Lead Opinion
In this dirеct criminal appeal, Defendant-Appellant Antonio Guerrero-Espinoza (“Guerrero”) asserts that the district court erred in denying his motion to suppress illegal drugs discovered in his minivan by a Wyoming state trooper during a traffic stop. At the time the trooper stopped the minivan for speeding, Guerrero, the minivan’s registered owner, was riding as a passenger and another individual was driving. The trooper took the driver to the trooper’s patrol car and eventually completed the traffic stop when he returned the driver’s license, issued the driver a warning, and let him out of the
I. BACKGROUND.
A jury convicted Guerrero of three drug charges: possessing 1) more than 500 grams of cocaine and 2) approximately twenty pounds of marijuana, with the intent to distribute both, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and (D); and 3) conspiring to possess those amounts of cocaine and marijuana, with the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and (D), 846.
On appeal, Guerrero argues the district court 1) erred in denying his motion to suppress the state trooper’s discovery of the drugs; 2) denied Guerrero his Sixth Amendment right to confront witnesses when the court allowed the Government to present hearsay evidence of statements the van’s driver and Guerrero’s wife made during the traffic stop, and between Guerrero and his wife; and 3) abused its discretion in permitting a state trooper to testify to a recorded conversation between Guerrero and his wife that occurred in the back of a patrol car. Guerrero further argues that 4) the statutory mandatory minimum sentence that applied to two of his convictions was unconstitutional. Because we conclude the district court erred in denying Guerrero’s motion to suppress, we do not address Guerrero’s other issuеs. Having jurisdiction to consider this appeal under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, therefore, we REMAND this case to the district court with instructions to VACATE Guerrero’s convictions.
“When reviewing a district court’s denial of a motion to suppress, we view the evidence in the light most favorable to the government, accepting the district court’s factual findings unless clearly erroneous. Fourth amendment reasonableness is reviewed de novo.” United States v. Gregoire,
III. DISCUSSION
A. Relevant Facts.
Viewing the evidence
The trooper stopped the van at 8:06 a.m. He approached the driver, Ciprés, and asked for his driver’s license, the vehicle’s registration, and proof of insurance. Because Ciprés did not speak English very well, the trooper spoke to Ciprés in Spanish. Ciprés produced a California driver’s license.
At this same time, Guerrero, the minivan’s owner who was sitting in the front passenger seat, was going through a stack of papers he had retrieved from the glove box, apparently looking for the vehicle’s registration. The trooper offered to help Guerrero find the registration and Guerrero agreed, handing Trooper Peech this entire stack of papers. The trooper took the stack of papers back to his patrol car, accompanied by Ciprés.
While sitting in his patrol car with Ciprés, the trooper wrote Ciprés a warning for sрeeding. The trooper also eventually located the vehicle’s registration in the stack of documents Guerrero had given him — the van was registered in Mississippi to Guerrero. The trooper, however, was unable to locate any indication that the minivan was insured. Trooper Peech gave Ciprés the warning and handed him back his driver’s license, but indicated to Ciprés that the trooper had to speak further with Guerrero about the vehicle’s insurance. Ciprés remained in the patrol car. Trooper Peech testified that Ciprés was not free to leave the patrol car at that time.
Leaving Ciprés in the patrol car, Trooрer Peech went to the passenger side of the minivan to verify with Guerrero that he was the van’s owner and to ask him about the van’s insurance. This occurred at 8:16 a.m. The trooper spoke with Guerrero in both Spanish and English after Guerrero indicated that he could speak English pretty well. Guerrero acknowledged that he owned the van and told the trooper that: he had been in Mexico for the past three months; during that time he had left the van with his brother; and the brother was supposed to pay the insurance on the van.
Trooper Peech gave Guerrero back the stack of papers taken from the minivan’s glove comрartment, including the vehicle’s registration, and then returned to his patrol car. There, he opened the door of the patrol car to allow Ciprés to exit the vehicle. Although Trooper Peech did not tell Ciprés he was free to drive away, the trooper deemed the traffic stop to be over at this point. As Ciprés got out of the patrol car and started walking toward the minivan, however, Trooper Peech “recontacted” Ciprés and asked him if the trooper could ask him some more questions. Ciprés agreed. Trooper Peech then inquired about Cipres’s travel plans and his relationship to Guerrero. This conversation occurred on the side of the highway while the two men were standing between the van and the patrol car. Trooper Peech then asked Ciprés if the trooper could speak to Guerrero again. Ciprés agreed. Trooper Peech returned to the van’s front passenger area to speak with Guerrero. Although the trooper testified that Ciprés was free to get back into the minivan at this time, Ciprés did not do so, but instead remained standing on the side of the highway, at the back of the van, during Trooper Peech’s conversation with Guerrero.
