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United States v. Torres

United States District Court, D. New Mexico

June 9, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
EDWIN TORRES, Defendant.

          Damon P. Martinez United States Attorney Presiliano Torrez Assistant United States Attorneys for the Plaintiff

          Brian A. Pori Federal Public Defender

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Defendant Edwin Torres' Motion to Suppress Evidence, filed December 8, 2016 (Doc. 18)(“Motion to Suppress”). The Court held an evidentiary hearing on February 16, 2017. The primary issues are whether: (i) Officer Jay Lucero's questioning of a passenger in Defendant Edwin Torres' car unconstitutionally extended a traffic stop in which Lucero discovered 38.5 pounds of methamphetamine in Torres' car; (ii) Torres consented to a search of his vehicle; and (iii) the Court should suppress evidence obtained during the vehicle search. The Court concludes that the questioning did not unconstitutionally extend the stop and that Torres' consent to the vehicle search was unequivocal, specific, intelligently given, and neither impliedly nor expressly coerced. The Court therefore denies the Motion to Suppress.

         FACTUAL BACKGROUND

         Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d)(“When factual issues are involved in deciding a motion, the court must state its essential findings on the record.”). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for purposes of rule 12(d). The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure, and the voluntariness of an individual's confession or consent to search. See United States v. Merritt, 695 F.2d 1263, 1269-70 (10th Cir. 1982). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed.R.Evid. 104(a). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Merritt, 695 F.2d at 1269.

         1. Nathan Jay Lucero has been a New Mexico Police Officer since 2001 and a K-9 handler for four years, during which time he has conducted approximately one thousand traffic stops. See Transcript of Hearing at 3:25-6:5 (taken February 16, 2017)(“Tr.”)(Lucero, Torrez).[1]

         2. Of the approximately one thousand traffic stops that Lucero has made, he has been the primary or secondary law enforcement officer on the scene for hundreds of stops that resulted in subsequent investigations of narcotics trafficking, vehicle searches, or requests to search a vehicle. See Tr. at 6:6-21 (Lucero, Torrez).

         3. At about 9:24 a.m. on September 29, 2016, Lucero stopped a grey 2015 Ford Fusion SE for speeding in the westbound lanes of Interstate 40 near mile marker 140 outside of Albuquerque, New Mexico. See DVD: NMSP Roadside Stop: Case # AL13WR16AL0047 -Torres 1:56-2:12 (United States Immigration and Customs Enforcement Sept. 29, 2016), filed February 16, 2017 (“Traffic Stop DVD”).[2]

         4. Lucero approached the vehicle's passenger side window, discovered that Torres was the vehicle's driver, observed that a female passenger -- Denise Guerra -- was resting in the vehicle's back seat, and noticed an overpowering odor of air freshener. See Traffic Stop DVD at 2:14-2:30; Motion to Suppress ¶ 2, at 2 (asserting this fact); United States' Response to Defendant's Motion to Suppress (Doc. 18) ¶¶ 2-3, at 2, filed December 22, 2016 (Doc. 24)(“Response to Motion to Suppress”)(asserting this fact); Tr. at 13:12-20 (Torrez, Lucero); id. 19:19-20:4 (Lucero, Torrez).

         5. Lucero advised Torres of the reason for the stop, and asked Torres for his license, registration, and proof of insurance. See Traffic Stop DVD at 2:40-2:42; Motion to Suppress ¶ 3, at 2 (asserting this fact); Response to Motion to Suppress ¶ 4, at 2 (asserting this fact).

         6. Torres provided Lucero with his license, registration, and proof of insurance. See Traffic Stop DVD at 2:40-2:44; Motion to Suppress ¶ 3, at 2 (asserting this fact); Response to Motion to Suppress ¶ 4, at 2 (asserting this fact).

         7. Lucero noticed that Torres appeared to be very nervous, and he asked Torres to step out of the Fusion and meet Lucero in front of Lucero's patrol vehicle, a request with which Torres complied. See Traffic Stop DVD at 2:50-3:11; Motion to Suppress ¶ 4, at 2 (asserting this fact); Response to Motion to Suppress ¶ 5, at 2 (asserting this fact); Tr. at 14:17-17:6 (Lucero, Torrez, Court).

