* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### April 12, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 04-6383

v. (D.C. No. CR-04-50-2-M) JOE ZUNIGA, (W. D. Okla.)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before KELLY , McKAY, and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f). The case is therefore subm itted without oral argument. Appellant pleaded guilty to possession of cocaine w ith intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and possessi on of a firearm during and in relation to a drug trafficking offense, in violatio n of 18 U.S.C. § 924(c).-2-

Appellant contends that the district court erred wh en it denied Appellant’s motion to suppress the evidence found in his vehicle. We review denials of a motion to suppress using a m ixed standard. The district court’s factual findings are accepted unle ss they are clearly erroneous. We review the totality of the circumstances and vie w the evidence in a light most favorable to the government. United States v. Cantu , 405 F.3d 1173, 1176 (10th Cir. 2005). The ultimate legal issue of whether un der the given facts the police officer’s conduct violated the Fourth Amendment is subject to de novo review. Id

. On November 25, 2003, Appellant’s vehicle was pulle d over by a police officer who had observed that the vehicle’s taillig ht was defective and also that Appellant had drifted out of his driving lane. Dur ing the course of this traffic stop, the police officer noticed that Appellant see med very nervous and gave conflicting information about his travels. See Order, 2-3 (W.D. Okla. June 18, 2004). After returning Appellant’s license and reg istration and issuing Appellant a warning, the police officer asked for Appellant’s consent to search his vehicle. Appellant gave his consent, and the police officer’ s drug dog “Bo” alerted the officer to the air bag compartment, where compresse d cocaine powder and a loaded firearm were found. Id. at 4-5. The district court found that the police officer “w as justified in stopping-3-

the van based upon the defective left rear tail lig ht and the van’s swerving onto the shoulder.” Id . at 6. We have held that an officer may lengthen a traffic stop when the initial stop becomes a consensual encounte r. United States v. GonzalezLerma , 14 F.3d 1479, 1483 (10th Cir. 1994). The distric t court found that the police officer’s questioning of Appellant was conse nsual: “Having heard the evidence presented, and based upon the totality of the circumstances, the [c]ourt finds that [Appellant] consented to further questio ning by [the police officer] and that the initial traffic stop, thus, became a conse nsual encounter.” Order, supra , at 8. In addition to determining that the encounte r was consensual, the district court found that Appellant’s consent to search his vehicle was given freely: Specifically, the [c]ourt finds that there was no d uress or coercion, express or implied, that [Appellant’s] consent was freely and intelligently given, and that [Appellant’s] consentwas unequivocal and specific; as reflected on the videotape, when a sked if [the police officer] could search the van, [Appellant] clearly states, “Yes, you can.” Id. at 9. Finally, the court further added “that the use of the drug dog did not exceed the scope of the consent given by [Appellant ] to search the van for drugs and guns.” Id

. We have carefully reviewed the briefs of Appellant and Appellee, the district court’s disposition, and the record on app eal. We are in accord with the district court’s denial of issuance of the motion t o suppress evidence, and, for substantially the same reasons set forth by the dis trict court in its June 18, 2004,-4-

order, we AFFIRM the district court’s denial of Appellant’s motion. Entered for the Court
Monroe G. McKay Circuit Judge