United States v. Vazquez , 253 F. App'x 365 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 6, 2007
No. 06-51041 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN ANTONIO VAZQUEZ
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:05-CR-500-2
Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Juan Antonio Vazquez (“Appellant”) appeals his conditional guilty plea
conviction for “Conspiracy to Distribute and Possess With Intent to Distribute
Cocaine” in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. In agreeing
to plead guilty, Vazquez reserved the right to appeal the district court’s denial
of his motion to suppress, which he filed jointly with his co-defendant, Erasmo
Perez-Leyva (“Leyva”). Vazquez now appeals the district court’s suppression
ruling. For the following reasons, we affirm.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 06-51041
I. BACKGROUND
At 11:36 a.m. on July 21, 2005, Texas Department of Public Safety (“DPS”)
Trooper Lucian Ebrom made a traffic stop of a Lincoln automobile, in which
Appellant was a passenger and Leyva was the driver.1 Trooper Ebrom had
noticed the vehicle driving on the improved shoulder of Interstate Highway 35,
failing to maintain a single lane of traffic, and constituting a hazard to other
traffic on the roadway, in violation of sections 545.058 and 545.060 of the Texas
Transportation Code.2
Once the Lincoln was stopped, Ebrom exited his police car, walked to the
rear of the Lincoln, and knocked on the trunk. Prompted by Ebrom, the driver,
Leyva, exited the vehicle, and both men proceeded to an area on the shoulder of
the highway, near the rear bumper of the vehicle. Ebrom informed Leyva that
he had been swerving back and forth on the roadway and asked him if he had
been drinking. Leyva answered “no” and immediately volunteered that he was
just coming from Laredo. Ebrom then asked Leyva what he was doing in
Laredo, and Leyva responded that his brother-in-law (Vazquez) was working
down there. Ebrom then asked Leyva for identification, which Leyva produced.
As Leyva produced his identification, his right hand was shaking, and Ebrom
asked if there was anything wrong and why Leyva was nervous. He again asked
whether Leyva had been drinking. By this time, DPS Trooper Fred Ogden, Jr.
had arrived at the scene, and Trooper Ebrom asked him to talk to the passenger,
Vazquez.
1
The entire stop was visually recorded by a camera mounted in Trooper Ebrom’s police
car, which was activated when Ebrom turned on his overhead emergency lights to pull over the
Lincoln.
2
Trooper Ebrom testified: “I observed [the vehicle] swerve onto the improved shoulder
of the solid white line with both right-side tires. The vehicle then swerved back into its lane
and then swerved back across the center stripe and traveled on the center stripe for a short
period of time. It repeated this action – I believe in my report at least three times.”
2
No. 06-51041
At 11:38 a.m., Ebrom asked Leyva how long they were in Laredo, and
Leyva responded “three days . . . yeah Friday.” Ebrom then questioned how that
could be correct since it was already Thursday. Leyva was unable to account for
the inconsistency and also stated that the purpose of the trip was to visit his
father.
At 11:40 a.m., Ebrom left Leyva and joined Ogden, who was questioning
Vazquez. Ebrom opened the driver’s side door of the Lincoln and put his head
in the car, allegedly to better hear the conversation between Ogden and
Appellant. Ebrom and Ogden then conferred and discovered various
inconsistencies in Leyva’s and Vazquez’s stories. Ogden informed Ebrom that
Vazquez claimed that the purpose of the Laredo trip was to “drop off his step-
daughter” and that they arrived in Laredo the previous day.
At 11:42 a.m., Ebrom returned to Leyva and proceeded to ask him about
the Laredo trip. Leyva again stated that they were in Laredo for three days,
they stayed at the home of Leyva’s sister, and they did not bring anyone else
with them to Laredo. When Ebrom continued to ask Leyva about the
inconsistency of leaving Friday and only spending three days in Laredo, Leyva
changed his previous story and stated that they had left for Laredo on Monday.
Ebrom then informed Leyva that he was going to write him a couple of warnings.
Ebrom also commented again on the shakiness of Leyva’s hands.
Troopers Ebrom and Ogden then re-approached Vazquez at 11:45 a.m. and
questioned him further to confirm his version of the itinerary.3 Vazquez stated
that they left for Laredo on Tuesday morning, arrived in Laredo on Wednesday,
and stayed the night at a Motel 9 in Laredo.
At 11:47 a.m., Ebrom radioed the dispatcher and requested information
on Leyva and Vazquez. After receiving the returns of information from the
3
Trooper Ogden conducted the conversation in Spanish, as Vazquez allegedly did not
understand or speak English.
3
No. 06-51041
dispatcher, Ebrom and Ogden re-approached Leyva at 11:50 a.m. Ebrom began
writing Leyva a warning citation for Leyva’s traffic offenses and asked Leyva to
look at him without his glasses on.4 Ebrom then stopped writing the citation and
proceeded to question Leyva as to whether he was carrying anything illegal,
which Leyva repeatedly denied. At 11:51 a.m., Ebrom asked Leyva for
permission to search the vehicle and all its compartments. Leyva responded “go
ahead” but also informed Ebrom that the car belonged to Vazquez.
Ebrom and Ogden then approached Vazquez and asked him (in Spanish)
whether there was anything illegal in the car, which Vazquez denied. Ogden
then asked Vazquez for consent to search the car. Vazquez gave consent and,
according to Ogden, did not hesitate in any way.
Ebrom then returned to Leyva and resumed writing the warning. When
Ebrom finished, he gave the warning citation to Leyva to sign. Leyva signed and
returned the warning with shaking hands. Ebrom again questioned Leyva about
his shaking hands.
At 11:55 a.m., Ebrom went to his patrol vehicle and made a radio request
for a canine unit. Ebrom and Ogden then patted down Leyva and Vazquez and
commenced searching the vehicle at 11:57 a.m. At no time during the search of
the vehicle did Leyva or Vazquez seek to withdraw their consent to search nor
did they attempt to limit the search in any way. At 12:12 p.m., Ogden located
a package of cocaine hidden in the air breather compartment of the engine.
Leyva and Vazquez were subsequently handcuffed, placed under arrest, and
read their Miranda rights.
II. STANDARD OF REVIEW
In reviewing a district court’s denial of a motion to suppress evidence
under the Fourth Amendment, we review findings of fact for clear error and
4
Ebrom testified that he wanted to look at Leyva’s eyes to “confirm his story about him
not having anything to drink.”
4
No. 06-51041
conclusions of law de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996).
We review the evidence “in the light most favorable to the prevailing party”–in
this case the Government. United States v. Santiago, 310 F.3d 336, 340 (5th Cir.
2002).
III. DISCUSSION
A.
We treat routine traffic stops as Terry stops. United States v. Brigham,
382 F.3d 500, 506 (5th Cir. 2004) (en banc). Pursuant to Terry, we employ a two-
part test to determine the legality of police investigatory stops. Id. First, we
examine “whether the officer’s action was justified at its inception.” Id. Second,
we then inquire “whether the officer’s subsequent actions were reasonably
related in scope to the circumstances that justified the stop.” Id. Importantly,
a detention “may last no longer than required to effect the purpose of the stop.”
United States v. Jenson, 462 F.3d 399, 404 (5th Cir. 2006).
As a primary matter, Appellant admits that Trooper Ebrom’s initial stop
was lawful. Appellant argues, however, that Ebrom’s and Ogden’s actions and
questioning during the traffic stop were not reasonably related to the
circumstances that justified the stop–e.g., the traffic violations and suspicions
regarding driving while intoxicated–and, therefore, consent to search the vehicle
was given at a time when Leyva and Vazquez were illegally detained.
Appellant first contends that the Troopers’ questioning regarding Leyva
and Appellant’s itinerary and travel plans before the initiation of a computer
check was impermissible. Ebrom’s and Ogden’s actions in this regard, however,
were plainly proper. An officer may “ask about the purpose and itinerary of a
driver’s trip during the traffic stop,” as such inquiries are “within the scope of
investigation attendant to the traffic stop.” Brigham, 382 F.3d at 508. An officer
may also “undertake similar questioning of the vehicle’s occupants to verify the
information provided by the driver.” Id. (internal quotations omitted).
5
No. 06-51041
Furthermore, such questioning can occur before initiation of a computer check.
Id. at 511 (“[N]either our prior cases nor any other case law of which we are
aware institutes a per se rule requiring an officer immediately to obtain the
driver’s license and registration information and initiate the relevant
background checks before asking questions.”).
Ebrom’s questioning–from the time questioning began until Trooper
Ebrom called dispatch to get information on Leyva and Vazquez–lasted only
approximately ten minutes. See id. at 509 (holding that similar questioning for
a period of seven minutes before checking registration and identification was
permissible).5 As in Brigham, these questions undeniably extended the stop a
few minutes, but the process “required as long as it did for reasons beyond
[Ebrom]’s control”–Leyva and Vazquez’s inconsistencies “created suspicion,
requiring further detective efforts by [Ebrom].”6 Id. at 510. Thus, Ebrom’s
actions constituted a “graduated response to emerging facts.”7 Id. at 509.
5
For reasons explained infra, Trooper Ebrom had reasonable suspicion of other criminal
activity before he initiated the computer check–most likely at approximately 11:42 a.m. At the
very least, Ebrom’s questions regarding purpose and itinerary for the five minutes between
the start of questioning and the development of reasonable suspicion were permissible under
Brigham.
6
Appellant argues that Brigham is distinguishable because the suspicions of the officer
in Brigham were aroused immediately by the fact that the driver of the vehicle was not the
lessee and that the lessee was not in the vehicle. The Court, however, stated unequivocally
that an officer may “ask about the purpose and itinerary of a driver’s trip during the traffic
stop.” 382 F.3d at 508. Furthermore, the Court stated that the officer’s questions during the
seven minutes “effectuated the purpose of the [initial] stop.” Id. at 509. Thus, the officer’s
initial questioning regarding purpose and itinerary in Brigham was permissible, irrespective
of any reasonable suspicion developed during the stop. This is indistinguishable from the case
at hand.
7
Appellant claims that Ebrom’s and Ogden’s actions were impermissible because they
routinely questioned motorists about their trip’s purpose and itinerary–often upwards of ten
minutes–regardless of the reason for the stop. However, as discussed, Ebrom’s and Ogden’s
actions in this case were permissible, and “courts may not scrutinize the motives behind
otherwise permissible police actions.” Brigham, 382 F.3d at 510 (citing Whren v. United States,
517 U.S. 806, 811-13 (1996)).
6
No. 06-51041
Second, Appellant contends that Ebrom’s continued interrogation after
Leyva’s and Appellant’s information came back clean from dispatch was
impermissible and constituted an unlawful detention. However, long before this
point in the traffic stop, Ebrom had reasonable suspicion that “criminal activity
may be afoot.” Terry v. Ohio, 392 U.S. 1, 30 (1968).
Generally, “once all relevant computer checks have come back clean, there
is no more reasonable suspicion, and . . . continued questioning thereafter
unconstitutionally prolongs the detention.” United States v. Lopez-Moreno, 420
F.3d 420, 431 (5th Cir. 2005). A recognized exception to this general 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.In determining whether reasonable suspicion exists in certain
circumstances, courts “must look at the ‘totality of the circumstances’ of each
case to see whether the detaining officer has a ‘particularized and objective basis’
for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273
(2002). In doing so, courts must be careful to allow “officers to draw on their own
experience and specialized training to make inferences from and deductions
about the cumulative information available to them that might well elude an
untrained person.” Id. (internal quotations omitted).
Here, it is clear that Trooper Ebrom had reasonable suspicion of legal
wrongdoing that justified extension of the initial traffic stop. Specifically, the
“particularized and objective basis” for reasonable suspicion consisted of: (1)
Leyva’s nervous demeanor; (2) the glaring and unresolvable inconsistencies in
the stories given by Leyva and Vazquez; (3) Leyva’s internally inconsistent
answers regarding the travel itinerary, including the fact that he changed his
story about their date of departure to Laredo; (4) the fact that Leyva and
Vazquez were traveling from Laredo, a town on the border of Mexico and the
7
No. 06-51041
United States;8 and (5) the fact that–based on Leyva’s erratic driving–Ebrom
had reasonable suspicion that Leyva was intoxicated from alcohol or drugs.
Thus, even if Ebrom did extend the initial stop by asking Leyva and Vazquez
questions after the computer check came back clean, such extension was justified
by reasonable suspicion that arose “in the course of the stop and before the
initial purpose of the stop ha[d] been fulfilled.”9 Lopez-Moreno, 420 F.3d at 431.
Contrary to the arguments of Appellant, and the fears of the district court,
this analysis is not in tension with United States v. Santiago, 310 F.3d 336 (5th
Cir. 2002), United States v. Jones, 234 F.3d 234 (5th Cir. 2000), or United States
v. Dortch, 199 F.3d 193 (5th Cir. 1999). First, as explained in Brigham, these
cases do not prevent an officer from asking a driver and the vehicle’s occupants
questions about the purpose and itinerary of their trip before initiating a
computer check. 382 F.3d at 510. In fact, in Santiago and Jones, the officers
“interrogated the drivers and their passengers before initiating the relevant
computer checks, and this court did not criticize the order of investigation.” Id.at 511 n.12. Second, Santiago, Jones, and Dortch are distinguishable because
the Court in these cases determined that no reasonable suspicion existed to
prolong the stop after the computer checks came back clean–specifically, the
Court in these cases determined that nervousness and inconsistencies in stories
8
This factor is relevant because Mexico is “a common origin of illicit drugs,” United
States v. Estrada, 459 F.3d 627, 632 (5th Cir. 2006) (internal quotations omitted), and Laredo
is a “known source of drugs” for parts of Texas, Ramon v. Texas, No. 05-00-00587-CR, 2001 WL
761809, at *3 (Tex. App. July 9, 2001) (not designated for publication). Cf. United States v.
Brignoni-Ponce, 422 U.S. 873, 884-85 (1975) (permitting border patrol agents to consider “the
characteristics of the area in which they encounter a vehicle” and the vehicle’s “proximity to
the border” in determining whether reasonable suspicion exists to stop a vehicle); Estrada, 459
F.3d at 632 (taking into account a vehicle’s recent border crossing in determining reasonable
suspicion).
9
Ebrom certainly had such reasonable suspicion before the initiation of the computer
check, most likely as early as approximately 11:42 a.m. It was at this point that Ebrom
became aware of the glaring and unresolvable inconsistencies between Leyva and Vazquez’s
stories, and the other factors giving Ebrom reasonable suspicion already existed by this time.
8
No. 06-51041
by themselves were not enough to create reasonable suspicion of legal
wrongdoing. See Santiago, 310 F.3d at 342 (holding that nervousness and the
conflicting statements of the passenger and driver did not constitute reasonable
suspicion for the officer to continue his interrogation after the computer checks
came back clean); Jones, 234 F.3d at 241-42 (finding that inconsistent answers,
contradictory responses, and acknowledgment of a previous arrest on a crack-
cocaine charge was not enough to give the officer reasonable suspicion to detain
the passenger and driver after the computer check came back clean); Dortch, 199
F.3d at 199 (holding that nervousness, inconsistencies in story, and the
defendant’s absence as an authorized driver on the rental agreement did not
provide reasonable suspicion to prolong the traffic stop after the computer check
came back clean). In the case at hand, however, as explained above, there is
additional evidence supporting reasonable suspicion–namely that Leyva and
Vazquez were coming from a town on the border of the United States and Mexico
and that Ebrom had suspicions that Leyva was potentially intoxicated from
alcohol or drugs at the time he stopped Leyva.10 This information, in
combination with Leyva’s nervousness and the inconsistencies in Leyva and
Vazquez’s story, was plainly enough to create reasonable suspicion to justify the
continued questioning of Leyva and Vazquez after the computer check. See
United States v. Rodriguez-Flores, No. 06-60801, 2007 WL 2695623, at *5 (5th
Cir. Sept. 11, 2007) (holding that evidence of the defendant’s lies regarding his
itinerary and arrest record plus the fact that the vehicle had recently crossed the
border from Mexico amounted to reasonable suspicion of criminal activity).
10
Although the district court found reasonable suspicion based only on Leyva and
Appellant’s “conflicting stories” and “Leyva’s nervous behavior,” a conclusion regarding
reasonable suspicion is a question of law, which this Court reviews de novo. See United States
v. Jaime, 473 F.3d 178, 181 (5th Cir. 2006) (“To the extent the underlying facts are undisputed
we may resolve questions such as probable cause and reasonable suspicion as questions of
law.”). Thus, this Court’s determination that additional facts in the record support a finding
of reasonable suspicion is permissible.
9
No. 06-51041
Consequently, Ebrom obtained consent to search the vehicle during a time
in which Appellant and Leyva were lawfully detained.
B.
Appellant further argues that even if Leyva and Vazquez were not
unlawfully detained at the time consent to search was given, the consent was
ineffective because it was (1) involuntarily given and (2) not an independent
act of free will. We find, however, that consent to search the vehicle was
voluntarily given and an independent act of free will for essentially the same
reasons stated by the district court.11
IV. CONCLUSION
For the foregoing reasons, the ruling of the district court is AFFIRMED.
11
The district court seemingly only analyzed Leyva’s consent to search the vehicle.
Appellant argues that the troopers did not search the vehicle based on Leyva’s consent, but
instead relied on Appellant’s subsequent consent to do so. Even if Appellant is correct, the
analysis with respect to Appellant’s consent is essentially the same.
10