* Chief Judge of the Northern District of Mississippi, sitting by designation.

** 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. 07-31021

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

CARLIXTO SIERRA

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

(2:05-CR-101-1)

Before GARZA and DENNIS, Circuit Judges, and MILLS, District Judge.*

PER CURIAM:**

This criminal case involves two Fourth Amendment issues -- the legality

of an investigatory stop and the defendant’s subsequent consent to search his

vehicle -- as well as various voir dire and trial evidentiary issues. For the

following reasons, we affirm the district court’s denial of the motion to suppress

and the judgment of conviction.

I. BACKGROUND FACTS

United States Court of Appeals

Fifth Circuit

F I L E D

September 30, 2008

Charles R. Fulbruge III

Clerk
2

On March 17, 2007, Carlixto Sierra (“Sierra”) was stopped by Tangipahoa

Deputy Sheriff Kevin Womack for improper lane usage on Interstate 12 near

Hammond, Louisiana. Approaching the passenger side window of the vehicle,

Deputy Womack asked Sierra for his driver’s license, informed him why he was

being stopped, and asked him about his travel plans. Deputy Womack did not

ask Sierra to exit the vehicle because Sierra is handicapped, evidenced by the

“handicapped” sticker hanging on his rearview mirror. Sierra informed Deputy

Womack that although he had a New Jersey driver’s license, he recently moved

to Atlanta, Georgia. He further indicated that he was returning to Atlanta from

Houston, Texas where he was visiting his family and helping his sister move.

Because Sierra was driving a rental car, Deputy Womack asked to see the rental

agreement. During the encounter, Deputy Womack noticed that Sierra was

extremely nervous and had several bags of snack foods on the floorboard.

Deputy Womack took Sierra’s documents and returned to his police unit

to run a computer check. Before doing so, he called DEA Task Force Agent

(“TFA”) Karl Newman for backup. TFA Newman arrived in approximately four

minutes and Deputy Womack explained to him that he called for back-up

because of Sierra’s extreme nervousness. After the computer check came back

clean, Deputy Womack filled out a consent form to search Sierra’s vehicle. He

then asked TFA Newman to take Sierra out of his vehicle and bring him back to

the police unit so he could issue the citation. Upon bringing Sierra back to the

police unit, TFA Newman noticed in plain view of the front passenger seat that

Sierra had maps of the McAllen-Edinburg area of Texas, which, according to

Deputy Womack, is a popular drug trafficking area near the border of Mexico.

Instead of immediately issuing the citation, Deputy Womack again asked

Sierra about his travel plans. This time, Sierra indicated that he was helping

his brother move, not his sister. At this point, TFA Newman pulled Deputy

Womack aside and informed him aboutthe maps. Deputy Womack asked Sierra
No. 07-31021

1 The consent form states that “I, Carlixto Sierra, have a clear understanding that I

have been informed of the following”:

Number 1: I have not been promised anything in exchange for my permission

to this search.

Number 2: I have not been threatened in any way or have not been obligated to

offer my permission voluntarily to have my vehicle/home searched.

Number 3: I completely understand that I have the right to refuse to have my

vehicle/domicile searched.

Number 4: I completely understand that I have the right to end the consent for

search at any time that I wish.

Number 5: I completely understand that if anything illegal is found as a result

of the search, it can be used against me in a court of law.

Number 6: I am sober and I am competent and I am intelligent enough to

understand this document and my rights.

Number 7: I can read, write, and understand the Spanish language.

3

if he had been to the McAllen-Edinburg area of Texas. Sierra responded no.

Deputy Womack asked him why he had the maps. Sierra did not respond.

Deputy Womack issued the citation, handed over Sierra’s documents, and

explained to Sierra that he could either pay the fine by mail or come to the

courthouse on the designated date. Sierra thanked Deputy Womack, indicated

that he understood, and began walking back to his vehicle. Deputy Womack

then asked Sierra if he had anything illegal in his vehicle, specifically listing

various illegal items. With respect to each item, Sierra responded no. When

TFA Newman asked about “coca,” however, Sierra smirked. At this point,

Deputy Womack asked Sierra for consent to search the vehicle and handed him

the written consent form. Sierra informed Deputy Womack that he could not

read English. Deputy Womack responded that the reverse side was in Spanish.

Sierra read and signed the form. Upon searching the vehicle, Deputy Womack

discovered a package of cocaine underneath the rear bumper.1
No. 07-31021

4

Sierra was indicted on one count of possession with intent to distribute five

kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(A). He moved to suppress the cocaine on the ground that it was seized

during a traffic stop that was unreasonable in its duration and that his

subsequent consent to search the vehicle was invalid. After a hearing, the

district court denied the motion. The case proceeded to trial and the jury

returned a guilty verdict. Sierra was sentenced to 121 months of imprisonment.

Sierra appeals, challenging the denial of his motion to suppress and raising

various voir dire and trial evidentiary issues. 

II. STANDARDS OF REVIEW

Upon reviewing a district court’s ruling on a motion to suppress evidence

under the Fourth Amendment, this court reviews its factual determinations for

clear error and the ultimate Fourth Amendment conclusions de novo. United

States v. Brigham, 382 F.3d 500, 506 n.2 (5th Cir. 2004) (en banc) (citing United

States v. Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003)). The evidence is

considered in a light most favorable to the prevailing party. Id. (citing Gonzales,

328 F.3d at 758). This court reviews a district court’s conduct of voir dire for

abuse of discretion. United States v. Munoz, 150 F.3d 401, 412 (5th Cir. 1998)

(citing United States v. Rasco, 123 F.3d 222, 231 (5th Cir. 1997)). This court also

reviews a district court’s evidentiary rulings for abuse of discretion. United

States v. Sosa, 513 F.3d 194, 200-01 (5th Cir. 2008) (citing United States v.

Griffin, 324 F.3d 330, 347 (5th Cir. 2003); UnitedStates v. Mendoza-Medina, 346

F.3d 121, 127 (5th Cir. 2003)). “A trial court abuses its discretion when its

ruling is based on an erroneous view of the law or a clearly erroneous

assessment of the evidence.” Id. (quoting United States v. Ragsdale, 426 F.3d

765, 774 (5th Cir. 2005)). “[O]ur review of evidentiary rulings in criminal trials

is heightened.” Id. (citing Mendoza-Medina, 346 F.3d at 127; United States v.

Anderson, 933 F.2d 1261, 1268 (5th Cir. 1991)).
No. 07-31021

5

III. ANALYSIS

A. Fourth Amendment Issues

Sierra challenges both the legality of the investigatory stop and his

consent to search the vehicle. We address each in turn. The legality of an

investigatory stop is tested in two parts. First, this court examines whether the

officer’s actions were justified at the inception of the stop. Brigham, 382 F.3d at

506. Second, this court examines whether the officer’s subsequent actions were

reasonably related in scope to the circumstances that justified the stop. Id.

(citing Terry v. Ohio, 392 U.S. 1, 19-20 (1968)). The legality of the initial stop is

not in dispute in this case. Thus, we focus solely on whether the subsequent

actions by the officers were reasonably related in scope to the circumstances to

justify Sierra’s continued detention.

“[A] 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.” Id. at 507 (citing United States v.

Dortch, 199F.3d 193, 200 (5th Cir. 1999); UnitedStates v. Machuca-Barrera, 261

F.3d 425, 434 (5th Cir. 2001)). This court has found no constitutional

impediment to an officer requesting to examine a driver’s license, vehicle

registration, or rental papers, run computer checks, ask about the purpose and

itinerary of the trip, and even inquire about subject matters unrelated to the

purpose of the stop. Id. at 507-08 (citations omitted). An officer may also

temporarily detain a person for investigatory purposes if the officer has

reasonable suspicion supported by articulable facts that criminal activity “may

be afoot.” See United States v. Sokolow, 490 U.S. 1, 7 (1989). The suspicion

required to justify such a detention need not rise to the level of probable cause

but must be based on more than an un-particularized suspicion or hunch. Id.

In determining whether reasonable suspicion exists, this court focuses on the

totality of the circumstances and considers the collective knowledge and
No. 07-31021

2 The parties rely, in part, on TFA Newman’s trial testimony to clarify what occurred

during the stop. However, this court’s “review is limited to the evidence at the suppression

hearing.” United States v. Moorberry, 732 F.2d 390, 400 n.13 (5th Cir. 1984). Thus, we rely

solely on the evidence as it was presented at the suppression hearing.

6

experience ofthe officers involved. United States v. Holloway, 962 F.2d 451, 459

& n.22 (5th Cir. 1992).

If the computer check comes back clean, then, as a general matter,

reasonable suspicion disappears and there is no legitimate reason for extending

the stop. United States v. Lopez-Moreno, 420 F.3d 420, 431 (5th Cir. 2005). “A

recognized exception to this rule is that if additional reasonable suspicion arises

in the course of the stop and before the initial purpose of the stop has been

fulfilled,then the detention may continue until the new reasonable suspicion has

been dispelled or confirmed.” Id. Thus, “[i]t is not the duration of time, but the

quantity of evidence,that determines whether reasonable suspicion survives the

officer’s background check.” United States v. Jensen, 462 F.3d 399, 406 n.7 (5th

Cir. 2006). If there is no reasonable suspicion to continue the detention once the

computer check comes back clean, then “a constitutional violation occur[s] the

moment the detention continue[s] past that point.” Id.; see also Brigham, 382

F.3d at 510 (“[A]fter the computer checks came up ‘clean,’ [and] there remain[s]

no reasonable suspicion of wrongdoing by the vehicle occupants. . . . [c]ontinued

questioning thereafter unconstitutionally prolonged the detentions.”).

Here, once the computer check came back clean, instead of immediately

releasing Sierra, Deputy Womack continued to detain Sierra, hold his

documents, and initiate a second round of questioning.2 The Fourth Amendment

requires reasonable suspicion of criminal activity to do so. Nervousness alone

is insufficient to create reasonable suspicion of criminal activity. United States

v. Portillo-Aguirre, 311 F.3d 647, 656 n.49 (5th Cir. 2002). However, the

government argues that Deputy Womack had reasonable suspicion to continue
No. 07-31021

7

the detention because Sierra’s nervousness was coupled with (1) the presence of

snack foods, (2) maps of known drug trafficking border towns, (3) inconsistent

responses to questions, and (4) smirking when asked about “coca.” However,

only the first two facts arose before the initial purpose of the stop had been

fulfilled. Because the remaining two facts arose afterwards, we do not consider

them when determining whether Deputy Womack had reasonable suspicion to

continue the detention. See Jensen, 462 F.3d at 404 (refusing to consider facts

that did not arise “before the initial purpose of the stop [had] been fulfilled”).

Although we have doubts that the mere presence of snack foods, which most

likely accompany any road trip, is indicative of criminal activity, itis undisputed

that upon bringing Sierra back to the police unit and prior to the fulfillment of

the initial purpose of the stop, TFA Newman observed the McAllen-Edinburg

maps in plain view on the passenger seat of the vehicle. We agree that the

presence of maps of popular drug trafficking border towns not included in a

driver’s expressed itinerary coupled with nervousness creates reasonable

suspicion of criminal activity. Accordingly, based on the collective knowledge of

Deputy Womack and TFA Newman, we conclude that there was reasonable

suspicion to continue Sierra’s detention and that Sierra’s Fourth Amendment

rights were not violated. See United States v. Waldrop, 404 F.3d 365, 369-70

(5th Cir. 2002) (holding the collective knowledge doctrine applies when the

relevant officers are present at the scene and there is “some general

communication between the officers”). 

Sierra also challenges his consent to search the vehicle. To determine

whether consent was validly given, this court determines whether the consent

was voluntary, which, in turn, depends on the following factors:

(1) the voluntariness of the defendant’s custodial status; (2) the

presence of coercive police procedures; (3)the extent and level of the

defendant’s cooperation with the police; (4) the defendant’s

awareness of his right to refuse consent; (5) the defendant’s
No. 07-31021

3 Because the investigative stop was constitutional, we need not determine whether

Sierra’s consent to search the vehicle was an “independent act of free will.” See United States

v. Khanalizadeh, 493 F.3d 479, 484 (5th Cir. 2007) (citing Jenson 462 F.3d at 407).

8

education and intelligence; and (6) the defendant’s belief that no

incriminating evidence will be found.

Jensen, 462 F.3d at 406 (quoting United States v. Jones, 234 F.3d 234, 242 (5th

Cir. 2000)).3 The government bears the burden of proof and this court reviews

the district court’s finding of voluntariness for clear error. Id. (citing United

States v. Shabazz, 993 F.2d 431, 438 (5th Cir. 1993)). Here, the district court

concluded that consent was voluntary because (1) Sierra was in the process of

returning to his vehicle, (2) Sierra cooperated during the stop, (3) Sierra most

likely did not believe that any incriminating evidence would be found because

the cocaine was located in a very remote spot, (4) the consent form clearly

informed Sierra of his right to refuse consent, and (5) there is no evidence that

Sierra was particularly unintelligent. The district court clearly erred in finding

that Sierra was in the process of returning to his vehicle when Deputy Womack

sought consent to search the vehicle. Instead, Deputy Womack testified that

when he sought consent to search the vehicle, he and TFA Newman were

questioning Sierra for a third time, inquiring about the presence of illegal items

in the vehicle. Although a “consensual interrogation can follow the end of a valid

traffic stop,” United States v. Sanchez-Pena, 336 F.3d 431, 442 (5th Cir. 2003),

“a statement by a law enforcement officer that an individual is suspected of

illegal activity is persuasive evidence that the fourth amendment has been

implicated.” United States v. Gonzales, 79 F.3d 413, 420 (5th Cir. 1996) (citing

UnitedStates v. Valdiosera-Godinez, 932F.2d 1093, 1099 (5th Cir. 1993)). Given

that Deputy Womack and TFA Newman were questioning Sierra for a third

time, specifically inquiring about the presence of illegal items, the first two

factors, voluntariness of defendant’s custodial status and presence of coercive
No. 07-31021

9

police procedures, weigh more in Sierra’s favor than the district court might

have recognized. Nonetheless, given that the remaining factors tend to support

the district court’s finding of voluntariness, we agree that the district court did

not clearly err in its ultimate conclusion that consent was voluntary.

B. Voir Dire Issue

During voir dire, several jurors -- some unidentified in the record --

spontaneously expressed their view that an arrest could signify guilt. The

district court then explained:

You all earlier on said just because he’s indicted that didn’t mean he

was guilty. So, that would mean what you’re saying is every arrest,

why do we have a trial? Every arrest is then you’re guilty. So, then

you don’t believe in the presumption of innocence and if you really

don’t believe that you need to say that and you’ll be challenged for

cause. So, you need to be honest, and if you don’t believe that, if you

don’t believe people are presumed innocent until proved guilty by

evidence, you need to stand up and say that, and if you honestly

believe it under oath, then that’s a reason for you not to be on this

jury. It’s as simple as that. So, if you do not believe in the

presumption of innocence, stand up.

According to the record, no juror stood up. Defense counsel did not raise any

objections to the district court’s corrective measure; nor did he make any further

inquiries into the matter. On appeal, however, Sierra argues that the district

court’s corrective measure was inadequate because there is a strong possibility

that potentially biased veniremen ended up on the panel. “Absent an abuse of

discretion and showing that the rights of the accused have been prejudiced

thereby, the scope and content of voir dire will not be disturbed on appeal.”

United States v. Garcia-Flores, 246F.3d 451, 458 (5th Cir. 2001) (quoting United

States v. Black, 685 F.2d 132, 134 (5th Cir. 1982)); see also United States v.

Armendariz-Mata, 949 F.2d 151, 156 (5th Cir. 1991) (“If the overall conduct of

voir dire protects a defendant’s rights, the trial court’s actions will be upheld.”).
No. 07-31021

4 Deputy Womack also testified about the McAllen-Edinburg area and Special Agent

Chad Scott reinforced the point about boost phones.

5 Defense counsel did inform the district court that the TFA Newman was “getting very

close to giving opinions here and he hasn’t been qualified as an expert,” but he never lodged

a formal objection.

10

Here, Sierra’s contention that the district court’s corrective measure was

inadequate is based on pure speculation as he cannot identify a single biased

veniremen that ended up on panel. Moreover, the district court adequately

explained to the veniremen that if they believe an arrest is evidence of guilt,

then they do not believe in the presumption of innocence and cannot sit on the

panel. It then instructed any member to standup if they did not believe in the

presumption of innocence. No member did so. A district court is in the best

position to evaluate the reaction of the jury panel. Id. Sierra’s argument that

the district court could have adopted a more effective curative measure by

conducting individualized voir dire does not establish that the district court’s

choice of curing any confusion constitutes an abuse of discretion. In short, we

agree that the district court did not abuse its discretion in the manner in which

it conducted voir dire.

