vehicles then proceeded north on Highway 54-70. A single,

unmarked surveillance vehicle followed. As the vehicles approached the northern edge of

Alamogordo, the grey car turned off of the main road. Forced with a choice of which car

to follow, Sheriff Lee instructed the surveillance unit to follow the pickup.

       After following Defendant’s pickup for some distance, the officers in the

surveillance vehicle informed Sheriff Lee that the vehicle was speeding and that it passed

a northbound vehicle in a no-passing zone. The plain-clothed surveillance officers,

however, possessed no authority under New Mexico Law to stop Defendant for a traffic

violation. Therefore, the officer’s requested that Sheriff Lee make the stop. Sheriff Lee

located Defendant shortly after crossing into Lincoln County and initiated a traffic stop.

       The Sheriff approached the pickup and asked Defendant for his license,

registration, and proof of insurance. Defendant produced the vehicle’s registration and

proof of insurance, but did not produce a driver’s license. Sheriff Lee asked Defendant to

exit his vehicle and began questioning him. The Sheriff asked Defendant where he was

going and where he was coming from. Defendant responded that he left his residence in

Alamogordo that morning, stopped at the Waffle Shoppe, and was traveling to Colorado

to build a garage for a friend. Sheriff Lee told the Defendant that he believed Defendant

was lying because he had observed him on the highway between Las Cruces and


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Alamogordo earlier that morning. Defendant admitted that he lied to the Sheriff. He

explained that he had girlfriends in Alamogordo and El Paso, and that he lied because he

did not want his Alamogordo girlfriend to learn about his El Paso girlfriend. Sheriff Lee

then asked him why he was on the Las Cruces highway and not the El Paso highway. The

record suggests Defendant failed to respond to this question.

       Sheriff Lee next asked Defendant if he could search his vehicle and run a drug dog

around it. Defendant consented to both. Sheriff Lee instructed his deputy to run the drug

dog around the pickup. The dog alerted to a toolbox located on the vehicle. The Sheriff

searched the toolbox and located 72 pounds of cocaine. Sheriff Lee placed Defendant

under arrest and advised him of his Miranda rights.

       On October 2, 1996, a grand jury indicted Defendant with “unlawfully, knowingly,

and intentionally possessing with the intent to distribute” more than five kilograms of

cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2.

Defendant moved to suppress alleging, inter alia, that: (1) the Sheriff had no reasonable

suspicion to stop him, (2) the Sheriff had no authority to stop him in Lincoln County, (3)

the Sheriff held him beyond the time necessary to issue a traffic citation, (4) Defendant’s

consent to Sheriff Lee’s search was given under duress; and (5) the Deputy exceeded his

consent for a dog sniff by allowing the animal into the back of the pickup. The district

court, in a thorough and well-reasoned memorandum opinion and order, rejected

Defendant’s arguments and denied the motion to suppress.


                                             4
                                           II.

       The sole question Defendant raises in this appeal is whether the district court

erroneously denied his motion to suppress on the basis that he freely and voluntarily

consented to the search of his pickup. Defendant contends that viewed in the totality of

the circumstances, the facts demonstrate that his consent was given under duress and

coercion. Therefore, Defendant argues, the district court’s finding that he freely and

voluntarily consented to Sheriff Lee’s search was clearly erroneous.1 We disagree.

       The district court’s determination that Defendant voluntarily consented to Sheriff

Lee’s search of his vehicle is a finding of fact which we review for clear error. United

States v. Orrego-Fernandez, 78 F.3d 1497, 1505 (10th Cir. 1996). The government bears

the burden of proving voluntary consent. Id. “In determining voluntariness, we consider

whether the consent was ‘unequivocal and specific and freely and intelligently given,’ and

whether it was given without duress or coercion.” United States v. Mendez, 118 F.3d

1426, 1432 (10th Cir. 1997) (citations omitted). In considering these factors, we do not

examine the officer’s request for permission to search and the defendant’s consent in a



       1
              Although the district court’s order states on three occasions that Defendant
consented to Sheriff Lee’s request, it made no explicit finding that Defendant’s consent
was “freely and voluntarily” given. The notion that Defendant “freely and voluntarily”
consented, however, is implicit in the district court’s findings and is clearly demonstrated
by the record. Because we must uphold the district court’s decision on a motion to
supress “insofar as it applies to the facts if there is any reasonable view of the evidence to
support it,” we need not remand for an explicit finding that Defendant’s consent was free
and voluntary. See e.g. United States v. Griffin, 7 F.3d 1512, 1516 (10th Cir. 1996).

                                                 5
vacuum. Instead, we examine the totality of the circumstances to determine whether a

defendant voluntarily consented to have his vehicle searched. United States v.

Hernandez, 93 F.3d 1493, 1500 (10th Cir. 1996).

       Defendant argues that the totality of the circumstances demonstrates that his

consent was given under duress. Specifically, Defendant argues that the search was

involuntary for the following reasons:

       1) Sheriff Lee’s questions did not relate to the traffic offense;

       2) Defendant produced proper proof of insurance and vehicle registration;

       3) Shortly after Sheriff Lee stopped him, a deputy arrived with a drug dog;

       4) When the Sheriff asked for his consent, the deputy possessed his registration

       and insurance papers; and

       5) Sheriff Lee never informed Defendant that he did not have to consent to the

       search.

Defendant argues that these undisputed facts, when considered together, demonstrate that

the district court’s finding that he voluntarily consented to the Sheriff’s search is clearly

erroneous.

       The record does not support Defendant’s contention that his consent was the

product of duress or coercion. To be sure, “any individual being subjected to an

investigative detention will feel some degree of compulsion to acquiesce to an officer’s

request.” United States v. Soto, 988 F.2d 1548, 1558 (10th Cir. 1993). Moreover, the


                                               6
pressure to acquiesce may be increased by the presence of more than one officer and by

an officer’s failure to advise the individual of his right to refuse the officer’s request. See

Orrego-Fernandez, 78 F.3d at 1505. This perceived pressure, however, while relevant to

our determination of whether consent is given freely and voluntarily, is not dispositive.

See Id. Viewed in its totality, the record supports the district court’s finding. Only five

minutes elapsed from stop to search. There is no evidence that during this time Sheriff

Lee threatened, deceived or physically harrassed Defendant, displayed his weapon, talked

in a commanding voice, or acted in a commanding manner. The record contains no

evidence suggesting that the Sheriff’s questions were the type which would intimidate an

ordinary citizen. Indeed, the record suggests that prior to Defendant’s untruthful answer

to one of his questions, Sheriff Lee elicited only general information relating to

Defendant’s travel plans.

       Nor do we believe that the deputy’s presence created an atmosphere where an

individual would feel compelled to permit an officer to search his or her vehicle. In fact,

the deputy’s presence at the scene, prior to running the drug dog around Defendant’s

vehicle, was noticeably inconspicuous. The record suggests that the deputy’s role was

minimal and that he remained in his patrol car checking Defendant’s documentation while




                                               7
the Sheriff obtained consent to search Defendant’s vehicle. Accordingly, we conclude the

district court’s determination that Defendant freely and voluntarily consented to the

search was not clearly erroneous.



       AFFIRMED.

                                                 Entered for the Court,



                                                 Bobby R. Baldock
                                                 Circuit Judge




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