United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                   No. 03-1037
                                  ___________

United States of America,              *
                                       *
             Appellee,                 *    Appeal from the United States
                                       *    District Court for the
      v.                               *    District of North Dakota.
                                       *
Arnaldo Losoya Mancias,                *
                                       *
             Appellant.                *
                                  ___________

                             Submitted: May 15, 2003
                                 Filed: November 28, 2003
                                  ___________

Before MORRIS SHEPPARD ARNOLD and HANSEN, Circuit Judges, and
READE,1 District Judge.
                        ___________

READE, District Judge.




      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa, sitting by designation.
       After the district court2 denied his motion to suppress evidence, Arnaldo
Losoya Mancias (“Mancias”) entered a conditional guilty plea to possession of
marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and to
criminal forfeiture of $2,225.00 under 21 U.S.C. § 853(p). The district court3
sentenced Mancias to 80 months imprisonment. On appeal, Mancias argues the
district court erred in denying his motion to suppress evidence and in denying his
motion to dismiss the prosecution for violations of the Speedy Trial Act. For the
reasons discussed below, we affirm.

                                         I.

      Shortly after midnight on April 28, 2002, North Dakota Highway Patrolman
Jody Skogen (“Skogen”) received a report that an intoxicated driver was operating
a motor vehicle in a remote area of North Dakota. While investigating the report,
Skogen observed a vehicle proceeding east on Highway 52 near Harvey, North
Dakota. The vehicle’s tires were on the centerline. After turning his patrol car
around to follow the vehicle, Skogen activated the video camera mounted on the
windshield of his patrol car. Skogen observed the vehicle swerve and enter the
oncoming lane of traffic. Skogen stopped the vehicle.

      When asked to step out of the vehicle and to produce identification, the driver
complied. Based on the identification presented to him, Skogen determined Mancias
to be the driver of the vehicle. After being informed he was stopped for erratic
driving, Mancias attributed such driving to being sleepy. When asked about his
intended destination, Mancias gave details which conflicted with Skogen’s


      2
       The Honorable Patrick A. Conmy, United States District Court Judge for the
District of North Dakota.
      3
       The Honorable Daniel L. Hovland, United States District Court Judge for the
District of North Dakota.

                                        -2-
knowledge of the area. Skogen patted Mancias down and asked him to sit inside his
patrol car. While verifying whether Mancias had a valid driver’s license, Skogen
informed Mancias that he would receive a citation for “care required.” After he
learned Mancias had a valid Minnesota driver’s license and a suspended North
Dakota driver’s license, Skogen informed Mancias that he would receive an
additional citation for driving with a suspended license. After telling Mancias that
he would not be allowed to drive, Skogen offered to drive Mancias to Harvey, North
Dakota where he could spend the night. Skogen indicated he would direct another
officer to follow them in Mancias’ vehicle to Harvey, North Dakota. Mancias agreed
to this arrangement.

       Skogen placed Mancias under arrest for driving under a suspended North
Dakota driver’s license. Skogen informed Mancias that he would be jailed if he could
not post a cash bond of $200.00. Meanwhile, Wells County Deputy Sheriff Hoyt
(“Hoyt”) arrived to assist Skogen. In order to move things along more quickly,
Skogen continued the paperwork while Hoyt conducted a search of Mancias’ vehicle.
During the course of his search, Hoyt noticed the rear seat of the vehicle was not
bolted down. When Hoyt put his weight on the rear seat, the backrest of the rear seat
slid out of position. Hoyt moved the backrest and noticed a cutout. Looking through
the cutout and into the trunk of Mancias’ vehicle, Hoyt saw several suspicious-
looking bundles.

       While Hoyt was conducting his search, Skogen finished the necessary
paperwork, conducted an alcohol-screening breath test and collected the $200.00 cash
bond. As Mancias stepped out of the patrol car to receive a final pat down, Hoyt
approached Skogen and Mancias. Hoyt informed Skogen there was something in the
trunk area of the vehicle that they needed to check out. Upon hearing what Hoyt had
to say, Skogen returned to Mancias to pat him down and to place handcuffs on him.
After putting Mancias in the rear seat of the patrol car, Skogen asked Mancias on at
least two separate occasions if he would consent to a search of his vehicle. Each time

                                         -3-
Mancias consented to the search. After securing Mancias inside the patrol car, Hoyt
and Skogen continued the search of the vehicle pursuant to Mancias’ consent.
Skogen observed a digital scale on the rear seat and the cutout behind the backrest.
Ultimately, the officers seized twenty-six pounds of marijuana from the trunk of
Mancias’ vehicle.

