                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0374n.06

                                         Case No. 09-1535                                  FILED
                                                                                      Jun 02, 2011
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                            LEONARD GREEN, Clerk


 UNITED STATES OF AMERICA,                            )
                                                      )
         Plaintiff-Appellee,                          )
                                                      )       ON APPEAL FROM THE
                v.                                    )       UNITED STATES DISTRICT
                                                      )       COURT FOR THE EASTERN
 LEONEL AGUILERA-PENA,                                )       DISTRICT OF MICHIGAN
                                                      )
         Defendant-Appellant.                         )
                                                      )
 _______________________________________              )

BEFORE: BATCHELDER, Chief Judge; MARTIN and SUTTON, Circuit Judges.

       ALICE M. BATCHELDER, Chief Judge. Leonel Aguilera-Pena (“Pena”) brings this

appeal challenging the district court’s denial of his motion to suppress. For the following reasons,

we AFFIRM.

                                                 I.

       In November 2007, Defendant-Appellant Pena was stopped by Corporal Donald Smith of the

Romulus, Michigan, Police Department after Smith observed Pena engage in improper lane use.

Smith had been asked to conduct the traffic stop by federal agents, who had been observing Pena for

several days and had reason to believe he was engaged in narcotics trafficking.

       During the stop, Smith requested Pena’s driver’s license and asked him several questions,

including: (1) if Smith should know about anything inside the vehicle, (2) if there was any marijuana

or cocaine in the vehicle, and (3) whether there were any large sums of money in the car. Pena
No. 09-1535, United States v. Aguilera-Pena


answered “no” to each question, and, at some point, stopped maintaining eye contact, leading Smith

to believe Pena was lying. Smith then asked if he could search the car, and Pena consented.

          Corporal Smith ordered Pena to exit the vehicle, patted him down for weapons, and searched

the trunk and interior of the vehicle. During the search, and only three to five minutes after Smith

initially pulled Pena over, Federal Agent McCanna arrived,1 and Smith turned Pena over to him.

Smith continued searching, and McCanna asked Pena if Smith would find anything in the car. Pena

responded that there could be something illegal in his car, although he was not certain what it would

be. Upon further questioning, Pena admitted that he had been paid $5,000 to drive the car round trip

from Oregon to Detroit and back. At this point, approximately six minutes had passed since Pena

had been stopped.

          Based on his training and experience, McCanna knew that it was a common practice for drug

couriers to be paid large sums of cash without being told exactly what they are transporting. He

concluded that he had probable cause to believe Pena’s vehicle contained contraband. For safety

reasons, McCanna had the car taken to the Romulus Public Works garage, a short distance from

where the stop occurred, for a more comprehensive search. He detained Pena and placed him in the

front passenger seat of the unmarked police car to ride with him to the garage. At the garage, a dog

alerted positively to the car around the center console, and agents located a hidden compartment

containing about $410,000; 175 grams of heroin; and a Colt semi-automatic handgun. Pena was then

arrested.



          1
          At oral argument, Pena asserted for the first time that McCanna arrived after Smith had completed the
search. The district court found that McCanna arrived during the search. This finding is adequately supported by
the record.

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No. 09-1535, United States v. Aguilera-Pena


          Pena was charged with one count of possession with intent to distribute heroin in violation

of 21 U.S.C. § 841(a)(1). He filed a motion to suppress the evidence seized in connection with his

arrest, which was denied by the district court following an evidentiary hearing. Subsequently, Pena

entered a plea agreement allowing him to challenge the denial of his motion to suppress. He was

sentenced to 60 months in prison—the statutory minimum. This timely appeal followed.

                                                  II.

          This court reviews under a mixed standard the denial of a motion to suppress. Factual

findings we review for clear error; conclusions of law we review de novo. United States v. Burton,

334 F.3d 514, 516 (6th Cir. 2003). When a district court has denied a motion to suppress, we

consider the evidence in the light most favorable to the government. United States v. Long, 464 F.3d

569, 572 (6th Cir. 2006).

          “Stopping and detaining a motorist constitutes a seizure within the meaning of the Fourth

Amendment even if the purpose of the stop is limited and the resulting detention quite brief.” United

States v. Bell, 555 F.3d 535, 539 (6th Cir. 2009) (internal quotation marks omitted). The Fourth

Amendment permits an officer who has probable cause to believe that a traffic violation is occurring

to detain the automobile, regardless of the officer’s subjective motivation for the stop. Whren v.

United States, 517 U.S. 806, 812-13 (1996). “To detain the motorist any longer than is reasonably

necessary to issue the traffic citation, however, the officer must have reasonable suspicion that the

individual has engaged in more extensive criminal conduct.” United States v. Townsend, 305 F.3d

537, 541 (6th Cir. 2002).




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No. 09-1535, United States v. Aguilera-Pena


          A law enforcement officer does not violate the Fourth Amendment merely by asking a

detained motorist extraneous questions so long as those questions do not unnecessarily prolong the

detention, and the detainee’s responses are voluntary and not coerced. See United States v. Everett,

601 F.3d 484, 496 (6th Cir. 2010); see also Arizona v. Johnson, 129 S.Ct. 781, 788 (2009) (“An

officer’s inquiries into 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.”). Under those circumstances, the “extraneous questions are a

Fourth Amendment nullity.” Everett, 601 F.3d at 496. Similarly, asking a detained motorist for

consent to search his vehicle does not necessarily turn a reasonable traffic stop into an unreasonable

one. Ohio v. Robinette, 519 U.S. 33, 39 (1996) (holding that asking a detained motorist whether he

would consent to a search of his automobile for contraband, even after he had produced a valid

driver’s license, did not necessarily make the traffic stop unreasonable in scope or duration); Burton,

334 F.3d at 518-19 (same).

          Pena argues that this court’s decision in United States v. Mesa, 62 F.3d 159, 162 (6th Cir.

1995), controls. In Mesa, we stated that “[o]nce the purposes of the initial traffic stop were

completed . . . the officer could not further detain the vehicle or its occupants unless something that

occurred during the traffic stop generated the necessary reasonable suspicion to justify a further

detention.” Unfortunately for Pena, “[t]he Mesa court’s statement . . . no longer accurately

represents the law.” Burton, 334 F.3d at 517. Instead, Robinette, Burton, and Everett provide the

legal framework under which this case must be analyzed.




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No. 09-1535, United States v. Aguilera-Pena


          Pena does not claim that the traffic stop was unconstitutional. Nor does he argue that the

continued detention following his admission that the vehicle might contain contraband was

unconstitutional. He argues that the extraneous questions asked by Smith and McCanna exceeded

the scope of the traffic stop and/or unnecessarily prolonged the stop. His argument fails.

          Here, as in Burton, the officer asked only a handful of questions, and Pena consented to the

search of his automobile approximately two minutes after being stopped. See id. at 518. The record

provides no reason to suspect that the questions were unusually intrusive or that asking them made

this traffic stop any more coercive than a typical traffic stop. Nor does the record provide any

evidence that the questions or the search unnecessarily prolonged the detention, which lasted only

six minutes. This is especially true because Agent McCanna’s questions occurred simultaneously

with Smith’s search of the vehicle. Cf. Illinois v. Caballes, 543 U.S. 405, 408-09 (2005) (officers

did not unconstitutionally extend detention by conducting a dog sniff while another officer was

writing a warning ticket); Bell, 555 F.3d at 543 (“[W]e simply cannot conclude that an officer

violates the Fourth Amendment merely by asking a driver to exit a vehicle to effect a dog sniff when

doing so does not extend the duration of the stop and does not cause the officer unreasonably to

deviate from the purpose of the initial stop.”).

          Once the initial stop was lawfully completed, the extraneous questions were appropriate, as

was the request for consent to search the car. See Burton, 334 F.3d at 518-19. No reasonable

suspicion or probable cause beyond that necessary for the initial traffic stop was required for the

extraneous questions. See id. Pena’s own statements, made within minutes of a traffic stop that




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No. 09-1535, United States v. Aguilera-Pena


Pena does not even claim was unlawful, gave the officers probable cause to further detain Pena. We

therefore conclude that the scope and duration of the traffic stop were reasonable in this case.

                                                III.

          For the foregoing reasons, we AFFIRM the district court’s denial of Pena’s motion to

suppress.




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