UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4191

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALEJANDRO FLORES,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Asheville. Lacy H. Thornburg, 

District Judge. (1:08-cr-00073-LHT-1)

Argued: January 29, 2010 Decided: March 5, 2010

Before TRAXLER, Chief Judge, NIEMEYER, Circuit Judge, and 

Jackson L. KISER, Senior United States District Judge for the 

Western District of Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Andrew Brady Banzhoff, Asheville, North Carolina, for 

Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES 

ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF:

Edward R. Ryan, Acting United States Attorney, Charlotte, North 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Alejandro Flores (“Flores”) pled guilty to possession with 

intent to distribute at least five kilograms of cocaine in 

violation of 21 U.S.C. § 841(a)(1) and received a sentence of 

seventy months of imprisonment and three years of supervised 

release. Flores’s guilty plea was conditional pursuant to Rule 

11(a)(2) of the Federal Rules of Criminal Procedure and reserved 

his right to appeal the district court’s denial of his motion to 

suppress all evidence seized from the search of his vehicle and 

trailer. On appeal, Flores argues that the trial court should 

have granted his motion because the stop of his vehicle and 

ensuing search violated the Fourth Amendment. For the reasons 

that follow, we conclude that the search and seizure of Flores’s

vehicle and trailer was consistent with Constitutional mandates. 

Specifically, we find that the entire search was within the 

scope of Flores’s consent and that the troopers had probable 

cause to conduct the search even absent consent. Accordingly, 

we affirm.

I. Facts

On June 10, 2008, at approximately 11:00 a.m., North 

Carolina State Highway Patrol Trooper Ray Herndon (“Trooper 

Herndon” or “Herndon”) was on stationary patrol on Interstate 40 

in Haywood County, North Carolina. He observed Flores’s white 
3

Ford Bronco traveling east, and as the vehicle approached 

Trooper Herndon, Flores braked sharply, causing his vehicle to 

travel to the right of the white fog line and nearly collide 

with the bridge rail.1

Approaching the vehicle on the passenger side, the trooper 

noticed “greasy smudges all over the white rims” of the twowheel trailer affixed to the Bronco. He also observed that the 

lug nuts appeared to have been worn to the point they were very 

shiny, as if they had been taken off and put on numerous times. 

The flat bed trailer contained only a spare tire, and the 

tailgate was wired shut. Although the Bronco displayed a 

Colorado license plate, the trailer had an Arizona registration 

plate. 

 As the Bronco passed Herndon at 

approximately sixty miles per hour, the trooper observed Flores 

“sitting very fixed and rigid” in his seat and tightly grasping 

the steering wheel. Although Herndon acknowledged that everyone 

is nervous during a traffic stop, he described Flores’s reaction 

to seeing him as “extreme.” The trooper pursued Flores and 

observed the Bronco travel across the fog line once more, 

traverse back into its lane, and then cross the dotted center 

line. After following Flores for approximately two miles, 

Herndon initiated a vehicle stop at 11:05 a.m.

 1 The bridge railing at that section of the highway was 

approximately one and a half to two feet from the fog line.
4

In the cabin, Trooper Herndon observed Flores sitting in 

the driver’s seat, an adult female sitting in the passenger 

seat, and a juvenile female with a dog seated in the back. 

Herndon asked for Flores’s license and registration, at which 

point he observed that Flores’s hands were shaking so 

dramatically that he repeatedly fumbled in his attempts to 

retrieve his driver’s license from his wallet. Flores was 

breathing out of his mouth as if out of breath, and the whole 

side of his neck was visibly pounding with a rapid pulse. The 

adult female passenger opened the glove box to search for the 

vehicle’s registration, and Trooper Herndon noticed her hands 

were also visibly shaking, and she appeared to have a rapid 

pulse as well. The trooper was alarmed by this behavior, 

particularly the extent of nervousness of the female passenger, 

because such passengers are not typically nervous during traffic 

stops. Sensing something was not right, Herndon asked Flores to 

join him at the rear of the vehicle. After obtaining consent, 

the trooper patted Flores down for weapons and noted Flores’s

heart was racing “as if he had been exercising heavily.” 

Trooper Herndon advised Flores he had stopped him because 

he was “all over the road,” and the two had a brief conversation 

in English about Flores’s lane violations. Afterward, the 

trooper asked Flores to sit in the front passenger seat of his 

patrol car while he checked Flores’s license and registration. 
5

Although there was no problem with Flores’s license or the 

registration on the Bronco, the Arizona trailer was not 

registered under Flores’s name or the name provided by Flores.2

After Herndon returned Flores’s license and registration 

and issued him a copy of the warning, the trooper asked Flores 

if he could ask him some questions before he left. Flores 

agreed, and Herndon posed some general inquiries about where 

Flores was going and why, to which Flores replied they were 

traveling to somewhere in North Carolina to move the female 

passenger’s uncle’s belongings to Colorado. Flores could not 

identify the destination city in North Carolina or the uncle’s 

name. He did, however, indicate they would be moving all of the 

uncle’s belongings, including sofas, couches, and tables, 

despite the trooper’s opinion that the five foot by twelve foot 

trailer could not reasonably accommodate that many items. 

 

Trooper Herndon notified Flores he would only receive a warning 

for his lane violations, but Flores continued to exhibit a 

“[h]eightened state of nervousness,” thereby further arousing 

the trooper’s suspicions. 

Increasingly suspicious, Herndon asked Flores if he could 

speak with the adult female passenger, whom Flores identified as 

 2 Before Trooper Herndon checked the registration, Flores 

identified an individual named “Juan” as the owner of the 

trailer. Trooper Herndon’s check revealed it was actually 

registered to “a Pablo something.”
6

“Marilena or Marilyn,” his girlfriend of “five, six, seven 

years.” Flores agreed, and the trooper proceeded to the Bronco, 

where the female passenger identified herself as Nereyda Mendez

(“Mendez”).3

Herndon returned to his patrol car to discuss the 

inconsistencies between Flores’s and Mendez’s stories. 

Ultimately, the trooper explained to Flores that he suspected 

them of possessing illegal contraband, and he requested 

permission to search Flores’s vehicle. Flores consented, both 

orally and in writing.

 Mendez confirmed that she was Flores’s girlfriend 

and that they were traveling to a location in North Carolina to 

pick up furniture to move to Colorado. Mendez identified the 

owner of the furniture as her cousin, though, and when asked for 

his or her name, Mendez responded with a blank stare. 

Eventually, Mendez articulated they were traveling to Lumberton, 

North Carolina, but she was not able to produce a name for the 

cousin. Throughout the conversation, Trooper Herndon continued 

to notice “a quick, rapid pounding pulse” in Mendez’s neck, 

which the trooper found abnormal. 

4

 3 “Marilyn or Marilena” turned out to be the name of the 

young girl seated in the back of the Bronco.

 Flores inquired whether the trooper 

would damage the vehicle in the search, and Herndon said he 

4 Trooper Herndon used a printed “consent to search” form 

that included Flores’s information, the vehicle information, and 

the trailer information. The Trooper did not read the form to 

Flores or advise him of any rights in relation to the form. 
7

would not, but “if [he] did damage it accidentally or something, 

. . . [the Highway Patrol] would take care of the damage.” 

Herndon then requested assistance, and Trooper Michael Hicks 

(“Trooper Hicks”) arrived shortly thereafter to aid in the 

search. 

During the search, Flores remained in Herndon’s patrol car. 

Trooper Hicks stood by the patrol car door with Mendez, the 

juvenile child, and the dog. No one was handcuffed. Trooper 

Herndon started by searching the Bronco. Despite the parties’ 

explanation about traveling across the country, Trooper Herndon 

found no luggage. The trooper then proceeded to examine the 

trailer. Herndon noticed that the lug nuts on the driver’s side 

were shiny, just as on the passenger side, and there were greasy 

smudges on the rims, just like on the other side. The floor of 

the trailer was “very thin” and had no reinforcement, and the 

axles “appeared to be extremely large” for such a small, 

lightweight trailer. Herndon laid on the ground to examine the 

axles further, and he observed several locations with new bolts 

and greasy handprints. Trooper Herndon’s examination convinced 

him the shackles had been removed many times, and the axles 

“obviously . . . had been apart.” This further increased 

Herndon’s suspicions, as trailer axles do not typically require 

much maintenance. Because of his training and experience in 

drug interdiction, the trooper was aware that axles are a common 
8

place to conceal contraband due to their being hollow. Based on 

this information--as well as the parties’ nervousness and their 

vague and conflicting stories--he “became quite confident that 

the axles likely contained some kind of illegal contraband.” 

Trooper Herndon determined he could not conduct further 

inspection of the axles at the roadside, so he asked Mendez if 

she would be willing to travel with the troopers to the next 

exit so they could continue searching for contraband. Herndon 

then asked Mendez to assist him in explaining to Flores in 

Spanish what Herndon wanted to do. Although Flores had spoken 

“perfect English” that day, Herndon believed the conversation 

was becoming more complex, and he wanted to make “double sure” 

Flores understood. After Mendez finished explaining the 

situation, Flores consented to the additional search. Flores 

then drove the Bronco to a Pilot truck stop service bay at the 

next exit. Herndon asked Trooper Hicks to accompany Flores, 

Mendez, and the juvenile child to the Pilot store and to the 

restroom if they wished while Herndon examined the axles. 

