United States v. Cesar Sierra , 501 F. App'x 900 ( 2012 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14746
Non-Argument Calendar
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D.C. Docket No. 2:10-cr-00183-MEF-CSC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CESAR SIERRA,
Defendant-Appellant.
___________________________
Appeal from the United States District Court
for the Middle District of Alabama
____________________________
(December 17, 2012)
Before BARKETT, PRYOR and JORDAN, Circuit Judges.
PER CURIAM:
Cesar Sierra appeals the district court=s denial of his motion to suppress,
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arguing that he was stopped for a traffic infraction based on his ethnicity in violation
of the Equal Protection Clause of the Fourteen Amendment, was detained longer
than necessary during the stop, and did not voluntarily consent to the officer=s search
of his vehicle. After careful review of the briefs and the record, we affirm.
I.
A police officer saw Mr. Sierra=s eighteen wheeler cross the fog line several
times while it was traveling on an interstate near Montgomery, Alabama. Because of
this improper lane use, the officer stopped the truck to make sure that the driver was
not under the influence or sleepy from driving more hours than truckers are
permitted to travel per day. The officer asked Mr. Sierra for his license, registration,
and driver=s logbook, which contained no entries for the preceding twenty hours. He
saw chicken bones on the passenger-side floorboard of the truck and noticed several
things about Mr. Sierra: his hands were shaking, his carotid artery was pulsating, and
his breathing was rapid and labored. These signs of nervousness did not decrease
even after the officer told Mr. Sierra he was getting a warning instead of a ticket.
The officer asked Mr. Sierra to come back to his police car so that he could
write up the warning citation, run a warrant check, and verify information about the
truck. When the checks came back clean, the officer wrote out the warning citation
and handed it, along with his other documentation, to Mr. Sierra, who was sitting in
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the front passenger seat of the police cruiser pursuant to the officer=s request. As Mr.
Sierra moved to get out of the police car, the officer inquired whether he could ask
Mr. Sierra another question. Mr. Sierra agreed and stayed in the car, leaving the door
partially open. After explaining that he was a part of a highway safety team that, in
addition to patrolling for traffic violations, watched out for the transportation of
stolen property, weapons, and drugs, the officer asked Mr. Sierra if he had any such
illegal contraband in his truck. Mr. Sierra said he did not. The officer then asked Mr.
Sierra if he could search the truck. Mr. Sierra said he could. In the sleeper
compartment of its cab, the officer found cocaine hidden under some plywood in a
storage area.
Mr. Sierra was charged with possession of cocaine with the intent to
distribute, in violation of 21 U.S.C. ' 841(a)(1). He filed a motion to suppress the
drug evidence and, after an evidentiary hearing, the magistrate judge recommended
that the motion be denied. The district court accepted that recommendation and
denied the motion. Mr. Sierra then pled guilty and was sentenced to 108 months=
imprisonment. In his plea agreement, Mr. Sierra reserved the right to challenge the
district court=s denial of his motion to suppress. He does so now.
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II.
A[W]hen reviewing the denial of a motion to suppress, we review findings of
fact for clear error and the application of the law to those facts de novo.@ See United
States v. Segura-Baltazar, 448 F.3d 1281, 1289 (11th Cir. 2006). As an initial
matter, we discern no clear error in the findings of fact, which the magistrate judge
made after hearing testimony about and watching a video of the traffic stop, and
which the district court adopted over Mr. Sierra=s objections.
Mr. Sierra contends that the district court=s denial of his motion to suppress
was erroneous for three reasons: the officer stopped him because of his Hispanic
ethnicity to look for non-traffic criminal activity; the officer did not have reasonable
suspicion to detain him beyond what was necessary to issue the warning citation;
and his consent to the search was not voluntary. 1 Mr. Sierra=s arguments fail, as we
explain.
A.
1
Mr. Sierra also briefly argues that Ahis statements to law enforcement after his arrest were taken
in violation of Miranda v. Arizona, 384 U.S. 436 (1966).@ Because he has not elaborated any
arguments on the merits of this issueCby, for example, telling us exactly which statements he
believes are inadmissible under Miranda and whyCit is waived. See, e.g., Univ. of Ala. Bd. of Trs.
v. New Life Art, Inc., 683 F.3d 1266, 1280 n.41 (refusing to consider Abald and conclusory@
statements). For the same reason, Mr. Sierra has also waived any challenge to the scope of the
search.
