* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### JUL 12 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE ALFREDO FIGUEROA, Defendant-Appellant. No. 99-6180 (D.C. No. CR-98-160-R) (Western District of Oklahoma)

ORDER AND JUDGMENT *

Before EBEL , MCKAY , and BRISCOE , Circuit Judges.

Appellant Jose Alfredo Figueroa (“Figueroa”) was c onvicted after a jury trial of one count of knowingly and intentiona lly possessing with the intent to distribute thirty-one pounds of methamphetamine in violation of 21 U.S.C. § 841(a)(1), and one count of being an alien who had been previously deported on May 29, 1997 in violation of 8 U.S.C. § 1326(a). O n appeal, Figueroa argues that (1) there was insufficient evidence to support bothcounts of which he was convicted, and (2) the district court erred when itfailed to sustain a motion to- 2 -

suppress evidence. We exercise jurisdiction under 28 U.S.C. § 1291 and
AFFIRM.
BACKGROUND On July 20, 1998, Figueroa, along with Vicente de l a Torre, was traveling eastbound on I-40 in Oklahoma approximately six mil es from the Texas boarder in a green 1992 Ford Explorer, when Oklahoma Highway Patrolman Grant Byrns clocked the car going 83 m.p.h. in a 60 m.p.h. zone . Trooper Byrns stopped the car at approximately 6:40 a.m. to issue a citation for speeding. While Trooper Byrns was approaching the car to ask for the driver’s license, he noticed fast food wrappers in the back seat, along with a medium sized ice chest. When the Trooper reached the driver’s s ide of the vehicle, Figueroa opened the window. At that point, the officer dete cted a strong smell of air freshener coming from the car, although he was unab le to locate a source for the smell. Trooper Byrns asked the driver, Figueroa, f or his license and insurance verification, and also requested Figueroa to accomp any him back to his patrol vehicle. Although the license tag on the car was f rom Oklahoma, Figueroa handed the trooper a California license. In his patrol car, Trooper Byrns proceeded to check on the validity of Figueroa’s Ca lifornia license and the vehicle registration, whether there were any warran ts for his arrest, and whether the vehicle had been reported stolen. A few minute s later, the trooper asked1 EPIC monitors travel and transport across the U.S. borders. EPIC is not a

law enforcement agency, but a data collection agenc y whose results are used by various law enforcement agencies. - 3 - dispatch to institute an EPIC 1 check, from the El Paso Information Center, to determine if Figueroa was an illegal alien, or had been involved in any criminal or smuggling activities. The vehicle registration che ck showed that the 1992 Ford Explorer was not in Figueroa’s name. When asked ab out this fact, Figueroa replied that the car was a friend’s. He did not id entify the friend, and the trooper did not ask Figueroa to identify the friend at thattime. Figueroa further told the trooper that he was coming from California and thathe had picked up his passenger in New Mexico. Trooper Byrns testified that during this conversation with Figueroa, he understood all of his questions, and responded in English, appropriately, to his inquiries. Trooper Byrns the n proceeded to write a citation for the speeding violation. At some point while Trooper Byrns was writing up th e citation, he went back to the vehicle to obtain information from the passenger in the vehicle, Vicente de la Torre. The trooper then submitted th e passenger’s information to dispatch and had them run the same checks they were then running on Figueroa. Either during or shortly after issuing the citation to Figueroa, the check revealed that de la Torre was wanted by INS. After providin g dispatch with further information on de la Torre, the trooper was informe d that he was a deported alien- 4 -

with an outstanding warrant issued by INS. At some point after receiving this information, Trooper Byrns placed de la Torre underarrest. At approximately 7:24 a.m., Trooper Byrns was informed by dispatch t hat EPIC had advised that Figueroa was deported in 1997 and should not be in this country. Dispatch then advised that it was attempting to obtain further in formation concerning Figueroa from INS. Sometime prior to 7:00 a.m., but after Trooper Byrn s had issued Figueroa the citation for speeding and returned all of his d ocuments, he first asked Figueroa if he was carrying any drugs, cash or weap ons, and then asked for permission to search the 1992 Ford Explorer. Figue roa told the trooper he could search the car. Trooper Byrns then proceeded to se arch the car with the assistance of another officer who had arrived at th e scene. After he received the information from EPIC that Figueroa had previously been deported, Trooper Byrns desired to search the car more thoroughly. H e therefore asked Figueroa to follow him to a local service station in Sayre, Okl ahoma, where he could put the car up on a lift and run a drug dog around the outs ide of the vehicle. Figueroa consented and followed Trooper Byrns to Tosh’s Texa co in Sayre. Trooper Byrns testified that while he was awaiting EPIC information and after he received the report from dispatch at 7:24 a.m., Figueroa was not free to leave. He further testified that if Figueroa had n ot followed him to Tosh’s, he- 5 -

would have chased him. It is not disputed that Fig ueroa was in custody for Fourth Amendment purposes at this time. Once the Ford Exp lorer arrived at Tosh’s, the drug dog alerted strongly to the dashboard of the v ehicle. With the help of Kevin Tosh, an employee of Tosh’s, the dashboard was disa ssembled, but no drugs were found. It was discovered during the search, howeve r, that the green vehicle was originally black, and had been painted. While this searching was being conducted, Agent Valentine of the INS called Troope r Byrns and requested that he place Figueroa under arrest, which he did. On July 24, 1998, a Cleveland County, Oklahoma Drug Task Force officer contacted the Oklahoma Highway Patrol dispatch and inquired about a Ford Bronco that had been stopped by Trooper Byrns. The officer had information that drugs or money might have been in the vehicle. Not hing came of this phone call; however, on August 19, 1998, Trooper Byrns receivedanother call from the same Drug Task Officer inquiring about a black Ford Expl orer, and describing the stop Trooper Byrns had made on July 20, 1998. The offic er informed Trooper Byrns that he believed there was methamphetamine hidden b ehind the speakers of the vehicle. Recalling the once black, now green, Ford Explorer at Tosh’s, Trooper Byrns awaited a telephone call from another police officer to discuss obtaining a search warrant in order to search the vehicle.- 6 -

In order to obtain certain information about the Fo rd Explorer, Trooper Byrns called Kevin Tosh. He asked for the VIN numb er and the color of the vehicle. He also asked Kevin Tosh whether, during the original search, the speakers had been removed. Tosh provided the reque sted information and told Trooper Byrns he believed they had searched behind the speakers. Trooper Byrns told Tosh not to permit anyone to remove the vehicl e from the premises. While returning from Elk City, Trooper Byrns was pa ged by dispatch, which told him to call Kevin Tosh. Trooper Byrns c alled Kevin Tosh, and was told that Tosh had used a screwdriver to pry open t he speaker, where he discovered “stuff” wrapped in duct tape. Trooper B yrns then drove to the impound lot, where Kevin Tosh directed him to the v ehicle. Byrns entered the vehicle through the driver’s side door and observedthe bundles of drugs wrapped in duct tape behind the driver’s side rear speaker. After finding rubber gloves and a box, Trooper Byrns removed a bundle. An FBI agent field tested the contents of one of the packages, which tested posit ive for methamphetamine. The doors to the Explorer were then taped closed until a warrant could be obtained for the remainder of the vehicle. On August 21, 1998, a warrant was obtained for the vehicle. A further search of the car revealed twelve additional bundle s hidden behind the speaker on the passenger side. Air fresheners were found insi de the speaker area with the2 There was apparently a misspelling of Juan Cadena’ s name on the

Certificate of Title. - 7 - drugs. In all, thirty-one pounds of methamphetamin e was found in the Ford Explorer. During this final search of the vehicle, the office rs found several documents, including the title to the car showing t he vehicle owner as “Juan Cadera.” 2 An assignment section on the back showed transferof the vehicle by Juan A. Cadena to Evelin Cervantes on March 22, 199 8. The officers also found an insurance verification form which had been issue d for the vehicle on January 17, 1998 to a Magdeleno Cadena. Finally, there was an Emission and Inspection Certificate found in the car that had been issued i n June of 1998, reflecting the owner of the vehicle as Magdeleno Cadena. Following a jury trial in December 1998, Figueroa w as found guilty of (1) knowingly and intentionally possessing with the int ent to distribute thirty-one pounds of methamphetamine in violation of 21 U.S.C. § 841(a)(1), and (2) being an alien who had been previously deported on May 29 , 1997 in violation of 8 U.S.C. § 1326(a). Figueroa was sentenced to a term of imprisonment of 240 months. Figueroa now appeals his conviction.- 8 - DISCUSSION I. Sufficiency of the Evidence Figueroa first claims that there was insufficient e vidence to support his convictions on both counts one and two: knowingly and intentionally possessing methamphetamine with the intent to distribute and b eing an alien who had previously been deported, respectively. When evaluating the sufficiency of the evidence, we review “the evidence–both direct and circumstantial, together w ith all reasonable inferences to be drawn therefrom–in the light most favorable to t he government.” United States v. Hooks , 780 F.2d 1526, 1529 (10th Cir. 1986); United Stat es v. LazcanoVillalobos , 175 F.3d 838, 843 (10th Cir. 1999). We then dete rmine “whether there is substantial evidence from which a jury mig ht properly find the accused guilty beyond a reasonable doubt.” Lazcano-Villalo bos , 175 F.3d at 843. “[W]hile the evidence supporting the conviction mus t be substantial and do more than raise a mere suspicion of guilt, it need not c onclusively exclude every other reasonable hypothesis and it need not negate all po ssibilities except guilt.” United States v. Johnson , 42 F.3d 1312, 1319 (10th Cir. 1994) (internal quotations and citations omitted). Furthermore, we do not act as the jury. “The jury, as fact finder, has discretion to resolve all conflicting testimony, weigh the- 9 -

