                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         APR 23 1999
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 98-2238
 v.
                                                 (D.C. No. CR-97-303 HB)
                                                        (D. N.M.)
 JESUS MAGALLANES,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.


      Defendant-appellant Jesus Magallanes entered a conditional guilty plea to

federal drug and weapons charges, and now appeals the district court’s denial of

his motion to suppress certain physical evidence in the case. We affirm.




      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This Order and Judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
                                  BACKGROUND

      The transcript of the suppression hearing reveals the following facts.

At 8:20 a.m. on April 29, 1997, Magallanes was stopped for driving 68 m.p.h. in a

55 m.p.h. zone on U.S. Highway 54, north of Carrizozo, New Mexico. Magallanes

was driving a blue Peterbilt truck tractor without a trailer. Inspector Chris

Mydock of the New Mexico Motor Transportation Division ran a check on

defendant’s license and found no problems. However, Mydock noticed that

defendant paced back and forth behind the truck in a nervous manner. He also

observed that the fifth wheel on the truck did not have a shiny or greasy

appearance, which suggested to him that no trailer had been attached to the truck

for some time. Because Mydock was alone and was concerned for his safety, he

issued a speeding citation and allowed defendant to leave, but radioed ahead to

fellow inspectors that the vehicle would be “a good check,” meaning that he felt

there was a possibility of illegal activity.

      At around 9:30 a.m., fellow inspectors Virgil Mayberry and Donald

Montano, on watch for the blue Peterbilt truck, clocked defendant on radar

driving 58 m.p.h. in a 55 m.p.h. zone. They also noted that the tractor truck

kicked up dust, indicating that it may have veered off the narrow road. The

inspectors stopped defendant and gave him a verbal warning for his speed and




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inattentive driving. 1 Mayberry asked why defendant was “bob-tailing” (driving a

tractor without a trailer). Magallanes told him that he had taken an empty trailer

from El Paso to Missouri but that because he did not want to wait two days for a

load, he had decided to come back without a trailer. Mayberry was suspicious of

Magallanes’ story, given the high expense of operating a tractor truck. Mayberry

checked defendant’s paperwork, found it in order, and returned it to defendant.

Mayberry testified that he then asked Magallanes for permission to search the

vehicle, and that Magallanes gave his verbal consent.

      Mayberry entered the tractor, found defendant’s logbook, and discovered a

logbook violation, for which he cited defendant. While Mayberry filled out the

citation and performed a paperwork inspection, Montano questioned Magallanes

about the logbook. The logbook revealed that defendant was making frequent

stops and placing himself out of service, which Montano found suspicious.

Defendant also gave inconsistent answers about his recent travels, and become

nervous and confused.

      Mayberry eventually presented the inspection forms and citation to

defendant to sign. Montano testified that while defendant signed the citation,

Montano asked for and received defendant’s verbal consent to search the truck.




      Defendant was never issued a citation for any traffic violation during this
      1

second stop.

                                       -3-
Montano then entered the truck and discovered a brown paper bag with a large

sum of cash bundled by denomination. Montano told Mayberry about the money,

and signaled to Mayberry to handcuff Magallanes. Mayberry then handcuffed

defendant but advised him that he was only being detained, not arrested, and that

the handcuffs were for the officers’ safety and defendant’s own safety. At that

point, Mayberry entered the truck to continue the search and discovered several

packages of suspected contraband and a semiautomatic handgun. After

conducting field tests on the suspected contraband, the officers read defendant his

Miranda rights.

      In the meantime, Sergeant Jim Stewart arrived at the scene, and asked

Mayberry if a consent to search form had been signed. Mayberry asked defendant

in the presence of the other two officers if he had given consent to search.

Montano testified that defendant replied that he had. Magallanes then signed the

consent form.

      Magallanes was charged with violating 21 U.S.C. § 841(a)(1) and 18 U.S.C.

§ 924(c). In ruling on defendant’s motion to suppress, the district court found

that the stop was not pretextual, that defendant consented to the search, and that

the search did not exceed the scope of defendant’s consent. As a result, the court

did not suppress the physical evidence seized. However, the court ruled that any

statements made by defendant after being handcuffed and before being


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Mirandized were suppressed. Magallanes entered a conditional guilty plea, and

now appeals the district court’s ruling with respect to the physical evidence.

