United States v. Flores , 368 F. App'x 424 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4191
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEJANDRO FLORES,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:08-cr-00073-LHT-1)
Argued: January 29, 2010 Decided: March 5, 2010
Before TRAXLER, Chief Judge, NIEMEYER, Circuit Judge, and
Jackson L. KISER, Senior United States District Judge for the
Western District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Andrew Brady Banzhoff, Asheville, North Carolina, for
Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF:
Edward R. Ryan, Acting United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alejandro Flores (“Flores”) pled guilty to possession with
intent to distribute at least five kilograms of cocaine in
violation of 21 U.S.C. § 841(a)(1) and received a sentence of
seventy months of imprisonment and three years of supervised
release. Flores’s guilty plea was conditional pursuant to Rule
11(a)(2) of the Federal Rules of Criminal Procedure and reserved
his right to appeal the district court’s denial of his motion to
suppress all evidence seized from the search of his vehicle and
trailer. On appeal, Flores argues that the trial court should
have granted his motion because the stop of his vehicle and
ensuing search violated the Fourth Amendment. For the reasons
that follow, we conclude that the search and seizure of Flores’s
vehicle and trailer was consistent with Constitutional mandates.
Specifically, we find that the entire search was within the
scope of Flores’s consent and that the troopers had probable
cause to conduct the search even absent consent. Accordingly,
we affirm.
I. Facts
On June 10, 2008, at approximately 11:00 a.m., North
Carolina State Highway Patrol Trooper Ray Herndon (“Trooper
Herndon” or “Herndon”) was on stationary patrol on Interstate 40
in Haywood County, North Carolina. He observed Flores’s white
2
Ford Bronco traveling east, and as the vehicle approached
Trooper Herndon, Flores braked sharply, causing his vehicle to
travel to the right of the white fog line and nearly collide
with the bridge rail. 1 As the Bronco passed Herndon at
approximately sixty miles per hour, the trooper observed Flores
“sitting very fixed and rigid” in his seat and tightly grasping
the steering wheel. Although Herndon acknowledged that everyone
is nervous during a traffic stop, he described Flores’s reaction
to seeing him as “extreme.” The trooper pursued Flores and
observed the Bronco travel across the fog line once more,
traverse back into its lane, and then cross the dotted center
line. After following Flores for approximately two miles,
Herndon initiated a vehicle stop at 11:05 a.m.
Approaching the vehicle on the passenger side, the trooper
noticed “greasy smudges all over the white rims” of the two-
wheel trailer affixed to the Bronco. He also observed that the
lug nuts appeared to have been worn to the point they were very
shiny, as if they had been taken off and put on numerous times.
The flat bed trailer contained only a spare tire, and the
tailgate was wired shut. Although the Bronco displayed a
Colorado license plate, the trailer had an Arizona registration
plate.
1
The bridge railing at that section of the highway was
approximately one and a half to two feet from the fog line.
3
In the cabin, Trooper Herndon observed Flores sitting in
the driver’s seat, an adult female sitting in the passenger
seat, and a juvenile female with a dog seated in the back.
Herndon asked for Flores’s license and registration, at which
point he observed that Flores’s hands were shaking so
dramatically that he repeatedly fumbled in his attempts to
retrieve his driver’s license from his wallet. Flores was
breathing out of his mouth as if out of breath, and the whole
side of his neck was visibly pounding with a rapid pulse. The
adult female passenger opened the glove box to search for the
vehicle’s registration, and Trooper Herndon noticed her hands
were also visibly shaking, and she appeared to have a rapid
pulse as well. The trooper was alarmed by this behavior,
particularly the extent of nervousness of the female passenger,
because such passengers are not typically nervous during traffic
stops. Sensing something was not right, Herndon asked Flores to
join him at the rear of the vehicle. After obtaining consent,
the trooper patted Flores down for weapons and noted Flores’s
heart was racing “as if he had been exercising heavily.”
Trooper Herndon advised Flores he had stopped him because
he was “all over the road,” and the two had a brief conversation
in English about Flores’s lane violations. Afterward, the
trooper asked Flores to sit in the front passenger seat of his
patrol car while he checked Flores’s license and registration.
4
Although there was no problem with Flores’s license or the
registration on the Bronco, the Arizona trailer was not
registered under Flores’s name or the name provided by Flores. 2
Trooper Herndon notified Flores he would only receive a warning
for his lane violations, but Flores continued to exhibit a
“[h]eightened state of nervousness,” thereby further arousing
the trooper’s suspicions.