       As a result of the events that occurred on April 28, 2002, the government filed
a one-count criminal complaint against Mancias in the district court on June 17, 2002.
The complaint charged Mancias with possession with intent to distribute twenty-six
pounds of marijuana in violation of 21 U.S.C. § 841(a)(1). Officials arrested Mancias
on June 19, 2002, and Mancias initially appeared before a United States Magistrate
Judge on June 21, 2002. The magistrate judge conducted a detention hearing on June
25, 2002 and a preliminary hearing and arraignment on July 2, 2002. In its July 3,
2002 pretrial order, the magistrate judge set August 23, 2002 as the date by which to
file any pretrial motion. On July 19, 2002, the government filed a two-count
indictment (“Indictment”). The counts charged: (1) possession with intent to
distribute approximately twenty-six pounds of marijuana in violation of 21 U.S.C.
§ 841(a)(1) (“Count I”); and (2) criminal forfeiture of $2,225.00 under 21 U.S.C.
§ 853(p) (“Count II”). On August 7, 2002, the district court set September 26, 2002
as Mancias’ trial date.

       Mancias filed a motion to suppress evidence on August 26, 2002. On
September 13, 2002, Mancias also filed a motion to dismiss the prosecution for
violations of the Speedy Trial Act. Without conducting an evidentiary hearing, the
district court denied Mancias’ motion to dismiss on September 23, 2002. That same
day, the district court arraigned Mancias on Count II of the Indictment and conducted
an evidentiary hearing regarding Mancias’ motion to suppress. On September 24,
2002, the district court denied Mancias’ motion to suppress.




                                         -4-
      On September 26, 2002, Mancias entered a conditional guilty plea. By doing
so, Mancias preserved his right to appeal the district court’s denial of his motion to
dismiss and motion to suppress. On December 12, 2002, the district court entered
judgment against Mancias. This appeal followed.

                                         II.

       When reviewing a district court’s ruling on a motion to suppress evidence, we
will affirm a denial “unless we find that the decision is unsupported by the evidence,
based on an erroneous view of the law, or the [c]ourt is left with a firm conviction
that a mistake has been made.” United States v. Madrid, 

, 1037 (8th
Cir. 1998) (quoting United States v. Estrada, 

, 1217-18 (8th Cir. 1995)).
We review the district court’s finding of voluntary consent for clear error. United
States v. Zamoran-Coronel, 

, 468 (8th Cir. 2000) (citing United States.
v. Pena-Saiz, 

, 1177 (8th Cir. 1998)).

       Mancias claims the district court erred in denying his motion to suppress the
twenty-six pounds of marijuana found in the trunk of his vehicle. Both parties agree
Mancias gave the officers consent to search his vehicle. Mancias contends, however,
that the totality of the circumstances surrounding his consent render it involuntary
because at the time he gave his consent: (1) he was suffering from extreme fatigue;
(2) he was handcuffed and sitting in the back of the patrol car; and (3) he was not
advised of his Miranda rights.

      Consent to search is voluntary if it is “‘the product of an essentially free and
unconstrained choice by its maker . . . rather than the product of duress or coercion,
express or implied.’” United States v. Chaidez, 

, 380 (8th Cir. 1990)
(quoting Schneckloth v. Bustamonte, 

, 227 (1973)). The voluntariness
of consent is a question of fact to be determined by examining the totality of the
circumstances in a given case, including “‘both the characteristics of the accused and

                                         -5-
the details of the interrogation.’” 

(quoting 

). The following factors relating to the person giving consent may be relevant in
determining the voluntariness of consent:
             (1) the defendant’s age; (2) the defendant’s general
             intelligence and education; (3) whether the defendant was
             under the influence of drugs or alcohol; (4) whether the
             defendant was informed of his Miranda rights prior to
             consent; and (5) whether the defendant had experienced
             prior arrests so that he was aware of the protections the
             legal system affords to suspected criminals.
United States v. Alcantar, 

, 737 (8th Cir. 2001) (citing United States v.
Hathcock, 

, 719-20 (8th Cir. 1997)). Characteristics of “the environment
in which consent was given” include:
             Whether the person who consented: (1) was detained and
             questioned for a long or short time; (2) was threatened,
             physically intimidated, or punished by the police; (3) relied
             upon promises or misrepresentations made by the police;
             (4) was in custody or under arrest when the consent was
             given; (5) was in a public or a secluded place; or (6) either
             objected to the search or stood by silently while the search
             occurred.

(internal citations omitted). The factors set forth above
“should not be applied mechanically.” 

Rather, “the inquiry turns on the
totality of the circumstances, which must demonstrate that ‘the police reasonably
believe[d] the search to be consensual.’” 

(quoting United States v. Sanchez, 

, 878 (8th Cir. 1998)).


      Examining Mancias’ individual characteristics, we note at the time of the
search Mancias was a forty-two year old man with a tenth grade education. The
record reflects Mancias generally appeared to cooperate with the officers during both

                                         -6-
the stop and the search. Although Mancias obviously was very tired at the time of the
incident, he did not appear to be under the influence of alcohol or drugs, nor did he
claim to be. In fact, Mancias submitted to an alcohol-screening breath test and the
results came back negative. Mancias points out he was not informed of his Miranda
rights prior to giving his consent. However, this does not render his consent invalid
because Mancias had at least one prior conviction and therefore had an increased
awareness of his rights. See 

(finding officer’s failure to
inform the defendant of his right to withhold consent did not render consent
involuntary where the defendant’s “prior encounter with the criminal justice system
increased [the defendant’s] awareness of the rights of accused persons”); 

(“Although [the defendant] was not advised of his right to refuse
consent, that was not in and of itself sufficient to find that consent was not voluntarily
given.”) (citing United States v. Zapata, 

, 1242 (8th Cir. 1999)).


      While Mancias argues his fatigue is a factor that tends to show his consent was
not voluntary, we disagree. The record clearly shows Mancias was alert enough to
answer questions posed to him by Skogen, to post the $200 bond and to agree to have
Skogen drive him to a hotel in Harvey, North Dakota. Moreover, prior to obtaining
Mancias’ consent, Skogen gave Mancias the opportunity to stand outside and breathe
fresh air. Although Mancias was extremely tired at the time of his encounter with
Skogen and Hoyt, we do not find Mancias’ physical state rendered his consent
involuntary.


      Our examination of the environment in which Mancias gave his consent also
supports a finding of voluntariness. Mancias asserts Skogen’s actions made the

                                           -7-
environment in which he gave consent coercive and, consequently, his consent should
be deemed involuntary. Mancias maintains he cooperated at all times with Skogen,
posed no threat to Skogen’s safety and paid the bond necessary for release from
custody, but Skogen still handcuffed him and placed him in the back seat of the patrol
car.


       We find there is no evidence in the record that Skogen made any
representations or promises to Mancias in return for his consent or that Skogen
attempted to intimidate Mancias to obtain consent.         The video of the events
surrounding Mancias’ expression of consent shows that Skogen dealt with Mancias
in a polite, professional manner. In addition, while Mancias was seated in the back
seat of the patrol car and handcuffed at the time he gave consent, we do not find this
made the environment coercive. See 

(holding consent may
be voluntarily given even when seated in an officer’s patrol car). Our examination
of the totality of the circumstances surrounding Mancias’ consent leads us to
conclude the district court did not clearly err when it held Mancias voluntarily
consented to the search of his vehicle.4


                                           III.


       Finally, Mancias claims the district court erred by failing to dismiss Count I
and Count II of the Indictment pursuant to the Speedy Trial Act, 18 U.S.C. §§ 3161,


       4
       Having determined the search of Mancias’ vehicle was constitutionally
permissible, we need not consider the constitutionality of the search under other
exceptions to the warrant requirement.

                                           -8-
et seq. Regarding Count I, Mancias argues more than seventy days passed between
the date of his initial appearance before the magistrate judge and the scheduled trial
date. With respect to Count II, Mancias argues the district court required him to go
to trial less than thirty days after his initial appearance.


