F I L E D United States Court of Appeals Tenth Circuit PU BL ISH May 19, 2006 UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, v. No. 05-3163 C ON CEPC IO N MA R IE LED ESM A,
Defendant-Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT FOR T HE DISTRICT OF KANSAS (D .C . No. 03-40100-01-SAC)
James A. Brown, Assistant United States Attorney (Eric F. M elgren, United States Attorney, with him on the briefs), Topeka, Kansas, for Plaintiff-Appellee.
M ichael S. Holland, Holland and Holland, Russell, Kansas, for D efendant- Appellant.
Before M cC ON N EL L, B AL DOCK , and TYM KOVICH, Circuit Judges.
M cCO NNELL, Circuit Judge. This is the latest in a series of cases confronting this Court concerning
traffic stops based on problems with temporary registration tags. W e hold that
displaying a temporary tag behind a heavily tinted rear window violates a Kansas
statute requiring that licence plates appear “in a place and position to be clearly
visible.” See Kan. Stat. Ann. § 8-133. State troopers therefore did not exceed the
permissible scope of their traffic stop by issuing a citation and requesting consent
for a subsequent search. W e affirm the decision of the district court.
I. Factual Background
On the afternoon of M ay 20, 2003, Kansas State Trooper Jerett Ranieri
noticed a group of three vehicles traveling close together in the slow lane on I-70.
One of the vehicles had M ichigan plates. Another, a black Chevy van, had no
visible licence plate or registration. Trooper Ranieri “didn’t see anything at all”
resembling a licence plate on the van, either “on the back of the vehicle or on the
bumper of the vehicle.” Appellee’s Supp. App. 25. Aware that Kansas law
requires licence plates to appear “in a place and position to be clearly visible,”
Kan. Stat. Ann. § 8-133, Trooper Ranieri conducted a traffic stop. As he
approached the car on foot, he could “kind of see something” that “resembled
registration” in the rear window. Appellee’s Supp. App. 27, 52. Even at a
distance of four or five feet, however, the “[e]xtremely dark” tinting of the rear
window made the temporary tag “hard to read.” Id. at 26. He could not tell, for
-2- example, w hat state issued the registration tag, or whether the barely-legible
numbers were expiration numbers.
The driver of the car was Defendant-Appellant M aria Concepcion-Ledesma,
and her passenger was Lena Beydoun. Trooper Ranieri asked M s. Concepcion-
Ledesma for her license, registration, and insurance information, and informed
her that the vehicle’s tag was “unreadable, not visible.” Id. at 28. Trooper
Ranieri then asked the women about their travel plans. They replied that they
were driving from Detroit to Los Angeles for a vacation of one or two w eeks.
W hen Trooper Ranieri asked where they planned to stay in Los A ngeles, they said
they did not know, and that they “maybe could find some friends down there.”
Id. at 31. Yet Trooper Ranieri saw no luggage in the van, suggesting that the
women were not actually vacationing. They denied traveling together with the
two other vehicles Trooper Ranieri had seen nearby in the slow lane. He found
the denial suspicious because he had observed the three vehicles traveling close
together, and because at least one of the other vehicles had M ichigan plates, both
women had M ichigan driver’s licenses, and they indicated that they were
traveling from Detroit. Trooper Ranieri found a number of other factors
suspicious as well: (1) he smelled the odor of air freshener, which “could be used
to conceal the odor of illegal drugs,” id. at 34; (2) he could tell that the van was
recently purchased, and he “thought that [it] was a little funny they were already
taking a trip with it,” id. at 39; (3) the women carried a cell phone and an atlas
-3- and (4) the women were “coming from an area where narcotics is [sic] usually
warehoused or narcotics is [sic] stored . . . to another source city,” id.
Throughout the conversation, both women appeared “extremely nervous” to
Trooper R anieri. Id. at 30. M s. Beydoun never made eye contact, and M s.
Concepcion-Ledesma’s hands and voice were “real shaky.” Id. at 29–30.
Trooper Ranieri found this behavior suspicious “[b]ecause normal people w ill
talk, and they’re friendly with law enforcement officers, you know, because w e’re
here to help.” Id. at 29. He later conceded that many motorists w ho are innocent,
or w ho merely receive a speeding ticket, are nervous w hen stopped by state
troopers, but testified that the kind of nervousness he observed in this case was
“the same type of nervousness that I see [in] people running loads of drugs or
hiding something.” Id. at 80.