evidence, and draw inferences from the basic facts to the ultimate facts.” United States v. Valadez-Gallegos , 162 F.3d 1256, 1262 (10th Cir. 1998).
A. Count I With regard to count I, the government was required to establish beyond a reasonable doubt that (1) Figueroa knowingly posses sed a controlled substance and (2) he possessed the drug with the specific int ent to distribute it. See 21 U.S.C. § 841(a)(1); United States v. Reece , 86 F.3d 994, 996 (10th Cir. 1996). Figueroa argues that the government failed to show a link between himself and the drugs in the vehicle and therefore failed t o carry its burden of proving that he had constructive possession over the drugs. “A person constructively possesses contraband when he or she knowingly holds ownership, dominion or control over the object and premises where it is fo und.” Lazcano-Villalobos , 175 F.3d at 843. We have held that an inference of kno wledge arises if the defendant has exclusive possession of the object or premises; however, the same inference cannot be made when there is joint occupancy of the vehicle. Id. ; ValadezGallegos , 162 F.3d at 1262. Thus, Figueroa’s joint occupan cy of the Ford Explorer with Vicente de la Torre is not sufficientto establish an inference of constructive possession. “To prove constructive po ssession where there is joint occupancy, the government must present direct or ci rcumstantial evidence to show some connection or nexus individually linking [Figu eroa] to the contraband.”- 10 -

Lazcano-Villalobos , 175 F.3d at 843. While we may not uphold a convi ction by piling inference upon inference, “an inference of c onstructive possession is reasonable if the conclusion flows from logical and probabilistic reasoning.” Id. Thus, the government must have provided sufficient evidence supporting at least a probable inference that Figueroa knew of the methamphetamine hidden behind the speakers of the car he was driving. In this case, we find that the totality of the circ umstantial evidence and the reasonable inferences therefrom support the jury’s finding of Figueroa’s guilt beyond a reasonable doubt as to the issue of his kn owing possession of methamphetamine. The evidence presented at trial r eveals that Figueroa was driving a car that was filled with a strong odor of air freshener, yet the source of the air fresheners was not visible in the car. It is certainly logical to infer that a driver of a vehicle would be suspicious of such a s trong smell of air freshener upon entering a car he had borrowed from a friend, particularly when the source of that smell can not be identified. Although the presence of a potent odor of air freshener does not, by itself, establish that Figue roa knew about the methamphetamine, it can be used together with othercircumstantial evidence in the record to find that Figueroa had the requisite knowledge. Hooks , 780 F.2d at
1531-32.- 11 -

For instance, the record further reveals that Figue roa told Trooper Byrns that a friend had loaned him the vehicle. Figueroaalso submitted to the court an affidavit stating that he had borrowed the car from his friend Juan Cadena. Juan Cadena, however, testified at trial that he did notknow Figueroa and that he had not loaned him the vehicle. Moreover, Juan Cadena testified that he had sold the car to an Evelin Cervantes a few months prior to th e time Figueroa was stopped by Trooper Byrns, and had not seen her or the car s ince that sale was made. The Certificate of Title reflected this transaction. F rom this evidence, the jury was entitled to infer that Figueroa’s version of how he came into possession of the car was a fabrication and further reasonably infer Figu eroa’s guilty knowledge from these false statements. Furthermore, the jury had testimony from an FBI agent that sophisticated drug trafficking enterprises oft en use secret compartments in vehicles to smuggle drugs through the United States . The agent further testified that these courier vehicles are never owned by the drivers, and in his experience, the drivers almost always consent to a search of th e vehicle, as was the situation in this case. Finally, the fact that Figueroa was driving a car w ith thirty-one pounds of methamphetamine valued at approximately $310,000 al so leads to the inference that he knew he was transporting drugs. This courthas often recognized both the relevance and importance of evidence of the value o f drugs to prove knowledge.3 Figueroa points to our decision in United States v . Valadez-Gallegos , 162

