     Case: 11-11228   Document: 00512162491    Page: 1   Date Filed: 03/04/2013




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

                                                                 FILED
                                                                March 4, 2013

                                No. 11-11228                    Lyle W. Cayce
                                                                     Clerk

UNITED STATES OF AMERICA,
                                         Plaintiff–Appellee
v.

CHRISTIAN ALEXANDER WALLSTRUM,
                             Defendant–Appellant

consolidated with 11-11230

UNITED STATES OF AMERICA,
                                         Plaintiff–Appellee
v.

DANE TAYLOR CLARK,
                                         Defendant–Appellant

consolidated with 11-11231

UNITED STATES OF AMERICA,
                                         Plaintiff–Appellee
v.

REED BECKER BRYANT,
                                         Defendant–Appellant



                Appeals from the United States District Court
                     for the Northern District of Texas
                                 (11-CR-26)
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                                       No. 11-11228

Before REAVLEY, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
       Defendant–Appellants Christian Alexander Wallstrum, Dane Taylor
Clark, and Reed Becker Bryant appeal the denial of their motions to suppress
evidence seized during two traffic stops. For the reasons given below, we
AFFIRM the judgment of the district court.
                                      Background
A.     Wallstrum Stop
       Shortly after 6:00 p.m. on February 5, 2011, Texas Department of Public
Safety (“DPS”) Trooper Ben Dollar was patrolling Interstate 40 in Carson
County, Texas when he observed three vehicles traveling closely together: an
SUV, a white Toyota Camry, and a silver Ford Fusion. Believing that the Camry
was following the SUV too closely, Trooper Dollar initiated a traffic stop.
Defendant–Appellant Wallstrum was renting the Camry at the time. When
Wallstrum pulled over, Trooper Dollar approached from the passenger side,
explained the reason for the stop, and asked for his license and registration.
During this exchange, Trooper Dollar noticed several food and drink containers
in the car as well as a receipt for a Gallup, New Mexico hotel. Wallstrum
provided the requested materials along with the car rental agreement. Trooper
Dollar indicated that he would give Wallstrum a warning and asked Wallstrum
to accompany him back to the patrol car.
       In the patrol car, Trooper Dollar questioned Wallstrum about his travel
while he waited for the results of the computer checks he was running on
Wallstrum’s information. Wallstrum stated that he started his trip in Dallas,
flew back to Oklahoma City, and was now headed to North Carolina. This


       *
         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. 11-11228

intrigued Trooper Dollar because both Dallas and Oklahoma City were east of
where the traffic stop occurred, indicating that Wallstrum had to have also
traveled west at some point given their current location. As Trooper Dollar
continued his questioning, Wallstrum became flustered such that his arms and
hands were shaking, his eye was twitching, and his carotid artery was visibly
pulsing. Wallstrum explained that he had also gone to Amarillo to visit a
girlfriend and was currently on his way from Amarillo to North Carolina.
Suspecting that Wallstrum was being dishonest, Trooper Dollar asked if
Amarillo was as far west as Wallstrum had traveled. When Wallstrum indicated
that it was, Trooper Dollar became concerned because he remembered seeing the
receipt for the New Mexico hotel in the car. Trooper Dollar also noticed that the
car rental agreement was expired because the car should have been returned to
Oklahoma City three days earlier.
      At that point, the computer checks cleared, and Trooper Dollar gave
Wallstrum a warning for following too closely and returned all of Wallstrum’s
documents.    Trooper Dollar then asked Wallstrum if he was carrying or
transporting any weapons or controlled substances; Wallstrum said that he was
not. Trooper Dollar requested consent to search the car and Wallstrum agreed.
Trooper Dollar searched the car for approximately thirty minutes and noticed
several areas where the vehicle had been altered. The fuel sending unit in the
car appeared to have been taken apart, and it appeared as though the front
bumper and rocker panels had been removed recently. When Trooper Dollar
indicated that he wished to continue the search at the DPS office, Wallstrum
again agreed. At the DPS office, Trooper Dollar removed the rocker panels and
discovered twenty-four bundles of cocaine. Wallstrum was placed under arrest
and later told the arresting officers that he had met Defendant–Appellant
Bryant and Defendant–Appellant Clark at a Gallup, New Mexico hotel and that
they had instructed him to drive to North Carolina.

