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

                                                                            FILED
                                                                          March 10, 2008

                                       No. 07-10508                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

DALE ANDREW BESSOLO

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 2:06-CR-061-J


Before JONES, Chief Judge, and DAVIS, and GARZA, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Dale Andrew Bessolo (“Bessolo”) pleaded guilty,
pursuant to a plea agreement, to participating in a money laundering conspiracy
and was sentenced to thirty-seven months in prison. Prior to entering his guilty
plea, Bessolo filed a motion to suppress evidence obtained following a traffic
stop. In his Report and Recommendation, the magistrate judge recommended
that the motion be denied, and the district court adopted that recommendation.
In his plea agreement, Bessolo reserved the right to appeal the district court’s


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                    07-10508

denial of his motion to suppress.    Bessolo timely appealed. For the reasons
below, we affirm the district court’s order denying Bessolo’s Motion to Suppress.
                                        I.
      On August 12, 2006 at approximately 11:27 a.m., Texas Department of
Public Safety Trooper, Juan Medrano (“Medrano”), clocked Bessolo exceeding the
posted speed limit by six miles-per-hour. Medrano and Bessolo were traveling
opposite directions on U.S. Highway 60. Medrano testified that as he passed
Bessolo, who was driving a U-Haul truck, Bessolo looked over at him and quickly
looked back to the front, appearing startled. Medrano then turned his car
around and initiated a stop of the U-Haul truck for speeding.
      Medrano approached the U-Haul on the driver’s side, advised Bessolo that
he was being stopped for speeding, and asked to see his driver’s license, which
Bessolo produced. Medrano saw that Bessolo had a passenger with him in the
U-Haul who was asleep. Medrano asked Bessolo where he was headed, and
Bessolo replied “El Paso.” Bessolo also offered Medrano the U-Haul rental
agreement. In response to Medrano’s further questioning, Bessolo explained to
Medrano that he was coming from Chicago and was helping a friend move.
Medrano noted that before answering, Bessolo would repeat Medrano’s
questions. Medrano then asked Bessolo to step out of the vehicle.
      Medrano reviewed the U-Haul agreement, which indicated that Bessolo
had rented the U-Haul in El Paso four days earlier. When asked the name of the
friend he was moving, Bessolo paused, looked down, and hesitantly replied,
“Danny.” Bessolo stated that Danny was already in El Paso. When questioned
about where Danny lived in Chicago, Bessolo could not remember. Medrano also
asked Bessolo about his occupation, to which Bessolo replied that he is a truck
driver. When Medrano expressed his surprise that a truck driver would forego
paying work for such a length of time, Bessolo first said he would be paid for the
move; however, when pressed about how much, Bessolo stated that he thought


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he would be paid. When asked about the passenger who was still in the U-Haul,
Bessolo replied that she would be staying with him in El Paso for a few days.
When Medrano questioned the passenger separately, she stated that she would
be staying with him for a few months.
      Medrano then returned to his patrol car and ran checks on Bessolo’s
driver’s license and criminal history while Bessolo remained outside the U-Haul
and in front of the patrol car. While the driver’s license check came back as clear
and current, Bessolo’s criminal history revealed that he had prior arrests for
possession of a controlled substance and possession of a hypodermic device.
Medrano requested that a canine unit be sent to the scene, but upon being
informed that none was available, he requested an additional trooper as backup.
Medrano then completed the warning citation and printed it out. After printing
the ticket, Medrano approached Bessolo and advised him he would only be
receiving a warning for the speeding violation, and he presented Bessolo with
the citation for his signature. Medrano testified that he also returned Bessolo’s
driver’s license to him when he requested his signature on the citation.
      Though Medrano’s patrol car was equipped with video and audio
equipment, it was not fully functional during this entire encounter. Although
the video was fully functional, the audio had cut out due to a dead battery.
When the citation and driver’s license were given to Bessolo, the audio was not
working, and both Bessolo and Medrano were out of view of the patrol car’s
camera.
      Bessolo testified that Medrano never returned his driver’s license.
Medrano testified repeatedly that he did return the license to Bessolo. Bessolo
further testified that Medrano did not return his U-Haul rental agreement.
Medrano testified that he could not recall having taken possession of the rental




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agreement, but that if he had, he would have returned it to Bessolo along with
his driver’s license and warning citation.1
      Medrano testified that right after Bessolo signed the warning, he asked
Bessolo for his consent to search the vehicle.            Medrano testified that he
requested and obtained consent to search from Bessolo. Bessolo, on the other
hand, testified that Medrano never asked for his consent, rather, Medrano told
him the vehicle was going to be searched. When Bessolo asked why Medrano
wanted to search the vehicle, Medrano responded that Bessolo had a criminal
history for drugs and drug paraphernalia, and he wanted to search for illegal
items that might be inside the vehicle. Medrano also asked Bessolo if he had
any weapons on him, and Bessolo handed him a small pocketknife.
      Bessolo unlocked the lock on the back of the U-Haul, revealing old couches,
an old dryer and refrigerator, some luggage, and a backpack. Upon the arrival
of the backup police officer, Medrano commenced the search of the U-Haul and
discovered $223,890.00 in cash inside the backpack. Bessolo was subsequently
arrested. In a search of the cab of the U-Haul performed by the assisting officer
after Bessolo’s arrest, two crack pipes were discovered in the center console.
      In determining that Bessolo’s motion to suppress should be denied, the
magistrate credited Medrano’s testimony that he returned Bessolo’s driver’s
license to him and that he asked for and received Bessolo’s consent to search the
U-Haul. The magistrate also concluded that because Medrano had asked for
consent contemporaneously with giving Bessolo his license and the warning
ticket, the traffic stop was not unlawfully extended. Finally, the magistrate also
found that Bessolo’s consent to the search was voluntary.
                                           II.

      1
        The video of the traffic stop shot from Medrano’s patrol car shows Bessolo walking
back toward the U-Haul while putting paperwork he received from Medrano into his back
pocket. It is clear from the video that the rental agreement was not among the documents
Bessolo received from Medrano.

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          In considering a ruling on a motion to suppress, the evidence is to be
viewed in the light most favorable to the party prevailing in the district court,
which in this case is the government.2 Findings of fact are reviewed for clear
error, and questions of law are reviewed de novo.3
          We will not reverse the district court’s finding that consent was
          voluntary unless it is clearly erroneous. Where the judge bases a
          finding of consent on the oral testimony at a suppression hearing,
          the clearly erroneous standard is particularly strong since the judge
          had the opportunity to observe the demeanor of the witnesses.4

A magistrate judge’s credibility determinations are owed deference when they
are supported by the record.5
                                                  III.
                                                  A.
          The first issue before this Court is whether the district court erred in
adopting the magistrate judge’s resolution of conflicts in the testimony regarding
Bessolo’s consent and whether he received his driver’s license back from
Medrano when he received his warning ticket. The magistrate judge found
Medrano’s testimony to be more credible than Bessolo’s regarding Bessolo’s
consent and thus concluded that Medrano asked for Bessolo’s consent to search
the vehicle rather than telling Bessolo that he was going to search the vehicle.
The magistrate judge also found Medrano’s testimony to be more credible


          2
        United States v. Dortch, 199 F.3d 193, 197 (5th Cir. 1999), modified on denial of reh’g,
203 F.3d 883 (2000); see also United States v. Castro, 166 F.3d 728, 731 (5th Cir.), cert. denied,
528 U.S. 827 (1999).
          3
        United States v. Gonzales, 328 F.3d 755, 758 (5th Cir. 2003) (citing, inter alia, Ornelas
v. United States, 517 U.S. 690, 699 (1996)); Dortch, 199 F.3d at 197; Castro, 166 F.3d at 731.
          4
              Dortch, 199 F.3d at 201 (citing United States v. Shabazz, 993 F.2d 431, 438 (5th Cir.
1993)).
          5
       United States v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005) (citing United States v.
Giacomel, 153 F.3d 257, 258 (5th Cir. 1998)); Dortch, 199 F.3d at 201.

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regarding whether Medrano had given Bessolo his driver’s license back when he
had Bessolo sign the warning ticket.
      The magistrate judge, who heard the testimony of Medrano and Bessolo
— the only evidence relevant to Bessolo’s consent and whether the driver’s
license was returned — did not clearly err in crediting Medrano’s testimony. It
follows that the district court did not err in adopting the magistrate’s
determinations that Medrano asked for and received Bessolo’s consent to search
the vehicle and that Medrano returned Bessolo’s driver’s license to him.
                                              B.
      The second issue before this Court is whether the district court erred in
adopting the magistrate judge’s finding that the traffic stop was not
impermissibly extended prior to Bessolo’s consent to search the vehicle. The
magistrate       judge    found    that    because     Bessolo’s    consent    was    given
contemporaneously with the completion of the traffic stop, there was no illegal
detention of Bessolo, and the further encounter with Medrano was justified by
Bessolo’s consent.
      “Detention may last no longer than required to effect the purpose of the
stop.”6 Medrano’s running of the computer checks on Bessolo and questioning
about the purpose and itinerary of the trip were within the scope of the traffic
stop.7 Bessolo argues that his detention exceeded the purpose of the traffic stop
because Medrano had no reasonable suspicion to search his vehicle. This
argument is inapposite because the denial of the motion to suppress was not
premised upon a finding that Medrano had reasonable suspicion; rather, the
magistrate judge concluded that Bessolo voluntarily consented to the search
contemporaneously with the conclusion of the traffic stop. Thus, any detention



      6
          United States v. Jenson, 462 F.3d 399, 404 (5th Cir. 2006).
      7
          See Id. at 403–04; United States v. Brigham, 382 F.3d 500, 508 (5th Cir. 2004).

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thereafter was justified by the consent that was given, not by reasonable
suspicion.
       Bessolo also argues that because the video tape shows that he and
Medrano were out of range of the camera, presumably to sign the ticket, for
approximately three minutes, he was impermissibly detained because it could
not possibly take three minutes to sign a warning citation. The magistrate judge
concluded, though, that there was no evidence presented at the hearing
indicating how long such administrative tasks take. Moreover, the magistrate
judge credited Medrano’s testimony that he asked for and received consent from
Bessolo contemporaneously with the signing of the citation and that after asking
for and receiving consent, Medrano and Bessolo talked about the reasons for the
search and whether Bessolo had any weapons on his person.8 Because of the
deference owed the magistrate judge’s credibility determinations and the lack
of other contradictory evidence, we conclude that the district court did not
clearly err in determining that there was no impermissible detention of Bessolo.
Because the consent was obtained before further conversations between
Medrano and Bessolo occurred, the encounter thereafter was consensual and not
in violation of the Fourth Amendment.9
                                               C.
       The third issue before this Court is whether Bessolo’s consent for Medrano
to search the vehicle was voluntary. The district court adopted the magistrate
judge’s determination that it was.
       To determine whether consent was voluntary, this Court considers: “(1)
the voluntariness of the defendant’s custodial status; (2) the presence of coercive

       8
        Because the consent was given simultaneously with the signing of the warning ticket,
the holding in Jenson, 462 F.3d 399, 406 n.7 (5th Cir. 2006), that any detention, however brief,
after the completion of the officer’s computer check constitutes an illegal detention is
inapplicable.
       9
           See United States v. Sanchez-Pena, 336 F.3d 431, 441 (5th Cir. 2003).

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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 consent; (5) the
defendant’s education and intelligence; and (6) the defendant’s belief that no
incriminating evidence will be found.”10 No single factor is dispositive.11 The
government bears the burden of proving that consent was voluntary.12 The
magistrate judge determined that: (1) Bessolo’s custodial status was minimal
and was no more onerous than the temporary detention any motorist suffers
when stopped for an infraction; (2) no coercive police procedures were utilized;
(3) Bessolo fully cooperated with Medrano; (4) Bessolo was not previously aware
nor was he made aware of his right to refuse consent; (5) there is no indication
that Bessolo’s educational or intelligence level is diminished or impaired in any
manner, though there is little information as to his educational level; and (6)
there is no evidence that Bessolo thought Medrano would be looking for anything
other than controlled substances (and so did not think incriminating evidence
would be found). The magistrate judge further found that because these factors
weighed in favor of a finding of voluntariness, and because Medrano had
requested consent at the completion of the traffic stop, Bessolo’s consent to the
search was voluntary.
      In addition to arguing that he did not give consent to the search, Bessolo
also argues that consent was not voluntary because the request to search his
vehicle was coercive. As determined above, Bessolo did consent. Therefore, the
only unresolved issue before this Court is whether the magistrate judge erred in
finding that the consent was voluntary.



      10
        United States v. Jones, 234 F.3d 234, 242 (5th Cir. 2000) (citing United States v.
Chavez-Villarreal, 3 F.3d 124, 127 (5th Cir. 1993)); see also Jenson, 462 F.3d at 406.
      11
           Jones, 234 F.3d at 242.
      12
           Id.

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       Bessolo argues first that coercive police procedures were used because
Medrano never returned his rental agreement.                       The magistrate judge
acknowledged that the government failed to show by a preponderance of the
evidence that the rental agreement was returned but, despite this, concluded
that Bessolo’s consent was still valid. The magistrate judge supported this
conclusion with the following reasons. First, when Bessolo testified that he did
not feel free to leave once he signed the warning ticket, he stated it was because
his driver’s license had not been returned to him. He mentioned nothing about
the rental agreement. Second, the magistrate judge explained that because the
signing of the warning ticket and the requesting of consent were simultaneous,
the consent was not given during an illegal detention. Thus, the magistrate
judge was not required to determine whether the post-traffic stop was
consensual and make a further determination as to whether the otherwise valid
consent was rendered non-consensual.13 Third, the magistrate judge found,
under the totality of the circumstances,14 that the retention of the rental
agreement did not render an otherwise valid consent invalid. These conclusions
by the magistrate judge are correct. However, Bessolo also argues that his
consent was not valid because prong (2) of the Jones test was not met. He bases
this argument on his contention that he had not received his U-Haul rental
agreement when his consent was requested and obtained. Additionally, Bessolo
argues that prong (6) of the Jones test was not met because there was no
evidence to suggest that Bessolo believed incriminating evidence would not be
found.



       13
         See United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998) (differentiating between
government’s burden to satisfy the “normal standard for consensual searches that occur
subsequent to legal stops” and its “heightened” burden following an illegal detention to
establish an independent act of free will).
       14
            See Dortch, 199 F.3d at 201 (citing Shabazz, 993 F.2d at 438).

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       As to prong (2), this Court has found searches to be involuntary where,
among other circumstances, police retained control of a defendant’s driver’s
license and rental papers at the time of consent.15 We have previously noted
that “[i]f the driver . . . receive[s] the license, registration, and any other
material back that he needs to be on is way,” then the encounter after a traffic
stop becomes a consensual one.16 Here, Bessolo received his driver’s license and
a warning citation from Medrano, and Medrano testified that Bessolo was then
free to leave. Even though it is unclear whether the rental agreement was
returned to Bessolo, Medrano testified that he knew of no law that requires the
driver of a rental vehicle to maintain possession of the rental agreement.
Bessolo did not testify that the reason he did not feel free to leave was due to the
officer’s retention of the rental agreement or because he thought it was illegal
to drive the U-Haul without the agreement. Bessolo did not testify that he asked
the officer for the rental agreement. No cases have been cited to us that hold a
search to be coercive when the officer retains only a rental agreement.17 Under
the totality of the circumstances, we are satisfied that the magistrate judge
correctly determined that Medrano’s failure to return the rental agreement did
not invalidate Bessolo’s otherwise valid consent.
       As to prong (6), “the defendant’s belief that no incriminating evidence will
be found,”18 the magistrate found that there was

       15
            See Jones, 234 F.3d at 243; Dortch, 199 F.3d at 202.
       16
         Sanchez-Pena, 336 F.3d at 443 (citing United States v. Turner, 928 F.2d 956, 958
(10th Cir. 1991)).
       17
          In a case factually similar to this one from the Fourth Circuit, when confronted with
a circumstance where there was no evidence that a motorist’s rental agreement had been
returned to him yet his driver’s license had been returned, and where there was reasonable
suspicion for the initial traffic stop, that court, without pausing to consider whether retention
of the rental agreement alone was coercive, held that consent to search that was subsequently
given was voluntary. United States v. Brugal, 209 F.3d 353, 365 (4th Cir. 2000).
       18
            Jones, 234 F.3d 242.

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      no evidence defendant thought the trooper would look inside the
      back pack or would be looking for any thing other than controlled
      substances . . . . [M]oreover, defendant would most likely have not
      been aware that incriminating evidence would have been found in
      that the trooper had advised the consent to search was being made
      as a result of defendant’s prior arrest history for drug possession .
      ...

In concluding that this prong weighed in favor of finding the consent was
voluntary, the magistrate assumed that because Bessolo thought Medrano would
be looking for drugs and not large sums of money, Bessolo thought no
incriminating evidence would be found. Even if this assumption is erroneous
and it is reasonable to believe that a search for controlled substances would
include a search of personal items, such as a backpack, where the illegal money
was found, under the totality of the circumstances, and considering that no
Jones factor is dispositive, this fact is an insufficient basis for us to conclude that
the magistrate judge erred in finding that Bessolo’s consent was voluntary.
                                         IV.
      We conclude that the district court did not err in denying Bessolo’s motion
to suppress.


AFFIRMED.




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