United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-4147

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United States of America, *

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Eliseo Tinoco Carrate, *

also known as Tinoco Eliceo, *

also known as Carrate Eliceo *

Tinoco, *

*

Defendant-Appellant. *

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Submitted: April 17, 1997

 Filed: September 4, 1997 

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Before BOWMAN, HANSEN, and MURPHY, Circuit Judges.

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HANSEN, Circuit Judge.
We are told that the correct use of the appellant's surname, short of using both 1

his middle and last name, is to refer to his middle name--Tinoco.

The Honorable William G. Cambridge, Chief Judge, United States District

2

Court for the District of Nebraska, adopting the report and recommendation of the

Honorable Thomas D. Thalken, United States Magistrate Judge for the District of

Nebraska. 

2

Eliseo Tinoco Carrate (Tinoco ) appeals the judgment of the district

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court denying his motion to suppress the evidence regarding a package containing

2

approximately one kilogram of cocaine that was discovered when state troopers

searched the car that Tinoco was driving at the time he was stopped for traffic

violations. In support of his argument that the district court erred in denying his

motion, Tinoco asserts that (1) the state troopers improperly detained him after

completing the purpose of the traffic stop, (2) he did not consent to the search of the

automobile, and (3) even if he did consent to the search, his consent was not voluntary.

After reviewing the parties' arguments, we affirm the district court's decision to deny

Tinoco's motion to suppress. 

I.

Just before midnight on the evening of February 16, 1996, Tinoco was driving

eastbound on Interstate 80 in a 1990 Oldsmobile with Illinois license plates when

Nebraska State Highway Patrol Troopers Pelowski and Wagner stopped him near

North Platte, Nebraska, for an inoperative headlight and a speeding violation. Trooper

Pelowski approached the driver's side window and asked Tinoco for his driver's license

and registration. The driver's license identified Tinoco as Eliseo Tinoco Carrate of

Santa Ana, California. The registration indicated that the owner of the vehicle was

Guadalupe Gonzalez of Chicago, Illinois. Trooper Pelowski then inquired as to the

origin and destination of Tinoco's trip. Tinoco, a Hispanic male, answered, in broken
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English, that he was en route from California to Chicago and that he was transporting

the car for a friend. 

Troopers Pelowski and Wagner returned to their patrol car and ran a computer

records check on both Tinoco and the vehicle. The records check revealed that Tinoco

was not wanted on any arrest warrants and that his license was not suspended, but it

did indicate that Tinoco had an unspecified criminal record. There were no alerts on

the Oldsmobile. The troopers decided to issue Tinoco a warning ticket for the speeding

infraction and a violation notice for the inoperative headlight. Based on their

observation of several factors that the troopers' training and experience caused them to

be suspicious that Tinoco may be transporting illegal drugs, they also decided to ask

Tinoco for permission to search the vehicle.

Trooper Pelowski returned to the driver's side window of the Oldsmobile with

the ticket and warning, while Trooper Wagner stationed himself at the rear of the

vehicle. Trooper Pelowski asked Tinoco to step out of the car and go to the rear of the

vehicle so that he could explain the ticket and warning to Tinoco. What else, if

anything, was said by Trooper Pelowski at this point in time is disputed by the parties.

Tinoco maintains that Trooper Pelowski also told him that the troopers had the right to

search the Oldsmobile because Tinoco was on probation in California. Tinoco also

claims that as soon as he got out of the car, Trooper Pelowski asked Tinoco if Tinoco

could open the trunk, thus, according to Tinoco, explaining why Tinoco turned around

and reached back into the car to retrieve the keys from the ignition. Trooper Pelowski

denies making these statements and maintains that he did not ask to search the vehicle

until after Tinoco had walked to the rear of the car and had signed the traffic ticket.

While the traffic stop and subsequent search of the vehicle were videotaped by a

camera mounted in the front windshield area of the troopers' patrol car, there is no

accompanying audio recording to verify what statements were actually made. 

 
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Nevertheless, it is undisputed, as evidenced by the videotape, that after Tinoco

got out of the car, he turned around and reached back into the car and took the keys out

of the ignition. Tinoco then walked to the back of the Oldsmobile where both Troopers

Pelowski and Wagner were now standing, and he immediately inserted the car keys

into the trunk lock. Trooper Pelowski prevented Tinoco from opening the trunk and

explained the significance of the ticket and warning that he was giving to Tinoco.

