                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-1010
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       *    Appeal from the United States
 v.                                    *    District Court for the
                                       *    Southern District of Iowa.
Victor Pena-Ponce, a/k/a               *
Ramiro Prado-Diaz,                     *
                                       *
            Defendant - Appellant.     *
                                  ___________

                             Submitted: October 23, 2009
                                Filed: November 25, 2009
                                 ___________

Before COLLOTON and BENTON, Circuit Judges, and PIERSOL,1 District Judge.
                          ___________

BENTON, Circuit Judge.

       Victor Pena-Ponce pled guilty to one count of possession with intent to
distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A), and 18
U.S.C. § 2. In his plea agreement, Pena-Ponce reserved his right to appeal the denial
of his motion to suppress. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.



      1
         The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota, sitting by designation.
                                         I.

       On March 12, 2007, county Deputy Scott Faiferlick saw a hatchback vehicle
following too closely to a Ford Ranger on Interstate 80 in Iowa. Deputy Faiferlick
stopped the hatchback. He radioed other officers to watch for the Ranger because he
believed the two vehicles were traveling together and the Ranger had only a temporary
registration tag.

       Officer Robert Weir spotted the Ranger. He drove alongside, could not read the
expiration date on the Ranger’s temporary tag, but saw what he thought was excessive
tint on the windows. Officer Weir stopped the Ranger. The stop was videotaped by
a camera in the police car, and audio-recorded by a microphone on the officer.

       Pena-Ponce was driving the Ranger, accompanied by a passenger. Officer Weir
asked Pena-Ponce some questions, including ones about the expiration date of the tag
and his destination. Pena-Ponce responded that he did not understand too much
English. Both Officer Weir and Pena-Ponce repeated each other’s questions and
answers. Officer Weir asked no questions about the tinted windows. He obtained the
vehicle registration, Pena-Ponce’s Washington state driver’s license, a temporary
Illinois insurance card, and the passenger’s Mexican passport. He learned that the
passenger was married to Pena-Ponce’s sister; they were coming from Lincoln,
Nebraska, after visiting some girls; and they were traveling to Chicago, where Pena-
Ponce lived and worked. The entire conversation lasted less than three minutes.

       Officer Weir returned to his vehicle with the documents and relayed all the
details to Deputy Faiferlick by radio. Officer Weir added that “things could be all
screwy here.”

      Re-approaching the Ranger, Officer Weir directed Pena-Ponce to the police car,
where he asked about his age, the ownership of the Ranger, and where the passenger

                                         -2-
was from. He also inquired about Pena-Ponce’s employment, the reason for his trip,
and his date of birth.

       While Officer Weir was questioning Pena-Ponce, Detective Dennis George
arrived to assist. He had a police dog with him, and Deputy Faiferlick soon arrived
with yet another police dog. Officer Weir told the other officers what he had learned,
including “I just tried to do a quick search on his name and date of birth, uh, doesn’t
come back.” He also told them that Pena-Ponce said he was 26 years old, which based
on the date of birth he gave, should be 27. Officer Weir also found it suspicious that
Pena-Ponce said they were in Lincoln to meet some girls, when the passenger was
married to his sister.

      While Officer Weir and Detective George discussed obtaining Pena-Ponce’s
consent to search, Deputy Faiferlick approached the passenger side of the Ranger. He
saw numerous cell phones and the passenger trying to kick one under the seat. On the
dash was a Santa Muerte statue, which Deputy Faiferlick testified is commonly used
by drug traffickers for protection. The passenger said they were traveling from
Lincoln after visiting his wife and kids, which Deputy Faiferlick thought was
inconsistent with what Pena-Ponce had told Officer Weir. Deputy Faiferlick also
noticed that the passenger appeared excessively nervous. He believed that the two
were involved in criminal activity, and decided that if Pena-Ponce did not consent to
search, he would deploy a drug dog around the Ranger.

