United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 14, 2005
Charles R. Fulbruge III
Clerk
No. 04-41234
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABRIEL PENA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 6:03-CR-62-ALL
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Gabriel Pena was indicted for possession with intent to
distribute 1.6 kilograms of cocaine. The indictment arose out of
a traffic stop occurring on April 30, 2003. Pena filed a motion to
suppress all evidence obtained pursuant to the stop based on
several arguments including that his consent to the search of
vehicle was not voluntary. Following a hearing, the district court
denied the motion to suppress. Pena entered a conditional guilty
plea to the indictment for possession with intent to distribute
*
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opinion should not be published and is not precedent except under the limited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.
cocaine, reserving his right to appeal the district court’s denial
of motion to suppress.
Pena argues that the district court erred in denying his
motion to suppress because his consent to search the vehicle was
not voluntary. When a district court makes a finding of consent
based on oral testimony presented at a suppression hearing, “the
clearly erroneous standard is particularly strong since the judge
had the opportunity to observe the demeanor of the witnesses.”
United States v. Mendoza-Gonzalez, 318 F.3d 663, 666 (5th Cir.
2003) (internal quotation and citations omitted). To determine
whether consent was voluntary, the court considers the following
factors: (1) the voluntariness of the custodial status; (2) the
presence of coercive police procedures; (3) the extent and level of
cooperation with the police; (4) the awareness of the right to
refuse consent; (5) the education and intelligence of the
defendant; and (6) the belief that no incriminating evidence will
be found. United States v. Solis, 299 F.3d 420, 435-36 (5th Cir.
2002). The record shows that Pena was not taken into custody at
any point, he was not coerced, and he cooperated freely with all
aspects of the traffic stop. Pena has not shown that the district
court clearly erred in finding that his consent to the search of
the vehicle was voluntary.
AFFIRMED.
2