C. Evidentiary Issue

Sierra’s defense at trial was based on his alleged lack of knowledge about

the cocaine in his rental vehicle. At trial, TFA Newman testified that (1) Sierra

had maps of the McAllen-Edinburg area, which, according to TFA Newman, is

a popular drug trafficking area; (2) people like Sierra with no criminal histories

are often sought to transport drugs; (3) the cocaine was covered with masking

agents often used to avoid detection; and (4) Sierra had a boost phone, which,

according to TFA Newman, is a type of prepaid cell phone often used by drug

dealers because they are essentially untraceable.4

Sierra did not oppose any of this testimony at trial.5 Thus, we review its

admission for plain error only. See United States v. Espino-Rangel, 500 F.3d
No. 07-31021

11

398, 399 (5th Cir. 2007); Fed. R. Evid. 103(d). To prove plain error, Sierra must

satisfy three elements: (1) an error, (2) that is clear and obvious, and (3) that

affects substantial rights. See United States v. Reyna, 358 F.3d 344, 350 (5th

Cir. 2004). If Sierra meets these criteria, this court has discretion to correct the

error and will do so if it seriously affects the “fairness, integrity, or public

reputation of judicial proceedings.” Id. “[E]ven if we were to find the existence

of plain error, we could find it harmless if there is sufficient evidence, aside from

any potentially impermissible testimony, from which the jury could find the

Defendant[] guilty.” Espino-Rangel, 500 F.3d at 400 (citing United States v.

Guiterrez-Farias, 294 F.3d 657, 663-64 (5th Cir. 2002)).

Sierra argues that the aforementioned testimony constitutes expert

testimony and that the district court abused its discretion by permitting it

without first qualifying TFA Newman as an expert under Rule 701 of the

Federal Rules of Evidence. That Rule provides:

If the witness is not testifying as an expert, the witness’ testimony

in the form of opinions or inferences is limited to those opinions or

inferences which are (a) rationally based on the perception of the

witness, and (b) helpful to a clear understanding of the witness’

testimony or the determination of a fact in issue, and (c) not based

on scientific, technical, or other specialized knowledge within the

scope of Rule 702.

Fed. R. Evid. 701. “[T]he distinction between lay and expert witness testimony

is that lay testimony ‘results from a process of reasoning familiar in everyday

life,’ while expert testimony ‘results from a process of reasoning which can be

mastered only by specialists in the field.’” United States v. Sosa, 513 F.3d 194,

200 (5th Cir. 2008) (quoting Fed. R. Evid. 701, Advisory Committee Notes to

2000 Amendments). “[A] lay opinion must be the product of reasoning processes

familiar to the average person in everyday life.” Id. (quoting United States v.

Garcia, 413 F.3d 201, 215 (2d Cir. 2005)). “[A]ny part of a witness’s opinion that
No. 07-31021

12

rests on scientific, technical, or specialized knowledge must be determined by

reference to Rule 702, not Rule 701.” Id. (citing Garcia, 413 F.3d at 215).

The district court did not commit reversible error by permitting TFA

Newman’s testimony withoutfirst requiring his qualification as an expert. Even

assuming arguendo that the district court committed an error, the error did not

affect Sierra’s substantial rights. For an error to affect a defendant’s substantial

rights, “the error must have been prejudicial: It must have affected the outcome

of the district court proceedings.” United States v. Olano, 507 U.S. 725, 734

(1993). “To meet this standard the proponent of the error must demonstrate a

probability ‘sufficient to undermine confidence in the outcome.’” United States

v. Mares, 402 F.3d 511, 521 (5th Cir. 2005) (quoting United States v. Dominguez

Benitez, 542 U.S. 74, 83 (2004)). In addition to the fact that Sierra was found

driving a rental car containing cocaine, his cell mate testified that Sierra stated

that he (1) sells drugs, (2) “almost got away” on this particular occasion, and (3)

specifically used rental cars to “look the least conspicuous.” Also, according to

the trial testimony, Sierra (1) was extremely nervous during the traffic stop, (2)

gave inconsistent answers, (3) refused to explain why he had maps of the

McAllen-Edinburgh area of Texas when it was not on his expressed itinerary, (4)

smirked when asked about “coca,” and (5) jumped when the officers began

searching the bumper of the vehicle where the cocaine was found, prompting

Deputy Womack to ask Sierra if anything was wrong. Finally, the mileage on

the rental car was more consistent with a drive from McAllen as opposed to

Houston, Texas, from where Sierra stated he was driving. Thus, there was more

than sufficient evidence, even setting aside from TFA Newman’s challenged

testimony, from which a reasonable jury could have found Sierra guilty.

Accordingly, Sierra has not shown that the district court’s alleged error affected

his substantial rights. 

IV. CONCLUSION
No. 07-31021

13

For the foregoing reasons, we affirm the district court’s denial of the

motion to suppress and the judgment of conviction.

AFFIRMED.