United States of America v. Elvis A. Garrido-Santana

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0052P (6th Cir.)
File Name: 04a0052p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ELVIS A. GARRIDO-SANTANA,
Defendant-Appellant.
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No. 02-6076
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 97-20204—Samuel H. Mays, Jr., District Judge.
Argued: December 5, 2003
Decided and Filed: February 20, 2004
Before: KENNEDY, MARTIN, and MOORE, Circuit
Judges.
_________________
COUNSEL
ARGUED: Needum L. Germany, OFFICE OF THE
FEDERAL PUBLIC DEFENDER FOR THE WESTERN
DISTRICT OF TENNESSEE, Memphis, Tennessee, for
Appellant. Thomas A. Colthurst, ASSISTANT UNITED
STATES ATTORNEY, Memphis, Tennessee, for Appellee.
ON BRIEF: Doris A. Randle-Holt, Stephen B. Shankman,
2 United States v. Garrido-Santana No. 02-6076
OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR
THE WESTERN DISTRICT OF TENNESSEE, Memphis,
Tennessee, for Appellant. Thomas A. Colthurst,
ASSISTANT UNITED STATES ATTORNEY, Memphis,
Tennessee, for Appellee.
_________________
OPINION
_________________
KENNEDY, Circuit Judge. Defendant Elvis Garrido-
Santana entered a conditional plea of guilty to one count of
possessing cocaine with the intent to distribute in violation of
21 U.S.C. § 841(a) (1). Defendant appeals the district court’s
denial of his motion to suppress evidence. Defendant also
appeals the district court’s application of a sentence
enhancement for obstruction of justice under United States
Sentencing Guidelines (“U.S.S.G.”) § 3C1.1 and its denial of
a sentence reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1. For the reasons explained below, we
AFFIRM the denial of defendant’s suppression motion and
his sentence.
I. Background
Defendant Garrido-Santana was indicted on one count of
possessing cocaine with the intent to distribute in violation of
21 U.S.C. § 841(a) (1). Defendant failed to appear for his
arraignment on that charge after being released on bond.
Based upon this failure to appear, the government secured a
superseding indictment that added a second count charging
defendant with violating 18 U.S.C. § 3146(a)(1). Defendant
was ultimately arraigned upon being extradited from the
Dominican Republic, the country to which he fled. Defendant
filed a motion to suppress evidence flowing from police
officers’ traffic stop of the rental vehicle that defendant was
driving. After conducting an evidentiary hearing, the
magistrate judge, to whom the district court had referred

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No. 02-6076 United States v. Garrido-Santana 3
defendant’s suppression motion, issued a report and
recommendation advising the district court to deny that
motion. Adopting the magistrate judge’s proposed findings
and recommendation, the district court denied defendant’s
suppression motion. Defendant entered a conditional plea of
guilty to count one of possessing cocaine with the intent to
distribute in violation of 21 U.S.C. § 841(a) (1), expressly
reserving his right to appeal the denial of his suppression
motion. The district court, pursuant to the government’s
motion, dismissed count two charging defendant with failing
to appear at his arraignment. However, in sentencing
defendant on count one, the district court relied on this failure
to appear in enhancing defendant’s sentence by two levels
under U.S.S.G. § 3C1.1 for obstruction of justice and in
refusing to reduce defendant’s sentence under U.S.S.G.
§ 3E1.1 for acceptance of responsibility. After applying all
of the relevant factors, the district court ultimately arrived at
a Guidelines’ range in which it sentenced defendant to ninety-
seven months of imprisonment followed by three years of
supervised release.
II. Defendant’s Suppression Motion
A. Relevant Facts
In denying the suppression motion, the district court found
the following facts. On the morning of September 18, 1997,
Patrolman Terry M. Lomax (“Lomax”) of the Shelby County
Sheriff’s Department was parked in a marked squad car in the
grassy median strip of Interstate 40 in Shelby County,
Tennessee. When a 1997 Chrysler LHS sedan–the vehicle
that defendant was driving–passed his position, Lomax
pointed his radar speed-clocking unit at the sedan. Yet, the
radar picked up only a large tractor-trailer that was traveling
in the east-bound lane adjacent to the sedan; it indicated that
the tractor-trailer was proceeding at the posted speed limit of
65 mph. After the sedan passed the tractor-trailer, Lomax
pulled his vehicle out of the median and pulled alongside the
sedan. As he testified, Lomax did not know whether the
4 United States v. Garrido-Santana No. 02-6076
tractor-trailer had maintained the posted speed or had slowed
down. Lomax’s accurately-calibrated speedometer and radar
“clocked” the sedan at 71 mph. Activating his squad car
lights, Lomax pulled the sedan over for speeding.
Upon approaching the driver’s side door of the sedan,
Lomax asked defendant, who was traveling alone, for his
driver’s license. Defendant handed Lomax a Puerto Rico
driver’s license in the name of “Elvis A. Garrido.”
