     Case: 15-40719      Document: 00513485893         Page: 1    Date Filed: 04/29/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-40719                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                   April 29, 2016
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

NOEL CASTRO,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:09-CR-1839


Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Noel Castro appeals the district court’s denial of his motion to suppress
drug evidence and his post-arrest statements. Finding no error, we AFFIRM.
                                             I.
       On December 4, 2009, in Starr County, Texas, Deputy Javier Longoria
was driving home after his shift with the Sheriff’s Office when he was flagged
down by a man that he recognized. The man told Deputy Longoria that a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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vehicle was going to be loaded with marijuana and that he could show Deputy
Longoria the vehicle’s location. Although the man had never provided
information before, Deputy Longoria had known him for a while and
considered him truthful and reliable. 1 Deputy Longoria drove the man north
on FM 2360. The man pointed out the vehicle, a blue and white 18-wheeler
with a tanker, sitting stationary in a small church parking lot; two or three
men were standing around the vehicle. No other cars were in the lot. Deputy
Longoria circled back, dropped the man off, and called fellow Starr County
Sheriff’s Officer Juan Guerra, who was on patrol, to advise him of the
appearance and location of the tractor-tanker. While on the phone, the truck
pulled out and started heading southbound on FM 2360. After relaying that
information, Deputy Longoria told Officer Guerra to find probable cause to pull
over the vehicle.
      About fifteen minutes after the call, Officer Guerra spotted the tractor-
tanker. Following the vehicle for approximately two to three miles, he noticed
that its tail lights were covered with dirt and that the brake light on the
driver’s side did not appear to illuminate when the vehicle braked, in violation
of Texas law. At 1:23 p.m. Officer Guerra activated his lights and pulled over
the truck. The camera in Officer Guerra’s patrol car activated with the lights
and recorded the stop.
      Officer Guerra approached the vehicle. Noel Castro identified himself as
the driver and gave Officer Guerra his driver’s license and insurance card.
Back in the patrol car, at about 1:25 p.m., Officer Guerra conducted a license
and registration check, and called Officer Ismael Guerra for assistance. The




      1 Deputy Longoria did not know that the informant had a criminal history, including
a pending drug charge for “pick[ing] up contraband.”
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records check came back clear (although the timing of Office Guerra’s receipt
of the results is uncertain).
      Approximately ten minutes after the initial stop, Officer I. Guerra
arrived. The two officers approached the tractor, spoke with Castro, and
obtained his consent to search the tractor. Based on the video record, Officer
Guerra opened the door to the tractor at 1:34 p.m. The officers did not tell
Castro that the records check had been completed before they requested his
consent to search.
      As Officer Guerra searched the tractor, Officer I. Guerra spoke with
Castro and asked what he was hauling in the tanker. Castro responded that
he was carrying waste water. Officer I. Guerra then tapped on the middle of
the tanker with his flashlight and noted that it sounded hollow. He also
observed that the pipe at the end of the tanker did not contain water, which
typically occurs when a tanker transports water. Officer I. Guerra asked for,
and received, consent to search the tanker. After opening one of the tanker’s
hatches, Officer I. Guerra observed clear plastic wrap commonly used to bundle
marijuana. Officer I. Guerra then handcuffed Castro and escorted him to the
patrol car. Both officers searched the tanker and found large bundles of
marijuana.
      Castro was charged with conspiracy to possess with intent to distribute
1,000 or more kilograms of marijuana in violation of 21 U.S.C. §§ 841, 846
(count one), and possession with intent to distribute 1,000 kilograms or more
of marijuana in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2 (count two). He
moved to suppress the marijuana and his post-arrest statements, arguing that
both were the fruit of an unconstitutional seizure of his person. After a hearing
on the motion, the district court issued a lengthy oral denial. The district court
found that the few minutes between the records check and Castro’s consent to

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search the truck was not an unreasonable length of time to detain Castro given
that there was a valid traffic violation and reasonable suspicion of criminal
activity. The district court further noted that the officers had heard about the
criminal activity from Deputy Longoria, who received it from a source that
Deputy Longoria knew and trusted. The district court also ruled that Castro’s
post-arrest statements were voluntary and admissible because of the validity
of the stop. Castro then entered a conditional guilty plea to count two,
reserving the right to challenge the denial of his motion to suppress. He was
sentenced to 120 months in prison and a five-year term of supervised release.
He timely appealed.
                                       II.
      When reviewing a denial of a motion to suppress evidence, we review
factual findings for clear error and conclusions of law de novo. United States v.
Pack, 612 F.3d 341, 347 (5th Cir. 2010). “Factual findings are clearly erroneous
only if a review of the record leaves this Court with a definite and firm
conviction that a mistake has been committed.” United States v. Hearn, 563
F.3d 95, 101 (5th Cir. 2009) (internal quotation marks omitted). We must view
the evidence in the light most favorable to the prevailing party—here, the
government. See Pack, 612 F.3d at 347. In reviewing the district court’s
decision, we may affirm on any basis established by the record. See United
States v. Charles, 469 F.3d 402, 405 (5th Cir. 2006).
                                      III.
      Castro maintains that the district court erred in denying his motion to
suppress. He raises four arguments. First, he contends that the traffic stop
violated his Fourth Amendment rights because he was detained after the
purpose of the traffic stop had been accomplished—an investigation of the
brake-light violation—without independent reasonable suspicion of criminal

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activity. Second, he asserts that his subsequent consent to the search was not
independent of the constitutional violation, and thus the marijuana should be
excluded. Third, he avows that his post-arrest statements must be suppressed
as fruit of the illegal search. 2 Fourth, he claims that the district court
committed clear error in finding that Officer Guerra called for backup before
the records check came back clear. Castro argues that the officer’s testimony
indicates that he called for backup after completion of the records check,
thereby unconstitutionally prolonging the traffic stop.
       In response, the government insists that the traffic violation was not the
only justification for the stop—the officers had reasonable suspicion, based on
the informant’s tip, that Castro was transporting marijuana. The government
also contends that the officers’ actions were reasonably related to this
additional basis for suspicion, and thus were constitutionally valid. We agree
with the government.
                                             A.
       Traffic stops constitute a “seizure” within the meaning of the Fourth
Amendment. United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en
banc). To determine the legality of a traffic stop, we consider the two-prong
standard articulated in Terry v. Ohio, 392 U.S. 1 (1968). Id. First, we examine
whether the officer’s decision to stop the vehicle was justified at its inception.
Id. Second, we determine whether the officer’s later actions were reasonably
related to the facts that prompted the stop. Id. Here, Castro does not dispute




       2 On appeal, Castro does not challenge the voluntariness of his post-arrest statements
or the validity of the Miranda warnings. Accordingly, he has abandoned those issues. United
States v. Beaumont, 972 F.2d 553, 563 (5th Cir. 1992).
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that the stop was justified at its inception. He contests only the reasonableness
of the investigatory detention and the search that followed. 3
       In the context of a traffic stop, once an officer’s “initial suspicions have
been verified or dispelled, the detention must end unless there is additional
reasonable suspicion supported by articulable facts.” United States v. Gonzalez,
328 F.3d 755, 758 (5th Cir. 2003). We assess reasonable suspicion based on the
totality of the circumstances. United States v. Estrada, 459 F.3d 627, 631 (5th
Cir. 2006). Reasonable suspicion can develop through the collective knowledge
of the officers involved so long as there is “some degree of communication”
between the acting officer and the officer who has knowledge of the necessary
facts. United States v. Ibarra, 493 F.3d 526, 530 (5th Cir. 2007). An informant’s
tip can form a basis for reasonable suspicion if it is marked by “indicia of
reliability.” United States v. Martinez, 486 F.3d 855, 863 (5th Cir. 2007). In
determining whether a tip provides reasonable suspicion, we consider a
number of factors, including: “the credibility and reliability of the informant,
the specificity of the information contained in the tip or report, the extent to
which the information in the tip or report can be verified by officers in the field,
and whether the tip or report concerns active or recent activity, or has instead
gone stale.” Id. at 861.
       Here, the district court noted that the stop was “not just a traffic stop by
itself” but was based on information regarding criminal activity that
warranted further investigation. Thus, the purpose of the stop was not




       3 Castro also challenges the reasonableness of the investigatory detention based solely
on the traffic infraction justification. He asserts that the police improperly prolonged the
stop, detaining him after the completion of the records check. Because we find that the police
had reasonable suspicion of drug crime, which provided an adequate basis for the scope and
duration of the stop, we need not reach these arguments. See United States v. Powell, 732
F.3d 361, 371 n.5 (5th Cir. 2013).
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achieved once the records check came back clean. Office Guerra initiated the
traffic stop with two primary justifications: a traffic violation and reasonable
suspicion of drug crime. Under the second Terry prong, Officer Guerra’s actions
were permissible because they were reasonably related to his suspicion of
criminal activity. Approximately ten minutes passed between the traffic stop
and Castro’s consent to the search. At least two minutes and at most five
minutes elapsed between the completion of the records check and the time the
officers returned to speak with Castro. Officer Guerra’s reasonable suspicion
of a drug crime justified the time taken to process the initial traffic infraction,
wait for the arrival of backup, and question Castro. See Pack, 612 F.3d at 362
(holding that “a delay of only eight minutes” was reasonable “[i]n view of the
suspicious facts that [the officer] had observed”). The detention of Castro was
temporary, and lasted no longer than necessary to effectuate the purpose of
the stop. See United States v. Pena-Gonzalez, 618 F. App’x 195, 198 (5th Cir.
2015) (explaining that Terry permits elongation of a traffic stop if reasonable
suspicion of additional criminal activity “existed in the first place”); Powell, 732
F.3d at 371 (concluding that reasonable suspicion of the drug crime “provided
an independent basis for prolonging the investigatory detention beyond the
parameters of a run-of-the-mill traffic stop”).
      Castro argues that the tip was not sufficiently reliable to provide
independent reasonable suspicion of a drug crime. He maintains that the tip
was categorically unreliable because Deputy Longoria was unaware of the
informant’s criminal history, had never received information from this man
before, and did not question how the informant had obtained this information.
In support, Castro points to Deputy Longoria’s instruction to Officer Guerra to




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“try to find whatever probable cause you can” as evidence that the tip was not
sufficiently reliable or credible. 4
       An analysis of the relevant factors shows that the tip was supported by
sufficient “indicia of reliability” to validate the officer’s reasonable suspicion. 5
The factors identified by Castro—the informant’s criminal history, his failure
to relay how he obtained the information, and his status as a first-time
informant—do weigh against a determination that the informant’s tip was
credible and reliable. See Powell, 732 F.3d at 370; United States v. Steele, 353
F. App’x 908, 910 (5th Cir. 2009). But we must account for the totality of the
circumstances, and there are several additional circumstances to consider.
Deputy Longoria had a basis for believing the tip. He testified that he
recognized and trusted the informant; the two were from the same area and
Deputy Longoria had known him “for a while.” The information in the tip was
specific and readily verified by Deputy Longoria. The man directed Deputy
Longoria to the vehicle’s location and identified the tractor-tanker. See
Alabama v. White, 496 U.S. 325 (1990) (finding reasonable suspicion based on
an anonymous tip that was specific, accurate, and verified by police before


       4  But see Whren v. United States, 517 U.S. 806, 813 (1996) (rejecting argument that
the constitutional reasonableness of traffic stops depends on the actual motivations of the
individual officers involved).
        5 Castro cites United States v. Martinez, 486 F.3d 855 (5th Cir. 2007) as support for

his challenge to the informant’s credibility. But that case, which involved an anonymous tip,
is distinguishable. In Martinez, an anonymous informant contacted the police to report that
a man named “Angel” might have witnessed a quadruple homicide and might possess the
weapons involved. Id. at 858. The officers had no “first-hand knowledge of the tip or the
informant” or any basis for assessing the “information, the reliability of that source, or the
specifics of what he or she said.” Id. at 861–62. The only information verified by the police
(the following day) was that Angel lived in the specified house. Id. at 862. Noting the absence
of “any verified information that criminal activity may be afoot,” this court concluded that
the information received was insufficient to give rise to reasonable suspicion. Id. (internal
quotation marks omitted). Here, by contrast, Deputy Longoria recognized the tipster, had
known him as a resident of the community, and had interacted with him in the past. And the
information provided by this informant was specific and timely.
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effecting the traffic stop). Moreover, the tip was about ongoing activity and had
not gone stale. After viewing the vehicle with the informant, Deputy Longoria
called Officer Guerra and passed along the description of the tractor-tanker. 6
Officer Guerra spotted the vehicle approximately fifteen minutes later and
initiated the stop. See Ortiz, 781 F.3d at 227.
       In Powell, we considered a similar case. There, a confidential informant
known to the police called the police department to report that a man and
woman who had just left his house had purchased crack cocaine and were en
route to Midland, Texas. Powell, 732 F.3d at 366–67. The tipster described the
make, possible model, and color of the vehicle. He failed to mention, however,
that he was responsible for cooking the crack cocaine that had just been
purchased. Id. Based on the tip and a traffic violation, the police effected a stop
of the vehicle. Id. at 367. We held that the officers had the requisite reasonable
suspicion, finding that the informant’s concealment of his status as the drug-
dealer did not outweigh the specificity, predictive value, and recency of his tip. 7
Id. at 370–71.
       The relationship between the informant and Deputy Longoria, the
specificity of the tip, and the recency of the information outweigh the flaws in
the informant’s personal credibility and reliability. Because the officers had
reasonable suspicion of criminal activity and acted diligently to dispel their
suspicions, we affirm the district court.



       6  This communication between the officers is sufficient to trigger application of the
collective knowledge doctrine. Deputy Longoria was in direct contact with Officer Guerra,
and provided him with the underlying basis of the tip. See Powell, 732 F.3d at 369.
        7 The government argued in Powell that reasonable suspicion was based not only on

the informant’s tip but also on its subsequent corroboration and the appellants’ conflicting
statements. 732 F.3d at 369. In concluding that the officers had reasonable suspicion,
however, we relied exclusively on the “specificity, predictive value, and recency” of the
informant’s tip. Id. at 371.
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                                        B.
      “A search conducted pursuant to consent is excepted from the Fourth
Amendment’s warrant and probable cause requirements.” United States v.
Solis, 299 F.3d 420, 436 (5th Cir. 2002). Consent cannot be the product of an
illegal detention. See United States v. Jenson, 462 F.3d 399, 407 (5th Cir. 2006).
It is valid if it is voluntary and an “independent act of free will.” United States
v. Montgomery, 777 F.3d 269, 273 (5th Cir. 2015). Valid consent may cure any
taint of a prior Fourth Amendment violation. Id. at 272–73; see Jenson, 462
F.3d at 407 (noting that the purpose of the “independent act” inquiry is to
determine whether there was a “break in the casual chain between the
constitutional violation and the consent” (internal quotation marks omitted)).
      Castro does not challenge the voluntariness of his consent. He argues
that his consent was not an independent act of free will because it closely
followed his illegal detention. Because we decide that Castro was not illegally
detained, we need not reach the question of whether his consent was an
“independent act of free will.” See United States v. Sierra, 294 F. App’x 884,
889 n.3 (5th Cir. 2008) (“Because the investigative stop was constitutional, we
need not determine whether [the defendant’s] consent to search the vehicle was
an ‘independent act of free will.’”); United States v. Khanalizadeh, 493 F.3d
479, 484 (5th Cir. 2007) (same). We find Castro’s consent valid and affirm the
district court.
                                        C.
      “Under the ‘fruit of the poisonous tree’ doctrine, all evidence derived from
the exploitation of an illegal search or seizure must be suppressed, unless the
Government shows that there was a break in the chain of events.” United
States v. Cotton, 722 F.3d 271, 278 (5th Cir. 2013). Castro argues that there
was no temporal break between the illegal search and his post-arrest

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statements, and thus that his statements must be suppressed. But the search
was constitutional. Because there was no Fourth Amendment violation during
either the stop or the search, Castro’s inculpatory statements are not subject
to suppression.
                                       D.
      Castro also contests the district court’s factual finding that Officer
Guerra called for backup before the records check cleared. This fact is relevant
only because Castro claims that the traffic stop was predicated solely on the
basis of his traffic violation. Once the records check came back clean, Castro
argues, Officer Guerra had no legitimate reason to then call for backup and
extend the stop. See Jenson, 462 F.3d at 404. Because we hold that both the
traffic violation and the tipster’s information provided a basis for the stop, we
need not consider Castro’s factual challenge. Whether he called for backup
before or after the check came back clear is irrelevant.
                                      IV.
      We find Castro’s detention reasonable in duration and his consent to the
search valid. We hold that his post-arrest statements were not tainted by an
unlawful detention and thus AFFIRM the district court’s denial of his motion
to suppress.




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