FILED

United States Court of Appeals

Tenth Circuit

December 18, 2020

Christopher M. Wolpert

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DULCE ISABEL RAMOS-BURCIAGA,

Defendant - Appellant.

No. 19-2174

(D.C. No. 1:17-CR-02236-WJ-1)

(D. N.M.)

ORDER AND JUDGMENT

*

Before TYMKOVICH, Chief Judge, BRISCOE, and MURPHY, Circuit Judges.

I. Introduction

Appellant, Dulce Isabel Ramos-Burciaga, appeals the denial of her motion

to suppress illegal drugs found in her possession. Ramos-Burciaga argues she

was seized at a Greyhound bus station by agents from the Drug Enforcement

Administration (“DEA”) and this illegal detention tainted any subsequent consent

she gave to the search of her backpack. Even assuming she was not seized,

*This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.
Ramos-Burciaga argues her consent to search was coerced and the district court

clearly erred when it found otherwise.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we hold that RamosBurciaga was not seized and the search of her backpack does not bear any indicia

of unlawful coercion. Accordingly, we affirm the denial of her motion to

suppress.

II. Background

Ramos-Burciaga was traveling by Greyhound bus from Arizona to

Colorado. She exited the bus when it stopped in Albuquerque, retrieved her

luggage, and entered the terminal. As she sat inside the terminal waiting for her

bus to Denver, she was approached by DEA Special Agent Jarrell Perry. Agent

Perry had been given information by a confidential informant that a Greyhound

customer named Dulce Ramos had begun her journey in Glendale, Arizona; was

destined for Denver, Colorado; had paid cash for her ticket; and had checked one

piece of luggage. He testified that, based on this information, Dulce Ramos “was

a person [he] wished to speak with.” Agent Perry also testified, however, that

when he approached Ramos-Burciaga at the bus station, he did not know she was

the woman identified by the informant as Dulce Ramos.

Agent Perry identified himself as a police officer and showed RamosBurciaga his DEA badge. The government submitted a transcript of the exchange

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between Agent Perry and Ramos-Burciaga, the relevant excerpts of which are set

out below:

Agent Perry: Hello, ma’am, how ya doin’ today?

Ramos-Burciaga: Ah...

Agent Perry: I’m a police officer . . .

Ramos-Burciaga: Ah-hah.

Agent Perry: . . . and we check the station here for security. May I

speak to you for a moment?

Ramos-Burciaga: Uh, yeah.

Agent Perry: Do you speak English okay?

Ramos-Burciaga: Yeah.

Agent Perry: Okay. May I speak to you for a moment?

Ramos-Burciaga: Yeah, sure.

. . . .

Agent Perry: Okay. Here’s your ticket back. Do you have ID with

you Miss uh, Ramos?

Ramos-Burciaga: Yeah, but what happen (UI)?

Agent Perry: It’s just for security here at the 1 station cuz Amtrak,

ur, Greyhound doesn’t really have any security so we come down

here and speak with passengers for security reasons.

Ramos-Burciaga: Okay.

. . . .

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Agent Perry. Yeah, we just check the station here. It’s just for

security, speaking to all the passengers.

Ramos-Burciaga: All right.

Agent Perry: Yeah.

Ramos-Burciaga: It’s like, vi, vi, violence here or something?

Agent Perry: Well, no, it’s just that Greyhound uh . . . really doesn’t

have any security when you board. Did you board in Phoenix?

Ramos-Burciaga: Yeah.

Agent Perry: Okay. Uh, there’s not really any security on the busses

so basically you can carry whatever you want on the bus. Weapons,

illegal narcotics, anything illegal. Weapons, hopefully no explosives

but you can . . . anything illegal.

Ramos-Burciaga: Mh-hm.

Agent Perry: You know, there’s no security, so there’s no, no

checks. So sometimes we got a problem with people carryin’ uh . . .

Ramos-Burciaga: Oh, no.

Agent Perry: . . . things on the busses . . .

Ramos-Burciaga: I never do . . .

. . . .

Agent Perry: Okay. Would you consent for a search of your bag for

contraband, ma’am?

Ramos-Burciaga: Yeah, sure.

. . . .

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Agent Perry: Yeah. Do you have any other luggage with you other

than this bag?

Ramos-Burciaga: No, that’s it.

. . . .

Agent Perry: Yeah. How ‘bout this bag over here? Is this your bag

on your back here?

Ramos-Burciaga: Yeah, that’s uh, the (unintelligible) I have.

Agent Perry: Okay. Will you give me permission to search that too?

Ramos-Burciaga: Why?

Agent Perry: Just to make sure you don’t have anything illegal,

ma’am.

Ramos-Burciaga: I don’t, nothing (chuckles).

Agent Perry: Okay.

Ramos-Burciaga: What happen? I’m . . . nervous right now.

Agent Perry: Oh, there’s no reason to be nervous. As I explained to

you over there, it’s just for security at the bus station. Is that a purse

or a backpack?

Ramos-Burciaga: My purse.

Agent Perry: Okay. Okay. Would you give me permission to search

it or no?

Ramos-Burciaga: But why?

Agent Perry: Just to make sure you don’t have anything illegal

inside, ma’am. Let me ask you this, since you’re not answering the

question, can you just open up, show me the contents then . . .

without me searchin’ it? That okay with you?

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Ramos-Burciaga: Yeah, of course.

Agent Perry: Okay.

. . . .

Agent Perry: Can you just take your stuff outta there so I can see in

the bottom?

Ramos-Burciaga: Yeah, sure.

. . . .

Agent Perry: . . . [C]an you take this out so I can see what you have

in the bottom? I can’t see what you have in the bottom of it.

Ramos-Burciaga: Yes.

After Ramos-Burciaga shifted the contents of her backpack, Agent Perry

was able to see an oblong-shaped bundle wrapped in black electrical tape. He

testified that he knew from experience it was a bundle of illegal narcotics.

Ramos-Burciaga was immediately arrested. She was subsequently charged with

one count of possession with the intent to distribute one kilogram or more of

heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Ramos-Burciaga

moved to suppress the heroin, arguing it was discovered during an

unconstitutional search after she was illegally seized.

1 The district court denied

the motion to suppress the drugs, finding the encounter between Ramos-Burciaga

1 Ramos-Burciaga also moved to suppress statements she made during a

custodial interrogation. The district court ruled in favor of Ramos-Burciaga and

the statements were suppressed.

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and Agent Perry was consensual and further finding that Ramos-Burciaga

voluntarily consented to the search of her backpack. After her motion was

denied, Ramos-Burciaga entered a conditional guilty plea, reserving the right to

appeal the district court’s denial of her motion to suppress.

III. Discussion

A. Seizure

The Fourth Amendment protects “[t]he right of the people to be secure in

their persons . . . against unreasonable . . . seizures.” U.S. Const. amend. IV.

When this court reviews “the denial of a motion to suppress, we accept the

district court’s factual findings and determinations of witness credibility unless

they are clearly erroneous.” United States v. Moran, 503 F.3d 1135, 1139 (10th

Cir. 2007) (quotation omitted). “[T]he ultimate issue of whether a seizure

occurred is a question of law, which we review de novo.” United States v.

Guerrero, 472 F.3d 784, 786 (10th Cir. 2007).

There are three types of police-citizen encounters: (1) consensual

encounters, which do not implicate the Fourth Amendment; (2) investigative

detentions, which must be justified by reasonable suspicion of criminal activity;

and (3) arrests, which must be justified by probable cause. See United States v.

Roberson, 864 F.3d 1118, 1121 (10th Cir. 2017). According to Ramos-Burciaga,

her encounter with Agent Perry at the Greyhound bus terminal was an

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investigative detention not justified by reasonable suspicion. The district court

determined the encounter was consensual.

With respect to consensual encounters, it is well-established that “officers

do not violate the Fourth Amendment’s prohibition on unreasonable seizures

merely by approaching individuals on the street or in other public places and

putting questions to them if they are willing to listen . . . provided they do not

induce cooperation by coercive means.” United States v. Drayton, 536 U.S. 194,

200–01 (2002) (citations omitted). When evaluating “whether a particular

encounter constitutes a seizure, a court must consider all the circumstances

surrounding the encounter to determine whether the police conduct would have

communicated to a reasonable person that the person was not free to decline the

officers’ requests or otherwise terminate the encounter.” Florida v. Bostick, 501

