     Case: 14-40126      Document: 00513118466         Page: 1    Date Filed: 07/16/2015




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

                                      No. 14-40126                                 FILED
                                                                               July 16, 2015
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk

               Plaintiff - Appellee

v.

RUBEN PENA-GONZALEZ,

               Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:13-CR-564


Before JONES, SMITH, and COSTA, Circuit Judges.
PER CURIAM:*
       Traffic stops on the stretch of U.S. Highway 77 that runs through South
Texas have given rise to a number of Fourth Amendment cases, including a
seminal Supreme Court decision addressing stops at fixed immigration
checkpoints.     See United States v. Martinez-Fuerte, 428 U.S. 543 (1976)
(involving a stop at an immigration checkpoints on Highway 77 near Sarita,
Texas).     This is yet another case.         We must decide whether reasonable


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40126
suspicion of criminal activity justified the Defendant’s continued detention
after the purpose of the initial traffic stop ended.
                                              I.
      On March 9, 2011, Kingsville Police Department Officer Mike Tamez
was patrolling Highway 77 southbound when he detected a Chevy Tahoe
speeding. Tamez pulled alongside the Tahoe and saw three people—two adults
and a child. He also noticed air fresheners hanging throughout the car, several
rosaries on the rearview mirror, and four bumper stickers showing support for
D.A.R.E. 1 and law enforcement. Tamez turned on his patrol lights and pulled
over the Tahoe for speeding two miles over the limit.
      Tamez parked his patrol car behind the Tahoe and approached on the
passenger side.       Mr. Peña-Gonzalez sat in the passenger seat; his wife—
Nohemi Peña—was driving.              When they rolled down the window, Tamez
smelled an overwhelming odor of air freshener and counted four air fresheners
hanging throughout the vehicle. He also noticed Pancho Villa and St. Jude
symbols on Mrs. Peña’s key chain. He requested Mrs. Peña’s driver’s license
and insurance, and then went around to the driver’s side and asked her to step
out of the vehicle.
      Mrs. Peña got out and Officer Tamez began talking with her. Tamez
explained that he pulled her over for speeding, and Mrs. Peña responded that
her daughter needed to use the restroom. Tamez then asked several questions
about Mrs. Peña and her journey. She said she and her family were coming
from Houston and traveling home to Mission, which Tamez found odd because
her insurance said they lived in Palmview (apparently a suburb of Mission,
though there is no indication that Tamez knew this 2). Mrs. Peña stated that



