No. 41014

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

should not be published and is not precedent except under the limited

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

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-41014

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JOSE LUIS SOSA-MENDOZA

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:06-CR-71-1

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

Jose Sosa-Mendoza was convicted by bench trial of one count of possession

of at least 100, but less than 400, kilograms of marijuana, in violation of 21

U.S.C. § 841. He presents two issues: (1) the district court’s failure to suppress

evidence; and (2) insufficiency of the evidence. 

United States Court of Appeals

Fifth Circuit

F I L E D

September 18, 2008

Charles R. Fulbruge III

Clerk
07-No. 07-41014

2

Sosa first contends: the stop of his vehicle by Officer Biggs violated the

Fourth Amendment and the subsequent consent to search the truck was not

voluntary. “In reviewing a district court’s denial of a motion to suppress, we

review the district court’s findings of fact for clear error and its conclusions of

law de novo”, viewing the evidence in the light most favorable to the prevailing

party. United States v. Lopez-Moreno, 420 F.3d 420, 429 (5th Cir. 2005). 

The legality of a traffic stop is analyzed under the framework provided by

Terry v. Ohio, 392 U.S. 1 (1968). Lopez-Moreno, 420 F.3d at 430. A traffic stop

is justified if the officer has “an objectively reasonable suspicion that some sort

of illegal activity, such as a traffic violation, occurred, or is about to occur, before

stopping the vehicle”. Id. Officer Biggs testified, inter alia, that he observed

Sosa’s truck veer onto an improved shoulder for 200 to 300 feet, a possible

violation of TEX. TRANSP. CODE § 545.058(a). Sosa maintains there was no

violation because: there was no evidence the maneuver was dangerous; and he

swerved due to a steering-wheel malfunction. Section 545.058(a), however, only

permits a driver to drive on an improved shoulder under seven enumerated

circumstances, which do not include vehicle malfunction. Furthermore, under

§ 545.058(a), the lack of danger is irrelevant. There is also no evidence that

Officer Biggs knew, or should have known, of the alleged steering-wheel

malfunction before stopping Sosa and questioning him. In sum, an objectively

reasonable officer could have concluded that a traffic violation had occurred,

justifying an investigative stop under Terry. 

Sosa next maintains his consent to search his truck was not voluntary.

Voluntariness-of-consent rulings are reviewed for clear error under a totality-ofthe-circumstances test. United States v. Tompkins, 130 F.3d 117, 120-21 (5th

Cir. 1997); United States v. Ponce, 8 F.3d 989, 997 (5th Cir. 1993). The record

supports the conclusion that Sosa and Officer Biggs were able to communicate

sufficiently in English and Spanish; that Sosa understood he was giving his

consent to search; that there was no evidence of threats or coercive tactics; and
07-No. 07-41014

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that he was sufficiently intelligent to understand the situation. There was no

clear error in the district court’s determination that Sosa’s consent was

voluntary. Because the stop of Sosa’s vehicle satisfies the Terry standard and

the voluntariness ruling presents no clear error, the district court did not err in

admitting the seized evidence.

In challenging the sufficiency of the evidence at the bench trial, Sosa

contends the Government failed to prove he had knowing possession of the

marijuana. For a bench trial, our standard of review for a sufficiency-of-theevidence issue is “whether the finding of guilt is supported by substantial

evidence, i.e., evidence sufficient to justify the trial judge, as the trier of fact, in

concluding beyond reasonable doubtthatthe defendantis guilty”. United States

v. Turner, 319 F.3d 716, 720 (5th Cir. 2003) (citation and internal quotation

marks omitted). Under this standard, the evidence is viewed in the light most

favorable to the Government. Id. at 720-21.

To prove a defendant possessed drugs with intent to distribute, the

Government must establish (1) knowing (2) possession of the drugs in question

(3) with intent to distribute them. United States v. Ortega Reyna, 148 F.3d 540,

543-44 (5th Cir. 1998). Sosa’s exclusive control over the truck on a lengthy

journey at the time of his arrest was sufficient for the court to conclude that he

had constructive possession of the marijuana. See United States v. Inocencio, 40

F.3d 716, 724 (5th Cir. 1994). 

Sosa urges that possession was not knowing because the marijuana was

hidden, and he was not present when the truck was loaded, so others could have

placed the marijuana there without his knowledge. “[W]hen the drugs are

hidden, control over the vehicle alone is not sufficientto prove knowledge” unless

drugs are “clearly visible or readily accesible”. United States v. Garza, 990 F.2d

171, 174 & n.10 (5th Cir. 1993). The driver of a vehicle containing hidden drugs

may be an unwitting courier; accordingly, additional circumstantial evidence of

guilty knowledge is required. United States v. Diaz-Carreon, 915 F.2d 951, 954
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(5th Cir. 1990). Those behaviors this court considers in assessing guilty

knowledge in hidden-drug cases were catalogued in Ortega Reyna:

(1) nervousness; (2) absence of nervousness, i.e., a cool and calm

demeanor; (3) failure to make eye contact; (4) refusal or reluctance to

answer questions; (5) lack of surprise when contraband is discovered; (6)

inconsistent statements; (7) implausible explanations; (8) possession of

large amounts of cash; and (9) obvious or remarkable alterations to the

vehicle, especially when the defendant had been in possession of the

vehicle for a substantial period of time.

148 F.3d at 544 (footnote call numbers omitted). In assessing guilty knowledge,

also considered is the value of the drugs being transported. United States v.

Villarreal, 324 F.3d 319, 324-25 (5th Cir. 2003).

There was ample circumstantial evidence of guilty knowledge. First, Sosa

was highly nervous. Although his initial nervousness might be explained by the

stop itself or his status as an unlawful alien, see Diaz-Carreon, 915 F.2d at 954,

he became increasingly nervous and looked away immediately when asked if

marijuana was in the truck. Further, there were other indicia of guilt. Sosa

claimed to be delivering a small load of produce a long distance from Houston to

Little Rock, which was impractical; he had no delivery address but only a contact

telephone number; and he would have arrived at night. He was generally

uncooperative during questioning by Special Agent Downing, and he gave

inconsistent and evasive answers to both the Agent and Officer Biggs. Finally,

the marijuana recovered had a value of $181,000. These facts provide

substantial evidence supporting the district court’s inference of guilty

knowledge. 

AFFIRMED.