Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion *

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40126

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JOSE LUIS ZAMBRANO

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:07-CR-48-ALL

Before KING, GARWOOD and BARKSDALE, Circuit Judges.

PER CURIAM:*

Jose Luis Zambrano appeals his conviction following a bench trial for

possession with intent to distribute in excess of 100 kilograms of marijuana in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). He argues that the district court

erred in denying his motion to suppress the marijuana seized in conjunction with

the traffic stop that led to his arrest. In considering a ruling on a motion to

suppress, this court reviews findings of fact for clear error and the ultimate

United States Court of Appeals

Fifth Circuit

F I L E D

May 5, 2009

Charles R. Fulbruge III

Clerk
No. 08-40126

Zambrano notes that Deputy Calderon admitted that he would not have 1

allowed Zambrano to leave the scene even if Zambrano had attempted to do so.

However, only Deputy Calderon’s objective conduct, and not his private thoughts

and subjective intentions, are relevant in determining whether a seizure took

2

Fourth Amendment conclusions de novo. United States v. Brigham, 382 F.3d

500, 506 n.2 (5th Cir. 2004) (en banc). We view the evidence in the light most

favorable to the prevailing party, in this case the Government. See id.

Zambrano does not contest that he was speeding and that the initial traffic

stop was justified. Rather, Zambrano argues that Deputy Calderon

unconstitutionally extended the duration of the stop when the deputy continued

to question him and searched the vehicle after the purpose of the stop was

completed.

This court has noted that “a consensual interrogation may follow the end

of a valid traffic stop and that such consensual encounters do not implicate

Fourth Amendment concerns.” Id. at 508 (citing United States v. Sanchez-Pena,

336 F.3d 431, 442–43 (5th Cir. 2003) (finding a consensual encounter where the

officer had returned the driver’s license and insurance and then requested to

conduct a search of the vehicle)). “So long as ‘a reasonable person would feel free

to decline the officers’ requests or otherwise terminate the encounter,’ it is

consensual.” Sanchez-Pena, 336 F.3d at 441 (quoting United States v. Drayton,

122 S.Ct. 2105, 2111 (2002)). After issuing Zambrano a traffic citation and

explaining what the citation required Zambrano to do, Calderon returned

Zambrano’s license and insurance certificate and asked if he had any questions

(which he did not). Calderon did not accuse Zambrano of other criminal activity,

and he did not say or do anything to indicate that Zambrano was not free to

leave, nor did he in any way attempt to physically detain him. Although

Calderon did not expressly inform Zambrano that he was free to leave,

Zambrano later testified that he should have felt free to go after he received the

citation because he was stopped for speeding. Under these circumstances, 1
No. 08-40126

place. See United States v. Mask, 330 F.3d 330, 337 (5th Cir. 2003).

3

Zambrano’s decision to remain on site and answer Calderon’s questions was

consensual. See id. at 442–43. Therefore, the district court did not commit clear

error in determining that the encounter between Zambrano and Deputy

Calderon following the issuance of the traffic citation was consensual. Based on

this finding, the district court also correctly concluded that there was no Fourth

Amendment violation. 

The Government’s position is further supported by the district court’s

finding that Zambrano consented to the search of his vehicle. Zambrano testified

that he was never asked for nor voluntarily gave his consent to the search,

whereas Deputy Calderon testified to the contrary. The district court found the

deputy’s testimony more credible, and we will not casually disturb that

determination, especially when reviewing for clear error. United States v.

Casteneda, 951 F.2d 44, 48 (5th Cir. 1992). We look to six factors in reviewing

the voluntariness of a consent to search:

“1) the voluntariness of the defendant’s custodial status; 2) the

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

defendant’s cooperation with the police; 4) the defendant’s

awareness of his right to refuse consent; 5) the defendant’s

education and intelligence; and 6) the defendant’s belief that no

incriminating evidence will be found.”

United States v. Jones, 234 F.3d 234, 242 (5th Cir. 2000). Zambrano does not

challenge on appeal the district court’s findings that the second through sixth

factors of the consent inquiry weighed in favor of finding that his consent was

voluntary. The only factor challenged by Zambrano is the first factor, the

voluntariness of his custodial status. See id. Zambrano has not, for the reasons

noted above, shown that he was being detained when he gave consent to search

his truck. Even if he was being detained for purposes of the Fourth Amendment,

however, he was not then under arrest or in official custody, see United States

v. Ponce, 8 F.3d 989, 997 (5th Cir. 1993), and given the district court’s findings
No. 08-40126

4

with respect to the other factors, the district court’s finding that Zambrano’s

consent was voluntary was not clearly erroneous.

The district court’s judgment is AFFIRMED.