FILED United States Court of Appeals Tenth Circuit
PUBLISH July 14, 2020 Christopher M. Wolpert UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, v. No. 19-2058 RAQUEL CORTEZ,
Defendant-Appellant. ---------------------------- ---------------------------- UNITED STATES OF AMERICA,
Plaintiff-Appellee, v. No. 19-2059 JOSEFINA REYES-MORENO,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. NOS. 2:18-CR-02639-KG-1 and 2)
Daniel Rubin (Meghan D. McLoughlin, Assistant Federal Public Defender, on the joint briefs), Office of the Federal Public Defender, Las Cruces, New Mexico, for Appellants.
Jennifer Rozzoni, Assistant United States Attorney (John C. Anderson, United States Attorney, with her on the briefs), Office of the United States Attorney, Albuquerque, New Mexico, for Appellee. Before TYMKOVICH, Chief Judge, SEYMOUR, and MORITZ, Circuit Judges.
TYMKOVICH, Chief Judge.
After a routine traffic stop in New Mexico led to Raquel Cortez and
Josefina Reyes-Moreno’s indictment for conspiring to transport undocumented
aliens, both defendants jointly moved to suppress evidence based on Fourth and
Fifth Amendment violations they allege occurred during the stop. The district
court found no constitutional violations and denied the motion.
We agree no constitutional violations occurred during the stop. No Fourth
Amendment violation occurred because none of the law enforcement officers’
initial questions impermissibly delayed the stop and, during the stop, the officers
developed reasonable suspicion the defendants were transporting undocumented
aliens, justifying a further detention until Border Patrol arrived. No Fifth
Amendment violation occurred because neither Cortez nor Reyes-Moreno faced
custodial interrogation during the stop, rendering the absence of Miranda
warnings harmless.
We therefore AFFIRM.
-2- I. Background
Sergeant Alvarez, a New Mexico State Police Officer, was parked on State
Road 80—a two-lane highway running north-south in southwest New Mexico
—when he recorded a northbound pickup truck going 66 mph in a 55 mph zone.
Sergeant Alvarez turned on his vehicle’s emergency lights, triggering the
vehicle’s dashboard camera, and pulled the pickup over for speeding. The stop
occurred about fifty miles from the Mexico border, and State Road 80 does not
have a Border Patrol checkpoint on it.
Traveling in the pickup were six individuals: Cortez and Reyes-Moreno,
two small children, and two adult male passengers. Cortez and Reyes-Moreno,
who are biological half-sisters and U.S. citizens, were in the front seat along with
one of the children, their nine-year-old niece. The other child, Cortez and Reyes-
Moreno’s eleven-year-old nephew, rode in the back with the two adult men. 1
Sergeant Alvarez initially approached the vehicle and spoke to the driver,
Cortez. They discussed how fast Cortez had been going, and Sergeant Alvarez
asked for Cortez’s license, insurance, and registration. Then, as was his practice,
he asked Cortez to come stand at the front right bumper of his police vehicle. She
1 Cortez and Reyes-Moreno’s niece and nephew are children of a third sister who was not present at the stop.
-3- obliged, and he followed her back to the squad car. According to his testimony,
Sergeant Alvarez did not notice the male passengers in the back seat at this time.
Back at his police vehicle, while running Cortez’s license through his
computer system to check for outstanding warrants, Sergeant Alvarez asked
Cortez a series of questions regarding her travel plans and whom she was
traveling with. He asked where Cortez was coming from, where she was headed,
and who was traveling with her. Cortez replied that she was coming from
Douglas, Arizona—which lies right on the Mexico border—and that she was
heading to Alabama with her sister, niece, and nephew. Cortez did not mention
the two adult men in the back seat.
Sergeant Alvarez asked a few questions regarding the relationship between
Cortez, Reyes-Moreno, and the children. He also inquired how long Cortez had
been in Douglas, whether she was working there, and where and with whom she
was staying while in Douglas. Cortez replied that she had not been working in
Douglas, and had been staying with her boyfriend. When Sergeant Alvarez asked
what he did for a living, she replied that he was a truck driver. Finally, Sergeant
Alvarez asked whose truck Cortez was driving, to which she responded that it was
Reyes-Moreno’s vehicle.
Sergeant Alvarez then returned to the pickup to “check some numbers,”
while Cortez remained by the police vehicle. The officer later testified that he
-4- was checking the truck’s vehicle identification number at this time and the
dashboard camera video shows he checked something on the driver’s side of the
truck. Sergeant Alvarez then walked around to the passenger side and asked
Reyes-Moreno a series of questions similar to those he posed to Cortez. 2
While talking with Reyes-Moreno, Sergeant Alvarez noticed the two adult
men in the back seat of the pickup. He asked Reyes-Moreno about the men, and
later testified that she became defensive “like she didn’t want to be asked any
questions about the people that she was with.” R. at 108. Ultimately, Reyes-
Moreno said she did not know the men and that she and Cortez had picked them
up at a gas station. Sergeant Alvarez asked the men for identification. Initially,
neither responded. They looked straight ahead “as if they didn’t hear what
[Sergeant Alvarez] said.” R. at 101. After another inquiry, the men simply
replied “no.” Id.
