IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-11228

UNITED STATES OF AMERICA,

Plaintiff–Appellee

v.

CHRISTIAN ALEXANDER WALLSTRUM,

Defendant–Appellant

consolidated with 11-11230

UNITED STATES OF AMERICA,

Plaintiff–Appellee

v.

DANE TAYLOR CLARK,

Defendant–Appellant

consolidated with 11-11231

UNITED STATES OF AMERICA,

Plaintiff–Appellee

v.

REED BECKER BRYANT,

Defendant–Appellant

Appeals from the United States District Court 

for the Northern District of Texas

(11-CR-26)

United States Court of Appeals

Fifth Circuit

F I L E D

March 4, 2013

Lyle W. Cayce

Clerk
No. 11-11228

* 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.

2

Before REAVLEY, PRADO, and ELROD, Circuit Judges.

PER CURIAM:*

Defendant–Appellants Christian Alexander Wallstrum, Dane Taylor

Clark, and Reed Becker Bryant appeal the denial of their motions to suppress

evidence seized during two traffic stops. For the reasons given below, we

AFFIRM the judgment of the district court.

Background

A. Wallstrum Stop

Shortly after 6:00 p.m. on February 5, 2011, Texas Department of Public

Safety (“DPS”) Trooper Ben Dollar was patrolling Interstate 40 in Carson

County, Texas when he observed three vehicles traveling closely together: an

SUV, a whiteToyota Camry, and a silver Ford Fusion. Believing that the Camry

was following the SUV too closely, Trooper Dollar initiated a traffic stop.

Defendant–Appellant Wallstrum was renting the Camry at the time. When

Wallstrum pulled over, Trooper Dollar approached from the passenger side,

explained the reason for the stop, and asked for his license and registration.

During this exchange, Trooper Dollar noticed several food and drink containers

in the car as well as a receipt for a Gallup, New Mexico hotel. Wallstrum

provided the requested materials along with the car rental agreement. Trooper

Dollar indicated that he would give Wallstrum a warning and asked Wallstrum

to accompany him back to the patrol car.

In the patrol car, Trooper Dollar questioned Wallstrum about his travel

while he waited for the results of the computer checks he was running on

Wallstrum’s information. Wallstrum stated that he started his trip in Dallas,

flew back to Oklahoma City, and was now headed to North Carolina. This
No. 11-11228

3

intrigued Trooper Dollar because both Dallas and Oklahoma City were east of

where the traffic stop occurred, indicating that Wallstrum had to have also

traveled west at some point given their current location. As Trooper Dollar

continued his questioning, Wallstrum became flustered such that his arms and

hands were shaking, his eye was twitching, and his carotid artery was visibly

pulsing. Wallstrum explained that he had also gone to Amarillo to visit a

girlfriend and was currently on his way from Amarillo to North Carolina.

Suspecting that Wallstrum was being dishonest, Trooper Dollar asked if

Amarillo was as far west as Wallstrum had traveled. When Wallstrum indicated

thatit was,Trooper Dollar became concerned because he remembered seeing the

receipt for the New Mexico hotel in the car. Trooper Dollar also noticed that the

car rental agreement was expired because the car should have been returned to

Oklahoma City three days earlier.

At that point, the computer checks cleared, and Trooper Dollar gave

Wallstrum a warning for following too closely and returned all of Wallstrum’s

documents. Trooper Dollar then asked Wallstrum if he was carrying or

transporting any weapons or controlled substances; Wallstrum said that he was

not. Trooper Dollar requested consent to search the car and Wallstrum agreed.

Trooper Dollar searched the car for approximately thirty minutes and noticed

several areas where the vehicle had been altered. The fuel sending unit in the

car appeared to have been taken apart, and it appeared as though the front

bumper and rocker panels had been removed recently. When Trooper Dollar

indicated that he wished to continue the search at the DPS office, Wallstrum

again agreed. At the DPS office, Trooper Dollar removed the rocker panels and

discovered twenty-four bundles of cocaine. Wallstrum was placed under arrest

and later told the arresting officers that he had met Defendant–Appellant

Bryant and Defendant–Appellant Clark at a Gallup, New Mexico hotel and that

they had instructed him to drive to North Carolina.
No. 11-11228

4

B. Bryant and Clark Stop

Around the time that Trooper Dollar first noticed the three vehicles,

Trooper Brandon Riefers was stopped in the same area of Interstate 40, assisting

another trooper. From his patrol car, Trooper Riefers observed the same three

cars and determined that the group was traveling too closely together. Trooper

Riefers pursued the silver Ford Fusion, which was being driven by Bryant with

Clark as his passenger, and initiated a traffic stop. Trooper Riefers approached

the vehicle from the passenger side and requested Bryant’s license and

insurance, which Bryant supplied. Clark informed Trooper Riefers that the car

was a rental and handed him the rental agreement as well. Trooper Riefers then

told Bryant that he would be giving him a warning and asked Bryant to exit the

vehicle.

When Bryant exited the vehicle,Trooper Riefers requested Clark’s driver’s

license and began questioning him about their travel plans. Clark told Trooper

Riefers that they were traveling to Fort Worth for a super bowl party and would

be staying in the Dallas/Fort Worth area until the rental agreement expired.

During this conversation, Trooper Riefers noticed energy drinks, bottles of

water, and snack items inside the car, which he believed indicated “hard”travel.

Trooper Riefers then returned to his patrol car to run checks on the information

provided to him and had Bryant join him in the front seat.

While Trooper Riefers verified the information, he began questioning

Bryant. Bryant told him that they had come from Albuquerque and were

traveling to Charlotte, North Carolina to stay with his uncle before returning to

Arizona. Bryant never mentioned going to Dallas or Fort Worth. At this point,

Trooper Riefers became suspicious because Bryant and Clark had such differing

stories. He also found the rental agreement to be suspicious. The agreement

was issued to Victoria Teague, Clark’s girlfriend, and indicated in typed font

that no other drivers were permitted, but“Dane Clark additional driver OK” was
No. 11-11228

1 Trooper Riefers began the search approximately thirteen minutes after the stop.

5

handwritten in a different section. Additionally, Trooper Riefers noticed that the

rental agreement indicated that the car was to stay within Arizona, California,

New Mexico, and Texas, which would mean that a trip to North Carolina would

not be covered.

After about five minutes of questioning during the computer check,

Trooper Riefers returned Bryant’s driver’s license and the papers for the car and

then issued the warning for following too closely. As Bryant started to open the

patrol car door to leave, Trooper Riefers asked him if he was carrying any

weapons in the vehicle or anything illegal. Bryant said that he was not but

began exhibiting signs of extreme nervousness, including his arms and hands

shaking, his cheeks twitching underneath his eyes, and his neck visibly pulsing.

Trooper Riefers then asked if he could search the car, and Bryant gave him

permission. Trooper Riefers asked Clark to exit the vehicle and stand in the

ditch along with Bryant. He instructed the two not to talk to each other and

began searching the car.1

During the search, Trooper Riefers noticed tool marks on a clip located

where the windshield wiper blades sit (the front cowl), and believed this to

indicate that someone had tampered with the area because the piece appeared

to have been lifted up. Because he did not have the tools or ability to access that

area, he decided that he would need to take the car to the DPS office for further

inspection. Regarding the water bottles, snacks, and energy drinks that he had

previously noticed, Trooper Riefers found it suspicious that he did not find any

receipts for the goods. This furthered his suspicion that the two men were

traveling with someone else. Trooper Riefers also discovered a black “Jeep” bag

in the trunk, which belonged to Bryant. Inside the bag were loose grommets and

screws.
No. 11-11228

2 Trooper Riefers testified that he separated Bryant and Clark for safety reasons and

that it was normal policy to do so because it prevented the two from discussing what they had

told the officers.

6

Trooper Riefers had been searching the vehicle for approximately thirty

minutes when Officer Dawson came to the scene to assist with the search.