         8. While Lucero wrote the citation, he asked Torres about Torres' travel plans, to which question Torres responded that: (i) he and Guerra were traveling to Amarillo, Texas, from California for a two-day vacation, see Traffic Stop DVD at 4:05-4:16; (ii) Torres did not have family in Amarillo, see Traffic Stop DVD at 4:05-4:16; (iii) Torres did not have hotel reservations but was planning to book a hotel when he arrived in Amarillo, see Traffic Stop DVD at 4:16-4:42; and (iv) Torres and Guerra had left California the previous evening, see Traffic Stop DVD at 5:17-5:24.

         9. When the citation was almost complete, Lucero asked for Torres' permission to return to the Fusion to inspect the vehicle identification number (“VIN”) and to speak with Guerra. Traffic Stop DVD at 5:56-5:59; Tr. at 9:10-18 (Torrez, Lucero); id. at 12:21-24 (Lucero, Torrez).

         10. Torres provided his consent both to the VIN inspection and to Lucero's request to speak with Guerra. See Traffic Stop DVD at 6:00.

         11. Lucero inspected the Fusion's VIN on the lower part of the driver's side window and on the driver's door jamb for no more than a few seconds. See Traffic Stop DVD at 6:13-6:18; Tr. at 9:21-10:11; id. at 11:18-25; 37:10-22 (Lucero, Torrez).

         12. Lucero then engaged Guerra in conversation about her travel plans while she remained in the Fusion's back seat. See Traffic Stop DVD at 6:19-7:03.

         13. Guerra reported that she and Torres were traveling to Texas for a two-day vacation, but she did not know the name of their destination city. See Traffic Stop DVD at 6:30-7:03; Tr. at 14:5-12; 19:5-9 (Lucero).

         14. Lucero returned to Lucero's patrol car, and asked Torres whether he wanted to resolve the speeding citation by paying a sixty-six-dollar fine or contesting the speeding ticket in court in Albuquerque. See Traffic Stop DVD at 7:41-8:15.

         15. Torres responded that he wished to pay the fine, and he signed the citation. See Traffic Stop DVD at 8:16-8:19; id. at 10:06-10:33.

         16. Lucero handed Torres his papers and the citation, and told Torres that Torres was free to leave. See Traffic Stop DVD at 11:15-11:16; Tr. at 20:11-21:1 (Lucero, Torrez).

         17. Torres began to walk to Torres' car, but Lucero asked Torres approximately seven seconds later whether Lucero could ask him some additional questions. See Traffic Stop DVD at 11:13-11:25.[3]

         18. Torres turned and returned to Lucero's patrol car. See Traffic Stop DVD at 11:21-11:25.

         19. Lucero again inquired into Torres' travel plans and Torres' relationship with Guerra before returning to the Ford Fusion SE and asking Guerra whether she could step out of the car for Lucero to ask her some additional questions. See Traffic Stop DVD at 11:27-13:47; Tr. at 21:25-23:24 (Lucero, Torrez).

         20. Guerra exited the car, and Lucero asked her further questions about her and Torres' travel plans. See Traffic Stop DVD at 13:48-17:

         21. Guerra told Lucero that: (i) she and Torres has planned the trip two days earlier, see Traffic Stop DVD at 14:27-39; (ii) Torres, contrary to what he had told Lucero, has family and friends in Amarillo, see Traffic Stop DVD at 16:45-16:50; and (iii) she had one pink-and-blue bag in the trunk, see Traffic Stop DVD at 17:32-18:13. See also Tr. at 24:10-25:25 (Lucero).

         22. Lucero asked Guerra if she and Torres were transporting: (i) weapons; (ii) currency in excess of ten thousand United States Dollars; or (iii) drugs or narcotics. See Traffic Stop DVD at 18:24-19:13.

         23. Guerra asserted that they were transporting none of these items. See Traffic Stop DVD at 18:24-19:13; Tr. at 26:10-27:1 (Lucero).

         24. After questioning Guerra, Lucero returned to his patrol car and asked Torres whether Torres has any family members who live in Amarillo, to which Torres responded in the negative. See Traffic Stop DVD at 19:14-19:30; Tr. at 27:10-17 (Lucero).

