1

The Honorable Richard G. Kopf, United States District Judge for the District

of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-2189

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Santiago Lopez-Mendoza, *

*

Appellant. *

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Submitted: March 12, 2010

Filed: April 15, 2010

___________

Before SMITH, BENTON, and SHEPHERD, Circuit Judges.

___________

BENTON, Circuit Judge.

Santiago Lopez-Mendoza pled guilty to one count of possession with intent to

distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1). In the plea

agreement, Lopez-Mendoza reserved the right to appeal the district court’s1

 denial of

his motion to suppress. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §

3742, this court affirms.
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I.

At about 8:30 a.m. on December 29, 2007, Rene Manuel Vargas-Miranda and

his passenger, Santiago Lopez-Mendoza, pulled into a Nebraska gas station in a

Dodge Magnum with New York plates. Vargas-Miranda entered to buy coffee, and

talked casually with county deputy Randy Brown inside. Brown was in uniform and

visibly armed. Vargas-Miranda mentioned his car belonged to his girlfriend in New

York, and he was driving there to stay two or three weeks.

As Vargas-Miranda was leaving, Deputy Brown asked for his license and

registration. Vargas-Miranda provided a California driver’s license. He did not have

registration, but produced an insurance card with the name Jessica Roldan. The

deputy took the card and asked Vargas-Miranda the name of the car’s owner. VargasMiranda tried to read the card in the deputy’s hand, then said Lopez-Mendoza’s

girlfriend owned the car. When asked how he and Lopez-Mendoza planned to return

to California, Vargas-Miranda said they would probably rent a car.

Deputy Brown approached the car and asked Lopez-Mendoza who owned it.

Lopez-Mendoza answered “Jessica Roldan.” Asked about travel plans, LopezMendoza said he and Vargas-Miranda were going to New York for two or three days

and flying back to California. At this point, Vargas-Miranda said that LopezMendoza does not speak English; Lopez-Mendoza then told the deputy he does not

speak English. The deputy noticed seven or eight air fresheners in the vehicle. He

turned on the camera in his nearby patrol car.

Deputy Brown returned Vargas-Miranda’s documents and thanked him for

talking. He then asked if Vargas-Miranda had drugs in the car. Vargas-Miranda

replied “no.” Asked about heroin, Vargas-Miranda laughed and said he left it at

home. 
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Deputy Brown asked, “Do you care if I look and see?,” simultaneously pointing

two fingers first toward his eyes and then at the car. Vargas-Miranda said “go ahead,”

but after a pause added, “You don’t got no right. I wasn’t even driving.” Deputy

Brown responded, “Well I’m asking you. I’m just asking you. I’m asking you. But

like you said, it’s all consensual. I’m just asking you.” After asking about weapons,

he went on to say, “Well, I’ll tell you what, since you said I could look, I’m going to

go ahead and look real quick, and then get you guys on your way.” In response,

Vargas-Miranda nodded his head.

Deputy Brown asked Vargas-Miranda and Lopez-Mendoza to stand by a nearby

picnic table while he searched the car. After calling for back-up, Deputy Brown drove

his patrol car behind the Dodge Magnum and got his drug-sniffing dog out of the car.

Circling the Dodge Magnum, the dog did not alert. The deputy searched the rear

cargo area, using a cordless drill to remove mismatched drywall screws from a side

panel. Meanwhile, another officer arrived and placed Vargas-Miranda and LopezMendoza in his patrol car.

Finding nothing in the rear area, Deputy Brown moved to the glove

compartment. He saw a loose piece of fabric and noticed the rivets used to tack it to

the back of the glove compartment had been removed. He found a duct-taped package

wedged in the space between the glove compartment and the radio. The dog alerted

when sniffing there. The car was towed and the package removed – it contained three

pounds of heroin. The search lasted about 30 minutes before the drugs were found.

The car was not damaged.

Lopez-Mendoza and Vargas-Miranda were indicted for possessing heroin with

intent to distribute. Lopez-Mendoza entered a conditional guilty plea, reserving his

right to appeal the denial of his motion to suppress. The district court sentenced

Lopez-Mendoza to 151 months imprisonment.
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II.

Lopez-Mendoza appeals the suppression issue, asserting that (1) he and VargasMiranda were unlawfully seized, (2) Vargas-Miranda did not consent to the search of

the vehicle, and (3) if Vargas-Miranda consented, the deputy’s search exceeded the

scope of the consent.

Considering an appeal from the denial of a motion to suppress, this court

reviews the district court’s factual findings for clear error, and its legal determinations

de novo. See United States v. Stachowiak, 521 F.3d 852, 854 (8th Cir. 2008). This

court will affirm “the district court’s denial of a motion to suppress ‘unless it is

unsupported by substantial evidence, based on an erroneous interpretation of the law,

or, based on the entire record, it is clear that a mistake was made.’” Id., quoting

United States v. Gladney, 48 F.3d 309, 312 (8th Cir. 1995).

A.

Lopez-Mendoza contends that he and Vargas-Miranda were unlawfully seized

by Deputy Brown. “Law enforcement officers do not violate the Fourth Amendment’s

prohibition of 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.”

United States v. Drayton, 536 U.S. 194, 200 (2002). “If a reasonable person would

feel free to terminate the encounter, then he or she has not been seized.” Id. at 201.

A consensual encounter may become an unlawful seizure if “it loses its consensual

nature.” United States v. Carpenter, 462 F.3d 981, 985 (8th Cir. 2006), quoting

Florida v. Bostick, 501 U.S. 429, 434 (1991).

According to Lopez-Mendoza, the encounter in this case “quickly turned into

an illegal investigatory detention when Deputy Brown took Mr. Vargas-Miranda’s

driver’s license and insurance card.” But an officer does not seize a person by asking
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for license and registration if he does not “convey a message that compliance with

[his] request is required.” Carpenter, 462 F.3d at 985. See Bostick, 501 U.S. at 434

(“Only when the officer, by means of physical force or show of authority, has in some

way restrained the liberty of a citizen may we conclude that a ‘seizure’ has

occurred.”), quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). “Even when officers

have no basis for suspecting a particular individual, they may generally ask the

individual questions and request to examine his or her identification.” Carpenter, 462

F.3d at 985; see also United States v. Granillo, 288 F.3d 1071, 1075 (8th Cir. 2002)

(“no Fourth Amendment seizure had occurred as of the time the officers approached

defendant and asked for identification.”). Here, Deputy Brown did not convey a

message that compliance was required; as the district court found, a reasonable person

in Vargas-Miranda’s position would feel free to decline the deputy’s request and walk

away. Instead, Vargas-Miranda provided his driver’s license and an insurance card.

Deputy Brown reasonably interpreted the “act of providing the documents as consent

to retain them for brief examination or check . . . .” Carpenter, 462 F.3d at 985.

Lopez-Mendoza argues he and Vargas-Miranda were unlawfully detained when

Deputy Brown started asking about drugs, requested to search the vehicle, and

searched it. Before he asked to search, Deputy Brown had already returned the license

and insurance card to Vargas-Miranda. See United States v. White, 81 F.3d 775, 779

(8th Cir. 1996) (where the officer returned White’s license and registration and issued

a warning ticket following a traffic stop, “White had everything he needed to lawfully

proceed on his journey,” and the officer’s subsequent request to search “came during

the course of a consensual encounter and was permissible with or without reasonable

suspicion.”). After the deputy returned the documents, Vargas-Miranda and LopezMendoza had everything they needed to continue their trip, and their ongoing

conversation with the deputy was consensual. Deputy Brown’s request to search came

during this consensual encounter.

 

Even if the ongoing conversation were not consensual, Deputy Brown had

reasonable suspicion by this time. Reasonable suspicion requires “that the officer’s

suspicion be based upon particularized, objective facts which, taken together with
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rational inferences from those facts, reasonably warrant suspicion that a crime is being

committed.” United States v. Jones, 269 F.3d 919, 927 (8th Cir. 2001) (internal

quotations omitted). While Deputy Brown’s conversation with Lopez-Mendoza

dispelled any concern the car was stolen, Lopez-Mendoza’s different description of

travel plans, sudden statement that he does not speak English, and the many air

fresheners in the car, taken together, gave Deputy Brown reasonable suspicion. See

United States v. Foley, 206 F.3d 802, 806 (8th Cir. 2000) (holding presence of a

masking odor in a vehicle, passenger’s nervous behavior, passenger’s inability to

remember the name of his purported daughter-in-law, and vast divergence between

passenger’s and driver’s statements about travel accommodations justified further

detention of the vehicle); Jones, 269 F.3d at 928 (8th Cir. 2001) (holding an

inconsistent statement about travel plans “casts suspicion and doubt on the nature and

legitimacy” of defendants’ activity); United States v. Pulliam, 265 F.3d 736, 740 (8th

Cir. 2001) (holding inconsistencies in information about the trip and relationship

between the driver and passenger justified further detention of the driver while the

officer continued to investigate).

B.

According to Lopez-Mendoza, Vargas-Miranda did not voluntarily consent to

the search of the car. Whether consent is voluntary is a question of fact, reviewed for

clear error. See United States v. Perez, 200 F.3d 576, 579 (8th Cir. 2000). “The

government bears the burden of proving voluntary consent by a preponderance of the

evidence and must show that on the totality of the circumstances the officer

reasonably believed that the search was consensual.” United States v. Almendares,

397 F.3d 653, 660 (8th Cir. 2005).

In evaluating the reasonableness of the officer’s belief, we consider the

characteristics of the person consenting, including the party’s age,

intelligence and education, whether he was under the influence of drugs

or alcohol, whether he was informed of his right to withhold consent, and

whether he was aware of rights afforded criminal suspects. We also
2

While Deputy Brown did not provide Vargas-Miranda with “a written consent

form or explicitly inform him of his right to withhold his consent, such actions are not

necessary predicates to establish that a person voluntarily consented to a search.”

Carrate, 122 F.3d at 670.

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consider the environment in which the alleged consent took place,

specifically (1) the length of time he was detained; (2) whether the police

threatened, physically intimidated, or punished him; (3) whether the

police made promises or misrepresentations; (4) whether he was in

custody or under arrest when the consent was given; (5) whether the

consent occurred in a public or secluded place; and (6) whether he stood

by silently . . . as the search occurred.

United States v. Esquivias, 416 F.3d 696, 700 (8th Cir. 2005) (internal quotations and

citations omitted).

When Deputy Brown asked to look at the vehicle, Vargas-Miranda said “go

ahead.” Lopez-Mendoza emphasizes that, a moment later, Vargas-Miranda added:

“You ain’t got no right. I wasn’t even driving.” According to Lopez-Mendoza, the

follow-up statement shows that Vargas-Miranda was not voluntarily consenting, but

merely acquiescing to Deputy Brown’s authority.

As the district court correctly found, Vargas-Miranda – an adult, conversant in

English – conversed with the (visibly) armed Deputy Brown in the convenience store.

Vargas-Miranda gave consent to search the car in front of a gas station that was open

for business. He was not under arrest when Deputy Brown asked to look in the car;

he had his driver’s license, the vehicle insurance card, and was free to leave. VargasMiranda and Lopez-Mendoza watched the search without objecting or indicating the

search should be stopped. On these facts, Deputy Brown reasonably believed VargasMiranda consented. See United States v. Carrate, 122 F.3d 666, 670 (8th Cir. 1997).2

Lopez-Mendoza argues that “go ahead” is insufficient to evidence consent,

citing United States v. Morgan, 270 F.3d 625 (8th Cir. 2001). Morgan is inapposite.
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There, the officer asked to search the defendant’s van. The defendant asked what

would happen if she refused. The officer answered he would walk his drug dog

around the car. The defendant said, “go ahead.” Id. at 628. This court held that

“Morgan did not voluntarily consent to a search of the van when she said ‘go ahead’”

(but held that the officer had probable cause once the dog alerted). Id. at 631-32.

Here, Vargas-Miranda said “go ahead” in direct response to Deputy Brown’s initial

request to search. 

Lopez-Mendoza asserts that, if given, consent was withdrawn when VargasMiranda said: “You ain’t got no right. I wasn’t even driving.” “Conduct

withdrawing consent must be an act clearly inconsistent with the apparent consent to

search, an unambiguous statement challenging the officer’s authority to conduct the

search, or some combination of both.” United States v. Sanders, 424 F.3d 768, 774

(8th Cir. 2005). 

Critically, the exchange did not end with Vargas-Miranda asserting “you ain’t

got no right.” Deputy Brown quickly clarified: “Well I’m asking you. I’m just

asking you. I’m asking you. But like you said, it’s all consensual. I’m just asking

you.” The deputy went on to say, “Well, I’ll tell you what, since you said I could

look, I’m going to go ahead and look real quick, and then get you guys on your way.”

In response, Vargas-Miranda nodded, reasonably communicating his consent. 

C.

Lopez-Mendoza asserts that even if Vargas-Miranda consented, Deputy

Brown’s search exceeded the scope of the consent. “The scope of a consensual search

is measured by what the typical reasonable person would have understood by the

exchange between the officer and the suspect.” United States v. Brown, 345 F.3d

574, 580 (8th Cir. 2003) (internal quotations omitted). “The scope of a search is

generally defined by its expressed object, and therefore an officer may reasonably

interpret a suspect’s unqualified consent to search a vehicle for drugs to include
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consent to, inter alia: search containers within that car which might bear drugs; probe

underneath the vehicle; and open compartments that appear to be false, or puncture

such compartments in a minimally intrusive manner.” United States v. FerrerMontoya, 483 F.3d 565, 568 (8th Cir. 2007) (per curiam) ((internal quotations and

citations omitted). See also United States v. Alcantar, 271 F.3d 731, 738 (8th Cir.

