### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-11228

UNITED STATES OF AMERICA, Plaintiff–Appellee
v. CHRISTIAN ALEXANDER WALLSTRUM, Defendant–Appellant
consolidated with 11-11230 UNITED STATES OF AMERICA, Plaintiff–Appellee
v. DANE TAYLOR CLARK, Defendant–Appellant
consolidated with 11-11231 UNITED STATES OF AMERICA, Plaintiff–Appellee
v. REED BECKER BRYANT, Defendant–Appellant

Appeals from the United States District Court f or the Northern District of Texas

(11-CR-26) U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D March 4, 2013 Ly l e W . Cay ce Clerk Case: 11-11228 Document: 00512162491 Page: 1 Date Filed: 03/04/2013No. 11-11228

Before REAVLEY, PRADO, and ELROD, Circuit Judges. PER CURIAM: * Defendant–Appellants Christian Alexander Wallstrum, Dane Taylor Clark, a n d R e ed Becker Bryant appeal the d enial of their motions to suppress evidence seized during two t r a f fic stops. For the r easons given below, we AFFIRM the judgment of the district court. Background A. Wallstrum Stop Shortly after 6:00 p.m. on February 5, 2011, Texas Department of Public Safety (“DPS”) Trooper Ben Dollar w as patroll i n g Interstate 40 i n Carson County, Texas when he observed three vehicles traveling closely together: an SUV, a white Toyota Camry, a nd a silver F ord Fusion. Believing that the Camry

was following the SUV t oo closely, Trooper Dollar i ni tiated a traffic stop. Defendant–Appellant Wallstrum was renting the Camry at the t ime

. When Wallstrum pulled over , Trooper Dollar approached from the passenger side, explained the reas o n for the stop, and a sked for his license a nd registration. During this exchange, Trooper Dollar noticed several food a nd drink containers in the car as well a s a recei p t f or a Gallup, New Mexico h otel. Wallstrum provided the requested materials along with the car rental agreement. Trooper Dollar i n dicated that h e would give W allstrum a warning a nd asked Wallstrum to accompany him back to the patrol car. In the patrol c ar, Trooper Dollar questioned Wallstrum about his travel while he w aited for the results of the c omputer checks he was running on Wallst r u m ’ s i n formation. Wallstrum stated th at he s tarted his trip in Dallas, flew ba c k t o O klahoma City, and w as now h eaded to North Carolina. This

* Purs uant to 5 T H C I R

. R. 47. 5, the court has d eterm ined that this op inion s houldnot be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et f orth in 5 T H C I R

. R. 47. 5. 4. 2 Case: 11-11228 Document: 00512162491 Page: 2 Date Filed: 03/04/2013No. 11-11228

intrigued Trooper Dollar because both Dallas and Oklahoma City w ere east of where the traffic s t o p o c c urred, indicating th at Wallstrum had to have also traveled west at some point given their c u r r e n t l o cation. As Trooper Dollar continued his questioning, W allstrum became flustered such that his arms and hands were shaking, his eye was twitching, and his carotid a rtery was visibly pulsing. W allstrum explained that he had also gone to Amarillo to visit a girlfriend and was currently on his way f r o m Amarillo to North Carolina. Suspecting that W all s t r u m w as being dishonest, Trooper Dollar asked if Amarillo was as far w est a s Wallstrum had traveled. When Wallstrum i ndicated that it was, Trooper Dollar became concerned b ecause he remember e d s eeing the receipt for the New Mexico hotel in the car. Trooper Dollar also noticed that the

car rental agreement was expired because the car s hould have been returned to Oklahoma City three days earlier. At that point, the com p u t e r c hecks cleared, and Trooper D ollar gave Wallstrum a warning for f ollowi n g t o o closely and r eturned all of W allstrum’s documents. Trooper D o l l ar then asked Wallstrum if he was carrying or transporting a ny weapons or controlled substances; Wallstrum s aid that he was not. Trooper D ollar requested consent to s earch the c a r and Wallstrum agreed. Trooper Dollar search e d t h e car for approximately thirty m inutes and noticed several areas where the vehicle had been altered. The fuel sending unit in the

car appeared to h a v e b e e n taken apart, a nd it appeared as though the front bumper and rocker panels had been removed recently. When Tro o p e r D o llar indicated that he wished to continu e t h e s earch at the DPS office, Wallstrum again a greed. At the DPS office, Trooper Dollar r emoved the rocker panels and discovered twenty-four bundles o f cocaine. Wallstrum was placed under arrest and later told the arresting of f i c ers that he had met Defendant–Appellant Bryant and D efendant–Appellant Clark at a Gallup, New Mexico hotel a nd that they had instructed him to drive to North Carolina.

3 Case: 11-11228 Document: 00512162491 Page: 3 Date Filed: 03/04/2013No. 11-11228

B. Bryant and Clark Stop Aro u n d t h e time that Trooper Dollar f irst noticed the three vehicles, Trooper Brandon Riefers was stoppe d i n th e same area of Interstate 4 0, a ssisting another trooper. From his patrol car, Trooper Riefers observed the same three

cars and determined that the group was traveling too closely together. Trooper Riefers pursued the silver Ford Fusion, which was being driven b y Bryant with Clark as his passenger, and initiated a traffic stop. Trooper Riefers approached the vehicle from the p a ssenger side and requested Bryant’s l icense and insurance, which Bryant supplied. Clark informed Trooper Riefers that the car

was a rental and handed him the rental agreement as well. Trooper Riefers then told B ryant that h e would be giving him a warning a nd a sked B ryant to exit the vehicle. When Bryant exited the v e hi c l e , Tr o o p e r Ri e fers requested Clark’s driver’s license a nd began questioning him about their travel p l ans. Clark told Trooper Riefers that they were t raveling to Fort Worth f or a super bowl party and would be staying in the Dallas/Fort Worth area until th e rental agreement expired. D u r ing this conversation, Trooper Riefers noticed e nergy drinks, bottles o f water, a nd snack items inside the car, which he believed indicated “hard” travel. Trooper Riefers then returned to his patrol car t o run c hecks on the information provided to him and had Bryant join him in the front seat. While Trooper Riefers verifie d t he information, he began questioning Bryant. Bryant t old h im that they had come from Albuquerque and were traveling to Charlotte, North Carolina t o stay with his uncle before returning to Arizona. Bryant never mentioned going to D allas or Fort Worth. At this point, Trooper Riefers became suspicious because Bryant and Clark had such differing stori e s . H e also found the rental agreement to be suspicious. The agreement

was issued t o Victoria Teague, Clark’s gi r l f r i e n d, and indicated in typed font that no o ther drivers were p ermitted, but “Dane C lark additional driver O K ” was

4 Case: 11-11228 Document: 00512162491 Page: 4 Date Filed: 03/04/2013No. 11-11228

h a n dwritt e n i n a different section. Additionally, Trooper Riefers noticed that th e rental agreement indicated that the car was t o s tay within Arizona, California, New M exico, and Texas, which would mean that a trip to N orth Carolina would not be covered. After about five minutes of questioning during the com p u t e r check, Trooper Riefers returned Bryant’s driver’s license and the papers f or the car and then issued the warning for following too closely. As Bryant started to open the patrol car door t o l e a v e , Trooper Riefers asked h im if he was carrying any weapons in the v ehicle o r anything illegal. B ryant said that h e w a s n o t but began exhibiting signs of extreme nervousness, i ncluding h is arms a n d hands shaking, his cheeks twitching underneath his eyes, a nd his neck visibly pulsing. Trooper Riefers then asked if he could search the c a r , a n d Bryant gave him permission. Trooper Riefers a s k e d C l a rk to e xit the v ehicle and stand in the d i tch along with Bryant. He instructed the two not to talk to each o t h e r a n d began searching the car. 1 During the search, Trooper Riefers noti c e d t o o l marks o n a clip located where the wind s hield wiper blades s it (the front cowl), a nd believed this to indicate that someone had tampered with the area because the piece a ppeared to have been lifted up. B ecause he did not h ave the t o ols or ability to access that
area, he decided that he w ould need to t ake the car to the DPS office for further inspection. Regarding the water bottles, snacks, and energy drinks that he had previously noticed, T rooper Riefers found i t suspicious that he did not f ind any receipts for the goods. This fur t h e r e d his suspicion that the two men were traveling with someone else. Trooper Riefers also discovered a black “Jeep” bag in the trunk, which b elonged to Bryant. Inside the bag w ere loose grommets and

screws.

1 Troop er Rief

ers began the s earch ap p roxim ately thirteen minutes af ter the s top

. 5 Case: 11-11228 Document: 00512162491 Page: 5 Date Filed: 03/04/2013No. 11-11228

Trooper Riefers had been searching the vehicle for a pproximately thirty minutes w h e n Officer D awson came to the scene to a ssist with the search. Officer Dawson had been assisting Trooper Dollar a nd informed Trooper Riefers that the driver of the o ther vehicle indicated that he was t r a v e ling t o North C a rolina. This led Trooper Riefers to believe that the cars w ere traveling together. H e then put the luggage back in the car and i ndicated to Bryant that he wanted Bryant to follow h im to the D PS office to con t i n u e the search, and Bryant agreed t o go. Trooper Riefers then had Clark join him in the front seat of the patrol car and the group went to the DPS office. 2 When they a rrived at the DPS o f f i c e , T rooper Dollar was already there searching Wallstrum’s Camry up on a lift. Shortly thereafter, the cocaine was found in the Camry. No drugs were f ound in B ryant ’ s c ar, but the officers inspecte d t h e c o m partment where the drugs were hidden in the C amry and determined that the screws and grommets observed in Bryant’s bag c a me from that area. The grommets and screws were similar in s hape and size and were the exact same n u mber as those missing from the Camry. At that point, Bryant and Clark were arrested. In June 2011, a grand jury charged Bryant, Clark, and W allstrum with

one count of conspiracy to p ossess cocaine w ith intent to distribute and one count of possession with intent to distribute. Ea c h defendant filed a motion to suppress, but th e d i s t r ict court a dopted the magistrate j udge’s report and recommendation a nd denied the motions. The defendants then p leaded guilty to th e conspiracy count but reserv e d their right to appeal the suppression rulings, which they do now.

2 Troop er Rief

ers tes tif

ied that he s ep arated Bryant and Clark f or s af ety reas ons and that it w as norm al p olicy to d o s o becaus e it p revented the tw o f rom d is cus s ing w hat they had told the of

f icers

. 6 Case: 11-11228 Document: 00512162491 Page: 6 Date Filed: 03/04/2013No. 11-11228 Discussion To assess a district court’s denial of a motion t o suppress, we review findings of fact for clear error and conclusions of law de novo. United States v. Jenson , 462 F.3d 399, 403 (5th Cir. 2006). We also c onstrue the e vidence in the l i ght most favorable to the “party that prevailed in the district court.” Unit e d States v. Jones , 234 F.3d 234, 239 (5th Cir. 2 000). If the t rial judge’s finding is based on the “decision to credit the testimo n y o f o n e of two or more witnesses, each of whom has told a coherent and facially plausible st o r y t hat is not contradicted by extrinsic evidence, that find i ng, if n ot internally i nconsistent,

can virtually never be c lear error.” United States v . Gillyard , 261 F.3d 506, 509 ( 5 th Cir. 2 001) (citing Anderson v. City of Bessemer Ci ty , 470 U.S. 5 64, 575 (1985)). We may affirm the district court’s decision on any basis established by the record. United States v . Pack , 6 12 F.3d 341, 347 (5th C ir. 2 010), modified on other grounds , 622 F.3d 383 (5th Cir. 2010). A. Initial Stops Traffic stops constitute a “seizu r e ” w ithin the meaning of the Fourth Amendment. U

n i t e d S t a tes v. Brigham , 382 F.3d 500, 506 ( 5th Cir. 2004) (en banc). T o d e t e rmine whether such a seizure is reasonable we consider (1) “whether the officer’s a ction was justified at its inception,” and (2) “whether the o fficer’s s ubsequent actions were r easonably related in scope to the circumstance s t hat justified the stop.” I d. A traffic stop is j ustified at its inception if an o fficer 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.” United States v. Banuelos–Romero , 597 F.3d 7 63, 766 (5th Cir. 2010) (quoting U

nited States v. Lopez–Moreno , 420 F.3d 420, 430 (5th Cir. 2005)). Thus, if the offic e r “ c a n p oint t o specific and articulable facts which, taken t ogether with rational inferences from those facts, reasonably warrant the search and s eizure, the intrusion is lawful.” United S tates v . Santiago , 310 F.3d

7 Case: 11-11228 Document: 00512162491 Page: 7 Date Filed: 03/04/2013No. 11-11228

336, 340 (5th Cir. 2 002) (internal quotation marks and alterations omitted). This analysis “is necessarily fact-specific, and factors which by themselves m ay appear innocent, may i n the aggregate rise to the level o f reasonable suspicion.” Id. Here, the defendants argue that the initia l s tops by Trooper Dollar and Trooper Riefers were bo t h u nlawful because neither Wallstrum nor Bryant committed the offense of following too closely as d efine d b y s t a te law. 3 As support, the defendants point to the testimony of their two expe r t w i t nesses: Cam Cope and Billy Teague. Cope, an expert in forensic accident reconstruction, and Teague, a retired law enforcement officer a nd former DPS Academy instructor, both relied o n a video t a ken from Trooper R iefers’s patrol car that revealed the cars traveling down the highway s hortly b efore Bryant was stopped. Based on his observations of the video, Cope testified that there w as a distance of sixty to eighty feet betw e e n W a l l strum a nd Bryant’s car and that there was a slightly greater distance between Wallstrum and the SUV. Cope suggested that the vehi cles

were slowing down at the time beca u s e they were passing the traffic stop that Trooper Riefers was assisting o n a n d opined that B ryant and Wallstrum were operating at a safe distance. Teague testified that after he viewed the video and applied the methods he had previously ta u gh t f o r determining distance, he determined that the cars were operatin g a t a safe distance. Teague explained that troopers a re taught to use reference points and also to verbally c o unt “one

3 Texas Trans p ortation Cod e s ection 545. 062 p rovid es as follow s : An op erator s hall, if follow i n g another v ehicle, maintain an as s ured clear d is tance betw een the tw o vehicles s o that, cons id ering the s peed of the vehicles , traf f ic, and the cond itions of the highw ay, the op erator can s af ely s top w ithout collid ing w ith the p r e c e d i ng vehicle or veering into another vehicle, object, or p ers on on or near the highw ay. Tex. Trans p . C od e § 545. 062( a)

. 8 Case: 11-11228 Document: 00512162491 Page: 8 Date Filed: 03/04/2013No. 11-11228

one thousand,” “two one thousand,” to determine d i s t ance behind another vehicle. Trooper D o llar and Trooper Riefers offered their own description of the events. Trooper Dollar testified that it was a clear day when the stop occurred and that the three vehicles c a u gh t h i s e ye because “the two passenger cars behind were []way too close for safety.” He stated that troopers are “trained day in and day out to look for traffic violations” and that f o l l o w i n g too closely was

one such violation. To determine whether a c ar is f ollowing too closely, Trooper Dollar testified that he l ooks for a s a f e distance and also takes “into consideration the speed of that vehicle.” Because the three cars w ere traveling at highway speed, he determined that the space was too close for safety because they would n ot have been able to stop in time if there was a threat or if the car in front of them stopped. Trooper Dollar would not p u t a number on the distance between the cars but answered one inquiry b y s tating that it was closer to one hundred feet apart than ten feet apart. To support his stop, T rooper R i e f ers t e stified that the speed limit on Interstate 40 at that location was seventy miles per hour. When he saw t he three cars pass, he determined that they were t oo close because “traveling at the speed limit,” they would not have b een able t o avoid a collision with the front vehicle. He further testified that there was “not e n o u gh room that another vehicle could s afely occupy the space between them.” On cross-examination, T r ooper Riefers testified that the video o f the stop s howed th at ther e w a s a distance of sixty to ninety feet between the cars, which was about two or three highway dash marks. He explained that a safe distance for traveling at seventy miles per hour would b e approximately three hundred feet b e c a u s e a normal reaction time for a vehicle t o stop is about “a second and a half” and, “[a]t 70 miles an hour, a second and a half is 150 feet.”

9 Case: 11-11228 Document: 00512162491 Page: 9 Date Filed: 03/04/2013No. 11-11228

In analyzing the dif

f e r e nt s t o ri e s o f

f e r e d, the magistrate judge c redited the troopers’ testimony over that o f the defendants’ witnesses. The magistrate judge noted that the video was not necessarily p r o b a tive of the events because the troopers’ observations were not confined to w hat the camera recorded. Nevertheless, the magistrate judge determined that e ven if the video were relied
upon, the defendant’s expert witness testim o ny was contradicted by the time count e r accompanying the patrol car recording. Teague had t estified that troopers are taught to count two seconds to determine a safe distance between
cars, but the magistrate ju d g e determined that the c o unter unquestionably showed that the cars were not separated by two seconds. When each car passed in front of a fixed reference point, only one second passed o n the c ounter before the n ext car came. The magistrate j u dge d etermined that this video evidence confirmed Trooper Riefers testimony and also lent credibility t o Trooper Dollar’s “scant testimony.” 4 Both the Government and the defendants presented a permissible view of the evidence. When that occurs, “the factfinder’s choice between them c a n n ot be clearly e rroneous.” Gillyard , 261 F.3d at 509 (quoting Anderson , 470 U.S. at 5 7 4 )

. A s a result, we affirm the district court’s determination that the initial stop was lawful.

4 D ef end ants argue that Troop er D ollar’s tes tim ony w as not s uf f icient to es tablis h the “articulable f

acts ” nec e s s ary to s up p ort reas onable s us picion and thus the m agis trate jud ge erred in accep ting it. While T roop er D ollar’s tes tim ony w as s p ars e, he d id articulate f acts to s up p ort his reas onable s us picion. Sp ecif ically, he ack now led ged the cond itions d uring the d ay of the s top , s tated that the cars w ere traveling at “hi gh w a y s p e e d, ” and exp lained that he tak es the s p eed of the vehicles into account to d eterm ine if they w ould be able to s top in tim e to avoid a collis ion. H e als o tes tif ied that the cars w ere clos er to one hund red f eet ap art than ten f eet ap art, w hich is cons is tent w ith Troop er Rief ers ’s tes tim ony and the v i d e o e v i d ence. Thes e f acts are cons is tent w ith other tes tim ony that has been held s uf f icient to jus tif

y reas onable s us p icion. Cf

. U n i t e d Sta tes v . Flores–M a nja rez , 421 F. Ap p ’x 407, 409 ( 5th Cir. 2011) (p er curiam ) (unp ublis hed) (hold ing that the of f icer p rovid ed s p ecif

ic, articulable f

acts to s up p ort reas onable s us picion w hen he tes tif ied that the cond itions w ere w et and that the vehicles w ere les s than tw o car lengths ap art)

. 10 Case: 11-11228 Document: 00512162491 Page: 10 Date Filed: 03/04/2013No. 11-11228

B. Extent of Detention Appellants next chall e nge the e xtent o f their detention. “Once the purpose of a valid traffic s top has been completed and an officer’s initial suspicions have been verified or dispelled, the detention must end unless th e r e i s a d ditional reasonable suspicion supported b y articulable facts.” United States v. Gonzalez , 328 F .3d 755, 75 8 ( 5th Cir. 2003). During the traffic stop, law enforcement officers are allowed to “request to examine a dr i v e r ’s license a nd vehicle registration or r ental papers [and] to ru n a computer check on b oth.” Brigham , 382 F .3d at 508. O fficers ma y a lso “ask about the purpose and itinerary of a driver’s trip during the traffic s top.” Id. If during these checks ad d itional reasonable suspicion emerges, the detention “may last as long a s is reasonably necessary” to resolve the suspicion. United States v. Fishel , 467 F.3d 8 55, 856 (5th Ci r . 2006). The reasonableness of the length of detention is j udged by “whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.” Brigham , 382 F.3d a t 511. “There is, however, no constitutional stopwatch on traffic stops.” Id. 1. Trooper Dollar Trooper Doll a r articulated several factors informing his suspicion that Wallstrum was engaging in criminal activity. For example, Wall s tru m e xhib ited extreme nervousness in explaining his t r avel itinerary, and the e x p l anation itself was discredited. Wallstrum had indicated that Amarillo was as far west

as h e had t r aveled, b ut this w as contradicted by the New Mexico hotel receipt Trooper Dollar saw in th e front s eat. Additionally , the rental agreement had been expired for three d ays. T rooper D ollar also observed s everal food a nd drink contai n e r s , indicating “hard” travel that w as inconsistent with the trip Wallstrum d escr ib e d

. Finally, the close proximity of the cars indicated that Wallstrum may have been traveling in tandem with one of the other veh i c l es, which i s common in drug trafficking. Trooper Dollar ’ s s e arch revealed

11 Case: 11-11228 Document: 00512162491 Page: 11 Date Filed: 03/04/2013No. 11-11228

tampering w ith several areas of the car, which was c o n s i s t e n t with his drug trafficking suspicion. These fac t o r s were sufficient to provide Trooper Dollar with reasonable suspicion to justify the request to search and continued detention. The evidence gathered from the Camry was t h us properly obtained. See Brigham , 382 F.3d at 512. 2. Trooper Riefers Trooper Riefers also a rticulated several factors informing his suspicion that Bryant a nd C lark w ere engaging in c riminal activity. For example, Bryant began exhibiting extreme signs of n ervousness when a sked if he was transporting anything illegal. Additio nally, Bryant and Clark gave Trooper Riefers c onflicting accounts o f their travel plans. C lark told Trooper Riefers that they were headed to the D a l l a s / F ort Worth area while B ry ant said they were traveling to see his uncle in North Carolina. Trooper Riefers also found the car rental agreement to be s uspicious because the car w as rented in the name of Clark’s girlfriend, who was n ot present, and C lark’s name w as handwritten into the a greement d e spite a separate section indicating that there were no additional authorized drivers. T rooper Riefers also found it suspicious th a t Bryant and Clark were t r aveling along a known drug-trafficking c orridor in a rental c ar, w h o s e i n t e rior indicated “hard” travel b ased on the energy drinks, water bottles, and snack containers within it. The close proxim i t y o f t h e cars also h eightened h is suspicion that the two were traveling i n tandem with at least one other vehicle, which is a common drug-trafficking tactic. Based on the totality of these facts, T r o o per Riefers was justified in continuing the d etention. See, e.g. , Pack , 612 F.3d at 361–62 (finding extreme nervousness, i r reconcilable stories, and the location o f a stop on a highway frequently used by drug smugglers sufficient to establish r easonable suspicion justifying a prolonged detention); Brigham , 382 F.3d at 509 (finding a prolonged

12 Case: 11-11228 Document: 00512162491 Page: 12 Date Filed: 03/04/2013No. 11-11228

detention reasonable b ased the defendant’s presentation o f a fake I.D., his inconsistent explanation for his trip, his extreme nervousness, and the absence of the authorized driver listed on the car rental agreement). Bryant and Clark argue that the length o f the detention was u nreasonable beca u s e T rooper Riefers’s suspicion s h ould have been dispelled after the half-hour consensual

se a r c h y i elded no results. Trooper Riefers testified, however, that his search provided information consistent with h i s earlier suspicion, namely, the lack of receipts for the energy drinks and snacks, the t ampering o f the area under the windshield, and the loose grommets and screws. It was also du r i n g this time that Trooper Riefers learned that the driver that Trooper Dollar p ulled over was telling a similar travel story to Bryant. Based on these add i t i o n a l discoveries and c o g n i z a nt that there is “no constitutional stopwatch on traffic stops,” Brigham , 382 F.3d at 511, we cannot say that Trooper Riefers did not diligently
pursue a means of i nvestiga t i o n t h a t was likely to confirm or dispel his suspicion. As a result, the distric t c o u rt correctly d etermined that reasonable suspicion justified the prolonged detention. C. Consent Bryant and Clark’s final argument is that Bryant di d not conse n t to having the car searched at the DPS office. They do not dispute the vali d i t y of Bryant’s initial consent to search the car but argue that the search at the DPS office constituted a second warrantless search that also required valid consent. “To b e valid, consent to search must be free and vo luntary.” U nited States

v. K elley , 981 F.2d 1464, 1470 (5th Cir. 1993). Voluntariness i s determined from the totality of the circumstances. Id. W e m a ke this d e termination by considering six factors: “(1) the voluntariness of the defendant’s custodial status; (2) the p r e sence of coercive p olice procedures; (3) the extent and level of the defendant’s c ooperation with the police; (4) the d e fendant’s awareness of his right to refuse to c onsent; (5) the defendant’s education and intelligence; and (6)

13 Case: 11-11228 Document: 00512162491 Page: 13 Date Filed: 03/04/2013No. 11-11228

the defendant’s belief that no incriminating evidence will be found.” Jenson , 462 F.3d a t 406. Each of these six factors is r e levant, but no s ingle one i s dispositive. Jones , 234 F

. 3 d a t 2 4 2

. The government h as the burden of proving, by a preponderance of the evidence, that the consent was voluntary. United States v. Shabazz , 993 F.2d 431, 438 (5th Cir. 1993). In analyzing Bryant’s consent, the m agistrate j udge noted that at the time Bryant consented to both the initial search of the c ar and the search at the DPS office, he had all of the documents n ecessary for legal travel in his possession. Cf. Santiago , 310 F.3d at 343 (noting as one ground to support invalid consent t hat the trooper had n ot returned the defendant’s driver’s licens e a n d registration). Additionally, the magistrate judge found no evidence that Trooper Riefers was acting in a coercive fashion. Bryant was cooperative with Trooper Riefers throughout the pr o c e s s e ven though h e h ad b egun to express dissatisfaction w i t h the length of the s earch. Though Bryant w as never explicitly told that he was free to go, he gave an indication that h e was aware he could refuse consent when he previously stated that he would have done so if he had known it was going to take so long. At n o point during the search, h owever, did Bryant withdraw his undisputed initial consent. Instead, when he w as told by Officer Dawson that there w a s r e a sonable suspicion to d e tain him further, Bryant responded, “I’ll let you do your search and then I can be o n my way.” No narcotics were foun d i n B r y a n t ’s c ar so i t is likely that he b elieved no incriminating evidence would be found at the time he gave his consent. Taken as a whole, the balance of the factors tends to support the district court’s find i n g t h a t Bryant voluntarily consented to taking the car to the DPS office. Because there i s nothing in the record to suggest any c l e a r e rror in the district court’s determination that Bryant’s consent was voluntarily given, we affirm.

14 Case: 11-11228 Document: 00512162491 Page: 14 Date Filed: 03/04/2013No. 11-11228 Conclusion For the foregoing reasons, the judgment of the d i s t r i c t c ourt is AFFIRMED.

15 Case: 11-11228 Document: 00512162491 Page: 15 Date Filed: 03/04/2013