* Honorable Frank J. Magill, Senior Circuit Judge, United States Court of Appeals

for the Eighth Circuit, sitting by designation. 

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

### JUL 8 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4115 YOLANDA TORRES-GUEVARA,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Utah (D.C. No. 96-CR-127 B)

R. Steven Chambers, Salt Lake City, Utah, for Defen dant-Appellant. Richard D. McKelvie, Assistant United States Attorn ey, Salt Lake City, Utah, for Plaintiff-Appellee.

Before ANDERSON, MAGILL, * and KELLY, Circuit Judges.

MAGILL, Circuit Judge.1 Miranda v. Arizona, 384 U.S. 436 (1966). -2- Yolanda Torres-Guevara entered a conditional guilty plea to possession of cocaine with intent to distribute. Torres-Guevara appeals the district court's order denying her motion to suppress statements and evide nce obtained during her encounter with drug enforcement agents at the Salt Lake International Airport. Torres-Guevara argues that she was the subject of a n unlawful seizure, in violation of the Fourth Amendment, and that the pol ice failed to advise her of her Miranda 1 rights before interrogating her, in violation of t he Fifth Amendment. Because we find that the encounter remained consens ual until she admitted possessing drugs, we affirm.

I. On June 20, 1996, Detective Michael Judd, Sergeant Mark Whittaker, and Special Agent John Eddington, members of a Drug Enf orcement Agency (DEA) Task Force, were working a narcotics interdiction d etail at the airport. As members of the detail, officers Judd, Whittaker, an d Eddington were responsible for meeting flights arriving from drug source citie s, such as Los Angeles, California, and watching disembarking passengers fo r abnormal behavior indicative of drug-courier activity.-3-

That same afternoon, Torres-Guevara arrived at the Salt Lake International Airport on a flight from Los Angeles. Officers Jud d, Whittaker, and Eddington watched Torres-Guevara and the other passengers dis embark. Torres-Guevara exited, wearing a long, sleeveless, baggy sweatshirt over her T-shirt, and carrying only her purse. She walked quickly through the airport toward the exit, keeping her head down, avoiding eye contact, and holding he r hands against her stomach. She did not stop for luggage. At all times, she "r est[ed] her hands on her stomach area [and] appeared as if she was holding something in place." Suppression Hrg. Tr. at 12 (testimony of Detective Judd). Once outside the airport, Miguel Garcia, who had al so been a passenger on Torres-Guevara's flight from Los Angeles, joined he r and started a conversation. Though Garcia was a copassenger on Torres-Guevara's flight, he had disembarked before Torres-Guevara and had not walked with her t hrough the airport. While she and Garcia talked, they walked past the taxi pi ckup area toward the curb of the main road, where cars pick up arriving passenge rs. They then proceeded to walk on the sidewalk along the curb. Finding all of this behavior suspicious, Detective Judd approached TorresGuevara and Garcia and, speaking English, identifie d himself as a police officer and showed them his DEA credentials. When Torres-G uevara and Garcia did not respond, Judd asked them, in Spanish, whether they spoke Spanish. After2Judd spoke to Torres-Guevara in Spanish throughout the remainder of the

encounter. -4- learning that they spoke and understood Spanish, De tective Judd conducted the conversation in Spanish. Without blocking either Torres-Guevara or Garcia fr om continuing their walk along the curb, Detective Judd advised them th at they were free to leave, and then asked them if he could speak to them for aminute. 2 Both agreed. Detective Judd again asked whether they understood that they were not under arrest and that they were free to go. Both replied in the affirmative. Detective Judd proceeded to ask them for identification. Each produced California identification. Special Agent Eddington joined Detective Judd at this time, and Torres-Guevara gave her identification to Eddington, while Garcia gave his identification to Judd. After returning the id entifications, Judd asked to see their airline tickets. Garcia's ticket was a one-w ay ticket from Los Angeles. Her's was a round-trip ticket scheduled to leave Sa lt Lake City within two hours. After returning the tickets, Judd asked them whethe r they were carrying drugs or large amounts of cash. Garcia responded " no," but she did not respond. Id. at 19. Judd then asked her whether she understood his question, but she avoided eye contact and did not respond.-5-

Judd next asked for permission to search their pers ons. Garcia promptly consented. While searching Garcia, Judd again info rmed him that he was not under arrest and Garcia acknowledged that he unders tood. Judd did not find anything and thanked Garcia for consenting to the s earch. Garcia then started walking away, and Judd waved him on. While Garcia was leaving, Judd again asked for permission to search Torres-Guevara. Whe n she did not respond, Judd asked her whether she understood his question. She again did not respond. Judd then told her that if she had drugs, she should tur n them over to him. Sergeant Whittaker then joined officers Judd and Eddington, and, in Spanish, asked TorresGuevara: "you have drugs, don't you[?]" Id. at 23. When she put her head down instead of answering, he asked: "don't you[?]" Id. This time she responded: "yes." Id. After Torres-Guevara admitted having drugs, Whittak er asked: "it's under your shirt, isn't it[?]" Id. Torres-Guevara nodded her head, and Whittaker rea ched out with the back of his hand and touched the frontof her shirt and felt something hard. A female officer was then contacted to searc h her, and Whittaker placed her under arrest and escorted her to the airport of fice. While walking to the office, and before she had been given a Mirandawarning, she started to cry and said that "this was my first time." Id. at 24. After reaching the office, and still before giving her a Mirandawarning, Whittaker asked her if the drugs were in her-6-

stomach area. Rather than answering, she pulled ou t two kilogram-size packages of cocaine from under her shirt and placed them on a table in front of her. The government charged her in a one-count indictmen t for possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a) (1994). Prior to trial, she filed a motion to suppress the drugs and her incriminating statements. She argued that the drugs and her statements were o btained pursuant to an unlawful search and seizure, and also that her stat ements were obtained in violation of the Fifth Amendment because the office rs had failed to give her a Mirandawarning. The magistrate judge determined that Tor res-Guevara's encounter with the three officers remained consensu al until she admitted having drugs and, therefore, that she was not entitled to a Mirandawarning prior to the admission. The magistrate judge also found that he r statement that "this was my first time" was made without any interrogation and was also not subject to Miranda . Finally, the magistrate judge held that the drug s were obtained pursuant to a lawful search incident to arrest. The distric t court agreed, adopting the magistrate judge's report and recommendation. Torr es-Guevara subsequently entered a guilty plea conditioned on her ability to appeal the denial of her motion to suppress. She now appeals.

II.-7-

Torres-Guevara argues that the drugs and her incrim inating statements should have been suppressed because she was the sub ject of an illegal search and seizure. We disagree. When reviewing a district court's denial of a motio n to suppress, we accept the district court's factual findings unless clearl y erroneous, and view the evidence in the light most favorable to the governm ent. See United States v. Glass , 128 F.3d 1398, 1405 (10th Cir. 1997). However, " [w]e review de novo the district court's conclusion of law whether a seizur e occurred." Id. This court has previously "identified three categories of police-citizen enco unters: (1) consensual encounters which do not implicate the Fo urth Amendment[;] (2) investigative detentions which are Fourth Amendment seizures of limited scope and duration an d must be supported by a reasonable suspicion of criminal act ivity[;] and (3) arrests, the most intrusive of Fourth Amendment sei zures and reasonable only if supported by probable cause."

United States v. Shareef , 100 F.3d 1491, 1500 (10th Cir. 1996) (quotations omitted). Torres-Guevara agrees that her encounterwith Judd commenced as a consensual encounter. See Appellant's Br. at 10. She contends, however, that the encounter escalated to a seizure at some point in t ime after Garcia left and before she admitted to Whittaker that she was carrying dru gs. She argues that any reasonable person subjected to Judd's repeated requ ests to search her, in conjunction with Whittaker's questioning, would nothave felt free to leave.-8-

