United States v. Gamez , 311 F. App'x 671 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4329
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN HERNANDEZ GAMEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:07-cr-00188-NCT-1)
Argued: January 27, 2009 Decided: February 19, 2009
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Eric David Placke, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greensboro, North Carolina, for Appellant. Frank
Joseph Chut, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee. ON BRIEF: Louis C.
Allen, III, Federal Public Defender, Greensboro, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Juan Hernandez Gamez appeals the district court’s denial of
his motion to suppress evidence seized during the search of his
automobile following a routine traffic stop. Gamez contends
that he was not free to leave the scene after the valid traffic
stop ended. Alternatively, he argues that he did not knowingly
and voluntarily consent to the search of his vehicle. Finding
no merit in either contention, we affirm.
I.
At about one o’clock in the morning, Officer Barry Crump
stopped a car driven by Gamez in a high-crime area because the
officer noticed that Gamez was not wearing a seat belt and
because the rear tag light was out. There was a passenger in
the vehicle with Gamez. Crump ascertained from his patrol
vehicle computer that the North Carolina Division of Motor
Vehicles had permanently suspended Gamez’s driver’s license,
which required Crump to seize the license. The computer also
alerted Crump of previous narcotic activity by Gamez.
While preparing a citation for driving with a suspended
license, Crump summoned a K-9 unit to the scene, resulting in
the arrival of both the K-9 unit and another patrol car. Crump
and the two other officers approached the vehicle to issue the
citation to Gamez. One officer stayed on the passenger side of
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the car near the rear passenger door. Leaving his dog in his
car at this point, the K-9 officer remained about three to five
feet behind Gamez’s vehicle. Crump stood within arm’s length of
the driver’s door while conversing with Gamez.
Although Gamez now asserts that his primary language is
Spanish, Crump and Gamez conversed entirely in English, with no
apparent need for a translator. Crump handed Gamez the citation
and informed him that the officer had permanently seized Gamez’s
suspended license. Crump then informed Gamez that he was free
to go, but could not drive away without a license, to which
Gamez replied, “Okay.”
After about a one-second pause, Crump asked Gamez if he had
any contraband in the vehicle. Gamez replied in the negative
and then assented to Crump’s request to search the vehicle.
Crump asked Gamez and his passenger to stand by the rear of the
vehicle during the search. Assisted by the K-9 officer and his
dog, Crump found a loaded nine-millimeter handgun in the rear
map pocket of the front passenger’s seat, along with several
thousand dollars in cash in the center console of the car.
Gamez admitted that he owned the gun.
Crump arrested Gamez for carrying a concealed weapon and
released the passenger, who also did not have a driver’s
license. At the station, Gamez waived his Miranda rights and
gave an oral statement in English, despite the presence of a
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Spanish-speaking officer. Although Gamez did give a written
statement in Spanish, he admitted that he could speak English
and only orally lapsed into Spanish when searching for a
particular word.
Gamez moved to suppress the gun (and, pursuant to the fruit
of the poisonous tree doctrine, his statements admitting
ownership of it) under two theories: (1) that Crump exceeded the
scope of a lawful traffic stop in continuing to question Gamez
after issuing the citation; and (2) that even if the traffic
stop had become a voluntary encounter, Gamez did not consent
knowingly and voluntarily to the search. The district court
rejected both arguments and denied the motion to suppress.
Gamez then conditionally pleaded guilty to violating 18 U.S.C. §
922(g)(5) (2006), possession of a firearm in commerce by an
illegal alien, reserving the right to appeal the district
court’s denial of his suppression motion.
II.
Gamez first contends that the district court erred in
finding that the traffic stop at issue in this case had become a
voluntary encounter. Although Gamez does not contest the
initial legality of the traffic stop, he asserts that under the
totality of the circumstances a reasonable person would not have
felt free to go once Crump issued the citation. For this
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reason, Gamez asserts that the traffic stop never became a
voluntary encounter and Crump’s continued questioning and the
resultant search exceeded the scope of a lawful traffic stop.
Because the test for whether a Terry stop, see Terry v.
Ohio, 392 U.S. 1, 30–31 (1968), has transitioned to a voluntary
encounter is an objective one, we review the district court’s
factual findings regarding this issue for clear error, while
reviewing its legal conclusions de novo. United States v.
