United States Court of Appeals
Fifth Circuit
F I L E D
June 27, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
Clerk
FOR THE FIFTH CIRCUIT
No. 01-50736
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FIDENCIO SANCHEZ-PENA,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
Before GARWOOD and HIGGINBOTHAM, Circuit Judges, and FELDMAN,
District Judge.*
PATRICK E. HIGGINBOTHAM, Circuit Judge:
A jury convicted appellant Fidencio Sanchez-Pena (“Sanchez”)
of aiding and abetting possession with intent to distribute
marijuana, for which he received a sentence of forty-one months’
imprisonment and three years’ supervised release. Prior to trial,
the district court denied Sanchez’s motion to suppress the drug
evidence police officers found in his car following a traffic stop.
*
District Judge of the Eastern District of Louisiana, sitting
by designation.
Sanchez appeals the trial court’s ruling on that motion, and also
asserts that one of his attorneys labored under a conflict of
interest during Sanchez’s trial and pretrial proceedings and that
the other rendered ineffective assistance of counsel. Finding no
error, we affirm.
I.
There was testimony at the hearing on the motion to suppress
that on October 19, 2000, at approximately 4 a.m., Brewster County
Deputy Sheriff Ross Bates, while patrolling in a southerly
direction on U.S. Highway 385, observed a blue Suburban traveling
north, partially on the shoulder of the road, at a speed of forty-
nine miles per hour. The posted speed limit was sixty-five miles
per hour. Bates testified that he had learned during DWI training
that there is a fifty-percent chance that a driver going more than
ten miles below the speed limit is intoxicated; driving on the
shoulder of the road also indicates that the driver is under the
influence.
Based on his suspicion that the driver was intoxicated, Bates
turned his vehicle in a northerly direction and activated his
overhead lights to stop the Suburban. The driver of the Suburban
turned on his left turn signal but pulled over to the right of the
roadway. Bates then exited his patrol car and the driver, whom
Bates identified as Sanchez, also exited his vehicle and met the
officer at the front of the police car.
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Bates did not notice the smell of alcohol on Sanchez’s breath,
but saw that Sanchez appeared nervous and his hands and knees were
shaking. The two spoke in English without any apparent problems,
and Sanchez presented a valid Texas driver’s license. Sanchez told
Bates that he was coming from Presidio, Texas, and going to Del
Rio, Texas. That raised further questions, because Sanchez was not
taking the logical route to reach his destination, choosing to
navigate the hilly, winding road through Big Bend National Park
instead of using a more direct, faster highway route.
Bates asked for proof of insurance, and Sanchez told Bates to
wait by the patrol car while he obtained it from the Suburban.
However, Bates followed Sanchez to his car, and noticed when
Sanchez reached across the driver’s seat to retrieve the insurance
card from the glove box that there was a passenger in the front
seat, whom Bates identified as Sanchez’s co-defendant, Cazares.
Sanchez conversed with Cazares in Spanish and then obtained the
insurance paper from the glove compartment. When Sanchez turned
and found Bates behind him, “he kind of jumped a little.” Bates
asked Sanchez to wait while he checked the vehicle’s registration
and for outstanding warrants.
After Bates returned to his vehicle, he received a call from
Border Patrol Agent Tashman advising him about oncoming traffic.
Bates told Tashman that he had stopped a blue Suburban and that he
would probably need assistance. Bates, who had a drug-detecting
dog with him, determined that a canine inspection should be
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conducted on the vehicle based on its suspicious route and because
similar vehicles had been used to smuggle drugs in the gas tank.
However, because there were two individuals in the car, he
hesitated to conduct the canine inspection in the dark isolated
area without any assistance.
Bates received information that Sanchez was the registered
owner of the vehicle. He returned to Sanchez’s vehicle and noticed
that the heater was on high, which he found odd since he was in
short sleeves on that October night. Bates advised Sanchez that he
wished to conduct a canine inspection and asked Sanchez if he would
mind proceeding with him to a closed checkpoint approximately
thirty miles north; Sanchez said that was fine.
Bates followed Sanchez’s vehicle and called a dispatcher to
obtain the assistance of another officer, Deputy Fuentes, at the
checkpoint, because Agent Tashman was located too far away to get
to the checkpoint by the time Bates and Sanchez were due to arrive.
Just before reaching the checkpoint, Sanchez pulled over to the
right of the roadway, and Bates pulled in behind him and turned on
his overhead lights for safety reasons. He told Sanchez to pull up
to the lit area of the checkpoint, which was 200 to 300 yards away,
and Sanchez did so without any protest. Deputy Fuentes was at the
checkpoint when they arrived, and Sanchez began speaking to him in
Spanish. Bates spoke to Sanchez through Fuentes and told Sanchez
that he wanted to perform a canine inspection on the vehicle.
Sanchez again consented to the inspection.
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Bates testified that he and the dog, Pepper, circled the
vehicle and the dog alerted to the gas tank area of the Suburban.
He then inspected the inside of the vehicle and noticed that the
floor boards from front to back were soaking wet. Sanchez
explained that a relative had washed the car and might have left a
door open.
Agent Tashman arrived and used a scope to examine the gas
tank, which revealed an abnormal tank in which there appeared to be
some welding and a black colored box. Based on that observation,
the dog alert, the time of night, the route being taken, and the
type of vehicle, Bates decided to arrest Sanchez and Cazares. The
officers proceeded to the Border Patrol Station, removed the gas
tank, and found two large metal containers inside of it. The
containers concealed approximately 195 pounds of marijuana.
Sanchez and Cazares told a different story at the hearing.
Cazares denied that the car was weaving, but admitted that when
Bates initially stopped them, he said the vehicle had been
zigzagging on the road and traveling very slowly and he suspected
the driver had been drinking. Cazares asserted that after Bates
inspected the insurance papers, he told them to drive safely and
gave them permission to leave. He did not hear Bates discussing a
canine inspection or making an additional stop, but admitted that
he could not hear all of the conversation between Bates and
Sanchez. He testified that they continued to drive north but as
they approached the checkpoint, Bates came up behind them and
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turned his lights on. Sanchez stopped about a half block from the
checkpoint, and Bates told them to proceed to the checkpoint; when
they arrived at the checkpoint, Fuentes told them to stand there
and not move. Cazares did not hear Fuentes ask for consent to do
a canine inspection and did not recall Sanchez consenting to the
canine inspection or to the gas tank being scoped with an
instrument. He testified that he and Sanchez were not told at any
point that they were free to leave the checkpoint and he did not
feel that he was free to walk away.
Sanchez testified that, at the time of the initial stop, Bates
told him he could leave after his paperwork was found to be in
order. He noticed after driving away that Bates continued to
follow his vehicle. As they approached the checkpoint, Bates put
on his overhead lights, and Sanchez felt compelled to stop. He
denied that Bates asked him to drive to the checkpoint so that he
could conduct a canine inspection. However, he acknowledged that
Deputy Fuentes asked for permission to conduct the canine
inspection, and he consented to it because he did not feel that he
had the right to say no.
At the conclusion of the hearing, the district court
determined that Officer Bates had the right to stop Sanchez because
he was driving slowly and weaving and, thus, Bates had a reasonable
basis to suspect that he was intoxicated. The district court made
the credibility determination that Sanchez consented to the request
to proceed to the checkpoint for a canine inspection. The district
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court also determined that the consent was voluntary, that the
canine had sufficient training to make an effective alert, and that
the canine inspection presented no Fourth Amendment problems. With
these findings the trial court denied Sanchez’s motion to suppress.
II.
Sanchez urges here that Bates had no reasonable suspicion of
illegality justifying the initial traffic stop; that, even if
reasonable suspicion did justify the initial stop, the officers
located the evidence after they had illegally extended the stop
past the original justification; and that the drug-detection dog
was not qualified to detect narcotics. In reviewing a district
court’s order denying a motion to suppress, we review conclusions
of law de novo and factual findings for clear error, viewing the
evidence in the light most favorable to the party who prevailed in
the district court, in this case the Government.1
A.
Sanchez first contends that the initial traffic stop was not
based on Officer Bates’s reasonable suspicion that Sanchez was
driving while intoxicated.2 The Government retorts that the manner
1
United States v. Jordan, 232 F.3d 447, 448 (5th Cir. 2000).
2
Sanchez actually argues that Officer Bates did not have
probable cause to effect the stop, but reasonable suspicion, not
probable cause, was all that was required to stop Sanchez’s
vehicle. United States v. Shaw, 701 F.2d 367, 377 n.4 (5th Cir.
1983) (“We note that the initial stop of Shaw's truck did not have
to be justified by ‘probable cause,’ but only that the officers
must have had reasonable grounds to suspect that the vehicle [was
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in which Sanchez was driving the vehicle provided an objective
basis for a reasonable suspicion and that the district court found
credible Bates’s testimony about his belief that the driver might
be intoxicated.
The Fourth Amendment prohibition against unreasonable searches
and seizures extends to stopping a vehicle and temporarily
detaining its occupants.3 Even so, the Fourth Amendment is not “a
guarantee against all searches and seizures, but only against
unreasonable searches and seizures.”4 We analyze traffic stops
under the standards announced for investigative detention in Terry
v. Ohio.5 Under Terry, whether a traffic stop complies with the
Fourth Amendment depends upon two factors: whether the stop was
justified at its inception and whether the Fourth Amendment
intrusions were reasonably related in scope to the circumstance
that justified the interference in the first place.6 The officer
must be able to point to specific and articulable facts which,
taken together with rational inferences from those facts,
reasonably warrant the intrusion.7 However, the constitutional
involved in criminal activity].”).
