IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 5, 2009
No. 08-40126
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE LUIS ZAMBRANO
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:07-CR-48-ALL
Before KING, GARWOOD and BARKSDALE, Circuit Judges.
PER CURIAM:*
Jose Luis Zambrano appeals his conviction following a bench trial for
possession with intent to distribute in excess of 100 kilograms of marijuana in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). He argues that the district court
erred in denying his motion to suppress the marijuana seized in conjunction with
the traffic stop that led to his arrest. In considering a ruling on a motion to
suppress, this court reviews findings of fact for clear error and the ultimate
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-40126
Fourth Amendment conclusions de novo. United States v. Brigham, 382 F.3d
500, 506 n.2 (5th Cir. 2004) (en banc). We view the evidence in the light most
favorable to the prevailing party, in this case the Government. See id.
Zambrano does not contest that he was speeding and that the initial traffic
stop was justified. Rather, Zambrano argues that Deputy Calderon
unconstitutionally extended the duration of the stop when the deputy continued
to question him and searched the vehicle after the purpose of the stop was
completed.
This court has noted that “a consensual interrogation may follow the end
of a valid traffic stop and that such consensual encounters do not implicate
Fourth Amendment concerns.” Id. at 508 (citing United States v. Sanchez-Pena,
336 F.3d 431, 442–43 (5th Cir. 2003) (finding a consensual encounter where the
officer had returned the driver’s license and insurance and then requested to
conduct a search of the vehicle)). “So long as ‘a reasonable person would feel free
to decline the officers’ requests or otherwise terminate the encounter,’ it is
consensual.” Sanchez-Pena, 336 F.3d at 441 (quoting United States v. Drayton,
122 S.Ct. 2105, 2111 (2002)). After issuing Zambrano a traffic citation and
explaining what the citation required Zambrano to do, Calderon returned
Zambrano’s license and insurance certificate and asked if he had any questions
(which he did not). Calderon did not accuse Zambrano of other criminal activity,
and he did not say or do anything to indicate that Zambrano was not free to
leave, nor did he in any way attempt to physically detain him. Although
Calderon did not expressly inform Zambrano that he was free to leave,
Zambrano later testified that he should have felt free to go after he received the
citation because he was stopped for speeding. 1 Under these circumstances,
1
Zambrano notes that Deputy Calderon admitted that he would not have
allowed Zambrano to leave the scene even if Zambrano had attempted to do so.
However, only Deputy Calderon’s objective conduct, and not his private thoughts
and subjective intentions, are relevant in determining whether a seizure took
2
No. 08-40126
Zambrano’s decision to remain on site and answer Calderon’s questions was
consensual. See id. at 442–43. Therefore, the district court did not commit clear
error in determining that the encounter between Zambrano and Deputy
Calderon following the issuance of the traffic citation was consensual. Based on
this finding, the district court also correctly concluded that there was no Fourth
Amendment violation.
The Government’s position is further supported by the district court’s
finding that Zambrano consented to the search of his vehicle. Zambrano testified
that he was never asked for nor voluntarily gave his consent to the search,
whereas Deputy Calderon testified to the contrary. The district court found the
deputy’s testimony more credible, and we will not casually disturb that
determination, especially when reviewing for clear error. United States v.
Casteneda, 951 F.2d 44, 48 (5th Cir. 1992). We look to six factors in reviewing
the voluntariness of a consent to search:
“1) the voluntariness of the defendant’s custodial status; 2) the
presence of coercive police procedures; 3) the extent and level of the
defendant’s cooperation with the police; 4) the defendant’s
awareness of his right to refuse consent; 5) the defendant’s
education and intelligence; and 6) the defendant’s belief that no
incriminating evidence will be found.”
United States v. Jones, 234 F.3d 234, 242 (5th Cir. 2000). Zambrano does not
challenge on appeal the district court’s findings that the second through sixth
factors of the consent inquiry weighed in favor of finding that his consent was
voluntary. The only factor challenged by Zambrano is the first factor, the
voluntariness of his custodial status. See id. Zambrano has not, for the reasons
noted above, shown that he was being detained when he gave consent to search
his truck. Even if he was being detained for purposes of the Fourth Amendment,
however, he was not then under arrest or in official custody, see United States
v. Ponce, 8 F.3d 989, 997 (5th Cir. 1993), and given the district court’s findings
place. See United States v. Mask, 330 F.3d 330, 337 (5th Cir. 2003).
3
No. 08-40126
with respect to the other factors, the district court’s finding that Zambrano’s
consent was voluntary was not clearly erroneous.
The district court’s judgment is AFFIRMED.
4