* District Judge of the Eastern District of Louisiana, sitting

by designation. United States Court of Appeals

Fifth Circuit



## FILED

June 27, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-50736

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FIDENCIO SANCHEZ-PENA,

Defendant-Appellant.

Appeal from the United States District Court

For the Western District of Texas

Before GARWOOD and HIGGINBOTHAM, Circuit Judges, and FELDMAN,

District Judge. *

PATRICK E. HIGGINBOTHAM, Circuit Judge:

A jury convicted appellant Fidencio Sanchez-Pena (“Sanchez”)

of aiding and abetting possession with intent to distribute

marijuana, for which he recei ved a sentence of forty-one months’

imprisonment and three years’ supervised release. Prior to trial,

the district court denied Sanc hez’s motion to suppress the drug

evidence police officers found in his car following a traffic stop.-2-

Sanchez appeals the trial court’s ruling on that motion, and also

asserts that one of his attorneys labored under a conflict of

interest during Sanchez’s trial and pretrial proceedings and that

the other rendered ineffective assistance of counsel. Finding no

error, we affirm.

I.

There was testimony at the hearing on the motion to suppress

that on October 19, 2000, at approximately 4 a.m., Brewster County

Deputy Sheriff Ross Bates, while patrolling in a southerly

direction on U.S. Highway 385, observed a blue Suburban traveling

north, partially on the shoulder of the road, at a speed of fortynine miles per hour. The posted speed limit was sixty-five miles

per hour. Bates testified that he had learned during DWI training

that there is a fifty-percent chance that a driver going more than

ten miles below the speed limit is intoxicated; driving on the

shoulder of the road also indicates that the driver is under the

influence.

Based on his suspicion that the driver was intoxicated, Bates

turned his vehicle in a northerly direction and acti vated his

overhead lights to stop the Suburban. The driver of the Suburban

turned on his left turn signal but pulled over to the right of the

roadway. Bates then exited his patrol car and the driver, whom

Bates identified as Sanchez, also exited his vehicle and met the

officer at the front of the police car.-3-

Bates did not notice the smell of alcohol on Sanchez’s breath,

but saw that Sanchez appeared nervous and his hands and knees were

shaking. The two spoke in English without any apparent problems,

and Sanchez presented a valid Texas driver’s license. Sanchez told

Bates that he was coming from Presidio, Texas, and goin g to Del

Rio, Texas. That raised further questions, because Sanchez was not

taking the logical route to reach his destination, choosing to

navigate the hilly, winding road through Big Bend National Park

instead of using a more direct, faster highway route.

Bates asked for proof of insurance, and Sanchez told Bates to

wait by the patrol car wh ile he obtained it from the Suburban.

Howev er, Bates followed Sanchez to his car, and noticed when

Sanchez reached across the driver’s seat to retrieve the insurance

card from the glove box that there was a passenger in the front

seat, whom Bates identified as Sanchez’s co- defendant, Cazares.

Sanchez conversed with C azares in Spanish and then obtained the

insurance paper from the glove compartment. When Sanchez turned

and found Bates behind him, “he kind of jumped a little.” Bates

asked Sanchez to wait while he checked the vehicle’s registration

and for outstanding warrants.

After Bates returned to his vehicle, he received a call from

Border Patrol Agent Tashman advising him about on coming traffic.

Bates told Tashman that he had stopped a blue Suburban and that he

would probably need assistance. Bates, who had a drug-detecting

dog with him, determined that a canine inspection should be-4-

conducted on the vehicle based on its suspicious route and because

similar vehicles had been used to smuggle drugs in the gas tank.

However, because there were two individ uals in the car, he

hesitated to conduct the canine inspection in the dark isolated

area without any assistance.

Bates rec eived information that Sanchez was the registered

owner of the vehicle. He returned to Sanchez’s vehicle and noticed

that the heater was on high, which he found odd since he was in

short sleeves on that October night. Bates advised Sanchez that he

wished to conduct a canine inspection and asked Sanchez if he would

mind proceeding with him to a closed checkpoint approximately

thirty miles north; Sanchez said that was fine.

Bates followed Sanchez’ s vehicle and called a dispatcher to

obtain the assistance of another officer, Deputy Fuentes, at the

checkpoint, because Agent Tashman was located too far away to get

to the checkpoint by the time Bates and Sanchez were due to arrive.

Just before reaching the checkpoint, Sanchez pulled over to the

right of the roadway, and Bates pulled in behind him and turned on

his overhead lights for safety reasons. He told Sanchez to pull up

to the lit area of the checkpoint, which was 200 to 300 yards away,

and Sanchez did so without any protest. Deputy Fuentes was at the

checkpoint when they arrived, and Sanchez began speaking to him in

Spanish. Bates spoke to Sanchez through Fuentes and told Sanchez

that he wanted to perform a canine inspection on the vehicle.

Sanchez again consented to the inspection.-5-

Bates testified that he and the dog, Pepper, circled the

vehicle and the dog alerted to the gas tank area of the Suburban.

