* After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 23 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JESUS MAGALLANES, Defendant-Appellant. No. 98-2238 (D.C. No. CR-97-303 HB) (D. N.M.)

ORDER AND JUDGMENT *

Before BRORBY , EBEL and LUCERO , Circuit Judges.
Defendant-appellant Jesus Magallanes entered a cond itional guilty plea to federal drug and weapons charges, and now appeals the district court’s denial of his motion to suppress certain physical evidence in the case. We affirm.- 2 - BACKGROUND The transcript of the suppression hearing reveals t he following facts. At 8:20 a.m. on April 29, 1997, Magallanes was stop ped for driving 68 m.p.h. in a 55 m.p.h. zone on U.S. Highway 54, north of Carrizo zo, New Mexico. Magallanes was driving a blue Peterbilt truck tractor without a trailer. Inspector Chris Mydock of the New Mexico Motor Transportation Divis ion ran a check on defendant’s license and found no problems. However , Mydock noticed that defendant paced back and forth behind the truck in a nervous manner. He also observed that the fifth wheel on the truck did not have a shiny or greasy appearance, which suggested to him that no trailer had been attached to the truck for some time. Because Mydock was alone and was c oncerned for his safety, he issued a speeding citation and allowed defendant to leave, but radioed ahead to fellow inspectors that the vehicle would be “a good check,” meaning that he felt there was a possibility of illegal activity. At around 9:30 a.m., fellow inspectors Virgil Maybe rry and Donald Montano, on watch for the blue Peterbilt truck, clo cked defendant on radar driving 58 m.p.h. in a 55 m.p.h. zone. They also n oted that the tractor truck kicked up dust, indicating that it may have veered off the narrow road. The inspectors stopped defendant and gave him a verbal warning for his speed and1 Defendant was never issued a citation for any traff ic violation during this second stop. - 3 - inattentive driving. 1 Mayberry asked why defendant was “bob-tailing” ( driving a tractor without a trailer). Magallanes told him t hat he had taken an empty trailer from El Paso to Missouri but that because he did no t want to wait two days for a load, he had decided to come back without a trailer . Mayberry was suspicious of Magallanes’ story, given the high expense of operat ing a tractor truck. Mayberry checked defendant’s paperwork, found it in order, a nd returned it to defendant. Mayberry testified that he then asked Magallanes fo r permission to search the vehicle, and that Magallanes gave his verbal consen t. Mayberry entered the tractor, found defendant’s log book, and discovered a logbook violation, for which he cited defendant. W hile Mayberry filled out the citation and performed a paperwork inspection, Mont ano questioned Magallanes about the logbook. The logbook revealed that defen dant was making frequent stops and placing himself out of service, which Mon tano found suspicious. Defendant also gave inconsistent answers about his recent travels, and become nervous and confused. Mayberry eventually presented the inspection forms and citation to defendant to sign. Montano testified that while de fendant signed the citation, Montano asked for and received defendant’s verbal c onsent to search the truck.- 4 -

Montano then entered the truck and discovered a bro wn paper bag with a large sum of cash bundled by denomination. Montano told Mayberry about the money, and signaled to Mayberry to handcuff Magallanes. M ayberry then handcuffed defendant but advised him that he was only being de tained, not arrested, and that the handcuffs were for the officers’ safety and def endant’s own safety. At that point, Mayberry entered the truck to continue the s earch and discovered several packages of suspected contraband and a semiautomati c handgun. After conducting field tests on the suspected contraband, the officers read defendant his Mirandarights. In the meantime, Sergeant Jim Stewart arrived at th e scene, and asked Mayberry if a consent to search form had been signe d. Mayberry asked defendant in the presence of the other two officers if he had given consent to search. Montano testified that defendant replied that he ha d. Magallanes then signed the consent form. Magallanes was charged with violating 21 U.S.C. § 8 41(a)(1) and 18 U.S.C. § 924(c). In ruling on defendant’s motion to suppr ess, the district court found that the stop was not pretextual, that defendant co nsented to the search, and that the search did not exceed the scope of defendant’s consent. As a result, the court did not suppress the physical evidence seized. Ho wever, the court ruled that any statements made by defendant after being handcuffed and before being- 5 -

