Filed: May 31, 2005
Latest Update: Feb. 21, 2020
Summary: 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. 04-3085
Summary: 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..
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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.
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No. 04-30742 & No. 04-30857
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--------------------
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.
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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
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“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’
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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
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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
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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
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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-
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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-
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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.
