United States v. Gallardo-Gonzalez , 331 F. App'x 255 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4284
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALBERTO GALLARDO-GONZALEZ, a/k/a Kidnay L. Torres,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:06-cr-00050-RLV-CH-1)
Submitted: March 31, 2009 Decided: May 22, 2009
Before MOTZ and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Richard A. Culler, CULLER & CULLER, P.A., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Mark A. Jones, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alberto Gallardo-Gonzalez was charged with possession
with intent to distribute at least 500 grams of cocaine and
reentry by an illegal alien. After the district court denied
his motion to suppress evidence seized during a traffic stop,
Gallardo-Gonzalez pled guilty to both charges, reserving his
right to challenge the propriety of the court’s suppression
ruling on appeal. We affirm.
This court reviews the factual findings underlying the
denial of a motion to suppress for clear error, and the legal
conclusions de novo. United States v. Wilson, 484 F.3d 267, 280
(4th Cir. 2007). When evaluating the denial of a suppression
motion, we view the evidence in the light most favorable to the
Government, the prevailing party. United State v. Uzenski, 434
F.3d 690, 704 (4th Cir. 2006).
Sergeant Gary Simpson testified that he stopped
Gallardo-Gonzalez’s minivan after witnessing two traffic
infractions. First, information on the vehicle’s thirty-day tag
was obstructed by a black tag frame, preventing Simpson from
reading both the tag’s expiration date and its vehicle
identification number. Second, Simpson observed the van jerk
suddenly to the right, across the fog line, and then move back
onto the highway. Gallardo-Gonzalez maintains that the traffic
stop was based on Simpson’s mistaken understanding of applicable
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North Carolina statutes and that these mistakes of law rendered
the stop unreasonable. We disagree.
North Carolina law prohibits the covering or partial
covering of any portion of a registration plate, or the figures
or letters thereon. N.C. Gen. Stat. § 20-63(g) (2007).
Gallardo-Gonzalez maintains that the statute applies only to
permanent tags, and not to temporary plates such as those on his
vehicle. This argument is defeated by N.C. Gen. Stat. § 20-
79.1(k) (2007), which states, “The provisions of [§] 20-63 . . .
shall apply in like manner to temporary registration plates or
markers as is applicable to nontemporary plates.”
State law also requires drivers to maintain the lane
of travel. N.C. Gen. Stat. § 20-146(d) (2007). Contrary to
Gallardo-Gonzalez’s contention, the statute does not require
that the driver be reckless in order for there to be probable
cause to stop the vehicle. Rather, because Gallardo-Gonzalez’s
traffic violation was “readily observable,” there was probable
cause for the stop. See State v. Baublitz, 616 S.E.2d 615, 619
(N.C. Ct. App. 2005) (“observation of defendant’s vehicle twice
crossing the center line furnished . . . probable cause to stop
defendant’s vehicle for a violation of . . . § 20-146(a)”);
State v. Barnhill, 601 S.E.2d 215, 217 (N.C. Ct. App. 2004).
A routine traffic stop permits an officer to detain
the motorist to request a driver’s license and vehicle
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registration, to run a computer check, and to issue a citation.
United States v. Branch, 537 F.3d 328, 335 (4th Cir. 2008),
cert. denied, 129 S. Ct. 943 (2009). To further detain the
driver for questioning requires either the driver’s consent or
reasonable suspicion on the officer’s part that criminal
activity is afoot. Id. at 336. In assessing the voluntariness
of consent, courts consider the totality of the circumstances
to determine “whether the police conduct would have communicated
to a reasonable person that he was not free to decline the
officers’ request or otherwise terminate the encounter.”
United States v. Meikle, 407 F.3d 670, 672 (4th Cir. 2005); see
Florida v. Bostick, 501 U.S. 429, 439 (1991). A district
court’s finding that consent was voluntary will be upheld unless
it is clearly erroneous. United States v. Rusher, 966 F.2d 868,
877 (4th Cir. 1992).
Here, following the traffic stop, Gallardo-Gonzalez
provided Simpson with a license in the name of Kidnay Torres.
He sat next to Simpson in the police car while Simpson ran a
routine license check. Initial computer checks turned up
nothing amiss. Simpson drafted a warning ticket and informed
Gallardo-Gonzalez that he was free to go. Gallardo-Gonzalez
could have left at any time because the passenger door was not
locked; however, he agreed to talk to Simpson for a few minutes.
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Simpson asked whether he could search the minivan, and
Gallardo-Gonzalez refused. Simpson then asked whether he could
run his name through BLOCK, an ICE database. Gallardo-Gonzalez
agreed. Simpson requested a K-9 unit and called the BLOCK
operator. The K-9 officer promptly arrived, but the dog did not
alert when it walked around Gallardo-Gonzalez’s vehicle. The
BLOCK operator informed Simpson that “Kidnay Torres” was an
alias used by Gallardo-Gonzalez and that he had a criminal
record, including a conviction for a cocaine offense. When he
heard Simpson repeat the name Gallardo-Gonzalez, the defendant
slumped over and acknowledged that this was his real name.
Simpson informed him that he could be arrested for giving a
fictitious name to a law enforcement officer, and again
requested consent to search the minivan. This time, Gallardo-
Gonzalez agreed to the search. Within minutes, a bag containing
two kilograms of cocaine was discovered under the vehicle’s
passenger seat.
We conclude that the district court did not clearly
err in finding Gallardo-Gonzalez’s consent to be voluntary. The
entire incident--from the actual stop to the discovery of the
cocaine--lasted approximately twenty minutes. Gallardo-Gonzalez
was free to leave rather than stay and engage in a discussion
with Simpson. As the district court found, Simpson was
deferential when dealing with Gallardo-Gonzalez.
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We therefore affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the material before us and argument would not aid the
decisional process.
AFFIRMED
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