Case: 09-10465 Document: 00511032699 Page: 1 Date Filed: 02/22/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 22, 2010
No. 09-10465 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee
v.
RAMON BANUELOS-ROMERO,
Defendant–Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.
PRADO, Circuit Judge:
Appellant Ramon Banuelos-Romero appeals the denial of his motion to
suppress methamphetamine seized in a warrantless search of his automobile.
The district court denied Appellant’s motion, and Appellant entered a
conditional plea preserving the right to appeal the denial of his motion to
suppress. Because we hold that law enforcement had probable cause to search
Appellant’s vehicle, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
While patrolling Interstate 40, Trooper Ben Dollar of the Texas
Department of Public Safety (“DPS”) observed Appellant cross onto the shoulder
while driving what appeared to be a Ford Crown Victoria. Trooper Dollar pulled
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No. 09-10465
Appellant over because he was concerned that Appellant was falling asleep or
intoxicated. As he waited for Appellant and Appellant’s female passenger to
gather their driver’s licenses and insurance information, Trooper Dollar placed
his hand on the car’s windshield and noticed fresh black adhesive. Closer
inspection revealed silicone sealant slathered all over the sides of the
windshield. Trooper Dollar also smelled a strong silicone odor coming from
inside the vehicle.
Trooper Dollar also noticed scarring on screws holding a plastic piece
between the hood and windshield, which would have to be removed to replace
the windshield. Trooper Dollar also observed that Mercury emblems had been
removed from the car and replaced with Ford emblems. The computer check
revealed that the car was actually a 2004 Mercury Grand Marquis, which has
an identical body to a Ford Crown Victoria.
Trooper Dollar found the replacement of the windshield and the attempt
to hide the make and model of the car suspicious because he knew from his
training that the Mercury Grand Marquis is a popular drug-smuggling car
because it has a hidden compartment, known as a “firewall,” located between the
dashboard and the engine of the vehicle. Trooper Dollar knew the firewall on
the Grand Marquis is only accessible by removing the windshield or dashboard.
Because Appellant and the female passenger spoke limited English,
Trooper Dollar called bilingual Trooper Oscar Esqueda on his cellular phone to
speak with them. Before he handed the phone to the female passenger, Trooper
Dollar told Trooper Esqueda that he believed they had a “windshield load” and
wanted Trooper Esqueda to see if their stories matched.
The passenger and Appellant told Trooper Esqueda that they were
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traveling from California to Arkansas to find work. Appellant also said that he
bought the car a week and a half prior from a man in Arkansas. Trooper Dollar
observed both the passenger and Appellant as they spoke with Trooper Esqueda
and noted that they appeared nervous. After he spoke with both of them,
Trooper Esqueda informed Trooper Dollar that although their stories were
largely consistent, he found their story about traveling across the country
unlikely.
Trooper Dollar then obtained computer clearances for the vehicle and for
Appellant and his passenger’s licenses. Trooper Dollar asked Appellant a series
of questions in his limited Spanish about whether Appellant had any contraband
in the vehicle, to which Appellant responded negatively. Trooper Dollar then
asked Appellant “Puedo registrar el car si or no?” Appellant responded
affirmatively in English, then in Spanish. Trooper Dollar then searched the car
at the side of the interstate. After finding no contraband, Trooper Dollar drove
with Appellant in his patrol car to a DPS location while the female passenger
followed driving the Mercury Grand Marquis. After troopers removed
Appellant’s vehicle’s windshield, they found methamphetamine hidden in the
firewall.
The Government charged Appellant with possession of methamphetamine
with intent to distribute. Appellant moved to suppress the methamphetamine,
arguing that Trooper Dollar and DPS violated his Fourth Amendment right
against unreasonable searches and seizures. A magistrate judge held an
evidentiary hearing in which Troopers Dollar and Esqueda, Appellant, a Spanish
language interpreter, and an expert on Texas law testified.
The magistrate judge found the initial stop valid, and that before
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effectuating the purpose of the initial stop, DPS developed reasonable suspicion
that Appellant’s vehicle contained contraband. The magistrate judge found that
Appellant had not voluntarily consented to the search because when Trooper
Dollar asked, “Puedo registrar el car si or no,” Appellant thought Trooper Dollar
wanted to check the vehicle’s registration. However, the magistrate judge
denied the motion to suppress because the totality of the circumstances gave
DPS probable cause to search the vehicle, which, in addition to exigent
circumstances created by the vehicle’s presence on the side of the interstate, fit
the automobile exception to the Fourth Amendment’s warrant requirement. The
district court adopted the magistrate judge’s findings, Appellant conditionally
pled guilty to possession of methamphetamine with intent to distribute under
21 U.S.C. § 841(a)(1), and the district court sentenced him to 168 months’
imprisonment. This appeal followed.