         25. Lucero further inquired how many pieces of luggage Torres had with him, to which Torres first responded that he had five pieces of luggage before revising that number to four and then revising it again to two. See Traffic Stop DVD at 19:49-20:40; Tr. at 27:18-28:4 (Torrez, Lucero).

         26. Lucero then asked Torres whether Torres was carrying any weapons, large amounts of currency, or illegal substances in the Ford Fusion SE, to which Torres responded in the negative. See Traffic Stop DVD at 20:43-21:20: Tr. at 29:3-20 (Lucero, Torrez).

         27. Lucero thereafter asked Torres for Torres' consent to a search of the Ford Fusion SE. See Traffic Stop DVD at 21:04-21:06; Tr. at 29:19-30:9 (Lucero). Torres inquired what would happen if he refused to consent to the search, to which Lucero responded: “I would deploy the dog around the outside of the car, and if my dog alerts, then what I could do is detain you and the vehicle and her and apply for a search warrant for the vehicle.” Traffic Stop DVD at 23:01-23:11. See Tr. at 30:9-22; 45:17-23 (Lucero, Pori).

         28. Torres signed the consent form. See Traffic Stop DVD at 23:11-23:41; Tr. at 30:22-25 (Lucero).

         29. Lucero searched Torres' person for weapons and then asked Guerra for permission to search her bag. See Traffic Stop DVD at 24:20-24:24; Tr. at 35:6-17 (Lucero).

         30. Guerra consented to the search and signed the consent form. See Traffic Stop DVD at 24:30-24:44; Tr. at 33:21-24, 35:2 (Lucero).

         31. Lucero searched the Ford Fusion SE and discovered 38.5 pounds of methamphetamine in the trunk inside two duffle bags. See Traffic Stop DVD at 26:01-29:41.

         32. Lucero arrested Torres, see Traffic Stop DVD at 30:03-30:22, and handcuffed Guerra, indicating that she was under investigation for narcotics, see Traffic Stop DVD at 34:55-35:21.

         PROCEDURAL BACKGROUND

         On October 25, 2016, a federal grand jury in Bernalillo County, New Mexico indicted Torres on the charge of unlawful, knowing, and intentional possession of more than five hundred grams of methamphetamine with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2. See Indictment 1, filed October 25, 2016 (Doc. 10). On November 2, 2016, Torres was arraigned before Judge Laura Fashing, United States Magistrate Judge for the United States District Court of New Mexico. See Clerk's Minutes for Proceedings Before Magistrate Judge Laura Fashing, filed November 2, 2016 (Doc. 13).

         1. Motion to Suppress.

         On December 8, 2016, Torres filed his Motion to Suppress. See Motion to Suppress at 1. Invoking the Fourth Amendment to the Constitution of the United States of America's guarantee that “[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures” shall not be infringed, Torres moves the Court to suppress all the evidence that Lucero seized on the day of Torres' traffic stop and arrest. Motion to Suppress at 6, 25 (quoting U.S. Const. amend. IV). According to Torres, searches without a warrant are presumptively unreasonable, and the United States bears the burden of proving the reasonableness of a warrantless search. See Motion to Suppress at 6 (citing United States v. Carhee, 27 F.3d 1493, 1496 n.2 (10th Cir. 1994); United States v. Finefrock, 668 F.2d 1168, 1170 (10th Cir. 1982)). Torres asserts that there is no dispute that the evidence Lucero seized was obtained without a warrant, and that the United States therefore bears the burden to prove that Lucero's search was reasonable and not a Fourth Amendment violation. See Motion to Suppress at 7.

         Torres enumerates two categories of police-citizen encounters that may implicate Fourth Amendment protections.[4] See Motion to Suppress at 7. First, according to Torres, there is a consensual encounter, which Torres contends is not a seizure within the Fourth Amendment's meaning and needs not have suspicion or criminal wrongdoing that support it. See Motion to Suppress at 7 (citing Florida v. Royer, 460 U.S. 491, 497-98 (1983)). Second, according to Torres, there is an investigative detention, i.e., a “Terry stop, ” which is a seizure within the Fourth Amendment's meaning, and for which articulable facts must justify a reasonable suspicion that criminal activity “may be afoot” to justify such a stop. Motion to Suppress at 7 (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)(“Terry”)).

