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United States v. Lopez

United States Court of Appeals, Tenth Circuit

February 27, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
ADRIENNE LOPEZ, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
ANGELA MARIE LOPEZ, Defendant-Appellant.

         Appeal from the United States District Court for the District of Kansas (D.C. No. 5:13-CR-40065-DDC-6 & 7)

          John C. Arceci, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Denver, Colorado, for Defendant-Appellant Adrienne Lopez.

          Sean C. McEnulty, Attorney at Law, McNulty Law Firm, P.A., Wichita, Kansas, for Defendant Angela Marie Lopez.

          James A. Brown, Assistant United States Attorney (Barry R. Grissom, with him on the brief), Office of the United States Attorney, Topeka, Kansas, for Plaintiff-Appellee.

          Before KELLY, HARTZ, and MATHESON, Circuit Judges.

          HARTZ, Circuit Judge.

         Defendants Adrienne Lopez and Angela Lopez, no relation, appeal their convictions and sentences on charges of possessing methamphetamine with intent to distribute and conspiracy to do so. We need not address most of their arguments because we agree with them that the methamphetamine found in their car must be suppressed. They were properly stopped because Angela was speeding. But the officer did not have reasonable suspicion to continue their detention to obtain a drug-detection dog after he issued Angela a warning and Defendants refused to consent to a search of their vehicle. As alternative grounds for affirming the admission of the evidence, the government argues (1) that Adrienne cannot complain of the search because it was not a fruit of her detention and (2) that the continued detention was lawful anyway because there was probable cause to arrest Angela for driving without a license. We reject both arguments. The search of the vehicle was based on the dog's alert to marijuana in Adrienne's purse and the police dispatcher informed the officer on the scene that Angela had a valid license.

         I. BACKGROUND

         At 3 p.m. on June 21, 2013, Angela was driving a 2013 Dodge Avenger eastbound on U.S. Route 54 toward Wichita. Kansas Highway Patrol Trooper Robert Krause pulled the car over for going 79 miles per hour in a 65-mile-per-hour zone. Krause had graduated from the police training academy six months earlier and had worked as a solo patrolman for two months. The stop was recorded on Krause's dashboard camera. He approached the driver's side of the Dodge and told Defendants that he had pulled them over for speeding. The passenger, Adrienne, asked where they were speeding, and Krause told her. Throughout the encounter Adrienne, rather than Angela, the driver, did almost all the talking, which Krause said can be a sign of nervousness.

         After being told that the car was a rental, Krause asked Angela for her license, insurance, and car-rental paperwork. While Angela looked for those documents, Krause turned his attention to the backseat. Immediately, Adrienne said, "Don't look back there, it's a mess." Gov't Suppression Hr'g, Ex. 1, Videotape of Traffic Stop at 1:38-1:42 (Videotape). The backseat was not particularly messy; only a few bags and a blue cooler were on the seat.

         Krause then asked the women about their travel plans. Adrienne told him that they were coming from California and headed to "Kansas City or Nebraska" to rescue her sister "because she was getting beat up by her boyfriend." R. at 507, Suppression Hr'g at 18 (Suppression Hr'g). At that point Angela handed him her documents. Instead of her license she provided a receipt from the California Department of Motor Vehicles that was issued to her when she reported losing her license. The rental paperwork stated that the car was rented in El Monte, California, at 5:30 p.m. on June 20 for two days, to be returned to the same location.[1]

         Krause asked the women if they had any drugs, such as marijuana, methamphetamine, or heroin, in the car. They replied no, but Adrienne added that she needed some marijuana because the drive was taking too long. This prompted Krause to inquire further into their travel plans. They told him that they left California at about 6 p.m. the night before and drove through the night. When asked if they stopped a lot, Adrienne replied, "a lot, too much." Videotape at 3:38-3:40. With that, Krause returned to his car to check Angela's documents.

         Krause relayed Angela's information to the dispatcher and learned that she had a valid driver's license and no criminal history. He reapproached the driver's side of the car, returned Angela's paperwork, and warned her for speeding and not having her license. Adrienne thanked him and asked whether a person can get in trouble for not having her license when driving. Krause explained that she could. He then told Defendants to have a safe trip and turned to walk away.

         After taking four steps away from the Dodge, Krause turned around and walked to the driver's side window. He asked Angela if she minded answering a few more questions, and she consented. He again asked her where they were headed, and again Adrienne interceded, saying that she did not know the exact city because her cell phone had not been working for the past two hours. Krause asked Defendants if they were related, and they gave different answers. Talking over each other, Angela said that they were friends, while ...


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