                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-2887
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska
Dionicio Perez,                          *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted:    December 14, 1999

                                   Filed:   January 11, 2000

                                    ___________

Before McMILLIAN, JOHN R. GIBSON and MAGILL, Circuit Judges.
                            ___________

McMILLIAN, Circuit Judge.


       Dionicio Perez appeals from a final judgment entered in the United States
District Court1 for the District of Nebraska following his conditional plea of guilty to
one count of possession with intent to distribute methamphetamine, in violation of 21



      1
       The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska.
U.S.C. § 841(a)(1). For reversal, Perez argues that the district court erred in denying
his motion to suppress. For the reasons stated below, we affirm.

       Jurisdiction was proper in the district court based upon 18 U.S.C. § 3231.
Jurisdiction is proper in this court based upon 28 U.S.C. § 1291. The notice of appeal
was timely filed pursuant to Fed. R. App. P. 4(b).

                                       Background

       Perez was arrested on August 5, 1998, following a traffic stop and a warrantless
search of his vehicle. He was indicted on August 19, 1998. He filed a motion to
suppress evidence found in his vehicle and statements he made to the police at the time
of his arrest. The matter was referred to a magistrate judge,2 who held a suppression
hearing. The evidence presented at the hearing included the testimony of Perez and the
testimony of the arresting officer, Trooper Frank Peck of the Nebraska State Patrol
(NSP), as well as video and audio tape of the stop, created by a recording system in
Peck's patrol car. Following the hearing, the magistrate judge issued a report and
recommendation. See United States v. Perez, No. 4:98CR3074 (D. Neb. Dec. 15,
1998) (report and recommendation) (hereinafter "slip op.").

        The following is a summary of the facts as found by the magistrate judge. See
id. at 2-6. On August 5, 1998, Trooper Peck observed a black Toyota pickup truck
traveling eastbound on Interstate 80 near Lincoln, Nebraska, appearing to be following
too closely behind the preceding vehicle (in this case, a semi-tractor trailer), in violation
of Nebraska statutory law. Peck requested that another officer traveling in a separate
patrol car, NSP Trooper Chris Bigsby, use a stopwatch to time the separation between
Perez’s vehicle and the semi-tractor trailer as the two vehicles passed by. Bigsby timed


       2
      The Honorable David L. Piester, United States Magistrate Judge for the District
of Nebraska.
                                            -2-
the passing separation as 1.18 seconds, which he reported to Peck.3 Peck testified that
the NSP uses a two-second rule of thumb to determine whether there is sufficient
following distance between two vehicles. Peck proceeded to pull over the pickup truck
at approximately 1:00 p.m. Upon activating his overhead lights, his in-vehicle video
camera turned on automatically. A wireless microphone clipped to Peck’s uniform
recorded the audio portion.

       The pickup truck was driven by Perez, and there was also a passenger in the
vehicle. While Peck was in the process of issuing the citation, he asked Perez to
accompany him to the patrol car. Once in the patrol car, Peck questioned Perez about
the nature and purpose of his trip and about his passenger. Perez stated, among other
things, that the passenger was his cousin, but he could not remember the passenger's
name. Peck walked over to the truck and asked the passenger some questions. The
passenger stated that he and the driver (Perez) were related, but he could not recall how
they were related; nor could the passenger remember their destination. Peck observed
that the passenger's hands were shaking and he appeared nervous.

       Peck returned to the patrol car, issued a warning ticket to Perez, and told Perez
not to follow too closely behind other vehicles. Peck returned Perez’s driver’s license
and registration along with the warning ticket at approximately 1:11 p.m. At that point,
Peck asked Perez if he would answer some more questions, and Perez replied "okay."
When asked if there were any pistols or narcotics in the vehicle, Perez said there were
not. When Peck asked if he could search the vehicle for drugs, Perez said "yeah."
Peck then asked whether it was a problem, and Perez said "Oh, no." Peck asked
whether Perez understood what was being asked of him, and Perez said "yeah." At no
point did Peck use a consent-to-search form written in Spanish.



      3
        Bigsby testified that, while communicating with Peck, he may have told Peck
that he observed two Hispanic individuals in the pickup truck.
                                          -3-
       Peck walked back to the pickup truck and asked the passenger to exit the
vehicle. He conducted a patdown search of the passenger and told the passenger to
move away from the vehicle. After initially searching the interior of the vehicle, Peck
retrieved his dog from the back of the patrol car. Peck testified that, upon sniffing the
vehicle, the dog alerted to the right rear passenger cab area. Peck again searched the
interior of the vehicle and this time noticed irregularities in the driver's side speaker.
Inside the speaker, he found a ball-shaped object wrapped in duct tape. He cut into the
object and discovered a white powdery substance. Peck arrested Perez and the
passenger on suspicion of possession of narcotics.