Officer Dawson had been assisting Trooper Dollar and informed Trooper Riefers

that the driver of the other vehicle indicated that he was traveling to North

Carolina. This led Trooper Riefers to believe that the cars were traveling

together. He then put the luggage back in the car and indicated to Bryant that

he wanted Bryant to follow him to the DPS office to continue the search, and

Bryant agreed to go. Trooper Riefers then had Clark join him in the front seat

of the patrol car and the group went to the DPS office.2

When they arrived at the DPS office, Trooper Dollar was already there

searching Wallstrum’s Camry up on a lift. Shortly thereafter, the cocaine was

found in the Camry. No drugs were found in Bryant’s car, but the officers

inspected the compartment where the drugs were hidden in the Camry and

determined that the screws and grommets observed in Bryant’s bag came from

that area. The grommets and screws were similar in shape and size and were

the exact same number as those missing from the Camry. At that point, Bryant

and Clark were arrested.

In June 2011, a grand jury charged Bryant, Clark, and Wallstrum with

one count of conspiracy to possess cocaine with intentto distribute and one count

of possession with intent to distribute. Each defendant filed a motion to

suppress, but the district court adopted the magistrate judge’s report and

recommendation and denied the motions. The defendants then pleaded guilty

to the conspiracy count but reserved their right to appeal the suppression

rulings, which they do now.
No. 11-11228

7

Discussion

To assess a district court’s denial of a motion to suppress, we review

findings of fact for clear error and conclusions of law de novo. United States v.

Jenson, 462 F.3d 399, 403 (5th Cir. 2006). We also construe the evidence in the

light most favorable to the “party that prevailed in the district court.” United

States v. Jones, 234 F.3d 234, 239 (5th Cir. 2000). If the trial judge’s finding is

based on the “decision to credit the testimony of one of two or more witnesses,

each of whom has told a coherent and facially plausible story that is not

contradicted by extrinsic evidence, that finding, if not internally inconsistent,

can virtually never be clear error.” United States v. Gillyard, 261 F.3d 506, 509

(5th Cir. 2001) (citing Anderson v. City of Bessemer City, 470 U.S. 564, 575

(1985)). We may affirm the district court’s decision on any basis established by

the record. United States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010), modified on

other grounds, 622 F.3d 383 (5th Cir. 2010).

A. Initial Stops

Traffic stops constitute a “seizure” within the meaning of the Fourth

Amendment. United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en

banc). To determine whether such a seizure is reasonable we consider

(1) “whether the officer’s action was justified at its inception,” and (2) “whether

the officer’s subsequent actions were reasonably related in scope to the

circumstances that justified the stop.” Id. A traffic stop is justified at its

inception if an officer has “an objectively reasonable suspicion that some sort of

illegal activity, such as a traffic violation, occurred, or is about to occur, before

stopping the vehicle.” United States v. Banuelos–Romero, 597 F.3d 763, 766 (5th

Cir. 2010) (quoting United States v. Lopez–Moreno, 420 F.3d 420, 430 (5th Cir.

2005)). Thus, if the officer “can point to specific and articulable facts which,

taken together with rational inferences from those facts, reasonably warrantthe

search and seizure, the intrusion is lawful.” United States v. Santiago, 310 F.3d
No. 11-11228

3 Texas Transportation Code section 545.062 provides as follows:

An operator shall, if following another vehicle, maintain an assured clear

distance between the two vehicles so that, considering the speed of the vehicles,

traffic, and the conditions of the highway, the operator can safely stop without

colliding with the preceding vehicle or veering into another vehicle, object, or

person on or near the highway.

Tex. Transp. Code § 545.062(a).

8

336, 340 (5th Cir. 2002) (internal quotation marks and alterations omitted).

This analysis “is necessarily fact-specific, and factors which by themselves may

appear innocent, may in the aggregate rise to the level of reasonable suspicion.”

Id.

Here, the defendants argue that the initial stops by Trooper Dollar and

Trooper Riefers were both unlawful because neither Wallstrum nor Bryant

committed the offense of following too closely as defined by state law.3 As

support, the defendants point to the testimony of their two expert witnesses:

Cam Cope and Billy Teague.

Cope, an expert in forensic accident reconstruction, and Teague, a retired

law enforcement officer and former DPS Academy instructor, both relied on a

video taken from Trooper Riefers’s patrol car that revealed the cars traveling

down the highway shortly before Bryant was stopped. Based on his observations

of the video, Cope testified that there was a distance of sixty to eighty feet

between Wallstrum and Bryant’s car and that there was a slightly greater

distance between Wallstrum and the SUV. Cope suggested that the vehicles

were slowing down at the time because they were passing the traffic stop that

Trooper Riefers was assisting on and opined that Bryant and Wallstrum were

operating at a safe distance. Teague testified that after he viewed the video and

applied the methods he had previously taught for determining distance, he

determined that the cars were operating at a safe distance. Teague explained

that troopers are taught to use reference points and also to verbally count “one
No. 11-11228

9

one thousand,” “two one thousand,” to determine distance behind another

vehicle.

Trooper Dollar and Trooper Riefers offered their own description of the

events. Trooper Dollar testified that it was a clear day when the stop occurred

and that the three vehicles caught his eye because “the two passenger cars

behind were []way too close for safety.” He stated that troopers are “trained day

in and day out to look for traffic violations” and that following too closely was

one such violation. To determine whether a car is following too closely, Trooper

Dollar testified that he looks for a safe distance and also takes “into

consideration the speed of that vehicle.” Because the three cars were traveling

at highway speed, he determined that the space was too close for safety because

they would not have been able to stop in time if there was a threat or if the car

in front ofthem stopped. Trooper Dollar would not put a number on the distance

between the cars but answered one inquiry by stating that it was closer to one

hundred feet apart than ten feet apart.

To support his stop, Trooper Riefers testified that the speed limit on

Interstate 40 at that location was seventy miles per hour. When he saw the

three cars pass, he determined thatthey were too close because “traveling at the

speed limit,” they would not have been able to avoid a collision with the front

vehicle. He further testified that there was “not enough room that another

vehicle could safely occupy the space between them.” On cross-examination,

Trooper Riefers testified that the video of the stop showed that there was a

distance of sixty to ninety feet between the cars, which was about two or three

highway dash marks. He explained that a safe distance for traveling at seventy

miles per hour would be approximately three hundred feet because a normal

reaction time for a vehicle to stop is about “a second and a half” and, “[a]t 70

miles an hour, a second and a half is 150 feet.”
No. 11-11228

4 Defendants argue that Trooper Dollar’s testimony was not sufficient to establish the

“articulable facts” necessary to support reasonable suspicion and thus the magistrate judge

erred in accepting it. While Trooper Dollar’s testimony was sparse, he did articulate facts to

support his reasonable suspicion. Specifically, he acknowledged the conditions during the day

ofthe stop, stated thatthe cars were traveling at“highway speed,” and explained that he takes

the speed ofthe vehicles into account to determine ifthey would be able to stop in time to avoid

a collision. He also testified that the cars were closer to one hundred feet apart than ten feet

apart, which is consistent with Trooper Riefers’s testimony and the video evidence. These facts

are consistent with other testimony that has been held sufficient to justify reasonable

suspicion. Cf. United States v. Flores–Manjarez, 421 F. App’x 407, 409 (5th Cir. 2011) (per

curiam) (unpublished) (holding that the officer provided specific, articulable facts to support

reasonable suspicion when he testified that the conditions were wet and that the vehicles were

less than two car lengths apart).

10

In analyzing the different stories offered,the magistrate judge credited the

troopers’testimony over that ofthe defendants’ witnesses. The magistrate judge

noted that the video was not necessarily probative of the events because the

troopers’ observations were not confined to what the camera recorded.

