1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0052P (6th Cir.)

File Name: 04a0052p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ELVIS A. GARRIDO-SANTANA,

Defendant-Appellant.

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No. 02-6076

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 97-20204—Samuel H. Mays, Jr., District Judge.

Argued: December 5, 2003

Decided and Filed: February 20, 2004 

Before: KENNEDY, MARTIN, and MOORE, Circuit

Judges.

_________________

COUNSEL

ARGUED: Needum L. Germany, OFFICE OF THE

FEDERAL PUBLIC DEFENDER FOR THE WESTERN

DISTRICT OF TENNESSEE, Memphis, Tennessee, for

Appellant. Thomas A. Colthurst, ASSISTANT UNITED

STATES ATTORNEY, Memphis, Tennessee, for Appellee.

ON BRIEF: Doris A. Randle-Holt, Stephen B. Shankman,

2 United States v. Garrido-Santana No. 02-6076

OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR

THE WESTERN DISTRICT OF TENNESSEE, Memphis,

Tennessee, for Appellant. Thomas A. Colthurst,

ASSISTANT UNITED STATES ATTORNEY, Memphis,

Tennessee, for Appellee.

_________________

OPINION

_________________

KENNEDY, Circuit Judge. Defendant Elvis GarridoSantana entered a conditional plea of guilty to one count of

possessing cocaine with the intent to distribute in violation of

21 U.S.C. § 841(a) (1). Defendant appeals the district court’s

denial of his motion to suppress evidence. Defendant also

appeals the district court’s application of a sentence

enhancement for obstruction of justice under United States

Sentencing Guidelines (“U.S.S.G.”) § 3C1.1 and its denial of

a sentence reduction for acceptance of responsibility under

U.S.S.G. § 3E1.1. For the reasons explained below, we

AFFIRM the denial of defendant’s suppression motion and

his sentence. 

I. Background

Defendant Garrido-Santana was indicted on one count of

possessing cocaine with the intent to distribute in violation of

21 U.S.C. § 841(a) (1). Defendant failed to appear for his

arraignment on that charge after being released on bond.

Based upon this failure to appear, the government secured a

superseding indictment that added a second count charging

defendant with violating 18 U.S.C. § 3146(a)(1). Defendant

was ultimately arraigned upon being extradited from the

Dominican Republic, the country to which he fled. Defendant

filed a motion to suppress evidence flowing from police

officers’ traffic stop of the rental vehicle that defendant was

driving. After conducting an evidentiary hearing, the

magistrate judge, to whom the district court had referred
No. 02-6076 United States v. Garrido-Santana 3

defendant’s suppression motion, issued a report and

recommendation advising the district court to deny that

motion. Adopting the magistrate judge’s proposed findings

and recommendation, the district court denied defendant’s

suppression motion. Defendant entered a conditional plea of

guilty to count one of possessing cocaine with the intent to

distribute in violation of 21 U.S.C. § 841(a) (1), expressly

reserving his right to appeal the denial of his suppression

motion. The district court, pursuant to the government’s

motion, dismissed count two charging defendant with failing

to appear at his arraignment. However, in sentencing

defendant on count one, the district court relied on this failure

to appear in enhancing defendant’s sentence by two levels

under U.S.S.G. § 3C1.1 for obstruction of justice and in

refusing to reduce defendant’s sentence under U.S.S.G.

§ 3E1.1 for acceptance of responsibility. After applying all

of the relevant factors, the district court ultimately arrived at

a Guidelines’ range in which it sentenced defendant to ninetyseven months of imprisonment followed by three years of

supervised release. 

II. Defendant’s Suppression Motion

A. Relevant Facts

In denying the suppression motion, the district court found

the following facts. On the morning of September 18, 1997,

Patrolman Terry M. Lomax (“Lomax”) of the Shelby County

Sheriff’s Department was parked in a marked squad car in the

grassy median strip of Interstate 40 in Shelby County,

Tennessee. When a 1997 Chrysler LHS sedan–the vehicle

that defendant was driving–passed his position, Lomax

pointed his radar speed-clocking unit at the sedan. Yet, the

radar picked up only a large tractor-trailer that was traveling

in the east-bound lane adjacent to the sedan; it indicated that

the tractor-trailer was proceeding at the posted speed limit of

65 mph. After the sedan passed the tractor-trailer, Lomax

pulled his vehicle out of the median and pulled alongside the

sedan. As he testified, Lomax did not know whether the

4 United States v. Garrido-Santana No. 02-6076

tractor-trailer had maintained the posted speed or had slowed

down. Lomax’s accurately-calibrated speedometer and radar

“clocked” the sedan at 71 mph. Activating his squad car

lights, Lomax pulled the sedan over for speeding.

Upon approaching the driver’s side door of the sedan,

Lomax asked defendant, who was traveling alone, for his

driver’s license. Defendant handed Lomax a Puerto Rico

driver’s license in the name of “Elvis A. Garrido.”

Examining the license, Lomax found it to be valid and

current. Lomax informed defendant that he had stopped him

for speeding. Lomax then inquired about defendant’s place

of departure and destination. Defendant replied that he had

come from Houston, Texas, and was heading to New York to

visit his mother. Asked if he lived in Puerto Rico, defendant

answered in the affirmative. Lomax testified that he was

suspicious of the fact that defendant, a resident of Puerto

Rico, was driving a car with Texas plates. After Lomax asked

about the vehicle’s ownership, defendant informed Lomax

that it was a rental car. Defendant produced the rental

agreement for which Lomax asked. The rental agreement

evidenced the following: 1) another individual named “Junior

Santana,” a resident of New York, had rented the vehicle at

the Hobby Airport, in Houston, Texas, on September 16,

1997; 2) the vehicle was to be returned to that airport by 7:00

p.m. the following day–September 19th; 3) a notation of “add

driver $10.50"; and 4) an illegible signature near Junior

Santana’s signature. Lomax noticed that the rental agreement

did not list defendant, in typewriting, as an additional driver.

Upon being asked, defendant informed Lomax that “Junior

Santana” was his cousin. Defendant told Lomax that

defendant had flown from Puerto Rico to Miami, Florida, and

then to Houston, Texas, where he and his cousin had rented

the vehicle for defendant to drive to New York. Lomax was

aware that the vehicle that defendant was driving was known

to have easily accessible places in which to hide narcotics.

Believing that the rental agreement did not list defendant as

an additional driver, Lomax ran a license plate check to
No. 02-6076 United States v. Garrido-Santana 5

ensure that the vehicle was not stolen. At some point, Lomax

began filling out a warning citation–a courtesy ticket that

carries no penalties–for defendant’s speeding. Lomax

advised defendant that he was giving defendant a warning

citation but that he was still awaiting the return of a computer

check. Lomax observed that, even after he had informed

defendant that he would only receive a warning ticket,

defendant continued to exhibit signs of nervousness, such as

avoiding eye contact, laughing nervously, and fidgeting;

based upon his experience, Lomax found this nervousness

unusual. Returning the rental agreement and license to

defendant, Lomax explained the courtesy citation, which he

was still filling out, to defendant. Lomax asked if defendant

had any illegal contraband, such as drugs or stolen goods, in

his vehicle. Defendant replied in the negative. Lomax asked

if defendant would consent to a search of the vehicle.

Defendant answered in the affirmative. Lomax gave

defendant the courtesy citation to sign. After defendant

signed the citation, Lomax gave defendant a copy of the

citation as well as a consent-to-search form. Lomax advised

defendant to read the consent form and to ask any questions

that he might have before signing it. Defendant signed the

consent form. Approximately ten minutes had elapsed

between the initial traffic stop and defendant’s execution of

the consent form.

Around the time that defendant signed the consent form,

Patrolman Dale Lane (“Lane”)–also of the Shelby County

Sheriff’s Department–arrived. Although they used a drug

detection dog to survey the vehicle, the dog did not alert to

the presence of narcotics. Both Lomax and Lane quickly

looked around the sedan. At some point, Lane and Lomax

saw unopened packages of a pair of pliers and an adjustable

wrench in a bag on the floor of the front passenger seat.

While standing beside the rear of the vehicle, Lane informed

Lomax that he smelled a strong odor of gasoline. Lomax

smelled nothing as he suffered from sinus congestion at the

time. They asked defendant, who was standing near the rear

of the vehicle, to sit in the back of Lane’s squad car. As

6 United States v. Garrido-Santana No. 02-6076

1

Although it is unclear whether Lomax examined the vehicle’s access

plate and suspected its removal before he observed the tools in the

passenger compartment and before he placed defendant in the squad car,

it is clear that Lomax and Lane removed the access plate only after these

events.

Lomax was placing defendant in the squad car, defendant

volunteered that he had been stopped twice before on his trip

and had been searched. When Lomax questioned defendant

about these stops, defendant stated that he had no

documentation for them. Upon being asked, defendant

affirmed that he had been in possession of the vehicle at all

times during his trip. Because defendant would have been

unable to exit the squad car, Lomax instructed him on how to

use its public address system in case he needed to

communicate with the officers. 

Recalling that it affords easy access to the gas tank, in

which drugs have been smuggled, they opened the trunk of

the vehicle.1 Upon pulling the carpet back, Lomax saw a

sliver plate, which four bolts fastened and which provided

access to the gas tank sending unit, a device that signals the

dashboard about the amount of gasoline in the gas tank. Lane

and Lomax noticed that the bolts fastening the silver plate had

scratches around them as if they had been removed and then

replaced. Because the vehicle was new and had very low

mileage, Lomax found this apparent removal of the plate

unusual. Lomax believed that the tools in the passenger

compartment were to be used in removing the silver plate so

as to access the gas tank. Lomax and Lane removed the

trunk’s silver plate to access the gas tank. By inserting a fiber

optic scope into the top of the gas tank, Lomax observed

white cellophane-covered bundles in the gas tank. Believing

that these bundles contained illegal narcotics, Lomax and

Lane arrested defendant. At no time during the search did

defendant object to its duration or scope. Sometime after the

completion of the search, Lomax received the computer check
No. 02-6076 United States v. Garrido-Santana 7

and learned that the vehicle was not stolen. Seven bundles of

cocaine were subsequently seized from the vehicle’s gas tank.