F.3d 1256 (10th Cir. 1998), to support his argumentthat there was insufficient evidence to show knowledge. Valadez-Gallegos is easily distinguishable from the present case. In Valadez-Gallegos , we found that there was insufficient evidence to support a guilty verdict on the charge of knowin gly possessing with the intent to distribute, when the only evidence to support th e charge was inconsistent statements about travel dates, times, and accommodations and the large quantity of drugs in the camper shell of a pickup truck. V aladez-Gallego , 162 F.3d at 1262-63. We noted that the large quantities of dru gs in the ceiling did not directly link the passengerto the drugs; particularly given the fact that no suspicious odor could be detected in the cab of the truck, as opposed to the camper shell where the drugs were eventually found. Id. In contrast, the facts of the present case show that, in addition to the cont radicted statements of the - 12 - See United States v. Rodriguez , 192 F.3d 946, 950 (10th Cir. 1999) (collecting cases which support proposition that value of drugs is relevant to knowledge of drugs’ presence); Hooks , 780 F.2d at 1532 (finding that value of drugs in truck supported knowing possession given that it is unlik ely that the owner of the truck would have left $10,000 worth of PCP in the truck); see also United States v. Pollock , 926 F.2d 1044, 1050 (11th Cir. 1991) (finding that “[t]he most significant evidence supporting [the defendant’s] knowing possession with intent to distribute is the large value of the cocaine”). Therefore, given the strong smell of air freshener without a visible source, the defe ndant’s contradicted statement as to how he came into possession of the car, and t he large value of the methamphetamine found in the car, we hold that a ju ry could have found Figueroa knowingly possessed the methamphetamine in the vehi cle beyond a reasonable doubt. 3defendant and the large value of the drugs in the c ar, Figueroa was the driver of a

vehicle, see United States v. Levario , 877 F.2d 1483, 1485-86 (10th Cir. 1989) (holding “it is permissible to infer that the drive rof a vehicle has knowledge of the contraband within it”) (emphasis added), overru led on other grounds by , Gozlon-Peretz v. United States , 498 U.S. 395, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991), in which there was a strong odor of air fre shener with no visible source. The addition of these two important facts convinces us that there was sufficient evidence for a jury to find knowledge beyond a reas onable doubt. - 13 - As to the second element of the charge, that Figuer oa had the intent to distribute the methamphetamine, the large quantity of methamphetamine in the car is sufficient to support a judgment that Figueroa i ntended to distribute the methamphetamine. See Hooks , 780 F.2d at 1532. Therefore, we affirm his conviction on this count.
B. Count II Figueroa next argues that there was insufficient ev idence to support his conviction for illegal entry by an alien previously deported or removed pursuant to 8 U.S.C. § 1326. Specifically, Figueroa argues that there was insufficient evidence to show that he was an illegal alien on Ju ly 20, 1998. We disagree. In order to prove a conviction under 8 U.S.C. § 132 6, the government was required to show that (1) at the time of the indict ment, Figueroa was an alien, (2) that Figueroa was arrested and deported from the Un ited States, (3) that thereafter Figueroa voluntarily reentered or was found in the United States, and (4) that Figueroa was in the United States without the permi ssion of the Attorney General.4 The INS agent further testified that the reason Fi gueroa was not deported

until 1997 was because he absconded in 1992 and was not located again until 1997. Figueroa suggests that during this five yearperiod, he could have become a citizen of the United States. As discussed below, this contention is belied by Figueroa’s own admission that he was a citizen of M exico during his booking on the current charges.

5 Figueroa suggests in his brief that the warrant of deportation or removal which stated that an INS agent had witnessed the de portation in 1997 was not sufficient evidence that he had been deported in 19 97. Other courts have found that this warrant is admissible in trial as proof t hat a defendant was arrested and deported. See United States v. Quezada , 754 F.2d 1190, 1193-94 (5th Cir. 1985) (holding that warrant of deportation is admissible hearsay under Fed. R. Evid 803(8)(B) to prove defendant was deported); United States v. Hernandez-Rojas , 617 F.2d 533, 534-35 (9th Cir. 1980) (same). We ag ree with these courts that the warrant of deportation is admissible to prove a def endant was in fact deported. - 14 - See 8 U.S.C. § 1326. The jury was instructed that an alien “is any person who is not a natural-born or naturalized citizen, or a nat ional of the United States.” The record reflects that the government proved all of t he required elements. First, the government presented proof that Figueroawas an alien in 1992, who was deported in 1997. The government presentedthe record of a prior judgment against Figueroa indicating that he was co nvicted of being an alien who knowingly entered the United States illegally in 19 92. In addition, the government admitted into evidence the warrant of de portation or removal that was issued for Figueroa in 1997. 4 An INS agent testified that this document showed that Figueroa was ultimately deported in 1997, whic h deportation was witnessed by an INS agent. 5 In addition, the government introduced a written certification that an INS officer had made a diligent search of I NS records, and that this search- 15 -

