United States District Court, D. New Mexico
P. Martinez United States Attorney Presiliano Torrez
Assistant United States Attorneys for the Plaintiff
A. Pori Federal Public Defender
MEMORANDUM OPINION AND ORDER
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.
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.
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,
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).
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”).
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).
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).
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).
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).
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.
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,
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.
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).
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.
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).
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
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.
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).
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.
Torres turned and returned to Lucero's patrol car.
See Traffic Stop DVD at 11:21-11:25.
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).
Guerra exited the car, and Lucero asked her further questions
about her and Torres' travel plans. See Traffic
Stop DVD at 13:48-17:
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).
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.
Guerra asserted that they were transporting none of these
items. See Traffic Stop DVD at 18:24-19:13; Tr. at
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 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).
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).
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,
Torres signed the consent form. See Traffic Stop DVD
at 23:11-23:41; Tr. at 30:22-25 (Lucero).
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).
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).
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.
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.
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
Motion to Suppress.
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.
enumerates two categories of police-citizen encounters that
may implicate Fourth Amendment protections. 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
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.
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)).
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
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
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.
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
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.
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.
Response to Motion to Suppress.
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.
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)). 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).
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)). 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.
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).
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
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; ...