* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 12 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 00-3205 JAMES D. MORSE, JR., Defendant-Appellant. (D.C. No. 99-CR-10141-JTM) (D. Kan.)

ORDER AND JUDGMENT *

Before HENRY, BALDOCK, and BRISCOE , Circuit Judges.
James D. Morse, Jr., appeals the denial of his motion to suppres s evidence obtained as a result of a traffic stop and search of his vehicle. W e affirm.
I. On September 23, 1999, Morse's pickup was stopped after Kans as Highway Patrol Troopers John D. Rule and Richard Jimerson observed the pick up drift onto the shoulder of the highway twice within a quarter of a mile. It was mid-a fternoon, the pavement was dry, and there were no weather or traffic conditions apparent to cause-2-

the pickup to drift. As Rule approached Morse’s pickup, he detecte d the odor of fresh paint. Rule asked Morse if he was sleepy, and Morse responded, “Yeah, a little bit.” Record II at 28. Morse explained that he was returning to Virginia after a two-day vacation in Denver. Morse had a Virginia driver’s license, a bill of s ale for the pickup, and proof of insurance in the form of a letter. The bill of sale showe d that the pickup had been purchased on July 15, 1999, in Albuquerque. It w as insured by an agency in Albuquerque in the name of Anthony Pacheco, and Morse's nam e did not appear on the insurance letter. Three other vehicles were also listed on the letter as insured in the name of Pacheco. Rule checked Morse’s criminal history, and it wa s negative. Rule returned Morse’s documents and told him to have a good trip. Rule then immediately asked Morse if he would be willing to answer additional qu estions. In response to questioning, Morse told Rule he did not have anything illegal, and he did not have any guns, drugs, or large amounts of money. Rule a sked Morse if he could search the toolbox in the back of the pickup, and Morse agreed. Rule did not tell Morse that he was free to leave or that he did not have to consent to the search. Rule determined that the toolbox had a false compartment. Morse denied any knowledge of the compartment and he was arrested. After Morse was arrested, a drug-sniffing canine was brought to the pickup, and it alerted to the toolbox. A searc h of the pickup resulted in the discovery of forty pounds of marijuana in the toolbox and two kilograms of cocaine in a spare tire.-3-

On November 5, 1999, Morse was indicted for one count of poss ession of cocaine with intent to distribute and one count of possession of marijuana with intent to distribute. See 21 U.S.C. § 841(a)(1). Morse filed a motion to suppress, arguing that the stop, search, and seizure of his pickup and person we re illegal. Following a hearing, the district court denied the motion to suppress. Morse ente red a conditional plea of guilty and was sentenced to two concurrent terms of sixty m onths.
II. In reviewing the district court's denial of a motion to suppress, we c onsider the totality of the circumstances and view the evidence in the light most favorable to the government. United States v. Long , 176 F.3d 1304, 1307 (10th Cir.) (citations omitted), cert. denied , 528 U.S. 921 (1999). “We accept the district court's factual findings unless those findings are clearly erroneous. The credibility o f witnesses, the weight to be given evidence, and the reasonable inferences drawn from the evidence fall within the province of the district court.” Id. (citations omitted). “Keeping in mind that the burden is on the defendant to prove that the challeng ed seizure was illegal under the Fourth Amendment, the ultimate determination of reason ableness under the Fourth Amendment is a question of law reviewable de no vo.” Id. (citations omitted).
III. Morse argues that the district court should have granted his motion to suppress-4-

because (1) the initial stop was unjustified and pretextual; (2) Rule improp erly detained Morse after the traffic stop had ended; and (3) Rule lacked probable cause to arrest
Morse. Initial Traffic Stop “A traffic stop constitutes a seizure under the Fourth Amendment.” United States v. Villa-Chaparro , 115 F.3d 797, 801 (10th Cir. 1997). “[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or e quipment violation has occurred or is occurring.” United States v. Botero-Ospin a , 71 F.3d 783, 787 (10th Cir. 1995) (en banc). The government argues that the stop was justified because the office rs had probable cause to believe that Morse driving his pickup onto the sh oulder twice within a quarter of a mile violated Kan. Stat. Ann. § 8-1522, which prov ides: Whenever any roadway has been divided into two (2) or more clearly marked lanes for traffic, the following rules in addition to all others consistent herewith shall apply. (a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until th e driver has first ascertained that such movement can be made with s afety. Morse’s failure to drive his pickup within his single lane created probab le cause that he was in violation of section 8-1522. This court reached a similar con clusion in United States v. Ozbirn , 189 F.3d 1194, 1198 (10th Cir. 1999) (holding officer had probable-5-

