United States v. Basilio Jimenez

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0802n.06
Nos. 10-5146, 10-5147
FILED
UNITED STATES COURT OF APPEALS Nov 30, 2011
FOR THE SIXTH CIRCUIT
LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF TENNESSEE
)
BASILIO JIMENEZ and JOHNNY ESPINAL- )
BISONO, ) OPINION
)
Defendants-Appellants. )
)
Before: BOGGS and STRANCH, Circuit Judges; and THAPAR, District Judge.*
AMUL R. THAPAR, District Judge.
Defendants Basilio Jimenez and Johnny Espinal-Bisono appeal their convictions for
conspiracy to possess with intent to distribute five kilograms or more of cocaine. They argue that
the district court erred in denying their motions to suppress six kilograms of cocaine found in their
car during a traffic stop. We affirm.
*
The Honorable Amul R. Thapar, United States District Judge for the Eastern District of Kentucky, sitting by
designation.
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I.
Many of us observe tailgating every day, and Officer Lockhart is no exception. But the
tailgating he saw on August 27, 2008, led to more than just annoyance. While traveling eastbound
on I-24 in Chattanooga, Tennessee, he saw the Defendants’ Chrysler Pacifica following “no more
than twenty-four inches” behind a FedEx tractor-trailer truck. The Pacifica was travelling
approximately fifty-five miles per hour. As Officer Lockhart drove closer in the fast lane, the
Pacifica abruptly slowed down in the middle lane, impeding traffic. Officer Lockhart then also
slowed abruptly and moved from the fast lane to the middle lane. The Pacifica immediately changed
to the fast lane and continued at the same slow speed. Eventually, the Pacifica passed Officer
Lockhart and pulled in front of him in the middle lane. Because the Defendants followed too closely
behind the FedEx truck in violation of Tennessee law, Officer Lockhart pulled the car over.
Officer Lockhart approached the Pacifica and asked the driver, Basilio Jimenez, for his
license and proof of insurance. Jimenez readily complied. When asked about his suspicious driving,
Jimenez explained that he was watching his GPS. After running a license, tag, and registration
check, Officer Lockhart directed Jimenez to step to the front of his patrol car so that he could write
a warning citation. Jimenez did so. While writing the citation, Jimenez answered Officer
Lockhart’s questions and even joked about Officer Lockhart’s youthful appearance.
About twelve and one-half minutes into the traffic stop, while he was still finishing the
citation, Officer Lockhart asked Jimenez about his travel plans. Jimenez stated that he was traveling
from Atlanta to Connecticut. Because Jimenez’s answer was inconsistent with his direction of travel
on I-24 eastbound, Officer Lockhart sought clarification. Jimenez’s explanations continued to make
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no sense. So Officer Lockhart tried to verify their plans with the passenger, Johnny Espinal-Bisono,
but he did not speak English. Sergeant Lewis then arrived, and the two officers discussed the
Defendants’ suspicious travel plans. At this point, the traffic stop had lasted fifteen minutes.
After speaking with Sergeant Lewis, Officer Lockhart asked Jimenez if he had any illegal
drugs in the car. Jimenez responded, “no, you can check.” Mag. R&R, R. 47 at 5. To make sure,
Officer Lockhart asked, “Do you mind if I search the car?” Jimenez again stated, “no, you can
check.” Id. Officer Lockhart then stated that he was “going to take just a quick look.” Id. at 6.
While Lockhart and Lewis began their search, a Tennessee State Trooper arrived and stood with the
Defendants.
About twenty-one minutes into the traffic stop, Officer Lockhart noticed suspiciously
“tooled” bolts in an area of the car where a consumer would “not be expected to remove bolts.”
Suspecting a hidden compartment, he asked Jimenez whether any recent work had been done on the
car. Jimenez said no. Officer Lockhart then removed the bolts, lifted the carpet, and noticed fresh
paint, which further aroused his suspicions. Unsurprisingly, Officer Lockhart then found a
compartment, which contained six kilograms of cocaine. The officers took both Defendants into
custody.
