United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit July 17, 2007
Charles R. Fulbruge III
Clerk
No. 06-50594
UNITED STATES OF AMERICA,
Plaintiff-Appellee
VERSUS
ROLAND ALLEN CAMPOS,
Defendant-Appellant
Appeal from the United States District Court For the Western
District of Texas, Austin Division
1:05-CR-00246
Before HIGGINBOTHAM, DAVIS and BARKSDALE, Circuit Judges.
PER CURIAM:*
Defendant Roland Allen Campos (“Campos”) appeals his
conviction for conspiracy to possess cocaine with intent to
distribute and possession of cocaine with intent to distribute, in
violation of 21 U.S.C. §§ 841(a)(1) and 846. Campos argues that
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
the district court erred in denying his motion to suppress evidence
discovered in a search of the vehicle in which he was traveling,
and in denying his application for authorization of expert services
and motion for continuance. We AFFIRM.
I. Background
On November 16, 2005, Appellant, Roland Allen Campos
(“Campos”), and a passenger were driving north on I-35 in Round
Rock, Texas in a white van. Officers Martin Flores (“Flores”) and
Eric Mount (“Mount”), both members of the Round Rock Police
Department, were patrolling I-35 in separate vehicles. Officer
Flores received a call from Officer Mount informing him that
Officer Mount observed a red Neon and a white van traveling close
together. Officer Mount had already stopped the Neon for failing to
maintain an appropriate distance, and wanted Officer Flores to stop
the van.
Officer Flores then followed the van, and, after observing
Campos traveling 69 mph in a 65 mph zone, Officer Flores pulled
Campos over. Campos exited the vehicle. Officer Flores approached
the vehicle and asked Campos for his driver’s license, but Campos
only produced a Texas identification card. Flores then began to ask
Campos about his travel plans. Campos replied that he was traveling
from San Antonio to College Station to buy tickets for the
University of Texas versus Texas A&M football game. This was
suspicious to Officer Flores because Campos had already passed
2
three highways between San Antonio and Round Rock that would have
led to College Station.
Next, Officer Flores asked Campos for the name of his
passenger, but Campos had trouble recalling the passenger’s name.
Officer Flores also asked Campos about the owner of the vehicle.
Although Campos stated that it belonged to his uncle, Campos’s only
response when questioned about his uncle’s name was that it was
listed on the vehicle’s registration. Campos’s inconsistent
statements made Officer Flores suspicious that Campos was providing
false information.
Campos then consented to a pat-down search, in which Officer
Flores discovered $2,000 in cash in Campos’s pocket. At this time,
Campos continued to make inconsistent statements. Campos stated
that he was going through Houston to get to College Station, which
only added to Officer Flores’s suspicions because Campos was
traveling away from Houston. In addition, although Campos indicated
that he planned on stopping at a rest area to look at a map, Campos
passed a rest area less than a mile earlier. Moreover, Campos
admitted that he never had a driver’s license and he was unable to
provide Officer Flores with proof of insurance.
Officer Flores then questioned Campos’s passenger, Joe Gomez
(“Gomez”). Unlike Campos, Gomez stated that they were heading to
Waco, not College Station. Importantly, despite Officer Mount’s
suggestion that Campos and Gomez were traveling in tandem with the
3
Neon, Gomez told Officer Flores that he and Campos were traveling
alone. Based on the inconsistent responses provided by Campos and
Gomez, Officer Flores concluded that Campos and Gomez were not
traveling to College Station to buy tickets.
Officer Flores then began records checks on Campos and Gomez.
At this point, eight minutes had passed since the initial stop.
While awaiting the results of the records checks, Officer Flores
asked Campos if he had any dope or other illegal drugs in the
vehicle, and Campos responded in the negative. Officer Flores then
obtained Campos’s consent to search the van. During the search,
Officer Flores noticed that the bolts holding in both front seats
had scratch marks, which, based on his experience as a police
officer,2 indicated that the van was being used for drug
trafficking.
Officer Flores learned from Officer Mount that one of the
occupants of the Neon lived on the same street as Gomez and that
the Neon’s driver stated that they were heading to Dallas, not
College Station. When Officer Flores confronted Gomez and Campos,
they admitted they were traveling with the Neon. Campos explained
that they were traveling in separate cars because his friend wanted
to drive his own car. However, Officer Flores knew that the Neon
was a rental car. During this time, Officer Flores received the
2
Officer Flores performed hundreds of traffic stops in which drug trafficking was involved,
and had found narcotics on previous occasions when there was evidence that someone tampered
with seat bolts.
