United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 16, 2003
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_____________________
No. 02-30617
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL REYES GONZALEZ,
Defendant-Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________________________________________________
Before REAVLEY, JOLLY, and JONES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Manuel Reyes Gonzalez (“Gonzalez”) appeals his conviction on
one count of possession of cocaine with intent to distribute,
arguing that the district court erred by (1) denying his motion to
suppress evidence seized from his vehicle and (2) allowing the
government to introduce evidence of his prior arrests and prior
conviction for drug possession. For the reasons given below, we
AFFIRM the judgment of the district court.
Background
At 6:30 a.m. on December 19, 2001, Louisiana State Trooper
Scott Wright (“Officer Wright”) observed a vehicle driven by
Gonzalez riding the center line on I-20 eastbound in Bossier
Parish. Officer Wright stopped the vehicle and asked Gonzalez for
his driver’s license and vehicle registration. Gonzalez produced
a Texas photo I.D., explaining that he did not have his driver’s
license because he was getting it renewed. The valid vehicle
registration had been issued six days earlier in the name of Blanca
Gonzalez, whom Gonzalez identified as his wife.
As Officer Wright explained that he would issue a citation for
improper lane use, he noted that Gonzalez appeared quite nervous.
Specifically, Gonzalez avoided eye contact with Officer Wright,
talked incessantly, and had shaking hands. Gonzalez stated that he
was traveling from Weslaco, Texas. When asked where he was going,
he hesitated and then said he was going to Pensacola, Florida to
visit a sick relative. Officer Wright found this unusual because
I-20 is several hundred miles away from the most direct route from
Weslaco to Pensacola, which is I-10. When Officer Wright asked who
the relative was, Gonzalez hesitated and then stated that it was
his uncle. He hesitated again before giving his uncle’s name.
Gonzalez indicated that he planned to stay in Pensacola for about
a week. Officer Wright found this unusual because it meant that
Gonzalez would be away from his wife over the Christmas holiday.
Officer Wright returned to the patrol car. He checked
Gonzalez’s identity, driver’s license status, and criminal history
and began to prepare citations for improper lane usage and driving
without a license. The check revealed that Gonzalez’s driver’s
2
license was suspended and that Gonzalez previously had been
arrested “two or three times” for transporting narcotics.
Officer Wright instructed Gonzalez to step out of the car. He
returned Gonzalez’s identification and vehicle registration and
presented Gonzalez with the two citations. Wright then asked
Gonzalez if he had ever been arrested before. Gonzalez hesitated
before saying he had been arrested once five to seven years before
on a possession charge, a statement that was inconsistent with the
information revealed by the check. Officer Wright told Gonzalez
that illegal drugs were often transported along I-20 and asked
Gonzalez if he had any drugs in his vehicle. Gonzalez denied
having any drugs in the vehicle, and told Officer Wright that he
could look in the car.
Officer Wright asked if Gonzalez would consent to a search and
presented Gonzalez with a standard consent form, which Gonzalez
read and signed. Officer Wright searched the interior of the car,
noting that Gonzalez had no clothing, toiletries, or other personal
items in the car. Another state trooper arrived with a narcotics
dog named Lika. Lika was led around the car several times. Lika
alerted to the presence of drugs.
The troopers ordered Gonzalez to drive to Louisiana State
Patrol headquarters. At headquarters, officers removed the
interior quarter-panels located above the back seat and found
powder cocaine. Gonzalez was arrested and charged with possession
with intent to distribute.
3
Prior to trial, Gonzalez moved to suppress the drug evidence
seized from his vehicle alleging that it was the result of an
unconstitutional search. After a hearing, the magistrate judge
recommended that the motion be denied. After reviewing the record
and Gonzalez’s written objections the district court judge denied
the motion to suppress.
At trial, the government proposed to introduce into evidence
testimony by Officer Wright regarding Gonzalez’s prior arrests for
drug offenses and other evidence of Gonzalez’s 1988 conviction for
possession of marijuana. The government argued that the testimony
regarding Gonzalez’s prior arrests was intrinsic to the charged
offense because he had given evasive answers about his criminal
history during the stop. The government further argued that the
evidence of the past conviction was relevant to establishing
Gonzalez’s intent. Over objections, the district court admitted
both the testimony of Officer Wright and the evidence of Gonzalez’s
prior conviction. Gonzalez was convicted by a jury on the single
count of possession with intent to distribute and sentenced to 151
months in prison.