had produced no record that Figueroa had reapplied for admission to the United States after deportation or been granted permissionto reapply. Pursuant to 8 U.S.C. § 1360, a written certification from an INS officer that a diligent search of INS records has been made and no record or entry can be found “shall be admissible as evidence in any proceeding as evidenc e that the records of the Service contain no such record or entry, and shall have the same effect as the testimony of a witness given in open court.” 8 U.S .C. § 1360(d). Thus, the government produced evidence from which the jury co uld conclude that Figueroa had not applied for readmission to the United State s nor had he been granted admission by the Attorney General, an obvious firststep to becoming a naturalized citizen. Finally, the government presented evidence at trial that when Figueroa was booked into the custody of the U.S. Marshal on Sept ember 10, 1998, the deputy who made the fingerprint record obtained the inform ation he placed on the card from charging documents and from the defendant hims elf. The information on the card indicated that the only charge at that tim e was 21 U.S.C. § 841(a)(1), and further indicated that the defendant’s country of c itizenship was Mexico. Based upon the foregoing evidence, the jury could reasona bly find that the defendant was an alien on July 20, 1998 who had previously be en deported. Thus, we find- 16 -

that there was sufficient evidence for a jury to fi nd Figueroa guilty beyond a reasonable doubt on count II. II. Motion to Suppress “In reviewing the denial of Defendant’s motion to s uppress evidence, the trial court’s findings of fact are accepted unless clearly erroneous, and the evidence is considered in the light most favorable to the government.” United States v. March , 999 F.2d 456, 459 (10th Cir. 1993) (internal quot ations omitted). A. Standing Figueroa initially argues that the district court e rred in finding he lacked standing to contest the search of the vehicle. The district court determined that Figueroa did not have an expectation of privacy in the Ford Explorer and therefore could not challenge the legality of the s earch. We agree with the district court. The Supreme Court has recognized that the issue of “standing” is “invariably intertwined” with substantive Fourth Am endment privacy rights analysis. See Rakas v. Illinois , 439 U.S. 128, 139-40, 99 S.Ct. 421, 428, 58 L.Ed.2d. 387 (1978). Thus, our inquiry must focus on “whether there has been a violation of the Fourth Amendment rights of the particular defendant who is seeking to exclude the evidence.” United States v. Betancur , 24 F.3d 73, 76 (10th Cir. 1994). It is immaterial whether the Fourth Am endment rights of another- 17 -

were violated as “Fourth Amendment rights are perso nal and cannot be asserted vicariously.” United States v. Arango , 912 F.2d 441, 445 (10th Cir. 1990). “A defendant who seeks to exclude evidence carries the burden of establishing that his own Fourth Amendment rights have been violated as a result of a search.”
Betancur , 24 F.3d at 76. To determine whether a search has violated the Fourth Amendment rights of a defendant, we examine two factors: “whether th e defendant manifested a subjective expectation of privacy in the area searc hed and whether society would recognize that expectation as objectively reasonabl e.” United States v. Martinez , 983 F.2d 968, 972 (10th Cir. 1992) (further quotati ons and citations omitted). Applying these principles in United States v. Arang o , we held that a nonowner of a truck did not have a reasonable expectat ion of privacy, because he failed to present evidence that he was in lawful po ssession of the truck. Arango , 912 F.2d at 444-46. We stated that “[a]lthough . . . the proponent of a motion to suppress need not always come forward with legal do cumentation establishing that he lawfully possessed the area searched, the p roponent must at least state that he gained possession from the owner or someone withthe authority to grant possession.” Id. at 445. We agree with the district court that Figueroa has not established a reasonable expectation of privacy in the Ford Explo rer. Figueroa has failed to- 18 -

