Stop Leads to Voluntary Encounter, Dog Sniff and Drug Seizure

United States v. Mercado-Gracia, 2021 WL 786970 (10th Cir. 2021)

Aaron Mercado-Gracia was stopped for driving his Dodge Charger 92 mph on the interstate. The vehicle was registered in someone else’s name and insured by a third party. Mercado-Gracia told the officer his cousin, whose surname he did not know, owned the car. Soon after, he changed the story, telling the officer the car belonged to his girlfriend’s husband’s cousin.

The record does not tell us whether Mercado-Gracia was incredibly handsome or charming, although he explained to the officer he was driving to Albuquerque because there was a “lady” there he wanted to meet for the weekend. Presumably, this was a different lady than the aforementioned girlfriend (with a husband). As the officer wrote a citation and spoke with Mercado-Gracia, he “became increasingly fidgety, antsy, moving his hands and feet around.”

The officer gave the citation to Mercado-Gracia and then asked him if he would answer some questions, performing what the court described as “the old highway patrol ‘two-step.’” The officer told Mercado-Gracia his travel plans didn’t make much sense. Mercado-Gracia gave some confusing, contradictory information about the lady he wanted to meet. The officer asked whether there were any drugs in the car and Mercado-Gracia said, “No.” The officer asked whether he had any marijuana, to which Mercado-Gracia replied, “Not that I am aware of.”

The officer asked Mercado-Gracia for consent to search the car. He refused and the officer told Mercado-Gracia that he was going to get his drug detector dog to sniff the exterior of the vehicle. The dog gave a positive final response and the officer handcuffed Mercado-Gracia, explaining that he would obtain a search warrant to search the vehicle. At that point, Mercado-Gracia consented to a search, which produced a gun and two kilograms of heroin.

Mercado-Gracia claimed the officer unreasonably prolonged the traffic stop. The trial court determined the encounter became consensual once the officer issued the citation and returned Mercado-Gracia’s documents to him. Thus, the trial court denied Mercado-Gracia’s motion to suppress the evidence.

The court had little difficulty determining the encounter was voluntary and the evidence properly seized.

The appellate court affirmed, noting: “We follow a bright-line rule that requires the driver’s documents to be returned before the stop may be considered a consensual encounter.” The court also listed several other factors that should be considered in determining the voluntariness of a conversation following a traffic detention, including:

  • the location of the encounter, particularly whether the person is in an open, public place where he is within the view of persons other than the officers;
  • whether the officers touch or physically restrain the person;
  • whether the officers are uniformed or in plain clothes;
  • whether their weapons are displayed;
  • the number, demeanor and tone of voice (talk nice, think mean) of the officers;
  • whether and for how long the officers retain the person’s personal effects such as identification, registration, etc.;
  • whether officers specifically advise the person at any time that he has the right to end the encounter or refuse consent.

As he issued the citation, the officer told Mercado-Gracia, “Okay. You’re free to go.” The court noted the officer did not use an overbearing show of authority and he spoke in a friendly manner. He was the only officer present and he never drew his weapon. The court had little difficulty determining the encounter was voluntary and the evidence properly seized.

Though the encounter was voluntary, the court also held that the officer had developed reasonable suspicion Mercado-Gracia was transporting illegal drugs, which in turn justified a brief detention to deploy the detector dog. The court cited Mercado-Gracia’s inconsistent answers to the officer’s questions, his confusing explanations for his trip to Albuquerque, his not knowing the last name of the car owner and his changing identification of the vehicle’s owner from his cousin to his “lady’s husband’s cousin.” Also supporting reasonable suspicion: Mercado-Gracia was traveling from Phoenix, a known drug “source city,” and he became increasingly nervous during his interaction with the officer.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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