REVISED October 17, 2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50614

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ROBERT MACIAS, JR., also known as Robert Macias,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

Before JOLLY, DeMOSS, and PRADO, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Robert Macias, Jr. appeals the district court’s denial of his motion to

suppress a firearm uncovered during a warrantless automobile search by a

Texas Department of Public Safety officer on Interstate 10 near Pecos County,

Texas. The firearm found in the search of the truck Macias was driving is at the

bottom of Macias’s conviction for being a felon in possession of a firearm.

Because we conclude that the trooper unconstitutionally prolonged Macias’s

detention by asking irrelevant and unrelated questions without reasonable

suspicion of criminal activity, we reverse and vacate the judgment of conviction,

and remand the case for entry of a judgment of acquittal. 

United States Court of Appeals

Fifth Circuit

F I L E D

September 27, 2011

Lyle W. Cayce

Clerk
No. 10-50614

2

I.

On the morning of November 22, 2009, Trooper Juan Barragan (“Trooper

Barragan”) of the Texas Department of Public Safety was on patrol, driving

westbound on Interstate Highway 10 in Pecos County, Texas. As he drove his

patrol vehicle into the median separating eastbound and westbound traffic, he

noticed that the driver of a passing red pickup truck headed in the eastbound

direction was not wearing a seatbelt. Failure to wear a seatbelt while riding in

the front seat of a passenger vehicle during its operation is a violation of Texas

law. See TEX. TRANSP. CODE ANN. § 545.413(a) (Vernon 2009). Trooper

Barragan completed his turn and followed the red pickup truck. He paralleled

the truck and visually confirmed that the driver, the defendant Macias, was not

wearing a seatbelt. Trooper Barragan initiated a stop of the truck at this time;

a videocamera and microphone mounted in the patrol vehicle recorded the entire

traffic stop. 

After both vehicles came to a stop on the shoulder of the highway, Trooper

Barragan exited his patrol vehicle and approached the passenger side of the

truck. He identified himself to Macias and the passenger and advised that he

had stopped them because Macias was not wearing a seatbelt. He noticed that

the passenger was not wearing a seatbelt either. Trooper Barragan requested

Macias’s driver’s license and proof of insurance. Macias handed Trooper

Barragan his driver’s license, but explained that he did not have proof of

insurance for the truck. The record is unclear as to the timing, but the

passenger, later identified as Octavia Zillioux (“Zillioux”), handed her

identification card to Trooper Barragan as well. At this point, Trooper Barragan

noticed that Macias had left the truck in gear, and it began to roll forward such

that he asked Macias to put it in park. Trooper Barragan then proceeded to ask

Macias where and for what purpose the two were traveling. Macias informed

him that they were traveling to Victoria, Texas, where his sister lived. Trooper
No. 10-50614

3

Barragan again inquired about proof of insurance, and Macias explained that

the truck belonged to his girlfriend, Patti Parra (“Parra”), and that she had

insurance for the vehicle, but he did not have it with him. After listening to an

exchange between Macias and Zillioux about the insurance, Trooper Barragan

asked if they were related. Zillioux informed Trooper Barragan that she was

Parra’s daughter. This prompted Trooper Barragan to inquire about her age, to

which she gave a response, though her answer on the video recording is unclear.

Macias, when asked, explained to Trooper Barragan that he and Zillioux would

be in Victoria for three days. For the third time, Trooper Barragan questioned

Macias about proof of insurance, prompting Macias to state that Parra had left

it for him before he left Arizona, but he had forgotten to take it with him.

Trooper Barragan then asked Macias about his current employment, to which

Macias replied that he was not employed currently, and that one reason for the

trip to Victoria was to visit with a doctor at the VA clinic. Trooper Barragan

then questioned Macias about the purpose for his visit to the doctor. Macias

explained that he had back pain. This initial exchange between Trooper

Barragan, Macias, and Zillioux lasted approximately two minutes. 

At the suppression hearing, Trooper Barragan testified that, in

comparison to other traffic stops he had conducted for seatbelt violations, Macias

appeared unusually nervous and uncomfortable with the stop during this initial

exchange. When asked specifically what drew his attention to Macias’s

nervousness, Trooper Barragan stated: “There was [sic] different things that

normally don’t take place in a traffic stop. Mr. Macias, again, he was very

nervous. His answers – his – just he wouldn’t make eye contact. He was

uncomfortable with the stop.” Trooper Barragan noted also that he had to ask

Macias to put the truck in park. 

Trooper Barragan then had Macias exit the truck and follow him to the

area in front of his patrol vehicle so they could “visit” about the seatbelt
No. 10-50614

4

violation, and also, according to Trooper Barragan’s testimony, he could

determine why Macias was unusually nervous. This also allowed Trooper

Barragan to hear Macias’s answers more clearly. As soon as Macias stepped on

the grass next to the roadside, Trooper Barragan asked Macias a series of

questions. In response to a question about his work, Macias informed Trooper

Barragan that he was a cement finisher. He responded “no, no” when Trooper

Barragan asked if Macias had his “own little company.” He further explained

that he was retired currently. Trooper Barragan declined Macias’s offer to look

at paperwork in the truck that would confirm this, noting that he would take

Macias at his word. Trooper Barragan then said he simply wanted to ask a few

more questions. This prompted Macias to exclaim that he was tired because he

had been driving from Arizona all night, and he explained that, in fact, he had

been ready to stop at a motel in the next town to rest when he was pulled over.