According to Herndon, Flores, Mendez, and the child were free to 

move about. 

Upon closer inspection, Trooper Herndon confirmed the 

presence of the greasy handprints, shiny bolts, new shackle 

bolts, and other evidence the axles had been tampered with and 

removed. He determined the quickest, least intrusive, and most 
9

efficient way to investigate would be to drill a small hole in 

the axle, as that would not damage its functionality. Using a 

5/16 inch drill bit, Herndon drilled a hole into the axle 

approximately one foot from the right side. Although the axle 

should have been hollow, the trooper encountered another sleeve 

inside the axle. According to Trooper Herndon, this sort of 

inner sleeve is often used by smugglers to facilitate ease of 

insertion and removal of contraband inside an axle. Upon 

drilling into the inner sleeve, the trooper noticed a white, 

powdery substance on the end of his drill, and he immediately 

smelled cocaine. A field test revealed the substance was indeed 

cocaine. When Flores and Mendez returned from the Pilot store, 

Herndon arrested them. Further inspection of the axle revealed 

eighteen bundles of cocaine, which weighed out to a total of 

approximately nine kilograms. 

After a suppression hearing, the district court denied 

Flores’s motion to suppress evidence obtained as a result of the 

search and seizure of Flores and his vehicle. Judge Thornburg 

first determined that Trooper Herndon’s initial stop of Flores 

was proper because there was probable cause to believe Flores 

violated North Carolina traffic law. By state statute, law 

enforcement personnel may issue warning tickets for conduct that 

may potentially cause harm to the public. Since Trooper Herndon 

observed Flores cross the fog line twice and center line once, 
10

the stop was proper. Second, Judge Thornburg ruled that the 

“numerous conversations between Trooper Herndon and Flores 

established” that Flores’s consent was knowingly and voluntarily 

given, including the consent to move the Bronco to a second 

location for further searching. The Judge found Flores could 

readily understand and respond to the trooper’s questions and 

pose his own, and Trooper Herndon did not employ a menacing or 

intimidating tone. Judge Thornburg further determined that the 

trooper’s failure to notify Flores of his right to refuse 

consent did not vitiate the voluntariness of his consent. 

Third, the district court held that drilling a hole in Flores’s 

axle did not exceed the scope of consent. Given Trooper 

Herndon’s explicit questions about drugs, the Judge concluded a 

reasonable person would have understood that the trooper was 

asking for consent to search the entire vehicle and trailer for 

contraband. Although Flores inquired about damage to the 

vehicle, he did not object when the trooper mentioned the 

possibility the Highway Patrol might have to repair some damage, 

so he did not limit his consent. Furthermore, drilling a small 

hole was a reasonable method of conducting the search, as the 

likely alternative would have required the troopers to prolong 

the search by completely dismantling the axle. Finally, Judge 

Thornburg determined Trooper Herndon, based on his training and 
11

experience, had probable cause to search the axle and employed 

the least intrusive method of doing so. 

II. Analysis

In reviewing a trial court’s denial of a motion to 

suppress, this Court reviews factual findings for clear error 

and legal determinations de novo. Ornelas v. United States, 517 

U.S. 690, 699 (1996); United States v. Mowatt, 513 F.3d 395, 399 

(4th Cir. 2008); United States v. Hamlin, 319 F.3d 666, 671 (4th 

Cir. 2003). 

A. Legality of the Stop

Flores argues the district court erred in determining that 

Trooper Herndon’s initial stop was consistent with the Fourth 

Amendment. Flores acknowledges the traffic offense of “Failing 

to Maintain a Lane,” codified as follows: “A vehicle shall be 

driven as nearly as practicable entirely within a single lane 

and shall not be moved from such lane until the driver has first 

ascertained that such movement can be made with safety.” N.C. 

Gen. Stat. § 20-146(d)(1) (2008). Flores asserts, however, that 

crossing the fog line twice and the center line once does not 

amount to a violation of section 146(d)(1). In support of his 

argument, Flores relies on United States v. Gregory, 79 F.3d 973 

(10th Cir. 1996), a case in which the Tenth Circuit examined a 
12

similar Utah statute and concluded that weaving into the 

emergency lane once was not a traffic violation providing 

probable cause for search and seizure. Therefore, according to 

Flores, Trooper Herndon lacked probable cause to make the 

initial stop. Alternatively, Flores asserts that no North 

Carolina appellate case has concluded that crossing the fog line 

constitutes a violation of section 146(d)(1).

The Government responds that Flores’s swerving off the road 

amounted to a violation of section 20-146(d)(1). Based on State 

v. Baublitz, 172 N.C. App. 801, 616 S.E.2d 615 (N.C. Ct. App. 

