                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 October 16, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 08-3318
 v.                                            (D.C. No. 5:07-CR-40019-JAR)
                                                          (D. Kan.)
 JOSE H. VELAZQUEZ,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TACHA, HOLLOWAY, and GORSUCH, Circuit Judges.


      Jose Velazquez was indicted on one count of possession of cocaine with

intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Following the district

court’s denial of his pretrial motion to suppress evidence, Mr. Velazquez pled

guilty and was sentenced, subject to a reservation of rights permitting him to

appeal the district court’s suppression ruling. That right he pursues now. For

substantially the reasons given by the district court, we believe his suppression

motion was properly denied and affirm.



      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      This case began when Kansas Highway Patrol Troopers Jerett Ranieri and

Andrew Dean stopped Mr. Velazquez’s car on Interstate 70 after seeing that

license plates were improperly displayed and witnessing him make an improper

lane change. Trooper Ranieri approached the passenger’s side of the vehicle,

explained the reason for the stop, and asked Mr. Velazquez for his driver’s

license, registration, and insurance. While Mr. Velazquez looked for these items,

the trooper asked him some questions about his travel plans. Mr. Velazquez

replied that he had come from California, but then offered different versions

about where he was headed – first saying he was traveling to St. Louis, Missouri,

then stating that his destination was St. Louis, Illinois. At the same time, the

trooper detected a strong odor of air freshener coming from the vehicle, which he

thought, together with Mr. Velazquez’s varying accounts of his itinerary and other

factors, suspiciously suggestive of drug trafficking activity. Adding to this, the

registration that Mr. Velazquez originally gave the trooper did not match the tag

on the vehicle. Although Mr. Velazquez subsequently gave Trooper Ranieri a

registration that matched the tag, the trooper thought that Mr. Velazquez’s

possession of two tags for the vehicle might have indicated that he “was maybe

crossing the Border” between the United States and Mexico, “and he didn’t want

to have the tags that he was crossing the Border on.” R. Vol. II at 65-66.

      After receiving Mr. Velazquez’s paperwork, Trooper Ranieri returned to his

car and ran a criminal history check. The Kansas Highway Patrol dispatch

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advised the trooper that Mr. Velazquez had an extensive drug trafficking history.

This history included an arrest for transporting large amounts of marijuana across

the border between the United States and Mexico. After finishing his checks,

Trooper Ranieri walked back to Mr. Velazquez’s car, returned Mr. Velazquez’s

paperwork, and indicated that he had issued him only a traffic warning. The

trooper then said: “You guys take care. Thanks for your time.” R. Vol. I at 98.

After this, Trooper Ranieri took a few steps away from Mr. Velazquez’s car, and

toward his own car. But then Trooper Ranieri returned to Mr. Velazquez’s car

and asked, “There’s uh, nothing–no illegal drugs or anything in your trunk?” R.

Vol. II at 68-69. Mr. Velazquez answered no. Trooper Ranieri asked if he could

“take a look and check,” R. Vol. II at 110, and Mr. Velazquez agreed, popping

open the trunk. Only after Mr. Velazquez opened his trunk did Trooper Ranieri’s

partner, Trooper Dean, exit the pair’s police cruiser and assist with the search.

       The search revealed 19.05 kilograms of cocaine. Mr. Velazquez was

arrested and, after receiving his Miranda warnings, admitted that he knew he was

transporting illegal drugs for delivery in St. Louis. A Kansas grand jury indicted

Mr. Velazquez on one count of possession of cocaine with intent to distribute, in

violation of 21 U.S.C. § 841(a)(1).

      Before the district court, Mr. Velazquez moved to suppress the evidence

taken from his vehicle, as well as his post-arrest inculpatory statements. The

district court denied Mr. Velazquez’s motions, finding that the traffic stop was

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valid, that his acquiescence to the search was voluntary and part of a consensual

encounter, and that, in any event, reasonable suspicion of drug trafficking existed

to support the detention. Thus, the court concluded that neither the drugs nor the

statements should be suppressed. After the district court denied Mr. Velazquez’s

motions, he entered a conditional plea of guilty, preserving his right to appeal the

district court’s disposition of his suppression motions.

      Before us, Mr. Velazquez does not contest his initial traffic stop. Neither

does he contest the voluntariness of his incriminating statements or his consent to

the search of his vehicle. He does seek suppression of his statements and the

drugs found during the search, however, on the basis that Trooper Ranieri

unlawfully continued his detention in violation of the Fourth Amendment after the

initial traffic stop ended. Essentially, then, he contends suppression is

appropriate because all of the incriminating evidence against him emerged only

by dint of an unlawfully extended seizure. In assessing this argument, we review

questions of law de novo but accept the district court’s factual findings unless

clearly erroneous, and we are obliged to view the evidence in the light most

favorable to the government, as the prevailing party. See United States v.

Alcaraz-Arellano, 441 F.3d 1252, 1258 (10th Cir. 2006).

      Everyone before us concedes that the search of Mr. Velazquez’s car and his

incriminating statements came after his traffic stop was completed. After

finishing a traffic stop, an officer’s further seizure or search of a driver is

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impermissible under the Fourth Amendment unless: (1) the driver voluntarily

consents to it; or (2) during the course of the stop, the officer acquires an

objectively reasonable and articulable suspicion that the driver is engaged in

illegal activity. United States v. Sandoval, 29 F.3d 537, 540 (10th Cir. 1994).