                                   DISCUSSION

      In reviewing the denial of a motion to suppress, we accept the district

court’s factual findings unless they are clearly erroneous; however, the ultimate

determination of reasonableness under the Fourth Amendment is a question of law

which we review de novo. See United States v. Botero-Ospina, 71 F.3d 783, 785

(10th Cir. 1995), cert. denied, 518 U.S. 1007 (1996). We review the evidence on

appeal in the light most favorable to the government. Id.

      Defendant does not challenge the initial stop of his truck by Inspector

Mydock; rather, he contends that the second stop by Mayberry and Montano was

pretextual and therefore violated his Fourth Amendment right to be free from

unreasonable searches and seizures. Defendant further argues that any consent to

search that he gave should be suppressed because it was obtained after he was in

custody and before he had been given any Miranda warnings.

      A traffic stop is a seizure within the meaning of the Fourth Amendment.

Botero-Ospina, 71 F.3d at 786. A traffic stop is valid under the Fourth

Amendment if the stop is based on an observed traffic violation. See United

States v. Villa-Chaparro, 115 F.3d 797, 801 (10th Cir.) (citing Botero-Ospina, 71

F.3d at 787), cert. denied, 118 S. Ct. 326 (1997). The constitutional


                                        -5-
reasonableness of a traffic stop does not depend on the actual subjective

motivations of the individual officers involved. See Whren v. United States, 517

U.S. 806, 813 (1996). Rather, “[o]ur sole inquiry is whether this particular

officer had reasonable suspicion that this particular motorist violated any one of

the multitude of applicable traffic and equipment regulations of the jurisdiction.”

Villa-Chaparro, 115 F.3d at 801 (quoting Botero-Ospino, 71 F.3d at 787).

      Here, Officer Mayberry testified that he clocked the defendant by radar

driving in excess of the posted speed limit. The district court found the officers’

testimony credible, and defendant offered no contrary evidence other than his own

subjective belief that he was not speeding at the time. For purposes of our Fourth

Amendment analysis, the officers’ actual motivation in stopping defendant is

irrelevant; the stop was based on an observed traffic violation, and was therefore

constitutionally reasonable under Whren and Villa-Chaparro.

      Likewise, the officers’ search of the truck was not constitutionally invalid.

A vehicle may be validly searched without a warrant or probable cause if a person

in control of the vehicle has given his voluntary consent to the search. See United

States v. Santurio, 29 F.3d 550, 552 (10th Cir. 1994) (citing Schneckloth v.

Bustamonte, 412 U.S. 218 (1973)). Whether voluntary consent has been given is

a question of fact and is determined from the totality of the circumstances. See id.

(citing United States v. Mendenhall, 446 U.S. 544 (1980)).


                                         -6-
       Here, the officers testified that they each asked for and received

Magallanes’ verbal consent to search the truck prior to placing him in custody.

Mayberry originally asked for consent shortly after he and Montano stopped

Magallanes. After the officers discovered the logbook violation and Montano

become suspicious of the unusual series of stops reflected in the logbook,

Montano asked for and received defendant’s permission a second time to search

the truck. Montano then discovered the paper bag containing cash, which led to

the officers’ handcuffing of defendant. As before, the district court found the

officers’ testimony to be credible, and Magallanes offered no testimony or

evidence challenging the officers’ version of events. The district court’s finding

that Magallenas twice gave voluntary consent to search before he was placed in

custody is not clearly erroneous. 2

      Because the officers reasonably stopped defendant based on an observed

traffic violation, and because the district court’s finding that defendant twice gave

voluntary consent to search prior to being taken into custody was not clearly



      2
       Magallanes contends that his written consent should have been suppressed
because it was obtained after he was taken into custody and before he had been
given any Miranda warnings. Magallanes’ argument might carry weight if his
written consent (obtained after the searches had been conducted and while he was
in custody) had been the only consent obtained by the officers in this case.
However, even assuming that his written consent -- given after the searches took
place -- was involuntary, his voluntary consent given prior to the searches is not
somehow thereby invalidated.

                                        -7-
erroneous, we conclude that the officers’ actions did not violate the Fourth

Amendment. As a result, the district court properly denied defendant’s motion to

suppress. AFFIRMED.

      The mandate shall issue forthwith.

                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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