United States v. Guerrero-Espinoza

Ashlеy in immi- suspicion” that only one of ulable who have abused parents that the others of peril will start abuse nent abuse. their children Third, have is removed. we when first to the the- exceptions about

no information Clearly B. Established Federal Law be, age that the example, It for ory. we have determined Because involved, order, prior birth of the children any not violate Defendants’ actions did history, temperament, or gender, medical right, need not decide constitutional we the likeli- strongly influence other factors clearly they established whether violated sib- will transfer between hood that abuse Roska, they place. took law at the time Ashley example, lings. (“Order important; more only in the home for child has plaintiff must first whether decide born. years, than four before Jasmine was violation, only alleged a constitutional signs no of Ms. Barrera-Garcia saw Yet proceed whether then do we to determine Ashley, her discussions abuse established.”). clearly the law was no evidence that she and CYFD uncovered De- App. 277. “targeted.” ever been III. Conclusion theory, these pending on the details (or ut- might especially important facts AFFIRM the of the district We decision irrelevant). terly judgment for the granting summary court Defendants. general pro- any need make We reliability about the of the nouncements theory,

“targeted child” because effectively have

in this case the Plaintiffs point. The Defendants sub-

conceded the uncontested affidavits

mitted half-dozen that, deposition excerpts explaining training experience, on their

based routinely all of the state officials remove America, STATES UNITED they harbor children from home when Plaintiff-Appellee, suspicions abuse one Further, child. the Defendants reached after child” decision “targeted their GUERRERO-ESPINOZA, Antonio careful consideration facts Defendant-Appellant. meeting, staff case. their CYFD noted that was “the personnel Jasmine No. 05-8031. demanding” needy, the most child most Appeals, United States Court home, spe- agreed upon and therefore Tenth Circuit. cific, might Ashley articulable reasons target. App. next 310. The become the Sept. Plaintiffs, no response, presented calling “targeted child” theo- evidence rea-

ry into and have offered no question, application

son to doubt Defendants’ Ashley. Based theory Jasmine and us, genuine before no issue

on record fact the whether

of material exists as to artic- had “reasonable and

the Defendants

Ronald Pretty, Cheyenne, WY, G. Defendant-Appellant ‍‌​​​​‌‌​‌‌‌​‌‌​‌​​‌‌‌​​‌​​​‌‌‌‌‌​​​‌​​​‌‌‌​‌​‌​​‍Antonio Guerrero- Espinoza. Kubiehek,

David A. Assistant United (Matthew Attorney Mead, H. Unit- brief) Attorney, ed States him with on the for Plaintiff-Appellee United States of America. TYMKOYICH, HOLLOWAY,

Before EBEL, Judges. Circuit EBEL, Judge. Circuit appeal, this direct criminal Defen- dant-Appellant Guerrero-Espino- Antonio (“Guerrero”) za asserts that the district court erred in denying sup- his motion to illegal press drugs discovered his mini- by Wyoming van trooper during At the time stopped for speeding, the minivan Guerre- ro, registered owner, the minivan’s riding as a passenger and another individ- driving. ual was took the trooper’s patrol driver to the car and even- tually completed when returned the driver’s issued the warning, driver a and let him out of the 841(a)(1) (b)(1)(B) (D); § had end- U.S.C. patrol car. Since 3) authority amounts ed, possess those longer conspiring no Be- further. intent marijuana, the driver detain Guerrero of cocaine minivan, returned distribute, fore the driver of 21 violation U.S.C. contact (b)(1)(B) (D), reinitiated 841(a)(1), §§ and 846.1 Guerrero, ques- then him and with with to seven- court sentenced Guerrero district and plans about their travel tioning them three, and ty on each of counts one months mini- drugs in the presence of possible two, all to run sixty months on count van. The Government asserts now chal- concurrently. appeals, Guerrero deten- consented to this further Guerrero and sentence. lenging his convictions completed a questioning. tion While arguеs Guerrero the district appeal, On into consensual traffic can evolve a 1) denying in motion court erred his trooper, a a citizen and encounter between discovery trooper’s state of suppress the person in it can do so a reasonable 2) Sixth drugs; denied Guerrero his free would feel the same circumstances right to confront witnesses Amendment trooper’s questions answer the decline to when the court allowed Government case, however, this because leave. of hearsay evidence statements present stop out- completed the traffic driver and wife made van’s Guerrero’s presence and side Guerrero’s because stop, during the traffic аnd between mini- driver never returned to released 3) wife; his abused its Guerrero and van, person po- in a Guerrero’s in permitting discretion realized the sition would testify to a recorded conversation between was to leave. stop had ended and he free in the and his wife that occurred Therefore, con- far was as Guerrero of car. back cerned, did not evolve into 4) statutory mandatory argues that For these rea- encounter. consensual minimum applied to two of sentence sons, dis- REMAND this case to the we Be- was unconstitutional. convictions trict court with orders VACATE district court erred cause we conclude the convictions. Guerrero’s suppress, motion to denying I. BACKGROUND. do other issues. not address Guerrero’s appeal Having jurisdiction to consider this jury drug

