United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 1, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-11140
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH NUNEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-111-1-Y
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Joseph Nunez appeals his guilty-plea conviction for
possession of a controlled substance with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A).
Nunez, the driver and owner of the commercial truck in which
the controlled substance was discovered, argues that the district
court erred when it denied his suppression motion. In his plea
agreement he reserved the right to appeal the district court’s
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
denial of his suppression motion. Nunez argues that his Fourth
Amendment rights were violated when a Texas state trooper detained
him and searched his truck after the initial purpose for the
commercial vehicle inspection was satisfied, that the consent that
he gave to the trooper was vitiated by the taint of the Fourth
Amendment violation, and that statements made after his arrest were
the tainted fruit of the unconstitutional search.
The initial basis for the stop of Nunez’ truck was a
commercial inspection pursuant to TEX. TRANSP. CODE ANN.
§ 644.103(a), which authorizes Texas Department of Public Safety
(TDPS) officers to “stop, enter, or detain on a highway” a
commercial motor vehicle for inspection. See United States v.
Fort, 248 F.3d 475, 479-82 (5th Cir. 2001).
The TDPS state trooper who conducted the search had over 30
years’ experience in the division of TDPS responsible for enforcing
motor carrier safety regulations and inspecting vehicles for size,
weight, and moving traffic violations. During the search, the
trooper developed a reasonable suspicion that criminal activity was
occurring. He articulated the basis of his suspicion at the
suppression hearing by noting: Nunez’ nervousness; the fact that
Nunez’ co-driver initially jumped out of the sleeper compartment
unclothed to see what was going on and then dressed like he was
prepared to go somewhere, instead of continuing with his break;
Nunez’ logbook indicated that Nunez had taken off a large amount of
time in February, the month before the search and seizure; and the
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logbook indicated that Nunez had taken a longer than normal amount
of time to acquire his load in Arizona.
The trooper testified at the hearing in detail why, in his
considerable experience in the inspection of commercial trucks,
each of the foregoing factors was unusual and led him to believe
that criminal activity was occurring. The continued detention
therefore did not violate the Fourth Amendment. See United States
v. Valadez, 267 F.3d 395, 397 (5th Cir. 2001) (after the purpose
for the traffic stop is satisfied, the detention must end unless
there is reasonable suspicion to continue it); United States v.
Santiago, 310 F.3d 336, 340 (5th Cir. 2002) (reasonable suspicion
exists when the detaining officer can point to specific and
articulable facts which, taken together with rational inferences
from those facts, reasonably warrant the search and seizure);
United States v. Jones, 234 F.3d 234, 241 (5th Cir. 2000) (this
court looks at the totality of the circumstances and considers the
collective knowledge and experience of the officers involved when
determining whether reasonable suspicion exists to justify
continued detention).
Moreover, before the search of the interior of the truck, the
trooper secured Nunez’ consent. Nunez’ argument that his consent
was invalid is premised on his argument that his detention was
unconstitutional. Since Nunez’ detention did not violate the
Fourth Amendment, Nunez’ argument on this issue fails.
Nunez also argues that the continued detention exceeded the
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scope authorized by Terry v. Ohio, 392 U.S. 1 (1968), and cases
applying Terry. However, the record indicates that Nunez did not
withdraw his consent during the search and the trooper’s suspicion
increased as the search progressed, since when the trooper entered
the truck he discovered a secret compartment hidden under the bed,
which the owner of the truck could not open. Thus, continued
detention until the compartment could be searched was warranted and
under these circumstances no Fourth Amendment violation occurred.
See Jones, 234 F.3d at 241.
Finally, Nunez’ argument that the district court erred when it
did not suppress his confession fails, since this argument is also
premised on his argument that the detention and search violated the
Fourth Amendment.
The district court’s judgment is therefore AFFIRMED.
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