United States Court of Appeals Fifth Circuit 

## FILED August 8, 2006 Charles R. Fulbruge III Clerk 

## In the 

# United States Court of Appeals for the Fifth Circuit

_______________


### m 05-41042

_______________ 

### U NITED 

### S TATES OF 

### AMERICA 

### , Plaintiff-Appellee,

VERSUS



### R AMIRO 

### S ALAICES 

### E STRADA 

### , Defendant-Appellant.

* * * * * * * * * * * * * * *

_______________


### m 05-41089

_______________ 

### U NITED 

### S TATES OF 

### AMERICA 

### , Plaintiff-Appellee,

VERSUS



### J ORGE 

### M ANUEL 

### E STRADA 

### ,

Defendant-Appellant.2 _________________________ Appeals from the United States District Court fo r the Southern District of Texas

_________________________

Before S MITH and S TEWART , Circuit Judges, and H ANEN , * District Judge.

J ERRY E. S MITH , Circuit Judge: Ramiro Estrada (“Ramiro”) and his brother Jorge Estrada (“Jorge”) were charged wit h aiding and abetting th e possession of 68 kilo grams of marihuana wit h int ent to distribute. They entered int o conditional guilt y pleas, reserving the right t o appeal th e denial of their motions to suppress. We affirm.

I. On Nove mber 13, 2004, Ramiro and Jorge
were returning from Zacatecas, Mexico, in Ramir o’ s 1989 Chevy. The vehicle was stopped at approximately 12:08 a.m
. on I-10 by trooper Sergio Villarreal and sergeant Gary Chandler. The video recording of th e traf fic stop shows th at about one m

inut e aft er th e stop, Villarreal approached th e vehicle and read th e license plate num

ber for the computer check. The driver, Jorge, was told that he was stopped fo r having a defective rear license plate lamp in vio l ation of T EX

. T RANSP

. C ODE ANN

. § 547.322 (Vernon 1995).

Villarreal asked for identification of the driver and passenger and fo r registratio n and insurance papers. At th e same time, he shined his flashlight onto th e front windshield for the vehicle identification number and then quickly flashed the back of the truck cab as he began to review the paperwork. At 12:11, Villarreal told Jorge th at he would give him a warning fo r the defective lamp, then asked him to step outside the vehicle. Villarreal went back to Ramiro, who was sti ll in t he passenger seat. He questioned him about the car and his travel p lans. Ram

ir o told him, among other things, th at he has owne d th e car for about a month.

At 12:13, Villarreal walked to the back of the truck and, on his way, shined his flashlight to the area to the back of the truck’s cab and b ed. At this t ime he saw “fresh marks” and “scrat ches” around the fuel tank eye piece lat ches and vehicle fr ame. He explained that the “eye piece lat c hes” were devices holding the tank to the truck frame and th at he noticed th at they were topped by a hardened adhesive mat erial.

At th at time, he th ought the marks were “o ut of the ordinary”: They were short, no
mo re th an th

ree inches in width, indicating th at the met al str ap to the f

uel tank had been recently “removed or tam

pe red with .” He described the adhesive mat erial as “har d ened,” “discolored,” and wit h a consistency much like “J-B Weld” or “Bondo-type” material.

Villareal further explained th at the mat erial
was the ty pe of substance used fo r filling or repairing holes dur ing autom otive repair and * District Judge of the Southern District of Texas, sitting by designation.3

th at, based on his extensive classroom training and on-the-job experience, including an occasio n at which he had fo und illegal narcotics concealed in a gas tank in similar fashion, he
sus p ected th at a false com partm ent or a container had been built int o th e fuel tank to conceal contraband. Villarreal indicated that contraband is concealed in fuel tanks aft er an opening is cut int o th e tank. Adhesive mat erial is ty p ically used to cover newly created com
partm ents to prevent s eepage of fuel and contraband.

The videotape shows that next Villarreal point ed to th e license plate and showed Jorge th at th e light s did not work and told him th at he would give him a warning. At 12:14, he pulled Jorge away from th e vehicle and to th e edge of th e road and asked him similar questions and also whether any repairs had been done on the truck. Jorge advised that Ramiro had had the truck fo r about th

ree mo nt hs, Jorge d id not know of any repairs.

At 12:16, Villarreal walked back to the DPS
car and told Chandler th at “t he story is about th e same, th ey have been in Zac a tecas (Mexico ), th ey have traveled about 15 h ours, th ey are carpet layers, but Ramiro indicated he bought th e vehicle in October 2004 and his brother stated he had bought it 3 mo nt hs ago.” H e also noted that he saw “a strap across the gas tank, wit h a slit , which turns to lo ck, and it lo oks lik e it has been turned recently.” While Villarreal was tal

king to Chandler, the computer check on th e defendants’ criminal hist ory (which was requested only about eight minut es int o th e stop) cam

e back negative at 12:18.

Villarreal walked back to Jo rge, who was standing by th e side of th e road, and began a new inquiry. Villarreal asked Jorge a series of questions, including whether he had had any problems wit h the gas tank. Aft er receiving the answers, Villarreal went to the passenger, Ramiro, and asked him a set of similar questions.
At 12:22, Villarreal asked Ramir o to get out of the truck, then proceeded to ask him another series of questions. At 12:23, Villarreal asked Ramiro in Spanish fo r permission to “inspect” the truck, and Ramiro agreed. Then he also obtained permission, in Spanish, from J orge. Villarreal testified at the suppressio n hearing that the demeanor of the defendant s was one of calmness.

Villarreal began to search by going to the driver’s side and viewing the back of the cab. He flashed his light again and stated, “See where the black strap com es out , i t h as rust but I see a light er mark, like the strap has been
mo ved.” Then, he looked under the vehicle at the gas tank. He knocked on the tank, which pr oduced a hollo w sound. When Villarreal went to the passenger side of the tank, he stated, “There’s a bump on top and it lo oks like a J-B weld on the tank b ut i ts hard to tell ho w fresh it is . It has scratch marks and I see a light blue color but it could be from wear and tear, I don’t know.”

Villarreal testified th at he saw “f resh scratch marks” and mo re adhesive mat erial alo ng a ridge of th e gas tank. He al so observed th at the bolts used to hold the straps to the frame of the truck were not the same size and were lo ose. It appeared that the bolts had b een removed and replaced wit hout bein g tightened, so they were flush with the bed of the truck.

The tape next shows (22 minut es and 57 seconds aft er the stop ) th at Villarreal stated th at he was going to call “Schulenberg P.D. to4

see if th ey have a scope and de nsit y met er.” Sergeant Ko ehne with th e Schulenberg police departm ent arrived on th e scene approximately
one hour aft er th e init ial stop. Aft er assembling th e scope and inserting it int o th e gas tank, Ko ehne and Villarreal identified that the tank had a green wall, inco nsist ent with the rest of th e tank. By 1:30., Ko ehne identified se v eral walls th at could serve as com

partm ents, and Ko ehne and Villarreal decided to bring down the tank. At 1:45, Villarreal began to call garages fo r the dropping of th e tank. He located a garage at 1:54.

At about 2:00, Villarreal told both d efendants that they were not under arrest but were merely detained, and handcuffed th em and seated th em in t he DPS vehicle. The defendants and th e Chevy truck were driven to th e garage, where they arrived at 2:27, whereupon the work began to drop th e tank. The marihuana
was fo und, and at th at point , about th ree hours aft er th e ini

ti al stop, Villarreal told the defendants th ey were under arrest and read them th eir Miranda rights.

II. Following a hearing, Ramiro and Jorge entered conditional guilt y pleas, reserving the
r ight to appeal th e rulings on the motions to suppress. On appeal, they do not challenge the validit y of th e stop, but onl y it s duration and scope and the vol

untariness of the consent t o search.

III. In assessing whethe r there was reasonable suspicion, we review th e district court’s findings of fact fo r clear error and it s determ inat io n of reasonable suspicion de novo
. S ee Ornelas
v. United States , 517 U.S. 690, 699 (1996). We view the evidence int roduced at a suppressio n hearing in the light mo st favorable to the prevailing party

. U

nited States v. Orozco , 191 F.3d 578, 581 (5th Cir. 1999).

A routine traf

f ic stop is a limit ed seizure th at clo sely resembles an invest igative detentio n as was addressed in T erry v. Ohio , 392 U.S. 1 (1968). See United States v. Shabazz , 99 3 F.2d 431, 435 (5th Ci r.1993). A ccordingly, t he Terry framework is used to analyze
cases in which motorists are stopped for violat ing t raffic laws. Id. The Estradas concede th at the init ial st op was a valid traffic stop fo r driving wit h a defective light

. They aver, however, th at Villarreal exceeded the scope of th at stop when he continued to question them aft erhe received the results of the criminal background check at 12:18. S ee United States v. Dortch , 199 F.3d 193, 198-99 (5th Cir. 1999).