2005), and United States v. Gallardo-Gonzales, No. 08-4284, 2009 

WL 1426907 (4th Cir. May 22, 2009), the Government argues that a 

stop based on a “readily observable” traffic violation is 

supported by probable cause. Alternatively, even if crossing 

the fog and center lines was not sufficient to provide probable 

cause, the Government asserts that the trooper’s subjective 

belief that criminal activity might have been afoot, based on 

the totality of the circumstances known to the trooper, rendered 

the stop reasonable.

It is well-established that “the decision to stop an 

automobile is reasonable where the police have probable cause to 

believe that a traffic violation has occurred.” Whren v. United 

States, 517 U.S. 806, 809-10 (1996). In other words, “‘[w]hen 

an officer observes a traffic offense--however minor--he has 
13

probable cause to stop the driver of the vehicle.’” United 

States v. Hassan-El, 5 F.3d 726, 730 (4th Cir. 1993) (quoting 

United States v. Cummins, 920 F.2d 498, 500 (8th Cir. 1990)). 

Additionally, pursuant to state and federal precedent, when a 

North Carolina patrol trooper observes a driver swerving out of 

his or her lane, the trooper has probable cause for a stop. See

Gallardo-Gonzales, 2009 WL 1426907, at *1 (holding that 

Gallardo-Gonzales’s “readily observable” violation of section 

20-146(d) provided the officer with probable cause to effectuate 

a stop); Baublitz, 172 N.C. App. at 807, 616 S.E.2d at 619 

(concluding that the investigator’s two observations of Baublitz 

crossing the center line of a highway in violation of section 

20-146(a) supplied probable cause for the stop). 

Based on the precedent, there can be little doubt the 

district court was correct in ruling Trooper Herndon had 

probable cause to stop Flores. When Flores first noticed the 

trooper, his Bronco suddenly swerved right of the fog line and 

nearly collided with the bridge railing. The trooper pursued 

Flores and observed two additional instances of his inability to 

maintain a single lane. Although Flores appears to be correct 

that no North Carolina state appellate court has addressed 

whether this sort of conduct constitutes a violation of the 

statute, at least one unpublished case from this Court has 

concluded, with little difficulty, that a single incident of 
14

crossing over the fog line is a violation of that section. See

Gallardo-Gonzales, 2009 WL 1426907, at *1. Moreover, the 

absence of state precedent on the matter may simply be due to 

the fact that the language found in section 20-146(d)(1) is so 

clear that there can be little doubt that swerving in and out of 

a lane constitutes a violation of the statute unless additional 

circumstances make maintenance of a single lane impractical. 

See § 20-146(d)(1). In any event, Flores’s three readily 

observable traffic infractions permitted Trooper Herndon to 

effectuate a stop consistent with the Fourth Amendment. See

Whren, 517 U.S. 816; Gallardo-Gonzales, 2009 WL 1426907, at *1; 

Baublitz, 172 N.C. App. at 807, 616 S.E.2d at 619; see also N.C. 

Gen. Stat. § 20-183(b) (2008) (authorizing law enforcement to 

issue warning tickets for conduct that could harm the public).

Flores’s reliance on the Tenth Circuit’s opinion in United 

States v. Gregory is misplaced. Although the Utah statute in 

Gregory is similar to section 20-146(d),5

 5 In Gregory, the court interpreted Utah Code section 41-6-

69(1), which provides that “[a] vehicle shall be operated as 

nearly as practical entirely within a single lane and may not be 

moved from the lane until the operator has determined the 

movement can be made safely.” Gregory, 79 F.3d at 976 n.2.

the facts presented are 

substantially different. In ruling that the officer did not 

have probable cause to stop Gregory, the Tenth Circuit 

emphasized that Gregory’s single lane crossing was likely due to 

the winding road, mountainous terrain, and windy conditions. 
15

Gregory, 79 F.3d at 978. The court noted that the Utah statute 

only requires a vehicle to remain in a single lane “as nearly as 

practical” and concluded that, “[u]nder these conditions[,] any 

vehicle could be subject to an isolated incident of moving into 

the right shoulder of the roadway[] without giving rise to a 

suspicion of criminal activity.” Id. (emphasis added). Unlike 

in Gregory, the present case presents no indication that weather 

or road conditions made it impractical for Flores to maintain a 

single lane. Moreover, unlike Gregory, Trooper Herndon observed 

Flores swerve out of his lane three times, not just once. 

Gregory is therefore distinguishable from the present facts, and 

nothing on the record indicates the district court erred in fact 

or law in holding that probable cause supported the initial 

stop.