cause to stop defendant after seeing his vehicle drift onto the shou lder twice within a quarter mile under optimal road, weather, and traffic conditions). Morse argues that the traffic stop was pretextual. However, it is irrelevant whether an officer has other subjective reasons for stopping the veh icle. BoteroOspina , 71 F.3d at 787. “Our sole inquiry is whether this particular office r had reasonable suspicion that this particular motorist violated ‘any one of th e multitude of applicable traffic and equipment regulations’ of the jurisdiction.” Id. (quoting Del. v.
Prouse , 440 U.S. 648, 661 (1979)). Rule had such reasonable sus picion. Detention After Traffic Stop Ended Generally a police officer's actions during a detention must be “reas onably related in scope” to the circumstances which justified the initial stop. Terry v. Ohio , 392 U.S. 1, 20 (1968). An investigative detention usually must last no longer than necessary to effectuate the purpose of the stop. United States v. Lee , 73 F.3d 1034, 1038 (10th Cir. 1996). An officer conducting a routine traffic stop may request a driver’s licens e and vehicle registration, run a computer check, and issue a citatio n. When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. United States v. McRae , 81 F.3d 1528, 1534 (10th Cir. 1996) (quoting United States v. Gonzalez-Lerma , 14 F.3d 1479, 1483 (10th Cir. 1994)). Morse argues that Rule extended the detention beyond the length of time needed1 The government also argues that Rule was justified in detaining Morse

because Rule had reasonable suspicion of criminal activity. Becaus e we conclude that Morse consented, we need not reach the reasonable suspicion is sue. -6- for the traffic stop by questioning him and searching the toolbox. Th e government argues that after Rule returned Morse’s documents, he engaged Morse in consensual questioning. 1 The government bears the burden of establishing that consent wa s freely and voluntarily given. See Schneckloth v. Bustamonte , 412 U.S. 218, 229 (1973). Whether consent has been given is a question of fact and is de termined from the totality of all of the circumstances. United States v. Mendenhall , 446 U.S. 544, 557 (1980). First, the government must proffer clear and positive testimonythat the consent was unequivocal and specific, and freely and intelligently given. United States
v. McRae , 81 F.3d 1528, 1537 (10th Cir. 1996). Second, the govern ment must establish that consent was given without duress or coercion. Id. We must determine whether “the police conduct would have communicated to a reaso nable person that the person was not free to decline the officers’ requests or otherwise termin ate the encounter.” Fla. v. Bostick , 501 U.S. 429, 439 (1991). To determine whether Morse's consent was unequivocal and specific , and freely and intelligently given, we examine the facts that led to the alleged consent. Morse's pickup was pulled over for a legal traffic stop. Rule questioned Morse about his sleepiness and travel plans. Rule examined Morse’s documents, c hecked his criminal history, and returned the documents to Morse. Rule told Morse to hav e a good trip and-7-

then immediately asked Morse if he was willing to answer additional qu estions. Morse answered the additional questions. Rule asked if he could condu ct a search, and Morse agreed. The first requirement is met. The testimony established that Mo rse’s consent was unequivocal and specific. He implicitly agreed to additional qu estioning when he answered the additional questions. Morse verbally agreed to the se arch of the toolbox. There is no indication that Morse’s consent was not intelligent. Morse u nderstood what Rule asked and responded appropriately. Under the totality of the circumstances, Morse’s consent was voluntarily given. Rule returned Morse's docume nts and told him to have a good trip, both of which suggest that Morse was free to go. Rule asked if Morse would be willing to answer more questions, implying that Morse w as entitled to decline. Rule did not explicitly tell Morse that he was free to go or that he coulddecline to consent to the questioning or search. See United States v. McSwain , 29 F.3d 558, 563 (10th Cir. 1994) (holding consent not voluntary in part because defendant not told he was free to go or could refuse to consent). However, an offic er is not required to inform a detainee that he or she is free to leave in order to render th e encounter that follows consensual. See United States v. Patten , 183 F.3d 1190, 1194 (10th Cir. 1999). The Supreme Court has noted that “[w]hile knowledge of the right to refuse consent is one factor to be taken into account, the government n eed not establish such knowledge as the sine qua non of an effective consent.” Schneckloth , 412 U.S. at 227.-8-

It would be “unrealistic to require police officers to always inform detaine es that they are free to go before a consent to search may be deemed voluntary.” Ohio v. Robinette , 519 U.S. 33, 39-40 (1996). The second requirement the government must satisfy is to establish th at the consent was given without duress or coercion. In determining whether a consent to search was free from coercion, a court should consider, inter alia, physical mistreatment, use of violen ce, threats, threats of violence, promises or inducements, deception or trickery, and the physical and mental condition and capacity of the defendant within the totality of the circumstances. An officer’s request for consent to search does not taint an otherwise consensual enc ounter as long as the police do not convey a message that compliance w ith their request is required. United States v. Pena , 143 F.3d 1363, 1367 (10th Cir. 1998) (internal citations omitted). There is no evidence of coercion or duress. There was no testimony that Rule threatened Morse, used a hostile tone of voice, touched Morse, tricked Morse, called for backup officers, or displayed his gun. See United States v. Hernandez , 93 F.3d 1493, 1499 (10th Cir. 1996) (finding consent voluntary and n oting there was no evidence that officer used commanding or threatening manner or tone of voice, displayed a gun, or touched the defendant). Morse argues that United States v. Gregory , 79 F.3d 973 (10th Cir. 1996), supports his contention that he did not consent to continued ques tioning. In Gregory , the driver was stopped because he crossed onto the emergencylane. We concluded2Morse also argues that United States v. Lee , 73 F.3d 1034 (10th Cir. 1996), is