After Herndon returned Flores’s license and registration
and issued him a copy of the warning, the trooper asked Flores
if he could ask him some questions before he left. Flores
agreed, and Herndon posed some general inquiries about where
Flores was going and why, to which Flores replied they were
traveling to somewhere in North Carolina to move the female
passenger’s uncle’s belongings to Colorado. Flores could not
identify the destination city in North Carolina or the uncle’s
name. He did, however, indicate they would be moving all of the
uncle’s belongings, including sofas, couches, and tables,
despite the trooper’s opinion that the five foot by twelve foot
trailer could not reasonably accommodate that many items.
Increasingly suspicious, Herndon asked Flores if he could
speak with the adult female passenger, whom Flores identified as
2
Before Trooper Herndon checked the registration, Flores
identified an individual named “Juan” as the owner of the
trailer. Trooper Herndon’s check revealed it was actually
registered to “a Pablo something.”
5
“Marilena or Marilyn,” his girlfriend of “five, six, seven
years.” Flores agreed, and the trooper proceeded to the Bronco,
where the female passenger identified herself as Nereyda Mendez
(“Mendez”). 3 Mendez confirmed that she was Flores’s girlfriend
and that they were traveling to a location in North Carolina to
pick up furniture to move to Colorado. Mendez identified the
owner of the furniture as her cousin, though, and when asked for
his or her name, Mendez responded with a blank stare.
Eventually, Mendez articulated they were traveling to Lumberton,
North Carolina, but she was not able to produce a name for the
cousin. Throughout the conversation, Trooper Herndon continued
to notice “a quick, rapid pounding pulse” in Mendez’s neck,
which the trooper found abnormal.
Herndon returned to his patrol car to discuss the
inconsistencies between Flores’s and Mendez’s stories.
Ultimately, the trooper explained to Flores that he suspected
them of possessing illegal contraband, and he requested
permission to search Flores’s vehicle. Flores consented, both
orally and in writing. 4 Flores inquired whether the trooper
would damage the vehicle in the search, and Herndon said he
3
“Marilyn or Marilena” turned out to be the name of the
young girl seated in the back of the Bronco.
4
Trooper Herndon used a printed “consent to search” form
that included Flores’s information, the vehicle information, and
the trailer information. The Trooper did not read the form to
Flores or advise him of any rights in relation to the form.
6
would not, but “if [he] did damage it accidentally or something,
. . . [the Highway Patrol] would take care of the damage.”
Herndon then requested assistance, and Trooper Michael Hicks
(“Trooper Hicks”) arrived shortly thereafter to aid in the
search.
During the search, Flores remained in Herndon’s patrol car.
Trooper Hicks stood by the patrol car door with Mendez, the
juvenile child, and the dog. No one was handcuffed. Trooper
Herndon started by searching the Bronco. Despite the parties’
explanation about traveling across the country, Trooper Herndon
found no luggage. The trooper then proceeded to examine the
trailer. Herndon noticed that the lug nuts on the driver’s side
were shiny, just as on the passenger side, and there were greasy
smudges on the rims, just like on the other side. The floor of
the trailer was “very thin” and had no reinforcement, and the
axles “appeared to be extremely large” for such a small,
lightweight trailer. Herndon laid on the ground to examine the
axles further, and he observed several locations with new bolts
and greasy handprints. Trooper Herndon’s examination convinced
him the shackles had been removed many times, and the axles
“obviously . . . had been apart.” This further increased
Herndon’s suspicions, as trailer axles do not typically require
much maintenance. Because of his training and experience in
drug interdiction, the trooper was aware that axles are a common
7
place to conceal contraband due to their being hollow. Based on
this information--as well as the parties’ nervousness and their
vague and conflicting stories--he “became quite confident that
the axles likely contained some kind of illegal contraband.”
Trooper Herndon determined he could not conduct further
inspection of the axles at the roadside, so he asked Mendez if
she would be willing to travel with the troopers to the next
exit so they could continue searching for contraband. Herndon
then asked Mendez to assist him in explaining to Flores in
Spanish what Herndon wanted to do. Although Flores had spoken
“perfect English” that day, Herndon believed the conversation
was becoming more complex, and he wanted to make “double sure”
Flores understood. After Mendez finished explaining the
situation, Flores consented to the additional search. Flores
then drove the Bronco to a Pilot truck stop service bay at the
next exit. Herndon asked Trooper Hicks to accompany Flores,
Mendez, and the juvenile child to the Pilot store and to the
restroom if they wished while Herndon examined the axles.
According to Herndon, Flores, Mendez, and the child were free to
move about.
Upon closer inspection, Trooper Herndon confirmed the
presence of the greasy handprints, shiny bolts, new shackle
bolts, and other evidence the axles had been tampered with and
removed. He determined the quickest, least intrusive, and most
8
efficient way to investigate would be to drill a small hole in
the axle, as that would not damage its functionality. Using a
5/16 inch drill bit, Herndon drilled a hole into the axle
approximately one foot from the right side. Although the axle
should have been hollow, the trooper encountered another sleeve
inside the axle. According to Trooper Herndon, this sort of
inner sleeve is often used by smugglers to facilitate ease of
insertion and removal of contraband inside an axle. Upon
drilling into the inner sleeve, the trooper noticed a white,
powdery substance on the end of his drill, and he immediately
smelled cocaine. A field test revealed the substance was indeed
cocaine. When Flores and Mendez returned from the Pilot store,
Herndon arrested them. Further inspection of the axle revealed
eighteen bundles of cocaine, which weighed out to a total of
approximately nine kilograms.
After a suppression hearing, the district court denied
Flores’s motion to suppress evidence obtained as a result of the
search and seizure of Flores and his vehicle. Judge Thornburg
first determined that Trooper Herndon’s initial stop of Flores
was proper because there was probable cause to believe Flores
violated North Carolina traffic law. By state statute, law
enforcement personnel may issue warning tickets for conduct that
may potentially cause harm to the public. Since Trooper Herndon
observed Flores cross the fog line twice and center line once,
9
the stop was proper. Second, Judge Thornburg ruled that the
“numerous conversations between Trooper Herndon and Flores
established” that Flores’s consent was knowingly and voluntarily
given, including the consent to move the Bronco to a second
location for further searching. The Judge found Flores could
readily understand and respond to the trooper’s questions and
pose his own, and Trooper Herndon did not employ a menacing or
intimidating tone. Judge Thornburg further determined that the
trooper’s failure to notify Flores of his right to refuse
consent did not vitiate the voluntariness of his consent.
Third, the district court held that drilling a hole in Flores’s
axle did not exceed the scope of consent. Given Trooper
Herndon’s explicit questions about drugs, the Judge concluded a
reasonable person would have understood that the trooper was
asking for consent to search the entire vehicle and trailer for
contraband. Although Flores inquired about damage to the
vehicle, he did not object when the trooper mentioned the
possibility the Highway Patrol might have to repair some damage,
so he did not limit his consent. Furthermore, drilling a small
hole was a reasonable method of conducting the search, as the
likely alternative would have required the troopers to prolong
the search by completely dismantling the axle. Finally, Judge
Thornburg determined Trooper Herndon, based on his training and
10
experience, had probable cause to search the axle and employed
the least intrusive method of doing so.
II. Analysis
In reviewing a trial court’s denial of a motion to
suppress, this Court reviews factual findings for clear error
and legal determinations de novo. Ornelas v. United States, 517
U.S. 690, 699 (1996); United States v. Mowatt, 513 F.3d 395, 399
(4th Cir. 2008); United States v. Hamlin, 319 F.3d 666, 671 (4th
Cir. 2003).
A. Legality of the Stop
Flores argues the district court erred in determining that
Trooper Herndon’s initial stop was consistent with the Fourth
Amendment. Flores acknowledges the traffic offense of “Failing
to Maintain a Lane,” codified as follows: “A vehicle shall be
driven as nearly as practicable entirely within a single lane
and shall not be moved from such lane until the driver has first
ascertained that such movement can be made with safety.” N.C.
Gen. Stat. § 20-146(d)(1) (2008). Flores asserts, however, that
crossing the fog line twice and the center line once does not
amount to a violation of section 146(d)(1). In support of his
argument, Flores relies on United States v. Gregory, 79 F.3d 973(10th Cir. 1996), a case in which the Tenth Circuit examined a
11
similar Utah statute and concluded that weaving into the
emergency lane once was not a traffic violation providing
probable cause for search and seizure. Therefore, according to
Flores, Trooper Herndon lacked probable cause to make the
initial stop. Alternatively, Flores asserts that no North
Carolina appellate case has concluded that crossing the fog line
constitutes a violation of section 146(d)(1).
The Government responds that Flores’s swerving off the road
amounted to a violation of section 20-146(d)(1). Based on State
v. Baublitz, 172 N.C. App. 801, 616 S.E.2d 615 (N.C. Ct. App.