Nevertheless,the magistrate judge determined that even ifthe video were relied

upon, the defendant’s expert witness testimony was contradicted by the time

counter accompanying the patrol car recording. Teague had testified that

troopers are taught to count two seconds to determine a safe distance between

cars, but the magistrate judge determined that the counter unquestionably

showed that the cars were not separated by two seconds. When each car passed

in front of a fixed reference point, only one second passed on the counter before

the next car came. The magistrate judge determined that this video evidence

confirmed Trooper Riefers testimony and also lent credibility to Trooper Dollar’s

“scant testimony.”4

Both the Government and the defendants presented a permissible view of

the evidence. When that occurs, “the factfinder’s choice between them cannot

be clearly erroneous.” Gillyard, 261 F.3d at 509 (quoting Anderson, 470 U.S. at

574). As a result, we affirm the district court’s determination that the initial

stop was lawful.
No. 11-11228

11

B. Extent of Detention

Appellants next challenge the extent of their detention. “Once the purpose

of a valid traffic stop has been completed and an officer’s initial suspicions have

been verified or dispelled, the detention must end unless there is additional

reasonable suspicion supported by articulable facts.” United States v. Gonzalez,

328 F.3d 755, 758 (5th Cir. 2003). During the traffic stop, law enforcement

officers are allowed to “request to examine a driver’s license and vehicle

registration or rental papers [and] to run a computer check on both.” Brigham,

382 F.3d at 508. Officers may also “ask about the purpose and itinerary of a

driver’s trip during the traffic stop.” Id. If during these checks additional

reasonable suspicion emerges, the detention “may last as long as is reasonably

necessary” to resolve the suspicion. United States v. Fishel, 467 F.3d 855, 856

(5th Cir. 2006). The reasonableness of the length of detention is judged by

“whether the police diligently pursued a means of investigation that was likely

to confirm or dispel their suspicions quickly.” Brigham, 382 F.3d at 511. “There

is, however, no constitutional stopwatch on traffic stops.” Id.

1. Trooper Dollar

Trooper Dollar articulated several factors informing his suspicion that

Wallstrum was engaging in criminal activity. For example, Wallstrum exhibited

extreme nervousness in explaining his travel itinerary, and the explanation

itself was discredited. Wallstrum had indicated that Amarillo was as far west

as he had traveled, but this was contradicted by the New Mexico hotel receipt

Trooper Dollar saw in the front seat. Additionally, the rental agreement had

been expired for three days. Trooper Dollar also observed several food and drink

containers, indicating “hard” travel that was inconsistent with the trip

Wallstrum described. Finally, the close proximity of the cars indicated that

Wallstrum may have been traveling in tandem with one of the other vehicles,

which is common in drug trafficking. Trooper Dollar’s search revealed
No. 11-11228

12

tampering with several areas of the car, which was consistent with his drug

trafficking suspicion.

These factors were sufficient to provide Trooper Dollar with reasonable

suspicion to justify the request to search and continued detention. The evidence

gathered from the Camry was thus properly obtained. See Brigham, 382 F.3d

at 512.

2. Trooper Riefers

Trooper Riefers also articulated several factors informing his suspicion

that Bryant and Clark were engaging in criminal activity. For example, Bryant

began exhibiting extreme signs of nervousness when asked if he was

transporting anything illegal. Additionally, Bryant and Clark gave Trooper

Riefers conflicting accounts oftheir travel plans. Clark told Trooper Riefers that

they were headed to the Dallas/Fort Worth area while Bryant said they were

traveling to see his uncle in North Carolina. Trooper Riefers also found the car

rental agreement to be suspicious because the car was rented in the name of

Clark’s girlfriend, who was not present, and Clark’s name was handwritten into

the agreement despite a separate section indicating that there were no

additional authorized drivers. Trooper Riefers also found it suspicious that

Bryant and Clark were traveling along a known drug-trafficking corridor in a

rental car, whose interior indicated “hard” travel based on the energy drinks,

water bottles, and snack containers within it. The close proximity of the cars

also heightened his suspicion thatthe two were traveling in tandem with atleast

one other vehicle, which is a common drug-trafficking tactic.

