Petition for Writ of Certiorari — Jesus Gomez-Arzate, Petitioner v. United States
Supreme Court briefMar 26, 2021
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APPENDIX
APPENDIX
TABLE OF CONTENTS
Appendix A Opinion in the United States Court of Appeals for the Tenth
Circuit
(December 2, 2020). ......................................................................... App. 1
Appendix B Judgment in a Criminal Case in the United States District Court
District of New Mexico
(July 24, 2019) ............................................................................... App. 24
Appendix C Memorandum Opinion and Order Denying Defendants’ Motion to
Suppress in the United States District Court for the District of
New Mexico
(January 4, 2019)............................................................................ App. 30
Appendix D Order Denying Rehearing in the United States Court of Appeals
for the Tenth Circuit
(December 29, 2020) ....................................................................... App. 56
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PUBLISH
FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 2, 2020
FOR THE TENTH CIRCUIT
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 19-2119
v.
JESUS GOMEZ-ARZATE,
Defendant - Appellant.
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 19-2121
v.
GUILLERMO MARTINEZ-TORRES,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. Nos. 1:18-CR-01960-WJ-2 and 1:18-CR-01960-WJ-1)
_________________________________
Sylvia Baiz, Assistant Federal Public Defender, Albuquerque, New Mexico, for
Defendant-Appellant Martinez-Torres; and Michael Garey, Santa Ana, California for
Defendant-Appellant Gomez-Arzate.
Nicholas Ganjei, Assistant United States Attorney (and John C. Anderson, United States
Attorney, on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.
_________________________________
Before LUCERO, KELLY, and BACHARACH, Circuit Judges.
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_________________________________
KELLY, Circuit Judge.
_________________________________
Defendant-Appellants Guillermo Martinez-Torres and Jesus Gomez-Arzate
entered a conditional plea of guilty to conspiracy to possess with intent to distribute
methamphetamine, 21 U.S.C. § 846, 841(b)(1)(A), reserving a right to appeal the
district court’s denial of their motions to suppress physical evidence and statements
made during a traffic stop. See United States v. Martinez-Torres, No. 1:18-cr-1960
WJ-1, 2019 WL 113729 (D.N.M. Jan. 4, 2019). Each was sentenced to 63 months’
imprisonment and five years of supervised release. On appeal, they contend that
their initial traffic stop was invalid, the resulting detention was unlawfully extended
and without valid consent, and the deputies’ search of their car exceeded the scope of
consent.1 We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
Background
On the morning of May 17, 2018, defendants were driving their vehicle (a Kia
Soul) eastbound on I-40. Bernalillo County Sheriff’s Deputy Joshua Mora was
conducting routine traffic enforcement. He noticed the defendants’ vehicle swerving
within the right-hand lane and crossing over the white shoulder line twice. He also
noticed that the front driver’s side tire appeared to be angled or out of alignment.
We grant Mr. Gomez-Arzate’s unopposed motion to incorporate Mr.
Martinez-Torres’ arguments pursuant to Federal Rule of Appellate Procedure 28(i).
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After pulling the vehicle over and activating his audio recorder, Deputy Mora
approached the passenger side window where Mr. Gomez-Arzate was seated. He
immediately sensed a strong odor of air freshener. He attempted to explain to the
defendants why he pulled them over, but realized there would be difficulty in
communicating due to a language barrier. Upon request, Mr. Martinez-Torres
provided a California driver’s license, a Texas vehicle registration in the name of a
third party, and proof of insurance. Deputy Mora then asked Mr. Martinez-Torres to
exit the vehicle and join him on the passenger side.
About three minutes into the stop, Deputy Mora radioed Deputy Daniel
Mauricio for assistance in translating. While waiting for Deputy Mauricio, Deputy
Mora began filling out a warning citation. Mr. Martinez-Torres explained that the
misaligned tire was due to a previous accident, and he asked Deputy Mora if he
wanted to know the “motive of [their] trip.” 3 Aplt. Gomez-Arzate App. 335.
However, Deputy Mora told Mr. Martinez-Torres to hold off until Deputy Mauricio
arrived.
Approximately 10 minutes into the stop, Deputy Mauricio arrived and
explained to Mr. Martinez-Torres that Deputy Mora had seen the vehicle swerve and
there appeared to be a problem with the left front tire. Mr. Martinez-Torres
explained that a bent wheel was due to a previous accident.
The deputies then asked Mr. Martinez-Torres for permission to check the
vehicle’s VIN numbers and Mr. Martinez-Torres replied that it was “okay.” Id. at
339. This request occurred about 11 minutes into the stop and approximately one
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minute after Deputy Mauricio arrived. They also told Mr. Gomez-Arzate that they
were going to check the VIN numbers, and he also said “okay.” Id. at 340.
While checking the VIN numbers, Deputy Mauricio asked Mr. Gomez-Arzate
whether he could ask him some additional questions about his travel plans. Mr.
Gomez-Arzate said “[o]h, yes,” id. at 340–41, and told the deputies that he and Mr.
Martinez-Torres were traveling from California to Dalhart, Texas, then on to Dumas,
Texas, both near Amarillo. When asked who owned the vehicle, Mr. Gomez-Arzate
responded that it belonged to a man in Dumas, Texas who let them borrow it. They
were travelling from California to Texas, staying three or four days to make a house
habitable, and then returning with family.
About 15 minutes into the stop, the deputies told Mr. Martinez-Torres that
they were going to give him back his documents as well as a warning citation for
careless driving, N.M. Stat. § 66-8-114, and that he would not have to go to court or
pay anything. Mr. Martinez-Torres signed the citation approximately 16 minutes into
the stop.
As Mr. Martinez-Torres began walking back to his vehicle, Deputy Mora
yelled to him, “Guillermo!” Id. at 346. When he walked back, the deputies asked,
“do you understand you’re free to go? But we wanted to ask you some more
questions, if that’s okay.” Id. And again, “[d]o you – do you understand that you are
– you are free to go?” Id. Mr. Martinez-Torres responded “[y]es.” Id.
The deputies began asking him questions about their travel plans. Mr.
Martinez-Torres told the deputies that they were travelling from Santa Ana,
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California, to Amarillo, Texas. He and Mr. Gomez-Arzate were going for three or
four days to see a house and visit friends. But, Mr. Martinez-Torres said that he did
not know the name of the person they planned to visit. When asked who owned the
vehicle, Mr. Martinez-Torres said that it was Mr. Gomez-Arzate’s, and that they had
picked it up in Amarillo and driven to California.
The deputies then returned to the vehicle to talk to Mr. Gomez-Arzate. They
told him that they gave Mr. Martinez-Torres a warning and said, “we told him that
he’s free to go, and we’re going to ask you more questions. Do you understand
you’re free to go? But we wanted to ask you some more questions, if that’s fine with
you.” Id. at 353. Mr. Gomez-Arzate said that he understood and that it was no
problem. Mr. Gomez-Arzate proceeded to reiterate their travel plans: they were
going to Dumas, Dalhart, and Hartley, Texas, where there was a cattle ranch and they
planned to clean a house. He obtained the vehicle from the ranch when his truck
broke down. When asked the name of the owner of the vehicle, Mr. Gomez-Arzate
said that he did not know the owner’s name but knew the owner’s friend, whose
name was Jackie or Ezequiel.
The deputies turned back to Mr. Martinez-Torres and asked if he was
responsible for everything in the vehicle. He claimed responsibility for only his
clothes and bookbag. He denied having any drugs, weapons, or large bulk currency.
The deputies then asked if they could search the car, but Mr. Martinez-Torres’
response was inaudible on the recording.
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While Mr. Martinez-Torres waited, Mr. Gomez-Arzate claimed responsibility
for his bag and a cooler and also denied that the vehicle contained any drugs,
weapons, or large bulk currency. Finally, the deputies asked him, “[c]an we check
the car and your – your things?” Id. at 367. Mr. Gomez-Arzate responded, “[y]es,
you can check.” Id.
The deputies provided each of the men with a Spanish consent-to-search form,
which they signed. The deputies asked the men to stand about 25–50 yards away
while they searched the vehicle and told Mr. Martinez-Torres that he was free to call
his daughter. At this point the audio recording concluded, approximately 33 minutes
after the initial stop, and the deputies began their search of the car.
During the search, they noticed that the car’s fender was not flush, so they
removed it but later reattached it. One of the defendants even offered to assist with
reattaching the fender. The deputies also removed the air filter, but nothing else was
done to the engine. Finally, Deputy Mora noticed tooling marks on the right rear
quarter panel, so he pulled back the panel slightly and discovered a circular void. He
removed the panel and discovered two packages, wrapped in black tape. The
packages contained approximately seven pounds of methamphetamine. The entire
search of the vehicle lasted a total of 90 minutes.
Discussion
When reviewing a district court’s denial of a motion to suppress, we review
findings of fact for clear error, and view the evidence in the light most favorable to
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the government. United States v. Hernandez, 847 F.3d 1257, 1263 (10th Cir. 2017).
We review de novo the determination of whether the search and seizure were
reasonable under the Fourth Amendment. Id.
A. Fourth Amendment
We first consider whether the traffic stop was invalid, whether the stop was
unconstitutionally prolonged, and whether the deputies’ search of the car exceeded
the scope of consent. The Fourth Amendment provides: “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated . . . .” U.S. Const. amend. IV. A traffic stop
constitutes a “seizure” and “therefore must be conducted in accordance with the
Fourth Amendment.” Heien v. North Carolina, 574 U.S. 54, 60 (2014).
a. Initial Justification for the Traffic Stop
At the outset, Mr. Gomez-Arzate and Mr. Martinez-Torres argue that the initial
traffic stop was not justified, claiming that Deputy Mora did not have reasonable
suspicion to initiate the traffic stop. The district court concluded that, by swerving
within his lane and twice touching the solid white line, there was reasonable
suspicion that Mr. Martinez-Torres violated two driving laws: New Mexico Statutes
§ 66-7-317(A) (driving on roadways laned for traffic) and § 66-8-114 (careless
driving). Martinez-Torres, 2019 WL 113729, at *4–5. We agree that there was
reasonable suspicion that Mr. Martinez-Torres violated the roadways-laned-fortraffic statute, and we need not address the other.
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A traffic stop is reasonable if it is “justified at its inception and, in general, the
officer’s actions during the stop must be reasonably related in scope to the mission of
the stop itself.” United States v. Mayville, 955 F.3d 825, 829 (10th Cir. 2020)
(quoting United States v. Cone, 868 F.3d 1150, 1152 (10th Cir. 2017)). A traffic stop
is justified when the officer has “reasonable suspicion — that is, a particularized and
objective basis for suspecting the particular person stopped of breaking the law.”
Heien, 574 U.S. at 60.
New Mexico law provides that “a vehicle shall be driven as nearly as
practicable entirely within a single lane and shall not be moved from such lane until
the driver has first ascertained that such movement can be made with safety.” N.M.
Stat. Ann. § 66-7-317(A) (1978). Defendants contend that the initial stop was not
justified by reasonable suspicion because, even if the car had touched the solid white
line twice, Mr. Martinez-Torres had not violated § 66-7-317(A). In determining
whether a violation occurs, New Mexico courts have adopted a totality of the
circumstances approach that “takes into account whether there were any weather
conditions, road features, or other circumstances that could have affected or
interfered with a driver’s ability to keep his or her vehicle in a single lane.” State v.
Siqueiros-Valenzuela, 404 P.3d 782, 787 (N.M. Ct. App. 2017). Here, the district
court credited Deputy Mora’s account of the vehicle swerving and straddling the
solid white line two times. See Martinez-Torres, 2019 WL 113729, at *5. Given that
there were no additional circumstances — such as adverse weather conditions or
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obstructions in the road, id. — it was objectively reasonable for Deputy Mora to
conclude that Mr. Martinez-Torres violated § 66-7-317(A).
b. Deputies’ Conduct During the Traffic Stop
We turn next to the defendants’ argument that the deputies unreasonably
prolonged the detention by asking questions related to their travel plans and checking
the car’s VIN number. This argument turns on “whether the stop’s ‘manner of
execution unreasonably infringe[d]’ upon Defendant’s Fourth Amendment rights.”
United States v. Mayville, 955 F.3d 825, 829 (10th Cir. 2020) (alteration in original)
(quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005)).
The length of a traffic stop is analyzed in the context of the stop’s “mission,”
which covers “address[ing] the traffic violation that warranted the stop and
attend[ing] to related safety concerns.” Rodriguez v. United States, 575 U.S. 348,
354 (2015) (citation omitted). The deputies’ authority to seize the vehicle’s
occupants “ends when tasks tied to the traffic infraction are — or reasonably should
have been — completed.” Id. A traffic stop cannot be constitutionally prolonged
unless “(1) the seized individual consents or (2) the officer has independent
reasonable suspicion of criminal wrongdoing on behalf of the seized individual that
justifies further investigation.” United States v. Cortez, 965 F.3d 827, 833 (10th Cir.
2020).
A traffic stop’s “mission” includes determining whether to issue a ticket and
“ordinary inquiries incident to [the traffic] stop.” Rodriguez, 575 U.S. at 355. These
types of inquiries will include “checking the driver’s license, determining whether
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there are outstanding warrants against the driver, and inspecting the automobile’s
registration and proof of insurance.” Id. Furthermore, officers may take “negligibly
burdensome precautions” in order to ensure their own safety during the stop. Id. at
356. Merely because officers could have possibly performed their task more quickly,
does not, by itself, create a Fourth Amendment violation. Cortez, 965 F.3d at 837–
38.
The district court broke the traffic stop into three segments. Minutes 0 to 11
occurred when Deputy Mora pulled over the vehicle, radioed Deputy Mauricio, and
the officers explained to Mr. Martinez-Torres the reason he was pulled over. Minutes
11 to 16 involved the deputies checking the VIN numbers on the car, asking the
defendants about their travel plans, and issuing Mr. Martinez-Torres the warning
citation. Finally, minutes 16 to 33 of the stop involved further questioning about the
defendants’ travel plans and concluding with signed consent-to-search forms.
i. Minutes 0 to 11
The first 11 minutes of the traffic stop were conducted in a constitutionally
valid manner. Although Deputy Mora was able to obtain Mr. Martinez-Torres’
driver’s license, the car registration, and proof of insurance, he believed it was
prudent to have a translator to facilitate communication.2 This decision was entirely
reasonable and did not impermissibly extend the stop. See United States v. Martinez,
Counsel for Mr. Gomez-Arzate conceded during oral arguments that Deputy
Mora could call Deputy Mauricio in order to translate. See Oral Argument at 14:00,
United States v. Martinez-Torres, Nos. 19-2119, 19-2121 (10th Cir. argued Sept. 24,
2020), https://www.ca10.uscourts.gov/oralarguments/19/19-2121.mp3.
2
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983 F.2d 968, 976 (10th Cir. 1992) (stating that the circumstances of the traffic stop
justified calling a Spanish-speaking officer to assist in questioning); see also United
States v. Ruiz, 412 F.3d 871, 880 (8th Cir. 2005) (concluding that a stop that was
extended 10 minutes so a Spanish-speaking officer could arrive was reasonable in
scope and duration). Indeed, within the first minute of Deputy Mauricio arriving, he
was able to explain to Mr. Martinez-Torres why he was pulled over, and Mr.
Martinez-Torres was able to explain the reason his front tire appeared out of place.
Thus, the first 11 minutes of the traffic stop — most of which was spent waiting for
Deputy Mauricio — did not violate the Fourth Amendment.
ii. Minutes 11 to 16
What occurred after the first 11 minutes forms much of the basis of
defendants’ objections. During this five-minute interval, the deputies asked Mr.
Martinez-Torres and Mr. Gomez-Arzate whether they could check the VIN numbers.
After Mr. Martinez-Torres said it was okay, Deputy Mauricio asked Mr. GomezArzate whether the deputies could ask him some questions about their travel plans.
Mr. Gomez-Arzate said, “[o]h, yes.” 3 Aplt. Gomez-Arzate App. 340–41. This
questioning lasted about three minutes, at which time the deputies returned to Mr.
Martinez-Torres to explain and issue the warning citation.
The defendants object to the VIN check and additional questions about their
travel plans. They argue that the citation had already been written and explained 11
minutes in, such that the traffic stop had effectively been completed. The district
court rejected the defendants’ arguments concluding that questions about travel plans
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and VIN searches are within the scope of a traffic stop and were permissible.
Martinez-Torres, 2019 WL 113729, at *5–7. We disagree because in this particular
case the traffic stop had effectively been completed once Deputy Mora had
completed the paperwork and Deputy Mauricio had translated the paperwork to Mr.
Martinez-Torres.3 As a result, the traffic stop was improperly prolonged from
minutes 11 to 16. See Rodriguez, 575 U.S. at 354 (“Authority for the seizure thus
ends when tasks tied to the traffic infraction are — or reasonably should have been
— completed.”).
However, this does not automatically mean the evidence should be suppressed.
“Evidence will not be suppressed as fruit of the poisonous tree unless an unlawful
search is at least the but-for cause of its discovery.” United States v. Chavira, 467
F.3d 1286, 1291 (10th Cir. 2006). A “but-for cause” is understood as the “factual
nexus between the illegality and the challenged evidence.” Id. (quoting United States
With that said, the district court appears correct in its assessment that VIN
searches and questions about travel plans can ordinarily be within the scope of a
traffic stop. See, e.g., New York v. Class, 475 U.S. 106, 115 (1986) (“[A] demand to
inspect the VIN, like a demand to see license and registration papers, is within the
scope of police authority pursuant to a traffic violation stop.”); United States v.
Moore, 795 F.3d 1224, 1229 (10th Cir. 2015) (“An officer may also generally inquire
about the driver’s travel plans and ask questions . . . .”) (citation omitted); United
States v. Williams, 271 F.3d 1262, 1267 (10th Cir. 2001) (“[W]e have repeatedly
held (as have other circuits) that questions relating to a driver’s travel plans
ordinarily fall within the scope of a traffic stop.”); see also United States v. Chavira,
467 F.3d 1286, 1289 n.1 (10th Cir. 2006) (explaining that there is no unlawful
detention when the officer remains physically outside the car when examining the
VIN). Here, though, the traffic stop had effectively been completed before the VIN
search and questioning about travel plans.
3
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v. Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir. 2000)). In Chavira, we held that
there was no but-for causation because the unlawful VIN search “uncovered no
contraband” and there was no connection between the cell phone officers discovered
and the subsequent search. Id. at 1291–92. We also concluded that there was “no
indication that the trooper would not have requested or obtained consent to search the
truck but for the inspection of the VIN on the doorjamb.” Id. at 1292.
As in Chavira, there is no indication that Deputy Mora would not have
requested (and obtained) consent to ask defendants additional questions. Deputy
Mora testified that he had harbored suspicions from the outset of the stop based upon
discrepancies in the driver’s documents, the overwhelming smell of air freshener, and
the fact that defendants were travelling along a common contraband trafficking route.
In contrast, he obtained largely innocuous information while performing the VIN
search and briefly questioning Mr. Gomez-Arzate. It seems likely that Deputy Mora
would have asked for consent to ask additional questions based on his initial
suspicions even without the information he gleaned during minutes 11 to 16.
Moreover, we conclude that both defendants would have given voluntary
consent for additional questioning regardless of what occurred during minutes 11 to
16. As the district court found, “[e]ach time the Deputies requested permission to do
something, Defendants freely gave consent.” Martinez-Torres, 2019 WL 113729, at
*12. Early on, Mr. Martinez-Torres asked Deputy Mora if he wanted to know the
motive of the trip. There is no evidence suggesting coercion — the encounter was
pleasant and cordial from start to finish. The defendants have simply failed to show
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that “the evidence sought to be suppressed would not have come to light but for the
government’s unconstitutional conduct.” Chavira, 467 F.3d at 1291 (quoting NavaRamirez, 210 F.3d at 1131).
iii. Minutes 16 to 33
Next, we turn to what occurred after Deputy Mora returned Mr. MartinezTorres’ documents and issued him a warning citation for careless driving. After
issuing the citation, Mr. Martinez-Torres began walking back to the car when Deputy
Mora turned around and yelled, “Guillermo!” 3 Aplt. Gomez-Arzate App. 346.
Deputy Mora, through Deputy Mauricio, explained to Mr. Martinez-Torres that he
was “free to go,” but asked if he could ask him some additional questions. After
confirming that Mr. Martinez-Torres understood that he was free to go, the deputies
began asking questions about their travel plans and who owned the vehicle. The
deputies also went to Mr. Gomez-Arzate, who was sitting in the passenger’s seat of
the car, and told him that they had issued Mr. Martinez-Torres a warning and that
they told Mr. Martinez-Torres that he was free to go. The deputies then said to Mr.
Gomez-Arzate, “[d]o you understand you’re free to go? But we wanted to ask you
some more questions, if that’s fine with you.” Id. at 353. Mr. Gomez-Arzate
responded that he understood and that it was no problem. At the conclusion of this
additional questioning, both defendants signed a Spanish consent-to-search form.
Defendants contend that after the documents had been returned, the encounter
did not become consensual and the deputies lacked reasonable suspicion that would
warrant prolonging the stop. The district court concluded that Deputy Mora had
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reasonable suspicion to continue the stop due to the smell of air freshener;
discrepancies with the license, registration, and proof of insurance; and the route they
were traveling along. Martinez-Torres, 2019 WL 113729, at *7–8. Furthermore, the
district court concluded that reasonable suspicion grew due to the “implausible and
inconsistent story” about the purpose of their travel, their explanations about who
owned the car, and the defendants’ apparent nervousness. Id. at *8. In the
alternative, the district court held that after the traffic stop ended, there was a valid
consensual encounter. Id. at *8–10. We agree with the district court and hold that
the additional questioning during this time was pursuant to a consensual encounter.