4
return on the records checks, which reported that Joe Campos, a/k/a
Roland A. Campos, was wanted for a parole violation.
Officer Flores then told Campos that he believed Campos was
engaged in illegal activity. Campos continued to deny any
wrongdoing. Although, at this point, Officer Flores testified that
he believed he had probable cause to undertake a search, Officer
Flores, a certified narcotics-canine handler, decided to use his
canine, Tessa, to conduct a dog sniff search. Tessa alerted when
entering the rear passenger door and driver’s side door of the
vehicle. Officer Flores then had the van taken to an auto shop for
a more thorough search, where officials located a compartment
containing several black bundles of cocaine, weighing 30.08
kilograms, on the underside of the van behind the van’s heat
shield.
Campos was subsequently indicted for conspiring to possess
cocaine with intent to deliver and possessing cocaine with intent
to deliver, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Campos
moved unsuccessfully to suppress the cocaine discovered during the
search of the van. Thereafter, Campos entered a conditional guilty
plea, reserving his right to appeal the district court’s denial of
his motion to suppress.
Campos timely filed a notice of appeal.
II. Discussion
Campos raises three arguments on appeal. He argues that the
5
district court erred by (1) failing to suppress the evidence found
in the search of the vehicle; (2) denying his application for
authorization of expert services; and (3) denying his motion for
continuance. We will address these issues in turn.
A. Suppression of Evidence
When reviewing the denial of a motion to suppress, we review
findings of fact for clear error and conclusions of law de novo.3
We construe all facts in the light most favorable to the government
as the prevailing party.4
Campos argues that the cocaine discovered during the search of
the van should be suppressed because Officer Flores (1)
purposefully delayed running the records checks; and (2) did not
have probable cause to search the van because the drug dog was
unreliable.
1. Reasonableness of Detention
We evaluate the legality of a traffic stop under Terry v.
Ohio5.6 In determining whether a seizure has exceeded the scope of
a permissible Terry stop, we undertakes a dual inquiry: (1) whether
the officer’s action was justified at its inception; and (2)
whether it was reasonably related in scope to the circumstances
3
United States v. Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003).
4
Gonzalez, 328 F.3d at 758.
5
392 U.S. 1 (1968).
6
United States v. Jenson, 462 F.3d 399, 403 (5th Cir. 2006).
6
that justified the interference in the first place.7
Although in the district court Campos challenged the validity
of the initial traffic stop, he no longer argues that the stop of
his vehicle for speeding was improper. Rather, Campos argues that
the stop was unlawfully prolonged because Officer Flores did not
run the records checks until eight minutes into the stop, rendering
his detention unreasonable under the Fourth Amendment.
Officer Flores’s actions are plainly permissible under our
case law. An officer may request a driver’s license, insurance
papers, vehicle registration, run a computer check, issue a
citation, and ask about the purpose and itinerary of a driver’s
trip.8 An officer may also undertake similar questioning of the
vehicle’s occupants to verify the information provided by the
driver.9 In addition, we have specifically held that records
checks need not be initiated prior to an officer’s initial
questioning of a vehicle’s occupants.10
In United States v. Brigham, the officer did not initiate
records checks until eight minutes into the initial stop. Prior to
running the records checks, the officer asked the driver for his
7
United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc).
8
Id. at 508 (citation omitted); United States v. Shabazz, 993 F.2d 431, 437 (5th Cir. 1993)
(citation omitted).
9
Brigham, 382 F.3d at 508 (citation omitted).
10
Id. at 510-11.
7
license, insurance papers, questioned him about his travel plans,
and sought to verify the driver’s story with the car’s three
passengers. We concluded that the officer’s actions were
reasonable.
Campos argues that his case is distinguishable from Brigham
because Officer Flores’s testimony indicates that he purposefully
engages in delays in initiating records checks so as to extend the
amount of time he has for investigation. We reject this argument.
