* This order and judgment is not binding precedent, e xcept under the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

### FEB 24 1999 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. GLORIA E. NUNO, Defendant-Appellant. No. 97-4161 (D.C. No. 97-CR-86) (Utah)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, PORFILIO and TACHA, Circuit Judges.

Gloria Nuno entered a conditional guilty plea to on e count of possession with intent to distribute cocaine in violation of 2 1 U.S.C. 841(a)(1) and was sentenced to 135 months in prison. She appeals, ar guing that the district court erred in denying her motion to suppress evidence ob tained from a vehicle search, and that the court abused its discretion in dismiss ing the original indictment without prejudice under the Speedy Trial Act. We a ffirm.-2-

Ms. Nuno was driving a mini-van through Utah when s he was stopped for traffic violations by Sheriff’s Deputy Phil Barney. The encounter between Ms Nuno and Deputy Barney was captured on videotape an d a sound recording system activated by the overhead lights on the patr ol car. Deputy Barney approached the van and asked Ms. Nuno for her drive r’s license and registration. She handed him her license and the title to the veh icle. After Deputy Barney returned to his patrol car and checked with police dispatch, he went back to the van and allegedly handed Ms. Nuno her license and t itle, as well as a warning citation for excessively tinted windows. Deputy Ba rney then questioned Ms. Nuno about her purchase of the van, and asked her i f she were carrying narcotics, to which she answered no. Deputy Barney asked for permission to look inside the van and Ms. Nuno allegedly agreed. Thereafter Depu ty Barney entered the van and observed shoe prints on the van floor, as well as unusual seat molding, unusual carpet seaming and an unusual raised floor. Believing that these observations gave him probable cause to search further, Deputy Barney opened the trunk, pulled up carpeting, and ultimately disc overed packages of cocaine. He arrested Ms. Nuno and brought her personal belongin gs from the van to the patrol car for safekeeping. A subsequent thorough search of the van revealed fiftyseven kilos of cocaine.-3-

Ms. Nuno was indicted and filed a motion to suppres s the cocaine revealed by the vehicle search. The district court denied t he motion after several evidentiary hearings. Ms. Nuno then filed a motion to dismiss under the Speedy Trial Act, which the judge granted without prejudic e. The government thereafter brought a new indictment and Ms. Nuno renewed her m otion to suppress. After the district court denied this motion, as well as amotion to dismiss the indictment, Ms. Nuno entered a conditional guilty p lea, reserving the right to challenge the denial of her motion to suppress and the denial without prejudice of her Speedy Trial Act motion. We turn first to the denial of Ms. Nuno’s motion to suppress. In reviewing the denial of a motion to suppres s, we accept the district court’s findings of fact unless they are c learly erroneous. In the context of a hearing on a motion to suppress, w e are mindful that “the credibility of the witnesses and the weight gi ven to the evidence, as well as inferences and conclusions drawn therefr om, are matters for the trial judge.” Of course, the ultimate ques tion of the reasonableness of a search or seizure is a questionof law that we review de novo. United States v. Angulo-Fernandez , 53 F.3d 1177, 1178-79 (10th Cir. 1995) (citations omitted). In denying the motion here, the district court rule d that the initial traffic stop was supported by reasonable suspicion, and Ms. Nuno does not argue to the contrary on appeal. The court further found that D eputy Barney returned Ms. Nuno’s license and vehicle title to her before ques tioning her on matters unrelated-4-

to the initial stop. Ms. Nuno argues on appeal that this finding is clearly erroneous and then asserts that the search was unlawful under arguments and authorities directed to the scenario in which the o fficer retains the driver’s documents while asking further questions or request ing consent to search. The testimonial evidence was in direct conflict as to whether Deputy Barney gave Ms. Nuno’s documents to her when he returned to the van after checking with dispatch. Ms. Nuno testified that he did not, Deputy Barney testified that he did, and both sides argued to the court that the videotape supported their version of events. The issue thus required the district court to make a credibility determination that we are not atliberty on this record to reverse. Accordingly, we accept the district court ’s determination that Deputy Barney returned the documents in analyzing the lawf ulness of the search. We thus reject Ms. Nuno’s reliance on cases in which the documents were not returned and the encounter therefore did not become consensual. See, e.g., United States v. Walker , 933 F.2d 812, 817 (10th Cir. 1991). The district court determined from the totality of the circumstances that after the documents were returned, the encounter be came consensual. This question requires assessment of factors pertinent t o whether the officer’s conduct rises to a sufficient show of authority to constitute a seizure, and “calls for the ‘refined judgment’ of the district court.” United States v. Werking , 915 F.2d-5-

1404, 1409 (10th Cir. 1990). (citation omitted). W e cannot say on this record that the district court’s determination was clearly erro neous. Here, as in Werking , the only show of authority was the fact that Deputy Bar ney was a uniformed officer, a circumstance that standing alone is insufficient to establish the requisite constraint. Id. at 1409. Finally, we find no ground for disturbing the court ’s determination that Ms. Nuno consented to the search. The testimony of Ms. Nuno and Deputy Barney was in direct conflict on this matter as well, and the parties agree that the sound recording system did not pick up Ms. Nuno’s respons e when Deputy Barney sought her consent. This matter of credibility was for the district court to resolve, and his determination is supported by Ms. Nuno’s un disputed subsequent cooperation in the search. Accordingly, we affirm the district court’s denial of Ms. Nuno’s motion to suppress. Next we address Ms. Nuno’s argument that the court abused its discretion in dismissing her original indictment without preju dice. In assessing whether dismissal under the Speedy Trial Act should be withor without prejudice, the court is to consider the seriousness of the offense , the facts and circumstances that led to dismissal and the impact that reprosecu tion would have on the administration both of the Act and of justice. See United States v. Mora , 135 F.3d 1351, 1358 (10th Cir. 1998) (quoting 18 U.S.C. § 3162(a)(2). Contrary to-6-

Ms. Nuno’s assertion, felony drug charges are serio us offenses. United States v. Pasquale , 25 F.3d 948, 953 (10th Cir. 1994). Moreover, the court here determined that Ms. Nuno was intentionally culpable in the delay, and that reprosecution was possible because witnesses and ev idence were still available. Although Ms. Nuno asserts on appeal that the delay has prejudice her defense, she does not explain the nature of that prejudice, nor does she take issue with the court’s determination that she was responsible for the delay. We find no abuse of discretion in the court’s dismissal without prejudi ce. AFFIRMED. ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge