NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 15 2021

FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 19-30248 Plaintiff-Appellee, D.C. No. 18-cr-00003-SPW v.

MEMORANDUM*

MANUEL PAZ SANCHEZ, JR.,

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding Submitted September 2, 2020** Seattle, Washington

Before: BYBEE and COLLINS, Circuit Judges, and STEARNS,*** District Judge.

Defendant-Appellant Manuel Paz Sanchez, Jr. (“Sanchez”) appeals his

conviction after he entered a conditional plea of guilty reserving his right to appeal

the district court’s order denying his motion to suppress. See FED. R. CRIM. P.

11(a)(2). Reviewing the denial of that motion de novo, United States v. Patayan

Soriano, 361 F.3d 494, 501 (9th Cir. 2004), we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See FED. R. APP. P. 34(a)(2)(C). *** The Honorable Richard G. Stearns, United States District Judge for the District of Massachusetts, sitting by designation. 1. On December 12, 2017, Montana Highway Patrol Trooper Barry Kilpela,

a narcotics K-9 officer, observed a car following closely behind a semi-tractor-

trailer in the eastbound lanes of Interstate 90. Based on this apparent violation of

Montana Code Annotated § 61-8-329, Kilpela pulled over the car.1 Sanchez was

the driver and sole occupant. Kilpela explained the reason for the stop, and

Sanchez acknowledged that he had followed the semi too closely. Kilpela asked

why he had not simply passed the semi, and Sanchez said that he had seen

Kilpela’s patrol car and did not want him to think that Sanchez was trying to avoid

him. Kilpela asked to see the vehicle’s registration, and Sanchez handed him the

rental contract for the car. Kilpela saw that the contract said that the car had been

rented three days earlier in Sacramento, California, and that the car was a day

overdue. Kilepela asked Sanchez if he would sit with him in the front seat of his

patrol vehicle while Kilpela filled out a warning for following too closely, and

Sanchez agreed.

While filling out the warning, Kilpela asked Sanchez where he was coming

from and Sanchez started to say “Oklahoma,” but then said he was coming from

Idaho. Sanchez stated that he lived in Sacramento and that he rented the car to go

1 Under Montana law, “[t]he driver of a motor vehicle may not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles and the traffic upon and the condition of the roadway.”

MONT. CODE ANN. § 61-8-329(1).

2 visit family in Kuna, Idaho, for several days and then went to Yellowstone

National Park. Sanchez claimed that he was headed towards North Dakota “to

catch a flight back to Sacramento.” When asked what city his flight was departing

from, Sanchez had to check his phone and then responded that it was Bismarck.

Sanchez explained that he was flying back to California, rather than driving,

because he was in a hurry to get home. Sanchez also stated, however, that he was

running late for his flight and that he might have to rebook it. Kilpela said he was

confused by this story, given that it seemed odd to drive all the way from Idaho to

North Dakota in order to take a flight back to California. Kilpela knew that the

drive back to California from Idaho would take no longer than the drive to

Bismarck, and possibly much shorter. Sanchez acknowledged that his story

seemed confusing, but he provided no further explanation.

Two other officers, Agent Richard Smith and Sergeant Troy Muri, arrived

together around this time. They were part of a three-person team with Kilpela and

they headed over to the area of the traffic stop after hearing Kilpela call in a

request on the radio for a criminal records check on Sanchez (which came back

negative). Muri initially stayed in his patrol car while Smith went up to Kilpela’s

vehicle. Smith spoke with Sanchez while Kilpela went back to the rental car to

check the Vehicle Identification Number (“VIN”). After verifying the VIN,

Kilpela returned to his patrol car, completed the warning form, and gave it to

3 Sanchez, together with his license and the rental contract. At that point, Kilpela

asked Sanchez whether he had any weapons, drugs, or large amounts of cash in the

car. Sanchez said that he did not. Kilpela then asked Sanchez for his consent to

search the rental car. Sanchez consented verbally and in writing.

