                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                        REVISED MAY 24, 2006
                                                                May 9, 2006
                IN THE UNITED STATES COURT OF APPEALS
                                                          Charles R. Fulbruge III
                        FOR THE FIFTH CIRCUIT                     Clerk



                            No. 05-40685



     United States of America,


                                                   Plaintiff-Appellee,
            versus



     Manuel Contreras-Trevino,

                                                Defendant-Appellant.




            Appeal from the United States District Court
                  for the Southern District of Texas



Before GARWOOD, DAVIS, and GARZA, Circuit Judges.

GARWOOD, Circuit Judge:

     Manuel Contreras-Trevino appeals the district court's denial

of his motion to suppress evidence obtained during a vehicle stop.

For the same reasons stated in the district court's well-reasoned

opinion, we find the vehicle stop did not violate the Fourth

Amendment, and we accordingly affirm the denial of the motion to

suppress.

                     FACTS AND PROCEEDINGS BELOW
       On January 26, 2005, Lieutenant Luis Valdez of Jim Wells

County    Sheriff's        Department      and       Officer    Cesar      Flores        of   the

Robstown Police Department were working together, patrolling U.S.

Highway 281.       While on patrol near Alice, Texas, Valadez spotted a

Mitsubishi Montero that he believed was in violation of Section

502.409       of   the    Texas       Transportation          Code,      relating     to       the

obstruction of a vehicle's license plate.                       This particular plate

had a plastic frame, issued by a San Antonio dealership, that

covered the top half of the word "TEXAS" and the bottom half of

plate's design.

       The officers pulled over the Montero and asked the driver,

Manuel Contreras-Trevino, for his license and registration.                                   They

soon     realized        that    he    didn't        speak     English     and     continued

questioning him in Spanish.                He admitted that neither he nor the

seven passengers in his car had any identification.                              Valdez then

notified      Border      Patrol.       During        Border    Patrol's     questioning,

everyone in the car admitted that they were in the United States

illegally. Contreras also admitted that he was being paid to drive

the group to San Antonio.

       On February 9, 2005, in the Corpus Christi Division of the

Southern District           of    Texas,    a       grand    jury   issued    a     two-count

indictment against Contreras, each charging that he unlawfully

transported an illegal alien in a motor vehicle in violation of 8

U.S.C.    §    1324(a)(1)(A)(ii)           and      (B)(ii).        On    March     9,    2005,



                                                2
Contreras filed a motion to suppress evidence, arguing that the

officers lacked probable cause for stopping his car.        The district

court denied the motion, and, after a bench trial, found Contreras

guilty of both counts.       The court sentenced him to five years'

probation as to each count. Contreras appeals the district court's

denial of his motion to suppress.

                              DISCUSSION

       We review determinations of probable cause de novo, accepting

findings of fact absent clear error. See Ornelas v. United States,

116 S.Ct. 1657 (1996). The decision to stop an automobile is

constitutional "where the police have probable cause to believe

that a traffic violation has occurred." Whren v. United States, 116

S.Ct. 1769, 1772 (1996).

       The government argues that the officers had probable cause to

stop   Contreras   because   his   vehicle's   rear   license   plate   was

obscured    in   violation   of    both   sections    502.409(a)(6)     and

502.409(a)(7)(A) of the Texas Transportation Code.              Contreras

contends that the government's argument is foreclosed by a plain

reading of the statute and by this court's holding in United States

v. Granado, 302 F.3d 421 (5th Cir. 2002).

       We agree with the government and with the district court that

recent amendments to the Texas Transportation Code have altered the

legal landscape on which the Granado result rested and that a plain

reading of the Texas Transportation Code now proscribes the use of


                                     3
license plate frames that obscure certain protected features of the

vehicle's   license   plate.       Section   502.409   of   the   Texas

Transportation Code (with the 2003 amendments emphasized) provides:

     (a) A person commits an offense if the person attaches to or
     displays on a motor vehicle a number plate or registration
     insignia that:
          * * *
          (6) has an attached illuminated device or sticker, decal,
          emblem, or other insignia that is not authorized by law
          and that interferes with the readability of the letters
          or numbers on the plate or the name of the state in which
          the vehicle is registered; or
          (7) has a coating, covering, or protective material that:
                (A) distorts angular visibility or detectability; or
                (B) alters or obscures the letters or numbers on
                the plate, the color of the plate, or another
                original design feature of the plate.

TEX. TRANSP. CODE § 502.409.   The first question presented, then, is

whether a license plate frame is a "covering" for the purposes of

section 502.409(a)(7). The appellant contends that is not, arguing

that a “covering” must obstruct one-hundred percent of the license

plate’s surface area, and that the legislature would have said

“frame” if they intended otherwise.     In both the Texas and Federal

courts, only a single published opinion has squarely addressed this

question.   In   Flores-Fernandez, a federal district court ruled

that:

     “[t]he statute clearly applies to any object, including
     a license plate frame, which hides the letters, numbers,
     color, or original design features of a license plate
     from view. There is not requirement that the object must
     conceal the entire plate to constitute a covering. If
     the Legislature had intended this result, they would have

                                   4
       written the statute to apply only to objects that hide
       the letters, numbers, color, and original design features
       from view. But the statute, as written, uses the word
       “or” and applies to objects that cover any one, but not
       necessarily all, of the letters, numbers, color, or
       original design features of the plate.” United States v.
       Flores-Fernandez, –F.Supp.2d–, 2006 WL 493416 (S.D.Tex.
       2006).1

       The Flores-Fernandez court then noted that Texas courts had

implicitly adopted the view that a proscribed covering can obstruct

or obscure less than one-hundred percent of the license plate. See

e.g., Jenkins v. State, No. 01-05-00299-CR, 2006 WL 23323 at *3

(Tex.App.–Houston          (1st),      Jan.       5,   2006)     (not   designated          for

publication) (finding of violation of section 502.409(a)(7) because

“dirt on the license plate . . . made the plate very difficult to

read.”); Webb v. State, No. 10-05-00070-CR, 2005 WL 2665476, at *1

(Tex. App.–Waco, Oct. 19, 2005) (not designated for publication)

(finding a violation because wires obstructed the license plate);

Jones      v.   State,    No.    05-01-01153-CR,          2002    WL    1613711,      at    *4

(Tex.App.–Dallas, July 23, 2002) (not designated for publication)

(finding a violation under section 502.409(a) because the officer

“could not read the license plate . . . because it was obscured by

mud”).

           The appellant responds that the above interpretation of the

word “covering” is foreclosed by Granado.                         For in Granado, the



       1
        Flores-Fernandez was decided by the same federal district judge whose suppression
ruling we review today.

                                              5
appellant contends, this court held that a license plate frame

obscuring part of the word “Texas” was not "a ‘coating, covering,

or protective material' disturbing angular visibility." Granado,

302 F.3d at 424 (emphasis added). We disagree with the appellant’s

contention. Nothing in Granado suggests that a license plate frame

can never be a covering; rather, that case suggests only that a

frame is not a covering that disturbs angular visibility.           In fact,

by reaching the “disturbing [sic] angular visibility” question, the

Granado court implicitly assumed that such a frame was a “covering”

with the meaning of the statute.

     Thus, contrary to the appellants assertion, the 2003 amendment

has indeed undermined Granado because angular visibility is no

longer the only interest protected by that section.        Now, however,

the covering which the statute proscribes includes that which

obscures the letters or numbers on the plate or “another original

design feature of the plate.”          Accordingly, we agree with the

district court’s reasoning in Flores-Fernandez, and we hold that

the plain   meaning   of   “covering”   for   the   purposes   of   section

502.409(a)(7) may include a license plate frame.

     Having reached this conclusion, we now turn to the question of

whether the particular covering on the appellant’s vehicle “alters

or obscures the letters or numbers on the plate, the color of the

plate, or another original design feature of the plate.”                TEX.

TRANSP. CODE § 502.409(a)(7).   During the suppression hearing, the


                                   6
officers testified that they stopped the defendant because the word

“TEXAS” was partially covered by the license plate frame.                                 And, as

the district court recognized, the “name of the state in which the

vehicle       is     registered”         is     expressly        protected         by     section

502.409(a)(6),           but     is     not     expressly        mentioned         in     section

502.409(a)(7).

       However, we hold that section 502.409(a)(7)extends to the word

“TEXAS.”       The state name is, literally, “letters or numbers on the

plate,” and is, moreover, an “original design feature of the

plate.”         While     it    is    true    that     the    legislature         specifically

mentioned the “state of                registration” in section 502.409(a)(6),

and did not do so in section 502.409(a)(7), we conclude that

subsection (a)(7) was simply drafted more broadly than(a)(6).2

       In    the    alternative,          district       court      also     found      that    the

appellant’s license plate frame covered the state motto, “The Lone

Star State,” as well as a picture of oil derricks and much of the

“cowboy in the country” design.                      The defendant does not contest

these factual findings, nor do we believe that the district court

clearly erred in making them.                        We affirm the district court’s

finding      that     the      defendant’s        license       plate      violated       section

502.409(a)(7) and that the officers had probable cause to stop the

appellant’s vehicle.


       2
         Subsection a (6) protects “the letters or numbers on the plate or the name of the state in
which the vehicle is registered” while subsection a (7) protects “the letters or numbers on the
plate, the color of the plate, or another original design feature of the plate.”

                                                 7
                      CONCLUSION

The judgment of the district court is

                       AFFIRMED.




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