U.S. 429, 439 (1991). “So long as a reasonable person would feel free to

disregard the police and go about his business, the encounter is consensual and

no reasonable suspicion is required.” Id. at 434 (citation omitted). The

reasonable person inquiry “focuses on the objective viewpoint of one in the

defendant’s circumstances.” United States v. Carbajal–Iriarte, 586 F.3d 795,

801 (10th Cir. 2009). The following facts are relevant to a determination of

whether an encounter is consensual:

(1) the threatening presence of several officers; (2) the brandishing

of a weapon by an officer; (3) physical touching by an officer;

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(4) aggressive language or tone of voice by an officer indicating

compliance is compulsory; (5) prolonged retention of an individual’s

personal effects; (6) a request to accompany an officer to the police

station; (7) interaction in a small, enclosed, or non-public place; and

(8) absence of other members of the public.

United States v. Rogers, 556 F.3d 1130, 1137–38 (10th Cir. 2009). This list of

facts “is not exhaustive, nor is any one factor dispositive.” Id. at 1138. “We

review de novo the relevant circumstances to determine whether an interaction

between an individual and a law enforcement officer is a consensual encounter

that does not implicate the Fourth Amendment.” Id. at 1137 (quotation and

citation omitted).

Ramos-Burciaga challenges several aspects of the district court’s ruling.

According to her, the court’s errors included finding that: (1) the agents did not

stand in threatening positions, (2) Agent Perry did not use assertive language or

gestures, (3) Agent Perry did not deceive her by representing he was conducting a

security check, and (4) she was not targeted for questioning. The record,

however, contains sufficient evidence to support all these findings.

There is no dispute that at least two DEA agents were involved in the

encounter. While Agent Perry was searching Ramos-Burciaga’s suitcase, Agent

Larry Pantoja approached the pair and stood behind Ramos-Burciaga who was

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seated.

2 Although Ramos-Burciaga claims she was unable to leave the area

because Agent Perry stood directly in front of her and Agent Pantoja directly

behind her, Agent Perry testified that neither he nor Agent Pantoja obstructed

Ramos-Burciaga’s “ingress or egress” and did not physically touch her. Thus, the

district court’s finding that “neither agent blocked [Ramos-Burciaga’s] ability to

leave, and they were not in threatening positions” is supported by Agent Perry’s

testimony.

Likewise, there is support for the district court’s finding that Agent Perry

did not use assertive language or gestures. Ramos-Burciaga replicated Agent

Perry’s gestures when she testified at the suppression hearing, and the district

court observed the gestures.

3 Thus, the court’s finding that Agent Perry’s hand

gestures were not threatening to a reasonable person in Ramos-Burciaga’s

position was based on its observations of Ramos-Burciaga’s hand movements

during her testimony. The district court was not required to accept her subjective

interpretation of Agent Perry’s presence as “imposing.” Further, the district

2 Ramos-Burciaga has not identified a single case standing for the

proposition that the mere presence of more than one officer is sufficient, standing

alone, to establish a “threatening presence.” Instead, in an analogous context, this

court concluded a similar police-citizen encounter was non-coercive. See United

States v. Benard, 680 F.3d 1206, 1211 (10th Cir. 2012).

3 Ramos-Burciaga testified Agent Perry “was gesturing with his hands, like

he was expecting me to give [my identification] to him.” While giving this

testimony, the record shows that Ramos-Burciaga mimicked Agent Perry by

putting her “open palm out in front of her.”

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court noted it weighed the testimony of Ramos-Burciaga and Agent Perry and

listened to the audio recording of the encounter before finding that Agent Perry

“did not use any threatening gestures or intimidating body language.” The court

specifically found that, based on the audio, Agent Perry’s demeanor was “calm

and respectful,” undermining Ramos-Burciaga’s description of his overall

conduct as intimidating and coercive.

Ramos-Burciaga also challenges the district court’s finding that Agent

Perry did not act deceptively by telling her he was conducting a security check.