3
United States v. Shabazz, 993 F.2d 431, 434 (5th Cir. 1993).
4
United States v. Sharpe, 470 U.S. 675, 682 (1985).
5
392 U.S. 1 (1968).
6
United States v. Crain, 33 F.3d 480, 485 (5th Cir. 1994).
7
Terry, 392 U.S. at 21.
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reasonableness of the stop does not depend upon the actual
motivations of the officer involved.8 An officer may stop a
motorist for a traffic violation even if, subjectively, the
officer’s true motive is to investigate unrelated criminal
offenses.9
The district court found credible Officer Bates’s testimony
that the low speed at which Sanchez was driving, sixteen miles
under the speed limit, coupled with the vehicle’s encroachment onto
the shoulder of the lane, raised a reasonable suspicion in his mind
as to Sanchez’s sobriety. Sanchez argues that Officer Bates should
not have found it unusual that Sanchez was traveling at forty-nine
miles per hour on that stretch of highway because only five miles
prior to being stopped Sanchez had exited Big Bend National Park,
which has a posted speed limit of forty-five. Although this
ultimately may have been the reason for Sanchez’s slow speed, it is
insufficient to show that Officer Bates lacked a reasonable
suspicion that Sanchez was intoxicated, given that in his
experience, when a vehicle is traveling at a speed substantially
below the speed limit and is failing to stay within its lane, the
driver is likely intoxicated.
“A ‘trained officer draws inferences and makes deductions ...
that might well elude an untrained person,’ and evidence collected
8
Whren v. United States, 517 U.S. 806, 813 (1996).
9
Id. at 812-13.
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‘must be seen and weighed not in terms of library analysis by
scholars, but as understood by those versed in the field of law
enforcement.’”10 We traditionally give due deference to the
experience of officers such as Deputy Bates in identifying a number
of factors that, although insufficient by themselves to suggest
illegal activity, taken together are indicia of certain types of
illicit acts.11 For example, in United States v. Muniz-Melchor,12
we concluded that although “no one of [the officer’s] observations
with respect to Muniz-Melchor’s truck and its contents or Muniz-
Melchor’s answers to [the officer’s] queries would constitute
probable cause to search the truck and its tank,”
[a] succession of otherwise ‘innocent’ circumstances or
events ... may constitute probable cause when viewed as
a whole. We do not consider the several factors in
isolation, but rather in their interrelated context,
where each may reinforce the other, so that the laminated
total may indeed be greater than the sum of its parts.13
Necessarily incorporated into this analysis is the officer’s
“training and prior experience,” viewed in a light most favorable
10
United States v. Reed, 882 F.2d 147, 149 (5th Cir. 1989)
(quoting United States v. Cortez, 449 U.S. 411, 418 (1981)).
11
See, e.g., United States v. Muniz-Melchor, 894 F.2d 1430,
1438 (5th Cir. 1990); Reed, 882 F.2d at 149 (explaining that the
border patrol agent “observed several factors that in his
experience led him to believe that criminal activity was
underfoot,” and finding that together they justified the Fourth
Amendment intrusion).
12
Muniz-Melchor, 894 F.2d at 1438.
13
Id.
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to the government.14 Applying that instruction here, we conclude
that, based on his experience, Officer Bates had a reasonable basis
to suspect that Sanchez was driving under the influence in
violation of Texas law, because Sanchez was both veering from his
lane and driving substantially below the posted speed limit.15
B.
Sanchez’s second argument is two-part: He first contends that
the evidence at the suppression hearing showed that the occurrences
at the checkpoint were distinct from the first stop, and that
14
Id.
15
See TEX. PENAL CODE ANN. § 49.04 (Vernon 2002). In a
substantially similar case, the Tenth Circuit found that an officer
had a reasonable basis to suspect that the driver was intoxicated.
See United States v. Botero-Ospina, 71 F.3d 783, 788 (10th Cir.
1995). That court explained:
At the suppression hearing, Deputy Barney testified ...
that Mr. Botero-Ospina’s vehicle was traveling well below
the posted speed limit and straddling the lane as it
traveled eastbound on Interstate 70. Additionally,
Deputy Barney testified that, based upon his observation
of the vehicle and his experience with motorists
traveling down that stretch of road, he believed the
driver may have been impaired or falling asleep. The
magistrate judge found that Mr. Botero-Ospina’s vehicle
was generally being operated in violation of Utah law.
... Deputy Barney’s stop of Mr. Botero-Ospina’s
vehicle was proper.... [H]e was able to articulate
specific facts which, in light of his training and
experience, gave rise to a reasonable suspicion that Mr.
Botero-Ospina may have been driving under the influence
of alcohol ... Deputy Barney was fully warranted in
stopping Mr. Botero-Ospina.... It is ... irrelevant that
Deputy Barney may have harbored a secret hope of finding
evidence of drug trafficking.
