1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

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ELECTRO NIC CIT

ATION: 2004 FED App . 0052P (6th C ir.) File Name: 04a00 52p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

U NITED S TAT ES OF A MERICA , Plaintiff-Appellee,

v.

E LVIS A. G ARRI DO -S ANTANA , Defenda nt-Appel

lant. X - - - -

> , - - N No. 02-6076

Appeal from the United States District Court for the We stern Dis trict of T ennesse e at Memphis. No. 97-20204—Samuel H. Mays, Jr., District Judge.

Argued: December 5, 2003
Decided and Filed: February 20, 2004

Befor e: KENNEDY, MARTI

N, and MO ORE, Circ

uit Judges.

_________________ COUNSEL

ARGUED: Ne ed um L. G er ma ny, OF FICE OF THE FEDERAL

PUBL IC DEFENDER F OR THE WESTE RN DISTRI CT OF TENNESSEE, Memphis, Tennessee, for Appellan t. Thomas A. Colthurst, ASSISTANT UNI TED STATES ATTORNEY, Memphis, Tennessee, for Appellee. ON BRIE F: Doris A. Randl e-Holt, Stephen B. Shankman, 2 United States v. Garrido-Santana No. 02-6076

OFFI CE OF THE FEDERAL PUBL IC DEFENDER FOR THE WESTERN DISTRI CT OF TEN NESSEE, Me

mphis, Tennessee, for Appe llant. Thomas A. Colthurst, ASSISTANT UNITED STATES ATTORNEY
, Memphis, Tennessee, for Appellee.

_________________ OPINION

_________________ KENNEDY, Ci rcu it Judge. Defendant Elvis GarridoSantana entere d a condit

ional ple a of gu

ilty to one cou

nt o f possessing cocaine with the intent to di stribute in violation of 21 U.S.C. § 841(a) (1). Defendant appea ls the district court’s denial of his motion to suppress evidence. De fendant also appeal s the district court’s application of a sentence enhancement

for obstr uction of justice un

der Unite d Sta

te s SentencingGuidelines (“U.S.S.G.”) § 3C1.1 and its denial of

a sentence reduction for acce ptan c e of responsibility under U.S.S.G. § 3E1.1. For the rea sons explained below, we AFFI RM the denial of defendant’s suppression motion and his sentence.
I. Backgro und

Defendant

Garrido-Santana was indicted on one count of possessing cocaine with the intentto distribute in violation of 21 U.S.C. § 841 (a) (1) . Defen dant f ailed to appear

for his

ar raignm e nton that charge after being released on bond. Ba sed upon this failure to appear, the government sec ured a supersedingind i ctment that added a second count charging defendant with violating 18 U.S.C. § 3146(a)(1). Defendant

was ultimately arraig

ned upon being extradi t ed from the DominicanRepublic, the country to which he fled. Defendant filed a motion to suppres s evi dence flowing from police office rs’ traffic stop of the

rental v ehicle that defendant was drivi ng. After c onducting an evide

ntiary hearing , the magistr ate judge, to whom the district cou rt had referredNo. 02-6076 United States v. Garrido-Santana 3

defendant’s suppression motion, issued a rep ort and

re commendation

advising the distri ct court

to deny th a t motion. Adopting

the mag is tr ate ju dge’s p ropos ed fin dings and recommendation, the district court d enied defendant’s suppressionmotion. Defendant entered a conditional plea of guilty to count one of possessing cocaine with t he intent to distribute in violation of

21 U.S.C. § 8 41(a) ( 1), expre ssly reserving his right to appeal the de nial 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. Howe ver, in s entenc ing defendant on count one, the district court relied on this failure to appear in enhanc ing def

endant’ s se ntence by two levels under U.S. S.G. § 3C1.1 for

obstruct ion of justi ce and in refusingto reduce defendant’s sentence und er U.S.S.G. § 3E1.1 for acceptance of re sponsibility. After app lyin g all of the relevant factors, the district court ultimately arrived at

a Guideline s’ rang e in which it se nt en ce d d ef

en da nt to ni ne tyseven mont hs of imprisonment followed by three years of supervised release.

II. Defendant’s Suppression Motion

A. Relevant Facts

Indenying

the suppression motion, the district court found the following facts. On the morning of September 18, 1997, PatrolmanTerry

M. Lomax (“L omax”) of

the Shelby

County Sheriff’s Department was parked ina marked squad car in the grassy median strip of Interstate 40 in She lb y C ou nt y, Tennessee

. When a 199 7 Chrysler L HS sedan–

the vehic le that defenda nt was dri

v ing –passed his position, Lomax pointed his radar speed-c loc king unit at the sedan. Yet, the radar picked up only a larg e tractor-trailer that was traveling inthe east-bound

lane adjacent to the sedan; it indicated that the tractor-trailer was proceeding at the posted speed

limit of 65 mph. Afte r the sedan passed the tractor-trailer, L omax pulled his vehicle out of the median and pulled alongside the sedan. As he test

ifi ed, 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 s edan a t 71 mph. Activating his squad car light s, Lomax pull ed the sedan over fo r speed ing.
Uponapproaching the driver’ssi de door of the sedan, Loma x asked defendant, who was traveling alone, for hi s driver’s license. Defe

ndan t handed Lomax a

Puer to Rico driver’s l icen se in the name of “Elvis A. Garrido.” Examining the license, Lomax found it to be valid and