A convicted of three 3742(a) § 1) 28 U.S.C. under 18 U.S.C. charges: possessing more than 500 1291, therefore, 2) § we REMAND case grams approximately cocaine and to the court with instructions to twenty marijuana, the in- district pounds both, in of 21 VACATE Guerrero’s convictions. tent to violation distribute 841(b)(1)(B)(ii)(II). 841(a)(1) years.” § the case provides § "In that "it shall Id. U.S.C. marihuana, knowingly any person or in- kilograms be unlawful for less ... than manufacture, distribute, tentionally ... or person ... be sentenced to a term such shall dispense, possess or with intent to manufac- imprisonment than of not more ture, distribute, dispense, a sub- or controlled Further, 841(b)(1)(D). § years....” Id. 841(b)(1), § rele- And 21 U.S.C. stance.” provides "[a]ny person § U.S.C. who penalties: рrovides following part, vant attempts any offense defined in this to commit (a) "In the case of violation subsection penal- subject subchapter shall the same grams involving more ... 500 or section offense, prescribed ties for the as those person ... be sen- of ... cocaine such shall object was the commission of which imprisonment which tenced to a term of attempt conspiracy.” than and not than 40 not be less more time, Guerrero, At this same II. STANDARD OF mini- REVIEW van’s owner who sitting the front reviewing “When a district court’s denial seat, passenger going through a stack suppress, of a motion we view the evi of papers he glove had retrieved from the light dence in the most favorable to the box, appаrently looking for the vehicle’s government, accepting the district court’s registration. The trooper offered to help clearly findings factual unless erroneous. Guerrero find and Guerre- Fourth amendment reasonableness re agreed, ro handing Trooper Peech this de novo.” viewed United States v. Gre entire of papers. stack The trooper took goire, 425 F.3d the stack of papers patrol car, back to his (citation omitted). The Government bears accompanied by Ciprés. of demonstrating the burden reasonable Herrera, ness. See United States sitting in patrol While his car with (10th Cir.2006). 1238, 1242 Ciprés, the trooper wrote Ciprés warn- ing for speeding. The also eventu- III. DISCUSSION ally located vehiclе’s in the stack of documents given Guerrero had A. Relevant Facts. him—the registered van was in Mississippi Viewing the in light evidence2 most trooper, Guerrero. The id., government, favorable to the see any unable to locate indication that pretrial evidence at the presented suppres- minivan Trooper gave was insured. Peech hearing following: sion established the On Ciprés warning and handed him back 19, 2003, a trooper, Benja- October license, his driver’s but indicated to Ciprés Peech, stopped min minivan with white that the speak had to further with Mississippi plate license that was travel- Guerrero about the vehicle’s insurance. ling just eastbound on Interstate 80 east of Ciprés patrol in remained car. Troop- Cheyenne, Wyoming. trooper’s The radar er Peech Ciprés testified that was not free gun indicated that the minivan was travel- patrol to leave the car at that time. hour, ling eighty-four miles per excess posted of the seventy-five-miles-per-hour Ciprés patrol car, Leaving Troop- speed limit. The occupants minivan’s in- er Peech passenger went to the side of the Anguiano-Cipres (“Ciprés” cluded Alfredo minivan verify Guerrero that he driver”), Guerrero,3 or “the and Guerrero’s was the van’s owner and to ask him about (“Her- wife, Edelmira Hernandez-Maneilla the van’s insurance. This occurred at 8:16 nandez”). trooper spoke a.m. The with Guerrero in Spanish English both after stopped The trooper the van at 8:06 а.m. speak English pret- indicated that he could approached driver,

He Ciprés, and ty acknowledged well. Guerrero that he asked for his driver’s the vehicle’s owned the van and told the that: registration, proof of insurance. Be- had he been in Mexico for the Ciprés past cause three speak English very months; well, trooper spoke that time he had Ciprés Span- left the Ciprés produced brother; ish. van with a California ‍‌​​​​‌‌​‌‌‌​‌‌​‌​​‌‌‌​​‌​​​‌‌‌‌‌​​​‌​​​‌‌‌​‌​‌​​‍his driver’s the brother was license. supposed pay the insurance on the van. 2. supple- hearing, We GRANT suppression Guerrero's motion to Guerrero is videotape ment record include the frequently Ortego referred to as Jose Moreno. the traffic Trooper Peech thеn went search. proof of in- produced never standing at Ciprés, who was still back

surance.4 Ciprés if of the van. He asked the back gave Peech back Trooper car, anything in the and Ciprés he minivan’s taken from the papers stack that he had a suitcase. indicated including the vehicle’s glove compartment, if he could search Peech asked pa- then returned registration, and suitcase, Ciprés agreed. Trooper There, the door of the opened car. he trol Guerrero, Ciprés, and then asked Peech Ciprés to exit the vehi- patrol car to allow wife, Hernandez, stand out- not tell Although Trooper Peech did cle. the van while searched. side away, drive Ciprés he was free to to be over trooper deemed place Trooper Peech searched The first Ciprés got As out point. at this van, undercarriage where was the walking toward the and started car indi- “tooling” marks —marks he noticed minivan, however, Trooper Peech “recon- on cating tools had been used the bolts him the troop- and asked tacted” apparent well as other altera- screws—as questions. er could ask him some more gas and near the tank. tions on Trooper Peech then in- Ciprés agreed. drug-sniffing dog. for a trooper then called plans and his Cipres’s travel quired about van, he went inside the where He also This conversa- relationship Guerrero. to be an acсess appeared located what highway on the side of the tion occurred gas doing tank. he was the While point standing two were between while the men Guerrero, this, ap- and Hernandez Ciprés, Trooper the Peech the van and car. Trooper the van. Peech asked proached if Ciprés trooper the could then asked back, again if get them then asked Ciprés agreed. again. speak Guerrero searching. continue Guerrero he could to the van’s front Trooper Peech returned yes. said speak area with Guerrero. passenger arrived, troopers one Two additional Although trooper Ciprés the testified that drug-sniffing dog. Trooper Peech get into the minivan at was free to back the the dog could search asked Guerrero so, time, not do instead but eventually agreed. The van. Guerrero standing high- on the side of the remained positively presence alerted to the dog van, during Troop- at of the way, the back troopers then their drugs. The renewed er with Guerrero. Peech’s conversation efforts, com- discovering hidden search trooper, Guerrero According the state gas tank. In that com- partment the trooper agreed much” “pretty troopers several partment discovered more questions. ask him some marijuana co- wrapped packages questioned Peech first Guerrero caine. plans, travel then asked about his any guns illegal if he Guerrero Analysis. Legal B. drugs in the vehicle. answered Guerrero protects “The Fourth Amendment trooper that he did not. The asked twice, people secure their Spanish right and En- to be in both effects, houses, papers, trooper persons, if the could search van. glish, and sei against unreasonable searches replied twice registered liability is in another Wyoming requires resident’s vehicle motorists 103(a). § is accordance Wyo. and the vehicle insured in coverage. See Stat. 31-4— statute, requirements. id. apply if a with that state's See does not non- This Bradford, principles developed zures.” United States for investigative de- Cir.2005). 1149, 1156 Ohio, tentions in Terry set forth F.3d 88 S.Ct. ... L.Ed.2d 889 analysis “The touchstone оur under (1968). To determine the reasonable- always the Fourth Amendment investigative detention, ness of an in all the reasonableness circumstances make a dual inquiry, asking first particular invasion of a citizen’s “whether the officer’s justi- action was security. Reasonableness, of personal inception,” fied its and second “wheth- course, on depends a balance between reasonably er it was related in scope to public interest and the individual’s the circumstances justified which in- right personal security free from arbi- terference in the place.” first trary interference law officers.” Bradford, 423 (quoting Terry, Holt, United States v. 1868). U.S. at S.Ct. banc) (reh’g en (quoting challenge does not the validity of Mimms, Pennsylvania v. 434 U.S. Rаther, the initial traffic argues (1977) 108-09, 330, 54 98 S.Ct. L.Ed.2d 331 that the unlawfully prolonged curiam)). (per stop beyond justified reasons that is no question There “[a] stop in place.5 the first within meaning ‘seizure’ In the course a routine traffic Amendment, though the Fourth ‘even stop, purpose is limited and the may request a driver’s ” resulting quite detention brief.’ Brad- vehicle and other required ford, (quoting 423 F.3d at 1156 Delaware papers, necessary computer checks, run Prouse, 648, 653, v. S.Ct. any warning and then issue or citation. (1979)). 59 L.Ed.2d 660 is a Nor Once those tasks are a completed, driver question trooper that the seized be to proceed way must allowed on his Guerrero, passenger, along the with the unless reasonable suspicion exists that driver, when pulled the the mini- engaged driver aсtivity is in criminal van for speeding. over See United States or the driver consents additional Erwin, 875 F.2d questioning. seized, (recognizing passenger is also for (citation Gregoire, 425 F.3d at 879 omit Fourth purposes, Amendment when driver “[Ojnce ted). purpose is stop riding pulled car which he is is over underlying satisfied reasonable stop). a traffic suspicion dispelled, the driver’s detention Because “a routine traffic is stop generally delay.” must end without undue analogous more an investigative Edgerton, deten United States v. 438 F.3d arrest,” (10th Cir.2006). tion than a it governed custodial is In this by the not Government does assert that the state court, argument, denying oral suppres- Government ar- district gued motion, failed raise this specifically sion found that "the en- objection suppression in his motion. But that Trooper counter after Peech returned clearly argued not case. be- registration driver’s license and to Mr. fore district court that this traffic envelope pure- and the to Mr. [Guerrero] was not evolve into a consensual encounter be- this, ly light consensual.” In we are satis- tween Guerrero and Peech because preserved fied adequately that Guerrero person under circumstances issue for review. not would have felt free to leave. And the questioning, additional tarily consents to suspicion had reasonable seizure Fourth Amendment activity, apart speeding, from suf no further

criminal stop beyond investi A traffic prolong the or detention occurs. ficient to offense, encounter, requir- but instead gation of the a consensual become ad consented argues officer suspicion, no reasonable ing court questioning. district ditional license and returns the finding, howev true. That found that was con- questions without asks er, Gregoire, See clearly erroneous. straining by overbearing an the driver (reviewing district authority. A consensual en- show mo of whether a detained finding court’s voluntary cooperation of a is the counter questioning to additional torist consented response to non-coer- private citizen in error); prolonged for clear or detention questioning by a law enforcement cive Taverna, also United Statеs see an can officer. encounter Whether (10th Cir.2003). depends on whether deemed consensual conveyed police conduct would simply “A encounter is consensual that ‍‌​​​​‌‌​‌‌‌​‌‌​‌​​‌‌‌​​‌​​​‌‌‌‌‌​​​‌​​​‌‌‌​‌​‌​​‍he or she person to a reasonable voluntary private of a citi cooperation officer’s re- was not free to decline the response question to non-coercive zen quests or the en- otherwise terminate by law official.” United ing enforcement required An officer is not counter. Patten, 183 F.3d suspect does not have omitted). “seizure,” inform she A (quotation that she contrast, respond to his or an individual occurs when An unlawful objective that he is free to leave. detention “has an reason believe terminate his conversation an free to occurs when the driver has ob- way.” proceed officer and on his jective with the is not to believe he she reason can Id. “A detention for a traffic citation the conversation with the free end after the turn into a consensual encounter proceed officer and on his or her own the driver his docu has returned way. long person so as a reasonable mentation (citations, Bradford, quo- 423 F.3d at 1158 believe under the circumstances would omitted). “The bears government tations disregard or was free to leave officer’s proving voluntary of consent burden request information.”6 United totality on the the circumstances.” based (10th Wallace, 969, 429 974-75 v. F.3d 425 F.3d at 879. Gregoire, Cir.2005) omitted). (quotation the bright-line court “follow[s] This and a If an encounter between an officer by a traffic that an encounter initiated a and be- rule driver ceases to be detention consensual, unless stop volun- not be deemed consensual comes and the driver Cir.2005) 969, (10th (same). Supreme F.3d 974 In light 6. In Court’s decision in 429 case, however, Mena, 93, 1465, dispute there is no U.S. S.Ct. this Muehler v. 544 125 (2005), stop already ended trooper validly a had before 161 299 can L.Ed.2d stop Guerrero whether there were questions a lawful traffic asked ask Therefore, any illegal drugs in the minivan. See United States v. are unrelated to az-Arellano, 1252, (10th complet questions asked after he 441 F.3d 1258 Alcar Mena, prolonged (holding, light stop Guerrero's de that as ed the traffic reason, not con long For this Mena does officer’s does not extend tention. Mena, detention, this 544 length the resolution of case. no Fourth trol traffic Cf. (noting challenged questioning at regarding content 101 Amendment issue detention). Wallace, questions); v. that case did not extend time United States officer’s

1309 case, testified, documents have been returned driver’s Peech found, Bradford, F.3d at 1158 and the to her.”7 district court traf- omitted; emphasis alteration fic (quotation, stop ended after the trooper returned Wallace, added); license, Cipres’s see at gave also F.3d 974- driver’s him the warning of a driver’s opened 75. “The return documenta- car patrol door so not, howevеr, always to Ciprés get tion is sufficient patrol out car and that an encounter has become return to the demonstrate minivan. cir- Under these cumstances, Bradford, 423 F.3d at 1158. arguably consensual.” a person reasonable “The issue is whether enforce- in Cipres’s position might [then] law have believed he perceived ment conduct as a reasonable was free to Bradford, leave. See 423 F.3d person person would communicate that the at 1159. But there is no that a evidence was not free decline law enforcement person position requests or Gregoire, end the encounter.” would have believed he was free to leave.8 879; Bradford, F.3d see also 423 While the already returnеd F.3d at 1158. driver’s completed license and had Cline, 1276, stop, 7. a "routine traffic an officer’s v. 349 F.3d signif of a (holding retention defendant’s documents voluntarily driver consented to defendant, it icant because indicates that the search after officer returned driver's license rule, reasonably general as a feel free go); and told driver he was free to United and, therefore, terminate the encounter 884, 881, Manjarrez, States v. 348 F.3d 885-86 government rely cannot on the defendant's (10th Cir.2003) (holding officer's encounter detention, justify question with driver became consensual after officer Burch, ing, search.” United.States warning returned driver's issued 1998). Therefore, F.3d Cir. Taverna, they “through”); told driver were "determining although whether an officer аnd (holding stop F.3d at 878-79 traffic engaged driver are ain consensual encounter became consensual encounter after officer re typically requires court to focus on documentation, turned driver's issued warn totality particular of the circumstances in a ing, get and allowed driver to out of consistently applied circuit has car); Bustillos-Munoz, United States bright-line least one rule: an officer must (10th Cir.2000) (holding 514-15 return driver's documentation before the traffic became consensual encounter af Mendez, detention can end.” United States v. regis ter officer returned license and vehicle (10th Cir.1997). 118 F.3d tration to driver and informed driver he was West, leave); free to United States addressing In our cases when а de traffic (10th Cir.2000) (holding 1176-77 tention concludes and whether or not and driver between officer became con encounter, stop turns into consensual sensual encounter after officer returned driv usually ask whether the driver consented warning); er’s documentation and issued extending the detention in order answer Ozbirn, 1194, United 189 F.3d See, Wallace, e.g., questions. the officer's (10th Cir.1999) (holding, e.g., driver consent where, (addressing F.3d at 974-75 situation questions ed to answer additional after officer ended, after traffic driver consented to stop by issuing warning). completed traffic answering questions officer’s of to search cases, In those the driver is of aware course vehicle); 874-75, Gregoire, 425 F.3d at already that the officer has returnеd his li (holding ques consented to driver additional warning cense and issued a or ticket. Those tioning warning); after officer issued Brad cases, however, dispositive are not is ford, the (holding F.3d 1158-59 driver presents, sue voluntarily this case where we are con questions to af consented further documentation); passenger/vehicle trooper cerned with