* This order and judgment is not binding precedent, except under the doctrines of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 14 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. $72,522.00 IN US CURRENCY,

Defendant.

------------------------- ROGER WAYNE PATTERSON,

Claimant - Appellant. No. 97-6392 (D. Ct. No. CIV-96-1472-M) (W.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , BRISCOE , and MURPHY , Circuit Judges.

Claimant-Appellant Roger Wayne Patterson appeals th e district court judgment in favor of the United States in this civi l forfeiture action brought under 21 U.S.C. § 881(a)(6). On appeal, Mr. Patterson as serts that the district court- 2 -

erred in denying his motion to suppress evidence di scovered in violation of the Fourth Amendment during a law enforcement search of the vehicle he was driving because: (1) the officer illegally detained him whe n the search request was made and (2) his consent to the search was invalid. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. On December 5, 1995, Oklahoma Highway Patrol Troope r Paul D. Hill pulled over Mr. Patterson for following another veh icle too closely on Interstate 35 in Oklahoma City. Prior to stopping Mr. Patters on, Trooper Hill conducted a check on the licence plate of the van Mr. Patterson was driving and discovered that the tag was registered to another vehicle, a 1 983 Honda. After pulling over Mr. Patterson, Trooper Hill approached the van and asked Mr. Patterson for his driver’s license. Mr. Patterson passed over his li cense twice in his wallet while looking for it, suggesting to Trooper Hill an unusu al amount of nervousness. The driver’s license Mr. Patterson eventually provided had expired, but Trooper Hill later determined that Mr. Patterson had a valid lic ense issued to him. When Trooper Hill asked for the van’s registration, Mr. Patterson explained that he was not the owner of the vehicle and that the van belon ged to a friend named Tina, but he could not provide her last name. Mr. Patterson then provided a copy of the van’s registration, which Trooper Hill later used t o determine that the van belonged to an individual named Tina Kaiser. While Trooper Hill was requesting- 3 -

the vehicle registration, he noticed that the passe nger in the van began nervously handling a cellophane-wrapped rose that had been ly ing on the dashboard. Trooper Hill testified that it was unusual for a pa ssenger to exhibit nervousness during a routine traffic stop. Trooper Hill subsequently asked Mr. Patterson to ac company him to his patrol unit and advised Mr. Patterson that he wouldissue a warning ticket. When Mr. Patterson entered the patrol car, Trooper Hill detected the odor of incense on him. Trooper Hill testified that drug traffickers commonly use incense to mask the odor of narcotics. After issuing the warning t icket and returning Mr. Patterson’s documents, Trooper Hill inquired whethe r Mr. Patterson would answer an additional question. Mr. Patterson respo nded in the affirmative. Trooper Hill asked if he was transporting any illeg al narcotics, alcohol, tobacco, or firearms. When Mr. Patterson responded that he had no such items in the van, Trooper Hill requested permission to search the van . Mr. Patterson reiterated his assertion that he had no illegal items in the vehic le, and Trooper Hill repeated his request to search the van. Mr. Patterson ultimatel y responded, “Well, I guess so.” At no time before or during questioning did TrooperHill draw or place his hand on his weapon, raise his voice, or threaten Mr. Patterson. Trooper Hill searched the van with his narcotics-detecting dog and discov ered containers that held small amounts of cocaine, cocaine residue, and methamphet amine, as well as- 4 -

$72,522.00 in currency. On August 28, 1996, the United States brought a civ il forfeiture proceeding pursuant to 21 U.S.C. § 881(a)(6) on the grounds th at the cash was used or intended to be used in exchange for controlled subs tances or represents the proceeds of trafficking in controlled substances. On November 6, 1997, the district court held a bench trial. At the end of t he trial, Mr. Patterson’s counsel moved to suppress the evidence discovered during th e search of the van, arguing that it was the fruit of an unconstitutional search . The district court denied the motion to suppress and entered judgment for the Uni ted States. This appeal followed. Standard of Review When reviewing the denial of a motion to suppress e vidence, we accept the district court’s findings of fact unless clearly erroneous and consider the evidence in the light most favorable to the government. See United States v. Hunnicutt , 135 F.3d 1345, 1348 (10th Cir. 1998). The ultimate determination of reasonableness under the Fourth Amendment is a ques tion of law which we review de novo. See id.
I. The Fourth Amendment protects individuals from unre asonable searches and seizures. See U.S. Const. amend. IV. Under the exclusionary rul e, evidence- 5 -

obtained in violation of the Fourth Amendment is in admissable at trial. See, e.g. , United States v. Muldrow , 19 F.3d 1332, 1335 (10th Cir. 1994). We must initially address Mr. Patterson’s claim that his de tention by Trooper Hill was an unconstitutional seizure, for such a violation may make an otherwise constitutional search invalid under the Fourth Amen dment if the search resulted from the illegal seizure. See, e.g. , United States v. McSwain , 29 F.3d 558, 561- 62 (10th Cir. 1994); United States v. Fernandez , 18 F.3d 874, 881-82 (10th Cir. 1994). While a consensual police-citizen encounter does no t implicate the Fourth Amendment, see United States v. Torres-Guevara , 147 F.3d 1261, 1264 (10th Cir. 1998), a routine traffic stop is considered a seizu re within the meaning of the Fourth Amendment, see Hunnicutt , 135 F.3d at 1348. The principles set forth in Terry v. Ohio , 392 U.S. 1 (1968), govern whether a traffic stop is reasonable under the Fourth Amendment. Under Terry , a traffic stop must be “justified at its inception and the detention must be ‘reasonably rel ated in scope to the circumstances which justified the interference in t he first place.’” United States v. Anderson , 114 F.3d 1059, 1063 (10th Cir. 1997) (quoting Terry , 392 U.S. at 20). Mr. Patterson does not dispute that the traff ic stop was justified at its inception. Rather, he argues that Trooper Hill’s q uestioning of him after he had received his warning ticket violated the second portion of the Terryinquiry.- 6 -

Specifically, he asserts that Trooper Hill violated his Fourth Amendment rights because Hill’s questioning detained him and was unr elated to the reason for the stop. A traffic stop must generally “last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer , 460 U.S. 491, 500 (1983). However, an officer may detain a driver for further question ing unrelated to the initial traffic stop when the officer develops a reasonable and articulable suspicion that the driver has or is engaging in illegal activity o r if the initial detention has become a consensual encounter. See Hunnicutt , 135 F.3d at 1349. Both of these circumstances existed at the time of Trooper Hill’s questioning. First, based upon our review of the record, we conc lude that Trooper Hill had a reasonable and articulable suspicion to detai n Mr. Patterson for further questioning. The record reveals that: (1) Mr. Patt erson passed over his driver’s license twice when Trooper Hill requested it; (2) M r. Patterson could not provide the last name of the person who lent him the van; ( 3) the passenger in the van exhibited an unusual amount of nervousness while Tr ooper Hill interacted with Mr. Patterson; and (4) Mr. Patterson smelled of inc ense. Although the odor of a masking agent alone is insufficient to establish re asonable suspicion, when combined with additional indicia of illegal activity, such as here, it is sufficient to “‘support[] a reasonabl[y] brief inquiry.’” UnitedStates v. Villa-Chaparro , 115- 7 -

F.3d 797, 802 (10th Cir. 1997) (quoting United Stat es v. Alvarez , 68 F.3d 1242, 1245-46 (10th Cir. 1995) (McKay, J., concurring)), cert. denied , 118 S. Ct. 326 (1997). Trooper Hill only briefly questioned Mr. P atterson and, thus, did not violate his Fourth Amendment rights. Second, Mr. Patterson’s detention for further quest ioning was consensual. This court has held that “after an officer issues t he citation and returns any materials provided, the driver is illegally detaine d only if the driver has objectively reasonable cause to believe that he or she is not free to leave.” United States v. Shareef

, 100 F.3d 1491, 1501 (10th Cir. 1996). Thus, a dr iver might establish an illegal detention when there is a “‘co ercive show of authority, such as the presence of more than one officer, the display of a weapon, physical touching by the officer, or his use of a commanding tone of voice indicating that compliance might be compelled.’” Anderson , 114 F.3d at 1064 (quoting United
States v. Turner , 928 F.2d 956, 959 (10th Cir. 1991)). The record indicates that Trooper Hill issued Mr. Patterson’s warning ticket and returned his documentation prior to questioning him regarding th e transportation of illegal items and making the search request. In addition, at no time before or during questioning did Trooper Hill draw or place his handon his weapon, raise his voice, threaten Mr. Patterson, or conduct himself i n any other way that a reasonable person would consider coercive. Furthermore, even if, as Mr.1 Mr. Patterson argues that because Trooper Hill “expressly and narrowly limited