While Kilpela initially stayed with Sanchez, Smith and Muri began the

search of the rental car. Smith began to search the front seat and console area, and

Muri examined the trunk and took out the spare tire. Upon joining the other

officers and inspecting the tire, Kilpela thought that it was unusually heavy and

that it did not bounce on the ground the way he thought it should. Kilpela then

asked Sanchez if he could cut the tire open, and Sanchez responded, “it’s not mine,

it’s the rental company’s.” Rather than cut the tire, Kilpela instead got his

narcotics detector dog from his patrol car, and the dog alerted to the spare tire. He

also performed an “echo” test in which he placed a stethoscope against the tire and

hit the tire with a mallet to see if any obstruction in the tire would deaden the echo

that would normally occur. The echo test produced a “heavy thud,” rather than an

echo, and Kilpela concluded that there was an obstruction in the tire. Smith asked

Sanchez if they could take the car to a nearby tire shop so that they could take the

tire off its rim and look inside, and Sanchez consented. Smith then drove the rental

car, with the spare tire in it, to the tire shop. Muri, who had handcuffed Sanchez

and put in him the back seat of his patrol car, followed Smith, as did Kilpela in his

4 patrol car. After the tire was removed from the wheel, Smith and Kilpela found six

sealed packages that collectively contained over eight pounds of

methamphetamine. Muri then took Sanchez to the sheriff’s station for booking.

Sanchez was indicted for a single count of possession of methamphetamine

with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). After the district

court denied his motion to suppress, he conditionally pleaded guilty and was

sentenced to 188 months. Sanchez timely appealed.

2. Sanchez does not contest that, at the time Kilpela pulled him over,

Kilpela had the necessary “reasonable suspicion” that Sanchez had committed an

offense, namely, that Sanchez had followed another vehicle too closely in violation

of Montana Code Annotated § 61-8-329. See Heien v. North Carolina, 574 U.S.

54, 60 (2014). Rather, Sanchez contends that his traffic stop was prolonged

beyond what was necessary to complete the ordinary inquiries associated with that

traffic stop and that, as a result, the extent of the seizure was unreasonable under

the Fourth Amendment.

Once a driver such as Sanchez has been stopped, the “tolerable duration” of

the resulting roadside detention “is determined by the seizure’s ‘mission,’” which

is “to address the traffic violation that warranted the stop and attend to related

safety concerns.” Rodriguez v. United States, 575 U.S. 348, 354 (2015) (citations

omitted). “Beyond determining whether to issue a traffic ticket, an officer’s

5 mission includes ordinary inquiries incident to the traffic stop,” such as “checking

the driver’s license, determining whether there are outstanding warrants against the

driver, and inspecting the automobile’s registration and proof of insurance.” Id. at

355 (simplified). Moreover, an officer “may conduct certain unrelated checks,”

but he or she “may not do so in a way that prolongs the stop, absent the reasonable

suspicion ordinarily demanded to justify detaining an individual.” Id. The

authority for the continuing “seizure thus ends when tasks tied to the traffic

infraction are—or reasonably should have been—completed.” Id. at 354.

Here, Sanchez does not contend that Kilpela took too long in performing the

basic inquiries associated with the traffic stop, such as checking his license and car

registration, running a check for outstanding warrants, and preparing the written

warning. Nor does Sanchez contend that Kilpela’s questioning of him while

Kilpela conducted these tasks impermissibly prolonged the stop. Instead, Sanchez

argues that, once these tasks were completed, and Kilpela handed the warning and

other documents to Sanchez, the mission of the stop was fulfilled and the detention

should immediately have ceased. Sanchez acknowledges that the stop could

properly be prolonged if, in the course of conducting these “ordinary inquiries,”

Kilpela developed reasonable suspicion of an additional offense. Rodriguez, 575

U.S. at 355. Sanchez contends, however, that Kilpela lacked such reasonable

6 suspicion and therefore lacked the authority to continue the detention and ask for

consent to search the vehicle. We disagree.

