UNITED STATES OF AMERICA vs. GEORGE LUNA, a/k/a Jorge Emigdio Luna v. Ludwig Submitted Under Third Circuit LAR 34.1 a July 7, 2003

NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 02-1249
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UNITED STATES OF AMERICA
vs.
GEORGE LUNA,
a/k/a Jorge Emigdio Luna,
Appellant.
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ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 00-cr-00600)
District Judge: The Honorable Edmund V. Ludwig
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Submitted Under Third Circuit LAR 34.1(a)
July 7, 2003
BEFORE: NYGAARD, SMITH, and GREENBERG, Circuit Judges.

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(Filed: August 8, 2003)
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OPINION OF THE COURT
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NYGAARD, Circuit Judge.
George Luna was convicted by a jury of one count of conspiracy to possess
with the intent to distribute cocaine, 21 U.S.C. § 846, and one count of possession with
the intent to distribute cocaine, 21 U.S.C. § 841, after he was arrested while transporting
822 kilograms of cocaine. Luna was sentenced to 210 months incarceration, five years
supervised release, and a $5,000 fine. On appeal, Luna argues that the consent he gave to
Pennsylvania State Troopers to search his tractor-trailer was involuntarily obtained.
Alternatively, he argues that an improper pat-down occurring during the initial moments
of an otherwise lawful traffic stop tainted his later consent. We will affirm.
In early February 1999, special agents of the Drug Enforcement
Administration received information that drugs were being transported in commercial
tractor-trailers through Pennsylvania. Luna’s tractor-trailer was placed under surveillance
based on related information. State Trooper Felix Acosta, a DEA Task Force Member,
alerted fellow State Trooper, Thomas Martinez, of the surveillance on Luna’s tractor-
trailer and asked Officer Martinez to attempt to find an independent probable cause to
stop the vehicle and, if possible, obtain consent to search the vehicle. Although not

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informed why the DEA was interested in the vehicle, Officer Martinez began following at
a safe distance behind Luna’s tractor-trailer on the Pennsylvania Turnpike.
After observing the tractor-trailer drifting and crossing over the center
yellow line four times, Officer Martinez pulled Luna’s tractor-trailer over to the side of
the highway near the Morgantown exit. It is undisputed that the erratic driving
constituted a summary traffic offense and authorized Officer Martinez to initiate the
traffic stop. Once stopped, Officer Martinez approached the cab and asked Luna for his
driver’s license, vehicle registration, and proof of insurance. Luna was then asked to step
out from the cab and was subjected to a quick pat-down for a weapon, despite Officer
Martinez’s later testimony that he did not have a specific articulable reason to suspect
Luna possessed a weapon.
The two men then moved from the side of the highway to the rear of the
vehicle, where Officer Martinez noticed that Luna’s eyes were “glassy, bloodshot” and
that Luna appeared “disoriented.” He inquired as to whether Luna had been drinking or
using drugs, to which Luna responded in the negative. Officer Martinez indicated that he
would issue a traffic citation and proceeded to administer two field sobriety tests on Luna.
Luna passed both tests and Officer Martinez asked if Luna had drugs or alcohol in the
tractor-trailer. Luna responded in the negative. Officer Martinez proceeded to question
Luna as to his load and destination, and asked to see Luna’s logbook and bill of lading.
Officer Martinez became suspicious when the answers given by Luna did not match the

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information on the documentation. A chance to explain the discrepancies was lost when
Luna was again asked his destination and gave a location that contradicted both his earlier
statement and the documentation.
Officer Martinez again asked if there were any drugs or alcohol in Luna’s
tractor-trailer, to which Luna responded, “No,” but that “if [he] wanted to, [he] could
check” for himself. Interpreting this statement to constitute verbal consent to search the
tractor-trailer, Officer Martinez asked if Luna would agree to “make it official” by filling
out a “Waiver of Rights to Consent to Search” form. Officer M artinez reviewed the form
with Luna, explaining that he did not have to sign the form or consent to the search. Luna
signed the consent form.
Once the form was signed, Officer Martinez asked if he could “take a quick
visual” of the load in the trailer. Luna agreed and returned to the cab to retrieve the keys
for the trailer. Luna then unlocked the trailer and assisted Officer Martinez in opening
the double doors. Contrary to Luna’s earlier explanation that he was returning a damaged
load, the load appeared undamaged and further raised Officer Martinez’s suspicions. Due
to the high traffic volume and narrow berm, Officer Martinez suggested that Luna drive
the tractor-trailer to the parking area of the Morgantown toll booth, located 125 yards
further ahead on the highway. Luna agreed, but upon arriving in the parking area, was
unable to position the truck in a manner that would not impede cars exiting the Turnpike.

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After recognizing the logistical problems caused by attempting to search the
tractor-trailer at this location, and in ever-worsening weather, Officer Martinez suggested
that the tractor-trailer be driven to the state trooper barracks in Bowmansville. This
facility included a large PennDOT shed where the search could be conducted while
protected from the elements. Luna agreed to this transfer and the conditions associated
with it, accompanying another trooper to the barracks while Officer Martinez awaited
help in moving the tractor-trailer. As part of standard police practice, Luna was
handcuffed while riding in the uncaged patrol car, but was repeatedly informed that he
was not under arrest and that all civilians being transported in uncaged state police car
were treated this way. Luna did not object and returned to the Bowmansville barracks
where a search of the tractor-trailer revealed 822 kilograms of cocaine hidden within the
multiple pallets. Luna was informed of this discovery and placed under arrest.
Luna makes two arguments on appeal. First, he asserts that his consent was
not freely given to search the tractor-trailer because it was the product of the “coercive
effect” of the initial pat-down and “unlawfully prolonged detention” for a traffic stop.
Second, he argues that the government failed to show that the taint from the initial pat-
down was overcome, and thus his consent was invalid. Both arguments fail.
The voluntariness of consent “is a question of fact to be determined from
the totality of all of the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227
(1973). Thus, the District Court’s determination that Luna’s consent was voluntarily

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1 Officer Martinez had probable cause to stop Luna once he observed the tractor-
trailer crossing the marked traffic lanes, in violation of Pennsylvania Vehicle Code, Title
76, § 3309, § 1. During the course of the traffic stop, Officer Martinez was permitted to
request documentation related to Luna’s ability to operate the vehicle, McFadden v.
United States, 814 F.2d 144, 147 (3d Cir. 1987), and question Luna as to his destination,
United States v. Givan, 320 F.3d 452, 459 (3d Cir. 2003). He was also permitted to
expand the scope of his inquiry beyond the reason for the stop and detain the vehicle and
Luna for further investigation based upon a reasonable, articulable suspicion of criminal
activity. Givan, 320 F.3d at 458. Here, Officer Martinez suspected Luna of being under
the influence of alcohol or drugs. Thus, the questions and field tests related to that topic
were justified. The further incongruities between travel documentation and Luna’s
response to travel-related questions justified an expanded investigation.
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given is one of fact and is subject to review on the basis of clear error. United States v.
Givan, 320 F.3d 452, 459 (3d Cir. 2003). We have described “the critical factors
comprising a totality of the circumstances inquiry as including the setting in which the
consent was obtained, the parties' verbal and non-verbal actions, and the age, intelligence,
and educational background of the consenting individual.” Id. In looking at the totality of
the circumstances, although Officer Martinez did improperly pat-down Luna during the
initial moments of the stop, the District Court did not err in finding that Luna freely gave
his consent to the search. Officer Martinez was justified in expanding the scope of his
inquiry based on his reasonable suspicion of criminal activity.1 Further, it was Luna who
invited Officer Martinez to search his vehicle, responding to a question regarding the
presence of drugs or alcohol in the tractor-trailer by saying “No,” but “if [Martinez]
wanted to, [he] could check” the contents of the trailer. After orally consenting, Luna
then agreed to sign a waiver form consenting to the search in writing to “make it official.”

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Never once did Luna indicate that he was objecting to the search, despite
Officer Martinez having explained on numerous occasions that Luna was not under arrest
and did not have to consent. Moreover, through his own actions, Luna indicated his
consent to the search. When asked by Officer M artinez if he could “take a quick visual”
of the cargo, Luna did not object, but proceeded to retrieve the necessary keys and aid
Officer Martinez in opening the locks and doors on the tractor-trailer. Finally, Luna has
made no argument that he did not possess the requisite age, intelligence, or educational
background to consent. The District Court correctly concluded that Luna gave his
consent for the search voluntarily.
To determine if an impermissible seizure under the Fourth Amendment
taints later consent, we look to: “[t]he temporal proximity of the [impermissible conduct]
and the [consent], the presence of intervening circumstances, and, particularly, the
purpose and flagrancy of the official misconduct.” Brown v. Illinois, 422 U.S. 590,
603–04 (1975) (citations omitted). Unlike the cases cited by Luna, Officer Martinez had
probable cause to initiate the traffic stop, the pat-down was very brief, and he was
justified in extending the length of his inquiry based on a reasonable suspicion of further
criminal activity. Thus, Luna’s argument under the temporal proximity prong that “the
improperly prolonged detention continued right up to the giving of consent” is erroneous.
See App. Br. at 36.

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Similarly, Luna argues that there were no intervening circumstances
because his statement offering to allow Officer Martinez to search the trailer “and the
signing of the written consent form were both part of the ‘res gestae’ of the illegally
prolonged detention and were causally related to it.” See App. Br. at 33. This argument
presupposes the illegality of the detention and is incorrect. Finally, the purpose and
flagrancy prong favors Officer Martinez. In Brown, the Supreme Court noted that “[t]he
impropriety of the arrest was obvious...The arrest, both in design and in execution, was
investigatory. The detectives embarked upon this expedition for evidence in the hope that
something might turn up.” Brown, 422 U.S. at 605. Here, Officer Martinez had probable
cause to initiate the traffic stop, the brief pat-down was unrelated to obtaining Luna’s
consent, and any detention was justified based on the circumstances arising during the
stop.
Under the totality of the circumstances, the District Court was not clearly
erroneous in concluding that Luna’s consent was voluntarily obtained, or that the pat-
down and extended stop did not taint Luna’s consent.
For the foregoing reasons we will affirm the judgment of the District Court.
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TO THE CLERK:
Please file the foregoing opinion.
/s/ Richard L. Nygaard
Circuit Judge

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