United States v. Garcia-Campos

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT May 31, 2005

Charles R. Fulbruge III Clerk No. 04-30647 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAFAEL GARCIA-CAMPOS, also known as Rafael G. Campos,

Defendant-Appellant.

* * * * * * Consolidated with No. 04-30742 * * * * * * UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NANCY CAMPOS, Defendant-Appellant.

* * * * * * Consolidated with No. 04-30857 * * * * * *

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN C. MACEDO-CAMPOS, also known as Juan Macedo, also known as Juan Macedo-Campos

Defendant-Appellant. No. 04-30647 c/w No. 04-30742 & No. 04-30857 -2-

-------------------- Appeals from the United States District Court for the Western District of Louisiana USDC No. 5:03-CR-50121-3-MPH --------------------

Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

In this consolidated appeal, Rafael Garcia-Campos, his

sister Nancy Campos, and their uncle Juan Macedo-Campos appeal

from their conditional guilty-plea convictions of conspiracy to

possess with intent to distribute five or more kilograms of

cocaine, in violation of 21 U.S.C. § 846. All three defendants

moved to suppress the cocaine that was seized from the Chevrolet

Suburban in which they were traveling, and, after a single

suppression hearing before the magistrate judge, the district

court denied the motions. The district court sentenced Garcia-

Campos to 120 months in prison, Nancy Campos to 51 months in

prison, and Macedo-Campos to 121 months in prison. Each was also

sentenced to five years of supervised release.

Pursuant to their conditional pleas, all three defendants

challenge the denial of their motions to suppress. In those

motions, the defendants had argued that the initial stop of the

Suburban had violated their Fourth Amendment rights and that the

state trooper who stopped them had unconstitutionally extended

his questioning beyond what was necessary to dispel his original

reason for stopping them. At that time, they did not explicitly

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 04-30647 c/w No. 04-30742 & No. 04-30857 -3-

challenge the voluntariness of Macedo-Campos’s subsequent consent

to a search of his Suburban, except for a contention by Nancy

Campos that the allegedly illegal seizure “taints the alleged

voluntariness of the consent to search.” In their appellate

briefs, the defendants no longer argue that the initial stop was

invalid. With slight variations in their contentions, they all

argue that the duration of the detention unconstitutionally

exceeded the reason for the stop and, for the first time on

appeal, they specifically contend that Macedo-Campos’s consent

was obtained involuntarily.

The suppression-hearing evidence, which consisted primarily

of the testimony of Louisiana state trooper Sergeant Don Campbell

and a videotape of the traffic stop, may be summarized as

follows: Sergeant Campbell pulled over Macedo-Campos’s Suburban

on the afternoon of November 15, 2003, after he observed it cross

over the center-line and “fog line” several times, while

traveling on eastbound Interstate 20 in northwestern Louisiana.

The parties agree that this stop was valid. Macedo-Campos was

driving, Garcia-Campos was in the front passenger seat, and Nancy

Campos was sitting in a rear seat. After Campbell summoned

Macedo-Campos to the rear of the Suburban, Macedo-Campos “fumbled

around” while looking for his driver’s license. The license was

from California although the Suburban had Texas license plates;

Macedo-Campos explained that he had only recently moved from

California to Houston and had not yet had time to get a new

driver’s license. Macedo-Campos showed Sergeant Campbell his No. 04-30647 c/w No. 04-30742 & No. 04-30857 -4-

“bad” right rear tire, which he said was causing the Suburban to

“drift” out of its lane. Campbell believed at that time that

Macedo-Campos’s explanation of this problem “ma[d]e sense.”

Sergeant Campbell continued to question Macedo-Campos, based

on his concern that the defendants should replace the tire soon.

He thought that Macedo-Campos was “extremely nervous.” Macedo-

Campos told him that they were traveling to Mississippi, but when

asked where in Mississippi, Macedo-Campos “stammered around”

before answering “Mississippi City,” a town that Campbell did not

believe to exist. (The town of Mississippi City was annexed by

the city of Gulfport, Mississippi in 1965.) Campbell’s

suspicions having been raised, he went to the passenger’s side

window to speak with Garcia-Campos, apparently the best English

speaker in the group. Garcia-Campos told him that they were

traveling to see friends and relatives in Mississippi, but he

could not name the town to which they were traveling and stated

that he did not have the friends’ and relatives’ phone number.

Macedo-Campos did not have such a phone number, either. Sergeant

Campbell took the defendants’ identification cards to his patrol

unit and ran a criminal-background check, which turned up

nothing. Nonetheless, while in the car, he called in a back-up

patrol unit.

Campbell emerged from his patrol unit approximately 10

minutes later and told Macedo-Campos that he needed to get the

bad tire repaired, but he did not issue a traffic citation. He

simultaneously returned to Macedo-Campos the defendants’ No. 04-30647 c/w No. 04-30742 & No. 04-30857 -5-

identification cards. Seconds later, Campbell told Macedo-

Campos, “I’m still confused about what you’re doing,” and asked

him whether he had any weapons or drugs in the Suburban. When

Macedo-Campos said “no,” Campbell asked him for consent to search

the Suburban, to which Macedo-Campos appeared to agree. Campbell

had also brought from his patrol unit a Spanish-language consent-

to-search form, which he gave to Macedo-Campos. Macedo-Campos

looked over the form for one or two minutes, and, after asking

Campbell one question about it, signed the form. Approximately

one minute after he signed the form, the back-up trooper arrived.

Campbell’s ensuing search of the Suburban led to the discovery,

of 16 bundles of cocaine weighing approximately 22 pounds, hidden

in a compartment under the vehicle’s rear-most seat.

“The standard of review for a motion to suppress based on

live testimony at a suppression hearing is to accept the trial

court’s factual findings unless clearly erroneous or influenced

by an incorrect view of the law.” United States v. Outlaw, 319

F.3d 701, 704 (5th Cir. 2003) (citations and internal quotation

marks omitted). Under Terry v. Ohio, 392 U.S. 1 (1968), “police

officers may stop and briefly detain an individual for

investigative purposes if they have reasonable suspicion that

criminal activity is afoot.” Goodson v. City of Corpus Christi,

202 F.3d 730, 736 (5th Cir. 2000) (citing Terry, 392 U.S. at 30).

Under Terry’s two-pronged test, “[c]ourts first examine whether

the officer’s action was justified at its inception, and then

inquire whether the officer’s subsequent actions were reasonably No. 04-30647 c/w No. 04-30742 & No. 04-30857 -6-

related in scope to the circumstances that justified the stop.”

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

banc) (citing Terry, 392 U.S. at 19-20). “‘Reasonable suspicion

must be supported by particular and articulable facts, which,

taken together with rational inferences from those facts,

reasonably warrant an intrusion.’” Goodson, 202 F.3d at 736

(citation omitted). “As a general matter, the decision to stop

an automobile is reasonable where the police have probable cause

to believe that a traffic violation has occurred.” Whren v.

United States, 517 U.S. 806, 810 (1996). In the instant appeal,

it is not disputed that Campbell had a specific, articulable

basis for stopping the Suburban. See Terry, 392 U.S. at 21.

Under the second Terry prong, the issue is whether an

officer’s actions after legitimately stopping the vehicle were

reasonably related either to the circumstances that justified the

stop or to dispelling his reasonable suspicion developed during

the stop. See Brigham, 382 F.3d at 507. “This is because 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. (citing

United States v. Dortch, 199 F.3d 193, 200 (5th Cir. 1999));

Florida v. Royer, 460 U.S. 491, 500 (1983). In a valid traffic

stop, an officer may request a driver’s license, insurance

papers, vehicle registration, run a computer check thereon, and

issue a citation. United States v. Shabazz, 993 F.2d 431, 437

(1993). Moreover, the court has “‘reject[ed] any notion that a No. 04-30647 c/w No. 04-30742 & No. 04-30857 -7-

police officer’s questioning [of a detainee during a traffic

stop], even on a subject unrelated to the purpose of a stop, is

itself a Fourth Amendment violation.’” Brigham, 382 F.3d at 508

(quoting Shabazz, 993 F.2d at 436) (emphasis in original). This

is because “‘detention, not questioning, is the evil at which

Terry’s second prong is aimed.’” Id. (quoting Shabazz, 993 F.3d

at 436). Questioning during a valid stop may involve a

“graduated response to emerging facts.” Id. at 509.

The defendants rely heavily on several decisions in which

this court has held that the seizure of drugs from vehicles

should have been suppressed and in which the searches began as

valid traffic stops and involved both a computerized check of the

subject’s driver’s license and registration and detention of the

subjects beyond the time necessary to dispel suspicion of

wrongdoing. For one reason or another, these decisions--United

States v. Santiago, 310 F.3d 336 (5th Cir. 2002); United States

v. Valadez, 267 F.3d 395 (5th Cir. 2001); United States v. Jones,

234 F.3d 234 (5th Cir. 2000); Dortch, supra–-are distinguishable

from the instant case. This is mainly because Campbell’s

questions to the defendants were at least arguably related to a

legitimate concern that they replace or repair the Suburban’s bad

tire and because the Terry stop was not completed until the

criminal-background check was finished and Campbell returned the

identification cards to Macedo-Campos.

Even if Sergeant Campbell had unconstitutionally extended

the traffic stop for a moment after dispelling his suspicions No. 04-30647 c/w No. 04-30742 & No. 04-30857 -8-

about Macedo-Campos’s erratic driving, a subsequent consent “may,

but does not necessarily, dissipate the taint of a [prior] fourth

amendment violation.” Jones, 234 F.3d at 242 (citation and

internal quotation marks omitted). In such a case, the

admissibility of the challenged evidence turns on a two-pronged

inquiry: “1) whether the consent was voluntarily given;

and 2) whether the consent was an independent act of free will.”

Id. (citation omitted). “‘The first prong focuses on coercion,

the second on causal connection with the constitutional

violation.’” Id. (citation omitted). “‘In order to satisfy the

consent exception, the government must establish that consent to

search was freely and voluntarily given and that the individual

who gave consent had authority to do so’ and ‘must prove by a

preponderance of the evidence that consent was voluntary and

effective.’” Id. (citation and footnote omitted). This court

looks to six factors in reviewing the voluntariness of a consent

to search: “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 education and intelligence; and 6) the

defendant’s belief that no incriminating evidence will be found.”

Jones, 234 F.3d at 242 (citing Shabazz, 993 F.2d at 438). No

single factor is dispositive. Id.

Only after the suppression hearing have the defendants

raised explicit arguments concerning the voluntariness of Macedo- No. 04-30647 c/w No. 04-30742 & No. 04-30857 -9-

Campos’s consent. Prior to that time, they contended only that

the consent was vitiated by the Fourth Amendment violation that

allegedly occurred prior that time. This court reviews any

arguments not raised before a district court at a suppression

hearing for plain error. United States v. Smith, 273 F.3d 629,

632-33 (5th Cir. 2001). To establish plain error, a defendant

must show that (1) there was error; (2) the error was plain, that

is, “clear” or “obvious”; and (3) the error affected the

defendant’s substantial rights. See United States v. Calverley,

37 F.3d 160, 162-64 (5th Cir. 1994) (en banc). If all three

elements are satisfied, the reviewing court has discretion to

correct the error if it affects the fairness, integrity, or

public reputation of the judicial proceedings. United States v.

Olano, 507 U.S. 725, 732 (1993).

Because the defendants failed to place the consent issue

squarely before the magistrate judge prior to the hearing on

their motions to suppress, it is unsurprising that little, if

any, evidence regarding the six factors relevant to that issue

was presented by either the Government or defendants at the

hearing. The evidence that was presented showed that Sergeant

Campbell was quite hectoring in questioning the defendants, but

does not reflect “coercive police procedures.” See Jones, 234

F.3d at 242. The evidence also indicated that Macedo-Campos’s

comprehension of the English language--and of Campbell’s

questions–-was not very good. Nonetheless, Macedo-Campos appears

to have taken his time reading the Spanish-language consent-to- No. 04-30647 c/w No. 04-30742 & No. 04-30857 -10-

search form, and he then signed the form. He has not suggested

that he could not read the form. No specific evidence regarding

his education or intelligence was presented. As the Government

argues, Campbell was not required to inform Macedo-Campos of his

right to refuse to consent. See Ohio v. Robinette, 519 U.S. 33,

40 (1996). Given the inadequacy of the suppression-hearing

evidence and the fact that this inadequacy may be ascribed

largely to the defendants’ failure to squarely argue the consent

issue in their suppression motions, the defendants have shown no

“clear” or “obvious” error as to the district court’s conclusion

that Macedo-Campos’s consent to the search was voluntary.

Because the defendants have not established that the

district court erred in denying their motions to suppress, the

convicitions and sentences are AFFIRMED.