F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                  APR 11 2001
                             FOR THE TENTH CIRCUIT
                          _______________________________                    PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,
                                                          Nos. 00-4039, 00-4040
 v.
                                                                 (D. Utah)
 STANLEY WILLIAMS and OTIS
 HATTEN,                                                (D.C. No. 98-CR-465-W)

        Defendants-Appellants.
                       _______________________________

                             ORDER AND JUDGMENT*
                          _______________________________

Before TACHA, Chief Judge, and PORFILIO, Circuit Judge, and KANE, District
Judge.**
                      _______________________________

       The defendants each entered a conditional plea of guilty to one count of possessing

a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1).

Each now appeals the district court’s denial of their motions to suppress evidence found

in the vehicle in which they were riding following a traffic stop. We have jurisdiction

under 28 U.S.C. § 1291 and affirm.

  *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
  **
      Honorable John L. Kane, Jr., United States District Judge for the District of
Colorado, sitting by designation.
                                       Background

       On September 2, 1998, Officer Richard Graham of the Emery County Sheriff’s

Office in Utah stopped a 1995 Honda minivan with Illinois plates for speeding on I-70.

The driver, defendant-appellant Stanley Williams, exited the van and approached Graham

as the officer pulled up behind the van. At this point, Graham activated a video camera

and body microphone that recorded the remainder of the encounter.

       Graham asked for Williams’ driver’s license and vehicle registration. Williams

produced an Illinois license for himself and a vehicle registration identifying Kevin

Minter of Illinois as the van owner. Upon determining that Williams was not the

registered owner, Graham questioned Williams about his recent travels, his passenger and

who owned the van. Williams responded that he and his cousin, defendant-appellant Otis

Hatten, were coming from Las Vegas where they had spent two or three days at the New

York, New York casino. He also stated that the van owner was Kevin Minter, whom he

identified as his nephew.

       Retaining Williams driver’s license and registration, Graham checked the van’s

dashboard VIN through the windshield and then opened the van door to check the door

VIN. Both matched the VIN on the registration provided by Williams.

       With the van door standing open, Graham asked Hatten, who was still sitting in the

van, for identification. Hatten produced an Illinois commercial license, which Graham

retained. Graham asked Hatten who owned the vehicle and Hatten responded that his


                                            -2-
cousin, a “distant relative,” was the owner, but could not identify him by name. When

Graham asked Hatten where he and Williams had been, Hatten responded they were

coming from Los Angeles where they had spent two or three days sightseeing. Graham

asked Hatten whether they spent any time in Las Vegas and Hatten said “no.” When

Graham questioned him again on this point, Hatten stated he and Williams had only

stopped in Las Vegas for gas and to gamble for a short time.

      Graham returned to Williams and asked him if he and Hatten had been anywhere

other than Las Vegas. Williams responded they had been in Los Angeles for a few days

before Las Vegas and mentioned visiting some of the same Los Angeles locations

reported by Hatten. When asked about their travel to Las Vegas, however, Williams

reiterated that he and Hatten had stayed in Las Vegas for two or three days. Graham then

asked Williams for a telephone number where Minter, the van’s registered owner, could

be reached, and Williams provided a number.

      Graham took the telephone number and defendants’ documents to his patrol car

and radioed the dispatcher to run computer checks to determine whether the van was

reported as stolen on the National Crime Information Computer (“NCIC”), whether

Williams’ license was valid, whether Williams or Hatten were wanted (NCIC check) and

whether they had criminal records (Triple I check). He also asked the dispatcher to call

the number Williams had provided to ask Minter who had his van, how long that person

or persons had had it and where they had been.


                                            -3-
       Graham proceeded to write up the speeding violation. While he was doing so, a

backup officer arrived at the scene of his own accord. When the officer asked whether he

had a mess, Graham said he might because the men did not own the car and gave

conflicting stories about their recent travels.

       Over a fifteen minute period, the dispatcher radioed Graham that Williams’ and

Hatten’s licenses were valid and that the NCIC did not report the van as stolen. Although

the NCIC check showed possible “hits” on the two men, Graham determined that these

reports did not match Williams or Hatten. The Triple I check on Williams, however,

indicated a history of serious offenses. The dispatcher did not reach Minter or report the

results of the Triple I check on Hatten during this period.

       As the information described above trickled in, Graham returned to Williams and

then Hatten, explained that he was waiting on information regarding them and the vehicle

and questioned them again on their travel itinerary. Each defendant continued to

contradict the other regarding the time spent in Las Vegas. After receiving the Triple I

report on Williams’ criminal history, Graham also asked Williams whether he had ever

been arrested. Williams first claimed to have a record of only minor traffic violations and

then evaded Graham’s follow up questions. By this time, Williams also appeared

nervous.

       Graham asked Williams if there were any weapons, alcohol, drugs, drug

paraphernalia or large quantities of cash in the van. Williams said “no.” Graham then


                                              -4-
asked him: “While we’re waiting for this information to come back, do you mind if we

search your vehicle for those items?” Williams said “sure” and gestured his assent.

Graham then asked similar questions of Hatten and asked Hatten if he could search the

vehicle for those items. Hatten responded “Yes” or “I guess.” Graham patted down both

men and directed them to stand in front of the van.

       Graham and the backup officer began searching the van, starting in the front

passenger compartment and working back. Neither defendant objected to the search as it

proceeded.

       One or two minutes into the search, the dispatcher reported to Graham that he had

been unable to contact Minter at the number given by Williams. As a result, the

defendants’ entitlement to operate the vehicle was not confirmed. At this time Graham

also received the final piece of information for which he was waiting, which was the

Triple I report on Hatten’s criminal history. It indicated that Hatten had an extensive

criminal record that included murder and other violent crimes.

       After receiving the dispatcher’s last report, Graham and the backup officer

continued to search the van. When they reached the rear of the van, Graham noted that

the carpeting in the rear cargo area appeared to have been altered and then glued down.

When he checked the underside of the van below the cargo area, he detected what

appeared to be a hidden compartment without visible means of access and with screws

protruding from the inside pointing out. Graham’s experience was that every secret or


                                            -5-
hidden compartment he had encountered contained contraband.1 After unsuccessfully

attempting to drill into the compartment, Graham discovered a plug on the underside of

the compartment that, when removed, revealed several duct tape-wrapped packages in the

compartment. Graham immediately placed Williams and Hatten under arrest and then

drilled into one of the packages through the plug opening. This revealed a white powder

that field tested positive for cocaine. It was later determined that the hidden compartment

contained 31 kilograms of cocaine.

       Williams and Hatten were jointly indicted on one count of possession of a

controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Each

defendant filed a motion to suppress the evidence discovered during the officers’ search

of the van. After an evidentiary hearing before the magistrate judge pursuant to an order

of reference, the magistrate judge recommended that the district court deny both motions

to suppress. The district court affirmed the magistrate judge’s report and

recommendation and denied the defendants’ motions. Each defendant then entered a

conditional plea of guilty under Fed. R. Civ. P. 11(a)(2), reserving the right to appeal the

denial of their motions to suppress. These appeals followed.




   1
        The compartment was originally designed to store the van’s rear seat. The
magistrate judge found it had been altered to seal and hide it. See Magistrate’s
Report at 27 & n.5.

                                             -6-
                                        Discussion

       When reviewing a district court’s decision on a motion to suppress, we accept its

factual findings unless clearly erroneous and view the evidence in the light most

favorable to those findings. United States v. West, 

, 1176 (10th Cir. 2000).

The ultimate determination of whether a search and seizure is reasonable under the Fourth

Amendment is a question of law we review de novo. 

that the district court erred in denying their motions to suppress

because: (1) they were detained by Graham in violation of their Fourth Amendment

rights; (2) this unlawful detention tainted and negated their consent to search the van; and

(3) even if they were lawfully detained, Graham’s search of the van violated their Fourth

Amendment rights by exceeding the scope of their consent. We examine each assertion

in turn.

       A.     Lawfulness of Detention

       A routine traffic stop is a seizure with the meaning of the Fourth Amendment.

United States v. Wood, 

, 945 (10th Cir. 1997). For purposes of constitutional

analysis, we characterize such stops as investigative detentions and therefore analyze their

reasonableness under the two-part inquiry for investigative detentions set forth in Terry v.

Ohio, 

, 19-20 (1968). 

. First, we determine whether the

stop was justified at its inception. 

defendant disputes this point on appeal,

we proceed to the second part of the inquiry, which is whether the officer’s actions during


                                             -7-
the detention were reasonably related in scope to the circumstances that justified the

interference in the first place. See 

scope of an investigatory detention depends on the particular facts

and circumstances of each case. United States v. Holt, 

, 935 (10th Cir. 2000).

In every case, however, the detention must “‘last no longer than is necessary to effectuate

the purpose of the stop’ and ‘be carefully tailored to its underlying justification.’” 

v. Royer, 

, 500 (1983)). Thus, “an officer conducting a

routine traffic stop may run computer checks on the driver’s license, the vehicle

registration papers, and on whether the driver has any outstanding warrants or the vehicle

has been reported stolen,” but “once the computer checks confirm that the driver has

produced a valid license and proof of entitlement to operate the car, the driver must be

permitted to proceed on his way, without further delay by police for additional

questioning.” 

States v. Mendez, 

, 1429 (10th Cir.

1997)).

       An officer may pose additional questions, and thereby expand a traffic stop beyond

its original scope, if during the initial stop the officer acquires “a particularized and

objective basis for suspecting the particular person stopped of criminal activity.” United

States v. Galindo-Gonzales, 

, 1221 (10th Cir. 1998) (quotation omitted).2


   2
      An expanded detention is also permissible if the initial detention becomes a
consensual encounter. 

. Because Graham retained both Williams
and Hatten’s driver’s licenses during his investigation, the detention in this case was non-

                                              -8-
“The existence of objectively reasonable suspicion of illegal activity does not depend on

any one factor, but on the totality of the circumstances.” 

Under

Terry, the scope of an expanded investigative detention is limited to the circumstances

that justified expanding the detention. 

initially contend that they were illegally detained because

Graham’s questions to them regarding their identities and travel itinerary were not

reasonably related to the circumstances, i.e., speeding, that justified the initial traffic stop.

Even assuming that such questions are not constitutionally permissible during a routine

traffic stop,3 “a defining characteristic of our traffic stop jurisprudence is that the

defendant’s lack of a valid registration, license, bill of sale, or some other indicia of proof

to lawfully operate and possess the vehicle in question gives rise to objectively reasonable

suspicion that the vehicle may be stolen.” 

(quoting

United States v. Fernandez, 

, 879-80 (10th Cir. 1994)). As a result of this

reasonable suspicion of criminal activity, “we have concluded that officers confronted




consensual. See, e.g., United States v. McKneely, 

, 1451 (10th Cir. 1993).
   3
        This Court has on several occasions stated or implied that an officer may ask
questions relating to the identity and/or travel plans of a detainee without exceeding the
scope of a routine traffic stop. See, e.g., 

; United States v. Rivera,

, 1263 (10th Cir. 1989). We recently expressed doubt over the
constitutionality of this practice, however, where the questioning is unrelated to the
purpose of the traffic stop. See 

(majority decision); see also 

(difficult to explain how questions concerning travel plans are reasonably related
to traffic stop for speeding)(Ebel, J. dissenting).

                                               -9-
with a motorist who cannot produce proof of ownership may ask questions about the

identity and travel plans of the driver and passengers.” 

       In this case, as described earlier, Williams could not produce any indicia of his

right to operate and possess the van in which he and Hatten were riding. Only then did

Graham question first Williams and then Hatten about their identities and travel itinerary.

Under these circumstances, Graham had the requisite reasonable suspicion of criminal

activity to justify this questioning.

       The defendants dispute this conclusion, and cite our decision in United States v.

