                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALS October 22, 2010
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellant,                     No. 10-2016
 v.                                             (D.C. No. CR-09-1243-MCA)
 ANGEL SANCHEZ MARTA,                                      (D. N.M.)

              Defendant - Appellee.



                           ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, HOLLOWAY, Circuit Judge, MELGREN,
District Judge. **

      Defendant-Appellant Angel Sanchez Marta appeals the district court’s

denial of his motion to suppress all evidence and statements made during his

detention on November 1, 2008 by the Dona Ana Sheriff’s Department. Marta

pleaded guilty to one count of felon in possession, in violation of 18 U.S.C. §§

922(g)(1) and 924(g)(2). He was sentenced to fifteen months. Pursuant to



      *
        This order and judgment is not binding precedent, except under the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.
      **
        The Honorable Eric F. Melgren, United States District Judge, District of
Kansas, sitting by designation.
Federal Rule of Criminal Procedure 11(a)(2), Marta preserved his right to appeal

the denial of his suppression motion. We have jurisdiction under 28 U.S.C. §

1291, and we AFFIRM.

                                I. BACKGROUND

      In the early morning of November 1, 2008, Dona Ana County Sheriff

Deputy Alan Franzoy was conducting patrol duties in a remote desert area

northeast of Anthony, New Mexico. Deputy Franzoy drove through a gravel pit,

which he knew to be used for target practice, but there were no discarded targets

that morning. At approximately 12:40 p.m., Franzoy heard seven or eight

gunshots in rapid succession. Franzoy drove back down to the gravel pit to

determine where the shots were fired.

      As Franzoy drove into the gravel pit, he observed a silver, dual-axle Dodge

pickup begin to exit the area. Angel Sanchez Marta was the driver of the vehicle.

Deputy Franzoy also noticed that there were some targets, or trash, placed against

the northeast side of the gravel pit. Because Franzoy had not noticed the targets

earlier in the morning, he “tied it” to the driver of the exiting Dodge pickup.

ROA, Vol. III, at 16.

      Deputy Franzoy stopped the pickup, exited his vehicle, and approached the

Dodge on foot. When he approached, Franzoy’s concern was the littering, but he

was also concerned about safety. Franzoy asked Marta whether he had been

shooting, and Marta responded affirmatively. Deputy Franzoy then asked Marta

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whether he had left his targets and whether he was going to pick them up. While

speaking with Marta, Franzoy observed a gun on the console of the truck.

      Marta expressed an interest in retrieving his targets, and Deputy Franzoy

believed it would be safer for Marta to be separate from the firearm on the

console. When Marta began picking up targets and placing them in the bed of his

pickup, Franzoy began to have an “inkling” that he knew Marta. Id. at 40-41.

Deputy Franzoy took Marta’s driver’s license and called his dispatcher to check

on any wants and warrants. The wants and warrants check took approximately

five minutes, and the dispatcher’s report on Marta returned “clear.” Id. at 27.

Deputy Franzoy returned Marta’s driver’s license to him. Franzoy asked Marta

whether he had ever been arrested, and Marta responded affirmatively. Upon

further questioning, Marta told Deputy Franzoy that he had “sold a gun to

someone a couple years ago that [he] shouldn’t have.” Id. at 21. At the time of

the incident, Franzoy did not issue any citations and released Marta to return to

his home.

      The Crime/Incident Report that Deputy Franzoy completed after his

encounter reveals that the encounter lasted from 12:59 p.m. until 13:26 p.m. on

November 1, 2008. It was not until later in the 27-minute encounter that Deputy

Franzoy remembered he had dealt with Marta two years earlier. In August of

2006, Franzoy assisted federal agents in transporting Marta, who at that time was

being arrested for firearms offenses. Deputy Franzoy served as a “marked

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presence” for plainclothes ATF agents who were conducting a firearms “buy bust”

in Anthony, New Mexico. Id. at 9. Marta was arrested during the “buy bust,”

and Franzoy transported him in his patrol unit. Id. at 10. Franzoy spent

approximately 45 minutes in Marta’s presence in August 2006, and the two made

“small talk” over Marta’s involvement in the firearms case. Id.

      Marta was charged with a single count of felon in possession, 18 U.S.C. §§

922(g)(1) and 924(g)(2). Marta filed a motion to suppress challenging the initial

stop and the length and scope of the stop. An evidentiary hearing was held on

August 19, 2009.

      During the suppression hearing, the trial court found that Deputy Franzoy

testified inconsistently as to when he precisely realized that he knew Marta from

their encounter in August, 2006. The trial court found that the deputy variously

testified that the remembrance occurred: 1) when Deputy Franzoy saw Marta’s

name on his identifying document, which was before Franzoy relayed the

information to his dispatcher and; 2) not until after Marta’s information had

already returned as “clear.”

      However, notwithstanding the inconsistencies, the trial court determined

that the deputy projected a straightforward and genuine demeanor. The trial

court, therefore, credited Franzoy’s explanation that as of the time the deputy

asked Marta if he had previously been arrested, Franzoy had already recognized

and remembered Marta from the August 2006 encounter. In addition, while

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Deputy Franzoy’s littering investigation ultimately became moot, the trial court

determined that Franzoy’s testimony was credible that he still intended to issue a

littering citation to Marta at the time Marta’s information returned “clear.” As

such, the trial court found that at the time Deputy Franzoy asked Marta if he had

ever been arrested, already knowing what the answer to that question was going

to be, Marta was still under investigative detention for the littering offense.

Finally, the trial court determined that at whatever precise time the deputy

remembered his previous encounter, Deputy Franzoy’s question did not

appreciably lengthen the detention. Marta’s motion to suppress was denied.