At this point in time, approximately seven minutes into the stop, Sergeant
Alvarez returned to his police vehicle and radioed for assistance from Border
Patrol. He then proceeded to complete the remaining portions of the traffic stop,
including discussing how fast Cortez had been going, what her options were for
paying the ticket, and whether she planned to pay or contest the ticket.
2 Specifically, Sergeant Alvarez asked where they were coming from; why they had been in Douglas; how long they had been there; and who had traveled there together.
-5- Sergeant Alvarez also continued to ask Cortez questions regarding whom
she was traveling with, the circumstances surrounding picking up the two men,
and whether there are a lot of lakes in Alabama. 3 During this time, Sergeant
Gomez, another New Mexico State Police Officer, arrived on the scene. She
discussed Cortez’s speed with Sergeant Alvarez and participated in some of the
questioning of Cortez.
Approximately twenty minutes into the stop, Border Patrol arrived. Shortly
thereafter, Sergeant Alvarez indicated the traffic stop had concluded, returning
Cortez’s license and providing her with a completed citation. In the subsequent
immigration investigation conducted by Border Patrol, the two adult men admitted
they were undocumented and present in the United States unlawfully.
As a result, Cortez and Reyes-Moreno were charged with conspiracy to
transport undocumented persons under 8 U.S.C. § 1324(a)(1)(A)(v)(I). In district
court, they filed a joint motion to suppress evidence and statements obtained from
the traffic stop. Relying on Rodriguez v. United States, 575 U.S. 348 (2015), they
argued that Sergeant Alvarez violated their Fourth Amendment rights by
impermissibly extending the scope of the stop beyond its mission without
independent reasonable suspicion. They also contended Sergeant Alvarez
3 With respect to inquiring about lakes in Alabama, Sergeant Alvarez testified that “the address on the registration or on [Cortez’s] license said something Lake, so I was just — I was having a conversation.” R. at 121.
-6- violated their Fifth Amendment rights by questioning them without first providing
Miranda warnings.
The district court denied the motion. With respect to the Fourth
Amendment claims, the district court rejected the notion that any of Sergeant
Alvarez’s conduct impermissibly extended the scope or duration of the stop. As
to the Fifth Amendment claims, it found the circumstances of the stop did not
necessitate Miranda warnings because neither Cortez nor Reyes-Moreno ever
faced custodial interrogation. Cortez and Reyes-Moreno subsequently pleaded
guilty, but reserved the right to appeal the district court’s denial of their
suppression motion.
II. Analysis
Cortez and Reyes-Moreno allege the district court erred by denying their
motion to suppress in the face of Fourth and Fifth Amendment violations.
When reviewing the denial of a motion to suppress, “we view the evidence
in the light most favorable to the government, accept the district court’s findings
of fact unless they are clearly erroneous, and review de novo the ultimate question
of reasonableness under the Fourth Amendment.” 4 United States v. McNeal, 862
4 This represents the standard of review on appeal when the government prevails. It is not the appropriate standard for the district court to apply in the first instance when hearing a motion to suppress evidence. The district court erred by doing so below. See R. at 66 (stating that “in deciding a motion to (continued...)
-7- F.3d 1057, 1061 (10th Cir. 2017) (quoting United States v. Lopez, 849 F.3d 921,
925 (10th Cir. 2017)).
A. Fourth Amendment
The Fourth Amendment guarantees the right of people to be “secure in their
persons, houses, papers, and effects against unreasonable searches and seizures.”
U.S. Const. amend. IV. A traffic stop is a seizure for Fourth Amendment
purposes, subject to the reasonableness requirement therein. United States v.
Pettit, 785 F.3d 1374, 1379 (10th Cir. 2015). To be reasonable, a traffic stop
must be justified at its inception and the officer’s actions must be “reasonably
4 (...continued) suppress, the Court views the evidence in the light most favorable to the United States”). Our research discloses that multiple district courts in this circuit have committed the same error. See, e.g., United States v. Cruz, 338 F. Supp. 3d 1235, 1240 (D.N.M. 2018); United States v. Turner, No. 13-40050-01-JAR, 2013 WL 5727404, at *9 (D. Kan. Oct. 22, 2013). On a motion to suppress, “the district court must assess the credibility of witnesses and determine the weight to give to the evidence presented; the inferences the district court draws from that evidence and testimony are entirely within its discretion.” United States v. Goebel, 959 F.3d 1259, 1265 (10th Cir. 2020). Cortez and Reyes-Moreno argue in their reply brief that the district court’s error requires reversal. But this argument comes too late. Where a litigant fails to raise an issue in an opening brief, that party waives that issue. State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994). As we have repeatedly held, we “will not entertain issues raised for the first time on appeal in an appellant’s reply brief.” Platt v. Winnebago Industries, Inc., 960 F.3d 1264, 1271 (10th Cir. 2020) (quoting Anderson v. U.S. Dep’t of Labor, 422 F.3d 1155, 1174 (10th Cir. 2005)). Accordingly, we decline to consider Cortez and Reyes- Moreno’s argument with respect to the standard of review.
-8- related in scope” to the “mission of the stop.” United States v. Mayville, 955 F.3d
825, 829 (10th Cir. 2020) (quoting Rodriguez, 575 U.S. at 356). 5
An officer’s authority to seize the occupants of a vehicle ends when “tasks
tied to the traffic infraction are—or reasonably should have been—completed.”
Rodriguez, 575 U.S. at 354. An officer may not constitutionally prolong a stop
beyond that point except where (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. See Mayville, 955 F.3d at
830 (citing Rodriguez, 575 U.S. at 354–57); see also Pettit, 785 F.3d at 1379
(“Continued detention is lawful only if the encounter becomes consensual or if,
during the initial lawful traffic stop, the officer develops a ‘reasonable suspicion’
that the detained person is engaged in criminal activity.”).
Cortez and Reyes-Moreno argue that Sergeant Alvarez unreasonably
extended the scope of the stop by asking questions unrelated to the mission of
writing a traffic citation, and that he did so without independent reasonable
suspicion of criminal wrongdoing. 6 Taking these arguments in reverse order, we
5 Cortez and Reyes-Moreno do not dispute that the stop was justified at its inception, requiring us to address only the second inquiry of whether it remained reasonable throughout. 6 Cortez and Reyes-Moreno also contend Sergeant Alvarez lacked the authority to perform “the functions of an immigration officer,” rendering the stop invalid. Aplt. Br. at 17 (citing Arizona v. United States, 567 U.S. 387, 408 (continued...)
-9- conclude that Sergeant Alvarez developed reasonable suspicion approximately
seven minutes into the stop and did not unreasonably prolong the stop through
unrelated questioning before that point.
6 (...continued) (2012)). It is true that Sergeant Alvarez may have lacked the authority to validly detain and investigate someone unlawfully present in the United States for civil immigration offenses. See Arizona, 567 U.S. at 413. But Congress explicitly granted him and other local police officers the authority to investigate and arrest individuals for the criminal activity at issue here—transporting undocumented aliens. 8 U.S.C. § 1324(c) (“No officer or person shall have authority to make any arrests for a violation of any provision of this section except officers and employees of the Service designated by the Attorney General, either individually or as a member of a class, and all other officers whose duty it is to enforce criminal laws.” (emphasis added)); see also Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1025 (9th Cir. 2013) (“Section 1324(c) allows state and local law enforcement officials to make arrests for violations of § 1324.”); Santos v. Frederick Cty. Bd. of Comm’rs, 725 F.3d 451, 464 (4th Cir. 2013) (same). Indeed, the Supreme Court even recognized this authority in Arizona—the only case Cortez and Reyes-Moreno rely on for their authority-based argument. 567 U.S. at 409 (recognizing 8 U.S.C. § 1324(c) as one “specific[] limited circumstance[] in which state officers may perform the functions of an immigration officer”). Consistent with this authority, our case law confirms local law enforcement may detain individuals for reasonable periods of time to await immigration officials where the officers have reasonable suspicion that illegal trafficking is occurring. See, e.g., United States v. Cota-Herrera, 75 F. App’x 695, 698 (10th Cir. 2003) (reasonable suspicion of alien trafficking justified state trooper’s fifteen-to-twenty minute detention until immigration officials arrived). Accordingly, it is clear Sergeant Alvarez was not acting outside of his authority, in investigating the transportation of undocumented aliens once he obtained reasonable suspicion that such criminal activity was afoot.
-10- 1. Reasonable Suspicion
Reasonable suspicion accrues when an officer possesses a “particularized
and objective basis for suspecting criminal conduct under a totality of the
circumstances.” Pettit, 785 F.3d at 1379 (quoting United States v. Cortez, 449
U.S. 411, 417–18 (1981)). This is not an onerous standard. United States v.