According to the state trooper, Guerrero “pretty much” agreed that the troоper could ask him some more questions. Trooper Peech first questioned Guerrero about his travel plans, and then asked Guerrero if he had any guns or illegal drugs in the vehicle. Guerrero answered that he did not. The trooper asked Guerrero twice, in both Spanish and English, if the trooper could search the van. Guerrero twice replied that the trooper could search. Trooper Peech then went back to Ciprés, who was still standing at the back of the van. He asked Ciprés if he had anything in the car, and Ciprés indicated that he had a suitcase. Trooper Peech asked if he could search Cipres’s suitcase, and Ciprés agrеed. Trooper Peech then asked Guerrero, Ciprés, and Guerrero’s wife, Hernandez, to stand outside the van while he searched.
The first place Trooper Peech searched was the undercarriage of the van, where he noticed “tooling” marks — marks indicating tools had been used on the bolts and screws — as well as other apparent alterations on and near the gas tank. The trooper then called for a drug-sniffing dog. He also went inside the van, where he located what appeared to be an access point to the gas tank. While he was doing this, Ciprés, Guerrero, and Hernandez approached the van. Trooper Peech asked them to get back, and then asked again if he could continue searching. Guerrero said yes.
Two additional troopers arrived, one with a drug-sniffing dog. Trooper Peech asked Guerrero if the dog could search the van. Guerrero eventually agreed. The dog positively alerted to the presence of drugs. The troopers then renewed their search efforts, discovering a hidden compartment in the gas tank. In that compartment the troopers discovered several wrapped packages of marijuana and cocaine.
B. Legal Analysis.
“The Fourth Amendment protects the right of the рeople to be secure in their persons, houses, papers, and effects, against unreasonable searches and sei
“The touchstone of our analysis under the Fourth Amendment is always the reasonableness in all the circumstances of the particular invasion of a citizen’s personal security. Reasonableness, of course, depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.”
United States v. Holt,
There is no question that “[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.’ ” Bradford,
Because “a routine traffic stop is more analogous to an investigative detention than a custodial arrest,” it is governed by the
principles developed for investigative detentions set forth in Terry v. Ohio,392 U.S. 1 ,88 S.Ct. 1868 ,20 L.Ed.2d 889 ... (1968). To determine the reasonableness of an investigative detention, we make a dual inquiry, asking first “whether the officer’s action was justified at its inception,” and second “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.”
Bradford,
In the course of a routine traffic stop,
a trooper may request a driver’s license, vehicle registration and other required papers, run necessary computer checks, and then issue any warning or citation. Once those tasks are completed, a driver must be allowed tо proceed on his way unless reasonable suspicion exists that the driver is engaged in criminal activity or the driver consents to additional questioning.
Gregoire,
“A consensual encounter is simply the voluntary cooperation of a private citizen in response to non-coercive questioning by a law enforcement official.” United States v. Patten,
If an encounter between an officer and a driver ceases to be a detention and becomes consensual, and the driver voluntarily consents to additional questioning, no further Fourth Amendment seizure or detention occurs. A traffic stop may become a consensual encounter, requiring no reasonable suspicion, if the officer returns the license and registration and asks questions without further constraining the driver by an overbearing show of authority. A consensual encounter is the voluntary cooperation of a private citizen in response to non-coercive questioning by a law enforcement officer. Whether an encounter can be deemed consensual depends on whether the police conduct would have conveyed to a reasonable person that he or she was not free to decline the officer’s requests or otherwise terminate the encounter. An officer is not required to inform a suspect that she does not have to respond to his questioning or that she is free to leave. An unlawful detention occurs only when the driver has an objective reason to believe he or she is not free to end the conversation with the officer and proceed on his or her own way.
Bradford,
This court “follow[s] the bright-line rule that an encounter initiated by a traffic stop may not be deemed consensual unless
In this case, Trooper Peech testified, and the district court found, that the traffic stop ended after the trooper returned Cipres’s driver’s license, gave him the warning and opened the patrol car door so Ciprés could get out of the patrol car and return to the minivan. Under these circumstances, arguably a reasonable person in Cipres’s position might have believed he was free to leave. See Bradford,
What a reasonable person in Guerrero’s position would have known is that, as the minivan’s owner, he had been unable to provide Trooper Peech with any proof of insurance for the minivan and he had given the trooper only what can be described as a fairly lame story about why Guerrero could not produce any proof of insurance. Despite the fact that the trooper had previously returned the van’s registration to Guerrero, there is no evidence from which Guerrero could have believed that the trooper was satisfied with Guerrero’s insurance story. So, as far as Guerrero knew, the traffic stop had not yet ended. More to the point, a reasonable person in Guerrero’s position would not have felt free at that time to decline to answer the trooрer’s questions and instead leave. Yet, because Trooper Peech had concluded the traffic stop, unbeknownst to Guerrero, the trooper could no longer lawfully detain Guerrero. Guerrero’s decision to answer Trooper Peech’s additional questions, therefore, cannot be considered consent to prolong the traffic stop; rather, it was the product of Guerrero’s unlawful detention.
“[A]s a general rule any evidence obtained as a result of [an unlawful] detention must be excluded as fruit of the poisonous tree.” United States v. Santana-Garcia,
For the foregoing reasons, we REMAND this case with directions to the district court to VACATE Guerrero’s three drug convictions.
