                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                   September 12, 2006
                                   TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                      Clerk of Court



U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                        No. 05-3353
v.
                                                     (District of K ansas)
                                              (D.C. No. 05-CR-10040-01-W EB)
IG N A CIO ZA V A LA ,

          Defendant-Appellant.



U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                        No. 05-3303
v.
                                                     (District of K ansas)
                                              (D.C. No. 05-CR-10040-02-W EB)
JOSE ALBERTO LO PEZ-M ORA LES,

          Defendant-Appellant.




                                OR D ER AND JUDGM ENT *


Before BR ISC OE, EBEL, and M U RPH Y, 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       This order and judgment is not binding precedent, except under the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.
I. Introduction

      W e have consolidated the present appeals for purposes of disposition. A

grand jury indicted both Ignacio Zavala and Jose Alberto Lopez-M orales on one

count of possession with intent to distribute more than 100 kilograms of

marijuana in violation of 21 U.S.C. § 841(a)(1). Zavala and Lopez-M orales both

filed motions to suppress the contraband. The United States District Court for the

District of Kansas denied their motions to suppress. Zavala and Lopez-M orales

entered conditional guilty pleas and the district court sentenced each man to sixty

months’ incarceration. Zavala and Lopez-M orales appeal the district court’s

denial of their motions to suppress. This court exercises jurisdiction pursuant to

28 U.S.C. § 1291 and affirms the district court’s ruling.

II. Background

      On February 16, 2005, Zavala was driving his Chevrolet van east on

Interstate 70 in Kansas. Lopez-M orales was riding in the passenger seat of the

van. At approximately 10:20 in the evening, Kansas Highway Patrol Trooper

Jerrad Goheen pulled Zavala over after noticing Zavala’s van had only one

w orking headlight. When G oheen approached the van, Zavala did not roll down

his window. Instead, he attempted to talk to Goheen through the small vent

window on his door. Goheen asked Zavala to open the van door so they could




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talk. W hen Zavala complied with Goheen’s request, Goheen noticed an

overw helming smell of air freshener emanating from the van.

      Goheen explained that he stopped Zavala’s vehicle because only one of its

headlights w as operational. Zavala told Goheen he knew of the problem. He

showed Goheen a warning ticket he had received from another Kansas Highway

Patrol Officer, Trooper Troy Smith. Smith had stopped Zavala for the same

problem roughly an hour earlier. Zavala also produced his license and proof of

insurance.

      Goheen asked Zavala and Lopez-M orales where they were from and where

they were going. Zavala replied that they had been visiting family in Denver for

about a week and were headed to North Carolina. Goheen next asked to see

Lopez-M orales’ identification. Zavala translated Goheen’s request into Spanish,

then translated Lopez-M orales’ response: Lopez-M orales had no identification

because he had just been released from jail, where he had been incarcerated for

drug possession.

      Goheen went to his patrol car and requested a driver’s license and criminal

history check on Zavala. W hile awaiting a response from dispatch, he contacted

Trooper Smith and inquired about the previous traffic stop. Smith told Goheen he

had done a quick and routine traffic stop and had issued Zavala a warning citation

without performing any additional investigation. After he finished talking to




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Smith, dispatch informed Goheen that Zavala’s driver’s license was valid; at that

point, dispatch did not give Goheen information on Zavala’s criminal history.

      Goheen returned to the van, where Zavala and Lopez-M orales had been

waiting. He returned Zavala’s license and insurance information and told Zavala

he could probably find a replacement headlight at a nearby W al-M art. Goheen

told Zavala and Lopez-M orales to have a safe trip, then backed away from the

van. As Zalava prepared to pull away, however, Goheen walked back toward the

van and asked whether he could ask the men a couple of quick questions. Zavala

agreed. Goheen asked whether Zavala and Lopez-M orales had a couple of

minutes, and Zavala indicated they did.

      Goheen asked Zavala and Lopez-M orales whether they knew the address of

the family members w ith whom they had been staying in Denver. Zalava told

Goheen he did not know the address. Goheen then asked Lopez-M orales about

his former conviction. Lopez-M orales informed Goheen he was convicted for

possession of a small amount of marijuana. Goheen inquired as to whether the

men had guns, drugs, or large amounts of cash with them. After receiving a

negative response, Goheen asked, “You don’t mind if I look inside the car?”

Zavala told Goheen he did not mind.

      Goheen requested that Zavala and Lopez-M orales step out of their vehicle

and stand by the front of the van. W hen Lopez-M orales exited the van, Goheen

noticed the distance between the van’s floor and ceiling seemed too short. Upon

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seeing this, Goheen suspected the van had been altered to accommodate either a

false floor or false ceiling. Goheen therefore began to inspect the van to

determine whether there was a hidden compartment. Goheen noted the bolts

holding down the rear seats had been scratched as though they had been removed.