analogous. In Lee we held that the driver did not voluntarily consent to the questioning or search of the vehicle because the police had not returned the driver’s documents to him. Because Rule returned Morse’s documents to him before the questioning, Lee is also inapposite. -9- that the stop was illegal because high winds would have affected the driver's ability to maintain his vehicle within the driving lane. We then considered wh ether the driver had voluntarily consented to answer further police questions. We c oncluded that the consent was not voluntary because it was in close temporal proxim ity to the illegal stop. In analyzing the voluntariness of the consent, we did not apply the “totality of the circumstances” test, but rather the higher standard of requiring the government to show that “the primary taint of the illegal stop was purged.” Id. at 979. Because the traffic stop in the present case was not illegal, we apply a different s tandard than that used in Gregory , and Gregoryis inapposite. 2 Morse argues that Rule testified he would not have permitted Morse to leave if Morse had not consented to the questioning and search. Howev er, Rule’s subjective intent is irrelevant as long as it was not communicated to Morse. The issue is whether a reasonable person in Morse’s position would have felt free to leave . Rule’s unexpressed intention to keep Morse there is not relevant to that issu e. Probable Cause to Arrest Probable cause exists where the facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable-10-

caution in the belief that an offense has been or is being committed

. Although it is not necessary that the officer possess knowledge of facts sufficient to establish guilt, mere suspicion is insufficient to establish probable cause. We recognize that probable cause must be eva luated in light of circumstances as they would have appeared to a prudent, cautious, trained police officer. United States v. Maher , 919 F.2d 1482, 1485 (10th Cir. 1990) (citations omitted). In response to questioning, Morse told Rule he did not have anythin g illegal in the pickup, and did not have any guns, drugs, or large amou nts of money. Rule sought and received permission from Morse to search the toolbox and Rule d iscerned that the toolbox had a false compartment. At that point, Rule arrested Morse. We have previously held that the apparent existence of a hidden compartment likely to contain contraband is sufficient to create probable cause to arrest a defendant.
SeeUnited States v. Soto , 988 F.2d 1548, 1558 (10th Cir. 1993). Morse argues that most hidden compartment cases deal with reasonable suspicion an d are, therefore, inapplicable. However, in at least two cases, a hidden compartm ent created probable
cause to arrest. See Soto , 988 F.2d at 1558; United States v. Arango , 912 F.2d 441, 447 (10th Cir. 1990). Morse argues that in cases where officers noted the potential for a hid den compartment, additional factors were also considered in determining wh ether there was probable cause to arrest. He ignores the other factors that caused Rule to be suspicious of Morse: Morse’s nervousness, Morse's travel plans, the odor of fres h paint, the-11-

recent purchase of the pickup, and insurance on the pickup bya third party. Those factors in combination with the hidden compartment created probable c ause to arrest. Similarly, in Soto , after noting “what the officer observed in his search of the trunk and passenger compartment at the scene of the stop,” we affirmed the district court's probable cause determination, which was based solely upon the presence of a false compartment likely to contain contraband. 988 F.2d at 1558. Morse argues there are potentially innocent explanations for having a false bottom in a toolbox. However, the standard “is not whether the c ompartment could be used for legitimate purposes.” Utah v. Poole , 871 P.2d 531, 535 (Utah 1994). “[T]he mere possibility of innocent explanations would not suffice to diminish the reasonable likelihood of illegality appearing, from the circumstances, to prudent me n possessing the knowledge and experience of the officers.” Id. (internal citation omitted)). Even if we determined that Rule did not have probable cause to arres t Morse, we would affirm based on the inevitable discovery doctrine. “Unde r the inevitable discovery exception, unlawfully seized evidence is admissible if the re is no doubt that the police would have lawfully discovered the evidence later.” Un ited States v.
Romero , 692 F.2d 699, 704 (10th Cir. 1982). At the time that Morse wa s arrested, he had already consented to the search of the toolbox. Within minute s of Morse’s arrest, a drug-sniffing canine alerted to the toolbox. See United States v. Bell , 892 F.2d 959, 968 (10th Cir. 1989) (finding canine alerting creates probable cause to arrest). Thus,-12-

even if Morse’s arrest was premature, the discovery of evidence creating probable cause to arrest was inevitable. See Romero , 692 F.2d at 704 (noting the inevitable discovery exception is particularly justified where “the evidence clearlywould have been discovered within a short time through a lawful investigation alrea dy underway”). The inevitability of the discovery of evidence creating probable cause to arrest Morse renders Morse’s arrest valid.
AFFIRMED. Entered for the Court Mary Beck Briscoe Circuit Judge