                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 04-2362
                                ________________

United States of America,                 *
                                          *
             Appellee,                    *
                                          *       Appeal from the United States
      v.                                  *       District Court for the
                                          *       Northern District of Iowa.
Hector Esquivias,                         *
                                          *
             Appellant.                   *

                                ________________

                                Submitted: December 15, 2004
                                    Filed: August 1, 2005
                                ________________

Before BYE, HANSEN, and GRUENDER, Circuit Judges.
                         ________________

GRUENDER, Circuit Judge.

      Hector Esquivias (“Esquivias”) was arrested inside a hotel in Cedar Rapids,
Iowa, after a search of his pockets uncovered a key that led to a room in which police
found more than 50 grams of crack cocaine. Pursuant to Fed. R. Crim. P. 11,
Esquivias entered a conditional guilty plea to possession with intent to distribute
more than 50 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) and
841(b)(1)(A). The district court1 sentenced him to 51 months’ imprisonment.
Esquivias appeals the district court’s denial of his motion to suppress evidence. We
affirm.

I.    BACKGROUND

       On September 25, 2003, Investigator Ryan Abodeely (“Investigator Abodeely”)
of the Cedar Rapids Police Department Narcotics Division was conducting
surveillance for an unrelated case at the Aspen Inn, a two-story hotel in Cedar Rapids.
Investigator Abodeely, who was specifically assigned to hotels and motels, observed
a gray Jeep Cherokee with Illinois license plates driving slowly on a street near the
Aspen Inn. Investigator Abodeely noticed three occupants in the Jeep: a male driver
later identified as Esquivias, a male passenger later identified as Richard Barragan
(“Barragan”), and a female passenger later identified as Araceli Martinez
(“Martinez”). Investigator Abodeely described the passengers as “looking around”
and attempting “to find something.” About forty-five minutes later, Investigator
Abodeely noticed the same Jeep with the same occupants again driving by the hotel,
and again the passengers appeared to be looking for something.

       Investigator Abodeely informed fellow Narcotics Division Investigator Chip
Joecken (“Investigator Joecken”) about his suspicions regarding the gray Jeep and its
occupants. Later that day, Investigator Joecken, who was also at the Aspen Inn on
an unrelated case, observed Esquivias driving alone in a Jeep Cherokee near the hotel.
Investigator Joecken observed Esquivias drive into the parking lot of an adjacent
hotel, park and enter the Aspen Inn through a side entrance. Investigator Abodeely,
who was now inside the hotel on the unrelated matter, observed Esquivias wandering


      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa, adopting the Report and Recommendation of the Honorable John A.
Jarvey, United States Magistrate Judge for the Northern District of Iowa.
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the halls on both the first and second floors. Investigator Abodeely observed
Esquivias approach the ajar door to Room 211, knock, and walk away when there was
no response. Investigator Abodeely found this behavior also to be suspicious but
continued to work on the unrelated case.

      Still in the hotel, Investigator Abodeely again encountered Esquivias in the
second-floor hallway. This time, Investigator Abodeely was accompanied by
Investigator Joecken and Cedar Rapids Police Officer John McDaniel (“Officer
McDaniel”), who was wearing a police uniform. As Esquivias was walking toward
them, Investigator Abodeely identified him to the other officers as the suspicious
person he previously observed. Officer McDaniel stayed back while Investigator
Abodeely and Investigator Joecken walked up to Esquivias. Investigator Joecken
asked Esquivias for identification. Esquivias stated that he did not have identification
but gave Investigator Joecken his correct name and date of birth. Investigator
Joecken called this information into the police dispatch and determined that Esquivias
did not have any outstanding warrants.

       While Investigator Joecken was checking for outstanding warrants, Esquivias
told Investigator Abodeely that he was trying find his hotel room. Finding this
suspicious, Investigator Abodeely asked Esquivias for consent to search his person.
The district court found that Esquivias unequivocally and without hesitation gave
consent to Investigator Abodeely to search him. During the search, Investigator
Abodeely found a motel key card in Esquivias’s pocket. When asked about the motel
key, Esquivias claimed he received it from an unknown woman and that he was trying
to find the room to which the key belonged.

      Investigator Joecken and Officer McDaniel stayed with Esquivias while
Investigator Abodeely took the room key to the front desk to determine which room
it opened. The front-desk clerk told Investigator Abodeely that the key card was
assigned to Room 104, which was rented earlier that day. Investigator Abodeely

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returned to the second floor hallway and instructed Officer McDaniel to wait with
Esquivias as he and Investigator Joecken investigated Room 104. Esquivias was not
in handcuffs or restrained in any way, and the officers described him as very
cooperative.

       Investigator Abodeely knocked on the door of Room 104, and the investigators
heard a male voice respond “just a minute.” A short time later, Barragan opened the
door. Even though Investigator Abodeely and Investigator Joecken were in plain
clothes, they showed Barragan their police badges and identified themselves as police
officers. They asked Barragan if he knew “Hector,” and Barragan responded that
Esquivias was his cousin. After asking Barragan several more informational
questions, Investigator Abodeely also asked Barragan for permission to “step in the
room and speak to him.” Barragan granted the officers permission to enter the hotel
room, stepped back and opened the door completely. Investigator Abodeely
understood Barragan to consent to his entry and walked into the room while
Investigator Joecken remained in the hallway.

        Upon entering the room, Investigator Abodeely saw Martinez on the bed and
noticed a pillow on top of a table in a corner. Investigator Abodeely also saw plastic
baggies and rocks of crack cocaine lying in plain view on top of the table next to the
pillow. After seeing the cocaine, Investigator Abodeely walked across the room,
lifted the pillow, and found a large quantity of crack cocaine, a tin box, plastic bags
and an electronic scale. The officers then arrested and handcuffed Barragan and
Martinez. Esquivias was also arrested, handcuffed and taken to Room 104. The
police officers then obtained a search warrant for Room 104.

      At Esquivias’s suppression hearing before a magistrate judge, Esquivias,
Martinez and Barragan contested many of the facts detailed above. Esquivias stated
that when first approached by the officers, he attempted to continue walking, but his
progress was blocked by one of the officers. Esquivias also testified that Investigator

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Abodeely did not ask for his consent to a full search of his person and that he only
consented to a pat down. Martinez claimed that all three officers came to the door,
that she never heard Barragan invite the officers into the room, and that Barragan
protested Investigator Abodeely’s entry into the room. Barragan testified when he
heard a knock on the door he asked who was there, and a voice responded that they
were from the front desk. He claimed that he only cracked open the door and that he
protested when Investigator Abodeely pushed the door open and entered without
asking permission.

       After reviewing the magistrate judge’s report and recommendation, the district
court denied Esquivias’s motion to suppress because Esquivias voluntarily consented
to the search of his person, and the officers did not violate the law in temporarily
detaining him to confirm or dispel their reasonable suspicion of criminal activity.
The district court also found that the officers had Barragan’s consent to enter Room
104.

II.   ANALYSIS

       On appeal, Equivias argues on a number of grounds that the district court erred
in denying his motion to suppress the evidence obtained from Room 104. When
considering a denial of a motion to suppress, this Court reviews “the district court’s
factual findings for clear error and its legal conclusions de novo.” United States v.
Petty, 367 F.3d 1009, 1011 (8th Cir. 2004). “We will affirm an order denying the
suppression of evidence, unless the decision lacks the support of substantial evidence,
is based on an erroneous view of the law, or this Court is left with a firm conviction
that a mistake has been made.” United States v. Roby, 122 F.3d 1120, 1123 (8th Cir.
1997).




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      A.     Scope of Esquivias’s Consent

       Esquivias first argues that the district court clearly erred in its factual finding
that he consented to a full search of his person, rather than a mere pat down. We
disagree.

       The district court found that Esquivias provided unequivocal consent to a full
search of his person. Although Esquivias testified at his suppression hearing that the
officers only asked, “Can we pat you down?”, the district court discredited his
testimony and accepted the contrary testimony of the investigating officers. A district
court’s “credibility findings are well-nigh unreviewable, so long as the findings are
not internally inconsistent or based on testimony that is incoherent, implausible, or
contradicted by objective evidence in the case.” United States v. Jones, 254 F.3d 692,
695 (8th Cir. 2001); see also United States v. Tucker, 243 F.3d 499, 506 (8th Cir.
2001) (“When a trial judge’s finding is based on his decision to credit the testimony
of one of two or more witnesses, each of whom has told a coherent and facially
plausible story that is not contradicted by extrinsic evidence, that finding, if not
internally inconsistent, can virtually never be clear error.”) (quoting Anderson v.
Bessemer City, 470 U.S. 564, 575 (1985)). There was nothing incoherent or
implausible about the officers’ testimony that Esquivias consented to a full search of
his person. For that reason, the district court did not clearly err in finding that
Esquivias consented to a full search rather than a mere pat down.

      B.     Voluntariness of Esquivias’s Consent

       Esquivias also argues that even if he consented to a full search, his consent was
not voluntarily given, and the resulting search violated his right to be free from an
unreasonable search under the Fourth Amendment to the United States Constitution.
Esquivias claims that his consent was not voluntary because he was much smaller
than the officers, the officers confronted him in a manner such that he did not feel free

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to leave, English is not his first language, he was only 19-years old at the time of the
arrest, he did not know he was free to refuse consent, and before giving his consent
he tried to leave but his path was blocked by a uniformed officer. We disagree.