“[T]he touchstone of Fourth Amendment analysis is reasonableness,”
and “[r]easonableness is measured in objective terms by examining
the totality of the circumstances.”11 Therefore, as long as Officer
Flores’s investigative methods were objectively reasonable, his
subjective motives are irrelevant.12
We agree with the district court that Officer Flores’s
investigative methods were reasonable. Prior to running the
records checks, it was permissible for Officer Flores to request
Campos’s license, conduct a pat-down search of Campos, and question
Campos and Gomez about their travel plans.13 This process required
11
Id. at 507 (citations and internal quotations omitted) (emphasis added); see id.
(“Supreme Court’s insistence on reasonableness rather than prescriptions for police conduct”).
12
See United States v. Causey, 834 F.2d 1179, 1184 (5th Cir. 1987) (en banc) (“so long as
police do no more than they are objectively authorized to do, their motives in doing so are
irrelevant and hence not subject to inquiry”).
13
See Brigham, 382 F.3d at 508; United States v. Dortch, 199 F.3d 193, 198 (5th Cir.
1999).
8
as long as it did for reasons beyond Officer Flores’s control.14
Campos’s and Gomez’s inconsistent statements regarding their travel
itinerary, Campos’s lack of a valid driver’s license, the discovery
of $2,000 in cash on Campos’s person, and Campos’s inability or
unwillingness to identify the name of the owner of the van all
created suspicion, necessitating further detective efforts by
Officer Flores. In this case, Officer Flores’s questioning
“exemplified a graduated response to emerging facts.”15
Because Officer Flores’s actions were not unreasonable under
the circumstances of this case, the detention of Campos did not
violate the Fourth Amendment.
2. Reliability of Drug Dog
Campos argues that Tessa, the drug dog, was unreliable, and
thus, Officer Flores did not have probable cause to search and
seize the van.16 After a thorough review of the testimony and
evidence before it, the district court found the canine alert to be
reliable and concluded that Officer Flores had sufficient probable
cause to seize and search the van.
14
See Brigham, 382 F.3d at 510; United States v. Jones, 234 F.3d 234, 241 (5th Cir.
2000).
15
See Brigham, 382 F.3d at 509.
16
While Campos urges us to answer the question of whether a defendant can challenge the
reliability of a canine alert so as to defeat probable cause based on that alert, we decline to do so
here. Campos acknowledges that the district court allowed him to present evidence tending to
show that Tessa was unreliable, and thus, the only question before us is whether, on this record,
the district court erred in concluding that the canine alert was reliable.
9
As Campos concedes, the positive alert of a properly trained
drug detecting dog, standing alone, provides probable cause to
support a search and seizure.17 It is undisputed that Officer
Flores, Tessa’s trainer and handler for nearly two years, and Tessa
successfully completed all standard training procedures and that
Tessa was certified to detect a variety of narcotics, including
cocaine. However, Campos argues that Officer Flores gave subtle
“handler cues”18 to Tessa. According to Campos, the videotape of
the incident, which was admitted into evidence, reveals that
Officer Flores was not neutral in his handling of Tessa because,
even after Tessa seemingly failed three times to alert, Officer
Flores took Tessa to the other side of the van to make another
attempt at alerting, and when Tessa sat down, Officer Flores
exclaimed, “Oh, yeah!” In addition, Campos maintains that Officer
Flores is not credible because he testified that Tessa had never
made a false positive alert, and Campos subsequently offered
evidence showing that Tessa had made three false alerts.
Contrary to Campos’s arguments, the district court found that
Tessa was reliable. In particular, the district court found that
all but one of the possible false alerts by Tessa were reasonably
explained away by Officer Flores. In addition, the district court
17
E.g., Gonzalez, 328 F.3d at 759; Dortch, 199 F.3d at 197; United States v. Dovali-Avila,
895 F.2d 206, 207 (5th Cir. 1990).
18
A “handler cue” is a conscious or unconscious signal that leads a canine to where the
handler believes the drugs are located.
10
made a determination that Officer Flores was credible, which we
will not disturb.19 Moreover, the district court determined that
the videotape demonstrated that Tessa’s repeated entries into the
van were not merely redundant, and thus, rejected Campos’s
suggestion that the dog was being cajoled into an alert.
We find no clear error in the district court’s factual finding
that the canine alert was reliable and therefore uphold the
district court’s ultimate conclusion that Officer Flores had
probable cause to seize and search the van.