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                                 No. 11-11228

B.    Bryant and Clark Stop
      Around the time that Trooper Dollar first noticed the three vehicles,
Trooper Brandon Riefers was stopped in the same area of Interstate 40, assisting
another trooper. From his patrol car, Trooper Riefers observed the same three
cars and determined that the group was traveling too closely together. Trooper
Riefers pursued the silver Ford Fusion, which was being driven by Bryant with
Clark as his passenger, and initiated a traffic stop. Trooper Riefers approached
the vehicle from the passenger side and requested Bryant’s license and
insurance, which Bryant supplied. Clark informed Trooper Riefers that the car
was a rental and handed him the rental agreement as well. Trooper Riefers then
told Bryant that he would be giving him a warning and asked Bryant to exit the
vehicle.
      When Bryant exited the vehicle, Trooper Riefers requested Clark’s driver’s
license and began questioning him about their travel plans. Clark told Trooper
Riefers that they were traveling to Fort Worth for a super bowl party and would
be staying in the Dallas/Fort Worth area until the rental agreement expired.
During this conversation, Trooper Riefers noticed energy drinks, bottles of
water, and snack items inside the car, which he believed indicated “hard” travel.
Trooper Riefers then returned to his patrol car to run checks on the information
provided to him and had Bryant join him in the front seat.
      While Trooper Riefers verified the information, he began questioning
Bryant. Bryant told him that they had come from Albuquerque and were
traveling to Charlotte, North Carolina to stay with his uncle before returning to
Arizona. Bryant never mentioned going to Dallas or Fort Worth. At this point,
Trooper Riefers became suspicious because Bryant and Clark had such differing
stories. He also found the rental agreement to be suspicious. The agreement
was issued to Victoria Teague, Clark’s girlfriend, and indicated in typed font
that no other drivers were permitted, but “Dane Clark additional driver OK” was

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                                       No. 11-11228

handwritten in a different section. Additionally, Trooper Riefers noticed that the
rental agreement indicated that the car was to stay within Arizona, California,
New Mexico, and Texas, which would mean that a trip to North Carolina would
not be covered.
      After about five minutes of questioning during the computer check,
Trooper Riefers returned Bryant’s driver’s license and the papers for the car and
then issued the warning for following too closely. As Bryant started to open the
patrol car door to leave, Trooper Riefers asked him if he was carrying any
weapons in the vehicle or anything illegal. Bryant said that he was not but
began exhibiting signs of extreme nervousness, including his arms and hands
shaking, his cheeks twitching underneath his eyes, and his neck visibly pulsing.
Trooper Riefers then asked if he could search the car, and Bryant gave him
permission. Trooper Riefers asked Clark to exit the vehicle and stand in the
ditch along with Bryant. He instructed the two not to talk to each other and
began searching the car.1
      During the search, Trooper Riefers noticed tool marks on a clip located
where the windshield wiper blades sit (the front cowl), and believed this to
indicate that someone had tampered with the area because the piece appeared
to have been lifted up. Because he did not have the tools or ability to access that
area, he decided that he would need to take the car to the DPS office for further
inspection. Regarding the water bottles, snacks, and energy drinks that he had
previously noticed, Trooper Riefers found it suspicious that he did not find any
receipts for the goods. This furthered his suspicion that the two men were
traveling with someone else. Trooper Riefers also discovered a black “Jeep” bag
in the trunk, which belonged to Bryant. Inside the bag were loose grommets and
screws.


      1
          Trooper Riefers began the search approximately thirteen minutes after the stop.

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                                      No. 11-11228

       Trooper Riefers had been searching the vehicle for approximately thirty
minutes when Officer Dawson came to the scene to assist with the search.
Officer Dawson had been assisting Trooper Dollar and informed Trooper Riefers
that the driver of the other vehicle indicated that he was traveling to North
Carolina. This led Trooper Riefers to believe that the cars were traveling
together. He then put the luggage back in the car and indicated to Bryant that
he wanted Bryant to follow him to the DPS office to continue the search, and
Bryant agreed to go. Trooper Riefers then had Clark join him in the front seat
of the patrol car and the group went to the DPS office.2
       When they arrived at the DPS office, Trooper Dollar was already there
searching Wallstrum’s Camry up on a lift. Shortly thereafter, the cocaine was
found in the Camry. No drugs were found in Bryant’s car, but the officers
inspected the compartment where the drugs were hidden in the Camry and
determined that the screws and grommets observed in Bryant’s bag came from
that area. The grommets and screws were similar in shape and size and were
the exact same number as those missing from the Camry. At that point, Bryant
and Clark were arrested.
       In June 2011, a grand jury charged Bryant, Clark, and Wallstrum with
one count of conspiracy to possess cocaine with intent to distribute and one count
of possession with intent to distribute.           Each defendant filed a motion to
suppress, but the district court adopted the magistrate judge’s report and
recommendation and denied the motions. The defendants then pleaded guilty
to the conspiracy count but reserved their right to appeal the suppression
rulings, which they do now.




       2
         Trooper Riefers testified that he separated Bryant and Clark for safety reasons and
that it was normal policy to do so because it prevented the two from discussing what they had
told the officers.

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                                   No. 11-11228

                                   Discussion
      To assess a district court’s denial of a motion to suppress, we review
findings of fact for clear error and conclusions of law de novo. United States v.
Jenson, 462 F.3d 399, 403 (5th Cir. 2006). We also construe the evidence in the
light most favorable to the “party that prevailed in the district court.” United
States v. Jones, 234 F.3d 234, 239 (5th Cir. 2000). If the trial judge’s finding is
based on the “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.” United States v. Gillyard, 261 F.3d 506, 509
(5th Cir. 2001) (citing Anderson v. City of Bessemer City, 470 U.S. 564, 575
(1985)). We may affirm the district court’s decision on any basis established by
the record. United States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010), modified on
other grounds, 622 F.3d 383 (5th Cir. 2010).
A.    Initial Stops
      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 whether such a seizure is reasonable we consider
(1) “whether the officer’s action was justified at its inception,” and (2) “whether
the officer’s subsequent actions were reasonably related in scope to the
circumstances that justified the stop.” Id. A traffic stop is justified at its
inception if an officer has “an objectively reasonable suspicion that some sort of
illegal activity, such as a traffic violation, occurred, or is about to occur, before
stopping the vehicle.” United States v. Banuelos–Romero, 597 F.3d 763, 766 (5th
Cir. 2010) (quoting United States v. Lopez–Moreno, 420 F.3d 420, 430 (5th Cir.
2005)). Thus, if the officer “can point to specific and articulable facts which,
taken together with rational inferences from those facts, reasonably warrant the
search and seizure, the intrusion is lawful.” United States v. Santiago, 310 F.3d

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                                        No. 11-11228

336, 340 (5th Cir. 2002) (internal quotation marks and alterations omitted).
This analysis “is necessarily fact-specific, and factors which by themselves may
appear innocent, may in the aggregate rise to the level of reasonable suspicion.”
Id.
       Here, the defendants argue that the initial stops by Trooper Dollar and
Trooper Riefers were both unlawful because neither Wallstrum nor Bryant
committed the offense of following too closely as defined by state law.3 As
support, the defendants point to the testimony of their two expert witnesses:
Cam Cope and Billy Teague.
       Cope, an expert in forensic accident reconstruction, and Teague, a retired
law enforcement officer and former DPS Academy instructor, both relied on a
video taken from Trooper Riefers’s patrol car that revealed the cars traveling
down the highway shortly before Bryant was stopped. Based on his observations
of the video, Cope testified that there was a distance of sixty to eighty feet
between Wallstrum and Bryant’s car and that there was a slightly greater
distance between Wallstrum and the SUV. Cope suggested that the vehicles
were slowing down at the time because they were passing the traffic stop that
Trooper Riefers was assisting on and opined that Bryant and Wallstrum were
operating at a safe distance. Teague testified that after he viewed the video and
applied the methods he had previously taught for determining distance, he
determined that the cars were operating at a safe distance. Teague explained
that troopers are taught to use reference points and also to verbally count “one

       3
           Texas Transportation Code section 545.062 provides as follows:

       An operator shall, if following another vehicle, maintain an assured clear
       distance between the two vehicles so that, considering the speed of the vehicles,
       traffic, and the conditions of the highway, the operator can safely stop without
       colliding with the preceding vehicle or veering into another vehicle, object, or
       person on or near the highway.

Tex. Transp. Code § 545.062(a).

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                                 No. 11-11228

one thousand,” “two one thousand,” to determine distance behind another
vehicle.
      Trooper Dollar and Trooper Riefers offered their own description of the
events. Trooper Dollar testified that it was a clear day when the stop occurred
and that the three vehicles caught his eye because “the two passenger cars
behind were []way too close for safety.” He stated that troopers are “trained day
in and day out to look for traffic violations” and that following too closely was
one such violation. To determine whether a car is following too closely, Trooper
Dollar testified that he looks for a safe distance and also takes “into
consideration the speed of that vehicle.” Because the three cars were traveling
at highway speed, he determined that the space was too close for safety because
they would not have been able to stop in time if there was a threat or if the car
in front of them stopped. Trooper Dollar would not put a number on the distance
between the cars but answered one inquiry by stating that it was closer to one
hundred feet apart than ten feet apart.
      To support his stop, Trooper Riefers testified that the speed limit on
Interstate 40 at that location was seventy miles per hour. When he saw the
three cars pass, he determined that they were too close because “traveling at the
speed limit,” they would not have been able to avoid a collision with the front
vehicle. He further testified that there was “not enough room that another
vehicle could safely occupy the space between them.” On cross-examination,
Trooper Riefers testified that the video of the stop showed that there was a
distance of sixty to ninety feet between the cars, which was about two or three
highway dash marks. He explained that a safe distance for traveling at seventy
miles per hour would be approximately three hundred feet because a normal
reaction time for a vehicle to stop is about “a second and a half” and, “[a]t 70
miles an hour, a second and a half is 150 feet.”



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                                       No. 11-11228

       In analyzing the different stories offered, the magistrate judge credited the
troopers’ testimony over that of the defendants’ witnesses. The magistrate judge
noted that the video was not necessarily probative of the events because the
troopers’ observations were not confined to what the camera recorded.
Nevertheless, the magistrate judge determined that even if the video were relied
upon, the defendant’s expert witness testimony was contradicted by the time
counter accompanying the patrol car recording. Teague had testified that
troopers are taught to count two seconds to determine a safe distance between
cars, but the magistrate judge determined that the counter unquestionably
showed that the cars were not separated by two seconds. When each car passed
in front of a fixed reference point, only one second passed on the counter before
the next car came. The magistrate judge determined that this video evidence
confirmed Trooper Riefers testimony and also lent credibility to Trooper Dollar’s
“scant testimony.”4
       Both the Government and the defendants presented a permissible view of
the evidence. When that occurs, “the factfinder’s choice between them cannot
be clearly erroneous.” Gillyard, 261 F.3d at 509 (quoting Anderson, 470 U.S. at
574). As a result, we affirm the district court’s determination that the initial
stop was lawful.


