1

The Honorable Warren K. Urbom, United States District Judge for the District

of Nebraska, adopting the report and recommendation of the Honorable David L.

Piester, United States Magistrate Judge for the District of Nebraska. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-1506

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* District of Nebraska.

Henry Avimael Salazar, * 

*

Appellant. *

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 Submitted: June 13, 2006

 Filed: July 20, 2006

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Before BYE, LAY, and RILEY, Circuit Judges.

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RILEY, Circuit Judge.

Henry Avimael Salazar (Salazar) conditionally pled guilty to possession of

methamphetamine with intent to distribute and criminal forfeiture, reserving the right

to appeal the district court’s1

 order denying his motion to suppress. On appeal,

Salazar challenges the denial of his motion to suppress. Salazar also appeals his 108-
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month prison sentence, arguing the district court erred in denying his request for a

mitigating role sentencing reduction. We affirm.

I. BACKGROUND

At approximately 9:15 a.m. on April 22, 2005, Nebraska State Patrol Trooper

Jeff Roby (Trooper Roby) was conducting stationary radar surveillance on Interstate

80 in Hall County, Nebraska, when he observed Salazar’s vehicle traveling east.

Trooper Roby observed the vehicle quickly reduce its speed, and Trooper Roby then

clocked Salazar’s speed at seventy-seven miles per hour, two miles per hour over the

posted speed limit. Trooper Roby followed Salazar’s vehicle into a construction zone,

where Trooper Roby determined Salazar was traveling at 63.5 miles per hour, 8.5

miles per hour over the posted speed limit. As Salazar’s vehicle exited the

construction zone, Trooper Roby stopped him for speeding. 

Trooper Roby asked Salazar for his driver’s license and vehicle registration.

Salazar gave Trooper Roby his Utah driver’s license, an insurance card, and a vehicle

registration statement. Trooper Roby informed Salazar he had exceeded the posted

speed limits and advised Salazar he would receive a warning citation. Trooper Roby

asked Salazar if he owned the vehicle he was driving, and Salazar stated the vehicle

belonged to his friend. Trooper Roby then asked Salazar the name of the friend.

Trooper Roby testified Salazar “seemed to at first not know” the friend’s name. After

glancing at the name on the insurance card, Salazar provided the friend’s name. When

Trooper Roby asked Salazar where he was going, Salazar said he was going to

Nebraska. 

Trooper Roby requested Salazar accompany him to the patrol car while he

prepared the warning citation. Once inside the patrol car, Trooper Roby asked Salazar

when he left Utah. Salazar stated he departed Utah at 4:00 p.m. the previous day.

Trooper Roby then asked Salazar about his destination, and Salazar advised he was

traveling to Omaha, Nebraska, to meet family. Salazar explained he was on vacation
2

Although there are no exits off Interstate 80 in Omaha numbered 60 or 72,

there are exits at 60th and 72nd Streets. 

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and planned to stay in Omaha for two, three, or four days. Salazar did not have a

specific address for his family in Omaha, but he had a family member’s cellular

telephone number, and he believed he would exit Interstate 80 in Omaha at exit

number 60 or 72.2

 Trooper Roby asked Salazar if he had slept, and Salazar advised

he slept a couple hours at an interstate rest area. Trooper Roby also asked Salazar

why he was driving his friend’s vehicle and why the friend did not travel with Salazar.

Salazar responded he borrowed the vehicle because his own vehicle was too small,

would not make the trip, and had too many miles. 

During this conversation, Trooper Roby initiated a computerized check of

Salazar’s criminal history. While Trooper Roby waited for the results of the check,

Salazar told Trooper Roby he had received some traffic tickets and he had been

arrested twice–once for an immigration violation, and once for a traffic violation.

Salazar’s criminal history report revealed offenses involving an immigration violation,

interrupting an arrest, interfering with a police officer, and possessing cocaine and

heroin.

After Trooper Roby gave Salazar the warning citation and handed Salazar his

paperwork, Trooper Roby asked Salazar if he could ask a couple more questions.

Salazar agreed. Trooper Roby asked Salazar if the vehicle contained any weapons or

drugs, such as marijuana, cocaine, heroin, and methamphetamine, to which Salazar

responded in the negative. Trooper Roby then asked Salazar if he could search the

vehicle. Salazar answered, “uh-huh” and “yeah, go ahead.” During the search,

Trooper Roby found methamphetamine hidden in a false compartment built into the

rear of the vehicle. Based on the discovery of the methamphetamine, Trooper Roby

arrested Salazar.
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Salazar was indicted for possession with intent to distribute methamphetamine,

in violation of 21 U.S.C. § 841(a)(1) and (b)(1), and for criminal forfeiture, in

violation of 21 U.S.C. § 853. Salazar moved to suppress the methamphetamine. The

magistrate judge held an evidentiary hearing on the suppression motion. Ruling from

the bench, the magistrate judge recommended the motion be denied, concluding

(1) the traffic stop was lawful, (2) Trooper Roby had reasonable suspicion to expand

the traffic stop, and (3) Salazar voluntarily consented to the search. 

The district court conducted a de novo record review and adopted the magistrate

judge’s report and recommendation, denying Salazar’s motion to suppress. At

sentencing, the district court denied Salazar’s request for a mitigating role sentencing

reduction. The district court then sentenced Salazar to 108 months’ imprisonment and

3 years’ supervised release. This appeal followed.

II. DISCUSSION

A. Motion to Suppress

Salazar concedes the traffic stop was lawful. Salazar argues, however, that after

Trooper Roby issued the warning citation, Trooper Roby lacked reasonable suspicion

to justify subsequent detention. Salazar further argues he did not voluntarily consent

to the vehicle search.

When considering a district court’s order denying a motion to suppress, we

review de novo the district court’s legal conclusions, and we examine its factual

findings for clear error. See United States v. Spencer, 439 F.3d 905, 913 (8th Cir.

2006). “We must affirm an order denying a motion to suppress unless the decision is

unsupported by substantial evidence, is based on an erroneous view of the applicable

law, or in light of the entire record, we are left with a firm and definite conviction that

a mistake has been made.” Id. (quotation omitted).
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A traffic stop constitutes a “seizure” within the meaning of the Fourth

Amendment, United States v. Ehrmann, 421 F.3d 774, 780 (8th Cir. 2005), cert.

denied, 126 S. Ct. 1099 (2006), and must be reasonable under Terry v. Ohio, 392 U.S.

1 (1968). In general, “a traffic stop must be supported by at least a reasonable,

articulable suspicion that criminal activity has occurred or is occurring.” Ehrmann,

421 F.3d at 780 (internal quotation omitted). Traffic violations, however minor,

create probable cause to stop a vehicle. Id.

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When an officer effects a routine traffic stop,3

 the officer may conduct an

investigation reasonably related in scope to the circumstances initially justifying the

interference. United States v. Ehrmann, 421 F.3d 774, 780 (8th Cir. 2005). The

officer also may detain a motorist while performing certain routine tasks, including

writing a citation and completing computerized checks of a driver’s license, vehicle

registration, and criminal history. Id. Once the traffic stop is completed, however, the

officer cannot continue to detain a motorist “unless the officer has a reasonably

articulable suspicion for believing criminal activity is afoot.” Id. (internal quotation

omitted). 

During the traffic stop, Trooper Roby legitimately asked Salazar to accompany

him back to the patrol car while he prepared the warning citation, checked Salazar’s

criminal history, and questioned Salazar about the purpose of his trip. Once Trooper

Roby issued the warning ticket and returned Salazar’s paperwork, Salazar had

everything he needed to continue on his trip. Trooper Roby then asked Salazar if he

could ask Salazar a couple more questions, and Salazar agreed. At that point, Salazar

had been stopped for only a short time, and there is no indication the post-stop

encounter was a seizure rather than consensual. Given Salazar’s consent to further

questioning, Trooper Roby lawfully asked Salazar whether he had any drugs in the

vehicle. See United States v. Santos-Garcia, 313 F.3d 1073, 1078 (8th Cir. 2002)

(holding that during post-stop consensual encounter, the officer may, without

reasonable suspicion, ask further questions unrelated to the traffic stop).
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Salazar’s consent to search given during the course of the consensual

questioning was voluntary. Trooper Roby asked Salazar for permission to search his

vehicle, and Salazar responded, ““uh-huh” and “yeah, go ahead.” There is no

indication Salazar was under the influence of drugs or alcohol at the time he

consented, and Trooper Roby did not use any coercive tactics. English is apparently

Salazar’s second language. Trooper Roby spoke to Salazar in English, and Salazar

appeared to have no trouble comprehending Trooper Roby’s questions, although at

times, Trooper Roby had difficulty understanding Salazar’s pronunciation of certain

words. Considering the totality of the circumstances, see Schneckloth v. Bustamonte,

412 U.S. 218, 226-27 (1973) (evaluating voluntariness of consent in light of the

totality of the circumstances, including characteristics of the accused and the details

of the interrogation), we conclude the district court did not clearly err in finding

Salazar had a sufficient command of the English language to understand Trooper

Roby’s request for consent to search his vehicle, and Salazar voluntarily consented to

the search. 

Because Salazar consented to the additional questioning and to the search after

Trooper Roby completed the traffic stop, we need not decide whether Salazar’s

answers to Trooper Roby’s questions gave Trooper Roby reasonable suspicion to

question Salazar about drugs or to search the vehicle. See Santos-Garcia, 313 F.3d

at 1078 (holding that even if the officer lacked reasonable suspicion for believing

criminal activity was afoot, the Fourth Amendment did not prohibit the officer from

seeking consent to search the vehicle) (citation omitted). Accordingly, we affirm the

district court’s order denying Salazar’s motion to suppress.

B. Mitigating Role

Salazar also challenges the district court’s refusal to grant him a mitigating role

sentencing reduction under U.S.S.G. § 3B1.2. We review the district court’s decision

to deny a mitigating role reduction for clear error. See United States v. Johnson, 408

F.3d 535, 538 (8th Cir. 2005).
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Section 3B1.2 permits a two-level reduction if the defendant was a “minor

participant.” U.S.S.G. § 3B1.2(b). “A defendant bears the burden of demonstrating

his entitlement to a minor participant reduction.” United States v. Morales, 445 F.3d

1081, 1085 (8th Cir. 2006). “The propriety of a downward adjustment is determined

by comparing the acts of each participant in relation to the relevant conduct for which

the participant is held accountable and by measuring each participant’s individual acts

and relative culpability against the elements of the offense.” Id. (quotation omitted).

Contrary to Salazar’s assertion, Salazar played a specific and substantial role

in the crime. Salazar knew he was illegally transporting methamphetamine, making

arrangements with a co-conspirator for delivery of the methamphetamine, which

included driving the methamphetamine across the country, and maintaining contact

with a co-conspirator during the trip. As the district court recognized, Salazar “was

no stranger to drug activities,” and “[h]e knew what he was doing.” Accordingly, the

district court did not clearly err in finding Salazar’s role in the drug conspiracy was

not minor compared to his co-conspirators.

III. CONCLUSION

We affirm the judgment of the district court, and thereby affirm Salazar’s

conviction and sentence.

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