RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Garrido-Santana No. 02-6076 ELECTRONIC CITATION: 2004 FED App. 0052P (6th Cir.) File Name: 04a0052p.06 OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, for Appellant. Thomas A. Colthurst, UNITED STATES COURT OF APPEALS ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee. FOR THE SIXTH CIRCUIT _________________ _________________
UNITED STATES OF AMERICA , X OPINION Plaintiff-Appellee, - _________________ - - No. 02-6076 KENNEDY, Circuit Judge. Defendant Elvis Garrido- v. - Santana entered a conditional plea of guilty to one count of > possessing cocaine with the intent to distribute in violation of , 21 U.S.C. § 841(a) (1). Defendant appeals the district court’s ELVIS A. GARRIDO -SANTANA , - Defendant-Appellant. - denial of his motion to suppress evidence. Defendant also appeals the district court’s application of a sentence N enhancement for obstruction of justice under United States Appeal from the United States District Court Sentencing Guidelines (“U.S.S.G.”) § 3C1.1 and its denial of for the Western District of Tennessee at Memphis. a sentence reduction for acceptance of responsibility under No. 97-20204—Samuel H. Mays, Jr., District Judge. U.S.S.G. § 3E1.1. For the reasons explained below, we AFFIRM the denial of defendant’s suppression motion and Argued: December 5, 2003 his sentence.
Decided and Filed: February 20, 2004 I. Background
Before: KENNEDY, MARTIN, and MOORE, Circuit Defendant Garrido-Santana was indicted on one count of Judges. possessing cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a) (1). Defendant failed to appear for his _________________ arraignment on that charge after being released on bond. Based upon this failure to appear, the government secured a COUNSEL superseding indictment that added a second count charging defendant with violating 18 U.S.C. § 3146(a)(1). Defendant ARGUED: Needum L. Germany, OFFICE OF THE was ultimately arraigned upon being extradited from the FEDERAL PUBLIC DEFENDER FOR THE WESTERN Dominican Republic, the country to which he fled. Defendant DISTRICT OF TENNESSEE, Memphis, Tennessee, for filed a motion to suppress evidence flowing from police Appellant. Thomas A. Colthurst, ASSISTANT UNITED officers’ traffic stop of the rental vehicle that defendant was STATES ATTORNEY, Memphis, Tennessee, for Appellee. driving. After conducting an evidentiary hearing, the ON BRIEF: Doris A. Randle-Holt, Stephen B. Shankman, magistrate judge, to whom the district court had referred
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defendant’s suppression motion, issued a report and tractor-trailer had maintained the posted speed or had slowed recommendation advising the district court to deny that down. Lomax’s accurately-calibrated speedometer and radar motion. Adopting the magistrate judge’s proposed findings “clocked” the sedan at 71 mph. Activating his squad car and recommendation, the district court denied defendant’s lights, Lomax pulled the sedan over for speeding. suppression motion. Defendant entered a conditional plea of guilty to count one of possessing cocaine with the intent to Upon approaching the driver’s side door of the sedan, distribute in violation of 21 U.S.C. § 841(a) (1), expressly Lomax asked defendant, who was traveling alone, for his reserving his right to appeal the denial of his suppression driver’s license. Defendant handed Lomax a Puerto Rico motion. The district court, pursuant to the government’s driver’s license in the name of “Elvis A. Garrido.” motion, dismissed count two charging defendant with failing Examining the license, Lomax found it to be valid and to appear at his arraignment. However, in sentencing current. Lomax informed defendant that he had stopped him defendant on count one, the district court relied on this failure for speeding. Lomax then inquired about defendant’s place to appear in enhancing defendant’s sentence by two levels of departure and destination. Defendant replied that he had under U.S.S.G. § 3C1.1 for obstruction of justice and in come from Houston, Texas, and was heading to New York to refusing to reduce defendant’s sentence under U.S.S.G. visit his mother. Asked if he lived in Puerto Rico, defendant § 3E1.1 for acceptance of responsibility. After applying all answered in the affirmative. Lomax testified that he was of the relevant factors, the district court ultimately arrived at suspicious of the fact that defendant, a resident of Puerto a Guidelines’ range in which it sentenced defendant to ninety- Rico, was driving a car with Texas plates. After Lomax asked seven months of imprisonment followed by three years of about the vehicle’s ownership, defendant informed Lomax supervised release. that it was a rental car. Defendant produced the rental agreement for which Lomax asked. The rental agreement II. Defendant’s Suppression Motion evidenced the following: 1) another individual named “Junior Santana,” a resident of New York, had rented the vehicle at A. Relevant Facts the Hobby Airport, in Houston, Texas, on September 16, 1997; 2) the vehicle was to be returned to that airport by 7:00 In denying the suppression motion, the district court found p.m. the following day–September 19th; 3) a notation of “add the following facts. On the morning of September 18, 1997, driver $10.50"; and 4) an illegible signature near Junior Patrolman Terry M. Lomax (“Lomax”) of the Shelby County Santana’s signature. Lomax noticed that the rental agreement Sheriff’s Department was parked in a marked squad car in the did not list defendant, in typewriting, as an additional driver. grassy median strip of Interstate 40 in Shelby County, Upon being asked, defendant informed Lomax that “Junior Tennessee. When a 1997 Chrysler LHS sedan–the vehicle Santana” was his cousin. Defendant told Lomax that that defendant was driving–passed his position, Lomax defendant had flown from Puerto Rico to Miami, Florida, and pointed his radar speed-clocking unit at the sedan. Yet, the then to Houston, Texas, where he and his cousin had rented radar picked up only a large tractor-trailer that was traveling the vehicle for defendant to drive to New York. Lomax was in the east-bound lane adjacent to the sedan; it indicated that aware that the vehicle that defendant was driving was known the tractor-trailer was proceeding at the posted speed limit of to have easily accessible places in which to hide narcotics. 