Walker, 

(10th Cir. 1991), to support their argument that Williams’

production of a valid Illinois driver’s license and Illinois registration for the vehicle,

coupled with the Illinois plates on the vehicle and Williams’ identification of the

registered van owner by name, precluded any reasonable suspicion that the van was

stolen, and therefore also precluded any questioning or investigation beyond what was

required to ticket Williams for speeding.

       In Walker, the defendant was also stopped for speeding in Emery County, Utah.

When approached by the detaining officer, Walker produced papers demonstrating that

his vehicle was registered to another person, a woman Walker identified as his sister. 

At the hearing on Walker’s motion to suppress, the officer testified that at this

point he was satisfied as to Walker’s right to operate the vehicle and that he did not

suspect him of any criminal activity. 

The officer nonetheless proceeded to ask


                                              -10-
Walker a number of questions unrelated to the traffic stop and also unrelated to the

possibility that the vehicle was stolen. 

       The district court found that the officer’s continued detention of Walker in order to

ask these questions violated Walker’s Fourth Amendment rights and suppressed evidence

found during a subsequent consensual search of the vehicle. 

doing, it found that

Walker had produced sufficient proof demonstrating his entitlement to operate the vehicle

such that no reasonable suspicion of criminal activity arose from the fact that the vehicle

was not registered to him. 

we agreed with this conclusion, based largely

on the officer’s failure to investigate whether the car was stolen and the fact that if he had

investigated this possibility he would have discovered that Walker had written proof of

his entitlement to the car. 

We therefore affirmed the district court’s holding

that Walker was unlawfully detained. 

       Our decision in Walker does not support reversal of the denial of defendants’

motions to suppress. When the registered owner of the vehicle is not present at a traffic

stop, the driver’s statement that he borrowed the vehicle from the registered owner does

not, without more, prove his entitlement to the vehicle. See United States v. Arango,

, 443, 447 (10th Cir.1990) (driver who produced valid vehicle registration

and said he borrowed vehicle from registered owner validly detained while officer tried to

contact registered owner). In this circumstance, there is a reasonable suspicion that the

vehicle is stolen and the officer may lawfully detain the driver to investigate this


                                             -11-
possibility. See id.; United States v. Miller, 

, 1251 (10th Cir. 1996) (further

investigation justified when officer has reasonable suspicion vehicle may be stolen). In

the present case, unlike Walker, once the detaining officer learned that Williams was not

the van’s registered owner he took various steps to investigate whether the van was

stolen, including questioning Williams and Hatten about their identities and travel

itinerary.4 This questioning produced repeated inconsistent statements from Williams and

Hatten regarding their just completed stop in Las Vegas. The significant discrepancy in

their stories, a factor not present in Walker, contributed to a reasonable objective

suspicion of criminal activity justifying the officer’s continued investigation and

detention of the defendants. See United States v. Gonzalez-Lerma, 

, 1484

(10th Cir. 1994) (inability of a driver to offer proof he is entitled to operate a vehicle,

combined with inconsistent information about his travel history or destination, generally

gives rise to a reasonable suspicion justifying further questioning and investigation).5

   4
        Graham’s lawful investigation also included questions to the defendants regarding
their relationship to the registered owner of the van and how to contact him and Graham’s
requests to dispatch that it attempt to contact the van’s owner, run an NCIC check to
determine if the van had been reported stolen and run NCIC and Triple I computer checks
on Williams and Hatten.
   5
       Defendants also cite United States v. Guzman, 

(10th Cir. 1988),
overruled on other grounds by United States v. Botero-Ospina, 

(10th Cir. 1995), in which we found an expanded traffic stop unconstitutional, as
analogous to this case. Guzman is distinguishable, however, because the driver in that
case produced a rental agreement proving his entitlement to the vehicle. See 

1519. The defendants’ reliance on United States v. McSwain, 

(10th Cir.
1994), is also misplaced because there was no question in that case regarding the driver’s
entitlement to the vehicle and the detaining officer there never had an objectively

