United States Court of Appeals
Fifth Circuit
F I L E D
In the August 8, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 05-41042
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RAMIRO SALAICES ESTRADA,
Defendant-Appellant.
***************
_______________
m 05-41089
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JORGE MANUEL ESTRADA,
Defendant-Appellant.
_________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________
Before SMITH and STEWART, Circuit Judges, vehicle identification number and then quickly
and HANEN,* District Judge. flashed the back of the truck cab as he began
to review the paperwork. At 12:11, Villarreal
JERRY E. SMITH, Circuit Judge: told Jorge that he would give him a warning
for the defective lamp, then asked him to step
Ramiro Estrada (“Ramiro”) and his brother outside the vehicle. Villarreal went back to
Jorge Estrada (“Jorge”) were charged with aid- Ramiro, who was still in the passenger seat.
ing and abetting the possession of 68 kilograms He questioned him about the car and his travel
of marihuana with intent to distribute. They en- plans. Ramiro told him, among other things,
tered into conditional guilty pleas, reserving the that he has owned the car for about a month.
right to appeal the denial of their motions to
suppress. We affirm.
At 12:13, Villarreal walked to the back of
I. the truck and, on his way, shined his flashlight
On November 13, 2004, Ramiro and Jorge to the area to the back of the truck’s cab and
were returning from Zacatecas, Mexico, in Ra- bed. At this time he saw “fresh marks” and
miro’s 1989 Chevy. The vehicle was stopped “scratches” around the fuel tank eye piece
at approximately 12:08 a.m. on I-10 by trooper latches and vehicle frame. He explained that
Sergio Villarreal and sergeant Gary Chandler. the “eye piece latches” were devices holding
The video recording of the traffic stop shows the tank to the truck frame and that he noticed
that about one minute after the stop, Villarreal that they were topped by a hardened adhesive
approached the vehicle and read the license material.
plate number for the computer check. The
driver, Jorge, was told that he was stopped for At that time, he thought the marks were
having a defective rear license plate lamp in “out of the ordinary”: They were short, no
violation of TEX. TRANSP. CODE ANN. more than three inches in width, indicating that
§ 547.322 (Vernon 1995). the metal strap to the fuel tank had been re-
cently “removed or tampered with.” He de-
Villarreal asked for identification of the scribed the adhesive material as “hardened,”
driver and passenger and for registration and “discolored,” and with a consistency much like
insurance papers. At the same time, he shined “J-B Weld” or “Bondo-type” material.
his flashlight onto the front windshield for the
Villareal further explained that the material
was the type of substance used for filling or re-
*
District Judge of the Southern District of pairing holes during automotive repair and
Texas, sitting by designation.
2
that, based on his extensive classroom training problems with the gas tank. After receiving
and on-the-job experience, including an occa- the answers, Villarreal went to the passenger,
sion at which he had found illegal narcotics Ramiro, and asked him a set of similar ques-
concealed in a gas tank in similar fashion, he tions.
suspected that a false compartment or a con-
tainer had been built into the fuel tank to con- At 12:22, Villarreal asked Ramiro to get
ceal contraband. Villarreal indicated that con- out of the truck, then proceeded to ask him
traband is concealed in fuel tanks after an open- another series of questions. At 12:23, Villar-
ing is cut into the tank. Adhesive material is real asked Ramiro in Spanish for permission to
typically used to cover newly created com- “inspect” the truck, and Ramiro agreed. Then
partments to prevent seepage of fuel and con- he also obtained permission, in Spanish, from
traband. Jorge. Villarreal testified at the suppression
hearing that the demeanor of the defendants
The videotape shows that next Villarreal was one of calmness.
pointed to the license plate and showed Jorge
that the lights did not work and told him that he Villarreal began to search by going to the
would give him a warning. At 12:14, he pulled driver’s side and viewing the back of the cab.
