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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-4589
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEROY ROBERSON, JR., LONNIE KEEPER,
and LAWANDA WHITLOCK,
Defendants-Appellants.
Appeals from the United States District Court
For the Eastern District of Texas
( November 1, 1993 )
Before POLITZ, Chief Judge, REYNALDO G. GARZA and JOLLY, Circuit
Judges.
POLITZ, Chief Judge:
Lonnie Keeper, Leroy Roberson, and LaWanda Whitlock appeal
their convictions for various drug-trafficking offenses. We affirm
all convictions except those based on the Travel Act.
Background
Shortly after midnight on Monday, October 14, 1991, Roberson,
Keeper, and Whitlock were passengers in a minivan driven northbound
by Darlene Linda McCleod on state highway 59 in Panola County,

Texas. State Trooper Barry Washington, while pursuing a speeder,
passed the van and observed its out-of-state license plates and
four black occupants. Shortly thereafter Trooper Washington
crested a hill, pulled onto the shoulder of the highway, doused his
lights, and trained his radar gun on northbound traffic.
As the van approached, the radar gun registered 58 miles per
hour, three miles per hour above the speed limit. The van,
apparently the only moving vehicle on that stretch of road, changed
lanes to distance itself as it passed the vehicle on the right
shoulder. Trooper Washington noted that the lane change was
unaccompanied by a signal and obviously regarded this as a serious
traffic offense when committed by an out-of-state driver in Panola
County. He immediately gave chase and pulled the van over.
Approaching the vehicle, Trooper Washington instructed McCleod
to produce her driver's license, registration, and proof of
insurance. McCleod informed him that the car was leased by a third
party and produced a copy of the lease agreement. The lease to one
Cheryl Allen did not identify McCleod as an authorized driver and
the lessee was not among the passengers. Trooper Washington began
to suspect that the vehicle might have been stolen. At this point,
McCleod volunteered that she was a friend of Allen and that Allen
was in St. Louis. McCleod claimed to be returning home after
taking her mother to her grandmother's home in Houston.
Trooper
Washington
then
asked
the
passengers
for
identification. Roberson could not produce a driver's license, but
claimed responsibility for the car, stating that Allen had loaned
2

it to him. Roberson told the trooper that Allen was still in
Houston and would be returning to St. Louis in another vehicle.
His suspicion further aroused, Trooper Washington decided to call
Deputy David Deter for backup.
Upon Deputy Deter's arrival, the pair asked McCleod for her
grandmother's phone number to confirm her story; McCleod could
recall neither the number nor the address. Trooper Washington then
requested McCleod's permission to search the luggage inside the
van, and McCleod agreed. During the course of this search Trooper
Washington noted an ether-like odor inside the van, a smell
associated with cocaine. He immediately called for further
assistance and visually inspected the outside of the van.
It was then that Trooper Washington noticed an unusually clean
spare tire.1 He informed Deputy Deter of his suspicion that the
tire contained cocaine, and then retrieved a pair of pliers to
remove the cap on the valve stem; the cap was too tight to remove
with his bare hands. Deputy Deter noted that while the spare tire
was on a 15-inch rim, the tires on the van were on 14-inch rims.
In time additional backup arrived with a drug-sniffing dog.
The third officer crawled beneath the van and released the air from
the tire and detected the smell of mustard, frequently used to mask
the odor of cocaine. The spare tire was then removed and presented
to the dog, who alerted. After disassembling the tire in the
appellants' presence at a local garage, the officers discovered
1Trooper Washington claimed to have found contraband inside
spares on at least 30 prior occasions.
3

that it contained 6.99 kilograms of cocaine.
The defendants were arrested and interviewed. McCleod,
claiming to be Roberson's girlfriend, said that Roberson had simply
asked her to accompany him on a trip from St. Louis to Houston.
The couple had then traveled with Whitlock and Larry Keeper2 to
Houston. McCleod explained that Larry Keeper had rented the
minivan and later met Michael Keeper at a Houston hotel on the
afternoon of October 12. Lonnie and Larry Keeper then left in the
minivan, with Michael Keeper following close behind in a blue Chevy
Corsica with Missouri plates. McCleod further related that all
three men returned at about 8:30 p.m. and that she and her
traveling companions left the next day. She claimed that Roberson
had told her to fabricate the story about dropping her mother in
Houston.
During her interview, Whitlock claimed that Larry Keeper had
approached her boyfriend and offered to pay him $200 for her
presence on the trip; Whitlock was to be paid an additional $500.
Whitlock understood that the purpose of the trip was to purchase
cocaine, and that the Keeper brothers were involved in cocaine
trafficking. Before leaving for St. Louis, Larry Keeper had shown
her a suitcase supposedly containing $40,000. She also claimed
that Larry Keeper had previously delivered $4,000 worth of crack
cocaine to an individual known as David Turner. She further stated
that she, McCleod, Roberson, and Larry Keeper left St. Louis in the
2At trial, McCleod testified that Lonnie Keeper was also in
the car, but that she had forgotten to relate that fact during her
interview.
4

minivan and met Michael Keeper, who drove the blue Corsica.3 She
would later testify at trial that while the officers were removing
the suspect tire from its rim she had asked Lonnie Keeper why, to
which he responded "its full of coke."
Roberson claimed to have been paid $150 dollars to help drive
the van and to locate cars in the Houston area for the Keeper
brothers. He admitted his awareness of the Keepers' involvement in
illicit drug transactions but denied any knowledge of the
cocaine-laden spare.
The charges against McCleod were dismissed shortly before
trial. Lonnie Keeper and Roberson were convicted of conspiracy to
possess cocaine with intent to distribute, possession with intent
to distribute cocaine, and violation of the Travel Act. Whitlock
was convicted of possession with intent to distribute cocaine and
of violating the Travel Act. All timely appeal.
Analysis
Each defendant challenges, inter alia, the sufficiency of the
evidence. Lonnie Keeper also complains of Trooper Washington's
stop and search of the minivan.
Fourth Amendment Limitations on Search and Seizure
a.
The stop
A motorist's expectation of privacy yields to a routine
3She recalled at trial that Lonnie Keeper also rode in the van
to Houston.
5

traffic stop for such violations as speeding or, as in this case,
changing lanes without signaling.4 Typically, a passenger without
a possessory interest in an automobile lacks standing to complain
of its search because his privacy expectation is not infringed.5
Whereas the search of an automobile does not implicate a
passenger's fourth amendment rights, a stop results in the seizure
of the passenger and driver alike.6 Thus, a passenger of a stopped
automobile does have standing to challenge the seizure as
unconstitutional. With these tenets in mind, we first consider
Keeper's contentions.
If the minivan in which Keeper rode had been stopped or
further detained on the suspicion that it carried drugs, then the
stop or prolonged detention would have to be justified under the
4United States v. Shabazz, 993 F.2d 431 (5th Cir. 1993).
5Rakas v. Illinois, 439 U.S. 128 (1978); cf. United States v.
Kye Soo Lee. 898 F.2d 1034 (5th Cir. 1990) (holding that bailees
operating a truck had standing to challenge search thereof), cert.
denied, 113 S.Ct. 1057 (1993).
6Heretofore we have implied but not expressly so ruled. E.g.,
United States v. Cardona, 955 F.2d 976 (5th Cir.) (finding no
standing to challenge search but reaching merits of challenge to
stop), cert. denied, 113 S.Ct. 381 (1992). Our circuit colleagues
have been more direct. E.g., United States v. Erwin, 875 F.2d 268
(10th Cir. 1989); United States v. Portwood, 857 F.2d 1221 (8th
Cir. 1988), cert. denied, 490 U.S. 1069 (1989). Accord, United
States v. Clark, 822 F.Supp. 990 (W.D.N.Y. 1993); United States v.
Lawson, 782 F.Supp. 1546 (S.D.Fla. 1992). See also United States
v. Powell, 929 F.2d 1190, 1195 (7th Cir.) (citing Erwin and
"numerous state courts" that have concluded that a passenger has
standing to challenge a vehicle stop), cert. denied, 112 S.Ct. 584
(1991).
6

now familiar Terry7 test.8 In that event, the stop would have been
unreasonable and the fruits thereof inadmissible absent an actual,
reasonable suspicion that drugs were in or upon the van.9 That,
however, was not the case here. Trooper Washington testified at
the suppression hearing that he stopped the van simply to
investigate its failure to signal before changing lanes. He
maintained that his stop did not exceed that scope until after he
developed a reasonable suspicion that drugs were present. Keeper
contends, albeit with little force, that the van did signal before
changing lanes and that Trooper Washington's explanation is merely
pretextual.
If Trooper Washington did not observe a traffic infraction --
apart from the minor speeding offense which did not serve as a
basis for the stop -- before stopping the van and detaining its
occupants, and if he simply acted on some vague suspicion, the
fruits of the stop and subsequent search would be tainted and
inadmissible in evidence. The question in the instant case
therefore becomes whether Trooper Washington observed a traffic
infraction before stopping the vehicle. There is no dispute that
7Terry v. Ohio, 392 U.S. 1 (1968).
8United States v. Guzman, 864 F.2d 1512 (10th Cir. 1988)
(finding fourth amendment violation where stop escalated into
custodial interrogation on an unrelated matter), cited with
approval in United States v. Kelley, 981 F.2d 1464 (5th Cir.),
cert. denied, 113 S.Ct. 242 (1993).
9In order to comply with the requirements of the fourth
amendment, a "vehicle frisk," as it has come to be known, must be
based on a reasonable suspicion. See, e.g., United States v.
Hernandez, 901 F.2d 1217 (5th Cir. 1990).
7

the vehicle changed lanes; Keeper concedes as much. Instead,
Keeper argues, as he did in the district court, that Trooper
Washington is mistaken in his belief that the van did not signal.10
This polemic is oft-repeated daily in traffic courts across this
country. In each case the issue is one of credibility, and in each
case its resolution is left to the factfinder. Absent clear error,
we will not disturb factual findings made on motions to suppress
evidence.11 Finding none here, we next turn to the pretext
argument.
Keeper's argument that the traffic stop was a mere pretext to
search for drugs is bolstered substantially by anecdotal evidence
of Trooper Washington's remarkable record for warrantless drug
arrests. It appears that in the past five years, Trooper
Washington has arrested 250 people on drug charges, all after
traffic stops. Of those, only four were warrant-authorized.
Indeed, this court has become familiar with Trooper Washington's
propensity for patroling the fourth amendment's outer frontier.12
Nonetheless, sitting en banc this court, albeit divided, has
10The appellants also contend that Trooper Washington's car was
parked in a precarious position, thereby forcing the lane change.
Accepting this as true would partially explain the van's failure to
signal. In any event, the district court's rejection of this
contention does not present clear error. The record entices, but
does not compel the conclusion that Trooper Washington purposefully
precipitated the lane change by positioning his vehicle to force
the van to change lanes on short notice.
11Kelley, supra.
12United States v. Ryles, 988 F.2d 13 (5th Cir. 1993) (finding
failure to signal lane change explanation for stopping suspect),
cert. denied, _____ S.Ct. _____, 1993 WL 233476 (Oct. 4, 1993).
8

simplified the pretext analysis by eliminating challenges to
seizures that otherwise have legal bases.13 Hence, while we do not
applaud what appears to be a common practice of some law
enforcement officers to use technical violations as a cover for
exploring for more serious violations, we may look no further than
the court's finding that Trooper Washington had a legitimate basis
for stopping the van. We thus must conclude that the stop did not
violate the fourth amendment.
b.
The detention and search
After Trooper Washington approached the van, conversation
ensued regarding the purpose for the stop, the ownership of the
vehicle, and the occupants' point of departure. We recently
explained at some length that "a police officer's questioning, even
on a subject unrelated to the purpose of the stop, is [not] itself
a Fourth Amendment violation."14 We merely note that when reviewing
supposedly routine traffic stops, we are concerned primarily with
the scope of the detention and the degree to which the driver and,
concomitantly, the passengers reasonably perceive restraints on
their liberty.
Had Trooper Washington handcuffed McCleod and directed the
other occupants of the vehicle to step to the side of the road to
be frisked, we would have a different case. As in Shabazz,
however, the routine questioning here did not prolong the duration
13United States v. Causey, 834 F.2d 1179 (5th Cir. 1987) (en
banc).
14Shabazz, 933 F.2d at 436.
9