Examining the license, Lomax found it to be valid and
current. Lomax informed defendant that he had stopped him
for speeding. Lomax then inquired about defendant’s place
of departure and destination. Defendant replied that he had
come from Houston, Texas, and was heading to New York to
visit his mother. Asked if he lived in Puerto Rico, defendant
answered in the affirmative. Lomax testified that he was
suspicious of the fact that defendant, a resident of Puerto
Rico, was driving a car with Texas plates. After Lomax asked
about the vehicle’s ownership, defendant informed Lomax
that it was a rental car. Defendant produced the rental
agreement for which Lomax asked. The rental agreement
evidenced the following: 1) another individual named “Junior
Santana,” a resident of New York, had rented the vehicle at
the Hobby Airport, in Houston, Texas, on September 16,
1997; 2) the vehicle was to be returned to that airport by 7:00
p.m. the following day–September 19th; 3) a notation of “add
driver $10.50"; and 4) an illegible signature near Junior
Santana’s signature. Lomax noticed that the rental agreement
did not list defendant, in typewriting, as an additional driver.
Upon being asked, defendant informed Lomax that “Junior
Santana” was his cousin. Defendant told Lomax that
defendant had flown from Puerto Rico to Miami, Florida, and
then to Houston, Texas, where he and his cousin had rented
the vehicle for defendant to drive to New York. Lomax was
aware that the vehicle that defendant was driving was known
to have easily accessible places in which to hide narcotics.
Believing that the rental agreement did not list defendant as
an additional driver, Lomax ran a license plate check to

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No. 02-6076 United States v. Garrido-Santana 5
ensure that the vehicle was not stolen. At some point, Lomax
began filling out a warning citation–a courtesy ticket that
carries no penalties–for defendant’s speeding. Lomax
advised defendant that he was giving defendant a warning
citation but that he was still awaiting the return of a computer
check. Lomax observed that, even after he had informed
defendant that he would only receive a warning ticket,
defendant continued to exhibit signs of nervousness, such as
avoiding eye contact, laughing nervously, and fidgeting;
based upon his experience, Lomax found this nervousness
unusual. Returning the rental agreement and license to
defendant, Lomax explained the courtesy citation, which he
was still filling out, to defendant. Lomax asked if defendant
had any illegal contraband, such as drugs or stolen goods, in
his vehicle. Defendant replied in the negative. Lomax asked
if defendant would consent to a search of the vehicle.
Defendant answered in the affirmative. Lomax gave
defendant the courtesy citation to sign. After defendant
signed the citation, Lomax gave defendant a copy of the
citation as well as a consent-to-search form. Lomax advised
defendant to read the consent form and to ask any questions
that he might have before signing it. Defendant signed the
consent form. Approximately ten minutes had elapsed
between the initial traffic stop and defendant’s execution of
the consent form.
Around the time that defendant signed the consent form,
Patrolman Dale Lane (“Lane”)–also of the Shelby County
Sheriff’s Department–arrived. Although they used a drug
detection dog to survey the vehicle, the dog did not alert to
the presence of narcotics. Both Lomax and Lane quickly
looked around the sedan. At some point, Lane and Lomax
saw unopened packages of a pair of pliers and an adjustable
wrench in a bag on the floor of the front passenger seat.
While standing beside the rear of the vehicle, Lane informed
Lomax that he smelled a strong odor of gasoline. Lomax
smelled nothing as he suffered from sinus congestion at the
time. They asked defendant, who was standing near the rear
of the vehicle, to sit in the back of Lane’s squad car. As
6 United States v. Garrido-Santana No. 02-6076
1Although it is unclear whether Lomax examined the vehicle’s access
plate and suspected its removal before he observed the tools in the
passenger compartment and before he placed defendant in the squad car,
it is clear that Lomax and Lane removed the access plate only after these
events.
Lomax was placing defendant in the squad car, defendant
volunteered that he had been stopped twice before on his trip
and had been searched. When Lomax questioned defendant
about these stops, defendant stated that he had no
documentation for them. Upon being asked, defendant
affirmed that he had been in possession of the vehicle at all
times during his trip. Because defendant would have been
unable to exit the squad car, Lomax instructed him on how to
use its public address system in case he needed to
communicate with the officers.
Recalling that it affords easy access to the gas tank, in
which drugs have been smuggled, they opened the trunk of
the vehicle.1 Upon pulling the carpet back, Lomax saw a
sliver plate, which four bolts fastened and which provided
access to the gas tank sending unit, a device that signals the
dashboard about the amount of gasoline in the gas tank. Lane
and Lomax noticed that the bolts fastening the silver plate had
scratches around them as if they had been removed and then
replaced. Because the vehicle was new and had very low
mileage, Lomax found this apparent removal of the plate
unusual. Lomax believed that the tools in the passenger
compartment were to be used in removing the silver plate so
as to access the gas tank. Lomax and Lane removed the
trunk’s silver plate to access the gas tank. By inserting a fiber
optic scope into the top of the gas tank, Lomax observed
white cellophane-covered bundles in the gas tank. Believing
that these bundles contained illegal narcotics, Lomax and
Lane arrested defendant. At no time during the search did
defendant object to its duration or scope. Sometime after the
completion of the search, Lomax received the computer check

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No. 02-6076 United States v. Garrido-Santana 7
and learned that the vehicle was not stolen. Seven bundles of
cocaine were subsequently seized from the vehicle’s gas tank.
B. Analysis
We review the district court’s legal conclusions in a
suppression hearing de novo and its factual findings in a
suppression hearing for clear error. United States v. Smith,
263 F.3d 571, 581-82 (6th Cir. 2001). The district court’s
determination as to the existence of probable cause justifying
a traffic stop is a question of law that we review de novo.
United States v. Rodriguez-Suazo, 346 F.3d 637, 643 (6th Cir.
2003). The district court’s determination as to whether the
facts establish an unconstitutional seizure under the Fourth
Amendment is a question of law that we review de novo.
United States v. Avery, 137 F.3d 343, 348 (6th Cir. 1997).
The district court’s determination of whether a search
exceeded the scope of consent is a question of fact that we
review for clear error. United States v. Fowler, 42 F.3d 1389,
1994 WL 685417, at *6 (6th Cir. 1994). When considering
the denial of a suppression motion, we must view the
evidence in the light most favorable to the government.
United States v. Wellman, Jr., 185 F.3d 651, 654-55 (6th Cir.
1999).
1. Validity of the Traffic Stop
A traffic stop is reasonable under the Fourth Amendment
where the stop was both proper at its inception and
“reasonably related in scope to the circumstances . . . [that]
justified the . . . [stop] in the first place.” United States v.
Freeman, 209 F.3d 464, 466 (6th Cir. 2000) (quoting Terry v.
Ohio, 392 U.S. 1, 19-20 (1968)) (internal quotation marks
omitted). A police officer may lawfully stop a motorist
whom he has probable cause to believe has committed a
traffic violation. Id. However, a police officer cannot
continue to detain a motorist after the officer has completed
the initial purpose of the traffic stop “unless something that
occurred during the stop caused the officer to have a
8 United States v. Garrido-Santana No. 02-6076
2As evidence that the stop was pre-textual, defendant underscores
that Lomax was suspicious of defendant because he had a Puerto Rico
driver’s license and was driving a vehicle with Texas tags. However, we
note that such subjective suspicion is factually–as well as
legally–irrelevant to the validity of the initial traffic stop because Lomax
only learned about defendant’s residency after he had sto ppe d defendant’s
vehicle.
reasonable and articulable suspicion that criminal activity was
afoot.” United States v. Hill, 195 F.3d 258, 264 (6th Cir.
1999).
Defendant appeals the district court’s denial of his
suppression motion on the ground that Lomax’s initial stop of
defendant’s vehicle violated the Fourth Amendment. In
particular, defendant argues that Lomax actually stopped
defendant’s vehicle based upon his suspicion that defendant
was involved in illegal drug trafficking, not based upon an
alleged speeding violation. However, in Whren v. United
States, 517 U.S. 806, 813, 819 (1996), the Supreme Court
held that, as long as a police officer has probable cause to
believe that a motorist committed a traffic violation, the
resulting traffic stop is generally reasonable under the Fourth
Amendment regardless of the officer’s subjective intent or
state of mind in conducting the traffic stop. 2 Accord United
States v. Bailey, 302 F.3d 652, 657 (6th Cir. 2002) (noting
that “[i]t is well established . . . that an officer’s actual
motivation for making a traffic stop is irrelevant to the
constitutionality of that stop”); Wellman, 185 F.3d at 655
(finding that, where probable cause for the traffic stop exists,
whether the police officer was motivated in conducting the
traffic stop based upon his “suspicion that the defendant fits
into a ‘drug courier profile’” or his membership in a drug
interdiction unit is irrelevant to the stop’s constitutionality
under the Fourth Amendment).
Alternatively, defendant contends that Lomax lacked
probable cause to justify the traffic stop of defendant’s
vehicle because defendant had not, in fact, been speeding

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No. 02-6076 United States v. Garrido-Santana 9
prior to that stop. At the suppression hearing, Lomax testified
that, while pacing defendant’s vehicle with his squad car, he
used both his calibrated speedometer and his radar to
determine that defendant’s vehicle was traveling at 71 mph in
a 65 mph zone. Defendant asserts that this testimony is
unworthy of belief. Yet, the only evidence that defendant
offers to refute this testimony is his own testimony at the
suppression hearing. In particular, defendant testified that he
did not “think” that he was speeding because he knew that the
posted speed limit was 65 mph, he had cruise control, he had
never broken the law, and he had never been stopped for
speeding. However, the district court reasonably found that
defendant was not a credible witness. For example, defendant
later testified that police had stopped him and had given him
a courtesy citation the night before Lomax had stopped him.
Defendant also demonstrated his propensity to lie under oath
when, in 1997, he failed to appear at his arraignment despite
having promised the district court, as a condition of his bond,
that he would appear at all required proceedings. In an
attempt to negate Lomax’s testimony, defendant contends that
it would have been unreasonable for defendant to have sped
past Lomax’s squad car since it was clearly visible to passing
motorists and was positioned so as to pursue any violators
easily. Similarly, defendant argues that it would have been
even more unreasonable for him to have continued to speed
after Lomax began pacing defendant’s vehicle. However, as
the district court aptly observed, “[c]ommon experience
teaches that speeding motorists are usually apprehended when
police are positioned to observe them and often when the
motorist can observe the officer as well.” The district court
correctly recognized that, in any event, no evidence in the
record demonstrates that defendant is a reasonable motorist.
Viewing the evidence in the light most favorable to the
government, the district court did not clearly err in choosing
to credit Lomax’s testimony that defendant was speeding over
defendant’s self-interested and inconsistent testimony to the
contrary. See Peveler v. United States, 269 F.3d 693, 702
(6th Cir. 2001) (“We are generally reluctant to set aside
credibility determinations made by the trier of fact, who has
10 United States v. Garrido-Santana No. 02-6076
3Defendant argues that Lomax testified that defendant signed the
warning ticket before Lomax returned the rental agreement and driver’s
license. However, Lomax actually testified–and the district court
found–that Lom ax returned the rental agreement and d river’s license to
defendant while Lomax was filling out the courtesy citation and before
defendant signed it. In any event, after returning defendant’s documents
and issuing a copy o f the signed courtesy ticket, Loma x did continue to
detain defendant pending the completion of the computer check.
had the opportunity to view the witness[es] on the stand and
[to] assess . . . [their] demeanor.”). Because defendant was
speeding in violation of Tennessee law, Lomax had probable
cause to stop defendant’s vehicle.
Defendant also appeals the district court’s denial of his
suppression motion on the ground that the traffic stop was not
reasonably related in scope and duration to the initial purpose
of the stop–the speeding violation. Defendant contends that
this initial purpose ended when defendant signed the courtesy
ticket and Lomax returned the rental agreement and driver’s
license to defendant.3 According to defendant, Lomax then
prolonged the detention when he, in effect, informed
defendant that he could not leave because Lomax was
awaiting the return of a computer check. The thrust of
defendant’s argument is that it was not “reasonably related”
to the speeding violation for Lomax to have conducted a
computer check to ensure that defendant was lawfully
operating the vehicle because such a check was unnecessary
and, thus, unreasonable under the totality of the
circumstances. Defendant contends that a reasonable police
officer would infer from defendant’s illegible signature near
the renter’s signature and the notation of “add driver $10.50"
on the rental agreement that defendant was lawfully operating
the vehicle. At the suppression hearing, Lomax testified that,
after looking at the rental agreement “closely,” he ran the
computer check on the vehicle’s license plate because he did
not see defendant’s name “listed”–or printed–on the
agreement. Lomax elaborated that about ninety-nine percent
of the rental agreements that he had seen listed the name of

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No. 02-6076 United States v. Garrido-Santana 11
4Although defendant contends that Lom ax had four documents in his
possession containing defendant’s signature–his driver’s license, the
rental agreement, the courtesy citation, and the consent-to-search form–,
Lomax only had d efendant’s driver’s license and the rental agreement in
his possession at the time that he requested the license p late check.
the additional driver in the same type of print in which the
renter’s name was listed. Lomax testified that he first
recognized the signature on the rental agreement as
defendant’s after he had returned to the police station and was
comparing that document with defendant’s driver’s license
and the courtesy ticket that defendant had signed. As to
whether it was reasonable to believe that the vehicle was
stolen, Lomax underscored that, along with defendant’s name
not being printed on the rental agreement, Lomax knew of
instances in which authorized individuals had not done
something that the rental agreement required them to do. As
Lomax testified, “[t]here are always reasons to do checks.”
Defendant contends that Lomax’s testimony is incongruous
with the facts. To the extent that defendant asks us to set
aside the district court’s determination that Lomax was a
credible witness, we find no reason to accept such an
invitation. See Peveler, 269 F.3d at 702. Moreover,
defendant’s focus upon Lomax’s subjective intent in or
justification for running the computer check on the license
plate is misplaced. “[T]he touchstone of the Fourth
Amendment is reasonableness . . . measured in objective
terms by examining the totality of the circumstances.” Ohio
v. Robinette, 519 U.S. 33, 39 (1996) (internal quotation marks
omitted; emphasis added). Here, while the rental agreement
displayed defendant’s signature and a charge for an additional
driver, defendant’s signature was illegible and located in an
odd location on that agreement. A reasonable officer likely
would not have recognized that illegible signature as
belonging to defendant unless and until he placed defendant’s
driver’s license directly beside the rental agreement and
compared their respective signatures.4 A reasonable officer
12 United States v. Garrido-Santana No. 02-6076
examining defendant’s driver’s license probably would have
focused upon the picture and the expiration date, as Lomax
did. We note that, even if the rental agreement reasonably
appeared to authorize defendant as an additional driver, a
reasonable police officer would still have good reason to run
a license plate check. For example, defendant may have
forged that authorization, or the rental company may have
rescinded such authorization, even if initially valid, due to a
violation of the rental agreement. As the Supreme Court has
recognized, states have a critical interest in ensuring that
motorists observe licensing and registration requirements as
well as a legitimate interest in controlling automobile thefts.