the owner ter returned driver's ques Rosborough, United States v. Guerrero's consent to answer additional 366 F.3d tions, (10th Cir.2004) (holding trooper, the 1148-49 driver vol after unbeknownst Guerrero, untarily stop by the consented to search of has concluded traffic his vehicle license, regis returning giving after officer returned driver’s the driver's license and the warning); warning. tration and issued a a United States driver felt not have position would no evi- Guerrero’s warning, there is writing Ciprés to answer that time decline free at knew that. Those that Guerrero dence and instead leave. car, questions trooper’s patrol in the had all occurred events Yet, Trooper Peech had concluded had because Guerrero presence; out of Guerrero’s Guerrero, stop, unbeknownst throughout in the minivan remained lawfully longer no detain could trooper Certainly could see Guerrero to answer decision eventually Guerrero. Guerrero’s allowed Peech Trooper that questions, car, additional after Peech’s Ciprés out of get therefore, be considered consent cannot trooper spoken had with Guerrero rather, it stop; prolong Ciprés But the van’s insurance. about instead, unlawful detention. van; product Guerrero’s it would not return to person in to a reasonable appeared any ob general rule evidence “[A]s trooper that de- position Guerrero’s unlawful] deten as a result of [an tained further, at the back Ciprés this time tained poi as fruit tion must be excluded van, asking questions. further him Santana- tree.” United States v. sonous to this Although Ciprés consented (10th Garcia, 264 F.3d Cir. no is evidence questioning, there Elliott, 2001); States v. see also United of that. And when was aware (10th Cir.1997) (holding F.3d approached then Trooper Peech ends, and a traffic absent that after Ciprés questions, ask him further also to voluntary suspicion or consent reasonable standing of the van. back remained “any questioning, evidence to additional that he had Although trooper testified (or a result from that derived mini- outside the not told remain search) impermissibly tainted ing is and, con- far as the van terms”) (quotation Amendment Fourth cerned, have returned to the Ciprés could Maestas, omitted); United States time, no any again is evidence van at there that, (noting that, either. was aware of that Guerrero search, “the despite defendant’s consent resulting from the evidence obtained person What if the that, might excludable as the search have known is position would detention”). owner, illegal an had to was obtained been unаble minivan’s argue not that there does any Government provide Trooper proof Peech with why particular case any reason given the minivan and he had insurance for apply. rule should not See general only what can be described as Walker, 933 why generally United States story about fairly lame (noting an 817-18 any proof of insurance. produce still unlawfully defendant could pre- detained fact that the Despite the search, if that con voluntarily consent to viously returned the van’s from unlawful purged taint Guerrero, from which sent was no evidence detention; that it is noting, have believed Guerrero could the burden in- Government who bears with Guerrero’s trooper was satisfied consent). The So, proving voluntariness story. as far as Guerrero surance therefore, court, denying erred knew, yet ended. district stop had not suppress.9 person in Guerrero’s motion to a reasonable point, More to the Edgerton, 438 See suppression ro's motion. ‍‌​​​​‌‌​‌‌‌​‌‌​‌​​‌‌‌​​‌​​​‌‌‌‌‌​​​‌​​​‌‌‌​‌​‌​​‍not assert alter- 9. The does Government (declining to address whether grounds affirm F.3d 1051 on which this court could nate suspicion that would deny decision to Guerre- the district court's