Kitchell, 653 F.3d 1206, 1219 (10th Cir. 2011). Although the government bears
the burden of demonstrating the reasonableness of the suspicion, it requires
“considerably less” than a preponderance of the evidence and “obviously less”
than probable cause. Pettit, 785 F.3d at 1379. The existence of reasonable
suspicion does not require the officer to rule out the possibility of innocent
conduct, and in assessing reasonable suspicion we defer to a police officer’s
training and ability to discern innocent conduct from suspicious behavior. See
United States v. Simpson, 609 F.3d 1140, 1146 (10th Cir. 2010).
The United States contends Sergeant Alvarez developed reasonable
suspicion by the time he spoke to the two men in the back of the pickup, or
approximately seven minutes into the stop. We agree. At this time, the totality of
the circumstances included numerous factors indicating Cortez and Reyes-Moreno
may have been engaged in criminal transportation of undocumented aliens.
First, the geography and context of the stop generated suspicion. See
United States v. Brignoni-Pence, 422 U.S. 873, 884–85 (1975) (noting “proximity
-11- to the [Mexico] border, the usual patterns of traffic on the particular road, and
previous experience with alien traffic are all relevant” factors in assessing
reasonable suspicion of alien trafficking). Here the stop occurred approximately
fifty miles from the Mexico border, with Cortez and Reyes-Moreno traveling
northbound away from the border on State Road 80. This particular road adds to
the reasonableness of suspicion because, as Sergeant Alvarez testified, State Road
80 is “unique” in that it is “the only route . . . directly from the border that
doesn’t have Border Patrol checkpoints.” R. at 14; United States v. Arvizu, 534
U.S. 266, 277 (2002) (noting that one of the factors which contributed to the
officer’s reasonable suspicion was the unusual route taken by the defendants,
which was commonly used by smugglers to avoid checkpoints); see also United
States v. Westhoven, 562 F. App’x 726, 728 (10th Cir. 2014) (relying on
testimony that “undocumented immigrant and drug smugglers used [Highway 80
in southern New Mexico] heavily due to the lack of border patrol checkpoints” in
finding reasonable suspicion existed). Cortez and Reyes-Moreno also both stated
they were coming from Douglas, Arizona, which lies directly on the border with
Mexico. Although not inconsistent with an innocent explanation, these factors
contribute to the reasonableness of suspecting Cortez and Reyes-Moreno of
trafficking. Brignoni-Pence, 422 U.S. at 884–85.
-12- Second, Cortez and Reyes-Moreno’s evasiveness with respect to their
traveling companions contributes to the reasonableness of Sergeant Alvarez’s
suspicion. See United States v. Cash, 733 F.3d 1264, 1275 (10th Cir. 2013)
(holding evasiveness in response to questioning supports reasonable suspicion).
When initially asked with whom she was traveling, Cortez omitted any mention of
the two adult men. Reyes-Moreno similarly appeared evasive and defensive when
asked about the men. As Sergeant Alvarez testified, she reacted as if “she did not
want to be asked any questions about the people she was with.” R. at 29. Such
attempts to avoid discussing the identity of, and relationship among, traveling
companions contributes to the reasonable suspicion that some aspect of that
identity or relationship is incriminating.
We routinely discount individuals’ reactions to encountering law
enforcement when they can be easily explained as the type of common response
triggered by a police interaction. Indeed, we have recognized that mere
nervousness does not alone generate reasonable suspicion because “it is common
for most people to exhibit signs of nervousness when confronted by a law
enforcement officer whether or not the person is currently engaged in criminal
activity.” United States v. Salzano, 158 F.3d 1107, 1113 (10th Cir. 1998). But
here, the omissions and evasiveness of Cortez and Reyes-Moreno speak to a
separate type of reaction not “normally anticipated during a citizen-police
-13- encounter.” Pettit, 785 F.3d at 1380 (finding extreme nervousness contributed to
reasonable suspicion because it was a reaction not ordinarily expected during
interactions with law enforcement). Ordinarily, citizens stopped for traffic
violations would not conceal or otherwise fail to acknowledge the presence of
traveling companions. Nor would they display a reluctance to discuss those
individuals or their relationship with them. Accordingly, Cortez and Reyes-
Moreno’s abnormal reactions contribute to reasonable suspicion.
Third, the reactions of the men to Sergeant Alvarez’s questioning
confirmed his reasonable suspicion of Cortez and Reyes-Moreno. Not only did
the men not possess identification, but they both were unresponsive and
recalcitrant in the face of questioning. As Sergeant Alvarez testified, each looked
“straight [ahead] as if they didn’t hear” Sergeant Alvarez’s questions. R. at
27–28. Given the context, geography, and other circumstances of the stop thus
far, the men’s reluctance to engage with law enforcement suggested that they may
be undocumented aliens. This, in turn, supported the suspicion that those
traveling with them—Cortez and Reyes-Moreno—were in the process of
transporting them illegally.
