United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 08-3898

___________

United States of America, *

*

Appellee, *

*

v. * 

* 

Jese Hernandez-Mendoza, * 

*

Appellant. *

___________ Appeals from the United States

District Court for the

No. 08-3899 District of South Dakota.

___________

United States of America, *

*

Appellee, *

*

v. *

*

Eddie Martinez, *

*

Appellant. * 

___________

Submitted: October 21, 2009

Filed: April 6, 2010

Amended: July 7, 2010

___________

Before COLLOTON, BEAM, and BENTON, Circuit Judges.
1

The Honorable Karen E. Schreier, Chief Judge, United States District Court

for the District of South Dakota.

-2-

___________

COLLOTON, Circuit Judge.

Jese Hernandez-Mendoza and Eddie Martinez appeal from a judgment of

conviction for one count of conspiracy to distribute methamphetamine, one count of

possession with intent to distribute methamphetamine, and one count of possession

with intent to distribute cocaine. The district court1

 denied the appellants’ motions for

judgment of acquittal and sentenced each to 121 months’ imprisonment and five years

of supervised release. We affirm. 

I.

On February 29, 2008, Hernandez-Mendoza and Martinez were traveling east

on Interstate 90 through Wyoming when Wyoming Highway Patrol Trooper Tim

Boumeister stopped their vehicle for speeding. After Boumeister issued a warning

citation to Hernandez-Mendoza, the driver, the trooper obtained HernandezMendoza’s consent to ask additional questions and search the vehicle. Boumeister

also called Captain Jeffrey Hodge, a deputy sheriff with the Crook County, Wyoming,

Sheriff’s Office to request his assistance in performing a canine sniff of the vehicle.

Hodge arrived on the scene and obtained consent from Hernandez–Mendoza for

a drug dog to enter the vehicle. The dog alerted to the presence of drugs in the area

near the dashboard. Boumeister and Hodge then searched the vehicle on the roadside

for approximately one hour, but found no drugs. Law enforcement officers then took

the vehicle to a Wyoming Highway Patrol garage for further examination.

Approximately three hours after the initial stop, having located no drugs hidden in the
-3-

vehicle, a Wyoming Highway Patrol Lieutenant concluded that there were no drugs

to be found, and ordered the vehicle released.

Hodge disagreed with the Lieutenant’s decision and contacted South Dakota

Highway Patrol Trooper Brian Swets. Hodge described the vehicle and told Swets

that the drug dog had alerted to the vehicle. He also cited several factors about the

vehicle that led Hodge to believe that the travelers were involved in illegal activity.

Hodge notified Swets that the vehicle was heading east on Interstate 90 toward South

Dakota.

Swets later spotted the appellants’ vehicle and stopped it for speeding. During

the stop, Swets deployed his drug dog, and the dog alerted between the front and rear

passenger side doors. Swets then began to search the vehicle. In the rear hatchback

area, he noticed non-factory carpet, a shallow storage compartment, and loose trim.

After removing the trim, Swets was able to shine his flashlight through holes in the

storage compartment, and he saw several food storage containers hidden below the

metal floor of the compartment. Law enforcement officers seized the containers and

found methamphetamine and cocaine therein.

Trooper Nicholas Allen then arrived on the scene to transport the appellants to

the South Dakota Highway Patrol Office. Unbeknownst to the appellants, Allen’s

video recorder was recording the entire time they were in Allen’s vehicle. At one

point, Allen left the vehicle, and the equipment recorded a conversation in Spanish

between Hernandez-Mendoza and Martinez. 

Once the appellants arrived at the patrol office, Agent Chad Evans of the South

Dakota Division of Criminal Investigation administered to Martinez the warnings

based on Miranda v. Arizona, 384 U.S. 436 (1966), obtained a waiver of rights, and

questioned Martinez. Martinez made incriminating statements.
-4-

After the grand jury returned an indictment, both appellants moved to suppress

physical evidence seized as a result of Trooper Swets’s search and statements recorded

in Trooper Allen’s vehicle. Martinez also moved to suppress his statements to Agent

Evans. After a hearing, a magistrate judge recommended that the physical evidence

found in the appellants’ vehicle should be suppressed, but that the recorded

conversation in the back of Trooper Allen’s vehicle and Martinez’s statements to

Agent Evans should be admissible. On de novo review, the district court rejected the

recommendation to suppress the physical evidence, and denied the relevant portions

of the motions to suppress.

