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

                                                                            FILED
                                                                         December 5, 2008

                                       No. 08-30155                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

ENRIQUE GURROLA, JR.

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                      for the Western District of Louisiana


Before KING, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Enrique Gurrola, Jr. (“Defendant”) appeals the
district court’s denial of his motion to suppress evidence of drugs found in his
vehicle. The district court denied Defendant’s motion based on factual findings
that the evidence was discovered through a consensual encounter with the police
during which Defendant consented to a search of his vehicle. Because these
findings were not clearly erroneous, we AFFIRM for essentially the reasons
stated by the district court.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                   FACTUAL AND PROCEDURAL HISTORY
        Defendant was traveling on Interstate 20 near Bossier City, Louisiana
when he was stopped by Louisiana State Trooper Brett Davis (“Trooper Davis”)
for following another vehicle too closely. Defendant exited his vehicle and met
with Trooper Davis near the rear of Defendant’s vehicle, where Trooper Davis
requested Defendant’s driver’s license. Defendant’s license listed a Laredo,
Texas address; however, the vehicle had New York license plates. Defendant
stated he was traveling to see his daughter and son-in-law in Long Island, New
York.    Trooper Davis then asked Defendant who owned the vehicle, and
Defendant stated that it belonged to him. However, the vehicle registration,
which was issued from the state of New York, showed that the vehicle was
registered to Daniel Saldaña of Laredo, Texas.
        When questioned about the identity of the owner of the vehicle, Defendant
stated that the vehicle belonged to his son-in-law, who had given it to Defendant
nine or ten months earlier, but the vehicle had been registered in April 2005,
only about seven months prior to the date of the stop. Trooper Davis testified
that this made him suspicious because “that’s a pretty big gift – you would know
exactly when you got that vehicle.”
        Trooper Davis returned to his patrol car and ran checks on Defendant’s
driver’s license and the vehicle. While the checks were pending, Trooper Davis
returned to Defendant and again asked him about his itinerary. Defendant again
told Trooper Davis that he was traveling to New York. However, he did not know
which part of Long Island he was going to, despite having told Trooper Davis he
had been to his daughter’s house in New York “about two times.”
        Trooper Davis then told Defendant that the computer checks were running
slowly and would take a few minutes. A light rain began to fall, so Trooper

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Davis suggested that Defendant sit in Defendant’s vehicle while the radio and
computer checks completed. Defendant did so. Trooper Davis also returned to
his patrol car where he learned by radio and computer that Defendant had been
arrested previously for narcotics and weapons possession. After Trooper Davis
confirmed that the vehicle was not stolen and that there were no active warrants
for Defendant, he exited his patrol car, and Defendant exited his car to meet
him. Trooper Davis immediately returned Defendant’s driver’s license and
issued Defendant a verbal warning for following too closely. Trooper Davis told
Defendant to “be careful” and “have a safe trip.” This occurred about 15 minutes
after the traffic stop began.
      Defendant turned away from Trooper Davis and began to return to his
vehicle. Trooper Davis then called out to Defendant, “can I ask you a question
before you leave.” Defendant said yes. Trooper Davis explained to Defendant
that the state police see a great deal of illegal contraband on the highway and
asked, “can I search your car.” Defendant immediately verbally consented to the
search and moved to open the trunk of his vehicle, but Trooper Davis told him
“not yet” and asked Defendant if he read English or Spanish better. Defendant
said Spanish, and Trooper Davis presented Defendant with a Spanish version
of the Louisiana Consent to Search Form and explained that the form gives
Trooper Davis the right to search Defendant’s car and that if “you don’t care, I
need your signature right there, okay.” Defendant signed the form and handed
it back to Trooper Davis.
      While Defendant was signing the form, two other troopers, Trooper Nash
and Trooper Harris, arrived on the scene. Trooper Nash patted Defendant down
for officer safety. Shortly thereafter, Trooper Davis received additional criminal
history information from the El Paso Intelligence Center (“EPIC”) confirming

