author: GREGG COSTA, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Courtland Lenard TURNER, Defendant-Appellant
    No. 15-50788
    United States Court of Appeals, Fifth Circuit.
    Filed October 13, 2016

      Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney’s Office, Western District of Texas, San Antonio, TX,; for Plaintiff-Appellee.
    John Scott Peterson, Waco, TX, for Defendant-Appellant.
    Before WIENER, CLEMENT, and COSTA, Circuit Judges.
   GREGG COSTA, Circuit Judge:

The central issue in this case is whether a law enforcement officer’s scanning of the magnetic stripe on the back of a gift card is a search within the meaning of the Fourth Amendment. We join two other circuits in holding that it is not.

I.

Defendant Courtland Turner was riding in a car driven by Roderick Henderson that was pulled over for lacking a visible license plate light. Henderson failed to show the officer a valid driver’s license, providing him instead with a Texas identification card. Turner likewise provided the officer with an identification card.

The officer retreated to his patrol car to conduct a records check and verify Turner’s and Henderson’s identities. In doing so, he discovered that Turner had an active arrest warrant for possession of marijuana. As a result, the officer asked Turner to exit the vehicle; he complied. As Turner exited the vehicle, the officer observed an opaque plastic bag partially;protruding from the front passenger seat. It appeared to the officer that someone attempted to conceal the bag by pushing it under the seat.

After placing Turner in the patrol car while dispatch confirmed the warrant, the officer asked Henderson what was -inside the bag. Henderson handed the officer the bag and said that “we”—apparently referring to Turner and himself—purchased gift cards. The officer opened the bag and saw approximately 100 gift cards. He then asked Henderson whether he had any receipts for the gift cards. Henderson responded that he did not and that “we” bought the gift cards from another individual who sells them to make money.

After conferring with other officers about past experiences with stolen gift cards, the officer seized the gift cards as evidence of suspected criminal activity. Henderson was ticketed for failing to display a driver’s license and signed an inventory sheet that had an entry for 143 gift cards. Turner was arrested pursuant to his warrant.

The officer, without obtaining a search warrant, swiped the gift cards with his in-car computer. Unable to make use of the information shown, the officer turned the gift cards over to the Secret Service. A subsequent scan of the gift cards revealed that at least forty-three were altered, meaning the numbers encoded in the card did not match the numbers printed on the card. The investigating officer also contacted the stores where the gift cards were purchased—a grocery store and a Wal-mart in Bryan, Texas. The stores provided photos of Henderson and Turner purchasing gift cards.

Turner was charged with aiding and abetting the possession of unauthorized access devices. He moved to suppress evidence of the gift cards, challenging both the roadside seizure of the cards and the subsequent examination of the magnetic stripes, The district court denied Turner’s motion, finding that, although Turner had standing to seek suppression, there was no constitutional violation because (1) Henderson provided consent for the seizure of the gift cards and (2) the later examination of the cards did not constitute a search. Turner entered a conditional guilty plea, reserving his right to appeal the suppression ruling.

II.

“When examining a district court’s ruling on a motion to suppress, we review questions of law de novo and factual findings for clear error,” United States v. Hearn, 563 F.3d 95, 101 (5th Cir. 2009). We view the evidence in the light most favorable to the prevailing party, United States v. Hernandez, 279 F.3d 302, 306 (5th Cir. 2002), and may “affirm the district court’s ruling .., based on any rationale supported by the record.” United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005).

As the party seeking suppression, Turner “has the burden of proving, by a preponderance of the evidence, that the evidence in question was obtained in violation of his Fourth Amendment rights.” United States v. Smith, 978 F.2d 171, 176 (5th Cir. 1992) (citing Rakas v. Illinois, 439 U.S. 128, 131 n.1, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)). That burden includes establishing standing to contest the evidence, United States v. Iraheta, 764 F.3d 455, 460-61 (5th Cir. 2014), and showing that the challenged government conduct constitutes a Fourth Amendment search or seizure. Smith, 978 F.2d at 176.

III.

We agree with the district court that Turner may challenge the seizure of the gift cards. He jointly possessed the cards with Henderson, and the bag containing them was found underneath where he was sitting. See Iraheta, 764 F.3d at 461-62 (explaining that passengers of a vehicle have standing to challenge seizure of their luggage); United States v. Miller, 608 F.2d 1089, 1101 (5th Cir. 1979) (treating a plastic portfolio as personal luggage subject to Fourth Amendment search requirements),

Turner agrees that by handing the bag to the officer in response to his question about its contents, Henderson consented to the officer’s initial seizure of, and look inside, the bag. But he disagrees with the district court’s conclusion that Henderson’s consent extended to the officer’s taking permanent possession of the gift cards. We need not resolve this dispute over the scope of Henderson’s consent, because we find another lawful basis for the seizure of the gift cards.

The taking of physical items like gift cards is a seizure that requires either a warrant or some other justification that renders such an intrusion reasonable under the Fourth Amendment. See United States v. Paige, 136 F.3d 1012, 1022 (5th Cir. 1998), One situation in which a warrant may not be required occurs when police “seize evidence in plain view.” Arizona v. Hicks, 480 U.S. 321, 326, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) (emphasis omitted) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). For a plain-view seizure to be lawful, the officer must have had lawful authority to be in the location from which he viewed the evidence, and the incriminating nature of the item must be “immediately apparent.” Horton v. California, 496 U.S. 128, 136, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) (quoting Coolidge, 403 U.S, at 466, 91 S.Ct. 2022). As the officer obviously had authority to be standing on the side of the road when- he observed the gift cards (the lawful authority requirement typically arises when the police observe the item while inside a home), Turner contests only whether it was immediately apparent that the cards were in-strumentalities of a crime.

“The incriminating nature of an item is immediately apparent if the officers have probable cause to believe that the item is either evidence of a crime or contraband.” United States v. Buchanan, 70 F.3d 818, 826 (5th Cir. 1996). To have probable cause, “it is not necessary that the officer know that the discovered res is contraband or evidence of a crime, but only that there be ‘a “practical, nontechnical” probability that incriminating evidence is involved.’” United States v. Espinoza, 826 F.2d 317, 319 (5th Cir. 1987) (quoting Texas v. Brown, 460 U.S. 730, 742-43, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)). When reviewing probable cause determinations, we “consider the totality of the circumstances—including the officers’ training and experience as well as their knowledge of the situation at hand.” Buchanan, 70 F.3d at 826.

The circumstances here were as follows: the plastic bag contained approximately 100 gift cards and appeared to have been concealed under the front passenger seat.' Henderson admitted not having receipts for the gift cards and further stated that he and Turner purchased the gift cards from an individual who sells them for a profit. The officer, upon learning this, conferred with other officers who had experience with large numbers of gift cards being associated with drug dealing, fraud, and theft. We conclude that these facts support probable cause to believe the gift cards were contraband or evidence of a crime. See United States v. Watson, 273 F.3d 599, 602 (5th Cir. 2001) (describing probable cause as a “fair probability” that a crime occurred, which is “more than a ‘bare suspicion’ but less than a preponderance of the evidence” (quoting United States v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999))).

Turner counters that a finding of probable cause is at odds with the officer’s view that during the stop there was insufficient evidence to arrest Henderson for a gift card crime. This does not control our inquiry for a couple reasons. The existence of probable cause is an objective one that does not turn on the subjective beliefs of an officer. And even if the officer’s view was a reasonable assessment of the evidence, he could seize the gift cards so long as there was probable cause to believe they were evidence of a crime, even if that crime could not yet be tied to a particular suspect.

IV.

Having concluded that the gift cards were lawfully seized, we must decide whether it was lawful for law enforcement to scan the magnetic stripes on the cards to see the information encoded therein.

Once seized, most items do not give rise to a separate Fourth Amendment search inquiry. Think of a firearm or a marijuana plant. The evidentiary value of those items is the object itself, so seizing them is all law enforcement needs to do. Some items, however, conceal other items. Even when law enforcement lawfully seizes a suitcase, for example, it still needs a warrant (or some other recognized justification) to open it. United States v. Place, 462 U.S. 696, 699-700, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). That is because, in addition to the Fourth Amendment posses-sory interest a person has in a suitcase, there is an additional Fourth Amendment privacy interest in its contents.