Trooper Barragan then inquired if Macias had ever visited Victoria before this

trip. Macias replied that he had been to Victoria on a prior occasion, but rather

than drive, he had flown to Houston and taken a bus to Victoria. After having

Macias confirm that the address on his driver’s license was correct, Trooper

Barragan asked Macias if he had “ever been in trouble before.” Other than

tickets, Macias said that he had not been in “trouble” before. This exchange

between Macias and Trooper Barragan lasted approximately one minute.

Trooper Barragan instructed Macias to remain in front of the patrol

vehicle. Trooper Barragan returned to the truck, checked its VIN number, and

then walked to the passenger window to speak with Zillioux. After declining her

offer to speak with Parra on the phone about the insurance, Trooper Barragan

proceeded to ask Zillioux a series of questions, including whether she and Macias

had been driving all night, what time they had left Arizona, and whether they

had been to Victoria previously. Zillioux confirmed that she and Macias had

traveled through the night from Arizona, and that Macias intended to see a
No. 10-50614

5

doctor at the VA clinic in Victoria. He then inquired about how long Parra and

Macias had been in a relationship. Trooper Barragan then asked Zillioux if

Macias had ever been in “trouble” before. Zillioux replied yes, but when pressed,

stated that she did not know why he had been in trouble. Trooper Barragan

then launched into another series of questions, including how long Zillioux and

Macias intended to stay in Victoria, where the location of their stuff was in the

truck, how many children Zillioux had, who was watching her children while she

was gone, and why Parra had not accompanied her and Macias on the trip.

Upon learning that Parra had not come on the trip because she worked, Trooper

Barragan wanted to know for whom Zillioux, Parra, and Macias worked. At the

suppression hearing, Trooper Barragan admitted that his questions to Zillioux

had no relevance to Macias’s failure to wear a seatbelt. Two more minutes

elapsed during this series of questions. 

Trooper Barragan returned to Macias and again asked if he had ever been

in “trouble,” imploring Macias to “shoot straight” with him. Trooper Barragan

testified that Macias went “around the question a little bit,” before finally

admitting that he had been in prison previously. When asked by Macias if that

is what he meant by “trouble,” Trooper Barragan scolded Macias, stating that

the question was whether Macias had ever been in trouble. Macias further

explained that he had been imprisoned for ten and a half years on an attempted

murder conviction. Trooper Barragan questioned Macias about the

contradiction,to which Macias responded that unless specifically asked, he does

not bring it up, an explanation that Trooper Barragan said he understood.

Trooper Barragan testified that Macias appeared even more nervous than before

at this point. He then questioned Macias about his failure to wear a seatbelt,

which Macias attributed simply to forgetting to fasten it after leaving a nearby

rest-stop. Trooper Barragan advised Macias that he was going to receive a

citation for failure to wear a seatbelt, but to cut Macias some “slack,” he was not
No. 10-50614

6

going to receive a citation for Zillioux’s failure to wear her seatbelt. Trooper

Barragan counseled Macias about the safety concerns of failing to wear a

seatbelt before finally informing Macias that he also was going to receive a

citation for no proof of insurance. By this point, nearly eleven minutes had

passed since Trooper Barragan had pulled over the truck. 

Trooper Barragan returned to his patrol vehicle to run checks on the

vehicle, Macias, and Zillioux. The computer check revealed that, in addition to

the attempted murder conviction, Macias had been arrested for other offenses,

including marijuana possession. He had no outstanding warrants though. The

check on the truck confirmed that it was registered to Parra, as indicated by

Macias and Zillioux at the beginning of the stop. Approximately ten minutes

passed while Trooper Barragan awaited the results of dispatch to run the

computer checks. After printing the citations, Trooper Barragan walked back

to Macias, who was still standing in front ofthe patrol vehicle, and explained the

citations, the court’s contact information, and the date by which Macias was

required to satisfy the citations. Macias signed the citations. 

After handing Macias the citations and his driver’s license, but still

holding Zillioux’s identification card, Trooper Barragan said,“Hey, can I ask you

a couple of questions.” Macias said okay, and Trooper Barragan inquired

whether Macias had ever been “in trouble with possession.” When Macias

responded no, Trooper Barragan challenged his answer, asking why marijuana

possession had come up in the computer check. Macias seemed confused, but

then relented and explained that he had been arrested, butthe charges had been

dismissed. When asked by Trooper Barragan when he last used marijuana,

Macias said 1992 or 1993. While asking this question, Trooper Barragan handed
No. 10-50614

1 The specific circumstances surrounding this sequence of events are contested heavily

by Macias. Trooper Barragan initially testified on direct examination that after having Macias

sign the citations, he gave him the citations and his driver’s license. On cross-examination,

Trooper Barragan agreed with defense counselthat, when he asked Macias if he would answer

more questions, Trooper Barragan had not yet handed back the driver’s license. Then after

reviewing the video recording ofthe stop again, he agreed with defense counselthat he handed

Macias the citations before he returned the driver’s license and identification card. He

immediately then stated that he handed Zillioux’s identification card “there at the end.”

Unfortunately, it is difficult to discern what Trooper Barragan is referring to by “there at the

end” because he is reviewing the video recording while testifying. Later in the hearing,

Trooper Barragan responded affirmatively when the district court asked if he had returned the

citations, Macias’s driver’s license, and Zillioux’s identification card before requesting

permission to search the vehicle. 

In its ruling from the bench, and in the subsequent order memorializing that ruling, the

district court found that Trooper Barragan handed Macias the citations together with his

driver’s license, and simultaneously asked Macias if he would answer more questions. The

district court did not make a finding in its order as to when Trooper Barragan handed Zillioux’s

identification card back to Macias,though itfoundthatTrooperBarraganasked for permission

to search after handing back the driver’s license, the citations, and Zillioux’s identification

card. After reviewing the video recording, we are not left with a firm conviction that the

district court erred in its finding that Trooper Barragan returned Macias’s driver’s license with

the citations initially, and then returned Zillioux’s identification card at some point before

asking for permission to search. The video recording does reflect that, while asking Macias

about the last time he used marijuana, Trooper Barragan handed Macias a small piece of

paper, which, giving deference to the district court’s finding, was Zillioux’s identification card.

7

Macias Zillioux’s identification card.1 He did not advise Macias that he was free

to go. 

Trooper Barragan then asked whether there was anything illegal in the

truck that he needed to know about, such as large amounts of money, narcotics

of any sort, marijuana, cocaine, or heroin. Macias protested that there was

nothing, and that he was traveling with his girlfriend’s daughter. Trooper

Barragan then asked Macias for consent to search the truck. The initial

exchange between the two men following Trooper Barragan’s request as reflected

on the video recording is garbled by dispatch,though the video recording reflects

that Macias ultimately gave consent to search the truck after his protestations

to the search were met by Trooper Barragan noting that Macias has a “shady”

background and thatTrooper Barragan was simply doing his job. After granting
No. 10-50614

8

consent, Macias, when asked, said he would be responsible for anything found

in the truck because he was driving, but when pressed again, Macias said “it

depends,” since he was unsure what would be found in the truck. At this point,

Macias put his hands in his pockets, prompting an order from Trooper Barragan

to keep them out of his pockets. Again imploring Macias to “shoot straight” with

him, Trooper Barragan asked if Macias would be responsible for anything found

in the truck. He then demanded to know what he would find in the truck.

Macias was unsure, stating that there “might” be a “roach.” This prompted

Trooper Barragan to demand to know where he would find the roach. Confused,

Macias stated, “I don’t know . . . look for it.” When Zillioux, still sitting in the

truck, began to call to Macias and Macias turned to answer her, Trooper

Barragan, using the clipboard in his hand, directed Macias to remain here and

“pay attention” to him. He again told Macias to “shoot straight” with him and

demanded to know “where’s it at.” Macias replied, “Where’s what at?” Trooper

Barragan said “you know . . . .” The two men continued this back-and-forth over

what would be found in the truck. Trooper Barragan then asked Macias to place

his hands out in front of him. Macias’s hands were shaking, and when Trooper

Barragan demanded to know why, Macias replied that he was tired and “going

scared” because he was notthe only person who drove the truck. Finally, Macias

relented and said he would take responsibility. 

Trooper Barragan frisked Macias and directed him to stand by a sign

further down the roadside, within shouting distance, and to face away from the

truck. He then questioned Zillioux further, including about her own drug use,

before ordering her out of the truck. After emptying her pockets and pulling up

her pants to expose her ankles, Zillioux was directed to stand down the roadside,

about halfway between the truck and Macias, and to face away from Macias and

toward the truck. Approximately seventeen minutes after he began the search

ofthe truck, and forty-seven minutes after initiating the stop, Trooper Barragan
No. 10-50614

2 Trooper Barragan found drug paraphernalia, including a heroin needle and a crack

pipe, before locating the firearm in Macias’s duffel bag. Zillioux took responsibility for the drug

paraphernalia, though she was not arrested. 

9

found an unloaded firearm and ammunition in a closed bag belonging to Macias.2

Macias was arrested approximately one hour and thirty-nine minutes after

Trooper Barragan initiated the stop. 

A grand jury in the Western District of Texas indicted Macias for being a

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). After his

indictment and before trial, Macias moved to suppress the firearm as fruits of

an unconstitutional detention. Following a suppression hearing on March 17,

2010, the district court orally denied the motion. It entered an order on March

22 memorializing its oral ruling. In sum, the district court determined that

Trooper Barragan’s questions to Macias and Zillioux before issuing the citations

were proper; that Trooper Barragan did not detain Macias, despite his nervous

behavior and the discrepancy about his criminal record, and instead chose to

issue the citations; that after receiving the citations and his driver’s license,

Macias was free to leave, and thus his subsequent interaction with Trooper

Barragan was a consensual encounter that did not illegally extend the traffic

stop; and that Trooper Barragan asked for consent to search after handing

Macias the citations, his driver’s license, and Zillioux’s identification card.

Finding no improper detention, the district court denied the motion to suppress.

The district court, in an abundance of caution, also analyzed Macias’s separate

argument that his consentto search the vehicle was invalid, concluding that the

Government met its burden of demonstrating that Macias’s consent for the

search was freely and voluntarily given. Macias subsequently entered a

conditional plea of guilty, expressly reserving the right to appeal the district

court’s denial of his suppression motion. He was later sentenced to thirty-three
No. 10-50614

3 Though not the owner, because Macias had the owner’s permission to drive the truck,

he has standing to contest its search. United States v. Mendoza-Burciaga, 981 F.2d 192, 196

(5th Cir. 1992). 

10

months of imprisonment and three years of supervised release. Macias timely

appealed, invoking our jurisdiction under 28 U.S.C. § 1291. 

II.

On appeal, the question presented is whether Trooper Barragan’s

subsequent actions after he legitimately stopped the truck were reasonably

related to the circumstances that justified the stop, or to dispelling any

reasonable suspicion developed during the stop.3 We review the factual findings

of the district court for clear error and its legal conclusions de novo. United

States v. Gomez, 623 F.3d 265, 268 (5th Cir. 2010). We view the evidence in the

light most favorable to the Government as the prevailing party in the district

court. Id. at 269.

The Fourth Amendment guarantees individuals the right “to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. CONST. amend. IV. “The stopping of a vehicle and the detention

of its occupants is a seizure within the meaning of the Fourth Amendment.”

United States v. Jones, 234 F.3d 234, 239 (5th Cir. 2000). We analyze the

legality of traffic stops for Fourth Amendment purposes under the standard

established by the Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968). United

States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc). Under the Terry

analysis, the legality of a traffic stop is tested in two parts. Id. First, we

examine whether the stop of the vehicle was justified at its inception. Id.

Second, we evaluate whether the officer’s subsequent actions were reasonably

related in scope to the circumstances that justified the stop of the vehicle in the

first place. Id. Macias concedes that the stop was a valid traffic stop for failure

to wear a seatbelt. He argues, however, that Trooper Barragan exceeded the
No. 10-50614

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scope of that stop when he asked questions unrelated to the purpose and

itinerary of the trip that impermissibly extended the duration of the stop and

without developing reasonable suspicion of additional criminal activity. 

“An officer’s subsequent actions are not reasonably related in scope to the

circumstances that caused him to stop the vehicle if he detains its occupants

beyond the time needed to investigate the circumstances that caused the stop,

unless he develops reasonable suspicion of additional criminal activity in the

meantime.” United States v. Pack, 612 F.3d 341, 350 (5th Cir.), modified on

denial of reh’g, 622 F.3d 383 (5th Cir.), cert. denied, 131 S. Ct. 620 (2010). In

such an instance, he may further detain the vehicle’s occupants “for a reasonable

time while appropriately attempting to dispelthis reasonable suspicion.” Id. As

part of the investigation into the circumstances that justified the stop, an officer

may examine driver’s licenses and vehicle registrations and run computer

checks. Id. He also may question a vehicle’s occupants about the purpose and

itinerary of their trip. Id. “Such questions may efficiently determine whether

a traffic violation has taken place, and if so, whether a citation or warning

should be issued or an arrest made.” Brigham, 382 F.3d at 508. “All these

inquiries are within the scope of investigation attendant to the traffic stop.” Id.

We have “reject[ed] any notion that a police officer’s questioning, even on

a subject unrelated to the purpose of the stop, is itself a Fourth Amendment

violation.” United States v. Shabazz, 993 F.2d 431, 436 (5th Cir. 1993); see also

United States v. Santiago, 310 F.3d 336, 341 (5th Cir. 2002) (“[T]his court

usually does not scrutinize the particular questions asked during a stop so long

as they tend to relate to the purpose of the stop.”). This is because “detention,

not questioning, is the evil at which Terry’s second prong is aimed.” Shabazz,

993 F.2d at 436. “The Fourth Amendment is concerned with ensuring that the

scope of a given detention is reasonable under the totality of the circumstances.”
No. 10-50614

4 We have applied these same standards to drug-dog sniffs in the immigration

checkpoint context. In upholding “the constitutionality of immigration checkpoints at which

[agents routinely] stop travelers without suspicion for questioning about immigration status,”

the Supreme Court has explicitly limited its holding “to stops and questioning to enforce the

immigration laws.” United States v. Machuca-Barrera, 261 F.3d 425, 431 (5th Cir. 2001)

(citing United States v. Martinez-Fuerte, 428 U.S. 543 (1976)). “As we have stated, ‘[t]he

Constitution [is] violated [ ] when the detention extend[s] beyond the valid reason for the

initial stop,’” which, in the immigration stop context, is “determining the citizenship status of

persons passing through the checkpoint.” Id. at 432, 433 (quoting United States v. Dortch, 199

F.3d 193, 198 (5th Cir. 1999), revised on other grounds on denial of reh’g, 203 F.3d 883 (5th

Cir. 2000)). This includes “the time necessary to ascertain the number and identity of the

occupants of the vehicle, inquire about citizenship status, request identification or other proof

of citizenship, and request consent to extend the detention.” Id. at 433. Agents are permitted

to “investigatenon-immigration matters beyond the permissible length of the immigration stop

if and only if the initial, lawful stop creates reasonable suspicion warranting further

investigation.” Id. at 434. Much like questioning is not a detention, a drug-dog sniff is not a

search, see City of Indianapolis v. Edmond, 531 U.S. 32, 40 (2000), and it is “beyond the

justifying scope of an immigration stop.” Machuca-Barrera, 261 F.3d at 432 n.21. Accordingly,

“border patrol agents may only conduct a drug-dog sniff if it does not lengthen the stop or if

they obtain consent.” Id. (emphasis added). 

12

Brigham, 382 F.3d at 508 (citing United States v. Roberson, 6 F.3d 1088, 1092

(5th Cir. 1993)) (emphasis in original). 

Nor have our prior cases instituted a “per se rule requiring an officer

immediately to obtain the driver’s license and registration information and

initiate the relevant background checks before asking questions.” Id. at 511.

“Some lines of police questioning before the initiation of a computer check are

often reasonable, as they may enable swift resolution of the stop.” Id. “This is

not to say,” however, “that questioning is unrelated to the determination that a

detention has exceeded its lawful duration.” Shabazz, 993 F.2d at 436.

Accordingly, “we have held that an officer may ask questions on subjects

unrelated to the circumstances that caused the stop, so long as these unrelated

questions do not extend the duration of the stop.”4 Pack, 612 F.3d at 350 (citing

Shabazz, 993 F.2d at 436–37) (emphasis added); see also United States v.

Machuca-Barrera, 261 F.3d 425, 432 n.21 (5th Cir. 2001) (“[Q]uestioning

unrelated to the justification for the stop that extends the duration of the stop
No. 10-50614

13

violates the Fourth Amendment.”). Thus, for example, we found no Fourth

Amendment harm when an officer asked unrelated questions of a vehicle’s

occupants while waiting for routine computer checks to be processed. Shabazz,

993 F.2d at 436–37. Viewed in a different perspective, an officer can ask

unrelated questions that “extend the duration of the stop” if – but only if – the

officer has reasonable suspicion sufficient to support the continued detention.

Pack, 612 F.3d at 350.

Macias argues that Trooper Barragan’s actions subsequent to the stop of

the truck exceeded the limits prescribed above. Specifically, Macias contends

that before Trooper Barragan ran the computer checks, he engaged in detailed

questioning about matters unrelated to Macias’s driver’s license, his proof of

insurance, the vehicle registration, or the purpose and itinerary of his trip that

unreasonably prolonged the detention without developing reasonable suspicion

of additional criminal activity. We agree. 

Nearly eleven minutes passed from the time that Trooper Barragan

stopped Macias until he ran the computer checks. During this time, Trooper

Barragan questioned Macias and Zillioux extensively about the purpose and

itinerary of their trip. Such questions, as discussed, are permissible because

they were related in scope to Trooper Barragan’s investigation of the

circumstances that caused the stop. Id. Trooper Barragan, however, asked

numerous questions that were not directed to the itinerary or purpose of

Macias’s trip to Victoria. Trooper Barragan asked Macias if he currently was

employed, what type of work he did, whether he owned his own business, and

whether he had been in “trouble” previously. Because Macias had informed

Trooper Barragan that his trip to Victoria was medically-related, his job and an

ambiguous question related to whether Macias had been in trouble previously

had no apparent relation to the itinerary or purpose of the trip. Further, the

video recording shows thatTrooper Barragan asked Zillioux a series of questions
No. 10-50614

14

in quick succession about how long her mother and Macias had been in a

relationship, whether Macias had been in trouble previously, how many children

Zillioux had, who was watching her children while she was away, why her

mother had not accompanied her and Macias on the trip, and for whom she, her

mother, and Macias worked. Trooper Barragan admitted at the suppression

hearing that these questions were unrelated to Macias’s failure to wear a

seatbelt, the circumstance that justified the stop in the first place. Hence, it is

clear that Trooper Barragan asked numerous unrelated questions.

We next must determine if these unrelated questions impermissibly

extended the duration of the stop. Approximately two minutes passed between

the time Trooper Barragan initiated the stop and initially questioned Macias

and Zillioux while they sat in the truck. It was not until Macias followed

Trooper Barragan to the area in front of the patrol vehicle that Trooper

Barragan began to ask questions unrelated to the purpose and itinerary of the

stop. Nearly eight minutes elapsed from that point until Trooper Barragan ran

the computer checks. Though we recognize that during this time Trooper

Barragan also asked Macias and Zillioux questions related to the purpose and

itinerary of the trip, Trooper Barragan extensively questioned them both on

unrelated topics. These questions therefore extended the stop by some length

of time. Cf. United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993) (“We do

not disagree . . . that, under appropriate circumstances, extensive questioning

about matters wholly unrelated to the purpose of a routine traffic stop may

violate theFourth Amendment.”). The Government presents no argument to the

contrary. 

The Government does argue, however, that Trooper Barragan was

permitted to ask these questions because, as soon as he stopped Macias, he had

reasonable suspicion that Macias was involved in criminal activity. When asked

at the suppression hearing why he did nottake Macias’s driver’s license, run the
No. 10-50614

15

checks, write the citation, and allow Macias to proceed on his way, Trooper

Barragan stated that he asked the questions because of Macias’s “[e]xtreme

signs of nervousness” and demeanor. Trooper Barragan testified that his

“suspicions of criminal activity taking place” were “up,” and that based on his

experience, Macias appeared to be unusually nervous. His signs of nervousness

were manifested through avoidance of eye contact and failure to put the truck

in park. 

“[T]he ‘touchstone of Fourth Amendment analysis is reasonableness.’”

Brigham, 382 F.3d at 507 (quoting Ohio v. Robinette, 519 U.S. 33, 39 (1996)).

“Reasonable suspicion exists when the detaining officer can point to specific and

articulable facts that, when taken together with rational inferences from those

facts, reasonably warrant the . . . seizure.” United States v. Estrada, 459 F.3d

627, 631 (5th Cir. 2006). “The suspicion required to justify such a detention need

not rise to the level of probable cause but must be based on more than an

unparticularized suspicion or hunch.” Jones, 234 F.3d at 241. “We must pay

heed to the Supreme Court’s admonition not to treat each factor in isolation,”

United States v. Lopez-Moreno, 420 F.3d 420, 433 (5th Cir. 2005), and instead

must consider “the totality of the circumstances and the collective knowledge

and experience ofthe officer,” Estrada, 459F.3d at 631–32. This admonition and

rule obtains because law enforcement officers are allowed “to ‘draw on their own

experience and specialized training’ to make . . . inferences from the facts

available to them.” Brigham, 382 F.3d at 509 (quoting United States v. Arvizu,

534 U.S. 266, 273 (2002)). Both the scope and length of the officer’s detention

must be reasonable in the light of the facts articulated as having created the

reasonable suspicion of criminal activity. Pack, 612 F.3d at 357. For the scope

of an officer’s detention to be reasonable in the light of the facts having created

the reasonable suspicion, “each crime he investigates should, if established, be

reasonably likely to explain those facts.” Id.
No. 10-50614

16

Here, the Government argues that Trooper Barragan had reasonable

suspicion of criminal activity because he testified that, based on his experience,

Macias appeared to be unusually nervous for someone pulled over for a seatbelt

violation, as evidenced by his failure to put his truck in park and his avoidance

of eye contact. Nervousness, standing alone, generally is not sufficient to

support reasonable suspicion. See Santiago, 310 F.3d at 342. In Brigham, this

court determined thatthe officer’s questioning ofthe defendant and the vehicle’s

occupants before running computer checks was reasonable and effectuated the

purpose of the stop because the officer learned that the defendant, the driver of

the stopped vehicle, was not the lessee, that the lessee was not present among

the vehicle’s occupants, and that the itineraries of the occupants conflicted.

Brigham, 382 F.3d at 508. The officer’s “increasing suspicion was also fueled by

Brigham’s extreme nervousness, his avoidance of eye contact, and his pattern of

answering the officer’s questions with questions of his own.” Id. (emphasis

added). We concluded that the officer’s questioning represented “a graduated

response to emerging facts.” Id. at 509. Here, Trooper Barragan could only

point to Macias’s extreme nervousness, which is not sufficient to support the

extended detention. 

Furthermore, potentially undercutting Trooper Barragan’s reasonable

suspicion is the Government’s failure to present any evidence that sets out

Trooper Barragan’s experience. The Government stated only that “[i]t is clear

that based on his experience, Trooper Barragan’s suspicion was piqued after

observing [Macias’s] unusual nervousness . . . .” Nor did Trooper Barragan

testify about his experience during the suppression hearing other than to say

that he was a Texas Department of Public Safety officer. In Brigham,this court

concluded that the officer had a right to rely on his “five and one-half years of

experience with the Texas Department of Public Safety” in concluding that the

defendant was lying based on the other articulable facts forming the officer’s
No. 10-50614

17

reasonable suspicion. Id. at 504, 508; see also Pack, 612 F.3d at 361 (finding that

officer’s suspicion that defendant was engaged in criminal drug activity, based

on defendant’s extreme nervousness, conflicting stories between the occupants,

and travel along a drug trafficking corridor, was entitled to “significant weight,

because he had been a law enforcement officer for seventeen years”); United

States v. Grant, 349 F.3d 192, 198–99 (5th Cir. 2003) (“Based on [the officer’s]

seven years of experience on the force and the totality of the circumstances he

had reasonable suspicion to detain [the defendant] to search the car for drugs.”).

Absent “extrinsic evidence or testimony” from Trooper Barragan concerning his

experience, “we are unable to evaluate the validity, basis, or intent” behind his

statements that Macias appeared exceptionally nervous for someone pulled over

for a seatbelt violation. United States v. Cavitt, 550 F.3d 430, 438 (5th Cir.

2008).

The Government argues that Trooper Barragan’s suspicion also was

heightened because Macias misrepresented his criminal background. Assuming,

arguendo, that such a question was not unrelated to the purpose or itinerary of

the trip, by the time that Trooper Barragan uncovered this “misrepresentation,”

he had already exceeded the permissible scope of the stop. Trooper Barragan

asked Macias whether he had been in trouble only after asking a series of

questions related to Macias’s employment. Similarly, Trooper Barragan asked

Zillioux about how long her mother had been in a relationship with Macias

before asking whether he had been in trouble previously. Moreover, even after

uncovering a possible inconsistency about “trouble” in Macias’s past, Trooper

Barragan seemed unconcerned, and launched into another series of questions to

Zillioux concerning how many children she had, who was watching them while

she was away, why Parra had not accompanied her and Macias on the trip, and

the current employment status of her, Macias, and Parra. Indeed, the district

court even found that Trooper Barragan “did not act on these suspicious
No. 10-50614

5 We note that when Trooper Barragan initially questioned Macias about any “trouble,”

he apparently meant convictions, since he scolded Macias for not revealing the attempted

murder convictionandnever clarifiedthe meaning of“trouble”in response to Macias’s question

about whether imprisonment is what he meant by “trouble.” When he later questioned Macias

after running the computer checks, “trouble” had also come to encompass “arrests,” as Macias

was never convicted of marijuana possession. Accordingly, it is not unreasonable that the

ambiguity inherent in the word “trouble” as used by Trooper Barragan, may have caused

Macias to have omitted any mention of a marijuana arrest that did not result in a conviction.

18

anomalies.” The video recording of the stop further reflects that when Macias

explained that he typically does not disclose the attempted murder conviction

unless asked, Trooper Barragan said he understood that reasoning. And, given

the broad meaning that can be ascribed the word “trouble,” that Macias was not

forthcoming with his prior conviction is not at all clear.5 Even if Macias and

Zillioux’s answers are considered inconsistent, inconsistent stories between a

driver and passenger do not necessarily constitute articulable facts of reasonable

suspicion. See Santiago, 310 F.3d at 338–39, 342; Jones, 234 F.3d at 241–42.

The Government also contends that because the prior panel decision in

United States v. Estrada, 459 F.3d 627, 631 (5th Cir. 2006) determined that an

officer’s questioning of defendants on topics unrelated to the purpose and

itinerary of the trip before a request for a computer check did not implicate

Fourth Amendment concerns, neither should the questions asked by Trooper

Barragan here. In Estrada, an officer questioned the two defendants abouttheir

car and travel plans before running the computer checks approximately eight

minutes into the stop. Id. at 629. Shortly after initiating the stop and asking

for identifications, registration, and insurance papers, one of the officers shined

his flashlightto the area to the back ofthe truck’s cab and bed and noticed “fresh

marks” and “scratches” around the fueltank eye piece latches and vehicle frame.

Id. The officer, extensively trained in the classroom and by on-the-job

experience – including an occasion at which he found illegal narcotics concealed

in a similarly-fashioned gas tank – suspected that a false compartment or
No. 10-50614

6 Because we conclude that Trooper Barragan impermissibly extended the detention of

Macias by asking unrelated questions in the absence of reasonable suspicion of further

criminal activity, we do not reach Macias’s alternative argument that Trooper Barragan

impermissibly extended the duration of the stop after issuing the citations by retaining an

identification document and continuing to question Macias without developing reasonable

19

container had been built in the fuel tank to conceal contraband. Id. Though not

related to the purpose and itinerary of the defendants’ trip, the extensive

questioning aboutthe defendants’ car before the officer ran the computer checks

did not violate the Fourth Amendment. Id. at 631. In comparison, Trooper

Barragan had no articulable facts to justify extensive questioning on topics

unrelated to the purpose and itinerary of Macias’s trip to Victoria. 

We recognize that “[n]one of the cases demands a particular series of

questions be asked – or not asked – within the scope of a traffic stop.” Brigham,

382 F.3d at 510. That, however, is only “so long as the overall detention is

justified by reasonable suspicion.” Id. Trooper Barragan asked numerous

questions unrelated to the purpose and itinerary of the stop before he may have

obtained reasonable suspicion by learning that Macias was not only nervous, but

may have misrepresented his criminal past. Law enforcement must possess

reasonable suspicion before extending a stop by asking unrelated questions.

Pack, 612 F.3d at 350. Though “[t]here is . . . no constitutional stopwatch on

traffic stops,” the questions asked by Trooper Barragan were unrelated to the

purpose and itinerary of the trip, and do not demonstrate that he “‘diligently

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

suspicion] quickly.’” Brigham, 382 F.3d at 511 (quoting United States v. Sharpe,

470 U.S. 675, 686 (1985)). Accordingly, we must conclude that Trooper

Barragan’s actions subsequent to the initial stop of the truck were not

reasonably related in scope to the circumstances that justified the stop of the

truck, and Trooper Barragan’s extended detention of Macias violated his Fourth

Amendment rights.6
No. 10-50614

suspicion of additional criminal activity. 

20

III.

Although we have concluded that Trooper Barragan’s extended detention

of Macias exceeded the scope of a permissible Terry stop, we must address the

Government’s further argument that Macias nevertheless consented to the

search of the truck. “[A] subsequent consent to search may, but does not

necessarily, dissipate the taint of a prior Fourth Amendment violation.” Jones,

234 F.3d at 242 (internal quotation marks and alterations omitted). The

Government’s burden to prove thatthe defendant consented, however,“becomes

all the more difficult” when there has been a prior constitutional violation.

United States v. Dortch, 199 F.3d 193, 201 (5th Cir. 1999), revised on other

grounds on denial of reh’g, 203 F.3d 883 (5th Cir. 2000). 

When we analyze consent given after an unconstitutional detention, a twopronged inquiry is applied: (1) whether the consent was voluntarily and freely

given; and (2) whether the consent was an independent act of free will. Jones,

234 F.3d at 242. “The first prong focuses on coercion, the second on causal

connection with the constitutional violation.” United States v. Chavez-Villarreal,

3 F.3d 124, 127 (5th Cir. 1993). We have made clear that affirmance for the

Government on such consent as here is appropriate only if both questions are

answered favorable to it: “Even though voluntarily given, consent does not

remove the taint of an illegal detention if it is the product of that detention and

not an independent act of free will.” Id. at 127–28. Furthermore, the

Government “has the burden of proving, by a preponderance of the evidence,

that the consent was voluntary.” Jones, 234 F.3d at 242 (internal quotation

marks omitted). We review the district court’s determination that consent was

voluntary for clear error. Estrada, 459 F.3d at 634. 
No. 10-50614

21

The first inquiry, whether consent was voluntarily and freely given,

requires that we examine six factors: “1) the voluntariness of the defendant’s

custodial status; 2) the presence of coercive police procedures; 3) the extent and

level ofthe defendant’s cooperation with the police; 4)the defendant’s awareness

of his right to refuse consent; 5) the defendant’s education and intelligence; and

6) the defendant’s belief that no incriminating evidence will be found.” Jones,

234 F.3d at 242. In this analysis, no single factor is determinative. Id.

Here, the district court applied the six factors and determined that

Macias’s consent was voluntary. Macias argues that his consent was “not

voluntary” and that “[m]any of the factors that show a lack of attenuation also

demonstrate that the district court clearly erred in concluding that Macias gave

voluntary consent to search the truck.” He neither cites nor analyzes the sixfactor test to evaluate the voluntariness of consent, however. Given his failure

to cite the six factors, much less specifically apply them, we are doubtful that he

has preserved the argument. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.

1993) (“FED. R. APP. P. 28(a)(4) requires that the appellant’s argument contain

the reasons he deserves the requested relief with citation to the authorities,

statutes and parts of the record relied on.” (internal quotation marks omitted)).

This failure, however, is not fatal to Macias’s overall contention thatthe firearm

should be suppressed under the fruit of the poisonous tree doctrine because it is

clear to us that Macias’s consent was too closely connected to the

unconstitutional detention to be deemed an independent act of free will. See

Jones, 234 F.3d at 234, 243 (declining to decide whether consent was voluntarily

provided because it was “clear that the government failed to prove that the

consent was an independent act of free will”). 

To determine whether consent was an independent act of free will and,

thus, broke the causal chain between the consent and the illegal detention, we

are guided by three factors: 1) the temporal proximity of the illegal conduct and
No. 10-50614

22

the consent; 2) the presence of intervening circumstances; and 3) the purpose

and flagrancy of the initial misconduct.” Id. at 243. Again, no single factor is

determinative. 

Macias argues that he gave consent almost immediately following the

illegal detention, and that there were no intervening events. Indeed, he appears

to argue that he was still being detained at the time he provided consent.

Macias points out, for instance, that when he attempted to turn his attention to

Zillioux in the car, Trooper Barragan “ordered him to stop, and required him to

remain to answer questions.” He further asserts that Trooper Barragan’s

actions were for the purpose of discovering evidence. The Government makes

no specific response to any of these arguments; instead, it rests primarily on its

argument that the detention was supported by reasonable suspicion and that the

district court’s finding of voluntary consent was not clearly erroneous. Although

the district court found that Macias’s consent was voluntary, it did not make a

specific finding on whether his consent was an independent act of free will, other

than to state in its oral ruling that “[t]he consent to search the vehicle was given

voluntarily by the Defendant and did not overcome Defendant’s free will, looking

at the six factors in the totality of the circumstances.” 

To address the first factor – the temporal proximity of the illegal conduct

and consent – we must determine when the impermissible detention came to an

end. After explaining and having Macias sign the citations, Trooper Barragan

handed to Macias the citation, its accompanying letter, and his driver’s license.

He then asked Macias if he could ask him a few more questions. Macias said

“Okay,” and then Trooper Barragan proceeded to question Macias while still

holding Zillioux’s identification card. It was not until after he asked Macias

when was the last time he used marijuana, that he handed over Zillioux’s

identification card. The Government argues that a reasonable person would

have feltfree to leave when Trooper Barragan returned Macias’s driver’s license
No. 10-50614

23

and the citations. We disagree. At the earliest, the detention ended when

Trooper Barragan gave Zillioux’s identification card to Macias. Cf. Jones, 234

F.3d at 241 (concluding that officer extended detention by, among other things,

returning the passenger’s identification but retaining other documents,

including the driver’s identification). Only thirty seconds separated Trooper

Barragan returning Zillioux’s identification card and requesting permission to

search the truck. It is clear then that there was a close temporal proximity

between the end ofthe illegal detention, atits earliest, and Macias’s consent. Cf.

id. (determining that consent was not an independent act of free will because it

was given when officer was still holding driver’s identification); ChavezVillarreal, 3 F.3d at 128 (stating that consent was not an independent act of free

will because it was provided while officer was still holding green cards belonging

to the passenger and driver). 

The second factor also indicates that Macias’s consent was not

independent of his illegal detention. The Government has identified no

intervening circumstances. Indeed, we can find no circumstances that

intervened between the detention and the consent, and thus hold that “there is

no reason to think that [Macias] believed he was free to go during” the thirty

second interval separating the two. See Dortch, 199 F.3d at 202. In that thirty

seconds, Trooper Barragan managed to ask rapid-fire questions about possible

contraband in the truck before requesting consent. A reasonable person, having

not been told he was free to leave and being asked such questions in a

challenging tone, would not have felt free to leave. With respect to the third

factor, although Trooper Barragan’s subjective purpose is not obvious, it is clear

that the purpose of the continuing detention was to obtain consent to search the

vehicle for the possibility of finding contraband of any sort. 

In sum, even assuming that Macias’s consent was voluntarily given, and

that the district court’s finding on that issue was not clearly erroneous, the
No. 10-50614

24

consent was nevertheless not valid. Instead, the causal chain between the illegal

detention and Macias’s consent to Trooper Barragan was not broken, and

therefore the search was nonconsensual. And because there was no valid

consentto search the truck,the firearm and all other evidence located during the

search should have been suppressed. 

IV.

In conclusion, we hold that the search of the truck violates the Fourth

Amendment, and that all evidence resulting from that search must be

suppressed. Trooper Barragan exceeded the scope of the stop by extensively

questioning Macias and Zillioux on matters unrelated to the purpose and

itinerary of their trip. He thus unconstitutionally prolonged the detention

beyond the time necessary to investigate the circumstances that justified the

stop. Moreover, there was no reasonable suspicion of additional criminal activity

that would justify such a prolonged detention. We further hold that even if

Macias’s actual consent was voluntary, such consent was not an independent act

of free will. Because all evidence of the search is thus suppressed, and there

being no other inculpatory evidence sufficient to convict Macias of being a felon

in possession of a firearm, the judgment of conviction is REVERSED and

VACATED, and the case is REMANDED for entry of a judgment of acquittal. 

REVERSED, VACATED, and REMANDED.