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Defendant’s prior arrests for large quantities of narcotics and two guns in 1991,
1994 and 1995. Trooper Davis and Trooper Nash began searching Defendant’s
vehicle. During the search of the vehicle, the officers located what they believed
was a hidden compartment inside the vehicle. They discovered the compartment
by tapping on the vehicle and using a density meter. The area of the vehicle
containing the manufactured compartment had been painted a color slightly
inconsistent with the remainder of the vehicle, and fasteners in that area
appeared to have been replaced. Trooper Davis also found what he believed to
be a trap door to the hidden compartment located inside the right fender well of
the vehicle.
      Once the officers narrowed down the location of the hidden compartment,
Defendant was advised of his Miranda rights. The officers told Defendant that
they had found a manufactured compartment in the vehicle, and rather than
tear up the vehicle to gain access to the compartment, the officers asked
Defendant to show them how to access the compartment. Shortly thereafter,
Defendant admitted that the car contained drugs and showed the
officers how to access the hidden compartment. Defendant was then handcuffed
and again advised of his Miranda rights, and the officers removed a large
quantity of narcotics from the compartment.
      Defendant was charged with one count of possession with intent to
distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and one count of
possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1).
Defendant moved for suppression of all evidence obtained following the traffic
stop and subsequent search of the vehicle, arguing that his consent to search the
vehicle was invalid and the product of an unlawfully prolonged detention. After
a hearing on the issue, a magistrate judge issued a report and recommendation

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finding that Defendant’s detention was not unlawfully prolonged and that
Defendant freely and voluntarily consented to the search. Thus, the magistrate
recommended denial of      Defendant’s suppression motion.       Defendant filed
objections to the magistrate’s report, but the district court nonetheless adopted
the magistrate’s report and recommendation and denied the suppression motion.
      Subsequently, pursuant to an agreement with the United States,
Defendant entered a plea of guilty to one charge of possession with intent to
distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and one charge of
conspiracy to possess with intent to distribute various controlled substances in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. As part of his plea
agreement, Defendant reserved his right to appeal the district court’s denial of
his motion to suppress. Following sentencing, Defendant exercised this right
and appeals the court’s denial of the motion.


                                 DISCUSSION
      Defendant does not challenge the validity of his initial traffic stop; rather
he contends that his motion to suppress should have been granted because the
district court erred in finding: 1) that the exchange between Defendant and
Trooper Davis after Trooper Davis had returned Defendant’s driver’s license
constituted a consensual encounter, and 2) that Defendant’s consent to search
the vehicle was freely and voluntarily given.
      “With regard to a ruling on a motion to suppress, we review the district
court’s factual findings for clear error and its ultimate conclusion as to the
constitutionality of the law enforcement action de novo.” United States v.
Tompkins, 130 F.3d 117, 120 (5th Cir. 1997) (internal quotation marks and
citation omitted); see also United States v. Mask, 330 F.3d 330, 334 (5th Cir.

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2003). A district court’s determination that an exchange with a police officer
constitutes a consensual encounter, rather than a seizure implicating Fourth
Amendment protections, is a factual finding reversible only for clear error. See,
e.g., United States v. Butler, 988 F.2d 537, 541 (5th Cir. 1993); see also Mask, 330
F.3d at 334.     Similarly, “the voluntariness of a detainee’s consent to a
warrantless search is a finding of fact to be reviewed for clear error.” Tompkins,
130 F.3d at 119-20 (internal citation omitted). “As long as a factual finding is
plausible in light of the record as a whole, it is not clearly erroneous,” United
States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999) (citing United States v.
Alford, 142 F.3d 825, 831 (5th Cir.1998)), and “[w]e view the evidence in the
light most favorable to the party that prevailed in the district court.” United
States v. Jones, 234 F.3d 234, 239 (5th Cir. 2000).
      Applying these standards to the instant case, we find that the district
court did not clearly err in finding that Defendant’s exchange with Trooper
Davis was a consensual encounter and that Defendant freely and voluntarily
gave valid consent for the search of his vehicle.
      First, the record allows for a plausible finding that after Trooper Davis
returned Defendant’s driver’s license Defendant engaged in a consensual
encounter with Trooper Davis.         It is well established that a consensual
encounter, which does not implicate Fourth Amendment protections, may occur
following a lawful traffic stop. See, e.g., Ohio v. Robinette, 519 U.S. 33, 35 (1996);
United States v. Sanchez-Pena, 336 F.3d 431, 441-42 (5th Cir. 2003). An
encounter with the police is consensual “so long as a reasonable person would
feel free to decline the officers’ requests or otherwise terminate the encounter.”
Sanchez-Pena, 336 F.3d at 441 (quoting United States v. Drayton, 536 U.S. 194,


