     Case: 18-30406      Document: 00514752233         Page: 1      Date Filed: 12/07/2018




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

                                    No. 18-30406                    FILED
                                  Summary Calendar           December 7, 2018
                                                                 Lyle W. Cayce
                                                                      Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee

v.

JOSE ALONSO HERNANDEZ,

                                                 Defendant - Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:17-CR-67-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Jose Alonzo Hernandez entered a conditional guilty plea to possession of
heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A)(i), reserving the right to appeal the district court’s denial of his motion
to suppress the evidence discovered during a traffic stop in which Louisiana
state troopers found packages of heroin hidden in his car’s battery. On appeal,
he argues that the district court erred by denying his motion to suppress


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                    No. 18-30406

because (1) the vehicle’s momentary touching of the fog line did not violate
Louisiana law and did not constitute a traffic violation, and therefore the
traffic stop was unlawful, and (2) a reasonable person would not expect general
consent to search a vehicle to extend to the car’s sealed battery, and therefore
the troopers violated the Fourth Amendment by lifting the top of the battery.
      “When reviewing a denial of a motion to suppress evidence, this Court
reviews factual findings for clear error and the ultimate constitutionality of
law enforcement action de novo.” United States v. Robinson, 741 F.3d 588, 594
(5th Cir. 2014). In addition to deferring to the district court’s factual findings,
we view the evidence in the light most favorable to the prevailing party, which
in this case is the Government. See United States v. Pack, 612 F.3d 341, 347
(5th Cir. 2010).
      First, the legality of a traffic stop is analyzed under the “two-tiered
reasonable suspicion inquiry” articulated in Terry v. Ohio, 392 U.S. 1 (1968),
which evaluates “whether the officer’s action was justified at its inception,” and
“whether the search or seizure was reasonably related in scope to the
circumstances that justified the stop in the first place.” United States v. Grant,
349 F.3d 192, 196 (5th Cir. 2003). “For a traffic stop to be justified at its
inception, an officer must have 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.” United States v. Lopez-Moreno, 420 F.3d 420, 430
(5th Cir. 2005); see Whren v. United States, 517 U.S. 806, 810 (1996). A vehicle
touching the fog line, even momentarily, violates Louisiana Revised Statute
32:79, and officers are justified in initiating a traffic stop on that basis. See
State v. Waters, 780 So. 2d 1053, 1056-57 (La. 2001); see also United States v.
Jones, 185 F.3d 459, 463-64 (5th Cir. 1999). Because Hernandez’s vehicle
briefly touched the fog line, the state trooper had probable cause to believe a



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                                  No. 18-30406

traffic violation occurred, and this reasonable suspicion justified the traffic
stop at its inception. See Whren, 517 U.S. at 810; Jones, 185 F.3d at 463-64.
      Second, the Government must show that a search was within the scope
of the defendant’s consent. See United States v. Freeman, 482 F.3d 829, 832
(5th Cir. 2007).      The scope of consent is governed by an objective
reasonableness standard: “what would the typical reasonable person have
understood by the exchange between the officer and the suspect?” Florida v.
Jimeno, 500 U.S. 248, 251 (1991). This court has held that general consent to
search a vehicle gives an officer authority to a search under the hood of the car,
see United States v. McSween, 53 F.3d 684, 688 (5th Cir. 1995), and extends to
the vehicle’s components so long as they can be searched without causing
damage to the vehicle, see United States v. Garcia, 604 F.3d 186, 190 (5th Cir.
2010); United States v. Flores, 63 F.3d 1342, 1362 (5th Cir. 1995). In this case,
the search of the battery was accomplished without damaging the vehicle.
Thus, the search did not exceed the scope of Hernandez’s generalized consent
to search the vehicle. See Garcia, 604 F.3d at 190.
      Based on the foregoing, the district court’s denial of Hernandez’s motion
to suppress is AFFIRMED. See Robinson, 741 F.3d at 594.




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