     Case: 17-40005    Document: 00514408839       Page: 1   Date Filed: 03/30/2018




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

                                    No. 17-40005                       FILED
                                                                 March 30, 2018
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk

             Plaintiff - Appellee

v.

JUAN PERALES,

             Defendant - Appellant




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


Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit
Judges.
CARL E. STEWART, Chief Judge:
      Defendant-Appellant Juan Perales appeals the district court’s denial of
his motion to suppress several bundles of cocaine discovered and seized after
he consented to the search of his vehicle. Because we conclude the district court
did not clearly err in finding that Perales’s consent to the search was voluntary,
we AFFIRM.
                               I.      BACKGROUND
      On January 13, 2016, Agent Michael Tamez (“Agent Tamez”) of the
Kingsville Specialized Crimes and Narcotics Task Force observed a Chevrolet
Silverado pickup truck with a non-functioning brake light; a computer check
    Case: 17-40005      Document: 00514408839      Page: 2    Date Filed: 03/30/2018



                                   No. 17-40005
of the vehicle’s license plate indicated that the truck might not be insured.
Because both the faulty brake light and driving without valid liability
insurance are violations of the Texas Transportation Code, Agent Tamez
initiated a traffic stop. 1 Agent Tamez asked Perales, who was the sole occupant
of the truck, for his identification and proof of liability insurance. Perales
provided his identification, but could not readily locate his insurance
documentation. According to Agent Tamez, “[Perales] looked underneath the
seat. He looked near the left door panel . . . and eventually he went to the glove
compartment. And the documentation was inside the glove compartment,”
which was completely empty except for the insurance documents. Agent Tamez
observed that the insurance policy had been purchased the day before the
traffic stop and was only good for thirty days. At the suppression hearing,
Agent Tamez testified that, in his experience as a drug interdiction officer, it
was common in instances of drug trafficking for the driver of the vehicle to be
unfamiliar with the location of insurance documents and for the interior of the
vehicle to lack signs of personalization. It was also common for smugglers to
get a 30-day liability insurance policy so that if the vehicle is seized carrying
contraband, “the [smuggling] organization itself does not lose out on money by
buying a six month or year long (sic) insurance policy.”
      After receiving Perales’s identification and insurance paperwork, Agent
Tamez asked Perales “how he was doing,” and asked him to “exit the vehicle
and step to the rear.” Perales complied, and Agent Tamez “asked him to sit
inside the front seat of [the] patrol unit.” Perales again complied. Agent Tamez
climbed into the driver’s seat of the patrol unit, explained the traffic violation
to Perales, and told Perales that he was going to issue him a warning. Agent



      1 Agent Jacob Moya was riding along with Agent Tamez and sat in the back seat of
the patrol unit during the traffic stop.
                                          2
     Case: 17-40005       Document: 00514408839         Page: 3    Date Filed: 03/30/2018



                                      No. 17-40005
Tamez began preparing the warning, which he testified required that he both
verify and input information into three different computer systems using three
different screens. While preparing the warning, Agent Tamez noticed that the
name and address listed on the vehicle registration differed from that included
on Perales’s driver’s license. Agent Tamez then asked Perales a series of
questions about several subjects, including how long Perales had owned the
truck, where he was traveling to and from, and the purpose for his trip. Perales
responded that he owned the truck and had purchased it three months prior,
and that he was traveling to Houston from Brownsville to find a job. Although
Agent Tamez observed that Perales was not nervous when answering his
questions, Agent Tamez testified that Perales gave inconsistent or deceptive
answers to his questions. Agent Tamez also drew suspicion from the make and
model of Perales’s vehicle, which, in his experience and training, was
commonly used by drug smugglers to hide drugs. Agent Tamez asked Perales
whether the truck contained any drugs or weapons, and Perales responded it
did not.
       Based on his interaction with Perales, Agent Tamez asked for consent to
search the vehicle. Perales offered consent, and Agent Tamez began searching
the vehicle. At the time of the request, Agent Tamez had yet to return Perales’s
driver’s license or issue him the warning citation. Perales remained seated in
the front seat of Agent Tamez’s patrol unit unrestrained. 2
       Agent Tamez and Agent Moya searched Perales’s vehicle and ultimately
found 2.99 kilograms of cocaine concealed in the engine compartment of the
truck. 3 Agent Tamez also found a notebook piece of paper with directions to


       2 Agent Tamez testified that Perales was not seat-belted in or handcuffed as he sat in
the front seat of the patrol unit, and that the doors were not locked.
       3 The record does not indicate that Agent Moya had any meaningful interaction with

Perales during the traffic stop other than to assist in searching Perales’s truck after Agent
Tamez received consent.
                                             3
     Case: 17-40005        Document: 00514408839          Page: 4     Date Filed: 03/30/2018



                                        No. 17-40005
Charleston, South Carolina, in Perales’s back pocket. Perales was
subsequently charged by criminal complaint with conspiring to possess with
intent to distribute, and possessing with intent to distribute, more than 500
grams of cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(B).
       Before trial, Perales sought to suppress the bundles of cocaine discovered
during the search of the truck, arguing, inter alia, that he did not voluntarily
consent to the search of his vehicle. 4 The district court held an evidentiary
hearing on Perales’s motion to suppress, during which it heard testimony from
Agent Tamez and watched a video recording of the traffic stop that was
captured on Agent Tamez’s body camera. At the close of testimony and after
hearing additional argument from both sides, the district court concluded that
Agent Tamez conducted a “pretty routine traffic stop,” and that “[Perales]
clearly gave consent.” As is relevant to the instant appeal, the district court
found that Agent Tamez did not use coercive police procedures, although it
ambivalently opined that placing Perales in the patrol unit might have been
coercive. 5 Concerning the voluntariness of Perales’s consent, the district court
concluded that “there are factors going both ways” with “more factors . . . in
favor of finding the consent to be voluntary,” and that, given the totality of the
circumstances, “the consent was voluntary under the law.” The district court
orally denied Perales’s motion to suppress, and, after a two-day jury trial,
Perales was convicted of the substantive drug count. At sentencing, the district




       4  Perales also initially argued that the traffic stop was impermissibly extended beyond
its initial scope. The district court found that Perales’s detention was not delayed or
prolonged in any way. Perales does not challenge that finding on appeal.
        5 The district court held: “The presence of coercive police procedures, I don’t find any,

only to the extent that he was in the police car. If you want to call that coercive, you may
have a different issue here. The officer acted very professionally in the way he treated the
defendant.”
                                               4
    Case: 17-40005     Document: 00514408839     Page: 5   Date Filed: 03/30/2018



                                  No. 17-40005
court imposed the statutory mandatory minimum sentence of 60 months’
imprisonment and four years of supervised release.
                                 II.   DISCUSSION
   A. Standard of Review
      In reviewing a district court’s grant of a motion to suppress evidence
obtained in violation of the Fourth Amendment, this court reviews the district
court’s factual findings for clear error and its legal conclusions de novo. United
States v. Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003). Voluntariness of consent
is a factual inquiry that is reviewed for clear error. United States v. Rounds,
749 F.3d 326, 338 (5th Cir. 2014). A factual finding is not clearly erroneous if
it is plausible when reviewed in the light of the entire record. United States v.
Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). “Where a court has based its
denial on live testimony, ‘the clearly erroneous standard is particularly strong
because the judge had the opportunity to observe the demeanor of the
witnesses.’” Rounds, 794 F.3d at 338 (quoting United States v. Santiago, 410
F.3d 193, 197 (5th Cir. 2005)). We view the evidence introduced at a
suppression hearing in the light most favorable to the prevailing party, here,
the Government. United States v. Orozco, 191 F.3d 578, 581 (5th Cir. 1999).
   B. Analysis
      Perales argues that the district court erred in finding his consent
voluntary. “A search conducted pursuant to consent is excepted from the
Fourth Amendment’s . . . [warrant and probable cause] requirements.” United
States v. Brown, 567 F. App’x 272, 279 (5th Cir. 2014) (unpublished) (quoting
United States v. Solis, 299 F.3d 420, 436 (5th Cir. 2002)). “Where the
Government asserts that no search warrant was required because the officer
obtained voluntary consent for the search, the [G]overnment must prove by a
preponderance of the evidence that consent was freely and voluntarily given.”
Id. (citing United States v. Tompkins, 130 F.3d 117, 121 (5th Cir. 1997)).
                                        5
    Case: 17-40005     Document: 00514408839     Page: 6   Date Filed: 03/30/2018



                                  No. 17-40005
Whether “consent to a search was in fact ‘voluntary’ or was the product of
duress or coercion, express or implied, is a question of fact to be determined
from the totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S.
218, 227 (1973). This court uses a six-factor evaluation to determine whether
a defendant voluntarily consented to a search. The factors include: (1) the
voluntariness of the defendant’s custodial status; (2) the presence of coercive
police procedures; (3) the extent and level of the defendant’s cooperation with
the police; (4) the defendant’s awareness of his right to refuse consent; (5) the
defendant’s education and intelligence; and (6) the defendant’s belief that no
incriminating evidence will be found. United States v. Wise, 877 F.3d 209, 221–
22 (5th Cir. 2017) (citing United States v. Williams, 365 F.3d 399, 406–07 (5th
Cir. 2004)). “Although all six factors are relevant, no single factor is
dispositive.” United States v. Shabazz, 993 F.2d 431, 438 (5th Cir. 1993).
      Perales does not challenge much of the district court’s application of the
six-factor test on appeal. He only argues that the district court’s consent
finding was based on the erroneous conclusion that Agent Tamez did not use
coercive procedures. Perales primarily relies on this court’s statement in
United States v. Cavitt, 550 F.3d 430, 439 (5th Cir. 2008), that “an officer’s
retention of identification documents suggests coercion,” to argue that Agent
Tamez’s failure to turn over Perales’s identification documents prior to
requesting consent necessarily requires a finding of coercion. Perales’s
contentions are unavailing.
      Contrary to Perales’s assertions, Cavitt did not establish a bright-line
rule that an officer’s retention of identification documents requires a finding of
coercion. Indeed, the language in Cavitt suggests the contrary: an officer’s
retention of identification documents is a factor the court considers when
determining whether the officer used coercive police procedures, but is
otherwise not controlling or dispositive. See id. Further, Cavitt and other cases
                                        6
    Case: 17-40005     Document: 00514408839     Page: 7   Date Filed: 03/30/2018



                                  No. 17-40005
Perales cites to support his position suggest that the court’s concern about
coercion is often preceded by an independent constitutional violation, i.e.,
where an officer has impermissibly prolonged a traffic stop or initiated a stop
without reasonable suspicion. See id. (noting that an officer’s retention of the
driver’s identification documents after an unconstitutionally prolonged stop
weighed in favor of a finding of coercion, but rendering inconclusive whether
the officer’s search of Cavitt’s vehicle was voluntary); see also United States v.
Chavez-Villarreal, 3 F.3d 124, 128 (5th Cir. 1993) (noting, without holding,
that an immigration agent’s retention of the defendant’s alien registration
cards at the time he asked for permission to search the defendant’s vehicle was
an element of coercion because the agent initiated the stop without reasonable
suspicion, but pretermitting its inquiry into the voluntariness of the
defendant’s consent); Brown, 567 F. App’x at 280 n.5 (5th Cir. 2014)
(unpublished) (observing that, “[a]lthough it is coercive for a police officer to
retain identification documents after a lawful stop is complete,” the traffic stop
“was not completed when [the officer] sought [the defendant’s] consent,” and
the officer’s retention of the defendant’s license was therefore not coercive).
      To the point, Agent Tamez’s initial stop was justified, and, during the
traffic stop, Agent Tamez was permitted to examine Perales’s driver’s license
and registration and to run computer checks. See United States v. Brigham,
382 F.3d 500, 507–08 (5th Cir. 2004). Approximately ten minutes elapsed
between Agent Tamez’s initial encounter with Perales and the moment he
asked for Perales’s consent. Although it is unclear how long it took Agent
Tamez to complete the checks and at what point the computer checks were
actually completed, it is clear that they were not completed when Agent Tamez
sought Perales’s consent. That Agent Tamez had not completed running the
necessary computer checks before seeking Perales’s consent, and that Perales
does not challenge the length of time that elapsed before Agent Tamez sought
                                        7
    Case: 17-40005     Document: 00514408839     Page: 8   Date Filed: 03/30/2018



                                  No. 17-40005
consent, are both crucial to our determination that the district court did not
clearly err in finding Agent Tamez’s retention of Perales’s identification
documents was not coercive.
      Perales cites as an additional indication of coercion that Agent Tamez
placed Perales in the front seat of his patrol unit to conduct the computer
checks at the time he requested consent. We find this contention unpersuasive.
      The district court twice noted the oddity of Agent Tamez’s practice of
placing a detainee in the front seat of his patrol unit during a traffic stop, and
suggested this could, under certain circumstances, constitute coercive police
procedures. At least one case supports this conclusion. In United States v.
Zavala, 459 F. App’x 429 (5th Cir. 2012) (unpublished), Zavala was asked to
sit in the passenger seat of the patrol cruiser while the state trooper conducted
an investigation into Zavala’s itinerary. Id. at 431. The trooper sought Zavala’s
consent to check his vehicle for drugs at a checkpoint several miles away. Id.
The court noted that the trooper coercively obtained Zavala’s consent while he
was in the police cruiser because, although the doors were not locked, he was
in the cruiser at the trooper’s direction and needed the trooper’s permission to
exit the cruiser. Id. at 433–34. However, Zavala’s position in the front seat of
the patrol unit was one of many factors signaling coercion. The court also
considered that the trooper made clear he intended to conduct a drug sniff on
Zavala and was forceful in his instruction to have Zavala consent to the search.
Id. Taken together, these factors led the court to conclude that the trooper used
coercive police procedures. See id.
      Here, Agent Tamez’s interaction with Perales was cordial, and the record
does not indicate that Agent Tamez used verbal threats or intimidation to
obtain Perales’s consent or that an independent constitutional defect preceded
or accompanied Agent Tamez’s placing Perales in his patrol unit. See id. at
433–34; see also United States v. Jones, 234 F.3d 234, 242–43 (5th Cir. 2000),
                                        8
     Case: 17-40005       Document: 00514408839         Page: 9     Date Filed: 03/30/2018



                                       No. 17-40005
abrogated in part on other grounds by United States v. Pack, 612 F.3d 341 (5th
Cir. 2010) (holding that an officer impermissibly prolonged a traffic stop
beyond the completion of computer checks, and observing without deciding
that the officer’s subsequent attempts to obtain consent while still in
possession of the driver’s identifying documentation and while the driver was
in the back seat of the patrol unit could lead to an inference of coercion).
Therefore, the district court did not clearly err in finding that Agent Tamez did
not act coercively by placing Perales in the front seat of his police cruiser to
run computer checks. 6
       Perales also offers that Agent Moya’s presence during the traffic stop
added a “modicum of coerciveness” to the situation, and cites United States v.
Washington, 992 F. Supp. 2d 789, 794 (N.D. Ohio 2014). In Washington, the
court found coercion where two armed police officers “flanked” the defendant’s
vehicle during a traffic stop and were involved “directly” at all times during
the stop. Id. Here, in contrast, there is no indication that Agent Moya exited
the patrol unit during the traffic stop or otherwise interacted with Perales
prior to searching his truck. Agent Moya’s presence was therefore not coercive.
       Finally, Perales passively asserts that Agent Tamez used coercive
procedures because, prior to asking for consent, Agent Tamez told Perales he
would only be issued a warning. In support, Perales cites United States v.



       6  Importantly, Agent Tamez testified at the evidentiary hearing that it is his common
practice to place detained drivers in the front seat of his patrol unit, where he can easily
input information into his computer system to issue a warning or citation. The court
ultimately accepted that fact and found that Agent Tamez’s practice did not indicate coercion.
Agent Tamez’s justification for placing detained drivers in his patrol unit is analogous to
those cited by the officer in United States v. Torres-Borunda, 269 F. App’x 431, 433 (5th Cir.
2008) (unpublished) (per curiam), in which a panel of this court held that placing a driver in
a patrol unit to obtain information from him can be a matter of convenience, and not coercion,
if the officer is obtaining information from the driver at the time he requests consent. Here,
that Agent Tamez placed Perales in his patrol unit to more easily input necessary information
to complete the computer checks seems more a matter of convenience than coercion.
                                              9
   Case: 17-40005     Document: 00514408839      Page: 10   Date Filed: 03/30/2018



                                  No. 17-40005
Robertson, 614 F. App’x 748 (5th Cir. 2015) (unpublished) (per curiam), in
which the court determined that the officer engaged in coercive police
procedures when he twice stated “before you go” as part of his request for
consent to search the defendant’s vehicle. Id. at 749. However, in Robertson,
the officer had already issued the traffic citation and the defendant had turned
to leave when the officer stated: “[B]efore you go, we have problems with people
smuggling things on the interstate . . . Can I search your vehicle before you
go?” Id. The district court found this to be coercive, and a panel of this court
was “not firmly convinced that a mistake was made.” Id. at 750. Here, although
Agent Tamez asked Perales a series of questions related to his itinerary and
ownership of the vehicle, Agent Tamez’s announcement that he would issue
Perales a warning is not analogous to the statements made in Robertson.
      Because it is plausible from the record that Perales was not coerced into
consenting to the search of his vehicle, the district court’s conclusion that
Agent Tamez did not use coercive police procedures was not clearly erroneous.
We also hold that the district court’s voluntariness determination was not
erroneous.
                                III.   CONCLUSION
      Considering the foregoing, we uphold the district court’s finding that
Perales voluntarily consented to the search of his vehicle, and affirm the
district court’s denial of Perales’s motion to suppress.




                                       10
