United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 30, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
__________________________ Clerk
No. 04-60071
__________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ARNULFO HERNANDEZ CARDENAS, also known as Arnulfo Hernandez Cardenas,
Defendant - Appellant.
___________________________________________________
Appeal from the United States District Court
For the Southern District of Mississippi, Jackson
(No. 4:03-CR-29-01-WS)
___________________________________________________
Before GARZA, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
This case involves the legality of a stop and seizure. Appellant Arnulfo Hernandez Cardenas
was stopped by two Mississippi Department of Transportation officers performing random checks
of commercial vehicles pursuant to MISS. CODE. ANN. §§ 63-5-49 and 79-19-49. After noticing that
Cardenas and his passenger appeared nervous, the officers requested and received permission from
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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both men to search the truck. The officers found containers, opened one, and discovered a substance
that tested positive for cocaine. Cardenas argues that the stop was illegal, the detention following
the stop was illegal, and that Cardenas’s consent to the search was not free and voluntary.1 We reject
these arguments and affirm the decision of the district court denying Cardenas’s motion to suppress.
The stop was constitutional pursuant to the exception to the Fourth Amendment warrant
requirement for the administrative inspection of premises of “closely regulated” businesses announced
in New York v. Burger, 482 U.S. 691, 702-03 (1987). A warrantless inspection of a pervasively
regulated business is valid only if “1) there is a substantial government interest that informs the
regulatory scheme pursuant to which the inspection is made; 2) the inspection is necessary to further
the regulatory scheme; and 3) the statutory or regulatory scheme provides a constitutionally adequate
substitute for a warrant.” United States v. Fort, 248 F.3d 475, 480 (5th Cir. 2001) (citing Burger,
482 U.S. at 702-03). In Fort, this Court applied the Burger test to the warrantless stop of a
commercial trucker by a Texas law enforcement officer, holding that Burger applies because
commercial trucking is a pervasively regulated industry. Fort, 248 F.3d at 480. Hence, the three-
pronged Burger test applies to this case as well, and we hold that the test is satisfied.
The subsequent search was justified as Cardenas was being properly detained for a limited
time pursuant to the administrative search, the request for consent to search took place while the
officers were conducting the administrative search, and Cardenas gave free and voluntary consent to
the search. United States v. Tompkins, 130 F.3d 117, 121 (5th Cir. 1997) (“A search conducted
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Cardenas also argues that the cocaine should not be admitted under the good faith
exception. Because we hold that it is admissible on other grounds, we do not reach this issue.
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pursuant to consent is one of the well settled exceptions to the Fourth Amendment’s warrant
requirement.”).
It was not clear error for the district court to find that the officers’ detention of Cardenas for
a limited time after the initial stop was not unreasonable. The record does not bear out Cardenas’s
assertion that the officers had completed their administrative investigation before asking Cardenas
for consent to search. It was constitutional for the officers to request consent to search during this
limited detention. During a valid traffic stop, “an officer can request a driver’s license, insurance
papers, vehicle registration, run a computer check thereon, and issue a citation.” United States v.
Shabazz, 993 F.2d 431, 437 (5th Cir. 1993). The officers detained Cardenas subsequent to the stop
while they performed their administrative investigation, and because the request for consent to search
“did nothing to extend the duration of the initial, valid seizure,” it was constitutional. Id.
We likewise uphold the district court’s finding that Cardenas gave consent for the officers to
search the truck. An appellate court “‘will not reverse the district court’s finding that consent was
voluntary unless it is clearly erroneous.’” United States v. Dortch, 199 F.3d 193, 201 (5th Cir. 1999)
(quoting Shabazz, 993 F.2d at 438). “‘Where [as in this case] the judge bases a finding of consent
on the oral testimony at a suppression hearing, the clearly erroneous standard is particularly strong
since the judge had the opportunity to observe the demeanor of the witnesses.’” Id. (quoting
Shabazz, 993 F.2d at 438). As the government argues, the record does not support a finding that
Cardenas did not consent, and this Court will not disturb the district court’s ruling.
We agree with the district court that Cardenas voluntarily and freely, without coercion,
consented to the search of his vehicle. Accordingly, the district court’s order denying Cardenas’s
motion to suppress is AFFIRMED.
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