As mentioned, once a traffic stop is completed, the driver must be allowed to
leave unless “(1) the officer has an objectively reasonable and articulable suspicion
that illegal activity has occurred or is occurring, or (2) the initial detention has
become a consensual encounter.” United States v. Bradford, 423 F.3d 1149, 1156–57
(10th Cir. 2005); see United States v. Harmon, 742 F.3d 451, 458–59 (10th Cir.
2014) (“An officer may continue questioning the driver if the stop has transitioned
from a detention to a consensual encounter.”). A traffic stop can turn into a
consensual encounter, which does not require reasonable suspicion, when the driver
consents to additional questioning. Bradford, 423 F.3d at 1158. However, a
prerequisite for a consensual encounter is that the driver’s documents are returned.
Id.
The fundamental question we ask in these cases is whether “a reasonable
person under the circumstances would believe [he] was free to leave or disregard the
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officer’s request for information.” Id. (quoting United States v. Elliot, 107 F.3d 810,
814 (10th Cir. 1997)). We follow a bright-line rule that requires the driver’s
documents to be returned before the stop may be considered a consensual encounter,
recognizing that merely handing back documents is not “always sufficient to
demonstrate that an encounter has become consensual.” Id. Factors that we have
found relevant to our analysis include:
the location of the encounter, particularly whether the defendant is in an
open public place where he is within the view of persons other than law
enforcement officers; whether the officers touch or physically restrain
the defendant; whether the officers are uniformed or in plain clothes;
whether their weapons are displayed; the number, demeanor and tone of
voice of the officers; whether and for how long the officers retain the
defendant’s personal effects such as tickets or identification; and
whether or not they have specifically advised defendant at any time that
he had the right to terminate the encounter or refuse consent.
United States v. Spence, 397 F.3d 1280, 1283 (10th Cir. 2005) (quoting United States
v. Zapata, 997 F.2d 751, 756–57 (10th Cir. 1993)). While this list is not exclusive
and no one factor is dispositive, we focus on “the coercive effect of police conduct,
taken as a whole on a reasonable person.” Id.
Once Deputy Mora returned Mr. Martinez-Torres’ paperwork, the traffic stop
turned into a consensual encounter. The district court found that the deputies did not
brandish their weapons, they were conversational in tone, there were only two or
three deputies on the scene — none of which were positioned in a coercive manner,
and it occurred in daylight and in public view. Martinez-Torres, 2019 WL 113729, at
*9.
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As it relates to Mr. Martinez-Torres, who was standing outside of the car
talking with the deputies, he was specifically asked twice whether he understood that
he was free to go. Mr. Martinez-Torres responded, “yes.” See Spence, 397 F.3d at
1283 (stating that a relevant factor is “whether or not they have specifically advised
defendant at any time that he had the right to terminate the encounter or refuse
consent”); United States v. Sandoval, 29 F.3d 537, 544 (10th Cir. 1994) (considering
“whether the driver was informed of his right to refuse consent or to proceed on his
way” as an important factor). Moreover, the deputies allowed Mr. Martinez-Torres
to call his daughter and make sure she was up for school, which bears on the officers’
demeanor and whether the interaction was coercive.
Mr. Martinez-Torres further argues that by calling him back to the police car,
Deputy Mora was making a show of authority. We do not agree. The district court
found that the officers were “polite and pleasant” and “did not convey an overbearing
show of authority.” Martinez-Torres, 2019 WL 113729, at *9. Merely calling out
Mr. Martinez-Torres’ name to ask whether he would be willing to answer additional
questions does not preclude finding a consensual encounter. Cf. United States v.
Villegas, 554 F.3d 894, 899 (10th Cir. 2009) (finding that consent was not
involuntary simply because consent was solicited while the defendant had not
completely exited the patrol car); Bradford, 423 F.3d at 1159 (finding that consent
was not involuntary even though it was requested while the defendant was still in the
patrol car). Thus, as to Mr. Martinez-Torres, this was a consensual encounter.
17
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Document: 010110446464
Date Filed: 12/02/2020
Page: 18
Mr. Gomez-Arzate, who was sitting in the passenger’s seat of the car, also
consented to the additional questioning and was not unlawfully detained. Although
he was not the driver and therefore did not give the deputies any documents, he was
informed that Mr. Martinez-Torres had received his documents and a warning
citation, and that Mr. Martinez-Torres was free to leave. The deputies also informed
Mr. Gomez-Arzate that he was free to leave but sought his permission to ask further
questions. Like Mr. Martinez-Torres, Mr. Gomez-Arzate agreed to answer the
deputies’ questions. And again, there was no show of authority or coercion.
Mr. Gomez-Arzate asserts that he did not voluntarily consent because he was a
passenger in the car and was not privy to the conversation between the deputies and
Mr. Martinez-Torres. However, merely being the passenger of the car does not
render his consent involuntary. Rather, we must consider whether Mr. Gomez-Arzate
could reasonably “believe [he] was free to leave or disregard the officer’s request for
information.” Bradford, 423 F.3d at 1158. Mr. Gomez-Arzate was informed of all
the circumstances and was explicitly told that both he and Mr. Martinez-Torres were
free to leave. Yet, Mr. Gomez-Arzate agreed to further questioning. Therefore, Mr.
Gomez-Arzate’s reliance on Guerrero-Espinoza is misplaced. In that case, we
determined that the passenger could have reasonably believed he was not free to
leave because he was not aware that the warning had been issued and it appeared that
the driver continued to be detained. United States v. Guerrero-Espinoza, 462 F.3d
1302, 1309–10 (10th Cir. 2006); see also United States v. Yeomans, 211 F. App’x
753, 758 n.8 (10th Cir. 2007) (discussing Guerrero-Espinoza in the context of a case
18
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Document: 010110446464
Date Filed: 12/02/2020
Page: 19
where the driver and passenger remained together). Here, the deputies fully
explained to Mr. Gomez-Arzate the circumstances of the stop and that both he and
Mr. Martinez-Torres were free to go. Therefore, this was also a consensual
encounter as to Mr. Gomez-Arzate.
Even though we conclude that this was a consensual encounter, we note that
the deputies also had sufficient reasonable suspicion to justify the extension of the
traffic stop. When Deputy Mora first approached the car, he noticed the
“overwhelming” scent of air freshener. The district court found that Deputy Mora
knew from his training and experience that this was one method used to mask the
smell of drugs. Next, he learned that Mr. Martinez-Torres had a California driver’s
license, but the car was registered in Texas to an absent third party. See United
States v. Pettit, 785 F.3d 1374, 1382 (10th Cir. 2015) (“[I]n our case law, driving a
vehicle registered to an absent third party can indicate drug trafficking.”). Moreover,
Mr. Martinez-Torres was listed on the insurance but not on the registration, creating
an additional layer of confusion.
Then, once Deputy Mauricio arrived on the scene and the deputies were able to
ask some questions about the defendants’ travel plans, suspicion grew. When Mr.
Gomez-Arzate was asked who owned the vehicle, he indicated that it was loaned to
him, but he could not recall the person’s name. However, when Mr. Martinez-Torres
was asked who owned it, he said that it was Mr. Gomez-Arzate. This unusual story
about who owned the car — especially when coupled with the fact that Mr. MartinezTorres was listed on the insurance — only added to the deputies’ reasonable
19
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Appellate Case: 19-2119
Document: 010110446464
Date Filed: 12/02/2020
Page: 20
suspicion. The defendants’ stories about what their plans were in Texas also did not
help their cause. Pettit, 785 F.3d at 1381 (“We have consistently held that
implausible travel plans can contribute to a reasonable suspicion.”). They told the
deputies that they were going to Texas to see a ranch and clean up a house, but
neither knew the name of the owner of the ranch, or the “friends” they were going to
stay with.
Although this questioning was under the umbrella of a consensual encounter,
the totality of the circumstances created more than sufficient reasonable suspicion to
justify the officer’s additional questions.
c. Consent to Search the Vehicle
The deputies finally obtained valid consent from both defendants to search the
vehicle. As we have discussed, this traffic stop had transitioned into a consensual
encounter, and there is no indication that the deputies had applied coercive measures.
Thus, it is difficult to question the voluntariness of both defendants’ consent to allow
the deputies to search the vehicle. Both defendants were orally asked whether they
would agree to allowing a search of the car, and further, they both signed a Spanish
language consent-to-search form. See United States v. Warwick, 928 F.3d 939, 945
(10th Cir. 2019) (“A signed consent form indicates voluntary consent.”). The
deputies also ensured that the defendants could read and understand the consent form.
The district court’s conclusion that there was express and voluntary consent to search
the car is amply supported by the record.
20
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Appellate Case: 19-2119
Document: 010110446464
Date Filed: 12/02/2020
Page: 21
d. Scope of the Vehicle Search
Mr. Martinez-Torres and Mr. Gomez-Arzate finally argue that the manner and
duration of the deputies’ search of the car exceeded the scope of consent. We review
for clear error the question of whether a search exceeds the scope and duration of
consent, “which turns on what a reasonable person would have understood to be the
scope and duration of his consent under the circumstances.” United States v.
Rosborough, 366 F.3d 1145, 1150 (10th Cir. 2004). While the consenting party can
limit the scope of consent, absent such a limitation “[a] general grant of permission to
search an automobile typically extends to the entire car.” Id. Additionally, we will
consider whether the deputies conducted the search of the car diligently. Id. at 1151.
As the district court highlighted, Mr. Martinez-Torres and Mr. Gomez-Arzate
did not provide any limitations on the scope of the car nor did they object to the
duration of the search. This lack of objection indicates that the defendants’ consent
was not confined by time or location. Id. Furthermore, the search lasted 90 minutes,
which is in the realm of reasonable duration under our case law. See id. at 1151 n.1
(collecting cases).
Mr. Martinez-Torres and Mr. Gomez-Arzate also contend that the search
exceeded the scope of consent by being especially intrusive. However, as indicated,
the defendants’ general consent to search the car undercuts that argument. We have
allowed deputies searching a car under a grant of general consent to effect some
dismantling, and minor damage “does not by itself render a search excessive.”
United States v. Mendoza, 817 F.3d 695, 701 (10th Cir. 2016); see United States v.
21
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Document: 010110446464
Date Filed: 12/02/2020
Page: 22
Marquez, 337 F.3d 1203, 1209 (10th Cir. 2003) (noting that many of our cases allow
“an officer’s partial dismantling of an automobile pursuant to a general consent to
search when the suspect did not object”). Here, the district court found that the
deputies removed the air filter, took items out of the trunk, and removed and replaced
the fender. Deputy Mora removed a rear quarter panel after seeing tooling marks and
noticing a void behind the panel. Otherwise, the district court determined that
“[t]here [was] no evidence of any further dismantling of the car.” Martinez-Torres,
2019 WL 113729, at *3 (quotations omitted). As with the duration of the search, this
case is not beyond the realm of reasonable searches of the car, and again, the
defendants never objected. Indeed, one of the defendants even offered to help
replace the fender, further buttressing the district court’s conclusion that the search
was within the scope of consent.
