* This order is not binding precedent, except under t he doctrines of law of

the case, res judicata, and collateral estoppel. Th e 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.

** The Honorable Paul G. Cassell, United States Distr ict Judge for the District of Utah, sitting by designation. 

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

### FEB 11 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.ROSENDO DeJESUS ACUNANAVARRO, Defendant - Appellant. No. 03-7047 D.C. No. 02-CR-78-P (E.D. Oklahoma)

.

ORDER AND JUDGMENT *

Before SEYMOUR , LUCERO , Circuit Judges, and CASSELL , District Judge. **
Petitioner-Appellant, Rosendo DeJesus Acuna-Navarro , who entered a conditional plea of guilty to possession of a contr olled substance with intent to1 21 U.S.C. 841(a)(1) & (b)(1)(A). -2- distribute, 1 appeals the district court’s denial of his motion to suppress evidence and to appoint an interpreter at an informal de-bri efing. Finding no error, we affirm. Background On August 18, 2002, at approximately 6:45 p.m., Okl ahoma Highway Patrol Trooper Darren Koch was traveling east-bound on I-4 0, within the Eastern District of Oklahoma, and noticed a Blue Nissan Pat hfinder following too close to a semi-truck. As a result of this traffic violatio n, Trooper Koch pulled over Mr. Acuna-Navarro’s vehicle. As Trooper Koch approached the Pathfinder, he noticed Mr. Acuna-Navarro sitting in the driver’s seat, and co-defendant, David Francisco Gonzalez, sitting in the passenger seat. Trooper Ko ch asked Mr. Acuna-Navarro for his license. Mr. Gonzalez advised the trooper that Mr. Acuna-Navarro did not have a driver’s license and that Mr. Acuna-Navarro did not speak English. Trooper Koch, who speaks and understands little Spa nish, asked in Spanish for Mr. Acuna-Navarro to provide his license and di rected him to go his patrol car. Mr. Acuna-Navarro walked with the trooper bac k to his patrol car and gave Trooper Koch an identification card. While still in the patrol car and speaking Spanish, Trooper Koch asked Mr. Acuna-Navarro his t ravel plans. Mr. Acuna--3-

Navarro stated, in Spanish, that he was from Los An geles and was headed to Georgia. At about the same time, Trooper Chip Collins arrive d on the scene. Trooper Collins spoke with Mr. Gonzalez, who had re mained in the Pathfinder, about their travel plans. Mr. Gonzalez stated he w as going to Tennessee for some kind of work and would be gone for about a week. T rooper Collins then went to Trooper Koch’s patrol car and told him what Mr. Gon zalez had said about their travel plans. While still in the patrol car, Trooper Koch then is sued Mr. Acuna-Navarro a warning and returned all of his paperwork to him. Trooper Koch then said “Adios” to Mr. Acuna-Navarro. At the suppression h earing, Mr. Acuna-Navarro testified that he understood this to mean he was fr ee to leave. As Mr. AcunaNavarro was leaving the patrol car, Trooper Koch as ked him, in Spanish, if he had any weapons, drugs, alcohol, or large sums of cash in his vehicle. Mr. AcunaNavarro indicated he did not. Trooper Koch then as ked Mr. Acuna-Navarro, in Spanish, if he could search his car. Mr. Acuna-Nav arro responded, “si.” Trooper Koch then looked inside the car and observe d tools, including a set of long and curved needle nose pliers, wire cutters , a screwdriver, and a socket set. He then looked underneath the vehicle and obs erved gas coming over the top2 United States v. Caro, 248 F.3d 1240 (10 thCir. 2001). -4- of the gas cap. As a result, the trooper looked at the gas tank and saw it had been “tampered with.” In the cargo area in the rear of the Pathfinder, th e trooper observed the screws on the D-rings on the carpet showed signs th at a screwdriver had been used on them. The trooper removed the trim and the D-rings and noticed the bolts also had screwdriver marks on them. Also, the hose s had fresh smudges on them and the clamps on the hoses were different. After removing the hoses and the sending unit of the gas tank, the officer saw four plastic wrapped bundles suspended within the gas tank. The trooper removed one of the bundles, and discovered it contained methamphetamine. Discussion In reviewing a District Court order granting a moti on to suppress, we accept the District Court’s factual findings unless clearly erroneous, view the evidence in the light most favorable to those findi ngs, and review questions of law de novo. 2 I. Extension of the Stop Mr. Acuna-Navarro argues that what began as a routi ne traffic stop was extended beyond permissible bounds. It is well esta blished that during a traffic stop, a police officer may ask to see a driver’s li cense and registration and check3 United States v. Holt , 264 F.3d 1215, 1221 (10 thCir. 2001); see, e.g.,

Caro , 248 F.3d at 1244.