Delaware v. Prouse, 440 U.S. 648, 658, 659 n.18 (1979). We
note that defendant’s detention until the completion of the
computer check–sometime after the search of the vehicle–was
not intrusive. The pendency of the computer check was
largely co-extensive with the vehicle search, to which
defendant consented before Lomax had finished issuing the
warning citation and to whose duration defendant never
objected. During the unknown amount of time between the
completion of the search and that of the computer check,
defendant was under lawful custodial arrest based upon the
fruits of the search. In sum, under the totality of the
circumstances, it was objectively reasonable and within the
bounds of the traffic stop for Lomax to have requested a
computer check to ensure that defendant was lawfully
operating the vehicle. See id. at 663 (“[E]xcept in those
situations in which there is at least articulable and reasonable
suspicion that a motorist is unlicensed or that an automobile
is not registered, or that either the vehicle or an occupant is
otherwise subject to seizure for violation of law, stopping an
automobile and detaining the driver in order to check his
driver’s license and the registration of the automobile are
unreasonable under the Fourth Amendment.”) (emphasis
added); Wellman, 185 F.3d at 656 (holding that the police
officer “lawfully asked defendant to sit in the squad car while
he wrote a courtesy citation and performed record checks of
his driver’s license and registration” as it was within the
scope of the traffic stop for speeding); United States v.

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No. 02-6076 United States v. Garrido-Santana 13
5In particular, defendant contends that Lomax only conducted the
check beca use defendant, a resident o f Puerto Rico, was driving a vehicle
with Texas license tags; according to defendant, such a ground does not
afford Lomax reasonable suspicion that defendan t was unlaw fully
operating the vehicle because it is logistically unlikely for a car with
Puerto Rico tags to b e in the United S tates.
6Com pare United States v. Sha bazz, 993 F.2d 43 1, 436-37 (5th Cir.
1993) (holding that questions, which, in themselves, are neither searches
nor seizures, are relevant to whether a detention has exceeded its lawful
duration, and that the police officer’s questioning of defendants regarding
their recent whereabouts did not exceed the original scope of the traffic
stop–for speeding–because it occurred while a computer check was
pending and, thus, did not extend the duration o f the initial stop), and
United States v. Childs, 277 F.3d 94 7, 949 (7th Cir. 200 2) (“Be cause
questions are neither se arches nor seizures, . . . [q]uestions asked during
detention may affect the reasonableness of that detention . . . to the extent
Bradshaw, 102 F.3d 204 (6th Cir. 1996) (holding that the
police officer “could lawfully detain . . . [defendant in the
back of the squad car] until he had finished performing radio
checks and issuing the citation” because it was “well within
the bounds of the initial stop.”); Hill, 195 F.3d at 269
(holding that a driver’s license check was within the original
scope of a traffic stop based upon a traffic violation). Thus,
we reject defendant’s contention that Lomax needed a
reasonable suspicion that defendant was unlawfully operating
the vehicle to justify this detention.5
Alternatively, defendant claims that Officer Lomax
exceeded the bounds of the initial traffic stop for speeding
when he asked whether defendant possessed any illegal
contraband. The circuit courts generally agree that the Fourth
Amendment requires that, absent additional justification, any
questioning during a valid traffic stop must not prolong the
detention necessary to complete the initial purpose of that
stop; however, there is some disagreement as to whether the
Fourth Amendment also requires that, absent additional
justification, such questioning must be reasonably related in
subject matter to the purpose of the initial traffic stop.6 This
14 United States v. Garrido-Santana No. 02-6076
that they prolong custody, but questions that do not increase the length of
the detention (or that extend it by o nly a brief time) do not make the . . .
[detention] itself unreasonable or require suppression of evidence found
as a result of the answers.”) with U nited States v. Murillo, 255 F.3d 1169,
1174 (9th Cir. 200 1) (“D uring a tra ffic stop, a police officer is allowed to
ask questions that are reasonably related in scope to the justification for
his initiation of contact . . . . In order to broaden the scope of questioning,
he must articulate suspicious factors that are particularized and
objective.”), and United States v. H olt, 264 F.3d 1215, 12 28-31 (10th Cir.
2001) (holding that “the Fourth Amendment reasonableness of a traffic
stop based on probab le cause must be jud ged by examining both the
length of the detention and the manner in which it is carried out,” and,
thus, rejecting the argume nt that the nature of any questioning during a
traffic stop is irrelevant so long as it does not unreaso nably prolo ng that
stop’s duration).
