United States v. Francisco Ureno Guerrero , 374 F.3d 584 ( 2004 )

HEANEY, Circuit Judge.

The United States appeals the district court’s¹ ruling suppressing 77 pounds of cocaine seized from a vehicle operated by Francisco Ureno Guerrero. Largely based on the communication difficulties between Guerrero, who is Spanish-speaking, and an English-speaking Iowa State Trooper, the district court held that Guerrero was subjected to a Fourth Amendment seizure without probable cause, that Guerrero did not knowingly and voluntarily consent to the search of the vehicle, and that a reasonable officer would not believe that Guerrero knowingly and voluntarily consented to a search. For the reasons stated below, we affirm the district court.

BACKGROUND

On April 19, 2003, Iowa State Trooper Jason Bardsley stopped a 2001 BMW SUV on Interstate 80 because the vehicle was traveling five miles over the speed limit and had tinted windows that appeared to be too dark. The traffic stop was recorded on a video camera installed in Bardsley’s patrol car.² Upon approaching the vehicle, Bardsley asked Guerrero if he knew how fast he was going. Guerrero answered, “Chicago.” During his questioning, Bards-ley had to repeat his requests several times and, at times, had to use hand gestures before Guerrero understood the question or was able to respond. In answering Bardsley’s questions, Guerrero spoke in Spanish, in extremely broken English, or would repeat verbatim what Bardsley had asked him.

While questioning Guerrero, Bardsley noticed that Guerrero appeared very nervous, that air fresheners had been placed in several vents in the dashboard, and that the garment bag in the rear of the vehicle appeared to be fairly empty. Bardsley then asked Guerrero to accompany him to his patrol ear and sit in the back seat. Realizing that Guerrero was having problems understanding English, Bardsley asked Guerrero, “Poquito English?,” to which Guerrero responded, “Poquito English.” Bardsley also twice asked Guerrero, “Do you read English?,” to which he received no response. Bardsley then asked, “A little?,” and Guerrero responded, “A little.”

During the stop, Guerrero told Bardsley, in very broken English, that he was returning from Las Vegas where he had spent one week visiting his children. Guerrero attempted to communicate the address for his children in English, but was unable to provide a phone number. Guerrero also told Bardsley that the SUV belonged to his brother and that he had purchased it one week earher. The registration indicated that it had actually been purchased four months earher.

Bardsley contacted the El Paso Intelligence Center (EPIC)³ and was advised that Guerrero’s name was “flagged” in the INS computer and that the DEA had participated in a cocaine transaction at Guerrero’s home address. EPIC gave Bardsley a phone number to obtain further information as to why Guerrero’s name was “flagged” in the INS system, but Bardsley never called the number, nor did he ask Guerrero about his immigration status. Bardsley also chose not to find out whether the DEA drug buy address was specific to a building or an apartment, or whether it occurred while Guerrero lived there. Bardsley then issued a warning ticket to Guerrero.

After returning Guerrero’s license and registration, Bardsley asked, “Hey, Francisco, before you take off, I’m all done with you, do you have ... you don’t have anything illegal in the car with you today, do you?” Guerrero responded in the negative. Bardsley then asked Guerrero if he had any knives in the car. After repeating this question four times, Bardsley asked, “Like cut?” Guerrero denied having any knives. Bardsley then asked if Guerrero had any “pistolas,” cocaine, marijuana, or methamphetamine. Guerrero denied having any pistolas, cocaine, or marijuana, but did not understand the word methamphetamine. Then Bardsley asked if he could search the vehicle. Guerrero said several inaudible words in Spanish and English before responding, “Yeah.” When Bardsley asked a second time if he could search the vehicle, Guerrero responded, “Okay. Si.”

Prior to searching the vehicle, Bardsley filled out a Spanish-language consent-to-search form and showed it to Guerrero. Bardsley never asked Guerrero if he could read Spanish, but explained the form to Guerrero in English, pointing to the Spanish section of the form. When he finished reading the form, Bardsley asked, “Si, you comprende?” Guerrero replied, “Yo com-prende” and signed the form. While Guerrero remained in the back seat of the patrol car, Bardsley searched the vehicle and noticed that the passenger seat bolt covers were scarred, there were metal shavings in the track of the seat, and the carpet under the middle console area appeared to have been cut. Bardsley returned to his patrol car and requested assistance from a K-9 unit. Bardsley also asked Guerrero to follow him to a garage at the next exit, which Guerrero agreed to do. After the drug dog alerted to the front and passenger sides of the car at the garage, the officers removed the front seats exposing jagged cuts in the carpet. The officers discovered a trap door under the carpet containing 26 wrapped packages consisting of a total weight of 77 pounds of cocaine.