B. Analysis

We review the district court’s legal conclusions in a

suppression hearing de novo and its factual findings in a

suppression hearing for clear error. United States v. Smith,

263 F.3d 571, 581-82 (6th Cir. 2001). The district court’s

determination as to the existence of probable cause justifying

a traffic stop is a question of law that we review de novo.

United States v. Rodriguez-Suazo, 346 F.3d 637, 643 (6th Cir.

2003). The district court’s determination as to whether the

facts establish an unconstitutional seizure under the Fourth

Amendment is a question of law that we review de novo.

United States v. Avery, 137 F.3d 343, 348 (6th Cir. 1997).

The district court’s determination of whether a search

exceeded the scope of consent is a question of fact that we

review for clear error. United States v. Fowler, 42 F.3d 1389,

1994 WL 685417, at *6 (6th Cir. 1994). When considering

the denial of a suppression motion, we must view the

evidence in the light most favorable to the government.

United States v. Wellman, Jr., 185 F.3d 651, 654-55 (6th Cir.

1999). 

1. Validity of the Traffic Stop

A traffic stop is reasonable under the Fourth Amendment

where the stop was both proper at its inception and

“reasonably related in scope to the circumstances . . . [that]

justified the . . . [stop] in the first place.” United States v.

Freeman, 209 F.3d 464, 466 (6th Cir. 2000) (quoting Terry v.

Ohio, 392 U.S. 1, 19-20 (1968)) (internal quotation marks

omitted). A police officer may lawfully stop a motorist

whom he has probable cause to believe has committed a

traffic violation. Id. However, a police officer cannot

continue to detain a motorist after the officer has completed

the initial purpose of the traffic stop “unless something that

occurred during the stop caused the officer to have a

8 United States v. Garrido-Santana No. 02-6076

2

As evidence that the stop was pre-textual, defendant underscores

that Lomax was suspicious of defendant because he had a Puerto Rico

driver’s license and was driving a vehicle with Texas tags. However, we

note that such subjective suspicion is factually–as well as

legally–irrelevant to the validity of the initial traffic stop because Lomax

only learned about defendant’s residency after he had stopped defendant’s

vehicle.

reasonable and articulable suspicion that criminal activity was

afoot.” United States v. Hill, 195 F.3d 258, 264 (6th Cir.

1999).

Defendant appeals the district court’s denial of his

suppression motion on the ground that Lomax’s initial stop of

defendant’s vehicle violated the Fourth Amendment. In

particular, defendant argues that Lomax actually stopped

defendant’s vehicle based upon his suspicion that defendant

was involved in illegal drug trafficking, not based upon an

alleged speeding violation. However, in Whren v. United

States, 517 U.S. 806, 813, 819 (1996), the Supreme Court

held that, as long as a police officer has probable cause to

believe that a motorist committed a traffic violation, the

resulting traffic stop is generally reasonable under the Fourth

Amendment regardless of the officer’s subjective intent or

state of mind in conducting the traffic stop. 2 Accord United

States v. Bailey, 302 F.3d 652, 657 (6th Cir. 2002) (noting

that “[i]t is well established . . . that an officer’s actual

motivation for making a traffic stop is irrelevant to the

constitutionality of that stop”); Wellman, 185 F.3d at 655

(finding that, where probable cause for the traffic stop exists,

whether the police officer was motivated in conducting the

traffic stop based upon his “suspicion that the defendant fits

into a ‘drug courier profile’” or his membership in a drug

interdiction unit is irrelevant to the stop’s constitutionality

under the Fourth Amendment).

Alternatively, defendant contends that Lomax lacked

probable cause to justify the traffic stop of defendant’s

vehicle because defendant had not, in fact, been speeding
No. 02-6076 United States v. Garrido-Santana 9

prior to that stop. At the suppression hearing, Lomax testified

that, while pacing defendant’s vehicle with his squad car, he

used both his calibrated speedometer and his radar to

determine that defendant’s vehicle was traveling at 71 mph in

a 65 mph zone. Defendant asserts that this testimony is

unworthy of belief. Yet, the only evidence that defendant

offers to refute this testimony is his own testimony at the

suppression hearing. In particular, defendant testified that he

did not “think” that he was speeding because he knew that the

posted speed limit was 65 mph, he had cruise control, he had

never broken the law, and he had never been stopped for

speeding. However, the district court reasonably found that

defendant was not a credible witness. For example, defendant

later testified that police had stopped him and had given him

a courtesy citation the night before Lomax had stopped him.

