1 The Honorable Henry E. Autrey, United St ates District Judge for the Eastern District of Missouri. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-2696

___________ United States of America, *
* Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the Eastern * District of Missouri. Emilio Jose Saenz, * * Defendant - Appellant. *

___________ Submitted: December 11, 2006 Filed: January 29, 2007

___________ Before LOKEN, Chief Judge, MURPHY, and SHEPHERD, Circuit Judges.

___________ MURPHY, Circuit Judge. A jury convicted Emilio Jose Saenz of one count of conspiracy to distribute and possess with the intent to distribute more th an five kilograms of cocaine, in violation of 21 U.S.C. § § 841 (a)(1) and 846. The district court 1 sentenced Saenz to 210 months imprisonment. Saenz appeals, claiming that the evidence resulting from a vehicle search should have been suppressed. We affirm.-2- In June 2005 the St. Charles police began investigating a series of money orders sent by a city resident, Simon Hernand ez, to individuals in Albuquerque, New Mexico. They then discovered that on Ju ly 5, 2005 Hernandez sent a moneygram in the amount of $3125 to a Melissa Saenz in Te xas (Melissa is the sister of appellant Emilio Saenz). A confidential source info rmed the police on September 27, 2005 that Melissa was staying in the St. Charles ar ea and that a vehicle registered to Emilio Saenz was parked outside the residence of Simon Hernandez. The police initiated surveillance on the house, and observed a re d pickup truck with Texas license plates parked outside. A record checkrevealed that the truck wa s registered to Emilio Saenz.

During the course of the surveillance on September 27, officers observed two individuals, later identified as Emilio and Melissa Saenz, arriveat the Hernandez house at approximately 1:30 p.m. in a blue Ford F150 truck with temporary Texas license plates. At approximately 6:30 p.m. the blue truck was backed into the garage. Thirty minutes later Emilio Saenz drove it out with Melissa sitting in the passenger seat. The police tracked the truck to a ga s station, where Melissa moved into the driver seat. Officers then followed the blue truck as it drove onto eastbound interstate 70, and turned onto southbound interstate 270 and then westbound interstate 44, a route the police knew was often used for drug trafficking. Officers observed the truck make improper lane changes and arranged to have a uniformed officer stop it.

Officer David Doyle was informed that Emilio and Melissa Saenz were being investigated for drug trafficking and that their truck had made improper lane changes and was asked to pull over the vehicle. Officer Doyle identified the truck and followed it until he reached a s pot where it was safe to stop it. Several detectives from the investigative team soon arrived at the scene and separated Melissa and Emilio for questioning. Both of them told officers thatthey had traveled to Missouri to sell the red pickup truck to Hernandez. Emilio saidhe did not know the sale price of the vehicle and denied that the money from the sa le was in the blue truck. Melissa also-3- did not know the sale price but indicated that she thought the proceeds were in the truck.

The officers asked the suspects to move the truck to an exit ramp to avoid interrupting traffic. Offi cers David Senter and Gary Sodoma each asked Emilio Saenz if they could search the vehicle; Emilio consented both at the original stop and after the truck was moved. Melissa also gave her consent to the search. Detective Sodoma then obtained Emilio's permission to use hi s drug dog, and the dog alerted to the back of the truck. The officers observed that th e spare tire appeared to have been recently removed so they pick ed it up, tapped it, and rolled it. It appeared to them that something solid was inside the tire. When they cut it open, th ey found several bundles of currency which amounted to $128,160 when counted. Melissa and Emilio Saenz were arrested. At Emilio's booking, $3500 in cash was seized from his person.

Special agents from the Drug Enforcemen t Administration, Steve Hofer and Jim McHugh, were notified of the stop and arrive d at the scene after the tire had been cut open. They took the cash into custody, and Agent Hofer obtained a search warrant for Hernandez's house. A search of his home pursuant to the warrant discovered approximately six kilograms of cocaine. The agents also found a money counter and rolls of packing tape like that used to s eal the bundles of cash hidden in the truck.

Emilio Saenz and three other defendants were charged in an indictment with conspiracy to distribute and possess with the intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § § 841(a)(1) and 846. He moved to suppress the evidence seized in the blue truck, and an evidentiary hearing was held before a magistrate judge who issued a report and recommendation finding that Emilio and Melissa Saenz voluntarily consented to the search of the truck. The district court adopted the report and recommendation and denied the motion to suppress. A jury trial was held in March 2006 during whic h Officers Doyle, Senter, and Sodoma described their investigati on. Senter and Sodoma testified that Emilio Saenz had consented to the search, and Simon Hern andez, who had been indicted as a-4- codefendant, also testified against Emilio. The jury found him guilty as charged. On his appeal Saenz argues that the district court erred in finding that he voluntarily consented to the search and in denying his motion to suppress.

Saenz first argues that the officers we re not justified in stopping his truck because there was no proof of a traffic vi olation and there were insufficient grounds for a stop based on reasonable suspicion. He points out that the police video on Doyle's squad car did not show any traffic violation, that no traffic ticket was issued until the next day, and that the governme nt abandoned its reliance on the traffic violation to focus on reasonable suspicion midway through the prosecution, suggesting pretext. He argues that the officers did not have reasonable suspicion because a $3125 money transfer was not a large enough amount to be consistent with drug trafficking and the money was sent too early for it to have been related to the Saenzs' trip to St. Charles. Emilio also c ontends that if the officers had reasonable suspicion to make the initial stop, it expired before they cut open the spare tire, citing United States v. Watts , 7 F.3d 122, 126 (8th Cir. 1993). He argues that the government's reliance on the inconsistent stor ies told by him and Me lissa to justify use of the drug dog is misplaced and that the inconsistencies in their answers could be reconciled.

The government responds that the traffic stop was justified because the officers had reasonable suspicion th at the Saenzs were involved in drug trafficking and because they had observed lane change viol ations. The government points out that the officers followed the truck onto three differe nt highways, two officers testified during trial that they witnessed lane violations, and Doyle's cam era only recorded the truck's movement for one minute prior to its being pulled over. The government also asserts that the primary reason for the stop was th e officers' reasonable suspicion that Emilio and Melissa were involved in drug trafficki ng. That suspicion wa s based on the money transfer, the information from the confidentia l source, and the thirty minute stop inside Hernandez's garage before the truck departed on a common drug route.-5- The denial of a motion to suppress is reviewed de novo with the underlying factual determinations reviewed for cl ear error. United States v. Carpenter , 422 F.3d 738, 744 (8th Cir. 2005). An officer is allo wed to stop and briefl y detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot. Terry v. Ohio , 392 U.S. 1, 30 (1968). Here, the officers had more than a mere hunch to justify the stop. See Terry , 392 U.S. at 27. The officers knew of the wire transfer from Hernandez to Melissa Saenz, they had received information from a confidential source that she was visiting St. Charles, and they confirmed the presen ce of Emilio Saenz's vehicle at Hernandez's house. The officers also witnessed the bluepickup truck enter th e garage and leave thirty minutes later, consistent with the unloading or loading of drugs or drug profits.

We conclude that the officers had reas onable suspicion to pull over the truck. Moreover, that suspicion did not dissolve after they talked with Emilio and Melissa Saenz because neither could name the sale price of the re d truck which they both said they had sold to Hernandez and they gave conflicting re sponses about the location of the money they claimed to have received from the vehicle sale. We conclude the district court did not err in denying the motion to suppress.

Saenz contends that the district cour t erred by finding thathe gave voluntary consent to search the truck. He argues th at he and Melissa were coerced when they were asked to moved the truck to an isol ated road and were confronted by multiple officers. He complains that he was not given his Miranda warning until after the search and that the officers should ha ve given him a written consent form. Furthermore, he asserts that the use of the drug dog suggests the officers did not think they had received voluntary consent.

The voluntariness of a consent to a search is a factual question that is reviewed for clear error. United States v. Hines , 387 F.3d 690, 694 (8th Cir. 2004). A consent is voluntary if the consenting individual ha d "a reasonable appreciation of the nature and significance of his actions." United States v. Rambo , 789 F.2d 1289, 1297 (8th-6- Cir. 1986). Consent can be given orally or in writing, and it is not necessary to use a written consent form. United States v. Siwek , 453 F.3d 1079, 1084 (8th Cir. 2006). We have not required an officer to provi de Miranda warnings before requesting consent to search or held that an ab sence of Miranda warn ings would make an otherwise voluntary consent involunt ary. United States v. Payne , 119 F.3d 637, 643 (8th Cir. 1997). The government must pr ove by a preponderance of the evidence that the consent was voluntary. United States v. Czeck , 105 F.3d 1235, 1239 (8th Cir. 1997).

We examine the totality of the circumst ances to evaluate whether consent was voluntary. United States v. Chaidez , 906 F.2d 377, 380-81(8th Cir. 1990). The following factors are relevant to determin ing whether Emilio's consent was voluntary: 1) his age; 2) his general intelligence and e ducation; 3) whether he was intoxicated at the time; 4) whether he consented after be ing informed of his Miranda rights; and 5) whether he was aware of his rights and prot ections due to previous arrests. Seeid. at 381. Other relevant circumstances include : 1) the length of time the subject was detained; 2) whether the officers acted ina threatening manner; 3) whether any promises or misrepresentations were made ; 4) whether the subject was in custody or under arrest at the time; 5) whether the c onsent occurred in public; and 6) whether the subject was silent as the search was conducted. Id.

Here, Emilio was in his thirties, did not seem to be under the influence of drugs or alcohol, and appeared to be of normal intelligence. The officers' request to move the truck to a safer area with less traffic was not coercive, nor did they use threats, offer improper promises, or suggest thatEmilio could not refuse consent. His detention was for a short period of time, and Emilio gave his consent to at least two officers. During the search he was sile nt and did not complain or question the officers, but instead offered oral consen t again when Officer Sodoma asked if the officers could use the drug dog. Even though no Miranda warn ing was given until after the search was completed, this doe s not nullify his otherwise voluntary consent. The district court properly weighed the fact ors identified in United States v. Chaidez ,-7- and we conclude it did not clearly err by finding that Emilio Saenz voluntarily consented to the search of the truck.

Accordingly, we affirm the judgment of the district court.

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