Trooper Ranieri took the paperwork back to his vehicle, filled out a
warning for displaying a registration tag that was not clearly visible, and returned
to the side of the van. Although his testimony at the suppression hearing differed
from M s. Concepcion-Ledesma’s, the district court found, based on a videotape of
the stop, that Trooper Ranieri returned the women’s documents. This exchange
followed:
Trooper Ranieri: This is just a warning paper saying like if you get stopped again you can show them that you have been warned and if you get stopped again [inaudible].
Female voices: Okay.
-4- Trooper Ranieri: Thank you girls. You have a safe one. M a’am you wouldn’t have anything, uh, weapons, or any type of illegal stuff in the back?
Female voices: No.
Trooper Ranieri: Could we look, could we take a minute to look back there? Just your bag and stuff.
Female voices: Yeah.
Trooper Ranieri: Just for my safety could I have you two hop out, just for my safety, just take five minutes— get you moving dow n the road. W e have a lot of stuff moving back and forth. Thank you.
Videotape; M em. & Order 5. Trooper Ranieri understood the women’s consent to
a search of their “bag and stuff” as consent to search the entire van.
Accompanied by Trooper Andrew Dean, who had recently arrived at the
scene, Trooper Ranieri opened the back doors of the van. They confirmed that
the only pieces of luggage the women carried were two small duffel bags. Upon
opening the back doors of the van, they could also see suspicious signs of
alterations to the interior of the vehicle. Specifically, Trooper Ranieri testified
that:
[I]t looked like the van had been— the side walls and panels and stuff had been taken off and put back on several times, or just taken out and put back in a little jagged, because insulation— and screws and stuff were all scarred and marked up, the panels were all kind of, like they were pulled out, and you could see where the carpet and panel didn’t match up, because it looked like they had been pulled away from the wall and were offset.
-5- Id. at 44–45. Upon seeing this evidence of tampering with the interior of the
vehicle, Trooper Ranieri’s suspicion “skyrocketed.” Id. at 45. Trooper Dean
removed a foam insert from the inside of a manufactured cup holder, revealing a
layer of foam. By removing the foam, he discovered vacuum sealed packages
containing small tablets. Further exploration turned up tablets throughout the
interior of the van. Field testing revealed that the packages contained
approximately 330 pounds of pseudoephedrine, a list I chemical. See 21 U.S.C. §
802(34)(K).
Later, the troopers learned that the van in fact displayed an ordinary, valid
temporary registration issued by the State of M ichigan. Although no M ichigan
statute specifies the proper location for display of a temporary registration, the
registration sticker itself contains printed instructions: “M oisten face of sticker
and place on inside of lower left rear window.” Id. at 55. According to Trooper
Ranieri, the display of the temporary registration on the van comported w ith those
instructions. They also learned that the van in fact contained no air freshener. O n
cross-examination, Trooper Ranieri admitted that he was not sure it was air
freshener, but that it was “just like a smell that you’d smell, kind of a fruity sweet
smell.” Id. at 57. He also acknowledged that the smell could have been placed in
the van by the dealership, as the van had been purchased only a few days earlier.
M s. Concepcion-Ledesma was indicted on three counts: (1) possession of
332 pounds of pseudoephedrine, knowing or having reasonable cause to believe it
-6- would be used to manufacture methamphetamine, see 21 U.S.C. § 841(c)(2); (2)
conspiracy to possess 530 pounds of pseudoephedrine, knowing or having
reasonable cause to believe it w ould be used to manufacture methamphetamine, a
Schedule II controlled substance, see id. §§ 841(c)(2), 846; and (3) traveling in
interstate commerce to promote and carry on the unlawful activity of
methamphetamine manufacture, see id. § 1952(a)(3)(B). The district court
denied her motion to suppress the pseudoephedrine recovered from her vehicle,
but ultimately dismissed the other two counts against her. She entered a
conditional guilty plea as to the last count, reserving the right to bring this appeal
concerning the legality of the traffic stop and ensuing search.
II. Discussion
M s. Concepcion-Ledesma appeals from the district court’s order denying
her motion to suppress. She challenges three aspects of the traffic stop and
search. First, she argues that Trooper Ranieri exceeded the permissible scope and
duration of the stop under United States v. M cSwain, 29 F.3d 558 (10th Cir.
1994). Second, she argues that she did not voluntarily consent to any search of
her vehicle. Third, in the alternative, she argues that at most she consented to a
limited search of her “bag and stuff,” and that Troopers Ranieri and Dean
exceeded the scope of that consent by prying open interior panels of the van to
discover the pseudoephedrine. The government concedes that she did not consent
-7- to a search behind the panels of the van, but argues that the officers had probable
cause to expand the search.
A. Scope and D uration of the Traffic Stop
A traffic stop is a seizure for Fourth Amendment purposes, and must be
justified by reasonable articulable suspicion under the standards set forth in Terry
v. Ohio, 392 U.S. 1 (1968). United States v. Hunnicutt, 135 F.3d 1345, 1348
(10th Cir. 1998). Under our case law, a traffic stop is reasonable if (1) “‘the
officer’s action was justified at its inception,’” and (2) the officer’s action “‘was
reasonably related in scope to the circumstances which justified the interference
in the first place.’” United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir.
1995) (en banc) (quoting Terry, 392 U.S. at 20). In this case, M s. Concepcion-
Ledesma concedes that Trooper Ranieri’s actions were justified at their inception.
He could not see any licence plate or temporary registration anywhere on the rear
of the vehicle, an apparent violation of Kansas law. See Kan. Stat. Ann. § 8-133;
see also Botero-Ospina, 71 F.3d at 787 (holding that “a traffic stop is valid under
the Fourth Amendment if the stop is based on an observed traffic violation or if
the police officer has reasonable articulable suspicion that a traffic or equipment
violation has occurred or is occurring”). She argues instead that the traffic stop
exceeded the permissible scope of the detention in light of its underlying
justification.
-8- In United States v. M cSwain, 29 F.3d 558, 561 (10th Cir. 1994), a Utah
state trooper stopped the defendant’s vehicle “for the sole purpose of ensuring the
validity of the vehicle’s temporary registration sticker.” W hile driving, the
trooper found the registration tag difficult to read because the expiration date
appeared to be covered with reflective tape. Id. at 560. As he approached the
vehicle on foot, he verified that the registration tag was valid and not expired, and
he observed no violation of state law. See id. W e held that the trooper’s decision
to prolong the detention by requesting license and registration information and
questioning the driver “exceeded the scope of the stop’s underlying justification”
and therefore violated the Fourth Amendment. Id. at 561.
By contrast, in United States v. DeGasso, 369 F.3d 1139 (10th Cir. 2004), a
state trooper observed a continuing violation of state law after stopping a vehicle,
and we upheld the ensuing detention. In DeGasso, an Oklahoma trooper pulled
over a truck after observing that its rear license plate was mounted too low,
obscuring the lettering at the bottom of the registration tag. Id. at 1141. An
Oklahoma statute required all licence plates to be “clearly visible at all times,” 47
Okla. Stat. § 1113.A.2, and this Court predicted that Oklahoma courts w ould
construe that requirement to apply equally to out-of-state drivers, see DeGasso,
369 F.3d at 1147 (noting “the common-sense proposition that police officers have
no less need to identify out-of-state vehicles than they have to identify those in
Oklahoma”). As a result, the case was “easily distinguishable” from M cSwain:
-9- In M cSwain, the traffic stop was made in order to determine w hether a temporary registration sticker was valid; there was no requirement that it be visible or unobscured. In that case, when the officer approached the vehicle and found that the sticker was valid, the purpose for the stop was over. In this case, the violation was that the lettering on the license plate was not ‘clearly visible,’ which remained true even after the trooper approached the truck and was able, at that point, to read it.
Id. at 1149.