When it comes to technology that allows law enforcement to obtain information embedded in an item, it can be more difficult to determine whether there is a separate privacy interest located within an item that already enjoys constitutional protection from unlawful seizure. Such a privacy interest exists in the electronic contents of computers and cell phones. See Riley v. California, — U.S. -, 134 S.Ct. 2473, 2485, 189 L.Ed.2d 430 (2014). Yet, other applications of technology that reveal information not visible to the naked eye—for example, using a special light to detect ultraviolet ink on currency or examining the metadata located within an electronic image already in the lawful possession of the government—have not been thought to constitute a search. See United States v. Post, 997 F.Supp.2d 602, 606 (S.D. Tex. 2014); United States v. Medina, No. 09-20717-CR, 2009 WL 3669636, at *10 (S.D. Fla. Oct. 24, 2009), report and recommendation adopted in part, rejected in part sub nom. United States v. Duarte, No. 09-20717-CR, 2009 WL 3669537 (S.D. Fla. Nov. 4, 2009). What about the information encoded in the magnetic stripe on the back of gift cards?

A Fourth Amendment privacy interest is infringed when the government physically intrudes on a constitutionally protected area or when the government violates a person’s “reasonable expectation of privacy.” United States v. Jones, — U.S. -, 132 S.Ct. 945, 949-50, 181 L.Ed.2d 911 (2012). Although technology can sometimes involve the former, see id. at 949 (finding that placement of a GPS tracking device on a car amounted to an unlawful trespass), it more often involves the latter. Indeed, the “reasonable expectation of privacy” approach arose from wiretapping. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

Turner argues that scanning the gift cards amounted to a search under the “reasonable expectation of privacy” inquiry. That requires “first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’” Katz, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring). The reasonableness of an expectation of privacy, turns on “our ‘societal understanding’ about what deserves ‘protection from government invasion.’ ” Smith, 978 F.2d at 177 (quoting Oliver v. United States, 466 U.S. 170, 178, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984)). Analogizing to the cell phones the Supreme Court discussed in Riley, Turner contends that society recognizes as reasonable an expectation of privacy in a gift card’s magnetic stripe because it is an electronic storage device that contains personal information.

At this point, it is helpful to describe the electronic information encoded in the typical gift card. The record lacks much detail about this, a deficiency that hurts Turner as he bears the burden of establishing a privacy interest. Useful information can be found, however, in other cases addressing whether scanning credit or gift cards amounts to a search. One such court has explained that the typical magnetic stripe has “three data strips which hold only 79 alphanumeric characters, 40 numeric characters, and 107 numeric characters, respectively.” See United States v. Bah, 794 F.3d 617, 633 (6th Cir. 2015). For credit cards, most of which have more information than a gift card, that limited space usually contains the “account number, a bank identification number, the card’s expiration date, a three digit ‘CSC’ code, and, at times, the cardholder’s first and last name.” Id. at 630. Of course, it is the issuing institution, not card users, that initially codes and stores this information on the magnetic stripe. See United States v. Alabi, 943 F.Supp.2d 1201, 1279 (D. N.M. 2013). Users do have the ability to re-encode the cards, but need an uncommon device to do so. See id. at 1284. The tinie and expense it takes to purchase and use a re-encoding device to change at most a few lines of characters means it will rarely be worth doing for a lawful purpose. Id. at 1284-85; Bah, 794 F.3d at 632; United States v. DE L’Isle, 825 F.3d 426, 432-33 (8th Cir. 2016). The incentive to re-encode exists, however, when a fraudster changes the account number encoded in a gift card to match one with a higher balance than the card he purchased or counterfeited. See Alabi, 943 F.Supp.2d at 1284-85.

A number of these features lead us to conclude that there is no reasonable expectation of privacy in the magnetic stripe of a gift card. For starters, the few lines of characters encoded in a gift card are infinitesimally smaller than the “immense storage capacity” of cell phones or computers. Riley, 134 S.Ct. at 2489. The Supreme Court described that capacity as “[o]ne of the most notable distinguishing features of modern cell phones” that had “several interrelated consequences for privacy,” including that “a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record.” Id.

Even more important is that the vast gulf in storage capacity between gift cards and cell phones reflects their different purposes. A primary purpose of modem cell phones, and certainly of computers, is to store personal information. See id. at 2489-91. The purpose of a gift card is to buy something. See Alabi, 943 F.Supp.2d at 1279. The issuer of a gift card places the information on it, which can only be altered using a device that few Americans know about and even fewer own. As one court has put it, “[leather than using credit and debit cards to manipulate and store the data contained in the cards’ magnetic strips, individuals and society put to use the magnetic strips by using the data that the issuer encoded on them ... to facilitate a financial transaction and purchase goods and services.” Id. at 1284.

Another Fourth Amendment consequence flows from the commercial purpose of gift cards. Unlike cell phones and computers, whose function of storing personal information often results in access being restricted by a password, the raison d’etre of gift cards means that third party cashiers will often be doing the same swiping that law enforcement did here. DE L’Isle, 825 F.3d at 430 (“[T]he purpose of a ... gift card is to enable the holder of the card to make purchases, and. to accomplish this, the holder must transfer information from the card to the seller, which negates an expressed privacy interest.”); Bah, 794 F.3d at 633 (“A credit card’s stored information ... is intended to be read by third parties. That is the only reason for its existence.” (second emphasis added) (quoting United States v. Benjamin, No. 4:14-CR-3089, 2014 WL 5431349, at *11 (D. Neb. Oct. 24, 2014))); see generally Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (discussing the third party doctrine); United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (same).

We thus join the other courts that have considered this issue and conclude that society does not recognize as reasonable an expectation of privacy in the information encoded in a gift card’s magnetic stripe. See Bah, 794 F.3d at 631; DE L’Isle, 825 F.3d at 432; Alabi, 943 F.Supp.2d at. 1285; Medina, 2009 WL 3669636, at *11.

The most recent of those cases, DE L’Isle, included a dissent. See 825 F.3d at 433-37 (Kelly, J., dissenting). Judge Kelly’s dissent does not actually conclude that scanning a credit card amounts to a search, but instead would have remanded for additional factfinding “on whether there are significant technological barriers to an individual rewriting information on the magnetic stripe of their cards.” Id. at 434. Given that our circuit places the burden on the defendant to establish a reasonable expectation of privacy in the item police examined, see Smith, 978 F.2d at 176, Turner should have introduced at the suppression hearing any information about the technology that would have helped him meet his burden. In addition, the DE L’Isle dissent’s concern about credit cards containing new chip technology that has “a storage capacity much greater than that of the old magnetic stripes,” DE L’Isle, 825 F.3d at 436, does not yet apply to gift cards.

The technology of today will not, however, be the technology of tomorrow. The Supreme Court has noted the need to take account of rapidly evolving capabilities when applying the Fourth Amendment to other Information Age technologies. See Kyllo v. United States, 533 U.S. 27, 33-34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (“It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.... The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.”); Riley, 134 S.Ct. at 2494-95 (“Modern cell phones .[w]ith all 'they contain and all they may reveal; [ ] hold for many Americans ‘the privacies of life’ The fact that technology now allows an individual to carry such information -in his hand does not make the information any less worthy of the protection for which the Founders fought.”). As other courts deciding this issue have, we thus limit our holding to the gift cards of today, which are not intended to be used for—and rarely are used for—storing information entered by the user. See Bah, 794 F.3d at 633 (“Our holding today is limited in scope ... we do not address hypothetical magnetic strips of the future that may have greater storage capacity and tend to store more private information.”); DE L’Isle, 825 F.3d at 433 (“There may be an instance, with facts different from this case, where a court reasonably finds a legitimate privacy interest in information contained in the magnetic strip of a credit, debit, or gift card.”). And even with the gift cárcjs of today, law enforcement can view the encoded- information only after coming into lawful possession of the cards.

* * ⅜

The judgment of the district court is AFFIRMED.

      . The government challenges Turner’s "standing" to contest only what it views as Henderson’s consent to the seizure of the gift cards. As we find the seizure lawful under the plain-view exception rather than as a matter of consent, we need not decide this question.

      . There was no dispute in Riley that reviewing the contents of a cell phone involved a search. At issue was only whether such a search was permissible without a warrant when conducted during an arrest. Riley, 134 S.Ct. at 2493 (holding that search-incident-to-arrest doctrine does not extend to search of cell phone).

      . Some courts have referred to magnetic stripes as "magnetic strips.” The technical term is magnetic stripe. See Magnetic Stripe Technology, IBM, http://www-03.ibm.com/ ibm/history/ibml 00/us/en/icons/magnetic/ (last visited Oct, 5, 2016) (“The magnetic stripe ... was the catalyst that accelerated the proliferation of the global credit card industry, which now handles US$6 trillion in transactions per year.”).

      . At least for credit cards, some user agreements prohibit tampering with cards. See Ala-bi, 943 F.Supp.2d at 1215-16; HSBC Credit Card Agreement Terms, HSBC Bank, http:// www.hsbc.co.uk/l/PA_esf-ca-app-contenl/ ' content/pws/content/personal/pdfs/hsbc-bank-credit-card-tcs.pdf (last visited Sept. 29, 2016).