carry his burden of showing that he was in lawful p ossession of the vehicle. The only evidence Figueroa presented to the district co urt to establish lawful possession was an affidavit stating that his friend , Juan Cadena, gave him permission to drive the car. This affidavit, howev er, is contradicted by several documents found in the car as well as Juan Cadena’s own testimony at trial. First, the Certificate of Title found in the Ford E xplorer shows that Juan Cadena transferred title to the car to an Evelin Ce rvantes on March 22, 1998, several months before Figueroa was stopped in Oklah oma. Also found in the car during the search on July 20, 1998 was the SecurityVerification for Liability Insurance issued in January 1998 to a Magdeleno Cad ena. Juan Cadena testified at trial that Magdeleno was his deceased father and that he took insurance out in his name. Juan Cadena further testified that this insurance was canceled in April shortly after he sold the car to Cervantes. Thus, the insurance is not probative of ownership. Finally, the police also found in the F ord Explorer an Oklahoma Emission and Mechanical Inspection Certificate for the Vehicle issued on June 29, 1998, to Magdeleno Cadena. Although this was i ssued after the sale of the car to Cervantes, Juan Cadena testified that he lef t the insurance certificate issued to Magdeleno in the car when it was sold, thus, leaving open the possibility that the new owner used that insurance slip and its info rmation to obtain the Emission Inspection Certificate.- 19 -

Furthermore, Juan Cadena filed a sworn answer stati ng that he had sold his car in March 1998 to Evelin Cervantes and denied kn owing Figueroa or his passenger Vicente de la Torre. This denial was rei terated when Juan Cadena testified at trial. At trial, Juan Cadena stated t hat he bought, repaired, and then sold cars as a sideline business, and that he had b ought the Ford Explorer at an auction in January and then sold it two months late r in March to Evelin Cervantes, whom he did not know prior to the sale or stay in c ontact with after the sale. Even if, however, Juan Cadena did give Figueroa per mission to drive the car, Figueroa has not presented any evidence that J uan Cadena’s possession of the vehicle after the transfer of title was lawful, or that he had authority to grant possession to Figueroa. The Certificate of Title c learly shows a transfer in title from Juan Cadena to Evelin Cervantes. Figueroa pre sented no evidence that Juan Cadena then had permission from Ms. Cervantes to dr ive or loan out the vehicle to others. In fact, Juan Cadena testified at trial that he did not know Ms. Cervantes before selling her the car and had no ide a where she was after he sold her the car. The Oklahoma Emission Certificate is insufficient to establish a connection, particularly given the fact that Figuer oa presented no evidence, testimonial or otherwise, in regard to this Certifi cate or how it could have linked6 As noted above, a logical inference could be made that the owner of the

car used the expired insurance in Magdeleno’s name, which was left in the car after Juan Cadena made the sale, to obtain the Emis sion Certificate, thus, eliminating any connection between Juan Cadena and Ms. Cervantes. - 20 - Juan Cadena to Evelin Cervantes, the owner of the v ehicle. 6 Thus, there is a complete absence of evidence explaining how or why Juan Cadena would have had possession of the vehicle after he transferred title to Ms. Cervantes. “To presume that [Figueroa’s] possession of the car was legitimate in the absence of any such evidence would be inconsistent with the bu rden of proof on this issue, which lies with the proponent of a motion to suppre ss.” United States v. Rascon , 922 F.2d 584, 587 (10th Cir. 1990) (no standing whe re no evidence as to how non-owner Mr. Avita, who gave defendant permission to drive car, himself came to possess the vehicle, despite assertion by defend ant that owner was brother in law of Mr. Avita); see also Martinez , 983 F.2d at 973 (“Although affidavits indicated Defendants believed Ms. Lopez had authori ty to loan them the car, no evidence was produced at the suppression hearing to show Ms. Lopez had any authority to grant either Ms. Araujo or Ms. Martine z permission to possess the vehicle.”). Thus, Figueroa failed to establish that he had a reasonable expectation of privacy in the car.7“[A] traffic stop is valid under the Fourth Amend ment if the stop is based

on an observed traffic violation or if the police o fficer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.” United States v. Botero-Ospina , 71 F.3d 783, 787 (10th Cir. 1995). Trooper Byrns clocked Figueroa traveling 83 m.p.h. in a 60 m.p.h. zone. Based on this speeding violation, Trooper Byrns was justified in making a traffic stop. - 21 - B. Illegal Detention Although we have found that Figueroa cannot challen ge the search of the Ford Explorer, he still may challenge his own seizu re. “We distinguish passenger standing to directly challenge a vehicle search fro m passenger standing to seek suppression of evidence discovered in a vehicle as the fruit of an unlawful stop, detention, or arrest.” United States v. Shareef , 100 F.3d 1491, 1500 (10th Cir. 1996) (internal quotations and citations omitted). If the methamphetamine found in the Ford Explorer was the fruit of Figueroa’s un lawful detention, it must be suppressed. See id. Figueroa does not contest the justification for the initial stop, 7nor does he complain about the length of time from the initial stop to the delivery of the warning citation. Rather, Figueroa claims that he was unlawfully detained in violation of the Fourth Amendment when Trooper Byrn s extended the length of the traffic stop after he returned Figueroa’s docum ents to ask him about drugs and for consent to search the Ford Explorer, because Tr ooper Byrns had no reasonable suspicion to further detain Figueroa. The districtcourt concluded that the8 Alternatively, because Trooper Byrns returned Figu eroa’s documents

