United States v. Cohen

                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 October 3, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-10166
                          Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

NEWTON DEVERAUX COHEN,

                                     Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                 for the Northern District of Texas
                       USDC No. 2:04-CR-62-ALL
                         --------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     After a jury found Newton Deveraux Cohen guilty of

possessing cocaine with the intent to distribute, in violation of

21 U.S.C. § 841(a), (b)(1)(A), he was sentenced to 190 months of

imprisonment.   Cohen appeals the denial of his pretrial motion to

suppress.   He argues that the district court erred in denying his

motion because his detention following the initially valid

traffic stop was unconstitutionally prolonged and because a




     *
       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this opinion should not be published and is not precedent except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.
                           No. 05-10166
                                -2-

subsequent search of his vehicle exceeded the scope of his

consent.

     This court reviews the district court’s ultimate conclusions

on Fourth Amendment issues de novo.   United States v. Brigham,

382 F.3d 500, 506 n.2 (5th Cir. 2004) (en banc).    Because Cohen

does not challenge the validity of his initial stop, the

pertinent inquiry in this appeal is whether his detention

following the stop was reasonable to dispel Trooper Oscar C.

Esqueda’s suspicion of unlawful activity that developed during

the course of the stop.   See id. at 506.

     Cohen contends that Trooper Esqueda unreasonably and

unconstitutionally prolonged his detention beyond that necessary

to effectuate the purpose of the initial stop, asking questions

unrelated to the stop and relying only on a generalized suspicion

of wrongdoing, a hunch.   Contrary to Cohen’s assertion, Trooper

Esqueda did not ask any impermissible questions during the course

of his detention.   See Brigham, 382 F.3d at 508.   Moreover, the

transcript of the suppression hearing establishes that Trooper

Esqueda relied on more than a generalized suspicion of

wrongdoing; instead, Trooper Esqueda’s actions were a graduated

response to emerging facts, were reasonable under a totality of

the circumstances, and did not unconstitutionally extend Cohen’s

detention.   See id. at 506-09.

     Cohen’s contention that his consent to search his truck was

limited to the tractor or cab portion of the truck and that
                           No. 05-10166
                                -3-

Trooper Esqueda exceeded the scope of Cohen’s consent when he

searched the truck’s trailer without Cohen’s explicit consent to

search it is unavailing.   United States v. McSween, 53 F.3d 684,

688 (5th Cir. 1995).   Cohen’s conduct, unlocking and opening the

trailer for Trooper Esqueda, would indicate to a reasonable

officer that Cohen consented to the search of the trailer.    See

id.   Because Cohen knew that cocaine was hidden in his trailer at

the time of the search, he should have limited his consent, if he

deemed it necessary to do so, to clarify any ambiguity from which

he now seeks to benefit.   See id.   Cohen failed to do so.

      The district court’s judgment is AFFIRMED.