     Case: 09-40375     Document: 00511030726          Page: 1    Date Filed: 02/19/2010




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

                                                  FILED
                                                                          February 19, 2010
                                     No. 09-40375
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MAREL M BRANCH,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 1:07-CR-190-1


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
        Marel M. Branch was indicted on one count of conspiracy and one count
of possession with intent to distribute five kilograms or more of cocaine. The
charges arose out of a traffic stop by officers of the Orange County Sheriff’s
Department and the Pinehurst Police Department in Orange County, Texas.
The officers stopped Branch’s vehicle after observing him “change lanes with an
improper signal.” After obtaining Branch’s consent, an officer searched the
vehicle and found a “nonfactory compartment built into the dashboard,” which

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                No. 09-40375

contained 15 bundles of cocaine. Branch filed a motion to suppress the cocaine
and all evidence arising from the stop and the subsequent search of his vehicle.
Branch argued, among other things, that he was unlawfully stopped because the
officers did not have reasonable suspicion to believe that a traffic violation had
occurred and that the search was without a warrant and probable cause and any
waiver of his constitutional rights was invalid and involuntary.
      The district court held a hearing on Branch’s motion to suppress. The
district court found that the stop was justified at its inception because the law
enforcement officer saw Branch change lanes without making the proper signal,
a violation of the traffic laws. The district court also found that during the
duration of the permissible traffic stop, Branch gave his valid consent for the
officers to search his vehicle. After the court denied his motion to suppress,
Branch entered a conditional guilty plea, reserving his right to appeal the denial
of the motion to suppress. The district court sentenced Branch to 120 months
of imprisonment and 5 years of supervised release. Branch now appeals the
conviction, which is based on the denial of the motion to suppress.
      This court reviews a district court’s factual findings on a motion to
suppress for clear error and its legal conclusions on Fourth Amendment issues
de novo, including determinations regarding reasonable suspicion and probable
cause. United States v. Zavala, 541 F.3d 562, 573-74 (5th Cir. 2008) (internal
citation omitted). “A factual finding is not clearly erroneous as long as it is
plausible in light of the record as a whole.” United States v. Jacquinot, 258 F.3d
423, 427 (5th Cir. 2001) (citation omitted). The evidence presented is viewed in
the light most favorable to the prevailing party, in this case, the Government.
United States v. Ibarra, 493 F.3d 526, 530 (5th Cir. 2007).
      “The stopping of a vehicle and detention of its occupants constitutes a
‘seizure’ under the Fourth Amendment.” United States v. Brigham, 382 F.3d
500, 506 (5th Cir. 2004) (en banc). The legality of a traffic stop, “whether
justified by probable cause or a reasonable suspicion of a violation,” is examined

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                                 No. 09-40375

under the two-pronged analysis described in Terry v. Ohio, 392 U.S. 1 (1968).
See Brigham, 382 F.3d at 506. The legal justification for the stop, however,
“must be objectively grounded.” United States v. Lopez-Valdez, 178 F.3d 282,
288 (5th Cir. 1999) (internal quotation marks and citations omitted). If the
supposed traffic violation that formed the basis for a stop was not a violation of
state law, there is no objective basis for justifying the stop. United States v.
Miller, 146 F.3d 274, 279 (5th Cir. 1998).
      Branch argues that the traffic stop was not justified at its inception
because it was based on an incorrect understanding of Texas law that a driver
must signal a lane change more than 100 feet prior to making the change.
Branch asserts correctly that the police officer testified at the suppression
hearing that he did not signal his intention to change lanes for 100 feet before
changing lanes. Although it is true that Texas law requires only that a driver
signal his intention to change lanes not that he must do so for 100 feet prior to
the change, the distinction is of no moment under the undisputed facts of this
case. The police officer testified that “the passenger’s side tires [of Branch’s
vehicle], front and rear tires, had completely crossed over the dotted divider line
prior to the signal ever being initiated to signal the lane change.” Branch does
not argue that these circumstances do not show a traffic violation. In finding
that the stop was justified by a traffic violation, the district court found that
Branch had changed lanes “without providing a proper signal.” The district
court made no mention of the erroneous 100-foot requirement. Branch has not
shown that the district court erred in finding that the facts of the incident
supported a valid traffic stop.
      Branch argues that the district court erred in finding that his consent to
the search of his vehicle was voluntary. When a search is based on consent
rather than a warrant, the Fourth Amendment requires the Government to
prove by a preponderance of the evidence that the consent was given freely and
voluntarily. Schneckloth v. Bustamonte, 412 U.S. 218, 221-22, 248-49 (1973);

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                                 No. 09-40375

United States v. Tompkins, 130 F.3d 117, 121 (5th Cir. 1997). Consent may not
be “the result of coercion or duress, express or implied.” Schneckloth, 412 U.S.
at 248. The voluntariness of consent is a factual finding reviewed for clear error.
United States v. Solis, 299 F.3d 420, 436 (5th Cir. 2002). In reviewing this
matter, only Branch’s custodial status weighs clearly against a finding of
voluntary consent. Because there were sufficient facts that together support the
voluntariness of Branch’s consent, there was no clear error. The judgment is
AFFIRMED.




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