Once the purpose of a valid traf fic stop has been completed and an officer’s initial suspicio ns have been ve ri fied or dispelled, the detention must end unless there is additional reasonable suspicion supported by articulable facts. U nited States v. Machuca-Barrera , 261 F.3d 425, 434 (5th Cir . 2001); Shabazz , 993 F.2d at 436. This is because a detention must be tem porary and last no lo nger th an is necessary to effect the purpose of the stop, unless further reasonable suspicion, supported by articulable facts, emerges. D ortch , 199 F.3d at 200. Mere “uneasy feelings” and inco nsist ent storie s between a driver and a passenger do
no t c onstitute articulable facts that support a
rea sonable suspicion of drug trafficking. S ee United States v. Santiago , 310 F.3d 336, 338-39 (5th Cir. 2002).

To the extent th at the Es t radas argue th at the length of the stop was unreasonable before 12:18, th at argument is fo reclosed by United5

States v. Brigham , 382 F.3d 500, 507 (5th Cir. 2004) (en banc). In a valid traffic stop, an officer may request a driver’s license and vehicle registration and run a com puter check thereon. Brigham , 382 F.3d at 508.

As th e distr i ct court correctl y determ ined, Vill arreal ’s questioning of Ramiro and Jorge before Villarreal’s request fo r a com puter check ab out ei ght minutes into the stop does not implicat e Fourth Amendment concerns. As Brigham explained, “neit her our prior cases nor any oth er caselaw

. . . inst it utes a per se rule requiring an of

ficer immediat ely t o obtain t he driver’s license and registration info rmation and init iat e th e relevant background checks before asking questions.” B righam , 382 F.3d at 511. 1 Even questions unrelated to the reason fo r the stop do not, in th emselves, constitute a Fourth Amendment vio lat io n. 2

Therefo re, the registration and license check,
as well as th e questions th at Villarreal asked the brothers wit hin th e fir st ten minut es of the stop bef ore, and while waiting for, the computer results did not violate the Fourth Amendment

. Under Brigham , the purpose of th e init ial st op ended at 12:18, when th e results of th e criminal background check cam

e back negative, unless th e of ficers fo rm

ed additional reasonable suspicio n before that time. Reasonable suspic io n exists when the detaining of ficer can point to specific and articulable facts th at , wh en taken together with rational inferences from th ose facts , reasonably warrant the search and seizure. Santiago , 310 F.3d at 340. The determ inat io n of whether Villarreal had developed a reasonable suspicio n must be made based on the total it y of the circumstances and the collective knowledge and experience of t h e of

ficer or of ficers. S ee Jones , 234 F.3d at 241.

Reasonable suspicion does not ari se solely from the inco n sist ent answers regarding the len gth of Ramiro’s ownership of the truck. This case, however, is distinguishable from Dortch , Santiago and Jones , because in th ose cases there were no physical facts suggesting the presence of a hidden com partm ent. In
co n trast, in this case there was significant physical evidence th at, taken together wit h the of ficer’s training and experience, gave ri se to reasonable suspicion.

As we have recounted, the videotape shows th at at 12:13, Villarreal directed his flashlight to the area from the passenger’s side to the back of the truck’s cab and bed. He testified at the suppression hearing th at at th at time, he
saw “fresh marks” and “scratches” around the fuel tank eye pie c e lat ches and vehicle frame; which were “o ut of the ordinary” and showed the presence of an adhesive material and suggested th at the gas tank had bee n tam pered wit h. Based on his extensive classroom training and on-the-job experience, including an occasion at which he fo und illegal narcotic s concealed in a g as tank in similar fashio n, he suspected th at a false com partm ent or c ontai ner was built into the fuel tank to conceal contraband. Adhesive material is typically used to cover newly created com partm ents to prevent seepage of fuel and contraband. 1 See also Brigham , 382 F.3d at 509 (“Finally, this process, from the time Trooper Conklin started questioning Brigham until he returned to his patrol
car to check the registration and I.D.’s provided by Brigham and the others, lasted only seven minutes. Conklin’s questioning exemplified a graduated re
sponse to emerging facts.”).

2 Id. at 508 & nn.5 -6 (“‘[D]etention, not questioning, is the evil at which Terry ’s second prong is aimed.’”) (citation omitted).6

Defendants assert th at Villareal could not have seen the scratch marks and th e adhesive at 1 2:13, because he admit ted at th e suppression hearing th at this happened later, after he asked fo r con sent to search the car, at 12:23. We disagree. In the testimony to which defendants point , Villareal testified only th at he lo oked belo w the car lat er, not th at he did n ot see the scratch marks until lat er. He indicated that at the point when he flashed his flashlight to th e area to the back of th e truck cab and th e truck bed (12:13), he saw scratches and a discolored subs tan ce th at he th ought was adhesive th at is used for creating hidden compartments in the gas tanks to conceal contraband. Furthermore, Villarreal’s testimo ny th at he saw adhesive and scratch marks (indicating th at th e gas tank h as been tam pered wit h) is not merely convenient ex post testimo ny by Villarreal; th e vide otape’s audio
s hows th at he told Chandler before 12: 18, at about 12:16, th at th ere was a strap across the gas tank, wit h a slit , th at turns to lo ck, and it lo oked l ike it has been turned recently.

These facts, taken together wit h th e of ficers’ experience, and seen from th e total it y of the circumstances, including th e fact th at th e vehicle had recently crossed from Mexico, “a com mo n origin of illici

t drugs,” 3 suggest th at there was a reasonable likeliho od th at th e vehicle’s gas tank had a hidden com

partm ent th at was meant to transport drugs.

The facts here do not reflect a mere custom

ization of th e vehicle th at could also support a conclusion of inno cent travel. Rather, Villarreal’s e xpert experience conforms with commo n sense: It i s hard to conceive o f a legitimat e use fo r a large hidd en storage compartment in any part of a vehicle, let alone in the gas tank.

Courts must allo w l aw enforcement “officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them th at ‘might well elude an untrained person.’” U

nited States v. Arvizu , 534 U.S. 26 6, 273 (2002) (int ernal quotation marks and cit ation om

it ted). The adhesive marks and other scratches, together wit h the other evidence, do not fully exclude the possibilit y of inno cent travel given the age of th e vehicle, 4 but the likeliho od of criminal activit y need not ri se to the level required fo r probable cause, and it falls considerably short of sati sfying a preponderance of the evidence standard. United States v. Sokolow , 490 U.S. 1, 7 (1989). Because under the law of this circuit, evidence of a hidden com p artment supports “probable cause” fo r a search/arrest, evidence indicating the existence of a hidden co mpartment also supports the lesser standard of “reasonable suspicion.” 5

3 United States v. Jurado-Vallejo , 380 F.3d 1235, 1238-39 (10th Cir. 2004). 4 See also Sokolow , 490 U.S. at 9-10 (holding that factors which by themselves were “quite
c onsistent with innocent travel” collectively
am ounted to reasonable suspicion).

5 See United States v. Inocencio , 40 F.3d 716, 724 (5th Cir. 1994) (holding that evidence of hidden compartment contributed to probable cause to search); United States v. Price , 869 F.2d 801, 804 (5th Cir. 1989) (“Once the agents had discovered the secret compartment they had probable cause to search the compartment itself.”); see also United States v. Nicholson , 17 F.3d 1294, 1298 (10th Cir. 1994) (considering, am

ong other factors providing probable cause, a “four or five-inch difference in the truck bottom and the floor which indicated a (continued...)7

As we explained in Innocencio , 4 0 F.3d at 724, th e “discov e ry of fresh paint (on a brand
new truck ) around the fender wells and the fres h undercoating beneath the bed of the truck” all contri

buted in creating “a reasonable belief that the vehicle contained a false
com partm ent” and this “belief would create sufficient probable cause to search th e vehicle.” Similarly here, th e discovery of th e scratch marks and the adhesive created a reasonable belief th at th e vehicle contained a false com
partm ent th at has recently been used, and this belief created at least reasonable suspicion.

IV. Because Villarreal’s continued detention of Ramiro and Jorge aft er Villarreal obtained negative results from th e com puter check was supported by reasonable suspicion develo p ed befo re 12:18, Ramiro’s and Jorge’s consent to the search th e car at 12:23 was not unconstitutionally taint ed

. 6 Thus, the government’s burden to prove consent by the preponderance of the evidence is not as heavy as it would have been had a Fourt h Amendment violation preceded the consent. D ortch , 199 F.3d at 201. We
a g ree wit h the district court th at the consent was free and voluntary.

The volunt ariness of consent is a question of fact to be determ

ined on the total

it y o f t he circumstances. I

d. We lo ok to (1) the voluntariness of the defendant’s custodi al status; (2) the presence of coercive pol ice procedures; (3) the extent and level of the defendant’s cooperation wit h the pol

ice; (4) the defendant’s
awareness of his right to ref use consent; (5) his education and int elligence; and (6) his belief th at no incriminat ing ev idence will be fo und. Id. Alt hough all six factors are relevant, no single one is dispositive. Id.
Here, m ult iple factors favor a finding of voluntariness: The records shows that Ramiro and Jorge were calm and cooperative and does not indicate th at Villarreal engaged in coercive tactics. Defendants’ educational levels, however, and their testimo ny th at they were not aware th at they could refuse consent , f avor a finding th at the conse nt was not vol untary

. But, we will not re verse the di strict court’s finding t hat consent was voluntary unless it is clearly erroneous
. I

d. If the district court “bases a finding of consent on th e oral testi

mo ny at a suppr ession hearing, the clearly
erroneous standard is particularly strong since the jud ge had the opportunity to ob serve the demeanor of the witnesses.” Id.

Based on a review o f t he videotape, the district court fo und th at the consent given was 5 (...continued) hidden compartment designed to carry contraband”); United States v. Martel-Martines , 988 F.2d 855, 8 58-59 (8th Cir. 1993) (same); United States v. Arango , 912 F.2d 441, 447 (10th Cir. 1990) (holding that evidence of hidden compartment, along with inadequate amount of luggage for claimed duration of trip, furnished probable cause); United States v. Anderson , 114 F.3d 1059, 1066 (10th Cir. 1997) (holding discovery of “what appeared to be a hidden compartment in the gas tank,” along with evidence of air freshener and conflicting stories from the passengers, sufficient to furnish probable cause); United States v. Toro-Pelaez, 1 07 F.3d 819, 825 (10th Cir. 1997) (“Recent Fourth Amendment cases in this circuit and others have determined that evidence of a concealed compartment can give rise to reasonable suspicion of criminal activity.”).

6 See Brigham , 382 F.3d at 512 (reasoning that (continued...) 6 (...continued)

absent a Fourth Amendment violation, consent to search a vehicle is not unconstitutionally tainted).8

voluntary and was an independent a ct of free will. Therefore, because no single factor is dispositive, and because th ere were sufficient factors supporting consent (and the district court could have disbelieved defendants’ testi

mo ny t hat they were unaware of their rights), th ere is no clear error.

Aft er Villarreal searched the truck wit h defendants’ permission, he obtained additional evidence th at supported th e prolonged detention, as the district court determ ined. The Estradas do not challenge th e constitutionality of their detention fo llo wing Villarreal’s s earch of the truck

. Even if they challenged it, Keane’s discovery of a hidden com partm ent wit h the use of th e scope constitutes probable cause, which would perm

it a warrantless search and the transfer of the car to th e pol ice station. 7 Therefo re , we do not need to reach the i ssue of whether th e removal o f t he car exceeded the scope of the consent. The Estradas also com pl ain about the use of the handcuffs aft er the discovery of the hidden com

p artm ent and before the move to the garage, but the handcuffs were not
u n constitutional under a Terry stop analysis. 8 Finally, alt hough the brothers also complain th at they were not Mirandiz ed until the marihuana was fo und, this com plaint does not help their c ase, because they are not cl aiming t hat any info rmation obtained fro m t hem in vio lation of Miranda was introduced in court.

AFFIRMED.

7 “[P]olice officers who have probable cause to believe there is contraband inside an automobile that has been stopped on the road ma y search it without obtaining a warrant.” F

lorida v. Meyers , 466 U.S. 380, 381 (1984) (per curiam). The officers do not need to obtai n a warrant to move the vehicle from the roadside to a garage if there is probable cause to search a vehicle. S ee Chambers v . Maroney , 399 U.S. 42, 48, 52 n.10 (1970) (observing that it “was not unreasonable

. . . to take the ca r to the station house”); United States v. Gastiaburo , 16 F.3d 582, 586 (4th Cir. 1994) (“[T]he justification to conduct
a warrantless search under the automobile exception does not disappear mer ely because the car has been immobilized and impounded.”); United States v. Lopez , 777 F.2d 543, 550 (10th Cir. 1985) (“Under the ‘automobile exception’ then, the police conduct in moving Lopez from Interstate 40 to the Santa R osa State Police office is proper if it w as supported by probable cause.”). 8 United States v. Taylor , 716 F.2d 701, 709 (9th Cir. 1983) (“[T]he use of handcuffs, if re asonably necessary, while substantially aggravating the intrusiveness of an investigatory stop, does not necessarily convert a Terry stop into an arre st necessitating probable cause.”); United States v. Ricardo D. , 912 F.2d 337, 340 (9th Cir. 1990) (holding th a t officers “may move a suspect from the location of the initial stop without converting the stop to an arre st when it is necessary for safety or security reasons”); U

nited States v. Bradshaw , 102 F.3d 204 (6th Cir. 1996) (holding that the officer “could lawfully detain [defendant in the back of the squad car] until he had finished performing radio chec ks and issuing the citation,” because it was “well within the bounds of the initial stop.”).