Recently we decided the constitutionality of a traffic stop based on the
same Kansas statute at issue in this case. See United States v. Edgerton, 438 F.3d
1043, 1045 (10th Cir. 2006). Kansas law requires that “[e]very license plate shall
at all times be securely fastened to the vehicle . . . in a place and position to be
clearly visible, and shall be maintained free from foreign materials and in a
condition to be clearly legible.” Kan. Stat. Ann. § 8-133. In Edgerton, Trooper
Dean (coincidentally, the same officer who assisted Trooper Ranieri in this case)
spotted a vehicle from Colorado on an interstate highway at 2:30 a.m. 438 F.3d
at 1045. He could not read the vehicle’s temporary registration tag, which was
posted in the rear window as required by Colorado law, not because of any
obstruction but solely because “it was dark out.” Id. After stopping the vehicle
and approaching on foot, Trooper Dean had no difficulty reading the tag and
noted that it appeared valid. Id. Nevertheless, Trooper Dean inspected the
undercarriage of the vehicle, issued a warning for a violation of § 8-133,
questioned the driver, and eventually requested and received consent to search the
- 10 - trunk. Id. at 1045–46. W e held that these actions exceeded the permissible scope
of the detention in light of its underlying justification. Id. at 1051. The decision
in Edgerton rested on the conclusion that § 8-133 does not criminalize a “wholly
unremarkable” temporary registration simply because a vehicle is traveling at
night. See id.
Turning to the facts in this case, the van driven by M s. Concepcion-
Ledesma had “[e]xtremely dark” window tinting— so dark, in fact, that Trooper
Ranieri could hardly make out the numbers on the temporary registration, even as
he approached on foot from a distance of four or five feet. Appellee’s Supp. App.
26–27. Specifically, he could not read the name of the state that issued the tag,
and he could not determine whether the numbers represented an expiration date.
Trooper Ranieri thus observed a straightforward violation of § 8-133: rather than
displaying her temporary tag “in a place and position to be clearly visible,” M s.
Concepcion-Ledesma displayed it behind a plate of tinted glass that rendered it
almost entirely illegible.
That she appears to have complied with M ichigan law by following the
printed instructions on the sticker does not render the detention unreasonable,
both because state troopers cannot be expected to possess encyclopedic
knowledge of the traffic regulations of other states, and because Kansas courts
have held that “the display of an illegible or obscured vehicle tag is a violation of
- 11 - K.S.A. 8-133 even if the vehicle is duly licensed in another state.” State v.
Hayes, 660 P.2d 1387, 1389 (K an. Ct. App. 1983).
Accordingly, the extended detention of M s. Concepcion-Ledesma did not
violate the Fourth Amendment. Trooper Ranieri saw that M s. Concepcion-
Ledesma’s registration tag was displayed in an unlawful manner “even after [he]
approached the [vehicle] and was able, at that point, to read it.” See D eGasso,
369 F.3d at 1149. It was therefore reasonable under the circumstances for
Trooper Ranieri to issue a w ritten warning, verify M s. Concepcion-Ledesma’s
license and registration information, and ask preliminary questions about travel
plans. Hunnicutt, 135 F.3d at 1349; United States v. Hernandez, 93 F.3d 1493,
1499 (10th Cir. 1996).
B. Consent to a Limited Search
Next M s. Concepcion-Ledesma argues that the search of her vehicle was
not consensual. The district court held that she consented to a limited search of
her “bag and stuff,” but not to a general search of the entire van. She argues that
she did not voluntarily consent to any search. W e review the district court’s
factual findings for clear error, and its legal conclusion as to the reasonableness
of the search de novo. United States v. M cKissick, 204 F.3d 1282, 1296 (10th Cir.
2000).
W ithout reasonable suspicion, a w arrantless search of luggage or a vehicle
is unreasonable, notwithstanding verbal consent by the owner, if the “consent to
- 12 - the suspicionless search was involuntary.” United States v. Drayton, 536 U.S.
194, 206 (2002). The Supreme Court has held that officers need not expressly
inform suspects that they are free to go before requesting permission to conduct a
search. Ohio v. Robinette, 519 U .S. 33, 39–40 (1996). Instead, “[v]oluntariness
is a question of fact to be determined from all the circumstances.” Schneckloth v.
Bustamonte, 412 U.S. 218, 248–49 (1973). The central question is whether “a
reasonable person would believe he w as free to leave or disregard the officer’s
request.” United States v. M anjarrez, 348 F.3d 881, 885–86 (10th Cir. 2003).
