IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

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UNITED STATES OF AMERICA

v. CRIMINAL NO. 16-00056-CG-C

TELESFORO LOZANO

ORDER

This matter is before the Court on Defendant’s motion to suppress (Doc. 13), 

and the United States’ response (Doc. 16). For the reasons stated herein, 

Defendant’s motion to suppress will be denied.

I. BACKGROUND

The following facts were established at the suppression hearing held in this 

matter on May 10, 2016:

On August 23, 2015, at around 12:25 p.m., Trooper William Barnes initiated 

a traffic stop of a black 2002 Ford F150 Harley Davidson Edition truck with a 

Chihuahua Mexico license plate driving East on I-10 in Mobile Alabama. Barnes 

had been traveling behind the truck and observed it weaving and crossing over the 

fog line. Another officer, Trooper Jeremiah Headley, stopped behind Barnes and 

assisted in the traffic stop. Barnes approached the passenger side of the truck and 

noticed that the truck was very clean on the outside, but was dirty on the inside. 

Barnes questioned the driver, Defendant Telesforo Lozano, who speaks Spanish and 

did not appear to understand English. The Defendant was sweating profusely. 

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Barnes attempted to use some Spanish, but Barnes does not know much Spanish. 

Defendant gave Barnes his license, a border crossing card, and a registration for the 

vehicle. The drivers license was issued from the state of Coahuila, Mexico, but the 

vehicle had just been registered five days ago, on August 18, 2015, in the state of 

Chihuahua, Mexico. Defendant presented an insurance card that had been issued 

just two days prior, on August 21, 2015, from the Defendant’s home state, Coahuila. 

In the back seat of the truck, there was a tow bar that could be used to tow a car 

along with a toolbox and a jack. However, the Defendant’s truck did not have a 

hitch or ball on the back to which the tow bar could attach. Barnes attempted to 

question the Defendant about what he was doing and the Defendant offered that he 

was going to Atlanta. Muddled conversation was held between the Defendant and 

Barnes from which Barnes concluded the Defendant might have said he was going 

to Atlanta to buy a car, but because of the language barrier, he could not be sure. 

Barnes asked him if he had money to pay for the car and the Defendant opened his 

wallet to show Barnes his money, but Barnes said there was not very much money 

in his wallet. The Defendant did not appear to have enough money to purchase a 

car.

Barnes called a friend, Lieutenant Danny Martinez, who works as a Trooper 

in South Texas and is fluent in Spanish, to help him communicate with the 

Defendant. Barnes told Martinez what he thought the Defendant had said and 

asked Martinez to question the Defendant. Martinez talked to the Defendant via 

speakerphone and relayed the Defendant’s answers to Barnes. Martinez said the 

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Defendant did report that he was going to Atlanta to buy a car, but that he did not 

know what kind of car, how much it would cost or where he was to pick it up. The 

Defendant was to contact someone for the details when he got to Atlanta, but he 

could not come up with the phone number of his contact. Martinez and Barnes 

reported that going to Atlanta to buy a car was a common story they hear a lot, that 

is often legitimate, but is also easily exploited. Both Martinez and Barnes reported 

that the Defendant seemed nervous. Barnes also noticed there was a drywall screw 

in the windshield cowling. It was obviously a non-factory screw indicating 

tampering in an area allowing access too the firewall which is between the interior 

of the car and the engine. According to Barnes, the firewall compartment is the 

number one place for concealment of drugs and you can get to it by removing the 

cowling around the windshield. Barnes believed the screw to be evidence of 

tampering and told Martinez that the firewall was “all jacked up.” Martinez told 

Barnes that he thought he should not let the Defendant go1.

Barnes also called another officer, Trooper William Pullins, who has a canine 

used for drug sniffing, to come out to the scene. Pullins arrived and waited for 

Barnes to tell him they needed him. Barnes called Martinez and texted him a 

picture of the Defendant’s registration because Barnes had trouble discerning the 

information because it was in Spanish. Barnes first thought the registration was 

 1 Martinez testified that based upon the defendant’s story and the registration of 

the truck being very recent and in a state different than the defendant’s residence, 

he believed it to be a “throw down” vehicle: one which the cartels provide to an 

individual for transporting drugs. The cartels provide cheap vehicles which the 

transporter can keep if he makes it back to Mexico with the vehicle after the 

journey.

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expired, but the date he was looking at was actually the date of issue, not the 

expiration date. Martinez helped Barnes understand the information on the 

registration and Barnes used the information to fill out the warning he was 

preparing for the Defendant.

Barnes gave the Defendant a warning for improper lane usage and gave him 

back all of his documents, but then proceeded to ask the Defendant more questions.2 

It took about 28 minutes from the time Barnes started to pull the Defendant over 

until the time he issued the warning and gave the Defendant back all of his 

documents. Barnes asked him to confirm again whether the vehicle was his and 

then asked him if he would consent to have his vehicle searched. The Defendant 

appeared to consent, but Barnes handed him a consent form to sign that was in 

Spanish and told him to read it and sign if he consented. The Defendant looked at 

the form, but seemed confused. The Defendant asked Barnes something in Spanish 

and Barnes decided he needed to get Martinez back on the phone to explain the 

consent form to the Defendant. Martinez again spoke with the Defendant and 

advised him he was free to deny consent. The Defendant, after talking with 

Martinez, decided not to give consent for the search. Barnes then called Trooper 

Pullins, who was waiting in his car, to have his canine check the vehicle. The 

 2 When Barnes gave Defendant back his documents, defense counsel contends 

Barnes told the Defendant he was free to go or at least that there were hand 

motions used that indicated the Defendant could go. But Barnes denied telling the 

Defendant he could go and, after reviewing the video from the trooper’s dash 

camera, the Court concludes that Barnes never told the Defendant he could go. 

There was clearly some miscommunication going on between the two of them and it 

is possible the Defendant believed he was free to go for a second, but Barnes does 

not appear to say or indicate that the Defendant is free to go.

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canine gave a positive alert near the area where Barnes had noticed the odd screw 

in the windshield cowling. Barnes then told the Defendant that the dog had alerted 

and that they were going to search the vehicle.

Barnes popped the hood of the car and saw that the engine had been wiped 

down clean and there was fresh paint. Barnes then had the vehicle taken back to 

the trooper headquarters because he knew there was a good chance he would render 

the vehicle disabled if he proceeded to take it apart to search for drugs. Packages 

containing 4.8 kilograms of a substance that tested positive for cocaine were 

reportedly found in the engine of the Defendant’s vehicle and Defendant was 

charged with violating 21 U.S.C. § 841(a)(1).

II. ANALYSIS

The issue is whether the prolonged detention of Defendant and investigation 

by Trooper Barnes into matters unrelated to the initial traffic stop are supported by 

reasonable suspicion. The Fourth Amendment protects “[t]he right of the people to 

be secure in their persons, houses, papers, and effects, against unreasonable 

searches and seizures.” U.S. CONST. amend. IV. Under the exclusionary rule, 

evidence derived from a search that violates the Fourth Amendment cannot be used 

in a criminal trial against the victim of the illegal search and seizure. United 

States v. Perkins, 348 F.3d 965, 969 (11th Cir. 2003).

In a recent opinion, the United States Supreme Court re-stated the relevant 

law and expanded on the matter at issue:

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A seizure for a traffic violation justifies a police investigation of that 

violation. “[A] relatively brief encounter”, a routine traffic stop is 

“more analogous to a so-called ‘Terry stop’ . . . than a formal arrest.” 

Knowles v. Iowa, 525 U.S. 113, 117 (1998) (quoting Berkemer v. 

McCarty, 468 U.S. 420, 439 (1984), in turn citing Terry v. Ohio, 392 

U.S. 1 (1968)). See also Arizona v. Johnson, 555 U.S. 323, 330 (2009). 

Like a Terry stop, the tolerable duration of police inquiries in the 

traffic-stop context is determined by the seizure’s “mission”––to 

address the traffic violation that warranted the stop, Caballes, 543 

U.S., at 407, and attend to related safety concerns, infra, at 6–7. See 

also United States v. Sharpe, 470 U.S. 675, 685 (1985); Florida v. 

Royer, 460 U.S. 491, 500 (1983) (plurality opinion) (“The scope of the 

detention must be carefully tailored to its underlying justification.”). 

Because addressing the infraction is the purpose of the stop, it may 

“last no longer than is necessary to effectuate th[at] purpose.” Ibid. 

See also Caballes, 543 U.S., at 407. Authority for the seizure thus 

ends when tasks tied to the traffic infraction are–or reasonably should 

have been–completed. See Sharpe, 470 U.S., at 686 (in determining 

the reasonable duration of a stop, “it [is] appropriate to examine 

whether the police diligently pursued [the] investigation”).

* * * *

The seizure remains lawful only “so long as [unrelated] inquires do not 

measurably extend the duration of the stop.” 555 U.S., at 333. . . . An 

officer, in other words, may conduct certain unrelated checks during an 

otherwise lawful traffic stop. But . . . [an officer] may not do so in a 

way that prolongs the stop, absent the reasonable suspicion ordinarily 

demanded to justify detaining an individual.

Rodriguez v. United States, 575 U.S. ___, 135 S. Ct. 1609, 1614–615 (2015). Thus, 

absent articulable reasonable suspicion of criminal activity, detention beyond what 

is necessary to complete the traffic stop is unconstitutional. Id. at 1616. 

In determining whether reasonable suspicion exits, a court “must look at the 

‘totality of the circumstances’ of each case to see whether the detaining officer has a 

‘particularized and objective basis’ for suspecting legal wrongdoing.” United States 

v. Arvizu, 534 U.S. 266, 271 (2002) (internal citation omitted); United States v. 

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Cortez, 449 U.S. 411, 417 (1981). “It is clear that an inchoate and unparticularized 

suspicion or hunch of criminal activity is not enough to satisfy the minimum level of 

objectivity.” United States v. Perkins, 348 F.3d 965, 970 (11th Cir. 2003) (internal 

citations and quotations omitted). “Like the determination of probable cause 

discussed in Illinois v. Gates, the relevant inquiry in evaluating the presence of 

reasonable suspicion is “‘not whether particular conduct is “innocent” or “guilty,” 

but the degree of suspicion that attaches to particular types of noncriminal acts.’”

United States v. Tapia, 912 F.2d 1367, 1370–371 (11th Cir. 1990) (quoting Terry v. 

Ohio, 392 U.S. 1, 21 (1968)). Objectively reasonable suspicion of illegal activity is 

justified under circumstances such as no proof of ownership of the vehicle, no proof 

of authority to operate the vehicle, and inconsistent statements about the 

destination. United States v. Pruitt, 174 F.3d 1215, 1220 (11th Cir. 1999). 

Furthermore, nervous behavior coupled with additional factors can form the basis of 

reasonable suspicion that criminal activity is afoot. See, e.g., United States v. Sims, 

385 F.3d 1347, 1354–355 (11th Cir. 2004) (finding reasonable suspicion based on 

nervous conduct, a prior history of drugs, and a questionable story about the 

defendant’s travel plans); United States v. Payne, 2008 WL 4671778, at *3 (M.D. 

Ala. Oct. 21, 2008) (finding reasonable suspicion where the defendant exhibited a 

nervous demeanor, the officer smelled marijuana emanating from the vehicle, and 

observed “blunt powder” in the car). 

In the instant case, Trooper Barnes lawfully conducted a routine stop of 

Defendant’s vehicle. Defendant complied with the stop and provided his license, a 

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border crossing card, and a registration for the vehicle. However, it was suspicious 

that the drivers license was issued from Coahuila, but the vehicle had just been 

registered five days ago, on August 18, 2015, in Chihuahua, Mexico. His insurance 

card had also been issued just two days prior, which Barnes thought was suspicious. 

The Defendant’s story about where he was going and what he was doing was also

suspicious since he did not know what kind of car he was going to pick up, where in 

Atlanta he was going to pick it up from, or how much it would cost. The Defendant 

also had a tow bar, but the Defendant’s truck did not have a hitch or ball on the 

back to which the tow bar could attach. The drywall screw in the windshield 

cowling was also evidence that the car had been tampered with and that contraband 

may have been hidden inside the vehicle. In addition, the Defendant was sweating 

profusely and seemed nervous. Martinez agreed that it seemed suspicious and he 

thought Barnes should check further. Moreover, the truck was coming from Mexico, 

a drug source area, and purportedly going to Atlanta, a drug hub area.

Although the time it took Barnes to conduct the initial stop was longer than 

a traffic stop might normally take, the length of the stop was reasonable given that 

the Defendant and Barnes could not understand each other. Because of the 

language barrier Barnes could not obtain even the basic information he needed to 

fill out the warning citation without calling and talking to someone fluent in 

Spanish. Trying to converse with the Defendant and ultimately calling Martinez to 

relay information between the Defendant and Barnes took considerable time. The 

time from the initial stop until Defendant was given back his documents lasted only 

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so long as was necessary to address the infraction that was the purpose of the stop.

Under the circumstances, the court finds that the subsequent questioning 

and prolonged detention was justified by reasonable suspicion formed during the 

initial stop, before Trooper Barnes returned the Defendant’s documentation. The 

totality of the circumstances demonstrate that Trooper Barnes had a particularized 

and objective basis for suspecting legal wrongdoing prior to completing the tasks 

tied to the traffic infraction. And once the drug dog alerted to the vehicle, the 

reasonable suspicion flowered into probable cause. United States v. Tamari, 454 

F.3d 1259, 1264-1265 (11th Cir. 2006).

III. CONCLUSION

Based on the foregoing, Defendant’s motion to suppress (Doc. 13) is 

DENIED.

DONE and ORDERED this 12th day of May, 2016.

/s/ Callie V. S. Granade

SENIOR UNITED STATES DISTRICT JUDGE

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