B. Application for Authorization of Expert Services
Campos argues that the district court erred in not granting
his request under 18 U.S.C. § 3006A(e)(1) for a canine-alert
expert. We review the district court’s denial of an application
for authorization of expert services for abuse of discretion.20
On January 31, 2006, Campos filed an application for
authorization of the services of a canine-alert expert. On
February 3, 2006, the district court denied Campos’s application
without prejudice to refile his application with the expert’s name,
a statement of the expected expenses, and information explaining
what is a canine-alert expert and how one becomes such an expert.
Instead of promptly filing an amended application in compliance
with the district court’s instructions, Campos waited until
19
See United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996).
20
United States v. Hardin, 437 F.3d 463, 468 (5th Cir. 2006).
11
February 9, 2006, the day before the suppression hearing (which was
set in the January 13, 2006 pre-trial order), to file his amended
application. As a result, the district court denied Campos’s
application as untimely.
Campos alleges that the district court improperly required him
to provide information not called for by the statute. Section
3006A(e)(1) provides:
Counsel for a person who is financially unable to obtain
investigative, expert, or other services necessary for
adequate representation may request them in an ex parte
application. Upon finding, after appropriate inquiry in
an ex parte proceeding, that the services are necessary
and that the person is financially unable to obtain them,
the court . . . shall authorize counsel to obtain the
services [at government expense].21
The statute does not define the scope of an “appropriate
inquiry” and Campos offers no authority limiting what a district
court may request in order to make such an inquiry. Moreover, we
have held that “[t]o justify authorization . . . under §
3006A(e)(1), a defendant must demonstrate with specificity, the
reasons why such services are required.”22
In determining whether the services of a canine-alert expert
were necessary, the district court’s denial of Campos’s first
application and request that Campos provide the above-mentioned
21
18 U.S.C. § 3006A(e)(1) (emphasis added).
22
See United States v. Gadison, 8 F.3d 186, 191 (5th Cir. 1993) (citation omitted)
(emphasis in original); see also Hardin, 437 F.3d at 469 n.5.
12
information was certainly reasonable.23 Without such specific
information, the district court could not adequately appraise
Campos’s need for expert services.
In addition, the district court did not abuse its discretion
in denying Campos’s second application as untimely.24
C. Motion for Continuance
Campos argues that the district court erred in denying his
motion for continuance. We review the denial of a defendant’s
motion for continuance for an abuse of discretion resulting in
serious prejudice.25
Three days before the February 10, 2006, suppression hearing,
Campos filed his motion for continuance, alleging that he was not
able to complete discovery because records concerning Tessa had not
been provided. According to Campos, he made the motion as soon as
he became aware that the government did not provide any field-
performance or training logs of Tessa. However, the standing
discovery order, which was filed in this case on January 13, 2006,
did not require the government to produce such documents,26 and
23
See Gadison, 8 F.3d at 191.
24
See Scott, 48 F.3d at 1396 (“The rights established by 18 U.S.C. § 3006A(e) are
procedural, and the failure to make a timely motion or request waives the necessity for the court’s
consideration of an appointment of an expert witness.” (quotations and citation omitted)
(emphasis added)).
25
United States v. Pollani, 146 F.3d 269, 272 (5th Cir. 1998).
26
The standing order required that the government turn over, inter alia, “documents . . .
that the government intended to use as evidence at trial to prove its case-in-chief . . . .”
13
Campos made no discovery complaints for these documents until the
day before the suppression hearing.
Campos contends that the denial of his motion prejudiced him
because it was essential for him to provide Tessa’s training and
field logs to his canine-alert expert so that such expert could
assess the reliability of Tessa’s alert. We reject this
contention. Assuming arguendo that a defendant can challenge the
reliability of a canine alert, once the requested documents were
produced, Campos was able to cross-examine Officer Flores regarding
the contents of Tessa’s field performance records. Furthermore,
evidence at the suppression hearing clearly demonstrated Tessa’s
reliability such that any evidence presented by Campos’s expert
would not have affected the finding of reliability.27 Moreover,
since the district court subsequently denied Campos’s application
for authorization of expert services, Campos’s argument that he
needed the records for such expert is unpersuasive.
The district court’s decision to deny Campos’s motion for
continuance was not an abuse of discretion.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
judgment.
AFFIRMED.
27
See United States v. Diaz, 25 F.3d 392, 395 (6th Cir. 1994) (limited information on
which expert’s opinion was based, i.e., trial transcripts (and not actual observations of the drug
dog), detracted from the expert’s testimony).
14