United States v. Rodriguez-Flores ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS September 11, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 06-60801
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HERIBERTO RODRIGUEZ-FLORES,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
No. 2:05-CR-00021-KS-JMR
Before DENNIS, CLEMENT and PRADO, Circuit Judges.
Per Curiam:*
Heriberto Rodriguez-Flores (“Flores”) was convicted of
possession with intent to distribute more than fifteen kilograms
of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Flores
argues that the district court erred by denying his motion to
suppress evidence discovered during a roadside search of his
vehicle. For the reasons that follow, we affirm the judgment of
*
Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
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the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
On the night of June 27, 2005, Officer Stan Livingston
(“Livingston”) of the Laurel Police Department was positioned on
the side of Interstate 59 operating a stationary radar. Shortly
before 10:30 p.m., Livingston observed a white Pontiac traveling
north in excess of the speed limit. At 10:28 p.m., Livingston
pulled over the vehicle, of which Flores was the driver and only
occupant. Livingston approached the passenger side of the
vehicle, informed Flores that he had been speeding, and requested
his driver’s license. Flores produced a Florida driver’s license.
Livingston asked Flores about his itinerary, and Flores responded
that he was coming from Tampa, Florida, and was traveling to
Atlanta, Georgia. Livingston testified that this response made
him suspicious, as Interstate 59 in Mississippi was hardly the
most direct route between Tampa, Florida, and Atlanta, Georgia.
Livingston asked Flores to exit and walk to the rear of the
vehicle. Livingston patted Flores down and again queried him
about his itinerary. Flores then responded that he was coming
from Guadelajara, Mexico, and going to Atlanta, Georgia. Flores
stated that he had crossed the border that morning. Livingston
also asked Flores if he had ever been arrested, and Flores stated
that he had not. Livingston testified that Flores was responsive
to his questions and was able to communicate in English.
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Livingston then returned to his patrol car to check Flores’s
information through the Blue Lightning Operations Center (BLOC).
BLOC is a system by which police can obtain information about
outstanding warrants, criminal history, and also recent border
crossings. The BLOC search, which took about six minutes to
perform, did not turn up any outstanding warrants for Flores. It
did reveal that Flores had prior arrests for driving while
intoxicated and either assault or shoplifting, and also that
Flores had actually crossed the Mexican border late at night on
the prior day.
Livingston then resumed questioning Flores. He asked where
Flores went after crossing the border, and Flores stated that he
had visited his brother in Texas. Livingston also inquired again
whether Flores had been arrested, and Flores again said he had
not. Livingston then specifically asked if Flores had been
arrested for driving under the influence, and Flores admitted
that arrest. Livingston then asked, in succession, whether Flores
had any marijuana, cocaine, heroin, or methamphetamine. Flores
responded no and shook his head to each question, except that
when asked about methamphetamine he only laughed. Livingston
testified that this behavior increased his suspicion. Livingston
asked Flores whether he objected to Livingston searching the
vehicle, and Flores responded “no” and “check it.” Livingston
then retrieved his drug-detecting dog from the patrol car and ran
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the dog around the vehicle. Livingston testified that his dog
alerted to the vehicle. Livingston again asked Flores whether
there were drugs in the vehicle, and Flores again said no.
Livingston then called his partner for backup.
Livingston began to inspect the vehicle. Shining his
flashlight in from the passenger side door, Livingston noticed
that the bolts holding the back seat had been “tooled numerous
times.” When Livingston’s partner arrived, the two began a
systematic search of the vehicle. After about ten minutes, the
officers began to focus on the cargo area of the vehicle, where
at approximately 10:55 p.m. they discovered hidden compartments
on the left and right sides near the spare tire. The compartments
were covered by a panel that was riveted closed, sealed with
silicone and coated with adhesive and fresh paint. It took the
officers about fifteen to eighteen minutes to open the
compartments, inside of which they discovered numerous packages.
At this point, the officers placed Flores in handcuffs and
advised him of his Miranda rights. The officers contacted the
narcotics department. When the narcotics investigators arrived,
they transported Flores’s vehicle to a station where the packages
were removed. The officers found thirty-nine packages containing
68.75 pounds of a substance containing methamphetamine.
In a July 13, 2005 indictment, Flores was charged with
possession with intent to distribute more than fifteen grams of a
substance containing methamphetamine, in violation of 21 U.S.C.
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§ 841(a)(1). Flores filed a motion to suppress the drugs found in
his vehicle during the June 27, 2005 traffic stop. Flores argued
that his detention was unlawfully prolonged in violation of the
Fourth Amendment and that he did not give voluntary consent to
the search of his vehicle. The district court denied Flores’s
motion from the bench, and an order reflecting that denial was
entered on February 24, 2006. Flores then pled guilty to count
one of the indictment, reserving his right to appeal the district
court’s denial of his motion to suppress. Flores was sentenced to
324 months imprisonment. Flores timely filed a notice of appeal.
II. JURISDICTION AND STANDARD OF REVIEW
This is an appeal from a final judgment of a United States
district court in a criminal case. Accordingly, this court has
jurisdiction under 28 U.S.C. § 1291.
When considering a ruling on a motion to suppress evidence,
we review questions of law de novo and findings of fact for clear
error. United States v. Castro, 166 F.3d 728, 731 (5th Cir. 1999)
(en banc). We view the evidence in the light most favorable to
the party that prevailed in the district court--in this case, the
government. Id.III. DISCUSSION
Flores makes three arguments on appeal. Flores contends that
his traffic stop was unlawfully extended in the absence of
reasonable suspicion. He further claims that his consent to
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Livingston’s request to search his vehicle was involuntary.
Flores also maintains that the search of his vehicle was
unsupported by probable cause.
A. Flores’s continued detention was based on reasonable
suspicion
The stopping of a vehicle and detention of its occupants
constitutes a “seizure” under the Fourth Amendment. United States
v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc). This
court examines the reasonableness of a traffic stop under the
standard for investigative detention announced in Terry v. Ohio,
392 U.S. 1 (1968). United States v. Sanchez-Pena, 336 F.3d 431,
436-37 (5th Cir. 2003). Terry held that “limited searches and
seizures are not unreasonable when there is a reasonable and
articulable suspicion that a person has committed a crime.”
United States v. Santiago, 310 F.3d 336, 340 (5th Cir. 2002).
Pursuant to Terry, we examine (1) whether the officer’s action
was justified at its inception, and (2) whether the officer’s
subsequent actions were reasonably related in scope to the
circumstances that justified the stop. Terry, 392 U.S. at 19–20;
Brigham, 382 F.3d at 506.
This court has held that requesting a driver’s license,
insurance papers, and vehicle registration and running computer
checks thereon are permissible actions reasonably related in
scope to a valid traffic stop for speeding. United States v.
Shabazz, 993 F.2d 431, 437 (5th Cir. 1993). This court has also
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held that, while they await the result of the computer check, the
police may question the vehicle occupants, even about subjects
unrelated to the reasons for the stop. Id. at 436 (noting that
“detention, not questioning, is the evil at which Terry’s second
prong is aimed”). We have further held that the police may
question the occupants before performing the computer check, so
long as the questioning is related to the reasons for the stop,
or to reasonable suspicions that subsequently arose. Brigham, 382
F.3d at 510-11 (noting that “[c]omputerized license and
registration checks are an efficient means to investigate the
status of the driver and his auto, but they need not be pursued
to the exclusion of, or in particular sequence with, other
efficient means”). We have repeatedly held, however, that “[i]f
all computer checks come back clean, then as a general matter
reasonable suspicion disappears, and there is no legitimate
reason for extending the stop.” United States v. Jenson, 462 F.3d
399, 404 (5th Cir. 2006); see also Santiago, 310 F.3d at 341-42(noting that “[o]nce the computer check is completed and the
officer either issues a citation or determines that no citation
should be issued, the detention should end and the driver should
be free to leave”); United States v. Jones, 234 F.3d 234, 241
(5th Cir. 2000); United States v. Dortch, 199 F.3d 193, 198 (5th
Cir. 1999).
If, however, “additional reasonable suspicion arises in the
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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.” United
States v. Lopez-Moreno, 420 F.3d 420, 431 (5th Cir. 2005). Thus,
under our caselaw, if the computer checks come back clean, the
officer must issue the citation, if a citation is being issued,
and then must immediately cease to detain the driver, unless
additional reasonable suspicion has arisen before or during the
period of the computer check. See Dortch, 199 F.3d at 200.
On appeal, Flores does not challenge the lawfulness of the
initial stop for speeding, but instead the legality of his
extended detention by Livingston. Moreover, it is clear under our
precedent that Livingston was entitled to run the computer checks
on Flores and, beforehand, to query him about his itinerary and
record. See Brigham, 382 F.3d at 510-11. The question therefore
narrows to whether Livingston’s detention of Flores after the
completion of the computer checks was justified by reasonable
suspicion.
“Reasonable suspicion exists when the detaining officer can
point to specific and articulable facts that, when taken together
with rational inferences from those facts, reasonably warrant the
search and seizure.” United States v. Estrada, 459 F.3d 627, 631
(5th Cir. 2006); see also United States v. Ibarra-Sanchez, 199
F.3d 753, 758 (5th Cir. 1999) (“Officers must base their
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reasonable suspicion on ‘specific and articulable facts,’ not
merely ‘inarticulate hunches’ of wrongdoing.”). Our determination
of whether reasonable suspicion existed must be based on the
totality of the circumstances and the collective knowledge and
experience of the officer or officers. Estrada, 459 F.3d at 631-
32.
Flores argues that at the time the computer checks were
completed, Livingston had not developed a reasonable suspicion to
justify Flores’s continued detention. Flores’s contention is
without merit. At the time that the computer checks on Flores
were completed, Livingston was aware that (1) Flores initially
told an implausible story of his itinerary, and subsequently
changed his story; (2) Flores had lied about his arrest record;
(3) Flores had lied about his time of entry into the United
States; and (4) Flores had recently crossed the border from
Mexico, a common origin of illicit drugs. These circumstances are
sufficient to create reasonable suspicion of drug trafficking.
The cases cited by Flores in which this court has held that
reasonable suspicion did not exist--Dortch, Jones, Santiago, and
Jenson--are distinguishable. In each of these cases, the
government argued that allegedly inconsistent statements of the
driver and passenger created reasonable suspicion. In Jones and
Jenson, however, this court questioned whether the answers were
genuinely inconsistent. In Jones, the court explained:
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As for the allegedly inconsistent statements about
Daniel’s job, they do not amount to reasonable suspicion
about drug trafficking. Daniel stated that he did some
promotional work and managing. But when asked about
Daniel’s work with the record company, Jones replied that
Daniel only did promotional work and no managing.
Nonetheless, whether Jones said that Daniel did not manage
is immaterial and does not raise any suspicions. Jones’s
statement merely shows that he does not know everything
about Daniel’s work other than promoting.
234 F.3d at 242. The court also noted that there was no real
inconsistency between the names given by the two men of their
place of employment. Id. at 241.
In Jenson, the government pointed to inconsistent answers
between Jenson, the driver, and Cotton, a passenger. The
government put on evidence that:
Gray [the police officer] again asked Jenson where he
worked, and he replied “Tommie and Cotton,” or
“Tommie-Cotton,” presumably referring to his construction
business with his uncle. Gray then asked Cotton where he
worked, and he replied that he was self-employed and that
his business did not have a name. Gray found the
discrepancy between the two answers suspicious.
462 F.3d at 403. This court concluded that it could not take this
exchange into consideration, because this conversation occurred
after the initial purpose of the traffic stop had been fulfilled.
Id. at 404. The court went on to note, however, that the answers
of the two men were not actually suspicious. The court stated:
When asked about his employment, Jenson replied that he
worked for his uncle in construction and that the name of
the business was “Tommie-Cotton” or “Tommie and Cotton,”
presumably combining his and his uncle’s names. Cotton, in
turn, answered that he was “self-employed,” which is not
by itself inconsistent with having a nephew as an
employee. He also stated that his business did not have a
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name, but Jenson may have merely given a descriptive title
for the two-man operation, instead of a formal name, when
pressed.
Id. The not-very-inconsistent inconsistencies in Jones and Jenson
can be contrasted with the outright lies told by Flores on three
subjects--his itinerary, his arrest record, and his border-
crossing time.
In Dortch and Santiago, the inconsistencies were not so
easily explained. In Dortch, the government presented evidence
that:
Dortch and the passenger gave inconsistent answers about
Dortch’s relationship to the person who had rented the
car, and although Dortch stated that they had been in
Houston for the last two days, the rental car papers
showed that the car had been rented the day before in
Pensacola, Florida, where Dortch lived, and he stated that
they were not carrying any luggage.
199 F.3d at 196. The court concluded, however, that assuming
these answers were indeed suspicious, they did not give rise to a
reasonable suspicion of drug trafficking. Id. at 199.1
In Santiago, the government pointed to evidence that
Santiago informed the police officer that he was traveling to
Atlanta for a one-week vacation, whereas his passenger told the
officer that they would be staying in Atlanta for two to three
weeks. 310 F.3d at 338. This discrepancy is not especially
suspicious, but Santiago also first stated that his passenger was
1
The court instead concluded that the answers gave rise to a
reasonable suspicion that the car was stolen, a suspicion that
was dispelled when the computer checks came back clean. Id.11
his wife, and then stated that a different woman was his wife and
that his passenger was his ex-wife. Id. at 338-39. This court
determined, however, that “there was no reasonable or articulable
suspicion that Santiago was trafficking in drugs.” Id. at 342.
In the instant case, there is additional evidence linking
Flores with drug trafficking. In Estrada, this court noted that
“the fact that the vehicle had recently crossed from Mexico, a
common origin of illicit drugs,” was an element contributing to
the existence of reasonable suspicion. 459 F.3d at 632 (internal
quotation marks removed). In this case, Flores had recently
crossed the Mexican border and had lied about the time of his
crossing. This information, in combination with Flores’s lies
about his itinerary and arrest record, was enough to create a
reasonable suspicion of drug trafficking sufficient to justify
Flores’s continued detention for the few minutes that it took
Livingston to question Flores about drugs and then bring his
drug-detecting dog to sniff the vehicle.
B. Probable cause existed for the search of Flores’s vehicle
The district court concluded that Livingston’s search of
Flores’s vehicle was lawful in light of Flores’s voluntary
consent to the search. Flores maintains that his consent was not
voluntary, arguing that he did not feel free to leave at the time
the consent was given and that he did not understand the
officer’s request because he does not speak English. We need not
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decide this issue, however, because we hold that the drug-
detecting dog’s alert to Flores’s vehicle created probable cause
for the search.
It is well established that warrantless searches of
automobiles are permitted by the Fourth Amendment if supported by
probable cause. United States v. Seals, 987 F.2d 1102, 1107 (5th
Cir. 1993) (citing United States v. Ross, 456 U.S. 798 (1982)).
A positive alert by a drug-detecting dog creates probable cause
for a search of the vehicle. Sanchez-Pena, 336 F.3d at 444;
United States v. Williams, 69 F.3d 27, 28 (5th Cir. 1995); United
States v. Dovali-Avila, 895 F.2d 206, 207 (5th Cir. 1990).
Further, if the police have probable cause to believe that
contraband is located somewhere in the vehicle but do not know
exactly where, the police may search the entire vehicle. Seals,
987 F.2d at 1107 n.8 (citing Ross, 456 U.S. at 799).
The dog sniff is itself not a search within the meaning of
the Fourth Amendment. Seals, 987 F.2d at 1106. Thus the sniff
performed on Flores’s vehicle while he was lawfully detained did
not implicate the Fourth Amendment. See Illinois v. Caballes 543
U.S. 405, 409 (2005). Accordingly, it was lawful for Livingston
to run his drug-detecting dog around Flores’s vehicle. Once the
dog alerted, Livingston had probable cause to search the vehicle
in full. See Seals, 987 F.2d at 1107.
IV. CONCLUSION
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For the foregoing reasons, we hold that the district court
did not err in denying Flores’s motion to suppress. We AFFIRM the
judgment of the district court.
AFFIRMED.
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