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Mr. Sierra concedes that he has not provided any evidence to support his
claim of selective enforcement, offering only his counsel=s Agood faith belief@ that
the traffic stop was ethnicity-based and pretextual. Even if he could produce some
evidence to back up that belief, however, the Supreme Court has Aconclusively
refute[d] the notion that ulterior motives may invalidate police conduct that is
justified on the basis of probable cause to believe that a violation of law has
occurred.@ United States v. Holloman, 113 F.3d 192, 194 (11th Cir. 1997) (citing
Whren v. United States, 517 U.S. 806, 811B12 (1996)). AThus, the only question for
purposes of examining the constitutionality of [a] stop is: Did [the officer] have
probable cause to believe that a traffic violation had occurred?@ Draper v. Reynolds,
369 F.3d 1270, 1275 (11th Cir. 2004). Here, the officer certainly had probable cause
to stop Mr. Sierra: he observed Mr. Sierra=s truck cross over the highway fog line
several times, which is a traffic violation. See, e.g., Ala. Code ' 32-5A-88; Ala.
Code ' 32-6-49.3(21)(b); United States v. Harris, 928 F.2d 1113, 1116 (11th Cir.
1991) (finding probable cause where officer stopped motorist for twice weaving into
emergency lane). That probable cause forecloses an Equal Protection claim.
B.
Mr. Sierra next argues that the officer lacked reasonable suspicion to detain
him after issuing the warning citation. But reasonable suspicion is not the only thing
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that can justify Aquestioning beyond that related to the initial stop@Csuch
questioning is also permissible Aif the initial detention has become a consensual
encounter.@ United States v. Pruitt, 174 F.3d 1215, 1220 (11th Cir. 1999). A traffic
stop becomes a consensual encounter when a reasonable person Awould have felt
free to terminate@ it under the totality of the circumstances. See United States v.
Ramirez, 476 F.3d 1231, 1240 (11th Cir. 2007). Although not itself determinative,
we have deemed an encounter consensual where an officer had returned a motorist=s
paperwork and their subsequent exchange appeared cooperative and non-coercive.
See id. That is what happened here. As the initial traffic stop was coming to a close
and Mr. Sierra moved to leave the police car with his warning and documentation,
the officer asked if he could pose another question to him. Mr. Sierra said yes and
remained in the car with his door ajar. At that point, Athe exchange [became]
cooperative in nature@ because Mr. Sierra Ahad everything he reasonably required to
proceed on his journey@ but chose to answer the officer=s questions instead of ending
the encounter. See id. A reasonable person in Mr. Sierra=s situation would have felt
free to leave, and the fact that Mr. Sierra stayed does not transform the subsequent
conversation into an unlawful detention.
C.
Finally, Mr. Sierra argues that he did not voluntarily consent to the search of
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his truck.AIn assessing voluntariness, the inquiry is factual and depends on the
totality of the circumstances.@ United States v. Purcell, 236 F.3d 1274, 1281 (11th
Cir. 2001). We evaluate the totality of the circumstances by looking at Aseveral
indicators, including the presence of coercive police procedures@ and Athe
defendant=s cooperation with the officer.@ See id. A district court=s determination that
consent was voluntary is a finding of fact that we will not disturb absent clear error.
See id.The magistrate judge=s determination that Mr. Sierra=s consent was voluntary,
which the district court adopted, is not clearly erroneous. When he consented to the
search, Mr. Sierra=s license was not being withheld. He was not being detained until
a drug-sniffing dog could arrive. He was not under arrest, handcuffed, or in the back
of the patrol car. Instead, Mr. Sierra had all of his necessary paperwork and wasCby
his own choiceCsitting in the front seat of the cruiser, door ajar, talking to the
officer. Although Mr. Sierra argues that he Amisunderstood the consequences@ of the
search, the magistrate judge found nothing in the record to support such a
contention. The magistrate judge, after considering evidence from the hearing and
watching a video of the exchange, determined that Mr. Sierra was polite during the
stop, could communicate with the officer, answered all of his questions, expressed
an understanding of the circumstances, and had sufficient intelligence to
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comprehend the consequences of consenting to a search. Given these facts, the
conclusion that Mr. Sierra voluntarily consented is not error, let alone clear error.
See United States v. Schuster, 684 F.2d 744, 747 (11th Cir. 1982) (rejecting
argument that consent was not voluntary because defendant did not know informant
was working with law enforcement and Atherefore had no conception of the
consequences of giving@ informant consent to enter apartment).
III.
The district court=s denial of Mr. Sierra=s motion to suppress is affirmed.
AFFIRMED.
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