Based on the totality of these facts, Trooper Riefers was justified in

continuing the detention. See, e.g., Pack, 612 F.3d at 361–62 (finding extreme

nervousness, irreconcilable stories, and the location of a stop on a highway

frequently used by drug smugglers sufficient to establish reasonable suspicion

justifying a prolonged detention); Brigham, 382 F.3d at 509 (finding a prolonged
No. 11-11228

13

detention reasonable based the defendant’s presentation of a fake I.D., his

inconsistent explanation for his trip, his extreme nervousness, and the absence

of the authorized driver listed on the car rental agreement). Bryant and Clark

argue that the length of the detention was unreasonable because Trooper

Riefers’s suspicion should have been dispelled after the half-hour consensual

search yielded no results. Trooper Riefers testified, however, that his search

provided information consistent with his earlier suspicion, namely, the lack of

receipts for the energy drinks and snacks, the tampering of the area under the

windshield, and the loose grommets and screws. It was also during this time

that Trooper Riefers learned thatthe driver that Trooper Dollar pulled over was

telling a similar travel story to Bryant. Based on these additional discoveries

and cognizant that there is “no constitutional stopwatch on traffic stops,”

Brigham, 382 F.3d at 511, we cannot say that Trooper Riefers did not diligently

pursue a means of investigation that was likely to confirm or dispel his

suspicion. As a result, the district court correctly determined that reasonable

suspicion justified the prolonged detention.

C. Consent

Bryant and Clark’s final argument is that Bryant did not consent to

having the car searched at the DPS office. They do not dispute the validity of

Bryant’s initial consent to search the car but argue that the search at the DPS

office constituted a second warrantless search that also required valid consent.

“To be valid, consent to search must be free and voluntary.” United States

v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993). Voluntariness is determined from

the totality of the circumstances. Id. We make this determination by

considering six factors:“(1)the voluntariness ofthe defendant’s custodial status;

(2) the presence of coercive police procedures; (3) the extent and level of the

defendant’s cooperation with the police; (4) the defendant’s awareness of his

right to refuse to consent; (5) the defendant’s education and intelligence; and (6)
No. 11-11228

14

the defendant’s beliefthat no incriminating evidence will be found.” Jenson, 462

F.3d at 406. Each of these six factors is relevant, but no single one is dispositive.

Jones, 234 F.3d at 242. The government has the burden of proving, by a

preponderance of the evidence, that the consent was voluntary. United States

v. Shabazz, 993 F.2d 431, 438 (5th Cir. 1993).

In analyzing Bryant’s consent,the magistrate judge noted that atthe time

Bryant consented to both the initial search of the car and the search at the DPS

office, he had all of the documents necessary for legal travel in his possession.

Cf. Santiago, 310 F.3d at 343 (noting as one ground to support invalid consent

that the trooper had not returned the defendant’s driver’s license and

registration). Additionally, the magistrate judge found no evidence that Trooper

Riefers was acting in a coercive fashion. Bryant was cooperative with Trooper

Riefers throughout the process even though he had begun to express

dissatisfaction with the length of the search. Though Bryant was never

explicitly told that he was free to go, he gave an indication that he was aware he

could refuse consent when he previously stated that he would have done so if he

had known it was going to take so long. At no point during the search, however,

did Bryant withdraw his undisputed initial consent. Instead, when he was told

by Officer Dawson that there was reasonable suspicion to detain him further,

Bryant responded, “I’ll let you do your search and then I can be on my way.” No

narcotics were found in Bryant’s car so it is likely that he believed no

incriminating evidence would be found at the time he gave his consent.

Taken as a whole, the balance of the factors tends to support the district

court’s finding that Bryant voluntarily consented to taking the car to the DPS

office. Because there is nothing in the record to suggest any clear error in the

district court’s determination that Bryant’s consent was voluntarily given, we

affirm.
No. 11-11228

15

Conclusion

For the foregoing reasons, the judgment of the district court is

AFFIRMED.