No. 41014

          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                    FILED
                                                                 September 18, 2008
                                No. 07-41014
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

JOSE LUIS SOSA-MENDOZA

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                           USDC No. 6:06-CR-71-1


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
      Jose Sosa-Mendoza was convicted by bench trial of one count of possession
of at least 100, but less than 400, kilograms of marijuana, in violation of 21
U.S.C. § 841. He presents two issues: (1) the district court’s failure to suppress
evidence; and (2) insufficiency of the evidence.




      *
      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should not be published and is not precedent except under the limited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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      Sosa first contends: the stop of his vehicle by Officer Biggs violated the
Fourth Amendment and the subsequent consent to search the truck was not
voluntary. “In reviewing a district court’s denial of a motion to suppress, we
review the district court’s findings of fact for clear error and its conclusions of
law de novo”, viewing the evidence in the light most favorable to the prevailing
party. United States v. Lopez-Moreno, 

, 429 (5th Cir. 2005).
      The legality of a traffic stop is analyzed under the framework provided by
Terry v. Ohio, 

(1968). 

. A traffic stop
is justified if the officer has “an objectively reasonable suspicion that some sort
of illegal activity, such as a traffic violation, occurred, or is about to occur, before
stopping the vehicle”. 

testified, inter alia, that he observed
Sosa’s truck veer onto an improved shoulder for 200 to 300 feet, a possible
violation of TEX. TRANSP. CODE § 545.058(a). Sosa maintains there was no
violation because: there was no evidence the maneuver was dangerous; and he
swerved due to a steering-wheel malfunction. Section 545.058(a), however, only
permits a driver to drive on an improved shoulder under seven enumerated
circumstances, which do not include vehicle malfunction. Furthermore, under
§ 545.058(a), the lack of danger is irrelevant. There is also no evidence that
Officer Biggs knew, or should have known, of the alleged steering-wheel
malfunction before stopping Sosa and questioning him. In sum, an objectively
reasonable officer could have concluded that a traffic violation had occurred,
justifying an investigative stop under Terry.
      Sosa next maintains his consent to search his truck was not voluntary.
Voluntariness-of-consent rulings are reviewed for clear error under a totality-of-
the-circumstances test. United States v. Tompkins, 

, 120-21 (5th
Cir. 1997); United States v. Ponce, 

, 997 (5th Cir. 1993). The record
supports the conclusion that Sosa and Officer Biggs were able to communicate
sufficiently in English and Spanish; that Sosa understood he was giving his
consent to search; that there was no evidence of threats or coercive tactics; and

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                                  07-No. 07-41014

that he was sufficiently intelligent to understand the situation. There was no
clear error in the district court’s determination that Sosa’s consent was
voluntary. Because the stop of Sosa’s vehicle satisfies the Terry standard and
the voluntariness ruling presents no clear error, the district court did not err in
admitting the seized evidence.
      In challenging the sufficiency of the evidence at the bench trial, Sosa
contends the Government failed to prove he had knowing possession of the
marijuana. For a bench trial, our standard of review for a sufficiency-of-the-
evidence issue is “whether the finding of guilt is supported by substantial
evidence, i.e., evidence sufficient to justify the trial judge, as the trier of fact, in
concluding beyond reasonable doubt that the defendant is guilty”. United States
v. Turner, 

, 720 (5th Cir. 2003) (citation and internal quotation
marks omitted). Under this standard, the evidence is viewed in the light most
favorable to the Government. 

      To prove a defendant possessed drugs with intent to distribute, the
Government must establish (1) knowing (2) possession of the drugs in question
(3) with intent to distribute them. United States v. Ortega Reyna, 

,
543-44 (5th Cir. 1998). Sosa’s exclusive control over the truck on a lengthy
journey at the time of his arrest was sufficient for the court to conclude that he
had constructive possession of the marijuana. See United States v. Inocencio, 

, 724 (5th Cir. 1994).
      Sosa urges that possession was not knowing because the marijuana was
hidden, and he was not present when the truck was loaded, so others could have
placed the marijuana there without his knowledge. “[W]hen the drugs are
hidden, control over the vehicle alone is not sufficient to prove knowledge” unless
drugs are “clearly visible or readily accesible”. United States v. Garza, 

, 174 & n.10 (5th Cir. 1993). The driver of a vehicle containing hidden drugs
may be an unwitting courier; accordingly, additional circumstantial evidence of
guilty knowledge is required. United States v. Diaz-Carreon, 

, 954

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(5th Cir. 1990).   Those behaviors this court considers in assessing guilty
knowledge in hidden-drug cases were catalogued in Ortega Reyna:
      (1) nervousness; (2) absence of nervousness, i.e., a cool and calm
      demeanor; (3) failure to make eye contact; (4) refusal or reluctance to
      answer questions; (5) lack of surprise when contraband is discovered; (6)
      inconsistent statements; (7) implausible explanations; (8) possession of
      large amounts of cash; and (9) obvious or remarkable alterations to the
      vehicle, especially when the defendant had been in possession of the
      vehicle for a substantial period of 

(footnote call numbers omitted). In assessing guilty knowledge,
also considered is the value of the drugs being transported. United States v.
Villarreal, 

, 324-25 (5th Cir. 2003).
      There was ample circumstantial evidence of guilty knowledge. First, Sosa
was highly nervous. Although his initial nervousness might be explained by the
stop itself or his status as an unlawful alien, see 

,
he became increasingly nervous and looked away immediately when asked if
marijuana was in the truck. Further, there were other indicia of guilt. Sosa
claimed to be delivering a small load of produce a long distance from Houston to
Little Rock, which was impractical; he had no delivery address but only a contact
telephone number; and he would have arrived at night. He was generally
uncooperative during questioning by Special Agent Downing, and he gave
inconsistent and evasive answers to both the Agent and Officer Biggs. Finally,
the marijuana recovered had a value of $181,000.            These facts provide
substantial evidence supporting the district court’s inference of guilty
knowledge.
      AFFIRMED.




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