before asking him any questions we believe that the detention at this time could be viewed as a consensual encounter. While we have held that the return of the driver’s documents is required before a detention c an end and a consensual encounter can be found, we have also stated that th e return of the documents does not automatically equate to a consensual encounter. See United States v. Anderson , 114 F.3d 1059, 1064 (10th Cir. 1997). Here, ther e is evidence that the driver had an objective reason to believe that he w as not free to end his conversation with the officer and proceed on his way. See United States v. Sandoval , 29 F.3d 537, 540 (10th Cir. 1994). Therefore, we cannot find that the stop had turned into a consensual encounter. - 22 - continued detention was justified on the basis of r easonable suspicion. We
agree. 8 It is well established that during a routine traffi c stop, a law enforcement officer may request a driver’s license and vehicle registration, run a computer check, and issue a citation. See United States v. Elliott , 107 F.3d 810, 813 (10th Cir. 1997). Once the driver produces a valid licen se and registration, he is free to go on his way without the delay of further question ing. See id . However, if the officer wants to detain the driver for further ques tioning he may do so if “(1) ‘during the course of the traffic stop the officer acquires an objectively reasonable and articulable suspicion that the driver is engage d in illegal activity’; or (2) ‘the driver voluntarily consents to the officer’s additi onal questioning.’” Id. (quoting Sandoval , 29 F.3d at 540). If, however, the officer contin ues to question the driver in the absence of either of these two circum stances then “any evidence- 23 -

derived from that questioning (or a resulting searc h) is impermissibly tainted in Fourth Amendment terms.” Id. (internal quotations and citation omitted). The government relies upon the following as providi ng Trooper Byrns with reasonable and articulable suspicion: the strong od or of air freshener, Trooper Byrns’ knowledge from the computer checks that Figu eroa had a criminal history, the fact that Figueroa was driving a vehicle that d id not belong to him and the title owner was not in the car, the presence of fas t food wrappers and an ice chest in the car, and the knowledge that the passenger in the vehicle was an illegal alien with an outstanding warrant for his arrest. “When evaluating these factors, we judge the officer’s conduct in light of common sens e and ordinary human experience. Our task . . . is not to pigeonhole ea ch purported fact as either consistent with innocent travel or manifestly suspi cious, but rather to determine whether the totality of the circumstances justify t he detention.” United States v. Mendez , 118 F.3d 1426, 1431 (10th Cir. 1997) (internal qu otations and citations omitted). Initially, as the district court did, we discount T rooper Byrns’ reliance on the food wrappers and ice chest in the car. We hav e previously held that remnants from fast food restaurants can be found onthe floor of many cars and “describes a very large category of presumably inno cent travelers, and any suspicion associated with these items is virtually nonexistent.” United States v.- 24 -

Wood , 106 F.3d 942, 947 (10th Cir. 1997). Likewise, t he presence of an ice chest in a car, an item found in many cars making l ong trips, cannot be said to give rise to reasonable suspicion. Additionally, we must discount the government’s rel iance on the fact that the passenger, Vicente de la Torre, was an illegal alien with an outstanding warrant for his arrest. Trooper Byrns testified atthe motion to suppress that he was unclear whether he knew about de la Torre’s status prior to asking Figueroa questions about the presence of drugs and guns, or for permission to search the vehicle. Thus, we cannot rely on a factor that the trooper cannot say with certainty he knew at the relevant time. We are the refore left with the strong odor of air freshener, the knowledge of Figueroa’s posit ive criminal history, and the fact that Figueroa was not the owner of the vehicle he was driving. First, we agree with the government’s assertion that a strong odor of air freshener “may give rise to reasonable suspicion onthe part of law enforcement officials that the odor is being used to mask the s mell of drugs,” provided the officer is aware of the fact that drug smugglers of ten use air fresheners to mask the smell of certain drugs. United States v. Salza no , 158 F.3d 1107, 1114 (10th Cir. 1998); see also United States v. Villa-Chaparro , 115 F.3d 797, 802 (10th Cir. 1997) (strong odor of detergent and presence of cry stals on floorboard supported reasonable suspicion of presence of drugs in vehicl e). Here, Trooper Byrns- 25 -

