53 F.

3d 1177

UNITED STATES of America, Plaintiff-Appellee,

v.
Juan Alberto ANGULO-FERNANDEZ, Defendant-Appellant.
No. 94-4043.

United States Court of Appeals,

Tenth Circuit.
May 3, 1995.

Bruce C. Lubeck, Asst. U.S. Atty., Salt Lake City, Utah (Scott M.
Matheson, Jr., U.S. Atty., with him on the brief), for plaintiff-appellee.
Robert L. Booker, Booker & Associates, Salt Lake City, UT (David V.
Finlayson, Booker & Associates, with him on the briefs), for defendantappellant.
Before KELLY and McWILLIAMS, Circuit Judges, and VRATIL,
District Judged .
PAUL J. KELLY, Jr., Circuit Judge.

Defendant-Appellant Juan Alberto Angulo-Fernandez was convicted of

possession of cocaine with intent to distribute, 21 U.S.C. Sec. 841(a)(1). He
appeals his conviction, having entered a conditional plea of guilty and seeks
review of the denial of his motion to suppress. See Fed.R.Crim.P. 11(a)(2). Our
jurisdiction arises under 28 U.S.C. Sec. 1291. We vacate the district court's
order denying the motion and remand for further proceedings.

Background
2

On June 15, 1993, a Utah Highway Patrol trooper was travelling along
Interstate 15 when he spotted Mr. Angulo-Fernandez standing next to an
automobile parked in the emergency lane with the hood raised. The officer
pulled over to render assistance.
The officer and Mr. Angulo-Fernandez dispute how effectively they were able

to communicate during their subsequent encounter. According to the officer,

who does not speak Spanish, the Defendant spoke broken English,
communicating first in Spanish and then puzzling it out into English with the
officer's help. Mr. Angulo-Fernandez characterizes the language barrier
between the two as much greater; he claims that he did not understand the
officer's English, and that the two communicated largely by sign language.

The officer asked the Defendant if his car had broken down. Mr. AnguloFernandez motioned to the radiator, which appeared to have overheated. The
officer next inquired whether a wrecker was needed. The Defendant's response
was equivocal: he asked which town was closer, Cedar City or St. George. He
indicated that the vehicle had just been repaired in St. George by producing a
repair receipt bearing the date June 15, 1993 and the name "Alberto Angola."
Together, the officer and the Defendant added antifreeze to the radiator, started
the car, and moved it out of the emergency lane and onto a median.

The officer asked Mr. Angulo-Fernandez where he was going and where he had
been. The Defendant replied that he was on his way back to Chicago after
spending a couple of days in Las Vegas. Next, the officer inquired whether the
car belonged to the Defendant, who in turn responded that he had borrowed the
car from a friend. When asked the name of the owner of the car, Mr. AnguloFernandez hesitated, whether out of nervousness or inability to understand the
officer's question, and finally responded that the vehicle belonged to Manuel
Lucero. Unable to understand the owner's last name, the officer offered the
Defendant pencil and paper and had him write it down.

The officer then requested the Defendant's license and the vehicle registration.
Mr. Angulo-Fernandez claims to have understood this request, both because it
has been his experience that police always ask for such documentation, and
because the words for "license" and "registration" are similar in Spanish. The
officer's suspicions were aroused by the seemingly unusual loan of a car for a
cross-country trip, the difference between the spelling of the name on the repair
order and Mr. Angulo-Fernandez's license, and the Defendant's apparent
hesitancy in revealing the vehicle owner's name. The officer therefore called
dispatch and requested a driver's license check, a license plate and registration
check, and a warrant check.

The license and warrant checks came back indicating no problem, but dispatch
encountered difficulty in the registration check. Eventually dispatch discovered
that it had been checking registration for the wrong year, and when it ran the
check under the correct year, the registration was found to be valid. In spite of
all three checks ultimately revealing no problems, the officer asked dispatch to

contact the registered owner to make sure that the Defendant was in lawful
possession of the car. Dispatch called the number of Manuel Lucero, but the
person on the other end of the line denied ownership of the car.
8

The officer informed Mr. Angulo-Fernandez that there was a problem with the
registration and then inquired whether he was in possession of either drugs or
weapons. According to the officer, the Defendant understood the question and
responded in the negative. The officer asked to search the car. He testified that
Mr. Angulo-Fernandez walked over to the trunk, opened it, reached in and slid
a duffel bag toward the officer. The Defendant, on the other hand, claims that
he had no idea what the officer was saying and that he did not open the trunk
for the officer, but rather had opened the trunk earlier to get out a container of
antifreeze and had never closed it. The officer searched the car and discovered
thirty bundles of cocaine in a concealed compartment hidden between the trunk
and the passenger compartment.

Discussion
9

In reviewing the denial of a motion to suppress, we accept the district court's

findings of fact unless they are clearly erroneous. United States v. Nielsen, 9
F.3d 1487, 1489 (10th Cir.1993). In the context of a hearing on a motion to
suppress, we are mindful that "the credibility of the witnesses and the weight
given to the evidence, as well as inferences and conclusions drawn therefrom,
are matters for the trial judge." United States v. Fernandez, 18 F.3d 874, 876
(10th Cir.1994). Of course, the ultimate question of the reasonableness of a
search or seizure is a question of law that we review de novo. United States v.
Horn, 970 F.2d 728, 730 (10th Cir.1992).

A. Standing
10

It is axiomatic that the threshold issue of Fourth Amendment standing, whether

the search in question violated the rights of the defendant seeking to exclude
evidence, must first be addressed in deciding a motion to suppress. See Rakas v.
Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 428, 58 L.Ed.2d 387 (1978). The
government contends that the Defendant lacks standing to challenge the
excludability of the drug evidence because his possessory interest in the car did
not give rise to the sort of expectation of privacy recognized by society as
objectively reasonable. We disagree.

11

The officer's testimony established that Mr. Angulo-Fernandez had claimed to

have borrowed the car from the rightful owner and had produced a registration
bearing the owner's name. Although such evidence may not be determinative of

the Defendant's right to possess the car, absent evidence to the contrary, it is
sufficient to meet his burden of demonstrating Fourth Amendment standing.
See United States v. Soto, 988 F.2d 1548, 1553-54 (10th Cir.1993).
12

The officer's testimony that the alleged registered owner, when contacted,
denied ownership of the car does not, standing alone, suffice as evidence that
Mr. Angulo-Fernandez wrongfully possessed the car. Without more, it is pure
conjecture to claim that the Defendant stole the car. There are simply too many
other possible reasons, such as mistaken identity, confusion, or self-interest, for
the person on the other end of the phone line to deny ownership. Hence, we do
not find this evidence sufficient to undermine the Defendant's standing to
challenge the search of the car.

B. The Encounter
13

In order to analyze both the degree of police intrusiveness permitted and the
quantum of articulable suspicion supporting the intrusion required under the
Fourth Amendment, it is necessary to first characterize the nature of the
encounter between a defendant and the police. The district court found the
initial contact between Mr. Angulo-Fernandez and the officer to be consensual
in nature. We agree.

14

The officer stopped to help the Defendant with his stalled car; he did not pull
Mr. Angulo-Fernandez over for any perceived traffic violation. As in Florida v.
Bostick, the Defendant's movement "was restricted by a factor independent of
police conduct[;]" his car was stalled in a remote area. See 501 U.S. 429, 436,
111 S.Ct. 2382, 2387, 115 L.Ed.2d 389 (1991). "In such a situation, the
appropriate inquiry [for determining if the encounter between the officer and
the defendant was consensual] is whether a reasonable person would feel free
to decline the [officer's help] or otherwise terminate the encounter." See id. We
find that Mr. Angulo-Fernandez could have declined the officer's assistance
and was free " 'to disregard the police and go about his business.' " Id. at 434,
111 S.Ct. at 2386 (quoting California v. Hodari D., 499 U.S. 621, 628, 111
S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991)). The present case is thus
analytically distinguishable from United States v. McSwain, 29 F.3d 558, 561
(10th Cir.1994), which held that once the purpose of an initially nonconsensual
traffic stop was satisfied, subsequent questions exceeded the scope of the stop's
underlying justification. But when, as here, the encounter is initially
consensual, a police officer is free, at least at first, to pose basic questions and
to request consent to search. See Bostick, 501 U.S. at 434-35, 111 S.Ct. at
2386-87.

