* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This 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 

### DEC 21 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LATONIA EDNA BENSON, Defendant - Appellant. No. 97-3354 (D.C. No. 97-10051-MLB) (District of Kansas)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY and LUCERO , Circuit Judges.

Latonia Benson appeals her conviction and sentencin g for conspiracy to distribute marijuana and methamphetamine, and posse ssion with intent to distribute. She challenges the denial of a motion to suppress marijuana and methamphetamine seized by the police. She also cla ims entitlement to a sentence reduction as a minor participant in the drug conspi racy. We exercise jurisdiction-2-

pursuant to 28 U.S.C. § 1291, and summarily affirm the district court’s disposition of these arguments.
I Benson was indicted for conspiracy to distribute marijuana and methamphetamine in violation of 21 U.S.C. §§ 841(a) (1), 846; possession of 267 grams of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and possession of 41 p ounds of marijuana with intent to distribute in violation of 21 U.S.C. § 84 1(a)(1) and 18 U.S.C. § 2. After unsuccessfully moving to suppress drug and firearm evidence allegedly obtained in violation of her Fourth Amendment rights, she wa s convicted on all counts and sentenced to 151 months imprisonment. She now chal lenges the denial of her motion to suppress on two grounds: first, that her detention following a traffic stop by Trooper Scott Mayfield was unreasonable; se cond, that her consent to a search of the vehicle she was driving at the time w as obtained by coercion. In addition, she argues that the district court erred in its refusal to reduce her sentence on the grounds that she was no more than aminor participant in a drugtrafficking scheme. We consider, and reject, these arguments.
II After witnessing Benson’s attempt an illegal U-turnon an interstate highway in Wichita, Trooper Mayfield stopped her ca r. Although Benson did-3-

provide her name, address, and Oklahoma driver’s li cense number, she was neither able to produce a driver’s license or valid identification, nor explain the purpose of her trip. When Mayfield asked Benson’s passenger, Steven B. Speal, for his license, he provided an Illinois license th at identified him as Chris McMillan, and informed the trooper they were in Wic hita visiting a friend. A subsequent computer check revealed a valid licens e for Latonia Benson, but Mayfield was unsure as to whether Benson had co rrectly identified herself. In addition, the trooper found no record of an Illinoi s license issued to Chris McMillan. The computer check also revealed that th e car was registered not to John Benson, whom Benson claimed owned the car, butto one Joe Paddock. When Trooper Mike Geer arrived to provide assistanc e, Benson gave Geer a different explanation for the trip—that she and Spe al had come to Wichita to shop, visit Silver Dollar City (a seven hour drive from Wichita), and possibly visit a friend. Mayfield then issued Benson a ticket and asked perm ission to search the car. Contemporaneously, Geer learned that Speal ha d lied about his identity, possessed a lengthy criminal record, and had recent ly been released from jail. Benson ultimately agreed to a vehicle search, durin g which Mayfield discovered several guns and two garbage bags filled with marij uana. A subsequent inventory search also revealed methamphetamine.-4- A “On appeal from the denial of a motion to suppress, we accept the factual findings of the district court unless they are clea rly erroneous,” United States v.
Soto-Cervantes , 138 F.3d 1319, 1322 (10th Cir. 1998), and review the evidence in the light most favorable to the government. See United States v. Lambert , 46 F.3d 1064, 1067 (10th Cir. 1995) (citation omitted). Wh en a defendant challenges a warrantless search or seizure, the government bears the burden of proving the validity of an officer’s actions. See United States v. Finefrock , 668 F.2d 1168, 1170 (10th Cir. 1982) (citing Chimel v. California , 395 U.S. 752, 762 (1969)). As an initial matter, we conclude that Benson has e stablished standing to challenge the traffic stop and detention. A driverhas standing to challenge a vehicle search if she establishes lawful possessionof the vehicle. See United
States v. Soto , 988 F.2d 1548, 1552 (10th Cir. 1993). The distri ct court found that “Benson’s Fed. R. Evid. 104(a) testimony on th e issue of her possession of the [Ford] Torino was unrebutted and therefore cred ible.” United States v. Benson, et al. , No. 97-10051-01 & 02, slip op. at 10 (D. Kan. Aug . 1, 1997). At the suppression hearing, Benson testified that Joe Paddock gave her the keys to his car, as well as permission to use the vehicle. The district court found that1 At the suppression hearing, Benson conceded that government counsel stated at

the bond hearing that Paddock denied allowing her to use the vehicle. This report did not cause the district court to discredit Benson’s assertion that she had permission from Paddock to drive the car. We agree with the district court. -5- Paddock, in whose name the vehicle was registered, let Benson use the car without restriction. 1 We see no reason to question these findings.
B We also agree that Mayfield properly detained Benso n. “The government has the burden of demonstrating ‘that the seizure i t seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.’” United States v. Perdue , 8 F.3d 1455, 1462 (10th Cir. 1993) (quoting Florida v. Royer , 460 U.S. 491, 500 (1983)). We review de novo a finding concerning the existence o f reasonable suspicion at the time of a seizure. See Lambert , 46 F.3d at 1067. A traffic stop is analogous to an investigative det ention. To be legal, the stop must be justified at its inception and the subsequent det ention “reasonably related in scope to the circumstances which justifi ed the interference in the first place.” Terry v. Ohio , 392 U.S. 1, 20 (1968). Under these principles an investigative detention may be expanded beyond i ts original purpose . . . if during the initial stop the detain ing officer acquires “reasonable suspicion,” of criminal activity, that is to say the officer must acquire a “particularized and objective basis for suspecting the particular person stopped of criminal activity.”. . . We have noted that “[o]ne recurring factor supporting a finding o f reasonable2Consequently, we do not address the government’s argument as to inevitable

discovery.

3 Many of Benson’s responses appear to have been an effort to dispel suspicion and dissuade Mayfield from the search, rather than an actual denial of consent. -6- suspicion. . . is the inability of a defendant to p rovide proof that he is entitled to operate the vehicle he is driving.” United States v. Villa-Chaparro , 115 F.3d 797, 801-802 (10th Cir. 1997) (internal citations omitted). Here, Benson’s attempted illeg al U-turn justified the initial stop. Mayfield properly continued the stop in ligh t of Benson’s lack of license or identification, Speal’s unverifiable license, the v ehicle’s uncertain ownership, the couple’s inconsistent explanations for the trip, th e unusually early hour, and the chosen route—one along which drugs and guns are oft en transported.
C Finally, we see no error in the district court’s co nclusion that Benson voluntarily consented to the vehicle search. 2 Under the applicable totality of the circumstances test, see United States v. McKneely , 6 F.3d 1447, 1453 (10th Cir. 1993) (citation omitted), the record supports a con clusion that Benson’s consent was voluntary. She was neither threatened with norplaced under arrest. She was neither handcuffed nor physically restrained. None of the officers displayed a weapon. Although Mayfield persistently sought Bens on’s consent, he addressed her in a polite, non-threatening way. Such persist ence constituted a reasonable effort on his part to obtain a clear answer. 3 While Mayfield failed to tell Benson-7-

she could refuse consent, her refusal to sign the r elease form indicates that Mayfield did not overwhelm her will, and suggests s he rationally sought to protect her option to challenge the search later. Finally, the consent given was sufficiently specific.
IV Benson also challenges the sentencing court’s refus al to award her a twolevel adjustment for minor participation in the dru g trafficking scheme. “[A] minor participant means any participant who is less culpable than most other participants, but whose role could not be described as minimal.” U.S.S.G. § 3B1.2(b), Application Note 3. A party who seeks a sentence reduction bears the burden of proving entitlement to the reduction by apreponderance of the evidence, see United States v. Kirk , 894 F.2d 1162, 1164 (10th Cir. 1990), and the sentencing court’s conclusion that Benson faile d to meet this burden is a factual determination that we review for clear erro r, see United States v. Smith , 131 F.3d 1392, 1399 (10th Cir. 1997) (citing UnitedStates v. Williamson , 53 F.3d 1500, 1523 (10th Cir. 1995)). No such error is apparent from the record. The tri al court found that Benson provided Speal with a loaded .45 caliber han dgun, and it credited the government’s assessment that Benson “lied to the of ficers” and “covered for [Speal].” See V R. at 31. Benson misrepresented the purpose of the Wichita trip-8-

to the police, referred to Speal by his alias, and lied to conceal the presence of guns and drugs in the car. In addition, Benson sup plied and drove the vehicle, providing an essential service to Speal, whose lice nse was suspended.
AFFIRMED

. ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge