United States v. Carmenate

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 21, 2009
No. 08-40765
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ISRAEL CARMENATE
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:07-CR-1217-2
Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Israel Carmenate was charged with one count of conspiracy and one count
of possession with intent to distribute approximately 65 kilograms of cocaine in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 and 18 U.S.C. § 2. The charges
arose after a sergeant in the narcotics division of the Texas Department of Public
Safety (DPS), who had monitored Carmenate’s flatbed tractor-trailer (truck) for
three days and observed activity suggesting drug trafficking, requested that a
DPS trooper initiate a traffic stop. A trooper subsequently initiated a stop after
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-40765
Carmenate drove his truck onto the improved shoulder of a two-lane highway
without signaling for the proper distance. Cocaine was found during a search.
Carmenate thereafter filed a motion to suppress. Following a five-day
hearing, the district court denied the motion, and Carmenate proceeded to trial.
A jury convicted Carmenate on both counts of his indictment. The district court
sentenced Carmenate to 160 months of imprisonment and five years of
supervised release. Carmenate filed a timely appeal.
Citing Tex. Transp. Code Ann. § 545.058(a)(5), Carmenate first argues
that the traffic stop was not justified at its inception because the reason given
for the stop, driving on an improved shoulder, is not a violation of Texas law
when the driver is permitting another vehicle to pass. Even in the absence of a
traffic violation, however, the record reflects that the stop at issue herein was
constitutionally permissible at its inception, based on the collective knowledge
of all the officers involved, which gave rise to a reasonable suspicion that
criminal activity might be afoot. See United States v. Brigham, 382 F.3d 500,
506-07 (5th Cir. 2004) (en banc) (citing Terry v. Ohio, 392 U.S. 1, 19-20 (1968);
see United States v. Zavala, 541 F.3d 562, 574 (5th Cir. 2008) (“[A]n investigative
vehicle stop is permissible under Terry only when the officer has a reasonable
suspicion supported by articulable facts that criminal activity may be afoot.”);
see United States v. Holloway, 962 F.2d 451, 459 n.22 (5th Cir. 1992) (stating
that reasonable suspicion is based on the “collective knowledge and experience
of the officers involved”).
Carmenate next argues that his continued detention after the stop was
unreasonable because he and his passenger were questioned about issues totally
unrelated to the reason given for the stop. The record reflects that the actions
of the troopers were “reasonably related to the circumstances that justified the
stop, or to dispelling [a] reasonable suspicion [that] developed during the stop.”
See Brigham, 382 F.3d at 507 (citing Terry, 392 U.S. at 19-20). Specifically, the
investigative methods following the stop “were reasonable, proceeded with
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No. 08-40765
deliberation in response to evolving conditions, and evince[d] no purposeful or
even accidental unnecessary prolongation.” See id. at 511.
Carmenate next argues that (1) his consent to the search was involuntary
because his initial stop was in violation of the Fourth Amendment; (2) that his
consent was not an independent act of free will because he was never free to
leave after his initial detention; (3) that the district court erred by failing to
make a finding regarding the voluntariness of his consent; and (4) that the
troopers exceeded the scope of his consent by forcibly breaking apart the floor
boards of his trailer bed. Contrary to Carmenate’s argument, the initial stop
was proper for the reasons discussed above. Moreover, this court need not
analyze the voluntary nature of his consent.
Specifically, the visual inspection under Carmenate’s truck did not require
his consent. See United States v. Muniz-Melchor, 894 F.2d 1430, 1434 (5th Cir.
1990). The subsequent discovery of suspicious markings created a reasonable
belief that the truck contained a hidden compartment. See United States v.
Inocencio, 40 F.3d 716, 724 (5th Cir. 1994). “[E]vidence of a hidden compartment
supports ‘probable cause’ for a search/arrest.” United States v. Estrada, 459 F.3d
627, 633 (5th Cir. 2006) (internal citation omitted). When probable cause for a
search exists, consent is not required. See United States v. Mendoza-Gonzalez,
318 F.3d 663, 666 (5th Cir. 2003) (stating that a search is permissible without
a warrant as long as there is “either the consent of the owner to conduct the
search or probable cause to believe that the vehicle contains contraband or other
evidence of a crime”).
Accordingly, the judgment is AFFIRMED.
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