*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this opinion should not be published and is not precedent except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. 00-60912

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL CLARK,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 1:99-CR-94-1-P

 

August 22, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Michael Clark appeals from his conviction based on his

conditional guilty plea for possession with intent to distribute

cocaine base. He argues that the district court erred in denying

his motion to suppress evidence allegedly seized in violation of

his Fourth Amendment rights.

Because the district court did not make factual findings as

required by Fed. R. Crim. P. 12(e) following the hearing on the
1 United States v. Paige, 136 F.3d 1012, 1017 (5th Cir.

1998); United States v. Schinnell, 80 F.3d 1064, 1067 & n.4 (5th

Cir. 1996).

2 United States v. Jones, 234 F.3d 234, 240 (5th Cir. 2000);

United States v. Zucco, 71 F.3d 188, 190 (5th Cir. 1995).

3 See Whren v. United States, 517 U.S. 806, 810 (1996);

United States v. Shabazz, 993 F.2d 431, 435 (5th Cir. 1993).

4 United States v. Ibarra-Sanchez, 199 F.3d 753, 761 (5th

Cir. 1999); Shabazz, 993 F.2d at 437 n.7. 

2

motion to suppress, we review the record to determine whether any

reasonable view of the evidence supports the district court’s

decision, looking particularly to the testimony and other evidence

presented at the suppression hearing.1 A traffic stop constitutes

a permissible Terry stop if the officer's action was justified at

its inception and the detention was reasonably related in scope to

the circumstances that justified the interference in the first

place.2 A review of the evidence presented at the evidentiary

hearing indicates that the initial stop of Clark’s vehicle was

based on the officers’ observation that the vehicle had no

inspection sticker and that the vehicle made an improper lane

change without using a turn signal. Therefore, the initial stop of

the vehicle for traffic violations was justified at its inception.3

It was also permissible for Officer Jeff Cunningham to require

Clark and his passenger to exit the vehicle during the stop and to

question Clark while Officer Harrison Cook obtained a computer

check of Clark's driving record.4
5 Jones, 234 F.3d at 241; United States v. Dortch, 199 F.3d

193, 198-200 (5th Cir. 1999), revised on other grounds on denial of

rehearing, 203 F.3d 883 (5th Cir. 2000); see also Shabazz, 993 F.2d

at 436-37.

6 See United States v. Watson, 953 F.2d 895, 897 (5th Cir.

1992).

3

Clark was detained, however, even after Officer Cunningham

received a report from the computer check and beyond the time

necessary to issue citations based on the lack of an inspection

sticker and the improper lane change. Absent other grounds of

reasonable suspicion for extending Clark's detention, Officer

Cunningham's questioning about the presence of drugs in the vehicle

while maintaining control of Clark's identification card would

violate the Fourth Amendment.5 However, Officer Cunningham also

testified that he observed that, when the passenger, Therion Clark,

saw the police car, Therion reached into the back seat to get a

jacket and then leaned forward, dropping his shoulder as if to

retrieve or hide something under the front passenger seat. Officer

Cunningham testified that these actions made him suspicious that

the passenger was reaching for or hiding something. These

suspicious movements, taken before the officers detained the

occupants of the vehicle, created a reasonable suspicion that

justified the further detention of Clark in order to question him

about the presence of drugs in the vehicle and to ask for consent

to search the vehicle.6 Officer Cunningham testified that Clark’s

consent to search the vehicle was obtained within approximately ten
7 See Terry v. Ohio, 392 U.S. 1, 19 (1968); Zucco, 71 F.3d at

191.

8 See United States v. Navarro, 169 F.3d 228, 231-32 (5th

Cir. 1999).

9 Florida v. Jimeno, 500 U.S. 248, 252 (1991); United States

v. Ho, 94 F.3d 932, 936 n.5 (5th Cir. 1996).

4

minutes of the initial stop. Under such circumstances, Clark has

not shown that the stop, his removal from the vehicle, and his

detention for investigation exceeded the scope of a permissible

Terry stop.7

Clark argues that his consent to search the vehicle was

vitiated by his illegal detention. We have already held that Clark

was not illegally detained and so do not address this argument.8

Clark also argues that his consent was limited to a search of

the trunk and so, by searching the passenger compartment, Officer

Cunningham exceeded the permissible scope of the consent search.

A consent to search a vehicle may be limited or qualified by the

person consenting, and the officers must then conform to the limits

or conditions placed upon the right granted to search.9 A

reasonable view of the evidence, however, shows that Clark

consented to a search of the vehicle, including the passenger

compartment. Officer Cunningham asked permission to search the

vehicle, and Clark consented but asked to stay with Officer

Cunningham during the search. Officer Cunningham explained that

Clark could not stay with him during the search for “officer safety
10 Jimeno, 500 U.S. at 251; United States v. Rich, 992 F.2d

502, 505, 507 (5th Cir. 1993).

11 Navarro, 169 F.3d at 231; United States v. Kelley, 981 F.2d

1464, 1470 (5th Cir. 1993); Shabazz, 993 F.2d at 438-39.

5

reasons” and again asked Clark for permission to search the

vehicle. Officer Cunningham further advised Clark that he did not

have to allow the search of the vehicle. Officer Cunningham

testified that Clark then stated that the officer could search the

car, and Clark was allowed to watch the search from the rear of the

vehicle. A reasonable view of the record reveals that a typical

reasonable person would have understood from the exchange between

Officer Cunningham and Clark that Clark consented to the search of

the passenger compartment.10 Furthermore, at the time Clark

consented to the search, he was not under arrest, and the record

contains no evidence that the police officers coerced Clark in any

way. Clark cooperated with the officers, provided his

identification card, and answered questions asked of him. A review

of the evidence thus indicates that Clark voluntarily consented to

a search of the vehicle and that the search did not exceed the

scope of the consent.11 Clark has not shown that the district court

erred in denying his motion to suppress the evidence seized during

the search of the vehicle.

Clark also argues that the district court erred in determining

that he was not a minimal participant in the offense for purposes

of a reduction under U.S.S.G. § 3B1.2. The defendant bears the
12 United States v. Brown, 54 F.3d 234, 241 (5th Cir. 1995).

13 United States v. Becerra, 155 F.3d 740, 757 (5th Cir.

1998).

14 Rosier v. United States Parole Comm’n, 109 F.3d 212, 214

(5th Cir. 1997); United States v. Buenrostro, 868 F.2d 135, 138

(5th Cir. 1989).

15 U.S.S.G. § 3B1.2, cmt. n.1 (1998).

6

burden of proving his role as a minimal participant in the offense

by a preponderance of the evidence.12 Whether Clark was a minimal

participant entitled to a four-level reduction pursuant to U.S.S.G.

§ 3B1.2(a) is a factual determination that we review only for clear

error.13 This Circuit's case law holds that a defendant is not

automatically entitled to a minimal participation reduction simply

because, like Clark, he is a drug courier.14 The commentary to

section 3B1.2 makes clear that a defendant's lack of knowledge or

understanding of the activities of others is indicative of a role

as minimal participant.15 Clark acknowledged that he had knowledge

that his passenger, Therion, had possession of the cocaine base,

and Clark knowingly provided transportation to Therion to enable

him to deliver the cocaine base. Although there was no direct

evidence that Clark was paid for providing the transportation,

police officers found 3.6 grams of marijuana and 8.57 grams of

cocaine base in Clark’s jacket in the vehicle. The commentary to

U.S.S.G. § 3B1.2 provides as an example of a minimal participant in

a drug offense an individual was recruited as a courier for a
16 Id. § 3B1.2, cmt. n.2.

7

single smuggling transaction involving a small amount of drugs.16

While Clark may have been a courier for only a single drug

transaction, the transaction involved a large amount of cocaine

base, 261.91 grams. On the facts in the record before us, the

district court did not err in determining that Clark was not a

minimal participant in the offense under section 3B1.2.

AFFIRMED.