Defendants rely on United States v. Osage to argue that the deputies took the
car apart and effectively dismantled it, thus exceeding the scope of consent. In
Osage, the court held that “before an officer may actually destroy or render
completely useless a container which would otherwise be within the scope of a
permissive search,” the officer needs either explicit consent or another valid
justification. United States v. Osage, 235 F.3d 518, 522 (10th Cir. 2000). Although
the deputies may have removed parts of the car, there is no indication that they
destroyed or rendered the car completely useless. Indeed, the deputies appear to have
reattached the fender that was removed and replaced the air filter. While the rear
quarter panel may not have been replaced, we do not think this was the “complete
22
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Document: 010110446464
Date Filed: 12/02/2020
Page: 23
and utter destruction or incapacitation” that was at issue in Osage. Id. at 521 n.2.
The search was pursuant to consent and lawful.
AFFIRMED.
23
App. 23
Case 1:18-cr-01960-WJ Document 90 Filed 07/24/19 Page 1 of 6
AO 245B (Rev 02/18) Judgment in a Criminal Case
Sheet 1
UNITED STATES DISTRICT COURT
District of New Mexico
UNITED STATES OF AMERICA
Judgment in a Criminal Case
V.
JESUS GOMEZ-ARZATE
Case Number: 1:18CR01960-002WJ
USM Number: 98281-051
Defendant’s Attorney: Michael Ian Garey
THE DEFENDANT:
pleaded guilty to count(s) 1 of Indictment.
pleaded nolo contendere to count(s) which was accepted by the court.
was found guilty on count(s) after a plea of not guilty.
The defendant is adjudicated guilty of these offenses:
Title and Section
Nature of Offense
Offense Ended
Count
21 U.S.C. Sec. 846
Conspiracy to violate 21 U.S.C. Sec. 841(b)(1(A)
05/17/2018
1
The defendant is sentenced as provided in pages 2 through 6 of this judgment. The sentence is imposed pursuant to the Sentencing
Reform Act of 1984. The Court has considered the United States Sentencing Guidelines and, in arriving at the sentence for this
Defendant, has taken account of the Guidelines and their sentencing goals. Specifically, the Court has considered the sentencing range
determined by application of the Guidelines and believes that the sentence imposed fully reflects both the Guidelines and each of the
factors embodied in 18 U.S.C. § 3553(a). The Court also believes the sentence is reasonable, provides just punishment for the offense
and satisfies the need to impose a sentence that is sufficient, but not greater than necessary to satisfy the statutory goals of sentencing.
The defendant has been found not guilty on count(s) .
Count(s) dismissed on the motion of the United States.
It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence,
or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay
restitution, the defendant must notify the court and United States attorney of material changes in economic circumstances.
7/24/2019
Date of Imposition of Judgment
/s/ William P. Johnson
Signature of Judge
Honorable William P. Johnson
Chief United States District Judge
Name and Title of Judge
7/24/2019
Date
App. 24
Case 1:18-cr-01960-WJ Document 90 Filed 07/24/19 Page 2 of 6
AO 245B (Rev 02/18) Judgment in a Criminal Case
Sheet 2 - Imprisonment
Judgment - Page 2 of 6
DEFENDANT: JESUS GOMEZ-ARZATE
CASE NUMBER: 1:18CR01960-002WJ
IMPRISONMENT
The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total term of: 63 months.
The Court recommends that Immigration and Customs Enforcement begin removal proceedings during service of sentence.
The court makes the following recommendations to the Bureau of Prisons:
FCI facility closest to Southern California so he may be close to family.
The defendant is remanded to the custody of the United States Marshal.
The defendant shall surrender to the United States Marshal for this district:
at on .
as notified by the United States Marshal.
The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:
before 2 p.m. on .
as notified by the United States Marshal.
as notified by the Probation or Pretrial Services Office.
RETURN
I have executed this judgment as follows:
Defendant delivered on
to
at
with a certified copy of this judgment.
UNITED STATES MARSHAL
By
DEPUTY UNITED STATES MARSHAL
App. 25
Case 1:18-cr-01960-WJ Document 90 Filed 07/24/19 Page 3 of 6
AO 245B (Rev 02/18) Judgment in a Criminal Case
Sheet 3 – Supervised Release
Judgment - Page 3 of 6
DEFENDANT: JESUS GOMEZ-ARZATE
CASE NUMBER: 1:18CR01960-002WJ
SUPERVISED RELEASE
Upon release from imprisonment, you will be on supervised release for a term of: 5 years unsupervised.
MANDATORY CONDITIONS
1.
2.
3.
4.
5.
6.
7.
You must not commit another federal, state, or local crime.
You must not unlawfully possess a controlled substance.
You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release from
imprisonment and at least two periodic drug tests thereafter, as determined by the court.
The above drug testing condition is suspended, based on the court's determination that you pose a low risk of
future substance abuse. (Check, if applicable.)
You must make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a sentence of
restitution. (check if applicable)
You must cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable)
You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. § 20901, et seq.) as
directed by the probation officer, the Bureau of Prisons, or any state, local, or tribal sex offender registration agency in the location
where you reside, work, are a student, or were convicted of a qualifying offense. (check if applicable)
You must participate in an approved program for domestic violence. (Check, if applicable)
You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the
attached page.
STANDARD CONDITIONS OF SUPERVISION
As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are imposed
because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed by probation
officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.
1.
2.
3.
4.
5.
6.
7.
8.
You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your release
from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time frame.
After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and when
you must report to the probation officer, and you must report to the probation officer as instructed.
You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from the
court or the probation officer.
You must answer truthfully the questions asked by your probation officer.
You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living
arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying the
probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of
becoming aware of a change or expected change.
You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer to
take any items prohibited by the conditions of your supervision that he or she observes in plain view.
You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from
doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation officer excuses you
from doing so. If you plan to change where you work or anything about your work (such as your position or your job responsibilities),
you must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10 days in advance is
not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of becoming aware of a change or
expected change.
You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been convicted
of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the probation
officer.
App. 26
Case 1:18-cr-01960-WJ Document 90 Filed 07/24/19 Page 4 of 6
9. If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.
10. You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that was
designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or tasers).
11. You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without first
getting the permission of the court.
12. If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may, after
obtaining Court approval, require you to notify that person about the risk and you must comply with that instruction. The probation
officer may contact the person and confirm that you have notified the person about the risk.
13. You must follow the instructions of the probation officer related to the conditions of supervision.
App. 27
Case 1:18-cr-01960-WJ Document 90 Filed 07/24/19 Page 5 of 6
AO 245B (Rev 02/18) Judgment in a Criminal Case
Sheet 5 – Special Conditions
Judgment - Page 5 of 6
DEFENDANT: JESUS GOMEZ-ARZATE
CASE NUMBER: 1:18CR01960-002WJ
SPECIAL CONDITIONS OF SUPERVISION
You must comply with all Immigration and Customs Enforcement laws.
If deported, you must not reenter the United States without legal authorization.
U.S. Probation Office Use Only
A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a written copy of this judgment
containing these conditions. For further information regarding these conditions, see Overview of Probation and Supervised Release Conditions,
available at: www.uscourts.gov.
Defendant’s Signature
Date
App. 28
Case 1:18-cr-01960-WJ Document 90 Filed 07/24/19 Page 6 of 6
AO 245B (Rev 02/18) Judgment in a Criminal Case
Sheet 6 – Criminal Monetary Penalties
Judgment - Page 6 of 6
DEFENDANT: JESUS GOMEZ-ARZATE
CASE NUMBER: 1:18CR01960-002WJ
CRIMINAL MONETARY PENALTIES
The defendant must pay the following total criminal monetary penalties under the schedule of payments.
The Court hereby remits the defendant’s Special Penalty Assessment; the fee is waived and no payment is required.
Assessment
$100
Totals:
JVTA Assessment*
$0.00
Fine
$0.00
Restitution
$0.00
The determination of the restitution is deferred until . An Amended Judgment in a Criminal Case will be entered after such
determination.
The defendant must make restitution (including community restitution) to the following payees in the amount listed below.
SCHEDULE OF PAYMENTS
Having assessed the defendant's ability to pay, payment of the total criminal monetary penalties is due as follows:
A
In full immediately; or
B
$ due immediately, balance due (see special instructions regarding payment of criminal monetary penalties).
Special instructions regarding the payment of criminal monetary penalties: Criminal monetary penalties are to be made
payable by cashier's check, bank or postal money order to the U.S. District Court Clerk, 333 Lomas Blvd. NW, Albuquerque,
New Mexico 87102 unless otherwise noted by the court. Payments must include defendant's name, current address, case
number and type of payment.
Based on the defendant’s lack of financial resources, the Court will not impose a fine. In lieu of all or a portion of the fine, the
Court considered alternative sanctions, such as community service, placement at a residential reentry center, and location
monitoring, and concludes the total combined sanction without a fine or alternative is
sufficiently punitive.
Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is
due during the period of imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of
Prisons' Inmate Financial Responsibility Program, are made to the clerk of court.
The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.
Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal,
(5) fine interest, (6) community restitution, (7) JVTA assessment, (8) penalties; and (9) costs, including cost of prosecution and
court costs.
* Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22
App. 29
Case 1:18-cr-01960-WJ Document 49 Filed 01/04/19 Page 1 of 26
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
_________________
UNITED STATES OF AMERICA
Plaintiff,
vs.
Case No. 1:18-cr-1960 WJ-1
GUILLERMO MARTINEZ-TORRES, and
JESUS GOMEZ-ARZATE,
Defendants.
MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTION TO
SUPPRESS
THIS MATTER comes before the Court on Defendant Jesus Gomez-Arzate’s Motion to
Suppress Evidence, filed August 17, 2018 (Doc. 29), joined by his co-Defendant Guillermo
Martinez-Torres (Doc. 31). Having considered the parties’ arguments and applicable law, the
Court finds that Defendants’ motion is not well-taken and, therefore, is DENIED.
BACKGROUND
On June 13, 2018, Defendant Martinez-Torre and Defendant Jesus Gomez-Arzate were
indicted with possession with intent to distribute 500 grams and more of a mixture containing
methamphetamine, in violation of 21 USC §§ 841(a)(1), (b)(1)(A), and 846. Doc. 15.
The Court makes the following factual findings following an evidentiary hearing.1 The
Court finds the deputies’ and trooper’s testimony to be credible.
To avoid repetition, additional facts are found below in the discussion section. A portion of the encounter was audiorecorded. The 33-minute audio recording was played during the evidentiary hearing, and a transcript with an English
translation was used to follow along. The transcript was admitted without objection, and neither party pointed out any
inaccuracies in the transcript. Therefore, the Court relies on the transcript and refers to English translations of any
Spanish spoken.