curren t. Lomax informed defendant that he had stopped him for speeding. Lomax then inquired about def endan t’s p lace of departure and d e stination. 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 affi rmat ive. Lomax te stified that he was suspicious of the fa

ct that de fendant , a resi dent o f Puerto Rico, was driving a car with Texas plates. After Lomax asked abo utthe vehic le’s owne rship, de fendant

informed

Loma x that it was a rental car. Defendant prod uced th e rental agreement

for which Lomax asked. The re ntal agreement evidenced

the follow

ing: 1) a nother in dividual nam ed “Junior Santana,” a resident of New York, had rented the vehic le at the Hobby Airport, in Hou ston , 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 ne ar Junior Santana’s signature. Lomax noticed that the rental agreement did not list def

endant, in typewriting, a s an additional driver. Uponbeing a sked, defendant informed L omax that “Junior Santana” was his cousin. Defendant tol d Lomax that defendant had flown from Puerto Rico to Miami, Florida, and thento Houston, Texas, where he and his cousin had rented the vehicle

for def endant to drive toNewYork. Lomax was

aware that

the vehicle that defendant was driving was know n to have e asily

access ible plac es in whic h to hide na

rcotics.
Believing that the r ental ag reemen t did not list defendant as

anadditional driver, Lomax ran a license plat e ch eck toNo. 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 spee ding . Lomax advised defend ant that he was giving defenda nt a warning citationbut that he was still awaiting the return of a computer check. Lomax obs e rved that, even after he had informed defendant that he would only rec eive a wa rn ing tick

et, defendant continued to exhibit signs of nervousness, such as avoiding ey e cont act, l aughin g nervo usly, and fidget ing; based upon his experience, Lomax fou nd thi s nervousness unusual. Returning the ren tal agree ment and l icense t

o defendan t, Lomax explained the courtesy citation, which he

was still filling o

ut, to def endant. L omax asked

if defendant had any illeg al contrab and, such as drug s or stolen goods, i n his vehicle. Defendant replied in the negative. Lomax asked if defendant would consent to a se arch of the vehicle. Defendant

answer ed in the a

ffirma tiv e. Lomax gave defendant the cour tesy cita ti on to sign. After defendant signed the cit ation, Lomax gave defe ndant a copy of

the citationas well

as a consent-to-search form. L omax advised defendant to re ad th e c on se nt fo rm an d t o a sk an y ques tions that he might have before signing it. Defendant signed the consent form. Approximately ten minutes had elapsed be tween the initial traffic stop and defendant’s execution of the conse nt form.

Around the time th

at defe ndant sig ned the c onsent form, PatrolmanDale Lane (“Lane”)–also of the Shel by C ounty Sh er iff’s Department–arrived. Although they used a drug detection dog to su

rvey the vehic le, the do g did

not ale rt to the presenc e of nar

cotic s. B oth Lomax and L ane quickly looked around the sedan. At some point, Lane and Lomax

sawunopened pac kages

of a pair of pliers and an a djustable wrench in a bag on the floor of the fron t passeng er seat

. While standing beside the rear of the vehicle, Lane informed Lomax that he sm elled a strong odor of gasoline. L omax smel lednothing as he suffered from sinus cong estion at the time. They aske d

defendant, who was standing near the rear of the vehicle, to sit in the bac k of La ne’s squad car. As 6 United States v. Garrido-Santana No. 02-6076

1 Although it is un clear wh ether Lomax examined the vehicle’s access plate and suspect ed its rem oval before he observed the tools in t he
passenger

compartment and before he placed defendant in the squad car, it is clear that

Lomax and Lane removed the access plate only af ter these
events. Lomax w a s placing defendant in the squad car, de fendant volunteered

that he had been stopped twice before on his trip and had been searched. When Lomax questioned defendant about these stops, d efen dant stated that he had no documentationfor them. Upon bei ng ask ed, defendant affirmed that he had

b een in pos session of

the vehic le at all times during his trip. Because defenda nt would ha ve b een unable to exit the sq

uad car , Loma

x instructe d him

on how to

use its public a

ddress sy

stem i n case he

needed to communicate with the officers.
Recallingth at it af

fo rd s e as y acces s to the g as tank, i n which drug s have been smuggled, they opened the trunk of the vehicle. 1 Upon

pulli ng the ca rpet back , Lomax sa w a sliv er plat e, which four bolts fastened and which provided

access t o the gas tank sending unit, a device that sig nals the dashboard

about the amount of

gasoline in

the gas tank. Lane and Lomax noticed that

the bolts fastening the silver plate had scratches arou

nd them as

if they had been removed and then replaced. Because the vehicle was new and ha d ve ry low mileage, Loma

x found this a

pparent r emo val of the

plate unusual. Lomax believed tha t the tools in the passenger compartment

were to be used in removing the silver plate so

as to access the gas tank. L omax and Lane removed the trunk’s silver plate to access the gastank. By inser ting a fiber optic scope into the top of the gas tank, Lomax observed white cellophane-covered bundles in the gas tank. Believing t hat these bundles contained illegal narcotics, Lom ax an d Lane arrested defendant. At no ti me during the sear ch did defendant object to its duration or

scope. Sometime after the completionof the se arch, L omax rece ived th e com

puter checkNo. 02-6076 United States v. Garrido-Santana 7

and learned that the vehicle was not stolen. Sevenbundles of cocaine were subsequently seized from the vehicle’s gas tank.
B. Analysis

We re view the district court’s legal conclusions in a suppressionhearin g de novo and its factual findings in a suppressionhearing for clear e rror. United Sta tes v. Sm ith
, 263 F.3d 571, 581-82 (6th Cir. 2001). The district court’s determination

as to the existence of probable cause justify ing

a traffic stop is a que stion of la w that we review de novo

. United States v. Rodrigue

z-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 Four th Amendment

is a que stion of law that we review de novo

. United States v. Avery , 137 F.3d 343, 348 ( 6th Ci r. 1997). The distri ct court’s determination of whether a sear ch exceeded the scope of con sent 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. 199 4). When considering the denial of

a suppre ssion motion , we must view the evidence in the l ight mo st favor able to th e gove

rnment. United States v. W

ellman, J r. , 185 F.3d 651, 654-55 (6th Cir. 1999).
1. Validity of the Traffic Stop

A traffic stop is reasonable under the Fourth Ame ndm en t where the stop was both p roper a t its inception and “reasonab ly

rela ted in sco pe to the c ircumsta

nces . . . [that] justified the . . . [stop] in the first place .” United States v. Freeman
, 209 F.3d

464, 466 (6th Cir. 2000) (quot ing Terry v. Ohio
, 392 U.S. 1, 19-20 (1968)) (internal quotation marks omitted). A police officer may la wfully stop a motorist who m he has probable cause to believe has committed a traffic violation. Id. However

, a police officer cannot continue to detain

a motorist

after the offic er has c ompl eted the initial pu r

pose 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 evid ence t hat t

he stop was pre-t extual , defen dant under scores that Lomax was sus picious of defen dant becaus e he h ad a Puerto Rico drive r’s license and was driving a vehicle w ith Texas tags. However, we note that

such su

bjecti ve suspi cion i s fact uall y–as wel l as legally –irrelevantto the valid ity of th e ini tial traf fic stop becaus e Lomax only learne d ab out d efend ant’s reside ncy after he had sto ppe d de fenda nt’s vehicl e. reasona ble and articulable suspicion that criminal act ivity was afoot.” United Sta tes v. Hil l , 195 F.3d 258, 264 (6th Cir. 1999).

Defendant

appeals the distri ct court ’s denia l of his suppressionmotion on the ground that Lomax’s initialstop of defendant’s vehicle violated the Fou r th Ame ndm ent . In parti cul ar, defendant argues that Lomax actually stopped defendant’s vehicle based upon his suspicion that defendant

was involved i

n illega l drug tr affick ing, not base d upon an alleged speeding violation. However, in Whren v. United States
, 517 U.S. 806, 8 13, 819 (1996), the Supreme Court held that, as long a s a police office r has pro bable ca use to believe that a motorist c ommitted a traffic violation, the resulting traffic stop is gene rally reasona ble under the Four th Amendment

regardless of the officer ’s subjective intent or stateof mind in c onducting the traf fic stop. 2 Accord United States v. Bailey , 302 F.3d 6 52 , 657 (6th Cir. 2002) (noting that “[i]t is well established . . . that an office r’s actual motivation for makin

g a traffic stop

is i rrelevant to the constituti onality

of that stop ”); W

ellman, 185 F.3d at 655 (finding that, whe

re proba ble caus e for the

traffic stop exists, wh ether the police officer was motivated in conducting the traffic stop base d upon his“suspicion that the defenda nt fits into a ‘drug

courier profile ’” or his membership in a drug interdictionunit is irrelevant to the s top’s con stitutiona lity under the Fourth Amendment).

Al te rn at iv el y, defendant conten d s that Lomax lacked probable cause to justify the traffic stop of de fendant’s

ve h icle because defendant had not, in fact, bee n speedingNo. 02-6076 United States v. Garrido-Santana 9

prior to thatstop. At the suppressionhearing, Loma x testified that, while pacing defendant’svehicle with his squad car, he used both his calibrated speedometer and hi s radar to determine that defendant’s vehicle was traveling at 71 mph in

a 65 mp h zone. Defendant asserts that this testimony i s unworthy of belief. Yet, the only evide nce tha t defendant offe rs to re fu te th is te st im on y is hi s o wn te st im on y at th e suppressionhearing. I

n 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 h e h ad never been stopped for speed ing. However, the district court reasonabl y foun d that defendant was not a credibl e witness. For example, defendant later testified that police had stopped him and had given him a courtesy

citation the night before Loma x had stoppe d him. Defendant

also demonstrated

his prope nsity to lie under

oath when, in 1997, he failed

to appea r at his ar raignment despi

te having promised

the distri ct court , as a condition of his bond, that he wou ld app ear at all required proceeding s. In an attempt to negat e Lomax’s tes timony, defendant conte nds that it would have been unreasonable for de fendant to have sped past Loma x’s squad c ar since

it was clea rly visibleto passing motoristsand was positi oned so as to pursue any violators easil y. Similarly, defendant ar gues that it would have been

even more unreasonable for him to have continued t o speed after Lomax began pacing

defendant’s vehicle. However, as the distr ict c ourt a

ptly observed , “[c] ommon

exp e rience teaches th at sp ee di ng mo to ri st s a re us ua ll y apprehe nded when police are po s itioned to observe them and often when the