He then inspected t he inside of the vehicle and noticed that the

floor boards from front to back were soaking wet. Sanchez

explained that a relative had washed the car and might have left a

door open.

Agent Tashman arrived and used a scope to examine the gas

tank, which revealed an abnormal tank in which there appeared to be

some welding and a black colored box. Based on that observation,

the dog alert, the time of night, the route being taken, and the

type of vehicle, Bates decided to arrest Sanchez and Cazares. The

officers proc eeded to the Border Patrol Station, removed the gas

tank, and found two large metal containers inside of it. The

containers concealed approximately 195 pounds of marijuana.

Sanchez and Cazares told a differen t story at the hearing.

Cazares denied that the car was weaving, but admitted that when

Bates initially stopped them, he said the vehicle had been

zigzagging on the road and traveling very slowly and he suspected

the driver had been drinking. Cazares asserted that after Bates

inspected the insurance papers, he told them to drive safely and

gave them permission to leave. He did not hear Bates discussing a

canine inspection or making an additional stop, but admitted that

he could not hear all of the conversation between Bates and

Sanch ez. He testified that they continued to drive north but as

they approa ched the checkpoint, Bates came up behind them and-6-

turned his lights on. Sanchez stopped about a half block from the

checkpoint, and Bates told them to proceed to the checkpoint; when

they arrived at the checkpoint, Fuentes told them to stand there

and not move. Cazares did not hear Fuentes ask for consent to do

a canine inspection and did not recall Sanchez consenting to the

canine inspection or to the gas tank being scoped with an

instrument. He testified that he and Sanchez were not told at any

point that they were free to leave th e checkpoint and he did not

feel that he was free to walk away.

Sanchez testified that, at the time of the initial stop, Bates

told him he could leave a fter his paperwork was found to be in

order. He noticed after driving away that Bates continued to

follow his vehicle. As they approached the checkpoint, Bates put

o n his overhead lights, and Sanchez felt compelled to stop. He

denied that Bates asked him to drive to the checkpoint so that he

could conduct a canine inspection. However, he acknowledged that

Deputy Fuentes asked for permission to conduct the canine

inspection, and he consented to it because he did not feel that he

had the right to say no.

At the conclusion of the hearing, the district court

determined that Officer Bates had the right to stop Sanchez because

he was driving slowly and weaving and, thus, Bates had a reasonable

basis to suspect that he was intoxicated. The district court made

the credibility determination that Sanchez consented to the request

to proceed to the checkpoint for a canine inspection. The district1 United States v. Jordan

, 232 F.3d 447, 448 (5th Cir. 2000).

2 Sanchez ac tually argues that Officer Bates did not have

probable cause to effect the stop, but reasonable suspicion, not

probable cause, was all that was required to stop Sanchez’s

vehicle. U

nited States v. Shaw , 701 F.2d 367, 377 n.4 (5th Cir.

1983) (“We note that the initial stop of Shaw's truck did not have

to be justified by ‘probable cause,’ but only that the officers

must have had reasonable grounds to suspect that the vehicle [was

-7- court also determined that the consent was voluntary, that the

canine had sufficient training to make an effective alert, and that

the canine inspection presented no Fourth Amendment problems. With

these findings the trial court denied Sanchez’s motion to suppress.

II.

Sanchez urges here that Bates had no reasonable suspicion of

illegality justifying the initial traffic stop; that, even if

r easonable suspicion did justify the initial stop, the officers

located the evidence after they had illegall y extended the stop

past the original justification; and that the drug-detection dog

was not qualified to detect narcotics. In reviewing a district

court’s order denying a motion to suppress, we review conclusions

of law d e novo and factual findings for clear error, viewing the

evidence in the light most favorable to the party who prevailed in

the district court, in this case the Government. 1

A

.

Sanchez first contends that the initial traffic stop was not

based on Officer Bates’s reasonable suspi cion that Sanchez was

driving while intoxicated. 2 The Government retorts that the mannerinvolved in criminal activity].”).

3 United States v. Shabazz

, 993 F.2d 431, 434 (5th Cir. 1993).

4 United States v. Sharpe , 470 U.S. 675, 682 (1985).

5 392 U.S. 1 (1968).

6 United States v. Crain , 33 F.3d 480, 485 (5th Cir. 1994).

7 Terry , 392 U.S. at 21.

-8- in which Sanchez was driving the vehicle provided an objective

basis for a reasonable suspicion and that the district court found

credible Bates’s testimony about his belief that the driver might

be intoxicated.

The Fourth Amendment prohibition against unreasonable searches

and seizu res extends to stopping a vehicle and temporarily

detaining its occupants. 3 Even so, the Fourth Amendment is not “a

guarantee against all searches and seizures, but only against

unreasonable searches and seizures.” 4 We analyze traffic stops

under the standards announced for investigative detention in Terry

v. Ohio

. 5 Under T erry

, whether a traffic stop complies with the

Fo urth Amendment depends upon two factors: whether the stop was

justified at its inception and whether the Four th Amendment

intrusions were reasonabl y related in scope to the circumstance

th at justified the interference in the first place. 6 The officer

must be able to point to specific and articulable facts which,

taken together with ra tional inferences from those facts,

reasonab ly warrant the intrusion. 7 However, the constitutional8 Whren v. United States , 517 U.S. 806, 813 (1996).

