1The Honorable Richard G. Kopf, Chief Judge, United States District Court for

the District of Nebraska. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 99-2887

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska

Dionicio Perez, *

*

Appellant. *

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Submitted: December 14, 1999

Filed: January 11, 2000

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Before McMILLIAN, JOHN R. GIBSON and MAGILL, Circuit Judges.

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McMILLIAN, Circuit Judge.

Dionicio Perez appeals from a final judgment entered in the United States

District Court1 for the District of Nebraska following his conditional plea of guilty to

one count of possession with intent to distribute methamphetamine, in violation of 21
2The Honorable David L. Piester, United States Magistrate Judge for the District

of Nebraska.

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U.S.C. § 841(a)(1). For reversal, Perez argues that the district court erred in denying

his motion to suppress. For the reasons stated below, we affirm.

Jurisdiction was proper in the district court based upon 18 U.S.C. § 3231.

Jurisdiction is proper in this court based upon 28 U.S.C. § 1291. The notice of appeal

was timely filed pursuant to Fed. R. App. P. 4(b). 

Background

Perez was arrested on August 5, 1998, following a traffic stop and a warrantless

search of his vehicle. He was indicted on August 19, 1998. He filed a motion to

suppress evidence found in his vehicle and statements he made to the police at the time

of his arrest. The matter was referred to a magistrate judge,2 who held a suppression

hearing. The evidence presented at the hearing included the testimony of Perez and the

testimony of the arresting officer, Trooper Frank Peck of the Nebraska State Patrol

(NSP), as well as video and audio tape of the stop, created by a recording system in

Peck's patrol car. Following the hearing, the magistrate judge issued a report and

recommendation. See United States v. Perez, No. 4:98CR3074 (D. Neb. Dec. 15,

1998) (report and recommendation) (hereinafter "slip op."). 

The following is a summary of the facts as found by the magistrate judge. See

id. at 2-6. On August 5, 1998, Trooper Peck observed a black Toyota pickup truck

traveling eastbound on Interstate 80 near Lincoln, Nebraska, appearing to be following

too closely behind the preceding vehicle (in this case, a semi-tractor trailer), in violation

of Nebraska statutory law. Peck requested that another officer traveling in a separate

patrol car, NSP Trooper Chris Bigsby, use a stopwatch to time the separation between

Perez’s vehicle and the semi-tractor trailer as the two vehicles passed by. Bigsby timed
3Bigsby testified that, while communicating with Peck, he may have told Peck

that he observed two Hispanic individuals in the pickup truck. 

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the passing separation as 1.18 seconds, which he reported to Peck.3 Peck testified that

the NSP uses a two-second rule of thumb to determine whether there is sufficient

following distance between two vehicles. Peck proceeded to pull over the pickup truck

at approximately 1:00 p.m. Upon activating his overhead lights, his in-vehicle video

camera turned on automatically. A wireless microphone clipped to Peck’s uniform

recorded the audio portion. 

The pickup truck was driven by Perez, and there was also a passenger in the

vehicle. While Peck was in the process of issuing the citation, he asked Perez to

accompany him to the patrol car. Once in the patrol car, Peck questioned Perez about

the nature and purpose of his trip and about his passenger. Perez stated, among other

things, that the passenger was his cousin, but he could not remember the passenger's

name. Peck walked over to the truck and asked the passenger some questions. The

passenger stated that he and the driver (Perez) were related, but he could not recall how

they were related; nor could the passenger remember their destination. Peck observed

that the passenger's hands were shaking and he appeared nervous.

Peck returned to the patrol car, issued a warning ticket to Perez, and told Perez

not to follow too closely behind other vehicles. Peck returned Perez’s driver’s license

and registration along with the warning ticket at approximately 1:11 p.m. At that point,

Peck asked Perez if he would answer some more questions, and Perez replied "okay."

When asked if there were any pistols or narcotics in the vehicle, Perez said there were

not. When Peck asked if he could search the vehicle for drugs, Perez said "yeah."

Peck then asked whether it was a problem, and Perez said "Oh, no." Peck asked

whether Perez understood what was being asked of him, and Perez said "yeah." At no

point did Peck use a consent-to-search form written in Spanish.

 
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Peck walked back to the pickup truck and asked the passenger to exit the

vehicle. He conducted a patdown search of the passenger and told the passenger to

move away from the vehicle. After initially searching the interior of the vehicle, Peck

retrieved his dog from the back of the patrol car. Peck testified that, upon sniffing the

vehicle, the dog alerted to the right rear passenger cab area. Peck again searched the

interior of the vehicle and this time noticed irregularities in the driver's side speaker.

Inside the speaker, he found a ball-shaped object wrapped in duct tape. He cut into the

object and discovered a white powdery substance. Peck arrested Perez and the

passenger on suspicion of possession of narcotics.

Based upon these facts, the magistrate judge made the following legal

determinations: Peck had a valid basis for stopping Perez for a traffic violation, see id.

at 7; the questions Peck initially asked Perez were within the scope of permissible

inquiry and the answers given by Perez established reasonable suspicion to detain him,

see id. at 8; Perez was never in custody prior to the search and therefore no Miranda

violation occurred, see id. at 9-10; and Perez voluntarily consented to the search of his

vehicle, see id. at 11-12. Accordingly, the magistrate judge concluded that no Fourth

Amendment violation had occurred and recommended that Perez’s motion to suppress

be denied in its entirety. See id. at 12. 

The district court adopted the magistrate judge’s report and recommendation and

denied Perez’s motion to suppress. See id. (Feb. 3, 1999) (memorandum and order).

Defendant entered a conditional guilty plea, reserving the right to appeal the denial of

his motion to suppress. The district court sentenced Perez to 130 months

imprisonment, five years of supervised release, and a special assessment of $100.00.

See id. (June 23, 1999) (judgment). This appeal followed. 

Discussion
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On appeal, Perez argues that the district court erred in holding that (1) Peck had

probable cause to conduct the traffic stop, (2) Peck had reasonable suspicion to detain

him after the warning ticket was issued, and (3) he voluntarily consented to the search

of his vehicle. We disagree. 

We review the district court's findings of historical fact for clear error and its

determinations of probable cause and reasonable suspicion de novo. See Ornelas v.

United States, 517 U.S. 690 (1996). “It is well established that a traffic violation –

however minor – creates probable cause to stop the driver of a vehicle.” United States

v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993). In the present case, the government

established that Peck had probable cause to stop Perez for following too closely behind

the preceding vehicle, in violation of Nebraska law. Moreover, Peck pursued a lawful

line of questions in connection with the traffic stop. See United States v. Ramos, 42

F.3d 1160, 1163 (8th Cir. 1994) (a reasonable investigation of a traffic stop typically

includes asking for a license and registration, asking the driver to sit in the patrol car,

and asking about destination and purpose of travel), cert. denied, 514 U.S. 1134

(1995). Perez’s answers to Peck’s lawful inquiry – for example, his failure to know the

name of his passenger (his alleged cousin) – thereafter established reasonable suspicion

for Peck to detain Perez for a reasonable period of time. See United States v.

Barahona, 990 F.2d at 416 (“if the responses of the detainee and the circumstances give

rise to suspicions unrelated to the traffic offense, an officer may broaden his inquiry to

satisfy those suspicions”). 

We review for clear error the district court's finding that Perez voluntarily

consented to the search of his vehicle. See United States v. Carrate, 122 F.3d 666, 670

(8th Cir. 1998) ("The voluntariness of a person's consent to search is a question of fact

that we review under the clearly erroneous standard."). In the present case, the

magistrate judge explained that finding as follows: 
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It is obvious from the videotape of the stop and [Perez’s] testimony that

English is not [Perez’s] first language. However, on August 5, 1998

[Perez] responded to Peck in English and his responses indicated that he

understood Peck's questions. I therefore conclude that [Perez's] limited

English proficiency did not interfere with his ability to give knowing and

voluntary consent to the search of his vehicle. 

Slip op. at 11. Moreover, the magistrate judge noted that the stop took place in broad

daylight on a busy interstate highway, that Perez, an adult, was not incapacitated in any

manner at the time he consented to the search, that the detention had been brief, and

that nothing was said or done to threaten or coerce him in any manner. See id. Upon

review of the totality of the circumstances, we hold that the district court’s finding that

Perez voluntarily consented to the search of his vehicle was not clearly erroneous. See

United States v. Carrate, 122 F.3d at 670 (notwithstanding defendant’s limited ability

to speak English and troopers’ failure to provide defendant with a written consent-tosearch form, the district court did not clearly err in finding that defendant voluntarily

consented to a search of his car where he understood and appropriately answered all

of the troopers’ questions and the surrounding circumstances supported the finding of

voluntariness).

Conclusion

For the reasons stated, we hold that Perez's Fourth Amendment rights were not

violated and his motion to suppress was properly denied. The judgment of the district

court is affirmed. 
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.