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202 (2002) (internal quotation marks omitted).       Here, the record shows that
Trooper Davis returned Defendant’s driver’s license, issued him a verbal
warning, and told Defendant “be careful” and “have a safe trip.” Further, the
record reflects that Defendant, after receiving his license, did, in fact, turn away
from Trooper Davis and begin to walk away.
      Relying on this evidence, the district court concluded that Defendant was
free to leave at this point and that the initial traffic stop had concluded. The
record also shows that after Defendant began to walk away, Trooper Davis
requested, “Can I ask you a question before you leave?” to which Defendant
responded “Yes sir.” The district court relied on this evidence to find that, after
the termination of the traffic stop, Defendant engaged in a consensual encounter
with Trooper Davis. Taken together, this evidence plausibly supports the
conclusion that “a reasonable person would feel free to decline the officer[‘s]
requests or otherwise terminate the encounter,” and as such we cannot say that
the district court clearly erred in finding that Defendant engaged in a consensual
encounter with Trooper Davis. See, e.g., Sanchez-Pena, 336 F.3d at 441, 443
(holding that defendants engaged in a consensual encounter when, after
receiving all their documentation back at the end of a traffic stop, they agreed
to proceed to a drug checkpoint).
      Similarly, record evidence supports the district court’s finding that
Defendant freely and voluntarily consented to the search of his vehicle. “The
Fourth Amendment test for a valid consent to search is that the consent be
voluntary, and [v]oluntariness is a question of fact to be determined from all the
circumstances.”     Robinette, 519 U.S. at 40 (internal quotation marks and
citation omitted); see also Tompkins, 130 F.3d at 121. Relevant factors for


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determining the voluntariness of consent to a search include: “(1) the
voluntariness of the defendant’s custodial status; (2) the presence of coercive
police procedures; (3) the extent and level of the defendant’s cooperation with the
police; (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.” Tompkins, 130 F.3d at 121. “Although
all six factors are relevant, no single factor is dispositive or controlling of the
voluntariness issue.” Id (internal quotation marks and citation omitted).
      Based upon the evidence in the record, these factors plausibly support the
finding that Defendant’s consent was voluntary.         As discussed above, the
defendant was engaged in a voluntary consensual encounter. Trooper Davis
employed no coercive procedures to gain Defendant’s consent; rather Trooper
Davis simply asked if he could search the car. See Tompkins, 130 F.3d at 122
(“[C]oercive police procedures were absent, i.e., [Defendant] was not handcuffed
until the search revealed the presence of [drugs], no threats or violence were
used, and there was no overt display of authority . . . .”). Defendant was
completely cooperative; he immediately consented to Trooper Davis’s requests
to “ask you a question before you leave” and “search your car.” Defendant was,
or should have been, aware of his right to refuse to consent because he was
supplied and signed a Louisiana Consent to Search Form in the language of his
choosing, and this form advised him that he could revoke the permission to
search at any time. Defendant has a GED and gave no indication of sub-average
intelligence. Finally, because the secret compartment containing the drugs was
very well hidden, the record could support a finding that Defendant believed that
no incriminating evidence would be found. Based on this evidence, the district


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court did not clearly err in finding that Defendant’s valid consent to search his
vehicle was freely and voluntarily given.
      Thus, for the foregoing reasons, we AFFIRM the district court’s denial of
Defendant’s motion to suppress evidence. Defendant’s conviction and sentence
are AFFIRMED.




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