United States v. Flores

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4191

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALEJANDRO FLORES,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:08-cr-00073-LHT-1)

Argued: January 29, 2010 Decided: March 5, 2010

Before TRAXLER, Chief Judge, NIEMEYER, Circuit Judge, and
Jackson L. KISER, Senior United States District Judge for the
Western District of Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Andrew Brady Banzhoff, Asheville, North Carolina, for
Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF:
Edward R. Ryan, Acting United States Attorney, Charlotte, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Alejandro Flores (“Flores”) pled guilty to possession with

intent to distribute at least five kilograms of cocaine in

violation of 21 U.S.C. § 841(a)(1) and received a sentence of

seventy months of imprisonment and three years of supervised

release. Flores’s guilty plea was conditional pursuant to Rule

11(a)(2) of the Federal Rules of Criminal Procedure and reserved

his right to appeal the district court’s denial of his motion to

suppress all evidence seized from the search of his vehicle and

trailer. On appeal, Flores argues that the trial court should

have granted his motion because the stop of his vehicle and

ensuing search violated the Fourth Amendment. For the reasons

that follow, we conclude that the search and seizure of Flores’s

vehicle and trailer was consistent with Constitutional mandates.

Specifically, we find that the entire search was within the

scope of Flores’s consent and that the troopers had probable

cause to conduct the search even absent consent. Accordingly,

we affirm.

I. Facts

On June 10, 2008, at approximately 11:00 a.m., North

Carolina State Highway Patrol Trooper Ray Herndon (“Trooper

Herndon” or “Herndon”) was on stationary patrol on Interstate 40

in Haywood County, North Carolina. He observed Flores’s white

2
Ford Bronco traveling east, and as the vehicle approached

Trooper Herndon, Flores braked sharply, causing his vehicle to

travel to the right of the white fog line and nearly collide

with the bridge rail. 1 As the Bronco passed Herndon at

approximately sixty miles per hour, the trooper observed Flores

“sitting very fixed and rigid” in his seat and tightly grasping

the steering wheel. Although Herndon acknowledged that everyone

is nervous during a traffic stop, he described Flores’s reaction

to seeing him as “extreme.” The trooper pursued Flores and

observed the Bronco travel across the fog line once more,

traverse back into its lane, and then cross the dotted center

line. After following Flores for approximately two miles,

Herndon initiated a vehicle stop at 11:05 a.m.

Approaching the vehicle on the passenger side, the trooper

noticed “greasy smudges all over the white rims” of the two-

wheel trailer affixed to the Bronco. He also observed that the

lug nuts appeared to have been worn to the point they were very

shiny, as if they had been taken off and put on numerous times.

The flat bed trailer contained only a spare tire, and the

tailgate was wired shut. Although the Bronco displayed a

Colorado license plate, the trailer had an Arizona registration

plate.

1
The bridge railing at that section of the highway was
approximately one and a half to two feet from the fog line.
3
 In the cabin, Trooper Herndon observed Flores sitting in

the driver’s seat, an adult female sitting in the passenger

seat, and a juvenile female with a dog seated in the back.

Herndon asked for Flores’s license and registration, at which

point he observed that Flores’s hands were shaking so

dramatically that he repeatedly fumbled in his attempts to

retrieve his driver’s license from his wallet. Flores was

breathing out of his mouth as if out of breath, and the whole

side of his neck was visibly pounding with a rapid pulse. The

adult female passenger opened the glove box to search for the

vehicle’s registration, and Trooper Herndon noticed her hands

were also visibly shaking, and she appeared to have a rapid

pulse as well. The trooper was alarmed by this behavior,

particularly the extent of nervousness of the female passenger,

because such passengers are not typically nervous during traffic

stops. Sensing something was not right, Herndon asked Flores to

join him at the rear of the vehicle. After obtaining consent,

the trooper patted Flores down for weapons and noted Flores’s

heart was racing “as if he had been exercising heavily.”

Trooper Herndon advised Flores he had stopped him because

he was “all over the road,” and the two had a brief conversation

in English about Flores’s lane violations. Afterward, the

trooper asked Flores to sit in the front passenger seat of his

patrol car while he checked Flores’s license and registration.

4
Although there was no problem with Flores’s license or the

registration on the Bronco, the Arizona trailer was not

registered under Flores’s name or the name provided by Flores. 2

Trooper Herndon notified Flores he would only receive a warning

for his lane violations, but Flores continued to exhibit a

“[h]eightened state of nervousness,” thereby further arousing

the trooper’s suspicions.