In our traffic stop cases, we have identified a number of factors that
suggest that an encounter was not consensual, including the “threatening presence
of several officers,” the “use of aggressive language or tone of voice indicating
that compliance with an officer’s request is compulsory,” the “prolonged retention
of a person’s personal effects such as identification,” the “absence of other
members of the public,” and the officer’s failure to advise the defendant that she
is free to leave. United States v. Hill, 199 F.3d 1143, 1147–48 (10th Cir. 1999);
see also United States v. Broomfield, 201 F.3d 1270, 1274 (10th Cir. 2000).
Conversely, we have pointed to other factors as evidence that an encounter was
consensual, including an officer’s “pleasant” manner and a tone of voice that is
not “insisting,” M cSwain, 29 F.3d at 563, a public location such as “the shoulder
of an interstate highway, in public view,” United States v. Soto, 988 F.2d 1548,
1558 (10th Cir. 1993), and the prompt return of the defendant’s identification and
- 13 - papers, United States v. Zapata, 997 F.2d 751, 757 (10th Cir. 1993). None of
these factors is dispositive, however, as “a court must consider all the
circumstances surrounding the encounter” to determine whether consent was
voluntary. Florida v. Bostick, 501 U.S. 429, 439 (1991); see also Hill, 199 F.3d
at 1148.
In this case, after filling out a written warning for the temporary tag
violation, Trooper Ranieri returned to the van and returned M s. Concepcion-
Ledesma’s license and registration. After explaining the warning, he added in an
ordinary, nonthreatening voice, “Thank you girls. You have a safe one.” M em.
& Order 5. At that point, a reasonable person would have felt free to leave.
Phrases like “thank you” and “have a safe one” signal the end of an encounter,
and afford a defendant an opportunity to depart. Although he did not explicitly
inform M s. Concepcion and her passenger that they were free to leave, Trooper
Ranieri’s words of farewell suggested that any subsequent discussion was
consensual.
Following that exchange, Trooper Ranieri asked whether M s. Concepcion-
Ledesma and her passenger had “anything, uh, weapons or any type of illegal
stuff in the back.” Id. When they replied that they did not, he asked, “Could w e
look, could we take a minute to look back there? Just your bag and stuff.” Id.
The request was phrased as a question and spoken in an ordinary tone of voice.
The women replied, “Yeah.” Id. Nothing about this line of
- 14 - questioning— conducted in public view on an interstate highway— suggests
coercion or intimidation. See United States v. Elliott, 107 F.3d 810, 814 (10th
Cir. 1997) (holding that traffic stop became consensual once the officer returned
the driver’s documentation, noting that “there is no indication his questioning was
accompanied by any coercive show of authority”). Accordingly, their consent to
a limited search of “your bag and stuff” was voluntary.
M s. Concepcion-Ledesma points out that a second officer, Trooper Dean,
was present at the scene, and reminds us that the presence of multiple officers
may cut against the conclusion that consent was voluntary. Yet Trooper Dean
arrived only after M s. Concepcion-Ledesma consented to a limited search of the
back of her vehicle. Appellee’s Supp. App. 91 (“Q. W ere you present when
[Trooper Ranieri] asked for consent? A . No.”). She also characterizes Trooper
Ranieri’s language as “aggressive.” A plt. Br. 24. The videotape reveals not a
hint of aggression during the exchange concerning the search, however, and she
appears to concede that Trooper Ranieri only raised his voice later in the
encounter, after expanding the search to include the hidden compartment. Neither
of these factors could have rendered M s. Concepcion-Ledesma’s consent
involuntary because they took place after she gave permission for the search. At
the time she consented, Trooper Ranieri was alone and his tone of voice was
ordinary, even amiable.
- 15 - At bottom, M s. Concepcion-Ledesma’s complaint is that Trooper Ranieri
never explicitly told her she was free to leave. The Supreme Court has
admonished, however, that an officer’s failure to inform the defendant that she is
free to leave, standing alone, does not make an encounter nonconsensual.
Drayton, 536 U.S. at 206. Under the circumstances, we have no difficulty
concluding that M s. Concepcion-Ledesma voluntarily consented to a search of her
“bag and stuff” in the rear of the van.
C. Probable Cause to Search the H idden Compartment
In the proceedings below , Trooper Ranieri testified that he understood M s.