15

Unfortunately, the record before us is insufficient to permit a determination of

whether at some point the consensual meeting between the officer and Mr.
Angulo-Fernandez evolved into a nonconsensual encounter. The officer
testified that he asked for and was given the Defendant's license and vehicle
registration; however, the record is devoid of any indication as to when he gave
these documents back. We have previously held that a police officer's
continued retention of these documents takes the encounter out of the
consensual realm, and into that of a stop requiring reasonable suspicion. United
States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.), cert. denied, --- U.S.
----, 114 S.Ct. 1862, 128 L.Ed.2d 484 (1994). Furthermore, we also have found
that if an officer retains a driver's license, he must have reasonable and
articulable suspicion for questioning the driver about drugs or weapons. United
States v. Turner, 928 F.2d 956, 959 (10th Cir.), cert. denied, 502 U.S. 881, 112
S.Ct. 230, 116 L.Ed.2d 187 (1991). In other words, the officer's questions must
concern the conduct that he has found objectively suspicious. See 3 Wayne R.
LaFave, Search and Seizure Sec. 9.2(f), at 375-76 (2d ed. 1987). Without
knowing how long the officer retained the license and vehicle registration, we
are unable to decide when and if the encounter between the officer and the
Defendant became one triggering Fourth Amendment scrutiny.

C. The Search
16

The district court found that reasonable suspicion justified the officer's
preliminary search of the vehicle, which in turn provided probable cause for a
more intrusive search into a hidden compartment containing the cocaine
bundles. We think probable cause was required when the officer commenced
searching the trunk.

17

It is well established that in order to search a vehicle without consent, a police

officer must have either a search warrant or probable cause. See Chambers v.
Maroney, 399 U.S. 42, 51-52, 90 S.Ct. 1975, 1981-82, 26 L.Ed.2d 419 (1970).
Mere reasonable suspicion will not suffice. Thus, assuming that Mr. AnguloFernandez did not consent to the search and that the trunk was not already
open, the officer needed probable cause, not just reasonable suspicion, to search
without a warrant. This probable cause did not exist. The few facts that had
aroused the officer's suspicions simply did not give rise to "the fair probability
that contraband or evidence of a crime [would be discovered]" inside the car's
trunk. See Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76
L.Ed.2d 527 (1983).

18

Of course, the existence of probable cause is irrelevant if Mr. AnguloFernandez in fact voluntarily consented to the search. Because the district court

found probable cause for the search, it did not make any findings regarding the
issue of consent, which is an issue of fact. See Schneckloth v. Bustamonte, 412
U.S. 218, 227, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973); United States v.
Lowe, 999 F.2d 448, 450 (10th Cir.1993). We therefore remand the present
case to the district court so that such findings may be made.
19

On remand, the district court will need to consider whether the Defendant
voluntarily consented to the search, and whether the search undertaken
exceeded the scope of any consent given. See United States v. Dewitt, 946 F.2d
1497, 1500 (10th Cir.1991), cert. denied, 502 U.S. 1118, 112 S.Ct. 1233, 117
L.Ed.2d 467 (1992). This Circuit has established a two-step test for determining
voluntariness. First, the government must proffer "clear and positive testimony
that consent was unequivocal and specific and freely and intelligently given."
Id. (internal quotations omitted). Furthermore, the government must prove that
this consent was given without implied or express duress or coercion. Id.

20

As part of these considerations, the district court will need to further examine
the nature of the encounter between the Defendant and the officer prior to the
search. The district court has stated that reasonable suspicion existed to justify
the officer's asking Mr. Angulo-Fernandez whether he was in possession of
drugs or weapons. We previously have held that a "defendant's lack of a valid
registration, license, bill of sale, or some other indicia of proof to lawfully
operate and possess the vehicle in question, [may give] rise to objectively
reasonable suspicion that the vehicle may be stolen." Fernandez, 18 F.3d at
879. The district court should explain the basis for its apparent conclusion that
the telephonic disclaimer of ownership by the purported owner in another state
gave rise to reasonable suspicion of unlawful activity concerning drugs or
weapons. If the lower court determines that the Defendant was in any way
illegally detained, then it must also confront the question of whether there was
sufficient attenuation between this detention and consent to search. See Turner,
928 F.2d at 958. Insufficient attenuation will result in suppression of the
evidence discovered during the search of the car. See id. The district court's
order denying the motion to suppress is vacated and the case is

21

REMANDED.

The Honorable Kathryn H. Vratil, United States District Judge for the District
of Kansas, sitting by designation