         Torres insists that no part of his traffic stop on September 29, 2016, was a consensual encounter with Lucero. See Motion to Suppress at 7. To the contrary, Torres maintains, Lucero unreasonably and excessively detained Torres for much longer than necessary to complete a routine traffic citation when Lucero questioned Guerra. See Motion to Suppress at 7-8. Torres dismisses his verbal consent and signed consent form as illusory, and argues that he was unable to signal consent to the encounter on the grounds that he “only signed the consent after he considered Officer Lucero's claim of law, inevitable authority to search the vehicle.” Motion to Suppress at 8. Torres asserts, therefore, that the Court must suppress the evidence Lucero seized during the warrantless, allegedly nonconsensual search on September 29, 2016. See Motion to Suppress at 8.

         Expanding upon his argument that Lucero measurably extended the traffic stop in violation of the Fourth Amendment, Torres again invokes Terry, which he reads as requiring that a traffic stop “must be both justified at its inception and reasonably related in scope ‘to the circumstances which justified the interference in the first place.'” Motion to Suppress at 8 (quoting Terry, 392 U.S. at 20)). Torres asserts that an investigative detention must last no longer than is necessary to effectuate the stop's purpose and that the detention's scope must be carefully tailored to its underlying justification. See Motion to Suppress at 8 (citing United States v. Hunnicutt, 135 F.3d at 1349). Furthermore, Torres argues, a seizure that “‘is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.'” Motion to Suppress at 9 (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005)). Within the United States Court of Appeals for the Tenth Circuit, Torres continues, “‘[o]nce an officer returns the driver's license and registration, the traffic stop has ended and [all] questioning must cease; at that point the driver must be free to leave.'” Motion to Suppress at 9 (quoting United States v. Villa, 589 F.3d 1334, 1339 (10th Cir. 2009)).

         According to Torres, an officer making a traffic stop may properly request a driver's license and registration, run a computer check, and issue a citation. See Motion to Suppress at 9 (citing United States v. Walker, 933 F.3d 812, 816 (10th Cir. 1991)). Torres also concedes that an officer is entitled to inspect a VIN as part of a routine traffic stop. See Motion to Suppress at 9 n.1. Nevertheless, Torres maintains, an officer may not delay the cited motorist by asking the motorist further questions once the motorist has produced a valid license and proof that he or she is entitled to operate the vehicle. See Motion to Suppress at 9 (citing United States v. Walker, 933 F.3d at 816; United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir. 1988)). Torres insists that the officer cannot detain the motorist for even a moment without reasonable, objective grounds for detaining him or her. See Motion to Suppress at 9-11 (citing Rodriguez v. United States, 135 S.Ct. 1609 (2015); Florida v. Royer, 460491, 498 (1983)(plurality opinion)).

         Torres insists that Lucero had the information he needed to complete a traffic citation within two minutes of stopping Torres, but that Lucero nevertheless “persistently and impermissibly” extended the stop's to almost nine minutes before telling Torres that he was free to leave. Motion to Suppress at 11-13. According to Torres, Lucero had no reasonable suspicion of criminal activity to justify extending the stop so much. See Motion to Suppress at 13. Torres describes Lucero's suspicion as nothing more than an “inchoate” “hunch” related to Torres' and Guerra's nervous behavior, their inconsistent explanation of travel plans, and the smell of air freshener. Motion to Suppress at 14. Torres contends that the “vast majority of the motoring public” is nervous when interacting with a police officer during a traffic stop, has unusual traffic plans, and uses air fresheners in it cars. Motion to Suppress at 14. Consequently, Torres argues: (i) Lucero had no reasonable suspicion of criminal activity; (ii) Lucero's acts to prolong the stop violated the Fourth Amendment; and (iii) the Court must suppress all of the evidence seized during the allegedly unlawful detention. See Motion to Suppress at 14-16.

         Moreover, Torres contends, other facts seem to belie many of the facts that Lucero offers in support of his suspicions' reasonableness. See Motion to Suppress at 17. According to Torres:

While Officer Lucero claims that Mr. Torres was nervous, the dashboard cam shows that throughout the encounter Mr. Torres was responsive, inquisitive and even joked with Officer Lucero about his relationship with [Guerra]. While Officer Lucero suggests that Mr. Torres and Ms. G[uerra] told an unbelievable and inconsistent travel tale, the dashboard camera reveals that the two described the classic American road trip through the Southwest -- a trip to Texas via New Mexico to sightsee where there they planed [sic] to spend two days in Amarillo and obtain lodging on their arrival before returning to California.

