Opinion
Case No. 99-40041-01-RDR
November 21, 2001
MEMORANDUM AND ORDER
On November 16, 2001, the court held a hearing on the pretrial motions filed by the defendant. The court is now prepared to rule on the pending motions.
The defendant is charged in a two-count indictment. He is charged with possession with intent to distribute approximately 510 grams of a mixture or substance containing methamphetamine in violation of 21 U.S.C. § 841(a)(1) and possession with intent to distribute 1849 grams of marijuana in violation of 21 U.S.C. § 841(a)(1). The charges arise from a traffic stop on April 29, 1999.
The defendant has filed the following pretrial motions: (1) motion for discovery and inspection; (2) motion for disclosure of information regarding prior or subsequent bad acts; (3) motion to compel disclosure or existence and substance of promises of immunity, leniency or preferential treatment; and (4) motion to suppress. The government indicated that it has no objection to the first three motions. The government stated that it would produce all of the information requested by the defendant. With the government's response, these motions can be denied as moot.
The court shall now turn to the defendant's motion to suppress. The defendant seeks to suppress the evidence that was seized during a traffic stop on April 29, 1999. He contends that any consent given for the search of the vehicle was not freely, knowingly and intelligently given. He further asserts that the scope of the search was in excess of any consent that was given. Having carefully considered the evidence offered at the hearing, the court is now prepared to issue the following findings of fact and conclusions of law.
FINDINGS OF FACT
1. On April 29, 1999, Shawnee County Deputy Wallace Long observed a white Cadillac on Interstate 70 in Shawnee County, Kansas. Deputy Long saw a glint of light from the windshield of the Cadillac. Deputy Long subsequently stopped the car based on the cracked windshield. The car was being driven by the defendant, Efrain Valadez-de la Cruz. Rogelio Gonzales-Camacho was a passenger in the car. The events that occurred following the stop were videotaped by a camera fixed in Deputy Long's patrol car.
2. Deputy Long approached the vehicle and asked the defendant for his driver's license and insurance. He told the defendant that he had stopped his car because he had a crack in his windshield. Deputy Long informed the defendant that he needed to get the crack fixed. The defendant responded, "I don't have any I.D." Deputy Long asked, "You don't have a driver's license?" The defendant said "no."
3. Deputy Long asked the defendant why he was driving if he did not have a driver's license. The defendant said that he was checking out this car with the idea of buying it. He told Deputy Long that the car belonged to a friend. Deputy Long asked the defendant if he had any paperwork on the car. The defendant was able to provide only a resident alien card.
4. Deputy Long went to the rear of the vehicle in an effort to check out the vehicle. He was, however, unable to do so because of constant traffic on his radio. Deputy Long motioned to the defendant to join him at the rear of the car. The defendant exited the car and joined Deputy Long. Deputy Long asked him where he was traveling. The defendant indicated that he was going to his friend's house that was located at Sixth and California. Deputy Long asked who owned the car. The defendant said it belonged to his friend. Deputy Long then asked for the friend's name. The defendant responded, "I don't remember." He then indicated that his name was "Jesus."
5. Deputy Long returned the documents to the defendant. He told the defendant that he needed to go get a driver's license. He then told the defendant, "You're free to go." He then asked the defendant if he could ask him a couple more questions. The defendant initially responded, "No sir." Deputy Long then said, "Can I talk with you?" The defendant replied, "Whatever, yeah."
6. Deputy Long asked the defendant if he had anything illegal in the car such as drugs or pistols. The defendant said "no." Deputy Long then asked if he could search the car. The defendant responded, "Yeah."
7. Deputy Long moved immediately to the trunk of the car and asked the defendant if it was open. The defendant responded, "I can't open it. I don't have the key." Deputy Long then approached the driver's side of the car and removed the keys from the ignition. He tried several keys in the lock, but none of them opened it. He then directed the passenger to exit the car. He told the defendant and the passenger to stand away from the car. Deputy Long then entered the car and began to look for a way to open the trunk. He eventually discovered a trunk release. He began to examine the contents of the trunk. As Deputy Long was looking in the trunk, the defendant and the passenger ran away from the scene. Deputy Long began yelling "Stop" and gave chase. A subsequent search of the car revealed methamphetamine and marijuana.
8. During the course of the encounter, Deputy Long was very low key. He used a conversational tone of voice and never raised his voice until the occupants of the car fled the scene. The defendant appeared to understand all of the questions put forth by Deputy Long. He appeared to have a sufficient command of the English language. At times, he spoke haltingly, but he never expressed confusion or asked for clarification of any of Deputy Long's questions or comments.
CONCLUSIONS OF LAW
1. The defendant challenges only the consent to search and the scope of the consent. "Valid consent is that which is `freely and voluntarily given.'" United States v. Pena, 143 F.3d 1363, 1366 (10th Cir. 1990) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973)), cert. denied, 501 U.S. 1207 (1991). Whether a defendant freely and voluntarily gave consent to a search is a question of fact to be determined from the totality of the circumstances. United States v. Patten, 183 F.3d 1190, 1194 (10th Cir. 1999). The government bears the burden to show that the consent was voluntary. Id.
2. "In determining voluntariness, we consider whether the consent was `unequivocal and specific and freely and intelligently given,'" and whether it was given without implied or express duress or coercion. United States v. Mendez, 118 F.3d 1426, 1432 (10th Cir. 1997) (quoting United States v. Angulo-Fernandez, 53 F.3d 1177, 1180 (10th Cir. 1995)). A "coercive show of authority" includes "the presence of more than one officer, the display of a weapon, physical touching by the officer, or his use of a commanding tone of voice indicating that compliance might be compelled." United States v. West, 219 F.3d 1171, 1177 (10th Cir. 2000).
3. The scope of a consent search is limited by the breadth of consent given. United States v. Wacker, 72 F.3d 1453, 1470 (10th Cir. 1996). The measure of the breadth of the consent is objective, based on what a typical reasonable person would have believed he was consenting to in the exchange with the law enforcement official. Florida v. Jimeno, 500 U.S. 248, 251 (1991).
4. The court finds that the defendant voluntarily consented to a search of the entire car. The totality of the circumstances indicate that the consent was freely and intelligently given. Deputy Long made no effort to coerce the defendant. See, e.g., United States v. Flores, 48 F.3d 467, 469 (10th Cir. 1995) (lack of intimidation or coercion significant to finding consent voluntary). The defendant demonstrated a sufficient understanding of the questions that were asked of him. See United States v. Corral, 899 F.2d 991, 994 (10th Cir. 1990) (defendant with limited knowledge of English voluntarily consented because he understood the officer's questions, answered questions in English and demonstrated an overall working knowledge of English). He did not hesitate in allowing Deputy Long consent to search the car. The defendant placed no limitations on the search. He advised Deputy Long that he was unable to open the trunk, but he did not tell Deputy Long that he could not look in the trunk. As Deputy Long continued to look for a way to open the trunk, the defendant made no objection to Deputy Long's efforts. See United States v. Gordon, 173 F.3d 761, 766 (10th Cir. 1999), cert. denied, 528 U.S. 886 (1999) (defendant's "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"). In sum, the court finds that the defendant consented to a search of the car and that scope of his consent was not exceeded. Accordingly, the defendant's motion to suppress must be denied.
IT IS THEREFORE ORDERED that defendant's motion for discovery and inspection (Doc. # 55) be hereby denied as moot.
IT IS FURTHER ORDERED that defendant's motion for disclosure of information regarding prior or subsequent bad acts (Doc. # 56) be hereby denied as moot.
IT IS FURTHER ORDERED that defendant's motion to compel disclosure or existence and substance of promises of immunity, leniency or preferential treatment (Doc. # 57) be hereby denied as moot.
IT IS FURTHER ORDERED that defendant's motion to suppress (Doc. # 62) be hereby denied.
IT IS SO ORDERED.