      The facts underlying a district court’s order involving alleged violations of the
Speedy Trial Act are reviewed for clear error. United States v. Blankenship, 

, 675 (8th Cir. 1995). A district court’s legal conclusions are reviewed de novo.

United States v. Titlbach, 

, 698 (8th Cir. 2003) (reiterating
standard).


      As a preliminary matter, the court notes the record in the instant case is, in a
word, confusing. It reveals that, after conducting a preliminary hearing on July 2,
2002 (held before the Indictment was filed and returned on July 19, 2002), the
magistrate judge conducted an “arraignment.” At such “arraignment,” the magistrate
judge, among other things, asked Mancias: (1) if he received a copy of the criminal
complaint; (2) if he waived the reading of the criminal complaint; and (3) to plead to
the criminal complaint. Conducting an “arraignment” on a criminal complaint
appears to us to be contrary to the Federal Rules of Criminal Procedure. See Fed. R.
Crim. P. 5(d)(4) (stating a defendant may be asked to plead only under Rule 10); Fed.
R. Crim. P. 5.1 (not requiring or authorizing a defendant to plead to the criminal
complaint at the preliminary hearing or authorizing a magistrate judge to take and
enter such plea); Fed. R. Crim. P. 10 (making clear an arraignment in a felony case
can occur only after an indictment has been returned or a trial information has been
filed). When a grand jury returns an indictment, the previous proceedings before the

                                           -9-
magistrate judge are superceded, and the prosecution proceeds because the defendant
has been indicted, not because a criminal complaint has been filed. The initial
appearance and preliminary hearing procedures generated by the filing of a criminal
complaint are designed to make sure the defendant is available to answer if probable
cause has been established and if, in fact, an indictment is forthcoming. Although we
find the district court never formally arraigned Mancias on Count I of the Indictment,
Mancias cannot complain about such failure. We have held that the “absence of a
formal arraignment is of little consequence.” United States v. Reynolds, 

, 136 n.2 (8th Cir. 1986). See also Garland v. State of Washington, 

,
645-47 (1914) (stating failure to comply with arraignment requirements has been held
not to be jurisdictional, but a mere technical irregularity not warranting a reversal of
a conviction, if not raised before trial). In Garland, the Supreme Court held that as
long as the accused had sufficient notice of the accusation and an adequate
opportunity to defend himself, the want of a formal arraignment does not deprive the
defendant of any substantial right. 

. Here, with respect to
Count I, the charge against Mancias remained the same from the filing of the criminal
complaint to the return of the Indictment and from the return of the Indictment to the
entry of his conditional plea of guilty. In addition, Mancias certainly took advantage
of the opportunity to defend himself by filing the motion to suppress and motion to
dismiss. Because he had sufficient notice and adequate opportunity to present a
defense, Mancias can show no prejudice from the failure to be formally arraigned on
Count I of the Indictment.


      Pursuant to 18 U.S.C. § 3161(c)(1), Mancias argues ninety-seven days passed
between June 21, 2002, the date he initially appeared before the magistrate judge on

                                         -10-
the criminal complaint, and September 26, 2002, the date the district court scheduled
as his trial date. We find this argument is without merit. 18 U.S.C. § 3161(c)(1)
provides:
             In any case in which a plea of not guilty is entered, the trial
             of a defendant charged in an information or indictment
             with the commission of an offense shall commence within
             seventy days from the filing date (and making public) of
             the information or indictment, or from the date the
             defendant has appeared before a judicial officer of the
             court in which such charge is pending, whichever date last
             occurs. . . .
The Indictment was filed and made public after Mancias first appeared before a
judicial officer. Because Mancias made an initial appearance first, we find the date
the Indictment was filed and made public triggers the speedy trial clock. See United
States v. Carrasquillo, 

, 384 (3d Cir. 1981) (discussing language of 18
U.S.C. § 3161(c)(1), reviewing congressional intent and concluding district court
erred when it calculated the statutory seventy-day period from the date of the
defendant’s postindictment arraignment rather than from the date the indictment was
filed). See also United States v. Stoudenmire, 

, 63 (4th Cir. 1996)
(“Because the defendant made her initial appearance prior to her indictment, . . . the
day of her indictment . . . triggers the [Speedy Trial Act] clock.”); United States v.
Ortega-Mena, 

