United States v. Pena-Morales

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-60297
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff−Appellee,

versus

DANIEL GUSTAVO PENA-MORALES,
also known as Daniel Pena Morales Gustavo,

Defendant−Appellant.

* * * * * * *

No. 19-60307
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff−Appellee,

versus

JOSEPH NICOLE VERGARA-MORAN,
also known as Joseph Nicole Vergara Moran,

Defendant-Appellant.

United States Court of Appeals
Fifth Circuit
FILED
January 29, 2020

Lyle W. Cayce
Clerk
Case: 19-60297 Document: 00515290571 Page: 1 Date Filed: 01/29/2020

No. 19-60297
c/w No. 19-60307
2

Appeals from the United States District Court
for the Northern District of Mississippi
No. 1:18-CR-70-6
No. 1:18-CR-70-5

Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:
*

With plea agreements, Daniel Pena-Morales and Joseph Vergara-Moran
entered conditional guilty pleas to conspiracy to commit an offense against the
United States which affected interstate commerce. They reserved the right to
appeal the denial of suppression of evidence seized after a stop of their vehicle
and another vehicle driven by their coconspirators at a safety checkpoint.
“When reviewing a denial of a motion to suppress evidence, this Court
reviews 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). In addition to deferring to the district court’s factual findings,
we must view the evidence in the light most favorable to the prevailing party.
United States v. Pack, 612 F.3d 341, 347 (5th Cir.), modified on other grounds
on denial of reh’g, 622 F.3d 383 (5th Cir. 2010) . A district court’s denial of a
suppression motion should be upheld “if there is any reasonable view of the
evidence to support it.” United States v. Massi, 761 F.3d 512, 520 (5th Cir.
2014) (internal quotation marks and citation omitted).

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in
5
TH CIR. R. 47.5.4.
Case: 19-60297 Document: 00515290571 Page: 2 Date Filed: 01/29/2020

No. 19-60297
c/w No. 19-60307
3
Viewing the evidence in the light most favorable to the government, we
conclude that the district court did not err. See Pack, 612 F.3d at 347. The
safety checkpoint was lawful; the Supreme Court has upheld similar check-
points where the intrusion into the privacy interest at stake is minimal. See,
e.g., Illinois v. Lidster, 540 U.S. 419, 427−28 (2004); City of Indianapolis v.
Edmond, 531 U.S. 32, 37 (2000); Mich. Dep’t of State Police v. Sitz, 496 U.S.
444, 451 (1990). Regarding the stop of the Toyota, driven by the codefendants
of Pena-Morales and Vergara-Moran, officers noted that it was traveling at
about 11:50 p.m.; the front passenger seat was vacant, and the backseat was
occupied by two persons; the driver had a temporary Florida driver’s license;
the vehicle was registered in Florida; and the woman in the back seat had a
Venezuelan passport with no entry stamp into the United States. Trooper
Gregory Bell testified that he was concerned that the woman was the victim of
human trafficking or was being held against her will. The combination of these
factors provided reasonable suspicion sufficient to extend the initial stop.
About thirty seconds later, a Volkswagen Jetta driven by Pena-Morales
stopped at the checkpoint; it had a Florida registration, and Pena-Morales had
a Venezuelan passport. When officers discovered the similarities between the
vehicles, they had reasonable suspicion to ask follow-up questions concerning
whether there was a connection between the two vehicles and their itineraries.
The drivers gave contradictory answers concerning whether they were travel-
ing together. At that time, less than five minutes had elapsed from the time
of the stop. Given that the cars were driving in tandem, the drivers gave con-
tradictory answers, and the vehicles were coming from the “source” city of
Miami, Florida, the officers had reasonable suspicion that the vehicles might
be involved in drug trafficking. See United States v. Glenn, 931 F.3d 424, 429
Case: 19-60297 Document: 00515290571 Page: 3 Date Filed: 01/29/2020

No. 19-60297
c/w No. 19-60307
4
(5th Cir. 2019), cert. denied, 2019 WL 6257499 (U.S. Nov. 25, 2019); United
States v. Brigham, 382 F.3d 500, 508, 511 (5th Cir. 2004) (en banc).
Based on this reasonable suspicion, the officers could then request con-
sent to search the vehicles and conduct a sweep of the vehicles by a drug dog
that was already present at the scene. See Glenn, 931 F.3d at 429. The use of
the drug dog to conduct a sweep was “a means of investigation that was likely
to confirm or dispel [the officers’] suspicions quickly.” Brigham, 382 F.3d
at 511. The dog alerted on the Toyota and had a notable change of behavior as
to the Volkswagen, giving the officers probable cause to believe that the vehi-
cles were involved in drug trafficking and probable cause to search the vehicles.
See United States v. Rodriguez, 702 F.3d 206, 210 (5th Cir. 2012).
Further, Pena-Morales has not shown that the district court clearly
erred in finding that his consent to search the Volkswagen was voluntary. See
United States v. Rounds, 749 F.3d 326, 338 (5th Cir. 2014). Although Pena-
Morales was not free to leave because he was removed from the vehicle at the
time he consented to the search, and it was unclear whether he believed no
evidence would be found, other factors weighed in favor of finding that his
consent was voluntary as there was no evidence of coercion: He was cooper-
ative; there was no evidence concerning his education or intelligence; and he
signed a consent form written in Spanish, his native language, which stated
that he had the right to refuse consent to the search. See id. For these reasons,
the district court did not err in denying the motion to suppress. See Robinson,
741 F.3d at 594.
AFFIRMED.
Case: 19-60297 Document: 00515290571 Page: 4 Date Filed: 01/29/2020