In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4270
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FERNANDO FIGUEROA-ESPANA,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 06 CR 48—David F. Hamilton, Judge.
____________
ARGUED SEPTEMBER 25, 2007—DECIDED DECEMBER 28, 2007
____________
Before EASTERBROOK, Chief Judge, and BAUER and
KANNE, Circuit Judges.
BAUER, Circuit Judge. After the district court denied
his motion to suppress evidence, Fernando Figueroa-
Espana pleaded guilty to one count of possession with
intent to distribute five kilograms of cocaine in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii). He reserved
the right to appeal the district court’s denial of his
motion to suppress and his sentence. For the following
reasons, we affirm.
2 No. 06-4270
I. Background
At 1:20 p.m. on March 7, 2006, Indiana State Trooper
Dennis Wade observed a Nissan pickup truck tailgating
another vehicle on Interstate 65 near Indianapolis,
Indiana. Trooper Wade pulled over the truck, approached
the driver, Figueroa-Espana, and told him that he was
driving too close to the vehicle in front of him. Figueroa-
Espana indicated that he did not speak English. Trooper
Wade asked, in a mixture of English and Spanish, for
Figueroa-Espana’s driver’s license. Figueroa-Espana
produced a document which Trooper Wade thought to
be an international driver’s license, but was actually a
voter registration card. Trooper Wade asked, again mixing
English and Spanish, if Figueroa-Espana had a United
States driver’s license. Figueroa-Espana responded that
he did not. Trooper Wade then asked for the “rejistro,”
which he understood to mean “registration.” Figueroa-
Espana produced an expired insurance document in the
name of another individual.
At this point, Trooper Wade was joined by Trooper Dean
Wildauer. Trooper Wade explained to Trooper Wildauer
the language difficulties with Figueroa-Espana, and
suggested that Trooper Wildauer, whose Spanish was
stronger, might have more luck. Trooper Wildauer ap-
proached the truck and asked Figueroa-Espana about
the ownership of the vehicle. Figueroa-Espana initially
stated that he owned the truck. When Trooper Wildauer
pointed out that the insurance document indicated that
he was not the owner, Figueroa-Espana audibly sighed
and, according to Trooper Wildauer, became nervous.
Figueroa-Espana then said that the truck belonged to his
friend, but he could not recall the friend’s name. Figueroa-
Espana later stated that the truck belonged to his boss.
During the course of this conversation, Trooper Wildauer
asked Figueroa-Espana to get out of the truck, and the
conversation continued in front of Trooper Wade’s cruiser.
No. 06-4270 3
Meanwhile, Trooper Wade returned to his cruiser to
prepare a warning ticket and run the truck’s license
plates. While in the car, Trooper Wade turned on a video
camera attached to his cruiser. The camera recorded
video and audio of the remainder of the conversation.
Trooper Wildauer asked Figueroa-Espana about his
immigration status and his ultimate destination. Figueroa-
Espana said that he had been in the United States
for three years, and that he was in the country illegally.
He said that he was headed to Indianapolis for a job, but
he could not give a specific address. He stated that the
job involved laying asphalt, but Trooper Wildauer noted
that Figueroa-Espana did not appear to be traveling with
tools or clothes that would suggest this type of work.
During the questioning, Trooper Wildauer observed
Figueroa-Espana becoming increasingly nervous, hesitat-
ing before answering questions and uttering multiple
audible sighs.
Trooper Wade then left his cruiser, issued Figueroa-
Espana a warning ticket, and told him he was “free to go.”
As Figueroa-Espana walked back to his truck, Troopers
Wade and Waldauer decided that they wanted more
information. Trooper Wade honked the horn of his cruiser,
which briefly activated the siren. Figueroa-Espana turned
back, and Trooper Wildauer called out to him, in Spanish:
“Friend, come here please, I have more questions, okay?”