65 mph. After the sedan passed the tractor-trailer, Lomax pulled his vehicle out of the median and pulled alongside the Believing that the rental agreement did not list defendant as sedan. As he testified, Lomax did not know whether the an additional driver, Lomax ran a license plate check to No. 02-6076 United States v. Garrido-Santana 5 6 United States v. Garrido-Santana No. 02-6076
ensure that the vehicle was not stolen. At some point, Lomax Lomax was placing defendant in the squad car, defendant began filling out a warning citation–a courtesy ticket that volunteered that he had been stopped twice before on his trip carries no penalties–for defendant’s speeding. Lomax and had been searched. When Lomax questioned defendant advised defendant that he was giving defendant a warning about these stops, defendant stated that he had no citation but that he was still awaiting the return of a computer documentation for them. Upon being asked, defendant check. Lomax observed that, even after he had informed affirmed that he had been in possession of the vehicle at all defendant that he would only receive a warning ticket, times during his trip. Because defendant would have been defendant continued to exhibit signs of nervousness, such as unable to exit the squad car, Lomax instructed him on how to avoiding eye contact, laughing nervously, and fidgeting; use its public address system in case he needed to based upon his experience, Lomax found this nervousness communicate with the officers. unusual. Returning the rental agreement and license to defendant, Lomax explained the courtesy citation, which he Recalling that it affords easy access to the gas tank, in was still filling out, to defendant. Lomax asked if defendant which drugs have been smuggled, they opened the trunk of had any illegal contraband, such as drugs or stolen goods, in the vehicle.1 Upon pulling the carpet back, Lomax saw a his vehicle. Defendant replied in the negative. Lomax asked sliver plate, which four bolts fastened and which provided if defendant would consent to a search of the vehicle. access to the gas tank sending unit, a device that signals the Defendant answered in the affirmative. Lomax gave dashboard about the amount of gasoline in the gas tank. Lane defendant the courtesy citation to sign. After defendant and Lomax noticed that the bolts fastening the silver plate had signed the citation, Lomax gave defendant a copy of the scratches around them as if they had been removed and then citation as well as a consent-to-search form. Lomax advised replaced. Because the vehicle was new and had very low defendant to read the consent form and to ask any questions mileage, Lomax found this apparent removal of the plate that he might have before signing it. Defendant signed the unusual. Lomax believed that the tools in the passenger consent form. Approximately ten minutes had elapsed compartment were to be used in removing the silver plate so between the initial traffic stop and defendant’s execution of as to access the gas tank. Lomax and Lane removed the the consent form. trunk’s silver plate to access the gas tank. By inserting a fiber optic scope into the top of the gas tank, Lomax observed Around the time that defendant signed the consent form, white cellophane-covered bundles in the gas tank. Believing Patrolman Dale Lane (“Lane”)–also of the Shelby County that these bundles contained illegal narcotics, Lomax and Sheriff’s Department–arrived. Although they used a drug Lane arrested defendant. At no time during the search did detection dog to survey the vehicle, the dog did not alert to defendant object to its duration or scope. Sometime after the the presence of narcotics. Both Lomax and Lane quickly completion of the search, Lomax received the computer check looked around the sedan. At some point, Lane and Lomax saw unopened packages of a pair of pliers and an adjustable wrench in a bag on the floor of the front passenger seat. While standing beside the rear of the vehicle, Lane informed 1 Lomax that he smelled a strong odor of gasoline. Lomax Although it is unclear whether Lomax examined the vehicle’s access smelled nothing as he suffered from sinus congestion at the plate and suspected its removal before he observed the tools in the time. They asked defendant, who was standing near the rear passenger compartment and before he placed defendant in the squad car, it is clear that Lomax and Lane removed the access plate only after these of the vehicle, to sit in the back of Lane’s squad car. As events. No. 02-6076 United States v. Garrido-Santana 7 8 United States v. Garrido-Santana No. 02-6076
and learned that the vehicle was not stolen. Seven bundles of reasonable and articulable suspicion that criminal activity was cocaine were subsequently seized from the vehicle’s gas tank. afoot.” United States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999). B. Analysis Defendant appeals the district court’s denial of his We review the district court’s legal conclusions in a suppression motion on the ground that Lomax’s initial stop of suppression hearing de novo and its factual findings in a defendant’s vehicle violated the Fourth Amendment. In suppression hearing for clear error. United States v. Smith, particular, defendant argues that Lomax actually stopped 263 F.3d 571, 581-82 (6th Cir. 2001). The district court’s defendant’s vehicle based upon his suspicion that defendant determination as to the existence of probable cause justifying was involved in illegal drug trafficking, not based upon an a traffic stop is a question of law that we review de novo. alleged speeding violation. However, in Whren v. United United States v. Rodriguez-Suazo, 346 F.3d 637, 643 (6th Cir. States, 517 U.S. 806, 813, 819 (1996), the Supreme Court 2003). The district court’s determination as to whether the held that, as long as a police officer has probable cause to facts establish an unconstitutional seizure under the Fourth believe that a motorist committed a traffic violation, the Amendment is a question of law that we review de novo. resulting traffic stop is generally reasonable under the Fourth United States v. Avery, 137 F.3d 343, 348 (6th Cir. 1997). Amendment regardless of the officer’s subjective intent or The district court’s determination of whether a search state of mind in conducting the traffic stop. 2 Accord United exceeded the scope of consent is a question of fact that we States v. Bailey, 302 F.3d 652, 657 (6th Cir. 2002) (noting review for clear error. United States v. Fowler, 42 F.3d 1389, that “[i]t is well established . . . that an officer’s actual 1994 WL 685417, at *6 (6th Cir. 1994). When considering motivation for making a traffic stop is irrelevant to the the denial of a suppression motion, we must view the constitutionality of that stop”); Wellman, 185 F.3d at 655 evidence in the light most favorable to the government. (finding that, where probable cause for the traffic stop exists, United States v. Wellman, Jr., 185 F.3d 651, 654-55 (6th Cir. whether the police officer was motivated in conducting the 1999). traffic stop based upon his “suspicion that the defendant fits into a ‘drug courier profile’” or his membership in a drug 1. Validity of the Traffic Stop interdiction unit is irrelevant to the stop’s constitutionality under the Fourth Amendment). A traffic stop is reasonable under the Fourth Amendment where the stop was both proper at its inception and Alternatively, defendant contends that Lomax lacked “reasonably related in scope to the circumstances . . . [that] probable cause to justify the traffic stop of defendant’s justified the . . . [stop] in the first place.” United States v. vehicle because defendant had not, in fact, been speeding Freeman, 209 F.3d 464, 466 (6th Cir. 2000) (quoting Terry v. Ohio, 392 U.S. 1, 19-20 (1968)) (internal quotation marks omitted). A police officer may lawfully stop a motorist 2 whom he has probable cause to believe has committed a As evidence that the stop was pre-textual, defendant underscores that Lomax was suspicious of defendant because he had a Puerto Rico traffic violation. Id. However, a police officer cannot driver’s license and was driving a vehicle with Texas tags. However, we continue to detain a motorist after the officer has completed note that such subjective suspicion is factually–as well as the initial purpose of the traffic stop “unless something that legally–irrelevant to the validity of the initial traffic stop because Lomax occurred during the stop caused the officer to have a only learned about defendant’s residency after he had sto ppe d defendant’s vehicle. No. 02-6076 United States v. Garrido-Santana 9 10 United States v. Garrido-Santana No. 02-6076
prior to that stop. At the suppression hearing, Lomax testified had the opportunity to view the witness[es] on the stand and that, while pacing defendant’s vehicle with his squad car, he [to] assess . . . [their] demeanor.”). Because defendant was used both his calibrated speedometer and his radar to speeding in violation of Tennessee law, Lomax had probable determine that defendant’s vehicle was traveling at 71 mph in cause to stop defendant’s vehicle. a 65 mph zone. Defendant asserts that this testimony is unworthy of belief. Yet, the only evidence that defendant Defendant also appeals the district court’s denial of his offers to refute this testimony is his own testimony at the suppression motion on the ground that the traffic stop was not suppression hearing. In particular, defendant testified that he reasonably related in scope and duration to the initial purpose did not “think” that he was speeding because he knew that the of the stop–the speeding violation. Defendant contends that posted speed limit was 65 mph, he had cruise control, he had this initial purpose ended when defendant signed the courtesy never broken the law, and he had never been stopped for ticket and Lomax returned the rental agreement and driver’s speeding. However, the district court reasonably found that license to defendant.3 According to defendant, Lomax then defendant was not a credible witness. For example, defendant prolonged the detention when he, in effect, informed later testified that police had stopped him and had given him defendant that he could not leave because Lomax was a courtesy citation the night before Lomax had stopped him. awaiting the return of a computer check. The thrust of Defendant also demonstrated his propensity to lie under oath defendant’s argument is that it was not “reasonably related” when, in 1997, he failed to appear at his arraignment despite to the speeding violation for Lomax to have conducted a having promised the district court, as a condition of his bond, computer check to ensure that defendant was lawfully that he would appear at all required proceedings. In an operating the vehicle because such a check was unnecessary attempt to negate Lomax’s testimony, defendant contends that and, thus, unreasonable under the totality of the it would have been unreasonable for defendant to have sped circumstances. Defendant contends that a reasonable police past Lomax’s squad car since it was clearly visible to passing officer would infer from defendant’s illegible signature near motorists and was positioned so as to pursue any violators the renter’s signature and the notation of “add driver $10.50" easily. Similarly, defendant argues that it would have been on the rental agreement that defendant was lawfully operating even more unreasonable for him to have continued to speed the vehicle. At the suppression hearing, Lomax testified that, after Lomax began pacing defendant’s vehicle. However, as after looking at the rental agreement “closely,” he ran the the district court aptly observed, “[c]ommon experience computer check on the vehicle’s license plate because he did teaches that speeding motorists are usually apprehended when not see defendant’s name “listed”–or printed–on the police are positioned to observe them and often when the agreement. Lomax elaborated that about ninety-nine percent motorist can observe the officer as well.” The district court of the rental agreements that he had seen listed the name of correctly recognized that, in any event, no evidence in the record demonstrates that defendant is a reasonable motorist. Viewing the evidence in the light most favorable to the 3 Defendant argues that Lomax testified that defendant signed the government, the district court did not clearly err in choosing warning ticket before Lomax returned the rental agreement and driver’s to credit Lomax’s testimony that defendant was speeding over license. However, Lomax actually testified–and the district court defendant’s self-interested and inconsistent testimony to the found–that Lom ax returned the rental agreement and d river’s license to contrary. See Peveler v. United States, 269 F.3d 693, 702 defendant while Lomax was filling out the courtesy citation and before defendant signed it. In any event, after returning defendant’s documents (6th Cir. 2001) (“We are generally reluctant to set aside and issuing a copy o f the signed courtesy ticket, Loma x did continue to credibility determinations made by the trier of fact, who has detain defendant pending the completion of the computer check. No. 02-6076 United States v. Garrido-Santana 11 12 United States v. Garrido-Santana No. 02-6076
the additional driver in the same type of print in which the examining defendant’s driver’s license probably would have renter’s name was listed. Lomax testified that he first focused upon the picture and the expiration date, as Lomax recognized the signature on the rental agreement as did. We note that, even if the rental agreement reasonably defendant’s after he had returned to the police station and was appeared to authorize defendant as an additional driver, a comparing that document with defendant’s driver’s license reasonable police officer would still have good reason to run and the courtesy ticket that defendant had signed. As to a license plate check. For example, defendant may have whether it was reasonable to believe that the vehicle was forged that authorization, or the rental company may have stolen, Lomax underscored that, along with defendant’s name rescinded such authorization, even if initially valid, due to a not being printed on the rental agreement, Lomax knew of violation of the rental agreement. As the Supreme Court has instances in which authorized individuals had not done recognized, states have a critical interest in ensuring that something that the rental agreement required them to do. As motorists observe licensing and registration requirements as Lomax testified, “[t]here are always reasons to do checks.” well as a legitimate interest in controlling automobile thefts. Delaware v. Prouse, 440 U.S. 648, 658, 659 n.18 (1979). We Defendant contends that Lomax’s testimony is incongruous note that defendant’s detention until the completion of the with the facts. To the extent that defendant asks us to set computer check–sometime after the search of the vehicle–was aside the district court’s determination that Lomax was a not intrusive. The pendency of the computer check was credible witness, we find no reason to accept such an largely co-extensive with the vehicle search, to which invitation. See Peveler, 269 F.3d at 702. Moreover, defendant consented before Lomax had finished issuing the defendant’s focus upon Lomax’s subjective intent in or warning citation and to whose duration defendant never justification for running the computer check on the license objected. During the unknown amount of time between the plate is misplaced. “[T]he touchstone of the Fourth completion of the search and that of the computer check, Amendment is reasonableness . . . measured in objective defendant was under lawful custodial arrest based upon the terms by examining the totality of the circumstances.” Ohio fruits of the search. In sum, under the totality of the v. Robinette, 519 U.S. 33, 39 (1996) (internal quotation marks circumstances, it was objectively reasonable and within the omitted; emphasis added). Here, while the rental agreement bounds of the traffic stop for Lomax to have requested a displayed defendant’s signature and a charge for an additional computer check to ensure that defendant was lawfully driver, defendant’s signature was illegible and located in an operating the vehicle. See id. at 663 (“[E]xcept in those odd location on that agreement. A reasonable officer likely situations in which there is at least articulable and reasonable would not have recognized that illegible signature as suspicion that a motorist is unlicensed or that an automobile belonging to defendant unless and until he placed defendant’s is not registered, or that either the vehicle or an occupant is driver’s license directly beside the rental agreement and otherwise subject to seizure for violation of law, stopping an compared their respective signatures.4 A reasonable officer automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment.”) (emphasis 4 added); Wellman, 185 F.3d at 656 (holding that the police Although defendant contends that Lom ax had four documents in his officer “lawfully asked defendant to sit in the squad car while possession containing defendant’s signature–his driver’s license, the he wrote a courtesy citation and performed record checks of rental agreement, the courtesy citation, and the consent-to-search form–, Lomax only had d efendant’s driver’s license and the rental agreement in his driver’s license and registration” as it was within the his possession at the time that he requested the license p late check. scope of the traffic stop for speeding); United States v. No. 02-6076 United States v. Garrido-Santana 13 14 United States v. Garrido-Santana No. 02-6076
Bradshaw, 102 F.3d 204 (6th Cir. 1996) (holding that the circuit has yet to decide this issue expressly.7 Because police officer “could lawfully detain . . . [defendant in the additional justification supported the questioning here, we back of the squad car] until he had finished performing radio need not decide such an important legal issue. Rather, we checks and issuing the citation” because it was “well within leave that determination for a case whose record affords a the bounds of the initial stop.”); Hill, 195 F.3d at 269 more appropriate basis upon which to make it. First, in (holding that a driver’s license check was within the original asking defendant whether he possessed any illegal scope of a traffic stop based upon a traffic violation). Thus, contraband, Lomax did not exceed the time necessary to we reject defendant’s contention that Lomax needed a complete the original purpose of the traffic stop. At that time, reasonable suspicion that defendant was unlawfully operating Lomax had not yet completed the initial purpose of the traffic the vehicle to justify this detention.5 Alternatively, defendant claims that Officer Lomax that they prolong custody, but questions that do not increase the length of exceeded the bounds of the initial traffic stop for speeding the detention (or that extend it by o nly a brief time) do not make the . . . when he asked whether defendant possessed any illegal [detention] itself unreasonable or require suppression of evidence found contraband. The circuit courts generally agree that the Fourth as a result of the answers.”) with U nited States v. Murillo, 255 F.3d 1169, 1174 (9th C ir. 200 1) (“D uring a tra ffic stop, a police officer is allowed to Amendment requires that, absent additional justification, any ask questions that are reasonably related in scope to the justification for questioning during a valid traffic stop must not prolong the his initiation of contact . . . . In order to broaden the scope of questioning, detention necessary to complete the initial purpose of that he must articulate suspicious factors that are particularized and stop; however, there is some disagreement as to whether the objective.”), and Un ited States v. H olt, 264 F.3d 1215, 12 28-31 (10th Cir. Fourth Amendment also requires that, absent additional 2001) (holding that “the Fourth Amen dment reasonableness of a traffic justification, such questioning must be reasonably related in stop based on probab le cause must be jud ged by examining both the length of the detention and the manner in which it is carried out,” and, subject matter to the purpose of the initial traffic stop.6 This thus, rejecting the argume nt that the nature of any questioning during a traffic stop is irre levant so long as it does not unreaso nably prolo ng that stop’s duration). 5 7 In particular, defendant contends that Lomax only conducted the In United States v. Palomino, we held that a police officer did not check beca use defendant, a resident o f Puerto Rico, was driving a vehicle violate the Fo urth Amendment when, following a traffic stop based upon with Texas license tags; according to defendant, such a ground does not probab le cause of a traffic violation, the officer asked the defendant about afford Lomax reasonable suspicion that defendan t was unlaw fully whether he possessed illegal contraband because the officer “did not operating the vehicle because it is logistically unlikely for a car with detain . . . [the defendant] longer than was necessary for the original Puerto Rico tags to b e in the United S tates. purpo se of the stop, and because there was reaso nable suspicion to 6 conduct the brief questioning.” 