1
App. 30
Case 1:18-cr-01960-WJ Document 49 Filed 01/04/19 Page 2 of 26
A.
Initial Traffic Stop.
On May 17, 2018, Defendants were traveling eastbound on Interstate 40 in a 2012 white
KIA Soul. After a line of cars passed him, Deputy Mora pulled out from a median. Around mile
marker 133 he spotted the Defendants’ vehicle. He observed the Kia Soul swerving within the
right-hand lane, and also straddling the right-hand white solid line twice. Deputy Mora also
observed that the front driver’s side tire appeared to be angled or out of alignment. Deputy Mora
did not observe any external explanation for why the Kia Soul was swerving, aside from the front
tire being “bent.”
At around mile marker 132, Deputy Mora pulled over the Kia Soul. He approached the
front passenger side window, and immediately noticed an “overwhelming odor of air freshener”,
from multiple air fresheners. Based on his experience and training, Deputy Mora knew that an air
freshener can be used to mask the smell of drugs or contraband. Defendant Martinez-Torres was
the driver, and the passenger, Defendant Gomez-Arzate, purported to be the owner of the car.
Deputy Mora explained to the Defendants that he pulled them over because they were
swerving, and that the axle or wheel appeared to be bent. Deputy Mora asked for and obtained
Defendant Martinez-Torres’ driver’s license, registration, and proof of insurance. Defendant
Martinez-Torres produced a California driver’s license. The car had Texas plates, and was
registered to an absent third party.
Although Deputy Mora attempted to speak with Defendants, Defendant Martinez-Torres
stated he didn’t understand him. At approximately 3 minutes and 38 seconds into the stop, Deputy
Mora called for Deputy Mauricio, who spoke fluent Spanish, to come and translate. Calling other
deputies who are bilingual and fluent in Spanish to translate is common practice within the
department. At around this time, Deputy Mora began filling out a warning citation.
2
App. 31
Case 1:18-cr-01960-WJ Document 49 Filed 01/04/19 Page 3 of 26
It is also clear that a Spanish translator was necessary. Defendants – multiple times –
expressed that they couldn’t understand Deputy Mora. Therefore, it was reasonable and necessary
for Deputy Mora to wait for a translator to arrive. Without a translator, he could not even explain
the citation or the reason for the traffic stop.
Defendants tried to speak with Deputy Mora, while Deputy Mora suggested they wait for
Deputy Mauricio to arrive. Defendants asked Deputy Mora whether he wanted to know their
“motive of the trip.” Gov. Ex. 3, p. 6. They also asked about the speed limit. While waiting,
Defendant Martinez-Torres stated that he lived in Santa Ana, California and that he would like to
move to Texas because the rent is cheaper and there is more work.
B.
Deputy Mauricio arrives during traffic stop (Minute 10:00 to Minute 16:00).
Deputy Mauricio arrived at around ten minutes into the stop. It took him approximately
seven minutes to arrive after he was called. After Deputy Mauricio began translating, there was
no indication that Defendants had any further difficulty in understanding the deputies.
Deputy Mauricio asked for permission to search the VIN number of the car and both
Defendants consented. The deputies checked the VIN on both the dashboard and the door. This
process took a “couple minutes.”
At the same time, the deputies also asked permission to ask questions about Defendants’
travel plans. This took approximately two minutes and fifteen seconds, but overlapped with the
VIN search. Defendant Gomez-Arzate said that they were coming from California, and were going
to Dalhart first, then Dumas, Texas.
At around 13 minutes and 17 seconds, the deputies asked who owned the car, because
neither Defendant was on the registration. Defendant Gomez-Arzate said the car belonged to a
3
App. 32
Case 1:18-cr-01960-WJ Document 49 Filed 01/04/19 Page 4 of 26
man in Texas who let them borrow it. They stated the owner lives in Dumas, and they were going
to his house to “clean it up”, live there, and possibly raise cattle.
Defendants stated they were traveling to Texas, from California, to clean up a house to
make it habitable. They also stated they were only staying for three or four days. Then, they were
going back to California for their family, to move to Texas.
At around fifteen minutes into the traffic stop, Deputy Mora explained to Defendant
Martinez-Torres that he was giving him all of his documents back and that he was giving him a
warning citation for hitting the solid white line twice. The Deputies also explained this to
Defendant Gomez-Arzate. See Gov. Ex. 3, p. 23-24. In his traffic citation, he noted that Defendant
hit the shoulder solid line twice, and that he violated the careless driving statute (NMSA § 66-8114). Gov. Ex. 1. Deputy Mora gave the citation to Defendant Martinez-Torres, who signed it.
C.
Further Questioning (minute 16:00 to approximately minute 33:00).
After receiving his documents back and his warning citation, Defendant Martinez-Torres
began walking back to his car. Deputy Mora said “Guillermo” and Defendant Martinez-Torres
walked back to the patrol car, a distance of approximately 20 feet.
Deputy Mora explained to Defendant Martinez-Torres that he was free to go, but that he
had a couple more questions, “if that’s okay.” His response was inaudible on the recording. The
Deputies repeated a second time “do you understand that you are free to go?” Defendant MartinezTorres responded “yes.” Defendant Martinez-Torres did not object or indicate he wanted to leave.
At approximately twenty minutes into the encounter, the deputies received consent from
Defendant Gomez-Arzate. Deputy Mauricio explained to Gomez-Arzate that they had only given
a warning to Martinez-Torres for crossing the white line, and that they told him that he’s free to
4
App. 33
Case 1:18-cr-01960-WJ Document 49 Filed 01/04/19 Page 5 of 26
go. They also told Gomez-Arzate that he was free to go and asked for consent to ask further
questions. Defendant Gomez-Arzate consented.
Defendant Gomez-Arzate stated they were going to Dumas, Dalhart, and Hartley, near
Amarillo, to a ranch. They stated the ranch was forty minutes from Amarillo. They stated they
were going there to clean a house, to work or live there.
The deputies then asked where they got the car. They stated they got the car from the
ranch. He stated the previous time he was there, his truck broke down and the owner lent the KIA
Soul to him. Defendant Gomez-Arzate said he then took the KIA Soul with him back to California,
and that he has had it for months.
Defendant Gomez-Arzate did not know the name of the owner of the car, but that he knew
the name of the owner’s friend.
Defendants affirmed that they were responsible for everything inside the car. Defendants
denied having any large amounts of money, drugs, or weapons. Defendants then consented to the
search of the car orally2 and in writing. They affirmed that they understood the written consent
form and could read Spanish. The transcript reflects that they also understood Deputy Mauricio’s
Spanish.
After the Defendants consented to the search, the audio recording ended.
D.
Search of Car.
As Deputy Mora was searching the vehicle, he saw tool marks on the right rear quarter
panel. He slightly pulled back the rear quarter panel and saw a circular void. The rear quarter
panel was held in place with plastic rivets. He then pulled off the rear quarter panel, and saw two
Defendant Martinez-Torres’ oral response is inaudible on the audio recording. Deputy Mora asked for permission
to search. However, Defendant Martinez-Torres signed the written consent form.
2
5
App. 34
Case 1:18-cr-01960-WJ Document 49 Filed 01/04/19 Page 6 of 26
round packages, wrapped in black tape, which he knew was consistent with contraband.
The
search lasted approximately one hour and 30 minutes.
The Court credits Deputy Mora’s testimony that he only had to pull back the quarter panel
a slight degree before he saw a circular void. Based on his experience and training, once he saw
that void, he had reasonable suspicion that the void contained drugs.
The deputies apparently removed the air filter. A picture in evidence shows a toolbox on
the car, with the hood open. There is no evidence in the record that anything else was done to the
engine. Moreover, the Deputies removed the fender because it was not flush with the car, but also
put it back on. Items were taken out of the trunk and placed on the ground. There is no evidence
of any further “dismantling” of the car.
DISCUSSION
Defendants argue that evidence resulting from the traffic stop should be suppressed,
because the traffic stop itself either (1) was not initially valid, or alternatively (2) became invalid
because it was extended for too long. Even if the traffic stop was valid, Defendants argue either
that the resulting consent to search the car was invalid or outside the scope of consent.
“[A] traffic stop is reasonable if it is (1) justified at its inception and (2) reasonably related
in scope to the circumstances which justified the interference in the first place.” United States v.
Moore, 795 F.3d 1224, 1228 (10th Cir. 2015 (quoting United States v. Karam, 496 F.3d 1157,
1161 (10th Cir. 2007)).
I.
Initial Traffic Stop was Valid.
Defendant argues that the initial traffic stop was not valid, because it was not supported by
reasonable suspicion. The Government argues that there was reasonable suspicion to stop the car
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either for careless driving or for failure to maintain the vehicle in its lane. The Court agrees with
the Government.
To justify a traffic stop at its inception, “an officer needs only reasonable suspicion—that
is, a particularized and objective basis for suspecting the particular person stopped of breaking the
law. [T]he government bears the burden of proving the reasonableness of the officer's suspicion.”
United States v. Vance, 893 F.3d 763, 773 (10th Cir. 2018) (internal quotation marks and citations
omitted). “For reasonable suspicion to exist, an officer need not rule out the possibility of innocent
conduct; he or she simply must possess some minimal level of objective justification for making
the stop.” United States v. Winder, 557 F.3d 1129, 1134 (10th Cir. 2009) (internal quotation marks
omitted).
A.
Careless driving.
New Mexico law requires drivers to not drive in a “careless, inattentive, or imprudent
manner, without due regard for the width, grade, curves, corners, traffic, weather and road
conditions and all other attendant circumstances,” NMSA § 66-8-114. Here, Deputy Mora
observed that Defendant Martinez-Torres was swerving within his lane and also straddled the
white solid right-hand line twice. Based on these observations, an objectively reasonable officer
would have reasonable suspicion that Defendant Martinez violated the careless driving statute by
either driving carelessly or inattentively without due regard for the width of the road or other
“attendant circumstances.”
B.
Failure to stay entirely within lane.
Alternatively, the traffic stop was also justified at its inception based on a reasonable
suspicion of a violation of NMSA § 66-7-317, failing to maintain lane. That statute provides in
part:
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Whenever any roadway has been divided into two or more clearly marked lanes for
traffic the following rules in addition to all others consistent herewith shall apply:
A. a vehicle shall be driven as nearly as practicable entirely within a single lane
and shall not be moved from such lane until the driver has first ascertained
that such movement can be made with safety;
N.M. Stat. Ann. § 66-7-317 (emphasis added).
To show a violation of NMSA § 66-7-317, the Government must first show that Defendants
failed to drive “as nearly as practicable entirely within a single lane.” This is a fact-driven analysis
under the totality of the circumstances. State v. Siqueiros-Valenzuela, 2017-NMCA-074, ¶ 26,
404 P.3d 782, 788, cert. denied (July 6, 2017), citing United States v. Alvarado, 430 F.3d 1305,
1309 (10th Cir. 2005) (interpreting identical language in Utah law); see also United States v.
Vance, 893 F.3d 763, 772 (10th Cir. 2018) (interpreting NMSA § 66-7-317).
“This totality of the circumstances analysis takes into account whether there were any
weather conditions, road features, or other circumstances that could have affected or interfered
with a driver's ability to keep his or her vehicle in a single lane.” State v. Siqueiros-Valenzuela,
2017-NMCA-074, ¶ 19, 404 P.3d 782, 787, cert. denied (July 6, 2017), citing Alvarado, 430 F.3d
at 1309. There is no per se rule that touching the fog line does or does not constitute a violation
of NMSA § 66-7-317. United States v. Alvarado, 430 F.3d 1305, 1309 (10th Cir. 2005) (rejecting
argument that touching fog line once does not constitute violation of statute). Rather, the statute
requires “a fact-specific inquiry into the particular circumstances present during the incident in
question in order to determine whether the driver could reasonably be expected to maintain a
straight course at that time in that vehicle on that roadway.” Id.
Here, the clear evidence shows that there was no circumstance that affected or interfered
with Defendant Martinez-Torres’ ability to keep his car within his lane. United States v.
Valenzuela, 494 F.3d at 888–89 (“In this case, nothing in the record suggests any outside factors
contributed to Defendant's lane drift” which was a single drift from the left westbound lane into
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right westbound lane for several seconds and then return to the left lane.); United States v.
Alvarado, 430 F.3d at 1309 (“[T]here were no adverse weather or road conditions that might have
made it impractical for Alvarado to prevent his vehicle from drifting out of the righthand lane and
over the fog line” by about a foot for several seconds before crossing back.); United States v.
Ozbirn, 189 F.3d 1194, 1199 (10th Cir. 1999) (“Officer “observed the motor home drift onto the
shoulder twice within a quarter mile without any adverse circumstances like road or weather
conditions to excuse or explain the deviation.”). Defendants were not passing other vehicles, and
there were no adverse weather conditions. Nevertheless, Defendant Martinez-Torres swerved
within his lane and also straddled the right-hand white line twice. Under the totality of the
circumstances, the Court concludes that Defendant Martinez-Torres failed to drive “as nearly as
practicable entirely within a single lane.”
Finally, Deputy Mora’s observations of Defendant’s swerving and straddling the line
supports a finding that Defendant Martinez-Torres did not first ascertain whether such movement
could be made with safety. Defendant’s straddling of the white line was clearly not a deliberate
decision.
Therefore, based on Deputy Mora’s observations, an objectively reasonable officer would
at the very least have reasonable suspicion that Defendants violated either the careless driving
statute or NMSA § 66-7-317.
II.
Traffic stop was not unreasonably extended after Deputy Mauricio arrived
(approximately 10 minutes to 16 minutes into encounter).
Defendants argue that even if the initial traffic stop was valid, it became invalid because it
was extended in scope and duration beyond the initial purpose of the stop, violating Rodriguez v.
United States, ––– U.S. ––––, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015). Defendant argued
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at the hearing that the traffic stop was unlawfully extended after Deputy Mauricio arrived. At that
time, he argues, the deputies should have given Defendant Martinez-Torres his traffic citation and
gone on their way.
“[A] lawful traffic stop may not extend beyond the time reasonably required to effectuate
its purpose.” United States v. Pettit, 785 F.3d 1374, 1379 (10th Cir. 2015), citing Rodriguez v.
United States, ––– U.S. ––––, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015). “In particular,
questioning on matters unrelated to that mission is improper if it measurably extend[s] the duration
of the stop.” United States v. Cone, 868 F.3d 1150, 1152–53 (10th Cir. 2017) (emphasis added),
cert. denied, 138 S. Ct. 707, 199 L. Ed. 2d 578 (2018), citing Rodriguez, 135 S.Ct. at 1615 (internal
quotation marks omitted). “Once the warning or citation has been issued and the driver's license
and registration have been returned, however, the officer generally must allow the driver to proceed
without further delay.” United States v. Karam, 496 F.3d 1157, 1161 (10th Cir. 2007), citing
United States v. Patterson, 472 F.3d 767, 776 (10th Cir.2006).
However, “a traffic stop may be expanded beyond its initial purpose if the traffic stop has
become a consensual encounter, or if the officer has an objectively reasonable and articulable
suspicion that illegal activity has occurred or is occurring.” United States v. Moore, 795 F.3d
1224, 1229 (10th Cir. 2015) (internal citation and quotation marks omitted).
A.
Traffic stop was not unreasonably extended or prolonged.
During the traffic stop, the deputies explained the reason for the traffic stop and
Defendants’ alleged violation, explained there was a safety issue with the car, asked for permission
to search the VIN, asked about their travel plans while doing the VIN search, and asked about the
owner of the car, who was an absent third party. Under these circumstances, the Court concludes
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that all of these actions are within the scope and purpose of a traffic stop, and otherwise did not
unreasonably extend the traffic stop.
A deputy may routinely ask questions about travel plans and car ownership in a traffic stop,
and such questions are within the scope of a traffic stop. These questions are related to the traffic
stop and do not impermissibly extend the duration of the stop. See United States v. AlcarazArellano, 441 F.3d 1252, 1259 (10th Cir. 2006) (“Such limited questioning is proper, because an
officer may routinely ask about travel plans and ownership during a lawful traffic stop.”), citing
United States v. Bradford, 423 F.3d 1149, 1156 (10th Cir. 2005) (officer may ask routine questions
about the driver’s travel plans); see also United States v. Williams, 271 F.3d 1262, 1267 (10th
Cir.2001) (“[W]e have repeatedly held (as have other circuits) that questions relating to a driver's
travel plans ordinarily fall within the scope of a traffic stop.”); see also United States v. Patterson,
472 F.3d 767, 776–77 (10th Cir. 2006) (speaking to passengers about traffic plans is within scope
of traffic stop for speeding), cert. granted, judgment vacated on other grounds, 555 U.S. 1131,
129 S. Ct. 989, 173 L. Ed. 2d 283 (2009). Moreover, if a deputy may ask for a car’s registration,
it would be absurd to prohibit questions about obvious ownership questions arising from viewing
the registration.
This is the same for VIN searches, which are one of the “ordinary inquiries incident to [] a
stop.” United States v. Ramos, 723 F. App'x 632, 637 (10th Cir.) (unpublished) (VIN search
within scope of routine traffic stop), cert. denied, 139 S. Ct. 132 (2018), citing New York v. Class,
475 U.S. 106, 115, 118-19, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) (“a demand to inspect the VIN,
like a demand to see license and registration papers, is within the scope of police authority pursuant
to a traffic violation stop.”).
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Defendants argue that United States v. Caro, 248 F.3d 1240 (10th Cir. 2001) indicates that
a search of both the dashboard and doorjamb VIN is a detention, but that case is limited to “when
(1) the officer has verified the dashboard or doorjamb VIN from outside the passenger
compartment and (2) the officer nevertheless physically enters the passenger compartment to
check the VIN.” United States v. Chavira, 467 F.3d 1286, 1289 n.1 (10th Cir. 2006). “There is no
unlawful detention under Caro if the officer remains physically outside the car when he examines
the VIN on the dashboard, the doorjamb, or both.” Id. Here, the Deputies received consent to do
a VIN search and there is no evidence in the record that any deputy physically entered the
passenger compartment to check the doorjamb VIN.
The VIN search and all questions were related to and within the scope of the traffic stop.
Therefore, nothing unrelated to the traffic stop impermissibly extended the stop.
Moreover, the Court notes that the specific timing of the acts performed were caused by
the delay in seeking a Spanish interpreter. Had there not been that delay Deputy Mora likely could
have asked these questions – and performed the VIN search – while writing out the citation.
Defendants’ objections based on the order of the specific acts in the traffic stop was rejected by
the Tenth Circuit. United States v. Valenzuela, 494 F.3d 886, 890 (10th Cir. 2007). The “order of
events” is not determinative, but rather the Court should focus on the “reasonableness of the traffic
stop in light of both the length of the detention and the manner in which it was carried out ...” Id.
Based on the specific circumstances of this case, asking these routine questions and performing a
VIN search after the citation was written but before it was given to Defendants did not
unreasonably extend the duration of the stop.
Moreover, the duration of the traffic stop was not extended beyond the time reasonably
required to complete it. The fifteen to sixteen-minute duration was reasonably required to
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effectuate the traffic stop. Seven of those minutes were spent waiting for Deputy Mauricio to
arrive to translate during which Deputy Mora filled out the citation. Finally, the transcript and the
evidence produced at the hearings showed that the deputies were diligent in performing the traffic
stop. For example, it appears they asked questions while at the same time performing the VIN
search. Defendants do not argue otherwise, aside from failing to give the warning citation
immediately upon Deputy Mauricio’s arrival.
Notably, if Deputy Mora declined to write out the citation during the seven-minute delay,
there would likely be an objection that he did not work diligently. In other words, the result of
Defendants’ argument is that deputies may not ask any questions of Spanish-speaking Defendants
if there is a delay in getting a translator. The Court does not believe the Tenth Circuit would so
hold under these specific factual circumstances.
Therefore, the Court concludes that the time from Deputy Mauricio’s arrival to the moment
Deputy Mora gave and returned their documents (approximately sixteen minutes into the
encounter) did not exceed the scope of the traffic stop.
B.
Deputy Mora had reasonable suspicion of criminal activity, permitting him
to ask follow-up questions related to ownership of the car and travel plans.
Alternatively, even if the traffic stop was unreasonably extended in scope or duration,
Deputy Mora had reasonable suspicion of criminal activity and authority to ask follow up questions
and perform a VIN search. See, e.g., United States v. Clarkson, 551 F.3d 1196, 1201 (10th Cir.
2009) (“The traffic stop may be expanded beyond its original purpose if during the initial stop the
detaining officer acquires reasonable suspicion of criminal activity.”), cited in Vasquez v. Lewis,
834 F.3d 1132, 1136 (10th Cir. 2016), cert. denied, 137 S. Ct. 1580, 197 L. Ed. 2d 705 (2017).
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“The reasonable suspicion analysis does not consider each of an officer's observations in
isolation, but rather is based on the totality of the circumstances, taking into account an officer's
reasonable inferences based on training, experience, and common sense.” United States v. Garcia,
751 F.3d 1139, 1143 (10th Cir. 2014) (quotation marks and citation omitted), cited in United States
v. Hernandez, 847 F.3d 1257, 1277 (10th Cir. 2017). “Reasonable suspicion may derive from a
series of acts, each of them perhaps innocent if viewed separately, but which taken together warrant
[ ] further investigation.” United States v. Hernandez, 847 F.3d 1257, 1277 (10th Cir. 2017)
(internal quotation marks omitted).