He also observed the van’s carpeting looked as though it had been glued down in

an unusual way. As Goheen carried out his inspection, he received a report from

dispatch informing him that Zavala had a criminal history involving drugs. After

receiving the report, Goheen continued to scrutinize the van. He observed the

van’s seat belts were bolted not to the head liner itself, but to some point beyond

the head liner. Goheen felt sure the seat belts had not been factory-mounted this

way.

       Goheen determined he wanted to perform a more thorough inspection of the

van. He asked whether Zavala would mind following him to the Highway Patrol

office so he could inspect the van more closely. After consulting with Lopez-

M orales, Zavala declined Goheen’s request.

       Goheen contacted a sheriff’s officer who was nearby and asked for

assistance. He then resumed his examination of the van. Further inspection lead

Goheen to believe there was a false compartment in the ceiling of the van. W hen

he asked Zavala w hether the ceiling of the van had been modified, Zavala told him

it had not been altered. W hen the sheriff’s officer Goheen had called arrived on

the scene, the officer agreed with Goheen that the ceiling of the van had been

                                          -5-
altered. Goheen instructed Zavala and Lopez-M orales to get in their van and

follow him to the Highway Patrol office. The men complied with Goheen’s

request. Inspection at the Highway Patrol office revealed that a compartment had

been welded into the ceiling of the van. Law enforcement officials discovered

approximately 271 pounds of marijuana in the compartment.

      A grand jury charged both Zavala and Lopez-M orales in a one-count

indictment with possession with intent to distribute more than 100 kilograms of

marijuana in violation of 21 U.S.C. § 841(a)(1). Zavala and Lopez-M orales each

filed motions to suppress the drugs. The district court combined their motions and

held a suppression hearing, during which it heard testimony from Troopers Goheen

and Smith and viewed the patrol car’s video tape of Goheen’s stop. The district

court issued a M emorandum and Order denying defendants’ motions to suppress.

      Lopez-M orales and Zavala entered conditional guilty pleas, waiving their

rights to appeal or collaterally attack their prosecutions, convictions, and sentences

except with respect to the district court’s denial of their motions to suppress. The

court sentenced each man to sixty months’ imprisonment follow ed by four years’

supervised release. Zavala and Lopez-M orales appeal the district court’s denial of

their motions to suppress.




                                          -6-
III.   Discussion

       A. Lopez-M orales’ Standing to Seek Suppression of the Contraband

       The government asserts this court need not reach the merits of Lopez-

M orales’ claim on appeal because Lopez-M orales, as a mere passenger in a van

belonging to Zavala, has no standing to challenge the constitutionality of G oheen’s

search. W hether a defendant has standing to challenge a search is a legal question

subject to de novo review. United States v. DeLuca, 269 F.3d 1128, 1131 (10th

Cir. 2001).

       Because Fourth Amendment rights are personal, “a defendant cannot claim a

violation of his Fourth Amendment rights based only on the introduction of

evidence procured through an illegal search and seizure of a third person’s

property or premises.” Id. (quotation omitted). Accordingly, “w ithout a

possessory or property interest in the vehicle searched, passengers lack standing to

challenge vehicle searches.” Id. at 1132 (quotation omitted). That said, when a

defendant “lack[s] the requisite possessory or ownership interest in a vehicle to

directly challenge a search of that vehicle, the defendant may nonetheless contest

the lawfulness of his own detention and seek to suppress evidence found in the

vehicle as the fruit of the [defendant’s] illegal detention.” Id. (second alteration in

original) (quotation omitted).

       “To successfully suppress evidence as the fruit of an unlawful detention, a

defendant must first establish that the detention did violate his Fourth Amendment

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rights. The defendant then bears the burden of demonstrating a factual nexus

between the illegality and the challenged evidence.” United States v. Nava-

Ramirez, 210 F.3d 1128, 1131 (10th Cir. 2000) (citation and quotation omitted).

To satisfy the nexus requirement, a defendant must show the evidence he seeks to

have suppressed “would never have been found but for his, and only his, unlawful

detention.” DeLuca, 269 F.3d at 1133 (emphasis omitted). Thus, when the

detained defendant is a mere passenger in vehicle belonging to another person, this

court has determined he must show “that had he . . . requested permission or

otherwise attempted to depart the scene, he would have been able to leave in [the

owner’s] car.” Nava-Ramirez, 210 F.3d at 1131.

      Lopez-M orales concedes he has no possessory interest in Zavala’s van.