       4
         Defendants argue that Trooper Dollar’s testimony was not sufficient to establish the
“articulable facts” necessary to support reasonable suspicion and thus the magistrate judge
erred in accepting it. While Trooper Dollar’s testimony was sparse, he did articulate facts to
support his reasonable suspicion. Specifically, he acknowledged the conditions during the day
of the stop, stated that the cars were traveling at “highway speed,” and explained that he
takes the speed of the vehicles into account to determine if they would be able to stop in time
to avoid a collision. He also testified that the cars were closer to one hundred feet apart than
ten feet apart, which is consistent with Trooper Riefers’s testimony and the video evidence.
These facts are consistent with other testimony that has been held sufficient to justify
reasonable suspicion. Cf. United States v. Flores–Manjarez, 421 F. App’x 407, 409 (5th Cir.
2011) (per curiam) (unpublished) (holding that the officer provided specific, articulable facts
to support reasonable suspicion when he testified that the conditions were wet and that the
vehicles were less than two car lengths apart).

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                                  No. 11-11228

B.     Extent of Detention
       Appellants next challenge the extent of their detention. “Once the purpose
of a valid traffic stop has been completed and 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). During the traffic stop, law enforcement
officers are allowed to “request to examine a driver’s license and vehicle
registration or rental papers [and] to run a computer check on both.” Brigham,
382 F.3d at 508. Officers may also “ask about the purpose and itinerary of a
driver’s trip during the traffic stop.” Id. If during these checks additional
reasonable suspicion emerges, the detention “may last as long as is reasonably
necessary” to resolve the suspicion. United States v. Fishel, 467 F.3d 855, 856
(5th Cir. 2006). The reasonableness of the length of detention is judged by
“whether the police diligently pursued a means of investigation that was likely
to confirm or dispel their suspicions quickly.” Brigham, 382 F.3d at 511. “There
is, however, no constitutional stopwatch on traffic stops.” Id.
1.     Trooper Dollar
       Trooper Dollar articulated several factors informing his suspicion that
Wallstrum was engaging in criminal activity. For example, Wallstrum exhibited
extreme nervousness in explaining his travel itinerary, and the explanation
itself was discredited. Wallstrum had indicated that Amarillo was as far west
as he had traveled, but this was contradicted by the New Mexico hotel receipt
Trooper Dollar saw in the front seat. Additionally, the rental agreement had
been expired for three days. Trooper Dollar also observed several food and drink
containers, indicating “hard” travel that was inconsistent with the trip
Wallstrum described. Finally, the close proximity of the cars indicated that
Wallstrum may have been traveling in tandem with one of the other vehicles,
which is common in drug trafficking.          Trooper Dollar’s search revealed

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                                   No. 11-11228

tampering with several areas of the car, which was consistent with his drug
trafficking suspicion.
       These factors were sufficient to provide Trooper Dollar with reasonable
suspicion to justify the request to search and continued detention. The evidence
gathered from the Camry was thus properly obtained. See Brigham, 382 F.3d
at 512.
2.     Trooper Riefers
       Trooper Riefers also articulated several factors informing his suspicion
that Bryant and Clark were engaging in criminal activity. For example, Bryant
began exhibiting extreme signs of nervousness when asked if he was
transporting anything illegal. Additionally, Bryant and Clark gave Trooper
Riefers conflicting accounts of their travel plans. Clark told Trooper Riefers that
they were headed to the Dallas/Fort Worth area while Bryant said they were
traveling to see his uncle in North Carolina. Trooper Riefers also found the car
rental agreement to be suspicious because the car was rented in the name of
Clark’s girlfriend, who was not present, and Clark’s name was handwritten into
the agreement despite a separate section indicating that there were no
additional authorized drivers. Trooper Riefers also found it suspicious that
Bryant and Clark were traveling along a known drug-trafficking corridor in a
rental car, whose interior indicated “hard” travel based on the energy drinks,
water bottles, and snack containers within it. The close proximity of the cars
also heightened his suspicion that the two were traveling in tandem with at least
one other vehicle, which is a common drug-trafficking tactic.
       Based on the totality of these facts, Trooper Riefers was justified in
continuing the detention. See, e.g., Pack, 612 F.3d at 361–62 (finding extreme
nervousness, irreconcilable stories, and the location of a stop on a highway
frequently used by drug smugglers sufficient to establish reasonable suspicion
justifying a prolonged detention); Brigham, 382 F.3d at 509 (finding a prolonged