Defendant also demonstrated his propensity to lie under oath

when, in 1997, he failed to appear at his arraignment despite

having promised the district court, as a condition of his bond,

that he would appear at all required proceedings. In an

attempt to negateLomax’stestimony, defendant contends that

it would have been unreasonable for defendant to have sped

past Lomax’s squad car since it was clearly visible to passing

motorists and was positioned so as to pursue any violators

easily. Similarly, defendant argues that it would have been

even more unreasonable for him to have continued to speed

after Lomax began pacing defendant’s vehicle. However, as

the district court aptly observed, “[c]ommon experience

teaches that speeding motorists are usually apprehended when

police are positioned to observe them and often when the

motorist can observe the officer as well.” The district court

correctly recognized that, in any event, no evidence in the

record demonstrates that defendant is a reasonable motorist.

Viewing the evidence in the light most favorable to the

government, the district court did not clearly err in choosing

to credit Lomax’s testimony that defendant was speeding over

defendant’s self-interested and inconsistent testimony to the

contrary. See Peveler v. United States, 269 F.3d 693, 702

(6th Cir. 2001) (“We are generally reluctant to set aside

credibility determinations made by the trier of fact, who has

10 United States v. Garrido-Santana No. 02-6076

3

Defendant argues that Lomax testified that defendant signed the

warning ticket before Lomax returned the rental agreement and driver’s

license. However, Lomax actually testified–and the district court

found–that Lomax returned the rental agreement and driver’s license to

defendant while Lomax was filling out the courtesy citation and before

defendant signed it. In any event, after returning defendant’s documents

and issuing a copy of the signed courtesy ticket, Lomax did continue to

detain defendant pending the completion of the computer check.

had the opportunity to view the witness[es] on the stand and

[to] assess . . . [their] demeanor.”). Because defendant was

speeding in violation of Tennessee law, Lomax had probable

cause to stop defendant’s vehicle.

Defendant also appeals the district court’s denial of his

suppression motion on the ground that the traffic stop was not

reasonably related in scope and duration to the initial purpose

of the stop–the speeding violation. Defendant contends that

this initial purpose ended when defendant signed the courtesy

ticket and Lomax returned the rental agreement and driver’s

license to defendant.3 According to defendant, Lomax then

prolonged the detention when he, in effect, informed

defendant that he could not leave because Lomax was

awaiting the return of a computer check. The thrust of

defendant’s argument is that it was not “reasonably related”

to the speeding violation for Lomax to have conducted a

computer check to ensure that defendant was lawfully

operating the vehicle because such a check was unnecessary

and, thus, unreasonable under the totality of the

circumstances. Defendant contends that a reasonable police

officer would infer from defendant’s illegible signature near

the renter’s signature and the notation of “add driver $10.50"

on the rental agreement that defendant was lawfully operating

the vehicle. At the suppression hearing, Lomax testified that,

after looking at the rental agreement “closely,” he ran the

computer check on the vehicle’s license plate because he did

not see defendant’s name “listed”–or printed–on the

agreement. Lomax elaborated that about ninety-nine percent

of the rental agreements that he had seen listed the name of
No. 02-6076 United States v. Garrido-Santana 11

4

Although defendant contends that Lomax had four documents in his

possession containing defendant’s signature–his driver’s license, the

rental agreement, the courtesy citation, and the consent-to-search form–,

Lomax only had defendant’s driver’s license and the rental agreement in

his possession at the time that he requested the license plate check. 

the additional driver in the same type of print in which the

renter’s name was listed. Lomax testified that he first

recognized the signature on the rental agreement as

defendant’s after he had returned to the police station and was

comparing that document with defendant’s driver’s license

and the courtesy ticket that defendant had signed. As to

whether it was reasonable to believe that the vehicle was

stolen, Lomax underscored that, along with defendant’s name

not being printed on the rental agreement, Lomax knew of

instances in which authorized individuals had not done

something that the rental agreement required them to do. As

Lomax testified, “[t]here are always reasons to do checks.”

Defendant contends that Lomax’s testimony is incongruous

with the facts. To the extent that defendant asks us to set

aside the district court’s determination that Lomax was a

credible witness, we find no reason to accept such an

invitation. See Peveler, 269 F.3d at 702. Moreover,

defendant’s focus upon Lomax’s subjective intent in or

justification for running the computer check on the license

plate is misplaced. “[T]he touchstone of the Fourth

Amendment is reasonableness . . . measured in objective

terms by examining the totality of the circumstances.” Ohio

v. Robinette, 519 U.S. 33, 39 (1996) (internal quotation marks

omitted; emphasis added). Here, while the rental agreement

displayed defendant’s signature and a charge for an additional

driver, defendant’s signature was illegible and located in an

odd location on that agreement. A reasonable officer likely

would not have recognized that illegible signature as

belonging to defendant unless and until he placed defendant’s

driver’s license directly beside the rental agreement and

compared their respective signatures.

4

 A reasonable officer

12 United States v. Garrido-Santana No. 02-6076

examining defendant’s driver’s license probably would have

focused upon the picture and the expiration date, as Lomax

did. We note that, even if the rental agreement reasonably

appeared to authorize defendant as an additional driver, a

reasonable police officer would still have good reason to run

a license plate check. For example, defendant may have

forged that authorization, or the rental company may have

rescinded such authorization, even if initially valid, due to a

violation of the rental agreement. As the Supreme Court has

recognized, states have a critical interest in ensuring that

motorists observe licensing and registration requirements as

well as a legitimate interest in controlling automobile thefts.