II. DISCUSSION
We review the district court’s factual findings for clear error and its legal
conclusions de novo. United States v. Ibarra, 493 F.3d 526, 530 (5th Cir. 2007)
(citing United States v. Runyan, 275 F.3d 449, 456 (5th Cir. 2001)). Whether
those facts establish probable cause is a legal question that we review de novo.
United States v. Hearn, 563 F.3d 95, 103 (5th Cir. 2009) (citing United States v.
Muniz-Melchor, 894 F.2d 1403, 1439 n.9 (5th Cir. 1990)).
A. Illegal Detention
“The Fourth Amendment protects individuals from unreasonable searches
and seizures. Traffic stops are considered seizures within the meaning of the
Fourth Amendment.” United States v. Grant, 349 F.3d 192, 196 (5th Cir. 2003)
(citing Delaware v. Prouse, 440 U.S. 648, 653 (1979)). To determine whether a
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seizure is reasonable, we consider (1) “whether the officer’s action was justified
at its inception,” and (2) “whether the officer’s subsequent actions were
reasonably related in scope to the circumstances that justified the stop.” United
States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc) (citing Terry v.
Ohio, 392 U.S. 1, 19–20 (1968)).
“For a traffic stop to be justified at its inception, an officer must have an
objectively reasonable suspicion that some sort of illegal activity, such as a
traffic violation, occurred, or is about to occur, before stopping the vehicle.”
United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005) (citing United
States v. Breeland, 53 F.3d 100, 102 (5th Cir. 1995)). Pursuant to 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. Shabaz, 993 F.2d 431, 437 (5th Cir. 1993). The “detention must be temporary
and last no longer than is necessary to effectuate the purpose of the stop . . . .”
Brigham, 382 F.3d at 507.
However, if “additional reasonable suspicion arises in the course of the
stop and before the initial purpose of the stop has been fulfilled, then the
detention may continue until the new reasonable suspicion has been dispelled
or confirmed.” Lopez-Moreno, 420 F.3d at 431. An officer has reasonable
suspicion when he “can point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant the
search and seizure.” Id. at 430 (citing United States v. Santiago, 310 F.3d 336,
340 (5th Cir. 2002)). We look at the “totality of the circumstances of each case
to see whether the detaining officer has a particularized and objective basis for
suspecting legal wrongdoing.” Id. (internal quotation marks omitted).
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“[R]easonable suspicion need not rise to the level of probable cause.” Id. (citing
United States v. Arvizu, 534 U.S. 266, 274 (2002)).
Appellant argues that DPS violated his Fourth Amendment rights when
Trooper Dollar detained him after obtaining computer clearances on his license
and vehicle. The Government counters that by the time Trooper Dollar obtained
computer clearances, he had developed a reasonable suspicion that Appellant’s
vehicle contained contraband, and that Trooper Dollar could thus continue the
detention until he dispelled or confirmed that suspicion. We agree with the
Government.
Trooper Dollar had an objective basis for suspecting legal wrongdoing
based on the fresh sealant, strong silicone odor, and scarred screws that strongly
indicated the windshield had been recently replaced. Trooper Dollar knew that
Mercury Grand Marquis’s have a hidden compartment that can only be accessed
by removing the windshield. This information formed the basis of Trooper
Dollar’s reasonable suspicion, and allowed him to continue the detention until
he confirmed or dispelled the suspicion that there was contraband hidden in the
vehicle. See id. at 431.
B. Probable Cause
We now turn to whether DPS had probable cause to search the vehicle,
because if probable cause existed, Appellant’s consent was not required for
Trooper Dollar to search. See United States v. Mendoza-Gonzalez, 318 F.3d 663,
666 (5th Cir. 2003). Law enforcement may conduct a warrantless search of an
automobile if “(1) the officer conducting the search had ‘probable cause to believe
that the vehicle in question contain[ed] property that the government may
properly seize’; and (2) exigent circumstances justified the search.” United
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States v. Castelo, 415 F.3d 407, 412 (5th Cir. 2005) (quoting United States v.
Reyes, 792 F.2d 536, 538 (5th Cir. 1986)) (alteration in original). In a vehicle
stop on a highway, “the fact of the automobile’s potential mobility” supplies the
requisite exigency. United States v. Sinisterra, 77 F.3d 101, 104 (5th Cir. 1996);
see also Mack v. City of Abilene, 461 F.3d 547, 553 n.2 (5th Cir. 2006) (discussing
the automobile exception to the warrant requirement).
“It is well-settled that probable cause to search an automobile exists when
trustworthy facts and circumstances within the officer’s personal knowledge
would cause a reasonably prudent man to believe that the vehicle contains
contraband.” United States v. Edwards, 577 F.2d 883, 895 (5th Cir. 1978) (en
banc) (per curiam). “Probable cause determinations are not to be made on the
basis of factors considered in isolation, but rather on the totality of the
circumstances.” United States v. Reed, 882 F.2d 147, 149 (5th Cir. 1989). “[A]
police officer may draw inferences based on his own experience in deciding
whether probable cause exists, including inferences that might well elude an
untrained person.” Hearn, 563 F.3d at 103 (citations and internal quotation
marks omitted) (alteration in original). “Proof of probable cause requires less
evidence than . . . proof beyond a reasonable doubt—but more than ‘bare
suspicion.’” United States v. Raborn, 872 F.2d 589, 593 (5thCir. 1989) (quoting
Brinegar v. United States, 338 U.S. 160, 175 (1949)).
Appellant argues that Trooper Dollar searched his vehicle because he fit
a drug courier profile. The Government claims that DPS had probable cause to
search the vehicle based on the totality of the circumstances. While Appellant
correctly asserts that merely fitting a drug courier profile will not suffice to raise
probable cause, Trooper Dollar based his search on specific facts that go beyond
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Appellant fitting a drug courier profile. Viewing the totality of the
circumstances, we conclude that Trooper Dollar had probable cause to search
Appellant’s vehicle based on his training and experience.1
We have previously held that evidence of a non-standard hidden
compartment supports probable cause. See, e.g., United States v. Estrada, 459
F.3d 627, 633 (5th Cir. 2006) (“[U]nder the law of this circuit, evidence of a
hidden compartment supports ‘probable cause’ for a search/arrest . . . .”)
(citations omitted). In United States v. Inocencio, we found that the “discovery
of fresh paint (on a brand new truck) around the fender wells and the fresh
undercoating beneath the bed of the truck” contributed to create a “reasonable
belief that the vehicle contained a false compartment,” and that such reasonable
belief “would create sufficient probable cause to search the vehicle.” 40 F.3d 716,
724 (5th Cir. 1994). In United States v. Price, we found probable cause where,
at a permanent checkpoint, border patrol agents noticed burn marks in the bed
of a pickup truck and a hidden compartment under the vehicle. 869 F.2d 801,
804 (5th Cir. 1989). “Once the agents had discovered the secret compartment
they had probable cause to search the compartment itself.” Id.
This case differs because the firewall is part of the vehicle’s design,
whereas in Inocencio and Price, the vehicles were altered to add a hidden
compartment. We find Appellant’s case analogous, however, because the
1
It is of no consequence that DPS conducted a more thorough search of the vehicle at
DPS location. Where the police have probable cause to search a vehicle on the side of the
interstate, they may also perform a more thorough search at the station. “‘[G]iven the scope
of the initial intrusion caused by seizure of an automobile, there is no constitutional difference
between the proper search on the highway and the later search at the station.’” United States
v. Moody, 564 F.3d 754, 761 (5th Cir. 2009) (quoting United States v. Shaw, 701 F.2d 367, 379
(5th Cir. 1983)).
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windshield showed obvious signs of recent replacement and the hidden
compartment could only be accessed by removing the windshield. While there
are innocent reasons for windshield replacement, the facts here strongly suggest
that someone had accessed the hidden compartment. While an untrained person
may not find these facts suspicious, Trooper Dollar’s training and experience led
him to suspect illegal activity.
The alteration of the emblems to make the car appear to be a Ford also
indicates criminal behavior. We can not imagine any innocent reason for
altering the appearance of the car to look like a Ford, but a drug trafficker might
change the emblems if he was aware that the Mercury Grand Marquis was a
known drug-trafficking car. Probable cause may be based upon the lack of a
legitimate or logical explanation for unusual activity. United States v.
Alexander, 559 F.2d 1339, 1343 (5th Cir. 1977). The replacement of the
windshield, combined with the alteration of the emblems on the car, and Trooper
Dollar’s observation that Appellant and his passenger were acting suspiciously,
lead us to conclude that DPS had probable cause to search Appellant’s vehicle.2
III. CONCLUSION
Because we find that Trooper Dollar had probable cause to believe that
Appellant’s vehicle contained contraband at the time of the search, we AFFIRM
2
Because we find that DPS had probable cause to search Appellant’s vehicle, we do not
reach the Government’s argument that Trooper Dollar had an objectively reasonable, good
faith belief that Appellant voluntarily consented to search. See e.g., United States v. Williams,
622 F.2d 830, 844–46 (5th Cir. 1980) (en banc) (per curiam) (discussing the good faith
exception to the exclusionary rule). We are concerned that DPS chooses to use the word
“registrar” when asking for consent to search. While “registrar” is technically a correct
interpretation of “search,” it has potential to be very confusing. This is especially true in the
context of a vehicle stop, because “registrar” is more commonly interpreted as “to register.”
We are troubled by the Government’s position that a law enforcement officer may rely on this
potentially confusing term to uphold a search of a Spanish speaker’s property.
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Appellant’s conviction.
AFFIRMED.
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