After Herndon returned Flores’s license and registration

and issued him a copy of the warning, the trooper asked Flores

if he could ask him some questions before he left. Flores

agreed, and Herndon posed some general inquiries about where

Flores was going and why, to which Flores replied they were

traveling to somewhere in North Carolina to move the female

passenger’s uncle’s belongings to Colorado. Flores could not

identify the destination city in North Carolina or the uncle’s

name. He did, however, indicate they would be moving all of the

uncle’s belongings, including sofas, couches, and tables,

despite the trooper’s opinion that the five foot by twelve foot

trailer could not reasonably accommodate that many items.

Increasingly suspicious, Herndon asked Flores if he could

speak with the adult female passenger, whom Flores identified as

2
Before Trooper Herndon checked the registration, Flores
identified an individual named “Juan” as the owner of the
trailer. Trooper Herndon’s check revealed it was actually
registered to “a Pablo something.”
5
“Marilena or Marilyn,” his girlfriend of “five, six, seven

years.” Flores agreed, and the trooper proceeded to the Bronco,

where the female passenger identified herself as Nereyda Mendez

(“Mendez”). 3 Mendez confirmed that she was Flores’s girlfriend

and that they were traveling to a location in North Carolina to

pick up furniture to move to Colorado. Mendez identified the

owner of the furniture as her cousin, though, and when asked for

his or her name, Mendez responded with a blank stare.

Eventually, Mendez articulated they were traveling to Lumberton,

North Carolina, but she was not able to produce a name for the

cousin. Throughout the conversation, Trooper Herndon continued

to notice “a quick, rapid pounding pulse” in Mendez’s neck,

which the trooper found abnormal.

Herndon returned to his patrol car to discuss the

inconsistencies between Flores’s and Mendez’s stories.

Ultimately, the trooper explained to Flores that he suspected

them of possessing illegal contraband, and he requested

permission to search Flores’s vehicle. Flores consented, both

orally and in writing. 4 Flores inquired whether the trooper

would damage the vehicle in the search, and Herndon said he

3
“Marilyn or Marilena” turned out to be the name of the
young girl seated in the back of the Bronco.
4
Trooper Herndon used a printed “consent to search” form
that included Flores’s information, the vehicle information, and
the trailer information. The Trooper did not read the form to
Flores or advise him of any rights in relation to the form.
6
would not, but “if [he] did damage it accidentally or something,

. . . [the Highway Patrol] would take care of the damage.”

Herndon then requested assistance, and Trooper Michael Hicks

(“Trooper Hicks”) arrived shortly thereafter to aid in the

search.

During the search, Flores remained in Herndon’s patrol car.

Trooper Hicks stood by the patrol car door with Mendez, the

juvenile child, and the dog. No one was handcuffed. Trooper

Herndon started by searching the Bronco. Despite the parties’

explanation about traveling across the country, Trooper Herndon

found no luggage. The trooper then proceeded to examine the

trailer. Herndon noticed that the lug nuts on the driver’s side

were shiny, just as on the passenger side, and there were greasy

smudges on the rims, just like on the other side. The floor of

the trailer was “very thin” and had no reinforcement, and the

axles “appeared to be extremely large” for such a small,

lightweight trailer. Herndon laid on the ground to examine the

axles further, and he observed several locations with new bolts

and greasy handprints. Trooper Herndon’s examination convinced

him the shackles had been removed many times, and the axles

“obviously . . . had been apart.” This further increased

Herndon’s suspicions, as trailer axles do not typically require

much maintenance. Because of his training and experience in

drug interdiction, the trooper was aware that axles are a common

7
place to conceal contraband due to their being hollow. Based on

this information--as well as the parties’ nervousness and their

vague and conflicting stories--he “became quite confident that

the axles likely contained some kind of illegal contraband.”

Trooper Herndon determined he could not conduct further

inspection of the axles at the roadside, so he asked Mendez if

she would be willing to travel with the troopers to the next

exit so they could continue searching for contraband. Herndon

then asked Mendez to assist him in explaining to Flores in

Spanish what Herndon wanted to do. Although Flores had spoken

“perfect English” that day, Herndon believed the conversation

was becoming more complex, and he wanted to make “double sure”

Flores understood. After Mendez finished explaining the

situation, Flores consented to the additional search. Flores

then drove the Bronco to a Pilot truck stop service bay at the

next exit. Herndon asked Trooper Hicks to accompany Flores,

Mendez, and the juvenile child to the Pilot store and to the

restroom if they wished while Herndon examined the axles.