Delaware v. Prouse, 440 U.S. 648, 658, 659 n.18 (1979). We

note that defendant’s detention until the completion of the

computer check–sometime after the search of the vehicle–was

not intrusive. The pendency of the computer check was

largely co-extensive with the vehicle search, to which

defendant consented before Lomax had finished issuing the

warning citation and to whose duration defendant never

objected. During the unknown amount of time between the

completion of the search and that of the computer check,

defendant was under lawful custodial arrest based upon the

fruits of the search. In sum, under the totality of the

circumstances, it was objectively reasonable and within the

bounds of the traffic stop for Lomax to have requested a

computer check to ensure that defendant was lawfully

operating the vehicle. See id. at 663 (“[E]xcept in those

situations in which there is at least articulable and reasonable

suspicion that a motorist is unlicensed or that an automobile

is not registered, or that either the vehicle or an occupant is

otherwise subject to seizure for violation of law, stopping an

automobile and detaining the driver in order to check his

driver’s license and the registration of the automobile are

unreasonable under the Fourth Amendment.”) (emphasis

added); Wellman, 185 F.3d at 656 (holding that the police

officer “lawfully asked defendant to sit in the squad car while

he wrote a courtesy citation and performed record checks of

his driver’s license and registration” as it was within the

scope of the traffic stop for speeding); United States v.
No. 02-6076 United States v. Garrido-Santana 13

5

In particular, defendant contends that Lomax only conducted the

check because defendant, a resident of Puerto Rico, was driving a vehicle

with Texas license tags; according to defendant, such a ground does not

afford Lomax reasonable suspicion that defendant was unlawfully

operating the vehicle because it is logistically unlikely for a car with

Puerto Rico tags to be in the United States.

6

Compare United States v. Shabazz, 993 F.2d 431, 436-37 (5th Cir.

1993) (holding that questions, which, in themselves, are neither searches

nor seizures, are relevant to whether a detention has exceeded its lawful

duration, and that the police officer’s questioning of defendants regarding

their recent whereabouts did not exceed the original scope of the traffic

stop–for speeding–because it occurred while a computer check was

pending and, thus, did not extend the duration of the initial stop), and

United States v. Childs, 277 F.3d 947, 949 (7th Cir. 2002) (“Because

questions are neither searches nor seizures, . . . [q]uestions asked during

detention may affect the reasonableness of that detention . . . to the extent

Bradshaw, 102 F.3d 204 (6th Cir. 1996) (holding that the

police officer “could lawfully detain . . . [defendant in the

back of the squad car] until he had finished performing radio

checks and issuing the citation” because it was “well within

the bounds of the initial stop.”); Hill, 195 F.3d at 269

(holding that a driver’s license check was within the original

scope of a traffic stop based upon a traffic violation). Thus,

we reject defendant’s contention that Lomax needed a

reasonable suspicion that defendant was unlawfully operating

the vehicle to justify this detention.5

Alternatively, defendant claims that Officer Lomax

exceeded the bounds of the initial traffic stop for speeding

when he asked whether defendant possessed any illegal

contraband. The circuit courts generally agree that the Fourth

Amendment requires that, absent additional justification, any

questioning during a valid traffic stop must not prolong the

detention necessary to complete the initial purpose of that

stop; however, there is some disagreement as to whether the

Fourth Amendment also requires that, absent additional

justification, such questioning must be reasonably related in

subject matter to the purpose of the initial traffic stop.6 This

14 United States v. Garrido-Santana No. 02-6076

that they prolong custody, but questions that do not increase the length of

the detention (or that extend it by only a brief time) do not make the . . .

[detention] itself unreasonable or require suppression of evidence found

as a result of the answers.”) with United States v. Murillo, 255 F.3d 1169,

1174 (9th Cir. 2001) (“During a traffic stop, a police officer is allowed to

ask questions that are reasonably related in scope to the justification for

his initiation of contact . . . . In order to broaden the scope of questioning,

he must articulate suspicious factors that are particularized and

objective.”), and United States v. Holt, 264 F.3d 1215, 1228-31 (10th Cir.

2001) (holding that “the Fourth Amendment reasonableness of a traffic

stop based on probable cause must be judged by examining both the

length of the detention and the manner in which it is carried out,” and,

thus, rejecting the argument that the nature of any questioning during a

traffic stop is irrelevant so long as it does not unreasonably prolong that

stop’s duration).

7

In United States v. Palomino, we held that a police officer did not

violate the Fourth Amendment when, following a traffic stop based upon

probable cause of a traffic violation, the officer asked the defendant about

whether he possessed illegal contraband because the officer “did not

detain . . . [the defendant] longer than was necessary for the original

purpose of the stop, and because there was reasonable suspicion to

conduct the brief questioning.” 100 F.3d 446, 449-50 (6th Cir. 1996)

(emphasis added). One could argue that Palomino implicitly holds that

questioning during a traffic stop must be reasonably related to the initial

purpose of that stop because, absent this requirement, it need not have

found that reasonable suspicion for such questioning existed. However,

this conclusion is invalid because one of the premises upon which it relies

is false. It does not necessarily follow from the premise that additional

justification–other than that which justified the initial traffic stop–defeats

the defendant’s Fourth Amendment claim that such additional justification

is required to defeat the defendant’s Fourth Amendment claim. See

Childs, 277 F.3d at 951.

circuit has yet to decide this issue expressly.