2005), and United States v. Gallardo-Gonzales, No. 08-4284, 2009
WL 1426907 (4th Cir. May 22, 2009), the Government argues that a
stop based on a “readily observable” traffic violation is
supported by probable cause. Alternatively, even if crossing
the fog and center lines was not sufficient to provide probable
cause, the Government asserts that the trooper’s subjective
belief that criminal activity might have been afoot, based on
the totality of the circumstances known to the trooper, rendered
the stop reasonable.
It is well-established that “the decision to stop an
automobile is reasonable where the police have probable cause to
believe that a traffic violation has occurred.” Whren v. United
States, 517 U.S. 806, 809-10 (1996). In other words, “‘[w]hen
an officer observes a traffic offense--however minor--he has
12
probable cause to stop the driver of the vehicle.’” United
States v. Hassan-El, 5 F.3d 726, 730 (4th Cir. 1993) (quoting
United States v. Cummins, 920 F.2d 498, 500 (8th Cir. 1990)).
Additionally, pursuant to state and federal precedent, when a
North Carolina patrol trooper observes a driver swerving out of
his or her lane, the trooper has probable cause for a stop. See
Gallardo-Gonzales, 2009 WL 1426907, at *1 (holding that
Gallardo-Gonzales’s “readily observable” violation of section
20-146(d) provided the officer with probable cause to effectuate
a stop); Baublitz, 172 N.C. App. at 807, 616 S.E.2d at 619(concluding that the investigator’s two observations of Baublitz
crossing the center line of a highway in violation of section
20-146(a) supplied probable cause for the stop).
Based on the precedent, there can be little doubt the
district court was correct in ruling Trooper Herndon had
probable cause to stop Flores. When Flores first noticed the
trooper, his Bronco suddenly swerved right of the fog line and
nearly collided with the bridge railing. The trooper pursued
Flores and observed two additional instances of his inability to
maintain a single lane. Although Flores appears to be correct
that no North Carolina state appellate court has addressed
whether this sort of conduct constitutes a violation of the
statute, at least one unpublished case from this Court has
concluded, with little difficulty, that a single incident of
13
crossing over the fog line is a violation of that section. See
Gallardo-Gonzales, 2009 WL 1426907, at *1. Moreover, the
absence of state precedent on the matter may simply be due to
the fact that the language found in section 20-146(d)(1) is so
clear that there can be little doubt that swerving in and out of
a lane constitutes a violation of the statute unless additional
circumstances make maintenance of a single lane impractical.
See § 20-146(d)(1). In any event, Flores’s three readily
observable traffic infractions permitted Trooper Herndon to
effectuate a stop consistent with the Fourth Amendment. See
Whren, 517 U.S. 816; Gallardo-Gonzales, 2009 WL 1426907, at *1;
Baublitz, 172 N.C. App. at 807, 616 S.E.2d at 619; see also N.C.
Gen. Stat. § 20-183(b) (2008) (authorizing law enforcement to
issue warning tickets for conduct that could harm the public).
Flores’s reliance on the Tenth Circuit’s opinion in United
States v. Gregory is misplaced. Although the Utah statute in
Gregory is similar to section 20-146(d), 5 the facts presented are
substantially different. In ruling that the officer did not
have probable cause to stop Gregory, the Tenth Circuit
emphasized that Gregory’s single lane crossing was likely due to
the winding road, mountainous terrain, and windy conditions.
5
In Gregory, the court interpreted Utah Code section 41-6-
69(1), which provides that “[a] vehicle shall be operated as
nearly as practical entirely within a single lane and may not be
moved from the lane until the operator has determined the
movement can be made safely.” Gregory, 79 F.3d at 976 n.2.
14
Gregory, 79 F.3d at 978. The court noted that the Utah statute
only requires a vehicle to remain in a single lane “as nearly as
practical” and concluded that, “[u]nder these conditions[,] any
vehicle could be subject to an isolated incident of moving into
the right shoulder of the roadway[] without giving rise to a
suspicion of criminal activity.” Id. (emphasis added). Unlike
in Gregory, the present case presents no indication that weather
or road conditions made it impractical for Flores to maintain a
single lane. Moreover, unlike Gregory, Trooper Herndon observed
Flores swerve out of his lane three times, not just once.
Gregory is therefore distinguishable from the present facts, and
nothing on the record indicates the district court erred in fact
or law in holding that probable cause supported the initial
stop.
B. Consent to Search and Seize
Flores next argues that Trooper Herndon did not have valid
consent to search the vehicle and trailer. First, Flores
maintains that Herndon should have let Flores go after returning
Flores’s license and registration and issuing him a ticket, as
Flores’s nervousness was not sufficient to create a reasonable
suspicion of additional criminal activity. 6 Second, Flores
6
According to Flores, “[t]he Trooper later acknowledged
that the defendant’s status as an illegal alien might have
15
asserts that the language employed by Trooper Herndon to ask
Flores if he could pose additional questions was “coercive and
confusing” and conditioned Flores’s freedom to leave on his
willingness to answer questions. 7 According to Flores, this
rendered Flores’s continued detention involuntary and vitiated
his consent. Third, Flores argues that “the physical appearance
of the officer, including his all black para-military style
outfit[] and his physically imposing size provided an inherently
coercive atmosphere . . . .” 8 When coupled with the fact that
Trooper Herndon did not advise Flores of his rights or ability
to refuse consent, this further rendered Flores’s consent
accounted for his nervousness.” This reading of the testimony
is patently incorrect. The portion of the record cited by
Flores reads as follows:
Q. Would you agree, wouldn’t you, that if he was in
this country illegally, that certainly would account
for that nervousness[?]
A. You want my opinion? Is that what you’re asking?
Q. Well, I mean—
A. I don’t necessarily agree with your broad statement
there, no.
Q. If he is an illegal alien, that certainly would
make him nervous in the presence of a law enforcement
officer, wouldn’t [it]?
A. Well, that would depend on the illegal alien.
Everybody is different.
7
Trooper Herndon testified that he wrote in his report: “I
asked Mr. Flores if I could ask him some questions before he
left.”
8
Flores’s Brief details Trooper Herndon’s clothing, height,
and weight on the date in question. The description appears to
match that of a normal highway patrol officer and does not
present anything even arguably out of the ordinary.
16
involuntary. Flores argues he would not have subjected himself
to the “embarrassment and humiliation” of traveling by police
escort to the truck station but for his belief he was not free
to decline.
The Government counters that the evidence reveals Flores
knowingly and voluntarily consented to the searches of his
vehicle, including both the initial search and the later search
at the truck station. Relying on several Fourth Circuit cases,
the Government argues Herndon’s return of Flores’s driver’s
license and registration was a crucial moment separating the
compulsory portion of the stop from the voluntary portion.
According to the Government, once Herndon returned Flores’s
driver’s license and registration and issued a warning, the
trooper’s language and conduct would have led a reasonable
person to believe any further questioning was voluntary. Under
these circumstances, Flores’s explicit, verbal consent to
additional questioning prevents the conclusion that the
continued inquiry violated the Fourth Amendment. The Government
notes, based on Fourth Circuit precedent, that advising Flores
of his right to refuse consent was not a prerequisite to it
being voluntary. The Government further asserts that Flores’s
statements and conduct--including the fact that Flores helped
the troopers move the Bronco and trailer to the truck station
with knowledge of Trooper Herndon’s specific suspicions--provide
17
ample proof of his consent to the later search. Finally, the
Government points out that the district court found no evidence
of coercion. Therefore, based on the totality of the
circumstances, the Government maintains that the lower court’s
decision should be upheld.
Even where an initial stop is justified by probable cause,
after satisfying the purpose for which the stop was made and
issuing a citation or warning, the officer must permit the
driver to proceed on his way without further delay, and any
continued detention for questioning is illegal absent a
reasonable suspicion of a serious crime. United States v.
Foreman, 369 F.3d 776, 781 (4th Cir. 2004); United States v.
Rusher, 966 F.2d 868, 876-77 (4th Cir. 1992). In circumstances
where the individual would be free to go but voluntarily stays
and engages in a dialogue with the officer, however, the
questioning is considered consensual and does not trigger Fourth
Amendment scrutiny. United States v. Meikle, 407 F.3d 670, 672-
73 (4th Cir. 2005). This exception applies where “a reasonable
person would have felt free to decline the officer’s request or
otherwise terminate the encounter.” Id. at 672. Likewise,
although a warrantless search conducted without consent is per
se unreasonable, voluntary consent to search is an exception to
that general rule. Schneckloth v. Bustamonte, 412 U.S. 218, 219
(1973). In examining whether consent was freely and voluntarily
18
given, the court must consider the totality of the circumstances
surrounding the consent, including the age, maturity, education,
intelligence, and experience of the defendant, as well as the
conditions under which the consent was given. United States v.
Lattimore, 87 F.3d 647, 650 (4th Cir. 1996). The question of
voluntariness of consent is a factual question, and the district
court’s conclusion should be upheld unless the finding is
clearly erroneous. Id. Where the lower court “bases a finding
of consent on the oral testimony at a suppression hearing, the
clearly erroneous standard is particularly strong since the
[court] had the opportunity to observe the demeanor of the
witnesses.” Id. at 650-51 (internal quotation omitted).
In this case, the district court’s determination that
Flores voluntarily consented to Trooper Herndon’s continued
questioning is not clearly in error. In fact, this case
presents an almost identical set of facts to those in Meikle.
In Meikle, as here, an officer stopped the defendant for
crossing the fog line and became suspicious about drugs due to
the defendant’s “extreme nervousness,” which continued even
after the officer notified the defendant he would only receive a
warning. 407 F.3d at 671. After returning the defendant’s
license and registration and issuing the warning, the officer
“asked [the defendant] if he could talk to him again,” and the
defendant replied “yes.” Id. We there concluded that, having
19
reacquired his license and registration and received the
warning, a “reasonable person would have felt free to decline
[the officer’s] request to speak” further, despite the officer’s
failure to explicitly say that the defendant was free to go or
that he could refuse consent. Id. at 673. In the present case,
the district court found that Trooper Herndon posed his request
for further questioning in a manner similar to the officer in
Meikle, and Flores replied with an affirmative “yes.” As in
Meikle, the trooper’s language, coupled with the surrounding
circumstances, would inform a reasonable person that he or she
could refuse consent. Nothing in the record indicates that the
trooper used a menacing or intimidating tone, and Flores’s
description of Herndon’s physical appearance does not seem out
of the ordinary in any respect. At the time Herndon requested
the opportunity for additional questioning, the trooper had
already returned Flores’s license and registration, so Herndon
was not withholding or restricting Flores’s means of going about
his business. See United States v. Weaver, 282 F.3d 302, 310-11
(4th Cir. 2002) (describing the significance of returning a
defendant’s license and registration). Although Herndon did not
notify Flores of his right to refuse consent, “the Government
need not demonstrate that the defendant knew of his right to
refuse consent to prove that the consent was voluntary.”
20
Lattimore, 87 F.3d at 650. 9 Based on all of these factors, the
district court did not err in finding Flores voluntarily
consented to the questioning.
Nor can it be said the district court erred in concluding
Flores consented to the initial search of his vehicle and the
later search at the truck station. Contrary to Flores’s
argument that Trooper Herndon employed confusing language to
elicit consent, it appears the trooper went to considerable
lengths to ensure Flores understood exactly what the officer was
asking. Prior to requesting permission to search, Herndon
specifically inquired whether Flores was carrying illegal drugs
“such as marijuana, cocaine, methamphetamine, [or] heroin” in
his vehicle. The trooper then explained that he suspected
Flores of engaging in criminal activity and requested permission
to search Flores’s vehicle for contraband. Only after this did
Flores provide consent--both verbally and in writing--to the
search. Even if Flores’s English reading skills were limited in
9
The Supreme Court elaborated on this point in Ohio v.
Robinette, 519 U.S. 33 (1996):
“While knowledge of the right to refuse consent is one
factor to be taken into account, the government need
not establish such knowledge as the sine qua non of an
effective consent . . . . [S]o too would it be
unrealistic to require police officers to always
inform detainees that they are free to go before a
consent to search may be deemed voluntary.”
Id. at 39-40.
21
some degree, as Flores argued before the district court, he was
able to converse in perfect English with Trooper Herndon
throughout their numerous conversations. He demonstrated his
ability to understand the trooper’s questions and respond
appropriately. By asking whether Herndon would damage his
vehicle in the search, he further established he was able to
pose questions of his own. At the very least, Flores’s verbal
consent to the initial search was free, voluntary, and knowingly
provided, and nothing in the record or testimony indicates
Flores was confused about what the trooper was asking.
Moreover, when Herndon concluded he could not properly
search the vehicle on the side of the highway, he employed
Mendez’s Spanish-speaking skills “to make double sure that
[Flores] understood” what the trooper was asking. Flores
unequivocally responded that “that was fine,” and the troopers
could do “whatever [they] needed to do.” To further evince his
consent, Flores then proceeded to drive his Bronco and trailer
to the truck stop, park it in the service bay, and exit the
vehicle so the trooper could continue his search. Based on all
of these circumstances, as established at the suppression
hearing through Trooper Herndon’s testimony, the district court
did not commit clear error in finding Flores consented to both
searches.
22
C. Scope of Consent and Probable Cause to Search
In his third assignment of error, Flores argues that he
limited his consent by requesting that the troopers not damage
his vehicle. Because of this, Flores asserts that Herndon could
only have drilled into his axle if they had probable cause,
which Flores maintains they lacked. According to Flores,
although Trooper Herndon testified at length about the axles not
appearing to be “factory axles,” that created nothing more than
an inarticulable hunch insufficient to form probable cause.
Relying on case law from other Circuits, Flores argues that,
although the axles could be capable of holding contraband, the
troopers did not have any additional specific facts indicating a
fair probability that drugs would be found therein, thereby
depriving them of probable cause.
The Government responds with three justifications
supporting the district court’s conclusion that the troopers did
not exceed the scope of Flores’s consent. First, the Government
argues that Flores did not limit the scope of his consent; he
simply inquired whether the troopers would damage his vehicle in
the search. When Trooper Herndon responded that the Highway
Patrol would take care of any damage that occurred, Flores did
not object, thereby demonstrating his satisfaction with the
trooper’s answer. Second, the government maintains that, in
driving his Bronco and trailer to a truck stop mechanic’s bay,
23
Flores understood the troopers would be looking for drugs in
hidden areas, including the axles. By going along with this,
Flores’s conduct bolsters the conclusion that the search of the
axles was within the scope of his consent. Third, even if
Flores limited the scope of his consent by inquiring about
damage, the Government asserts that drilling the axles did not
exceed the limitation, as the small drill hole did not impair
the functionality of the axles in any way.
Where a defendant argues that law enforcement officers
exceeded his or her consent, “[t]he standard for measuring the
scope of . . . consent under the Fourth Amendment is that of
‘objective’ reasonableness--what would the typical reasonable
person have understood by the exchange between the officer and
the suspect?” Florida v. Jimeno, 500 U.S. 248, 251 (1991)
(citing Illinois v. Rodriguez, 497 U.S. 177, 183-89 (1990),
Florida v. Royer, 460 U.S. 491, 501-02 (1983), and id. at 514(Blackmun, J., dissenting)); see also United States v. Neely,
564 F.3d 346, 350 (4th Cir. 2009). In this case, the district
court correctly concluded that a reasonable person in Flores’s
position would have understood he was consenting to a search of
the trailer’s axles. Flores inquired whether the search would
cause any damage to his vehicle, and Trooper Herndon notified
him of that possibility. Only after that notice did Flores
execute the written consent to search form, thereby consenting
24
with full awareness that the troopers might look within the
axles. Additionally, when Trooper Herndon asked for additional
consent to move the vehicle to the Pilot station, he explicitly
stated the reason he wished to do so: he wanted to conduct a
“closer inspection of the trailer axles because [he] suspected
they contained some kind of contraband.” At the point Flores
again consented, he was conscious to both the possibility of
damage and the trooper’s interest in the contents of the axles.
In other words, based on the trooper’s numerous explanations, at
the time Flores consented to the continued search, a reasonable
person would have known what the search would entail.
In addition, the district court did not err in finding that
Trooper Herndon, based on his training and experience, had
probable cause to search the axle. If an officer has probable
cause to believe a suspect is engaged in criminal activity, the
officer may search the suspect’s vehicle even absent consent or
a warrant. United States v. White, 549 F.3d 946, 949 (4th Cir.
2008). Probable cause exists where “there is a fair probability
that contraband or evidence of a crime will be found in a
particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).
In evaluating whether the officer had probable cause, courts
examine the totality of the circumstances. White, 549 F.3d at
949.
25
Although there does not appear to be any Fourth Circuit
precedent with analogous facts, case law from other
jurisdictions lends support for the district court’s finding of
probable cause. For instance, in United States v. Martel-
Martines, the Eighth Circuit found that officers had probable
cause to search a suspect’s vehicle by punching a hole in the
suspect’s truck bed based on the suspect’s evasive and
inconsistent responses to questions, the fact that the suspect’s
vehicle’s underside had been modified, and the existence of an
inaccessible hidden compartment in the suspect’s truck. 988
F.2d 855, 858-59 (8th Cir. 1993). Likewise, in United States v.
Arango, the Tenth Circuit held that the existence of a secreted
compartment in the defendant’s truck, coupled with the fact that
the defendant did not have adequate luggage for his reported
two-week vacation, supplied probable cause. 912 F.2d 441, 447
(10th Cir. 1990). In United States v. Price, where burn marks
on the bed of a truck drew the attention of officers, who then
discovered a secret compartment within the bed, the Fifth
Circuit determined the officers had probable cause to search the
compartment itself. 869 F.2d 801, 804 (5th Cir. 1989).
Although customization of an automobile, standing alone, is
likely insufficient to support probable cause, see United States
v. Orrengo-Fernandez, 78 F.3d 1497, 1504-05 (10th Cir. 1996),
Martel-Martines, Arango, and Price indicate that the existence
26
of a hidden compartment is much more substantial, especially
when coupled with other factors, see Martel-Martines, 988 F.2d
at 858-59; Arango, 912 F.2d at 447; Price, 869 F.2d at 804.
Additionally, circumstances indicating that an auto part is
meant to conceal contraband can provide added support to an
officer’s belief in the existence of probable cause. In United
States v. Strickland, an officer noticed an uncharacteristically
large, incongruently worn tire in the defendant’s trunk. 902
F.2d 937, 939, 943 (11th Cir. 1990). The tire was made by a
different manufacturer than the other tires on the vehicle, had
a bent rim, and was extremely heavy. Id. at 943. When the
officer moved the tire, he noticed a flopping sound within. Id.These factors, coupled with the officer’s specialized knowledge
based on training and experience in drug concealment methods,
convinced the Eleventh Circuit that the officer had probable
cause to cut the tire open and search inside. Id.; see also
United States v. Davis, 458 F.2d 819, 822 (D.C. Cir. 1972)
(“[C]onduct innocent in the eyes of the untrained may carry
entirely different ‘messages’ to the experienced or trained
observer.” (internal quotation omitted)).
In this case, Trooper Herndon noticed the axles on the
small, lightweight, two-wheel trailer were extremely large,
especially considering the fact that the trailer bed was not
reinforced to carry great weights. Upon examining the axles, he
27
and Trooper Hicks reached the conclusion--based on the numerous
greasy smudges and handprints, the shiny, worn-down bolts, and
other signs of removal--that the axles had been taken off and
put on numerous times, even though such axles usually require
little maintenance. Because of his eleven years of Highway
Patrol and drug interdiction experience, Trooper Herndon was
aware that vehicle axles are a common place for smugglers to
hide drugs due to the fact that they are just hollow tubes, and
the unusual size of these axles indicated they contained
contraband. Moreover, both Flores and Mendez exhibited signs of
extreme nervousness beyond that normally shown by traffic
offenders in routine stops. The nervousness was not alleviated
when the Trooper notified Flores he would only receive a
warning. Flores and Mendez offered differing accounts of where
they were going and what they were doing. In fact, Flores could
not identify Mendez’s name, despite claiming she was his
longtime girlfriend, and neither Mendez nor Flores could provide
the name of the cousin or uncle they were out to help.
According to Trooper Herndon, the trailer affixed to Flores’s
Bronco was clearly insufficient to move all the property Flores
alleged they would transport, and, despite Flores and Mendez’s
story that they were traveling across the country, the troopers
found no luggage consistent with such a voyage. Based on the
totality of the circumstances, the district court was correct in
28
concluding that Trooper Herndon had a fair probability of
discovering contraband in Flores’s trailer axles, and the search
was permissible under the Fourth Amendment.
Finally, Flores’s argument that the search was not within
the scope of the Fourth Amendment’s automobile exception due to
the fact that the vehicle was not “readily mobile” after Flores
exited is without merit. Numerous cases clarify that the ready
mobility requirement is meant to distinguish a movable vehicle--
which can easily be relocated to prevent a search for
contraband--from something that would more appropriately be
described as a stationary home. See, e.g., California v.
Carney, 471 U.S. 386, 392-93 (1985); United States v. Brookins,
345 F.3d 231, 237 n.7 (4th Cir. 2003). In other words, the
ready mobility element centers on “the nature of the use of the
vehicle” and is more appropriate for consideration where the
thing searched was being used as a house or exhibited the
characteristics of a fixed dwelling rather than a functioning
vehicle. Brookins, 345 F.3d at 237 n.7; see also Carney, 471
U.S. at 392-93. Since Trooper Herndon observed Flores’s Bronco
traveling on a public highway immediately prior to the search,
this case satisfies the ready mobility requirement, and Flores’s
objection is unavailing. See Carney, 471 U.S. at 392-93.
29
III. Conclusion
For the above-stated reasons, we affirm the judgment of the
district court.
AFFIRMED
30