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

                                                                   FILED
                                                                 October 31, 2007
                                No. 06-40495
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

LUCIANO HUERTA

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 7:01-CR-846-1


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      A jury convicted Luciano Huerta (“Huerta”) of one count of conspiracy to
commit money-laundering. He later pleaded guilty to one count of conspiracy to
possess with intent to distribute more than five kilograms of cocaine and more
than 100 kilograms of marijuana. Huerta now appeals the district court’s denial
of his motion to suppress evidence obtained as the result of a traffic stop during
which $192,568 in cash was found secreted in his car. Finding no error, we
AFFIRM.

      *
      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should not be published and is not precedent except under the limited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.
                                  No. 06-40495

      We review findings made by a district court on a motion to suppress for
clear error and the district court’s ultimate conclusions on Fourth Amendment
issues de novo, viewing the evidence in the light most favorable to the prevailing
party, in this case, the Government. See United States v. Santiago, 310 F.3d
336, 340 (5th Cir. 2002). We evaluate the legality of a stop and a subsequent
search under the familiar test of Terry v. Ohio, 392 U.S. 1 (1968). See United
States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc).
      Huerta recognizes the validity of a pretextual traffic stop as long as the
officer making the stop “h[as] probable cause to believe that a traffic violation
has occurred.” Whren v. United States, 517 U.S. 806, 810 (1996). However, he
alleges that Texas State Trooper Rick Magana created probable cause because
of a profiling hunch and alleged a two-mile-an-hour infraction. There is nothing
in the record to suggest that the district court clearly erred in finding that
Magana had probable cause to believe Huerta violated traffic laws. At the
suppression hearing, Huerta did not even contest the traffic stop.
      At the suppression hearing, Huerta contested his continued detention after
the traffic stop and renews this argument on appeal. The hearing testimony and
videotape show that in the four minutes before requesting a computer check,
Magana observed Huerta stop his car, immediately exit the vehicle, and
approach him. Huerta was driving a new car with paper license plates. At that
time, the license plate number and expiration date were hidden on the top right
of the Texas paper license plates. Magana walked around the car, stopped at the
driver’s side of the windshield, and looked where the vehicle identification
number would be located. He continued around the car and inspected the paper
license plate. He then returned to speak with Huerta. After turning on the
microphone for the video camera, Magana spoke to Huerta about his destination
and asked about the new car. He then patted down Huerta after telling him to
relax. After the pat-down, Magana asked for a computer check of Huerta’s



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drivers license. While waiting for the results of the computer check, Magana
asked Huerta for consent to search the car.
      The record shows that the district court did not err in finding that Huerta
was not unduly detained. The videotape and hearing testimony indicate that
Magana engaged in investigation necessary to the traffic stop, such as speaking
to Huerta about the vehicle, making a cursory inspection of the exterior of the
vehicle, and closely inspecting the paper license plate. Such investigation was
reasonably related to the traffic stop and determining whether the vehicle was
properly registered. These actions would “efficiently determine whether a traffic
violation ha[d] taken place, and if so, whether a citation or warning should [have
been] issued or an arrest made.” Brigham, 382 F.3d at 508. Also, “[a]n officer
may . . . ask about the purpose and itinerary of a driver’s trip during the traffic
stop.” Id. Thus, the initial part of the stop was justified.
      During a legitimate investigative stop, a police officer may, for his
protection, and without probable cause, conduct a limited protective search for
weapons if “he has reason to believe that he is dealing with an armed and
dangerous individual.” Terry v. Ohio, 392 U.S. 1, 27 (1968). A review of the
record does not indicate that the district court clearly erred in finding that
Magana was suspicious of answers that Huerta gave to the trooper’s questions.
Indeed, the testimony and videotape support that finding. The videotape also
shows Huerta’s immediate exit from the vehicle and approach toward Magana
after stopping his car. Under these circumstances, Magana’s initiation of a
limited pat-down of Huerta for weapons before requesting the computer check
was justified.
      Huerta acknowledges that an officer can run a computer check during a
traffic stop. See United States v. Shabazz, 993 F.2d 431, 437 (5th Cir. 1993). His
primary complaint about the length of detention is that there was no computer
check. However, the evidence clearly shows that Magana requested a computer
check of Huerta’s license.    Huerta recognizes that an officer can question

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subjects of a traffic stop during the time when a computer check is being
conducted. See United States v. Dortch, 199 F.3d 193, 198 (5th Cir. 1999). Thus,
there is no question that the continued detention after the pat-down was
justified. There is no clear error in the district court’s conclusion that Huerta
was not unduly detained.
      The final issue is whether the consent to search the car was valid, a
factual determination that we review for clear error. See United States v.
Tompkins, 130 F.3d 117, 120–21 (5th Cir. 1997). We look to (1) whether the
consent was voluntary and (2) whether it was an independent act of free will.
See United States v. Jenson, 462 F.3d 399, 406 (5th Cir. 2006).              The
voluntariness inquiry turns on the evaluation of six factors, no single one of
which is dispositive. Shabazz, 993 F.2d at 438.
      Our review of the testimony and the videotape persuades us that the
district court did not clearly err in determining that the consent was voluntary.
There was no evidence that Trooper Magana threatened Huerta if he did not
consent. Huerta was cooperative and was not handcuffed or under arrest. It is
unlikely that he believed that the money would be found given its location.
These factors weigh in favor of voluntary consent. Id. Further, there appears
to be no reason to question Huerta’s developmental level given his demeanor on
the videotape, although the record is silent regarding specific evidence and
findings regarding education and intelligence.
      Huerta was likely not free to leave while the license check was being
conducted, which could militate against a finding of voluntariness. See id. at
438. Further, there was no evidence that Huerta was aware of his right to
refuse consent. However, that is not fatal to a finding of voluntary consent. See
Schneckloth v. Bustamonte, 412 U.S. 218, 248–49 (1973). In sum, we find no
clear error in the district court’s conclusion that Huerta’s consent to search was
voluntary. Further, the search did not exceed the scope of Huerta’s general



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consent. See United States v. Mendoza-Gonzalez, 318 F.3d 663, 667 (5th Cir.
2003).
      Huerta’s argument that his consent was not an independent act of free will
because it was the product of the unlawful detention is without merit given our
conclusion that the detention was not unlawful. Accordingly, the judgment of
the district court is AFFIRMED.




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