7

 Because

additional justification supported the questioning here, we

need not decide such an important legal issue. Rather, we

leave that determination for a case whose record affords a

more appropriate basis upon which to make it. First, in

asking defendant whether he possessed any illegal

contraband, Lomax did not exceed the time necessary to

complete the original purpose of the traffic stop. At that time,

Lomax had not yet completed the initial purpose of the traffic
No. 02-6076 United States v. Garrido-Santana 15

8

Defendant has abandoned his argument on appeal that he did not

consent to the search of the vehicle. See Sommer v. Davis, 317 F.3d 686,

691 (6th Cir. 2003) (holding that plaintiffs abandoned an issue on appeal

by not presenting any argument on it in their briefs). Rather, defendant

argues on appeal that any evidence flowing from the search must be

stop because he was still filling out the courtesy citation and,

as discussed above, was still waiting for the return of the

computer check on the vehicle’s license plate. Second,

assuming that this questioning was not reasonably related to

the speeding violation and, thus, that it required additional

justification, Lomax had a reasonable suspicion that

defendant was engaged in criminal activity so as to validate

his inquiry into whether defendant possessed any illegal

contraband. At the time of this questioning, Lomax had the

following information available to him: 1) defendant’s route

was circuitous and impractical in that defendant had flown

from Puerto Rico to Miami and then to Houston only to rent

a vehicle to drive to New York; 2) Junior Santana, a resident

of New York, had rented the vehicle in Houston so that

defendant could drive it to New York; 3) the rental agreement

had an illegible, additional signature in an irregular location

rather than defendant’s typed name listing him as an

additional driver; 4) at the time of the traffic stop, defendant

was heading towards New York the day before the rental

agreement required the vehicle to be returned in Houston;

5) defendant was unusually nervous; and 6) Lomax knew,

based upon his training, that the model vehicle that defendant

was driving had easily accessible hiding places for narcotics.

Lomax’s questioning defendant about whether he possessed

any illegal contraband was not unreasonable under the Fourth

Amendment.

2. The Scope of Defendant’s Consent to Search 

Defendant appeals the district court’s denial of his

suppression motion on the ground that the search of

defendant’s gas tank exceeded the reasonable scope of

defendant’s consent.8 “When law enforcement officers rely

16 United States v. Garrido-Santana No. 02-6076

suppressed because defendant was subject to an illegal detention at the

time that Lomax secured defendant’s consent. It is true that any consent

that a suspect gives while being subject to an illegal seizure may be

tainted and, thus, invalid. See Florida v. Royer, 460 U.S. 491, 507-08

(1983); United States v. Guimond, 116 F.3d 166, 170-71 (6th Cir. 1997).

However, we reject such an argument here because, as discussed above,

defendant’s detention at the time that he consented to the search was legal.

upon consent as the basis for a warrantless search, the scope

of the consent given determines the permissible scope of the

search.” United States v. Gant, 112 F.3d 239, 242 (6th Cir.

1997). “The standard for measuring the scope of a suspect’s

consent under the Fourth Amendment is that of objective

reasonableness . . . .” Florida v. Jimeno, 500 U.S. 248, 251

(1991). The proper question is “what would the typical

reasonable person have understood by the exchange between

the officer and the suspect.” Id. A reasonable person likely

would have understood his consent to exclude a search that

would damage his property. See id. at 251-52. Generally, the

expressed object of the search defines the scope of that

search. Id. at 251. 

Before Lomax obtained defendant’s consent to search the

vehicle, he had asked defendant whether he possessed any

illegal contraband, such as drugs or stolen goods. In so

asking, Lomax thereby had informed defendant that those

widely-varied items would be the object of any search.

Defendant, per the consent-to-search form that he executed,

consented to a search of the vehicle without expressly

limiting the scope of that search. It was objectively

reasonable for Lomax and Lane to have concluded that this

general consent to search the vehicle included consent to

search any container within that vehicle that might have held

illegal contraband. As Lomax testified, it was well-known

that the model vehicle that defendant was driving had an

easily accessible gas tank in which to hide narcotics.

Moreover, the accessing and search of the gas tank caused no

damage to either the vehicle, in general, or the gas tank, in

particular. Therefore, it was objectively reasonable for
No. 02-6076 United States v. Garrido-Santana 17

9

Defendant does not claim that U.S.S.G. § 3C1.1 is otherwise

inapplicable to his sentence but, rather, simply argues that the extradition

treaty with the Dominican Republic trumps the Sentencing Guidelines and

renders the application of this provision improper. 