testified that when he approached the vehicle he sm elled a strong odor of air freshener coming from the car, although no source f or the fresheners was visible. Furthermore, he stated that he was aware that drug couriers often mask the scent of certain smells of drugs with the use of air fres heners. (Vol. 2 at 12.) Thus, we agree with the district court that this was an impo rtant factor giving rise to reasonable suspicion. In addition, Trooper Byrns testified that he was in formed of Figueroa’s criminal history. Although information regarding aperson’s criminal history in itself is insufficient to justify a seizure, in com bination with other factors it can constitute a sufficient basis for prolonging a dete ntion. See Sandoval , 29 F.3d at 542. Finally, the government relies on the fact th at Figueroa was not the owner of the vehicle, Figueroa had a California license alth ough the tags on the car were from Oklahoma, and the titled owner was not in the car with him. When asked who owned the vehicle, he responded that a friend d id, without offering any further information. In United States v. Villa-Chaparro , we noted that an important factor supporting the officer’s reasonabl e suspicion was the fact that “Defendant was not the registered owner of the vehi cle.” 115 F.3d at 802. Here Trooper Byrns’ knowledge that Figueroa was not the registered owner, did not offer the name of the registered owner, and had a C alifornia license while the- 26 -

car’s tags were from Oklahoma, was certainly import ant in supporting his finding of reasonable suspicion. Taking the above factors together, i.e., the strong smell of air freshener, the positive criminal history, and the fact that Figuer oa was not the owner of the vehicle, we believe that Trooper Byrns had sufficie nt reasonable suspicion to justify the further detention of Figueroa to ask hi m whether he was carrying any drugs and whether he would consent to a search of h is vehicle. C. The Consent Having concluded that Trooper Byrns lawfully detain ed Figueroa during the brief period during which he asked Figueroa if he w as carrying any drugs and whether he would consent to a search of the Ford Explorer, we must now determine whether Figueroa’s subsequent consent was voluntary. “A person who is being detained may give a voluntary consent to s earch.” Mendez , 118 F.3d at 1432. When determining voluntariness, we consider whether the consent was “unequivocal and specific and freely and intelligen tly made,” and whether the “consent was given without implied or express dures s or coercion.” United States
v. McRae , 81 F.3d 1528, 1537 (10th Cir. 1996). On appeal, Figueroa’s contention9 At the end of Appellant’s brief, Appellant attempt s to adopt the materials

he filed in the district court to supplement the ar guments made in his brief to this court, rather than setting forth in his appellate b rief his quarrel with the district court’s findings. This is not acceptable. “Allowi ng litigants to adopt district court filings would provide an effective means of c ircumventing the page limitations on briefs set forth in the appellate ru les and unnecessarily complicate the task of an appellate judge.” Gaines-Tabb v. IC I Explosives, USA, Inc. , 160 F.3d 613, 624 (10th Cir. 1998) (internal citations omitted). Thus, appellant’s arguments that are not set forth in the brief are w aived. - 27 - that his consent was involuntary is based solely onhis argument that his language barrier prevented him from understanding the Troope r’s question. 9 The district court found that Figueroa spoke and un derstood English during the encounter. Trooper Byrns testified that when h e spoke with Figueroa during the July 20, 1998 stop, Figueroa had no difficulty communicating with the officer or understanding him. Additionally, there was evid ence before the court that Figueroa had lived in the United States since 1977 and had filed taxes. Based on this evidence, we cannot say that the district court’s determination that Figueroa spoke and understood English during the stop was cl early erroneous and therefore cannot conclude that Figueroa’s consent was involuntary because he could not understand English. Furthermore, we have reviewed the circumstances of Figueroa’s consent, and find no signs of coercion o r duress, and no reason to believe it was not unequivocally and freely given. Accordingly, we conclude that the search was legal.- 28 -

Finally, while Trooper Byrns was conducting his ini tial search of the car, he was notified by dispatch of Figueroa’s status as an illegal alien. At that point, Trooper Byrns had dispatch contact INS and do furth er checking to determine whether Figueroa should be arrested. This investig ative detention lasted approximately two hours. Trooper Byrns was clearlyjustified in detaining Figueroa at this point, because he had a reasonable suspicion that he was violating the laws of the United States. Moreover, the two h ours it took to check on Figueroa’s status and determine that INS wanted himarrested was not unreasonable, in light of the diligence utilized by Trooper Byrns in immediately following up on the information from dispatch. See Shareef , 100 F.3d at 1507 (relying on fact that officers “diligently pursued a means of investigation” in finding length of detention did not violate Fourth Amendment). We therefore conclude that the district court correctly denied d efendant’s motion to suppress.
CONCLUSION For the foregoing reasons, the judgment of the district court is AFFIRMED.

ENTERED FOR THE COURT David M. Ebel Circuit Judge