IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20200

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JOSE LUIS ZAVALA

Defendant-Appellant

Appeal from the United States District Court 

for the Southern District of Texas

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

DeMOSS, Circuit Judge:

Defendant-Appellant Jose Luis Zavala was convicted after trial of two

counts of possession with intent to distribute over five kilograms of cocaine, and

two counts of conspiracy to possess with intent to distribute over five kilograms

of cocaine. 21 U.S.C. §§ 841, 846; 18 U.S.C. § 2. The district court sentenced

Zavala to 235 months of imprisonment, five years of supervised release, and a

$5,000 fine. The district court entered judgment on February 28, 2007, and

Zavala filed a timely notice of appeal.

According to Zavala, the district court erred in denying his motion to

suppress certain testimony of John Moreman, an agent ofthe Drug Enforcement

Administration (DEA). Moreman searched Zavala’s cell phone after Zavala’s

United States Court of Appeals

Fifth Circuit

F I L E D

August 22, 2008

Charles R. Fulbruge III

Clerk
No. 07-20200

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vehicle was stopped by the police, and he testified at trial regarding the

subscriber number (the 6323 number) that he obtained through this search. In

addition to claiming that Moreman’s testimony regarding the 6323 number

should have been suppressed, Zavala also claims that the cell phone records

pertaining to the 6323 number should have been suppressed as fruit of the

poisonous tree. Based on this alleged constitutional error, Zavala claims that

the district court erred in denying his post-verdict motion for new trial because

there is a significant possibility that Moreman’s testimony regarding the 6323

number had a substantial impact upon the jury’s verdict.

In response,the Government argues that(1)the police had probable cause

to arrest Zavala at the time his cell phone was searched, so Moreman’s

testimony regarding the 6323 number was admissible because it was obtained

incident to arrest; (2) Moreman had consent to search the cell phone; (3) the

search of the cell phone was equivalent to a licence check; (4) Moreman’s

testimony regarding the 6323 number is admissible because an independent

source—Javier Pompa-Hernandez—identified this number, which purged any

taint associated with the constitutional violation; (5) probable cause to arrest

Zavala developed after the search of his cell phone, so Moreman’s testimony

regarding the 6323 number was admissible under the inevitable discovery

exception; and (6) any constitutional error is harmless beyond a reasonable

doubt because the overwhelming weight of the evidence supports the jury’s

guilty verdict. 

We conclude that the district court erred in denying the motion to suppress

Moreman’s testimony regarding the 6323 number. We agree with the district

court’s legal conclusion that the initial stop of Zavala’s vehicle was an

investigative stop based on a reasonable suspicion of drug trafficking activity,

not probable cause. The search of Zavala’s cell phone was not the equivalent of

a license check. Because Moreman did not have consent or probable cause to
No. 07-20200

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arrest Zavala at the time of the search, the search was unconstitutional.

Moreman’s testimony regarding the 6323 number should have been suppressed

because the exclusionary rule prohibits the introduction of testimony concerning

knowledge acquired during an unlawful search. 

The independent source and inevitable discovery exceptions to the

exclusionary rule do not apply in this case. Furthermore, the Government has

not carried its burden of demonstrating that this constitutional error was

harmless beyond a reasonable doubt. The jury might have convicted Zavala

based, in whole or part, on the inadmissible testimony of Moreman. Thus, we

reverse the judgment of the district court and remand for a new trial.

I. Factual Background & Procedural History

A. Factual Background

In an appeal from the denial of a motion to suppress, we may consider both

the evidence admitted at the suppression hearing and at trial. United States v.

Jones, 239 F.3d 716, 718 (5th Cir. 2001).

1. The Co-Conspirators

Zavala was convicted of two counts of possession with intent to distribute

and two counts of conspiracy. The possession and conspiracy counts related to

conduct occurring during two distinct time periods: (1) conduct occurring

between September 2003 and June 2004; and (2) conduct occurring on July 16,

2004. Other indicted co-conspirators relevant to this appeal include Mario Luna,

Jose Rivera, and Javier Pompa-Hernandez. Both Luna and Pompa pled guilty

and testified against Zavala at trial.

2. The Arrest of Luna

Moreman obtained information from a cooperating source that Luna

wanted to purchase 210 kilograms of cocaine in Houston. Two undercover DEA

agents met with Luna in the parking lot of a restaurant. While in Luna’s

vehicle, Agent Felix Gonzalez observed a large amount of cash in a partially
No. 07-20200

1 The subpoenaed phone records for the 6323 and 9418 numbers did not identify the

name of the subscriber because they were associated with pre-paid service plans. The only

identifying information in these two sets of phone records were two different birth dates,

neither of which corresponded to Zavala’s actual birth date.

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opened bag. After agreeing to contact each other in the future regarding the

drug transaction,the agents followed Luna from the restaurant to his home (the

High Manor residence), where a search uncovered forty kilograms of cocaine,

drug ledgers, and a cell phone. The district court denied Luna’s motion to

suppress the evidence discovered at Luna’s home on June 25, 2004, concluding

that exigent circumstances justified the warrantless entry and that Luna gave

a voluntary oral and written consent to search. The constitutional validity of

that search is not before us in this appeal.

According to Moreman, Luna’s drug ledgers contained several entries for

a man named “Gorro.” The total amount associated with Gorro was 132

kilograms of cocaine. The name Gorro was also found in Luna’s cell phone, and

the agents later determined through subpoenaed phone records that Gorro’s

subscriber number (the 4886 number) belonged to Rivera. Unlike the phone

records for the 6323 and the 9418 number, the phone records for the 4886

number identified the name of the individual subscriber.1 The DEA initiated

surveillance at Rivera’s residence on Miramar Shores. Based on the information

obtained from the search of Luna’s residence, the agents suspected that Rivera

was distributing cocaine in Houston.

Luna pled guilty and testified against Zavala at trial. He testified that he

distributed cocaine in Houston and that Pompa transported money to Luna’s

boss, Daniel Elizondo, in Mexico. Luna recorded information regarding his drug

transactions in a ledger, and he always used nicknames for the parties involved.

He explained that Rivera’s nickname was Gorro and that Zavala’s nickname was

Nejo. According to Luna, his cell phone contained an entry for Nejo. Only Luna,

Pompa, and Elizondo knew Zavala by that nickname. Luna testified that Zavala
No. 07-20200

2 Moreman never confirmed Zavala’s subscriber numbers in this manner.

3 Unlike static surveillance, where the agents constantly observe the target from a

stationary position, fluid surveillance requires the agents to periodically drive by their target

in different vehicles in order to avoid detection. 

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purchased cocaine from him on several occasions. Luna acknowledged that he

never referred to Zavala by name in his drug ledger or in the factual basis of his

plea agreement. Thus, Luna’s first public disclosure of the identity of Nejo was

at Zavala’s trial. On cross examination, Zavala attacked Luna’s credibility and

argued that Luna identified Zavala as Nejo in order to obtain a lesser sentence.

3. The Arrest of Zavala and Pompa

On July 16, 2004, Moreman followed Rivera as he left his Miramar Shores

residence. When he stopped at a red light, Moreman dialed the phone number

for Gorro and observed that Rivera answered his cell phone.2 The agents

followed Rivera to his other residence on Tall Timbers. Rivera drove a Ford

pickup and parked in the driveway. Moreman had no information—from a

confidential source or otherwise—that there was going to be a drug transaction

at the Tall Timbers residence on that date.

After Rivera drove the pickup into the driveway, Moreman initiated fluid

surveillance ofthe location.3 The agents’ observations were being broadcast over

police radio. Because Moreman’s knowledge of the events occurring at the Tall

Timbers residence was based on fluid surveillance, he was unable to recount

every detail of the interaction among Rivera, Pompa, and Zavala.

Shortly after Rivera parked in the driveway ofthe Tall Timbers residence,

Zavala and Pompa arrived in a Ford Taurus. At that time, the DEA agents did

not recognize Pompa or Zavala from any previous investigation. The Taurus and

the pickup parked next to each other and faced the same direction. Zavala was

driving the Taurus, and Pompa was sitting in the passenger seat. The agents

observed Pompa remove some unidentified items from the Taurus, place them
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into a cardboard box, and put the box into Rivera’s pickup. The DEA agents did

not see Zavala load or move the cardboard box; he was merely standing outside

the Taurus. Agent Richard Hicks testified that he could not observe the shape

or the identity of the items that Pompa placed into the cardboard box. However,

the DEA agents suspected thatthey were witnessing a drug transaction between

Rivera, Pompa, and Zavala.

Shortly thereafter, the agents observed Rivera leave the Tall Timbers

residence, enter a mechanic’s shop down the street, and exit carrying a large pair

of pliers. Rivera drove back to the Tall Timbers residence and again parked next

to the Taurus. The agents suspected that Rivera retrieved the pliers in order to

open a secret compartment in the Taurus containing contraband; however, the

agents did not actually see what Rivera did with the pliers. Two surveillance

teams followed the pickup and the Taurus as they left the Tall Timbers

residence. At that time, the agents did not know the location of the cardboard

box or its contents.

Because the agents suspected that they had just witnessed a drug deal,

Moreman instructed a uniformed officer to stop the Taurus on Beltway 8 in

Houston. Zavala did not commit a traffic violation before being pulled over.

Zavala and Pompa were removed from the Taurus and immediately separated.

Their wallets and cell phones were removed from their persons and placed on the

roof of the Taurus. Moreman arrived on the scene shortly after the stop. Hicks

and Moreman initially interviewed Pompa. A few minutes later, Hicks left

Pompa and began to interview Zavala. At some later point, Moreman also

interviewed Zavala. 

Attrial, Moreman testified that he interviewed Zavala for twenty minutes

and searched his cell phone. He testified that Zavala’s subscriber number was

the 6323 number. He also identified the subpoenaed phone records for the 6323

number. Moreman agreed that he had to “open[] up the phone to see what the
No. 07-20200

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number was.” According to Hicks, Zavala gave oral consent to search the vehicle

after the initial stop, but the agents did not uncover any drugs during this first

vehicle search. It is unclear whether the search of Zavala’s cell phone occurred

before or after Zavala first gave his oral consent to search the Taurus. Instead

of claiming that the search of the cell phone was consensual, Moreman testified

that the search was incident to arrest.

Zavala and Pompa gave conflicting stories about the owner of the Taurus

and the purpose of their trip. Both men denied the existence of any cardboard

box. During the interview, Moreman realized that he recognized Pompa from an

earlier undercover drug operation, which had not resulted in a drug seizure or

Pompa’s arrest. 

After the initial stop of the Taurus, the agents approached Rivera in the

front yard of his Miramar Shores residence, where they questioned him about

his activity at the Tall Timbers residence. After the first vehicle search of the

Taurus was unsuccessful, the agents handcuffed Zavala, put him into the back

of a police car, and transported him to the Miramar Shores address where

Rivera was being interviewed. Another agent drove the Taurus to the Miramar

Shores address. Rivera consented to follow the officers to his Tall Timbers

residence and to a search of his detached garage and shed. Zavala remained in

the police car at Miramar Shores while the police searched at Tall Timbers; he

was probably handcuffed and definitely not free to leave.

After a narcotics detection canine alerted to a red suitcase at Tall Timbers,

Rivera confessed to the agents that Zavala and Pompa had just delivered

twenty-four kilograms of cocaine to him at the Tall Timbers address earlier that

day. Rivera had assisted the two men in retrieving the cocaine from the Taurus,

and then he transported it back to his Miramar Shores residence. Rivera

directed the agents to the twenty-four kilograms of cocaine in the attic of his

Miramar Shores residence, and then told the agents that there was an extra
No. 07-20200

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kilogram of cocaine stuck inside the Taurus because he was not able to remove

it with the pliers. According to Rivera, Zavala initially contacted him about the

cocaine transaction. Moreman testified that the canine alerted to the suitcase

at the Tall Timbers residence about one hour after the initial stop ofthe Taurus.

After Rivera confessed, the agents asked Zavala for oral consent to search

the Taurus a second time, which was given. According to Moreman, Zavala gave

his second consent to search about one hour and fifteen minutes after the initial

stop of the Taurus. Hicks testified that it could have been more than one hour

and thirty minutes. Other testimony indicated that it could have been even

longer. The second search was more thorough than the first. During this second

search of the Taurus at Miramar Shores, the agents located one kilogram of

cocaine in a secret compartment. Zavala also signed a consent form that allowed

agents to conduct a warrantless search of his Ann Louise residence, which

uncovered $27,000 in cash. Hicks testified that the search of Zavala’s residence

occurred about four hours after the initial stop of the Taurus.

Pompa testified that he rode with Zavala in the Taurus to deliver cocaine

to the Tall Timbers residence. He also identified Zavala as Nejo. According to

Pompa, he called Zavala on his cellular phone on July 15 and 16, 2004. Pompa

identified Zavala’s cell phone number as the 6323 number and stated that the

calls he made to Zavala related to the drug transaction. He stated that he did

not call Zavala on any cell phone number other than the one he identified.

Pompa also testified that his cell phone was immediately confiscated by

Moreman when he was stopped in the Taurus. On cross examination, Zavala

questioned Pompa’s credibility and motive for testifying against him.

4. The Testimony of Skidmore

Patricia Skidmore, a DEA intelligence research specialist, analyzed the

subpoenaed cell phone records from the cell phones recovered from Luna,

Pompa, and Zavala. She compared the entries listed for Gorro and Nejo in
No. 07-20200

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Luna’s cell phone with entries from the drug ledgers and found similarities.

Skidmore identified the phone records pertaining to the 6323 number. She

stated that the 6323 number belonged to Zavala and was recovered “because of

the cellular telephone that was seized by Agent Moreman” on July 16, 2004.

Skidmore also testified that the 9418 number was associated with the entry for

Nejo in Luna’s cell phone. Based on her analysis of the phone records for the

9418 number and the 6323 number, she testified that those two cell phones

“could have been carried by the same person.” Skidmore prepared a chart, which

was admitted into evidence, indicating thatthe 9418 number called Luna thirtyseven times, called Rivera eleven times, and called Pompa zero times. The 6323

number called Luna zero times, called Rivera eighteen times, and called Pompa

forty-five times. 

With respect to her analysis of Luna’s drug ledgers, Skidmore identified

a total of 256 kilograms of cocaine attributed to Nejo for the period of September

2003 through May 2004. The total amount of cocaine documented in Luna’s

ledgers exceeded 3,100 kilograms. 

B. Procedural History

1. First Motion to Suppress

Zavala filed a motion to suppress the one kilogram of cocaine found in the

Taurus and the $27,000 found at his Ann Louise residence. Zavala claimed that

he was arrested without probable cause and that his second consent to search

the Taurus and his consent to search his residence were tainted by this illegal

detention. In response, the Government argued that (1) the consent was valid;

and (2) probable cause to arrest existed at the time of the initial stop. 

The district court held a pre-trial suppression hearing, which was divided

into two parts. The first part of the hearing dealt with the events of June 25,

2004 (Luna’s arrest), and the second part dealt with the events of July 16, 2004

(Zavala’s and Pompa’s arrest). On July 16, 2004, Zavala’s vehicle was searched
No. 07-20200

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twice and his home was searched once. According to the Government, Zavala

gave oral consent for the two vehicle searches and written consent for the

residence search. After the first vehicle search failed to produce any drugs, the

district courtfound thatthe agents handcuffed Zavala, placed him into the police

car, and detained him for one hour and thirty minutes before Rivera confessed

to Zavala’s participation in the twenty-five kilogram drug transaction.

According to the district court, probable cause to arrest Zavala did not develop

until Rivera confessed.

After the district court heard the testimony at the suppression hearing, it

considered the arguments of counsel. The prosecutor’s central argument was

that the initial stop of the Taurus was based on a reasonable suspicion of drug

trafficking activity, not probable cause. The prosecutor argued that this

reasonable suspicion was heightened during the questioning of Zavala and

Pompa, which justified their continued detention, and it rose to the level of

probable cause after Rivera confessed to the drug transaction. The prosecutor

briefly mentioned the possibility that probable cause to arrest existed at the time

of the initial stop. However, he later informed the district court that it was the

Government’s position that the initial stop was a Terry stop. The prosecutor

argued that a one hour and thirty minute detention was necessary to confirm or

dispel the reasonable suspicion that justified the initial stop of the Taurus.

The district court ruled that the initial investigative vehicle stop was

permissible under Terry v. Ohio, 392 U.S. 1 (1968), based on a reasonable

suspicion of drug trafficking activity; Zavala’s one hour and thirty minute

detention developed into a de facto arrest without probable cause; Zavala’s

second consent to search his vehicle and consent to search his home, which

occurred after his de facto arrest, were not voluntary and were not independent

acts of free will; and one kilogram of cocaine found after the second search of his

vehicle and $27,000 in cash found at his home would be suppressed.
No. 07-20200

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2. Second Motion to Suppress

After the district court granted Zavala’s first motion to suppress the one

kilogram of cocaine and the $27,000, Zavala filed a second motion to suppress

three cell phones confiscated from Zavala on July 16, 2004. The Government

argued that the cell phones were admissible because they were recovered at the

time of the first vehicle search, which the district court had previously held was

constitutional. The district court did not conduct a hearing on this second

motion to suppress, but instead carried the motion until the trial.

