Petition for Writ of Certiorari — Guillermo Martinez-Torres, Petitioner v. United States

APPENDIX

A

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FILED

United States Court of Appeals

PUBLISH Tenth Circuit

December 2, 2020

UNITED STATES COURT OF APPEALS

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,

V. No. 19-2121

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.! 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(1).

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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, “[yl]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-for-

traffic 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.” 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.cal0.uscourts.gov/oralarguments/19/19-2121.mp3.

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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. Gomez-

Arzate 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 *S—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.* 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 /east 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]Je 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.

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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 | 1 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 Nava-

Ramirez, 210 F.3d at 1131).

iii. Minutes 16 to 33

Next, we turn to what occurred after Deputy Mora returned Mr. Martinez-

Torres’ 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.

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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

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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. Martinez-

Torres was listed on the insurance — only added to the deputies’ reasonable

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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.

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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.

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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

“It]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

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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.

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Appellate Case: 19-2121 Document: 010110446472 Date Filed: 12/02/2020 Page: 1

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

OFFICE OF THE CLERK

Byron White United States Courthouse

1823 Stout Street

Denver, Colorado 80257

(303) 844-3157

Christopher M. Wolpert Jane K. Castro

Clerk of Court December 02, 2020 Chief Deputy Clerk

Ms. Sylvia Baiz

Office of the Federal Public Defender

District of New Mexico

111 Lomas, NW, Suite 501

Albuquerque, NM 87102

Mr. Michael Ian Garey

Law Office of Michael Ian Garey

714 North Spurgeon Street

Santa Ana, CA 92701-0000

RE: 19-2119, 19-2121, United States v. Gomez-Arzate

Dist/Ag docket: 1:18-CR-01960-WJ-2

Dear Counsel:

Enclosed is a copy of the opinion of the court issued today in this matter. The court has

entered judgment on the docket pursuant to Fed. R. App. P. Rule 36.

Pursuant to Fed. R. App. P. 40(a)(1), any petition for rehearing must be filed within 14

days after entry of judgment. Please note, however, that if the appeal is a civil case in

which the United States or its officer or agency is a party, any petition for rehearing must

be filed within 45 days after entry of judgment. Parties should consult both the Federal

Rules and local rules of this court with regard to applicable standards and requirements.

In particular, petitions for rehearing may not exceed 3900 words or 15 pages in length,

and no answer is permitted unless the court enters an order requiring a response. If

requesting rehearing en banc, the requesting party must file 6 paper copies with the clerk,

in addition to satisfying all Electronic Case Filing requirements. See Fed. R. App. P.

Rules 35 and 40, and 10th Cir. R. 35 and 40 for further information governing petitions

for rehearing.

Appellate Case: 19-2121 Document: 010110446472 Date Filed: 12/02/2020 Page: 2

Please contact this office if you have questions.

Sincerely,

Fe Drea

Christopher M. Wolpert

Clerk of the Court

ce: Jack Edward Burkhead

Nicholas J. Ganjei

CMW/na

APPENDIX

B

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. Doe. 15.

The Court makes the following factual findings following an evidentiary hearing.'! 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.

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”’,

trom 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.

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

tor 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

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