                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-2666
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
Noe Gustavo Chavez Loya,                *
also known as Gordo,                    *
also known as Pico,                     *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: December 12, 2007
                                Filed: June 5, 2008
                                 ___________

Before LOKEN, Chief Judge, WOLLMAN, and SHEPHERD, Circuit Judges.
                             ___________

SHEPHERD, Circuit Judge.

      Noe Gustavo Chavez Loya (“Loya”) was indicted on one count of knowingly
and intentionally possessing “list I chemicals [ephedrine and pseudoephedrine],
knowing and having reasonable cause to believe the list I chemicals would be used to
manufacture . . . methamphetamine.” See 18 U.S.C. § 2; 21 U.S.C. § 841(c)(2). Loya
moved to suppress evidence seized during a vehicle search. The district court1 denied


      1
       The Honorable Warren K. Urbom, United States District Judge for the District
of Nebraska, adopting in part the report and recommendations of the Honorable David
the motion, and Loya pled guilty to the charge while reserving his right to appeal the
suppression issue. Loya now raises that issue on appeal. We affirm.

                                           I.

       On the morning of February 14, 2006, Nebraska State Patrol Trooper Andy
Allen constructed a ruse drug checkpoint at the Giltner interchange, Exit 324, on
Interstate 80 in Hamilton County, Nebraska. The Giltner interchange consists of a
single-lane on- and off-ramp in each direction. The trooper set up signs just west of
the interchange, indicating that there was a drug checkpoint ahead that, in reality, did
not exist. Other than the ruse checkpoint, exit, and mile marker signs, there were no
other signs located there. Trooper Allen characterized the Giltner exit as a “dead
interchange,” and, according to the magistrate judge,

      The Giltner exit, Exit 324, is essentially a local road. There are no
      services of any kind at that exit. At the end of the exit ramp is a stop
      sign at its intersection with State Spur 41-B, otherwise known as the
      “Giltner Spur.” Three miles to the south is the village of Giltner, in
      which there are no restaurants or gas stations or lodging
      accommodations. To the immediate north and south of the exit are
      farmhouses. . . . State Spur 41-B leads north approximately three miles
      to state Highway 34, an east-west, two-lane paved roadway. Twelve
      miles west of this exit is Exit 312, the principal exit for Grand Island,
      Nebraska, at which there is a full range of services, including lodging,
      fuel, and restaurants. Between the two exits is a rest area for eastbound
      traffic at mile marker 315. Hence, the Giltner exit is utilized primarily,
      if not solely, by “local” traffic.

Appellee’s Addendum at 2.




L. Piester, United States Magistrate Judge for the District of Nebraska.

                                          -2-
       At 9:30 a.m., Trooper Allen was stationed in his marked patrol car to the south
of the Giltner exit ramp facing east near some trees, so his car was not visible to
motorists exiting there. There is a stop sign located at the end of the off-ramp, and
Trooper Allen’s location provided him a clear view of the stop sign. Trooper Allen
did not observe any vehicles leave the interstate via the Giltner exit until 10:15 a.m.,
at which time he observed two vehicles doing so. The first vehicle was a small red
car, and the second was a small black car. Trooper Allen could not see the red car’s
license plates because the black car was following so closely that it appeared that “the
red one was towing the black one.” The trooper was able to see that the black car had
Arizona plates. The red car rolled through the stop sign at the end of the off-ramp,
turned left onto State Spur 41-B, and continued north over the overpass, while the
black car made a complete stop and also turned left, continuing to follow the red car.

       Trooper Allen decided to stop the red car for running the stop sign and the black
car for following too closely and followed the cars northbound on State Spur 41-B.
During this time, the trooper again observed the black car following at too close a
distance behind the red car. The vehicles reached Highway 34, stopped at the stop
sign and turned left, proceeding west on Highway 34. At that point, Trooper Allen
attempted to execute a “double stop” and activated his in-car video camera. Trooper
Allen pulled up beside the black car, gestured to its driver to follow him, pulled in
front of the black car, activated his lights, and again gestured to the black car to pull
over. However, only the red car pulled over to the shoulder, and Trooper Allen pulled
in behind it. The black car continued west on Highway 34.

       Trooper Allen exited his patrol unit and approached the red vehicle, a Toyota
Camry, on the passenger side. There were two occupants, the driver, Loya, and the
passenger, Jose Lopez Loya (“Lopez”). Allen first spoke to Loya and asked to see his
driver’s license and the registration for the vehicle. Loya told the trooper that he did
not have a license. Lopez, who had no identification with him, retrieved the
registration from the glove compartment and gave it to the trooper. The trooper asked

                                          -3-
who the owner of the vehicle was, and Lopez stated that the owner was “Juan.”
However, the car was registered to a different person, Geraldo Perez, in San Jose,
California. Trooper Allen asked where the owner was, and Lopez stated that he did
not know. Loya and Lopez said that they had borrowed the car for the trip. Trooper
Allen requested, in English, that Loya come back to the patrol car, and Loya complied
with the request. In the patrol vehicle, Loya stated that he had a Mexican driver’s
license but he did not have it with him and that he did not have a United States license.
Loya also stated that “he was on his way to the state capitol of Nebraska, Omaha
. . . .” Trooper Allen began completing the warning for the failure to stop and the
violation card for Loya having no driver’s license and telephoned another trooper
nearby to ask him to look for the black car.

       Then, Trooper Allen returned to the Camry and talked with Lopez about the
trip. Lopez stated that he and Loya had been snow boarding in Wyoming for five
days. When the trooper asked Lopez why they had left the interstate and then turned
back west on Highway 34, he stated that “they just wanted to drive around for a little
bit.” Trooper Allen then asked whether the black vehicle had been traveling with
them, and Lopez responded that it had. The trooper then asked Lopez if there were
any guns or drugs in the Camry, and Lopez responded that there were not. Trooper
Allen then asked for permission to search the vehicle, and Lopez stated that the
trooper could do so. When Trooper Allen made the request, 19 minutes had elapsed
since the trooper made the stop. Trooper Allen’s conversation with Lopez was carried
out in English, and the trooper testified that Lopez spoke English well and exhibited
no difficulty in conversing. The trooper described Lopez as “laid back,” friendly, and
cooperative.

       At that point, the trooper returned to his patrol car and finished completing the
warning and violation card for Loya and had him sign the card. The trooper also
talked to Loya about making complete stops at stop signs and obtaining a United
States driver’s license. Trooper Allen did not hand the completed paperwork to Loya

                                          -4-
and proceeded to ask him one-word questions: “pistolas?” and “drugas?” Loya
responded either “no” or “nada,” meaning nothing, each time. Trooper Allen testified
that he and Loya communicated through hand signs as well as the trooper’s poor
Spanish and Loya’s poor English. After a few minutes delay, during which Trooper
Allen made a phone call, the trooper repeated the one-word questions, and Loya again
responded in the negative to each question. Then the trooper, in an attempt to seek
permission to conduct a vehicle search, asked, while gesturing to the vehicle, “[w]ould
you give me escuchar?”2 Trooper Allen testified that Loya “gesture[d] toward . . . and
. . . point[ed] at the passenger . . . .” Allen took this to mean that he needed to ask
Lopez for permission to search the vehicle. The trooper testified that, when he
informed Loya that Lopez had already consented, Loya nodded his head. During this
conversation, Loya exhibited signs of nervousness and appeared “scared to death”
such that Trooper Allen believed that Loya wanted the trooper to leave Loya alone
and go talk to Lopez.

      Trooper Allen then went to the passenger side of the Camry again and requested
that Lopez exit the vehicle and Lopez did so. The trooper asked Lopez whether he
had any weapons on his person and checked Lopez’s waistband for weapons. Trooper
Allen approved of Lopez’s request to sit on the shoulder of the highway while the
trooper conducted the vehicle search. When the trooper opened the trunk, he saw a


      2
       According to the district court,

      The word “escuchar,” . . . is the infinitive form of a Spanish verb that
      means “to listen” or “to heed” in English. . . . [A]ssum[ing] that [Loya]
      understood the English portion of the trooper’s question, and . . .
      assum[ing] that the trooper used the word “escuchar” to request
      permission to search . . ., [Loya] would have heard the trooper ask,
      literally, “Would you give me to listen?” or “Would you give me to
      heed?” while gesturing toward the defendants’ car.