A jury found the appellants guilty on all three counts of the indictment. As

relevant to this appeal, the district court overruled appellants’ objection to a final jury

instruction on deliberate ignorance. The court also denied the appellants’ motions for

judgment of acquittal, ruling that the evidence was sufficient to support the verdicts.

II.

Appellants argue that the district court erred in denying their motions to

suppress physical evidence obtained as the result of Trooper Swets’s search of the

vehicle. Martinez also contends that the district court erred in denying his motion to

suppress the conversation recorded in the back of Trooper Allen’s car and his

statements to Agent Evans. We review the district court’s factual findings for clear

error, and we review de novo the district court’s legal conclusions on a motion to

suppress. United States v. McGlothen, 556 F.3d 698, 701 (8th Cir. 2009).

A.

Appellants first contend that although the South Dakota traffic stop for speeding

was lawful at its inception, the seizure later became unreasonable, in violation of the

Fourth Amendment, because Trooper Swets did not have reasonable suspicion to
-5-

investigate drug trafficking activity. A lawful traffic stop “can become unlawful if it

is prolonged beyond the time reasonably required to complete” the mission of the

stop. Illinois v. Caballes, 543 U.S. 405, 407 (2005). Appellants argue that this

seizure was unreasonably prolonged.

After a valid traffic stop, an “officer may detain the offending motorist while

the officer completes a number of routine but somewhat time-consuming tasks related

to the traffic violation.” United States v. $404,905.00 in U.S. Currency, 182 F.3d 643,

647 (8th Cir. 1999). If an officer develops reasonable suspicion of the existence of

other criminal activity during the stop, then “the officer may expand the scope of the

encounter to address that suspicion.” United States v. Peralez, 526 F.3d 1115, 1120

(8th Cir. 2008). If an officer develops probable cause that contraband may be found

in the vehicle, then it is reasonable for the officer to search the vehicle without a

warrant. United States v. Donnelly, 475 F.3d 946, 954 (8th Cir. 2007). 

We conclude that Trooper Swets did not violate the Fourth Amendment rights

of the appellants by extending the traffic stop to search the vehicle, because he had

probable cause to believe there was contraband in the vehicle. But for the Wyoming

traffic stop earlier in the day, this would be a simple case. Swets was accompanied

at the scene by a drug dog, and his deployment of the dog to sniff the exterior of the

vehicle, only six minutes into the encounter, did not impermissibly expand the scope

of the traffic stop. See Caballes, 543 U.S. at 409; United States v. Rivera, 570 F.3d

1009, 1014 (8th Cir. 2009). If the traffic stop by Swets had been the first encounter

between appellants and law enforcement on that day, then there would be no doubt

that the dog’s alert established sufficient probable cause to justify a search for

contraband in the vehicle. Rivera, 570 F.3d at 1012.

Appellants contend, however, that the information from which Trooper Swets

discerned probable cause is the same information that prompted the fruitless search

of their vehicle in Wyoming. They argue that Swets’s dog alert simply replicated the
-6-

dog alert in Wyoming, and that Swets’s other information was conveyed to him by

Captain Hodge in Wyoming based on the investigation at the earlier traffic stop.

Appellants urge that when officers searched the vehicle for nearly three hours in

Wyoming without finding drugs, the probable cause to search dissipated, such that

Swets could not renew the search based on essentially identical information. See

United States v. Watts, 7 F.3d 122, 126 (8th Cir. 1993) (“[A]n investigative stop must

cease once reasonable suspicion or probable cause dissipates.”).

The government responds that Trooper Swets developed new information that

established probable cause independent of the information gathered in Wyoming, but

we deem it unnecessary to resolve that point. Even if we accept that Swets acted

based in part on pre-existing probable cause developed in Wyoming, the search was

not unreasonable. 

