                   UNITED STATES COURT OF APPEALS
                       FOR THE EIGHTH CIRCUIT


                                    No. 98-1709


United States of America,               *
                                        *
             Plaintiff-Appellee,        *
                                        *
v.                                      *     Appeal from the United
                                        *     District Court for the
                                        *     District of Nebraska.
Efrain Garfio-Chavez,                   *
also known as Efrain                    *       [UNPUBLISHED]
Chavez-Garfio, also known               *
as Shorty,                              *
                                        *
             Defendant-Appellant.       *



                              Submitted: June 11, 1998
                                 Filed: July 22, 1998


Before HANSEN and MURPHY, Circuit Judges, and DOTY,1 District Judge.


DOTY, David S., District Judge

      Efrain Garfio Chavez ("Chavez") entered a conditional plea of guilty to
possession with intent to distribute methamphetamine in violation of 21 U.S.C.
§ 841(a)(1). Chavez conditioned his plea on his right to appeal the district court's

      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota, sitting by designation.
denial of his motion to suppress evidence seized during a search of a vehicle he was
driving. Chavez contends that there was not reasonable suspicion to justify his
detention, and that he did not voluntarily consent to the search of his car. We affirm.

                                   BACKGROUND
       On March 3, 1997, Nebraska State Patrol Trooper Daniel Wilson ("Wilson")
was on duty with his canine when he noticed a 1985 maroon Cadillac traveling
eastbound on Interstate 80 west of Ogallala, Nebraska. After observing the vehicle
weave on and off the shoulder of the interstate four or five times, Wilson activated his
overhead emergency lights and stopped the Cadillac. Wilson got out of his patrol car
and walked to the driver's side of the Cadillac. He observed that the vehicle was
occupied by three individuals. Chavez was driving the vehicle with Barbara Hall
("Hall") in the front passenger's seat and Juan Jose Garcia Nava ("Nava") in the back
seat. Upon Wilson's request for Chavez' driver's license and vehicle registration,
Chavez presented an Arizona identification card. Chavez did not have an operator's
license and could not produce any registration papers. Hall informed Wilson that she
was in the process of purchasing the vehicle from a car lot in Minnesota.

       Wilson asked Hall and Nava for identification and requested Chavez to
accompany him to the patrol car. Wilson radioed a request for criminal history checks
on all three individuals. While waiting for results, Wilson conversed with Chavez.
Chavez told Wilson that they were on their way to Duluth, Minnesota, from Phoenix,
Arizona. Chavez also told Wilson that he worked as a snow plow driver for Hall's
brother. Chavez further explained that Hall was his girlfriend of about six months and
that Nava was his cousin. The radio dispatch informed Wilson that Chavez did not
have an operator's license, that Chavez and Hall had criminal histories involving drugs,




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and that the vehicle was registered to an individual in Minnesota. Wilson did not learn
of any specific charges against Chavez or Hall, and there were no warrants for the
vehicle.

       With the information from dispatch, Wilson left the patrol car to speak with Hall.
Hall told Wilson that Chavez was her boyfriend of eight to nine months, and that they
were going to Duluth, Minnesota. Hall also told Wilson that Chavez was employed as
a construction and landscape worker by her brother in Phoenix, Arizona. Hall further
stated that Nava was a cousin of Chavez.

       Wilson returned to the patrol car. On his way to the vehicle, Wilson called for
backup for a possible search of the vehicle. Wilson issued Chavez a warning for
driving on the shoulder and a citation for driving without an operator's license. After
Chavez signed the warning and citation, Wilson informed Chavez that he was free to
leave. As Chavez got out of the patrol car, the wind blew the passenger door open.
Wilson asked Chavez if he was okay. After Chavez told him that he was, Wilson
asked Chavez if he had a minute to speak with him. While seated in the patrol car,
Wilson asked Chavez if he was transporting any contraband, drugs, weapons, or large
amounts of cash in the car. When Chavez replied that he was not, Wilson asked
Chavez for permission to search the car. Chavez told Wilson that it was okay with
him, but that Wilson would have to check with Hall. Wilson approached Hall and, after
receiving her assurance that she had no illegal items in the car, asked to search her car.
Hall agreed to the search.

       All three occupants were asked to stand outside of the vehicle during the search.
Assisted by his canine and a law enforcement officer who arrived at the scene, Wilson
searched the car and found methamphetamine and amphetamine in the trunk. All three
occupants were arrested and the vehicle was towed from the scene.




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       Chavez filed a motion to suppress the evidence seized pursuant to the search of
the vehicle. Following an evidentiary hearing, the magistrate judge issued a report and
recommendation to deny the motion. The district court adopted the magistrate judge's
recommendations. Chavez now appeals the denial of his motion to suppress evidence.

                                    DISCUSSION

A.     Consensual Encounter
       Chavez does not dispute that Wilson had probable cause to stop him for driving
on the shoulder of the interstate. Chavez argues, however, that after obtaining Chavez'
identification, inquiring about his journey, and running the computer checks, Wilson
had all of the information necessary to appropriately address the violation and the
traffic stop should have concluded. Chavez asserts that by requesting permission to
search the vehicle, Wilson transformed an otherwise legitimate traffic stop into an
"investigative detention" which can only be justified by reasonable suspicion under
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

       The district court concluded that Chavez' consent occurred under circumstances
which would not support a finding that the defendant was in detention. It is well
established that not all personal contacts with law enforcement officers implicate the
Fourth Amendment. See Terry, 392 U.S. at 19-20 n.16; United States v. Beck, 140
F.3d 1129, 1135 (8th Cir. 1998). Consensual encounters do not trigger Fourth
Amendment scrutiny unless the encounter loses its consensual nature. Florida v.
Bostick, 501 U.S. 429, 434-35, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991). There is
no bright line for differentiating a consensual encounter from an investigative detention;
rather, the determination involves a fact intensive inquiry which depends upon the
circumstances of each case. See Beck, 140 F.3d at 1135; United States v. McKines,
933 F.2d 1412, 1419 (8th Cir.) (en banc), cert. denied, 502 U.S. 985, 112 S. Ct. 593,
116 L. Ed. 2d 617 (1991). In addressing this issue, this court reviews the historical
facts for clear error and the ultimate legal conclusions de novo. See Ornelas

                                           -4-
v. United States, 517 U.S. 690, 696-97, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996);
United States v. Hathcock, 103 F.3d 715, 718 (8th Cir.), cert. denied, U.S. , 117
S. Ct. 2528, 138 L. Ed. 2d 1028 (1997). A consensual encounter becomes a seizure
requiring reasonable suspicion under the Fourth Amendment "when the questioning is
so 'intimidating, threatening or coercive that a reasonable person would not have
believed himself free to leave.'" See Hathcock, 103 F.3d at 718 (quoting McKines, 933
F.2d at 1419). "So long as a reasonable person would feel free 'to disregard the police
and go about his business,' the encounter is consensual and no reasonable suspicion is
required." See Bostick, 501 U.S. at 434 (quoting California v. Hodari D., 499 U.S.
621, 628 (1991)). Chavez argues that a reasonable person in his position would not
have felt free to leave.

       After a careful review of the record, we conclude that the record supports the
district court's finding that Chavez was no longer seized within the meaning of the
Fourth Amendment at the time that Wilson asked Chavez for consent to search the
vehicle. After issuing the warning and citation, Wilson told Chavez that he was free
to leave. Chavez got out of the patrol car. While seated in the patrol car and without
displaying a weapon, Wilson then asked for permission to search the vehicle. There
is no evidence of intimidation or coercion. At the time of the request to search, Chavez
had everything he needed to be on his way and had been given permission to leave.
Under these circumstances, we believe a reasonable person in Chavez' position would
have felt free to leave at the time that Wilson asked for permission to search. Thus,
Wilson's request to search came during the course of a consensual encounter and was
permissible without reasonable suspicion.




                                          -5-
B.     Voluntariness of Consent
       Chavez also argues that neither Chavez nor Hall voluntarily consented to a
search of the Cadillac. Because Wilson's request to search the vehicle did not
constitute an unlawful detention within the purview of the Fourth Amendment, the fruits
of the search will not be suppressed as long as Chavez and Hall voluntarily consented
to the search. See United States v. White, 81 F.3d 775, 780 (8th Cir.), cert.




                                          -6-
denied, U.S. , 117 S. Ct. 518, 136 L. Ed. 2d 406 (1996); United States v. Miller,
20 F.3d 926, 930 (8th Cir.), cert. denied, 513 U.S. 886, 115 S. Ct. 226, 130 L. Ed. 2d
152 (1994). Consent is voluntary "if it was 'the product of an essentially free and
unconstrained choice by its maker,'" rather than "'the product of duress or coercion,
express or implied.'" United States v. Chaidez, 906 F.2d 377, 380 (8th Cir. 1990)
(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225, 227, 93 S. Ct. 2041, 36 L. Ed.
2d 854 (1973)).

        The determination of voluntariness is a question of fact and depends upon the
totality of circumstances in the case, including the characteristics of the accused and
the environment in which consent was given. See White, 81 F.3d at 780; Chaidez, 906
F.2d at 381. Factors which guide a court's analysis include the defendant's age; his
general intelligence and education; whether he was under the influence of a mind-
altering substance; whether he was informed of his right to withhold consent or
Miranda rights; whether he was aware of the protections afforded by the legal system;
the length of time he was detained and questioned; whether he was threatened,
physically intimidated, or punished by the police; whether he relied upon promises or
misrepresentations; whether he was in custody or under arrest when consent was given;
whether he was in public or a secluded place; and whether he objected to the search
or stood by silently as the search took place. See United States v. Barahona, 990 F.2d
412, 417 (8th Cir. 1993) (citing Chaidez, 906 F.2d at 381 (citations omitted)). The
government has the burden of proving voluntariness of consent by a preponderance of
the evidence. See United States v. Galvan-Muro, 141 F.3d 904, 907 (8th Cir. 1998);
Barahona, 990 F.2d at 417. This court reviews the district court's finding of voluntary
consent under a clearly erroneous standard. See White, 81 F.3d at 780.

      The district court adopted the magistrate judge's report and recommendation
which discussed the numerous factors to be considered by the court and found that the
consents of Chavez and Hall were voluntary. The district court's findings of
voluntariness of consent are supported by the record. Both Hall and Chavez were

                                          -7-
adults and there was no evidence presented that either was intoxicated or under the
influence of drugs when their consents were given. Both Chavez and Hall had prior
criminal histories involving drugs, indicating a familiarity with the criminal justice
system. The encounter lasted less than thirty minutes. There was no evidence of
threatening or coercive conduct on the part of Wilson. Neither Hall nor Chavez relied
on promises or misrepresentations by Wilson. In addition, neither Hall nor Chavez was
under arrest or in custody when the consent was given. Rather, Chavez had been
advised that he was free to leave prior to his giving consent. The stop took place on
an interstate highway during daylight hours, and neither Hall nor Chavez objected while
the search took place. Their actions were consistent with the granting of consent.
Under these circumstances, we conclude that the district court did not clearly err in
determining that Chavez and Hall voluntarily consented to the search of the vehicle.

                                    CONCLUSION
       For the reasons set forth above, the district court properly denied Chavez' motion
to suppress the evidence found in the search of the vehicle. Accordingly, we affirm the
conviction.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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