Lomax and Lane to have believed that defendant’s general

consent to search the vehicle encompassed consent to search

the vehicle’s gas tank. The Fourth Amendment did not

require either officer to obtain separate permission to search

the gas tank. See Jimeno, 500 U.S. at 252. We note that,

although defendant had the opportunity to do so, he never

objected to the officers’ search of the gas tank and, thus,

neither clarified that the scope of his sweeping consent

excluded such a search nor revoked his consent. See United

States v. Pena, 920 F.2d 1509, 1514-15 (10th Cir. 1990)

(holding that a search of a vehicle’s vent panel was within the

scope of the defendant’s consent to “look” inside the vehicle

where the defendant never “attempted to limit or retract his

[general] consent” upon seeing the officer begin to remove

that panel). The district court did not clearly err in finding

that the search of the gas tank fell within the reasonable scope

of defendant’s consent to search the vehicle. See United

States v. Zapata, 180 F.3d 1237, 1243 (11th Cir. 1999)

(holding that the search of a vehicle’s interior door panel was

within the scope of the defendant’s general consent to search

for narcotics, weapons, or money because the door panel

could contain such items).

III. Defendant’s Sentence

Defendant appeals the district court’s application of a

sentence enhancement for obstruction of justice under

U.S.S.G. § 3C1.1 on the ground that it violates the extradition

treaty with the Dominican Republic.9 We review the

interrelation between the extradition treatyand the application

of U.S.S.G. § 3C1.1 of the Sentencing Guidelines de novo.

See United States v. Humphrey, 279 F.3d 372, 379 (6th Cir.

2002) (holding that “[w]e review de novo questions of law

18 United States v. Garrido-Santana No. 02-6076

concerning the application of the Sentencing Guidelines”)

(emphasis added); United States v. Emuegbunam, 268 F.3d

377, 389 (6th Cir. 2001) (holding that we review de novo

interpretations of treaties). 

The principle of specialty “requires that the requesting

country not prosecute for crimes . . . for which an extradition

was not granted.” Demjanjuk v. Petrovsky, 776 F.2d 571, 583

(6th Cir. 1985), vacated on other grounds, 10 F.3d 338 (6th

Cir. 1993). Incorporating this principle of specialty, Article

IV of the extradition treaty with the Dominican Republic

provides that “[n]o person shall be tried for any crime or

offence other than that for which he was surrendered.”

Convention for the mutual extradition of fugitives from

justice, June 19, 1909, U.S - Dom. Rep., 36 Stat. 2468

(emphasis added). The verb to try denotes “to conduct the

trial of.” Webster’s Third New International Dictionary 2457

(1986). In its request for extradition, the government stated

that it sought defendant’s return to “stand trial” only on count

one of possessing cocaine with the intent to distribute in

violation of 21 U.S.C. § 841(a)(1); the government

recognized that count two concerning defendant’s failure to

appear at his arraignment in violation of 18 U.S.C.

§ 3146(a)(1) was not an extraditable offense. Defendant

concedes that the government did not violate the express

terms of the extradition treaty because it did not, in fact,

prosecute defendant for this failure to appear. Rather,

defendant argues that the government’s promise to prosecute

defendant only for the narcotics offense entails the implicit

promise that it would also not punish defendant for the

failure-to-appear offense. Additionally, according to

defendant, the district court’s consideration of that failure to

appear in enhancing defendant’s sentence on the narcotics

offense constituted punishment for it contrary to the implicit

understanding and spirit of the extradition treaty.

However, the Supreme Court seemingly eschewed such an

argument in Witte v. United States, 515 U.S. 389 (1995). The

issue in Witte concerned the Double Jeopardy Clause of the
No. 02-6076 United States v. Garrido-Santana 19

Fifth Amendment, which bars “successive prosecution or

multiple punishment for ‘the same offence.’” Id at 391. In

that case, the district court had determined the defendant’s

sentence for attempted possession ofmarijuana with the intent

to distribute by considering, along with other relevant

conduct, various quantities of cocaine that defendant had

previously imported. Id. at 393-94. Defendant was later

indicted for conspiring and attempting to import this cocaine.

Id. at 395. Defendant argued that this current indictment on

the cocaine offenses “constitute[d] a second attempt to punish

him criminally for the same cocaine offenses.” Id. at 397.

Defendant implicitly contended that the district court’s

consideration of the cocaine in sentencing defendant on the

marijuana offense constituted the initial punishment for the

cocaine offenses. See id. However, the Supreme Court held

that the consideration of “related criminal conduct to enhance

a defendant’s sentence for a separate crime within the

authorized statutory limits does not constitute punishment for

that conduct[.]” Id. at 399; see United States v. Maney, 226

F.3d 660, 667-68 (6th Cir. 2000) (relying upon Witte to hold

that the district court’s consideration of the defendant’s

various escape attempts in applying an § 3C1.1 enhancement

and in denying a § 3E1.1 reduction was not “punishment” for

that conduct because defendant’s sentence was within the

statutorily authorized range and, thus, that defendant’s

subsequent conviction and sentence for one of those escape

attempts did not raise any issues of double punishment).