Tinoco signed the ticket using the trunk lid as a writing surface. Both troopers maintain

that after returning Tinoco's driver's license and the registration, Trooper Pelowski

asked Tinoco if he had any weapons, illegal drugs, or alcohol in the Oldsmobile, and

Tinoco responded "No." Both troopers also claim that Trooper Pelowski then asked

Tinoco if they could look in the car and he said they could and he opened the trunk.

Tinoco, however, claims that Trooper Pelowski did not ask him these questions and

that after signing the ticket, Tinoco opened the trunk to comply with Trooper

Pelowski's alleged earlier directive to open the trunk. 

After Tinoco opened the trunk, the troopers began their search of the entire

vehicle. While Trooper Pelowski searched the trunk, Trooper Wagner searched the

front of the car. Approximately ten minutes later, Trooper Wagner discovered a wellwrapped package behind the glove compartment and underneath the dashboard of the

car. Trooper Pelowski then disassembled the dashboard and removed the package.

The package contained a one-kilogram block of powder cocaine. 

Tinoco was charged with one count of possession with intent to distribute

cocaine in violation of 21 U.S.C. § 841(a)(1), and with one count of criminal forfeiture

of the 1990 Oldsmobile under 21 U.S.C. § 853(a)(2). After the district court denied

Tinoco's motion to suppress, Tinoco entered a conditional plea of guilty to both counts,

reserving the right to appeal the district court's adverse suppression ruling. Tinoco then

received a sentence of 60 months' imprisonment with five years of supervised release.

Tinoco now appeals the district court's denial of his motion to suppress.
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II.

Tinoco does not challenge the validity of the initial traffic stop, but he argues that

the troopers were not justified in continuing to detain him after they handed him his

traffic citations. An officer must have a reasonable, articulable suspicion that a person

is involved in criminal activity unrelated to the traffic violation before the officer may

expand the scope of the traffic stop and continue to detain the person for additional

investigation. See United States v. Ramos, 42 F.3d 1160, 1163 (8th Cir. 1994), cert.

denied, 115 S. Ct. 2015 (1995); United States v. White, 42 F.3d 457, 460 (8th Cir.

1994). "While we review the district court's findings of fact for clear error, we review

de novo the district court's ultimate finding of reasonable suspicion." United States v.

Dodson, 109 F.3d 486, 488 (8th Cir. 1997). In determining whether reasonable

suspicion existed, "[w]e look to the totality of the circumstances, in light of the officer's

experience." Id. See also United States v. Bloomfield, 40 F.3d 910, 918 (8th Cir.

1994) (en banc).

In the circumstances of this case, we believe that the troopers were justified in

asking Tinoco the two questions after issuing the traffic citations. The troopers testified

that the following factors raised their suspicion that Tinoco may have been transporting

drugs: (1) Tinoco was not the owner of the vehicle, (2) Tinoco was in route from

California to Illinois, (3) California is a point of origin for illegal drugs, (4) Chicago is

a common destination for the shipment of illegal drugs, (5) Tinoco had very little

clothing in the car to suggest a legitimate trip, (6) the six year-old car had high mileage,

and (7) Tinoco had a prior criminal record in California. The experience and training

of the troopers had informed them that the listed factors were consistent with and

indicative of drug courier characteristics. We find that the facts of this case collectively

provided the troopers with a reasonable suspicion that Tinoco was transporting illegal

drugs, thus justifying their further questioning, detention, and investigation of Tinoco.

See Ramos, 42 F.3d at 1163 ("A trained officer may properly infer from a collection
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of circumstances, no one of which itself indicates illegal activity, that further inquiry

is appropriate."). 

III.

Tinoco next argues that he did not consent to the search of the Oldsmobile; he

merely complied with Trooper Pelowski's alleged instruction to open the trunk. Tinoco

relies heavily on the videotaped account of the traffic stop to make his argument. As

mentioned above, the videotape reveals that a few seconds after Tinoco stepped out of

the car, he turned around and leaned back into the car to retrieve the keys from the

ignition. While Tinoco made these movements, the troopers took only a small step

toward Tinoco. Tinoco claims that the troopers' casual response to Tinoco's abrupt

movement indicates that the troopers knew that Tinoco was reaching merely for the car

keys, as opposed to something more threatening, thus suggesting that Trooper Pelowski

had, in fact, directed Tinoco to open the trunk. Tinoco reasons that if the troopers had

not told him to open the trunk, as they maintain, they would have made more

apprehensive movements towards Tinoco, fearing that he was reaching into the car for

a weapon. Additionally, Tinoco claims that it is unlikely that Trooper Pelowski asked

him for consent to search the car during the brief interval between the time Tinoco

finished signing the ticket and the time he opened the trunk, as the troopers claim.

The district court rejected Tinoco's factual rendition and found that the troopers'

slight movement toward Tinoco as he reached back into the car "supports the

proposition that the Troopers were surprised by [Tinoco's] movement and that they

halted their movement toward [Tinoco] when he immediately appeared with the keys

from the ignition." (Appellant's Adden. at 21a.) The court then considered the

possibility that Tinoco voluntarily brought the keys to the rear of the car and attempted

to open the trunk before being asked to do so in order to misdirect the troopers by

acting as if he had nothing to hide, knowing that the package of cocaine was behind the

dashboard of the car. The district court thus concluded that Tinoco was first asked to
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consent to a search of the car after he had signed the traffic citation and that he did, in

fact, consent to such a search. 

We will overturn a district court's determination regarding consent to search only

if it is clearly erroneous. See United States v. Black, 88 F.3d 678, 680 (8th Cir. 1996),

cert. denied, 117 S. Ct. 994 (1997). We consider this issue in light of the totality of the

circumstances. Id. While the videotape reveals that Tinoco's interpretation of the

movements that occurred during the traffic stop might be plausible, it does not establish

that the district court's alternative conclusion is clearly erroneous. Nor does the

videotape contradict the direct testimony of the troopers indicating that they did not

direct Tinoco to open the trunk nor tell him that they had the right to search his car

because he was on probation. The district court was free to believe the troopers'

statement that they asked Tinoco if they could search his car after he had signed the

traffic ticket and that Tinoco then allowed them to conduct the search. Moreover, we

believe that there was sufficient time for Trooper Pelowski to ask Tinoco for his

consent during the interval between the time Tinoco signed the ticket and the time he

opened the trunk. We find no clear error in the court's conclusion that Tinoco

consented to the search.

IV.

Finally, Tinoco asserts that even if he did consent to the search, he did not

voluntarily do so. Tinoco claims that his limited ability to speak English combined with

the fact that the troopers did not provide him with a written consent-to-search form or

a verbal admonition that he was free to leave indicates that his consent was not

voluntarily given. The district court disagreed and found that Tinoco voluntarily

consented to the search. 

The voluntariness of a person's consent to search is a question of fact that we

review under the clearly erroneous standard. See Schneckloth v. Bustamonte, 412 U.S.
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218, 227 (1973); United States v. Czeck, 105 F.3d 1235, 1239 (8th Cir. 1997). We

have previously listed eleven factors relating to the characteristics of the person giving

the consent and the environment in which the consent was provided that are relevant

in determining whether such consent was voluntarily offered. See United States v.

Chaidez, 906 F.2d 377, 381 (8th Cir. 1990). Tinoco's age, sobriety, and previous

experience with the criminal justice system in California all suggest that Tinoco

voluntarily consented to the search. Despite Tinoco's supposed limited ability to speak

English, he understood and appropriately answered all of the troopers' questions, and

he was able to testify at the suppression hearing as to the subject matter of the

conversation that he had had with the troopers on the night in question. Furthermore,

even though the troopers did not provide Tinoco with a written consent form or

explicitly inform him of his right to withhold his consent, such actions are not necessary

predicates to establish that a person voluntarily consented to a search. See Ohio v.

Robinette, 117 S. Ct. 417, 421 (1996).

Additionally, the environment in which Tinoco consented to the search supports

the district court's finding that Tinoco's consent was voluntary. Tinoco had been

detained for only a short amount of time when he consented to the search; the troopers

did not threaten or physically intimidate Tinoco; they did not make any promises or

misrepresentations to him; Tinoco was not in custody or under arrest at the time he

consented; he was on a public interstate; and he idly stood by while the troopers

searched his car, never indicating that he objected to the search. Thus, we find no clear

error in the district court's determination that Tinoco voluntarily consented to the

search.

V.

Accordingly, we affirm the judgment of the district court.
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A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.