1311 product IV. CONCLUSION coercion or Ac intimidation. (1) cordingly, since the stop traffic reasons, the foregoing For we RE ended, (2) consent had freely been MAND this case with directions (3) given, then search the car was district court to VACATE Guerrero’s lawful. 05-8031, drug three convictions.10 United spinoza. precedent States v. Guerrero-E Our is well settled that a stop may “traffic become a en- consensual TYMKOVICH, Judge, Circuit counter, requiring no reasonable suspicion, dissenting. if the officer returns regis- the license and tration.” United consistently Bradford, have States v. 423 applied “bright-

We (10th 1149, Cir.2005). F.3d 1158 requests line” rule to for The “vol- search untary cooperation of a private traffic citizen in encounters. Consent response to non-coercive questioning” is a properly obtained under our cases mainstay of routine encounters between after a has ended and the police and the public, and should en- See, e.g., driver is free to leave. United couraged. (10th Id. After a Holt, has States v. 264 F.3d 1215 Cir. ended, when 2001). voluntarily a “driver consents Today’s holding out an carves ex to additional questioning, no further ception to that for passengers, rule s Fourth Amendment seizure detention expectation instead looks to the of the occurs.” Id. at 1159. “objective passenger.” IWhile have some reservations about the merits of the itself, the traffic stop we have rule, bright-line see United v. States Wil previously limited police questioning to son, (10th Fed.Appx. 96 640 inquiries routine into car ownership, travel J., (Tymkovich, concurring), it is the law plans, possession of loaded weapons. today.1 the Circuit and is not at issue Holt, 1156; Id. at 264 at 1221-22. In F.3d view, my precedent requires our us to application a recent principles, of these apply bright-line rule to the faсts of however, recognized we questioning The traffic stop case. ended when the “regardless topic” pro- that does “not officer li returned Mr. driver’s long the [during] detention the license him with warning permitted cense to longer check” is no off limits. United him to return car. Neither Mr. Alcaraz-Arellano, 1252, v. 441 nor Mr. Guerrero were detained 1259 (applying Muehler that point. nothing Mena, 93, And in the 1465, record 544 U.S. S.Ct. suggests subsequent their (2005)); consent to addi L.Ed.2d 299 United States v. Wal- lace, Cir.2005). tional questioning and the search was the justified extending My a detention where 1. reservations with Holt are three-fold: (1) Government did not make that alternative de it bars even re- minimis non-coercive consent; argument). (2) quests arbitrary for an it creates consent) cаtegory questioning (requests Government, limits, course, per- are pur- off but free to allows prosecution taining plans weap- sue its without travel concealed ons; (3) suppressed Supreme evidence. But on the it conflicts Court's based rec- with the court, totality appear likely approach. ord it See before does not circumstances Mena, the Government would Muehler U.S. 125 S.Ct. choose do so. reason, Robinette, (2005); remaining argu- For that Guerrero's 161 L.Ed.2d Ohio appear ments to be moot and so decline S.Ct. L.Ed.2d (1996). them at address this time. Thus, az-Arellano. If the traffic encounter has that has a de questioning routine passenger traf- not as the is con- affect on duration of the ended so fаr minimis the maintains, cerned, stop permissible. majority any fic now “not questioning prolong that does de- majority opinion The conflicts with these “regardless top- permissible tention” is First, principles. applying our cases (applying Muehler v. ic.” F.3d at naturally look to bright-line approach 1471-72). Mena, Accordingly, at 125 S.Ct. Amendment interests. driver’s Fourth if Mr. was unaware of the even controls the vehi- ordinarily The driver return Mr. driver’s go, free to cle—when the driver is subject ques- still be to consensual go. is free to See United States passenger tioning. questioning The additional Erwin, objec- any detention —in (“Drivers prolong the in- passengers have similar pas- driver tive sense—because both in ... seizure [the] terests unreasonable [context].”). go. majority free to The opinion senger were majority unnec- agrees stop an that the traffic ended before essarily introduces a new element to questioned, of the encounter— Mr. was but then officer’s assessment that the traffic passenger questioning does the know concludes that the officer’s passen- stop has ended? To extent “prolonged (Op. the detention.” at 1308 n. bright-line pre- 6). benefits from our rule ger squared This conclusion cannot during requests venting lawful for consent Supreme applicable with Tenth Circuit detention, similarly the officer the driver’s precedent.3 Court from the rule once the traf- should benefit Finally, promote coop- our cases should agrees to fic hаs If the driver ended. Ab- police eration between citizens. questioning additional the conclusion force, good is no sent a show of stop, the con- a traffic encounter becomes layer complexity reason add another passen- as to both the driver and sensual stop ju- to our Fourth Amendment traffic to add to the ger. It make little sense risprudence, like especially cases “objective passen- calculus a new officer’s one court found consent where district ger” consideration. questioning to additional and the search ended, In the traffic after In passenger. both the driver and the (1) Ciprés Mr. consented to additional event, why I fail to the Fourth Amend- see (2) to questioning, speaking the officer barring ment would compel per se rule Mr. The officer was de- Guerrero. course consent obtained taining Ciprés Mr. nor Mr. Guerre- neither routine traffic encounter. subsequent ro at that time and the search was consensual.2 standards, Applying our error several (1)