7In United States v. Palomino, we held that a police officer did not
violate the Fourth Amendment when, following a traffic stop based upon
probab le cause of a traffic violation, the officer asked the defendant about
whether he possessed illegal contraband because the officer “did not
detain . . . [the defendant] longer than was necessary for the original
purpo se of the stop, and because there was reaso nable suspicion to
conduct the brief questioning.” 100 F.3d 446, 449-50 (6th Cir. 1996)
(emp hasis added). One could argue that Palomino implicitly holds that
questioning during a traffic stop must be reasonably related to the initial
purpo se of that stop because, absent this requiremen t, it need not have
found that reasonable suspicion for such questioning existed. However,
this conclusion is invalid because one of the premises upon which it relies
is false. It does not necessarily follow from the premise that additional
justification–other than that which justified the initial traffic stop–de feats
the defendant’s Fourth Amendment claim that such additional justification
is required to defeat the defendant’s Fourth Amendment claim . See
Childs, 277 F.3d at 951.
circuit has yet to decide this issue expressly.7 Because
additional justification supported the questioning here, we
need not decide such an important legal issue. Rather, we
leave that determination for a case whose record affords a
more appropriate basis upon which to make it. First, in
asking defendant whether he possessed any illegal
contraband, Lomax did not exceed the time necessary to
complete the original purpose of the traffic stop. At that time,
Lomax had not yet completed the initial purpose of the traffic

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No. 02-6076 United States v. Garrido-Santana 15
8Defendant has abandoned his argument on appeal that he did not
consent to the search o f the vehicle. See Somm er v. Davis, 317 F.3d 686,
691 (6th Cir. 2003) (holding that plaintiffs abandoned an issue on appeal
by not presenting any argument on it in their briefs). Rather, defendant
argues on ap peal that any evidence flowing from the search must be
stop because he was still filling out the courtesy citation and,
as discussed above, was still waiting for the return of the
computer check on the vehicle’s license plate. Second,
assuming that this questioning was not reasonably related to
the speeding violation and, thus, that it required additional
justification, Lomax had a reasonable suspicion that
defendant was engaged in criminal activity so as to validate
his inquiry into whether defendant possessed any illegal
contraband. At the time of this questioning, Lomax had the
following information available to him: 1) defendant’s route
was circuitous and impractical in that defendant had flown
from Puerto Rico to Miami and then to Houston only to rent
a vehicle to drive to New York; 2) Junior Santana, a resident
of New York, had rented the vehicle in Houston so that
defendant could drive it to New York; 3) the rental agreement
had an illegible, additional signature in an irregular location
rather than defendant’s typed name listing him as an
additional driver; 4) at the time of the traffic stop, defendant
was heading towards New York the day before the rental
agreement required the vehicle to be returned in Houston;
5) defendant was unusually nervous; and 6) Lomax knew,
based upon his training, that the model vehicle that defendant
was driving had easily accessible hiding places for narcotics.
Lomax’s questioning defendant about whether he possessed
any illegal contraband was not unreasonable under the Fourth
Amendment.
2. The Scope of Defendant’s Consent to Search
Defendant appeals the district court’s denial of his
suppression motion on the ground that the search of
defendant’s gas tank exceeded the reasonable scope of
defendant’s consent.8 “When law enforcement officers rely
16 United States v. Garrido-Santana No. 02-6076
suppressed beca use defendant was subject to an illegal detention at the
time that Lomax secured defendant’s consent. It is true that any consent
that a suspect gives while being subject to an illegal seizure may be
tainted and, thus, invalid. See Florida v. Royer, 460 U.S. 491, 507-08
(1983); United States v. Guimond, 116 F.3d 16 6, 170-71 (6th Cir. 1997).
However, we reject such an argument here because, as discussed above,
defendant’s detention at the time that he consented to the search was legal.
upon consent as the basis for a warrantless search, the scope
of the consent given determines the permissible scope of the
search.” United States v. Gant, 112 F.3d 239, 242 (6th Cir.
1997). “The standard for measuring the scope of a suspect’s
consent under the Fourth Amendment is that of objective
reasonableness . . . .” Florida v. Jimeno, 500 U.S. 248, 251
(1991). The proper question is “what would the typical
reasonable person have understood by the exchange between
the officer and the suspect.” Id. A reasonable person likely
would have understood his consent to exclude a search that
would damage his property. See id. at 251-52. Generally, the
expressed object of the search defines the scope of that
search. Id. at 251.
Before Lomax obtained defendant’s consent to search the
vehicle, he had asked defendant whether he possessed any
illegal contraband, such as drugs or stolen goods. In so
asking, Lomax thereby had informed defendant that those
widely-varied items would be the object of any search.
Defendant, per the consent-to-search form that he executed,
consented to a search of the vehicle without expressly
limiting the scope of that search. It was objectively
reasonable for Lomax and Lane to have concluded that this
general consent to search the vehicle included consent to
search any container within that vehicle that might have held
illegal contraband. As Lomax testified, it was well-known
that the model vehicle that defendant was driving had an
easily accessible gas tank in which to hide narcotics.
Moreover, the accessing and search of the gas tank caused no
damage to either the vehicle, in general, or the gas tank, in
particular. Therefore, it was objectively reasonable for

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No. 02-6076 United States v. Garrido-Santana 17
9Defendant does not claim that U .S.S.G. § 3 C1.1 is otherwise
inapp licable to his sentence but, rather, simply argues that the extradition
treaty with the Dominican Republic trumps the Sentencing Guidelines and
renders the application o f this provision im proper.