Jorge away from the vehicle and to the edge of He flashed his light again and stated, “See
the road and asked him similar questions and where the black strap comes out, it has rust
also whether any repairs had been done on the but I see a lighter mark, like the strap has been
truck. Jorge advised that Ramiro had had the moved.” Then, he looked under the vehicle at
truck for about three months, Jorge did not the gas tank. He knocked on the tank, which
know of any repairs. produced a hollow sound. When Villarreal
went to the passenger side of the tank, he stat-
At 12:16, Villarreal walked back to the DPS ed, “There’s a bump on top and it looks like a
car and told Chandler that “the story is about J-B weld on the tank but its hard to tell how
the same, they have been in Zacatecas (Mex- fresh it is. It has scratch marks and I see a
ico), they have traveled about 15 hours, they light blue color but it could be from wear and
are carpet layers, but Ramiro indicated he tear, I don’t know.”
bought the vehicle in October 2004 and his
brother stated he had bought it 3 months ago.” Villarreal testified that he saw “fresh
He also noted that he saw “a strap across the scratch marks” and more adhesive material
gas tank, with a slit, which turns to lock, and it along a ridge of the gas tank. He also ob-
looks like it has been turned recently.” While served that the bolts used to hold the straps to
Villarreal was talking to Chandler, the compu- the frame of the truck were not the same size
ter check on the defendants’ criminal history and were loose. It appeared that the bolts had
(which was requested only about eight minutes been removed and replaced without being
into the stop) came back negative at 12:18. tightened, so they were flush with the bed of
the truck.
Villarreal walked back to Jorge, who was
standing by the side of the road, and began a The tape next shows (22 minutes and 57
new inquiry. Villarreal asked Jorge a series of seconds after the stop) that Villarreal stated
questions, including whether he had had any that he was going to call “Schulenberg P.D. to
3
see if they have a scope and density meter.” We view the evidence introduced at a suppres-
Sergeant Koehne with the Schulenberg police sion hearing in the light most favorable to the
department arrived on the scene approximately prevailing party. United States v. Orozco, 191
one hour after the initial stop. After assembling F.3d 578, 581 (5th Cir. 1999).
the scope and inserting it into the gas tank,
Koehne and Villarreal identified that the tank A routine traffic stop is a limited seizure
had a green wall, inconsistent with the rest of that closely resembles an investigative deten-
the tank. tion as was addressed in Terry v. Ohio, 392
U.S. 1 (1968). See United States v. Shabazz,
By 1:30., Koehne identified several walls 993 F.2d 431, 435 (5th Cir.1993). Accord-
that could serve as compartments, and Koehne ingly, the Terry framework is used to analyze
and Villarreal decided to bring down the tank. cases in which motorists are stopped for vio-
At 1:45, Villarreal began to call garages for the lating traffic laws. Id. The Estradas concede
dropping of the tank. He located a garage at that the initial stop was a valid traffic stop for
1:54. driving with a defective light. They aver, how-
ever, that Villarreal exceeded the scope of that
At about 2:00, Villarreal told both defen- stop when he continued to question them after
dants that they were not under arrest but were he received the results of the criminal back-
merely detained, and handcuffed them and seat- ground check at 12:18. See United States v.
ed them in the DPS vehicle. The defendants Dortch, 199 F.3d 193, 198-99 (5th Cir. 1999).
and the Chevy truck were driven to the garage,
where they arrived at 2:27, whereupon the Once the purpose of a valid traffic stop has
work began to drop the tank. The marihuana been completed and an officer’s initial suspi-
was found, and at that point, about three hours cions have been verified or dispelled, the de-
after the initial stop, Villarreal told the defen- tention must end unless there is additional rea-
dants they were under arrest and read them sonable suspicion supported by articulable
their Miranda rights. facts. United States v. Machuca-Barrera, 261
F.3d 425, 434 (5th Cir. 2001); Shabazz, 993
II. F.2d at 436. This is because a detention must
Following a hearing, Ramiro and Jorge en- be temporary and last no longer than is neces-
tered conditional guilty pleas, reserving the sary to effect the purpose of the stop, unless
right to appeal the rulings on the motions to further reasonable suspicion, supported by ar-
suppress. On appeal, they do not challenge the ticulable facts, emerges. Dortch, 199 F.3d at
validity of the stop, but only its duration and 200. Mere “uneasy feelings” and inconsistent
scope and the voluntariness of the consent to stories between a driver and a passenger do
search. not constitute articulable facts that support a
reasonable suspicion of drug trafficking. See
III. United States v. Santiago, 310 F.3d 336,
In assessing whether there was reasonable 338-39 (5th Cir. 2002).
suspicion, we review the district court’s find-
ings of fact for clear error and its determination To the extent that the Estradas argue that
of reasonable suspicion de novo. See Ornelas the length of the stop was unreasonable before
v. United States, 517 U.S. 690, 699 (1996). 12:18, that argument is foreclosed by United
4
States v. Brigham, 382 F.3d 500, 507 (5th Cir. Reasonable suspicion exists when the de-
2004) (en banc). In a valid traffic stop, an of- taining officer can point to specific and articul-
ficer may request a driver’s license and vehicle able facts that, when taken together with ra-
registration and run a computer check thereon. tional inferences from those facts, reasonably
Brigham, 382 F.3d at 508. warrant the search and seizure. Santiago, 310
F.3d at 340. The determination of whether
As the district court correctly determined, Villarreal had developed a reasonable suspi-
Villarreal’s questioning of Ramiro and Jorge cion must be made based on the totality of the
before Villarreal’s request for a computer check circumstances and the collective knowledge
about eight minutes into the stop does not and experience of the officer or officers. See
implicate Fourth Amendment concerns. As Jones, 234 F.3d at 241.
Brigham explained, “neither our prior cases nor
any other caselaw . . . institutes a per se rule Reasonable suspicion does not arise solely
requiring an officer immediately to obtain the from the inconsistent answers regarding the
driver’s license and registration information and length of Ramiro’s ownership of the truck.
initiate the relevant background checks before This case, however, is distinguishable from
asking questions.” Brigham, 382 F.3d at 511.1 Dortch, Santiago and Jones, because in those
Even questions unrelated to the reason for the cases there were no physical facts suggesting
stop do not, in themselves, constitute a Fourth the presence of a hidden compartment. In
Amendment violation.2 contrast, in this case there was significant
physical evidence that, taken together with the
Therefore, the registration and license check, officer’s training and experience, gave rise to
as well as the questions that Villarreal asked the reasonable suspicion.
brothers within the first ten minutes of the stop
before, and while waiting for, the computer As we have recounted, the videotape shows
results did not violate the Fourth Amendment. that at 12:13, Villarreal directed his flashlight
Under Brigham, the purpose of the initial stop to the area from the passenger’s side to the
ended at 12:18, when the results of the criminal back of the truck’s cab and bed. He testified
background check came back negative, unless at the suppression hearing that at that time, he
the officers formed additional reasonable suspi- saw “fresh marks” and “scratches” around the
cion before that time. fuel tank eye piece latches and vehicle frame;
which were “out of the ordinary” and showed
the presence of an adhesive material and sug-
gested that the gas tank had been tampered
1
See also Brigham, 382 F.3d at 509 (“Finally, with. Based on his extensive classroom train-
this process, from the time Trooper Conklin started ing and on-the-job experience, including an oc-
questioning Brigham until he returned to his patrol casion at which he found illegal narcotics
car to check the registration and I.D.’s provided by
concealed in a gas tank in similar fashion, he
Brigham and the others, lasted only seven minutes.
suspected that a false compartment or con-
Conklin’s questioning exemplified a graduated re-
sponse to emerging facts.”). tainer was built into the fuel tank to conceal
contraband. Adhesive material is typically
2
Id. at 508 & nn.5-6 (“‘[D]etention, not ques- used to cover newly created compartments to
tioning, is the evil at which Terry’s second prong is prevent seepage of fuel and contraband.
aimed.’”) (citation omitted).
5
Defendants assert that Villareal could not mate use for a large hidden storage compart-
have seen the scratch marks and the adhesive at ment in any part of a vehicle, let alone in the
12:13, because he admitted at the suppression gas tank.