An encounter is consensual if the defendant "is fre e to leave at any time during the encounter." United States v. Hernandez , 93 F.3d 1493, 1498 (10th Cir. 1996). "A person is seized only when that person h as an objective reason to believe he or she is not free to end the conversati on with the officer and proceed on his or her way." Id. (emphasis added). The defendant's subjective beli ef that she was not free to leave is not determinative. "T he correct test is whether a reasonable person in [the defendant's] position wou ld believe [she] was not free to leave." Id. at 1499. We review all of the circumstances surrounding an e ncounter to determine whether it constitutes a seizure or a consensual en counter. See United States v. Little , 18 F.3d 1499, 1503 (10th Cir. 1994) (en banc) (Li ttle I ); see also Glass , 128 F.3d at 1406 (analyzing encounter "under a tota lity of the circumstances test"). Relevant circumstances include, but are no t limited to, whether: "[T]he encounter occurred in a confined or nonpubli c space; the officers confronting the subject were armed or unif ormed; more than one officer confronted the subject; the officers ex hibited an intimidating or coercive demeanor; and the officers asked the subject potentially incriminating questions." Glass , 128 F.3d at 1406 (citations omitted). Additional circumstances include whether the officers advised the defendant that she did not need to cooperate, see Little I , 18 F.3d at 1505, and that she was free to leave. See United States v.-9-

Griffin , 7 F.3d 1512, 1518 (10th Cir. 1993). However, non e of these factors, by itself, is dispositive. See Glass , 128 F.3d at 1406. Here, the encounter occurred on a public curbside a nd the officers never surrounded or otherwise restrained Torres-Guevara f rom walking away. The officers were not wearing uniforms and did not bran dish their weapons or otherwise threaten her. The officers promptly retu rned her airline ticket and identification to her after examining them. See id. (finding that "none of the usual factors indicating a person has been seized e xist" where encounter occurred on a public sidewalk by a passenger loading zone, t he officers were not uniformed and did not display their weapons, and the officers promptly returned the defendant's ticket and identification after examini ng them); compare United States v. Waksal , 709 F.2d 653, 660 (11th Cir. 1983) (failure of po lice to return airline ticket and license to defendant was critical to det ermination that a seizure occurred). The officers informed her on two separate occasions that she was not under arrest and that she was free to leave. Compa re Griffin , 7 F.3d at 1519 (finding that a seizure occurred where the defendan t was taken "to a small private office within a police-controlled area of the airpo rt" and "was not told that she could refuse to answer the officer's questions or t erminate the interview at any time and leave"). The officers never moved, touche d, physically restrained, or otherwise prevented her from leaving or continuing along the curbside. See-10-

Waksal , 709 F.2d at 659 (whether the police physically bl ocked the defendant's path is significant factor in determining whether s eizure occurred). Accordingly, "none of the usual factors indicating a person has been seized exist in this case." Glass , 128 F.3d at 1406. Torres-Guevara contends that the encounter escalate d into a seizure because Judd asked her twice to consent to a search and Whi ttaker asked her twice whether she carried drugs. We disagree. "A limite d number of routine questions . . . followed by a question about possession of co ntraband and a request to search, are not sufficient to render an otherwise c onsensual encounter coercive." Hernandez , 93 F.3d at 1499. Indeed, we recently found an en counter to be consensual even where officers subjected the defend ant to a particularly focused inquiry. See Glass , 128 F.3d at 1406-07 (refusing to adopt a per se r ule that "asking directly incriminating and focused question s" transforms a consensual encounter into a detention). Although "accusatory, persistent, and intrusive questioning may turn an otherwise voluntary encount er into a coercive one," Hernandez , 93 F.3d at 1499 (quotations and citation omitted) , this is true only if the officers "convey[] the message that compliance is required." Id. As described above, the officers did nothing to indicate to Torr es-Guevara that she was required to agree to be searched or to answer Whitt aker's questions. "There was no evidence that [the officers] used a commanding o r threatening manner or tone-11-

of voice, displayed a weapon, or touched [her]." I d. Viewing the facts in the light most favorable to the government, therefore, we find that a reasonable person in Torres-Guevara's position would have beli eved that she was free to leave in lieu of responding to officers Judd and Wh ittaker. Torres-Guevara also contends that, because Garcia l eft only after agreeing to be searched and after Judd waved him on, she did not feel free to leave without also agreeing to be searched. Her argument rests p rimarily on the fact that Judd failed to inform her for a third time that she was free to leave. While Garcia's decision to leave only after being searched may hav e led Torres-Guevara to have a subjective belief that she was not free to leave without also being searched, her subjective belief is not determinative. See id. As noted above, Judd specifically advised her--twice--that she was free to leave. Th e officers did nothing to suggest to her that she was required to cooperate. They did not separate her from Garcia and place in her in police confinement to in terrogate her, and they did not surround or otherwise prevent her from leaving; rat her, they allowed Garcia to leave in accordance with their earlier advisement t hat they were both free to leave. Compare Griffin , 7 F.3d at 1519 (finding that defendant was in cus tody when police separated her from her friend, took herfrom an open area to a small police-restricted room, and then questioned her wit hout advising her that she could leave); United States v. Bloom , 975 F.2d 1447, 1455-56 (10th Cir. 1992)3 In their briefs, the parties also addressed the issue of whether the encounter

escalated into a Terrystop after Garcia's departure and, if so, whether the police had reasonable suspicion to detain Torres-Guevara. SeeTerry v. Ohio , 392 U.S. 1 (1968). While we conclude that the encounter remained consensual until Torres-Guevara admitted carrying drugs, we agree with the government that a Terrystop would have been justified in the circumstances of this case. -12- (encounter becomes a seizure when officer questions subject in confined quarters). While Judd's failure to specifically ad vise Torres-Guevara for a third time that she need not consent is relevant to the c ourt's ultimate inquiry, see United States v. Little , 60 F.3d 708, 713 (10th Cir. 1995) (Little II ), it is not dispositive. The fact that Garcia consented to a s earch and then left the scene did not change the encounter into a seizure. Based on the totality of the circumstances, we find that the encounter remained consensual until TorresGuevara admitted that she possessed drugs, at which time probable cause existed for her arrest. 3

III. Torres-Guevara also argues that her statements to W hittaker that she carried drugs and that it was the first time that she carri ed drugs should have been suppressed because the officers failed to give her any Mirandawarnings. We disagree.4 This result would also be true even if the encounter constituted a Terrystop. See

United States v. Griffin , 7 F.3d 1512, 1516 (10th Cir. 1993) (Mirandawarning typically not required during Terrystop). -13- Mirandawarnings are required only when a suspect is in cu stody. See United States v. Perdue , 8 F.3d 1455, 1463 (10th Cir. 1993). The determin ation of whether a defendant is in custody for purposes o f Mirandais based on the totality of the circumstances, and we review the di strict court's determination that Torres-Guevara was not in custody de novo. See United States v. Erving L. , No. 97-2256, 1998 WL 340017, at *5 (10th Cir. June 26, 1998). In this case, Torres-Guevara's encounter with the o fficers was consensual at the time she admitted carrying drugs. Accordingly, she was not in custody and was not entitled to Mirandawarnings prior to her admission. See Griffin , 7 F.3d at 1516. 4 Her later statement that "this was my first time" was made spontaneously to Whittaker. Because the statement was volunteered, rather than given in response to any interrogation, this statem ent also was admissible in the absence of Mirandawarnings. See United States v. Muniz , 1 F.3d 1018, 1022 (10th Cir. 1993) ("If a person voluntarily speaks w ithout interrogation by an officer, the Fifth Amendment's protection is not atissue, and the statements are admissible.").

IV.-14-

Torres-Guevara further contends that the drugs she produced to Whittaker should have been suppressed as fruits of an unlawfu l arrest. Because we have found that she was not arrested until after she adm itted carrying drugs, and because Torres-Guevara concedes that this admission provided probable cause for her arrest, this argument necessarily fails and doe s not warrant further discussion. For the foregoing reasons, we AFFIRM the district court in all respects.