At a pre-trial conference regarding the second motion to suppress, the

Government stated that it would not seek to introduce the physical cell phones,

including the cell phone associated with the 6323 number. Zavala stated that

his motion would be moot if the Government did not introduce the physical

phones or the fact that Zavala possessed those phones. 

At trial, the Government did not seek to admit the physical cell phones

into evidence. However, the Government argued that Moreman should be able

to testify regarding his search of one cell phone and his observation of the 6323

number. The Government stated that it was “critical to our case to show that he

had a phone on him showing contact with some of the individuals and not other

of the individuals.” Zavala objected to the introduction of this evidence. After

concluding that Zavala’s first consent to search his vehicle extended to a search

of his cell phone, the district court ruled that Moreman’s testimony regarding

the 6323 number was admissible.

3. Motion for New Trial

During deliberation, the jury submitted Jury Note #2 to the district court:

“It is a fact that phone 281-XXX-9418 and 832-XXX-6323 belong to Jose Luis

Zavala? We don’t understand the objections from lawyers on it.” In response,

the district court stated that it could not answer this factual question, that the

arguments of counsel are not evidence, and that the jury must refer to its own
No. 07-20200

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recollection and interpretation of the evidence presented at trial. After the jury

returned a guilty verdict, Zavala filed a motion for new trial, arguing that the

district court erred in admitting Moreman’s testimony regarding the 6323

number. The motion was denied without reasons.

II. Analysis

A. Standard of Review

The district court’s legal conclusions under the Fourth Amendment are

reviewed de novo, but its factual findings are reviewed for clear error. United

States v. Ibarra, 493 F.3d 526, 530 (5th Cir. 2007). “A factual finding is not

clearly erroneous if it is plausible in light of the record as a whole.” United

States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). “We may consider all of

the evidence presented at trial, not just that presented before the ruling on the

suppression motion, in the light most favorable to the prevailing party, which in

this case is the Government.” Ibarra, 493 F.3d at 530.

B. Probable Cause to Arrest

The Government argues thatthe DEA agents had probable cause to arrest

Zavala when his cell phone was searched by Moreman. A district court’s legal

conclusions, including determinations of reasonable suspicion and probable

cause, are reviewed de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996).

We agree with the district court that the agents had a reasonable suspicion of

drug trafficking activity that was sufficient to justify an investigative vehicle

stop, but this suspicion did not rise to the level of probable cause before Zavala’s

cell phone was searched.

An investigative vehicle stop is permissible under Terry only when the

officer has a reasonable suspicion supported by articulable facts that criminal

activity may be afoot. United States v. Martinez, 486 F.3d 855, 861 (5th Cir.

2007). Although a “mere hunch” will not suffice, a “reasonable suspicion” need

not rise to the level of probable cause. United States v. Lopez-Moreno, 420 F.3d
No. 07-20200

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420, 430 (5th Cir. 2005). To determine the propriety of such a stop, we “first

examine whether the officer’s action was justified at its inception, and then

inquire whether the officer’s subsequent actions were reasonably related in scope

to the circumstances thatjustified the stop.” United States v. Brigham, 382 F.3d

500, 506 (5th Cir. 2004) (en banc) (citing Terry, 392 U.S. at 19-20). 

Based on the information obtained from Luna and the DEA surveillance

team, Moreman had a reasonable suspicion that Pompa and Zavala were

engaged in drug trafficking activity at the Tall Timbers residence. Thus, it was

constitutionally permissible for Moreman to order the uniformed officer to stop

the Taurus despite the fact that Zavala did not commit any traffic violation. See

United States v. Holloway, 962 F.2d 451, 459 n.22 (5th Cir. 1992) (stating that

reasonable suspicion is based on the “collective knowledge and experience of the

officers involved”).

In United States v. Ibarra-Sanchez, we held that there was reasonable

suspicion at the time of the initial vehicle stop based on “a veritable cornucopia

of factors suggesting drug-related activity,” but probable cause for a warrantless

search did not arise until the police officers actually smelled marijuana upon

approaching the vehicle. 199 F.3d 753, 758-60 (5th Cir. 1999). In IbarraSanchez, a five-month DEA surveillance operation indicated that (1) the suspects

had made numerous phone calls to phone numbers associated with other DEA

investigations; (2) the suspect’s trash contained several plastic bags covered in

duct tape, plane tickets to Mexico, and bank statements with large monthly

deposits even though the suspects had no discernable employment; (3) a police

canine positively identified the plastic bags as having contained currency; (4)

there was heavy foot and vehicle traffic between the suspects’ residence and

another suspected stash-house they maintained; (5) approximately six vehicles,

some with temporary tags and some associated with other DEA investigations,

would drive between the suspects’ houses and would park in front of them for
No. 07-20200

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weeks at a time; and (6) three men loaded several large objects, which appeared

to be duffel bags, into a van in the dark before being stopped by police. Id. at

756-57, 758-59. Zavala argues that under the reasoning of Ibarra-Sanchez, the

agents had reasonable suspicion for the initial stop of the Taurus, but they did

not have probable cause to arrest him and search his cell phone until Rivera

confessed about one hour and thirty minutes later.

The Government argues that the agents had probable cause to arrest

Zavala at the time of the search, so Moreman was entitled to conduct a search

of the cell phone incident to arrest without a warrant or consent. See United

States v. Finley, 477 F.3d 250, 259-60 (5th Cir.), cert. denied 127 S. Ct. 2065

(2007) (holding that the police officer could search the defendant’s cell phone for

call records and text messages as a search incident to a lawful arrest). Under

the Fourth Amendment, a warrantless arrest must be based on probable cause.

United States v. Castro, 166 F.3d 728, 733 (5th Cir. 1999) (en banc). “Probable

cause exists when the totality of facts and circumstances within a police officer’s

knowledge at the moment of arrest are sufficient for a reasonable person to

conclude that the suspect had committed, or was in the process of committing,

an offense.” Id. 