Nonetheless he argues he has standing to challenge G oheen’s search of Zavala’s

van because his detention violated the Fourth Amendment and because a factual

nexus exists between that violation and the contraband evidence he seeks to

suppress.

      The evidence does not support Lopez-M orales’ contention. Even if we

assume Lopez-M orales’ detention was unconstitutional, no factual nexus links his

detention and discovery of the marijuana found in Zavala’s van. Lopez-M orales

adduced no evidence demonstrating the marijuana would not have come to light

but for his allegedly unconstitutional detention. Nor did he “put on . . . evidence

to demonstrate that had he . . . requested permission or otherwise attempted to

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depart the scene, he would have been able to leave in” Zavala’s van. Id. Because

Lopez-M orales failed to show a factual nexus between his allegedly illegal

detention and the discovery of the marijuana in Zavala’s van, he has no standing to

challenge the search. W e therefore affirm the district court’s denial of Lopez-

M orales’ motion to suppress. 1

      B. Zavala’s Motion to Suppress

      Zavala argues Goheen violated his Fourth Amendment rights when he

detained and searched his van on the night of February 16, 2005. Accordingly, he

contends the district court erred in denying his motion to suppress the marijuana

found in his van. This court accepts the factual findings underlying a district

court’s decision to deny a suppression motion unless those findings are clearly

erroneous. Id. “We review de novo the ultimate determination on the

reasonableness of a search or seizure under the Fourth Amendment.” Id.

      (1) Initial Traffic Stop

      Zavala concedes G oheen’s initial stop of his van, based on the van’s

nonfunctioning headlight, was proper. He argues, however, that once he produced

a valid license and proof he was entitled to operate the van, Goheen was required

to release him without further questioning. “A law enforcement officer conducting




      1
       Although the district court denied Lopez-M orales’ motion to suppress on
the merits, we can affirm its decision “on any grounds supported by the record.”
United States v. White, 326 F.3d 1135, 1138 (10th Cir. 2003).

                                         -9-
a routine traffic stop may request a driver’s license and vehicle registration, run a

computer check, and issue a citation.” United States v. Bradford, 423 F.3d 1149,

1156 (10th Cir. 2005) (quotation and alteration omitted). Similarly, “an officer

may ask routine questions about the driver’s travel plans.” Id. In light of this

court’s precedent, we conclude Goheen did not violate Zavala’s Fourth

Amendment rights when, during the course of the initial traffic stop, he ran a

computer check on Zavala’s identity and questioned Zavala about his itinerary.

      (2) Consent to Further Questioning and to Search of Van

      Zavala also contends Goheen violated his Fourth Amendment rights when,

after Goheen told him to have a safe trip and momentarily backed away from his

van, Goheen returned and asked whether Zavala would mind answering additional

questions. Zavala asserts the “coercive effect” of the initial traffic stop had not

yet worn off, and he was not free to decline Goheen’s request to make further

inquiries. Appellant’s Br. at 7. Similarly, he argues he was not free to decline

Goheen’s request to search the van due to the “coercive momentum” from the

initial traffic stop. Id. at 8. In short, Zavala argues his consent— both to answer

additional questions and to search the van— was not freely given.

      A traffic “stop generally ends when the officer returns the driver’s license,

registration, and insurance information.” United States v. M anjarrez, 348 F.3d

881, 885 (10th Cir. 2003). An officer may engage in further “questioning

unrelated to the traffic stop,” however, “if the detention becomes a consensual

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encounter.” Id. (quotation omitted). Likewise, a law enforcement officer may

conduct a warrantless search of a vehicle “if a person in control of the vehicle has

given his voluntary consent to the search.” United States v. Zubia-M elendez, 263

F.3d 1155, 1162 (10th Cir. 2001). “W hether voluntary consent was given is a

question of fact, determined by the totality of the circumstances and reviewed for

clear error.” Id.

      Here, the district court noted Goheen did not use any show of authority or

coercion that would have pressured Zavala to remain and answer his questions. It

further observed Goheen’s request to ask additional questions conveyed clearly

that Zavala’s continued participation in the encounter was voluntary, and that

Zavala promptly agreed to answer the questions. Based on these observations, the

district court concluded the exchange between Zavala and Goheen became

consensual after Zavala told Goheen he would not mind answering additional

questions. For the same reasons, the district court concluded Zavala voluntarily

consented to Goheen’s request to search the vehicle. Zavala tenders no evidence

that Goheen coerced him to remain and answer additional questions or to consent

to a search of his vehicle, and offers no authority to support his “coercive

momentum” argument. We therefore conclude the district court did not clearly

err when it determined Zavala gave his consent freely.




