Opinion
Case No. 99-CR-89 S.
November 1, 1999
REPORT RECOMMENDATION
The defendant, Jose Luis Renteria-Pedraza, has been indicted on one count of possession of methamphetamine ( 21 U.S.C. § 841(a)(1)) (File Entry # 10). The defendant made a motion to suppress the evidence alleging a violation of defendant's Fourth Amendment rights and that statements taken from him were taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966) (File Entry # 16).
A hearing was held on the motion to suppress (File Entry # 26). The case has been referred to the magistrate judge under 28 U.S.C. § 636(b)(1)(B). This report and recommendation is submitted pursuant to the reference on the defendant's motion to suppress.
Evidence
At hearing, Officer Curtis Dean Shields was sworn and testified. It was agreed that Officer Shields would testify that at the time of the stop of defendant's vehicle, it was speeding (Tr. pp. 6-7). The defendant had no evidence to refute the officer's testimony. Shields is a Utah Highway Patrol Officer (Tr. p. 7) stationed out of Fillmore, Utah. He has had special training in drug interdiction (Tr. p. 8).
On February 26, 1999 he was on duty near the Millard-Beaver County line on I-15. He observed a Maroon 1990 Astro van going northbound. He made a visual estimate that the vehicle was speeding. The vehicle was clocked at 82 mph in a 75 mph zone. The vehicle also entered the emergency lane, crossing from the lane of travel, three times, without signaling (Tr. p. 9). A traffic stop was instigated, the defendant, Jose Luis Renteria-Pedraza was the vehicle driver (Id.). No other person was in the vehicle (Tr. p. 10).
Officer Shields approached the driver and spoke to defendant in English (Id.). The officer asked defendant if he was getting tired and told him what the officer had observed. Defendant said he had been driving since California. There was fast food and drink container debris in the vehicle (Tr. p. 11). The officer inquired as to the purpose of the trip and defendant said he was taking clothing to Park City. There were garbage sacks in the vehicle that could contain clothing (Tr. p;. 11-12). Defendant spoke in English. The officer asked for a driver's license and registration. The defendant produced a bill of sale for the vehicle but not a permanent registration. Defendant produced a California license (Tr. pp. 12-13). The defendant appeared to fully understand what was said to him (Tr. p. 13).
The vehicle had a very heavy odor of air fresheners from the steering wheel and rear view mirror. A bottle of spray was on the vehicle floor (Tr. pp. 13-14). Fresheners are often used in an effort to mask narcotics (Tr. p. 14). The officer also noted the vehicle had several panel screws that were not original to the vehicle, suggesting panels had been taken off and put back (Tr. p. 14). The vehicle had a temporary tag on the back. The purchase agreement defendant provided was dated January 7, 1999. Exhibit 2 is the contract of sale for the vehicle which defendant produced (Tr. pp. 15-16).
The temporary Utah tag on the vehicle was to expire on February 26th, the day the vehicle was stopped (Tr. p. 17). Normally a temporary tag in Utah is good only for thirty days. The officer studied the documentation in his vehicle and had a conversation with defendant to see if he had any further registration. He had none (Tr. p. 18). The officer believed it unusual to travel to California and back to Park City for about seventy pounds of clothing that could be more cheaply shipped. The odometer registered a 7000 mile increase since the date the vehicle was purchased (Tr. pp. 19-20). Based on the totality of the circumstances, the officer believed defendant might be transporting drugs (Tr. p. 21).
Exhibit 3 is the temporary permit for the vehicle issued by the State of Utah (Tr. pp. 21-22). The permit was not removed until after drugs had been found in the vehicle. The permit had been altered to extend it from February 6th to the 26th (Tr. p. 23). The officer determined to write an equipment violation so defendant could repair the problem with the vehicle windshield and warn him of the speed and lane travel (Tr. p. 24). The officer gave a copy of the citation to the defendant with a mail-in-bail form. The officer returned all the documentation to the defendant (license and bill of sale) (Tr. p. 24).
The officer then told defendant he had some questions about his travel and would like to look in the vehicle (Id.). A consent to search form was given to the defendant. It was in both English and Spanish (Tr. p. 25). The officer asked defendant to read through the consent form and if he agreed with it to sign it. The defendant appeared to read the document and showed no signs of confusion. Defendant was about 25 years old and not under the influence of drugs (Tr. p. 26). No threats or promises were made and no claim to search made by the officer. The defendant then signed the consent form (Tr. p. 27). The officer did not point out where defendant should sign and he signed the bottom of the Spanish form (Tr. p. 28, Exhibit 2). The consent was to search the vehicle (Tr. pp. 28-29).
The officer asked defendant to leave the vehicle, a Terry frisk was conducted, nothing was found (Tr. p. 30). The defendant was moved towards a barrow pit for his safety and the officer commenced a search of the vehicle (Tr. p. 31). At no time did defendant revoke or limit his consent to search (Tr. pp. 31-32). The officer started a systematic search of the vehicle. In the area of the rear doors the officer found drugs. This was at an area where a speaker was located and had a dusty hand print on it with aftermarket screws. Two packages of drugs were found behind the speaker (Tr. p. 33). The defendant was arrested and handcuffed.
Terry v. Ohio, 392 U.S. 1 (1968).
The defendant was transported to Fillmore, Utah. An interview with defendant was arranged at 15:30 hours. He was not handcuffed (Tr. p. 34). A Miranda warning was given to the defendant, in Spanish, by Sotero Alcala (Tr. p. 35). There did not appear to be any confusion or misunderstanding of what was said. No promise or force was used. Agent John Ellis and Sotero Alcala were present (Tr. p. 36). Defendant understood and responded in English, without difficulty at the scene of the stop (Tr. p. 37). At one point, Officer Shields did request a Spanish speaking officer (Tr. p. 38). The expiration date stated on the temporary permit, on the vehicle, was the date on which the officer stopped the defendant (Tr. p. 39).
After the officer stopped the vehicle he made a warrant and criminal history check on defendant and the status of his license (Tr. p. 40). Defendant had no Utah license (Tr. p. 40). The officer went back to defendant's vehicle with a citation filled out (Id.). He gave the citation and documents to defendant and told him he was free to leave (Tr. pp. 41-42). Then the officer requested consent to search. The officer provided the consent to search form on a clipboard and gave it to defendant who was seated in his vehicle. The officer asked defendant to read through the form and if he agreed with it, to sign it (Tr. p. 42). Defendant signed the form, the Spanish part, and signed it at the bottom (Tr. pp. 43, p. 1, Exhibit #1). The officer may have read a portion of the Spanish part to defendant, phonetically, just to call defendant's attention to the Spanish part of the form (Tr. pp. 43-44). After defendant signed the consent form the officer had him exit the vehicle and remain about fifty feet from the vehicle during the search. No effort was made to expand the scope of the search (Tr. p. 45). No other dialogue occurred. The search began at 13:06, the drugs were discovered at 13:31. The consent form is signed at 13:10. The times discrepancy is from the tape time as against the officer's watch (Tr. p. 46). The search did not begin until the consent was obtained from the defendant (Tr. pp. 46-47). Exhibit A is the speaker cover in the area where the drugs were found (Tr. pp. 48-49). An equipment violation was written for a cracked windshield (Tr. p. 50).
The video/audio equipment had some problems during the stop (Tr. pp. 52-53). The request for the Spanish speaking officer was to discuss technicalities about possible cooperation (Tr. p. 54).
The defendant and the government stipulated that during the post arrest interview of the defendant, a Spanish speaking officer, Sotero Alcala, was present to translate what the interviewing agent, Ellis, and defendant said (Tr. pp. 59-60).
John Ellis, Bureau of Narcotic Enforcement, Utah Department of Public Safety was called following defendant's arrest to interview him (Tr. pp. 60-62). The interview took place in the Millard County Sheriff's Office. Agent Ellis, the defendant, and Officer Sotero Alcala were present. The defendant was not handcuffed. Sotero read the defendant his Miranda rights in Spanish (Id.). The warning was proper and in compliance with Miranda (Tr. p. 63). Defendant was asked if he understood and he said "yes." Defendant had no questions about his rights and expressed no confusion (Tr. pp. 63-64). No threats or force was used. No promises were made, however, there was some discussion at some point of consideration for defendant's cooperation (Tr. p. 65). This was after defendant was given the preinterrogation warning. Ellis told defendant that Ellis would like him to answer questions and if he did not want to he did not have to (Tr. p. 65).
The defendant did not ever say yes or no specifically to waiving his rights. However after acknowledging his rights he made a statement (Tr. pp. 66-68). There was mention of help for cooperation that could have occurred during the interrogation (Tr. p. 68). That defendant's cooperation could result in Ellis helping him was interspersed throughout the conversation (Tr. p. 68). The specifics Ellis did not recall, but defendant was told if he agreed to participate in a controlled delivery the charges would be kept on a state level (Tr. p. 69). Defendant was told that Ellis required complete honesty and defendant would be in trouble if he lied (Tr. p. 69). No promise was made before defendant made a statement about the drugs (Tr. p. 70).
Sotero Alcala is an employee of the Millard County Sheriff's Office (Tr. p. 71). He did the translation during the interview of defendant (Tr. pp. 71-72). He made no attempt to communicate with defendant in English and he did not appear to understand English. The interrogator would ask the question in English and Alcala would translate in Spanish and then the response back to English. The interview lasted about an hour and a half (Tr. p. 72). The defendant was given a Miranda warning from a card (Tr. pp. 73-76). Defendant indicated he understood his rights and was available to answer questions and was willing to answer (Tr. p. 74).
The audio/video tape of the stop reflects that defendant's vehicle was stopped at 12:38 p.m. The officer had observed defendant drift to the emergency lane. The officer observed there was no plate but a temporary sticker on the vehicle. The officer went to the passenger side of the vehicle and asked the driver if he was getting tired. The officer asked for a driver's license and asked defendant where he was going. He replied, "Park City." Defendant said he had been driving from California, was living in Park City and had gone to California to get clothing or "ropa." The officer then returned to his vehicle and asked for a Triple I and NCIC records check, including insurance. The information from Utah was negative at 12:43.
Spanish for clothing.
The officer returned to the defendant's vehicle at 12:46 and asked for a purchase agreement and registration information. The officer returned, with papers, to his patrol vehicle at 12:52. At this point, the audio on the officer was not working. At 12:54 the officer went back to defendant's vehicle with papers and a clipboard and is seen to be talking to defendant. Papers were given to defendant and conversation took place. At 13:06 defendant got out of the vehicle and the officer directed him to stand off the road a distance away from the vehicle. At 13:07 the officer commenced to search the vehicle. The audio began working. The officer observed a heavy odor of air conditioners. At 13:14 a backup officer arrived. The officer opened the rear doors and at 13:23 noted the speaker was not hooked up. At 13:31 the officer found packages, and got a tool to retrieve the items. The defendant was placed under arrest for possession of narcotics. The defendant stated he did not understand.
Exhibit 1, the consent to search form, is in English and Spanish. The Spanish part is filled out. The authority given in the document is for Officer Shields to search the vehicle, luggage, containers, and the contents of all. No limitation is placed on the authority to search.
Based in the above evidence the court enters the following:
Findings of Fact
1. On February 26, 1999 Officer Curtis Dean Shields of the Utah Highway Patrol was doing traffic patrol on I-15 the vicinity of the Millard/Beaver County, Utah line. He observed a Maroon Astro van going north which appeared to be speeding. The vehicle was clocked going 82 mph in a 75 mph zone. The vehicle also drifted into the emergency lane three times without signaling and the officer believed the driver might be sleepy or intoxicated.
2. The officer stopped the vehicle. At that time, the officer observed the vehicle had no plate and had a temporary sticker that was due to expire that day. In fact, the sticker was forged and had expired but the officer did not know that at the time. The vehicle also had a cracked windshield the full length of the windshield which is a violation of Utah law.
3. The officer approached the defendant's vehicle, observed the temporary permit on the vehicle and went to the passenger side of the vehicle. Defendant was the only occupant. The officer asked defendant if he was sleepy and asked about his travel. Defendant said he had been driving full time from California and was taking clothes to Park City, Utah. The officer detected a strong odor of air freshener in the vehicle. The officer asked for a license and registration materials and defendant provided a California licence but had no registration on the vehicle. He did have a vehicle sales contract. The officer went back to his vehicle to determine the validity of the license and a criminal history check. The license was proper and there were no outstanding warrants. The officer was still concerned about a registration as a temporary permit in Utah is usually valid for only thirty days and the documentation provided by defendant indicated the vehicle had been purchased January 7, 1999. The permit would have expired February 6, 1999. The permit bore the expiration date of February 26, 1999.
4. The officer approached defendant in his vehicle a number of times to get additional information about the vehicle and the officer had defendant's license and vehicle papers. The officer was making inquiry to determine if the vehicle could be lawfully operated. He decided to write out a citation for a broken windshield and issue a warning on the speeding and lane change. A citation was written out and the officer gave the citation and a mail-in form to defendant along with his papers and license. The officer advised defendant he was free to leave. The defendant spoke and understood enough English that he knew what the officer was asking and saying and could communicate with and understand the officer.
5. The officer then told defendant that the officer had some questions about defendant's travel and would like to look in his vehicle. The officer gave the defendant the Spanish/English consent to search form and asked him to read through it and if he agreed with it to sign it. The defendant appeared to read the document and indicated no confusion. The Spanish part was filled out, the defendant was not threatened or coerced in any way and he voluntarily signed the consent to search form at the bottom. The consent was to search the vehicle. No restrictions were imposed on the officer's authority to search.
6. The officer had defendant exit the vehicle and stand away, about 50 feet, off the side of the road. The officer searched the driver's area then the rear of the vehicle. There was a strong odor of air freshener which the officer thought might be a mask for drugs. The vehicle had a disconnected speaker in the rear which had aftermarket screws holding it in place and a dusty hand print. The officer could see something, he removed the speaker cover and found two packages of drugs behind the speaker. The defendant was then handcuffed and arrested.
7. Subsequent to his arrest, the defendant was taken to the Millard County Sheriff's office at Fillmore. Agent John Ellis of the Utah Department of Public Safety was contacted and went to Fillmore to interview the defendant. Sotero Alcala, a Millard County Sheriff's employee, acted as an interpreter. He is fluent in Spanish. Officer Dean Shields was also present. Defendant was given a complete Miranda warning in Spanish. Defendant acknowledged he understood his rights. He had no questions and did not manifest any confusion. Defendant then made an incriminating statement. No promise or threat was made to induce the defendant's statement. Agent Ellis would ask a question in English. Alcala would translate it to defendant who responded in Spanish and Alcala would translate the response in English.
8. Subsequent to defendant making an incriminating statement, Agent Ellis sought to induce defendant to cooperate in a delivery of the drugs and Ellis told defendant that Ellis could help defendant with his charges if he would cooperate.
Discussion
The defendant's initial motion to suppress (File Entry # 16) raised various challenges to the police action in this case.
The Stop
There is no evidence to show that the stop of defendant's vehicle was other than lawful. Officer Shields clocked the vehicle seven miles an hour over the speed limit, a violation of Utah law, Utah Code Ann. § 41-6-46. The vehicle crossed into the emergency lane three times without signaling, a violation of Utah law, Utah Code Ann. § 41-6-69(1)(b). See also § 41-6-61(1). Further, it appeared to the officer that defendant may have been impaired or sleepy and a danger to himself or others. United States v. Ozbirn, ___ F.3d ___, 1999 WL 641875 (10th Cir. 1999); United States v. Lee, 73 F.3d 1034, 1038 (10th Cir. 1996); United States v. Dirden, 38 F.3d 1131,1140 (10th Cir. 1994); United States v. Cheatwood, 575 F.2d 821, 826 (10th Cir. 1978). In this case, the only evidence is that defendant was speeding and drifting. This provided reasonable suspicion and probable cause to stop the vehicle, which was lawful. Whren v. United States, 517 U.S. 806, 810 (1996); United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc) (reasonable suspicion of law violation justifies stop).
Detention
Defendant suggests his detention, following the stop, was illegal. In United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir. 1994), the court observed:
An officer conducting a routine traffic stop may request a driver's license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning.
See also United States v. Walker, 941 F.2d 1086 (10th Cir. 1991). An officer may, in the course of running a computer check, obtain a Triple I criminal history on the driver. United States v. Woods, 106 F.3d 942 (10th Cir. 1997); United States v. McRae, 81 F.3d 1528, 1535, n. 6 (10th Cir. 1996); United States v. Recalde, 761 F.2d 1448, 1455 (10th Cir. 1985) (NCIC check concurrently with traffic stop is proper). Thus, both an National Crime Information Center (NCIC) check and Triple I computer check are proper. Id. Routine questions about travel plans may be asked without exceeding the scope of a traffic stop. United States v. Hernandez, 93 F.3d 1493, 1499 (10th Cir. 1996); United States v. Gonzalez-Lerma, supra, p. 1484; United States v. Turner, 928 F.2d 956, 958-59 (10th Cir. 1991).
In this case, the officer's actions were all appropriate for the stop. He made inquiry about defendant's condition where he was coming from and where he was going. He ran computer checks. He asked for a license and verified it. No registration was produced and the bill of sale for the vehicle indicated that the period may have expired for a temporary permit. The temporary permit is normally issued for thirty days in Utah and that time had expired.
After the officer completed inquiry as to the vehicle, he wrote out a citation and warning to the defendant and returned to defendant's vehicle. He returned the defendant's driver's license and other papers received from him, gave him the citation and mail-in form, and advised the defendant that he was free to leave. Giving such advice is more than what the Supreme Court has required before asking a defendant for consent to search. Ohio v. Robinette, 519 U.S. 33 (1996); United States v. Gordon, 173 F.3d 761, 765 (10th Cir. 1999).
When the officer returned the license, citation, and other papers to the defendant, the relationship was no longer one of detention, but it returned to a police citizen encounter and defendant was not seized within the meaning of the Fourth Amendment. In United States v. Werking, 915 F.2d 1404, 1408 (10th Cir. 1990), the court said:
"The record indicates that Werking was free to proceed after Dyer returned his papers. As the district court pointed out in its findings, Dyer testified under oath that Werking then was free to leave. There was no evidence that Werking was constrained by an overbearing show of authority. The only show of authority in this case was the fact that Dyer was a uniformed police officer. This fact alone, however, is insufficient to prove Werking was "seized" within the meaning of the fourth amendment."
United States v. Deases, 918 F.2d 118, 122 (10th Cir. 1990) (license and papers returned to driver, no excessive detention); United States v. Turner, 928 F.2d 956, 959 (10th Cir. 1991) (license returned, no improper detention); United States v. McKneely, 6 F.3d 1447, 1451 (10th Cir. 1993),
"Thus once the officer driver's license and registration in a routine traffic stop, questioning about drugs and weapons or a request for voluntary consent to search may be `an ordinary consensual encounter between a private citizen and a law enforcement official'" so long as a reasonable person under the circumstances would believe he was free to leave or disregard the officer's request for information."
United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir. 1994) (no consent, license not returned. "Bright line rule."); United States v. Lambert, 46 F.3d 1064, 1068 (10th Cir. 1995) (no consensual encounter when license not returned); United States v. Lee, 73 F.3d 1034 (10th Cir. 1996) (same); United States v. Gregory, 79 F.3d 973, 979 (10th Cir. 1996). See also discussion United States v. Mendez, 118 F.3d 1426 (10th Cir. 1997).
Recently, the Tenth Circuit Court of Appeals focused on this same situation. In United States v. Hernandez, 93 F.3d 1493 (10th Cir. 1996) the defendant's vehicle was stopped by a highway patrol trooper. A citation was issued and a license check made. The license and registration were returned to the driver and he was told he could go. The officer then asked if he could ask more questions and defendant said "yes." The officer asked several questions including a query about contraband. A request to search the vehicle was made and consent given. A search revealed drugs. The Court of Appeals in response to a challenge of illegal detention said:
If a license and registration check after a routine traffic stop reveals no reason to detain the driver, he or she must be permitted to proceed unless the officer has reasonable articulable suspicion of other crimes or the driver voluntarily consents to further questioning. See United States v. Sandoval, 29 F.3d 537, 539-40 (10th Cir. 1994).
The Court went on to observe:
A traffic stop may become a consensual encounter if the officer returns the license and registration and asks questions without further constraining the driver by an overbearing show of authority. See United States v. Werking, 915 F.2d 1404, 1408-09 (10th Cir. 1990). A consensual encounter is the voluntary cooperation of a private citizen in response to non-coercive questioning by a law enforcement officer. If the individual is free to leave at any time during the encounter, he or she is not seized under the Fourth Amendment. Whether an encounter is a detention or a consensual encounter depends on whether the police conduct would have conveyed to a reasonable person that he or she was not free to decline the officer's requests or otherwise terminate the encounter. Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 2388-89, 115 L.Ed.2d 389 (1991); United States v. Little, 60 F.3d 708, 711 (10th Cir. 1995). A person is seized only when that person has an objective reason to believe he or she is not free to end the conversation with the officer and proceed on his or her way. Werking, 915 F.2d at 1408.
Id.
The Court said the standard for assessing whether there is a detention or seizure within the Fourth Amendment is an objective one and the subjective belief of the defendant is not determinative. Id. p. 1499. The Court also noted there was no evidence that the officer used a commanding voice Id. p. 1499, or touched the defendant. The Court said:
Asking questions which may elicit incriminating answers is irrelevant to a determination of whether an encounter was consensual, although the manner in which the questions are asked is relevant; "accusatory, persistent, and intrusive" questioning may turn an otherwise voluntary encounter into a coercive one if it conveys the message that compliance is required. Little, 60 F.3d at 712. See Florida v. Bostick, 501 U.S. at 437, 111 S.Ct. at 2387-88. Here, Flowers testified that he asked Hernandez only a few questions. He asked where Hernandez had been, where he was going, the reason for the trip, whether his passenger was his wife, his wife's name, and whether there was any luggage in the car before asking if there was any contraband in the car and if he could search the car. There was no evidence that Flowers' manner was accusatory, persistent, and intrusive.93 F.3d at 1499.
In United States v. Anderson, 114 F.3d 1059 (10th Cir. 1997) the court held that after an officer returned a driver's license and registration and told the driver he could return to his vehicle, the encounter became consensual, even though the officer did not expressly tell the driver he was free to leave. See also United States v. Patten, 183 F.3d 1190 (10th Cir. 1999). Consequently, there was no illegal detention of the defendant in this case.
Consent To Search
Defendant's initial motion contended the search authorization given to Officer Shields by defendant was not voluntary. The facts show that after Officer Shields returned the defendant's papers and advised him he was free to leave, Shields told the defendant he had questions about his travel and would like to look in his vehicle. The officer then gave defendant a consent to search form in Spanish and told defendant to read the document. Defendant read the consent to search form which advised him of his right to refuse to consent or to sign the form. No promises, threats, force or physical or mental coercion was used to get defendant to sign the consent (Plaintiff's Exhibit #1). Defendant was asked to sign the consent form if he agreed with it. Defendant understood and signed the document in the proper place at the bottom of the form.
Defendant's contention that his consent to search was involuntary is not credible. United States v. Corral, 899 F.2d 991 (10th Cir. 1990); United States v. Sanchez-Valderuten, 11 F.3d 985 (10th Cir. 1993). Defendant voiced no objection to the search and understood the request and his rights. United States v. Santurio, 29 F.3d 550, 553 (10th Cir. 1994); United States v. Anderson, 114 F.3d 1059, 1065 (10th Cir. 1997).
The standard for a consent search is one of voluntariness. Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Ohio v. Robinette, 117 S.Ct. 417 (1996); United States v. Mendoza-Salgado, 964 F.2d 993, 1012 (10th Cir. 1992). The question of consent must be determined from the standard set out in United States v. Price, 925 F.2d 1268 (10th Cir. 1991). The standard of consent is one based on the totality of the circumstances. Schneckloth v. Bustamonte, supra. In this case, the totality of the circumstances support the conclusion that the defendant's consent to search was voluntary.
Scope of the Search
In a supplemental memorandum the defendant challenged the scope of Officer Shields' search. Officer Shield's told defendant he wanted to look in the vehicle. No limitation of any kind was indicated. Defendant was given a Spanish consent to search form, which he read. The officer indicated to defendant that if defendant agreed with what was stated in the form, to sign it. Defendant did so in the proper place. He made no objection and did not ask for clarification. No threats or promises were made. Defendant knew he had the right to refuse to consent to the search. The consent was unlimited and included the vehicle luggage, containers and contents of all. The officer observed the speaker did not work, there were after-market screws and the cover was scuffed with a print (Def. Exh. A). There was a strong odor of air fresheners. The scope of the search was not limited.
Air fresheners have been associated with drug trafficking United States v. Lazcano-Villalobos, 175 F.3d 838, 843 (10th Cir. 1999); United States v. Anderson, 114 F.3d 1059, 1066 (10th Cir. 1997); United States v. Leos-Quijada, 107 F.3d 786, 795 (10th Cir. 1997); United States v. Orrego-Fernandez, 78 F.3d 1497 (10th Cir. 1996).
The scope of the search given by consent was discussed in Florida v. Jimeno, 500 U.S. 248, 251 (1991):
The scope of a search is generally defined by its expressed object. United States v. Ross, 456 U.S. 798 (1982). In this case, the terms of the search's authorization were simple. Respondent granted Officer Trujillo permission to search his car, and did not place any explicit limitation on the scope of the search. Trujillo had informed respondent that he believed respondent was carrying narcotics, and that he would be looking for narcotics in the car. We think that it was objectively reasonable for the police to conclude that the general consent to search respondent's car included consent to search containers within that car which might bear drugs. A reasonable person may be expected to know that narcotics are generally carried in some form of a container. "Contraband goods rarely are strewn across the trunk or floor of a car." Id., at 820, 102 S.Ct., at 2170. The authorization to search in this case, therefore, extended beyond the surfaces of the car's interior to the paper bag lying on the car's floor.
"In determining the scope of defendant's consent, we ask what a reasonable person would have understood by the exchange between the defendant and police officer", United States v. Patten, 183 F.3d 1190, 1194 (10th Cir. 1999). "We consistently and repeatedly have held a defendant's failure to limit the scope of a general authorization to search and failure to object when the search exceeds what he later claims was a more limited consent, is an indication the search was within the scope of consent." United States v. Gordon, 173 F.3d 761, 765 (10th Cir. 1999) citing United States v. Pena, 143 F.3d 1363, 1368 (10th Cir. 1998); United States v. Sanchez, 89 F.3d 715, 719 (10th Cir. 1996); United States v. McRae, 81 F.3d 1528, 1538 (10th Cir. 1996); United States v. Wacker, 72 F.3d 1453, 1470 (10th Cir. 1995); United States v. Santurio, 29 F.3d 550, 553 (10th Cir. 1994).
In United States v. McRae, 81 F.3d 1528, 1537 (10th Cir. 1996) the court speaking of the scope of a consent search said:
Mr. McRae argues the search of the trunk exceeded the scope of any consent that was given. Although the district court made no findings on the scope of the consent to search, Mr. McRae asserts that the facts are undisputed. Mr. McRae concedes that he acquiesced in a search of the car and in a search of the trunk. His argument is that the consent to search the trunk did not extend to pulling up the carpet in the trunk and "otherwise dismantling areas of the trunk." Appellant's Br. at 31.
"It is clear that the scope of a consent search is limited by the breadth of the consent given." United States v. Pena, 920 F.2d 1509, 1514 (10th Cir. Cir. 1990), cert. denied, 501 U.S. 1207, 111 S.Ct. 2802, 115 L.Ed.2d 975 (1991). We employ an "`objective' reasonableness" standard in evaluating the scope of a suspect's consent:"what would the typical reasonable person have understood by the exchange between the officer and the suspect?" United States v. Wacker, 72 F.3d 1453, 1470 (10th Cir. Cir. 1995) (quoting Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991). We determine from the totality of the circumstances "[w]hether a search remains within the boundaries of the consent" given.
In United States v. Santurio, 29 F.3d 550, 553 (10th Cir. 1994) the court upheld a search of the interior of a vehicle on the basis of consent where the officer moved a few screws and strips of carpeting. The court stressed the officer did not "tear up" the van and a drug detection dog had alerted. In United States v. Nicholson, 17 F.3d 1294 (10th Cir. 1994) the court held permission to search the entire truck included the undercarriage. See also United States v. Pena, 920 F.2d 1509 (10th Cir. 1990) (permission to look in vehicle included looking into quarter panel where there were missing screws); United States v. Orrego-Fernandez, 78 F.3d 1497 (10th Cir. 1996) (general consent to search vehicle included camper shell area); United States v. Torres, 804 F. Supp. 1432 (D.Utah 1992) aff'd other grounds 5 F.3d 548 (10th Cir. 1993) (consent to search includes trunk). Therefore, the consent given in this case included in its scope the speaker in which the taped packages were found. United States v. Cannon, 29 F.3d 472 (9th Cir. 1994) (opening trunk approved on basis of general consent and lack of objection).
Applying these principles to this case where the scope of the consent was not limited and the search was where contraband was indicated to be present, the search did not exceed the authorized consent.
Defendant's Statement To Agent Ellis
In his original motion to suppress the defendant suggested his statement given to Agent Ellis was taken in violation of Miranda v. Arizona, supra, or was involuntary. The facts show that following his arrest, the defendant was taken to the Millard County Jail where he was interviewed by Agent Ellis, with Officer Shields also present. A Spanish speaking officer gave the defendant a proper and complete Miranda warning. Defendant acknowledged he understood his rights. He raised no questions and no evidence of confusion was present. Ellis told defendant that he did not have to answer questions if he didn't' want to and defendant made a statement. This was a valid waiver of Miranda rights. North Carolina v. Butler, 441 U.S. 369 (1979). Defendant was aware of the rights waived and gave them up voluntarily. Colorado v. Connelly, 479 U.S. 157, 168 (1986); Moran v. Burbine, 475 U.S. 412, 421 (1986). The communications to defendant were in Spanish which he fully understood. No promises or threats were made to obtain the defendant's statement. It was voluntary. Connelly, supra, 18 U.S.C. § 3501(a) and (b).
After defendant made a statement, Agent Ellis sought to get defendant's further cooperation in making a delivery or providing information. At that point Ellis did make a promise of help to defendant if he would cooperate. In United States v. Ruggles, 70 F.3d 262, 265-66 (2nd Cir. 1995) the court held a promise of leniency in exchange for cooperating did not make the defendant's confession involuntary. Accord United States v. Ornelas-Rodriguez, 12 F.3d 1339, 1347 (5th Cir. 1994); United States v. Glover, 104 F.3d 1570, 1582 (10th Cir. 1997) (confession admissible despite promise of pretrial release). However, in this case, there is no showing any further admission was made by defendant. The promise issue is therefore academic. The government only seeks to introduce the statement given by defendant to Agent Ellis immediately after the warning given to defendant. Therefore, there is no basis for suppression.
Conclusion
Defendant has shown no basis for suppression of evidence and his motion to suppress should be DENIED.
Copies of the foregoing Report and Recommendation are being mailed to the parties who are hereby notified of their right to object to the same. The parties are further notified that they must file any objections to the Report and Recommendation, with the clerk of the court, pursuant to 28 U.S.C. § 636(b), within ten (10) days after receiving it. Failure to file objections may constitute a waiver of those objections on subsequent appellate review.