The district court correctly determined that the agents did not have

probable cause to arrest Zavala at the time that Moreman searched Zavala’s cell

phone. The evidence obtained from Luna caused the DEA to put Rivera under

surveillance; Zavala did not become a focus of the investigation until the agents

fortuitously saw him participate in a suspicious transaction with Rivera and

Pompa at the Tall Timbers residence. No agent recognized Zavala from a

previous investigation. Zavala had not been linked to Luna’s ledger through the

9418 number because those phone records did not identify the individual

subscriber. No source informed the DEA that a drug transaction would occur at

the Tall Timbers residence on July 16, 2004. No agent identified the objects
No. 07-20200

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being placed in the cardboard box. No agent saw Zavala participate in the

loading or movement of the cardboard box. After the stop, Moreman recognized

Pompa from a previous DEA operation, but that operation had not resulted in

a seizure of drugs or the arrest of Pompa. See Ybarra v. Illinois, 444 U.S. 85, 91

(1979) (“Where the standard is probable cause, a search or seizure of a person

must be supported by probable cause particularized with respect to that

person.”). Although Zavala and Pompa gave conflicting answers to several

interview questions, this could not “serve as the catalyst to convert mere

reasonable suspicion to probable cause.” Cf. Holloway, 962 F.2d at 461. 

At the time Moreman searched Zavala’s cell phone, the agents had a

reasonable suspicion of drug trafficking activity, but they did not have probable

cause to arrest Zavala and charge him with a crime. See Maryland v. Pringle,

540 U.S. 366, 371 (2003) (stating that the “substance of all the definitions of

probable cause is a reasonable ground for belief of guilt”) (quotation omitted).

Rivera’s subsequent confession gave the agents probable cause to arrest Zavala,

butthat probable cause did not develop until after Moreman’s search of Zavala’s

cell phone. See Smith v. Ohio, 494 U.S. 541, 543 (1990) (“[I]t is axiomatic that

an incident [to arrest] search may not precede an arrest and serve as part of its

justification.”) (quotation omitted). Because Moreman did not have probable

cause to arrest Zavala at the time he searched the cell phone, the search was not

justified under an “incident to arrest” theory.

C. Consent to Search

“A search may be conducted without either probable cause or a warrant

if it is conducted pursuant to consent.” United States v. Richard, 994 F.2d 244,

250 (5th Cir. 1993). “When the government relies upon consent as the basis for

a warrantless search,” however, “they have no more authority than they have

apparently been given by the consent.” United States v. Mendoza-Gonzalez, 318

F.3d 663, 666 (5th Cir. 2003). “Under the Fourth Amendment, ‘[t]he standard
No. 07-20200

4 Under Terry, the police officer could order Zavala to empty his pockets and place the

contents on the roof of the Taurus to confirm that he was not carrying a weapon. See United

States v. Reyes, 349 F.3d 219, 225 (5th Cir. 2003) (“[The police officer’s] request that defendant

empty his pockets and lift his shirt was permissible under Terry.”). 

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for measuring the scope of a suspect’s consent . . . is that of ‘objective’

reasonablenessSSwhat would the typical reasonable person have understood by

the exchange between the officer and the suspect?” Id. at 667 (quoting Florida

v. Jimeno, 500 U.S. 248, 251 (1991)). Thus, where a person consented to the

search of his vehicle, we have held the consent did not extend to a search of himself. See United States v. Jenson, 462 F.3d 399, 407 (5th Cir. 2006).

Because the initial stop of Zavala was based on reasonable suspicion alone,

the police were not permitted to search the car or Zavala absent consent. The

district court found that Zavala consented to the search of his car and that his

consent extended to the phones. We disagree. Given that Zavala’s phones were

immediately removed from his person and placed on the roof of the vehicle, it

was not objectively reasonable to understand his consent to search the car as

consent to search the phones. 

Neither was Moreman’s search of Zavala’s phone permissible underTerry.

Without a warrant or consent, Terry permits only a limited pat-down search to

determine whether the suspect is carrying a weapon.4 Jenson, 462 F.3d at 407.

“If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed.”

Minnesota v. Dickerson, 508 U.S. 366, 373 (1993). By searching Zavala’s cell

phone for the 6323 number, Moreman’s search was beyond the scope of a lawful

protective search. Thus, Moreman’s search of the phones without a warrant,

without probable cause, and absent consent violated the Fourth Amendment.

D. License Check
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During a traffic stop, a police officer may examine a driver’s license and

vehicle registration, run a computer check on the driver and the vehicle, and

question the driver about a wide range of matters, including those unrelated to

the purpose of a routine traffic stop. Brigham, 382 F.3d at 507-08. The

Government argues that the search of Zavala’s cell phone was equivalent to

running a license check during a traffic stop. Finley indicates that a search of

a cell phone after an investigative vehicle stop is appropriate if the police officer

has either a warrant or probable cause to arrest. 477 F.3d at 259-60. In holding

that a police officer may search a cell phone in the case of a lawful custodial

arrest, Finley cited to cases holding that “[t]he permissible scope of a search

incident to a lawful arrest extends to containers found on the arrestee’s person.”

Id. at 260.

In the case of a traffic stop, a police officer must ensure that the driver

does not have a warrant or a suspended license, and that the vehicle is

registered and not reported stolen. These checks are routine and quickly

performed. Additionally, state law requires a driver to carry a driver’s license

and proof of insurance. See Atwater v. City of Lago Vista, 532 U.S. 318, 324

(2001) (citing TEX. TRANSP. CODE §§ 521.025, 601.053). Because state law

requires a driver operating a motor vehicle to surrender his driver’s license and

proof of insurance when asked by a police officer, that person does not have a

reasonable expectation of privacy regarding those items after being pulled over

for a traffic violation. See TEX. TRANSP. CODE §§ 521.025(b), 601.053(a), (b); see

also Finley, 477 F.3d at 258 (stating the test for when a defendant has a

reasonable expectation of privacy sufficientto contestthe constitutional validity

of a search).