Meikle, 407 F.3d 670, 672 (4th Cir. 2005). Furthermore, we
examine the totality of the circumstances when conducting this
review. Id.Gamez cites four primary reasons why, in his view, under
the totality of the circumstances, this traffic stop had not
become a voluntary encounter. First, Crump stopped Gamez in a
high-crime neighborhood late at night. Second, Crump allegedly
blocked the exit of the vehicle while continuing to question
Gamez. Third, Gamez’s Hispanic heritage and status as an
illegal immigrant made it difficult for him to communicate and
left him feeling particularly threatened by a law enforcement
officer. Finally, Crump retained Gamez’s license; because
Gamez’s passenger also did not have a valid license, Gamez
therefore had no way to leave this high-crime neighborhood other
than on foot.
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Although these circumstances may have placed Gamez in an
awkward position, we cannot find that such awkward circumstances
rise to the level of a Fourth Amendment violation. See United
States v. Weaver, 282 F.3d 302, 311–12 (4th Cir. 2002). Taken
on their own, the first three factors cited by Gamez do little
to distinguish his case from our precedents. See, e.g., Meikle,
407 F.3d at 672–74; United States v. Sullivan, 138 F.3d 126,
132–34 (4th Cir. 1998); United States v. Lattimore, 87 F.3d 647,
652–53 (4th Cir. 1996) (en banc); United States v. Rusher, 966
F.2d 868, 876–77 (4th Cir. 1992).
Moreover, although the addition of the final factor, the
retention of Gamez’s driver’s license, briefly gives us pause,
we are not persuaded that it prevented this lawful Terry stop
from becoming a voluntary encounter. In cases in which courts
have found retention of travel documents particularly
compelling, the documents in question were not only necessary
for the defendant to continue on his way, but also were the
defendant’s rightful property. Their retention therefore
presented the defendant with the untenable choice of ending the
encounter with no legal means of actually leaving the scene, or
consenting to further interaction with law enforcement in order
to retrieve the documents. See, e.g., Florida v. Royer, 460
U.S. 491, 501–04 (1983) (retention of the defendant’s airline
ticket and driver’s license); United States v. Brugal, 209 F.3d
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353, 358 (4th Cir. 2000) (en banc) (retention of defendant’s
rental car agreement); United States v. Walker, 933 F.2d 812,
816–17 (10th Cir. 1991) (retention of defendant’s lawful
driver’s license and registration).
In sharp contrast to these cases, the DMV order
indisputably required Officer Crump to retain Gamez’s license.
Thus, Gamez could not legally have driven away even had he
wanted to do so. * Moreover, Officer Crump explicitly informed
Gamez that he was free to go. Although law enforcement officers
are not required to inform motorists that they are free to go,
Ohio v. Robinette, 519 U.S. 33, 39–40 (1996), when they do, this
strongly weighs in favor of finding that the encounter had
become voluntary. See, e.g., United States v. Farrior, 535 F.3d
210, 217–18 (4th Cir. 2008); Rusher, 966 F.2d at 877; cf.
Arizona v. Johnson, No. 07-1122, slip op. at 8 (U.S. Jan. 26,
2009) (“Normally, the [traffic] stop ends when the police have
no further need to control the scene, and inform the driver and
passengers they are free to leave.”).
*
Indeed, rejecting a bright line rule regarding retained
driver’s licenses, this court has found retention of a license
under even more coercive circumstances not to convert a citizen-
police encounter into an unlawful seizure (albeit outside the
traffic stop context). Weaver, 282 F.3d at 312–13.
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Thus, the totality of the circumstances do not favor
finding that a reasonable person in Gamez’s position would not
have felt free to go.
III.
Alternatively, Gamez contends that even had the encounter
with Officer Crump become voluntary, he did not knowingly and
voluntarily consent to the search of his vehicle. Because
voluntariness of consent is a factual question, we review the
district court’s findings on this issue for clear error.
Lattimore, 87 F.3d at 650–51. And like the first issue in this
case, we must examine the totality of the circumstances
surrounding the consent when conducting this review. Id. at
650.
Gamez relies on the same factors regarding this issue as he
does above, adding only that there was no evidence that Gamez
knew he could decline to consent to the search. Although we
have found this to be relevant to voluntariness of consent, see
id. at 650, when viewed in combination with the totality of the
circumstances here, it does not undermine the voluntariness of
Gamez’s consent to this search. As the district court noted, no
matter what Gamez said regarding the request to search his
vehicle, he knew he would not get his license back and would
have to walk either home or to a place from which he could call
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a cab or a ride. Thus, the district court’s conclusion
regarding Gamez’s consent was not clearly erroneous.
IV.
For the reasons stated above, we affirm the district
court’s denial of Gamez’s motion to suppress.
AFFIRMED
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