Lomax and Lane to have believed that defendant’s general
consent to search the vehicle encompassed consent to search
the vehicle’s gas tank. The Fourth Amendment did not
require either officer to obtain separate permission to search
the gas tank. See Jimeno, 500 U.S. at 252. We note that,
although defendant had the opportunity to do so, he never
objected to the officers’ search of the gas tank and, thus,
neither clarified that the scope of his sweeping consent
excluded such a search nor revoked his consent. See United
States v. Pena, 920 F.2d 1509, 1514-15 (10th Cir. 1990)
(holding that a search of a vehicle’s vent panel was within the
scope of the defendant’s consent to “look” inside the vehicle
where the defendant never “attempted to limit or retract his
[general] consent” upon seeing the officer begin to remove
that panel). The district court did not clearly err in finding
that the search of the gas tank fell within the reasonable scope
of defendant’s consent to search the vehicle. See United
States v. Zapata, 180 F.3d 1237, 1243 (11th Cir. 1999)
(holding that the search of a vehicle’s interior door panel was
within the scope of the defendant’s general consent to search
for narcotics, weapons, or money because the door panel
could contain such items).
III. Defendant’s Sentence
Defendant appeals the district court’s application of a
sentence enhancement for obstruction of justice under
U.S.S.G. § 3C1.1 on the ground that it violates the extradition
treaty with the Dominican Republic.9 We review the
interrelation between the extradition treaty and the application
of U.S.S.G. § 3C1.1 of the Sentencing Guidelines de novo.
See United States v. Humphrey, 279 F.3d 372, 379 (6th Cir.
2002) (holding that “[w]e review de novo questions of law
18 United States v. Garrido-Santana No. 02-6076
concerning the application of the Sentencing Guidelines”)
(emphasis added); United States v. Emuegbunam, 268 F.3d
377, 389 (6th Cir. 2001) (holding that we review de novo
interpretations of treaties).
The principle of specialty “requires that the requesting
country not prosecute for crimes . . . for which an extradition
was not granted.” Demjanjuk v. Petrovsky, 776 F.2d 571, 583
(6th Cir. 1985), vacated on other grounds, 10 F.3d 338 (6th
Cir. 1993). Incorporating this principle of specialty, Article
IV of the extradition treaty with the Dominican Republic
provides that “[n]o person shall be tried for any crime or
offence other than that for which he was surrendered.”
Convention for the mutual extradition of fugitives from
justice, June 19, 1909, U.S - Dom. Rep., 36 Stat. 2468
(emphasis added). The verb to try denotes “to conduct the
trial of.” Webster’s Third New International Dictionary 2457
(1986). In its request for extradition, the government stated
that it sought defendant’s return to “stand trial” only on count
one of possessing cocaine with the intent to distribute in
violation of 21 U.S.C. § 841(a)(1); the government
recognized that count two concerning defendant’s failure to
appear at his arraignment in violation of 18 U.S.C.
§ 3146(a)(1) was not an extraditable offense. Defendant
concedes that the government did not violate the express
terms of the extradition treaty because it did not, in fact,
prosecute defendant for this failure to appear. Rather,
defendant argues that the government’s promise to prosecute
defendant only for the narcotics offense entails the implicit
promise that it would also not punish defendant for the
failure-to-appear offense. Additionally, according to
defendant, the district court’s consideration of that failure to
appear in enhancing defendant’s sentence on the narcotics
offense constituted punishment for it contrary to the implicit
understanding and spirit of the extradition treaty.
However, the Supreme Court seemingly eschewed such an
argument in Witte v. United States, 515 U.S. 389 (1995). The
issue in Witte concerned the Double Jeopardy Clause of the

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No. 02-6076 United States v. Garrido-Santana 19
Fifth Amendment, which bars “successive prosecution or
multiple punishment for ‘the same offence.’” Id at 391. In
that case, the district court had determined the defendant’s
sentence for attempted possession of marijuana with the intent
to distribute by considering, along with other relevant
conduct, various quantities of cocaine that defendant had
previously imported. Id. at 393-94. Defendant was later
indicted for conspiring and attempting to import this cocaine.
Id. at 395. Defendant argued that this current indictment on
the cocaine offenses “constitute[d] a second attempt to punish
him criminally for the same cocaine offenses.” Id. at 397.
Defendant implicitly contended that the district court’s
consideration of the cocaine in sentencing defendant on the
marijuana offense constituted the initial punishment for the
cocaine offenses. See id. However, the Supreme Court held
that the consideration of “related criminal conduct to enhance
a defendant’s sentence for a separate crime within the
authorized statutory limits does not constitute punishment for
that conduct[.]” Id. at 399; see United States v. Maney, 226
F.3d 660, 667-68 (6th Cir. 2000) (relying upon Witte to hold
that the district court’s consideration of the defendant’s
various escape attempts in applying an § 3C1.1 enhancement
and in denying a § 3E1.1 reduction was not “punishment” for
that conduct because defendant’s sentence was within the
statutorily authorized range and, thus, that defendant’s
subsequent conviction and sentence for one of those escape
attempts did not raise any issues of double punishment).