       Officer Weir then asked if Pena-Ponce minded if he searched the Ranger; Pena-
Ponce replied, “No.” Officer Weir re-asked if it was “ok,” and Pena Ponce said, “It’s
ok.” After a few more questions, Officer Weir contacted the dispatch service to run
Pena-Ponce’s driver’s license number, registration, and the vehicle identification
number. Dispatch responded that it could not find any information on the driver’s
license, temporary tag, or VIN. Officer Weir then handed Pena-Ponce (and later the
passenger) written consent-to-search forms, advising them that the forms said it is ok

                                         -3-
to look in the car (the forms were in English). He instructed them to provide their
signatures, dates of birth, and social security numbers — which they did.

       The initial search revealed receipts showing the pair had been in California a
few days before. Detective George then brought his dog around the outside of the
Ranger. The dog alerted to the presence of drugs in the area underneath the
passenger’s door, and inside the truck as well. Deputy Faiferlick’s dog also alerted
to the presence of drugs. The officers noticed some modifications to the truck, but
lacked the tools to investigate them. They took the truck to a state garage. Pena-
Ponce and the passenger were transported separately in police vehicles. A Spanish-
speaking officer, called to interview Pena-Ponce, gave Miranda warnings in Spanish
from a form written in Spanish.

       At the state garage, the officers discovered a compartment under the passenger
seat, with at least five kilos of cocaine.

                                            II.

       Pena-Ponce appeals the denial of his motion to suppress the evidence found
during the search of the truck. This court reviews “the district court’s factual
determinations in support of its denial of a motion to suppress for clear error and its
legal conclusions de novo.” United States v. Hogan, 539 F.3d 916, 921 (8th Cir.
2008). “This court will affirm the district court’s denial of a motion to suppress
evidence unless it is unsupported by substantial evidence, based on an erroneous
interpretation of applicable law, or, based on the entire record, it is clear a mistake was
made.” Id.




                                           -4-
                                            A.

       Pena-Ponce first contends that the district court2 erred in finding that the initial
stop of the truck was not pretextual. “An officer’s observation of a traffic violation,
however minor, gives the officer probable cause to stop a vehicle, even if the officer
would have ignored the violation but for a suspicion that greater crimes are afoot.”
United States v. Luna, 368 F.3d 876, 878 (8th Cir. 2004). Pena-Ponce argues that
Officer Weir’s actual reason for stopping the truck was Deputy Faiferlick’s direction
to watch for it. He also states that the temporary tag does not provide a basis for the
stop because having a temporary tag is not illegal. Pena-Ponce asserts that because
Officer Weir never mentioned the window tint during the stop, it is not why Officer
Weir stopped him.

        The district court agreed that unless Officer Weir had some reasonable question
about the temporary tag, it alone could not justify the stop. However, Officer Weir
testified that he stopped the truck because it had a temporary tag and excessive tint on
its windows. The district court found that after viewing the truck, Officer Weir, based
on his experience and training, believed the window tint violated both Iowa and
Illinois law, providing probable cause to stop the truck. This finding is supported by
the officer's testimony and the exhibit containing the video recording of the stop. In
addition, the day after the stop law enforcement verified with a tint meter that the
windows did not allow the required transparency under Iowa law. The district court’s
conclusions are supported by substantial evidence, not based on an erroneous
interpretation of law, and are not clear mistakes in light of the entire record.




      2
       The Honorable Robert W. Pratt, Chief Judge, United States District Court for
the Southern District of Iowa.


                                           -5-
                                             B.

        Pena-Ponce next objects that even if the initial stop was valid, the lawful scope
of the traffic stop was impermissibly exceeded. A traffic stop can become unlawful,
“if it is ‘prolonged beyond the time reasonably required’ to complete its purpose.”
United States v. Olivera-Mendez, 484 F.3d 505, 509 (8th Cir. 2007), quoting Illinois
v. Caballes, 543 U.S. 405, 407 (2005). After stopping a car, an officer may detain the
driver while he completes “a number of routine but somewhat time-consuming tasks
related to the traffic violation, such as computerized checks of the vehicle’s
registration and the driver’s license and criminal history, and the writing up of a
citation or warning.” United States v. Barragan, 379 F.3d 524, 528-29 (8th Cir.
2004), quoting United States v.$404,905.00 in U.S. Currency, 182 F.3d 643, 647 (8th
Cir. 1999). While performing these tasks, the officer may ask the driver routine
questions, including those about the destination and purpose of the trip, and request
that the driver sit inside the police car. United States v. Brown, 345 F.3d 574, 578
(8th Cir. 2003). The officer may also ask passengers these questions, in order to
verify the information provided by the driver. United States v. Coney, 456 F.3d 850,
857 (8th Cir. 2006). The “officer may expand the scope of a traffic stop if he has
reasonable suspicion of other criminal activity based on the totality of the
circumstances and informed by his training and experience.” United States v.
Guerrero, 374 F.3d 584, 596 (8th Cir. 2004). Whether the stop “is reasonable in
length is a fact intensive question, and there is no per se time limit on all traffic stops.”
 Olivera-Mendez, 484 F.3d at 510.

