United States v. Perez Reyna

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 18, 2005
Charles R. Fulbruge III
Clerk
No. 04-41440
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTURO PEREZ REYNA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 6:03-CR-83-ALL
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Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Following the denial of a motion to suppress, Arturo Perez
Reyna entered a conditional plea of guilty to one count of
possession with intent to distribute more than five kilograms of
cocaine, in violation of 21 U.S.C. § 841. On appeal, Reyna
challenges only the denial of his motion to suppress.
When reviewing a ruling on a motion to suppress, we review
questions of law de novo and findings of fact for clear error;
evidence is viewed in the light most favorable to the party who
*
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opinion should not be published and is not precedent except under the limited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.
prevailed in the district court. United States v. Brigham,
382 F.3d 500, 506 n.2 (5th Cir. 2004) (en banc).
Although Reyna’s brief does not appear to challenge the basis
for the initial traffic stop, we note that the initial stop of
Reyna was legal. The suggestion in Reyna’s brief that the stop was
pretextual is irrelevant; we have held that “[a]n officer may stop
a motorist for a traffic violation even if, subjectively, the
officer’s true motive is to investigate unrelated criminal
offenses.” United States v. Sanchez-Pena, 336 F.3d 431, 437 (5th
Cir. 2003).
Reyna also argues that the officer unreasonably prolonged the
stop. The routine questions the officer asked Reyna, and the
routine questions he asked Reyna’s wife to confirm Reyna’s answers,
were within the scope of the initial stop and took only a few
minutes to complete. See Brigham, 382 F.3d at 507-08. During the
course of the stop, the smell of gasoline and the apparently
malfunctioning gas gauge created reasonable suspicion that the tank
might contain contraband; therefore, the officer’s decision to
briefly check the tank was reasonably related to “dispelling his
reasonable suspicion developed during the stop.” Id. at 507.
Reyna also challenges his consent to search the vehicle; he
asserts his consent was mere acquiescence to the officer’s show of
authority rather than knowing and voluntary consent. Based upon
our review of the evidence, the district court did not clearly err
in finding that Reyna’s consent was knowing and voluntary given.
2
See United States v. Solis, 299 F.3d 420, 436 n.21 (5th Cir. 2002)
(describing six factors for consideration); see also United States
v. Mendoza-Gonzalez, 318 F.3d 663, 666 (5th Cir. 2003) (if consent
finding is based on oral testimony at a suppression hearing, “the
clearly erroneous standard is particularly strong since the judge
had the opportunity to observe the demeanor of the witnesses”).
AFFIRMED.
3