United States v. Nunez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 25, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-11141
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILTON NUNEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-111-2-Y
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Before SMITH, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:1
Wilton Nunez appeals the denial of his motion to suppress
following his guilty-plea conviction for possession with intent to
distribute more than 5 kilograms of a mixture or substance
containing a detectable amount of cocaine, in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(A). Nunez argues that the officer
who conducted the search exceeded the scope of the traffic stop by
1
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that this opinion should not be published and is not precedent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.
requesting permission to search the truck after completing his
physical inspection of the truck's exterior.
The officer testified that the driver of the truck exhibited
a nervousness unusual in truck drivers. He further testified that
Nunez, who was the co-driver, appeared immediately from the
sleeping compartment unclothed as he began speaking with the
driver, when co-drivers ordinarily ignore routine traffic stops,
and then re-appeared fully dressed a short time later. The officer
observed that the truck's logbooks showed an extended break in
service and then a four-day delay in Nogales, Arizona, before
taking on a load of produce bound for New York. The driver and
Nunez were both from Florida, and the officer found it odd that
there was a delay in receiving a load that did not take them back
home. The officer explained that in his experience produce was
loaded 24 hours per day, and similar trucks that he had inspected
had spent no more than one day receiving their loads in Arizona.
We conclude from the totality of the circumstances, viewed in the
light most favorable to the Government, that the officer was
justified in continuing the detention to ask for consent to search
the truck. See United States v. Arvizu, 534 U.S. 266, 273 (2002);
United States v. Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003);
United States v. Fort, 248 F.3d 475, 479-83 (5th Cir. 2001).
We note that Nunez has not contested the validity of the
consent to search, which was given by the driver. He argues that
the driver did not have authority to bind him. This argument is
2
unavailing because a person who has joint control over a vehicle
may give valid consent to its search. See United States v. Crain,
33 F.3d 480, 484 (5th Cir. 1994).
AFFIRMED.
3