        Officer Weir asked Pena-Ponce routine questions while doing the normal tasks
of the traffic stop. The district court found that he developed reasonable suspicion of
criminal activity based on: (1) his belief Pena-Ponce was attempting to stall while
answering questions, (2) his story that he had been in Lincoln to visit some girls, with
his sister’s husband, and (3) his stated age not matching his date of birth. The officers



                                            -6-
believed criminal activity was afoot, and decided to seek Pena-Ponce’s consent to
search the truck.

       At this point, Pena-Ponce had been detained less than ten minutes. Immediately
thereafter, Deputy Faiferlick, questioning the passenger, noticed suspicious
circumstances: the passenger’s excessive nervousness, conflicting stories about why
the two had been in Lincoln, multiple cell phones in the truck, the passenger
attempting to kick one out of sight, and the Santa Muerte figure. Deputy Faiferlick’s
brief questioning of the passenger to check the information provided by Pena-Ponce
was part of the permissible routine traffic stop. See Coney, 456 F.3d at 857. Because
the officers developed reasonable suspicion while conducting the normal tasks of the
stop, the district court properly concluded that the scope of the stop was not
unreasonably expanded.

                                         C.

       Pena-Ponce next argues that because of the language barrier, his oral and
written consent to search the truck was not voluntary. “Whether or not the suspect
has actually consented to a search, the Fourth Amendment requires only that the
police reasonably believe the search to be consensual.” Barragan, 379 F.3d at
530. “The focus is not whether [the defendant] subjectively consented, but rather,
whether a reasonable officer would believe consent was given and can be inferred
from words, gestures, or other conduct.” Guerrero, 374 F.3d at 588, citing United
States v. Jones, 254 F.3d 692, 695 (8th Cir. 2001). “The determination of whether
a reasonable officer would believe that [the defendant] consented is a question of
fact, subject to review for clear error.” Id.

       The district court concluded that a reasonable officer would have believed
that Pena-Ponce orally consented to the search. While he spoke only broken
English and had difficulty understanding some questions, the district court found

                                         -7-
that Pena-Ponce conversed without difficulty for a substantial portion of the
conversation with Officer Weir. Pena-Ponce provided his license and registration
on request, and responded appropriately to questions about his name, the details of
his trip, where he lived, his work, and the relationship and living arrangements of
the passenger. The district court also noted that two times Pena-Ponce told Officer
Weir he did not understand a particular question, showing that he usually did
understand, but when he did not, he was willing to say so.

       According to the audio-recording, Officer Weir asks Pena-Ponce for consent
to search the vehicle: “So you don’t mind if I check the car for any, any guns, or
knives or anything?” Pena-Ponce replies, “No.” Officer Weir asks, “It’s ok?”
Pena-Ponce replies, “It’s ok.” This court concludes that the district court did not
clearly err in finding that a reasonable officer would have believed Pena-Ponce
knowingly and voluntarily consented to the search. Compare Guerrero, 374 F.3d
at 589 (upholding district court’s determination that consent was involuntary where
language barrier existed), with United States v. Gallardo, 495 F.3d 982, 989 (8th
Cir. 2007) (upholding district court’s determination that consent was voluntary
where language barrier existed); United States v. Cedano-Medina, 366 F.3d 682,
687 (8th Cir. 2004) (same); United States v. Sanchez, 156 F.3d 875, 878 (8th Cir.
1998) (same); United States v. Galvin-Muro, 141 F.3d 904, 907 (8th Cir. 1998)
(same).

                                        III.

      The judgment of the district court is affirmed.




                                        -8-
