United States v. Sierra , 294 F. App'x 884 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 30, 2008
No. 07-31021 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CARLIXTO SIERRA
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
(2:05-CR-101-1)
Before GARZA and DENNIS, Circuit Judges, and MILLS, District Judge.*
PER CURIAM:**
This criminal case involves two Fourth Amendment issues -- the legality
of an investigatory stop and the defendant’s subsequent consent to search his
vehicle -- as well as various voir dire and trial evidentiary issues. For the
following reasons, we affirm the district court’s denial of the motion to suppress
and the judgment of conviction.
I. BACKGROUND FACTS
*
Chief Judge of the Northern District of Mississippi, sitting by designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
On March 17, 2007, Carlixto Sierra (“Sierra”) was stopped by Tangipahoa
Deputy Sheriff Kevin Womack for improper lane usage on Interstate 12 near
Hammond, Louisiana. Approaching the passenger side window of the vehicle,
Deputy Womack asked Sierra for his driver’s license, informed him why he was
being stopped, and asked him about his travel plans. Deputy Womack did not
ask Sierra to exit the vehicle because Sierra is handicapped, evidenced by the
“handicapped” sticker hanging on his rearview mirror. Sierra informed Deputy
Womack that although he had a New Jersey driver’s license, he recently moved
to Atlanta, Georgia. He further indicated that he was returning to Atlanta from
Houston, Texas where he was visiting his family and helping his sister move.
Because Sierra was driving a rental car, Deputy Womack asked to see the rental
agreement. During the encounter, Deputy Womack noticed that Sierra was
extremely nervous and had several bags of snack foods on the floorboard.
Deputy Womack took Sierra’s documents and returned to his police unit
to run a computer check. Before doing so, he called DEA Task Force Agent
(“TFA”) Karl Newman for backup. TFA Newman arrived in approximately four
minutes and Deputy Womack explained to him that he called for back-up
because of Sierra’s extreme nervousness. After the computer check came back
clean, Deputy Womack filled out a consent form to search Sierra’s vehicle. He
then asked TFA Newman to take Sierra out of his vehicle and bring him back to
the police unit so he could issue the citation. Upon bringing Sierra back to the
police unit, TFA Newman noticed in plain view of the front passenger seat that
Sierra had maps of the McAllen-Edinburg area of Texas, which, according to
Deputy Womack, is a popular drug trafficking area near the border of Mexico.
Instead of immediately issuing the citation, Deputy Womack again asked
Sierra about his travel plans. This time, Sierra indicated that he was helping
his brother move, not his sister. At this point, TFA Newman pulled Deputy
Womack aside and informed him about the maps. Deputy Womack asked Sierra
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No. 07-31021
if he had been to the McAllen-Edinburg area of Texas. Sierra responded no.
Deputy Womack asked him why he had the maps. Sierra did not respond.
Deputy Womack issued the citation, handed over Sierra’s documents, and
explained to Sierra that he could either pay the fine by mail or come to the
courthouse on the designated date. Sierra thanked Deputy Womack, indicated
that he understood, and began walking back to his vehicle. Deputy Womack
then asked Sierra if he had anything illegal in his vehicle, specifically listing
various illegal items. With respect to each item, Sierra responded no. When
TFA Newman asked about “coca,” however, Sierra smirked. At this point,
Deputy Womack asked Sierra for consent to search the vehicle and handed him
the written consent form. Sierra informed Deputy Womack that he could not
read English. Deputy Womack responded that the reverse side was in Spanish.
Sierra read and signed the form. Upon searching the vehicle, Deputy Womack
discovered a package of cocaine underneath the rear bumper.1
1
The consent form states that “I, Carlixto Sierra, have a clear understanding that I
have been informed of the following”:
Number 1: I have not been promised anything in exchange for my permission
to this search.
Number 2: I have not been threatened in any way or have not been obligated to
offer my permission voluntarily to have my vehicle/home searched.
Number 3: I completely understand that I have the right to refuse to have my
vehicle/domicile searched.
Number 4: I completely understand that I have the right to end the consent for
search at any time that I wish.
Number 5: I completely understand that if anything illegal is found as a result
of the search, it can be used against me in a court of law.
Number 6: I am sober and I am competent and I am intelligent enough to
understand this document and my rights.
Number 7: I can read, write, and understand the Spanish language.
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No. 07-31021
Sierra was indicted on one count of possession with intent to distribute five
kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A). He moved to suppress the cocaine on the ground that it was seized
during a traffic stop that was unreasonable in its duration and that his
subsequent consent to search the vehicle was invalid. After a hearing, the
district court denied the motion. The case proceeded to trial and the jury
returned a guilty verdict. Sierra was sentenced to 121 months of imprisonment.
Sierra appeals, challenging the denial of his motion to suppress and raising
various voir dire and trial evidentiary issues.
II. STANDARDS OF REVIEW
Upon reviewing a district court’s ruling on a motion to suppress evidence
under the Fourth Amendment, this court reviews its factual determinations for
clear error and the ultimate Fourth Amendment conclusions de novo. United
States v. Brigham, 382 F.3d 500, 506 n.2 (5th Cir. 2004) (en banc) (citing United
States v. Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003)). The evidence is
considered in a light most favorable to the prevailing party. Id. (citing Gonzales,
328 F.3d at 758). This court reviews a district court’s conduct of voir dire for
abuse of discretion. United States v. Munoz, 150 F.3d 401, 412 (5th Cir. 1998)
(citing United States v. Rasco, 123 F.3d 222, 231 (5th Cir. 1997)). This court also
reviews a district court’s evidentiary rulings for abuse of discretion. United
States v. Sosa, 513 F.3d 194, 200-01 (5th Cir. 2008) (citing United States v.
Griffin, 324 F.3d 330, 347 (5th Cir. 2003); United States v. Mendoza-Medina, 346
F.3d 121, 127 (5th Cir. 2003)). “A trial court abuses its discretion when its
ruling is based on an erroneous view of the law or a clearly erroneous
assessment of the evidence.” Id. (quoting United States v. Ragsdale, 426 F.3d
765, 774 (5th Cir. 2005)). “[O]ur review of evidentiary rulings in criminal trials
is heightened.” Id. (citing Mendoza-Medina, 346 F.3d at 127; United States v.
Anderson, 933 F.2d 1261, 1268 (5th Cir. 1991)).
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No. 07-31021
III. ANALYSIS
A. Fourth Amendment Issues
Sierra challenges both the legality of the investigatory stop and his
consent to search the vehicle. We address each in turn. The legality of an
investigatory stop is tested in two parts. First, this court examines whether the
officer’s actions were justified at the inception of the stop. Brigham, 382 F.3d at
506. Second, this court examines whether the officer’s subsequent actions were
reasonably related in scope to the circumstances that justified the stop. Id.
(citing Terry v. Ohio, 392 U.S. 1, 19-20 (1968)). The legality of the initial stop is
not in dispute in this case. Thus, we focus solely on whether the subsequent
actions by the officers were reasonably related in scope to the circumstances to
justify Sierra’s continued detention.
“[A] detention must be temporary and last no longer than is necessary to
effectuate the purpose of the stop, unless further reasonable suspicion,
supported by articulable facts, emerges.” Id. at 507 (citing United States v.
Dortch, 199 F.3d 193, 200 (5th Cir. 1999); United States v. Machuca-Barrera, 261
F.3d 425, 434 (5th Cir. 2001)). This court has found no constitutional
impediment to an officer requesting to examine a driver’s license, vehicle
registration, or rental papers, run computer checks, ask about the purpose and
itinerary of the trip, and even inquire about subject matters unrelated to the
purpose of the stop. Id. at 507-08 (citations omitted). An officer may also
temporarily detain a person for investigatory purposes if the officer has
reasonable suspicion supported by articulable facts that criminal activity “may
be afoot.” See United States v. Sokolow, 490 U.S. 1, 7 (1989). The suspicion
required to justify such a detention need not rise to the level of probable cause
but must be based on more than an un-particularized suspicion or hunch. Id.
In determining whether reasonable suspicion exists, this court focuses on the
totality of the circumstances and considers the collective knowledge and
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No. 07-31021
experience of the officers involved. United States v. Holloway, 962 F.2d 451, 459
& n.22 (5th Cir. 1992).
If the computer check comes back clean, then, as a general matter,
reasonable suspicion disappears and there is no legitimate reason for extending
the stop. United States v. Lopez-Moreno, 420 F.3d 420, 431 (5th Cir. 2005). “A
recognized exception to this rule is that 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.” Id. Thus, “[i]t is not the duration of time, but the
quantity of evidence, that determines whether reasonable suspicion survives the
officer’s background check.” United States v. Jensen, 462 F.3d 399, 406 n.7 (5th
Cir. 2006). If there is no reasonable suspicion to continue the detention once the
computer check comes back clean, then “a constitutional violation occur[s] the
moment the detention continue[s] past that point.” Id.; see also Brigham, 382
F.3d at 510 (“[A]fter the computer checks came up ‘clean,’ [and] there remain[s]
no reasonable suspicion of wrongdoing by the vehicle occupants. . . . [c]ontinued
questioning thereafter unconstitutionally prolonged the detentions.”).
Here, once the computer check came back clean, instead of immediately
releasing Sierra, Deputy Womack continued to detain Sierra, hold his
documents, and initiate a second round of questioning.2 The Fourth Amendment
requires reasonable suspicion of criminal activity to do so. Nervousness alone
is insufficient to create reasonable suspicion of criminal activity. United States
v. Portillo-Aguirre, 311 F.3d 647, 656 n.49 (5th Cir. 2002). However, the
government argues that Deputy Womack had reasonable suspicion to continue
2
The parties rely, in part, on TFA Newman’s trial testimony to clarify what occurred
during the stop. However, this court’s “review is limited to the evidence at the suppression
hearing.” United States v. Moorberry, 732 F.2d 390, 400 n.13 (5th Cir. 1984). Thus, we rely
solely on the evidence as it was presented at the suppression hearing.
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No. 07-31021
the detention because Sierra’s nervousness was coupled with (1) the presence of
snack foods, (2) maps of known drug trafficking border towns, (3) inconsistent
responses to questions, and (4) smirking when asked about “coca.” However,
only the first two facts arose before the initial purpose of the stop had been
fulfilled. Because the remaining two facts arose afterwards, we do not consider
them when determining whether Deputy Womack had reasonable suspicion to
continue the detention. See Jensen, 462 F.3d at 404 (refusing to consider facts
that did not arise “before the initial purpose of the stop [had] been fulfilled”).
Although we have doubts that the mere presence of snack foods, which most
likely accompany any road trip, is indicative of criminal activity, it is undisputed
that upon bringing Sierra back to the police unit and prior to the fulfillment of
the initial purpose of the stop, TFA Newman observed the McAllen-Edinburg
maps in plain view on the passenger seat of the vehicle. We agree that the
presence of maps of popular drug trafficking border towns not included in a
driver’s expressed itinerary coupled with nervousness creates reasonable
suspicion of criminal activity. Accordingly, based on the collective knowledge of
Deputy Womack and TFA Newman, we conclude that there was reasonable
suspicion to continue Sierra’s detention and that Sierra’s Fourth Amendment
rights were not violated. See United States v. Waldrop, 404 F.3d 365, 369-70
(5th Cir. 2002) (holding the collective knowledge doctrine applies when the
relevant officers are present at the scene and there is “some general
communication between the officers”).
Sierra also challenges his consent to search the vehicle. To determine
whether consent was validly given, this court determines whether the consent
was voluntary, which, in turn, depends on the following factors:
(1) the voluntariness of the defendant’s custodial status; (2) the
presence of coercive police procedures; (3) the extent and level of the
defendant’s cooperation with the police; (4) the defendant’s
awareness of his right to refuse consent; (5) the defendant’s
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No. 07-31021
education and intelligence; and (6) the defendant’s belief that no
incriminating evidence will be found.
Jensen, 462 F.3d at 406 (quoting United States v. Jones, 234 F.3d 234, 242 (5th
Cir. 2000)).3 The government bears the burden of proof and this court reviews
the district court’s finding of voluntariness for clear error. Id. (citing United
States v. Shabazz, 993 F.2d 431, 438 (5th Cir. 1993)). Here, the district court
concluded that consent was voluntary because (1) Sierra was in the process of
returning to his vehicle, (2) Sierra cooperated during the stop, (3) Sierra most
likely did not believe that any incriminating evidence would be found because
the cocaine was located in a very remote spot, (4) the consent form clearly
informed Sierra of his right to refuse consent, and (5) there is no evidence that
Sierra was particularly unintelligent. The district court clearly erred in finding
that Sierra was in the process of returning to his vehicle when Deputy Womack
sought consent to search the vehicle. Instead, Deputy Womack testified that
when he sought consent to search the vehicle, he and TFA Newman were
questioning Sierra for a third time, inquiring about the presence of illegal items
in the vehicle. Although a “consensual interrogation can follow the end of a valid
traffic stop,” United States v. Sanchez-Pena, 336 F.3d 431, 442 (5th Cir. 2003),
“a statement by a law enforcement officer that an individual is suspected of
illegal activity is persuasive evidence that the fourth amendment has been
implicated.” United States v. Gonzales, 79 F.3d 413, 420 (5th Cir. 1996) (citing
United States v. Valdiosera-Godinez, 932 F.2d 1093, 1099 (5th Cir. 1993)). Given
that Deputy Womack and TFA Newman were questioning Sierra for a third
time, specifically inquiring about the presence of illegal items, the first two
factors, voluntariness of defendant’s custodial status and presence of coercive
3
Because the investigative stop was constitutional, we need not determine whether
Sierra’s consent to search the vehicle was an “independent act of free will.” See United States
v. Khanalizadeh, 493 F.3d 479, 484 (5th Cir. 2007) (citing Jenson 462 F.3d at 407).
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No. 07-31021
police procedures, weigh more in Sierra’s favor than the district court might
have recognized. Nonetheless, given that the remaining factors tend to support
the district court’s finding of voluntariness, we agree that the district court did
not clearly err in its ultimate conclusion that consent was voluntary.
B. Voir Dire Issue
During voir dire, several jurors -- some unidentified in the record --
spontaneously expressed their view that an arrest could signify guilt. The
district court then explained:
You all earlier on said just because he’s indicted that didn’t mean he
was guilty. So, that would mean what you’re saying is every arrest,
why do we have a trial? Every arrest is then you’re guilty. So, then
you don’t believe in the presumption of innocence and if you really
don’t believe that you need to say that and you’ll be challenged for
cause. So, you need to be honest, and if you don’t believe that, if you
don’t believe people are presumed innocent until proved guilty by
evidence, you need to stand up and say that, and if you honestly
believe it under oath, then that’s a reason for you not to be on this
jury. It’s as simple as that. So, if you do not believe in the
presumption of innocence, stand up.
According to the record, no juror stood up. Defense counsel did not raise any
objections to the district court’s corrective measure; nor did he make any further
inquiries into the matter. On appeal, however, Sierra argues that the district
court’s corrective measure was inadequate because there is a strong possibility
that potentially biased veniremen ended up on the panel. “Absent an abuse of
discretion and showing that the rights of the accused have been prejudiced
thereby, the scope and content of voir dire will not be disturbed on appeal.”
United States v. Garcia-Flores, 246 F.3d 451, 458 (5th Cir. 2001) (quoting United
States v. Black, 685 F.2d 132, 134 (5th Cir. 1982)); see also United States v.
Armendariz-Mata, 949 F.2d 151, 156 (5th Cir. 1991) (“If the overall conduct of
voir dire protects a defendant’s rights, the trial court’s actions will be upheld.”).
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No. 07-31021
Here, Sierra’s contention that the district court’s corrective measure was
inadequate is based on pure speculation as he cannot identify a single biased
veniremen that ended up on panel. Moreover, the district court adequately
explained to the veniremen that if they believe an arrest is evidence of guilt,
then they do not believe in the presumption of innocence and cannot sit on the
panel. It then instructed any member to standup if they did not believe in the
presumption of innocence. No member did so. A district court is in the best
position to evaluate the reaction of the jury panel. Id. Sierra’s argument that
the district court could have adopted a more effective curative measure by
conducting individualized voir dire does not establish that the district court’s
choice of curing any confusion constitutes an abuse of discretion. In short, we
agree that the district court did not abuse its discretion in the manner in which
it conducted voir dire.
C. Evidentiary Issue
Sierra’s defense at trial was based on his alleged lack of knowledge about
the cocaine in his rental vehicle. At trial, TFA Newman testified that (1) Sierra
had maps of the McAllen-Edinburg area, which, according to TFA Newman, is
a popular drug trafficking area; (2) people like Sierra with no criminal histories
are often sought to transport drugs; (3) the cocaine was covered with masking
agents often used to avoid detection; and (4) Sierra had a boost phone, which,
according to TFA Newman, is a type of prepaid cell phone often used by drug
dealers because they are essentially untraceable.4
Sierra did not oppose any of this testimony at trial.5 Thus, we review its
admission for plain error only. See United States v. Espino-Rangel, 500 F.3d
4
Deputy Womack also testified about the McAllen-Edinburg area and Special Agent
Chad Scott reinforced the point about boost phones.
5
Defense counsel did inform the district court that the TFA Newman was “getting very
close to giving opinions here and he hasn’t been qualified as an expert,” but he never lodged
a formal objection.
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No. 07-31021
398, 399 (5th Cir. 2007); Fed. R. Evid. 103(d). To prove plain error, Sierra must
satisfy three elements: (1) an error, (2) that is clear and obvious, and (3) that
affects substantial rights. See United States v. Reyna, 358 F.3d 344, 350 (5th
Cir. 2004). If Sierra meets these criteria, this court has discretion to correct the
error and will do so if it seriously affects the “fairness, integrity, or public
reputation of judicial proceedings.” Id. “[E]ven if we were to find the existence
of plain error, we could find it harmless if there is sufficient evidence, aside from
any potentially impermissible testimony, from which the jury could find the
Defendant[] guilty.” Espino-Rangel, 500 F.3d at 400 (citing United States v.
Guiterrez-Farias, 294 F.3d 657, 663-64 (5th Cir. 2002)).
Sierra argues that the aforementioned testimony constitutes expert
testimony and that the district court abused its discretion by permitting it
without first qualifying TFA Newman as an expert under Rule 701 of the
Federal Rules of Evidence. That Rule provides:
If the witness is not testifying as an expert, the witness’ testimony
in the form of opinions or inferences is limited to those opinions or
inferences which are (a) rationally based on the perception of the
witness, and (b) helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue, and (c) not based
on scientific, technical, or other specialized knowledge within the
scope of Rule 702.
Fed. R. Evid. 701. “[T]he distinction between lay and expert witness testimony
is that lay testimony ‘results from a process of reasoning familiar in everyday
life,’ while expert testimony ‘results from a process of reasoning which can be
mastered only by specialists in the field.’” United States v. Sosa, 513 F.3d 194,
200 (5th Cir. 2008) (quoting Fed. R. Evid. 701, Advisory Committee Notes to
2000 Amendments). “[A] lay opinion must be the product of reasoning processes
familiar to the average person in everyday life.” Id. (quoting United States v.
Garcia, 413 F.3d 201, 215 (2d Cir. 2005)). “[A]ny part of a witness’s opinion that
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No. 07-31021
rests on scientific, technical, or specialized knowledge must be determined by
reference to Rule 702, not Rule 701.” Id. (citing Garcia, 413 F.3d at 215).
The district court did not commit reversible error by permitting TFA
Newman’s testimony without first requiring his qualification as an expert. Even
assuming arguendo that the district court committed an error, the error did not
affect Sierra’s substantial rights. For an error to affect a defendant’s substantial
rights, “the error must have been prejudicial: It must have affected the outcome
of the district court proceedings.” United States v. Olano, 507 U.S. 725, 734
(1993). “To meet this standard the proponent of the error must demonstrate a
probability ‘sufficient to undermine confidence in the outcome.’” United States
v. Mares, 402 F.3d 511, 521 (5th Cir. 2005) (quoting United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004)). In addition to the fact that Sierra was found
driving a rental car containing cocaine, his cell mate testified that Sierra stated
that he (1) sells drugs, (2) “almost got away” on this particular occasion, and (3)
specifically used rental cars to “look the least conspicuous.” Also, according to
the trial testimony, Sierra (1) was extremely nervous during the traffic stop, (2)
gave inconsistent answers, (3) refused to explain why he had maps of the
McAllen-Edinburgh area of Texas when it was not on his expressed itinerary, (4)
smirked when asked about “coca,” and (5) jumped when the officers began
searching the bumper of the vehicle where the cocaine was found, prompting
Deputy Womack to ask Sierra if anything was wrong. Finally, the mileage on
the rental car was more consistent with a drive from McAllen as opposed to
Houston, Texas, from where Sierra stated he was driving. Thus, there was more
than sufficient evidence, even setting aside from TFA Newman’s challenged
testimony, from which a reasonable jury could have found Sierra guilty.
Accordingly, Sierra has not shown that the district court’s alleged error affected
his substantial rights.
IV. CONCLUSION
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For the foregoing reasons, we affirm the district court’s denial of the
motion to suppress and the judgment of conviction.
AFFIRMED.
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