      1   Drug Abuse Resistance Education.
      2   Kingsville is more than 100 miles from Mission.
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                                 No. 14-40126
they had been in Houston so her husband could attend a car auction. Tamez
asked if they bought anything at the auction. Mrs. Peña initially said no,
though she quickly changed her answer to say that he did find an Impala and
some other car but her husband was in charge of that. Tamez then asked how
many days they spent in Houston. Mrs. Peña paused for almost four seconds
and then said “one day.” When Tamez followed up about when they had left
for Houston, she told him “the day before yesterday,” so they had in fact spent
two nights in Houston. Tamez asked where they stayed in Houston, and she
said an “American Best Inn” somewhere off Highway 249. Tamez told her he
would let her off with a warning. After Mrs. Peña thanked him, Tamez asked
if he could talk to her husband and she agreed. These events transpired in
under four minutes, with the conversation between Tamez and Mrs. Peña
outside the car lasting about two minutes.
         The conversation between Tamez and Mr. Peña-Gonzalez lasted for
roughly three minutes. During that time, according to Tamez, Peña-Gonzalez’s
carotid artery visibly pulsed, his faced twitched, and his breathing was labored.
Ultimately, Peña-Gonzalez agreed to allow Tamez to search the Tahoe. Tamez
found dozens of bundles of cash wrapped in black trash bags hidden behind a
panel in the back of the car, and he arrested Peña-Gonzalez. A later count of
the money revealed 105 bundles containing more than $670,000.
         A grand jury indicted Peña-Gonzalez for money laundering and
conspiracy to commit money laundering. Peña-Gonzalez moved to suppress
the evidence, arguing that reasonable suspicion did not exist to extend the stop
after Officer Tamez decided to issue a warning to Mrs. Peña. The district court
denied that motion after an evidentiary hearing, but noted that it was a “close
call.”
         Peña-Gonzalez then entered into a conditional plea agreement on the
money laundering count, reserving his right to appeal the suppression issue.
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                                    No. 14-40126
The presentence report awarded him a two-level reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1(a). At sentencing, the district court
asked the Government whether it was going to move for the additional one-
level reduction for timely acceptance under Section 3E1.1(b). The Government
said no, citing the suppression hearing. 3 Peña-Gonzalez did not object to the
Government’s refusal to move for the third level or otherwise mention the
issue. The Court sentenced Peña-Gonzalez at the low end of the Guidelines
range to 41 months.
      Peña-Gonzalez raises two issues on appeal. He argues that the district
court should have granted the motion to suppress because Tamez lacked
reasonable suspicion to extend the stop.          He also contends that he was
improperly denied the additional reduction for timely acceptance.
                                          II.
      Peña-Gonzalez concedes that the initial traffic stop was legal, but argues
that Officer Tamez impermissibly extended the stop past the time permitted
by the Fourth Amendment. The Government agrees that the purpose of the
initial stop had been served once the warning issued, but argues that Officer
Tamez justifiably extended the stop because reasonable suspicion of other
criminal conduct existed by that time. Alternatively, the Government contends
that Officer Tamez could continue the stop because Mrs. Peña effectively gave
Tamez permission to talk to Peña-Gonzalez.



      3   The following exchange took place between the Government’s attorney and the
district court:
                The Court: All right. Okay. So the third acceptance point, I assume the
                Government would move for that?
                Mr. Alaniz: No way I’m moving for it, your Honor --
                The Court: Oh, not, because we had the suppression hearing.
                Mr. Alaniz: Yes, sir.
                The Court: All right, so he’s at a level 22.
ROA.272–73.
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                                        No. 14-40126
                                               A.
       As the Supreme Court recently explained in Rodriguez v. United States,
the Fourth Amendment limits the permissible length of a traffic stop. See 135
S. Ct. 1609, 1614 (2015). 4 “[T]he tolerable duration of police inquiries in the
traffic-stop context is determined by the seizure’s ‘mission’—to address the
traffic violation that warranted the stop and attend to related safety concerns.”
Id. (citations omitted). This allows the officer to “examine the driver’s license
and vehicle registration . . . [and] ask about the purpose and itinerary of the
driver’s trip.” United States v. Fishel, 467 F.3d 855, 857 (5th Cir. 2006). These
“matters unrelated to the justification for the traffic stop . . . do not convert the
encounter into something other than a lawful seizure, so long as those inquiries
do not measurably extend the duration of the stop.” Arizona v. Johnson, 555
U.S. 323, 333 (2009) (internal citation omitted). But once “the tasks tied to the
traffic infraction are—or reasonably should [be]—completed,” the “[a]uthority
for the seizure . . . ends” unless the Government can show an exception to the
Fourth Amendment that allows the stop to continue. See Rodriguez, 135 S. Ct.
at 1614. One oft-invoked exception derives from Terry v. Ohio, and it permits
elongation of a traffic stop if reasonable suspicion of additional criminal
activity emerges (or existed in the first place). Rodriguez, 135 S. Ct. at 1614
(“An officer . . . may conduct certain unrelated checks during an otherwise
lawful traffic stop. . . . [but] may not do so in a way that prolongs the stop,




       4  Prior to Rodriguez, some circuits permitted officers to extend the duration of a traffic
stop for a short time after accomplishing the objective of the stop, on the grounds that the
Fourth Amendment did not protect against such “de minimis” intrusions. See id. at 1614.
This circuit had never adopted that de minimis exception, which Rodriguez rejected, having
held long before Rodriguez that officers needed reasonable suspicion of other criminal activity
to justify a stop extended past the time it took to deal with the traffic violation. E.g., United
States v. Pack, 612 F.3d 341, 350 (5th Cir. 2010); United States v. Shabazz, 993 F.2d 431, 436
(5th Cir. 1993).
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                                   No. 14-40126
absent the reasonable suspicion ordinarily demanded to justify detaining an
individual.”).
        Reasonable suspicion exists if the police officer can point to specific and
articulable facts indicating that criminal activity is occurring or is about to
occur. United States v. Alvarado-Zarza, 782 F.3d 246, 249 (5th Cir. 2015)
(citing Terry v. Ohio, 392 U.S. 1 (1968)). The “level of suspicion the standard
requires is ‘considerably less than proof of wrongdoing by a preponderance of
the evidence,’ and ‘obviously less’ than is necessary for probable cause.”
Navarette v. California, 134 S. Ct. 1683, 1687 (2014) (citation omitted). And
the suspicion need not relate to a particular crime; it is sufficient to have
reasonable suspicion “that criminal activity may be afoot.” Pack, 612 F.3d at
356.     We review the district court’s reasonable suspicion finding de novo,
looking at the “‘totality of the circumstances’ of each case to see whether the
detaining officer has a ‘particularized and objective basis’ for suspecting legal
wrongdoing.” United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005)
(quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)).
                                         B.
        Tamez testified that a number of things he observed and smelled during
the course of the stop made him suspicious: the large number of bumper
stickers supporting law enforcement, which he contends shows a desire to be
viewed as a “good guy” who “can’t do no wrong”; numerous air fresheners
placed throughout the vehicle, which experience taught him is an attempt to
mask the odor of drugs or drug money; Pancho Villa and St. Jude medallions
on the key chain, both of which he characterized as icons commonly used by
drug smugglers along Highway 77 as symbols for righteousness and protection;
and three rosaries hanging from the rearview mirror, which his experience led
him to believe are also used by drug traffickers for protection. Tamez also cited
what he perceived as inconsistencies and evasion in Ms. Peña’s answers
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                                  No. 14-40126
concerning where they lived, how long they spent in Houston, where they
stayed, and what they did at the car auction.
      Peña-Gonzalez counters that the stickers, religious symbols, and air
fresheners are all consistent with innocent behavior and therefore cannot
constitute reasonable suspicion of criminal wrongdoing. He also argues that
the answers Ms. Pena gave were not inconsistent and not a basis for further
detention.
      We do have concerns that classifying pro-law enforcement and anti-drug
stickers or certain religious imagery as indicators of criminal activity risks
putting drivers “in a classic ‘heads I win, tails you lose’ position.” See United
States v. Escamilla, 560 F.2d 1229, 1233 (5th Cir. 1977); see also United States
v. Townsend, 305 F.3d 537, 544 (6th Cir. 2002) (holding that, despite the
officer’s assertion that “the presence of a Bible in the car was suspicious
because drug couriers often display religious symbols to deflect suspicion of
illegal activity,” the Bible “is a very weak indicator of criminal activity”); cf.
Estep v. Dallas Cnty., Tex., 310 F.3d 353, 358–59 (5th Cir. 2002) (holding that
an NRA sticker on a car should not have been considered in assessing the
reasonableness of the officer’s suspicion that the driver was dangerous). But
we need not decide whether these items alone, or in combination with one
another, amount to reasonable suspicion because we find the more suspicious
evidence to be the array of air fresheners and inconsistencies in the driver’s
responses to the officer’s basic questions.
      We have long recognized that the presence of air fresheners, let alone
four of them placed throughout an SUV, suggests a desire to mask the odor of
contraband. See, e.g., United States v. Rivera, 595 F.2d 1095, 1099 (5th Cir.
1979) (holding that “observation of . . . air freshener . . . strengthened the
probable cause to search the [vehicle], in light of his knowledge and experience
that drug traffickers often use air fresheners . . . to disguise the smell of
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                                    No. 14-40126
marijuana”); United States v. Quiroz-Hernandez, 48 F.3d 858, 864 (5th Cir.
1995) (holding that “a strong odor of fabric softener while walking to [a] van”
supported a finding of probable cause); see also United States v. Ortega, 478 F.
App’x 871, 873 (5th Cir. 2012) (noting that the officer found an oversized air
freshener suspicious); United States v. Cantu, 426 F. App’x 253, 255 (5th Cir.
2011) (noting that the officer found six air fresheners suspicious); United States
v. Frias, 451 F. App’x 371, 372 (5th Cir. 2011) (holding that multiple air
fresheners provided evidence of guilt); United States v. Aguirre, 29 F.3d 624,
1994 WL 395034, at *1 (5th Cir. 1994) (affirming based on an “uncommonly
strong odor of air freshener”).         Peña-Gonzalez cites to another court’s
observation that occupants of a car may simply have liked the smell of air
freshener. See United States v. Guerrero, 374 F.3d 584, 589–91 (8th Cir. 2004)
(holding that air fresheners do not create reasonable suspicion). But “[a]
determination that reasonable suspicion exists . . . need not rule out the
possibility of innocent conduct,” Arvizu, 534 U.S. at 277, and here the multiple
air fresheners in the Tahoe emitted an “overwhelming odor” of “dryer sheets” 5
that was likely not pleasant to the occupants during the long ride from Houston
to Palmview. Reasonable suspicion determinations are highly factbound and
the number and placement of the fresheners, along with Tamez’s description
of the strong odor and the location of this stop along a drug corridor close to
the border, all distinguish this case from Guerrero. See Pack, 612 F.3d at 362
(taking account of “the large volume of contraband that is moved along our
major highways on a daily basis, especially in border states like Texas”).
      Mrs.    Peña’s   demeanor      and    inconsistent    statements,    during    a
conversation that took place in her native language of Spanish, are also part



      5 Tamez later discovered that the overwhelming odor came from actual dryer sheets
that Peña-Gonzalez used in an effort to conceal the bundles of cash.
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                                       No. 14-40126
of the overall circumstances that demonstrate the reasonableness of Tamez’s
suspicion that criminal activity was afoot. 6 Inconsistent stories, especially
when combined with other facts, can give rise to reasonable suspicion. Pack,
612 F.3d at 358. Here, Mrs. Peña paused for about four seconds when asked
the basic question of how long she spent in Houston. She switched her answer
with regard to whether her husband had purchased a car at an auction. She
went from saying that they had just spent one day in Houston to saying that
they had spent two nights there. And she said she lived in a place other than
that listed on her insurance. Again, all of these may well have innocent
explanations: Palmview is indeed a town that borders Mission, and perhaps
they had spent so much time driving that they really did only spend a day in
Houston despite staying two nights there. But the question is whether it was
reasonable for someone in Tamez’s shoes to view the answers as suspicious,
not whether they are convincing proof that Mrs. Peña was lying. See Fishel,
467 F.3d at 857 (holding that inconsistencies in a person’s story gave rise to
reasonable suspicion); United States v. Jones, 185 F.3d 459, 464 (5th Cir. 1999)
(noting that a person’s own conflicting statements to law enforcement are
probative of guilty knowledge).
       In sum, Officer Tamez had reasonable suspicion of criminal activity
apart from the traffic violation to continue the stop for the relatively short
additional three-minute time period during which he obtained consent to
search the Tahoe. See United States v. Place, 462 U.S. 696, 709 (1983) (holding



       6 The district court did not rely on Mrs. Peña’s statements in its ruling, focusing
instead only on the stickers, air fresheners, and symbols that Tamez observed. We may,
however, consider them because Tamez’s testimony on these points was not impeached and
a video captured the encounter. See Pack, 612 F.3d at 347 (noting, in conducting a reasonable
suspicion inquiry, that “[w]e may affirm the district court’s decision on any basis established
by the record”) (citing United States v. Ibarra-Sanchez, 199 F.3d 753, 758 (5th Cir. 1999)
(holding that “[t]o the extent the underlying facts are undisputed . . . we may resolve
questions such as probable cause and reasonable suspicion as questions of law”)).
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                                  No. 14-40126
that “the brevity of the invasion of the individual’s Fourth Amendment
interests is an important factor in determining whether the seizure is so
minimally intrusive as to be justifiable on reasonable suspicion”); see also Pack,
612 F.3d at 362 (holding “a delay of only eight minutes” was reasonable “[i]n
view of the suspicious facts that [the officer] had observed”). The district court
therefore properly denied Peña-Gonzalez’s motion to suppress.
                                       III.
      We next address Peña-Gonzalez’s argument that the Government denied
him the third level for timely acceptance of responsibility based on what he
contends is an impermissible consideration: his filing of a motion to suppress.
Section 3E1.1(b) reduces the offense level by 1
      upon motion of the government stating that the defendant has
      assisted authorities in the investigation or prosecution of his own
      misconduct by timely notifying authorities of his intention to enter
      a plea of guilty, thereby permitting the government to avoid
      preparing for trial and permitting the government and the court to
      allocate their resources efficiently[.]
      Peña-Gonzalez never objected to the presentence report or the sentence
for failing to include this reduction. He nonetheless argues that potential error
was preserved because the district court raised this issue sua sponte by asking
the Government if it planned to move for the third level. But that is a common
question asked by district judges that in no way questions the propriety of the
Government’s decision not to award the reduction. The district court never
heard argument on the issue now being raised, found any facts relevant to the
question, or ruled on whether filing a motion to suppress is a valid basis for
withholding the additional level. Accordingly, we review only for plain error.
See United States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012) (“If,
however, the defendant has failed to make his objection to the guidelines



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                                  No. 14-40126
calculation sufficiently clear, the issue is considered forfeited, and we review
only for plain error.”).
      Citing a recent Sentencing Commission amendment to the application
notes of Section 3E1.1(b) and cases from other circuits, Peña-Gonzalez
contends that a Section 3E1.1(b) reduction is required so long as the defendant
pleads guilty before trial. But the amendment that Peña-Gonzalez refers
specifically only to waivers of appeal:
      The government should not withhold such a motion based on
      interests not identified in § 3E1.1, such as whether the defendant
      agrees to waive his or her right to appeal.
U.S.S.G. § 3E1.1 app. n.6 (2013). It is unclear to what extent this was meant
to reject our previous rule that a suppression hearing may justify withholding
a Section 3E1.1(b) reduction. See United States v. Gonzalez, 19 F.3d 982 (5th
Cir. 1994) (reasoning that a suppression hearing can be “in effect the
substantive equivalent of a full trial, which required full participation by the
Government and allocation of the court’s resources”). The Government argues
that a suppression hearing implicates the interests identified in the Guideline
concerning “preparing for trial” and “permitting the government and the court
to allocate their resources efficiently.” U.S.S.G. § 3E1.1
      A circuit split exists on the issue, and no circuits have addressed the
issue since the amendment. Compare United States v. Rogers, 129 F.3d 76, 80
(2d Cir. 1997) (applying the same rule as the Fifth Circuit), with United States
v. Price, 409 F.3d 436, 443–44 (D.C. Cir. 2005) (reaching the opposite
conclusion), United States v. Marquez, 337 F.3d 1203, 1212 (10th Cir. 2003)
(same), and United States v. Kimple, 27 F.3d 1409, 1414–15 (9th Cir. 1994)
(same). Lacking authority for his position in this circuit, reinforced by the
existence of a split in other circuits, Peña-Gonzalez cannot show any error that
was plain or obvious. See United States v. Segura, 747 F.3d 323, 330 (5th Cir.

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                                  No. 14-40126
2014) (“[Defendant] cites no Fifth Circuit authority that would make the
district court’s error clear or obvious. Therefore, he fails to satisfy the second
prong of our clear error analysis.”).
                                  *     *     *
      The judgment is AFFIRMED.




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