     Case: 11-40783   Document: 00512099859     Page: 1    Date Filed: 01/03/2013




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

                                                                  FILED
                                                                 January 3, 2013

                                 No. 11-40783                    Lyle W. Cayce
                                                                      Clerk

UNITED STATES OF AMERICA

                                          Plaintiff - Appellee
v.

GABRIEL ANDRES

                                          Defendant - Appellant



             Appeal from the United States District Court for the
                         Southern District of Texas


Before BARKSDALE, DENNIS, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      Defendant - Appellant Gabriel Andres (“Andres”) appeals his conviction
and sentence for conspiracy to possess with intent to distribute more than five
kilograms of cocaine. Andres contends that the district court erred in denying
his motion to suppress evidence and in applying a two-point sentencing
enhancement for use of a minor to commit his crime. For the following reasons,
we AFFIRM the judgment of the district court.
                                BACKGROUND
      The factual background is based on testimony presented at the
suppression hearing before the district court. In 2009, U.S. Immigration and
Customs    Enforcement,    in   conjunction   with   the   Drug     Enforcement
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                                       No. 11-40783

Administration, was conducting an investigation into the drug trafficking
activities of Albert Figueroa Nava (“Figueroa”) in Laredo, Texas, and elsewhere.
Agents1 utilized physical surveillance as well as Title III wiretaps, and had
already seized several hundred kilograms of cocaine and several million dollars
of drug proceeds by December 2009. Based on their surveillance, agents believed
that on December 11, 2009, Figueroa and Christino Dominguez (“Dominguez”)
loaded approximately twenty kilograms of cocaine into a secret compartment in
a red pickup truck and parked the truck on a public street in front of a Holiday
Inn in Laredo, with a car carrier trailer attached to it. Agents installed a GPS
device on the underside of the truck while it was parked. On December 12, 2009,
agents observed Dominguez meeting with Andres near the truck, and Andres
subsequently driving the truck away. For various reasons, agents believed the
truck would be driven to Chicago. The agents preferred to let the truck leave
Laredo without seizing it to avoid jeopardizing the ongoing investigation and to
discover who would be receiving it.
       The agents ceased physical surveillance of the truck around 10:00 p.m. on
December 12, 2009. However, around 4:00 a.m. on December 13, 2009, the GPS
system notified agents that the truck had begun to move. Agents contacted the
nearby border patrol checkpoint to request that the truck not be searched, and
continued to monitor the truck’s location by GPS. When it became clear that the
truck was heading for Chicago on I-55, agents contacted the Illinois State Police.
The agents preferred that the drugs in the truck be discovered in a traffic stop,
which would make it unnecessary to reveal the existence of the federal
investigation. Agents informed Illinois State Police Sergeant Jamal Simington
(“Simington”) that a credible confidential informant (“CI”) would soon be


       1
         Because the identity of specific federal agents is not relevant to the analysis, all
federal agents involved in the Figueroa investigation and the present case are simply referred
to as “agents.”

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                                       No. 11-40783

contacting him with information about a vehicle traveling to Chicago, but did not
say anything about the Laredo investigation. The CI, assisted by agents, placed
a call to Simington and described the truck, explaining that it contained
narcotics and was heading for Chicago. The CI called Simington several more
times to provide updated information on the truck’s location, as revealed by the
GPS surveillance.
       On the morning of December 14, 2009, as the truck approached Chicago
from the south, Simington and several members of his team, including Sergeant
Chad Brody (“Brody”), were staged at various points along I-55. Simington was
positioned at the southernmost point, at mile marker 241 near Bloomington, in
an unmarked car. Brody was positioned at mile marker 263 in a marked car
with a drug-sniffing dog. Around 5:45 a.m., Simington observed the truck pass
him on I-55 and began to follow it. Simington observed that the trailer attached
to the truck was bouncing or swerving within its lane in a potentially dangerous
manner, and that the trailer’s taillights were not operating consistently.
Simington also informed the other members of his team that he had observed the
truck. The truck passed Brody around 6:19 a.m. and Brody began to follow it.
Brody observed that the trailer’s taillights were “flicker[ing] as if there was a
mechanical issue” and that the trailer was swaying back and forth within its
lane. Brody initiated a traffic stop based on improper lane usage and improper
lighting. The truck initially stopped on a narrow shoulder, so Brody directed the
truck to pull over to a ramp to get away from the interstate traffic.2
       Brody approached Andres, who was driving the truck, and requested his
driver’s license, registration, and insurance. Brody returned to his car and ran


       2
          Brody testified that the video camera in his patrol car automatically starts recording
when the emergency lights are activated. However, the video submitted into evidence does
not begin until the truck is already stopped on the side of the freeway. Brody testified that
he was informed after the fact that “the system performed some kind of soft reboot to where
it didn’t initially start recording right away.”