4 Berkemer v. McCarty , 468 U.S. 420, 437(1984).

5 Holt , 264 F.3d at 1221.

6 Id.

7 United States v. Soto, 988 F.2d 1548, 1554 (10 th Cir. 1993). -5- that they are valid. 3 Once the purposes of the traffic stop are met, ho wever, a motorist must be allowed to continue on his way. 4 An officer may only delay a motorist further if the officer has an objectively reasonable suspicion of illegal activity or the stop has become consensual. 5 In this case, because we conclude the trooper had reasonable suspicion to further que stion Mr. Acuna-Navarro, we do not reach the issue of whether the further quest ioning became consensual. An officer may extend a traffic stop and ask a moto rist further questions if there exists “reasonable suspicion” of criminal activity. 6 Whether reasonable suspicion exists is a determination made not on any one particular factor, but rather on the totality of the circumstances facing the officer. 7 In this case, there were sufficient reasons for Trooper Koch to delay M r. Acuna-Navarro briefly to investigate a suspicion of criminal activity. Troo per Koch knew that Mr. AcunaNavarro did not have a valid driver’s license and t hat his story about travel plans differed from that of his passenger. This combinat ion of inconsistent travel plans and failure to establish a lawful ability to operat e the vehicle have served as8 See, e.g., Holt , 264 F.3d at 1221; United States v. West, 219 F.3d 1171,

1176 (10 th Cir. 2000); United States Hunnicutt, 135 F.3d 1345, 1349 (10 thCir. 1998); United States v. Gonzalez-Lerma, 14 F.3d 1479,1483 (10 thCir. 1994), cert. denied, 511 U.S. 1095 (1994); United States v. Pena, 920 F.2d 1509, 1513 (10 th Cir. 1990), cert. denied, 501 U.S. 1207 (1991); United States v. Rivera , 867 F.2d 1261, 1264 (10 th Cir. 1989).

9 United States v. Pena, 143 F.3d 1363, 1366 (10 th Cir. 1998), cert. denied, 525 U.S. 903 (1999).

10 United States v. Taverna , 348 F.3d 873, 878 (10 thCir. 2003). -6- reasonable suspicion for extending traffic stops in several prior cases. 8 We see no reason to depart from these holdings here. Moreover , the extension of the stop was very brief. Trooper Koch only asked whether Mr . Acuna-Navarro had any suspicious items in his car and whether he would ag ree to a search. The extension of the stop could have been only a minute or two, a t most. In light of these facts, we conclude that the trial court properly determine d that a reasonable suspicion existed to continue to detain Mr. Acuna-Navarro for the limited period of time required to seek consent to search the car. II. Consent to Search the Vehicle

. Mr. Acuna-Navarro also argues that he did not give a voluntary consent to search his car. Valid consent to search exists when it is given voluntarily and freely. 9 The determination of the voluntariness of consent is a question of fact that must determined by evaluating the totality of the circumstances. 10 Consent to search may be voluntary even though the consenting party is being detained at the11 United States v. Doyle, 129 F.3d 1372, 1375 (10 thCir. 1997).

12 United States v. Sanchez, 89 F.3d 715, 719 (10 thCir. 1996) (internal quotation and citation omitted). -7- time the consent is given. 11 The government must “(1) proffer clear and positi ve testimony that consent was unequivocal and specific and freely and intelligently given and (2) prove that this consent was given wit hout implied or express duress or coercion.” 12 Mr. Acuna-Navarro claims he did not actually give p ermission for a search because a language barrier prevented him from under standing what was happening. This argument runs squarely into a major factual difficulty: Mr. Acuna-Navarro admitted on the stand at the suppress ion hearing that he had actually consented to the search. In addition, Mr. Gonzalez testified at the hearing that Mr. Acuna-Navarro admitted in jail tha t he consented to the search. Finally, there is ample reason for believing that c onsent was knowingly and freely given. The district court found that Trooper Koch spoke to Mr. Acuna-Navarro in Spanish and that Mr. Acuna-Navarro gave actual cons ent for the search. Trooper Koch testified that he spoke in a normal voice and did not draw his weapon or make any threats or gestures to obtain the consent. Additionally, the traffic stop occurred on the shoulder of a public highway. In li ght of all these facts, we agree with the district court’s conclusion that Mr. Acuna -Navarro’s consent satisfied the applicable standard.13 18 U.S.C. § 1827.

14 United States v. Osuna, 189 F.3d 1289 (10 thCir. 1999).

15 28 U.S.C. § 1827(d)(1).

16 28 U.S.C. § 1827(j). -8- III. Use of an Agent/Translator at the Debriefing Mr. Acuna-Navarro finally contends that the governm ent’s failure to provide him with an independent translator at his p ost-plea debriefing violated the Court Interpreters Act . 13 This court reviews an appointment under the Court Interpreter’s Act for abuse of discretion. 14 At the debriefing, the government relied on Carlos Sandoval (a Spanishspeaking agent with the Bureau of Alcohol, Tobacco, and Firearms) to interpret. Mr. Acuna-Navarro did not raise any objection to th is arrangement at the time of the debriefing, presenting it only later at his ini tial sentencing hearing. Mr. Acuna-Navarro’s argument is without merit. The Court Interpreter’s Act provides that a qualified interpreter shall be provided at “judicial proceeding instituted by the United States.” 15 The statute further specifies that it refers to a ll proceedings, “including pretrial and grand jury pro ceedings . . . conducted in or pursuant to the lawful authority of a United States District Court.” 16 It would significantly extend the reach of this statute to c onclude that “judicial proceedings” include the kind of informal debriefin gs with government agents at-9-

issue in this case. Indeed, such a formalistic rea ding of the statute might actually be harmful to criminal defendants. The government is under no obligation to debrief defendants to see whether they can provide substantial assistance in the prosecution of others. If such debriefings become b urdened with the requirements that attach to formal proceedings, the government m ight become more reluctant to hold such debriefings at all. In any event, even i f the Act extended to the debriefing, Mr. Acuna-Navarro has provided nothing suggesting that a court interpreter would have made any substantive differe nce to the outcome below. For all these reasons, we reject his argument that the district court violated the Court Interpreter’s Act. AFFIRMED. Entered for the Court,

Paul G. Cassell District Court Judge