hearing that this happened later, after he asked
for consent to search the car, at 12:23. We Courts must allow law enforcement “offi-
disagree. cers to draw on their own experience and spe-
cialized training to make inferences from and
In the testimony to which defendants point, deductions about the cumulative information
Villareal testified only that he looked below the available to them that ‘might well elude an un-
car later, not that he did not see the scratch trained person.’” United States v. Arvizu, 534
marks until later. He indicated that at the point U.S. 266, 273 (2002) (internal quotation
when he flashed his flashlight to the area to the marks and citation omitted). The adhesive
back of the truck cab and the truck bed (12:13), marks and other scratches, together with the
he saw scratches and a discolored substance other evidence, do not fully exclude the possi-
that he thought was adhesive that is used for bility of innocent travel given the age of the
creating hidden compartments in the gas tanks vehicle,4 but the likelihood of criminal activity
to conceal contraband. Furthermore, Villarre- need not rise to the level required for probable
al’s testimony that he saw adhesive and scratch cause, and it falls considerably short of satis-
marks (indicating that the gas tank has been fying a preponderance of the evidence stan-
tampered with) is not merely convenient ex post dard. United States v. Sokolow, 490 U.S. 1, 7
testimony by Villarreal; the videotape’s audio (1989). Because under the law of this circuit,
shows that he told Chandler before 12:18, at evidence of a hidden compartment supports
about 12:16, that there was a strap across the “probable cause” for a search/arrest, evidence
gas tank, with a slit, that turns to lock, and it indicating the existence of a hidden compart-
looked like it has been turned recently. ment also supports the lesser standard of “rea-
sonable suspicion.”5
These facts, taken together with the officers’
experience, and seen from the totality of the cir-
cumstances, including the fact that the vehicle 4
See also Sokolow, 490 U.S. at 9-10 (holding
had recently crossed from Mexico, “a common that factors which by themselves were “quite
origin of illicit drugs,”3 suggest that there was consistent with innocent travel” collectively
a reasonable likelihood that the vehicle’s gas amounted to reasonable suspicion).
tank had a hidden compartment that was meant 5
to transport drugs. See United States v. Inocencio, 40 F.3d 716,
724 (5th Cir. 1994) (holding that evidence of hid-
The facts here do not reflect a mere custom- den compartment contributed to probable cause to
search); United States v. Price, 869 F.2d 801, 804
ization of the vehicle that could also support a
(5th Cir. 1989) (“Once the agents had discovered
conclusion of innocent travel. Rather, Villar- the secret compartment they had probable cause to
real’s expert experience conforms with com- search the compartment itself.”); see also United
mon sense: It is hard to conceive of a legiti- States v. Nicholson, 17 F.3d 1294, 1298 (10th Cir.
1994) (considering, among other factors providing
probable cause, a “four or five-inch difference in
3
United States v. Jurado-Vallejo, 380 F.3d the truck bottom and the floor which indicated a
1235, 1238-39 (10th Cir. 2004). (continued...)
6
As we explained in Innocencio, 40 F.3d at prove consent by the preponderance of the evi-
724, the “discovery of fresh paint (on a brand dence is not as heavy as it would have been
new truck) around the fender wells and the had a Fourth Amendment violation preceded
fresh undercoating beneath the bed of the the consent. Dortch, 199 F.3d at 201. We
truck” all contributed in creating “a reasonable agree with the district court that the consent
belief that the vehicle contained a false was free and voluntary.
compartment” and this “belief would create
sufficient probable cause to search the vehicle.” The voluntariness of consent is a question
Similarly here, the discovery of the scratch of fact to be determined on the totality of the
marks and the adhesive created a reasonable circumstances. Id. We look to (1) the volun-
belief that the vehicle contained a false com- tariness of the defendant’s custodial status;
partment that has recently been used, and this (2) the presence of coercive police procedures;
belief created at least reasonable suspicion. (3) the extent and level of the defendant’s co-
operation with the police; (4) the defendant’s
IV. awareness of his right to refuse consent;
Because Villarreal’s continued detention of (5) his education and intelligence; and (6) his
Ramiro and Jorge after Villarreal obtained neg- belief that no incriminating evidence will be
ative results from the computer check was sup- found. Id. Although all six factors are rele-
ported by reasonable suspicion developed be- vant, no single one is dispositive. Id.
fore 12:18, Ramiro’s and Jorge’s consent to the
search the car at 12:23 was not unconstitution- Here, multiple factors favor a finding of
ally tainted.6 Thus, the government’s burden to voluntariness: The records shows that Ramiro
and Jorge were calm and cooperative and does
not indicate that Villarreal engaged in coercive
5 tactics. Defendants’ educational levels, how-
(...continued)
hidden compartment designed to carry contraband”); ever, and their testimony that they were not
United States v. Martel-Martines, 988 F.2d 855, aware that they could refuse consent, favor a
858-59 (8th Cir. 1993) (same); United States v. finding that the consent was not voluntary.
