US v. Alberto Gallardo-Gonzalez

Filing 920090522

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4284

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALBERTO GALLARDO-GONZALEZ, a/k/a Kidnay L. Torres, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:06-cr-00050-RLV-CH-1)

Submitted:

March 31, 2009

Decided:

May 22, 2009

Before MOTZ and TRAXLER, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Richard A. Culler, CULLER & CULLER, P.A., Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Mark A. Jones, Assistant United States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Alberto Gallardo-Gonzalez was charged with possession with intent to distribute at least 500 grams of cocaine and reentry by an illegal alien. After the district court denied

his motion to suppress evidence seized during a traffic stop, Gallardo-Gonzalez right to pled the guilty to both of charges, the reserving his

challenge

propriety

court's

suppression

ruling on appeal.

We affirm.

This court reviews the factual findings underlying the denial of a motion to suppress for clear error, and the legal conclusions de novo. (4th Cir. 2007). United States v. Wilson, 484 F.3d 267, 280

When evaluating the denial of a suppression

motion, we view the evidence in the light most favorable to the Government, the prevailing party. F.3d 690, 704 (4th Cir. 2006). Sergeant Gallardo-Gonzalez's infractions. Gary Simpson testified that he two stopped traffic United State v. Uzenski, 434

minivan

after

witnessing

First, information on the vehicle's thirty-day tag

was obstructed by a black tag frame, preventing Simpson from reading both the tag's expiration date and its vehicle

identification number.

Second, Simpson observed the van jerk

suddenly to the right, across the fog line, and then move back onto the highway. Gallardo-Gonzalez maintains that the traffic

stop was based on Simpson's mistaken understanding of applicable 2

North Carolina statutes and that these mistakes of law rendered the stop unreasonable. We disagree.

North Carolina law prohibits the covering or partial covering of any portion of a registration plate, or the figures or letters thereon. N.C. Gen. the Stat. § 20-63(g) applies (2007). only to

Gallardo-Gonzalez

maintains

that

statute

permanent tags, and not to temporary plates such as those on his vehicle. This argument is defeated by N.C. Gen. Stat. § 20-

79.1(k) (2007), which states, "The provisions of [§] 20-63 . . . shall apply in like manner to temporary registration plates or markers as is applicable to nontemporary plates." State law also requires drivers to maintain the lane of travel. N.C. Gen. Stat. § 20-146(d) (2007). contention, the statute does Contrary to not require

Gallardo-Gonzalez's

that the driver be reckless in order for there to be probable cause to stop the vehicle. Rather, because Gallardo-Gonzalez's

traffic violation was "readily observable," there was probable cause for the stop. See State v. Baublitz, 616 S.E.2d 615, 619

(N.C. Ct. App. 2005) ("observation of defendant's vehicle twice crossing the center line furnished . . . probable cause to stop defendant's vehicle for a violation of . . . § 20-146(a)");

State v. Barnhill, 601 S.E.2d 215, 217 (N.C. Ct. App. 2004). A routine traffic stop permits an officer to detain the motorist to request a driver's 3 license and vehicle

registration, to run a computer check, and to issue a citation. United States v. Branch, 537 F.3d 328, 335 (4th Cir. 2008), cert. denied, 129 S. Ct. 943 (2009). To further detain the

driver for questioning requires either the driver's consent or reasonable suspicion on the officer's part that criminal

activity is afoot.

Id. at 336.

In assessing the voluntariness

of consent, courts consider the totality of the circumstances to determine "whether the police conduct would have communicated to a reasonable person that he was not free to decline the officers' request or otherwise terminate the encounter."

United States v. Meikle, 407 F.3d 670, 672 (4th Cir. 2005); see Florida v. Bostick, 501 U.S. 429, 439 (1991). A district

court's finding that consent was voluntary will be upheld unless it is clearly erroneous. 877 (4th Cir. 1992). Here, following the traffic stop, Gallardo-Gonzalez United States v. Rusher, 966 F.2d 868,

provided Simpson with a license in the name of Kidnay Torres. He sat next to Simpson in the police car while Simpson ran a routine license check. Initial computer checks turned up

nothing amiss.

Simpson drafted a warning ticket and informed Gallardo-Gonzalez

Gallardo-Gonzalez that he was free to go.

could have left at any time because the passenger door was not locked; however, he agreed to talk to Simpson for a few minutes.

4

Simpson asked whether he could search the minivan, and Gallardo-Gonzalez refused. Simpson then asked whether he could Gallardo-Gonzalez called the BLOCK

run his name through BLOCK, an ICE database. agreed. operator. Simpson requested a K-9 unit and

The K-9 officer promptly arrived, but the dog did not The an

alert when it walked around Gallardo-Gonzalez's vehicle. BLOCK alias operator used by informed Simpson that and "Kidnay that he Torres" had a was

Gallardo-Gonzalez

criminal When he

record, including a conviction for a cocaine offense.

heard Simpson repeat the name Gallardo-Gonzalez, the defendant slumped over and acknowledged that this was his real name.

Simpson informed him that he could be arrested for giving a fictitious name to a law enforcement officer, and again

requested consent to search the minivan. Gonzalez agreed to the search. two kilograms of cocaine was

This time, Gallardo-

Within minutes, a bag containing discovered under the vehicle's

passenger seat. We conclude that the district court did not clearly err in finding Gallardo-Gonzalez's consent to be voluntary. The

entire incident--from the actual stop to the discovery of the cocaine--lasted approximately twenty minutes. Gallardo-Gonzalez was free to leave rather than stay and engage in a discussion with Simpson. As the district court found, Simpson was

deferential when dealing with Gallardo-Gonzalez. 5

We therefore affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the material before us and argument would not aid the

decisional process. AFFIRMED

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