mo torist can observe the officer as we ll.” The distri ct court correct ly recog nized that, in any

event, no

evidenc e in th e record demonstrates that def endant is a reasonablemotorist. Viewingthe evidence in the light most favorable to t he 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

co nt ra ry. See Peveler v. United States

, 26 9 F.3d 693, 702 (6th Cir. 2001)(“We ar

e gene rally relucta nt to set a side credibi lity

determinations mad

e by the trier of fact
, who has 10 United States v. Garrido-Santana No. 02-6076

3 Defendant argue s that Lo max testified tha t de fendant signed the warning ticket before Lomax retur ned t he ren tal agre eme nt and driver ’s lice nse. However, Lomax act uall y tes ti fi ed– and the distri ct court f ound–that

Lom ax retu rned the renta l agree men t and d river’s li cense t o defend ant while Lomax was fi ll ing out t he cour tes y ci tat ion a nd before defendant

sign ed it. In any

event, aft er returnin g defe nda nt’s do cum ents and issuing a c opy o f the signed cour tesy ticket, L oma x did contin ue to detain defendant pending the completion of t he computer check. had the opportunity to view the witness[es] on the stand and [to] assess . . . [their] demeanor.”). Bec ause defendant was speedingin violation of Tennessee law, Lomax had probable cause to stop defendant’s vehicle.

Defendant

also appe als the district cou rt’s den ial o f his suppressionmotion on the gro und that the traff

ic stop was not

reasona bly related inscope and duration

to the initi al purpos e of the stop–the speedingviolation. Defendant contends that this initial pur

pose ended when defendant signed the courtesy ticket and Lomax returned the rental agreement and

driver’s license to defen dant. 3 According to defendant, Lom ax then pr olonged

the detention when he, in effect, inform e d defen dan tthat he could not leave because L omax was awaitingthe return of a computer check. The thr ust of defendant’s argume

nt is that it was not “reasonably related” to the sp eedin g v iol ation for Lomax to have conducted a computer check to ensure that defen dant was lawf ully operating the vehicle because sucha check was unnecessary and, t hus, u nreasonable under the totality of the circumstances. Defendant contends that a reasonable police officer would infer from defenda nt’s illegible signature near the renter’s signature and

the notationof “add driver $10.50"

onthe rental agreement that defe ndant was lawfully ope

rating the vehicle. At the supp

ression hearing , Loma

x testified that, after looking at the rental agree ment “closely,” he

ran the computer check on the vehicle’s license

plate be cause he

did notsee defendant’s name “listed”–or printed– on the agree ment. Lomax elaborated that about ninety -nine percent of the rental agreements that he had se en listed the name o fNo. 02-6076 United States v. Garrido-Santana 11

4 Although defen dan t conte nds tha t Lom ax had four d ocu men ts in his
posses sion

contai ning def

endant’ s si gnatur e–his dri ver’s lic ense, the rental agreement , th e courtes y cit ation, and the cons ent- to-s earch for m–, Lom ax only had d efendant’s driver’s license and the renta l agree men t in his po ssession at the time that he re que sted the license p late che ck. the additional dr iver in t he same type of print in which the renter’s name was listed. Lom ax tes tified tha t he first recognized

the si gnatur e on th e renta l agr eemen t as defendant’s after he had returned to the police station and was comparingthat docu

ment w it h defend

ant’s dr iver’s li cense and the cour te sy t icket tha

t defend ant had si gned. A s to whether it was reasonable to believe that the vehicle wa s stolen, Loma

x underscored that , along

with defe ndant’s name notbeing p rinted on the rental agreement, L omax knew of instances in which a

u thorized individuals had not done something that the rental a greement requ

ired the m to do. As Lomax testified, “[t]here are alway s reasons to do checks.”

Defen dant

contends that Lomax’s testimony is incongruou s with the facts. To the extent that defe ndant as ks us to set aside the district court’s determination t hat Loma x was a credibl e witn ess, we find no reason to accept such an invitati on. Se e Peveler, 269 F.3d at 702. Moreover, defendant’s focus upon Lomax’s subjective intent in or j ustificationfor running the computer check on the lice n s e pl at e is misplac ed. “[T]he touchstone of the F ourth Amendment

is reasonablene ss

. . . 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 c harge for an additional driver, defenda

nt’s sig nature was illeg ible and l o cated in an odd location on that agreement. A reason able off icer like ly would not have recognized that illegible signa ture as belonging to defendant unless and until he placed defendant’s driver’s license d irectl y beside the re ntal agreement and compared their re spective

signatu res. 4 A reasonable officer 12 United States v. Garrido-Santana No. 02-6076

examining defendant’s driver’ s license probably would have focused upon t he pi ctur e and the exp ir ation date, as Lomax did. We note tha

t, even if the rent al agr eement r easonab ly appear edto authorize defendant as an additional driver, a

reasona ble police officer would still have good reason to run
a license plate c heck. For example, defendant may have forged th at au th or iz at io n, or th e r en ta l c om pa ny m ay hav e rescinded such authorization, even if initially valid, due to a violation of

the rental agreement. As the Supreme Court has recognized, states have a critic al interest in ensuring that motorists observe licensing and registration require ments as wellas a legit