Based on the transcript of the encounter, the district court found Agent Perry

truthfully told Ramos-Burciaga he speaks with passengers at the bus terminal to

determine if they are boarding busses with “anything illegal,” including weapons

and narcotics. Ramos-Burciaga, nonetheless, argues Agent Perry was not

checking passengers randomly, as he told her. Rather, he specifically targeted

her for an investigative detention based on information he received from a

confidential informant. Again, the district court’s finding to the contrary that

Ramos-Burciaga was not “targeted” is supported by Agent Perry’s testimony that

he did not know Ramos-Burciaga’s name when he approached her but learned it

only when she presented her identification. Ramos-Burciaga’s argument that the

agents had a “particularized focus” on her and she was “the sole focus of two

agents’ attention in a crowded bus station,” is not persuasive. First, as the

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district court found, Agent Perry did not focus his attention on her because he did

not know who she was. Second, based on the record in this matter, the fact

Agent Perry and Agent Pantoja spoke only to Ramos-Burciaga, instead of

multiple passengers, would not lead a reasonable person in her position to believe

the agents suspected her of committing a crime. Ramos-Burciaga does not

explain how, or if, she knew she was the only passenger Agent Perry had

approached in the terminal. Thus, we are not persuaded the district court clearly

erred in finding Agent Perry was not deceptive and did not give Ramos-Burciaga

the impression he suspected she was carrying illegal drugs.

Ramos-Burciaga also asserts Agent Perry led her to believe she was

required to speak to him, in the same way she would be required to submit to a

security check conducted by an agent with the Transportation Security

Administration (“TSA”). She argues her belief is supported by a question she

posed to Agent Perry, asking why she had been stopped. The record, however,

confirms that Agent Perry displayed a badge showing he was an agent with the

DEA, not the TSA, and specifically told Ramos-Burciaga that Greyhound does

not screen passengers when they board. In fact, Agent Perry repeated the

statement several times, telling Ramos-Burciaga that Greyhound “doesn’t really

have any security so we come down here and speak with passengers for security

reasons” and “there’s not really any security on the busses so basically you can

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carry whatever you want on the bus.” This evidence supports the district court’s

finding that Agent Perry’s statements, including his response to her question,

4

did

not deceptively convey to Ramos-Burciaga that she was required to speak to him

before being permitted to board her bus to Denver.

Finally, Ramos-Burciaga argues she has limited proficiency in English,

increasing the coerciveness of the encounter. The district court, however,

listened to the recording of the encounter and found her responses and questions

were appropriate and “indicate that she understood what she was being asked.”

Ramos-Burciaga does not identify any portion of the conversation demonstrating

this finding is clearly erroneous and the transcript does not support her assertion

she was “struggling to grasp what agents were saying and to respond

appropriately.” Appellant’s Opening Br. at 13.

Having determined that none of the district court’s factual findings are

clearly erroneous, we apply those findings to conclude Ramos-Burciaga was not

4 The audio recording of the encounter was transcribed by the government.

Ramos-Burciaga argues she asked Agent Perry, “What happened that I was

stopped?” but the transcript incorrectly indicates the second portion of her

question was unintelligible. The district court stated “[t]he audio recording of

what [Ramos-Burciaga] said is not clear, and it is difficult to discern what [she]

said after ‘what happened.’” Based on that uncertainty and Agent Perry’s

testimony that he did not recall Ramos-Burciaga asking if she was stopped, the

district court declined to find that Ramos-Burciaga asked why she was stopped.

In evaluating her claim that Agent Perry’s response to her question led her to

believe she was not free to leave, the district court assumed, but did not find, that

Ramos-Burciaga asked why she was stopped.

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seized. Based on the relevant circumstances, no reasonable person in her

position would believe she was not free to terminate the encounter. Agent Perry

approached her in a public place with other people present

5

; he spoke calmly and

asked Ramos-Burciaga for permission to speak to her rather than demanding that

she interact with him; Agent Perry and Agent Pantoja were in street clothes, did

not display any weapons, and did not touch Ramos-Burciaga or make threatening

gestures; neither Agent Perry nor Agent Pantoja impeded Ramos-Burciaga’s

movement; Agent Perry truthfully told Ramos-Burciaga he was conducting a

security check because Greyhound does not check passengers’ possessions before

they board the busses; and there was no language barrier preventing RamosBurciaga from understanding Agent Perry’s questions and explanations.

Only two relevant factors lean in Ramos-Burciaga’s favor: Agent Perry did

not tell her she was free to leave and more than one officer was present during

the encounter. But these factors, when considered with all the others, provide

only weak support for her position. See United States v. Thompson, 546 F.3d

1223, 1228 (10th Cir. 2008) (holding the failure to inform a defendant of her

right to terminate the encounter “carr[ies] little weight in our analysis”); United

5

See United States v. Thompson, 546 F.3d 1223, 1227 (10th Cir. 2008)

(“Both the Supreme Court and this Court have held that the presence of other

citizens during a police encounter is one factor suggesting its consensual

nature.”).

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States v. Benard, 680 F.3d 1206, 1211 (10th Cir. 2012) (concluding the presence

of two officers did not create a coercive environment when the encounter

“occurred on a public street in broad daylight”). Accordingly, we affirm the

district court’s ruling that Ramos-Burciaga was not seized at any time before her

arrest.

B. Consent to Search

Ramos-Burciaga also argues the consent she gave to search her backpack

was not voluntary. Although a warrant is generally required before officers may

conduct a search, no warrant is necessary if the owner of the property voluntarily

consents. Florida v. Jimeno, 500 U.S. 248, 250–51 (1991). “[T]he question

whether a consent to a search was in fact ‘voluntary’ or was the product of duress

or coercion, express or implied, is a question of fact to be determined from the

totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227

(1973). The district court’s finding of voluntariness is reviewed for clear error.

United States v. Thompson, 524 F.3d 1126, 1133 (10th Cir. 2008).

Factors to consider within the federal totality of the circumstances

test include physical mistreatment, use of violence, threats, promises,

inducements, deception, trickery, or an aggressive tone, the physical

and mental condition and capacity of the defendant, the number of

officers on the scene, and the display of police weapons. Whether

an officer reads a defendant his Miranda rights, obtains consent

pursuant to a claim of lawful authority, or informs a defendant of his

or her right to refuse consent, also are factors to consider in

determining whether consent given was voluntary under the totality

of the circumstances.

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United States v. Sawyer, 441 F.3d 890, 895 (10th Cir. 2006) (citations omitted).

As we have already concluded, the encounter occurred in a public place

and Agent Perry did not threaten Ramos-Burciaga, deceive her, use an aggressive

tone, or display his weapon during the encounter. The district court’s finding

that Ramos-Burciaga’s identification and bus ticket were returned to her

immediately is not challenged. We have further concluded Ramos-Burciaga was

not seized at the time she gave her consent for Agent Perry to search her

backpack and, thus, the consent was not tainted by an illegal seizure. Cf. United

States v. Contreras, 506 F.3d 1031, 1037 (10th Cir. 2007) (“[D]etention is only

one factor to be considered in determining whether consent was voluntarily and

freely given based on the totality of the circumstances.”). Her remaining

argument—that Agent Perry coerced her into consenting by persistently

requesting permission to search her luggage—is belied by the transcript of the

encounter.

Agent Perry asked Ramos-Burciaga twice if he could search her backpack;

both times she responded by asking him why he wanted to search. Each time

Agent Perry truthfully told her his objective was to make sure she did not have

“anything illegal” in the backpack. The district court acknowledged RamosBurciaga “twice declined to consent to his search of the backpack,” but also

found “she did not answer his first two requests to search her backpack.” Agent

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Perry then asked Ramos-Burciaga if she would open the backpack herself and

allow him to view its contents. She responded, “Yeah, sure.” Based on these

facts, the district court found Agent Perry did not coerce Ramos-Burciaga into

opening the backpack herself and showing him its contents when he proposed

that approach.

Under all the circumstances, as set out above, there is no clear error in the

district court’s finding that Agent Perry’s “alternative request for [RamosBurciaga] to open her backpack did not become coercive.” Ramos-Burciaga

agreed without hesitation to open the backpack herself when Agent Perry

proposed this approach, despite previously questioning Agent Perry when he

asked to open it himself. This is not a situation where Ramos-Burciaga clearly

expressed her desire not to cooperate by resisting persistent demands from Agent

Perry. See Donahue v. Wihongi, 948 F.3d 1177, 1195 (10th Cir. 2020). Having

reviewed the entire record in light of the relevant circumstances, we discern no

reversible error in the district court’s finding that the government met its burden

of showing Ramos-Burciaga voluntarily consented to the search of her backpack.

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IV. Conclusion

We affirm the district court’s ruling that Ramos-Burciaga voluntarily

consented to the search of her backpack during the course of a consensual

encounter.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge

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