         Motion to Suppress at 18. Torres insists that the “few inconsistencies” in his and Guerra's explanations were minor, and that they quickly corrected them. Motion to Suppress at 18. Torres avers that the Court should completely ignore any of the inconsistencies that emerged when Lucero questioned Guerra as he checked the Ford Fusion SE's VIN for another reason as well: “‘[O]bservations made during an illegal detention cannot be used to bootstrap reasonable suspicion.'” Motion to Suppress at 18 (quoting United States v. Kaguras, 183 F.App'x 783, 788 (10th Cir. 2006)). Last, Torres maintains that the car smelled of air freshener, because he habitually kept the car “meticulously clean.” Motion to Suppress at 18.

         Torres then argues that neither he nor Guerra voluntarily consented to the vehicle search. See Motion to Suppress at 19-21. As Torres reads the law, the burden is on the United States to prove that Torres' and Guerra's consent was voluntary -- a burden that Torres further insists the United States cannot meet for multiple reasons. See Motion to Suppress at 20. First, Torres says, Lucero obtained Torres' and Guerra's verbal and signed consent for the vehicle search only by exploiting the prior excessive detention. See Motion to Suppress at 20-21. Second, Torres contends, the circumstances' totality make it clear that Torres consented to the vehicle search only after he “succumbed to Officer Lucero's express claim of lawful authority” to have a K-9 drug-sniffing dog circle the Ford Fusion SE. Motion to Suppress at 21.

         Torres reads the law to require courts to accord three factors special weight when they determine whether consent to a vehicle search was free and voluntary after a motorist was unlawfully detained: (i) the seizure's temporal proximity to the consent; (ii) intervening circumstances' presence; and (iii) the official misconduct's purpose and flagrancy. See Motion to Suppress at 22. Furthermore, Torres argues, voluntary consent consists of two parts: (i) law enforcement officers must receive either express or implied consent; and (ii) that consent must be freely and voluntarily given. See Motion to Suppress at 23. Torres asserts that neither he nor Guerra provided voluntary consent to the vehicle search, insofar as Lucero presented them with a Hobson's choice: he was going to search the vehicle “one of two ways -- the easy way or the hard way, ” i.e., with or without Torres' and Guerra's consent. Motion to Suppress at 24. According to Torres, his apparent consent to the search was “nothing more than a reluctant submission to Officer Lucero's claims [of] authority.” Motion to Suppress at 25.

         2. Response to Motion to Suppress.

         The United States filed the United States' Response to Defendant's Motion to Suppress (Doc. 18) on December 22, 2016 (Doc. 24)(“Response”). According to the United States, Lucero stopped Torres based on reasonable suspicion a crime was taking place: speeding on the interstate. See Response at 6. The United States argues that the stop was routine and complied with New Mexico State Police guidelines in that it did not extend the traffic stop unlawfully. See Response at 6. The United States maintains that Torres and Guerra engaged in a consensual encounter with Lucero after the traffic stop was complete, and that Lucero only searched the Ford Fusion after Torres and Guerra gave him their voluntary consent for the search. See Response at 6. Furthermore, the United States contends, Lucero had reasonable suspicion to hold the vehicle for extra time even if Torres and Guerra had not given their consent to the encounter and the vehicle search. See Response at 6. This reasonable suspicion, the United States explains, was based on: (i) Lucero's training and experience; (ii) the inconsistencies in Torres' and Guerra's answers to Lucero's questions about their trip; (iii) the unusual travel plans; (iv) Torres' extreme nervousness; (v) the overwhelming smell of air freshener in the Ford Fusion; (vi) the numerous pieces of luggage for a purportedly short trip; and (vii) Torres' and Guerra's conflicting reports about their trip's purposes. See Response at 6-7.

         Expanding on its arguments, the United States first asserts that the traffic stop did not exceed the length of time or scope necessary to accomplish its investigative purpose. See Response at 7. According to the United States, a traffic stop is reasonable as long as it (i) is justified at its inception; and (ii) is reasonably related in scope to the circumstances that justified the stop, i.e., lasts no longer than is necessary to investigate the traffic infraction. See Response at 7 (citing Illinois v. Carballes, 543 U.S. 405, 407 (2005); United States v. Hensley, 469 U.S. 221 (1985)).[5] As the United States sees it, there is no question that the stop was justified at its inception; Torres does not dispute that he was speeding. See Response at 7. The United States argues that there also is no doubt that the stop lasted only as long as was necessary to investigate the traffic infraction. See Response at 7-8. The United States asserts that courts rarely if ever conclude that a stop was unlawfully extended if it was completed in less than an hour. See Response at 8. The United States maintains that this stop -- completed in approximately nine minutes -- falls so short of what courts have deemed the minimum amount of time for an unlawfully extended stop that Court should not conclude that the Torres stop was extended. See Response at 8. Furthermore, the United States asserts, nine minutes, on its face, is not an unreasonable amount of time for a traffic stop. See Response at 8. The United States avers that a court should measure a stop's legitimacy by the length of time it takes an individual officer to write and issue a specific citation, and that Torres has offered no evidence Lucero did not take nine minutes to examine Torres' driving documents, examine the VIN, and complete the citation. See Response at 8. According to the United States, the law permits every action Lucero took during the nine minutes it took Lucero to write the citation. See Response at 8-9. The United States asserts that a police officer may: (i) examine the VIN on both a vehicle's dashboard and a vehicle's doorjamb as long as the officer remains outside the car, see Response at 9 (citing New York v. Class, 475 U.S. 106, 118-19 (1986); United States v. Ramos, 194 F.Supp.3d 1134, 1140 (D.N.M. 2016)(Browning, J.)); (ii) direct ordinary inquiries incident to the traffic stop to the driver, see Response at 9-10 (citing, among many cases, United States v. Ramos, 194 F.Supp.3d at 1157; United States v. Simpson, 609 F.3d 1140, 1146 n.1 (10th Cir. 2010)); and (iii) direct ordinary inquiries incident to the traffic stop to any passenger, see Response at 10-11 (citing United States v. Ramos, 194 F.Supp.3d at 1157).

         The United States then shifts gears to argue that Lucero either had Torres' consent or had legal authority to detain Torres beyond the traffic stop's scope. See Response at 11. According to the United States, a police officer may detain a driver beyond the traffic stop's scope if the initial detention becomes a consensual encounter or the officer develops an objectively reasonable and articulable suspicion that the driver is engaged in some illegal activity. See Response at 11 (citing United States v. Rosborough, 366 F.3d 1145, 1148 (10th Cir. 2004); United States v. McGehee, 672 F.3d 860 (10th Cir. 2012)).[6] The United States maintains that Torres freely consented to Lucero asking him questions. See Response at 11. In the alternative, the United States contends, Lucero had probable cause to extend the detention based on his reasonable suspicion that Torres was engaged in illegal activity. See Response at 11.

         Drilling into its argument that Torres freely consented to Lucero asking him questions, the United States says that, after the initial encounter, Lucero gave Torres the speeding citation and returned all of Torres' papers to him. See Response at 11. The United States contends that the traffic stop ended at that moment. See Response at 11. As the United States sees it, Torres demonstrated his free consent to Lucero asking him more questions when Lucero called out to Torres and Torres returned to Lucero. See Response at 11. Invoking United States v. Laboy, 979 F.2d 795 (10th Cir. 1992), a decision that Judge Kelly wrote and that Judge McWilliams joined, but from which Judge Brorby dissented, the United States asserts that the encounter after the moment Torres returned to Lucero was consensual, and any encounter consensual encounter “need not be supported by reasonable suspicion of criminal activity” if a reasonable person would feel free to leave but chooses not to leave. Response at 12 (quoting United States v. Laboy, 979 F.2d at 798).

         The United States maintains that the Tenth Circuit has identified various factors relevant to whether a reasonable person would feel free to terminate an encounter with police. See Response at 12. According to the United States, these factors include:

The threatening presence of several officers; the brandishing of a weapon by an officer; some physical touching by an officer; use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory; prolonged retention of a person's personal effects such as identification and plane or bus tickets; a request to accompany the officer to the station; ...

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