2001) (“[W]hen the police receive consent to search for items that can be hidden in

different parts of a car, searching those areas is ‘objectively reasonable.’”). Here,

Deputy Brown’s questions clarified the search was for drugs. 

In Ferrer-Montoya, state troopers pulled over the defendant for speeding and

discovered he was an illegal alien. The state troopers had a drug dog, and the

defendant gave consent to search the car for drugs. Though the drug dog did not

initially alert, the officers searched the car. The searching officer noticed scarred

screws on a console panel. The officer removed the screws and lifted the panel, and

“noticed that someone had cut the frame underneath to create a hidden compartment.”

Id. at 567. The compartment contained methamphetamine. The officer did not

damage the vehicle, and the defendant did not object or withdraw his consent. This

court held the officer’s search did not exceed the scope of the consent.

Like the officer in Ferrer-Montoya, Deputy Brown received consent to search,

searched the car although the drug dog did not initially alert, saw that parts of the car

had been tampered with, and dismantled those parts of the car without damaging it.

Neither Vargas-Miranda nor Lopez-Mendoza objected.

Lopez-Mendoza asserts Ferrer-Montoya is distinguishable because the officer

in that case asked to “search” the vehicle and the defendant completed a consent form.

Here, Lopez-Mendoza emphasizes that Deputy Brown asked only to “look and see”

and did not use a consent form. Lopez-Mendoza maintains that consent to “look” is

not as broad as consent to “search.”
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In United States v. Espinosa, 782 F.2d 888 (10th Cir. 1986), a border patrol

officer asked to “look through” the defendant’s automobile, and the defendant agreed.

The officer looked in the trunk, glove box, under the dashboard, in the heater area, and

under the front seat. He removed the back seat, “spotted two screws missing from the

car’s left rear quarter panel” and noticed that other screws of the panel were loose. Id.

at 892. He pulled back the loose corner of the quarter panel and discovered cocaine.

The defendant argued that the officer’s search of his car exceeded the scope of his

consent, because the request to “look through” his automobile was so vague that he

did not understand the extent of the search. The Tenth Circuit disagreed, emphasizing

that the defendant “stood beside his car expressing no concern during [the] thorough

and systematic search.” Id. “Failure to object to the continuation of the search under

these circumstances may be considered an indication that the search was within the

scope of the consent.” Id.

In United States v. Chaidez, 906 F.2d 377, 383 (8th Cir. 1990), this court relied

on Espinosa in rejecting the defendant’s scope-of-consent argument. After a speeding

stop, a highway patrol officer asked “if it would be okay for him to look in the car.”

Id. at 379, 382. The defendant consented. This court held “that the consent

authorized [the officer] not only to look into the car’s passenger compartment, but also

to run his hand in the opening on the side of the raised cushion and underneath the

seat.” Id. at 383. This conclusion was “buttressed by Chaidez’s apparent failure to

object during the search,” because “Chaidez’s behavior during the search is relevant

when assessing the scope of the consent . . . .” Id. This court noted its decision was

consistent with other cases that “upheld even more intrusive searches on similar

facts,” highlighting Espinosa. Id.

Here, as in Espinosa and Chaidez, Deputy Brown asked to “look” in the Dodge

Magnum. After giving consent, Vargas-Miranda and Lopez-Mendoza stood nearby,

“expressing no concern” during the thorough search. See Espinosa, 782 F.2d at 892.

At no time did Vargas-Miranda or Lopez-Mendoza “attempt to retract or narrow”

consent. Id. “Failure to object to the continuation of the search under these
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circumstances may be considered an indication that the search was within the scope

of the consent.” Id.

Lopez-Mendoza also contends Deputy Brown’s search exceeded the scope of

consent because of its duration: Deputy Brown told Vargas-Miranda he was going to

look “real quick,” but it took about 30 minutes of thorough searching before he found

drugs. “[F]ailing to object to the continuation of a consent search makes the continued

search ‘objectively reasonable.’” Alcantar, 271 F.3d at 738 (holding an hour of

searching a car for drugs and weapons was within the scope of consent where neither

defendant “object[ed] to the length of the search” at any time).

Vargas-Miranda consented to Deputy Brown’s request to search his car for

drugs. “[W]hen the police receive consent to search for items that can be hidden in

different parts of a car, searching those areas is ‘objectively reasonable.’” Id. Here,

Deputy Brown did not exceed the scope of Vargas-Miranda’s consent by reasonably

searching the car for drugs. See Ferrer-Montoya, 483 F.3d at 568-69; Alcantar, 271

F.3d 738.

III.

The judgment of the district court is affirmed.

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