Concepcion-Ledesma to have consented to an unrestricted search of the entire
van. The phrase “your bag and stuff,” he explained, meant anything and
everything the police might find, even if it meant prying open panels and
removing foam inserts from the walls of the van. The government has (wisely)
abandoned this position on appeal, and now concedes that M s. Concepcion-
Ledesma only consented to a limited search that “did not extend to the areas
behind the panels.” Br. of Appellee 16. Nonetheless, the government maintains
that the search was proper because, in the course of performing the consensual
search “in the back,” the troopers discovered evidence of a secret compartment
that provided probable cause for a more extensive search.
The district court held that the presence of screws and ill-fitting panels in
the back of the van, which indicated the presence of a hidden compartment,
- 16 - together w ith the defendants’ extreme nervousness, the suspicious nature of their
travel plans, the absence of luggage sufficient for their stated purpose, and the
newness of the vehicle, constituted probable cause to search the van. M em. &
Order 19. On appeal, this Court must accept the factual findings of the district
court unless they are clearly erroneous, and must view the evidence in the light
most favorable to the determination of the district court. United States v.
W illiam s, 271 F.3d 1262, 1266 (10th Cir. 2001). In this case, the basic facts are
not disputed.
As to the ultimate legal conclusion regarding w hether, in light of those
facts, the officers had probable cause to search, we must apply a de novo standard
of appellate review. Ornelas v. United States, 517 U.S. 690, 699 (1996). In
conducting this de novo review, we must “look at the ‘totality of the
circumstances’ of each case to see w hether the detaining officer has a
‘particularized and objective basis’ for suspecting legal wrongdoing.” United
States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States v. Cortez, 449
U.S. 411, 417–18 (1981)). As the phrase suggests, a “totality of the
circumstances” test does not depend on whether any particular factor is innocent
when considered in isolation, but on whether, taken as a whole, the facts observed
by the law enforcement officers indicate a fair probability that the vehicle
contains contraband or evidence. United States v. Nielsen, 9 F.3d 1487, 1489–90
(10th Cir. 1993).
- 17 - W hen conducting a “totality of the circumstances” analysis of reasonable
suspicion or probable cause, this Court typically examines each factor invoked by
law enforcement and credited by the district court, “look[ing] not only to the facts
supporting probable cause, but also to those that militate against it.” United States
v. Valenzuela, 365 F.3d 892, 897 (10th Cir. 2004); see, e.g., United States v.
Johnson, 364 F.3d 1185, 1190–94 (10th Cir. 2004); United States v. Santos, 403
F.3d 1120, 1126-34 (10th Cir. 2005). Even where a particular factor, considered
in isolation, is of “limited significance” and must be “discount[ed],” it
nonetheless may affect the Fourth Amendment analysis when combined with other
indicia of probable cause or reasonable suspicion. Johnson, 364 F.3d at 1192; see
also Santos, 403 F.3d at 1133–34. “[N]o single factor is determinative, and we
view the circumstances in their totality rather than individually.” Valenzuela, 365
F.3d at 897. By examining and evaluating the various factors, an appellate court
can advance the purposes served by de novo review. As the Supreme Court has
explained, “de novo review tends to unify precedent and will come closer to
providing law enforcement officers with a defined ‘set of rules which, in most
instances, makes it possible to reach a correct determination beforehand as to
whether an invasion of privacy is justified in the interest of law enforcement.’”
Ornelas, 517 U.S. at 697–98 (quoting New York v. Belton, 453 U.S. 454, 458
(1981)). The ultimate question is w hether “‘the facts and circumstances w ithin
the officers’ knowledge, and of which they have reasonably trustworthy
- 18 - information, are sufficient in themselves to warrant a man of reasonable caution
in the belief that an offense has been or is being comm itted.’” United States v.
Edwards, 242 F.3d 928, 934 (10th Cir. 2001) (quoting United States v. M aher,
919 F.2d 1482, 1485 (10th Cir. 1990)).
1. The Hidden Com partm ent
The first and most significant factor invoked by the government and
credited by the district court is the evidence of a hidden compartment in the back
of the van driven by M s. Concepcion-Ledesma. This Court has repeatedly held
that “evidence of a hidden compartment can contribute to probable cause to
search.” United States v. M ercado, 307 F.3d 1226, 1230 (10th Cir. 2002); see
also United States v. Vasquez-C astillo, 258 F.3d 1207, 1213 (10th Cir. 2001);
United States Anderson, 114 F.3d 1059, 1066 (10th Cir. 1997); United States v.