Mirandizedwere suppressed. Magallanes entered a conditional guilty plea, and now appeals the district court’s ruling with respec t to the physical evidence.
DISCUSSION In reviewing the denial of a motion to suppress, we accept the district court’s factual findings unless they are clearly er roneous; however, the ultimate determination of reasonableness under the Fourth Am endment is a question of law which we review de novo. See United States v. Botero-Ospina , 71 F.3d 783, 785 (10th Cir. 1995), cert. denied , 518 U.S. 1007 (1996). We review the evidence on appeal in the light most favorable to the governmen t. Id. Defendant does not challenge the initial stop of hi s truck by Inspector Mydock; rather, he contends that the second stop byMayberry and Montano was pretextual and therefore violated his Fourth Amendm ent right to be free from unreasonable searches and seizures. Defendant furt her argues that any consent to search that he gave should be suppressed because itwas obtained after he was in custody and before he had been given any Mirandawarnings. A traffic stop is a seizure within the meaning of t he Fourth Amendment. Botero-Ospina , 71 F.3d at 786. A traffic stop is valid under th e Fourth Amendment if the stop is based on an observed traff ic violation. See United States v. Villa-Chaparro , 115 F.3d 797, 801 (10th Cir.) (citing Botero-Ospi na , 71 F.3d at 787), cert. denied , 118 S. Ct. 326 (1997). The constitutional- 6 -

reasonableness of a traffic stop does not depend on the actual subjective motivations of the individual officers involved. Se e Whren v. United States , 517 U.S. 806, 813 (1996). Rather, “[o]ur sole inquiry is whether this particular officer had reasonable suspicion that this particul ar motorist violated any one of the multitude of applicable traffic and equipment r egulations of the jurisdiction.” Villa-Chaparro , 115 F.3d at 801 (quoting Botero-Ospino , 71 F.3d at 787). Here, Officer Mayberry testified that he clocked th e defendant by radar driving in excess of the posted speed limit. The district court found the officers’ testimony credible, and defendant offered no contra ry evidence other than his own subjective belief that he was not speeding at the t ime. For purposes of our Fourth Amendment analysis, the officers’ actual motivation in stopping defendant is irrelevant; the stop was based on an observed traff ic violation, and was therefore constitutionally reasonable under Whrenand Villa-Chaparro

. Likewise, the officers’ search of the truck was notconstitutionally invalid. A vehicle may be validly searched without a warrantor probable cause if a person in control of the vehicle has given his voluntary c onsent to the search. See United States v. Santurio , 29 F.3d 550, 552 (10th Cir. 1994) (citing Schneck loth v.
Bustamonte , 412 U.S. 218 (1973)). Whether voluntary consent has been given is a question of fact and is determined from the total ity of the circumstances. See id. (citing United States v. Mendenhall , 446 U.S. 544 (1980)).2 Magallanes contends that his written consent shouldhave been suppressed

because it was obtained after he was taken into cus tody and before he had been given any Mirandawarnings. Magallanes’ argument might carry weig ht if his written consent (obtained after the searches had be en conducted and while he was in custody) had been the only consent obtained by t he officers in this case. However, even assuming that his written consent -- given after the searches took place -- was involuntary, his voluntary consent giv en prior to the searches is not somehow thereby invalidated. - 7 - Here, the officers testified that they each asked for and received Magallanes’ verbal consent to search the truck prio r to placing him in custody. Mayberry originally asked for consent shortly afterhe and Montano stopped Magallanes. After the officers discovered the logb ook violation and Montano become suspicious of the unusual series of stops re flected in the logbook, Montano asked for and received defendant’s permissi on a second time to search the truck. Montano then discovered the paper bag containing cash, which led to the officers’ handcuffing of defendant. As before , the district court found the officers’ testimony to be credible, and Magallanes offered no testimony or evidence challenging the officers’ version of event s. The district court’s finding that Magallenas twice gave voluntary consent to sea rch before he was placed in custody is not clearly erroneous. 2 Because the officers reasonably stopped defendant b ased on an observed traffic violation, and because the district court’s finding that defendant twice gave voluntary consent to search prior to being taken in to custody was not clearly- 8 -

erroneous, we conclude that the officers’ actions d id not violate the Fourth Amendment. As a result, the district court proper ly denied defendant’s motion to suppress. AFFIRMED. The mandate shall issue forthwith.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge