United States v. Nunez

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS July 1, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-11140 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSEPH NUNEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:03-CR-111-1-Y --------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Joseph Nunez appeals his guilty-plea conviction for

possession of a controlled substance with intent to distribute, in

violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A).

Nunez, the driver and owner of the commercial truck in which

the controlled substance was discovered, argues that the district

court erred when it denied his suppression motion. In his plea

agreement he reserved the right to appeal the district court’s

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. denial of his suppression motion. Nunez argues that his Fourth

Amendment rights were violated when a Texas state trooper detained

him and searched his truck after the initial purpose for the

commercial vehicle inspection was satisfied, that the consent that

he gave to the trooper was vitiated by the taint of the Fourth

Amendment violation, and that statements made after his arrest were

the tainted fruit of the unconstitutional search.

The initial basis for the stop of Nunez’ truck was a

commercial inspection pursuant to TEX. TRANSP. CODE ANN.

§ 644.103(a), which authorizes Texas Department of Public Safety

(TDPS) officers to “stop, enter, or detain on a highway” a

commercial motor vehicle for inspection. See United States v.

Fort, 248 F.3d 475, 479-82 (5th Cir. 2001).

The TDPS state trooper who conducted the search had over 30

years’ experience in the division of TDPS responsible for enforcing

motor carrier safety regulations and inspecting vehicles for size,

weight, and moving traffic violations. During the search, the

trooper developed a reasonable suspicion that criminal activity was

occurring. He articulated the basis of his suspicion at the

suppression hearing by noting: Nunez’ nervousness; the fact that

Nunez’ co-driver initially jumped out of the sleeper compartment

unclothed to see what was going on and then dressed like he was

prepared to go somewhere, instead of continuing with his break;

Nunez’ logbook indicated that Nunez had taken off a large amount of

time in February, the month before the search and seizure; and the

2 logbook indicated that Nunez had taken a longer than normal amount

of time to acquire his load in Arizona.

The trooper testified at the hearing in detail why, in his

considerable experience in the inspection of commercial trucks,

each of the foregoing factors was unusual and led him to believe

that criminal activity was occurring. The continued detention

therefore did not violate the Fourth Amendment. See United States

v. Valadez, 267 F.3d 395, 397 (5th Cir. 2001) (after the purpose

for the traffic stop is satisfied, the detention must end unless

there is reasonable suspicion to continue it); United States v.

Santiago, 310 F.3d 336, 340 (5th Cir. 2002) (reasonable suspicion

exists when the detaining officer can point to specific and

articulable facts which, taken together with rational inferences

from those facts, reasonably warrant the search and seizure);

United States v. Jones, 234 F.3d 234, 241 (5th Cir. 2000) (this

court looks at the totality of the circumstances and considers the

collective knowledge and experience of the officers involved when

determining whether reasonable suspicion exists to justify

continued detention).

Moreover, before the search of the interior of the truck, the

trooper secured Nunez’ consent. Nunez’ argument that his consent

was invalid is premised on his argument that his detention was

unconstitutional. Since Nunez’ detention did not violate the

Fourth Amendment, Nunez’ argument on this issue fails.

Nunez also argues that the continued detention exceeded the

3 scope authorized by Terry v. Ohio, 392 U.S. 1 (1968), and cases

applying Terry. However, the record indicates that Nunez did not

withdraw his consent during the search and the trooper’s suspicion

increased as the search progressed, since when the trooper entered

the truck he discovered a secret compartment hidden under the bed,

which the owner of the truck could not open. Thus, continued

detention until the compartment could be searched was warranted and

under these circumstances no Fourth Amendment violation occurred.

See Jones, 234 F.3d at 241.

Finally, Nunez’ argument that the district court erred when it

did not suppress his confession fails, since this argument is also

premised on his argument that the detention and search violated the

Fourth Amendment.

The district court’s judgment is therefore AFFIRMED.

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