      Based upon these facts, the magistrate judge made the following legal
determinations: Peck had a valid basis for stopping Perez for a traffic violation, see id.
at 7; the questions Peck initially asked Perez were within the scope of permissible
inquiry and the answers given by Perez established reasonable suspicion to detain him,
see id. at 8; Perez was never in custody prior to the search and therefore no Miranda
violation occurred, see id. at 9-10; and Perez voluntarily consented to the search of his
vehicle, see id. at 11-12. Accordingly, the magistrate judge concluded that no Fourth
Amendment violation had occurred and recommended that Perez’s motion to suppress
be denied in its entirety. See id. at 12.

      The district court adopted the magistrate judge’s report and recommendation and
denied Perez’s motion to suppress. See id. (Feb. 3, 1999) (memorandum and order).
Defendant entered a conditional guilty plea, reserving the right to appeal the denial of
his motion to suppress. The district court sentenced Perez to 130 months
imprisonment, five years of supervised release, and a special assessment of $100.00.
See id. (June 23, 1999) (judgment). This appeal followed.

                                       Discussion




                                          -4-
       On appeal, Perez argues that the district court erred in holding that (1) Peck had
probable cause to conduct the traffic stop, (2) Peck had reasonable suspicion to detain
him after the warning ticket was issued, and (3) he voluntarily consented to the search
of his vehicle. We disagree.

        We review the district court's findings of historical fact for clear error and its
determinations of probable cause and reasonable suspicion de novo. See Ornelas v.
United States, 517 U.S. 690 (1996). “It is well established that a traffic violation –
however minor – creates probable cause to stop the driver of a vehicle.” United States
v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993). In the present case, the government
established that Peck had probable cause to stop Perez for following too closely behind
the preceding vehicle, in violation of Nebraska law. Moreover, Peck pursued a lawful
line of questions in connection with the traffic stop. See United States v. Ramos, 42
F.3d 1160, 1163 (8th Cir. 1994) (a reasonable investigation of a traffic stop typically
includes asking for a license and registration, asking the driver to sit in the patrol car,
and asking about destination and purpose of travel), cert. denied, 514 U.S. 1134
(1995). Perez’s answers to Peck’s lawful inquiry – for example, his failure to know the
name of his passenger (his alleged cousin) – thereafter established reasonable suspicion
for Peck to detain Perez for a reasonable period of time. See United States v.
Barahona, 990 F.2d at 416 (“if the responses of the detainee and the circumstances give
rise to suspicions unrelated to the traffic offense, an officer may broaden his inquiry to
satisfy those suspicions”).

      We review for clear error the district court's finding that Perez voluntarily
consented to the search of his vehicle. See United States v. Carrate, 122 F.3d 666, 670
(8th Cir. 1998) ("The voluntariness of a person's consent to search is a question of fact
that we review under the clearly erroneous standard."). In the present case, the
magistrate judge explained that finding as follows:




                                           -5-
      It is obvious from the videotape of the stop and [Perez’s] testimony that
      English is not [Perez’s] first language. However, on August 5, 1998
      [Perez] responded to Peck in English and his responses indicated that he
      understood Peck's questions. I therefore conclude that [Perez's] limited
      English proficiency did not interfere with his ability to give knowing and
      voluntary consent to the search of his vehicle.


Slip op. at 11. Moreover, the magistrate judge noted that the stop took place in broad
daylight on a busy interstate highway, that Perez, an adult, was not incapacitated in any
manner at the time he consented to the search, that the detention had been brief, and
that nothing was said or done to threaten or coerce him in any manner. See id. Upon
review of the totality of the circumstances, we hold that the district court’s finding that
Perez voluntarily consented to the search of his vehicle was not clearly erroneous. See
United States v. Carrate, 122 F.3d at 670 (notwithstanding defendant’s limited ability
to speak English and troopers’ failure to provide defendant with a written consent-to-
search form, the district court did not clearly err in finding that defendant voluntarily
consented to a search of his car where he understood and appropriately answered all
of the troopers’ questions and the surrounding circumstances supported the finding of
voluntariness).

                                       Conclusion

       For the reasons stated, we hold that Perez's Fourth Amendment rights were not
violated and his motion to suppress was properly denied. The judgment of the district
court is affirmed.




                                           -6-
A true copy.

      Attest:

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




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