      . See Deftun MSR606 HiCo Magnetic Stripe Card Reader Writer Encoder, Amazon.com, https://www.amazon.com/Deftun-MSR606-Magnetic-Stripe-Encoder/dp/B006RE896K (last visited Oct. 5, 2016) (listing price at $299.99).

      , Another difference between gift cards and credit cards is that the magnetic stripes on the latter typically contain identifying information like the cardholder’s name and address. See Bah, 794 F.3d at 630. Despite that feature, courts have unanimously rejected the argument that the swiping even of credit cards is a Fourth Amendment search.


source: Caselaw Access Project

author: JERRY E. SMITH, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Juan Jose RAMIREZ, Defendant-Appellant.
    No. 15-40887
    United States Court of Appeals, Fifth Circuit.
    Filed October 14, 2016

      Anna Elizabeth Kalluri, Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
    Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, Kayla R. Gassmann, Scott Andrew Martin, Assistant Federal Public Defenders, Laura Fletcher Leavitt, Federal Public Defender’s Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.
    Before KING, SMITH, and COSTA, Circuit Judges.
   JERRY E. SMITH, Circuit Judge:

Juan Ramirez entered a conditional guilty plea to one count of transporting an illegal alien. He appeals the conviction based on his challenge to the denial of his motion to suppress evidence obtained during a traffic stop, contending that the Border Patrol agent who stopped his truck did so -without reasonable suspicion. Finding no error, we affirm.

I.

About 9:30 p.m. on a Wednesday, Border Patrol Agent Ricardo Espinel was sitting in his patrol car in the median of U.S. Highway 77 approximately forty-five.miles north of the Mexican border, several miles south of the Sarita immigration checkpoint, facing the northbound lanes, which were illuminated by his headlights. It was nothing out of the ordinary for Espinel: He had been an agent for six years and had been patrolling this stretch of Highway 77 near Raymondville, Texas, for more than nine months. The highway, which connects the border area to Corpus Christi and Houston, is a known alien smuggling route. Espinel had made over 150 alien arrests on this stretch, and he knew that Tuesday, Wednesday, and Thursday nights saw the most smuggling activity, with human smugglers dropping off aliens south of the Sarita checkpoint, typically using SUVs or pickups because they can hold a large number of persons.

Espinel saw Ramirez drive by in a Ford F-150 pickup, a vehicle popular among smugglers. Espinel noticed that Ramirez “kind of like ducked down, kind of hiding behind his hand” as he passed. Espinel saw three or four passengers in the back of the truck, who also “kind of like ducked down or kind of like laid down” when they saw him. Espinel pursued Ramirez. As he approached from behind, he “saw heads in the back like popping up and down” and observed Ramirez “swerve to the right and then kind of correct.” Espinel turned on his emergency lights and pulled Ramirez over. As he was stopping, Espinel saw two passengers get out of the truck and run away; he secured Ramirez and the four remaining passengers—at least two of whom turned out to be illegal aliens.

II.

When evaluating the denial of a motion to suppress, we review questions of law de novo. United States v. Cervantes, 797 F.3d 326, 328 (5th Cir. 2015). ‘Whether an officer had reasonable suspicion to support a stop is treated as a question of law.” United States v. Castillo, 804 F.3d 361, 364 (5th Cir. 2015), cert. denied, — U.S.-, 136 S.Ct. 1481, 194 L.Ed.2d 574 (2016). “The evidence and inferences therefrom are reviewed in the light most favorable to the Government as the prevailing party.” United States v. McKinnon, 681 F.3d 203; 206 (5th Cir. 2012).

A roving Border Patrol agent may stop a vehicle, but only if he or she is “aware of specific, articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicle is involved in illegal activities.” United States v. Brignoni-Ponce, 422 U.S. 873, 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). “In determining whether reasonable suspicion exists in the context'of roving Border Patrol stops, we examine the totality of the circumstances and weigh the [Brignoni-Ponce] factors.” United States v. Carranza, No. 15-51149, — Fed.Appx. -, -, 2016 WL 4586628, at *1 (5th Cir. Sept. 2, 2016) (per curiam). In Brignoni-Ponce, 422 U.S. at 884-85, 95 S.Ct. 2574, the Court outlined a non-exhaustive list of factors that “may be taken into account in deciding whether there is reasonable suspicion to stop a car in the border area”:

(1) the characteristics of the area in which the vehicle is encountered;
(2) the arresting agent’s previous experience with criminal activity;
(3) the area’s proximity to the border;
(4) the usual traffic patterns on the road;
(5) information about recent illegal trafficking in aliens or narcotics in the area; (6) the appearance of the vehicle; (7) the driver’s behavior; and, (8) the passengers’ number, appearance, and behavior.

United States v. Garza, 727 F.3d 436, 440 (5th Cir. 2013). Although proximity to the border and an agent’s experience are afforded significant weight, “[o]ur analysis is not limited to any one factor.” Zapata-Ibarra, 212 F.3d at 881.

Espinel had reasonable suspicion to stop Ramirez’s truck. Espinel was an experienced agent who had been patrolling Highway 77 near Raymondville for the better part of a year. He first spotted Ramirez’s truck about forty-five miles north of the border, well south of the Sarita checkpoint. Generally, a vehicle that is first observed within fifty miles of the Mexican border is considered to be in proximity to it. United States v. Jacquinot, 258 F.3d 423, 428 (5th Cir. 2001). Espinel saw Ramirez and his passengers behaving unusually, suggesting they might be nervous. Such behavior is highly relevant. Moreover, Espinel saw Ramirez driving a type of vehicle that is known to be popular among smugglers and on a highway and at a time that is similarly known to be popular among them.

Each of these facts adds to the reasonableness of Espinel’s decision to stop Ramirez, Taken together, they are sufficient to establish reasonable suspicion. We do not speculate on the proper result had not all of these facts been present.

To support his claim that Espinel lacked reasonable suspicion, Ramirez cites Oro-na-Sanchez, which concerned two Boider Patrol agents who had flashed their headlights at a pickup truck that was driving along a road known to be a popular alien-smuggling route. The driver and his passengers appeared startled by the light, and after the agents began following the truck, the defendant’s driving became erratic. We held that the agents lacked reasonable suspicion to stop the vehicle. But the agents were inexperienced, a point that we emphasized twice. Orona-Sanchez, 648 F.2d at 1042 & n.2. The panel’s closing comment suggests that it found that inexperience to be dispositive: “[W]e give substantial weight to the fact that these agents were new to the area and were not familiar with the residents, their vehicles or traffic patterns.” Id. at 1042. In Carranza, — Fed. Appx. at -, 2016 WL 4586628, at *1, we relied on the fact that the agents were supervisors “and collectively had 24 years of experience working at the Texas-Mexico border and 27 years of experience overall.”

Likewise, Espinel was intimately familiar with the stretch of highway where he stopped Ramirez. “[Fjactors that ordinarily constitute innocent behavior may provide a composite picture sufficient to raise reasonable suspicion in the minds of experienced officers.” Zapata-Ibarra, 212 F.3d at 881 (quoting United States v. Holloway, 962 F.2d 451, 459 (5th Cir. 1992)). Experience is not dispositive, of course. Neither is proximity.

In United States v. Rangel-Portillo, 586 F.3d 376 (5th Cir. 2009), we held that an experienced Border Patrol agent lacked reasonable suspicion when he stopped a vehicle 500 yards from the Mexican border. .But the agent had little to go on besides his own intuition and the fact that the vehicle was traveling near the border in an area known for alien smuggling. The agent observed that the passengers were wearing shoulder seatbeits, appeared to be silent, did not have shopping bags even though they were exiting a Wal-Mart parking lot, and never made eye contact with the agent. Meanwhile, the driver “looked at [the agent].too much.” Id. at 376-81. The agent thought those facts were enough for a stop. We disagreed, noting that law-abiding citizens are just as likely as law-breakers, if not more so, to wear seatbelts, refrain from talking, and exit a Wal-Mart parking lot without shopping bags. Id. at 381.

By contrast, in the current case, a number of relevant factors besides proximity and the agent’s experience are sufficiently present to confer reasonable suspicion. The judgment of conviction is AFFIRMED.

      . See United States v. Zapata-Ibarra, 212 F.3d 877, 881 (5th Cir. 2000) (quoting United States v. Orozco, 191 F.3d 578, 581 (5th Cir. 1999)) ("[P]roximity to the border, is a 'paramount factor’ in determining reasonable suspicion.”); United States v. Orona-Sanchez, 648 F.2d 1039, 1042 (5th Cir. 1981) (“substantial weight" given to agent’s experience).

      . Ramirez points out that his truck did not cross the border (his trip originated in South Texas), and he maintains that because the truck was registered to San Benito, Texas, it would have been reasonable for Espinel (who checked the vehicle’s registration before stopping it) to assume that Ramirez had come from San Benito, just north of the border. But it is not necessary for agents to think that a suspected vehicle has ever crossed the border. As Espinel testified, it is common practice for alien smugglers not to cross the border themselves; the aliens cross by foot and then are picked up by smugglers somewhere north of the border and—as it relates specifically to the facts of this case—south of the Sarita checkpoint. A vehicle's proximity to the border suggests only that it is coming from the border area, where many smuggling trips originate. “Although the agents did not believe that [the defendant's travel] originated at the border, [he] was within three miles of the border and was driving in an area and on a route known for smuggling activities.” Carranza, — Fed.Appx. at -, 2016 WL 4586628, at*1.

      . See, e.g,, United States v. Soto, 649 F.3d 406, 412 (5th Cir. 2011) (finding a passenger’s attempts to conceal himself from a Border Patrol agent to be relevant to the reasonable-suspicion analysis); United States v. Rodriguez, 564 F.3d 735, 744 (5th Cir. 2009) (finding a driver’s swerving and repeated glances in his rearview mirror to be relevant); United States v. Guerrero-Barajas, 240 F.3d 428, 433 (5th Cir. 2001) (finding swerving relevant); United States v. Garcia, 732 F.2d 1221, 1225 (5th Cir. 1984) (finding “evasive action of passengers” to be a “significant factor”).

      . The caselaw is somewhat inconsistent regarding how much weight to give to the fact that Ramirez was driving a Ford F-150 pickup truck, a type of vehicle associated with alien-smuggling in South Texas. In Jacquinot, 258 F.3d at 430, we found it relevant that the defendant was driving a work truck, a type of vehicle that tourists rarely drive. But in Oro-na-Sanchez, 648 F.2d at 1042, we found it not relevant that the defendant was driving a 3/4-ton pickup, a vehicle that is popular among smugglers but also quite common where the stop occurred. In Carranza, — Fed.Appx. at -, 2016 WL 4586628, at *1, we noted that the stopped vehicle “was atypical of the heavy duty oil field vehicles that ordinarily comprised the traffic in the area at the time [the defendant] was traveling.”

      . See, e.g., United States v. Aldaco, 168 F.3d 148, 151-52 (5th Cir. 1999) ("[A] road’s reputation as a smuggling route adds to the reasonableness of the agents’ suspicion.”).

      . See United States v. Chavez-Chavez, 205 F.3d 145, 149 (5th Cir. 2000) (opining that the time of the stop contributed to a finding of reasonable suspicion).


author: KING, Circuit Judge:

text:
    Raymond RICHARDSON; Judith Gott; Angela Kolmansberger; James Chaplin; Lucy Gonzales; Donna Lynn Pontello; Bill Early, Plaintiffs-Appellants v. WELLS FARGO BANK, N.A.; Wachovia Mortgage Corporation; Wachovia Corporation; World Mortgage Company, also known as World Mortgage Co.; Wells Fargo & Company; Wells Fargo Home Mortgage, Incorporated, Defendants-Appellees
    No. 15-20711
    United States Court of Appeals, Fifth Circuit.
    Filed October 14, 2016

      Appeal from the United States District Court for the Southern District of Texas
    Reagan William Simpson, Esq., Christian J. Ward, Attorney, Richard Paul Yet-ter, Yetter Coleman, L.L.P., Houston, TX, Diana Elizabeth Marshall, Marshall Law Firm, Houston, TX, John M. Padilla, Esq., Padilla, Rodriguez & de la Garza, L.L.P., Houston, TX, Rhonda Hunter Wills, Wills Law Firm, P.L.L.C., Houston, TX, for Plaintiffs-Appellants.
    Lindbergh Porter, Jr., Littler Mendel-son, P.C., San Francisco, CA, David B. Jordan, Littler Mendelson, P.C., Houston, TX, Daniel L. Thieme, Littler Mendelson, P.C., Seattle, WA, for Defendants-Appel-lees.
    Before KING, SMITH, and COSTA, Circuit Judges.
   KING, Circuit Judge:

Plaintiffs-Appellants claim that Defendants-Appellees violated the Fair Labor Standards Act (“FLSA”) by, inter alia, improperly classifying them as exempt employees and failing to pay appropriate overtime. Plaintiffs-Appellants, however, were also class members of a previously settled opt out class action in California state court that released FLSA claims. The district court concluded that the previous settlement could preclude the instant litigation and, after determining that the previous settlement satisfied due process requirements, granted the Defendants-Ap-pellees’ summary judgment motion. We agree and AFFIRM the judgment of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

This appeal arises from a multi-district litigation involving claims that Defendants-Appellees Wells Fargo Bank, N.A., Wachovia Mortgage Corporation, Wacho-via Corporation, World Mortgage Company, Wells Fargo & Company, and Wells Fargo Home Mortgage, Incorporated (collectively “Wells Fargo”) violated the FLSA by misclassifying home mortgage consultants (“HMCs”) as exempt workers and failing to make appropriate overtime payments. After the district court conditionally certified two collective actions, the majority of those who had opted in settled their claims in an agreement approved by the district court. This settlement, however, excluded 1,516 plaintiffs who had opted into the instant action but were members of a previously settled opt out class action in California state court (“California Plaintiffs”). The California Plaintiffs are at the center of this appeal because the parties dispute the preclusive effect of the settlement from the California action: Lofton et al. v. Wells Fargo, San Francisco Superior Court Case No. CGC-11-509502 (“Lof-ton”).

A. The Lofton Settlement

The origins of the Lofton litigation date back to 2005 when a class action was filed in California state court on behalf of California HMCs alleging, inter alia, thát Wells Fargo misclassified HMCs as exempt employees and failed to pay appropriate overtime. That action was removed to federal court, where over the succeeding years class certification was granted by the district court, vacated by the Ninth Circuit, and as part of a renewed motion for certification on remand, denied by the district court. See In re Wells Fargo Home Mortg. Overtime Pay Litig., 268 F.R.D. 604, 606-09, 614 (N.D. Cal. 2010). During this time, class counsel and Wells Fargo engaged in multiple mediation sessions, ultimately reaching an agreement on behalf of California HMCs during a mediation session in February 2011. In March 2011, the Lofton action was filed in San Francisco Superior Court asserting state causes of action for, inter alia, failing to pay appropriate overtime resulting from the misclas-sification of, HMCs. Notably, the first cause of action relied on alleged violations of the FLSA as grounds for violations of California state law.

On April 27, 2011, the Lofton court granted preliminary approval of a settlement for $19 million. As part of the settlement process, class members were sent notice of the proposed settlement, as well as a claim form and an exclusion form. To receive a portion of the settlement, class members had to fill out and return the claim form. To opt out of the settlement, class members had to fill out and return the exclusion form. The Lofton settlement covered a broader class period than what is alleged in the instant action.

The settlement contained a release of certain claims against Wells Fargo, which the notice sent to class members recounted in similar language in the following paragraph under the heading “Release”:

The Joint Stipulation For Settlement and Release between the parties contains a release of Wells whereby all Class Members (other than those who file Exclusion Forms) fully and finally release and discharge Wells from any and all applicable state and federal law wage-and-hour claims, rights, demands, liabilities, and causes of action of every nature and description, whether known or unknown, arising during the Class Members’ Released Period, including without limitation, statutory, constitutional, contractual or common law claims for wages, damages, unpaid costs, civil or statutory penalties (including without limitation, penalties under the California Labor Code’s Private Attorneys General Act of 2004, as amended in August 2004, California Labor Code sections 2698, 2699.3, and 2699.5), liquidated damages, punitive damages, interest, attorneys’ fees, litigation costs, restitution, or equitable relief, based on the following categories of allegations: (a) any and all claims for the failure to pay any type of overtime or minimum wages; (b) any and all claims for the failure to provide meal and/or rest periods; (c) any and all claims for failure to provide accurate or complete itemized wage statements; (d) any and all claims for failure to timely pay final wages; (e) any and all claims stemming from or based on the alleged misclassification of employees as exempt employees; and (f) and any claims derived from or based upon or related to or arising out of the factual predicate of the Action (collectively, “Class Members’ Released Claims”). The Class Members’ Released Claims include claims meeting the above definition under any and all applicable California or federal laws, statutes, regulations,., and Wage Orders including any existing under the Fair Labor Standards Act of 1938, as amended, and California political subdivisions and municipalities. Notwithstanding the foregoing, nothing in this Settlement releases any claims that cannot be released as a matter of law.