Subsequently, the United States named both Defendants in a two-count indictment charging
(1) conspiracy to possess with the intent to distribute cocaine and (2) a substantive count of
possession with the intent to distribute cocaine. In November 2008, the Defendants filed motions
to suppress the cocaine. The magistrate judge recommended denying the motion, and the district
court adopted the magistrate judge’s recommendation. As a result, both Defendants pled guilty to
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the conspiracy count, but reserved their rights to appeal the denial of their motions to suppress.
They now appeal.
II.
The Defendants argue that the officers did not have probable cause to make the traffic stop.1
In support of this argument, the Defendants claim that there is no “credible evidence” that the traffic
violation actually occurred. Appellants’ Br. at 21–22. On appeal, we review a district court’s
factual findings for clear error. United States v. Oliver, 397 F.3d 369, 374 (6th Cir. 2005).
Credibility determinations are entitled to “even greater deference” than other factual findings. Id.
(quoted case omitted).
The district court specifically found Officer Lockhart credible based on his demeanor and
the consistency of his testimony with other evidence. The Defendants offer three reasons to overturn
that credibility determination. First, the Defendants state that there was no FedEx truck in the video
even though the patrol car’s camera started recording thirty seconds before Officer Lockhart turned
on his blue lights. But Officer Lockhart testified that he observed the Defendants “for some time”
after the violation before pulling them over. Mag. R&R, R. 47 at 13 (“Defendants note that the
videotape did not show the violation, but Officer Lockhart testified he observed the Pacifica for
some time before activating his blue lights which in turn activated his dash camera.”). His
1
In their briefs, the Defendants make an additional argument: that following too closely cannot establish probable cause
for a traffic violation. At oral argument, however, the Defendants conceded that it could form the basis for probable
cause and did so here if Officer Lockhart was credible. Thus, we only address the credibility argument herein. Even
on the merits, however, the argument that following too closely under Tennessee law does not establish probable cause
is incorrect as a matter of law in this circuit. See United States v. Sanford, 476 F.3d 391, 395–96 (6th Cir. 2007) (holding
that there was probable cause under Tenn. Code. Ann. § 55-8-124 where the distance between the cars was
“approximately ten feet” for “only a moment” at “interstate speeds”); United States v. Valdez, 147 F. App’x 591, 595
(6th Cir. 2005) (holding that there was probable cause for the same violation where the distance between the cars was
“twenty to thirty feet” for “fifteen seconds” at “about 60 miles per hour”).
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testimony is consistent with the video, which shows two tractor-trailer trucks in the distance.
Second, the Defendants note that Officer Lockhart deliberately turned his microphone off during
portions of the search. Officer Lockhart testified, however, that he turned off his microphone while
talking to other law enforcement officers on the scene, Supp. Hr’g Tr. at 47–48, 84–85, and the
district court saw no reason to disbelieve him. In any event, the Defendants offer no reason why
turning off his microphone while discussing the situation with his fellow officers, standing alone,
is enough to displace the district court’s credibility determination. Third, the Defendants point to
Officer Lockhart’s decision to drive past the Pacifica before pulling it over. As Officer Lockhart
testified, though, when he “got about even” with the Defendants, they slowed down “extremely
fast,” causing Officer Lockhart to continue past them in the fast lane. Id. at 50. The video is
consistent with each of these factual findings, so we must defer to the district court’s credibility
determinations and factual findings. See Sanford, 476 F.3d at 396 (upholding factual findings where
they are based on a “permissible” view of the evidence) (quoting Anderson v. City of Bessemer City,
470 U.S. 564, 574 (1985)). Therefore, Officer Lockhart had probable cause to initiate a traffic stop
of Defendants’ car.
Next, Defendants argue that Officer Lockhart unreasonably prolonged the traffic stop by
asking them extraneous questions, making the later search of their car unconstitutional. An officer
may ask a detained motorist questions unrelated to the traffic stop as long as those questions do not
measurably extend the detention and the detainee’s “responses are voluntary.” United States v.
Everett, 601 F.3d 484, 496 (6th Cir. 2010); see also Arizona v. Johnson, 555 U.S. 323, ___, 129 S.