The stop by Trooper Swets was based on a traffic violation, so we need not be

concerned with whether the probable cause from Wyoming would justify a second

seizure. Cf. United States v. Garcia, 23 F.3d 1331, 1334-35 & n.2 (8th Cir. 1994);

United States v. Peters, 10 F.3d 1517, 1522-23 (10th Cir. 1993). The seizure here was

reasonable, and we must consider whether Swets had probable cause to search despite

the previous investigation. That a law enforcement supervisor in Wyoming

determined to cease searching and to release the vehicle is not dispositive, for whether

probable cause exists is a question of law to be determined objectively. See Whren

v. United States, 517 U.S. 806, 812-13 (1996). The Wyoming lieutenant decided that

the vehicle did not contain drugs; Captain Hodge disagreed. The lieutenant outranked

Hodge, but law enforcement’s pecking order does not make the supervisor’s

subjective opinion controlling under the Fourth Amendment. In South Dakota,

Trooper Swets observed the hidden compartment and food storage containers after

about ten minutes of searching the vehicle. If there had been probable cause to search

for another ten minutes in Wyoming before the vehicle was released, then there was
-7-

probable cause for Swets to search for ten minutes in South Dakota based on the same

pre-existing probable cause. 

It is well established, and well known, that drug traffickers have developed

sophisticated means to secrete contraband in vehicles. See United States v. OliveraMendez, 484 F.3d 505, 508, 512 (8th Cir. 2007); The French Connection (20th

Century Fox 1971). “If probable cause justifies the search of a lawfully stopped

vehicle, it justifies the search of every part of the vehicle and its contents that may

conceal the object of the search.” United States v. Ross, 456 U.S. 798, 825 (1982).

Probable cause to search a vehicle does not dissipate simply because it takes a long

time to complete a reasonable and thorough search. Olivera-Mendez, 484 F.3d at 512.

It took police six hours to find a hidden compartment containing cocaine in OliveraMendez, and that search was reasonable. Id. at 512-13. Here, the officers in

Wyoming searched for fewer than three hours and gave up. Their search did not

uncover the area under the non-factory carpet and below the storage compartment in

the rear of the vehicle, where Swets eventually discovered the contraband. If the

Wyoming lieutenant had been more persistent, and authorized Hodge to continue

searching for another ten minutes, we see no basis to conclude that a search of this

carpeted area would have been impermissible. Likewise, for Trooper Swets to search

areas in the vehicle that could conceal contraband, and that had not been exhausted

during the discontinued investigation in Wyoming, was not unreasonable.

B.

Martinez also appeals the district court’s denial of his motion to suppress

statements that he made during a recorded conversation with Hernandez-Mendoza in

Trooper Allen’s car, as well as statements to Agent Evans, which he contends were

fruit of an allegedly poisonous tree. Martinez argues that Allen’s activation of the

recording device was the functional equivalent of custodial interrogation, and that his

statements should be suppressed, because Allen did not administer Miranda warnings
-8-

before the conversation was recorded. Interrogation occurs when a law enforcement

officer engages in “either express questioning or its functional equivalent,” which

includes “any words or actions on the part of the police (other than those normally

attendant to arrest and custody) that the police should know are reasonably likely to

elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S.

291, 300-01 (1980) (footnote omitted). “Voluntary statements not in response to an

interrogation,” however, “are admissible with or without Miranda warnings.”

McGlothen, 556 F.3d at 701. 

Trooper Allen’s act of leaving the appellants alone in his vehicle, with a

recording device activated, was not the functional equivalent of express questioning.

Allen may have expected that the two men would talk to each other if left alone, but

an expectation of voluntary statements does not amount to deliberate elicitation of an

incriminating response. “Officers do not interrogate a suspect simply by hoping that

he will incriminate himself.” Arizona v. Mauro, 481 U.S. 520, 529 (1987). Allen did

not question the suspects or engage in psychological ploys of the sort characterized

as interrogation by the Supreme Court in Innis. See 446 U.S. at 299. He had

legitimate security reasons for recording the sights and sounds within his vehicle, see

Mauro, 481 U.S. at 528, and the appellants had no reasonable expectation of privacy

in a marked patrol car, which is “owned and operated by the state for the express

purpose of ferreting out crime.” United States v. Clark, 22 F.3d 799, 801 (8th Cir.