Appellant’s Addendum at 48-49.

                                          -5-
blue nylon bag and asked Lopez whose bag it was. Lopez stated that it was Loya’s
bag. The trooper opened the bag and observed miscellaneous clothes and a 10-inch
by 2-inch box of Ziplock baggies. The trooper then looked through a black nylon
travel bag that Lopez said was his. Under the two bags, the trooper found a speaker
box. When Trooper Allen lifted the speaker box, he felt something shift inside of it
and found ephedrine and pseudoephredine pills, precursors for the production of
methamphetamine. After finding the pills, the trooper called for Immigration and
Customs Enforcement (ICE), to help conduct interviews. While Trooper Allen carried
out the search, neither Lopez or Loya made any effort to stop the search or said
anything while the search was conducted. Both Loya and Lopez were arrested.

       On February 24, 2006, Loya was indicted for knowingly and intentionally
possessing “list I chemicals [ephedrine and pseudoephedrine], knowing and having
reasonable cause to believe the list I chemicals would be used to manufacture . . .
methamphetamine.” See 18 U.S.C. § 2; 21 U.S.C. § 841(c)(2). Loya moved to
suppress the evidence obtained in the vehicle search. Following the evidentiary
hearing on the motion to suppress on June 5, 2006, the magistrate judge issued his
Report, Recommendation, and Order, recommending that the motion be denied in all
respects because: (1) the initial stop was valid based on Loya’s failure to stop; (2) the
trooper was justified in further detaining Loya and Lopez once the citation and
warning had been completed because he was reasonably suspicious that criminal
activity was afoot; (3) Lopez consented to the search of the vehicle; and (4) despite
the fact that Loya’s responses to the trooper were not explicit and the considerable
language barrier that existed between them, the trooper reasonably believed that Loya
consented to the search.

       Loya filed timely objections to the magistrate judge’s recommendation,
challenging the finding that the initial stop was lawful and that Loya consented to the
search. The district court agreed that Loya’s purported consent was invalid because
the trooper used the incorrect Spanish term for requesting permission to search;

                                          -6-
however, the court adopted the remainder of the magistrate judge’s report and denied
the motion to suppress because, finding that: (1) the initial traffic stop was lawful and
(2) the search of the vehicle was lawful in view of Lopez’s voluntary consent to the
search because he had at least joint control over the vehicle and the trooper reasonably
believed that Lopez had authority over the vehicle.

       Loya filed a “Motion to Reopen and to Assert Objections to the Report and
Recommendation Concerning Suppression Issues” asserting five objections: (1) the
trooper unlawfully expanded the duration and scope of the stop; (2) Loya did not
consent to the search of the vehicle;3 (3) Lopez’s consent to the search of the vehicle
was not valid; (4) Lopez’s consent, if valid, did not extend to the search of Loya’s
blue bag; and (5) Loya’s conduct after the search began did not amount to consent or
“ratification” of the search.4 The district court determined that Loya forfeited a Fourth
Amendment challenge to the trooper’s search of the blue bag by failing to raise it until
the motion to reopen. The court further concluded that Loya had failed to show that,
despite the forfeiture, review was warranted where: (1) he had not explained why the
objection could not have been have made earlier and (2) the search yielded items
inconsequential to Loya’s prosecution.

       With respect to Loya’s argument that the stop was unconstitutionally expanded
in time and scope, the district court first noted the lack of a timely objection to the
magistrate judge’s contrary finding. The court then went on to find that the trooper
did not expand the scope or duration of the stop until he had a reasonable suspicion
of criminal activity. With regard to Loya’s argument that Lopez’s consent did not
provide a valid basis for the search of the vehicle, the district court noted that the


         3
          The district court noted that this issue had already been decided in Loya’s
favor.
         4
      The district court disposed of the ratification argument as irrelevant because
Loya’s consent was not the basis for the court’s denial of the motion to suppress.

                                          -7-
voluntariness of Lopez’s consent was not at issue and that it had already found that
Lopez had at least joint control over the vehicle such that a reasonable officer would
be justified in his belief that Lopez had authority to permit the search of the vehicle.
Furthermore, the district court recognized that Loya had conceded that “[n]o good
faith argument based on these undisputed facts can be made that [Lopez] lacked
common authority to consent to a search.” Appellant’s Addendum at 60. In light of
the finding that the stop was not unconstitutionally prolonged in time or expanded in
scope, the district court denied Loya’s request for leave to challenge the validity of
Lopez’s consent on those grounds. Accordingly, the district court denied the motion
to reopen. On April 2, 2007, Loya pled guilty, reserving the right to appeal the district
court’s denial of the motion to suppress and the motion to reopen. On July 9, 2007,
the district court sentenced Loya to a term of 135 months in prison and 3 years of
supervised release with special conditions. Loya brings this appeal.

                                           II.

       Loya concedes the validity of the initial stop of the vehicle for the failure to
stop at a stop sign. However, Loya contends that: (1) the trooper violated the Fourth
Amendment because he expanded the scope of the traffic stop and extended its
duration by asking questions about contraband and requesting permission to search
the vehicle without reasonable suspicion of criminal activity; (2) Lopez’s consent was
insufficient to justify the vehicle search because it was involuntary in light of the
unconstitutional scope and duration of the stop and Lopez lacked either actual or
apparent authority over the vehicle; and (3) the trooper’s search of the blue bag, with
knowledge that it belonged to Loya, violated the Fourth Amendment.

      In considering an appeal from the denial of a motion to suppress, we
      review the district court’s factual findings for clear error and its legal
      determinations de novo. We are required to affirm the district court’s
      denial of a motion to suppress “unless it is unsupported by substantial


                                          -8-
      evidence, based on an erroneous interpretation of the law, or, based on
      the entire record, it is clear that a mistake was made.”

United States v. Stachowiak, 521 F.3d 852, 854 (8th Cir. 2008) (internal citation
omitted) (quoting United States v. Gladney, 48 F.3d 309, 312 (8th Cir. 1995)).

                                          III.

       Loya concedes that the detention was legitimate until Trooper Allen asked
questions about guns and drugs. See United States v. Wright, 512 F.3d 466, 471 (8th
Cir. 2008) (stating that any traffic violation, including the failure to stop, provides
probable cause for a stop); see also Neb. Rev. Stat. § 60-6,148 (providing that it is a
violation of Nebraska law to fail to stop at a stop sign). The trooper first posed the
guns-and-drugs questions to Lopez, while Loya remained in the patrol car and the
trooper retained the paperwork associated with the traffic stop. Trooper Allen then
returned to the patrol car and asked Loya a series of one-word questions aimed at
determining whether the vehicle contained contraband and also purported to request
permission to search the vehicle. At that point, Trooper Allen had completed the
paperwork associated with the traffic violation but had not yet handed it to Loya and
had not told Loya that he was free to leave. The government implicitly concedes that
the trooper’s questioning as to whether Lopez and Loya were transporting contraband
expanded the scope of the stop beyond the traffic violation and prolonged their
detention but contends that such questioning was warranted in light of the trooper’s
reasonable suspicion of criminal activity. Assuming for purposes of this appeal only
that the government’s concession is correct, Trooper Allen had reasonable suspicion
justifying any expansion of the stop or extension of its duration.

        An officer may expand the scope of a traffic stop beyond the initial reason for
the stop and prolong the detention if the driver’s responses and the circumstances give
rise to a reasonable suspicion that criminal activity unrelated to the stop is afoot. See


                                          -9-
United States v. Lyons, 486 F.3d 367, 371 (8th Cir. 2007) (“If, during a traffic stop,
an officer develops a reasonable, articulable suspicion that a vehicle is carrying
contraband, he has ‘justification for a greater intrusion unrelated to the traffic
offense.’” (quoting United States v. Bloomfield, 40 F.3d 910, 918 (8th Cir. 1994) (en
banc)). In determining whether Trooper Allen’s observations during the course of the
stop rise to an objectively reasonable suspicion of criminal activity, we examine the
totality of the circumstances in light of the trooper’s experience. United States v.
Arvizu, 534 U.S. 266, 273 (2002); United States v. Linkous, 285 F.3d 716, 720 (8th
Cir. 2002). Under this approach, reasonable suspicion may exist even if “each factor
giving rise to suspicion might appear to be innocent when viewed alone . . . .”
Linkous, 285 F.3d at 720. “While ‘reasonable suspicion’ must be more than an
inchoate ‘hunch,’ the Fourth Amendment only requires that police articulate some
minimal, objective justification for an investigatory stop.” Lyons, 486 F.3d at 371
(citing United States v. Sokolow, 490 U.S. 1, 7 (1989)).