Id. (citations omitted).
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Officer Bates did not have reasonable suspicion to pull over
Sanchez at the checkpoint. Additionally, Sanchez contends that
even if the district court did not clearly err in viewing the
interaction at the checkpoint as a continuation of the first
traffic stop, the extension of Sanchez’s stop past the point at
which the justification for the initial traffic stop ended
constituted an illegal seizure.
The district court concluded, after hearing the evidence
presented, that the interaction at the checkpoint was not a second
stop for which the officers needed reasonable suspicion. It based
this conclusion on its factual finding that during the first stop,
Bates asked if Sanchez would proceed to the checkpoint, and Sanchez
consented. Viewing the evidence in the light most favorable to the
Government, we find that testimony at the hearing supports the
district court’s finding. According to Bates, after conclusion of
the initial traffic stop Sanchez agreed to proceed to the
checkpoint and voluntarily pulled over shortly before reaching the
checkpoint. He then consented to Bates’s request to pull up all
the way to the checkpoint and to allow the officers to run the dog
around the car. Given this testimony we cannot conclude that the
district court clearly erred in determining that the occurrences at
the checkpoint were a continuation of the first stop instead of a
separate stop.
Sanchez also asserts that Officer Bates’s request that Sanchez
drive to the checkpoint for the canine inspection unlawfully
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extended the initial traffic stop under United States v. Dortch,16
United States v. Jones,17 and United States v. Santiago.18 In
Dortch, two highway patrol officers stopped the defendant, who was
driving a rental car, for traveling too close to a tractor-
trailer.19 Dortch handed over his license and the rental car
papers, and one of the officers ran a computer check for warrants
and attempted to determine whether the car was stolen.20 The
officers told Dortch that he would be free to leave after they
completed the warrants check, but that they had to detain his car
until they had performed an exterior canine search of it.21 Twenty
minutes later, the canine unit arrived and completed an exterior
dog sniff of the vehicle.22 The dog alerted to the driver’s side
door and seat, but a subsequent search of the car uncovered no
contraband. However, the officers patted down Dortch and found
drugs on his person.23
Dortch moved to suppress the drug evidence on the basis that
16
199 F.3d 193 (5th Cir. 1999).
17
234 F.3d 234 (5th Cir. 2000).
18
310 F.3d 336 (5th Cir. 2002).
19
199 F.3d at 195.
20
Id. at 195-96.
21
Id. at 196.
22
Id.
23
Id.
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the officers had unlawfully detained him by forcing him to wait for
them to conduct the canine search.24 We agreed, because it could
not be said that Dortch felt free to leave after the officers
informed him that the computer check was completed since they also
told him that they were going to detain his car until completion of
the dog sniff.25 The officers harbored no reasonable suspicion that
Dortch was trafficking drugs, so “Dortch should have been free to
leave in his car” after completion of the computer check; “[o]nce
he was not permitted to drive away, the extended detention became
an unreasonable seizure.”26
Similarly, in Jones, we found an unlawful detention after
officers stopped the two defendants for speeding.27 The officers
completed criminal history and driver’s license checks, but then
continued to question the defendants on their destination and what
line of business the travelers were in, as well as inquiring if
there were any narcotics in the car.28 The driver denied that the
vehicle contained drugs, and the officers asked for and received
24
Id. at 198 (“The thrust of Dortch’s appeal is that ... at
some point the detention became unreasonable and exceeded the scope
of intrusion allowed under Terry.”).
25
Id.
26
Id. at 198-203.
27
234 F.3d 234, 237-44 (5th Cir. 2000).
28
Id. at 237-38.
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oral consent to search the vehicle.29 During the search they found
drugs in the trunk.30
The defendants moved to suppress the evidence, arguing that
“the officers’ continued detention after the completion of the
computer check was unreasonable under the circumstances and
exceeded the scope of the initial stop.”31 We found the defendants’
argument meritorious, reasoning:
The basis for the stop was essentially completed when the
dispatcher notified the officer about the defendants’
clean records, three minutes before the officers sought
consent to search the vehicle. Accordingly, the officers
should have ended the detention and allowed the
defendants to leave.... [T]he failure to release the
defendants violated the Fourth Amendment.32
Finally, in Santiago the court reversed the trial court’s
denial of the defendant’s motion to suppress because officers
discovered the drug evidence at issue after they had fulfilled the
purpose of their original stop, which was to determine whether an
object hanging from the rearview mirror of the defendants’ car
posed a risk to oncoming traffic because of its shininess.33 In so
holding we reviewed established case law on the issue of prolonged
stops:
29
Id.
30
Id.
31
Id. at 239.
32
Id. at 241.
