United States v. Anayell Rojas , 470 F. App'x 674 ( 2012 )

FILED
NOT FOR PUBLICATION MAR 05 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30023
Plaintiff - Appellee, D.C. No. 4:09-cr-00154-BLW-2
v.
MEMORANDUM *
ANAYELL NIETO-ROJAS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted February 6, 2012
Seattle, Washington
Before: SCHROEDER, ALARCÓN, and GOULD, Circuit Judges.
Nieto-Rojas (“Appellant”) appeals the district court’s decision denying her
motion to suppress evidence.
Appellant and her two passengers were being monitored by Idaho officers
for possible involvement in a drug transaction. After she drove into Utah, an Idaho
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
officer requested Utah officers to stop Appellant’s car if they could do so. Idaho
police requested both trying to obtain identity of the occupants of the vehicle and
seeing if money from the drug buy could be recovered.
Utah Trooper Rindlisbacher pulled the vehicle over on a busy highway for
excessive window tinting. He issued Appellant citations for excessive tint on her
windows, for illegally transporting beer into Utah, and for not having a driver’s
license. He told Appellant that he would have to impound the car because neither
she nor her passengers had a valid driver’s license. Trooper Rindlisbacher told
Appellant that she could call someone to get picked up and was free to leave when
her ride arrived. The district court found that the “officers[’] demeanor toward
[Appellant] was, for most of the encounter, deferential and protective rather than
commanding.” Trooper Rindlisbacher directed Appellant where to sit and where to
stand, but this is to be expected on a busy highway. Thus, the record shows the
seizure and temporary detention of Appellant ended when she was issued the
citation for her traffic violations.
Appellant and her passengers were requested to leave the vehicle so that two
other officers could conduct an inventory search of the impounded vehicle. A
drug-sniffing dog alerted on the exterior of the passenger door to a controlled
substance. The K-9 officer opened the door on the passenger side. The dog
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entered and alerted to the odor of a controlled substance on the front seat on the
passenger side of the vehicle. A search of the interior of a vehicle after a drug-
sniffing canine has alerted to the odor of a controlled substance after walking
around its exterior is not unreasonable under the Fourth Amendment. Illinois v.
Caballes, 543 U.S. 405, 409-10 (2005).
After the dog alerted to the odor of a controlled substance on the passenger
side of the front seat, Trooper Rindlisbacher first questioned and searched the
passenger who had been sitting there. Next, he asked Appellant to move over to
the car, pointed at the seat and said that “the dog said” there were drugs there, and
asked her if the people in the car had drugs. He asked her if she had drugs on her,
and she said no. He said, “Do you care if I look? Do you have anything in your
pockets or purse? Do you care if I look?” She said no. He said, “Do you
understand?” to which she replied, “No. I don’t know.” He said, “You spoke
English fine before. Do you care if I look in your purse and in your pocket? Do
you understand?” She paused about five seconds, sighed, and then said okay. He
asked her one more time whether she understood and if it was okay, and she said
yes. He then searched her purse, found a gun, and arrested her. He also found
more than $2,000 in cash, some of which consisted of pre-recorded bills from the
drug transaction the Idaho police were monitoring.
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Appellant moved to suppress the evidence found in the search on the
grounds that her consent was not voluntary. The district court denied her motion.
Appellant entered a conditional guilty plea to conspiracy to distribute a controlled
substance and attempted escape from custody,1 preserving her right to appeal the
district court’s denial of her motion to suppress the evidence. We now address the
issue of suppression in this appeal.
“[A] district court’s determination whether a defendant voluntarily
consented to a search depends on the totality of circumstances and is a question of
fact we review for clear error.” United States v. Washington, 490 F.3d 765, 769
(9th Cir. 2007). We consider five factors in determining voluntariness: (1)
whether Appellant was in custody; (2) whether the arresting officers had their guns
drawn; (3) whether Miranda warnings were given; (4) whether Appellant was
notified that she had a right not to consent; and (5) whether Appellant had been
told a search warrant could be obtained. United States v. Jones, 286 F.3d 1146,
1152 (9th Cir. 2002). “These factors serve merely as guideposts, not as a
mechanized formula to resolve the voluntariness inquiry.” United States v. Brown,
563 F.3d 410, 415 (9th Cir. 2009) (internal quotation marks and citations omitted).
1
The attempted escape occurred after Nieto-Rojas had been arrested and is
not part of the subject of this appeal.
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We must look to the totality of the circumstances to determine whether the district
court committed clear error.
The district court held that Appellant was not in custody when her purse was
searched, reasoning that the officers were deferential and protective rather than
commanding, that they asked rather than demanded to search her purse, that they
did not physically control her at any time or display their weapons, and that they
told her multiple times that she was free to go when her ride arrived. Appellant
argues she was in custody because there were three officers on the scene, she was
cited for traffic violations, English was not her native language, she watched the
officers conduct an inventory search of the car, her passenger was searched in front
of her, and she was told that she could leave when her ride came but she was not
told she could leave before. We agree with the district court that Appellant was not
in custody. Appellant was told several times she would be free to leave when her
ride came. She did not ask to leave before her ride came. It was not unreasonable
for the officer to stay with Appellant and her passengers while she waited for a
ride, given the dangers of the busy highway.
Even if we were to conclude that the district court erred and Appellant was
in custody, her consent was voluntary under the totality of the circumstances. This
case is not similar to Washington, which Appellant cites. Washington, 490 F.3d at
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776. There, the court found significant that Washington’s consent was made at
night on a dark street, that he was outnumbered two-to-one, that he was searched in
a vulnerable position (with his hands on top of the squad car), and that there was a
“unique situation in Portland between the African-American community and the
Portland police.” Id.Here, Appellant was not alone—she was with her two passengers at all
times. The stop and request for search was made in broad daylight in a busy
location with others present. The officers told her more than once that she would
be free to go when her ride arrived. Throughout the encounter, the officers had
been generally pleasant to Appellant. They never made her stand in a vulnerable
position like in Washington. We have reviewed the full record including the video
of the stop. We hold that under the totality of the circumstances Appellant
voluntarily consented to the search of her purse and that her consent was never
withdrawn.2
Appellant argues that the use of the drug-sniffing dog was illegal and that
the fact that the dog alerted to drugs in her car coerced her to consent. Viewing the
dog’s alert under the totality of the circumstances, it did not coerce the consent.
2
While Trooper Rindlisbacher was searching Appellant’s purse, she told
him that her ride was there. She did not ask him to stop his search, and less than
thirty seconds later he found the gun in her purse.
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We also hold that the search of Appellant’s purse did not exceed the scope
of consent. “The standard for measuring the scope of a suspect’s consent under the
Fourth Amendment is that of ‘objective’ reasonableness—what would the typical
reasonable person have understood by the exchange between the officer and the
suspect?” Florida v. Jimeno, 500 U.S. 248, 251 (1991). The officers asked to look
in Appellant’s purse. She consented. Her consent, without an express limitation,
gave the police permission to search her purse in the manner they did. Id. at 252.
She at no time told them to stop or withdrew her consent. The search did not
exceed the scope of Appellant’s consent.
AFFIRMED
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