                                         -11-
      (3) Probable Cause

      Zavala argues he withdrew consent to further searches of his van when he

declined to voluntarily follow Goheen to the Highway Patrol station. M oreover,

he insists Goheen lacked probable cause to continue searching his van after he

withdrew his consent. Zavala therefore contends G oheen violated his Fourth

Amendment rights when Goheen continued to search his van after he had

withdrawn his consent.

      Even if Zavala’s refusal to accompany Goheen to the Highway Patrol office

constituted a withdrawal of his consent to additional searches of his van, Goheen

was entitled to keep searching the vehicle if his search was supported by probable

cause. See Ornelas v. United States, 517 U.S. 690, 693 (1996) (noting a law

enforcement officer may conduct a w arrantless search of a vehicle if the officer’s

search is supported by probable cause). W hether an officer had probable cause to

search is a question this court reviews de novo. United States v. Ledesma, 447

F.3d 1307, 1316 (10th Cir. 2006). In determining whether an officer had probable

cause, we “look at the totality of the circumstances of each case to see whether the

detaining officer has a particularized and objective basis for suspecting legal

wrongdoing.” Id. (quotations omitted). W hen conducting a totality of the

circumstances review, no single factor is dispositive, and factors that may be of

limited significance in isolation may combine to give rise to probable cause. Id.

“The ultimate question is whether the facts and circumstances w ithin the officers’

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knowledge . . . are sufficient in themselves to warrant a man of reasonable caution

in the belief that an offense has been or is being comm itted.” Id. (quotations

omitted).

      “[V]isual evidence of a hidden compartment, without more, may provide

probable cause to conduct or expand a search.” Id. at 1317.

      W hether probable cause to search a vehicle can be based on evidence
      of a hidden compartment depends on two factors: (1) the probative
      value of the evidence— that is, the likelihood that there really is a
      hidden compartment; and (2) the likelihood that a vehicle with a
      hidden compartment would, in the circumstances, be secreting
      contraband.

United States v. Jurado-Vallejo, 380 F.3d 1235, 1238 (10th Cir. 2004). At the

time Zavala told Goheen he did not want to follow Goheen to the Highway Patrol

office— thereby allegedly withdrawing his consent— Goheen was aware of several

factors probative of the existence of a secret compartment in Zavala’s van.

Goheen observed the distance between the floor and ceiling of Zavala’s van was

abnormally short, indicating the existence of an unusual amount of space beneath

the floor or above the ceiling. He also noted the seat-belts were not attached to

the ceiling in a normal fashion, the rear seat bolts were scratched as though they

had been removed, and the van’s carpeting was glued down in an unusual fashion.

These modifications strongly suggest the existence of a secret compartment.

M oreover, “[i]f the vehicle had a hidden compartment, it was highly likely to

contain contraband.” Id. As this court has noted previously, “it is difficult to



                                         -13-
imagine a licit purpose for a large hidden compartment in a vehicle the size of a

Chevy van.” Ledesm a, 447 F.3d at 1318.

      Evidence of the existence of a hidden compartment, standing alone, may

have been sufficient to establish probable cause to search Zavala’s van. Id. at

1317. In this case, however, evidence suggesting a secret compartment was not

the only factor that supported a finding of probable cause. By the time Zavala

allegedly withdrew his consent to further searches of his van, Goheen had smelled

an overpowering scent of air freshener, observed that Zavala w as unable to recall

where he had stayed in Denver, and knew that Zavala and Lopez-M orales had

criminal histories involving drugs. These factors, combined with the evidence

suggesting the existence of a hidden compartment, furnished probable cause to

continue searching Zavala’s van. Cf. United States v. Anderson, 114 F.3d 1059,

1066 (10th Cir. 1997) (concluding probable cause existed when defendants gave

conflicting or vague versions of their travel itinerary, when scent of air freshener

emanated from the vehicle, when a passenger carried a pager, and when evidence

suggested a hidden compartment in the vehicle).

      In sum, Goheen’s initial stop and questioning of Zavala and Lopez-M orales

was proper, Goheen obtained valid consent from Zavala to ask additional questions

and to conduct a search of the van; and, after Zavala allegedly withdrew that

consent, G oheen’s continued search was supported by probable cause.

Accordingly, Zavala’s Fourth Amendment rights were not violated, and the district

                                         -14-
court did not err in denying Zavala’s motion to suppress the marijuana found in his

van.

IV. Conclusion

       For the foregoing reasons, we affirm the decision of the United States

District Court for the D istrict of K ansas.

                                         ENTERED FOR THE COURT



                                         M ichael R. M urphy
                                         Circuit Judge




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