United States v. Suarez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5020
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUIS CORCHO SUAREZ,
Defendant - Appellant.
No. 08-4022
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERNESTO PRIETO OSORIO,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:06-cr-00049-RLV; 5:06-cr-00049-
RLV-1)
Submitted: December 23, 2008 Decided: January 30, 2009
Before GREGORY, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN, P.C., Decatur,
Georgia, for Appellants. Gretchen C. F. Shappert, United States
Attorney, Adam Morris, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Luis Corcho Suarez entered a conditional plea of
guilty to one count of conspiracy to possess with intent to
distribute at least five kilograms of cocaine, in violation of
21 U.S.C. § 846 (2006), and was sentenced to sixty months’
imprisonment. Ernesto Prieto Osorio entered a conditional plea
of guilty to one count of conspiracy to possess with intent to
distribute at least five kilograms of cocaine and one count of
possession with intent to distribute at least five kilograms of
cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006), and
was sentenced to the statutory mandatory minimum of 120 months’
imprisonment. Finding no error, we affirm.
On appeal, Suarez and Osorio contend the district
court erred in denying their motions to suppress the cocaine
seized from the vehicle in which they were traveling. We review
the court’s factual findings underlying the denial of a motion
to suppress for clear error and its legal conclusions de novo.
United States v. Branch, 537 F.3d 328, 337 (4th Cir. 2008). The
evidence is construed in the light most favorable to the
prevailing party below. United States v. Uzenski, 434 F.3d 690,
704 (4th Cir. 2006).
Suarez and Osorio, who are both Cuban, contend that
the traffic stop initiated by law enforcement was pretextual and
racially motivated. The Supreme Court “uniformly has held that
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the application of the Fourth Amendment depends on whether the
person invoking its protection can claim a ‘justifiable,’ a
‘reasonable,’ or a ‘legitimate expectation of privacy’ that has
been invaded by government action.” United States v. Knotts,
460 U.S. 276, 280 (1983). “A person traveling in an automobile
on public thoroughfares has no reasonable expectation of privacy
in his movements from one place to another.” Id. at 281.
Moreover, “if an officer has probable cause or a reasonable
suspicion to stop a vehicle, there is no intrusion upon the
Fourth Amendment.” United States v. Hassan El, 5 F.3d 726, 730
(4th Cir. 1993).
We have specifically rejected the test advanced by
Appellants, which would require a court to look to the officer’s
subjective motivations in initiating a traffic stop, in favor of
an objective test. Id. Thus, “when an officer observes a
traffic offense or other unlawful conduct, he or she is
justified in stopping the vehicle under the Fourth Amendment,”
regardless of whether the officer’s interest in the vehicle was
based on “intuitive suspicions that the occupants of the car
[were] engaged in some sort of criminal activity.” Id.Here, the officer who initiated the traffic stop
determined that Appellants’ vehicle was exceeding the speed
limit by thirteen miles per hour. Neither Suarez nor Osorio
challenges the district court’s determination that they were
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speeding. Instead, they argue that the “inception” of the stop
occurred when officers first determined that the vehicle was
suspicious. However, until a seizure implicating the Fourth
Amendment has occurred, officers are “not required to have a
‘particularized and objective basis for suspecting [an
individual] of criminal activity,’ in order to pursue him.”
Michigan v. Chesternut, 486 U.S. 567, 576 (1988) (quoting United
States v. Cortez, 449 U.S. 411, 417-18 (1981)). Under the facts
of this case, Appellants cannot establish that they were
“seized” for Fourth Amendment purposes merely because the
officers determined that their vehicle was suspicious. See
Terry v. Ohio, 392 U.S. 1, 20 n.16 (1968) (stating a seizure
occurs when an “officer, by means of physical force or show of
authority, has in some way restrained the liberty of” an
individual).
