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

                                                                            FILED
                                                                          March 11, 2008

                                       No. 06-51506                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

JESUS MARIA TORRES-BORUNDA

                                                   Defendant-Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 4:06-CR-129-ALL


Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Having conditionally pleaded guilty to possession with intent to distribute
marijuana, Jesus Maria Torres-Borunda was sentenced to 37 months’
imprisonment. He maintains his consenting to the search of his vehicle was
involuntary. AFFIRMED.
                                              I.
       Torres’ vehicle was stopped by a Sheriff’s Deputy for following too closely
behind a tractor-trailer, in violation of Texas law. Torres indicated to the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-51506

Deputy he did not understand English, but he responded to the request to
produce a driver’s license and proof of insurance. The license was from Mexico;
the insurance had been issued the previous day. The vehicle had current license
plates from Mexico.
      The Deputy noticed no accumulation of paperwork in the vehicle and a
single key on Torres’ key chain. Both were indicative, according to the Deputy,
of a drug trafficker. As a result, the Deputy became suspicious and wanted to
search the vehicle.
      Not being fluent in Spanish, the Deputy returned to his vehicle and, using
his cell phone, contacted a United States Customs Agent who had previously
assisted him with translation. The Deputy asked Torres, who was seated next
to the Deputy in his vehicle, to speak with the Agent.
      The Agent asked Torres about: the identity of the registered owner of the
vehicle; where his trip originated; and his destination. Torres replied: the
vehicle was registered to him; he was from Mexico; he had crossed into the
United States at El Paso the previous day and spent the night there; and, he was
traveling to Odessa, Texas, to purchase a water-well pump.
      After the Agent conveyed Torres’ responses to the Deputy, he requested
the Agent’s seeking consent from Torres to search his vehicle. The Agent first
asked Torres whether he was transporting drugs, firearms, or large amounts of
currency. Torres answered in the negative. Without informing Torres of his
right to refuse consent, the Agent then asked for, and received, consent to search
the vehicle.
      Upon doing so, the Deputy discovered a loose rear-quarter panel on the
passenger side. He lifted the panel, shined a flashlight inside, and discovered
numerous bricks of marijuana (totaling approximately 300 pounds). The Deputy
estimated: three to five minutes elapsed between stopping Torres vehicle and



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the call to the Agent; 15 minutes, between the stop and his discovering
marijuana.
      Torres moved to suppress the marijuana. At a hearing on the motion, the
Deputy, the Agent, and Torres testified. In a very detailed opinion, the district
court ruled: although the Deputy lacked probable cause for the search, Torres
voluntarily consented to it. Accordingly, the suppression motion was denied.
                                         II.
      Torres’ guilty plea was conditioned on his being able to appeal the
suppression ruling. He maintains his consent was given involuntarily, asserting
he was coerced into giving consent by: the Deputy’s retaining his driver’s license
and insurance document; being placed in the patrol car; and answering the
Agent’s questions on the cell phone rather than face-to-face. (Torres does not
contest the district court’s ruling the consent was not tainted by an illegal
detention.)
      In considering the denial of a suppression motion, factual findings are
reviewed for clear error; legal conclusions, de novo. E.g. United States v.
Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). A factual finding is not clearly
erroneous if it is plausible when reviewed in the light of the entire record. Id.
Evidence presented at the suppression hearing must be viewed in the light most
favorable to the prevailing party. Id.
      “A search conducted pursuant to consent is one of the well-established
exceptions to the Fourth Amendment’s warrant requirement.” United States v.
Tompkins, 130 F.3d 117, 121 (5th Cir. 1997) (citation omitted). The Government
must prove by a preponderance of the evidence that the consent was freely and
voluntarily given; that it was not the result of coercion or duress. Id. “The
voluntariness of consent is a question of fact to be determined from the totality
of all the circumstances.” United States v. Shabazz, 993 F.2d 431, 438 (5th Cir.