of initial, valid detention.15 While, after that questioning,
circumstances might warrant a finding of probable cause for the
search to be valid, we need not reach that issue. After pulling
the van over and conducting the routine questioning, Trooper
Washington received consent from the driver to search its contents.
There is no basis for concluding that this consent was
involuntarily given.16 Moreover, Keeper, as a passenger, lacks
standing to challenge the search of the car's contents.17
Sufficiency of the Evidence
All three appellants challenge the sufficiency of the evidence
to sustain their convictions for possession with intent to
distribute a controlled substance and for violating the Travel Act.
Keeper and Roberson also challenge their conspiracy convictions.
Because we agree that the evidence was insufficient to prove any
violation of the Travel Act, we do not reach the related complaint
that the court erred in charging the jury on this offense.
Under the controlling standard of review, we typically assess
evidentiary sufficiency in a criminal case by viewing the evidence
15In this case, the driver could not produce any documentation
suggesting that she was authorized to operate the vehicle, which
was rented to someone who was not an occupant. Questioning the
driver regarding matters such as ownership of the vehicle was thus
within the scope of the routine traffic stop. Shabazz, 993 F.2d at
437. Moreover, because we find valid consent, we need not consider
the propriety of the questioning of the passengers.
16Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (consent, if
voluntarily given, vitiates the need for circumstantial
justification).
17United States v. Mendoza-Burciaga, 981 F.2d 192 (5th Cir.
1992), cert. denied, _____ S.Ct. _____, 1993 WL 375112 (Oct. 18,
1993).
10

and drawing all inferences most favorable to the verdict.18 If the
evidence so viewed would permit a rational jury to find all
elements of the crime proven beyond a reasonable doubt, we affirm
the conviction.19 In the instant case, however, our review is
limited to a search for plain error because the defendants did not
renew their motions for acquittal at the close of the evidence.20
a.
Conspiracy and possession with intent to distribute
In order to convict Keeper and Roberson for conspiracy the
government had to establish that a conspiracy existed and that each
voluntarily participated therein.21 Both claim that the evidence
established nothing more than their coincidental presence in a van
containing nearly seven kilograms of cocaine. While we have held
that neither mere presence in close proximity to illicit drugs nor
association with persons trafficking drugs alone is sufficient to
establish knowing participation in a conspiracy or, for that
matter, knowing possession of drugs, both are factors to be
considered in weighing other circumstantial evidence.22 In the case
at bar, Roberson lied to Trooper Washington when asked about the
purpose of his trip and his remuneration.23 Testimony reflects that
18Glasser v. United States, 315 U.S. 60 (1942).
19Jackson v. Virginia, 443 U.S. 307 (1979).
20United States v. Ruiz, 860 F.2d 615 (5th Cir. 1988).
21United States v. Rodriguez-Mireles, 896 F.2d 890 (5th Cir.
1990).
22United States v. Natel, 812 F.2d 937 (5th Cir. 1987).
23Roberson explained that he was paid this money to locate cars
for the Keeper brothers. The jury was entitled to discredit this
11

Keeper was aware of the presence of the cocaine in the tire before
the tire was disassembled. This and other evidence, including the
statements taken shortly after the arrests and the testimony of
McCleod and Whitlock, suffices to pass plain error review. In view
of their arrest while in actual possession of the drugs, the
evidence also supports the convictions for the underlying
possession offense.
Whitlock testified at trial, contrary to her prior statement,
that she was simply accompanying McCleod on the trip to Houston.
The jury was entitled to reject her new story and to believe, as
she had previously stated, that she had been paid to act as a
"sitter" to give cover to the group as they traveled between
Houston and St. Louis. Her conviction for aiding and abetting the
possession with intent to distribute is sufficiently supported by
the evidence.
b.
The Travel Act.
The Travel Act, 18 U.S.C. � 1952, was submitted to Congress by
then Attorney General Robert Kennedy as an integral part of
President Kennedy's ongoing war against organized crime. Its
purpose is manifested by its plain language.
(a) Whoever travels in interstate or foreign commerce or
uses the mail or any facility in interstate or foreign
commerce with intent to --
(1) distribute the proceeds of any unlawful
activity; or
(2) commit any crime of violence to further
any unlawful activity; or
(3) otherwise promote, manage, establish,
explanation and to believe that he, like the other passengers, was
paid to assist in the transport of the drugs to St. Louis.
12

carry on, or facilitate the promotion,
management, establishment, or carrying on, of
any unlawful activity,
and thereafter performs or attempts to perform any of the
acts specified [above] shall be fined not more than
$10,000 or imprisoned for not more than five years, or
both.
(b) As used in this section "unlawful activity" means
(1) any business enterprise involving gambling, liquor on
which the Federal excise tax has not been paid, narcotics
or controlled substances . . . [emphasis added].
The purpose of the Act is clear: It aims to deny those engaged in
a criminal business enterprise access to channels of interstate
commerce.24 It is not aimed at individual substantive offenses.25
Courts considering same unanimously have concluded that the
Act is not violated by a single episode of criminal behavior.
Rather, in order to state a violation of the Travel Act, the
government must allege: (1) that the accused traveled in
interstate commerce or used facilities thereof, (2) with the
specific intent to engage in or facilitate conduct listed in
subsections (a)(1)-(3), (3) in furtherance of a criminal business
enterprise. A criminal business enterprise contemplates a
continuous course of business -- one that already exists at the
time of the overt act or is intended thereafter.26 Evidence of an
24Courts have noted that Congress did not intend overly-
sweeping interpretations of the Act. E.g., United States v.
Hathaway, 534 F.2d 386 (1st Cir.), cert. denied, 429 U.S. 819
(1976); United States v. Peskin, 527 F.2d 71 (7th Cir. 1975), cert.
denied, 429 U.S. 818 (1976).
25McIntosh v. United States, 385 F.2d 274 (8th Cir. 1967).
26United States v. Roselli, 432 F.2d 879 (9th Cir. 1970), cert.
denied sub nom. Tietelbaum v. United States, 401 U.S. 924 (1971);
United States v. Brennan, 394 F.2d 151 (2d Cir.), cert. denied, 393
U.S. 839 (1968).
13

isolated criminal act, or even sporadic acts, will not suffice.27
In the instant case, Keeper, Roberson, and Whitlock all
traveled in interstate commerce. The evidence, fairly viewed, also
establishes beyond a reasonable doubt that each intended to
transport controlled substances. The evidence does not establish,
however, that any of the defendants were engaged in or intended to
commence, a continuous course of criminal behavior. Nor does the
evidence support a finding that they intended to facilitate
another's existing criminal business enterprise.
Evidence does exist that Larry Keeper was engaged in drug
transactions. This does not, however, permit a dispositive
inference that Lonnie Keeper or his fellow passengers were engaged
in or facilitating an ongoing criminal enterprise.28 The
government, as it did in the trial court, relies heavily on the
quantity and purity of the drugs seized. While these facts will
support an inference that the defendants intended to sell rather
than consume the drugs,29 it does not reasonably support the
inference that they intended to carry on or to establish a
continuous business enterprise. As a general rule, evidence of
27United States v. Gallo, 782 F.2d 1191 (4th Cir. 1986), cert.
denied, 490 U.S. 1070 (1989); United States v. Rinke, 778 F.2d 581
(10th Cir. 1985); United States v. Lignarolo, 770 F.2d 971 (11th
Cir. 1985), cert. denied, 476 U.S. 1105 (1986); United States v.
Kaiser, 660 F.2d 724 (9th Cir. 1981), cert. denied, 455 U.S. 956,
and cert. denied, 457 U.S. 1121 (1982).
28See United States v. Thompson, No. 92-1037, slip op. at 9
n.14 (5th Cir. March 24, 1993) (refusing to impute one brother's
guilty knowledge to another, solely on basis of blood relation).
29United States v. Prieto-Tejas, 779 F.2d 1098 (5th Cir. 1986).
14

mental state must, of necessity, be proved by circumstantial
evidence. The same cannot be said with respect to the existence of
a continuous criminal business. The evidence before us is
insufficient to support the Travel Act convictions.
The judgment of the district court is REVERSED as to each
Travel Act conviction and judgment of acquittal is RENDERED
thereon. In all other respects, the convictions are AFFIRMED.
15