Nicholson, 17 F.3d 1294, 1297–98 (10th Cir. 1994).
In United States v. Jurado-Vallejo, 380 F.3d 1235, 1236 (10th Cir. 2004)
(“Jurado-Vallejo I”), a Kansas trooper traveling on an interstate highway
approached a Ford Expedition from the rear and noticed “modifications to the
vehicle’s bed and underbody that suggested the presence of a hidden
compartment.” Specifically, the trooper noticed a “lift” low ering the vehicle’s
underbody three inches from its bed, squared off edges on the vehicle’s bed
suggesting a modification from the factory model, and a suspicious seam that had
been bonded and coated. Id. at 1236–37. W e determined that “[w]hether
- 19 - probable cause to search a vehicle can be based on evidence of a hidden
compartment depends on two factors: (1) the probative value of the
evidence— that is, the likelihood that there really is a hidden compartment; and
(2) the likelihood that a vehicle with a hidden compartment would, in the
circumstances, be secreting contraband.” Id. at 1238. The second factor, we
held, was “not a concern” because “[i]f the vehicle had a hidden compartment, it
was highly likely to contain contraband.” Id. Indeed, we found it “hard to
conceive of a legitimate use for a large hidden storage compartment in any
vehicle, let alone one with the cargo space of a Ford Expedition.” Id. at 1238–39.
The first factor, however, was difficult to evaluate based on the district court’s
order. W e therefore remanded the case and asked the district court to make
factual findings concerning the credibility of the trooper’s testimony. Id. at 1239.
On remand the district court credited the trooper’s testimony, but
nonetheless held that he lacked probable cause to conduct a search. United States
v. Jurado-Vallejo, 380 F.3d 1239, 1241 (10th Cir. 2004) (“Jurado-Vallejo II”).
The district court emphasized that the trooper had not inspected the passenger
side or undercarriage of the vehicle, and had not touched or probed any of the
wheel w ells. Id. W e reversed, holding that “if the district court credited [the
trooper’s] testimony, there was probable cause to search.” Id. The question is
not “whether [the officer] could have done more to confirm that the vehicle had a
hidden compartment,” and there is no requirement that visual observations be
- 20 - corroborated by touch or smell. Id. Rather, the issue is whether the evidence of a
hidden compartment was sufficient to “‘warrant a [person] of reasonable caution
to believe that evidence of a crime w ill be found at the place to be searched.’”
Id. at 1241–42 (quoting United States v. Hernandez-Rodriguez, 352 F.3d 1325,
1330 (10th Cir. 2003)). Jurado-Vallejo II stands for the proposition that visual
evidence of a hidden compartment, without more, may provide probable cause to
conduct or expand a search.
In this case, Troopers Ranieri and Dean observed several suspicious
modifications to the vehicle immediately upon opening the back doors to the van.
The side panels appeared to have been removed and reattached repeatedly, the
“screw s and stuff w ere all scarred and marked up,” and the carpet and panels were
no longer aligned. Appellee’s Supp. App. 44–45. Trooper Ranieri’s suspicion
“skyrocketed” when he saw those alterations, id. at 45, all of which were plainly
visible from the troopers’ position in the back of the van, where M s. Concepcion-
Ledesma explicitly authorized them to go. See M em. & Order 5 (responding that
she had no contraband “in the back” and authorizing Trooper Ranieri to “look
back there”). Because the evidence was highly probative of the existence of a
secret compartment, and because it is difficult to imagine a licit purpose for a
large hidden compartment in a vehicle the size of a Chevy van, these signs of a
hidden compartment strongly suggest— and perhaps even singlehandedly
establish— probable cause to search behind the side panels in the rear of the van.