9 Id. at 812-13.

-9- r easonableness of the stop does not depend upon the actual

motivations of the office r involved. 8 An officer may stop a

motorist for a traffic vi olation even if, subjectively, the

officer’s true motive is to investigate unrelated criminal

offenses. 9

The district court found credible Officer Bates’ s testimony

that the low speed at which Sanchez was driving, sixteen miles

under the speed limit, coupled with the vehicle’s encroachment onto

the shoulder of the lane, raised a reasonable suspicion in his mind

as to Sanchez’s sobriety. Sanchez argues that Officer Bates should

not have found it unusual that Sanchez was traveling at forty-nine

miles per hour on that stretch of highway because only five miles

prior to being stopped Sanchez had exited Big Bend National Park,

which has a posted speed limit of forty-five. Although this

ultimately may have been the reason for Sanchez’s slow speed, it is

insufficient to show that Officer Bates lacked a reasonable

suspicion that Sanchez was intoxicated, given that in his

experienc e, when a vehicle is traveling at a speed substantially

below the speed limit and is failing to stay within its lane, the

driver is likely intoxicated.

“A ‘trained officer draws inferences and makes deductions

...

that might well elude an untrained person,’ and evidence collected10 U nited States v. Reed , 882 F.2d 147, 149 (5th Cir. 1989)

(quoting United States v. Cortez , 449 U.S. 411, 418 (1981)).

11 See, e.g.

, U

nited States v. Muniz-Melchor

, 894 F.2d 1430,

1438 (5 th Cir. 1990); R eed

, 882 F.2d at 149 (explaining that the

border patrol agent “observed several factors that in his

experienc e led him to believe that criminal activity was

underfoot,” and find ing that together they justified the Fourth

Amendment intrusion).

12 Muniz-Melchor , 894 F.2d at 1438.

13 Id.

-10- ‘must be seen and weighed not in terms of library analysis by

scholars, but as understood by those versed in the f ield of law

enforcement .’” 10 We traditionally give due deference to the

experience of officers such as Deputy Bates in identifying a number

of factors that, although insufficient by themselves to suggest

illegal activity, taken together are indicia of certain types of

illicit acts. 11 For example, in U nited States v. Muniz-Melchor

, 12

we concluded that although “no one of [the officer’s] observations

with respect to Muniz -Melchor’s truck and its contents or MunizMelchor’s ans w ers to [the officer’s] queries would constitute

probable cause to search the truck and its tank,”

[a] succession of otherwise ‘innocent’ circumstances or

events ... may constitute probable cause when viewed as

a whole. We do not consider the several factors in

isolation, but rather in their interrelated context,

where each may reinforce the other, so that the laminated

total may indeed be greater than the sum of its parts. 13

Necessarily incorporat ed into this analysis is the officer’s

“training and prior experience,” viewed in a light most favorable14 Id.

15 See T EX

. P ENAL C ODE A NN

. § 49.04 (Vernon 2002). In a

substantially similar case, the Tenth Circuit found that an officer

had a reasonable basis to suspect that the driver was intoxicated.

See United States v. Botero-Ospina

, 71 F.3d 783, 788 (10th Cir.

1995). That court explained:

At the suppression hearing, Deputy Barney testified ...

that Mr. Botero-Ospina’s vehicle was traveling well below

the posted speed limit and straddling the lane as it

traveled eastbound on Interstate 70. Additionally,

Deputy Barney testified that, based upon his observation

of the vehicle and his experience with motorists

traveling down that stretch of road, he believed the

driver may have been impaired or falling asleep. The

magistrate judge found that Mr. Botero-Ospina’s vehicle

was generally being operated in violation of Utah law.

... Deputy Barney’s stop of Mr. Botero-Ospina’s

vehicle was proper.... [H]e was able to articulate

spe cific facts which, in light of his training and

experience, gave rise to a reasonable suspicion that Mr.

Botero-Ospina may have been driving under the influence

of alcohol

... Deputy Barney was fully warranted in

stopping Mr. Botero-Ospina.... It is

... irrelevant that

Deputy Barney may have harbored a secret hope of finding

evidence of drug trafficking.

Id . (citations omitted).

-11- to the government. 14 Applying that instruction here, we conclude

that, based on his experience, Officer Bates had a reasonable basis

to suspect that Sanchez was driving und er the influence in

violation of Texas law, because Sanchez was both veering from his

lane and driving substantially below the posted speed limit. 15

B.

Sanchez’s second argument is two-part: He first contends that

the evidence at the suppression hearing showed that the occurrences

at the checkpoint were distinct from the first stop, and that-12-

Officer Bates did not have reasonable s uspicion to pull over

Sanchez at the checkpoint. Additionally, Sanchez contends that

even if the district court did not clearly err in viewing the

interaction at the checkpoint as a continuation of the first

traffic stop, the extension of Sanchez’s stop past the point at

which the justification for the initial traffic stop ended

constituted an illegal seizure.

The district court concluded, after h e aring the evidence

presented, that the interaction at the checkpoint was not a second

stop for which the officers needed reasonable suspicion. It based

this conclusion on its factual finding that during the first stop,

Bates asked if Sanchez would proceed to the checkpoint, and Sanchez

consented. Viewing the evidence in the light most favorable to the

Government, we find that testimony at the hearing supports the

district court’s finding. According to Bates, after conclusion of

the in itial traffic stop Sanchez agreed to proceed to the

checkpoint and voluntarily pulled over shortly before reaching the

checkpoin t. He then consented to Bates’s request to pull up all

the way to the checkpoint and to allow the officers to run the dog

around the car. Given this testimony we cannot conclude that the

district court clearly erred in determining that the occurrences at

the checkpoint were a continuation of the first stop instead of a

separate stop.

Sanchez also asserts that Officer Bates’s request that Sanchez

dri ve to the checkpoint for the canine inspection unlawfully16 199 F.3d 193 (5th Cir. 1999).

17 234 F.3d 234 (5th Cir. 2000).

18 310 F.3d 336 (5th Cir. 2002).

19 199 F.3d at 195.

20 Id. at 195-96.

21 Id. at 196.

22 Id.

23 Id.

-13- extended the initial traffic stop under United States v. Dortch

, 16

United Sta tes v. Jones

, 17 and United States v. Santiago

. 18 In

Dortch

, two highway patrol officers stopped the defendant, who was

driving a rental car, for traveling too close to a tractortrailer. 19 Dortch handed over his license and the rental car

papers, and one of the officers ran a computer check for warrants

and attempte d to determine whether the car was stolen. 2 0 The

officers told Dortch that he would be free to leave after they

completed the warrants check, but that they had to detain his car

until they had performed an exterior canine search of it. 21 Twenty

minutes later, the canine unit arrived and completed an exterior

dog sniff of the vehicle. 22 The dog alerted to the driver’s side

door an d seat, but a subsequent search of the car uncovered no

contraband. However, the officers patted down Dortch and found

drugs on his person. 23

Dortch moved to suppress the drug evidence on the basis that24 Id. at 198 (“The thrust of Dortch’s appeal is that

... at

some point the detention became unreasonable and exceeded the scope

of intrusion allowed under Terry .”).

25 Id.

26 Id. at 198-203.

27 234 F.3d 234, 237-44 (5th Cir. 2000).

28 Id. at 237-38.

-14- the officers had unlawfully detained him by forcing him to wait for

them to conduct the canine sea rch. 2 4 We agreed, because it could

not be said that Dortch felt free to leave after the officers

informed him that the computer check was completed since they also

told him that they were going to detain his car until completion of

the dog sniff. 25 The officers harbored no reasonable suspicion that

Dortch was trafficking drugs, so “Dortch should have been free to

leave in his car” after completion of the computer check; “[o]nce

he was not permitted to drive away, the extended detention became

an unreasonable seizure.” 26

Similarly, in Jones

, we found an unlawful detenti on after

officers stopped the two defendants for speeding. 27 The officers

completed criminal history and driver’s license checks, but then

continued to question the defendants on their destination and what

line of business the travelers were in, as well as inquiring if

there were any narcotics in the car. 28 The driver denied that the

vehicle contained drugs, and the offi cers asked for and received29 Id.

30 Id.

31 Id. at 239.

32 Id. at 241.

33 310 F.3d 336, 377-43 (5th Cir. 2002).

-15- oral consent to search the vehicle. 29 During the search they found

drugs in the trunk. 30

The defendants moved to s uppress the evidence, arguing that

“the officers’ continued de tention after the completion of the

c omputer check was unreasonable under the circumstances and

exceeded the scope of the initial stop.” 31 We found the defendants’

argument meritorious, reasoning:

The basis for the stop was essentially completed when the

dispatcher notified the officer about the defendants’

clean records, three minutes before the officers sought

consent to search the vehicle. Accordingly, the officers

shou ld have ended the detention and allowed the

defendants to leave.... [T]h e failure to release the

defendants violated the Fourth Amendment. 32

Finally, in Santiago the court reversed t he trial court’s

denial of the defendant’s motion to suppress because officers

discovered the drug evidence at issue after they had fulfilled the

purpose of their original stop, which was to determine whether an

object hanging from the rearview mirror of the defendants’ car

posed a risk to oncoming traffic because of its shininess. 33 In so

holding we reviewed established case law on the issue of prolonged

stops:34 Id. at 341-42 (citations omitted).

35 United States v. Jon es , 234 F.3d 234, 237-38 (5th Cir.

2000).

36 United States v. Dortch

, 199 F.3d 193, 202 (5th Cir. 1999).

37 Santiago

, 310 F.3d at 339 (“Trooper Raley told Santiago that

he should remove the object from his mirror before leaving, but

before he let Santiago go, he told Santiago that a lot of illegal

contraband was being smuggled down the interstate highways.

-16- [A] Fourth Amendment violation occurs when the detention

extends beyond the valid reason for the stop. Once a

computer check is completed and the officer either issues

a citation or determines that no citation should be

issued, the detention should end and the driver should be

free to leave. In order to continue a detention after

suc h a point, the officer must have a reasonable

suspicion supported by articulable facts that a crime has

been or is being committed. 34

The Government argues that Jones

, Dortch

, and Santiago do not

apply to this case because the officers’ interaction with Sanchez

after the computer check was a consensual encounter, as opposed to

a detention. It points out that in J ones

, the officers kept one of

the defendan ts in the back of their patrol car and held his

driver’s license and the warn ing citation until after that

defendant consented to a search of the car. 35 In D ortch

, although

the off icers told the defendant he was free to leave after the

completion of the initial traffic stop, they refused to allow him

to take his car until after they completed the canine inspection. 36

In Santiago

, after the officer completed the computer checks he

insinuated that the defendant was carrying contraband i n his car

before asking to perform a search of the vehicle. 37 The GovernmentTrooper Raley noted that Santiago was from Santa Ana, which was

relatively near the border and which he knew to be a major source

of metha mphetamine, and also noted that Santiago’s destination,

Atlanta, was known to be a major distribution point of narcotics.

Tro oper Raley then asked Santiago whether he had any illegal

contraband on his person or in the vehicle. Santiago stated that

he did not, and Raley asked Santiago if he minded whether he

searched the vehicle to make sure. Santiago stated that he did not

mind.”).

38 The Government contends that this case is more akin to

United States v. Gonzales than to Jones

, Dortch

, or Santiago

. S ee

United States v. Gonzales

, 79 F.3d 413 (5th Cir. 1996). In

Gonzales

, we found that two de fendants, Muniz and Gonzales, had

participated in what was at least initially a consensual encounter

with DEA agents. Id. at 421. Agents had been surveilling them

because of their association with a government target suspected for

possible drug activity. I d. at 416-18. The agents approached

Muniz at a car d ealership and Gonzales at a hotel. I d

. In both

circumstances the agents identified themselves and requested

identification from the defendants. I d. The agents who were with

Muniz asked and received permission to pat Muniz down for weapons,

and suggested that Muniz accompany them to the hotel at which

Gonzales was waiting with the other agents. I d. Muniz voluntarily

consented to go with them to the hotel. At the hotel, the agents

asked Muniz to sit in a grassy area near his car, w hich he did.

Id. The agents then discovered that Muniz’s car was rented by

Gonzales and asked if they could search Muniz for the key. Muniz

assented, and they found the key in Muniz’s so ck. I d. Gonzales

consented for the agents to search the trunk. Before the search

could commence, a police canine unit arrived and the dog alerted to

the trunk of the car. Id.

Muniz and Gonzales argued that the key and drug evidence found

in the car should have been suppressed because the agents located

the evidence after they had illeg ally detained the defendants.

-17- contends that, unlike in these cases, Officer Bates did not

interrogate Sanchez after the computer checks had been returned or

suggest that he was suspicious that Sanchez was trafficking drugs.

Additionally, Bates did not retain Sanchez’s driver’s license or

insurance documentation after completion of the traffic stop or

while they traveled to the checkpoint. 38Id. at 419-20. The court disagreed, finding that the totality of

the circumstances supported the district court’s conclusion that,

at least until the search of the car, the encounter was consensual.

Id. at 421.

39 Florida v. Bostick , 501 U.S. 429, 434 (1991).

40 United States v. Drayton

, 536 U.S. 194, 202 (2002) (internal

quotation marks omitted).

41 Id. (internal quotation marks omitted).

42 Bostick , 501 U.S. at 434.

43 519 U.S. 33, 35 (1996).

-18- T he Government urges that Officer Bates’s interaction with

Sanchez after satisfaction of the purpose for the initial traffic

stop was allowable if consensual. The Supreme Court has explained

that “a seizure does not occur simply because a police officer

approaches an indiv idual and asks a few questions”; asking

questions is not itself a detention. 3 9 So long as “a reasonable

person would feel free to decline the officers’ requests or

otherwise terminate the encounter,” it is consensual. 40 This test

is objective and “presupposes an innocent person.” 41 Because such

encounters are voluntary, they do not implicate Fourth Amendment

protections such as the requirement of reasonable suspicion. 42

In Ohio v. R obinette the Supreme Court recognized the

possibility of a consensual search following a lawful traffic

stop. 43 In that case a police officer lawfully stopped the

defendant for speeding. After the officer ran a computer check on

the defendant’s license, handed it back to him, and issued a verbal44 Id. at 35-36.

45 Id. at 36.

46 Id. at 39 (citation and internal quotation marks omitted).

-19- warning regarding the traffic violation, the officer inquired

whether the defendant was carrying any il legal contraband in his

car. The defendant denied having any illegal materials in the car,

but upon the officer’s request allowed the officer to search the

vehicle. The search uncovered a small amount of marijuana in the

car. 44

At trial, the defenda nt unsuccessfully sought to have the

evidence suppressed. On appeal, the Ohio Court of Appeals and Ohio

Supreme Cour t determined that the evidence should have been

suppressed, and the Ohio Supreme Court established a brig ht-line

rule requiring that a motorist be clearly informed that he is free

to go before the officer attempts to engage in a consensual

interrogation. 45 The Supreme Court reversed the Ohio Supreme

Court’s holding, explaining that such a rule was inappropriate, and

that instea d “the proper inquiry necessitates a consideration of

all the circumstances surrounding the encounter.” 46

Our own court has also recognized that consensual

i nterrogation can follow the end of a valid traffic stop. In

Dortch

, for example, the court only found an unreasonable

continuation of the defendant’s detention after concluding that

Dortch did no t feel free to leave after the officer finished the47 199 F.3d 193, 199 (5th Cir. 1999).

48 146 F.3d 274, 279 (5th Cir. 1998) (emphasis added).

49 102 F.3d 1390, 1394-97 (5th Cir. 1996), o verruled in part

on other grounds

, U nited States v. Brown , 161 F.3d 256 (5th Cir.

1998).

50 87 F.3d 647, 652 (4th Cir. 1996).

-20- computer check on him. 47 Also, in U nited States v. Miller we

referred to two different standards to be applied to whether a

defendant consents to a search: “the normal standard for consensual

searches that occur subsequent to legal stops ” and the heightened

consent standard that applies to a consent to search obtained after

an illegal stop. 48 Finally, in U nited States v. Brown the court

rejected the defendant’s argument that an officer must inform a

motorist that the legal detention has concluded before the officer

can engage in consensual interrogation and request to search the

vehicle. 49

In several cases with facts similar to this case other

circuits have acknowledged that a lawful traffic stop can devolve

into a consensual encounter. In U nited States v. Lattimore

, the

Fourth Circuit rejected the defendant’s argument that an officer

detained him past the conclusion of the traffic stop by questioning

him concerning the presence of narcotics in the automobile. 50

Instead, the court found that the officer

did not question Lattimore

.. . until after the officer

had issued the citations and returned Lattimore’s

driver’s license, indicating that all business with51 Id. at 653.

52 Id. at 649 (citation and internal quotation marks omitted).

53 81 F.3d 775 (8th Cir. 1996).

54 Id.

-21- Lattimore was completed and that he was free to leave.

During the subsequent conversation between [the officer]

and Lattimore, a reasonable person would have felt free

to decline the officer[’s] requests or otherwise

terminate t he encounter. The totality of the

circumstances presented indicate that from this point

forward the encounter was consensual; Lattimore was not

being detained. 51

The Fourth Circuit reached this determination despite the fact that

Lattimore was sitting in the patrol car at the time the officer had

asked whether he had narcotics in his vehicle, an arguably coercive

circumstance. 52

In United States v. White

, the defendant was stopped for an

improper lane change and for driving on the shoulder. 53 The officer

issued a written warning for the traffic violations, and the driver

subsequently agreed to a search of hi s car. The Eighth Circuit

held that the search was valid because the request to search was

made during a consensual encounter following the end of the traffic

stop. 54 It reasoned:

[The officer] handed White his license and registration

and explained the warning t i cket. Under the

circumstances of this case, those actions end e d the

initial traffic stop. The events beyond that point,

however , did not constitute a T erry stop as White

contends. Instead, after White’s license and

regis tration were returned and the warning was issued,

the enc o unter became nothing more than a consensual55 Id. at 778.

56 United States v. Dewitt , 946 F.2d 1497, 1501-02 (10th Cir.

1991).

57 United States v. Turner

, 928 F.2d 956, 958 (10th Cir. 1991)

(citations and internal quotation marks omitted); s ee also United

States v. Patten , 183 F.3d 1190, 1193-94 (10th Cir. 1999).

58 Turner , 928 F.2d at 958. (citation omitted).

-22- encounter between a private citizen and a law enforcement

officer. 55

Similarly, the Tenth Circuit has reasoned that continuing to

question a defendant after the conclusion of the Terry stop is

permitted if the situation has turned from a detention into a

consensual encounter, which “occurs when a reasonable person in the

defendant’s position would feel free to leave.” 56 That court has

also defined the difference between a consensual encounter and an

illegal detention, explaining that “once the officer has returned

the driver ’s license and registration in a routine traffic stop,

questioning about drugs and weapons or a request for voluntary

consent to search may be an ordinary consensual encounter between

a private citizen and a law enforcement official.” 57 If the driver

does receive the license, registration, and any other material back

that he needs to be on his way, “a driver is illegally detained

only if the driver has an objective reason to believe that he was

not free to end his conversation with the law enforcement official”

and leave. 58

The Government argues that Bates’s request to conduct a canine59 See United States v. Gonzales , 79 F.3d 413, 420 (5th Cir.

199 6) (“[A] statement by a law enforcement officer that an

individual is suspected of illegal activity is persuasive evidence

that the fourth amendment has been implicated.”).

-23- search of the Sanchez’s Suburban came in a consensual encounter,

because Bates did not pose the question until after he returned

Sanchez’s driver’s license and insurance card. The Government also

emphasizes Sanchez and Cazares’s testimony that they felt free to

leave at that point, and that Bates had indicated to them that they

could go.

From this evidence the district court concluded that “Officer

Bates’s conduct cannot be deemed at all coercive, and

... his

request to continue on to the checkpoint was seen as a request by

the Defendants, who testified that they believed they had the right

to refuse if they so desired.” Viewing the evidence in the light

most favorable to the Government, we cannot say the district court

clearly erred in this factual determination. The evidence supports

the conclusion that the defendants’ assent to the canine inspection

came in a consensual encounter. Only after Sanchez received all of

his documentation back so that he could be on his way did Officer

Bates ask if Sanchez would mind proceeding to the drug checkpoint.

Moreover, Officer Bates had not accused them of criminal activity

such that they would regard the request as a contin uation of the

investigative detention. 59 Instead, the defendants admitted that

they received all of their documentation and felt free to go at the

conclusion of the traffic stop. Because the consensual encounter60 Our determination is in line with that of all circuits who

have ruled on this issue except possibly the Ninth Circuit. In

United States v. Chavez-Valenzuela

, that court held that officers’

questioning of the defendant following the end of a traffic stop

was not consensual because the defendant had “been standing by the

side of a highway fo r more than seven minutes” and “had [been]

subjected to a number of ‘fishing expedition’ questions about his

travel plans and his occupation.” 268 F.3d 719, 724-25 (9th Cir.

2001), a s amended by 279 F.3d 1062 (9th Cir. 2002). The court

concluded that given this situa tion, “a reasonable motorist–even

with license and reg istration in hand–most likely would not have

believed he c ould disregard the officer’s inquiry and end the

conversation.” I d. at 725. However, the Ninth Circuit’s decision

was premised at least in part on the fact that the officers had

also openly stated that they suspected the defendant of criminal

activity, id.

, a circumstance not p resent in the case at bar and

one we have held usually implicates Fourth Amendment protections.

See Gonzales , 79 F.3d at 420.

61 See, e.g.

, United States v. Dovali-Avila

, 895 F.2d 206, 207

(5th Cir. 1990).

-24- did not implicate Fourth Amendment concerns, the district court did

not err in rejecting Sanchez’s argument that the continued

interaction of Sanc hez and Bates following the conclusion of the

Terry stop violated Sanchez’s constitutional rights. 60

C.

Sanchez further asserts that the district court erred in

declining to find that the drug-detection dog, Pepper, and its

handler, Officer Bates, were insufficiently quali fied to conduct

the exterior dog sniff of the Suburban and that Pepper’s indication

that drugs were present in the Suburban could not have created

probable cause to search the vehicle. We have repeatedly affirmed

that an alert by a drug-detecting dog provides probable cause to

search. 61 Moreover, in U nited States v. Williams , we held that a62 69 F.3d 27, 28 (5th Cir. 1995). However, in United States

v. Gonzales

, we su ggested that a defendant may nonetheless

challenge the reliability of a drug-detecting dog, stating:

Gonzales also attacks the reliability of th e narcotics

dog in one paragraph, arguing that no probable cause

existed because of the dog’s unreliabilit y. The court

found the dog to be reliable, rejecting the evidence of

Gonzales at the suppression heari ng. The government

supports its arguments based on consen t and reasonable

suspicion and scarcely mentions the issue of the dog on

this appeal. Because Gonzales has shown no clear error

in the district court’s finding on the reliability of the

drug dog, we will not disturb the finding.

79 F.3d 413, 418 (5th Cir. 1996). “When faced with conflicting

panel opinions, the earlier controls our decision.” U nited States

v. Miro

, 29 F.3d 194, 199 n.4 (5th Cir. 1994). W illiams

, released

one year prior to Gonzales

, thus controls this issue. Under

Williams

, the district court was correct in refusing to take up

whether the dog’s training was sufficient.

-25- showing of the dog’s training and reliability is not required if

probable cause is developed on site as a result of a dog sniff of

a vehicle. 62 Even if we were to address Sanchez’s challenge of

Bates’s and Pepper’s qualifications, it would be of no avail. In

1997 Bates and Pepper completed the Pol ice Narcotic Detector Dog

School at the Canine Academy in Leander, Texas, and Bates received

certification as a canine handler. The record shows that the

Canine Academy has been licensed by the U.S. Drug Enforcement

Agency, the Texas Commission on Privat e Security, and the Texas

Department of Public Safety since 1993. Bates has also previously

testified in court as an expert in canine handling.

The district court determined that the evidence that the dog

was certified was sufficient proof of his training to make an-26-

effective alert. Assuming that proof of the canine’s reliability

was required, there was s ufficient evidence in the record to

s upport the district court’s finding that the dog’s alert was

reliable and established probable cause for a search of the

vehicle.

III.

Sa nchez last contends that his Sixth Amendment rights were

violated because one of his attorneys labored under a conflict of

interest and the other rendered ineffective assistance of counsel.

Sanchez explains that during his pretrial proceedings, Sanchez was

represented by two attorneys, Ponton and Caballero; Ponton

represented both Sanchez and his co-def e ndant, Cazares, while

C aballero represented only Sanchez. Sanchez alleges that during

all pretrial proceedings Ponton was the lead attorney for both

defendants, and Caballero did little or nothing on Sanchez’s case.

Sanchez also argues that he did not even consent for Caballero to

be his attorney, because Ponton filed Caballero’s notice of

appearance without obtaining Sanchez’s signature.

Sanchez asserts that the day before trial was to commence,

Cazares talked to the government about testifying against Sanchez,

but neither Ponton nor Caballero knew Cazares was going to do this.

On the day of trial, when the defense attorneys discovered that

Cazares intended to cooperate with the Government, Ponton withdrew

as Sanchez’s attorney, and Caballero was thrust into the position63 F ED

. R. C RIM

. P. 44(c) (“Whenever two or more defendants have

been jointly charged

... or have been joined for trial

... and are

represented by the same retained or assigned counsel

..., the court

shall promptly inquire with resp ect to such joint representation

and shall personally advise each defendant of the right to the

effective assistance of counsel, including separate representation.

Unless it appears that there is good cause to believe no conflict

of interest is likely to arise, the court shall take such measures

as may be appropriate to protect each defendant’s right to

counsel.”).

64 Although apparently Ponton continued to act as Caballero’s

co-counsel in Sanchez’s trial, Sanchez does not raise any argument

that Ponton’s minimal participation in the trial prejudiced Sanchez

-27- of being Sanchez’s sole counsel, although Ponton stated that he

would try to assist her. The district court asked whether

Caballero felt comfortable proceeding with Ponton’s assistance, and

she said yes. However, Sanchez argues that due to Caballero’s

alleged lack of preparation, because of her dependence on Ponton’s

handling of all of the pretrial matters, Caballero stumbled through

the trial.

Although Sanchez characterizes his attorneys’ a ctions as a

violation of his right to conflict-free counsel, and complains that

the district court did not hold a conflict hearing in accordance

with Rule 44, 6 3 this claim is more properly analyzed as one f o r

ineffective assistance. The prejudice he complains of came not

directly from Ponton’s conflict, but rather from Caballero’s lack

of familiarity with the case. Although certainly Ponton’s conflict

was what gave rise to Caballero acting as Sanchez’s lead counsel,

it was Caballero’s unpreparedness that Sanchez argues hurt his

defense. 64because Ponton also represented Cazares. For example, Sanchez does

not cl aim that his attorneys could not effectively cross-examine

Cazares because Ponton represented Cazares, see Hoffman v. Leeke

, 903 F.2d 280, 286-87 (4th Cir. 1990), or that Ponton incriminated

Sanchez to save Cazares, United States v. Newell

, 315 F.3d 510,

516-19 (5th Cir. 2002), two classic conflict-of-counsel scenarios.

65 United States v. Higdon

, 832 F.2d 312, 313-14 (5th Cir.

1987).

66 Id. at 314.

67 Sanch ez argues that Ponton wrote all of the motions and

papers Cabellero submitted on Sanchez’s behalf prior to trial.

68 See id.

-28- “The general rule in this circuit is that a claim of

i neffective assistance of counsel cannot be resolved on direct

appeal when the claim has not been raised before the district court

since no opportunity existed to develop the record on the merits of

the alleg ations.” 6 5 Instead, “[w]e have undertaken to resolve

claims of inadequate representation on direct appeal only in rare

cases where the record allowed us to evaluate fairly the merits of

the claim.” 66 This is not one of those rare cases; Sanchez has

presented the court with nothing more than speculation as to the

amount of pretrial preparation Caballero performed. Much of his

claim is based on information Caballero allegedly did not know, or

on documents she allegedly did not write. 67 Accordingly, we decline

to address the merits of Sanchez’s ineffectiveness clai m without

prejudice to his presenting his c laim of ineffective assistance,

including any claim of conflict of interest that could not have

been urged in this appeal, in a § 2255 proceeding. 68-29- IV

.

In conclusion, we find no error in the district court’s denial

of Sanchez’s motion to suppress, and decline to address his Sixth

Amendment claims at this juncture.

AFFIRMED.