33
310 F.3d 336, 377-43 (5th Cir. 2002).
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[A] Fourth Amendment violation occurs when the detention
extends beyond the valid reason for the stop. Once a
computer check is completed and the officer either issues
a citation or determines that no citation should be
issued, the detention should end and the driver should be
free to leave. In order to continue a detention after
such a point, the officer must have a reasonable
suspicion supported by articulable facts that a crime has
been or is being committed.34
The Government argues that Jones, Dortch, and Santiago do not
apply to this case because the officers’ interaction with Sanchez
after the computer check was a consensual encounter, as opposed to
a detention. It points out that in Jones, the officers kept one of
the defendants in the back of their patrol car and held his
driver’s license and the warning citation until after that
defendant consented to a search of the car.35 In Dortch, although
the officers told the defendant he was free to leave after the
completion of the initial traffic stop, they refused to allow him
to take his car until after they completed the canine inspection.36
In Santiago, after the officer completed the computer checks he
insinuated that the defendant was carrying contraband in his car
before asking to perform a search of the vehicle.37 The Government
34
Id. at 341-42 (citations omitted).
35
United States v. Jones, 234 F.3d 234, 237-38 (5th Cir.
2000).
36
United States v. Dortch, 199 F.3d 193, 202 (5th Cir. 1999).
37
Santiago, 310 F.3d at 339 (“Trooper Raley told Santiago that
he should remove the object from his mirror before leaving, but
before he let Santiago go, he told Santiago that a lot of illegal
contraband was being smuggled down the interstate highways.
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contends that, unlike in these cases, Officer Bates did not
interrogate Sanchez after the computer checks had been returned or
suggest that he was suspicious that Sanchez was trafficking drugs.
Additionally, Bates did not retain Sanchez’s driver’s license or
insurance documentation after completion of the traffic stop or
while they traveled to the checkpoint.38
Trooper Raley noted that Santiago was from Santa Ana, which was
relatively near the border and which he knew to be a major source
of methamphetamine, and also noted that Santiago’s destination,
Atlanta, was known to be a major distribution point of narcotics.
Trooper Raley then asked Santiago whether he had any illegal
contraband on his person or in the vehicle. Santiago stated that
he did not, and Raley asked Santiago if he minded whether he
searched the vehicle to make sure. Santiago stated that he did not
mind.”).
38
The Government contends that this case is more akin to
United States v. Gonzales than to Jones, Dortch, or Santiago. See
United States v. Gonzales, 79 F.3d 413 (5th Cir. 1996). In
Gonzales, we found that two defendants, Muniz and Gonzales, had
participated in what was at least initially a consensual encounter
with DEA agents. Id. at 421. Agents had been surveilling them
because of their association with a government target suspected for
possible drug activity. Id. at 416-18. The agents approached
Muniz at a car dealership and Gonzales at a hotel. Id. In both
circumstances the agents identified themselves and requested
identification from the defendants. Id. The agents who were with
Muniz asked and received permission to pat Muniz down for weapons,
and suggested that Muniz accompany them to the hotel at which
Gonzales was waiting with the other agents. Id. Muniz voluntarily
consented to go with them to the hotel. At the hotel, the agents
asked Muniz to sit in a grassy area near his car, which he did.
Id. The agents then discovered that Muniz’s car was rented by
Gonzales and asked if they could search Muniz for the key. Muniz
assented, and they found the key in Muniz’s sock. Id. Gonzales
consented for the agents to search the trunk. Before the search
could commence, a police canine unit arrived and the dog alerted to
the trunk of the car. Id.
Muniz and Gonzales argued that the key and drug evidence found
in the car should have been suppressed because the agents located
the evidence after they had illegally detained the defendants.
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The Government urges that Officer Bates’s interaction with
Sanchez after satisfaction of the purpose for the initial traffic
stop was allowable if consensual. The Supreme Court has explained
that “a seizure does not occur simply because a police officer
approaches an individual and asks a few questions”; asking
questions is not itself a detention.39 So long as “a reasonable
person would feel free to decline the officers’ requests or
otherwise terminate the encounter,” it is consensual.40 This test
is objective and “presupposes an innocent person.”41 Because such
encounters are voluntary, they do not implicate Fourth Amendment
protections such as the requirement of reasonable suspicion.42
In Ohio v. Robinette the Supreme Court recognized the
possibility of a consensual search following a lawful traffic
stop.43 In that case a police officer lawfully stopped the
defendant for speeding. After the officer ran a computer check on
the defendant’s license, handed it back to him, and issued a verbal
Id. at 419-20. The court disagreed, finding that the totality of
the circumstances supported the district court’s conclusion that,
at least until the search of the car, the encounter was consensual.
Id. at 421.
39
Florida v. Bostick, 501 U.S. 429, 434 (1991).
40
United States v. Drayton, 536 U.S. 194, 202 (2002) (internal
quotation marks omitted).
41
Id. (internal quotation marks omitted).
42
Bostick, 501 U.S. at 434.
43
519 U.S. 33, 35 (1996).
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warning regarding the traffic violation, the officer inquired
whether the defendant was carrying any illegal contraband in his
car. The defendant denied having any illegal materials in the car,
but upon the officer’s request allowed the officer to search the
vehicle. The search uncovered a small amount of marijuana in the
car.44
At trial, the defendant unsuccessfully sought to have the
evidence suppressed. On appeal, the Ohio Court of Appeals and Ohio
Supreme Court determined that the evidence should have been
suppressed, and the Ohio Supreme Court established a bright-line
rule requiring that a motorist be clearly informed that he is free
to go before the officer attempts to engage in a consensual
interrogation.45 The Supreme Court reversed the Ohio Supreme
Court’s holding, explaining that such a rule was inappropriate, and
that instead “the proper inquiry necessitates a consideration of
all the circumstances surrounding the encounter.”46
Our own court has also recognized that consensual
interrogation can follow the end of a valid traffic stop. In
Dortch, for example, the court only found an unreasonable
continuation of the defendant’s detention after concluding that
Dortch did not feel free to leave after the officer finished the
44
Id. at 35-36.
45
Id. at 36.
46
Id. at 39 (citation and internal quotation marks omitted).
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computer check on him.47 Also, in United States v. Miller we
referred to two different standards to be applied to whether a
defendant consents to a search: “the normal standard for consensual
searches that occur subsequent to legal stops” and the heightened
consent standard that applies to a consent to search obtained after
an illegal stop.48 Finally, in United States v. Brown the court
rejected the defendant’s argument that an officer must inform a
motorist that the legal detention has concluded before the officer
can engage in consensual interrogation and request to search the
vehicle.49
In several cases with facts similar to this case other
circuits have acknowledged that a lawful traffic stop can devolve
into a consensual encounter. In United States v. Lattimore, the
Fourth Circuit rejected the defendant’s argument that an officer
detained him past the conclusion of the traffic stop by questioning
him concerning the presence of narcotics in the automobile.50
Instead, the court found that the officer
did not question Lattimore ... until after the officer
had issued the citations and returned Lattimore’s
driver’s license, indicating that all business with
47
199 F.3d 193, 199 (5th Cir. 1999).
48
146 F.3d 274, 279 (5th Cir. 1998) (emphasis added).
49
102 F.3d 1390, 1394-97 (5th Cir. 1996), overruled in part
on other grounds, United States v. Brown, 161 F.3d 256 (5th Cir.
1998).
50
87 F.3d 647, 652 (4th Cir. 1996).
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Lattimore was completed and that he was free to leave.
During the subsequent conversation between [the officer]
and Lattimore, a reasonable person would have felt free
to decline the officer[’s] requests or otherwise
terminate the encounter. The totality of the
circumstances presented indicate that from this point
forward the encounter was consensual; Lattimore was not
being detained.51
The Fourth Circuit reached this determination despite the fact that
Lattimore was sitting in the patrol car at the time the officer had
asked whether he had narcotics in his vehicle, an arguably coercive
circumstance.52
In United States v. White, the defendant was stopped for an
improper lane change and for driving on the shoulder.53 The officer
issued a written warning for the traffic violations, and the driver
subsequently agreed to a search of his car. The Eighth Circuit
held that the search was valid because the request to search was
made during a consensual encounter following the end of the traffic
stop.54 It reasoned:
[The officer] handed White his license and registration
and explained the warning ticket. Under the
circumstances of this case, those actions ended the
initial traffic stop. The events beyond that point,
however, did not constitute a Terry stop as White
contends. Instead, after White’s license and
registration were returned and the warning was issued,
the encounter became nothing more than a consensual
51
Id. at 653.
52
Id. at 649 (citation and internal quotation marks omitted).
53
81 F.3d 775 (8th Cir. 1996).
54
Id.
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encounter between a private citizen and a law enforcement
officer.55
Similarly, the Tenth Circuit has reasoned that continuing to
question a defendant after the conclusion of the Terry stop is
permitted if the situation has turned from a detention into a
consensual encounter, which “occurs when a reasonable person in the
defendant’s position would feel free to leave.”56 That court has
also defined the difference between a consensual encounter and an
illegal detention, explaining that “once the officer has returned
the driver’s license and registration in a routine traffic stop,
questioning about drugs and weapons or a request for voluntary
consent to search may be an ordinary consensual encounter between
a private citizen and a law enforcement official.”57 If the driver
does receive the license, registration, and any other material back
that he needs to be on his way, “a driver is illegally detained
only if the driver has an objective reason to believe that he was
not free to end his conversation with the law enforcement official”
and leave.58
The Government argues that Bates’s request to conduct a canine
55
Id. at 778.
56
United States v. Dewitt, 946 F.2d 1497, 1501-02 (10th Cir.
1991).
57
United States v. Turner, 928 F.2d 956, 958 (10th Cir. 1991)
(citations and internal quotation marks omitted); see also United
States v. Patten, 183 F.3d 1190, 1193-94 (10th Cir. 1999).
58
Turner, 928 F.2d at 958. (citation omitted).
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search of the Sanchez’s Suburban came in a consensual encounter,
because Bates did not pose the question until after he returned
Sanchez’s driver’s license and insurance card. The Government also
emphasizes Sanchez and Cazares’s testimony that they felt free to
leave at that point, and that Bates had indicated to them that they
could go.
From this evidence the district court concluded that “Officer
Bates’s conduct cannot be deemed at all coercive, and ... his
request to continue on to the checkpoint was seen as a request by
the Defendants, who testified that they believed they had the right
to refuse if they so desired.” Viewing the evidence in the light
most favorable to the Government, we cannot say the district court
clearly erred in this factual determination. The evidence supports
the conclusion that the defendants’ assent to the canine inspection
came in a consensual encounter. Only after Sanchez received all of
his documentation back so that he could be on his way did Officer
Bates ask if Sanchez would mind proceeding to the drug checkpoint.
Moreover, Officer Bates had not accused them of criminal activity
such that they would regard the request as a continuation of the
investigative detention.59 Instead, the defendants admitted that
they received all of their documentation and felt free to go at the
conclusion of the traffic stop. Because the consensual encounter
59
See United States v. Gonzales, 79 F.3d 413, 420 (5th Cir.
1996) (“[A] statement by a law enforcement officer that an
individual is suspected of illegal activity is persuasive evidence
that the fourth amendment has been implicated.”).
-23-
did not implicate Fourth Amendment concerns, the district court did
not err in rejecting Sanchez’s argument that the continued
interaction of Sanchez and Bates following the conclusion of the
Terry stop violated Sanchez’s constitutional rights.60
C.
Sanchez further asserts that the district court erred in
declining to find that the drug-detection dog, Pepper, and its
handler, Officer Bates, were insufficiently qualified to conduct
the exterior dog sniff of the Suburban and that Pepper’s indication
that drugs were present in the Suburban could not have created
probable cause to search the vehicle. We have repeatedly affirmed
that an alert by a drug-detecting dog provides probable cause to
search.61 Moreover, in United States v. Williams, we held that a
60
Our determination is in line with that of all circuits who
have ruled on this issue except possibly the Ninth Circuit. In
United States v. Chavez-Valenzuela, that court held that officers’
questioning of the defendant following the end of a traffic stop
was not consensual because the defendant had “been standing by the
side of a highway for more than seven minutes” and “had [been]
subjected to a number of ‘fishing expedition’ questions about his
travel plans and his occupation.” 268 F.3d 719, 724-25 (9th Cir.
2001), as amended by 279 F.3d 1062 (9th Cir. 2002). The court
concluded that given this situation, “a reasonable motorist–even
with license and registration in hand–most likely would not have
believed he could disregard the officer’s inquiry and end the
conversation.” Id. at 725. However, the Ninth Circuit’s decision
was premised at least in part on the fact that the officers had
also openly stated that they suspected the defendant of criminal
activity, id., a circumstance not present in the case at bar and
one we have held usually implicates Fourth Amendment protections.
See Gonzales, 79 F.3d at 420.
61
See, e.g., United States v. Dovali-Avila, 895 F.2d 206, 207
(5th Cir. 1990).
-24-
showing of the dog’s training and reliability is not required if
probable cause is developed on site as a result of a dog sniff of
a vehicle.62 Even if we were to address Sanchez’s challenge of
Bates’s and Pepper’s qualifications, it would be of no avail. In
1997 Bates and Pepper completed the Police Narcotic Detector Dog
School at the Canine Academy in Leander, Texas, and Bates received
certification as a canine handler. The record shows that the
Canine Academy has been licensed by the U.S. Drug Enforcement
Agency, the Texas Commission on Private Security, and the Texas
Department of Public Safety since 1993. Bates has also previously
testified in court as an expert in canine handling.
The district court determined that the evidence that the dog
was certified was sufficient proof of his training to make an
62
69 F.3d 27, 28 (5th Cir. 1995). However, in United States
v. Gonzales, we suggested that a defendant may nonetheless
challenge the reliability of a drug-detecting dog, stating:
Gonzales also attacks the reliability of the narcotics
dog in one paragraph, arguing that no probable cause
existed because of the dog’s unreliability. The court
found the dog to be reliable, rejecting the evidence of
Gonzales at the suppression hearing. The government
supports its arguments based on consent and reasonable
suspicion and scarcely mentions the issue of the dog on
this appeal. Because Gonzales has shown no clear error
in the district court’s finding on the reliability of the
drug dog, we will not disturb the finding.