Rather, the Court clarified that such consideration constitutes
“punishment” only for the offense of conviction. Id. at 401-
04. Thus, the Supreme Court held that the Double Jeopardy
Clause did not proscribe sentencing a defendant on a criminal
offense when the conduct underlying that offense was a factor
in determining the defendant’s sentence for a previous
conviction. Id. at 391, 406. Although it is formally a double
jeopardy case, its underlying analytical foundation and, in
particular, its conception of “punishment” is nevertheless
instructive here.
20 United States v. Garrido-Santana No. 02-6076
10W e note that defendant, in challenging his sentence, may lack
standing to rely upon the extradition treaty’s incorporated rule of
specialty. This circuit has not expressly decided whether an extradited
individual has standing to seek the enforcement of that rule. See
Demjanjuk, 776 F.2d at 583-84 (observing that a serious question existed
as to whether the defendant had standing to assert the rule of specialty
because “[t]he right to insist on application o f . . . [that principle] belongs
to the requested state, not to the individual whose extradition is requested”
yet addressing the merits of such a claim). Other circuit courts either have
In United States v. Lazarevich, 147 F.3d 1061, 1063 (9th
Cir. 1998), the Ninth Circuit held that the district court’s
consideration of a non-extraditable offense of child abduction
in increasing the defendant’s sentence for passport fraud–the
offense for which defendant was extradited–did not constitute
“punishment” so as to violate the extradition treaty’s
incorporated rule of specialty permitting punishment only for
the extradited offense. As that court reiterated, extradition
treaties are made “within an historical and precedential
context . . . that includes the long-standing practice of United
States[’] courts of considering relevant, uncharged evidence
at sentencing.” Id. at 1064 (holding that, given the long
history of considering relevant evidence, like other criminal
behavior, in sentencing–consideration that the Sentencing
Guidelines now mandates–as well as Supreme Court
precedent, such as Witte, the extradition treaty “contemplated
consideration of relevant offenses”).
Here, we assume arguendo that the extradition treaty
contains an implicit promise not to punish defendant for his
failure to appear at his arraignment, rather than merely an
express promise not to prosecute defendant for any offense
other than that for which he was extradited. However, we
find that, following the reasoning of both Witte and
Lazarevich, the § 3C1.1 enhancement to defendant’s sentence
on the narcotics offense based upon defendant’s failure to
appear at his arraignment did not constitute “punishment” for
that conduct so as to violate any implicit proscription against
such punishment in the extradition treaty.10 The district court

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No. 02-6076 United States v. Garrido-Santana 21
declined to decide this issue or have considered the issue yet disagree as
to its proper resolution. See United States v. Saccoccia, 58 F.3d 754, 767
n.6 (1st Cir. 1995) (observing the inner-circ uit split but taking no position
on the issue); United States v. LeBaron, 156 F.3d 621, 627 (5th Cir. 1998)
(clarifying that the Fifth Circuit has yet to decide whether an extradited
individual has standing to raise the rule of specialty); Un ited States ex rel.
Saroop v. Ga rcia, 109 F.3d 165 , 168 (3rd Cir. 1997) (“Because treaties
are agreements between natio ns, individ uals ordinarily may not challenge
treaty interpretations in the absence of an express provision within the
treaty or an action brought by a signato ry nation.”); United States v. Levy,
905 F.2d 326, 329 n.1 (10th Cir. 1990) (holding that an extradited
defendant has standing to assert a rule of specialty claim); United States
v. Najohn , 785 F.2d 1420, 1422 (9th Cir. 1986) (holding that an extradited
individual “may raise whatever objections [based upon the rule of
specialty that] the rendering country might have”); United States v.
Puentes, 50 F.3d 1567, 1572 (11th Cir. 1995 ) (same); Leighnor v. Turner,
884 F.2d 385, 388 (8th Cir. 1989) (holding that it is bound to follow a
prior opinion that held the same). However, because we find that
defendant’s sentence did not violate the extradition treaty’s incorporated
rule of specialty, we ne ed no t decid e whether de fendant has standing to
assert such a claim.
sentenced defendant on the narcotics charge to 97 months of
imprisonment–well within that offense’s statutory maximum
of 480 months of imprisonment. See 21 U.S.C.
§ 841(b)(1)(B).
Defendant also appeals the district court’s denial of a
sentence reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1 on the ground that, to the extent that a
sentence enhancement under U.S.S.G. § 3C1.1 is improper for
the reason asserted above, such a reduction is consequently
proper. See USSG § 3E1.1, comment. (n. 4) (“Conduct
resulting in an enhancement under § 3C1.1 . . . ordinarily
indicates that the defendant has not accepted responsibility for
his criminal conduct. There may, however, be extraordinary
cases in which adjustments under both §§ 3C1.1 and 3E1.1
may apply.”). Because defendant made his challenge to the
denial of a § 3E1.1 reduction contingent upon the success of
his challenge to the application of a § 3C1.1 enhancement and
22 United States v. Garrido-Santana No. 02-6076
because that latter challenge, as discussed above, fails, the
former challenge likewise fails.
For the foregoing reasons, we AFFIRM the denial of
defendant’s suppression motion and his sentence.

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