(Emphasis added). On July 27, 2011, the Lofton court granted final approval of the settlement, making the following relevant findings: (1) the settlement “was entered into in good faith and ... its terms [were] fair, reasonable and adequate pursuant to Section 382 of the [California] Code of Civil Procedure”; (2) the settlement was “reached as a result of informed and non-collusive arm’s length negotiations, and ... Plaintiff and Wells have conducted extensive investigation and research, and their attorneys are able to reasonably evaluate their respective positions”; and (3) the mailing of the notice of settlement, claim form, and exclusion form to class members “fully satisfied] due process requirements.” The Lofton court also declared that class members “who have not opted out of the Settlement are bound by the release.” Finally, the Lofton court, “[without affecting the finality of the Judgment,” retained “continuing jurisdiction over the construction, interpretation, implementation, and enforcement of the Settlement ... pursuant to California Rule of Court 8.769(h) and California Code of Civil Procedure section 664.6.” The judgment was not appealed.

B. Other Developments in Lofton

Separate from the above litigation, the Initiative Legal Group (“ILG”) represented about 600 California HMCs in numerous lawsuits against Wells Fargo. In February 2011, ILG also mediated and reached an agreement with Wells Fargo, and Wells Fargo later paid nearly $6 million to ILG. Additionally, ILG was present at the hearing on the preliminary approval of the Lofton settlement. During this hearing, Lofton class counsel informed the court that the claims of ILG’s clients “were essentially settled on the very same day in front of the very same mediator.... Wells has a separate settlement agreement with these folks.” Lofton class counsel continued: “And we’re not going to be contacting anyone that are independently represented by ... these firms-. Indeed the thought of the settlement- was that these gentlemen representing the two firms would have all their individual plaintiffs opt out. If they did not, then they would be covered by the proposed class settlement.”

However, none of the ILG clients opted out of the Lofton settlement. This meant that the ILG clients, who were also members of the Lofton class, not only could receive some portion of the nearly $6 million payment, but also could receive a portion of the Lofton settlement (and were in turn bound by it). After making certain disbursements to its clients, ILG retained nearly $5 million of the $6 million payment as attorneys’ fees.

In September 2012, David Maxon, a class member from the Lofton settlement and former ILG client, moved.to intervene in Lofton and for a temporary restraining order requiring, in part, that ILG deposit the payment it received into a trust account. Maxon argued that the money retained by ILG as attorneys’ fees should have been approved by the Lofton court as class action attorneys’ fees. The court granted Maxon’s motion to intervene and issued a temporary restraining order. On appeal, the California Court of Appeal affirmed the issuance of the temporary restraining order, finding, in part, that “[t]he class members were entitled to have ILG’s claim for fees in variance with their fee agreement, and in such disproportion to the recovery obtained, independently reviewed by the class action court.” Lofton v. Wells Fargo Home Mortg., 230 Cal. App.4th 1050, 179 Cal.Rptr.3d 254, 267, 271 (2014). The California Court of Appeal went on- to say that “[i]f the court determines that Maxon’s allegations are true, it would be within the court’s jurisdiction to review the supplemental fee agreement and to order the ILG attorneys to disgorge some or all of the fees already received.” Id. at 267.

Following remand, multiple motions were filed in the Lofton court, culminating in a hearing in June 2015 to resolve 11 pending matters. The Lofton court determined that “ILG’s claimed fees are properly construed as class action attorneys’ fees” and; therefore, should have been disclosed to the court for approval. Furthermore, the Lofton court held that all of ILG’s claimed fees should instead be disbursed to the class on a pro rata basis in proportion to the amount that each class member previously received. Specifically, the Lofton court found that, “[hjaving concealed its purported fee agreement from the Court, and having tried to appropriate those funds to itself without Court approval, this Court determines that ILG is not entitled to any of the claimed fees.”

In addition to the above rulings, the Lofton court denied a motion to vacate the Lofton judgment for three independent reasons: (1) the motion was untimely; (2) “there [was] no basis for [the] [c]ourt to exercise its jurisdiction to modify or vacate the judgment”; and (3) even if there was a basis, it would be unworkable to vacate the judgment because it would require returning the parties to their positions prior to -the judgment, meaning that the class members would have to pay back the money that they received. The Lofton court also denied a motion to intervene, which was brought by two of the California Plaintiffs in this action, because (1) the motion was untimely; (2) “the proposed intervention would unduly enlarge the issues before the [c]ourt, and [was] not necessary to [the] matter”; and (3) the court refused to issue an advisory opinion regarding the preclusive effects of the Lofton judgment on the instant action.

Several of the issues, including the court’s denial of the motion to vacate, aré currently on appeal in California state court. The California Plaintiffs who had their motion to intervene denied withdrew their appeal.

C. The District Court’s Grant of Summary Judgment

In the instant action, on September 2, 2014, Wells Fargo moved for summary judgment arguing that the California Plaintiffs were precluded by the Lofton settlement because none of the California Plaintiffs had opted out. Of the 1,516 California Plaintiffs, 1,283 filed claim forms in Lofton while the other 238 did not file claim forms (and therefore did not receive any settlement payment). After summary judgment briefing was complete, the district court requested additional briefing and eventually stayed the case for six months because of the ongoing developments in Lofton.

On November 4, 2015, the district court granted Wells Fargo’s motion for summary judgment. First, the district court held that the waiver of FLSA claims as part of the Lofton settlement has res judi-cata effect even though it was accomplished through an opt out class action, finding persuasive the reasoning from Lipnicki v. Meritage Homes Corp., No. 3:10— cv-605, 2014 WL 923524 (S.D. Tex. Feb. 13, 2014). Second, the district court held that there was no due process violation that would preclude the application of res judicata because the interests of the Lof-ton class representative and class counsel were always aligned with the interests of the California Plaintiffs, and any harm from the settlement fund being diluted was cured when the Lofton court required the ILG funds to be disbursed to the class. The district court further found no issues with the notice used in the Lofton settlement. Finally, the district court held that the Lofton settlement was a final judgment as of July 27, 2011, for res judicata purposes, and the issues currently on appeal in California did not make the judgment any less final. The California Plaintiffs timely appealed.

II. STANDARD OF REVIEW

This court reviews “[a] grant of summary judgment ... de novo, applying the same standard on appeal that is applied by the district court.” Tiblier v. Dlabal, 743 F.3d 1004, 1007 (5th Cir. 2014) (quoting Coliseum Square Ass’n, Inc. v. Jackson, 465 F.3d 215, 244 (5th Cir. 2006)). “[I]f the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law,” then summary judgment should be granted. Fed. R. Civ. P. 56(a). “When reviewing a grant of summary judgment, we review the facts drawing all inferences most favorable to the party opposing the motion.” Martin v. Spring Break ’83 Prods., L.L.C., 688 F.3d 247, 250 (5th Cir. 2012).

Res judicata is an affirmative defense, and the defendant bears the burden to prove that defense. Taylor v. Sturgell, 553 U.S. 880, 907, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008). However, a plaintiff asserting that preclusion should not apply because the prior class action settlement violated due process has the burden of proving a due process violation. See Gonzales v. Cassidy, 474 F.2d 67, 75 (5th Cir. 1973) (“[Gjenerally the class will be bound unless the party attacking .the judgment can show that the class was inadequately represented,”).

III. RES JUDICATA

We first turn to the question of whether the Lofton settlement—in which a state court approved an opt out class action settlement that released FLSA claims—can preclude the California Plaintiffs’ FLSA claims at issue in this appeal. “The Full Faith and Credit Act mandates that the ‘judicial proceedings’ of any State ‘shall have the same full faith and credit in every court within the United States .,. as they have by law or usage in the courts of such State ... from which they are taken.’” Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 373, 116 S.Ct. 873, 134 L.Ed.2d 6 (1996) (omissions in original) (quoting 28 U.S.C. § 1738). In other words, a federal court must “give state court judgments the same preclusive effect they would have in another court of the same state.” In re Lease Oil Antitrust Litig. (No. II), 200 F.3d 317, 320 (5th Cir. 2000).

In analyzing whether the Lofton settlement has preclusive effect under the Full Faith and Credit Act, we find instructive the Supreme Court’s two-part framework from Matsushita: (1) whether “state law indicates that the particular claim or issue would be barred from litigation in a court of that state,” and (2) whether the FLSA expressly or impliedly creates an exception to the Full Faith and Credit Act such that we should not give preclusive effect to the judgment of the state court. Matsushita, 516 U.S. at 375, 116 S.Ct. 873.

A. Res Judicata Under California Law

Under California law, res judi-cata “applies if (1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding.” Fed’n of Hillside & Canyon Ass’ns v. City of L.A., 126 Cal.App.4th 1180, 24 Cal.Rptr.3d 543, 557 (2004). “A judicially .approved settlement agreement is considered a final judgment on the.merits.” Howard v. Am. Online Inc., 208 F.3d 741, 748 (9th Cir. 2000) (applying California law). In a class action settlement, absent class members are also bound by the doctrine of res judicata. Villacres v. ABM Indus. Inc., 189 Cal.App.4th 562, 117 Cal.Rptr.3d 398, 422 (2011). Moreover, “[a] judgment pursuant to a class settlement can bar [subsequent] claims based on the allegations underlying the claims in the settled class action. This is true even though the precluded claim was not presented, and could not have been presented, in' the class action itself.” Id. at 418 (second alteration in original) (quoting In re Prudential Ins. Co. of Am. Sales Practice Litig., 261 F.3d 355, 366 (3d Cir. 2001)).

In Lofton, California HMCs asserted causes of action under California law based on, inter alia, the failure to pay overtime resulting from the misclassification of HMCs. Lofton proceeded under California’s rules allowing opt out class actions, and as part of this process, the California Plaintiffs, along with the other class members in Lofton, were sent a notice of the pending settlement and its terms, including a clear release of them FLSA claims. The notice also advised class members that if they did not opt out by a specific date, they would be bound by the settlement terms. Critically, the California Plaintiffs did not opt out. The Lofton court then granted final approval of the settlement, finding that it “was entered in good faith and that its terms [were] fair, reasonable and adequate.” The Lofton court further found that the distribution of the notice of the settlement, claim form, and exclusion form satisfied due process requirements. Under these facts, standard California preclusion rules would bar the FLSA claims raised in the instant action unless the FLSA creates an exception to how preclusion rules apply.

Indeed, the California Plaintiffs do not contend that the Lofton release would not have preclusive effect against them if they now asserted other California wage claims. Rather, the California Plaintiffs contend that FLSA claims released as part of an opt out class action settlement can never be given preclusive effect against absent class members (unless they opt in) because they are not parties, or in privity with a party, with respect to the release of FLSA claims. Under the California Plaintiffs’ reasoning, because an FLSA collective action requires that a party opt in under 29 U.S.C. § 216(b) in order to be bound by the collective action, they never became parties to the release of their FLSA claims given that they did not opt in. Thus, although California preclusion rules may apply to an opt out class action settlement that releases other claims, FLSA claims present an exception to this rule because of § 216(b)’s opt in requirement, according to the California Plaintiffs. In addition, the California Plaintiffs advance two other arguments for why the Lofton settlement should not receive preclusive effect: (1) it is not a .final judgment, because there are pending appeals in California related to the Lofton settlement; and (2) the 238 California Plaintiffs who did not submit claim forms in Lofton cannot be precluded because they received no payment in exchange for the release of their claims.

1. The Lofton Settlement’s Release of FLSA Claims

We reject the California Plaintiffs’ position that, because they did not opt into the Lofton settlement, they did not become parties to the Lofton settlement with respect to releasing their FLSA claims. The California Plaintiffs would not have been parties without opting in had Lofton been an FLSA collective action. But that was not the case. Instead, Lofton asserted state causes of action in an opt out class action, and the California Plaintiffs became parties to the Lofton settlement because they did not opt out. Thus, they became bound by the settlement terms, including the release of their FLSA claims.

The California Plaintiffs’ primary argument is that the FLSA creates a special limitation to the extent that California can apply its preclusion rules to opt out class actions. However, the California Plaintiffs point to no authority showing that California would treat the release of FLSA claims as part of a judicially supervised class action settlement any differently under its preclusion law. It is true, as the California Plaintiffs note, that FLSA claims cannot be asserted using an opt out class action procedure. See, e.g., LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 288 (5th Cir. 1975) (per curiam). But this proposition is inapposite. It takes an additional step to conclude that the FLSA prohibits state courts from supervising and approving an opt out class action settlement that releases FLSA claims, and this step is not supported by § 216(b).

The California Plaintiffs and Wells Fargo point to district court opinions reaching opposite conclusions on whether the FLSA creates an exception to how preclusion rules should apply. Compare Lipnicki, 2014 WL 923524, at *13-16 (holding that a class action settlement using an opt out procedure may bar later FLSA claims), and Kuncl v. Int’l Bus. Mach. Corp., 660 F.Supp.2d 1246, 1252-55 (N.D. Okla. 2009) (same), with Donatti v. Charter Commc’ns, LLC, No. 11-4166, 2012 WL 5207585, at *4-6 (W.D. Mo. Oct. 22, 2012) (holding that a class action settlement that proceeded on an opt out basis could not preclude later FLSA claims). For the reasons discussed above, we disagree with Donatti’s holding that the FLSA created an exception to how preclusion rules would otherwise apply. Rather, we agree with Lipnicki’s reasoning that the FLSA did not create a special exception to the enforceability of judicially approved settlement agreements. 2014 WL 923524, at *14-15. Similar to the prior settlement in Lipnicki, the Lofton settlement “was negotiated by class counsel, who had a duty to represent the interest of all class members, and approved by a court after a fairness hearing.” Id. at *14. The position that an FLSA claim can only be resolved in a state court if it is actually asserted as a cause of action is undermined by the fact that this court has allowed FLSA claims to proceed through arbitration or to be settled privately under certain circumstances. See Carter v. Countrywide Credit Indus., Inc., 362 F.3d 294, 297-98 (5th Cir. 2004) (arbitration); Martin, 688 F.3d at 253-57 (private settlement); see also Lipnicki, 2014 WL 923524, at *14 (“And the idea that there is something unique about the FLSA that requires its rights to be enforced only in a federal court is further undermined by the arbitrability of FLSA claims.”).

The California Plaintiffs also point to a line of unpublished district court cases that reject the release of FLSA claims as part of an opt out class action settlement. See, e.g., Stokes v. Interline Brands, Inc., No. 12-cv-05527, 2014 WL 5826335, at *4 (N.D. Cal. Nov. 10, 2014). We again agree with Lipnicki’s reasoning that “[t]hose courts may well have taken the wise approach in exercising their discretion to determine the proper scope of the settlements in those particular cases, but such decisions do little to help with the problem here: how to apply a broad release in an opt-out class that a court has already approved and upon which parties have relied?” Lipnicki, 2014 WL 923524, at *16. To the extent that these cases can be interpreted for the proposition that the FLSA provides an absolute bar to the release of FLSA claims in a judicially supervised class action settlement using an opt out procedure, we disagree. As discussed above, the FLSA does not create a special exception that prohibits the enforcement of settlement agreements that release FLSA claims as part of an opt out class action.

2. Finality of the Lofton Settlement

The California Plaintiffs also argue that the Lofton settlement is not a final judgment under res judicata principles because there are issues currently on appeal in California state court, including the denial of a motion to vacate. Under California law, “the finality required to invoke the preclusive bar of res judicata is not achieved until an appeal from the trial court judgment has been exhausted or the time to appeal has expired.” Franklin & Franklin v. 7-Eleven Owners for Fair Franchising, 85 Cal.App.4th 1168, 102 Cal. Rptr.2d 770, 774 (2000). The California Plaintiffs reason that the Lofton judgment is not final because an appeal is currently pending that could vacate the judgment. However, the relevant appeal for preclusion purposes would have been an appeal from the judgment entering the Lofton settlement, which did not occur. Thus, the Lofton settlement became a final judgment in 2011 when the time to appeal expired. The possibility that some later action may be taken to vacate or affect that judgment after the time to appeal has expired does not alter its finality. See 7 Witkin, Cal. Proc. Judgm. § 364 (5th ed.. 2008) (“A judgment may be final although subject to future modification.”).

3. The 233 California Plaintiffs Who Did Not File Claim Forms

The 233 California Plaintiffs who did not file claim forms—and therefore, did not receive any portion of the Lofton settlement—cannot avoid the preclusive effect of their failure to opt out of the Lofton settlement simply because they did not receive a payment. The California Plaintiffs’ reliance on Bodle v. TXL Mortgage Corp., 788 F.3d 159 (5th Cir. 2015), is unavailing because that case does not stand for the proposition that a class member in a prior settlement who failed to return a claim form can avoid the preclusive effects of the settlement as if that class member had opted out. The Lofton settlement retains its pre-clusive effect even for the 233 California Plaintiffs who did not receive a payment from the Lofton settlement.

In sum, the FLSA does not create an exception to how California preclusion law would treat the enforcement of an opt out class action settlement, and the Lofton settlement was a final judgment for preclusion purposes. Thus, we conclude that the California Plaintiffs’ FLSA claims in the instant appeal would be precluded by the Lofton settlement under California law.