79 F.3d 413, 418 (5th Cir. 1996). “When faced with conflicting
panel opinions, the earlier controls our decision.” United States
v. Miro, 29 F.3d 194, 199 n.4 (5th Cir. 1994). Williams, released
one year prior to Gonzales, thus controls this issue. Under
Williams, the district court was correct in refusing to take up
whether the dog’s training was sufficient.
-25-
effective alert. Assuming that proof of the canine’s reliability
was required, there was sufficient evidence in the record to
support the district court’s finding that the dog’s alert was
reliable and established probable cause for a search of the
vehicle.
III.
Sanchez last contends that his Sixth Amendment rights were
violated because one of his attorneys labored under a conflict of
interest and the other rendered ineffective assistance of counsel.
Sanchez explains that during his pretrial proceedings, Sanchez was
represented by two attorneys, Ponton and Caballero; Ponton
represented both Sanchez and his co-defendant, Cazares, while
Caballero represented only Sanchez. Sanchez alleges that during
all pretrial proceedings Ponton was the lead attorney for both
defendants, and Caballero did little or nothing on Sanchez’s case.
Sanchez also argues that he did not even consent for Caballero to
be his attorney, because Ponton filed Caballero’s notice of
appearance without obtaining Sanchez’s signature.
Sanchez asserts that the day before trial was to commence,
Cazares talked to the government about testifying against Sanchez,
but neither Ponton nor Caballero knew Cazares was going to do this.
On the day of trial, when the defense attorneys discovered that
Cazares intended to cooperate with the Government, Ponton withdrew
as Sanchez’s attorney, and Caballero was thrust into the position
-26-
of being Sanchez’s sole counsel, although Ponton stated that he
would try to assist her. The district court asked whether
Caballero felt comfortable proceeding with Ponton’s assistance, and
she said yes. However, Sanchez argues that due to Caballero’s
alleged lack of preparation, because of her dependence on Ponton’s
handling of all of the pretrial matters, Caballero stumbled through
the trial.
Although Sanchez characterizes his attorneys’ actions as a
violation of his right to conflict-free counsel, and complains that
the district court did not hold a conflict hearing in accordance
with Rule 44,63 this claim is more properly analyzed as one for
ineffective assistance. The prejudice he complains of came not
directly from Ponton’s conflict, but rather from Caballero’s lack
of familiarity with the case. Although certainly Ponton’s conflict
was what gave rise to Caballero acting as Sanchez’s lead counsel,
it was Caballero’s unpreparedness that Sanchez argues hurt his
defense.64
63
FED. R. CRIM. P. 44(c) (“Whenever two or more defendants have
been jointly charged ... or have been joined for trial ... and are
represented by the same retained or assigned counsel ..., the court
shall promptly inquire with respect to such joint representation
and shall personally advise each defendant of the right to the
effective assistance of counsel, including separate representation.
Unless it appears that there is good cause to believe no conflict
of interest is likely to arise, the court shall take such measures
as may be appropriate to protect each defendant’s right to
counsel.”).
64
Although apparently Ponton continued to act as Caballero’s
co-counsel in Sanchez’s trial, Sanchez does not raise any argument
that Ponton’s minimal participation in the trial prejudiced Sanchez
-27-
“The general rule in this circuit is that a claim of
ineffective assistance of counsel cannot be resolved on direct
appeal when the claim has not been raised before the district court
since no opportunity existed to develop the record on the merits of
the allegations.”65 Instead, “[w]e have undertaken to resolve
claims of inadequate representation on direct appeal only in rare
cases where the record allowed us to evaluate fairly the merits of
the claim.”66 This is not one of those rare cases; Sanchez has
presented the court with nothing more than speculation as to the
amount of pretrial preparation Caballero performed. Much of his
claim is based on information Caballero allegedly did not know, or
on documents she allegedly did not write.67 Accordingly, we decline
to address the merits of Sanchez’s ineffectiveness claim without
prejudice to his presenting his claim of ineffective assistance,
including any claim of conflict of interest that could not have
been urged in this appeal, in a § 2255 proceeding.68
because Ponton also represented Cazares. For example, Sanchez does
not claim that his attorneys could not effectively cross-examine
Cazares because Ponton represented Cazares, see Hoffman v. Leeke,
903 F.2d 280, 286-87 (4th Cir. 1990), or that Ponton incriminated
Sanchez to save Cazares, United States v. Newell, 315 F.3d 510,
516-19 (5th Cir. 2002), two classic conflict-of-counsel scenarios.
65
United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir.
1987).
66
Id. at 314.
67
Sanchez argues that Ponton wrote all of the motions and
papers Cabellero submitted on Sanchez’s behalf prior to trial.
68
See id.
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IV.
In conclusion, we find no error in the district court’s denial
of Sanchez’s motion to suppress, and decline to address his Sixth
Amendment claims at this juncture.
AFFIRMED.
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