       In this case, the circumstances known to the trooper when he questioned Lopez
and Loya about guns-and-drugs and sought permission to search the vehicle were that:
the vehicle exited the interstate at a ruse checkpoint, see United States v. Carpenter,
462 F.3d 981, 987 (8th Cir. 2006), cert. denied, 127 S. Ct. 2029 (2007) (exiting just
after checkpoint signs may be considered as one factor in the totality of circumstances,
although, standing alone, it is not a sufficient basis to justify a seizure); several exits
prior to the ruse checkpoint possessed a full range of services, while it had none; the
vehicle was being followed too closely by the vehicle traveling with it; the vehicle
was not local; after exiting the interstate, the vehicle drove north to Highway 34 and
turned west, the opposite direction from its travel direction; though the two vehicles
were traveling together and the trooper attempted to execute a double stop, the black
car did not stop; when the trooper asked Lopez why they had left the interstate, he
stated that “they just wanted to drive around for a little bit;” Loya had no license; the
vehicle did not belong to Loya or Lopez; Lopez indicated that the owner of the vehicle
was someone named Juan, but the registration listed Geraldo Gonzales as the owner,

                                           -10-
see id. (stating that a “discrepancy between documents and a driver’s explanation is
a legitimate basis for suspicion”); Gonzales was not present and neither Loya or Lopez
knew where Gonzales was; Lopez had no identification; and Loya appeared nervous.

       Under the totality of the circumstances, Trooper Allen, with 16 years experience
as a traffic officer, possessed more than a “hunch” that criminal activity was afoot.
See Sokolow, 490 U.S. at 7. Rather, he had reasonable suspicion to expand the scope
of the stop and prolong its duration in order to investigate the potential presence of
contraband. Furthermore, assuming that Trooper Allen’s questioning constituted a
“broadened inquiry [that] must be reasonable,” United States v. Ward, 484 F.3d 1059,
1062 (8th Cir. 2007), in that “[t]he investigative methods employed should be the least
intrusive means reasonably available to verify or dispel the officer’s suspicion in a
short period of time.” Id. (quoting Bloomfield, 40 F.3d at 916), his approach was “a
minimally intrusive way of addressing his reasonable suspicion . . . .” United States
v. Donnelly, 475 F.3d 946, 953 (8th Cir. 2007).

      Next, Loya challenges the search itself,5 asserting that it cannot be justified
based on Lopez’s consent because (1) it was not voluntarily given where Lopez was
not advised of his ability to refuse consent and his consent came after the trooper
asked questions unrelated to the basis of the stop and unconnected to any reasonable
suspicion to expand the scope of the stop and (2) Lopez lacked both actual and
apparent authority over the vehicle. Assuming that neither of these contentions have
been forfeited, both fail. We reject Loya’s first assertion because we have already
disapproved of its premise, finding instead that Trooper Allen had reasonable
suspicion to expand the scope of the stop.



      5
        We assume, without deciding, that: (1) as the district court found, Loya’s
consent was not effective and (2) as is implicit in the district court opinion, Loya had
a sufficient interest in the vehicle to raise a Fourth Amendment challenge to the
search.

                                         -11-
       With regard to Loya’s second contention, a vehicle search pursuant to voluntary
consent from a third party with authority over the vehicle does not violate the Fourth
Amendment. See Illinois v. Rodriguez, 497 U.S. 177, 181, 185-86 (1990); United
States v. Matlock, 415 U.S. 164, 171 (1974).

      Valid third party consent can arise either through the third party’s actual
      authority or the third party’s apparent authority. A third party has actual
      authority to consent to a search if that third party has either (1) mutual
      use of the property by virtue of joint access, or (2) control for most
      purposes. . . . [A] third party has apparent authority to consent to a search
      when an officer reasonably, even if erroneously, believes the third party
      possesses authority to consent.

United States v. Andrus, 483 F.3d 711, 716 (10th Cir. 2007), cert. denied, 128 S. Ct.
1738 (2008) (internal quotation and citation omitted) (citing Georgia v. Randolph, 547
U.S. 103 (2006)). Consistent with the notion of common authority as defined by the
Supreme Court in Matlock, 415 U.S. at 171 n.7, a passenger may have common
authority to consent to a full search of a vehicle. United States v. Morales, 861 F.2d
396, 400 n.9 (3d Cir. 1988); see United States v. Poulack, 236 F.3d 932, 934-36 (8th
Cir. 2001) (holding that passenger, who rented the vehicle, had authority to consent
to search); United States v. Hammons, 152 F.3d 1025, 1027 (8th Cir. 1998)
(“[B]ecause the car was rented in [the passenger’s] name, she had authority to consent
to its search.”).

      In determining whether Lopez had such authority, “[t]he relevant inquiry is
whether the facts available would have justified a reasonable officer in the belief that
[Lopez] had authority over the [vehicle].” United States v. Czeck, 105 F.3d 1235,
1239 (8th Cir. 1997) (citing Rodriguez, 497 U.S. at 188); see United States v.
Botchway, 433 F. Supp. 2d 163, 169 (D. Mass. 2006) (finding it reasonable for
trooper to conclude that passenger had authority to consent to the search of the car
because the driver stated that he did not know to whom the car belonged, did not
produce a registration for the vehicle, passenger said that the vehicle belonged to his

                                          -12-
girlfriend, and no other occupant objected to the search); United States v. Ospina, 682
F. Supp. 1182, 1185-86 (D. Utah 1988) (holding that a passenger had common
authority over a vehicle where he exhibited “particular knowledge about the car and
its control or dominion” by responding to an officer’s request to a vehicle’s occupants
by opening the glove box and retrieving the registration; answering officer’s questions
about a sticker on the car window; and providing the keys to the officer to search the
trunk).

       In this case, it was the passenger, Lopez, who, upon Trooper Allen’s request,
opened the glove box and removed the registration without any help or direction from
Loya. Lopez was also the one who responded to the trooper’s question about the
vehicle’s ownership, while the defendant remained silent. Also, when Trooper Allen
asked Lopez for permission to search the car, Loya gestured toward Lopez which the
trooper took to mean that Loya wanted him to request permission from Lopez. Under
the circumstances of this case, it was reasonable for Trooper Allen to believe that
Lopez had common authority to consent to a search of the entire vehicle, including the
trunk. Moreover, according to Loya, he cannot, in good faith, dispute that Lopez had
common authority to consent to the search. Appellant’s Addendum at 60. In addition,
even assuming Randolph is applicable in the context of a jointly occupied vehicle, but
see Rakas v. Illinois, 439 U.S. 128, 148 (1978) (“We have on numerous occasions
pointed out that cars are not to be treated identically with houses or [a]partments for
Fourth Amendment purposes.”), Loya’s reliance on Randolph is misplaced because
Loya has admitted that he did not expressly refuse consent. Appellant’s Brief at 27;
see Randolph, 547 U.S. at 120 (“We therefore hold that a warrantless search of a
shared dwelling for evidence over the express refusal of consent by a physically
present resident cannot be justified as reasonable as to him on the basis of consent
given to the police by another.” (emphasis added)).

      Finally, Loya challenges Trooper Allen’s search of the blue bag. Loya first
raised this contention in his motion seeking leave to reopen his objections to the

                                         -13-
magistrate judge’s report and recommendation; the district court declined to address
the matter and denied the request to reopen. We review the district court’s denial of
the motion to reopen the suppression issue for abuse of discretion. Gill, 513 F.3d at
846; United States v. Johnson, 944 F.2d 396, 403 n.5 (8th Cir. 1991). With no
indication from Loya as to (1) why his objection to the search of the blue bag could
not have been raised earlier or (2) how the inclusion into evidence of the items found
in the search of the blue bag prejudiced him where the drugs which are the subject of
his conviction were found elsewhere, the district court did not abuse its discretion in
denying Loya’s request.

                                         IV.

      For the foregoing reasons, we affirm the judgment of the district court.

                       ______________________________




                                         -14-