       A defendant’s voluntary consent to be searched is an exception to the Fourth
Amendment’s warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 222
(1973). A court determines whether consent is voluntary under the totality of the
circumstances. United States v. Gipp, 147 F.3d 680, 685 (8th Cir. 1998). The
Government bears the burden of proving voluntary consent by a preponderance of the
evidence and must show that the defendant behaved in such a manner that the officer
reasonably believed that the search was consensual. United States v. Cedano-Medina,
366 F.3d 682, 684-85 (8th Cir. 2004). In evaluating the reasonableness of the
officer’s belief, we consider the characteristics of the person consenting, “including
the party’s age, intelligence and education, whether he was under the influence of
drugs or alcohol, whether he was informed of his right to withhold consent, and
whether he was aware of rights afforded criminal suspects.” United States v.
Almendares, 397 F.3d 653, 660 (8th Cir. 2005). We also consider the environment
in which the alleged consent took place, “specifically (1) the length of time he was
detained; (2) whether the police threatened, physically intimidated, or punished him;
(3) whether the police made promises or misrepresentations; (4) whether he was in
custody or under arrest when the consent was given; (5) whether the consent occurred
in a public or a secluded place; and (6) whether he stood by silently . . . as the search
occurred.” United States v. Smith, 260 F.3d 922, 924 (8th Cir. 2001).

       In this case, the totality of the evidence shows that the officers reasonably
concluded that Esquivias voluntarily consented to be searched. Esquivias was 19
years old at the time of his arrest and claimed to have a GED. Although Esquivias
claimed English was his second language, he was a lifetime resident of Rockford,
Illinois, and there is no evidence that he had any difficulty understanding English.
There is no indication that Esquivias was under the influence of drugs or alcohol at

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the time of his arrest. While the officers did not inform Esquivias of his right to
refuse consent, a defendant need not be aware, nor must an officer inform him, of his
right to refuse consent for his consent to be voluntary. United States v. Becker, 333
F.3d 858, 861 (8th Cir. 2003). In addition, Esquivias was only detained a short time
before he consented to be searched, was not threatened or intimidated by police, did
not consent as a result of any promises from police, was not in police custody at the
time of his consent, the search occurred in a public hallway, and the investigating
officers described him as very cooperative while being searched. Under the totality
of these circumstances, the district court correctly held that a reasonable officer
would have believed Esquivias’s consent to have been voluntary. See, e.g., United
v. Fuller, 374 F.3d 617, 622 (8th Cir. 2004) (holding that the district court did not
clearly err in finding consent voluntary where the defendant “was eighteen years old
at the time, a high school graduate, and there is no evidence that the police threatened
or coerced him”).

      C.     Seizure of Esquivias During Investigation

      Esquivias next argues that the officers violated his right to be free from an
unreasonable seizure under the Fourth Amendment both when they stopped him in
the hotel hallway and when they detained him while determining the room to which
his key card belonged. We disagree.

       A law enforcement officer is permitted to stop and briefly detain a defendant
for investigative purposes so long as he has a “reasonable suspicion supported by
articulable facts that criminal activity ‘may be afoot.’” United States v. Johnson, 64
F.3d 1120, 1124 (8th Cir. 1995) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)). A
Terry stop is permissible even when the officer lacks probable cause to make an
arrest. See United States v. Hernandez-Hernandez, 327 F.3d 703, 706 (8th Cir.
2003). Moreover, “[r]easonable suspicion is based on the totality of the
circumstances, which are viewed in light of the officer’s experience and familiarity

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with drug trafficking.” Johnson, 64 F.3d at 1124 (citation omitted). “[An] officer’s
suspicion is reasonable if the officer knows particularized, objective facts that lead
to a rational inference that a crime is being or has been committed.”
Hernandez-Hernandez, 327 F.3d at 706. “Even innocent actions may give rise to
reasonable suspicion if they warrant consideration under the totality of the
circumstances.” Johnson, 64 F.3d at 1124.

        Under the totality of the circumstances in this case, Esquivias’s actions
provided the officers with reasonable suspicion to support a Terry stop. Investigators
Abodeely and Joecken were assigned to the police department’s narcotics division
and regularly investigated suspicious activity at motels, such as the Aspen Inn, where
the investigators were performing surveillance on another drug-related matter. Both
Investigator Abodeely and Investigator Joecken noticed Esquivias drive slowly
around the hotel. Investigator Abodeely noticed Esquivias do this twice, both times
appearing to be looking for something. Investigator Joecken noticed Esquivias drive
by the hotel once, and he also saw Esquivias park in the lot of another hotel and enter
the Aspen Inn through a side entrance. Investigator Abodeely also noticed Esquivias
wandering the halls, seemingly without a place to go. Given the officers’ experience
in narcotics investigations, especially at Cedar Rapids hotels, Esquivias’s behavior
provided Investigators Abodeely and Joecken reasonable suspicion to support their
initial Terry stop.

       In addition, what the officers learned upon questioning and searching Esquivias
provided reasonable suspicion to detain Esquivias long enough to further investigate
whether his suspicious behavior was criminal. Not only were the officers reasonably
alerted by Esquivias’s wandering through the halls of the hotel, but also the officers
learned from Esquivias that he did not know his own room number. Esquivias also
lacked any identification and told the officers that he was handed a key card to a room
that he claimed to be his room by a woman that he claimed not to know. Again, when
combined with the officers’ experience with narcotics investigations, the investigators

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learned enough from their initial questioning of Esquivias to justify detaining him
long enough to determine which room his key opened and why he possessed a key but
did not know the room to which it belonged. Therefore, the officers’ continued
detention of Esquivias was also a constitutional Terry stop.

       Further, we disagree with Esquivias’s contention that any reasonable suspicion
that he was engaged in criminal activity dissipated when Barragan identified
Esquivias as his cousin. Verifying that those in the hotel room knew Esquivias did
not put an end to the officer’s suspicion. Rather, upon reaching the hotel room, it was
reasonable for the officers to ask “‘a moderate number of questions to determine his
identity and to try to obtain information confirming or dispelling the officer’s
suspicions.’” United States v. Rodriguez-Arreola, 270 F.3d 611, 617 (8th Cir. 2001)
(quoting Berkemer v. McCarty, 468 U.S. 420, 439 (1984)) (emphasis added). After
obtaining Esquivias’s name from Barragan, it was still reasonable for the officers to
ask further questions until they had adequately tested their suspicions regarding
Esquivias. To exhaust those suspicions, it was reasonable for the officers to ask to
look around Esquivias’s room. Upon receiving consent to enter the hotel room, it was
reasonable for the officers to detain Esquivias briefly while they confirmed their
suspicions about his behavior by investigating the room in which he claimed to be
staying.

      D.     Consent to Search Hotel Room

      Lastly, Esquivias argues that because he did not provide consent, the officers
were required under the Fourth Amendment to obtain a warrant to search his hotel
room. We disagree.

      Esquivias contends that he had a reasonable expectation of privacy in the hotel
room, and, for that reason, the Fourth Amendment mandates that the officers needed
a warrant to search the room without his consent. Esquivias is correct that the Fourth

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Amendment’s prohibition on unreasonable searches only protects people in places
where they have a reasonable expectation of privacy. United States v. Corona-
Chavez, 328 F.3d 974, 980 (8th Cir. 2003). In addition, whether a person has a
reasonable expectation of privacy in a motel room depends upon factors such as
whether the defendant was ever in the room and whether the defendant checked into
or paid for the room. United States v. Carter, 854 F.2d 1102, 1105-06 (8th Cir.
1988). We, however, need not decide whether Esquivias had a reasonable
expectation of privacy in the hotel room because Barragan voluntarily consented to
Investigator Abodeely’s search of the hotel room. United States v. Williams, 346 F.3d
796, 798 (8th Cir. 2003) (“Where a person having authority over the premises
voluntarily consents to a search, however, law enforcement may conduct a
warrantless search without running afoul of the Fourth Amendment.”).

       In response, Esquivias does not contest Barragan’s authority to consent to a
search of the room, but rather contends that the district court clearly erred in its
factual finding that Barragan consented to Investigator Abodeely walking around his
hotel room. According to Esquivias, even if the district court correctly found that
Barragan granted Investigator Abodeely permission to enter his room, that permission
was at most permission to take step or two inside the room. Esquivias argues that
Investigator Abodeely exceeded the scope of Barragan’s consent by walking far
enough into the room that he could see the rocks of cocaine base laying beside the
pillow.

       We cannot find clear error in the district court’s decision to credit Investigator
Abodeely’s and Investigator Joecken’s consistent and coherent testimony that
Barragan consented to Investigator Abodeely’s entry into the hotel room. Tucker,
243 F.3d at 506; see also Anderson, 470 U.S. at 574 (“Where there are two
permissible views of the evidence, the factfinder’s choice between them cannot be
clearly erroneous.”). Moreover, even if Barragan only granted Abodeely verbal
consent to “step in,” he opened the door fully and stepped back in an inviting manner.

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From these gestures alone, Abodeely could reasonably conclude that Barragan
granted him permission to enter the room more than just a step or two. See Williams,
346 F.3d at 799 (noting that “consent reasonably implied from behavior” suffices
under the Fourth Amendment). Therefore, we reject Esquivias’s claims that there was
constitutional infirmity in Investigator Abodeely’s entry into the hotel room.

III.   CONCLUSION

     For the reasons stated above, we affirm the district court’s denial of Esquivias’s
motion to suppress.
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