First, Deputy Mora smelled an “overwhelming smell of air freshener.” Based on his
experience and training, Deputy Mora knew that an air freshener could be used to mask the smell
of drugs. Second, Defendant Martinez-Torres had a California driver’s license, but was driving a
vehicle with Texas license plates. Third, the registration listed an absent third party. See United
States v. Pettit, 785 F.3d 1374, 1381–82 (10th Cir. 2015) (registration to absent third party can
indicate drug trafficking), citing United States v. Ludwig, 641 F.3d 1243, 1249 (10th Cir.2011);
United States v. Turner, 928 F.2d 956, 959 (10th Cir.1991); See also United States v. Moore, 795
F.3d 1224, 1231 (10th Cir. 2015) (“The recent registration of a vehicle can contribute to reasonable
suspicion.”). Fourth, Defendant Martinez-Torres was on the insurance but not on the registration.
Finally, the route taken, California to Texas via I-40, based on Deputy Mora’s experience and
training, is a common contraband travel route. All of these facts viewed together support a
reasonable suspicion of drug trafficking activity. Therefore, any extended detention after Deputy
Mauricio arrived was supported by reasonable suspicion.
C.
Reasonable suspicion grew between minute 16 and minute 33.
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Moreover, Deputy Mora’s reasonable suspicion only became stronger as the encounter
went on, further supporting any extended detention or prolonged questioning between minute 16
and minute 33. During this time, the Deputies asked additional questions about travel plans and
car ownership, whether Defendants had any contraband, and weather they consented to a search
of the vehicle.
In addition to the facts above, Deputy Mora heard their implausible and inconsistent story
about why they were traveling back and forth between California and Texas numerous times.
United States v. Ludwig, 641 F.3d 1243, 1249 (10th Cir. 2011) (bizarre travel plans may contribute
to reasonable suspicion of criminal activity). Defendants’ explanation about where they were
going and what they were going to do at their destination was inconsistent and implausible.
Deputy Mora observed extreme examples of nervousness. He observed legs shaking;
Defendants would not look him in the eye, and whenever they asked a question, he would look
back at the vehicle. These extreme, articulable instances of nervousness support reasonable
suspicion. United States v. White, 584 F.3d 935, 950 (10th Cir. 2009) (internal citations and
quotation marks omitted)
Moreover, Deputy Mora did not get any reasonable answer on who owned the car. Rather,
the Defendants apparently did not know who the owner was. United States v. Ludwig, 641 F.3d
1243, 1249 (10th Cir. 2011) (absent third party owner is a factor that may “indicate a stolen vehicle
or drug trafficking”), citing United States v. Olivares–Campos, 276 Fed.Appx. 816, 821 (10th
Cir.2008) (unpublished) and United States v. Turner, 928 F.2d 956, 959 (10th Cir.1991) (defendant
driving car not registered to him supported reasonable suspicion); see also United States v. Pettit,
785 F.3d 1374, 1381–82 (10th Cir. 2015) (defendant driving vehicle registered to absent third party
can indicate drug trafficking). Thus, for the reasons stated above and herein, Deputy Mora had
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reasonable suspicion to extend any detention between minute 16 to minute 33 to ask additional
questions.
III.
Deputy Mora had consent to ask further questions after traffic stop ended
(beginning around minute 15-16, to minute 33).
Alternatively, even if the deputies did not have reasonable suspicion to continue the
detention and question the Defendants after the traffic stop ended, they had consent to ask further
questions beginning around the fifteen to sixteen-minute mark.
The traffic stop ended at
approximately 15:58 into the encounter, when Deputy Mora gave Defendant Martinez-Torres his
citation and gave him back all of his documentation. Deputy Mora then told Defendant MartinezTorres he was free to go but asked for permission to ask him more questions. The Deputies also
relayed that conversation to Defendant Gomez-Arzate and told him they were free to go and that
Defendant Martinez-Torres’ documents had been returned.
Gov. Ex. 3, p. 23-24.
Both
Defendants consented to further questioning.
For consent to be valid, the Government must show that (1) there is clear and positive
testimony that consent was unequivocal and specific and freely given, and that (2) “consent was
given without duress or coercion, express or implied.” United States v. Guerrero, 472 F.3d 784,
790 (10th Cir. 2007); see also United States v. Jones, 710 F.3d 1300, 1318 (10th Cir. 2012). The
Government bears “the burden of proving that consent is given freely and voluntarily.” United
States v. Jones, 701 F.3d 1300, 1318 (10th Cir. 2012) (citation omitted). Voluntariness of consent
“is a factual issue, determined through the totality of the circumstances.” United States v.
Guerrero, 472 F.3d 784, 789 (10th Cir. 2007).
A traffic stop may evolve into a consensual encounter, for “[o]nce the officer has returned
the driver's documents, further questioning amounts to an unlawful detention only if the driver has
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objectively reasonable cause to believe that he is not free to leave.” United States v. Chavira, 467
F.3d 1286, 1290 (10th Cir.2006). “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.” United States v.
Bradford, 423 F.3d 1149, 1158 (10th Cir.2005) (quoting United States v. West, 219 F.3d 1171,
1176 (10th Cir. 2000)). Here, both Defendants gave clear, express, and unequivocal general
consent to continued questioning. Defendants also gave no indication they wanted the encounter
to end.
A.
Defendants’ express consent was not coerced.
Determining whether consent was coerced “turns on whether a reasonable person would
believe he was free to leave or to deny the officer’s request...” United States v. Guerrero, 472 F.3d
784, 790 (10th Cir. 2007). The Court considers the following non-exclusive factors:
the threatening presence of several officers; the brandishing of a weapon by an
officer; some physical touching by an officer; use of aggressive language or tone
of voice indicating that compliance with an officer's request is compulsory;
prolonged retention of a person's personal effects such as identification and plane
or bus tickets; a request to accompany the officer to the station; interaction in a
nonpublic place or a small, enclosed place; and absence of other members of the
public.
Id.; United States v. Jones, 701 F.3d 1300 (10th Cir. 2012); see also United States v. Thompson,
546 F.3d 1223, 1226 (10th Cir. 2008) (additional factors); United States v. Harrison, 639 F.3d
1273, 1279 (10th Cir. 2011) (additional factors).
Here, the Court concludes that the factors weigh heavily toward finding consent was
voluntary and not coerced. No deputy brandished a weapon until the contraband was found and
the defendants were arrested. The tone of the officers was conversational and not aggressive, and
nothing they said in their tone or words indicated that compliance was necessary. Deputy Mora
returned all of Defendant Martinez-Torres’ documentation, and relayed that fact to Defendant
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Gomez-Arzate. The encounter occurred in public view. Moreover, the Deputies gave Defendant
Martinez-Torres the opportunity to call his daughter. Only two or three Deputies were present
when Defendants gave their consent, and there is no indication they were positioned in a coercive
manner.
There was no evidence of any show of authority. The Deputies did not unholster or draw
their weapons, physically touch the Defendants, or use a commanding or aggressive tone indicating
that compliance was mandatory.
Moreover, Defendants were both told they were free to go and were then asked for consent
to continue the questioning. United States v. Sandoval, 29 F.3d at 544 (The Tenth Circuit has
“regularly considered, as ‘important factors’ on the issue of voluntariness although not dispositive,
whether the driver was informed of his right to refuse consent or to proceed on his way.”)
(emphasis added). This weighs toward finding that consent was voluntary.
Defendant Martinez-Torres appears to argue that Deputy Mora detained Defendnat
Martinez-Torres when he called out “Guillermo!” Here, after Defendant Martinez-Torres was
given his documents and citation, he began walking back to his car and Deputy Mora called out
“Guillermo!” Defendant Martinez-Torres voluntarily walked back, and Deputy Mora (through
Deputy Mauricio) said “Do you- do you understand you’re free to go? But we want to ask you
some more questions, if that’s okay.” Deputy Mora repeated that “do you understand that you are
– you are free to go?” Defendant Martinez-Torres replied “yes.” Both Deputies were polite and
pleasant during this interaction. Therefore, the Court concludes that this interaction did not convey
an overbearing show of authority. See, e.g., United States v. Jimenez-Valenia, 2009 WL 1181324,
at *6 (D. Utah May 1, 2009) (Defendant was called back after traffic stop ended), aff'd, 419 F.
App'x 816 (10th Cir. 2011).
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Based on the totality of the circumstances, the Court finds that this consent was voluntary
and not coerced.
B.
Passenger (Defendant Gomez-Arzate) consented to additional questioning.
Defendant Gomez Arzate asserts that he could not have voluntarily consented, because he
was sitting in the car and did not hear the Deputies’ conversation with Defendant Martinez-Torres
But here, Defendant Gomez-Arzate was told by Deputy Mora that Defendant MartinezTorres was given all of his documents back, was only given a warning citation, and was free to
leave. Deputy Mauricio then told Gomez-Arzate that he was free to leave, but asked for permission
to ask him further questions. Gov. Ex. 3, p. 24. Defendant Gomez-Arzate then consented. These
circumstances are therefore distinguishable from United States v. Guerrero-Espinoza, 462 F.3d
1302, 1309 (10th Cir. 2006), in which the passenger had no knowledge that the documents were
returned or that the driver was told he was free to leave.
Moreover, based on the totality of the circumstances, the Court finds that Defendant
Gomez-Arzate’s consent was voluntary and uncoerced. Therefore, a reasonable person in either
Defendants’ position would have believed they were free to go.
IV.
Deputies had consent to search car.
Later on, Defendants also consented expressly and voluntarily to the search of the car.
Defendants consented orally and in writing.
A.
Consent was voluntary and uncoerced.
As explained above, the totality of the circumstances indicates that Defendants’ consent to
search the car was voluntary and uncoerced. There was no government action that implied the
Defendants had no right to refuse consent to search. Moreover, both Defendants consented in
writing to the search, and the record indicates they had the opportunity to ask questions about the
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form and they understood it. “A signed consent form is indicative of a voluntary consent.” Eidson
v. Owens, 515 F.3d 1139, 1147 (10th Cir. 2008), citing Glover, 104 F.3d at 1584. Defendants read
the consent form. The consent form was in Spanish, and the Deputies verified that both Defendants
could read Spanish and understand the form. Based on the totality of the circumstances, the Court
concludes that Defendants’ consent was voluntary.
Defendants appear to argue that they were confused as to what would be searched. The
Court disagrees. The Deputies asked for permission to search the car, and the written consent form
indicated that the car would be searched.
B.
Search was within scope of consent.
Defendants argue that the search was outside of the scope of consent, because the search
went on too long and the deputies dismantled and allegedly damaged portions of the car.
1.
Duration of Search. Defendants argue that the search went on too long,
exceeding the scope of consent. “There is no absolute rule specifying the permissible duration of
a search performed with the defendant's consent. Rather, the court asks what a reasonable person
would have understood to be the scope and duration of his consent under the circumstances.”
United States v. Carbajal-Iriarte, 586 F.3d 795, 801 (10th Cir. 2009) (combined searches lasting
an hour and half to two hours did not exceed scope of consent), citing United States v. Rosborough,
366 F.3d 1145, 1150 (10th Cir. 2004) (“As to duration, we find nothing in the record that would
suggest that Rosborough objectively communicated a request to limit the duration of the
search…”).
Here, the search took approximately an hour and a half. Defendants did not limit or provide
any parameters for the search. Moreover, they did not at any time object to the duration of the
search. Rather, they both consented to the search orally and in writing. Finally, there is no
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indication, and Defendants do not argue, that the officers lacked diligence in their search.
Therefore, the Court concludes that the duration was of the search did not exceed the scope of
Defendants’ consent.
2.
General consent to search. “A defendant's failure to limit the scope of a
general authorization to search, and failure to object when the search exceeds what he later claims
was a more limited consent, is an indication that the search was within the scope of consent.”
United States v. Jackson, 381 F.3d 984, 988 (10th Cir. 2004); see also United States v. Amador–
Beltran, 655 F. App'x 666, 668 (10th Cir. 2016) (Amador–Beltran's “consent to the search of [her]
bag for narcotics could be reasonably construed as consent to search any containers within the bag
which could have held narcotics.”). The Tenth Circuit has “consistently and repeatedly [] held a
defendant's failure to limit the scope of a general authorization to search, and failure to object when
the search exceeds what he later claims was a more limited consent, is an indication the search was
within the scope of consent.” United States v. Gordon, 173 F.3d 761, 766 (10th Cir. 1999).
A “general consent” search may also include partially disassembling vehicles when a
defendant does not object. See United States v. Marquez, 337 F.3d 1203, 1209 (10th Cir. 2003)
(“We are therefore presented with a situation not much different than the situation presented in
several of our cases upholding an officer's partial dismantling of an automobile pursuant to a
general consent to search when the suspect did not object.”); see also United States v. Felix, 12 F.
App'x 827, 831 (10th Cir. 2001), citing United States v. McRae, 81 F.3d 1528, 1537-38 (10th
Cir.1996) (removing trunk carpeting); United States v. Santurio, 29 F.3d 550, 553 (10th Cir.1994)
(unscrewing strip holding down interior carpet and removing carpet); United States v. Pena, 920
F.2d 1509, 1515 (10th Cir.1990) (removing rear quarter panel vent and cardboard found beneath);
United States v. Espinosa, 782 F.2d 888, 892 (10th Cir. 1986) (removing back seat).
21
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Here, Defendants gave general consent to search the car. Because Defendants did not give
any limit on the scope of the search, this general consent included consent to partially disassemble
the car, as cited above. Defendants did not limit the scope of consent or object at any time during
the search. Rather, they both signed a written consent form to the search of the car and agreed to
the search orally. Under the specific facts of this case, the Court concludes that the deputies did
not exceed the scope of the Defendants’ consent to search.
3.
Partial dismantlement of car. Defendant asserts that general consent usually
does not include consent to destroy or render an object useless, unless specifically consented to.
United States v. Osage, 235 F.3d 518, 522 (10th Cir. 2000) (“We therefore hold that, before an
officer may actually destroy or render completely useless a container which would otherwise be
within the scope of a permissive search, the officer must obtain explicit authorization, or have
some other, lawful, basis upon which to proceed.”).
Unlike in Osage, there is no indication here that the search “destroy[ed] or render[ed]
completely useless a container.” Osage, 235 F.3d at 522. Rather, if any damage did occur, it was
“well short of the complete and utter destruction or incapacitation as in Osage.” United States v.
Marquez, 337 F.3d 1203, 1209 (10th Cir. 2003) (removal of plywood nailed down to bench in RV
was de minimis damage); see also United States v. Jackson, 381 F.3d 984, 989 (10th Cir. 2004)
(“any loss or contamination of the baby powder by Perry's search with his blade was de minimis
and well short of the type of complete and utter destruction or incapacitation that was the focus of
our concern in Osage.”).
Moreover, there is no indication in the record that the vehicle was even damaged during
the search. Here, prior to removing the rear quarter panel, Deputy Mora observed tool marks near
the rear quarter panel. The testimony given was that a quarter panel, when taken off, can be put
22
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Case 1:18-cr-01960-WJ Document 49 Filed 01/04/19 Page 23 of 26
back on without any further damage. In fact, someone had already taken off the quarter panel and
put it back on to hide the drugs.
There was also testimony that the air filter was removed. But there is no indication in the
record that removing the filter caused any sort of damage. Rather, an air filter is a removeable and
replaceable part. Finally, a fender was taken off, but it was put back on. Therefore, the
Government has satisfied any burden of showing that no damage occurred.
Here, Defendants argue that they were both told to stand away from the car, therefore could
not observe the search and could not object. But Defendants could see that the car was being
dismantled – in fact, one of the Defendants even offered to assist to put the fender back on. Under
these circumstances, Defendants had the ability to object to the dismantlement of the car or revoke
their consent.
Instructing Defendants to stand away from the car was a reasonable safety precaution and
under the totality of the circumstances, did not turn the encounter coercive. United States v.
Manjarrez, 348 F.3d 881, 887 (10th Cir. 2003) (pat down following consent to search car was
reasonable for officer safety, did not turn encounter coercive); United States v. Harmon, 785 F.
Supp. 2d 1146, 1174 (D.N.M. 2011) (after consent given, asking Defendant to walk a little ways
so that search could be conducted in a safe manner), aff'd, 742 F.3d 451 (10th Cir. 2014); see also
United States v. Jimenez-Valenia, 419 F. App'x 816, 821 (10th Cir. 2011) (unpublished)
(Defendant standing 100 feet from car that was being searched had opportunity to revoke consent).
V.
Any prior illegal detention was attenuated and not a but-for cause of Defendants
Granting Consent to Search Car.
The Government argues that any illegally prolonged detention was not a but-for cause of
Defendants granting consent to search the car and was otherwise attenuated. The Court did not
23
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Case 1:18-cr-01960-WJ Document 49 Filed 01/04/19 Page 24 of 26
find any illegal detention, but as an alternative basis for denying the motion, agrees with the
Government.
A.
But-for causation analysis.
Generally, evidence will not be suppressed as fruit of the poisonous tree unless an unlawful
search or seizure is at least the but-for cause of its discovery. See United States v. Chavira, 467
F.3d 1286, 1292 (10th Cir. 2006) (“There is no indication that the trooper would not have requested
or obtained consent to search the truck but for the inspection of the VIN on the doorjamb. We may
not suppress evidence without but-for causation.”); United States v. Nava-Ramirez, 210 F.3d 1128,
1131 (10th Cir. 2000) (stating that to establish a factual nexus the defendant must show that the
evidence “would not have come to light but for the government's unconstitutional conduct.”).
Here, even if the VIN search or questions about travel plans or ownership of the vehicle
impermissibly prolonged Defendants’ detention, the record does not indicate that this was a butfor cause of Defendants granting permission to search the vehicle. Moreover, the deputies
conveyed to the Defendants that they were free to go. Each time the Deputies requested permission
to do something, Defendants freely gave consent. There was no indication of coercion or pressure
as a result of the delay that caused Defendants to consent. In other words, there is no indication
that the deputies would not have obtained consent to search the vehicle but-for the questions and
the VIN search. Chavira, 467 F.3d at 1291.
B.
Attenuation Analysis.
Under the attenuation doctrine, “[e]vidence is admissible when the connection between
unconstitutional police conduct and the evidence is remote or has been interrupted by some
intervening circumstance, so that the interest protected by the constitutional guarantee that has
been violated would not be served by suppression of the evidence obtained.” Utah v. Strieff, –––
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Case 1:18-cr-01960-WJ Document 49 Filed 01/04/19 Page 25 of 26
U.S. ––––, 136 S.Ct. 2056, 2061, 195 L.Ed.2d 400 (2016). The Court analyses the following
factors: “1) the temporal proximity between the police illegality and the consent to search; 2) the
presence of intervening circumstances; and particularly 3) the purpose and flagrancy of the official
misconduct.” Melendez-Garcia, 28 F.3d at 1054.
As to the first factor, there is a close temporal proximity between the alleged seizure and
Defendants’ consent to search the car. This weighs against attenuation.
As to the second factor, the Government must identify events that “isolate[ ] the defendant
from the coercive effects of the original illegal stop.” United States v. Gregory, 79 F.3d 973, 980
(10th Cir. 1996). Here, the Deputies returned Defendant Martinez-Torres documents, advised both
they were free to leave, and asked for consent to search the car. The Deputies obtained this written
and verbal consent prior to any search of the vehicle. After verbally consenting, the Defendants
read the written consent form of the search and signed it. The Deputies made sure that Defendants
understood the form. The Court finds that this factor weighs towards a finding of attenuation. See
Mendoza–Salgado, 964 F.2d at 1012 (explaining a consent form and advising an individual of the
right to withhold consent), cited in United States v. Fox, 600 F.3d 1253, 1261 (10th Cir. 2010).
As to the third factor, there was no purposeful or flagrant misconduct. “[P]urposeful and
flagrant misconduct is generally found where: 1) the impropriety of the official’s misconduct was
obvious or the official knew, at the time, that his conduct was likely unconstitutional but engaged
in it nevertheless and 2) the misconduct was investigatory in design and purpose and executed in
the hope that something might turn up.” Fox, 600 F.3d at 1261. The impropriety of misconduct,
if any, was not obvious, and there is no indication that the Deputies knew their behavior was
unconstitutional. Moreover, the Deputies did not engage in a fishing expedition. As explained
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Case 1:18-cr-01960-WJ Document 49 Filed 01/04/19 Page 26 of 26
above, they had strong reasonable suspicion of drug activity.
This factor weighs toward
attenuation.
Therefore, viewing the factors together, the Court concludes that any prolonged illegal
detention was attenuated from Defendants’ consent to search the car.
CONCLUSION
The initial traffic stop was valid and not impermissibly prolonged. Beginning around the
fifteen to sixteen-minute mark, the traffic stop ended and became a consensual encounter.
Alternatively, any prolonged detention was supported by reasonable suspicion.
Finally,
Defendants voluntarily consented to the search of the car, and such consent was attenuated from
any illegal detention. Therefore, Defendants’ motion to suppress (Doc. 29) is DENIED.
IT IS SO ORDERED.
______________________________________
CHIEF UNITED STATES DISTRICT JUDGE
26
App. 55
Appellate Case: 19-2119
Document: 010110457366
Date Filed: 12/29/2020
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Page: 1
FILED
United States Court of Appeals
Tenth Circuit
December 29, 2020
Christopher M. Wolpert
Clerk of Court
Plaintiff - Appellee,
v.
No. 19-2119
(D.C. No. 1:18-CR-01960-WJ-2)
(D. N.M.)
JESUS GOMEZ-ARZATE,
Defendant - Appellant.
_________________________________
ORDER
_________________________________
Before LUCERO, KELLY, and BACHARACH, Circuit Judges.
_________________________________
Appellant’s petition for rehearing is denied.
The petition for rehearing en banc was transmitted to all of the judges of the court
who are in regular active service. As no member of the panel and no judge in regular
active service on the court requested that the court be polled, that petition is also denied.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
App. 56
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