imate inte rest in contro lling au

tomobile 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 t

he search o f the vehicle–was notintrusive. The pendency of the co mputer check was large ly co-extensive with the v ehiclesearch, to which defendant consented b efore Lomax had finished issuing the warningcitation and to whose duration defendant never objected. During the unknown amount of time between th e completionof the search and that of the compute r check, defendant was under lawfulcustod ial arrest based upon the fruits of the searc h. In sum, under the totality of the circumst ances, it was objectively re asonable and within the boun ds of the tra

ffic stop for L omax to have

request e d a computer check to

ensu re th at defe

ndant wa s lawfull

y operatingthe vehicle. See id. at 663 (“ [E]xcept in tho se situations in which there is a t least articulable and

reasona ble suspicion thata motorist

is unlicen sed or tha

t 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 deta ining the driver in order to check h is driver’s license and

the registration of the automobile are

un reasona

ble under the Fourth Amendment.”) (emphas i s added); Wellman, 185 F.3d at 6 56 (holding that the police officer “lawfully aske d

defenda nt to sit in th e squad c ar while he wrote a courtesy

citation and performed record checks of his driver’ s license

and registration

” as it wa s with in t he scope of the traffic stop for spe eding) ; United States v.No. 02-6076 United States v. Garrido-Santana 13

5 In particular, defendant contends that Lomax onl y conducted the check beca use d efend ant, a res ident o f Pue rto Rico, was driving a vehic le with Texas l icen se t ags; according to defe ndant , s uch a g round doe s not afford Lomax reasonabl e suspi cion that def en dan t w as unlaw fully
ope ra ting the veh icle be cause it is logistically unlik ely for a c ar with Puerto Rico tags to b e in the United S tates.

6 Com pare United States v. Sha bazz , 993 F.2d 43 1, 436-37 (5th Cir. 1993) (holdi ng that

questi ons, whi ch, i n themse lves, are nei ther s earches

nor seizure s, are re levant to wheth er a de tention has exceeded its lawful duration, and that

the poli ce officer’ s questioning of defendants regarding their recen t wh ereabou ts did not excee d the orig inal

scope of th e t raffic stop–f or s peeding–because it occurred whi le a compute r check was
pe nding and , thus, did not ex tend th e dur ation o f the initial stop ), and United States v. Childs , 277 F .3d 94 7, 949 (7th Cir. 200 2) (“Be cause questions are neither se arche s nor se izures, . . . [q]uestions asked during deten ti on may affe ct the rea sona blene ss of that d etentio n . . . to the extent Bradshaw
, 102 F.3d 204 (6th Cir. 1996) (h oldi ng t hat the police office

r “could lawfully detain . . . [d efendant in the back of the squad car] until he had finished performing

radio checks and is suin g t he c itation” b ecause it was “w ell within the bounds of

the initia

l 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 tra

ffic violation) . Thus,

we re ject defendant’s contention that L omax needed a

reasona ble suspicion that defendant was unlawfully ope

rating the vehicle to justify this detention. 5

Al te rn at iv el y, de fen dant claims that Officer Loma x exceeded the bound s of the initial traffic stop for speeding when he asked whether defend a nt possessed any illeg al contraband. The circ

uit courts gener ally agree that the F ourth Amendment

requires that, absent

additional justification, any qu esti oning during a valid traffic stop must not prolong the detentionnecessary

to complete the ini tial purpose of that stop; however, there is some disagreement as to whe ther the Fourth Amendment also requires that, absent additio nal justification, such que stioning must be re asonably

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 tha t do not

inc reas e th e le ngt h of the deten tion (o r that exte nd it by o nly a brie f time) d o no t make the . .

. [detention] it sel f un reas onable or re quir e suppr essi on of evidence found

as a result of the answers. ”) with U nited State s v. M urillo , 255 F. 3d 1169, 1174 (9th C ir. 200 1) (“D uring a tra ffic stop, a polic e officer is allowe d to ask questi ons that

are reas onably r elat ed in scope t o the jus tif ica tion fo r his ini ti ati on of

conta ct . . . . In order to broaden the scope of questioning, he m ust ar

ticu late suspi cious f

actors that

are part icul arized an d objective.”), and Un ited S tates v. H olt , 264 F. 3d 1215, 12 28-31 (10th Cir. 2001) (holding that “the Fo urth Amen dmen t reasonab leness of a traffic stop base d on pro bab le caus e mus t be jud ged by exa minin g bot h the length of the d etentio n and the mann er i n whi ch i t i s car rie d out, ” and, thus, rejec ting the ar gume nt that t he nat ure of any questi oning during a traffic stop is irre levant so long a s it doe s not un reaso nab ly prolo ng that stop’s durati on).