- 21 - 2. The Officers’ Conversation with the Defendant
Any doubts about probable cause to expand the search are dispelled by
three suspicious aspects of M s. Concepcion-Ledesma’s initial conversation with
Trooper Ranieri. First, the small amount of luggage in the back of the van was
inconsistent with the women’s stated travel plans to spend up to two weeks in Los
Angeles, and their intention to “find some friends” for a two-week stay was
implausible. See U nited States v. Ozbirn, 189 F.3d 1194, 1200 (10th Cir. 1999)
(finding probable cause based in part on a “vague description” of travel plans);
United States v. Arango, 912 F.2d 441, 447 (10th Cir. 1990) (finding probable
cause to arrest based on evidence of a secret compartment along with “the
inadequate amount of luggage in the truck for [the defendant’s] purported two-
week vacation”). Second, M s. Concepcion-Ledesma denied any association with
any other vehicles traveling nearby, which was suspicious because Trooper
Ranieri had observed two other vehicles— including one from M ichigan, judging
by its license plates— traveling close together with the van in the slow lane on I-
70. Third, the district court found that M s. Concepcion-Ledesma’s “extreme
nervousness” contributed to probable cause. M em. & Order 19. Although
“nervousness is a sufficiently common— indeed natural— reaction to confrontation
with the police,” we have held that “extraordinary and prolonged nervousness can
weigh significantly in the assessment” of probable cause or reasonable suspicion.
Santos, 403 F.3d at 1127. These circumstances, together with the evidence of a
- 22 - hidden compartment discovered in the course of the consensual search, easily
provide probable cause for a search of the side panels of the rear of the van.
3. Other Factors
Other factors mentioned by the officer are of little weight under the facts of
this case. There is nothing suspicious about carrying a cell phone and an atlas or
road map w hile driving on an interstate highway, and we are puzzled as to why
Trooper R anieri believes otherw ise. See United States v. Wood, 106 F.3d 942,
947 (10th Cir. 1997). Also, under the circumstances of this case little weight
should be attached to the fact that M s. Concepcion-Ledesma took a newly
purchased van on a long trip. Travelers frequently acquire a new vehicle in
anticipation of a long trip out of concern that an older vehicle will break down
before reaching the destination.
W e assign no weight to Trooper Ranieri’s equivocal testimony that he
smelled air freshener inside the vehicle. This Court “has consistently held that
the scent of air freshener is properly considered as a factor in the probable cause
analysis” where it might suggest a conscious attempt to mask the smell of
contraband. United States v. West, 219 F.3d 1171, 1178 (10th Cir. 2000). But in
this case, even after an exhaustive search, the police found no air freshener in the
vehicle, and the officer testified that the “sweet, fruity smell could have been
placed in the vehicle a few days before by the dealer or the seller.” M em. &
Order 4. The district court apparently did not find this slight, perhaps non-
- 23 - existent, air freshener scent suggestive of a conscious attempt to hide the smell of
contraband, and neither do we.
Finally, the district court found that the “destination and route of travel”
contributed to probable cause. M em. & Order 19. W hen asked about her travel
plans, M s. Concepcion-Ledesma stated that she was driving from Detroit to Los
Angeles. That route was suspicious, according to Trooper Ranieri, because she
was “coming from an area where narcotics is [sic] usually warehoused or
narcotics is [sic] stored . . . to another source city.” Appellee’s Supp. App. 39.
On that theory, however, the route should not have been suspicious at all. The
van was traveling from a drug “warehouse destination” to a drug “source city,”
and therefore should have been empty. Drug couriers do not transport drugs away
from the warehouse and back to the source. This logical gap precludes us from
relying on the route as the basis for probable cause.
4. Totality of the Circum stances
Notwithstanding our conclusion that some of the factors on which the
officers relied were of little or no weight under the facts of this case, we have no
hesitation in affirming the district court’s finding of probable cause based on the
totality of the circumstances. Troopers R anieri and Dean had probable cause to
expand their search in light of the evidence of a secret compartment, inadequate
amount of luggage for a one- or two-week trip, M s. Concepcion-Ledesma’s denial
of any relationship with the other M ichigan vehicles traveling nearby, and the
- 24 - women’s extreme nervousness. Their warrantless search was therefore reasonable
under the automobile exception, and the district court properly denied M s.
Concepcion-Ledesma’s motion to suppress.
III. Conclusion
W e A FFIR M the judgment of the district court.
- 25 -