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

of Nebraska, adopting the Report and Recommendation of David L. Piester, United

States Magistrate Judge for the District of Nebraska. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-4120

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United States of America,

Appellee,

v.

Amalia Grajeda,

Appellant.

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Appeal from the United States

District Court for the

District of Nebraska.

 [PUBLISHED]

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Submitted: May 15, 2007

Filed: August 16, 2007

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Before MURPHY, HANSEN, and COLLOTON, Circuit Judges. 

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HANSEN, Circuit Judge.

Following the district court's1

 denial of her motion to suppress the fruits of a

vehicle search, Amalia Grajeda entered a conditional plea of guilty to possessing with

intent to distribute 5 kilograms or more of cocaine or its isomers, in violation of 21
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U.S.C. § 841(a)(1) and (b)(1). The conditional plea preserved her right to appeal the

denial of her motion to suppress, and she now argues that suppression was warranted

because the search was tainted by a Fourth Amendment violation, which was not

cured by her consent. We affirm. 

Ms. Grajeda was a passenger in her white BMW X5 SUV, licensed in Nevada,

and her aunt, Maria Mendez, was driving as they traveled east on Interstate 80 in

February 2005. Nebraska State Patrol Trooper David Frye stopped them for a license

plate violation of Nevada law, an obstructed rear view mirror in violation of Nebraska

law, and driving over the white line. Trooper Frye approached the passenger side of

the vehicle and noticed an overwhelming scent of air freshener when Ms. Grajeda

rolled down the window. He obtained both of their drivers' licenses, the vehicle

registration, and the insurance documentation for the vehicle and asked Ms. Mendez

(the driver) to sit in the patrol car while he checked the documents. Ms. Grajeda

remained in the passenger seat of the BMW, but Trooper Frye noticed her at one point

hanging out the front window to look back at them and then moving all about in the

parked BMW while he was speaking with Mendez in the patrol car. He considered

her movements unusual and contacted another trooper for backup assistance.

Ms. Mendez and Ms. Grajeda each gave Trooper Frye slightly differing details

regarding their travels, and they were vague about their destination. Through

somewhat broken English, Ms. Mendez indicated that they were traveling to Iowa,

though she did not know the name of the town or city, to meet Ms. Grajeda's

boyfriend, who lived in Iowa, and that she would be returning home to Nevada on the

following Monday. Trooper Frye left Ms. Mendez in his patrol car and went to ask

Ms. Grajeda some questions from outside the BMW. Ms. Grajeda, who spoke English

well, told him they were going to Iowa to meet her boyfriend's family and that her

boyfriend, who lives in Las Vegas, would be flying to Iowa to join them at his family's

home, though she also did not know the name of the town or city. She said she
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planned to call for directions when they arrived in Iowa. She intended to stay in Iowa

for three weeks and said that Ms. Mendez was along for the ride. 

Trooper Frye then informed Ms. Grajeda that he was going to check the Vehicle

Identification Number (VIN) number on the dashboard and the door. He looked

through the front windshield on the driver's side to read the VIN located on the

dashboard. Then he opened the driver's side door to read the VIN on the door frame

or doorjamb, while continuing to converse with Ms. Grajeda who remained inside the

vehicle. Crouching by the driver's opened door to read the number, he saw that the

bolt securing the driver's seat "had a large amount of what appeared to be a recent

scarring," as if it had been marked up by a ratchet used to remove and reinstall the

seat. (Suppression Hrg. Tr. at 23.) Based on his training and experience, Trooper

Frye knew that there was an empty compartment under the front seat of this particular

vehicle model that is sometimes used to hide and transport illegal drugs. 

At the conclusion of the traffic stop, Trooper Frye contacted a Spanish

interpreter by telephone to speak to Ms. Mendez to ensure that she had understood

why he had stopped her and that he was issuing only a warning ticket. At the

completion of the traffic stop, she agreed to further questioning and consented to a

search of items she owned that were located inside the vehicle. Ms. Grajeda, the

vehicle's owner, also agreed to further inquiries. She denied possessing any illegal

drugs and consented, both orally and in writing, to a search of the vehicle. Trooper

Frye expressly informed Ms. Grajeda that she had the right to refuse consent. Ms.

Grajeda confirmed her understanding and signed the consent form. 

After beginning the search along the highway with another trooper, they

determined that it would be necessary to remove the seats, and they asked Ms. Grajeda

for permission to move the vehicle to a safer location at a nearby scale to complete the

search. She agreed to permit the vehicle to be moved. Trooper Frye again requested

and received consent before continuing the search with a drug dog. The dog alerted
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The federal indictment against Ms. Mendez was dismissed on the government's

motion on May 16, 2006. 

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to the presence of illegal drugs in the BMW, and packages containing suspected drugs

were discovered hidden in the compartment under the front seats. Both women were

arrested and charged in federal court.2

 

Ms. Grajeda moved to suppress the evidence seized from the vehicle, arguing

that Trooper Frye engaged in an illegal search by opening the door to the BMW to

view the VIN, when he in fact was interested in viewing the bolts holding the driver's

seat to the floor to see if they had been tampered with. She also argued that her

subsequent consent to search did not cure the violation. The district court, adopting

the report and recommendation of the magistrate judge, denied the motion concluding

that even if opening the door of the vehicle was an illegal search, the subsequent

voluntary consent purged any resulting taint. Ms. Grajeda appeals after entering a

conditional plea of guilty and receiving a sentence of 87 months of imprisonment. 

Ms. Grajeda acknowledges that a motorist has no reasonable expectation of

privacy in a vehicle's VIN, citing New York v. Class, 475 U.S. 106, 113-14 (1986)

(Appellant's Br. at 6), but asserts that once the officer obtained the VIN by viewing

it through the windshield, there was no legitimate reason for opening the door to view

the number on the door fame. See Class, 475 U.S. at 119 ("If the VIN is in the plain

view of someone outside the vehicle, there is no justification for governmental

intrusion into the passenger compartment to see it."); see also United States v. Caro,

248 F.3d 1240, 1247 (10th Cir. 2001) (holding there was no justification to search for

an additional VIN inside the vehicle when the dashboard VIN matched the vehicle

registration). She asserts that the videotape confirms Trooper Frye opened the door

only to look at the seat bolts, not the VIN, and that this was an unjustified intrusion.

She further argues that her subsequent consent to search did not cure that illegality.
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When reviewing a motion to suppress, we review the district court's factual

findings for clear error, and "[w]e will affirm the denial of a suppression motion

unless we find that the decision is unsupported by the evidence, based on an erroneous

view of the law, or the Court is left with a firm conviction that a mistake has been

made." United States v. Donnelly, 475 F.3d 946, 951 (8th Cir.) (internal quotation

marks omitted), cert. denied, 127 S. Ct. 2954 (June 11, 2007). Where the initial

search is invalid, the fruit of that unlawful search must be suppressed, Wong Sun v.

United States, 371 U.S. 471, 484 (1963), unless the evidence resulted from "an

intervening independent act of a free will," id. at 486. We agree with the district

court's conclusion that it is unnecessary to address whether the act of opening the door

to view the VIN amounted to an illegal search because even assuming a Fourth

Amendment violation, the subsequent search was validated by Ms. Grajeda's

intervening voluntary consent. See United States v. McGill, 125 F.3d 642, 644 (8th

Cir. 1997) (assuming a Fourth Amendment violation where the officer put his head

into the vehicle through an open window to view a VIN but concluding that the

subsequent consent validated the search), cert. denied, 522 U.S. 1141 (1998). 

To determine whether an intervening consent to search "is sufficiently an act

of free will to purge the primary taint" of a Fourth Amendment violation, id. (internal

quotation marks omitted), we must consider factors in addition to the voluntariness

inquiry, United States v. Becker, 333 F.3d 858, 861-62 (8th Cir. 2003). Even if

consent is voluntary, we must also consider whether the defendant gave consent "in

circumstances that render it an independent, lawful cause" of the discovery of

contraband. Id. This inquiry turns on whether Ms. Grajeda "understood [her] right

to withhold consent, the temporal proximity of [her] consent and the prior Fourth

Amendment violation, the presence of intervening circumstances, 'and, particularly,

the purpose and flagrancy of the official misconduct.'" McGill, 125 F.3d at 644

(quoting Brown v. Illinois, 422 U.S. 590, 604 (1975)); see also Becker, 333 F.3d at

862. 
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In this case, the request for consent to search followed closely but not

immediately after the alleged Fourth Amendment violation, as approximately 20

minutes passed between the time when Trooper Frye opened the BMW door and when

he first requested consent to search. Ms. Grajeda agreed to further questioning and

consented to the search of the vehicle, both orally and in writing. Trooper Frye again

asked for and obtained her consent to continue the search after they changed locations.

He told Ms. Grajeda that she did not have to consent, but she signed the consent form

and at no time attempted to interrupt the search or withdraw her consent. "Such an

intervening circumstance supports the voluntariness of appellant's consent indicating

that the trooper was not attempting to exploit an illegal situation." United States v.

Moreno, 280 F.3d 898, 901 (8th Cir. 2002). It is clear from the record, and Ms.

Grajeda does not argue otherwise, that she understood her right to withhold consent

and that her consent was not coerced. 

Ms. Grajeda argues that her uncoerced consent is outweighed by the flagrancy

of the Fourth Amendment violation because Trooper Frye already had obtained the

VIN through the windshield, and there was nothing suspicious about the identity of

the vehicle to warrant cross-checking the numbers. While we are assuming a Fourth

Amendment violation for purposes of this analysis, it is significant that we have never

held that it is illegal for an officer to cross-check a VIN in both locations on a vehicle,

and the Supreme Court has held that the VIN location on either the dashboard or the

doorjamb is not "subject to a reasonable expectation of privacy." Class, 475 U.S. at

118. 

Trooper Frye informed Ms. Grajeda that he would be checking both locations

of the VIN, and she did not object. He was investigating a minor traffic violation, and

his legitimate suspicions of possible drug transportation had been aroused by the

answers to his questions concerning their travel and by the strong scent of air

freshener coming from the vehicle. As he crouched outside of the vehicle to check the

VIN, he was in close proximity to the seat bolt, which was then in plain view from his
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position outside the vehicle. Trooper Frye "did not root about the interior" of the

vehicle, id., or move anything to gain a better view of the VIN or the seat bolt other

than simply opening the door. See id. (inferring in no uncertain terms that checking

the doorjamb for a VIN is not an intrusion into the interior of a vehicle); see also

United States v. Chavira, 467 F.3d 1286, 1289 n.1 (10th Cir. 2006) (stating that there

is a violation only when the officer has verified the VIN from outside the passenger

compartment but nevertheless physically enters the passenger compartment to check

the VIN; no violation "if the officer remains physically outside the car when he

examines the VIN"). There is no indication that Trooper Frye's view of the seat bolt

influenced Ms. Grajeda's consent in any way. Thus, we conclude that the assumed

violation was not flagrant. 

The totality of the circumstances indicate that Ms. Grajeda's consent was an act

of free will and an independent intervening cause of the discovery of contraband,

sufficient to cure the taint of any prior Fourth Amendment violation. 

Accordingly, we affirm the judgment of the district court. 

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