100 F.3d 446, 449-50 (6th Cir. 1996) Com pare United States v. Sha bazz, 993 F.2d 43 1, 436-37 (5th Cir. (emp hasis added). One could argue that Palomino implicitly holds that 1993) (holding that questions, which, in themselves, are neither searches questioning during a traffic stop must be reasonably related to the initial nor seizures, are relevant to whether a detention has exceeded its lawful purpo se of that stop because, absent this requiremen t, it need not have duration, and that the police officer’s questioning of defendants regarding found that reasonable suspicion for suc h questioning existed. However, their recent whereabouts did not exceed the original scope of the traffic this conclusion is invalid because one of the premises upon which it relies stop–for speeding–because it occurred while a computer check was is false. It does not necessarily follow from the premise that additional pending and, thus, did not extend the duration o f the initial stop ), and justification–other than that which justified the initial traffic stop–de feats United States v. Childs, 277 F .3d 94 7, 949 (7th Cir. 200 2) (“Be cause the defendant’s Fourth Amendment claim that such additional justification questions are neither se arche s nor seizures, . . . [q]uestions asked during is required to defeat the defendant’s Fourth Amendment claim . See detention may affect the rea sonablene ss of that detention . . . to the extent Childs, 277 F.3d at 951. No. 02-6076 United States v. Garrido-Santana 15 16 United States v. Garrido-Santana No. 02-6076
stop because he was still filling out the courtesy citation and, upon consent as the basis for a warrantless search, the scope as discussed above, was still waiting for the return of the of the consent given determines the permissible scope of the computer check on the vehicle’s license plate. Second, search.” United States v. Gant, 112 F.3d 239, 242 (6th Cir. assuming that this questioning was not reasonably related to 1997). “The standard for measuring the scope of a suspect’s the speeding violation and, thus, that it required additional consent under the Fourth Amendment is that of objective justification, Lomax had a reasonable suspicion that reasonableness . . . .” Florida v. Jimeno, 500 U.S. 248, 251 defendant was engaged in criminal activity so as to validate (1991). The proper question is “what would the typical his inquiry into whether defendant possessed any illegal reasonable person have understood by the exchange between contraband. At the time of this questioning, Lomax had the the officer and the suspect.” Id. A reasonable person likely following information available to him: 1) defendant’s route would have understood his consent to exclude a search that was circuitous and impractical in that defendant had flown would damage his property. See id. at 251-52. Generally, the from Puerto Rico to Miami and then to Houston only to rent expressed object of the search defines the scope of that a vehicle to drive to New York; 2) Junior Santana, a resident search. Id. at 251. of New York, had rented the vehicle in Houston so that defendant could drive it to New York; 3) the rental agreement Before Lomax obtained defendant’s consent to search the had an illegible, additional signature in an irregular location vehicle, he had asked defendant whether he possessed any rather than defendant’s typed name listing him as an illegal contraband, such as drugs or stolen goods. In so additional driver; 4) at the time of the traffic stop, defendant asking, Lomax thereby had informed defendant that those was heading towards New York the day before the rental widely-varied items would be the object of any search. agreement required the vehicle to be returned in Houston; Defendant, per the consent-to-search form that he executed, 5) defendant was unusually nervous; and 6) Lomax knew, consented to a search of the vehicle without expressly based upon his training, that the model vehicle that defendant limiting the scope of that search. It was objectively was driving had easily accessible hiding places for narcotics. reasonable for Lomax and Lane to have concluded that this Lomax’s questioning defendant about whether he possessed general consent to search the vehicle included consent to any illegal contraband was not unreasonable under the Fourth search any container within that vehicle that might have held Amendment. illegal contraband. As Lomax testified, it was well-known that the model vehicle that defendant was driving had an 2. The Scope of Defendant’s Consent to Search easily accessible gas tank in which to hide narcotics. Moreover, the accessing and search of the gas tank caused no Defendant appeals the district court’s denial of his damage to either the vehicle, in general, or the gas tank, in suppression motion on the ground that the search of particular. Therefore, it was objectively reasonable for defendant’s gas tank exceeded the reasonable scope of defendant’s consent.8 “When law enforcement officers rely suppressed beca use defendant was subject to an illegal detention at the 8 time that Lomax secured defendant’s consent. It is true that any consent Defendant has abandoned his argument on appeal that he did not that a suspect gives while being subject to an illegal seizure may be consent to the search o f the vehicle. See Somm er v. Da vis, 317 F.3d 686, tainted and, thu s, invalid. See Florida v. Royer, 460 U.S. 491, 507-08 691 (6th Cir. 2003) (holding that plaintiffs abandoned an issue on appeal (1983); United States v. Guimond, 116 F.3d 16 6, 170-71 (6th Cir. 1997). by not presenting any argument on it in their briefs). Rather, defendant However, we reject such an argument here because, as discussed above, argues on ap peal that any evidenc e flowing from the search mu st be defendant’s detention at the time that he consented to the search w as legal. No. 02-6076 United States v. Garrido-Santana 17 18 United States v. Garrido-Santana No. 02-6076