Second, majority rule conclusions follow: traffic encoun- opinion’s new parties ter for all when the officer conflicts with our recent decision Alcar- ended Alearaz-Arellano, case It 3. Under would be makes no difference Mr. Guerrero owned the car. The detention ended when Guerrero if even clearer as Mr. released; Ciprés Mr. Mr. and Mr. sought had been while the officer was com- questioning to further Guеrrero consented pleting paperwork routine associated with despite fact free that time that both were addition, nothing suggests leave. detaining Mr. officer regarding proof of insurance after the car's had been returned.

1313 Cipres’s Mr. driver’s license with PER CURIAM: returned (2) Mr. warning; Clarence E. Hill ais Florida death row (3) questioning voluntary; additional 20, 2006, January inmate. On Hill brought not our Mr. Guerrero was detained under enjoin § suit under U.S.C. 1983 to bright-line rule and his consent was volun- State Florida from carrying out his (4) tary, and even Mr. Guerrero was injection execution lethal on January according objective passen- detained to an alleged 2006. He that the State’s exe- standard, ger the additional procedure cution constituted cruel and un- ‍‌​​​​‌‌​‌‌‌​‌‌​‌​​‌‌‌​​‌​​​‌‌‌‌‌​​​‌​​​‌‌‌​‌​‌​​‍did not the encounter and was prolong usual punishment under Eighth permissible. Fourteenth Amendments because the first injected, drug to be pentothal, sodium uphold I would therefore the search un- would not suffice as an anesthetic to ren- totality der the of the circumstances. painless der administration the sec- drugs ond and third that would cause his is, death. That he could remain conscious pain suffer severe drug the second paralyzed lungs and the third drug caused cramping and fatal heart attack. court, The district on relying our deci sion in v. Crosby, Robinson 358 F.3d 1281 HILL, Plaintiff-Appellant, E. Clarence (11th Cir.2004), concluded that Hill’s § 1983 claim equivalent functional petition successive for a writ of habeas McDONOUGH, Crist, corpus, which this court not James Charlie authorized file, him

Defendants-Appellees. 2244(b)(3)(A), § see 28 U.S.C. and therefore dismissed the claim lack No. 06-10621. jurisdiction. We affirmed. Hill v. Crosby, 437 F.3d Cir. Appeals, United States Court of 2006). Eleventh Circuit. petitioned Supreme Hill Court for a granted writ of certiorari. The Aug. Court stayed pending

writ and his execution its resolution of the case. Hill Crosby, Doss, P.A., Doss, D. D. Todd Todd Lake -, 1189, 1190, U.S. 126 S.Ct. FL, City, for Hill. (2006)(mem). Following L.Ed.2d oral argument, Court held that Hill’s § claim proceed, our vacated judgment, and fur- remanded the case for ther proceedings. McDonough, Hill -, 2102-04, 126 S.Ct. (2006). Since, L.Ed.2d as the Supreme observed, equities Court and the “[t]he underlying merits of Hill’s action” EDMONDSON, determined, Before Judge, Chief been id. at and because PRYOR, and TJOFLAT and appropriate Circuit the district court is the forum Judges. determination, for such we vacate

Case Details

Case Name: United States v. Guerrero-Espinoza

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Sep 15, 2006

Citation: 462 F.3d 1302

Docket Number: 05-8031

Court Abbreviation: 10th Cir.