Appellants’ contention that the stop was racially
motivated is likewise without merit. Allegations of racially
motivated law enforcement implicate the Equal Protection Clause
rather than the Fourth Amendment. United States v. Bullock, 94
F.3d 896, 899 (4th Cir. 1996). The standard for establishing a
selective enforcement claim is “demanding” and requires evidence
that clearly contradicts the presumption that officers have not
violated equal protection. United States v. Armstrong, 517 U.S.
456, 463-65 (1996); see also Bullock, 94 F.3d at 899 (applying
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Armstrong in traffic stop case). A defendant must therefore
establish that the law enforcement practice “had a
discriminatory effect and that it was motivated by a
discriminatory purpose.” Armstrong, 517 U.S. at 465. Moreover,
a defendant must show that the law enforcement practice was not
enforced against “similarly situated individuals of a different
race.” Id.Other than contradictory testimony on the issue of
whether one officer described Appellants as “black,” there is
nothing in the joint appendix to suggest that race played any
part in the traffic stop. The district court determined that
even assuming the comment was made, it was merely a descriptor
used to identify the vehicle’s occupants rather than evidence of
improper racial motivation. Additionally, there is no evidence
in the joint appendix establishing that the officers failed to
stop individuals of other races for exceeding the speed limit by
more than ten miles per hour.
Suarez and Osorio also contend that the request for
consent to search the vehicle was improper. They incorrectly
argue that probable cause is required before an officer may seek
consent to search. See Schneckloth v. Bustamonte, 412 U.S. 218,
219 (1973) (“[O]ne of the specifically established exceptions to
the requirements of both a warrant and probable cause is a
search that is conducted pursuant to consent.”). Rather, where
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officers “lack probable cause to arrest or search, a search
authorized by a valid consent may be the only means of obtaining
important and reliable evidence.” Id. at 227. “The
circumstances that prompt the initial request to search may
develop quickly or be a logical extension of investigative
police questioning.” Id. at 232.
In this case, there is no evidence that the officers
used any coercive tactics in obtaining consent. After
Appellants’ identification cards and vehicle registration were
returned to them, they were informed that they were free to
leave. Appellants do not allege, and the joint appendix does
not show, that the officers drew their weapons, behaved in an
antagonistic manner, or otherwise informed Suarez or Osorio that
they were under arrest prior to requesting consent to search.
The totality of the circumstances therefore establishes that
consent was voluntarily rendered. See Schneckloth, 412 U.S. at
248-49 (“Voluntariness is a question of fact to be determined
from all the circumstances . . . .”). Thus, we conclude the
district court did not err in refusing to suppress the evidence
obtained during the vehicle search.
Osorio additionally contends that the district court
erred in determining that he was ineligible for a reduction
under U.S. Sentencing Guidelines Manual (“USSG”) § 5C1.2(a)
(2006) (“the safety valve”). To qualify for sentencing under
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the safety valve provision, a defendant must meet all five
criteria set forth in 18 U.S.C. § 3553(f) (2006), and
incorporated in USSG § 5C1.2(a). The district court’s
determination of whether a defendant has satisfied the safety
valve criteria is a question of fact reviewed for clear error.
United States v. Wilson, 114 F.3d 429, 432 (4th Cir. 1997).
We have previously stated that the “plain and
unambiguous language of [18 U.S.C. § 3553(f)(5)] obligates
defendants to demonstrate, through affirmative conduct, that
they have supplied truthful information to the Government.”
United States v. Ivester, 75 F.3d 182, 184-85 (4th Cir. 1996).
Such information includes everything the defendant knows about
“the offense or offenses that were part of the same course of
conduct or of a common scheme or plan.” USSG § 5C1.2(a)(5).
The information provided by Osorio was vague and, at
times, contradictory. Furthermore, a birth certificate issued
in another individual’s name as well as other documents
discovered in Osorio’s possession were never fully explained.
Thus, the district court cannot be said to have clearly erred in
determining that Osorio’s provision of “vague, incomplete, and
in several aspects, untruthful” information rendered him
ineligible for the safety valve reduction.
Accordingly, we affirm the judgments of the district
court. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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