B. Consent to Search and Seize

Flores next argues that Trooper Herndon did not have valid 

consent to search the vehicle and trailer. First, Flores 

maintains that Herndon should have let Flores go after returning 

Flores’s license and registration and issuing him a ticket, as 

Flores’s nervousness was not sufficient to create a reasonable 

suspicion of additional criminal activity.6

 6 According to Flores, “[t]he Trooper later acknowledged 

that the defendant’s status as an illegal alien might have 

 Second, Flores 
16

asserts that the language employed by Trooper Herndon to ask 

Flores if he could pose additional questions was “coercive and 

confusing” and conditioned Flores’s freedom to leave on his 

willingness to answer questions.7 According to Flores, this 

rendered Flores’s continued detention involuntary and vitiated 

his consent. Third, Flores argues that “the physical appearance 

of the officer, including his all black para-military style 

outfit[] and his physically imposing size provided an inherently 

coercive atmosphere . . . .”8

 

accounted for his nervousness.” This reading of the testimony 

is patently incorrect. The portion of the record cited by 

Flores reads as follows:

 When coupled with the fact that 

Trooper Herndon did not advise Flores of his rights or ability 

to refuse consent, this further rendered Flores’s consent 

Q. Would you agree, wouldn’t you, that if he was in 

this country illegally, that certainly would account 

for that nervousness[?]

A. You want my opinion? Is that what you’re asking?

Q. Well, I mean—

A. I don’t necessarily agree with your broad statement 

there, no.

Q. If he is an illegal alien, that certainly would 

make him nervous in the presence of a law enforcement 

officer, wouldn’t [it]?

A. Well, that would depend on the illegal alien. 

Everybody is different.

7 Trooper Herndon testified that he wrote in his report: “I 

asked Mr. Flores if I could ask him some questions before he 

left.”

8 Flores’s Brief details Trooper Herndon’s clothing, height, 

and weight on the date in question. The description appears to 

match that of a normal highway patrol officer and does not 

present anything even arguably out of the ordinary.
17

involuntary. Flores argues he would not have subjected himself 

to the “embarrassment and humiliation” of traveling by police 

escort to the truck station but for his belief he was not free 

to decline.

The Government counters that the evidence reveals Flores 

knowingly and voluntarily consented to the searches of his 

vehicle, including both the initial search and the later search 

at the truck station. Relying on several Fourth Circuit cases, 

the Government argues Herndon’s return of Flores’s driver’s 

license and registration was a crucial moment separating the 

compulsory portion of the stop from the voluntary portion. 

According to the Government, once Herndon returned Flores’s 

driver’s license and registration and issued a warning, the 

trooper’s language and conduct would have led a reasonable 

person to believe any further questioning was voluntary. Under 

these circumstances, Flores’s explicit, verbal consent to 

additional questioning prevents the conclusion that the 

continued inquiry violated the Fourth Amendment. The Government 

notes, based on Fourth Circuit precedent, that advising Flores 

of his right to refuse consent was not a prerequisite to it 

being voluntary. The Government further asserts that Flores’s 

statements and conduct--including the fact that Flores helped 

the troopers move the Bronco and trailer to the truck station 

with knowledge of Trooper Herndon’s specific suspicions--provide 
18

ample proof of his consent to the later search. Finally, the 

Government points out that the district court found no evidence 

of coercion. Therefore, based on the totality of the 

circumstances, the Government maintains that the lower court’s 

decision should be upheld.

Even where an initial stop is justified by probable cause, 

after satisfying the purpose for which the stop was made and 

issuing a citation or warning, the officer must permit the 

driver to proceed on his way without further delay, and any 

continued detention for questioning is illegal absent a 

reasonable suspicion of a serious crime. United States v. 

Foreman, 369 F.3d 776, 781 (4th Cir. 2004); United States v. 

Rusher, 966 F.2d 868, 876-77 (4th Cir. 1992). In circumstances 

where the individual would be free to go but voluntarily stays 

and engages in a dialogue with the officer, however, the 

questioning is considered consensual and does not trigger Fourth 

Amendment scrutiny. United States v. Meikle, 407 F.3d 670, 672-

73 (4th Cir. 2005). This exception applies where “a reasonable 

person would have felt free to decline the officer’s request or 

otherwise terminate the encounter.” Id. at 672. Likewise, 

although a warrantless search conducted without consent is per 

se unreasonable, voluntary consent to search is an exception to 

that general rule. Schneckloth v. Bustamonte, 412 U.S. 218, 219 

(1973). In examining whether consent was freely and voluntarily 
19

given, the court must consider the totality of the circumstances 

surrounding the consent, including the age, maturity, education, 

intelligence, and experience of the defendant, as well as the 

conditions under which the consent was given. United States v. 

Lattimore, 87 F.3d 647, 650 (4th Cir. 1996). The question of 

voluntariness of consent is a factual question, and the district 

court’s conclusion should be upheld unless the finding is 

clearly erroneous. Id. Where the lower court “bases a finding 

of consent on the oral testimony at a suppression hearing, the 

clearly erroneous standard is particularly strong since the 

[court] had the opportunity to observe the demeanor of the 

witnesses.” Id. at 650-51 (internal quotation omitted).

In this case, the district court’s determination that 

Flores voluntarily consented to Trooper Herndon’s continued 

questioning is not clearly in error. In fact, this case 

presents an almost identical set of facts to those in Meikle. 

In Meikle, as here, an officer stopped the defendant for 

crossing the fog line and became suspicious about drugs due to 

the defendant’s “extreme nervousness,” which continued even 

after the officer notified the defendant he would only receive a 

warning. 407 F.3d at 671. After returning the defendant’s 

license and registration and issuing the warning, the officer 

“asked [the defendant] if he could talk to him again,” and the 

defendant replied “yes.” Id. We there concluded that, having 
20

reacquired his license and registration and received the 

warning, a “reasonable person would have felt free to decline 

[the officer’s] request to speak” further, despite the officer’s 

failure to explicitly say that the defendant was free to go or 

that he could refuse consent. Id. at 673. In the present case, 

the district court found that Trooper Herndon posed his request 

for further questioning in a manner similar to the officer in 

Meikle, and Flores replied with an affirmative “yes.” As in 

Meikle, the trooper’s language, coupled with the surrounding 

circumstances, would inform a reasonable person that he or she 

could refuse consent. Nothing in the record indicates that the 

trooper used a menacing or intimidating tone, and Flores’s 

description of Herndon’s physical appearance does not seem out 

of the ordinary in any respect. At the time Herndon requested 

the opportunity for additional questioning, the trooper had 

already returned Flores’s license and registration, so Herndon 

was not withholding or restricting Flores’s means of going about 

his business. See United States v. Weaver, 282 F.3d 302, 310-11

(4th Cir. 2002) (describing the significance of returning a 

defendant’s license and registration). Although Herndon did not 

notify Flores of his right to refuse consent, “the Government 

need not demonstrate that the defendant knew of his right to 

refuse consent to prove that the consent was voluntary.” 
21

Lattimore, 87 F.3d at 650.9

Nor can it be said the district court erred in concluding 

Flores consented to the initial search of his vehicle and the 

later search at the truck station. Contrary to Flores’s 

argument that Trooper Herndon employed confusing language to 

elicit consent, it appears the trooper went to considerable 

lengths to ensure Flores understood exactly what the officer was 

asking. Prior to requesting permission to search, Herndon 

specifically inquired whether Flores was carrying illegal drugs 

“such as marijuana, cocaine, methamphetamine, [or] heroin” in 

his vehicle. The trooper then explained that he suspected 

Flores of engaging in criminal activity and requested permission 

to search Flores’s vehicle for contraband. Only after this did 

Flores provide consent--both verbally and in writing--to the 

search. Even if Flores’s English reading skills were limited in 

 Based on all of these factors, the 

district court did not err in finding Flores voluntarily 

consented to the questioning.

 9 The Supreme Court elaborated on this point in Ohio v. 

Robinette, 519 U.S. 33 (1996):

“While knowledge of the right to refuse consent is one 

factor to be taken into account, the government need 

not establish such knowledge as the sine qua non of an 

effective consent . . . . [S]o too would it be 

unrealistic to require police officers to always 

inform detainees that they are free to go before a 

consent to search may be deemed voluntary.”

Id. at 39-40.
22

some degree, as Flores argued before the district court, he was 

able to converse in perfect English with Trooper Herndon 

throughout their numerous conversations. He demonstrated his 

ability to understand the trooper’s questions and respond 

appropriately. By asking whether Herndon would damage his 

vehicle in the search, he further established he was able to 

pose questions of his own. At the very least, Flores’s verbal 

consent to the initial search was free, voluntary, and knowingly 

provided, and nothing in the record or testimony indicates 

Flores was confused about what the trooper was asking. 