Trooper Wildauer then asked if Figueroa-Espana had any
guns, drugs, or large sums of money in the truck, and
Figueroa-Espana responded that he did not. Trooper
Wildauer then asked if he could search the truck, and
Figueroa-Espana said that he could. Trooper Wildauer
informed Figueroa-Espana that he could refuse the
search, saying in Spanish, “[y]ou don’t have to.” Figueroa-
Espana acknowledged this, and allowed the search. During
the search, the troopers discovered two electronically-
4 No. 06-4270
controlled hidden compartments in the truck which
contained approximately ten kilograms of cocaine.
After being arrested, transported to a police station, and
read his Miranda rights, Figueroa-Espana confessed to a
bilingual Drug Enforcement Agent that he knowingly
transported the drugs. On March 22, 2006, Figueroa-
Espana was charged by indictment with possession with
intent to distribute five kilograms or more of cocaine,
in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii).
Figueroa-Espana filed a motion to suppress the drugs
recovered from the search of the truck. On August 23,
2006, the district court held a hearing on the motion. The
district court denied Figueroa-Espana’s motion; shortly
thereafter, Figueroa-Espana entered a conditional plea
of guilty to the charge in the indictment. On November 21,
2006, the district court sentenced Figueroa-Espana to 176
months’ imprisonment and 5 years’ supervised release.
This appeal followed.
II. Discussion
Figueroa-Espana argues that the district court (1) erred
in denying his motion to suppress evidence uncovered
after an unconstitutional search; and (2) improperly con-
sidered the fact that he made a motion to suppress in
calculating his sentence. We address these issues in turn.
A. Motion to Suppress Evidence
Figueroa-Espana raises three challenges to the dis-
trict court’s denial of his motion to suppress. First, he
contends that he was detained by the troopers in violation
of his Fourth Amendment rights, and that the evidence
obtained must be excluded. Second, he contests the find-
ing that he did not have a protected Fourth Amendment
No. 06-4270 5
interest in the truck that would allow him to challenge
the search. Finally, he argues that the court erred in
holding that, even if he did have a protected Fourth
Amendment interest, he consented to the search. This
court reviews a district court’s legal determinations
made with respect to the suppression ruling de novo
and reviews factual determinations for clear error. United
States v. Riley, 493 F.3d 803, 808 (7th Cir. 2007).
1. The Detention of Figueroa-Espana
Figueroa-Espana argues that the encounter consisted
of two separate and legally distinguishable stops, the
second of which violated his Fourth Amendment rights.
The first stop, according to Figueroa-Espana, began with
the traffic stop and ended when Trooper Wade issued the
warning ticket and said he was “free to go.” The second
stop began when Trooper Wade honked the horn which
activated the siren, and Trooper Wildauer told Figueroa-
Espana, in Spanish, that he had more questions.
Figueroa-Espana rightly does not challenge the con-
stitutionality of the traffic stop. Officer Wade had prob-
able cause to stop the truck when he observed that the
truck was “more close[ ] than is reasonable and prudent”
to the car before it, in violation of Ind. Code § 9-21-8-14.
See Whren v. United States, 517 U.S. 806, 809-10, 116
S.Ct. 1769, 135 L.Ed.2d 89 (1996) (finding that a police
officer may stop a vehicle when he has “probable cause to
believe that a traffic violation has occurred”). Rather,
Figueroa-Espana contends that once the troopers com-
pleted the traffic stop and informed him he was free to
leave, they had no reasonable basis to initiate a second
stop which was neither consensual nor supported by
reasonable suspicion of criminal conduct. Figueroa-Espana
argues that, under Wong Sun v. United States, 371 U.S.
471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), any evid-
6 No. 06-4270
ence uncovered from this improper second encounter
should have been excluded as “fruit of the poisonous tree.”
The district court found that what Figueroa-Espana
labeled a “second stop” was actually a consensual encoun-
ter following the initial stop, and, therefore did not
implicate any Fourth Amendment rights. In the alterna-
tive, the court found that the interaction was a brief
investigatory stop, entirely justified by reasonable suspi-
cion of criminal activity based on Figueroa-Espana’s
behavior and responses to the troopers’ questions.
As a preliminary matter, we decline to adopt the analyti-
cal framework offered by Figueroa-Espana of his en-
counter with the Indiana troopers. The fact that the
troopers sought further information from Figueroa-Espana
after he was told he could leave does not render this
second phase of questions a new seizure. See United States
v. Rivera, 906 F.2d 319, 322-23 (7th Cir. 1990) (finding
that an officer’s request to search a car, after giving the
motorist a written warning, returning his identification,
and indicating that he was free to leave, was part of a
consensual encounter and not a new seizure). Rather, the
events following the issuance of the warning ticket are
more appropriately analyzed as either a consensual
encounter or an extension of the initial stop based on
reasonable suspicion.
A consensual encounter between an individual and a
law enforcement official does not trigger Fourth Amend-
ment scrutiny. United States v. Moore, 375 F.3d 580, 584
(7th Cir. 2004). In determining whether a stop is consen-
sual, relevant factors include whether the encounter
took place in public, whether the suspect consented to
speak to police, whether the officers told the suspect
that he was not under arrest and free to leave, whether
the suspect was moved to another area, the number of
officers present and whether they displayed weapons or
No. 06-4270 7
physical force. See United States v. Adamson, 441 F.3d
513, 520 (7th Cir. 2006). The district court, in finding
that the encounter was consensual, noted that Figueroa-
Espana was not under arrest, that the officers never
displayed their weapons or made threats of physical force,
and that he had just been told he was free to leave.
Figueroa-Espana offers little to disturb this finding,
arguing that the short “whoop” of the siren and the tone
of the troopers’ questions demonstrate that the encounter
was a seizure and not a consensual encounter.
In any event, even if the “whoop” of the siren and
the subsequent questions constituted a detention, such a
detention was part of an extension of the initial traffic
stop entirely justified by reasonable suspicion of criminal
activity. “A seizure that is justified solely by the inter-
est in issuing a warning ticket to the driver can become
unlawful if it is prolonged beyond the time reasonably
required to complete that mission.” Illinois v. Caballes,
543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005).
However, information lawfully obtained during that peri-
od may provide the officer with reasonable suspicion of
criminal conduct that will justify prolonging the stop to
permit a reasonable investigation. United States v. Martin,
422 F.3d 597, 602 (7th Cir. 2005); United States v. Muriel,
418 F.3d 720, 725 (7th Cir. 2005). This court has empha-
sized that the length of detention following a traffic
stop based on probable cause must be reasonable. See
Muriel, 418 F.3d at 725; United States v. Carpenter, 406
F.3d 915, 916 (7th Cir. 2005); United States v. Childs,
277 F.3d 947, 954 (7th Cir. 2002) (en banc) (“What the
Constitution requires is that the entire process remain
reasonable.”).
Under the totality of the circumstances, the troopers
were wholly justified in prolonging the stop; Figueroa-
Espana’s statements and demeanor created reasonable
suspicion of criminal conduct. During the initial traffic
8 No. 06-4270
stop, Figueroa-Espana changed his story as to who
owned the truck, vacillating between himself, an unnamed
friend, and his boss. He provided conflicting informa-
tion regarding his destination. He failed to provide a
valid driver’s license or vehicle registration. He admitted
that he was in the United States illegally. Both troopers
testified that Figueroa-Espana appeared nervous during
their questioning.
Figueroa-Espana argues that each of these independent
factors has an innocent explanation, without reference
to the possession of drugs. Nevertheless, even when
innocent explanations exist for individual factors taken
separately, reasonable suspicion may arise when the
factors are considered together. See United States v.
Baskin, 401 F.3d 788, 793 (7th Cir. 2005) (“[B]ehavior
which is susceptible to an innocent explanation when
isolated from its context may still give rise to reason-
able suspicion when considered in light of all of the
factors at play.”); United States v. Finke, 85 F.3d 1275,
1280 (7th Cir. 1996) (finding that factors considered
separately may have innocent explanations, but give
rise to reasonable suspicion when viewed in combination).
In light all of the information available to the troopers
which was lawfully obtained during the course of the
initial traffic stop, it was not unreasonable for the
troopers to suspect that Figueroa-Espana was engaging
in criminal conduct. See Martin, 422 F.3d at 602. Nor
was it unreasonable for the troopers to further detain
Figueroa-Espana to investigate this suspicion. The exten-
sion of time after the issuance of the warning ticket was
anything but unreasonable; indeed, Trooper Wildauer
proceeded quite expeditiously, obtaining Figueroa-
Espana’s consent to search the truck within moments of
asking the additional questions. As such, the activation of
the siren and subsequent questions from Trooper Wildauer
did not constitute an unlawful detention of Figueroa-
Espana.
No. 06-4270 9
2. Protected Fourth Amendment Interest in the
Truck
Figueroa-Espana further contends that the district court
erred in finding that he lacked a protected Fourth Amend-
ment interest in the truck. The district court held that
because Figueroa-Espana was not the owner of the
vehicle and could not identify the owner, he had no
reasonable expectation of privacy in the vehicle and
therefore could not challenge the legality of the search.1
“Fourth Amendment rights are personal rights which . . .
may not be vicariously asserted.” United States v. Jackson,
189 F.3d 502, 507 (7th Cir. 1999) (internal quotations
omitted). We have recognized that a driver who does not
own a vehicle may still challenge a search of the vehicle.
United States v. Garcia, 897 F.2d 1413, 1418-19 (7th Cir.
1990). In order to determine whether a driver of a vehicle
may challenge a search, we apply a two-pronged test,
asking whether the defendant had a subjective and an
objective right to privacy. United States v. Haywood, 324
F.3d 514, 515-16 (7th Cir. 2003); United States v. Walker,
237 F.3d 845, 849 (7th Cir. 2001). To satisfy the subjec-
tive portion of the test, a defendant must show that he
“actually and subjectively” held an expectation of privacy.
Torres, 32 F.3d at 230. An objective expectation is one
that society recognizes as legitimate and reasonable.
1
The district court, the government, and Figueroa-Espana
address this issue as one of “standing” to contest the search.
However, “in determining whether a defendant is able to show
the violation of his (and not someone else’s) Fourth Amendment
rights, the ‘definition of those rights is more properly placed
within the purview of substantive Fourth Amendment law
than within that of standing.’ ” Minnesota v. Carter, 525 U.S. 83,
87-88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (quoting Rakas v.
Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978));
United States v. Brack, 188 F.3d 748, 755 n. 2 (7th Cir. 1999).
10 No. 06-4270
Haywood, 324 F.3d at 416 (citing Walker, 237 F.3d at 849).
The burden is on the defendant to establish that he has
a protected Fourth Amendment interest in the truck.
Jackson, 189 F.3d at 508 (citing United States v. Torres,
32 F.3d 225, 230 (7th Cir. 1994)).
Figueroa-Espana fails both prongs of the test. He
produced little evidence to suggest that he actually held
an expectation of privacy in the truck. During the traffic
stop, Figueroa-Espana could not affirmatively state how
he came to be behind the wheel of the truck, reciting three
contradictory stories. At the suppression hearing,
Figueroa-Espana was given a chance to state definitively
who owned the truck. Instead, he changed his story
again, testifying that he did not know who actually owned
the truck, and that he received the truck from “[a] person
whose name I don’t know.” Without evidence suggest-
ing that Figueroa-Espana was driving the truck with
someone else’s permission, he cannot establish that he
had a subjective expectation of privacy in the vehicle. Nor
can he establish an objective expectation of privacy. In
addition to being an unauthorized driver, Figueroa-Espana
failed to produce a valid driver’s license to either trooper.
He should not have been driving any vehicle, let alone
a truck of dubious origins, and therefore his objective
expectation of privacy in the truck was neither legitimate
nor reasonable. See Haywood, 324 F.3d at 516 (finding
that an unlicensed and unauthorized driver did not have
an objective expectation of privacy that society recognizes
as legitimate and reasonable). Accordingly, Figueroa-
Espana lacks a protected Fourth Amendment interest
that would allow him to challenge the search of the truck.
3. Consent to Search the Truck
Assuming that Figueroa-Espana did have a protected
Fourth Amendment interest, his challenge would be short-
No. 06-4270 11
lived, as the district court properly found that he con-
sented to the search. The Fourth Amendment accommo-
dates warrantless searches when law enforcement officials
receive voluntary consent to search. Schneckloth v.
Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d
854 (1973); United States v. Sandoval-Vasquez, 435 F.3d
739, 744 (7th Cir. 2006). The government bears the bur-
den of proving by a preponderance of the evidence that
consent was freely and voluntarily given. Sandoval-
Vasquez, 435 F.3d at 744. Whether consent is voluntary
is a question of fact, dependent upon the totality of the
circumstances. Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041;
Sandoval-Vasquez, 435 F.3d at 744. We review a dis-
trict court’s finding that a defendant voluntarily con-
sented to a search for clear error. United States v. Santi-
ago, 428 F.3d 699, 704 (7th Cir. 2005). In reviewing
the court’s finding, we must recall that “a determination
of voluntariness does not ride on the presence or absence
of a single controlling factor.” United States v. Johnson,
495 F.3d 536, 541 (7th Cir. 2007) (citation omitted). Among
the factors to be considered are: (1) the person’s age,
intelligence, and education; (2) whether he was advised of
his constitutional rights; (3) how long he was detained
before he gave his consent; (4) whether his consent was
immediate, or was prompted by repeated requests by the
authorities; (5) whether any physical coercion was used;
and (6) whether the individual was in police custody
when he gave his consent. Santiago, 428 F.3d at 704-05.
The government presented ample evidence to demon-
strate that Figueroa-Espana freely and voluntarily con-
sented to the search of his truck. The troopers did not
coerce him, physically or otherwise, to agree to the
search. His consent was immediate, prompted by a single
question by Trooper Wildauer. Trooper Wildauer informed
Figueroa-Espana that he was not required to allow the
search of the truck, but Figueroa-Espana consented
12 No. 06-4270
anyway. Nothing in the record suggests that his age (forty-
one) or intelligence rendered him unable to understand
or comprehend the questions regarding consent. Con-
sidering the totality of the circumstances surrounding
Figueroa-Espana’s consent, we cannot say the district
court clearly erred in finding that consent was volun-
tarily and freely given.
Figueroa-Espana focuses on the insufficiency of Trooper
Wildauer’s Spanish-speaking skills in seeking consent. The
district court observed the videotape and concluded that
though Officer Wildauer’s Spanish was accented and
flawed, Figueroa-Espana understood the questions and
responded accordingly. Officer Wildauer testified that
he could sufficiently communicate with Figueroa-Espana
on the key issues, and the district court found this testi-
mony credible. The district court almost entirely dis-
credited Figueroa-Espana’s testimony on this matter;
Figueroa-Espana stated in an affidavit filed for the
suppression hearing that “[f]rom the time of my stop until
I was taken to the police station, the officers spoke to me
only in English.” Unfortunately for Figueroa-Espana, the
video and audio recording of the encounter belied this
statement. Determinations on the credibility of wit-
nesses are the purview of the district court, United
States v. Fields, 371 F.3d 910, 914 (7th Cir. 2004), and we
see no reason to disturb the district court’s findings here.
Figueroa-Espana finally contends that any consent
given to the troopers was insufficient to “purge the taint”
of what he argues was an illegal seizure of his person, see
Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45
L.Ed.2d 416 (1975); United States v. Green, 111 F.3d 515,
521 (7th Cir. 1997); we have already concluded that the
activation of the siren and subsequent questions asked
by Trooper Wildauer were lawful, therefore this prin-
ciple does not apply. See Sandoval-Vasquez, 435 F.3d
at 745.
No. 06-4270 13
B. Sentencing
Figueroa-Espana challenges his sentence, arguing that
the district court based it, in part, on an impermissible
factor. He contends that the court, in calculating his
sentence, considered the fact that Figueroa-Espana filed
a motion to suppress evidence, and that such consider-
ation was in error.