Finally, Cortez and Reyes-Moreno’s eventual explanations for traveling
with the men—that they had picked them up as hitch-hikers from a gas
station—contributed to reasonable suspicion despite being consistent and
-14- ostensibly providing an innocent explanation for their conduct. Pettit, 785 F.3d at
1379 (“[F]actors consistent with innocent travel may contribute to reasonable
suspicion.”). Sergeant Alvarez was not required to credit their story, see id., and
it is understandable why he would not. After all, it is peculiar to some that two
women entrusted with their sister’s small children would pick up two strange men
they met at a gas station and then permit them to travel alone in the back seat in
close proximity to one of the children—an eleven year-old. Such “bizarre”
choices can contribute to reasonable suspicion. See United States v. White, 584
F.3d 935, 951 (10th Cir. 2009).
Of course, not every odd decision warrants suspicion simply “because it
indicates a choice that the typical person, or the officer, would not make.”
Simpson, 609 F.3d at 1149. But here Cortez and Reyes-Moreno’s decision to let
their young nephew ride in the back with these men undercuts their proffered
explanation that the men were complete strangers. Instead, their apparent comfort
with the men suggests a closer relationship consistent with transporting them
illegally. Although not alone sufficient to give rise to reasonable suspicion, this
warrants consideration in the analysis.
On the whole, these circumstances established reasonable suspicion that
Cortez and Reyes-Moreno were transporting undocumented aliens. Our
conclusion in this respect gives significant weight to the proximity to the border
-15- and the fact that State Road 80 is unique for having no Border Patrol checkpoints.
Were a similar stop conducted in the middle of the country, our analysis might
turn out differently. But here we conclude that, approximately seven minutes into
the stop, Sergeant Alvarez possessed sufficient justification to detain Cortez and
Reyes-Moreno in order to further investigate his suspicions of trafficking.
Cortez and Reyes-Moreno rely on United States v. De La Cruz to counter
the suggestion that reasonable suspicion developed. See 703 F.3d 1193 (10th Cir.
2013). There, in assessing a stop that occurred in Tulsa, Oklahoma, we held an
officer lacked reasonable suspicion to continue detaining the driver of a vehicle
merely because a passenger—who was in the United States unlawfully—fled the
vehicle upon encountering the police. Id. at 1196. We found the passenger’s
unlawful presence in the United States failed to generate reasonable suspicion
with respect to the driver because such conduct constituted only a “status crime,
which would not necessarily suggest that the driver of the vehicle . . . was also
involved in criminal activity.” Id. at 1198. We also rejected the government’s
theory that the driver could be reasonably suspected of transportation under 8
U.S.C. § 1324(a)(1)(A)(ii) because we found that statute precluded only
transportation that “furthers an alien’s violation” and does not “encompass
persons who come into daily contact with undocumented aliens.” Id. at 1199.
-16- Cortez and Reyes-Moreno would have us extend De La Cruz to the present
circumstances and hold that their passengers’ unlawful presence cannot cast
suspicion on Cortez and Reyes-Moreno, but the facts of the present case differ
significantly. Unlike in De La Cruz, where we emphasized that the seizure
occurred “a significant distance from the U.S. border,” here the stop occurred
only fifty miles from the Mexico border. Id. In fact, in De La Cruz, we
considered that the reasonable suspicion analysis may differ in such
circumstances. Id. at 1198 (noting that the analysis may be different “if the stop
occurred close to the U.S.-Mexican border on a highway or road frequently used
by illegal immigrants to enter the United States undetected”). The instant appeal
presents such a case where the geography and context of the stop warrant a
different outcome.
Moreover, unlike De La Cruz, here additional facts support suspicion of
Cortez and Reyes-Moreno beyond mere proximity to those unlawfully present in
the United States. For example, Cortez and Reyes-Moreno were evasive and
defensive when asked questions about with whom they were traveling. When
considered in conjunction with the location of the stop, these additional facts
provide a much stronger basis on which to conclude reasonable suspicion of
trafficking exists.
-17- 2. Unreasonable Delay Under Rodriguez
Having established reasonable suspicion accrued approximately seven
minutes into the stop, justifying the extension until Border Patrol arrived, we turn
to address whether any Fourth Amendment violation occurred prior to that point.
Cortez and Reyes-Moreno argue Sergeant Alvarez unreasonably prolonged the
stop through delinquency and by asking questions unrelated to the mission of
issuing a traffic citation.
A traffic stop may “last no longer than is necessary” to complete the
mission of the stop. Rodriguez, 575 U.S. at 354. The mission of the stop
includes both addressing the traffic violation warranting the stop and attending to
“related safety concerns.” Id. at 354, 356 (holding “negligibly burdensome
precautions” are permissible to protect officer safety in light of the fact that the
government’s “officer safety interest stems from the mission of the stop itself”);
United States v. Gurule, 935 F.3d 878, 884 (10th Cir. 2019) (“[T]he tolerable
duration of police inquiries in the traffic-stop context is determined by the
seizure’s ‘mission’—to address the traffic violation that warranted the stop, and
attend to related safety concerns.”).
