Appeal from the United States District Court for the District of Nebraska.
The opinion of the court was delivered by: Benton, Circuit Judge
Submitted: March 12, 2010
Before SMITH, BENTON, and SHEPHERD, Circuit Judges.
Santiago Lopez-Mendoza pled guilty to one count of possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1). In the plea agreement, Lopez-Mendoza reserved the right to appeal the district court's*fn1 denial of his motion to suppress. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, this court affirms.
At about 8:30 a.m. on December 29, 2007, Rene Manuel Vargas-Miranda and his passenger, Santiago Lopez-Mendoza, pulled into a Nebraska gas station in a Dodge Magnum with New York plates. Vargas-Miranda entered to buy coffee, and talked casually with county deputy Randy Brown inside. Brown was in uniform and visibly armed. Vargas-Miranda mentioned his car belonged to his girlfriend in New York, and he was driving there to stay two or three weeks.
As Vargas-Miranda was leaving, Deputy Brown asked for his license and registration. Vargas-Miranda provided a California driver's license. He did not have registration, but produced an insurance card with the name Jessica Roldan. The deputy took the card and asked Vargas-Miranda the name of the car's owner. Vargas-Miranda tried to read the card in the deputy's hand, then said Lopez-Mendoza's girlfriend owned the car. When asked how he and Lopez-Mendoza planned to return to California, Vargas-Miranda said they would probably rent a car.
Deputy Brown approached the car and asked Lopez-Mendoza who owned it. Lopez-Mendoza answered "Jessica Roldan." Asked about travel plans, Lopez-Mendoza said he and Vargas-Miranda were going to New York for two or three days and flying back to California. At this point, Vargas-Miranda said that Lopez-Mendoza does not speak English; Lopez-Mendoza then told the deputy he does not speak English. The deputy noticed seven or eight air fresheners in the vehicle. He turned on the camera in his nearby patrol car.
Deputy Brown returned Vargas-Miranda's documents and thanked him for talking. He then asked if Vargas-Miranda had drugs in the car. Vargas-Miranda replied "no." Asked about heroin, Vargas-Miranda laughed and said he left it at home.
Deputy Brown asked, "Do you care if I look and see?," simultaneously pointing two fingers first toward his eyes and then at the car. Vargas-Miranda said "go ahead," but after a pause added, "You don't got no right. I wasn't even driving." Deputy Brown responded, "Well I'm asking you. I'm just asking you. I'm asking you. But like you said, it's all consensual. I'm just asking you." After asking about weapons, he went on to say, "Well, I'll tell you what, since you said I could look, I'm going to go ahead and look real quick, and then get you guys on your way." In response, Vargas-Miranda nodded his head.
Deputy Brown asked Vargas-Miranda and Lopez-Mendoza to stand by a nearby picnic table while he searched the car. After calling for back-up, Deputy Brown drove his patrol car behind the Dodge Magnum and got his drug-sniffing dog out of the car. Circling the Dodge Magnum, the dog did not alert. The deputy searched the rear cargo area, using a cordless drill to remove mismatched drywall screws from a side panel. Meanwhile, another officer arrived and placed Vargas-Miranda and Lopez-Mendoza in his patrol car.
Finding nothing in the rear area, Deputy Brown moved to the glove compartment. He saw a loose piece of fabric and noticed the rivets used to tack it to the back of the glove compartment had been removed. He found a duct-taped package wedged in the space between the glove compartment and the radio. The dog alerted when sniffing there. The car was towed and the package removed -- it contained three pounds of heroin. The search lasted about 30 minutes before the drugs were found. The car was not damaged.
Lopez-Mendoza and Vargas-Miranda were indicted for possessing heroin with intent to distribute. Lopez-Mendoza entered a conditional guilty plea, reserving his right to appeal the denial of his motion to suppress. The district ...