7 In United Stat es v. Pal omino , we h eld t hat a poli ce of

fi cer di d not violate the Fo urth Amendment when, fol lowi ng a t

raf fi c st op based u

pon pro bab le cause of a traffic violati on, the offi cer asked the defendant about wheth er he poss esse d il lega l con tra band because t

he of fi cer “ did not detain

. . . [t

he defendant ] longer

than was necessar y for th e origi nal
purpo se of the sto p, and because there was reaso nable susp icio n to conduct the br ief quest ioni ng. ” 100 F.3d 446, 449- 50 (6th Cir. 1996) (emp hasis added). One could argue that Palomino impli citly holds that quest ioni ng dur ing a tr aff ic s top must be reasonably relat ed to the ini tial
purpo se of that s top because, absent this require men t, it need not have found that reas ona ble sus picio n for suc h que stioning existed

. Ho wever, this concl usi on is inval id because one of the premises upon which i t rel ies is false. It does not necessari ly fol low from the premise that additi onal just ifi cati on–other than that which j usti fied t

he ini tial traffic stop –de feats the defendant’s Fourth Amendment cla im that such addit ional jus ti fi cati on is requi red to defeat the defendant’ s Fourth Amendm ent claim

. See Childs , 277 F. 3d at 951. circuit ha s ye t t o decide this issue express ly

. 7 Becau se additional justification supported the questioning here, we need not decide such an important legal issue. Rather, we leave that determination for a case w hose rec ord aff

ords a

more appropriate b asis upon w hich to mak e it. Fi rst, i n asking defendant whether h e possessed any

illegal contraband, Lomax did not exceed the time neces sary to complete the original purpose of

the traffic stop. At that

time, Lomax had not yet completed

the initial pur

pose of the traff

icNo. 02-6076 United States v. Garrido-Santana 15

8 Defendant has ab an doned hi s ar gument on appeal

tha t he did not
consent to the se arch o f the vehic le. See Somm er v. Da vis, 317 F.3d 686, 691 (6th Ci r. 2003) (hol ding t hat pl aint iff

s abandoned an i ssue on appeal by not pr esenting any arg ume nt on it in t heir briefs ). Rather, defendant
argue s on ap pea l that any ev idenc e flowing from th e sear ch mu st b e stop because he was still filling out the courtesy citation and,

as discussed above, was s till waiting for the return of the computer check on the vehicle’s license plate. Second, assuming that

this questi oning wa s not rea sonably related to the speeding violation and, thus, t hat i t required additional justif icati on, Lomax had a reasonable suspicion that defendant was engaged i

n cri minal act

ivity so as to va

lidate his inquiry into whether def endant possessed any

illegal contraband. At the time of this questioning, Lomax had the following informationavailable to him: 1) defenda nt’s route

was circuitous and impr acti cal in that defendant had flown fromPuerto Rico to Mia

mi and the

n 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 agree ment had an illegible, add

it i onal signature in an irregular location rather than def

endant’ s ty

ped name listing him as an additional driver; 4) at the time of the traffic stop, defendant

was headingtow ards New York the day before the rental

a greementrequired the vehicle to be returned in Houston; 5) defendant was unusually nervous; and 6) Lomax kn e w, based upon his training, that the model vehicle that defendant

was driving had easily ac cessible hiding places for narcoti cs. Lomax’s questioning defendant about whether he possessed any illegal contraband

was not un

reasona ble under the Four th Amendmen

t.
2. The Scope

of Defendant ’s Consent to Searc h

Defendant

appeals the d istrict c ourt’s de nial of his suppressionmotion on th e grou nd that the

se arc h of defendant’s gas tank exceeded the rea sonable scope of defendant’s consent. 8 “When law enforc ement of

ficers r ely 16 United States v. Garrido-Santana No. 02-6076

suppress ed beca use d efend ant was subje ct to an illegal de tentio n at the time t hat Lomax secured defendant’s consent. It is true that any consent that a suspect gives whi le being subje ct t o a n il lega l s eizure may be tain ted and, thu s, invalid. See Flor ida v. Royer , 460 U.S. 491, 507- 08 (1983); United Stat es v. Guimond , 116 F.3d 16 6, 170-71 (6th Cir. 1997). However, we rej e ct suc h an argumen t here because, as dis cussed above, defen dan t’s det ent ion at th e t ime that he consent ed to the se arch w as lega l. upon cons ent as the

basis for a warra ntless 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 sc ope of a suspect’s consent under the Fourth Amendment is that of objective

reasona bleness

. . . .” Florida v. Jimeno, 500 U.S. 248, 251 (1991). The proper question is “what would the ty pical

reasona ble person have understood by the exchang e between the officer and the suspect.” Id. A reasonable person likely would have understood his consen t to ex clude a search that would damage his property

. See id. at 251-52. Generally , the expressed object of the sear c h defines the scope of that search. Id. at 251.

Before Loma

x obtained d

efenda nt’s c o nsent to search the vehicle, he had asked defenda nt whet her he possessed any illegal contraband, suc h as drug s or stolen goods. I

n so askin g, Loma

x thereby had infor

med defe ndant tha t those widely -va ried items would be the object of any search. Defend ant, per t he consen t-to- sear ch form tha

t he exe c uted, consented to a sear

ch of the

vehicle without e xpr essly limiting the scope

of that se arch. I

t was obje ctively

re aso nablefor L omax and L ane to ha ve conc luded tha

t this general consent to search the vehicle included conse nt to search any containe r within that vehic le that mig ht have he ld illegal contraband. As Lomax testified, it was well-known that the model

vehic le tha t defendant was driving had an easily access ible ga s tank in wh ich to hide

narcoti c s. Moreover, the accessing and search of the gas tank caused no damage to either

the vehic le, in ge

neral, or the ga s t ank , in particular. The refore, it was objectively reasonable forNo. 02-6076 United States v. Garrido-Santana 17