The information that Kilpela developed during the ordinary incidents of the

traffic stop was more than sufficient to provide reasonable suspicion that Sanchez

was involved in drug trafficking. Although the rental car was overdue no matter

what Sanchez’s purpose was, his claimed itinerary—several days with family in

Idaho followed by a trip to Yellowstone—was hard to square with the fact that he

had only rented the car for two days in the first place. Moreover, Sanchez’s story

that he was headed east all the way to Bismarck in order to fly west back to

Sacramento made little sense. And Sanchez’s initial confusion about what State he

had departed from (Oklahoma versus Idaho), and his need to consult his cell phone

to say where he was headed to in North Dakota, strongly suggested that he was

making up the details of his story on the fly. Collectively, these facts created a

reasonable suspicion that Sanchez was involved in illegal activity, most likely the

possession of narcotics or other contraband. Accordingly, the “period of detention

was permissibly extended because new grounds for suspicion of criminal activity

continued to unfold.” United States v. Mayo, 394 F.3d 1271, 1276 (9th Cir. 2005);

see also United States v. Evans, 786 F.3d 779, 788 (9th Cir. 2015) (“We recognize

that an officer may prolong a traffic stop if the prolongation itself is supported by

independent reasonable suspicion.”).

7 3. Sanchez also asserts that the officers’ search of the rental car’s spare tire

exceeded the scope of Sanchez’s consent to search the car. We reject this

contention.

The “standard for measuring the scope of a suspect’s consent [to a search]

under the Fourth Amendment is that of ‘objective’ reasonableness—what would

the typical reasonable person have understood by the exchange between the officer

and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251 (1991); see also United

States v. Gutierrez-Mederos, 965 F.2d 800, 803 (9th Cir. 1992). Here, a

reasonable person would have understood the spare tire to be included within the

scope of Sanchez’s verbal and written consent to search the rental car.

Sanchez knew that the officers were interested in whether the car contained

drugs or weapons, and Sanchez’s written consent expressly extended to all “items

of property whatsoever which they deem pertinent to their investigation.” See

Gutierrez-Mederos, 965 F.2d at 803–04 (holding that, because “[t]he scope of a

search generally is defined by its expressed object,” a consent to search a car for

contraband presumptively “authorized the trooper to search any container within

the car that reasonably could contain contraband”). The written form explicitly

informed Sanchez that he had the right to refuse the search and to stop it at any

time. However, at no point did Sanchez object to the officers’ examination of the

tire or place any limitation on their search. See United States v. Cannon, 29 F.3d

8 472, 477 (9th Cir. 1994) (“Failure to object to the continuation of a vehicle search

after giving general consent to search ‘is properly considered as an indication that

the search was within the scope of the initial consent.’” (citation omitted)).

Sanchez notes that, when Kilpela asked for express consent to cut the spare

tire, Sanchez did not say “yes,” but instead said “it’s not my tire.” But a

reasonable person would not construe that as a withdrawal of, or limitation on,

Sanchez’s consent to search the car. On the contrary, his disavowal of any

ownership of, or interest in, the rental car’s spare tire would reasonably be

understood as greenlighting the search of the tire, even to the point of cutting it.

Cf. United States v. Brown, 884 F.2d 1309, 1312 (9th Cir. 1989) (noting that a

suspect’s “reluctance” to a search of his luggage “was not enough to indicate he

had withdrawn his unambiguous statement of consent”). Because a reasonable

person would have understood that Sanchez’s consent extended to the tire and was

never withdrawn, the officers did not act unreasonably in searching the spare tire.2

AFFIRMED.

2 Sanchez does not challenge the precise manner in which the officers searched the tire, which involved transporting it (and apparently him) to a nearby tire shop. On the contrary, he concedes that he consented to that procedure and he contends only that it was tainted by the officers’ earlier assertedly unconstitutional search of the tire.

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