530 F. App'x 676
10th Cir.2013Background
- On Aug. 15, 2010, KHP Trooper Summers stopped Hernandez‑Lizardi for speeding (83/70); driver produced California license and a Kansas City bill of sale showing a KC address and a $1,000 purchase price for the truck.
- After returning paperwork and issuing a citation, Summers re‑approached based on several suspicious facts (dealer plate, three cell phones, implausible bill of sale/price, inconsistent addresses, nervous passenger, implausible travel plans) and asked a few additional questions.
- Hernandez‑Lizardi consented to a “quick look” inside the cab; he initially denied money but then produced a purse with banded cash (~$14,400) when prompted.
- Troopers secured the cash, called DEA task‑force Trooper Rule, and directed the men to the KHP office about 12 miles away; at the office Rule interviewed Hernandez‑Lizardi, who admitted illegal presence in the U.S.
- While Rule interviewed him, troopers searched the truck more thoroughly and found ammunition, an SKS rifle, and two loaded handguns hidden in speaker enclosures; a drug dog alerted to the cash.
- Hernandez‑Lizardi was indicted under 18 U.S.C. § 922(g)(5), moved to suppress the guns and ammo (denied), convicted, and sentenced to 33 months; he appeals arguing suppression and insufficiency of evidence.
Issues
| Issue | Hernandez‑Lizardi's Argument | Government/KHP's Argument | Held |
|---|---|---|---|
| 1) Continued detention after citation | Continued stop was unlawful—no reasonable suspicion to extend beyond traffic citation | Trooper developed reasonable suspicion from combined facts (dealer plate, phones, bill of sale, address discrepancy, nervous passenger, implausible travel) | Continued investigatory detention was reasonable under the Fourth Amendment |
| 2) Roadside search of truck (consent) | Consent was not voluntary—was acquiescence under coercion/custody; language barrier and directive phrasing | Consent was voluntary: request was noncoercive, videotape shows nonintimidating tone, no threats or inducements | Consent to the cursory roadside search was voluntary and thus valid |
| 3) Seizure, transport to KHP office, interrogation, and second vehicle search | Escort and retention of cash converted encounter to de facto arrest invalidating subsequent searches/interview | Troopers had probable cause to arrest and to search the vehicle based on totality (large banded cash, inconsistencies, concealment, other indicia of drug trafficking) | Even if de facto arrest occurred, probable cause justified arrest and the subsequent warrantless vehicle search |
| 4) Sufficiency of evidence of possession of firearms | No forensic link; firearms could belong to passenger or third party — insufficient to prove knowing possession | Constructive possession established by circumstantial evidence tying defendant to vehicle and hidden compartments (receipts, drill, missing screws, speaker access, continuous control of vehicle) | Evidence was sufficient for a reasonable jury to find Hernandez‑Lizardi knowingly possessed the firearms and ammunition |
Key Cases Cited
- Ornelas v. United States, 517 U.S. 690 (Fourth Amendment reasonable‑suspicion/probable‑cause standards)
- United States v. Lyons, 510 F.3d 1225 (10th Cir. 2007) (limits on continued detention after citation; consent analysis)
- United States v. Watson, 423 U.S. 411 (consent may be voluntary despite detention)
- United States v. Slater, 971 F.2d 626 (10th Cir. 1992) (large cash and phones as indicia of drug trafficking)
- United States v. Edwards, 632 F.3d 633 (10th Cir. 2011) (probable cause to search vehicle standard)
- United States v. King, 632 F.3d 646 (10th Cir. 2011) (constructive possession; "power and ability" test)