the scope of his request,” United States v. Elliot , 107 F.3d 810, 815 (10th Cir. 1997), to one question, the encounter became nonconsensual after he answered Trooper Hill’s first question, which was prior to the search request. However, because it is undisputed that Mr. Patterson failed to raise this issue before the district court, we shall not address it on appeal. SeeSac & Fox Nation v. Hanson , 47 F.3d 1061, 1063 (10th Cir. 1995). In any event, because we have found that Trooper Hill had reasonable suspicion to question Mr. Patterson further, we need not concern ourselves with whether Elliotapplies in this situation. - 8 - Patterson asserts, Trooper Hill did not inform him that he was “free to go,” such a statement is not required for an encounter to be co nsensual. See id. Therefore, we find that Trooper Hill’s detention of Mr. Patter son for further questioning after issuing his warning ticket did not violate th e Fourth Amendment. 1
II. Having found that Mr. Patterson was not unlawfully detained at the time Trooper Hill requested permission to search the van , we now turn our attention to Mr. Patterson’s claim that he did not give valid co nsent to the search. It is wellestablished that an officer may conduct a warrantle ss search consistent with the Fourth Amendment if the challenging party gives his or her voluntary consent prior to the search. See Schneckloth v. Bustamonte , 412 U.S. 218, 219 (1973); United States v. Pena , 143 F.3d 1363, 1365-66 (10th Cir. 1998), cert. de nied , 119 S. Ct. 236 (1998). Although Mr. Patterson permitte d Trooper Hill to search the van, he argues that he did not give his voluntary c onsent to the search. Courts cannot presume that consent was either voluntary orinvoluntary. See United2Because we have concluded that Mr. Patterson was not unlawfully detained at the

time the search request was made, the government does not bear the heavier burden of proof which is necessary to establish the voluntariness of consent when it seeks to demonstrate that the consent to search cleansed the taint of an illegal detention, thereby rendering an otherwise invalid search valid under the Fourth Amendment. SeeUnited States v. McSwain , 29 F.3d 558, 562 (10th Cir. 1994). - 9 - States v. Hernandez , 93 F.3d 1493, 1500 (10th Cir. 1996). Rather, to establish voluntary consent, the government must “show there was no duress or coercion, express or implied, that the consent was unequivoca l and specific, and that it was freely and intelligently given.” Id. 2 For the purposes of appellate review, the ultimate determination of “[w]hether a consent to s earch that does not follow a Fourth Amendment violation was voluntary is a quest ion of fact to be determined from the totality of the circumstances.” Id. ; accordUnited States v. Doyle , 129 F.3d 1372, 1377 (10th Cir. 1997). Thus, we accept the district court’s finding of voluntary consent unless it is clearly erroneous. See United States v. OrregoFernandez , 78 F.3d 1497, 1505 (10th Cir. 1996). The district court concluded that “based upon all o f the facts and all of the circumstances of this case . . . Claimant Patterson gave voluntary consent to search his vehicle.” Appellant’s App. at 12. Our review of the record reveals no clear error in the district court’s finding. We co ncluded above that Trooper Hill’s treatment of Mr. Patterson during his questioning w as not coercive. Additionally, the record contains no evidence of trickery or dece ption. Mr. Patterson, however,- 10 -

argues that his consent was not unequivocal. Altho ugh his response to Trooper Hill’s request to search the van was phrased “Well, I guess so,” this statement, taken in the context of Trooper Hill’s questioning, constitutes an affirmative response. Cf. United States v. Pena , 143 F.3d 1363, 1367 (10th Cir. 1998), cert. denied , 119 S. Ct. 236 (1998) (finding statement “go ahea d” unequivocal when given in direct response to a search request). Mor eover, Mr. Patterson’s lack of protest during the search of the van further confirms the voluntariness of his
consent. See United States v. Lopez , 777 F.2d 543, 548 (10th Cir. 1985) (finding voluntary consent in part because defendant “stood by and watched as the officers searched the vehicle and at no time objected”). Th erefore, because Mr. Patterson voluntarily consented to the search of the van, the search did not constitute a Fourth Amendment violation.
III. For the reasons discussed above, we conclude that T rooper Hill’s questioning and vehicle search did not violate Mr. Patterson’s Fourth Amendment rights. Accordingly, the district court correctly denied Mr. Patterson’s motion to suppress. AFFIRMED. ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge