Summaries of Selected Opinions, 0616 COBJ, Vol. 45 No. 6 Pg. 105

45 Colo.Law. 105

Summaries of Selected Opinions

Vol. 45 No. 6 [Page 105]

The Colorado Lawyer

June, 2016

Summaries of selected Tenth Circuit Court of Appeals Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association (CB A) by Katherine Campbell and Frank Gibbard, licensed Colorado attorneys. They are provided as a service by the CBA and are not the official language of this Court. The CBA cannot guarantee the accuracy or completeness of the summaries. Full copies of the Tenth Circuit decisions are accessible from the CBA website: www.cobar.org (click on "Opinions/Rules/Statutes").

U.S. Court of Appeals for the Tenth Circuit

No. 15-7042. United States v. Mendoza. 03/25/2016. E.D.Okla. Judge Hartz. Fourth Amendment —Scope of Consent to Search—Probable Cause—Dismantling of Ice Chests.

Defendant pleaded guilty to drug offenses, reserving the right to appeal the denial of his motion to suppress drugs found during a traffic stop. A highway patrolman stopped him for speeding. Defendant drove a longer distance than usual before pulling over. The officer observed food and trash in the passenger seat, suggesting that defendant had been trying to avoid stopping on the way to his destination. Defendant appeared nervous and was visibly shaking during the stop. There were inconsistencies in his statements to the officer about his travel plans. After the officer issued him a written warning, defendant gave him consent to search the vehicle. The officer left him in the patrol car during the search, telling him to honk the horn if he wanted to stop the search. The officer called a second officer to assist with the search. The officers opened an ice chest in his trunk, which contained wrapped fish and shrimp, but which showed signs of tampering. After removing the packages from the ice chest, the officers used a tool to pry the inner and outer layers farther apart, which indented the foam but did not damage the ice chest. Their search revealed black bundles containing drugs. The officers then dismantled another ice chest in the car and found more drugs.

On appeal, defendant argued (1) the officers did not have valid consent to search because he was unlawfully detained when he gave consent, (2) the search of the first ice chest exceeded the scope of his consent, and (3) the search and destruction of the second ice chest was unlawful because the officers lacked probable cause. The Tenth Circuit disagreed.

First, defendant was lawfully detained up to the time he consented to the search. A traffic stop may be extended after the initial reason for the stop has been satisfied where, as here, the officer has "an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring." [United States v. Moore, 795 F.3d 1224 (10th Cir. 2015).] Second, the search of the first ice chest did not exceed the scope of defendant's consent to a general search without limitations. The partial dismantling of the chest came within the scope of general consent, and dumping out the fish did not contaminate or spoil it. Once the officers saw the black bundles, they could fully dismantle the chest to remove them. Furthermore, defendant did not honk the horn to stop the search.

Finally, the officers had probable cause to search the second ice chest, and their actions in dismantling it were reasonable under the circumstances. The officers had just found drugs in the modified lining of the first ice chest...

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