                                 II. DISCUSSION

      In reviewing a district court’s denial of a motion to suppress, “this court

accepts the factual findings of the district court, and its determination of witness

credibility, unless they are clearly erroneous.” United States v. Chavez, 534 F.3d

1338, 1343 (10th Cir. 2008) (alteration and quotation omitted). “Ultimately,

however, this court must review de novo the reasonableness of the government’s

action under the Fourth Amendment.” Id. The government has the burden to

prove reasonableness, but we view the evidence in the light most favorable to the

government. Id.

      “A traffic stop is a seizure within the meaning of the Fourth Amendment,

even though the purpose of the stop is limited and the resulting detention quite

brief.” United States v. Tibbetts, 396 F.3d 1132, 1136 (10th Cir. 2005)

                                           5
(quotations omitted). Because a routine traffic stop is analogous to an

investigative detention, we analyze such stops under the principles set forth for

investigative detentions in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d

889 (1968). Id.

      “A Terry stop, considering the totality of the circumstances, requires a

reasonable and articulable suspicion that the person seized is engaged in criminal

activity.” United States v. Villagrana-Flores, 467 F.3d 1269, 1275 (10th Cir.

2006) (quotation omitted). “The first inquiry under Terry is whether the stop was

justified at its inception.” United States v. Williams, 403 F.3d 1203, 1206 (10th

Cir. 2005).

       “The second Terry [sic] inquiry is whether the officer’s conduct during the

detention was reasonably related in scope to the circumstances which justified the

initial stop.” Id. “As a general rule, once an officer’s purpose in a traffic stop

based on probable cause or reasonable suspicion is complete, the officer must let

the person go.” United States v. Pena-Montes, 589 F.3d 1048, 1053 (10th Cir.

2009) (quotation omitted); see also United States v. White, 584 F.3d 935, 949

(10th Cir. 2009) (“[O]nce an officer returns the driver’s license and vehicle

registration and issues a warning ticket, he must allow the driver to proceed

without further detention or questioning unless the officer has objectively

reasonable and articulable suspicion that the driver is engaged in illegal

activity.”) (quotation omitted).

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      Marta does not contest the district court’s determination that the stop was

initially justified. Instead, Marta argues that the district court should have made a

specific factual finding as to when the investigation into the littering offense

ended and the investigation into the felon in possession offense began. Marta

contends that the failure to make this finding renders the district court’s factual

findings clearly erroneous.

      We disagree. This is no more complicated than a simple Terry stop. In this

case, the investigative detention was ongoing into the littering offense. When

Deputy Franzoy asked Marta whether he had previously been arrested, Franzoy

intended to write Marta a citation but had not yet done so. Because the purpose

of the stop was not complete, Marta was not free to leave.

      Thus, the appropriate question is whether the deputy exceeded the

permissible scope of the stop when he asked Marta whether he had previously

been arrested while handing Marta his driver’s license and before issuing a

citation. “[T]he content of police questions during a lawful detention does not

implicate the Fourth Amendment as long as those questions do not prolong the

detention.” United States v. Stewart, 473 F.3d 1265, 1269 (10th Cir. 2007) (citing

Muehler v. Mena, 544 U.S. 93, 101, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005)).

“The correct Fourth Amendment inquiry (assuming the detention is legitimate) is

whether an officer’s traffic stop questions ‘extended the time’ that a driver was

detained, regardless of the questions’ content.” Id.; see also United States v.

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Alcaraz-Arellano, 441 F.3d 1252, 1259 (10th Cir. 2006) (finding that although

questioning during the writing of a warning ticket was not limited to travel plans

or ownership of the vehicle, the questioning was lawful because it did not

appreciably lengthen the detention).

      In this case, Marta was under investigative detention for the littering

offense, and Deputy Franzoy still intended to write a littering citation when he

asked Marta whether he had previously been arrested. None of Deputy Franzoy’s

actions appreciably lengthened the duration of the stop. Therefore, there was no

Fourth Amendment violation.

      Marta also argues the district court’s determination that Franzoy had

already recognized Marta when he asked Marta whether he had been arrested

before was clearly erroneous due to Deputy Franzoy’s inconsistent testimony and

the district court finding that one version was more chronologically precise. In its

order, the district court determined that the cross-examination version was

“somewhat more chronologically precisely and carefully” adduced. In this

version, Deputy Franzoy testified that after Marta’s information returned as

“clear” and before the deputy began questioning Marta about his criminal history,

Deputy Franzoy did not remember his previous encounter with Marta.

       “To be clearly erroneous, a finding must be more than possibly or even

probably wrong; the error must be pellucid to any objective observer.” United

States v. Quaintance, 608 F.3d 717, 721 (10th Cir. 2010) (quotation omitted).

                                          8
There is support in the record for the district court’s factual finding because the

deputy also testified that he recognized Marta when running his identification

because the license helped to “jog [his] memory.” ROA, Vol. III, at 41-42. This

occurred before the deputy asked Marta whether he previously had been arrested.

      Furthermore, notwithstanding the deputy’s inconsistent testimony, the trial

court affirmatively determined that the deputy was credible in testifying that there

was a further need to detain Marta because of his intention to write a littering

citation. As noted above, the further detention did not appreciably lengthen the

investigative detention. As such, the district court did not err in denying Marta’s

motion to suppress.

                                III. CONCLUSION

      The district court’s order denying defendant’s motion to suppress is

AFFIRMED.



                                              Entered for the Court



                                              Eric F. Melgren
                                              U.S. District Judge




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