Arango, 912 F.2d 441, 447 (10th Cir. 1990) (hold- But, we will not reverse the district court’s
ing that evidence of hidden compartment, along with finding that consent was voluntary unless it is
inadequate amount of luggage for claimed duration clearly erroneous. Id. If the district court
of trip, furnished probable cause); United States v. “bases a finding of consent on the oral testi-
Anderson, 114 F.3d 1059, 1066 (10th Cir. 1997) mony at a suppression hearing, the clearly
(holding discovery of “what appeared to be a hidden erroneous standard is particularly strong since
compartment in the gas tank,” along with evidence the judge had the opportunity to observe the
of air freshener and conflicting stories from the demeanor of the witnesses.” Id.
passengers, sufficient to furnish probable cause);
United States v. Toro-Pelaez, 107 F.3d 819, 825
Based on a review of the videotape, the
(10th Cir. 1997) (“Recent Fourth Amendment cases
district court found that the consent given was
in this circuit and others have determined that
evidence of a concealed compartment can give rise
to reasonable suspicion of criminal activity.”).
6
(...continued)
6
See Brigham, 382 F.3d at 512 (reasoning that absent a Fourth Amendment violation, consent to
(continued...) search a vehicle is not unconstitutionally tainted).
7
voluntary and was an independent act of free The Estradas also complain about the use
will. Therefore, because no single factor is dis- of the handcuffs after the discovery of the
positive, and because there were sufficient hidden compartment and before the move to
factors supporting consent (and the district the garage, but the handcuffs were not
court could have disbelieved defendants’ testi- unconstitutional under a Terry stop analysis.8
mony that they were unaware of their rights), Finally, although the brothers also complain
there is no clear error. that they were not Mirandized until the mari-
huana was found, this complaint does not help
After Villarreal searched the truck with de- their case, because they are not claiming that
fendants’ permission, he obtained additional ev- any information obtained from them in viola-
idence that supported the prolonged detention, tion of Miranda was introduced in court.
as the district court determined. The Estradas
do not challenge the constitutionality of their AFFIRMED.
detention following Villarreal’s search of the
truck. Even if they challenged it, Keane’s
discovery of a hidden compartment with the use
of the scope constitutes probable cause, which
would permit a warrantless search and the
transfer of the car to the police station.7 There-
fore, we do not need to reach the issue of
whether the removal of the car exceeded the
scope of the consent.
7
“[P]olice officers who have probable cause to
believe there is contraband inside an automobile that
has been stopped on the road may search it without
obtaining a warrant.” Florida v. Meyers, 466 U.S.
8
380, 381 (1984) (per curiam). The officers do not United States v. Taylor, 716 F.2d 701, 709
need to obtain a warrant to move the vehicle from (9th Cir. 1983) (“[T]he use of handcuffs, if reason-
the roadside to a garage if there is probable cause to ably necessary, while substantially aggravating the
search a vehicle. See Chambers v. Maroney, 399 intrusiveness of an investigatory stop, does not nec-
U.S. 42, 48, 52 n.10 (1970) (observing that it “was essarily convert a Terry stop into an arrest necessi-
not unreasonable . . . to take the car to the station tating probable cause.”); United States v. Ricardo
house”); United States v. Gastiaburo, 16 F.3d 582, D., 912 F.2d 337, 340 (9th Cir. 1990) (holding
586 (4th Cir. 1994) (“[T]he justification to conduct that officers “may move a suspect from the loca-
a warrantless search under the automobile exception tion of the initial stop without converting the stop
does not disappear merely because the car has been to an arrest when it is necessary for safety or
immobilized and impounded.”); United States v. security reasons”); United States v. Bradshaw, 102
Lopez, 777 F.2d 543, 550 (10th Cir. 1985) (“Under F.3d 204 (6th Cir. 1996) (holding that the officer
the ‘automobile exception’ then, the police conduct “could lawfully detain [defendant in the back of the
in moving Lopez from Interstate 40 to the Santa squad car] until he had finished performing radio
Rosa State Police office is proper if it was sup- checks and issuing the citation,” because it was
ported by probable cause.”). “well within the bounds of the initial stop.”).
8