Unlike a driver’s license and vehicle registration, which are typically

issued by a governmental entity, cell phones contain a wealth of private

information, including emails, text messages, call histories, address books, and
No. 07-20200

5 The 6323 number was not plainly visible to Moreman. He had to open the cell phone

and manipulate it in order to retrieve the subscriber number. Thus, Moreman's testimony

regarding the 6323 number is not admissible under a plain view theory. See United States v.

Hill, 19 F.3d 984, 989 (5th Cir. 1994).

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subscriber numbers. Zavala had a reasonable expectation of privacy regarding

this information. See Finley, 477 F.3d at 258-59. A cell phone is similar to a

personal computer that is carried on one’s person; Finley indicates that mere

possession of a cell phone gives rise to a reasonable expectation of privacy

regarding its contents. See id. A police officer’s license check during a traffic

stop is “within the scope of investigation attendant to the traffic stop” and is not

triggered by any particularized suspicion that the check will produce evidence

of a crime. Brigham, 382 F.3d at 508. In this case, Moreman’s search of Zavala’s

cell phone was “general rummaging in order to discover incriminating evidence.”

See Florida v. Wells, 495 U.S. 1, 4 (1990). The Government’s analogy between

searching a cell phone during an investigative stop and running a license check

during a traffic stop is simply not apropos.5

Zavala’s vehicle was stopped because of a reasonable suspicion of drug

trafficking activity. Just as the agents could not search Zavala’s vehicle for

contraband based on this suspicion without consent or probable cause, they could

not search Zavala’s cell phone for other incriminating evidence without consent

or probable cause. See Finley, 477 F.3d at 259-60 (if the police officer has

probable cause to arrest, then he may “look for evidence of the arrestee’s crime

on his person in order to preserve it for use at trial”) (citing United States v.

Robinson, 4154 U.S. 218, 233-34 (1973)).

E. Independent Source Exception

“The primary limit on the exclusionary rule is that otherwise suppressible

evidence will still be admitted if the connection between the alleged illegality

and the acquisition of evidence is so attenuated as to dissipate the taint.” United
No. 07-20200

6 Because we typically apply the independent source exception in cases involving

physical evidence, as opposed to testimonial evidence, the “identical” requirement is usually

not an issue. See, e.g., Moore, 329 F.3d at 404-05 (marijuana and firearm would have been

discovered through an untainted, independent source); Runyan, 290 F.3d at 235-36 (child

pornography); Grosenheider, 200 F.3d at 328 (child pornography); United States v. Register,

931 F.2d 308, 311 (5th Cir. 1991) (cocaine, money, scales, and drug paraphernalia).

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States v. Grosenheider, 200 F.3d 321, 327 (5th Cir. 2000) (quotation omitted).

The independent source exception allows the “introduction of unlawfully

discovered evidence when the police have acquired that evidence through a

distinct, untainted source.” Id. “Animating this doctrine is the recognition that

the goal of the exclusionary rule is to put the police in the same, not a worse,

position that they would have been in if no police error or misconduct had

occurred.” Id. (citation omitted).

The Government argues that Moreman’s testimony regarding the 6323

number is admissible under the independent source exception because Pompa

testified at trial that Zavala’s cell phone number was the 6323 number. The

independent source doctrine does not purge the taint associated with the

constitutional violation in this case because no independent source testified that

the cell phone Zavala was carrying at the time of his arrest was associated with

the 6323 number. 

For the independent source exception to apply, the evidence obtained

through the independent source must be “identical to the evidence unlawfully

acquired.”6 Murray, 487 U.S. at 538; see also United States v. Johnson, 380 F.3d

1013, 1016 (7th Cir. 2004) (“same evidence”); United States v. Hawley, 855 F.2d

595, 603 n.3 (8th Cir. 1988) (“identical evidence”). In this case, the prosecutor

himself stated that it was “critical to our case to show that [Zavala] had a phone

on him showing contact with some of the individuals and not other of the

individuals.” Moreman testified that he examined the phone that Zavala

possessed when he was arrested, and that phone was associated with the 6323
No. 07-20200

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number. Pompa merely testified from memory that he remembered Zavala’s cell

phone number as being the 6323 number; he did not explain how he acquired

this information. The testimony of Moreman is substantively different from the

testimony of Pompa. Moreman’s testimony is more probative of the ownership

of the 6323 number because it was based on his first-hand observation ofthe cell

phone in Zavala’s possession at the time of his arrest.

The core rationale underlying the exclusionary rule is the deterence of

police misconduct. United States v. Lamas, 930 F.2d 1099, 1102 (5th Cir. 1991).

“The corollary to this principle is that the prosecution must not be putin a better

position as a result of the police illegality.” Id. In addition to the substantive

difference between the testimony of Moreman and Pompa, there is also a

difference in the credibility of these two witnesses. Of course, the credibility of

any two witnesses will never be identical, and the independent source exception

does not always require that both the credibility of the witnesses and the

substance of their testimony be identical. In this case, however, we are mindful

of our admonishment to criminal juries in this circuit that the testimony of an

accomplice “must always be examined and weighed by the jury with greater care

and caution than the testimony of ordinary witnesses.” FIFTH CIRCUITCRIMINAL

JURY INSTRUCTIONS ¶ 1.14 (2001); see also United States v. Goff, 847 F.2d 149,

161 n.13 (5th Cir. 1988). 

Pompa, an indicted co-conspirator, provided the only other testimony

linking Zavala to the 6323 number. Zavala’s core trial strategy revolved around

(1) challenging the credibility and motives of Luna and Pompa; and (2)

suppressing Moreman’s testimony regarding the 6323 number. The admission

of Moreman’s testimony both corroborated the testimony of Luna and Pompa

and served as an independent basis for linking Zavala to the other coconspirators. After considering the differences between the substance of the

statements and the credibility of the witnesses, we find that giving the
No. 07-20200

7 The inevitable discovery test in this circuit is more favorable to the Government than

the test in other circuits. See United States v. Heath, 455 F.3d 52, 60 (2d Cir. 2006) (rejecting

the “reasonable probability” formulation).

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prosecution the benefit of the independent source exception would put it in a

better position than it would have been in but for the police misconduct.

F. Inevitable Discovery Exception

The Government argues that probable cause to arrest developed after the

cell phones were searched because Rivera’s confession implicated Zavala, so the

6323 number would have been discovered incidentto arrest under the inevitable

discovery doctrine. See Finley, 477 F.3d at 260 (holding that a police officer may

conduct a warrantless search of a cell phone on a person if the search is incident

to arrest). The inevitable discovery doctrine applies if the Government

demonstrates by a preponderance of the evidence that (1) there is a reasonable

probability that the contested evidence would have been discovered by lawful

means in the absence of police misconduct and (2) the Government was actively

pursuing a substantial alternate line of investigation at the time of the

constitutional violation.7 See Lamas, 930 F.2d at 1102.

The Government argues that Zavala’s one hour and thirty minute

detention was permissible under Terry and did not develop into a de facto arrest

without probable cause. See Brigham, 382 F.3d at 507 (noting that a Terry

detention “must be temporary and last no longer than is necessary to effectuate

the purpose of the stop, unless further reasonable suspicion, supported by

articulable facts, emerges”). According to the Government, the agents detained

Zavala to effectuate the purpose of the initial stop and to allow time for other

agents to interview Rivera. Because Pompa and Zavala told conflicting stories

after the initial stop, the agents arguably had further reasonable suspicion to

detain them. United States v. Valadez, 267 F.3d 395, 398 (5th Cir. 2001)
No. 07-20200

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(“[O]nce an officer’s suspicions have been verified or dispelled, the detention

must end . . . .”). 

The inevitable discovery doctrine asks whether there is a reasonable

probability that the evidence in question would have been discovered in the

absence of the police misconduct. See Lamas, 930 F.2d at 1102. We have

previously determined that Moreman’s search of Zavala’s cell phone was a

constitutional violation. Now we must now examine whether Zavala’s one hour

and thirty minute detention before Rivera’s confession was a constitutional

violation. If it was, then we must factor this legal conclusion into our inevitable

discovery analysis.

Zavala’s detention, which exceeded one hour and thirty minutes, morphed

from a Terry detention into a de facto arrest. See Ibarra-Sanchez, 199 F.3d at

761. He was handcuffed, placed in a police car, transported to different

locations, and was not free to leave. See Dunaway v. New York, 442 U.S. 200,

212-13 (1979). But cf. United States v. Jordan, 232 F.3d 447, 450 (5th Cir. 2000)

(handcuffing does not automatically convert an investigatory detention into an

arrest requiring probable cause). Although we have held that the police officer

can detain a defendant after a traffic stop until a computer check comes back

clean, see, e.g., United States v. Zucco, 71 F.3d 188, 191 (5th Cir. 1995) (nine

minute detention), we have never held that a police officer may detain a

defendant for one hour and thirty minutes until a full-blown drug investigation

is completed. See United States v. Shabazz, 993 F.2d 431, 437 (5th Cir. 1993)

(“We recognize that a detention may be of excessively long duration even though

the officers have not completed and continue to pursue investigation of the

matters justifying its initiation.”); United States v. Place, 462 U.S. 696, 709-10

(1983) (“Thus, although we decline to adopt any outside time limitation for a

permissible Terry stop, we have never approved a seizure of the person for the

prolonged 90-minute period involved here and cannot do so on the facts
No. 07-20200

8

In its oral ruling atthe suppression hearing,the district court made the factualfinding

that Zavala was detained for one hour and thirty minutes before Rivera confessed. This

factual finding is not clearly erroneous. We express no opinion on whether a Terry detention

could exceed one hour and thirty minutes based on a different set of facts.

9 We reject Zavala’s argument that the phone records pertaining to the 6323 number

should be suppressed. These records are admissible under the inevitable discovery exception

because there is a reasonable probability that Skidmore would have subpoenaed them based

on the untainted information provided by Pompa. In the district court, Zavala waived this

issue by stating that “the [Government] can get to the phone records through the ledgers [of

Luna] or [the testimony] of Pompa-Hernandez.”

-23-

presented by this case.”). In this case, the agents detained Zavala for one hour

and thirty minutes without knowing whether Rivera would confess or whether

drugs would be discovered. Based on the particular facts of this case, the length

of Zavala’s detention exceeded the outer bounds of a valid Terry detention.8

Zavala (and his cell phone) should have been released after the first search ofthe

Taurus failed to uncover any drugs.

Absentthe unconstitutional detention of Zavala before Rivera’s confession,

Moreman’s testimony regarding the 6323 number is not admissible under the

inevitable discovery exception because the search of Zavala’s cell phone is

speculative.9 See United States v. Cherry, 759 F.2d 1196, 1205 n.10 (5th Cir.

1985) (stating that “the exception involves no speculative elements but focuses

on demonstrated historical facts”) (quotation omitted). For the inevitable

discovery exception to apply, “the alternate means of obtaining the evidence

must at least be in existence and, at least to some degree, imminent, if yet

unrealized.” Id. 

Because the Government raised its inevitable discovery argument in a

footnote, it did not explain how the agents would have obtained the 6323 number

from Zavala’s cell phone in the absence of police misconduct. If (1) Zavala’s cell

phone was not searched at the time of the initial stop and (2) Zavala was not

detained after the first search of the Taurus failed to uncover any drugs, it can

hardly be said that the alternate means of obtaining the 6323 number from
No. 07-20200

10 This case falls outside the mine run of cases in this circuit applying the inevitable

discovery exception. For example, absent these two constitutional violations, Zavala would not

have remained in the custody or control of the police until his phone was legally searched. See,

e.g., United States v. Seals, 987 F.2d 1102, 1108 (5th Cir. 1993) (inevitable discovery of firearm

and cocaine in a vehicle through normal inventory procedures). Furthermore, at the time of

the illegal search, the agents were not in the process of obtaining a warrant because they did

not have probable cause. See, e.g., Lamas, 930 F.2d at 1104.

-24-

Zavala’s cell phone was in existence or imminent at that time.10 See id. at 1204

(inevitable discovery test should be applied atthe time ofthe police misconduct).

The Government did not even propose a hypothetical scenario of how this

information would have been obtained. See United States v. Holmes, 505 F.3d

1288, 1293-94 (D.C. Cir. 2007) (finding that the Government’s hypothetical

scenario was “nothing more than a possibility” and did not satisfy the inevitable

discovery test); United States v. Allen, 159 F.3d 832, 840 (4th Cir. 1998) (finding

that it was impossible to conclude that the officer would have used a drugdetecting canine to establish probable cause to search). The Government has not

established by a preponderance of the evidence that there is reasonable

probability that the contested evidence would have been discovered by lawful

means in the absence of police misconduct. See Nix v. Williams, 467 U.S. 431,

444 (1984); see also United States v. Goree, 365 F.3d 1086, 1088 n.2 (D.C. Cir.

2004) (“The government based its inevitability claim on the testimony of Officer

Maradiaga and Sergeant Caldwell, each of whom testified that, but for

Maradiaga’s mistake about consent, he would have stopped the search and

sought a warrant. We are dubious that such conjectural testimony is adequate

to support applying the doctrine to this case.”); United States v. Thomas, 955

F.2d 207, 209 (4th Cir. 1992) (“To argue the evidence in Room 416 inevitably

would have been discovered, the government has relied on a string of conjecture

. . . .”). 

Based on the record before us, it is impossible to speculate whether in the

absence of police misconduct, the police would have dispatched a drug-detecting
No. 07-20200

-25-

canine to the scene, or would have followed the Taurus until Rivera’s confession,

or would have obtained a warrant and located Zavala while he possessed the cell

phone. Because the Government has not carried its burden, it is not entitled to

the benefit of the inevitable discovery exception.

G. Harmless Beyond a Reasonable Doubt

A constitutional error may be deemed harmless if the beneficiary of the

constitutional error proves beyond a reasonable doubtthatthe error complained

of did not contribute to the verdict. See Neder v. United States, 527 U.S. 1, 15

(1999) (citing Chapman v. California, 386 U.S. 18, 24 (1967)); United States v.

Brathwaite, 458 F.3d 376, 383 (5th Cir. 2006). The trial testimony, statements

made by the prosecutor, and a question from the jury demonstrate that

Moreman’s testimony regarding the 6323 number played a central role in the

Government’s case. 

Moreman’s testimony regarding the 6323 number linked Zavala to Rivera

and Pompa. It also tainted the Government’s evidence regarding Zavala’s other

subscriber number (the 9418 number) because Patricia Skidmore, an intelligence

research specialist for the DEA, testified that the 6323 number and the 9418

number could have been carried by the same person. When combined with

Moreman’s inadmissible testimony, Skidmore’s testimony regarding the 9418

number linked Zavala to Rivera and Luna. Skidmore used the phone records of

the 6323 and 9418 numbers to create a chart showing common phone calls

between the co-conspirators, which allowed the Government to argue that they

were all participating in a conspiracy to distribute cocaine. During closing

argument, the prosecutor urged the jurors to review these phone records. 

The jury specifically referenced Zavala’s cell phone numbers in Jury Note

#2. During a bench conference, the prosecutor stated that the admission of

Moreman’s testimony was “critical to our case.” Moreman’s testimony linked

Zavala to the 6323 number, Skidmore’s testimony linked Zavala to the 9418
No. 07-20200

-26-

number, and the anonymous phone records of these two numbers linked Zavala

to Luna, Rivera, and Pompa. Although Skidmore reached her conclusions by

relying on a comparison of the phone records of the 6323 and 9418 numbers,

these admissible phone records did not identify the name of the individual

subscriber. Moreman’s testimony essentially stamped these anonymous phone

records with a name. Skidmore’s testimony is tainted by the constitutional

violation because the jury might have linked Zavala to the 6323 phone records

based on Moreman’s testimony, and then linked Zavala to the 9418 phone

records based on Skidmore’s testimony.

The jury might have linked Zavala to his co-conspirators based solely on

Moreman’s inadmissible testimony, without relying on the testimony of Luna

and Pompa. Alternatively, the jury might have given more credence to the

testimony of Luna and Pompa because it was corroborated by the testimony of

Moreman. The error was not harmless beyond a reasonable doubt because the

jury might have convicted Zavala based, in whole or part, on the inadmissible

testimony of Moreman. 

III. Conclusion

The exclusionary rule prohibits the introduction of testimony concerning

knowledge acquired during an unlawful search. See Murray, 487 U.S. at 536.

The district court erred in denying Zavala’s motion to suppress Moreman’s

testimony regarding the 6323 number. Moreman did not have consent or

probable cause to search the cell phone, and the search was not the equivalent

of a license check. The independent source exception does not apply because

Pompa’s testimony regarding the 6323 number is not identical to the evidence

unlawfully acquired. The inevitable discovery exception does not apply because

Moreman’s search of the cell phone is speculative absent the unconstitutional

detention of Zavala before Rivera’s confession. It is inappropriate to give the

Government the benefit of these two exceptions because it would put the
No. 07-20200

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Government in a better position than it would have been in but for the police

misconduct. We reverse the judgment of the district court and remand for a new

trial.

REVERSED AND REMANDED.