Ct. 781, 788 (2009) (“An officer’s inquiries into matters unrelated to the justification for the traffic
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stop . . . do not convert the encounter into something other than a lawful seizure, so long as those
inquiries do not measurably extend the duration of the stop.”). In making this inquiry, we look to
the “totality of the circumstances” to determine whether the “stop as a whole”—not just the “interval
of prolongation”—was reasonable. Everett, 601 F.3d at 494. Our “overarching consideration” is
the officer’s diligence in pursuing a “‘means of investigation that was likely to confirm or dispel
[his] suspicions quickly.’” Id. (quoting United States v. Sharpe, 470 U.S. 675, 686 (1985)).
In this case, the length of the traffic stop was constitutional. The entire stop lasted fifteen
minutes before Jimenez consented to the search. Mag. R&R, R. 47 at 16. During the first twelve
and one-half minutes, Officer Lockhart was “running a check” on Jimenez and the car and “writing
the warning citation” while asking Jimenez about his travel itinerary. Id. Twelve and one-half
minutes is clearly reasonable. See United States v. Hill, 195 F.3d 258, 269–70 (6th Cir. 1999)
(upholding a twelve-minute detention during which the officer ran a license check and asked
questions about the defendant’s travel plans). Because Jimenez’s explanation of his travel plans
“simply didn’t make sense,” Mag. R&R, R. 47 at 19, Officer Lockhart used the last two and one-half
minutes to try to verify these plans with Espinal-Bisono and “quickly” discuss his suspicions with
Sergeant Lewis. Id. at 16. As we indicated in Everett, questions about travel plans will “rarely
suggest a lack of diligence” by the officer because such questions “may help explain, or put into
context, why the motorist was committing the suspicious behavior the officer observed.” 601 F.3d
at 494 (internal quotations omitted). The Defendants do not point to any evidence undermining
Officer Lockhart’s diligence. See Mag. R&R, R. 47 at 16 (explaining in detail how, “[l]eading up
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to the consent, Lockhart was conducting the normal, permissible activities of a traffic stop”).
Therefore, Officer Lockhart did not unconstitutionally prolong the traffic stop.
Finally, Jimenez argues that his consent was not voluntary, was only limited consent to
search, and was withdrawn during the search. The Fourth Amendment generally requires searches
to be conducted with a warrant issued upon probable cause with only a “few specifically established
and well-delineated exceptions,” such as consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219
(1973). An officer with consent to search “‘needs neither a warrant nor probable cause to conduct
a constitutional search.’” United States v. Moon, 513 F.3d 527, 537 (6th Cir. 2008) (quoting United
States v. Jenkins, 92 F.3d 430, 436 (6th Cir. 1996)). But a search based on consent is constitutional
only if the consent was voluntary. Id. (citing Bumper v. North Carolina, 391 U.S. 543, 548 (1968)).
Consent is voluntary when the totality of the circumstances indicate that it is “unequivocal, specific
and intelligently given, uncontaminated by any duress or coercion,” United States v McCaleb, 552
F.2d 717, 721 (6th Cir. 1977) (quoted case omitted), including “‘more subtle forms of coercion that
might flaw [an individual’s] judgment.’” Moon, 513 F.3d at 537 (quoting Bustamonte, 412 U.S. at
227). Although we review the ultimate existence of consent de novo, we defer to the district court’s
factual inferences and credibility determinations unless there is clear error. Moon, 513 F.3d at 536
(citing United States v. Caruthers, 458 F.3d 459, 464 (6th Cir. 2006)).