9 Defendant does not

cl aim that U .S.S.G. § 3 C1.1 is otherwise inapp licable to his sent ence bu t, rather, si mply argu es t hat the extr adit ion treaty with

the Domini can Republic trumps the Sentencing Guidelines and rend ers the a pplic ation o f this pro vision im pro per. Lomax and Lane to have be lieved that defe nd ant’s general consent to search the vehicle encompassed consent to sea rch the vehicle’s gas tank. The Fourth Amend ment did not require either

officer to obtain separate permission to search the ga s tank. See Jimeno, 500 U.S. a t 252. We not

e th at , altho ugh def

endanthad the opportunity to do so, he neve r objected to the officers’ search of the g as tank and, thus, neither clarifi ed th at 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 panelwas within the scope of the defendant’s consent to “look” inside the vehicle where the defe

ndant never “atte

mpted to lim

it or retr act his [gener al] consent” upon seeing the o ffic er begin to remove that panel). The distr

ict cour t did not cle arly

err in finding that the search of the gas tank fell within the reasonable scope of defendant’s consent to search th e vehicle. See United States v. Zapata
, 180 F.3d1237, 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 doo r panel could contain such items).

III. Defendant’s Sentence

Defendant

appeals the district court ’s ap plication of a senten ce e nhancement 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 revie w t he interrelation

betw een t he ext radition treaty a

nd the application of U.S.S .G. § 3C1.1 of the Sentenc ing Guid elines de novo. See United States v. Humphrey, 279 F.3d 37 2, 379 (6th Cir. 2002) (holding that “[w]e review de nov o questi ons 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. 3 d 377, 389 (6th C ir. 2 001) (holding that we review de novo interpretations of treaties).

The pr in ci pl e o f s pe ci al ty “requ ires that the requesting country not prosecute for crimes . . . for which an extradition

was not granted.” Demjanjuk v. Petrovsky , 776 F.2d 571, 583 (6th Ci r. 1985), vacated on other grounds , 10 F.3d 3 38 (6th Ci r. 1993). I

ncorpor ating th is princip le of spe cialty, Arti cl e IV of the extr

adition tr eaty with the D ominican Republic p rovides that “[n]o person shall be tried for any crime o r offence other than that for which he was surrend ere d.” Convention for the mutual extradition of fugitives from justice, June 19, 190 9, U.S - Dom. Rep., 36 Stat. 2468 (emphas is added). The verb to try denotes “to con duct the trial of.” Webster’s Third New Inter national 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 di stribute i n violation of 21 U.S.C. § 841(a)(1); the government recognized

that coun

t two conc erning

defenda nt’s fail ure to appear at his arraignment in violation of 18 U. S. C. § 31 46(a)(1) was not an extraditable offense. De fend an t concedes that the governme nt did not vi olat e the expr ess terms of th e extradition treaty because it did not, in

fact, prosecu te defenda

nt for t his failure to appear. Rather, defendant argues that

the gover nment’s promise to prosecut e defendant only for t he narc otics off

ense ent ails the im

plicit promise th at it would also not punish defendant for the failure-to-appear

offense . Additiona

lly, accord

ing to defenda nt, the district court’s consideration of that fail ure to appear in enhancing defendant’s sentenc e onthe n arcotics offense constituted punishment for it contrary to the

implicit

un de rs ta nd in g a nd sp ir it of th e e xt ra di ti on tr ea ty.
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 Jeop a rdy Clause of theNo. 02-6076 United States v. Garrido-Santana 19

Fifth Amendmen

t, which b ars “ succe ssive prosecution or mul tiple punishment for ‘the same offence.’” Id at 391. I n that case, the district court had deter mined the defendant’s sentence for atte

mpted poss essio n of marijuan a with the intent to distribute by consideri ng, a long with other relevant conduct, var i ous quantities of cocaine that defendant had previous ly

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 sa

me cocaine offenses .” Id. at 397. Defendant

implicitly contended t h at the district court’s considerat io nof the cocaine in sentencing defe ndant on the marijuana offen se constituted the initial punishment for the cocaine offense s. See id. Howeve r, the Supr

eme Court

held that the consideration of “related criminal conduct to enhance

a defendant’s sentence fo ra 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) (rely ing upon Witte to hold that the district court’s consideration of the d efendant’s various escape

attemptsin applying

an § 3C1.1 enhancement and in deny ing a § 3 E1.1 red

uction wa s not “puni shment” for that conduct because defendant’s sentence was within the

s t atutorily authorized range and, thus, that defendant’s subsequent

conviction and sent ence for one of those escape attemptsdid not ra

ise any issues o f dou ble punishment). Rather, the Court clarified that such consideration constitutes “punishment” only for the of fense of conviction. Id. at

401- 04. Thus, t

he Supre me Court he ld

that the Double Jeopardy Clausedid not proscribe sentencing a defenda nt on acriminal offense when the conduct underly

ing that offense was a factor indetermining the defendant’s sentence for a previous conviction. Id. at 391, 40 6. Althoug h it is formally

a double jeopardy case, it s underly

ing ana lyti cal foun

dati on and, in p articular, its conception of “punishment” is neverthe les s instructive here. 20 United States v. Garrido-Santana No. 02-6076

10 We note t

hat def endant , in

chall enging his s entence, may lack standing to rely upon the ext radi ti on tr eaty ’s incor porat ed rul e of
spec ialty. Th is circuit h as not expressl y decided whe ther a n extr adited indiv idual has st anding t o seek th e e nforc eme nt of that ru le. See Demjanjuk

, 776 F.2d at 583-84 (obser ving t hat a s erious questi on exist ed

as to wh ethe r th e def

endant had st andin g to a sser

t t he ru le of

s pec ialty because “[t]he righ t to insist on a pplic ation o f .