The government argues that both of these conditions were met in this case, and

the district court so held. Because we agree that Mr. Velazquez voluntarily

consented to additional questioning and to the search of his vehicle, and because

that alone is sufficient to dispose of this case, we have no need to reach the

question whether his continued detention was also supported by reasonable

suspicion of drug trafficking. We likewise have no reason to reach the

government’s additional argument that Mr. Velazquez’s continued detention was

justified because probable cause existed to arrest him for a traffic infraction.

      A traffic stop may become a consensual encounter if the officer returns the

driver’s license and registration and proceeds to ask questions “without further

constraining the driver by an overbearing show of authority.” United States v.

Bradford, 423 F.3d 1149, 1158 (10th Cir. 2005). Under this standard, “an officer

is not required to inform a suspect that she does not have to respond to

questioning or that she is free to leave.” Id. But a “coercive show of authority,

such as the presence of more than one officer, the display of a weapon, physical

touching by the officer, or his use of a commanding tone of voice indicating that

compliance might be compelled may suggest that the detention has not ended.”

                                          -5-
United States v. Anderson, 114 F.3d 1059, 1064 (10th Cir. 1997) (internal

quotation mark omitted).

      We agree with the district court that we are bound by our precedent to

conclude that Mr. Velazquez’s discussion with Trooper Ranieri, after receiving

his warning, was consensual. The district court found that Trooper Ranieri

returned Mr. Velazquez’s documentation, told him to take care, walked briefly

away from the vehicle, and then stepped forward again before asking Mr.

Velazquez if he had anything illegal in the car. Although Trooper Ranieri did not

specifically inform Mr. Velazquez that he was free to leave, he did say, “You

guys take care. Thanks for your time” and took a few steps away from the car.

We cannot say that any of these factual findings was clearly erroneous, and we

have repeatedly found facts along these lines sufficient to suggest an end to the

traffic stop detention and sufficient to signal that subsequent conversation with

the officer is consensual. See, e.g., United States v. Ledesma, 447 F.3d 1307,

1315 (10th Cir. 2006) (“Phrases like ‘thank you’ and ‘have a safe one’ signal the

end of an encounter, and afford a defendant an opportunity to depart. Although

[the officer] did not explicitly inform [the defendant] and her passenger that they

were free to leave, [his] words of farewell suggested that any subsequent

discussion was consensual.”); United States v. Wallace, 429 F.3d 969, 975 (10th

Cir. 2005) (initial detention transformed into a consensual encounter when trooper

returned driver’s paperwork, issued a citation, and said, “That’s all I’ve got”);

                                         -6-
Anderson, 114 F.3d at 1064 (detention became consensual when trooper handed

driver a warning citation and returned his papers, even though trooper did not tell

driver he was free to go); United States v. Elliott, 107 F.3d 810, 814 (10th Cir.

1997) (detention ended and encounter became consensual when officer returned

documentation, even though officer never told driver he was free to go); United

States v. Werking, 915 F.2d 1404, 1409 (10th Cir. 1990) (because initial detention

ended when officer returned license and registration, subsequent questioning was

consensual, even if officer did not tell driver he was free to go).

      As in Werking, the only real show of authority in this case was Trooper

Ranieri’s police uniform and patrol car with still-flashing lights. Although we

have recognized that a prudent citizen very well may not be inclined to leave the

presence of a uniformed police officer on the side of a public highway after a

lawful stop, we have also previously held that such facts alone do not create the

level of coercion required to constitute a “seizure” within the meaning of the

Fourth Amendment. Indeed, at oral argument, counsel conceded that this case

and Werking are virtually on “all-fours.” As a panel of this court, we are of

course bound to apply this court’s precedents, not revisit them.

      Of course, our precedent would suggest a different result if there were

some suggestion that Trooper Ranieri had, for example, displayed his weapon,

physically touched or threatened Mr. Velazquez, leaned on Mr. Velazquez’s car,

or used a commanding tone of voice. See, e.g., Elliott, 107 F.3d at 814; United

                                          -7-
States v. Turner, 928 F.2d 956, 959 (10th Cir. 1991). But no such facts are

present in this record. Neither does the fact that there was more than one officer

present at the scene, without more, suffice to render the encounter non-consensual

under our precedent, particularly given that Trooper Dean remained in his car

until after Mr. Velazquez authorized the contested search. See United States v.

Chavira, 467 F.3d 1286, 1291 (10th Cir. 2006) (holding that there was no

coercive show of authority when two officers were present, but one stayed in his

patrol car until after the trooper obtained consent to search); Wallace, 429 F.3d at

975 (finding encounter consensual despite the presence of two troopers because

“only the original trooper asked the driver for his consent”). We are therefore

obliged to conclude that, once Trooper Ranieri returned Mr. Velazquez’s

documents, told him to “take care,” and stepped away from the vehicle, the

detention became “an ordinary consensual encounter between a private citizen and

a law enforcement official.” Werking, 915 F.2d at 1408.

      The district court’s denial of Mr. Velazquez’s motion to suppress is

affirmed.


                                       ENTERED FOR THE COURT


                                       Neil M. Gorsuch
                                       Circuit Judge




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