B. The FLSA Does Not Create an Exception to § 1738

Because California would give preclusive effect to the, Lofton settlement, we turn to the second inquiry under Matsushita: whether the FLSA creates an exception to the Full Faith and Credit Act, 28 U.S.C. § 1738, such that preclusive effect should not be granted here. Similar to the- federal statute at issue in Matsushita, the FLSA does not contain “express language regarding its relationship with § 1738 or the preclusive effect of related state court proceedings.” Matsushita, 516 U.S. at 380, 116 S.Ct. 873. Therefore, we must determine whether the FLSA creates an implied exception to § 1738 because there is an “irreconcilable conflict” between the two statutes, see id. (quoting Kremer v. Chem. Constr. Corp., 456 U.S. 461, 468, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982)), while keeping in mind that the Supreme Court has “seldom, if ever, held that a federal statute impliedly repealed § 1738,” id.

Here, we conclude that the FLSA does not create an implied exception to § 1738. There is no irreconcilable conflict between allowing preclusive effect to a class action settlement that released FLSA claims and the FLSA’s mandate under § 216(b) that FLSA claims cannot be asserted using an opt out class action. The Lofton class action did not assert FLSA claims, and therefore, did not violate § 216(b).

Contrary to the California PMintiffs’ position, Matsushita supports the conclusion that the FLSA does not create an implied exception to § 1738. In Matsushita, the Supreme Court held that, under § 1738, a federal court action was precluded by a state court settlement even though the state court settlement released claims that could only be asserted in federal courts. Id. at 370, 380-86, 116 S.Ct. 873. Similar to the federal statute in Matsushita, § 216(b) does not “evince any intent to prevent litigants in state court—whether suing as individuals or as part of a class—-from voluntarily releasing” FLSA “claims in judicially approved settlements.” See id. at 381, 116 S.Ct. 873. Indeed, § 216(b) even gives state courts concurrent jurisdiction over FLSA claims. The fact that FLSA claims can be released, and therefore precluded, by the settlement of an opt out class action in state court does not conflict with § 216(b)’s requirement that such claims only be asserted on an opt in basis.

IV. DUE PROCESS

The California Plaintiffs also argue that, even if the Lofton settlement could preclude an FLSA- claim, summary judgment is improper because there are issues of fact regarding whether the Lofton settlement satisfied due process. According to the California Plaintiffs, there are two due process issues prohibiting summary judgment: (1) there was inadequate representation because of the improprieties committed by ILG and class counsel’s response; and (2) the notice sent to class members was inadequate. Neither of these is sufficient to find a due process violation.

The general rule is that “a judgment in a class action will bind the absent members of the class,” but there is an exception: “Due process of law would be violated for the judgment in a class suit to be res judicata to the absent members of a class unless the court applying res judicata can conclude that the class was adequately represented in the first suit.” Gonzales v. Cassidy, 474 F.2d 67, 74 (6th Cir. 1973); see also Hunter v. Transamerica Life Ins., 498 Fed.Appx. 430, 435 (5th Cir. 2012) (per curiam). We have previously employed a two-prong inquiry in examining adequate representation on a collateral attack: “(1) Did the trial court in the first suit correctly determine, initially, that the representative would adequately represent the class? and (2) Does it appear, after the termination of the suit, that the class representative adequately protected the interest of the class?” Gonzales, 474 F.2d at 72.

While the first inquiry looks at the trial court’s decision to allow the class action to proceed with the prior named plaintiff as the class representative, the second inquiry “involves a review of the class representative’s conduct of the entire suit—an inquiry which is not required to be made by the trial court but which is appropriate in a collateral attack on the judgment such as we have here.” Id. Regarding the second inquiry, the “primary criterion for determining whether the class representative has adequately represented his class for purpose of res judicata is whether the representative, through qualified counsel, vigorously and tenaciously protected the interests of the class.” Id. at 75.

In Gonzales, the class representative, who had received retroactive relief when none of the other class members did, failed to prosecute an appeal. Id. at 75-76. We found that failing to prosecute the appeal amounted to inadequate representation because the interests of the class representative and the absent class members diverged. See id. Our later cases have highlighted the importance of whether the class representative’s and absent class members’ interests remained aligned and whether they received the same relief. See Kemp v. Birmingham News Co., 608 F.2d 1049, 1054 (5th Cir. 1979) (distinguishing Gonzales because the absent class member in Kemp “received the same relief as all other members of the class”), overruled on other grounds by Nilsen v. City of Moss Point, Miss., 701 F.2d 556, 560 n.4 (5th Cir. 1983) (en banc); cf. Taylor, 553 U.S. at 900, 128 S.Ct. 2161 (“A party’s representation of a nonparty is ‘adequate’ for preclusion purposes only if, at a minimum ... [t]he interests of the nonparty and her representative are aligned_”).

The California Plaintiffs contend that the Lofton settlement fails the second inquiry because the Lofton class counsel did not sufficiently protect the interests of the class by taking steps to recover for the class the $6 million payment to ILG. Under the circumstances here, there is no due process violation. The California Plaintiffs focus much of their argument on the alleged improprieties committed by ILG and the steps that they believe the Lofton class counsel should have taken in response. However, ILG was not th'e class counsel, and there is no evidence or allegation that the Lofton class representative or class counsel received a benefit from ILG’s actions separate from the rest of the class.

At most, the evidence could be interpreted as showing that the Lofton class counsel should have done more to notify the Lofton court during the settlement process that ILG’s clients were not opting out of the settlement and instead submitting claim forms. By doing so and advocating that the $6 million should be disbursed to the class, Lofton class counsel may have been able to recover a portion, if not all, of the $6 million for the class as part of the settlement. However, under the circumstances of this case, this - does not establish a due process violation for inadequate representation because the interests of the class representative and absent class members remained aligned throughout the litigation. To the extent that the California Plaintiffs suggest that this court should review the Lofton class counsel’s decisions—even though class counsel’s and the class representative’s interests did not diverge from those of the other class members—to determine whether class counsel may have been able to recover some of the $6 million in the settlement process for the class had he taken a different action, we decline to do so on a collateral review here. The issue of whether the $6 million payment to ILG should be disbursed to the class is already being litigated and determined (on appeal now) by California courts.

Second, the notice sent to Lofton class members was not constitutionally deficient. The notice specifically referenced the release of any claims existing under the FLSA. Contrary to the California Plaintiffs’ arguments, the release section in the notice was not unreasonable “legalese boilerplate” or “cryptic.” Rather, the notice was clear and sufficient to apprise class members that the settlement included the release of FLSA claims. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985) (“The notice must be the best practicable, ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ The notice should describe the action and the plaintiffs’ rights in it.” (citations omitted) (quoting Mullane v. Central Hanover Bank & Tr. Co., 339 U.S. 306, 314-15, 70 S.Ct. 652, 94 L.Ed. 865 (1950))). Furthermore, we reject the California Plaintiffs’ argument that the notice was constitutionally deficient merely because the accompanying claim form did not repeat the released claims.

Y. CONCLUSION

For the foregoing reasons, the judgment of the district court is AFFIRMED.

      . One collective consisted of Wells Fargo employees and one collective consisted of Wa-chovia employees. On or around the end of 2008, Wachovia merged with Wells Fargo. The complaint alleges that Wachovia similarly misclassified its ■ mortgage consultants ("MCs”), and after the merger, Wachovia stopped employing MCs around the end of 2009.

      . ' The Lofton 1 class included ‘ Wells Fargo HMCs in California who worked at any time between February 10, 2001, and March 26, 2011. Wells Fargo reclassified its California HMCs as overtime eligible on March 27, 2011.

      . The parties dispute whether this agreement was tentative.

      . The California Plaintiffs do not directly address Wells Fargo’s citation to Gonzales for the proposition that the party attacking the prior judgment has the burden of establishing a due process violation. While this court is aware that the Tenth Circuit has stated that the party asserting claim preclusion as a defense bears the burden of establishing that there was adequate representation in the pri- or case, Pelt v. Utah, 539 F.3d 1271, 1283-84 (10th Cir. 2008), we do not agree that the Supreme Court’s decision in Taylor v. Sturgell, 553 U.S. 880, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008), requires the burden to be placed on the party asserting claim preclusion, cf. William B. Rubenstein, Newberg on Class Actions § 18:38 (5th ed. 2016) (describing the Tenth .Circuit’s decision in Pelt as relying "on a false analogy”).