Rather, the Court clarified that such consideration constitutes

“punishment” only for the offense of conviction. Id. at 401-

04. Thus, the Supreme Court held that the Double Jeopardy

Clause did not proscribe sentencing a defendant on a criminal

offense when the conduct underlying that offense was a factor

in determining the defendant’s sentence for a previous

conviction. Id. at 391, 406. Although it is formally a double

jeopardy case, its underlying analytical foundation and, in

particular, its conception of “punishment” is nevertheless

instructive here. 

20 United States v. Garrido-Santana No. 02-6076

10We note that defendant, in challenging his sentence, may lack

standing to rely upon the extradition treaty’s incorporated rule of

specialty. This circuit has not expressly decided whether an extradited

individual has standing to seek the enforcement of that rule. See

Demjanjuk, 776 F.2d at 583-84 (observing that a serious question existed

as to whether the defendant had standing to assert the rule of specialty

because “[t]he right to insist on application of . . . [that principle] belongs

to the requested state, not to the individual whose extradition is requested”

yet addressing the merits of such a claim). Other circuit courts either have

In United States v. Lazarevich, 147 F.3d 1061, 1063 (9th

Cir. 1998), the Ninth Circuit held that the district court’s

consideration of a non-extraditable offense of child abduction

in increasing the defendant’s sentence for passport fraud–the

offense for which defendant was extradited–did not constitute

“punishment” so as to violate the extradition treaty’s

incorporated rule of specialty permitting punishment only for

the extradited offense. As that court reiterated, extradition

treaties are made “within an historical and precedential

context . . . that includes the long-standing practice of United

States[’] courts of considering relevant, uncharged evidence

at sentencing.” Id. at 1064 (holding that, given the long

history of considering relevant evidence, like other criminal

behavior, in sentencing–consideration that the Sentencing

Guidelines now mandates–as well as Supreme Court

precedent, such as Witte, the extradition treaty “contemplated

consideration of relevant offenses”). 

Here, we assume arguendo that the extradition treaty

contains an implicit promise not to punish defendant for his

failure to appear at his arraignment, rather than merely an

express promise not to prosecute defendant for any offense

other than that for which he was extradited. However, we

find that, following the reasoning of both Witte and

Lazarevich, the § 3C1.1 enhancement to defendant’s sentence

on the narcotics offense based upon defendant’s failure to

appear at his arraignment did not constitute “punishment” for

that conduct so as to violate any implicit proscription against

such punishment in the extradition treaty.10 The district court
No. 02-6076 United States v. Garrido-Santana 21

declined to decide this issue or have considered the issue yet disagree as

to its proper resolution. See United States v. Saccoccia, 58 F.3d 754, 767

n.6 (1st Cir. 1995) (observing the inner-circuit split but taking no position

on the issue); United States v. LeBaron, 156 F.3d 621, 627 (5th Cir. 1998)

(clarifying that the Fifth Circuit has yet to decide whether an extradited

individual has standing to raise the rule of specialty); United States ex rel.

Saroop v. Garcia, 109 F.3d 165, 168 (3rd Cir. 1997) (“Because treaties

are agreements between nations, individuals ordinarily may not challenge

treaty interpretations in the absence of an express provision within the

treaty or an action brought by a signatory nation.”); United States v. Levy,

905 F.2d 326, 329 n.1 (10th Cir. 1990) (holding that an extradited

defendant has standing to assert a rule of specialty claim); United States

v. Najohn, 785 F.2d 1420, 1422 (9th Cir. 1986) (holding that an extradited

individual “may raise whatever objections [based upon the rule of

specialty that] the rendering country might have”); United States v.

Puentes, 50 F.3d 1567, 1572 (11th Cir. 1995) (same); Leighnor v. Turner,

884 F.2d 385, 388 (8th Cir. 1989) (holding that it is bound to follow a

prior opinion that held the same). However, because we find that

defendant’s sentence did not violate the extradition treaty’s incorporated

rule of specialty, we need not decide whether defendant has standing to

assert such a claim.

sentenced defendant on the narcotics charge to 97 months of

imprisonment–well within that offense’s statutory maximum

of 480 months of imprisonment. See 21 U.S.C.

§ 841(b)(1)(B).

Defendant also appeals the district court’s denial of a

sentence reduction for acceptance of responsibility under

U.S.S.G. § 3E1.1 on the ground that, to the extent that a

sentence enhancementunder U.S.S.G. § 3C1.1 is improper for

the reason asserted above, such a reduction is consequently

proper. See USSG § 3E1.1, comment. (n. 4) (“Conduct

resulting in an enhancement under § 3C1.1 . . . ordinarily

indicates that the defendant has not accepted responsibility for

his criminal conduct. There may, however, be extraordinary

cases in which adjustments under both §§ 3C1.1 and 3E1.1

may apply.”). Because defendant made his challenge to the

denial of a § 3E1.1 reduction contingent upon the success of

his challenge to the application of a § 3C1.1 enhancement and

22 United States v. Garrido-Santana No. 02-6076

because that latter challenge, as discussed above, fails, the

former challenge likewise fails. 

For the foregoing reasons, we AFFIRM the denial of

defendant’s suppression motion and his sentence.