As a preliminary matter, to the extent Cortez and Reyes-Moreno argue
Sergeant Alvarez was unreasonably delinquent in executing the citation during the
first seven minutes of the stop, we reject that contention. “Rodriguez does not
-18- prohibit all conduct that in any way slows the officer from completing the stop as
fast as humanly possible.” United States v. Campbell, 912 F.3d 1340, 1353 (11th
Cir. 2019). Although it is appropriate to consider police diligence, Rodriguez,
575 U.S. at 354, the mere fact that an officer could, conceivably, have performed
a task more quickly than he did fails, on its own, to generate a Fourth Amendment
violation. “This is because reasonableness—rather than efficiency—is the
touchstone of the Fourth Amendment.” Mayville, 955 F.3d at 827; see also
Rodriguez, 575 U.S. at 354 (holding that “[a]uthority for the seizure thus ends
when tasks tied to the traffic infraction are—or reasonably should have
been—completed” (emphasis added)).
Here, nothing suggests any unreasonable delay or delinquency in the
manner Sergeant Alvarez conducted the first seven minutes of the stop. He
testified that he completed the stop in a way that was consistent with his
customary practice. And the dashboard camera reveals nothing to the contrary.
Thus, we turn to Cortez and Reyes-Moreno’s primary argument—that
Officer Alvarez impermissibly extended the stop by asking questions unrelated to
its mission. This we similarly find unavailing.
Our precedents establish that, in the context of an ordinary traffic stop, law
enforcement may engage in certain inquiries without running afoul of the Fourth
Amendment. For example, an officer may perform those activities necessary to
-19- completing the citation such as “request[ing] a driver’s license and registration,
run[ning] requisite computer checks, and issu[ing] citations or warnings.” Pettit,
785 F.3d at 1379. An officer may also inquire about the driver’s travel plans and
the identity of the individuals in the vehicle. Id.; United States v. Cone, 868 F.3d
1150, 1154 (10th Cir. 2017) (finding general questions regarding travel plans and
identity reasonable under the Fourth Amendment); United States v. Morgan, 855
F.3d 1122, 1126 (10th Cir. 2017) (holding officer’s questions regarding identity
did not exceed the scope of a Terry stop).
In addition, because “[t]raffic stops are especially fraught with danger to
police officers,” law enforcement personnel may take “certain negligibly
burdensome precautions in order to complete [their] mission safely.” Rodriguez,
575 U.S. at 356. These may include conducting criminal record checks, searching
for outstanding warrants, or asking limited questions directed at ensuring officer
safety. Id.; Cone, 868 F.3d at 1153–54.
What law enforcement may not do is divert from the mission of the stop in
order to conduct general criminal interdiction or investigate other crimes. See
Rodriguez, 575 U.S. at 356 (holding “[o]n-scene investigation into other crimes . .
. detours from [the] mission” of the stop); Campbell, 912 F.3d at 1353 (“[A] stop
is unlawfully prolonged when an officer, without reasonable suspicion, diverts
from the stop’s purpose and adds time to the stop in order to investigate other
-20- crimes”). Nor may an officer engage in “safety precautions taken in order to
facilitate such detours.” Rodriguez, 575 U.S. at 356.
With these principles in mind, we conclude none of Sergeant Alvarez’s
inquiries in the first seven minutes of the stop detoured from the stop’s mission.
First, Sergeant Alvarez was entitled to ask Cortez and Reyes-Moreno about their
own identities and the identities of their traveling companions. See Morgan, 855
F.3d at 1126; see also United States v. Fernandez, 600 F.3d 56, 60 (1st Cir. 2010)
(“[P]olice requests for identifying information typically do not trigger Fourth
Amendment concerns.”); Stufflebeam v. Harris, 521 F.3d 884, 888 (8th Cir. 2008)
(“[A] police officer does not violate the Fourth Amendment by inquiring into the
identity of a vehicle’s passenger during the course of a lawful traffic stop, even
absent reasonable suspicion that the passenger has committed a crime.”); United
States v. Diaz-Castaneda, 494 F.3d 1146, 1152 (9th Cir. 2007) (“The police may
ask people who have legitimately been stopped for identification without
conducting a Fourth Amendment search or seizure.”).
As we explained in Morgan, officer safety interests justify inquiries into
identity because “[k]nowledge of identity may inform an officer that a suspect is
wanted for another offense, or has a record of violence or mental disorder.” 855
F.3d at 1126; see also Cone, 868 F.3d at 1154 (recognizing that inquiries as to
identity are permissible for the purpose of protecting officer safety). Sergeant
-21- Alvarez’s inquiries into the identities of Cortez, Reyes-Moreno, their niece and
nephew, and the two men fall into this category and are thus permissible.
Sergeant Alvarez was similarly entitled to inquire as to Cortez and Reyes-
Moreno’s travel plans. United States v. Moore, 795 F.3d 1224, 1229 (10th Cir.
2015) (holding “[a]n officer may . . . generally inquire about the driver’s travel
plans” without violating the Fourth Amendment). As we explained in United
States v. Holt, such inquiries are justified because “[t]ravel plans typically are
related to the purpose of a traffic stop.” 264 F.3d 1215, 1221 (10th Cir. 2001) (en
banc), overturned on other grounds by Muehler v. Mena, 544 U.S. 93 (2005).
Sergeant Alvarez’s questions regarding where Cortez and Reyes-Moreno
were coming from, where they were going, and how long they had stayed in
Douglas are permissible as they fit into the travel plans rubric and relate to the
mission of the stop. United States v. Alcaraz-Arellano, 441 F.3d 1252, 1259
(10th Cir. 2006) (“[A]n officer may routinely ask about travel plans . . . during a
lawful traffic stop.”). These questions could cast light on why Cortez had been
speeding, tying them to the initial justification for the stop. Holt, 264 F.3d at
1221 (explaining that such inquiries “may help explain, or put into context, why
the motorist was weaving (if tired) or speeding (if there was an urgency to the
travel)”).
-22- The questions relating to whether Cortez was working in Douglas, whom
she was staying with while there, and what her boyfriend did for a living are
farther afield. But we find these questions permissible as the type of “negligibly
burdensome” inquiries directed at ensuring officer safety. See United States v.
Rice, 483 F.3d 1079, 1084 (10th Cir. 2007) (“While a traffic stop is ongoing . . .
an officer has wide discretion to take reasonable precautions to protect his
safety.”). As Sergeant Alvarez testified, he routinely asks innocuous background
questions to assess driver stress, nervousness, and evasiveness to help gauge the
degree of caution necessary in conducting a stop. R. at 162 (testifying that he
“engage[s] [people] in conversation . . . [f]or officer safety, to get a feel for
what’s going on, who you’re dealing with”); id. (noting that his practice is to
“have a conversation with [people] . . . on the side of the road we talk about
travel itinerary, you know what brings them to New Mexico, and based on that,
you know, we’ll determine okay, it’s common motoring public”).
The specific questions Sergeant Alvarez posed here represent only a few
conversational inquiries related to the identity and travel plans he and Cortez had
been discussing. After asking them, apparently satisfied that more precautions
were unnecessary, he immediately returned to the business of completing the stop.
Such questioning is consistent with both the public’s expectations regarding
ordinary inquiries incidental to traffic stops and taking the least burdensome
-23- approach to ensuring officer safety. See Cone, 868 F.3d at 1153–54 (holding
asking a driver questions regarding his or her criminal history is justifiable as a
negligibly burdensome inquiry in part because “allowing the officer to ask the
question may provide important clues pertaining to safety, such as nervous or
evasive responses”).
Furthermore, after a review of the record, we are not convinced these
questions were posed as a pretext to “facilitate” a detour into investigating other
crimes. See Rodriguez, 575 U.S. at 356. A useful comparison here are the
questions Sergeant Alvarez and Sergeant Gomez posed to Cortez in the last
thirteen minutes of the stop. During that period, despite already knowing their
identities, Sergeant Alvarez asked Cortez whether she and Reyes-Moreno were
biological sisters, inquired whether there were a lot of lakes in Alabama, and
asked Cortez a series of repetitive questions regarding how long Reyes-Moreno
had been in Douglas. Both Sergeant Alvarez and Sergeant Gomez also inquired
in depth regarding the circumstances of picking up the two men.
Unlike the questioning in the first seven minutes of the stop, these inquiries
fail to relate to the mission of the stop. They neither helped investigate the
original infraction—speeding—nor could they reasonably be characterized as
relating to officer safety. Such inquiries could not be justified as an attempt to
“get a feel for what’s going on” or assuring the officers that Cortez did not pose a
-24- threat. R. at 162. At this point in the stop, Sergeant Alvarez had already engaged
Cortez in conversation. After having made his preliminary inquiries, Sergeant
proceeded with the traffic stop without taking any additional precautionary
measures. He even let Cortez stand next to him and his police vehicle while he
completed portions of the citation.
Such an approach signals that from approximately seven minutes into the
stop, Sergeant was comfortable with the fact that Cortez posed no threat to his
safety, and no longer needed to take any precautions in that regard. Accordingly,
“view[ing] the officer’s conduct through a filter of common sense and ordinary
human experience,” we can assume without deciding that Sergeant Alvarez’s
questioning of Cortez during the final thirteen minutes of the stop would have
been impermissible, if it had not been justified by independent reasonable
suspicion. See United States v. Rice, 483 F.3d 1079, 1083 (10th Cir. 2007).
But in light of the reasonable suspicion that did accrue, that question is not
before us. And, in contrast to the questioning in the latter portion of the stop, we
find Sergeant Alvarez’s questioning in the first seven minutes of the stop
permissible as related to the mission of the stop. Accordingly, no Fourth
Amendment violation occurred.
-25- B. Fifth Amendment
Cortez and Reyes-Moreno also allege violations of their Fifth Amendment
rights due to Sergeant Alvarez questioning them without providing Miranda
warnings. But Miranda warnings only need to be given once a suspect is in “custody”
and faces questioning that constitutes “interrogation.” United States v. Jones, 523
F.3d 1235, 1239 (10th Cir. 2008). Here, neither Cortez nor Reyes-Moreno faced
custody, precluding any Fifth Amendment violation.
An individual is in custody when a reasonable person in the suspect’s position
would understand his or her situation as “the functional equivalent of formal arrest.”
United States v. Revels, 510 F.3d 1269, 1273 (10th Cir. 2007). This is an objective
inquiry that considers the totality of the circumstances. Id. at 1275. The Supreme
Court clarified in Berkemer v. McCarty that investigatory detentions such as ordinary
traffic stops generally fall short of placing the detainee in custody. 468 U.S. 420, 440
(1984) (holding the “noncoercive aspect of ordinary traffic stops prompts us to hold
that persons temporarily detained pursuant to such stops are not ‘in custody’ for the
purposes of Miranda”); see also United States v. Eckhart, 569 F.3d 1263, 1275 (10th
Cir. 2009) (“Generally, Miranda warnings are . . . not implicated in the context of a
valid Terry stop.”).
This general principle controls here. Nothing about the circumstances of the
traffic stop suggest anything beyond an ordinary Terry stop occurred. As we observed
-26- in Eckhart, the “police citizen encounter envisioned by the Court in Terry usually
involves no more than a very brief detention without aid of weapons or handcuffs, a
few questions relating to identity and the suspicious circumstances, and an
atmosphere that is substantially less police dominated than that surrounding [formal
arrest].” 569 F.3d at 1275–76.
This precisely describes the circumstances of Cortez and Reyes-Moreno’s
detention. Sergeant Alvarez was conversational and non-threatening. United States v.
Rogers, 391 F.3d 1165, 1170 (10th Cir. 2004) (subject not in custody where officers
“were courteous and non-threatening”). He followed his normal practices in
conducting the stop. No physical restraints were ever mentioned, threatened, or used.
Nor was there ever a need to use, brandish, or even discuss Sergeant Alvarez’s
firearm. Indeed, the questioning of Cortez and Reyes-Moreno related mainly to run-
of-the-mill traffic inquiries, and nothing in the record suggests the sort of encounter
that would be comparable to a formal arrest. By all standards, the stop was an
ordinary Terry stop lasting only twenty minutes. Accordingly, the general rule
precluding the necessity of Miranda warnings in such circumstances applies.
Cortez and Reyes-Moreno cite to United States v. Revels—in which this court
affirmed the suppression of statements obtained in violation of the Fifth
Amendment—but that case is readily distinguishable. See 510 F.3d at 1271–72. In
Revels, seven police officers entered the defendant’s home at 6:00 AM by force to
-27- execute a search warrant. They immediately handcuffed the defendant, who was
wearing nothing but her underwear, and forced her to the ground. Subsequently, after
searching the house and discovering a bag of cocaine, the officers uncuffed the
defendant so she could change into clothes. Without re-cuffing her, three officers
brought her into a separate room, held up the bag of cocaine in front of her, and asked
questions in an “accusatory manner.” Id. at 1276. At this point, the defendant
provided incriminating statements she later sought, successfully, to suppress on the
basis that she had never been properly Mirandized.
Due to the drastic differences in circumstances, Revels provides no support for
the contention that Cortez and Reyes-Moreno’s statements here should be suppressed.
Sergeant Alvarez’s polite questioning in the context of an ordinary traffic stop is a far
cry from the intimidating, police-dominated atmosphere present in Revels in which
law enforcement relied on force and physical restraints.
III. Conclusion
For the reasons discussed herein, we conclude neither Cortez nor Reyes-
Moreno suffered a Fourth or Fifth Amendment violation during the traffic stop.
Accordingly, we AFFIRM the district court’s denial of their joint motion to suppress.
-28-