Guerrero was charged with one count of possession of cocaine with intent to distribute. Guerrero filed a motion to suppress the evidence seized from the SUV. The district court granted the motion finding that Guerrero was subjected to a Fourth Amendment seizure without probable cause, Guerrero did not voluntarily and knowingly consent to the search, and it was not reasonable for the law enforcement officer to believe that the consent was voluntarily and knowingly made. The United States filed this interlocutory appeal arguing that the district court erred in granting Guerrero’s motion to suppress because: 1) Bardsley reasonably believed Guerrero knowingly consented to the search of the vehicle; 2) reasonable suspicion existed to expand the scope of the traffic stop; and 3) the search was supported by probable cause.

ANALYSIS

A. Consent to Search

“[Wjhether or not the suspect has actually consented to a search, the Fourth Amendment requires only that the police reasonably believe the search to be consensual.” United States v. Sanchez, 156 F.3d 875, 878 (8th Cir.1998). The determination of whether a reasonable officer would believe that Guerrero consented is a question of fact, subject to review for clear error. United States v. Jones, 254 F.3d 692, 695 (8th Cir.2001). The focus is not whether Guerrero subjectively consented, but rather, whether a reasonable officer would believe consent was given and can be inferred from words, gestures, or other conduct. Id.

The government argues that Bardsley reasonably believed that Guerrero consented to the search because: Guerrero did speak some English and was generally able to grasp Bardsley’s questions; Guerrero stated he was able to read some English; Bardsley provided Guerrero with a Spanish version of the consent form; Guerrero never indicated that he was unable to read or understand the form and responded “yo comprende” when asked if he understood the form; Guerrero signed the consent form; Guerrero did not object while Bardsley conducted the search; and, when Bardsley asked Guerrero to follow him to the garage he complied without difficulty.

Based on the facts of this case and a careful review of the videotape, we agree with the district court that Guerrero did not understand a majority of what Bardsley said throughout the traffic stop. When asked how fast he was going, Guerrero answered, “Chicago.” Bardsley needed to ask Guerrero several times for his license and registration, to get out of the vehicle, to sit in the back seat of the patrol car, how long he had been in Las Vegas, how long he had lived at his current address, and if he had any knives in the car. All these inquiries required repetition, gestures, and the use of simple English before Guerrero could respond. Even when Guerrero did respond, he answered in broken English, often merely repeating the same words Bardsley used. Similarly, with regard to Guerrero signing the consent form, Bardsley never asked Guerrero if he could read Spanish, but instead pointed to the words in Spanish while reading them in English. Bardsley then asked Guerrero, “Si, you comprende?” and Guerrero echoed him by responding “Yo comprende.” This response is ambiguous at best, as the translation would be something akin to “I you understand.”⁴

In addition, from reviewing the exchange between Bardsley and Guerrero, it is clear that a reasonable officer would have been aware that Guerrero was having difficulty understanding the questions. Bardsley’s own actions show such an awareness: Bardsley asked most of his questions several times, spoke in simple sentences, and often utilized hand gestures; Bardsley spoke in Spanish when he was able, using words such as “pistolas” and “poquito” and simplified his English, using “like cut” for knife and “no pay” for a warning ticket; and Bardsley chose to use the Spanish consent form when obtaining Guerrero’s signature for the search.

These facts support the district court’s holding that Guerrero and Bardsley were unable to effectively communicate and that Bardsley was aware of the communication barrier. As a result, we hold that the district court did not commit clear error by finding that a reasonable officer would not believe that Guerrero was able to knowingly and voluntarily consent to a search.

B. Reasonable Suspicion

When reviewing a determination of reasonable suspicion, this court reviews the district court’s findings of fact for clear error and the determination of the existence of reasonable suspicion de novo. United States v. Linkous, 285 F.3d 716, 720 (8th Cir.2002). Whether an officer has reasonable suspicion to expand the scope of the traffic stop beyond the primary purpose of the stop is determined by looking at the totality of the circumstances, based on an officer’s experience and training. Id. It is undisputed in this case that the initial stop of Guerrero was valid; it would be an unreasonable extension of the scope of the stop, however, for Bardsley to further detain Guerrero or his vehicle unless something occurred during the traffic stop to generate the necessary reasonable suspicion to justify further detention. United States v. Jones, 269 F.3d 919, 925 (8th Cir.2001).