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1993) (emphasis added) (citation and internal quotation marks omitted). In
evaluating such voluntariness, six factors are considered:
            (1) the voluntariness of the defendant’s custodial status;
            (2) the presence of coercive [law enforcement]
            procedures; (3) the extent and level of the defendant’s
            cooperation with [law enforcement]; (4) the defendant’s
            awareness of his right to refuse to consent; (5) the
            defendant’s education and intelligence; and (6) the
            defendant’s belief that no incriminating evidence will be
            found.

Id. (citation and internal quotation marks omitted). No one factor is dispositive.
Id.
      Because voluntariness vel non is a factual issue, the finding is reviewed
only for clear error. Tompkins, 130 F.3d at 120. Where, as here, the district
court bases a finding of consent on live testimony at a suppression hearing, the
clearly-erroneous standard is even stronger, because the court had an
opportunity to observe the witnesses’ demeanor. Shabazz, 993 F.2d at 438
(citation omitted).
      The Deputy properly obtained Torres’ driver’s license and insurance
document and questioned him about his itinerary and destination. See United
States v. Brigham, 382 F.3d 500, 507-10 (5th Cir. 2004) (en banc).           The
documents were retained by the Deputy while he directed Torres to the Deputy’s
vehicle so the Agent could question him by telephone. During that questioning,
Torres sat next to the Deputy. He testified at the suppression hearing that, as
a result, Torres had been detained.
      A brief investigatory stop does not constitute an arrest if a reasonable
person in the defendant’s position would believe that he could leave once the
reason for the detention has been satisfied. See United States v. Bengivenga, 845
F.2d 593, 600 (5th Cir. 1988) (en banc). An arrest occurs, however, when “under
the totality of the circumstances, a reasonable person would have thought he

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was not free to leave”. United States v. Raborn, 872 F.2d 589, 593 (5th Cir.
1989) (citation and internal quotation marks omitted). Torres could not leave
without his driver’s license and insurance document. The Deputy testified that,
not only was Torres being detained, he would not have been allowed to leave
before his vehicle was searched. Torres’ detention, therefore, was involuntary,
a factor weighing against the Government.
      Testimony at the suppression hearing does not show coercive methods
were used to obtain consent. Indeed, the seizure of Torres’ documents was
permissible under the Fourth Amendment. See Brigham, 382 F.3d at 507-08.
The Agent’s questioning was similarly permissible, and only 15 minutes elapsed
between the stop and marijuana discovery. Torres’ being in the Deputy’s vehicle
to speak to the Agent, while perhaps relevant to the voluntariness of his
confinement, appears to have been a matter of convenience, not of coercion. The
lack of coercion is a factor weighing in favor of the Government.
      The Deputy and Agent testified Torres was cooperative. This factor
weighs in favor of the Government.
      Torres was not informed of his right to refuse consent. Awareness of the
right, however, is not required to establish voluntary consent. See Schneckloth
v. Bustamonte, 412 U.S. 218, 248-49 (1973).
      The Agent testified Torres appeared to be educated and understand the
questions asked him. Likewise, Torres testified he was educated, reasonably
intelligent, and understood the Agent was requesting consent to search the
vehicle. (The presentence investigation report states Torres completed one year
of preparatory school in Mexico and that he worked in Mexico as a police officer
for 20 years.) His intelligence is a factor that weighs in favor of the Government.
      The Deputy discovered the marijuana after noticing the loose rear-quarter
panel on the passenger side. It can be inferred that Torres did not believe the
Deputy would discover the hidden contraband. See, e.g., United States v. Three

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Hundred Sixty-Nine Thousand Nine Hundred Eighty Dollars, 214 F. App’x 432,
434 (5th Cir. 2007) (unpublished) (finding sixth factor in favor of Government
because contraband was concealed in a compartment under the rear seat). This
sixth, and final, factor weighs in favor of the Government.
       The district court’s factual finding that Torres’ consent was voluntary is
plausible in the light of the entire record. Therefore, the finding was not clearly
erroneous. As a result, the district court did not err in denying the suppression
motion.
                                       III.
      For the foregoing reasons, the judgment is AFFIRMED.




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