Post-Booker, we generally review a sentence for reason-
ableness in light of the statutory sentencing factors in
18 U.S.C. § 3553(a). United States v. Hollins, 498 F.3d
622, 629 (7th Cir. 2007). We review legal questions
de novo, including constitutional challenges to sentences.
Id. (citations omitted); United States v. Peters, 462 F.3d
716, 717-18 (7th Cir. 2006). Figueroa-Espana cloaks his
argument as a constitutional challenge, contending that
the district court’s impermissible consideration of the
motion to suppress violated his Fourth, Fifth, and Sixth
Amendment rights. The government, by contrast, analyzed
this issue as a challenge to the reasonableness of the
sentence, and not a constitutional challenge warranting
de novo review. We will address Figueroa-Espana’s
argument as a constitutional challenge, as he indicates
in his reply brief that he does not challenge the reason-
ableness of his sentence.
The district court sentenced Figueroa-Espana to 176
months’ imprisonment and explained the basis of the
sentence:
The sentence is based on the defendant’s criminal
conduct, his illegal residence and entrance into the
United States, his untruthful statements in his af-
fidavit and in his court testimony during the suppres-
sion hearing, and also includes a minor adjustment for
the fact that he chose to plead guilty.
14 No. 06-4270
Sent. Tr. at 142-43. The court specifically addressed the
“untruthful statements” in the affidavit and at the hear-
ing:
Mr. Figueroa-Espana, in this kind of situation, it
would be possible for you—it would have been possible
for you to tell the truth what you were doing [sic],
tell the truth and get a downward adjustment in the
safety valve. If you had done that, you would be
looking at a sentencing range on the order of 70 to 87
months, less than half the sentence I’m imposing
in this case.
Those provisions in the Sentencing Guidelines recog-
nize that a person can make a mistake, but can then
decide to do the right thing to make up for that mis-
take. When they do, there’s a pretty good chance they
will not get into trouble again. This is at least the
premise of the sentencing policies.
But you made a very different choice in this case. You
lied to the police. You moved to suppress evidence. You
lied about what happened then. You did so in your
affidavit and in court. The result is that your sen-
tence is several years above the mandatory minimum
sentence, but that’s based on the choices that you
made.
Sent. Tr. at 146-47.
Figueroa-Espana asks us to infer from this record—
specifically, from the statement, “[y]ou moved to sup-
press evidence”—that the district court enhanced the
sentence because he filed a motion to suppress the evi-
dence. He argues (without any supporting authority)
that in so doing, the district court encroached upon
Figueroa-Espana’s (1) due process right to challenge the
introduction of inadmissible evidence; (2) right to rely
on advice of counsel in filing the motion to suppress; and
(3) right to challenge Fourth Amendment violations.
No. 06-4270 15
To the extent that these arguments are legally cogniza-
ble, they all rest upon a single unsupported presupposi-
tion: that the district court considered the fact of filing a
motion to suppress in calculating the sentence. Figueroa-
Espana’s use of a selective quotation does not avail his
argument. The phrase “[y]ou moved to suppress evidence”
must be examined in the context of the entire proceedings.
The record shows that the district court based the sen-
tence, inter alia, on several “untruthful statements” made
by Figueroa-Espana. The court identified two sets of
statements—first, that Figueroa-Espana lied to the
police during the traffic stop, and second, that he lied to
the district court in the motion to suppress and at the
hearing on the motion—and then noted the consequences
of making these statements. In this regard, the state-
ment “[y]ou moved to suppress evidence” frames the
context of the second set of untrue statements, and does
not offer a separate basis for assessing Figueroa-Espana’s
sentence. At the suppression hearing and at sentencing,
the district court repeatedly noted its displeasure at the
fact that Figueroa-Espana openly lied on multiple occa-
sions. These lies, and not any motions filed by Figueroa-
Espana, led to his sentence.
III. Conclusion
For the foregoing reasons, we AFFIRM Figueroa-Espana’s
conviction and sentence.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-28-07