      . It appears not to be completely clear under California law whether a class action settlement—having been approved by a court and releasing claims that could not have been asserted in the underlying action—would be given preclusive effect because of res judicata principles or contract principles, or both. Neither party briefed the argument that contract principles apply to preclude the instant litigation. Compare Villacres, 117 Cal.Rptr.3d at 585-91 (interpreting a settlement release as part of a res judicata analysis), with Villacres, 117 Cal. Rptr. 3d at 597 (Chaney, J., dissenting) (“[T]he interpretation of a release or settlement agreement is governed by the same principles applicable to any other contractual agreement.” (alteration in original) (quoting Gen. Motors Corp. v. Superior Court, 12 Cal.App.4th 435, 15 Cal.Rptr.2d 622, 625 (1993))), and Howard, 208 F.3d at 747-48 (discussing the preclusive effect of a settlement release in terms of contract principles and res judicata as two alternative grounds). In any event, the conclusion that we reach below that California law would preclude the FLSA claims at issue here would not be changed regardless of whether a contract theory or res judicata theory is applied.

      . California’s opt out class actions are similar to those under Federal Rule of Civil Procedure 23. See generally Cal. Civ, Proc. Code § 382; Cal. Rules of Court, rules 3.760-3.771. In addition to these rules, when there is an "absence of California authority, California courts may look to the Federal Rules of Civil Procedure ... and to the federal cases interpreting them.” Rutter Group, Cal. Prac. Guide Civ. P. Before Trial Ch. I4-B, 14:11.20.

      . Section 216(b) provides, in part, the following;
      An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought....
      29 U.S.C. § 216(b).

      . We note that a California appellate court reached the opposite conclusion, holding that - a settlement could validly release FLSA claims as part of an opt out class action. Keeler v. AIG Domestic Claims, Inc., No. B226691, 2011 WL 6318485, at *13-15 (Cal. Ct. App. Dec. 19, 2011) (unpublished). However, Keeler is unpublished, and therefore, it could not be relied on in California for determining whether California would treat the release of.FLSA claims as valid. See Cal. Rules of Court, rule 8.1115(a). That being said, we reach the same conclusion.

      . The California Plaintiffs also contend that the release of their FLSA claims was not sufficiently scrutinized by the Lofton court for fairness and that this issue should prevent preclusive effect. However, the Lofton court specifically found that the settlement was "fair, reasonable and adequate,” and the settlement contained a clear release of FLSA claims. To the extent that the California Plaintiffs are stating that this court should reconsider the merits of the Lofton court’s deterrrji-nation that the settlement was fair, whether because of a supposed due process or FLSA requirement, we do not agree that a court on collateral review should do so', Bodte and Martin are inapposite because those cases involved the review of private settlements, not the collateral review of a judicially approved .class action settlement. See Bodie, 788 F.3d at 162-65; Martin, 688 F.3d at 253-57. In contrast, the Lofton settlement included an explicit release of FLSA claims and was judicially supervised and approved as fair.

      . The district court “agree[d] with the plaintiffs that the interests of the class could have been better served if class counsel had alerted the court to the fact the ILG class members never opted out as soon as they learned about it” and that it appeared from a court hearing transcript that "class counsel could have more zealously advocated with regard to the class’s interest in the ILG funds.” However, the district court also noted that Wells Fargo had provided the court with an affidavit from the Lofton class counsel explaining his actions.


author: STEPHEN A. HIGGINSON, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Van Allen SMITH, Defendant-Appellant
    No. 15-11185
    United States Court of Appeals, Fifth Circuit.
    Filed October 14, 2016
    Emily Baker Falconer, James Wesley Hendrix, Assistant U.S. Attorneys, U.S. Attorney’s Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.
    Brandon Elliott Beck, Federal Public Defender’s Office, Northern District of Texas, Lubbock, TX, Christopher Allen Curtis, Assistant Federal Public Defender, Jessica Graf, Federal Public Defender’s Office, Northern District of Texas, Fort Worth, TX, Jason Douglas Hawkins, Federal Public Defender, Federal Public Defender’s Office, Northern District of Texas, Dallas, TX, for Defendant-Appellant.
    Before HIGGINBOTHAM, ELROD, and HIGGINSON, Circuit Judges.
   STEPHEN A. HIGGINSON, Circuit Judge:

Van Allen Smith was serving a 60-month term of supervised release when he physically assaulted his ex-girlfriend. An assistant public defender represented Smith in the resulting revocation proceeding. On the morning of his revocation hearing, Smith asked the district court to continue the hearing so that he could obtain private counsel—specifically, an attorney he met only-the day before and had not yet hired. Believing that Smith’s request was merely a delay tactic, the district court denied his motion to continue and ultimately revoked his term of supervised release, sending Smith back to prison for 50 months. Because the district court did not clearly abuse its discretion in denying the continuance, we affirm.

I.

On August 1, 2014, Smith began a 60-month term of supervised release as part of his sentence for a 2007 drug trafficking conviction. On July 28, 2015, Smith assaulted his ex-girlfriend; video footage shows Smith chasing her as she tries to run away, dragging her along the ground, and covering her nose and mouth with his hands. The victim screams for help throughout their encounter.

Smith was later charged with violating the conditions of his supervised release by committing another offense—“Assault/Family Violence/Impede Breath-Circulation” under Texas law. Represented by an assistant public defender, Smith initially appeared before the Northern District of Texas court on Noyember 10, 2015. At his initial appearance, the court notified Smith of his detention hearing, scheduled for November 13, and his revocation hearing, scheduled for November 19. On November 13, the court ordered Smith detained until the revocation hearing six days later.

On the morning of Smith’s revocation hearing, a private criminal defense attorney notified the assistant public defender that Smith’s family wanted to hire him as Smith’s counsel. At the revocation hearing, the assistant public defender asked the court to continue the hearing so that Smith could formally retain private counsel, The Government opposed any continuance, emphasizing that three witnesses were present to testify—one of whom was the victim, reluctantly testifying under subpoena. According to the Government, the victim had also received “unwelcome contact from [Smith’s] family and friends regarding the hearing.”

In support of his motion to continue, Smith explained that he met a new attorney in jail the previous day upon another inmate’s recommendation. Smith said he was dissatisfied with his existing counsel because she had argued with his mother and made a mistake in an earlier proceeding, prompting the presiding judge to correct her. When the court described the idea of hiring a new attorney as “kind of ,.. happenstance,” Smith agreed, but emphasized that he had only a week to prepare for his revocation hearing. The court noted that it was unclear from Smith’s “on the fly” conversation with another attorney whether he had actually hired new counsel or could even afford to do so. Believing Smith’s representations were “an 11th hour tactic” to delay his revocation hearing, the court denied his motion to continue. The district court ultimately found that Smith violated the conditions of his supervised release, revoked his term of supervised release, and sentenced him to 50-months imprisonment.

Smith now appeals the district court’s judgment. Smith first argues that a criminal defendant is entitled to his counsel of choice during revocation proceedings. Smith next argues that the district court abused its discretion in refusing to continue his revocation hearing so that he could retain his desired counsel.

II.

We review the denial of a criminal defendant’s motion to continue to obtain counsel of choice for “clear abuse of discretion.” United States v. Silva, 611 F.2d 78, 79 (5th Cir. 1980).

III.

Without deciding whether a criminal defendant has a right to counsel of choice at a revocation hearing, we conclude that, even if Smith did have that right, the district court did not clearly abuse its discretion by denying his motion to continue.

Rule 32.1 of the Federal Rules of Criminal Procedure requires the court to inform a defendant facing potential revocation of his right to retain counsel or to request appointed counsel if he cannot obtain counsel on his own. Fed. R. Crim. P. 32.1(b)(2)(D). Notably, because a revocation proceeding is “not a part of the criminal prosecution,” see Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), “the full panoply of rights due a defendant during the criminal prosecution does not apply to revocation,” United States v. Hodges, 460 F.3d 646, 651 (5th Cir. 2006) (alteration and ellipsis omitted) (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)).

Even if a defendant’s right to counsel at revocation were coextensive with the right to counsel guaranteed by the Sixth Amendment, a defendant is not absolutely entitled to his counsel of choice. See Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) (“[T]he essential aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be x’epresented by the lawyer whom he prefers.”). In the Sixth Amendment context, “last minute requests” to retain new counsel are not only “disfavored,” United States v. Silva, 611 F.2d 78, 79 (5th Cir. 1980), but also routinely denied, see, e.g., Newton v. Dretke, 371 F.3d 250, 256 (5th Cir. 2004) (collecting cases).

Here, Smith moved to continue his revocation hearing on the morning of the proceeding. His stated reason was a desire to retain private counsel because he was unsatisfied with his court-appointed public defender after she misspoke at an earlier hearing and argued with his mother. But Smith had not yet retained new counsel; his family only “thought of retaining” another attorney on his behalf. Smith conceded that the “idea” of retaining another attorney was “kind of ... happenstance.” The Government, by contrast, was ready to proceed. Three witnesses were present to testify, including the victim, who had to be subpoenaed and can be seen in the video footage of the assault to be fearful of Smith. On these facts, the district court did not clearly abuse its discretion by denying the continuance.

We therefore AFFIRM the judgment of the district court.