. . [that principle] belongs
to the request ed st ate, not t o the indi vidu al wh ose ex tra dit ion i s re quest ed” yetadd ressing th e me rits of such a claim ). Other circuit court s either have In United States v. Lazarevich , 147 F .3d 1061, 1063 (9th C ir. 1998), the Ninth Circuit held that the district court ’ s consideration

of a non-extr

aditable offense of child abduction inincreasing the defendant’s sente nce for passport

fraud–the offense for whic h defend ant was extradite d

–did not constitute “p unishment

” so as to violate the extradition treaty’s incorporated

rule of s pecialty permittin g punish ment only for the extradited o ffe nse. As that court reiterated, extradition treaties are made “within an historical and prece dential context . . . that includes the long-standing practice of United States[’] c ourts 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 sen tenc ing–consideration that the Sentencing Guidelines now manda tes–as wel l as Supreme Court preced ent, such as Witte , the extradition treaty “conte mplated consideration of relevant offenses”).

Here, we assume arguendo that th e ext radition t reaty contains an implicit promise not to punish defenda nt for his failure to appear at his arraignment , rath er than merely an express promise not to prosecute defenda nt for an y of fense ot her than that for which he was extradited. However, we find that, follow i ng the reasoning of both Witte and Lazarevich
, the § 3C1.1 enhancement to defendant’s sentence

onthe narcot ics off

ense bas ed upon de fendant ’s failur e to appear at his arr aignme nt did not consti

tute “pun ishment” for that conduct so as to violate any

implicit pr

oscription again st suchpunishmentin th e e xt ra di ti on tr ea ty. 10 The district courtNo. 02-6076 United States v. Garrido-Santana 21

declin ed to decide t

his i ssue or h ave consi dered the i ssue y et dis agree as to its proper resolut ion. See United States v. Sa cco ccia , 58 F.3d 754, 767 n.6 (1st Cir. 1995) (observing the inner-circ uit spl it but t akin g no pos it ion

on the iss ue); United

States v. LeBaron , 156 F. 3d 621, 627 ( 5th Ci r. 1998) (clarif ying that t

he Fifth C ircu it h as yet to decide wh ether an extr adited indiv idual has standing t o raise the rule of special ty); Un ited S tates ex rel. Saroop v. Ga rcia , 109 F.3d 165 , 168 (3rd Cir. 1 997) (“ Because tre atie s

are agree men ts betwe en natio ns, individ uals ord inarily may not challenge treaty interpretations in the abse nce of an express provision wit hin the treaty or an a cti on bro ught b y a signato ry nation .”); United States v. Levy
, 905 F.2d 32 6, 329 n.1 (10th Ci r. 1990) (hol ding t hat an e xtradi ted defendant has stan ding to assert a rul e of spec ialty claim) ; United States

v. Na john

, 785 F.2d 1420, 1422 (9th Cir. 1986) (holding that an extr adited ind ivi dual “mayrai se wh atev er obje cti ons [ based u pon th e rul e of
spec ialty that] t

he r end ering c ountr y might ha ve”); United States v. Pue ntes, 50 F.3d 1567, 1572 (11 th Cir. 1 995 ) (sam e); Leighnor v. Turne r, 884 F.2d 385, 388 (8t h Cir . 1989) (hol ding tha t i t i s bo und to follo w a prior opin ion th at held the s ame). However, because we f ind th at defen dan t’s sente nce did not viola te the extr aditi on treat y’s incorporat ed rule of spe cialty, we ne ed no t decid e whe ther de fenda nt has stan ding to

ass ert suc h a c lai m. sentenced defendant on

the narc otics cha

rge to97 months of imprisonme

nt–well within that offense’s statutory maximum of 480 months o f impriso nmen t. See 21 U.S.C. § 841(b)(1)(B)

. Defend ant also appeals the district court’s denial of a sentence reduction for acceptance of responsibility under U.S.S.G. § 3E1.1 on t

he gro und that, t

o the exten

t that a sentence enhancement un der U.S.S.G. § 3C1.1 is improper for the reason asserted above, such a re duction is con sequent ly proper. See USSG § 3E1. 1, commen t. (n. 4) (“Conduct result ing in an enhancement under § 3C1.1 . . . ordinar il y indicates that the d

efenda nt has not a

ccepte d resp onsibil ity for his cr im in al co nd uc t. Th er e m ay, however, be extraordinary

cases in which a

djustments

under bo th §§ 3C1 .1 and 3E1.1 may apply.”). B ecause defendant made his challeng e t o th e denial of a § 3E1.1 reduction contingent upon the success of his challenge to the applicationof a § 3C1.1 enhancement and 22 United States v. Garrido-Santana No. 02-6076

bec ause that latter challenge, as discussed above, f ails, the former challenge likewise fa ils.

For the f oregoi ng reasons, we AFFI RM the denial of defendant’s suppression motion and his sentence.