     Case: 16-30975      Document: 00513925162         Page: 1    Date Filed: 03/24/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 16-30975                                FILED
                                  Summary Calendar                        March 24, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

EDUARDO GUERRERO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:15-CR-57-1


Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
       Eduardo Guerrero pleaded guilty to conspiracy to distribute and to
possess with the intent to distribute 50 grams or more of methamphetamine
or 500 grams or more of a mixture containing methamphetamine, and he was
sentenced to 120 months of imprisonment, to be followed by five years of
supervised release. Guerrero’s guilty plea was conditional, as he reserved the




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-30975     Document: 00513925162     Page: 2   Date Filed: 03/24/2017


                                  No. 16-30975

right to appeal the denial of his motion to suppress evidence seized from a truck
registered to him that was driven by Raul Tuda.
      Guerrero argues that the district court erred in denying his motion to
suppress the evidence seized from the truck. He contends that there was no
reasonable suspicion to justify a prolonged detention. Additionally, Guerrero
challenges the voluntary nature of Tuda’s consent to search the vehicle and the
use of a canine. When reviewing a denial of a motion to suppress evidence, we
review “factual findings for clear error and the ultimate constitutionality of
law enforcement action de novo.” United States v. Robinson, 741 F.3d 588, 594
(5th Cir. 2014).
      Tuda and the passenger were traveling as unlicensed drivers in a vehicle
that was not registered to them. They exhibited nervous behavior and were
unable to tell Trooper Justin Stephenson their intended destination. After
conferring with the passenger, Tuda stated that Jackson was his destination
but then changed his answer to Atlanta. The vehicle had visible modifications,
including a rerouting of the exhaust pipe and a new fuel filter on one of the fuel
tanks. These factors, when taken together, demonstrate that the continued
detention after the issuance of the traffic citation was supported by reasonable
suspicion. See United States v. Pack, 612 F.3d 341, 361 (5th Cir. 2010); United
States v. Fishel, 467 F.3d 855, 856 (5th Cir. 2006); United States v. Brigham,
382 F.3d 500, 506 (5th Cir. 2004) (en banc).
      Challenging Tuda’s consent to the search of the vehicle, Guerrero
contends that the language barrier prevented Tuda from understanding that
he was consenting, that there was no evidence of verbal consent, that the
written consent form was not presented as evidence, that there was no
evidence that the consent form was read and explained to Tuda, and that there




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                                       No. 16-30975

was no evidence that Tuda was informed of his Miranda 1 rights.                    The
voluntariness of consent is a factual finding reviewed for clear error. United
States v. Solis, 299 F.3d 420, 436 (5th Cir. 2002).
      Trooper Stephenson was polite throughout the encounter and did not
exhibit coercive behavior. Tuda was cooperative and complied with Trooper
Stephenson’s requests. Trooper Stephenson provided Tuda with a Spanish-
language written consent to search form, and the document contained
information on the right to refuse consent. Moreover, the record does not
indicate that Tuda’s intelligence level was diminished or impaired in any
manner. Finally, given how well the drugs were hidden in the fuel tank, Tuda
could have believed that no incriminating evidence would be found. Moreover,
“[t]here is no ‘Miranda requirement’ attending a simple request for permission
to search.” United States v. Arias-Robles, 477 F.3d 245, 250 (5th Cir. 2007).
Under the totality of the circumstances, the district court’s finding of voluntary
consent is not clearly erroneous. See Solis, 299 F.3d at 436.
      Guerrero also argues that Tuda’s consent was not an independent act of
free will. As Tuda’s consent was not given during an illegal detention, we need
not consider this prong of the consent inquiry.                 See United States v.
Khanalizadeh, 493 F.3d 479, 484 (5th Cir. 2007).
      Citing to Rodriguez v. United States, 135 S. Ct. 1609 (2015), Guerrero
argues that the use of a canine to perform an open-air sniff prolonged the
detention without providing reasonable suspicion. Rodriguez is inapplicable
to the facts of the instant matter because, as discussed above, Trooper
Stephenson had reasonable suspicion of criminal activity to extend the
detention and Tuda had consented to a search of the vehicle. Cf. Rodriguez,
135 S. Ct. at 1614.


      1   Miranda v. Arizona, 384 U.S. 436 (1966).


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                                No. 16-30975

     Guerrero fails to show that the district court erred in denying his motion
to suppress. The judgment of the district court is AFFIRMED.




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