Jimenez argues that his consent was not voluntary because he possesses a limited
understanding of the English language. Appellants’ Br. at 32. But the district court found that
Jimenez “had no trouble understanding Lockhart,” “responded easily to Lockhart’s questions,” and
even “joked with Lockhart about looking 29 [years old].” Mag. R&R, R. 47 at 21; Mem. Op. &
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Order, R. 53 at 9 (adopting the R&R). Furthermore, Jimenez offered to allow Officer Lockhart to
search the car before Officer Lockhart ever requested consent. And when Officer Lockhart did ask,
Jimenez repeated his willingness to consent. Id. The videotape of the traffic stop confirms these
findings. And we have upheld consent in similar circumstances before. See Valdez, 147 F. App’x
at 596 (upholding a consent search where defendant could “understand, and interact with” law
enforcement, including complying with requests to produce his license and responding to questions
about his travel plans in English); see also United States v. Lopez-Medina, 461 F.3d 724, 738 (6th
Cir. 2006) (upholding consent where the defendant did not indicate any difficulty in understanding
the officer in English and responding to his questions). Thus, Jimenez’s consent was voluntary.
Undeterred, Jimenez argues that he gave only limited consent to search and that the officers
overstepped those limits. Although there is no question that an officer’s search cannot exceed the
scope of a suspect’s consent, United States v. Gant, 112 F.3d 239, 242 (6th Cir. 1997) (citing
Florida v. Jimeno, 500 U.S. 248, 251 (1991)), that did not happen here. While a suspect may limit,
delimit, or withdraw his consent as he pleases, general consent to search is defined by “the expressed
object of the search.” United States v. Garrido-Santana, 360 F.3d 565, 576 (6th Cir. 2004) (citing
Jimeno, 500 U.S. at 251). Because a district court’s determination of whether a search exceeded the
scope of consent is a factual question, we review that determination for clear error. Id. at 570.
Here, the search was firmly within the scope of Jimenez’s consent. Before Jimenez
consented, Officer Lockhart specifically asked him if he had any illegal drugs in the car. Mag.
R&R, R. 47 at 22. By doing so, Officer Lockhart informed Jimenez that illegal drugs were the
object of his search and thereby established the scope of his search as “extend[ing] to any part” of
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the car where the drugs might reasonably be concealed. Accord Jimeno, 500 U.S. at 251 (holding
that, after the officer stated his belief that narcotics were in the car, a suspect’s general consent
extended to all containers in the car that could reasonably contain the narcotics). Jimenez
nonetheless claims that his consent was limited because Officer Lockhart subsequently stated that
he was “going to take just a quick look.” Mag. R&R, R. 47 at 6. But Officer Lockhart’s gratuitous
statement after Jimenez’s two express grants of general consent does not, without more, transform
his general consent into limited consent. Accord United States v. Lopez-Mendoza, 601 F.3d 861,
868–69 (8th Cir. 2010) (affirming a thirty-minute consensual search of a car involving the removal
of two interior panels where the officer stated that he was going to “look real quick”). Therefore,
Jimenez gave general consent to search, which Officer Lockhart reasonably believed to include a
search for the hidden compartment. Garrido-Santana, 360 F.3d at 576 (upholding the search of a
car’s gas tank as within the scope of general consent when the officer testified that an easily
accessible gas tank was a “well-known” hiding spot for narcotics and the search did not damage the
car). Accord United States v. Fowler, 42 F.3d 1389, 1994 WL 685417, at *7 (6th Cir. 1994)
(unpublished table decision) (upholding the removal and search of a truck’s body panels for
marijuana as within the scope of general consent).
Finally, Jimenez argues that he tried to withdraw his consent during the search by
approaching Sergeant Lewis, but that Sergeant Lewis prevented him from withdrawing his consent
by ordering him to stay near the patrol car. The district court, however, did not find Jimenez’s
testimony credible on this point because he had a “number of opportunities” to tell Sergeant Lewis
that he wanted to stop the search. Mem. Op. & Order, R. 53 at 9. Indeed, Jimenez could have done
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so at any time by telling Trooper Harvey, who was “standing next to the defendants during the entire
search.” Mag. R&R, R. 47 at 23. Instead, Jimenez never acted as if or stated unequivocally that he
wanted to withdraw his consent. Mem. Op. & Order, R. 53 at 9. The district court was therefore
correct to conclude that Jimenez did not withdraw his consent before the officers found the hidden
compartment.
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For the reasons stated, we AFFIRM the judgment of the district court.
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