Lomax and Lane to have believed that defendant’s general concerning the application of the Sentencing Guidelines”) consent to search the vehicle encompassed consent to search (emphasis added); United States v. Emuegbunam, 268 F.3d the vehicle’s gas tank. The Fourth Amendment did not 377, 389 (6th Cir. 2001) (holding that we review de novo require either officer to obtain separate permission to search interpretations of treaties). the gas tank. See Jimeno, 500 U.S. at 252. We note that, although defendant had the opportunity to do so, he never The principle of specialty “requires that the requesting objected to the officers’ search of the gas tank and, thus, country not prosecute for crimes . . . for which an extradition neither clarified that the scope of his sweeping consent was not granted.” Demjanjuk v. Petrovsky, 776 F.2d 571, 583 excluded such a search nor revoked his consent. See United (6th Cir. 1985), vacated on other grounds, 10 F.3d 338 (6th States v. Pena, 920 F.2d 1509, 1514-15 (10th Cir. 1990) Cir. 1993). Incorporating this principle of specialty, Article (holding that a search of a vehicle’s vent panel was within the IV of the extradition treaty with the Dominican Republic scope of the defendant’s consent to “look” inside the vehicle provides that “[n]o person shall be tried for any crime or where the defendant never “attempted to limit or retract his offence other than that for which he was surrendered.” [general] consent” upon seeing the officer begin to remove Convention for the mutual extradition of fugitives from that panel). The district court did not clearly err in finding justice, June 19, 1909, U.S - Dom. Rep., 36 Stat. 2468 that the search of the gas tank fell within the reasonable scope (emphasis added). The verb to try denotes “to conduct the of defendant’s consent to search the vehicle. See United trial of.” Webster’s Third New International Dictionary 2457 States v. Zapata, 180 F.3d 1237, 1243 (11th Cir. 1999) (1986). In its request for extradition, the government stated (holding that the search of a vehicle’s interior door panel was that it sought defendant’s return to “stand trial” only on count within the scope of the defendant’s general consent to search one of possessing cocaine with the intent to distribute in for narcotics, weapons, or money because the door panel violation of 21 U.S.C. § 841(a)(1); the government could contain such items). recognized that count two concerning defendant’s failure to appear at his arraignment in violation of 18 U.S.C. III. Defendant’s Sentence § 3146(a)(1) was not an extraditable offense. Defendant concedes that the government did not violate the express Defendant appeals the district court’s application of a terms of the extradition treaty because it did not, in fact, sentence enhancement for obstruction of justice under prosecute defendant for this failure to appear. Rather, U.S.S.G. § 3C1.1 on the ground that it violates the extradition defendant argues that the government’s promise to prosecute treaty with the Dominican Republic.9 We review the defendant only for the narcotics offense entails the implicit interrelation between the extradition treaty and the application promise that it would also not punish defendant for the of U.S.S.G. § 3C1.1 of the Sentencing Guidelines de novo. failure-to-appear offense. Additionally, according to See United States v. Humphrey, 279 F.3d 372, 379 (6th Cir. defendant, the district court’s consideration of that failure to 2002) (holding that “[w]e review de novo questions of law appear in enhancing defendant’s sentence on the narcotics offense constituted punishment for it contrary to the implicit understanding and spirit of the extradition treaty. 9 Defendant does not claim that U .S.S.G. § 3 C1.1 is otherwise However, the Supreme Court seemingly eschewed such an inapp licable to his sentence but, rather, simply argues that the extradition argument in Witte v. United States, 515 U.S. 389 (1995). The treaty with the Dominican Republic trumps the Sentencing Guidelines and renders the application o f this provision im proper. issue in Witte concerned the Double Jeopardy Clause of the No. 02-6076 United States v. Garrido-Santana 19 20 United States v. Garrido-Santana No. 02-6076
Fifth Amendment, which bars “successive prosecution or In United States v. Lazarevich, 147 F.3d 1061, 1063 (9th multiple punishment for ‘the same offence.’” Id at 391. In Cir. 1998), the Ninth Circuit held that the district court’s that case, the district court had determined the defendant’s consideration of a non-extraditable offense of child abduction sentence for attempted possession of marijuana with the intent in increasing the defendant’s sentence for passport fraud–the to distribute by considering, along with other relevant offense for which defendant was extradited–did not constitute conduct, various quantities of cocaine that defendant had “punishment” so as to violate the extradition treaty’s previously imported. Id. at 393-94. Defendant was later incorporated rule of specialty permitting punishment only for indicted for conspiring and attempting to import this cocaine. the extradited offense. As that court reiterated, extradition Id. at 395. Defendant argued that this current indictment on treaties are made “within an historical and precedential the cocaine offenses “constitute[d] a second attempt to punish context . . . that includes the long-standing practice of United him criminally for the same cocaine offenses.” Id. at 397. States[’] courts of considering relevant, uncharged evidence Defendant implicitly contended that the district court’s at sentencing.” Id. at 1064 (holding that, given the long consideration of the cocaine in sentencing defendant on the history of considering relevant evidence, like other criminal marijuana offense constituted the initial punishment for the behavior, in sentencing–consideration that the Sentencing cocaine offenses. See id. However, the Supreme Court held Guidelines now mandates–as well as Supreme Court that the consideration of “related criminal conduct to enhance precedent, such as Witte, the extradition treaty “contemplated a defendant’s sentence for a separate crime within the consideration of relevant offenses”). authorized statutory limits does not constitute punishment for that conduct[.]” Id. at 399; see United States v. Maney, 226 Here, we assume arguendo that the extradition treaty F.3d 660, 667-68 (6th Cir. 2000) (relying upon Witte to hold contains an implicit promise not to punish defendant for his that the district court’s consideration of the defendant’s failure to appear at his arraignment, rather than merely an various escape attempts in applying an § 3C1.1 enhancement express promise not to prosecute defendant for any offense and in denying a § 3E1.1 reduction was not “punishment” for other than that for which he was extradited. However, we that conduct because defendant’s sentence was within the find that, following the reasoning of both Witte and statutorily authorized range and, thus, that defendant’s Lazarevich, the § 3C1.1 enhancement to defendant’s sentence subsequent conviction and sentence for one of those escape on the narcotics offense based upon defendant’s failure to attempts did not raise any issues of double punishment). appear at his arraignment did not constitute “punishment” for Rather, the Court clarified that such consideration constitutes that conduct so as to violate any implicit proscription against “punishment” only for the offense of conviction. Id. at 401- such punishment in the extradition treaty. 10 The district court 04. Thus, the Supreme Court held that the Double Jeopardy Clause did not proscribe sentencing a defendant on a criminal offense when the conduct underlying that offense was a factor 10 W e note that defendant, in challenging his sentence, may lack in determining the defendant’s sentence for a previous standing to rely upon the extradition treaty’s incorporated rule of conviction. Id. at 391, 406. Although it is formally a double specialty. This circuit has not expressly decided whether an extradited jeopardy case, its underlying analytical foundation and, in individual has standing to seek the enforcement of that rule. See particular, its conception of “punishment” is nevertheless Demjanjuk, 776 F.2d at 583-84 (observing that a serious question existed instructive here. as to whether the defendant had standing to assert the rule of specialty because “[t]he right to insist on a pplication o f . . . [that principle] belongs to the requested state, not to the individual whose extradition is requested” yet addressing the merits of such a claim). Other circuit courts either have No. 02-6076 United States v. Garrido-Santana 21 22 United States v. Garrido-Santana No. 02-6076
sentenced defendant on the narcotics charge to 97 months of because that latter challenge, as discussed above, fails, the imprisonment–well within that offense’s statutory maximum former challenge likewise fails. of 480 months of imprisonment. See 21 U.S.C. § 841(b)(1)(B). For the foregoing reasons, we AFFIRM the denial of defendant’s suppression motion and his sentence. Defendant also appeals the district court’s denial of a sentence reduction for acceptance of responsibility under U.S.S.G. § 3E1.1 on the ground that, to the extent that a sentence enhancement under U.S.S.G. § 3C1.1 is improper for the reason asserted above, such a reduction is consequently proper. See USSG § 3E1.1, comment. (n. 4) (“Conduct resulting in an enhancement under § 3C1.1 . . . ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.”). Because defendant made his challenge to the denial of a § 3E1.1 reduction contingent upon the success of his challenge to the application of a § 3C1.1 enhancement and
declined to decide this issue or have considered the issue yet disagree as to its proper resolution. See United States v. Saccoccia, 58 F.3d 754, 767 n.6 (1st Cir. 1995) (observing the inner-circ uit split but taking no position on the issue); United States v. LeBaron, 156 F.3d 621, 627 (5th Cir. 1998) (clarifying that the Fifth Circuit has yet to decide whether an extradited individual has standing to raise the rule of specialty); Un ited States ex rel. Saroop v. Ga rcia, 109 F.3d 165 , 168 (3rd Cir. 1997) (“Because treaties are agreements betwe en natio ns, individ uals ordinarily may not challenge treaty interpretations in the absence of an express provision within the treaty or an action brought by a signato ry nation.”); United States v. Levy, 905 F.2d 326, 329 n.1 (10th Cir. 1990) (holding that an extradited defendant has standing to assert a rule of specialty claim); United States v. Najohn , 785 F.2d 1420, 1422 (9th Cir. 1986) (holding that an extradited individual “may raise whatever objections [based upon the rule of specialty that] the rendering country might ha ve”); United States v. Puentes, 50 F.3d 1567, 1572 (11th Cir. 1995 ) (same); Leighnor v. Turner, 884 F.2d 385, 388 (8th Cir. 1989) (holding that it is bound to follow a prior opinion that held the same). However, because we find that defendant’s sentence did not violate the extradition treaty’s incorporated rule of specialty, we ne ed no t decid e whether de fendant has standing to assert such a claim.