                                              -12-
       As it continued, Graham’s investigation also produced other factors that in

combination supported a reasonable objective suspicion that some kind of criminal

activity had occurred or was occurring. These included Hatten’s inability to name the

relative from whom he and Williams had allegedly borrowed the van, Williams’

incomplete and evasive responses to Graham’s questions regarding his criminal history

and Williams’ increasing nervousness.6

       The defendants challenge the district court’s reliance on these factors and on their

inconsistent statements regarding their Las Vegas stop, arguing each could also be

construed as innocent misstatements or actions and thus are not necessarily indicative of

criminal activity. The possibility of an innocent explanation for one or more suspicious

circumstances does not, however, render an investigative detention unconstitutional. See

Illinois v. Wardlow, 

, 125-26 (2000). Considered as a whole, the

circumstances cited by the district court could also be explained as defendants’ attempts

to conceal criminal activity that had occurred or was occurring. The Fourth Amendment




reasonable suspicion that illegal activity had occurred or was occurring. See 

561.
  6
       We reject Hatten’s contention that the district court was clearly erroneous in
finding that Williams acted nervously as the detention progressed. This factual finding
has support in the record and, after reviewing the videotape of the detention and
Graham’s testimony, we are not “left with the definite and firm conviction that a mistake
has been committed.” Manning v. United States, 

, 812 (10th Cir. 1998)
(defining “clearly erroneous” standard of review).

                                            -13-
permitted Graham to detain the defendants to “resolve the ambiguity” raised by these

circumstances. 

reject defendants’ argument that they were illegally detained because any

suspicion Graham had that the van was stolen, and hence any justification for an extended

investigative detention, ended when Graham learned that the van had not been reported as

stolen on the NCIC.7 By the time Graham received this information, his lawful

investigation had produced additional factors, including the defendants’ contradictory

statements of their travel itinerary, supporting a suspicion of criminal activity. The

district court also found that the NCIC report on the vehicle did not eliminate the

suspicion that it was stolen because of the delay in posting stolen vehicle reports to this

service. This factual finding is supported by Graham’s testimony and is not clearly

erroneous. Cf. 

, 447 (where driver could not show entitlement to

vehicle and vehicle not reported as stolen on NCIC, officer justified in detaining driver

while attempting to contact vehicle’s registered owners).

       Finally, Hatten makes several arguments specific to his detention. First, he argues

that Graham had no justification in asking for identification or running computer checks


   7
       At points in his briefs Hatten argues that Graham did not ask for or receive an
NCIC report on whether the vehicle was stolen. Not only does Hatten contradict this
argument by asserting elsewhere that the negative NCIC report should have ended
Hatten’s detention, but our review of the record indicates that the district court’s findings
on this point are not clearly erroneous as they are supported by Graham’s testimony and
not clearly contradicted by the videotape of the incident. Moreover, the absence of a
stolen vehicle report is merely indicative, but not determinative of, the vehicle’s status.

                                             -14-
on him because he was only a passenger in the vehicle. This is incorrect as the

objectively reasonable suspicion that the van was stolen justified further investigation,

see, e.g., 

, including determining and investigating Hatten’s

identity. Cf. United States v. Ozbirn, 

, 1200 (reasonable suspicion of

criminal activity justified questioning passenger); United States v. Alvarez, 

,

1245 (10th Cir. 1995)(same). We also reject Hatten’s claim that Graham violated his

Fourth Amendment rights when he opened the van door to check the door VIN and to

speak to Hatten. As this conduct was reasonably related to Graham’s investigation into

the possibility that the van was stolen, it did not exceed the permissible scope of the

investigative detention. Lastly, Graham’s frisk of Hatten for weapons just before

beginning to search the van was permissible under Terry in light of the suspicion of

criminal activity that existed at this point and the vulnerable positions Graham and the

backup officer would assume as they searched the van. See 

(officer

may pat-down suspect for weapons when he suspects criminal activity and he has a

reasonable fear for his own or others safety).

       In the totality of these circumstances, we agree with the district court that there

was a particularized and objective basis for suspecting Williams and Hatten of criminal

activity and that Graham’s actions during the detention were reasonably related in scope

to the circumstances that justified the extended detention. As a result, defendants’

detention was lawful under the Fourth Amendment.