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                                  No. 11-11228

detention reasonable based the defendant’s presentation of a fake I.D., his
inconsistent explanation for his trip, his extreme nervousness, and the absence
of the authorized driver listed on the car rental agreement). Bryant and Clark
argue that the length of the detention was unreasonable because Trooper
Riefers’s suspicion should have been dispelled after the half-hour consensual
search yielded no results. Trooper Riefers testified, however, that his search
provided information consistent with his earlier suspicion, namely, the lack of
receipts for the energy drinks and snacks, the tampering of the area under the
windshield, and the loose grommets and screws. It was also during this time
that Trooper Riefers learned that the driver that Trooper Dollar pulled over was
telling a similar travel story to Bryant. Based on these additional discoveries
and cognizant that there is “no constitutional stopwatch on traffic stops,”
Brigham, 382 F.3d at 511, we cannot say that Trooper Riefers did not diligently
pursue a means of investigation that was likely to confirm or dispel his
suspicion. As a result, the district court correctly determined that reasonable
suspicion justified the prolonged detention.
C.     Consent
       Bryant and Clark’s final argument is that Bryant did not consent to
having the car searched at the DPS office. They do not dispute the validity of
Bryant’s initial consent to search the car but argue that the search at the DPS
office constituted a second warrantless search that also required valid consent.
       “To be valid, consent to search must be free and voluntary.” United States
v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993). Voluntariness is determined from
the totality of the circumstances.       Id.   We make this determination by
considering six factors: “(1) the voluntariness of the defendant’s custodial status;
(2) the presence of coercive 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 to consent; (5) the defendant’s education and intelligence; and (6)

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                                   No. 11-11228

the defendant’s belief that no incriminating evidence will be found.” Jenson, 462
F.3d at 406. Each of these six factors is relevant, but no single one is dispositive.
Jones, 234 F.3d at 242. The government has the burden of proving, by a
preponderance of the evidence, that the consent was voluntary. United States
v. Shabazz, 993 F.2d 431, 438 (5th Cir. 1993).
      In analyzing Bryant’s consent, the magistrate judge noted that at the time
Bryant consented to both the initial search of the car and the search at the DPS
office, he had all of the documents necessary for legal travel in his possession.
Cf. Santiago, 310 F.3d at 343 (noting as one ground to support invalid consent
that the trooper had not returned the defendant’s driver’s license and
registration). Additionally, the magistrate judge found no evidence that Trooper
Riefers was acting in a coercive fashion. Bryant was cooperative with Trooper
Riefers throughout the process even though he had begun to express
dissatisfaction with the length of the search.        Though Bryant was never
explicitly told that he was free to go, he gave an indication that he was aware he
could refuse consent when he previously stated that he would have done so if he
had known it was going to take so long. At no point during the search, however,
did Bryant withdraw his undisputed initial consent. Instead, when he was told
by Officer Dawson that there was reasonable suspicion to detain him further,
Bryant responded, “I’ll let you do your search and then I can be on my way.” No
narcotics were found in Bryant’s car so it is likely that he believed no
incriminating evidence would be found at the time he gave his consent.
      Taken as a whole, the balance of the factors tends to support the district
court’s finding that Bryant voluntarily consented to taking the car to the DPS
office. Because there is nothing in the record to suggest any clear error in the
district court’s determination that Bryant’s consent was voluntarily given, we
affirm.



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                             No. 11-11228

                             Conclusion
    For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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