, 158 (5th Cir. 1991) (“[L]ike many other circuits, we
construe ‘appearance before a judicial officer’ to mean a defendant’s initial
appearance before a judicial officer. See United States v. Mentz, 

, 325
(6th Cir. 1988); United States v. Owokoniran, 

, 374 (7th Cir. 1987);
United States v. Yunis, 

, 796 (11th Cir. 1984); United States v. Haiges,

, 1274 (9th Cir. 1982); United States v. Carrasquillo, 

, 384


                                          -11-
(3d Cir. 1981); Committee on the Administration of the Criminal Law of the Judicial
Conference of the United States, Guidelines to the Administration of the Speedy Trial
Act of 1974, as Amended, 

, 276 (1985).”). Cf. United States v. Dosal,

(Table), 

at *5-6, 

at *2
(10th Cir. 1997) (“[W]here . . . a defendant makes an appearance [prior to the filing
of the indictment and the appearance is] related to charges other than those in the
indictment, such appearance does not trigger the statutory timetable.”). Accordingly,
in this case, the date the Indictment was filed and made public is the “last occurring”
date for purposes of calculating the seventy-day period. July 20, 2002, the day after
the Indictment was filed and made public, qualifies as the first day of the seventy-day
period. See United States v. Dezeler, 

, 88 (8th Cir. 1996) (citing United
States v. Long, 

, 1274 (8th Cir. 1990)). The district court set
September 26, 2002 as Mancias’ trial day. In total, 69 days elapsed between the date
the Indictment was filed and made public and September 26, 2002.5 When the delay
associated with the motion to suppress is excluded, the period between the date the


      5
       Even if we were to compute the time from June 21, 2002 as Mancias argues,
no violation of Mancias’ right to a speedy trial occurred because certain periods of
time are excluded from the running of the seventy-day period, including time taken
up by consideration of pretrial motions. See 18 U.S.C. § 3161(h)(1)(F) (excluding
“[any] period of delay . . . resulting from any pretrial motion, from the filing of the
motion through the conclusion of the hearing on, or other prompt disposition of, such
motion”). See also Henderson v. United States, 

, 332 (1986) (finding
motion to suppress to be pretrial motion included within the meaning of 18 U.S.C. §
3161(h)(1)(F)). Mancias filed a motion to suppress on August 26, 2002. After
conducting an evidentiary hearing on September 23, 2002, the district court denied
Mancias’ motion to suppress on September 24, 2002. Taking the twenty-nine
excludable days into account, the district court scheduled Mancias’ trial to commence
within the seventy-day limit.

                                         -12-
Indictment was filed and made public and the date the district court set for trial
amounts to forty days. See 18 U.S.C. § 3161(h)(1)(F). Therefore, we are satisfied no
violation of 18 U.S.C. § 3161(c)(1) occurred.


      With respect to the inside time limit within which trial must not commence,
Mancias argues the district court required him to go to trial less than thirty days after
he initially appeared to be arraigned on Count II. The relevant statute provides:
             Unless the defendant consents in writing to the contrary,
             the trial shall not commence less than thirty days from the
             date on which the defendant first appears through counsel
             or expressly waives counsel and elects to proceed pro se.
18 U.S.C. § 3161(c)(2) (emphasis added). Acknowledging that it is unclear when the
thirty-day period commences, the government argues the Supreme Court’s
interpretation of 18 U.S.C. § 3161(c)(2) in United States v. Rojas-Contreras, 

(1985), can be applied to the facts surrounding this case. In Rojas-Contreras, the
Supreme Court stated:
             The statute clearly fixes the beginning point for the trial
             preparation period as the first appearance through counsel.
             It does not refer to the date of the indictment, much less to
             the date of any superceding indictment. Given this
             unambiguous language, we have no choice but to conclude
             that Congress did not intend that the 30-day trial
             preparation period begin to run from the date of filing of a
             superceding indictment. . . .
             It is clear that Congress knew how to provide for the
             computation of time periods under the [Speedy Trial] Act
             relative to the date of an indictment. Had Congress
             intended that the 30-day trial preparation period of [18
             U.S.C.] § 3161(c)(2) commence or recommence on such a
             date, it would have so provided.