According to Herndon, Flores, Mendez, and the child were free to

move about.

Upon closer inspection, Trooper Herndon confirmed the

presence of the greasy handprints, shiny bolts, new shackle

bolts, and other evidence the axles had been tampered with and

removed. He determined the quickest, least intrusive, and most

8
efficient way to investigate would be to drill a small hole in

the axle, as that would not damage its functionality. Using a

5/16 inch drill bit, Herndon drilled a hole into the axle

approximately one foot from the right side. Although the axle

should have been hollow, the trooper encountered another sleeve

inside the axle. According to Trooper Herndon, this sort of

inner sleeve is often used by smugglers to facilitate ease of

insertion and removal of contraband inside an axle. Upon

drilling into the inner sleeve, the trooper noticed a white,

powdery substance on the end of his drill, and he immediately

smelled cocaine. A field test revealed the substance was indeed

cocaine. When Flores and Mendez returned from the Pilot store,

Herndon arrested them. Further inspection of the axle revealed

eighteen bundles of cocaine, which weighed out to a total of

approximately nine kilograms.

After a suppression hearing, the district court denied

Flores’s motion to suppress evidence obtained as a result of the

search and seizure of Flores and his vehicle. Judge Thornburg

first determined that Trooper Herndon’s initial stop of Flores

was proper because there was probable cause to believe Flores

violated North Carolina traffic law. By state statute, law

enforcement personnel may issue warning tickets for conduct that

may potentially cause harm to the public. Since Trooper Herndon

observed Flores cross the fog line twice and center line once,

9
the stop was proper. Second, Judge Thornburg ruled that the

“numerous conversations between Trooper Herndon and Flores

established” that Flores’s consent was knowingly and voluntarily

given, including the consent to move the Bronco to a second

location for further searching. The Judge found Flores could

readily understand and respond to the trooper’s questions and

pose his own, and Trooper Herndon did not employ a menacing or

intimidating tone. Judge Thornburg further determined that the

trooper’s failure to notify Flores of his right to refuse

consent did not vitiate the voluntariness of his consent.

Third, the district court held that drilling a hole in Flores’s

axle did not exceed the scope of consent. Given Trooper

Herndon’s explicit questions about drugs, the Judge concluded a

reasonable person would have understood that the trooper was

asking for consent to search the entire vehicle and trailer for

contraband. Although Flores inquired about damage to the

vehicle, he did not object when the trooper mentioned the

possibility the Highway Patrol might have to repair some damage,

so he did not limit his consent. Furthermore, drilling a small

hole was a reasonable method of conducting the search, as the

likely alternative would have required the troopers to prolong

the search by completely dismantling the axle. Finally, Judge

Thornburg determined Trooper Herndon, based on his training and

10
experience, had probable cause to search the axle and employed

the least intrusive method of doing so.

II. Analysis

In reviewing a trial court’s denial of a motion to

suppress, this Court reviews factual findings for clear error

and legal determinations de novo. Ornelas v. United States, 517

U.S. 690, 699 (1996); United States v. Mowatt, 513 F.3d 395, 399

(4th Cir. 2008); United States v. Hamlin, 319 F.3d 666, 671 (4th

Cir. 2003).

A. Legality of the Stop

Flores argues the district court erred in determining that

Trooper Herndon’s initial stop was consistent with the Fourth

Amendment. Flores acknowledges the traffic offense of “Failing

to Maintain a Lane,” codified as follows: “A vehicle shall be

driven as nearly as practicable entirely within a single lane

and shall not be moved from such lane until the driver has first

ascertained that such movement can be made with safety.” N.C.

Gen. Stat. § 20-146(d)(1) (2008). Flores asserts, however, that

crossing the fog line twice and the center line once does not

amount to a violation of section 146(d)(1). In support of his

argument, Flores relies on United States v. Gregory, 79 F.3d 973

(10th Cir. 1996), a case in which the Tenth Circuit examined a

11
similar Utah statute and concluded that weaving into the

emergency lane once was not a traffic violation providing

probable cause for search and seizure. Therefore, according to

Flores, Trooper Herndon lacked probable cause to make the

initial stop. Alternatively, Flores asserts that no North

Carolina appellate case has concluded that crossing the fog line

constitutes a violation of section 146(d)(1).

The Government responds that Flores’s swerving off the road

amounted to a violation of section 20-146(d)(1). Based on State

v. Baublitz, 172 N.C. App. 801, 616 S.E.2d 615 (N.C. Ct. App.

2005), and United States v. Gallardo-Gonzales, No. 08-4284, 2009

WL 1426907 (4th Cir. May 22, 2009), the Government argues that a

stop based on a “readily observable” traffic violation is

supported by probable cause. Alternatively, even if crossing

the fog and center lines was not sufficient to provide probable

cause, the Government asserts that the trooper’s subjective

belief that criminal activity might have been afoot, based on

the totality of the circumstances known to the trooper, rendered

the stop reasonable.

It is well-established that “the decision to stop an

automobile is reasonable where the police have probable cause to

believe that a traffic violation has occurred.” Whren v. United

States, 517 U.S. 806, 809-10 (1996). In other words, “‘[w]hen

an officer observes a traffic offense--however minor--he has

12
probable cause to stop the driver of the vehicle.’” United

States v. Hassan-El, 5 F.3d 726, 730 (4th Cir. 1993) (quoting

United States v. Cummins, 920 F.2d 498, 500 (8th Cir. 1990)).

Additionally, pursuant to state and federal precedent, when a

North Carolina patrol trooper observes a driver swerving out of

his or her lane, the trooper has probable cause for a stop. See

Gallardo-Gonzales, 2009 WL 1426907, at *1 (holding that

Gallardo-Gonzales’s “readily observable” violation of section

20-146(d) provided the officer with probable cause to effectuate

a stop); Baublitz, 172 N.C. App. at 807, 616 S.E.2d at 619

(concluding that the investigator’s two observations of Baublitz

crossing the center line of a highway in violation of section

20-146(a) supplied probable cause for the stop).

Based on the precedent, there can be little doubt the

district court was correct in ruling Trooper Herndon had

probable cause to stop Flores. When Flores first noticed the

trooper, his Bronco suddenly swerved right of the fog line and

nearly collided with the bridge railing. The trooper pursued

Flores and observed two additional instances of his inability to

maintain a single lane. Although Flores appears to be correct

that no North Carolina state appellate court has addressed

whether this sort of conduct constitutes a violation of the

statute, at least one unpublished case from this Court has

concluded, with little difficulty, that a single incident of

13
crossing over the fog line is a violation of that section. See

Gallardo-Gonzales, 2009 WL 1426907, at *1. Moreover, the

absence of state precedent on the matter may simply be due to

the fact that the language found in section 20-146(d)(1) is so

clear that there can be little doubt that swerving in and out of

a lane constitutes a violation of the statute unless additional

circumstances make maintenance of a single lane impractical.

See § 20-146(d)(1). In any event, Flores’s three readily

observable traffic infractions permitted Trooper Herndon to

effectuate a stop consistent with the Fourth Amendment. See

Whren, 517 U.S. 816; Gallardo-Gonzales, 2009 WL 1426907, at *1;

Baublitz, 172 N.C. App. at 807, 616 S.E.2d at 619; see also N.C.

Gen. Stat. § 20-183(b) (2008) (authorizing law enforcement to

issue warning tickets for conduct that could harm the public).

Flores’s reliance on the Tenth Circuit’s opinion in United

States v. Gregory is misplaced. Although the Utah statute in

Gregory is similar to section 20-146(d), 5 the facts presented are

substantially different. In ruling that the officer did not

have probable cause to stop Gregory, the Tenth Circuit

emphasized that Gregory’s single lane crossing was likely due to

the winding road, mountainous terrain, and windy conditions.

5
In Gregory, the court interpreted Utah Code section 41-6-
69(1), which provides that “[a] vehicle shall be operated as
nearly as practical entirely within a single lane and may not be
moved from the lane until the operator has determined the
movement can be made safely.” Gregory, 79 F.3d at 976 n.2.
14
Gregory, 79 F.3d at 978. The court noted that the Utah statute

only requires a vehicle to remain in a single lane “as nearly as

practical” and concluded that, “[u]nder these conditions[,] any

vehicle could be subject to an isolated incident of moving into

the right shoulder of the roadway[] without giving rise to a

suspicion of criminal activity.” Id. (emphasis added). Unlike

in Gregory, the present case presents no indication that weather

or road conditions made it impractical for Flores to maintain a

single lane. Moreover, unlike Gregory, Trooper Herndon observed

Flores swerve out of his lane three times, not just once.

Gregory is therefore distinguishable from the present facts, and

nothing on the record indicates the district court erred in fact

or law in holding that probable cause supported the initial

stop.