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a check on Andres’ license. Brody determined that Andres had a valid license,
a clean driving record, and no outstanding warrants, and decided to issue a
written warning for the traffic offenses. Brody wrote a warning ticket and
returned to the truck to speak with Andres. Brody asked Andres to get out of
the truck so that he could talk to Andres about the taillight problem. Andres
inspected the electrical connection between the truck and the trailer. Brody told
Andres that he would give him a warning ticket and handed him a clipboard to
sign the ticket.
      While Andres was signing the ticket, Brody asked him where he was
coming from. Andres replied that he was coming from Joliet, where he had
dropped off a car. However, Brody knew that Simington had spotted the truck
south of Joliet, and that Andres would not have had time to stop in Joliet. Brody
also observed at this point that Andres began to fidget and move his feet and
arms around, which Brody interpreted as nervousness. Brody asked Andres who
was in the truck with him. Andres responded that it was his stepdaughter, but
he did not know her last name. Brody then patted down Andres, checked inside
his jacket for weapons, and went to talk to the passenger, Noemi Gutierrez
(“Gutierrez”). She stated that she and Andres had come from Joliet, where they
had dropped off a van on Ruby Street.
      Brody returned to speak to Andres and asked him if he had any drugs in
the truck. Andres denied that he did, and said “go ahead and check.” Brody
asked permission to search for drugs with his dog, and Andres consented. The
dog alerted to the presence of drugs within about thirty seconds. Officers
ultimately found over twenty kilograms of cocaine in a hidden compartment in
the truck.
      Before the district court, Andres moved to suppress the drug evidence,
arguing that Brody did not initially have probable cause to stop the truck and
that the duration and scope of the stop were not justified by the alleged traffic

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offenses. The district court denied this motion in an oral ruling following the
suppression hearing. Andres then waived his right to jury trial and consented
to a bench trial based on stipulated facts in order to preserve his right to appeal
the suppression issue. The district court found Andres guilty of conspiracy to
possess with intent to distribute more than five kilograms of cocaine, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846.
      The presentence report recommended a two-level sentencing enhancement
pursuant to U.S.S.G. § 3B1.4, “Using a Minor to Commit a Crime,” because
Andres and Gutierrez had brought Gutierrez’s four-year-old daughter on the
drive to Chicago “to make the appearance of a family who was traveling and thus
to avoid the detection of the narcotics that were being concealed in the vehicle.”
Andres filed an objection to this enhancement. The district court overruled the
objection, finding that Andres and Gutierrez brought along Gutierrez’s daughter
to “giv[e] the impression that this was a family outing.” The district court
sentenced Andres to 135 months of imprisonment followed by five years of
supervised release. Andres filed a timely notice of appeal.
                                 DISCUSSION
I.    Motion to Suppress
      Andres argues that the drug evidence should be suppressed because it was
obtained through an unreasonable search that violated the Fourth Amendment.
He argues that the initial traffic stop by Brody was not justified because it was
“based on pretext rather than any actual offense.” He further argues that even
if the stop was initially justified, Brody’s continued questioning and dog search
were not reasonably related to the circumstances warranting the stop. Finally,
he argues that the warrantless use of a GPS device to track his movements for
several days constitutes an unreasonable search or seizure.
      “In reviewing a district court’s denial of a motion to suppress, we review
the district court’s findings of fact for clear error and its conclusions of law de

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novo.” United States v. Lopez-Moreno, 420 F.3d 420, 429 (5th Cir. 2005) (citation
omitted). “In reviewing findings of fact, we view the evidence in the light most
favorable to the party prevailing below, which in this case is the Government.”
Id. (citation omitted).
      The Fourth Amendment provides that “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated.” U.S. CONST. amend. IV. This
protection extends to vehicle stops and temporary detainment of a vehicle’s
occupants. United States v. Shabazz, 993 F.2d 431, 434 (5th Cir. 1993). We
analyze the constitutionality of a traffic stop using the two-step inquiry set forth
in Terry v. Ohio, 392 U.S. 1 (1968). United States v. Macias, 658 F.3d 509, 517
(5th Cir. 2011). First we determine whether the stop was justified at its
inception. Id. If the initial stop was justified, we determine “whether the
officer’s subsequent actions were reasonably related in scope to the
circumstances that justified the stop of the vehicle in the first place.” Id.
      A.    Validity of Initial Stop
      “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.”
Lopez-Moreno, 420 F.3d at 430. Brody testified that he stopped Andres because
the taillights on the truck’s trailer were flickering and because the truck and
trailer were swaying back and forth within the lane. Andres does not contend
that improper lighting and improper lane usage are not in fact traffic violations;
rather, he argues that, contrary to Brody’s testimony, he did not commit these
violations. Andres points out that the video evidence, which begins when Andres
is already pulled over and shows him driving slowly from the shoulder of the
freeway onto a ramp, reveals no lighting problems or swerving. However, this
does not establish that the swerving and lighting problems were not present

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prior to the stop, when Andres was traveling at highway speed. The district
court credited Brody’s testimony concerning the traffic violations, and the video
and other evidence does not show that this factual finding was clearly erroneous.
Accordingly, the stop was justified at its inception based on observed traffic
violations.
      B.      Duration and Scope of Stop
      A traffic stop “must be temporary and last no longer than is necessary to
effectuate the purpose of the stop, unless further reasonable suspicion,
supported by articulable facts, emerges.” United States v. Brigham, 382 F.3d
500, 507 (5th Cir. 2004) (en banc). “If the officer develops reasonable suspicion
of additional criminal activity during his investigation of the circumstances that
originally caused the stop, he may further detain [the] occupants [of the vehicle]
for a reasonable time while appropriately attempting to dispel this reasonable
suspicion.” United States v. Pack, 612 F.3d 341, 350 (5th Cir. 2010).
      Andres argues that his “detention impermissibly exceeded its original
scope when Sergeant Brody detained him longer than necessary to issue a
written warning and then questioned him about matters wholly unrelated to the
purpose of a routine traffic stop.”     This court has emphasized that police
questioning, even about matters unrelated to a traffic stop, does not violate the
Fourth Amendment absent some nonconsensual restraint on one’s liberty.
Brigham, 382 F.3d at 508. Accordingly, the question is only whether Andres was
detained for longer than necessary to deal with the initial traffic violations, and
if so, whether additional reasonable suspicion of wrongdoing developed during
the time that Brody was legitimately addressing the traffic violations. The
government understandably does not contend that the entire stop, including the
continued interrogation of Andres and his passenger and the dog search, was
justified by the initial traffic violations. Rather, the government argues that
Andres’ untruthful answers and nervousness, the anonymous tip stating that the

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                                 No. 11-40783

truck was carrying drugs, and other factors created additional reasonable
suspicion justifying the continued detention.
      Andres contends that after Brody checked his driving and criminal records
and wrote a warning ticket, Brody should have immediately obtained his
signature on the ticket and let him go. Instead, Brody asked Andres to walk to
the back of the trailer to look at the lights that were previously flickering and
the wiring that might have been loose. After briefly discussing the lights and
wiring, Brody handed Andres the warning ticket to sign and immediately asked
him where he was coming from. Andres responded that he had come from Joliet.
However, Brody knew that Simington had spotted Andres coming from south of
Joliet, and that given the amount of time that had passed since Simington
spotted Andres, Andres would not have had time to make a stop in Joliet. The
government argues that this initial question, which revealed to Brody that
Andres was lying and thereby created further suspicion, took place while Andres
was signing the warning ticket and did not extend the duration of the stop. The
district court found that the initial question and answer occurred “as the
legitimate stop [was] still in progress,” and that Andres’ further responses and
nervousness created additional suspicion. The district court concluded that
these facts provided Brody with a legitimate basis to continue the stop.
      We do not find it unreasonable that an officer who has stopped a driver
based on code violations and safety concerns involving a trailer would ask the
driver to exit the vehicle to look at the trailer and discuss the problems.
Furthermore, we agree that Brody’s question asking where Andres was driving
from occurred before Brody had finished dealing with the traffic offenses and did
not extend the scope or duration of the stop. Andres’ untruthful answer created
further suspicion justifying continued detention, and his subsequent answers
created even further suspicion. Based on this reasonable suspicion, Brody
continued to investigate, ultimately requesting and receiving permission to

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search the truck. Because Brody’s continued search and seizure beyond the
scope of the initial traffic stop were justified by additional reasonable suspicion,
the district court did not err in concluding that the scope of the stop was
reasonable.
      C.      GPS Monitoring
      In United States v. Jones, 132 S. Ct. 945, 949 (2012), the Supreme Court
held that “the Government’s installation of a GPS device on a target’s vehicle,
and its use of that device to monitor the vehicle’s movements, constitutes a
‘search.’” Although Jones did not reach the issue of whether warrantless GPS
searches are unreasonable, “[w]arrantless searches are per se unreasonable
under the Fourth Amendment, subject to a few specific exceptions.” United
States v. Mata, 517 F.3d 279, 284 (5th Cir. 2008) (citing Coolidge v. New
Hampshire, 403 U.S. 443, 474-75 (1971)). Andres argues that the warrantless
placement and use of the GPS device to monitor the truck he was driving
violated the Fourth Amendment. Andres further argues that because this illegal
GPS search directly led to the discovery of the drugs in his truck, the drugs must
be suppressed under the “fruit of the poisonous tree” doctrine. See, e.g., United
States v. Hernandez, 670 F.3d 616, 620 (5th Cir. 2012).
      Because Andres did not argue before the district court that the GPS search
was unconstitutional, we review his argument only for plain error. See United
States v. Baker, 538 F.3d 324, 328-29 (5th Cir. 2008). To demonstrate plain
error, an appellant must show an error that is clear or obvious and that affected
his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If the
appellant makes such a showing, this court has the discretion to remedy the
error, but should do so only if the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings. Id. “[W]here the law is unsettled
at the time of trial but settled by the time of appeal, the ‘plainness’ of the error



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should be judged by the law at the time of appeal.” United States v. Escalante-
Reyes, 689 F.3d 415, 423 (5th Cir. 2012) (en banc).
      We need not decide whether warrantless GPS searches are per se
unreasonable. Furthermore, we need not decide whether the agents in this case
acted without a warrant or whether the drug evidence is derived from the GPS
search. Even assuming that a Fourth Amendment violation occurred and that
suppression would otherwise be appropriate, the evidence should not be
suppressed in this case because the officers acted in reasonable reliance on
circuit precedent.
      “[S]earches conducted in objectively reasonable reliance on binding
appellate precedent are not subject to the exclusionary rule.” Davis v. United
States, 131 S. Ct. 2419, 2423-24 (2011). In December 2009, it was objectively
reasonable for agents operating within the Fifth Circuit to believe that
warrantless GPS tracking was permissible under circuit precedent. In United
States v. Michael, 645 F.2d 252, 257 (5th Cir. 1981) (en banc), this court held
that “reasonable suspicion is adequate to support warrantless beeper
installation” on a suspect’s vehicle parked in a public place. Although the
precise technological capabilities of the beeper were not explained in the opinion,
the court described it as an “electronic tracking device.” Id. at 254. The dissent
was concerned that the beeper would “enable[] [police] to maintain continuous
electronic surveillance over [a person’s] movements twenty-four hours per day
continuously and indefinitely.” Id. at 260 (Tate, J., dissenting). Despite any
possible technological differences between a 1981 “beeper” and the GPS device
used in this case, the functionality is sufficiently similar that the agents’ reliance
on Michael to install a GPS device on the truck, in light of the reasonable
suspicion of drug trafficking, was objectively reasonable. Because we find that
the district court did not err in refusing to suppress the drug evidence, we do not
reach the remaining plain error factors.

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II.      Sentence Enhancement
         “We review the district court’s factual findings for clear error and its
interpretation and application of the Guidelines de novo.” United States v.
Molina, 469 F.3d 408, 413 (5th Cir. 2006) (quotation and citation omitted). The
district court concluded that the § 3B1.4 enhancement was justified because
Andres and Gutierrez brought Gutierrez’s daughter on the drive to avoid
suspicion by appearing to be on a “family outing.” Andres does not appear to
challenge any factual finding by the district court; rather, he argues that
because Gutierrez’s daughter was “already in the vehicle” when he received it,
he did not take any affirmative action to involve her in the offense. As Andres
notes, the mere presence of a minor at the scene of a crime is insufficient to
support an enhancement based on § 3B1.4; a defendant must “take some
affirmative action to involve the minor in the offense.” United States v. Mata,
624 F.3d 170, 176 (5th Cir. 2010). Even assuming that Gutierrez’s daughter was
already in the truck when Andres received it, the district court did not err in
concluding that Andres’ choosing to drive a truck containing over twenty
kilograms of cocaine and a four-year-old girl from Laredo to Chicago constitutes
an “affirmative act” involving a minor in the offense. Accordingly, the district
court did not err in applying the § 3B1.4 enhancement.
                                 CONCLUSION
         For the reasons stated above, we AFFIRM the judgment of the district
court.




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