The government argues that Guerrero was never subjected to a Fourth Amendment seizure because he was given all his papers back and told that Bardsley was “all done with him.” See United States v. White, 81 F.3d 775, 778 (8th Cir.1996) (stating that after a routine traffic stop had been completed and White’s license and registration returned, “the encounter became nothing more than a consensual encounter between a private citizen and a law enforcement officer”). The government further asserts that Guerrero was not subjected to the threatening presence of several officers, the display of any weapons, any physical touching, or the use of language or tone of voice indicating that compliance with Bardsley’s request was compelled. See United States v. Johnson, 326 F.3d 1018, 1021-22 (8th Cir.2003) (listing circumstances indicative of whether a defendant was seized). Instead, the tone of the exchange was cooperative and, at the time Bardsley asked to search the SUV, Guerrero had everything he needed to continue on his journey.

For Fourth Amendment purposes, a seizure occurs when a reasonable person would not feel free to leave. Jones, 269 F.3d at 925. The district court concluded that Guerrero’s inability to understand English, Bardsley’s statement “before you take off,” and the fact that Bardsley continued to talk to him and ask questions while Guerrero was sitting in the back seat of the patrol car would reasonably lead a person in similar circumstances to believe that they were not yet free to leave. We agree. Most English-speaking people, and certainly Guerrero, who was having trouble understanding Bardsley, would not have understood that the stop ended and a voluntary interaction with Bardsley began. See United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir.1994) (finding a seizure occurred because no reasonable person would feel free to leave when police kept questioning the defendant about drugs and asked for consent to search the vehicle, even though all documentation was given back to him).

The government also argues that even if Guerrero was detained at the time of the search, the detention was justified by reasonable suspicion because: 1) the placement of air fresheners in several vents; 2) the fact that Guerrero seemed extremely nervous; 3) Guerrero’s inconsistent and limited details about his trip; and, 4) the information obtained from EPIC. The government asserts that the district court erred in holding that each of these factors could have an innocent explanation. Instead, the district court should have considered the totality of the circumstances. Linkous, 285 F.3d at 720 (“Though each factor giving rise to suspicion might appear to be innocent when viewed alone, a combination of factors may warrant further investigation when viewed together.”).

After considering the totality of the circumstances, we agree with the district court that they do not give rise to reasonable suspicion. The use of air fresheners shows that Guerrero either liked the smell of air fresheners or that he was trying to cover up an odor, but that odor need not be the smell of drugs. Guerrero’s nervousness is also of limited significance, as this court has held that it cannot be deemed unusual for a person to exhibit signs of nervousness when confronted by an officer. United States v. Beck, 140 F.3d 1129, 1139 (8th Cir.1998). Third, Guerrero’s inconsistent and limited details about his trip were consistent with the language barrier that existed between him and Bardsley. Finally, we do not lend much credence to the information from EPIC, as Bardsley did not find it significant enough to follow up on the information. Looking at these factors together, we cannot say that the district clearly erred in finding that Bardsley lacked reasonable suspicion to expand the scope of the search.

C. Probable Cause

We review the determination of whether probable cause existed de novo. United States v. Payne, 119 F.3d 637, 642 (8th Cir.1997). “Probable cause ‘exists when, given the totality of the circumstances, a reasonable person could believe there is a fair probability that contraband or evidence of a crime would be found in a particular place.’ ” United States v. Ameling, 328 F.3d 443, 448 (8th Cir.2003) (quoting United States v. Fladten, 230 F.3d 1083, 1085 (8th Cir.2000)).

Reasonable suspicion is a less demanding standard than probable cause. Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Citing the same factors as in its reasonable suspicion argument, the government asserts that the totality of circumstances gave rise to probable cause as well. Facts which do not support a finding of reasonable suspicion, however, cannot support a finding of probable cause.

CONCLUSION

Francisco Guerrero is a Spanish-speaking individual who was involved in a valid traffic stop with Iowa State Trooper Jason Bardsley, who speaks English. Due to the communication barrier between Guerrero and Bardsley, and Bardsley’s failure to obtain a Spanish-speaking interpreter, Bardsley illegally expanded the scope of the traffic stop without reasonable suspicion, probable cause, or valid consent. We find that the district court did not commit clear error in suppressing the evidence obtained in the search of Guerrero’s vehicle. Accordingly, we affirm the district court.

1 . The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa.

2 . The videotape of the stop is part of the record in this case.

3 . EPIC is a mass intelligence center comprised of approximately 20 to 25 computer databases from the federal government, in-eluding such entities as the INS, DEA, and FBI.

4 . The district court pointed out that the correct response in Spanish would be "yo com-prendo” not "yo comprende,” suggesting that Guerrero was likely merely repeating verbatim what Bardsley had said.