                                             -15-
       B.     Consent to Search

       The district court found, and the defendants do not dispute, that Williams and

Hatten both consented to Graham’s request to search their vehicle. Defendants contend,

however, that this consent was tainted by their illegal detention and hence was not

voluntary. As we have found that the defendants’ detention was lawful, we need not

consider this argument further.

       The defendants also argue the search violated the Fourth Amendment because it

exceeded the scope of consent. The scope of a consent to search is defined by its express

object and limited by the breadth of the consent given. United States v. Elliot,

, 814-15 (10th Cir. 1997). “The standard for measuring the scope of a

suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness –

what would the typical person have understood by the exchange between the officer and

the suspect?” Florida v. Jimeno, 

, 251 (1991). The district court’s

determination of the scope of consent is a factual question we review for clear error.

.

       It is undisputed that Williams acceded to the following request by Graham: “While

we’re waiting for this information to come back, do you mind if we search your vehicle

for those items.” The information Graham was referring to included the results of the

Triple I computer check on Hatten’s criminal record and the dispatcher’s call to Kevin

Minter, the registered van owner, to determine whether the van was stolen. The items


                                            -16-
Graham referenced included weapons, drugs, large quantities of money and related items

as enumerated by Graham in a preceding series of questions.

       Defendants first argue that the resulting search exceeded the scope of consent

because it continued after Graham received the Triple I report on Hatten and the results of

the dispatcher’s call to Minter. The district court held otherwise, finding that Graham’s

request to search, and hence Williams’ affirmative response, was not time related or

conditioned in any fashion on the receipt of this information from the dispatcher. In

addition, the district court noted that Graham did not, in fact, receive the information he

sought because the dispatcher had been unable to reach Minter. Thus, even if Williams’

consent was limited as the defendants assert, Graham never received the information he

was awaiting regarding Williams’ entitlement to operate Minter’s van. We concur that

the defendants’ Fourth Amendment rights were not violated when Graham and the back-

up officer continued to search the van after Graham spoke to the dispatcher.

       Williams also argues that Graham exceeded the scope of the consent, and thus

engaged in an illegal search, when he removed the plugs from the bottom of the hidden

compartment and drilled into it. We disagree. Williams gave Graham general consent to

search the van for drugs, weapons and other enumerated items. “[W]here a suspect does

not limit the scope of a search, and does not object when the search exceeds what he later

claims was a more limited consent, an officer is justified in searching the entire vehicle.”




                                            -17-


(internal quotations omitted). Thus, Williams’ consent authorized

Graham to examine the rear of the van, including its underside.

       This consensual search revealed the presence of a sealed, hidden compartment that

appeared to have been disguised by newly glued carpet. This Court and others have

found probable cause to search, without consent or warrant, where a hidden compartment

is found and there is other evidence suggesting criminal activity. See, e.g., United States

v. Anderson, 

, 1066 (10th Cir. 1997) (collecting cases); 

. In this case, we agree with the district court that the discovery of a

hidden compartment, combined with the other factors creating a suspicion of criminal

activity, furnished probable cause to search the van without regard to the scope of

defendants’ consent. Where probable cause justifies the search of a vehicle, it also

justifies the search of every part of the vehicle, including closed containers, that may

conceal the object of the search. See California v. Acevedo, 

, 572 (1991)

(citing United States v. Ross, 

(1982)). Accordingly, even if Graham’s

drilling into the hidden compartment was beyond the scope of Williams’ consent to

search, this search was constitutional in light of the probable cause supporting it.8 See

.




   8
       Having found probable cause to search the compartment, we need not consider
Hatten’s argument that he and Williams lacked apparent or actual authority to consent to
the search of this compartment.

                                            -18-
      For the reasons stated above, the district court’s denial of the defendants’ motions

to suppress the evidence from the search is AFFIRMED.

                                                  Entered for the Court

                                                  John L. Kane, Jr.
                                                  District Judge




                                           -19-