B. Consent to Search and Seize

Flores next argues that Trooper Herndon did not have valid

consent to search the vehicle and trailer. First, Flores

maintains that Herndon should have let Flores go after returning

Flores’s license and registration and issuing him a ticket, as

Flores’s nervousness was not sufficient to create a reasonable

suspicion of additional criminal activity. 6 Second, Flores

6
According to Flores, “[t]he Trooper later acknowledged
that the defendant’s status as an illegal alien might have
15
asserts that the language employed by Trooper Herndon to ask

Flores if he could pose additional questions was “coercive and

confusing” and conditioned Flores’s freedom to leave on his

willingness to answer questions. 7 According to Flores, this

rendered Flores’s continued detention involuntary and vitiated

his consent. Third, Flores argues that “the physical appearance

of the officer, including his all black para-military style

outfit[] and his physically imposing size provided an inherently

coercive atmosphere . . . .” 8 When coupled with the fact that

Trooper Herndon did not advise Flores of his rights or ability

to refuse consent, this further rendered Flores’s consent

accounted for his nervousness.” This reading of the testimony
is patently incorrect. The portion of the record cited by
Flores reads as follows:

Q. Would you agree, wouldn’t you, that if he was in
this country illegally, that certainly would account
for that nervousness[?]
A. You want my opinion? Is that what you’re asking?
Q. Well, I mean—
A. I don’t necessarily agree with your broad statement
there, no.
Q. If he is an illegal alien, that certainly would
make him nervous in the presence of a law enforcement
officer, wouldn’t [it]?
A. Well, that would depend on the illegal alien.
Everybody is different.
7
Trooper Herndon testified that he wrote in his report: “I
asked Mr. Flores if I could ask him some questions before he
left.”
8
Flores’s Brief details Trooper Herndon’s clothing, height,
and weight on the date in question. The description appears to
match that of a normal highway patrol officer and does not
present anything even arguably out of the ordinary.
16
involuntary. Flores argues he would not have subjected himself

to the “embarrassment and humiliation” of traveling by police

escort to the truck station but for his belief he was not free

to decline.

The Government counters that the evidence reveals Flores

knowingly and voluntarily consented to the searches of his

vehicle, including both the initial search and the later search

at the truck station. Relying on several Fourth Circuit cases,

the Government argues Herndon’s return of Flores’s driver’s

license and registration was a crucial moment separating the

compulsory portion of the stop from the voluntary portion.

According to the Government, once Herndon returned Flores’s

driver’s license and registration and issued a warning, the

trooper’s language and conduct would have led a reasonable

person to believe any further questioning was voluntary. Under

these circumstances, Flores’s explicit, verbal consent to

additional questioning prevents the conclusion that the

continued inquiry violated the Fourth Amendment. The Government

notes, based on Fourth Circuit precedent, that advising Flores

of his right to refuse consent was not a prerequisite to it

being voluntary. The Government further asserts that Flores’s

statements and conduct--including the fact that Flores helped

the troopers move the Bronco and trailer to the truck station

with knowledge of Trooper Herndon’s specific suspicions--provide

17
ample proof of his consent to the later search. Finally, the

Government points out that the district court found no evidence

of coercion. Therefore, based on the totality of the

circumstances, the Government maintains that the lower court’s

decision should be upheld.

Even where an initial stop is justified by probable cause,

after satisfying the purpose for which the stop was made and

issuing a citation or warning, the officer must permit the

driver to proceed on his way without further delay, and any

continued detention for questioning is illegal absent a

reasonable suspicion of a serious crime. United States v.

Foreman, 369 F.3d 776, 781 (4th Cir. 2004); United States v.

Rusher, 966 F.2d 868, 876-77 (4th Cir. 1992). In circumstances

where the individual would be free to go but voluntarily stays

and engages in a dialogue with the officer, however, the

questioning is considered consensual and does not trigger Fourth

Amendment scrutiny. United States v. Meikle, 407 F.3d 670, 672-

73 (4th Cir. 2005). This exception applies where “a reasonable

person would have felt free to decline the officer’s request or

otherwise terminate the encounter.” Id. at 672. Likewise,

although a warrantless search conducted without consent is per

se unreasonable, voluntary consent to search is an exception to

that general rule. Schneckloth v. Bustamonte, 412 U.S. 218, 219

(1973). In examining whether consent was freely and voluntarily

18
given, the court must consider the totality of the circumstances

surrounding the consent, including the age, maturity, education,

intelligence, and experience of the defendant, as well as the

conditions under which the consent was given. United States v.

Lattimore, 87 F.3d 647, 650 (4th Cir. 1996). The question of

voluntariness of consent is a factual question, and the district

court’s conclusion should be upheld unless the finding is

clearly erroneous. Id. Where the lower court “bases a finding

of consent on the oral testimony at a suppression hearing, the

clearly erroneous standard is particularly strong since the

[court] had the opportunity to observe the demeanor of the

witnesses.” Id. at 650-51 (internal quotation omitted).

In this case, the district court’s determination that

Flores voluntarily consented to Trooper Herndon’s continued

questioning is not clearly in error. In fact, this case

presents an almost identical set of facts to those in Meikle.

In Meikle, as here, an officer stopped the defendant for

crossing the fog line and became suspicious about drugs due to

the defendant’s “extreme nervousness,” which continued even

after the officer notified the defendant he would only receive a

warning. 407 F.3d at 671. After returning the defendant’s

license and registration and issuing the warning, the officer

“asked [the defendant] if he could talk to him again,” and the

defendant replied “yes.” Id. We there concluded that, having

19
reacquired his license and registration and received the

warning, a “reasonable person would have felt free to decline

[the officer’s] request to speak” further, despite the officer’s

failure to explicitly say that the defendant was free to go or

that he could refuse consent. Id. at 673. In the present case,

the district court found that Trooper Herndon posed his request

for further questioning in a manner similar to the officer in

Meikle, and Flores replied with an affirmative “yes.” As in

Meikle, the trooper’s language, coupled with the surrounding

circumstances, would inform a reasonable person that he or she

could refuse consent. Nothing in the record indicates that the

trooper used a menacing or intimidating tone, and Flores’s

description of Herndon’s physical appearance does not seem out

of the ordinary in any respect. At the time Herndon requested

the opportunity for additional questioning, the trooper had

already returned Flores’s license and registration, so Herndon

was not withholding or restricting Flores’s means of going about

his business. See United States v. Weaver, 282 F.3d 302, 310-11

(4th Cir. 2002) (describing the significance of returning a

defendant’s license and registration). Although Herndon did not

notify Flores of his right to refuse consent, “the Government

need not demonstrate that the defendant knew of his right to

refuse consent to prove that the consent was voluntary.”

20
Lattimore, 87 F.3d at 650. 9 Based on all of these factors, the

district court did not err in finding Flores voluntarily

consented to the questioning.

Nor can it be said the district court erred in concluding

Flores consented to the initial search of his vehicle and the

later search at the truck station. Contrary to Flores’s

argument that Trooper Herndon employed confusing language to

elicit consent, it appears the trooper went to considerable

lengths to ensure Flores understood exactly what the officer was

asking. Prior to requesting permission to search, Herndon

specifically inquired whether Flores was carrying illegal drugs

“such as marijuana, cocaine, methamphetamine, [or] heroin” in

his vehicle. The trooper then explained that he suspected

Flores of engaging in criminal activity and requested permission

to search Flores’s vehicle for contraband. Only after this did

Flores provide consent--both verbally and in writing--to the

search. Even if Flores’s English reading skills were limited in

9
The Supreme Court elaborated on this point in Ohio v.
Robinette, 519 U.S. 33 (1996):

“While knowledge of the right to refuse consent is one
factor to be taken into account, the government need
not establish such knowledge as the sine qua non of an
effective consent . . . . [S]o too would it be
unrealistic to require police officers to always
inform detainees that they are free to go before a
consent to search may be deemed voluntary.”

Id. at 39-40.
21
some degree, as Flores argued before the district court, he was

able to converse in perfect English with Trooper Herndon

throughout their numerous conversations. He demonstrated his

ability to understand the trooper’s questions and respond

appropriately. By asking whether Herndon would damage his

vehicle in the search, he further established he was able to

pose questions of his own. At the very least, Flores’s verbal

consent to the initial search was free, voluntary, and knowingly

provided, and nothing in the record or testimony indicates

Flores was confused about what the trooper was asking.

Moreover, when Herndon concluded he could not properly

search the vehicle on the side of the highway, he employed

Mendez’s Spanish-speaking skills “to make double sure that

[Flores] understood” what the trooper was asking. Flores

unequivocally responded that “that was fine,” and the troopers

could do “whatever [they] needed to do.” To further evince his

consent, Flores then proceeded to drive his Bronco and trailer

to the truck stop, park it in the service bay, and exit the

vehicle so the trooper could continue his search. Based on all

of these circumstances, as established at the suppression

hearing through Trooper Herndon’s testimony, the district court

did not commit clear error in finding Flores consented to both

searches.

22
 C. Scope of Consent and Probable Cause to Search

In his third assignment of error, Flores argues that he

limited his consent by requesting that the troopers not damage

his vehicle. Because of this, Flores asserts that Herndon could

only have drilled into his axle if they had probable cause,

which Flores maintains they lacked. According to Flores,

although Trooper Herndon testified at length about the axles not

appearing to be “factory axles,” that created nothing more than

an inarticulable hunch insufficient to form probable cause.

Relying on case law from other Circuits, Flores argues that,

although the axles could be capable of holding contraband, the

troopers did not have any additional specific facts indicating a

fair probability that drugs would be found therein, thereby

depriving them of probable cause.

The Government responds with three justifications

supporting the district court’s conclusion that the troopers did

not exceed the scope of Flores’s consent. First, the Government

argues that Flores did not limit the scope of his consent; he

simply inquired whether the troopers would damage his vehicle in

the search. When Trooper Herndon responded that the Highway

Patrol would take care of any damage that occurred, Flores did

not object, thereby demonstrating his satisfaction with the

trooper’s answer. Second, the government maintains that, in

driving his Bronco and trailer to a truck stop mechanic’s bay,

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Flores understood the troopers would be looking for drugs in

hidden areas, including the axles. By going along with this,

Flores’s conduct bolsters the conclusion that the search of the

axles was within the scope of his consent. Third, even if

Flores limited the scope of his consent by inquiring about

damage, the Government asserts that drilling the axles did not

exceed the limitation, as the small drill hole did not impair

the functionality of the axles in any way.

Where a defendant argues that law enforcement officers

exceeded his or her consent, “[t]he standard for measuring the

scope of . . . consent 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)

(citing Illinois v. Rodriguez, 497 U.S. 177, 183-89 (1990),

Florida v. Royer, 460 U.S. 491, 501-02 (1983), and id. at 514

(Blackmun, J., dissenting)); see also United States v. Neely,

564 F.3d 346, 350 (4th Cir. 2009). In this case, the district

court correctly concluded that a reasonable person in Flores’s

position would have understood he was consenting to a search of

the trailer’s axles. Flores inquired whether the search would

cause any damage to his vehicle, and Trooper Herndon notified

him of that possibility. Only after that notice did Flores

execute the written consent to search form, thereby consenting

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with full awareness that the troopers might look within the

axles. Additionally, when Trooper Herndon asked for additional

consent to move the vehicle to the Pilot station, he explicitly

stated the reason he wished to do so: he wanted to conduct a

“closer inspection of the trailer axles because [he] suspected

they contained some kind of contraband.” At the point Flores

again consented, he was conscious to both the possibility of

damage and the trooper’s interest in the contents of the axles.

In other words, based on the trooper’s numerous explanations, at

the time Flores consented to the continued search, a reasonable

person would have known what the search would entail.

In addition, the district court did not err in finding that

Trooper Herndon, based on his training and experience, had

probable cause to search the axle. If an officer has probable

cause to believe a suspect is engaged in criminal activity, the

officer may search the suspect’s vehicle even absent consent or

a warrant. United States v. White, 549 F.3d 946, 949 (4th Cir.

2008). Probable cause exists where “there is a fair probability

that contraband or evidence of a crime will be found in a

particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).

In evaluating whether the officer had probable cause, courts

examine the totality of the circumstances. White, 549 F.3d at

949.

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 Although there does not appear to be any Fourth Circuit

precedent with analogous facts, case law from other

jurisdictions lends support for the district court’s finding of

probable cause. For instance, in United States v. Martel-

Martines, the Eighth Circuit found that officers had probable

cause to search a suspect’s vehicle by punching a hole in the

suspect’s truck bed based on the suspect’s evasive and

inconsistent responses to questions, the fact that the suspect’s

vehicle’s underside had been modified, and the existence of an

inaccessible hidden compartment in the suspect’s truck. 988

F.2d 855, 858-59 (8th Cir. 1993). Likewise, in United States v.

Arango, the Tenth Circuit held that the existence of a secreted

compartment in the defendant’s truck, coupled with the fact that

the defendant did not have adequate luggage for his reported

two-week vacation, supplied probable cause. 912 F.2d 441, 447

(10th Cir. 1990). In United States v. Price, where burn marks

on the bed of a truck drew the attention of officers, who then

discovered a secret compartment within the bed, the Fifth

Circuit determined the officers had probable cause to search the

compartment itself. 869 F.2d 801, 804 (5th Cir. 1989).

Although customization of an automobile, standing alone, is

likely insufficient to support probable cause, see United States

v. Orrengo-Fernandez, 78 F.3d 1497, 1504-05 (10th Cir. 1996),

Martel-Martines, Arango, and Price indicate that the existence

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of a hidden compartment is much more substantial, especially

when coupled with other factors, see Martel-Martines, 988 F.2d

at 858-59; Arango, 912 F.2d at 447; Price, 869 F.2d at 804.

Additionally, circumstances indicating that an auto part is

meant to conceal contraband can provide added support to an

officer’s belief in the existence of probable cause. In United

States v. Strickland, an officer noticed an uncharacteristically

large, incongruently worn tire in the defendant’s trunk. 902

F.2d 937, 939, 943 (11th Cir. 1990). The tire was made by a

different manufacturer than the other tires on the vehicle, had

a bent rim, and was extremely heavy. Id. at 943. When the

officer moved the tire, he noticed a flopping sound within. Id.

These factors, coupled with the officer’s specialized knowledge

based on training and experience in drug concealment methods,

convinced the Eleventh Circuit that the officer had probable

cause to cut the tire open and search inside. Id.; see also

United States v. Davis, 458 F.2d 819, 822 (D.C. Cir. 1972)

(“[C]onduct innocent in the eyes of the untrained may carry

entirely different ‘messages’ to the experienced or trained

observer.” (internal quotation omitted)).

In this case, Trooper Herndon noticed the axles on the

small, lightweight, two-wheel trailer were extremely large,

especially considering the fact that the trailer bed was not

reinforced to carry great weights. Upon examining the axles, he

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and Trooper Hicks reached the conclusion--based on the numerous

greasy smudges and handprints, the shiny, worn-down bolts, and

other signs of removal--that the axles had been taken off and

put on numerous times, even though such axles usually require

little maintenance. Because of his eleven years of Highway

Patrol and drug interdiction experience, Trooper Herndon was

aware that vehicle axles are a common place for smugglers to

hide drugs due to the fact that they are just hollow tubes, and

the unusual size of these axles indicated they contained

contraband. Moreover, both Flores and Mendez exhibited signs of

extreme nervousness beyond that normally shown by traffic

offenders in routine stops. The nervousness was not alleviated

when the Trooper notified Flores he would only receive a

warning. Flores and Mendez offered differing accounts of where

they were going and what they were doing. In fact, Flores could

not identify Mendez’s name, despite claiming she was his

longtime girlfriend, and neither Mendez nor Flores could provide

the name of the cousin or uncle they were out to help.

According to Trooper Herndon, the trailer affixed to Flores’s

Bronco was clearly insufficient to move all the property Flores

alleged they would transport, and, despite Flores and Mendez’s

story that they were traveling across the country, the troopers

found no luggage consistent with such a voyage. Based on the

totality of the circumstances, the district court was correct in

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concluding that Trooper Herndon had a fair probability of

discovering contraband in Flores’s trailer axles, and the search

was permissible under the Fourth Amendment.

Finally, Flores’s argument that the search was not within

the scope of the Fourth Amendment’s automobile exception due to

the fact that the vehicle was not “readily mobile” after Flores

exited is without merit. Numerous cases clarify that the ready

mobility requirement is meant to distinguish a movable vehicle--

which can easily be relocated to prevent a search for

contraband--from something that would more appropriately be

described as a stationary home. See, e.g., California v.

Carney, 471 U.S. 386, 392-93 (1985); United States v. Brookins,

345 F.3d 231, 237 n.7 (4th Cir. 2003). In other words, the

ready mobility element centers on “the nature of the use of the

vehicle” and is more appropriate for consideration where the

thing searched was being used as a house or exhibited the

characteristics of a fixed dwelling rather than a functioning

vehicle. Brookins, 345 F.3d at 237 n.7; see also Carney, 471

U.S. at 392-93. Since Trooper Herndon observed Flores’s Bronco

traveling on a public highway immediately prior to the search,

this case satisfies the ready mobility requirement, and Flores’s

objection is unavailing. See Carney, 471 U.S. at 392-93.

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 III. Conclusion

For the above-stated reasons, we affirm the judgment of the

district court.

AFFIRMED

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