                                          -13-


. Cf. United States v. Daly, 

, 1505
(9th Cir. 1983) (concluding “the thirty-day period should commence only after the
indictment or information has been filed and made public and a defendant has first
appeared with counsel engaged or appointed to represent him at trial”). In light of
Rojas-Contreras, the government asks us to consider several preindictment dates from
which to commence the thirty-day period. Alternatively, if we determine Mancias’
preindictment appearances through counsel do not commence the thirty-day
preparation period and the thirty-day period commenced at the arraignment conducted
on September 23, 2002, the government argues Mancias is not entitled to relief
because he did not have a trial and he did not suffer prejudice as a result of any
violation of 18 U.S.C. § 3161(c)(2).


      The Indictment was filed and made public on July 19, 2002. The district court
set September 26, 2002 as Mancias’ trial date. Mancias filed a motion to suppress on
August 26, 2002 and a motion to dismiss on September 13, 2002. On September 23,
2002, the district court conducted a hearing on Mancias’ motion to suppress. After
such hearing, the district court formally arraigned Mancias on Count II of the
Indictment. The district court, in a written order, denied Mancias’ motion to dismiss
just before the suppression hearing began. After the district court denied the motion
to dismiss, Mancias did not move to continue the trial date. Mancias and his counsel
appeared for trial on September 26, 2002 and, before a jury was seated and sworn,
Mancias elected to plead guilty to Count I and Count II of the Indictment pursuant to
a plea agreement which, as described by the district judge, “preserv[ed] the
defendant’s right to challenge on appeal the legality of the search . . . and, also, any
other issue raisable relating to speedy trial or any other procedural irregularity noted

                                         -14-
by counsel or the defendant.” Thus, Mancias preserved his objection pursuant to 18
U.S.C. § 3161(c)(2).


      Assuming a technical violation of 18 U.S.C. § 3161(c)(2) occurred, we, like the
district court, fail to see how Mancias was prejudiced by it. The affidavit attached to
the June 17, 2002 criminal complaint included statements regarding the large amount
of money found on Mancias at the time of his arrest and the preference of drug
traffickers to use cash; the underlying facts of the substantive drug case were
developed at the preliminary hearing on July 2, 2002 - a special agent with the United
States Drug Enforcement Agency testified that the arresting officer seized
approximately $2,200.00 dollars from Mancias; Count II of the Indictment sought the
forfeiture of the $2,225.00 in currency seized from Mancias on April 28, 2002;
Mancias filed his motion to suppress, which struck at the heart of the government’s
case, on August 26, 2002; and Mancias filed his motion to dismiss on September 13,
2002. With respect to Count II, Mancias alleged no prejudice before the district
court. In his brief and argument to this court, Mancias makes no allegation or
showing that his defense to Count II was thwarted in any way by a lack of time to
prepare. Instead, Mancias seeks an outright dismissal of the entire prosecution for the
alleged naked violation of the thirty-day preparation period contained in 18 U.S.C.
§ 3161(c)(2).


      While the Speedy Trial Act requires an automatic dismissal of the charges for
failing to bring a defendant to trial within its seventy-day limit, see 18 U.S.C. § 3162,
there is no such automatic statutory remedy for bringing a defendant to trial before
thirty days have elapsed from his first appearance through counsel in violation of 18

                                          -15-
U.S.C. § 3161(c)(2). Instead, the correct remedy is for the defendant to make and for
the district court to grant a motion for continuance in order to permit adequate pretrial
preparation if the defendant’s ability to defend against the charge has in fact been
prejudiced. See 

; United States v. Maynie, 

, 914-15 (8th Cir. 2001); United States v. Vaughn, 

, 613-14 (8th
Cir. 1997); United States v. Simpson, 

, 1287 (8th Cir. 1992); United
States v. Punelli, 

, 1369-70 (8th Cir. 1990); 

.
Here, Mancias made no motion for a continuance and instead pleaded guilty, thereby
choosing to stand on the alleged technical violation to justify his demand for
dismissal. Because Mancias did not show any prejudice, the district court did not err
when it concluded no violation of 18 U.S.C. § 3161(c)(2) occurred.




      Accordingly, the judgment of the district court is affirmed in all respects.


                        ______________________________




                                          -16-