Moreover, when Herndon concluded he could not properly 

search the vehicle on the side of the highway, he employed 

Mendez’s Spanish-speaking skills “to make double sure that 

[Flores] understood” what the trooper was asking. Flores 

unequivocally responded that “that was fine,” and the troopers 

could do “whatever [they] needed to do.” To further evince his 

consent, Flores then proceeded to drive his Bronco and trailer 

to the truck stop, park it in the service bay, and exit the 

vehicle so the trooper could continue his search. Based on all 

of these circumstances, as established at the suppression 

hearing through Trooper Herndon’s testimony, the district court 

did not commit clear error in finding Flores consented to both 

searches.
23

C. Scope of Consent and Probable Cause to Search

In his third assignment of error, Flores argues that he 

limited his consent by requesting that the troopers not damage 

his vehicle. Because of this, Flores asserts that Herndon could 

only have drilled into his axle if they had probable cause, 

which Flores maintains they lacked. According to Flores, 

although Trooper Herndon testified at length about the axles not 

appearing to be “factory axles,” that created nothing more than 

an inarticulable hunch insufficient to form probable cause. 

Relying on case law from other Circuits, Flores argues that, 

although the axles could be capable of holding contraband, the 

troopers did not have any additional specific facts indicating a 

fair probability that drugs would be found therein, thereby 

depriving them of probable cause.

The Government responds with three justifications 

supporting the district court’s conclusion that the troopers did 

not exceed the scope of Flores’s consent. First, the Government 

argues that Flores did not limit the scope of his consent; he 

simply inquired whether the troopers would damage his vehicle in 

the search. When Trooper Herndon responded that the Highway 

Patrol would take care of any damage that occurred, Flores did 

not object, thereby demonstrating his satisfaction with the

trooper’s answer. Second, the government maintains that, in

driving his Bronco and trailer to a truck stop mechanic’s bay, 
24

Flores understood the troopers would be looking for drugs in 

hidden areas, including the axles. By going along with this, 

Flores’s conduct bolsters the conclusion that the search of the 

axles was within the scope of his consent. Third, even if 

Flores limited the scope of his consent by inquiring about 

damage, the Government asserts that drilling the axles did not 

exceed the limitation, as the small drill hole did not impair 

the functionality of the axles in any way.

Where a defendant argues that law enforcement officers 

exceeded his or her consent, “[t]he standard for measuring the 

scope of . . . consent under the Fourth Amendment is that of 

‘objective’ reasonableness--what would the typical reasonable 

person have understood by the exchange between the officer and 

the suspect?” Florida v. Jimeno, 500 U.S. 248, 251 (1991) 

(citing Illinois v. Rodriguez, 497 U.S. 177, 183-89 (1990), 

Florida v. Royer, 460 U.S. 491, 501-02 (1983), and id. at 514 

(Blackmun, J., dissenting)); see also United States v. Neely, 

564 F.3d 346, 350 (4th Cir. 2009). In this case, the district 

court correctly concluded that a reasonable person in Flores’s 

position would have understood he was consenting to a search of 

the trailer’s axles. Flores inquired whether the search would 

cause any damage to his vehicle, and Trooper Herndon notified 

him of that possibility. Only after that notice did Flores 

execute the written consent to search form, thereby consenting 
25

with full awareness that the troopers might look within the 

axles. Additionally, when Trooper Herndon asked for additional 

consent to move the vehicle to the Pilot station, he explicitly 

stated the reason he wished to do so: he wanted to conduct a 

“closer inspection of the trailer axles because [he] suspected 

they contained some kind of contraband.” At the point Flores 

again consented, he was conscious to both the possibility of 

damage and the trooper’s interest in the contents of the axles. 

In other words, based on the trooper’s numerous explanations, at 

the time Flores consented to the continued search, a reasonable 

person would have known what the search would entail.

In addition, the district court did not err in finding that 

Trooper Herndon, based on his training and experience, had 

probable cause to search the axle. If an officer has probable 

cause to believe a suspect is engaged in criminal activity, the 

officer may search the suspect’s vehicle even absent consent or 

a warrant. United States v. White, 549 F.3d 946, 949 (4th Cir. 

2008). Probable cause exists where “there is a fair probability 

that contraband or evidence of a crime will be found in a 

particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). 

In evaluating whether the officer had probable cause, courts 

examine the totality of the circumstances. White, 549 F.3d at 

949.
26

Although there does not appear to be any Fourth Circuit 

precedent with analogous facts, case law from other 

jurisdictions lends support for the district court’s finding of 

probable cause. For instance, in United States v. MartelMartines, the Eighth Circuit found that officers had probable 

cause to search a suspect’s vehicle by punching a hole in the 

suspect’s truck bed based on the suspect’s evasive and 

inconsistent responses to questions, the fact that the suspect’s 

vehicle’s underside had been modified, and the existence of an 

inaccessible hidden compartment in the suspect’s truck. 988 

F.2d 855, 858-59 (8th Cir. 1993). Likewise, in United States v. 

Arango, the Tenth Circuit held that the existence of a secreted 

compartment in the defendant’s truck, coupled with the fact that 

the defendant did not have adequate luggage for his reported 

two-week vacation, supplied probable cause. 912 F.2d 441, 447 

(10th Cir. 1990). In United States v. Price, where burn marks 

on the bed of a truck drew the attention of officers, who then 

discovered a secret compartment within the bed, the Fifth 

Circuit determined the officers had probable cause to search the 

compartment itself. 869 F.2d 801, 804 (5th Cir. 1989). 

Although customization of an automobile, standing alone, is 

likely insufficient to support probable cause, see United States 

v. Orrengo-Fernandez, 78 F.3d 1497, 1504-05 (10th Cir. 1996), 

Martel-Martines, Arango, and Price indicate that the existence 
27

of a hidden compartment is much more substantial, especially 

when coupled with other factors, see Martel-Martines, 988 F.2d 

at 858-59; Arango, 912 F.2d at 447; Price, 869 F.2d at 804.

Additionally, circumstances indicating that an auto part is 

meant to conceal contraband can provide added support to an 

officer’s belief in the existence of probable cause. In United 

States v. Strickland, an officer noticed an uncharacteristically 

large, incongruently worn tire in the defendant’s trunk. 902 

F.2d 937, 939, 943 (11th Cir. 1990). The tire was made by a 

different manufacturer than the other tires on the vehicle, had 

a bent rim, and was extremely heavy. Id. at 943. When the 

officer moved the tire, he noticed a flopping sound within. Id. 

These factors, coupled with the officer’s specialized knowledge 

based on training and experience in drug concealment methods, 

convinced the Eleventh Circuit that the officer had probable 

cause to cut the tire open and search inside. Id.; see also

United States v. Davis, 458 F.2d 819, 822 (D.C. Cir. 1972) 

(“[C]onduct innocent in the eyes of the untrained may carry 

entirely different ‘messages’ to the experienced or trained 

observer.” (internal quotation omitted)).

In this case, Trooper Herndon noticed the axles on the 

small, lightweight, two-wheel trailer were extremely large, 

especially considering the fact that the trailer bed was not 

reinforced to carry great weights. Upon examining the axles, he 
28

and Trooper Hicks reached the conclusion--based on the numerous 

greasy smudges and handprints, the shiny, worn-down bolts, and 

other signs of removal--that the axles had been taken off and 

put on numerous times, even though such axles usually require 

little maintenance. Because of his eleven years of Highway 

Patrol and drug interdiction experience, Trooper Herndon was 

aware that vehicle axles are a common place for smugglers to 

hide drugs due to the fact that they are just hollow tubes, and 

the unusual size of these axles indicated they contained 

contraband. Moreover, both Flores and Mendez exhibited signs of 

extreme nervousness beyond that normally shown by traffic 

offenders in routine stops. The nervousness was not alleviated

when the Trooper notified Flores he would only receive a 

warning. Flores and Mendez offered differing accounts of where 

they were going and what they were doing. In fact, Flores could 

not identify Mendez’s name, despite claiming she was his 

longtime girlfriend, and neither Mendez nor Flores could provide 

the name of the cousin or uncle they were out to help. 

According to Trooper Herndon, the trailer affixed to Flores’s 

Bronco was clearly insufficient to move all the property Flores 

alleged they would transport, and, despite Flores and Mendez’s 

story that they were traveling across the country, the troopers 

found no luggage consistent with such a voyage. Based on the 

totality of the circumstances, the district court was correct in 
29

concluding that Trooper Herndon had a fair probability of 

discovering contraband in Flores’s trailer axles, and the search 

was permissible under the Fourth Amendment.

Finally, Flores’s argument that the search was not within 

the scope of the Fourth Amendment’s automobile exception due to 

the fact that the vehicle was not “readily mobile” after Flores 

exited is without merit. Numerous cases clarify that the ready 

mobility requirement is meant to distinguish a movable vehicle--

which can easily be relocated to prevent a search for 

contraband--from something that would more appropriately be 

described as a stationary home. See, e.g., California v. 

Carney, 471 U.S. 386, 392-93 (1985); United States v. Brookins, 

345 F.3d 231, 237 n.7 (4th Cir. 2003). In other words, the 

ready mobility element centers on “the nature of the use of the 

vehicle” and is more appropriate for consideration where the 

thing searched was being used as a house or exhibited the 

characteristics of a fixed dwelling rather than a functioning 

vehicle. Brookins, 345 F.3d at 237 n.7; see also Carney, 471 

U.S. at 392-93. Since Trooper Herndon observed Flores’s Bronco 

traveling on a public highway immediately prior to the search, 

this case satisfies the ready mobility requirement, and Flores’s 

objection is unavailing. See Carney, 471 U.S. at 392-93.
30

III. Conclusion

For the above-stated reasons, we affirm the judgment of the 

district court.

AFFIRMED