The Motion to Suppress
When reviewing a district court’s grant or denial of a motion
to suppress evidence as obtained in violation of the Fourth
Amendment, we review a district court’s factual determinations for
clear error and its ultimate Fourth Amendment conclusions de novo.
4
Ornelas v. United States, 517 U.S. 690, 699 (1996); United States
v. Arvizu, 534 U.S. 266, 275 (2002). We view the evidence
introduced at a suppression hearing in the light most favorable to
the prevailing party. United States v. Orozco, 191 F.3d 578, 581
(5th Cir. 1999).
Gonzalez concedes that the initial stop was a valid traffic
stop for improper lane use under Terry v. Ohio, 392 U.S. 1 (1968).
However, he argues that Officer Wright exceeded the scope of the
valid stop when he continued to question Gonzalez after he issued
the citations. See United States v. Dortch, 199 F.3d 193, 198-99
(5th Cir. 1999). He also argues that because the questioning
exceeded the scope of the stop, his consent to search was not
valid. He further argues that even if his consent to the search
was valid, the movement of the car to police headquarters exceeded
the scope of his consent.
Once the purpose of a valid traffic stop has been completed
and an officer’s initial suspicions have been verified or
dispelled, the detention must end unless there is additional
reasonable suspicion supported by articulable facts. United States
v. Machuca-Barrera, 261 F.3d 425, 434 (5th Cir. 2001); United
States v. Shabazz, 993 F.2d 431, 436 (5th Cir. 1993). We have
recognized that mere “uneasy feelings” and inconsistent stories
between a driver and a passenger do not constitute articulable
facts that support a reasonable suspicion of drug trafficking. See
United States v. Santiago, 310 F.3d 336, 338-39 (5th Cir. 2002).
5
Several articulable facts support reasonable suspicion of drug
activity in this case. Officer Wright testified that Gonzalez
appeared very nervous, was hesitant in answering the most basic
questions about his travel plans, lied about why he didn’t have a
driver’s license, was 500 miles away from the road leading to his
claimed destination, was on a road associated with drug
trafficking, and had been arrested for drug trafficking in the
past. These facts together gave rise to a reasonable articulable
suspicion that Gonzalez was involved in drug trafficking.1 To the
extent that Officer Wright’s questions about the purpose and
itinerary of Gonzalez’s trip were posed during the legitimate
traffic stop, they were permissible. See Shabazz, 993 F.2d at 436
(“[A] police officer’s questioning, even on a subject unrelated to
the purpose of the stop, is itself [not] a Fourth Amendment
violation”); Machuca-Barrera, 261 F.3d at 432. Subsequently,
because Officer Wright had formed a reasonable suspicion based on
specific articulable facts, his continued detention of Gonzalez to
1
This case is clearly distinguishable from Santiago. In
Santiago, the officer explicitly testified that during the
legitimate scope of the traffic stop, which included a look at
Santiago’s driver’s license and auto registration, a computer
records check, and issuance of a citation, he had no specific
reason to believe that the defendant was transporting drugs, but
that he had “uneasy feelings” about the situation. The officer in
Santiago did not discover any specific lies told by the driver or
passenger and testified that he merely thought that they might be
“trying to conceal something” about the car or the children who
were traveling with them. This court held that additional
detention to ask questions about drug trafficking exceeded the
scope of the traffic stop without reasonable suspicion.
6
ask questions regarding his criminal history and the possible
presence of drugs in the vehicle did not violate the Fourth
Amendment.
Because Officer Wright’s questioning of Gonzalez did not
violate the Fourth Amendment, that questioning cannot be said to
have tainted his consent to search. There is nothing in the record
to suggest any clear error in the district court’s determination
that Gonzalez’s consent was voluntarily given as an independent act
of free will. See United States v. Chavez-Villarreal, 3 F.3d 124,
127 (5th Cir. 1993).
Finally, we need not reach the question of whether moving the
vehicle to police headquarters exceeded the scope of consent,
because the officers clearly had probable cause to move the vehicle
in order to conduct a more complete search once Lika the narcotics
dog gave a positive alert to the presence of narcotics in the area
of the rear wheel well and undercarriage. See Dortch, 199 F.3d at
197-98.
Prior Arrests and Prior Conviction
We review evidentiary rulings for abuse of discretion. United
States v. Phillips, 219 F.3d 404, 409 (5th Cir. 2000); United
States v. Hernandez-Guevara, 162 F.3d 863, 869 (5th Cir. 1998). If
we find an abuse of discretion, we must determine whether the error
had a harmful effect on a substantial right of the defendant.
Phillips, 219 F.3d at 409.
7
Gonzalez contends that the district court erred in admitting
testimony by Officer Wright regarding Gonzalez’s history of arrests
for transporting narcotics. Evidence is admissible as intrinsic to
the offense charged “if it was inextricably intertwined with the
evidence regarding the charged offense or if it is necessary to
complete the story of the crime of the trial.” United States v.
Morgan, 117 F.3d 849, 861 (5th Cir. 1997). The district court found
that Officer Wright’s knowledge of the prior arrests was intrinsic
to the story of the crime in this case, because it gave rise to his
continued questioning and allowed him to know that Gonzalez was
lying in response to his questions. Gonzalez argues that the
district court abused its discretion in allowing the testimony
regarding Officer Wright’s discovery of the prior arrests because
it was not intrinsic to the offense charged and that the danger of
undue prejudice outweighed any probative value the testimony might
have had. The computer check and the results thereof clearly are
part of the story of Officer Wright’s discovery of the crime.
However, because the court held a preliminary hearing on whether
Officer Wright was justified in his continued questioning of
Gonzalez, it is not clear that it was necessary for the government
to establish the propriety of the continued questioning at trial.
Although we are not convinced that the admission of this testimony
is free from doubt in these circumstances, we cannot say that the
district court abused its discretion in allowing Officer Wright to
include in his narrative of events the fact that he knew Gonzalez
8
was not telling the truth based on the results of the computer
check. Gonzalez’s untruthfulness in answering the questions
arguably was relevant to whether his denial of knowledge of the
contraband in the vehicle was credible.
Gonzalez also argues that the district court erred in
admitting evidence of his 1988 conviction for possession of
marijuana with intent to distribute under Rule 404(b) of the
Federal Rules of Evidence. “Evidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order
to show action in conformity therewith. It may however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity or
absence of mistake or accident....” Fed. R. Evid. 404(b). When
determining whether evidence is admissible under this rule, a court
must determine first whether the evidence of the prior conviction
was relevant to any issue other than the defendant’s character and
second, whether the probative value of the evidence was
substantially outweighed by the risk of undue prejudice. United
States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978)(en banc).
The district court found that, because Gonzalez’s 1988
conviction involved the transportation of drugs in a hidden
compartment of a car, it was relevant to Gonzalez’s knowledge of
the cocaine hidden in the car and intent to distribute the cocaine
seized from his car. Gonzalez argues that the prior conviction was
not relevant to knowledge and intent because of some factual
9
differences between the offenses. The differences he relies on are
that in 1988, there were two people in the vehicle; Gonzalez was a
passenger; the vehicle was stopped on a rural road rather than a
highway; and some drugs were visible in the vehicle as well as
being concealed in the wheel well in 1988 while all of the drugs in
the instant offense were concealed in the wheel well. These
differences do not affect whether the prior conviction is relevant
to prove knowledge of the concealed drugs in this case. Because
both the prior conviction and the current offense involved the
concealment of drugs in hidden compartments, the district court did
not abuse its discretion in finding that the 1988 conviction was
relevant to the issues of knowledge and intent. See United States
v. Saucedo-Munoz, 307 F.3d 344 (5th Cir. 2002).
Finally, Gonzalez argues that the danger of undue prejudice
from the evidence substantially outweighs its probative value
because of the factual differences and the age of the 1988
conviction. The age of a prior conviction weakens its probative
value, but it is not a per se bar to admissibility. United States
v. Hernandez-Guevara, 162 F.3d 863, 872-73 (5th Cir. 1998)(admission
of an eighteen-year-old conviction not an abuse of discretion);
United States v. Chavez, 119 F.3d 342 (5th Cir. 1997)(admission of
fifteen-year-old conviction not an abuse of discretion). While the
probative value of the 1988 conviction is weakened by its age, the
district court did not abuse its discretion in determining that the
10
probative value of the evidence as to knowledge and intent
outweighed any possible prejudicial effect.2
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
1
2
We note that the district court properly instructed the jury
that it was to consider the prior conviction only so far as it
tended to prove knowledge or intent, which further mitigated any
potential prejudicial effect.
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United States v. Gonzalez
Court: Court of Appeals for the Fifth Circuit
Date filed: 2003-04-16
Citations: 328 F.3d 755
Copy CitationsCombined Opinion