Notes
. 21 U.S.C. § 841(a)(1) provides that "it shall be unlawful for any person knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” And 21 U.S.C. § 841(b)(1), in relevant part, provides the following penalties: "In the case of a violation of subsection (a) of this section involving ... 500 grams or more of ... cocaine ... such person shall be sentenced to a term of imprisonment which may nоt be less than 5 and not more than 40 years.” Id. § 841(b)(1)(B)(ii)(II). "In the case of less than 50 kilograms of marihuana, ... such person shall ... be sentenced to a term of imprisonment of not more than 5 years....” Id. § 841(b)(1)(D). Further, 21 U.S.C. § 846 provides that "[a]ny person who attempts to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.”
. We GRANT Guerrero's motion to supplement the record to include the videotape of the traffic stop.
. During the suppression hearing, Guerrero is frequently referred to as Jose Ortego Morеno.
. Wyoming requires motorists to have liability coverage. See Wyo. Stat. § 31-4 — 103(a). This statute, however, does not apply if a nonresident’s vehicle is registered in another state and the vehicle is insured in accordance with that state's requirements. See id.
. During oral argument, the Government argued that Guerrero had failed to raise this objection in his suppression motion. But that is not the case. Guerrero clearly argued before the district court that this traffic stop did not evolve into a consensual encounter between Guerrero and Trooper Peech because under the circumstances a reasonable person would not have felt free to leave. And the district court, in denying Guerrero’s suppression motion, specifically found that "the encounter after Trooper Peech returned the driver’s license and registration to Mr. Ciprés and the envelope to Mr. [Guerrero] was purely consensual.” In light of this, we are satisfied that Guerrero adequately preserved this issue for review.
. In light of the Supreme Court’s decision in Muehler v. Mena,
. During a "routine traffic stop, an officer’s retention of a defendant’s documents is significant because it indicates that the defendant, as a general rule, did not reasonably feel free to terminate the encounter and, therefore, the government cannot rely on the defendant's consent to justify further detention, questioning, or a search.” United. States v. Burch,
. In our cases addressing when a traffic detention concludes and whether or not a traffic stop turns into a consensual encounter, we usually ask whether the driver consented to extending the detention in order to answer the officer's questions. See, e.g., Wallace,
. The Government does not assert any alternate grounds on which this court could affirm the district court's decision to deny Guerrero's suppression motion. See Edgerton,
. The Government, of course, is free to pursue its prosecution of Guerrero without the suppressed evidence. But based on the record before this court, it does not appear likely that the Government would choose to do so. For that reason, Guerrero's remaining arguments appear to be moot and so we decline to address them at this time.
Dissenting Opinion
dissenting.
We have consistently applied a “bright-line” rule to requests for consent to search during traffic encounters. Consent is properly obtained under our cases only after a traffic stop has ended and the driver is free to leave. See, e.g., United States v. Holt,
Our precedent is well settled that a “traffic stop may become a consensual encounter, requiring no reasonable suspicion, if the officer returns the license and registration.” United States v. Bradford,
During the traffic stop itself, we have previously limited police questioning to routine inquiries into car ownership, travel plans, and possession of loaded weapons. Id. at 1156; Holt,
The majority opinion conflicts with these principles. First, our cases applying the bright-line approach naturally look to the driver’s Fourth Amendment interests. The driver ordinarily controls the vehicle — when the driver is free to go, the passenger is free to go. See United States v. Erwin,
In this case, after the traffic stop ended, Mr. Ciprés consented (1) to additional questioning, and (2) to the officer speaking with Mr. Guerrero. The officer was detaining neither Mr. Ciprés nor Mr. Guerrero at that time and the subsequent search was consensual.
Second, the majority opinion’s new rule conflicts with our recent decision in Alcar-az-Arellano. If the traffic encounter has not ended so far as the passenger is concerned, as the majority maintains, any questioning that does “not prolong the detention” is permissible “regardless of topic.”
Finally, our cases should promotе cooperation between police and citizens. Absent a show of force, there is no good reason to add another layer of complexity to our Fourth Amendment traffic stop jurisprudence, especially in cases like this one where the district court found consent to additional questioning and the search by both the driver and the passenger. In any event, I fail to see why the Fourth Amendment would compel a per se rule barring consent obtained during the course of a routine traffic encounter.
Applying our error standards, several conclusions follow: (1) the traffic encounter ended for all parties when the officer
I would therefore uphold the search under the totality of the circumstances.
. My reservations with Holt are three-fold: (1) it bars even de minimis non-coercive requests for consent; (2) it creates an arbitrary category of questioning (requests for consent) that are off limits, but allows questioning pertaining to travel plans and concealed weapons; (3) it conflicts with the Supreme Court's totality of the circumstances approach. See Muehler v. Mena,
. It makes no difference that Mr. Guerrero owned the car. The detention ended when Mr. Ciprés was released; Mr. Ciprés and Mr. Guerrero consented to further questioning at that time despite the fact that both were free to leave. In addition, nothing suggests the officer was detaining Mr. Guerrero for further questioning regarding his proof of insurance after the car's registration had been returned.
. Under Alearaz-Arellano, the case would be even clearer as to Mr. Guerrero if consent had been sought while the officer was completing the routine paperwork associated with the traffic stop.