1994). The requirements of Miranda, including warnings before custodial

interrogation, “were designed to vest a suspect in custody with an added measure of

protection against coercive police practices.” Innis, 446 U.S. at 301. From the

perspective of the appellants, we see nothing so coercive about the trooper’s simple

act of leaving them alone in the patrol car that would justify characterizing Allen’s

behavior as interrogation. The district court properly declined to suppress the

recorded statements and the subsequent admissions to Agent Evans.
-9-

III.

Both appellants argue that the district court erred in denying their motions for

judgment of acquittal. We review the district court’s decision de novo, and we reverse

only if no reasonable jury could have found proof of guilt beyond a reasonable doubt.

United States v. Rush-Richardson, 574 F.3d 906, 909 (8th Cir. 2009). Appellants

assert that the evidence was insufficient to establish the knowledge elements of the

charged offenses – i.e., that they knowingly entered into an agreement to distribute

narcotics, and that they knowingly possessed cocaine and methamphetamine. 

We agree with the district court that the circumstantial evidence was sufficient

to support the jury’s findings of knowledge. The vehicle in which the appellants were

traveling contained drugs with a street value of at least $80,000, and it is reasonable

to infer that a third party was unlikely to entrust a vehicle with such valuable

merchandise to unwitting couriers. Law enforcement located four cell phones in the

vehicle, and the government presented testimony that drug traffickers typically carry

multiple cell phones to allow for the disposal of one or more, if necessary to avoid

detection. There were two screwdrivers in plain view in the vehicle (one flat head and

one Phillips), and Trooper Swets was able to access the hidden compartment using

those tools. There was a tube of epoxy in the glove box, near the warning citation

issued to Hernandez-Mendoza in Wyoming, and the screws that fastened the hidden

compartment were inserted with epoxy.

There were good reasons for the jury to reject the exculpatory explanation

offered by the appellants after the traffic stop. Although supposedly visiting

Hernandez-Mendoza’s aunt in Fairfield, Iowa, for a week, the appellants were

traveling with only one small duffle bag, and written driving directions found in the

glove box did not correspond to an aunt in Fairfield. 
2

The transcript of the audio recording does not identify the speakers by name.

-10-

The appellants also made statements that the jury was entitled to use to infer

knowledge. In the recorded conversation in Trooper Allen’s car, the appellants

appeared to express no shock or outrage upon learning that illegal drugs were found

in the vehicle. When the two men were first left alone in the vehicle, one remarked

that “they purchased that car at an auction; that’s all, they purchased it at an auction.”

Immediately thereafter, the two engaged in this brief colloquy:

MV#5: And, what is your aunt’s name?

MV#4: Mh, which one?

MV#5: The one we were going to, the one we were going to go and

 see.

MV#5: Carolina.

(Exh. 7, at 3).2

 The jury reasonably could interpret these statements as an effort by the

appellants to develop an exculpatory explanation for how drugs came to be located in

the car without their knowledge, and an innocent explanation for their travel. One of

the appellants later said to the other that “[w]e should have stayed back there and sleep

[sic], and then drive during the night,” a statement that a jury could take to mean that

nighttime travel with narcotics was more likely to avoid detection. (Ex. 7, at 4).

When asked about marijuana, cocaine, and heroin, Martinez audibly answered,

looked at Trooper Swets, and shook his head no, but when Swets asked about

methamphetamine, Martinez looked down and away from the trooper, and shook his

head no. Similarly, Hernandez-Mendoza gave a relaxed negative answer to questions

about marijuana and cocaine asked by Trooper Boumeister, but he became tense and

declined to look at the trooper when denying knowledge of methamphetamine. A jury

reasonably could infer that these responses indicated consciousness of guilt by the

appellants about carrying methamphetamine. 
-11-

We are not convinced that the decisions in United States v. Mendoza-Larios,

416 F.3d 872 (8th Cir. 2005), United States v. Fitz, 317 F.3d 878 (8th Cir. 2003), and

United States v. Pace, 922 F.2d 451 (8th Cir. 1990), require reversal. Each of these

decisions is fact-intensive, and subtle differences in evidence are sufficient to justify

a different outcome. In Mendoza-Larios, for example, this court held that there was

insufficient evidence to prove knowledge of a hidden compartment, but the defendants

in that case did not have tools necessary to access and conceal the hidden

compartment, nor were the statements of the defendants as probative of knowledge as

are the admissions and inconsistencies in this case. In Pace and Fitz, one or more

occupants of the seized vehicle admitted knowledge of the drugs, and this court held

there was insufficient evidence to establish that another occupant was also privy to the

drug trafficking. Here, Hernandez-Mendoza and Martinez both denied knowledge of

the contraband, and they suggest a reasonable jury could believe only that a third party

left $80,000 in illegal drugs unattended with the appellants. The district court

properly distinguished these precedents, and we affirm the decision to deny the

motions for judgment of acquittal. 

IV.

Finally, Hernandez-Mendoza argues that the district court erred by instructing

the jury on “deliberate ignorance.” The district court issued this instruction:

You may find that a defendant acted knowingly if you find beyond a

reasonable doubt that the defendant was aware of a high probability that

he was in possession of a controlled substance and that he deliberately

avoided learning the truth. The element of knowledge may be inferred

if a defendant deliberately closed his eyes to what would otherwise have

been obvious. You may not find a defendant acted “knowingly” if you

find he was merely negligent, careless, or mistaken as to whether drugs

were contained in the vehicle in which he was traveling. 
-12-

(Final Instructions to the Jury, R. Doc. 128, at 18). We review a district court’s

decision to give a jury instruction for abuse of discretion, United States v. Lewis, 557

F.3d 601, 613 (8th Cir. 2009), and an error in the instructions may be harmless. See

United States v. Raether, 82 F.3d 192, 194 (8th Cir. 1996).

A deliberate ignorance instruction is appropriate when the evidence is sufficient

to support a jury’s conclusion that “the defendants had either actual knowledge of the

illegal activity or deliberately failed to inquire about it before taking action to support

the activity.” United States v. Whitehill, 532 F.3d 746, 751 (8th Cir. 2008).

Defendants act with deliberate ignorance if they “were presented with facts putting

them on notice criminal activity was particularly likely and yet intentionally failed to

investigate.” Id. A deliberate ignorance instruction should not be given, however,

“[i]f the evidence in a case points solely to either actual knowledge or no knowledge

of the facts in question.” United States v. Hiland, 909 F.2d 1114, 1130 (8th Cir.

1990). When reviewing whether the evidence was sufficient to support a deliberate

ignorance instruction, we consider “the evidence and any reasonable inference from

that evidence in the light most favorable to the government.” Id. at 1131.

We have doubt about whether the instruction was properly given in this case.

The government asserts that the deliberate ignorance instruction was appropriate

because if it is assumed that the appellants lacked actual knowledge of the drugs,

several pieces of information – a drug dog alert in Wyoming and modifications to the

interior of the vehicle – put them on notice of likely criminal activity before they

traveled to South Dakota. The difficulty with holding the appellants accountable for

failing to inquire into these suspicious facts, however, is that the appellants also knew

that law enforcement in Wyoming had undertaken a fruitless search for drugs. Could

it reasonably be said that appellants “failed to investigate” a suspicion of illegal drugs

in the vehicle when they consented to allow law enforcement officers to conduct a

three-hour search of the vehicle? The government also contends that the appellants

should have been on notice of illegal drugs in the vehicle, because their luggage was
-13-

not consistent with their purported travel plans. This contention seems to confuse

deliberate ignorance with actual knowledge; appellants’ suspicious story and meager

luggage was evidence of the latter but not the former.

Nonetheless, we conclude that any error in giving the deliberate indifference

instruction was harmless. There was sufficient evidence to convict appellants based

on actual knowledge of the illegal drugs, and we assume that the jury relied on that

theory, rather than an unlikely theory of deliberate ignorance. As the Supreme Court

explained in Griffin v. United States, 502 U.S. 46, 59-60 (1991), jurors are well

equipped, based on their own intelligence and expertise, to analyze the evidence, so

there is reason to think that a jury would rely on a factually adequate theory rather

than a factually inadequate one. The government’s theory that appellants actually

knew of the illegal drugs was factually adequate. We are confident that any error in

charging the jury on the alternate theory of deliberate ignorance was harmless beyond

a reasonable doubt.

* * *

The judgment of the district court is affirmed.

______________________________