United States v. Gutierrez, Ruben M.

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 27, 2007
Decided March 7, 2007
Before
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-2006
Appeal from the United States
UNITED STATES OF AMERICA, District Court for the Northern
Plaintiff-Appellee, District of Illinois, Eastern Division.
v. No. 04 CR 662
RUBEN M. GUTIERREZ, Robert W. Gettleman,
Defendant-Appellant. Judge.
ORDER
With Ruben Gutierrez’s consent, law enforcement agents performed searches
that turned up cocaine in both his shirt pocket and his kitchen cabinet. He moved
to suppress the drugs on the ground that his consent was not knowing or voluntary.
The district court denied his motion, and after a jury trial he was convicted of
possession with intent to distribute cocaine. 21 U.S.C. § 841(a)(1). Gutierrez now
challenges the denial of his motion to suppress and renews his contention that his
consent was invalid. We affirm.
Agents Sean Hartnett and Andrew Wessner, both with the Department of
Homeland Security in the division of Immigration and Customs Enforcement, along
No. 06-2006 Page 2
with two other agents, were conducting surveillance on a particular apartment
building in Melrose Park, Illinois. At 2:00 p.m. Gutierrez pulled up in his minivan
and entered the building. The agents did not have a warrant, so they waited in
their cars until 5:00 p.m., when they decided to make contact.
The sun was still shining when Agent Harnett, along with another agent,
went to the door. Agent Wessner and the fourth agent stood to the side of the door,
out of sight. The agents were wearing bulletproof vests, each affixed with a badge
that read “U.S. Customs,” and all four agents had their weapons holstered. After
Agent Hartnett knocked and announced, “police,” Gutierrez appeared at the door.
Agent Hartnett asked for permission to speak with Gutierrez, who replied, “Yeah,
come on in,” opened the door, and retreated down the hallway to the living room.
Agent Hartnett followed, while the other three agents entered and performed a
protective sweep of the apartment.
As he entered the living room, Agent Hartnett informed Gutierrez in English
that he and his associates were federal agents and that the apartment was the
subject of an investigation. Continuing in English, Agent Hartnett asked whether
Gutierrez had any weapons or contraband on him. Gutierrez said no, and so Agent
Hartnett asked if he could search him. Gutierrez responded “Yeah” or “Yeah sure,”
and then raised his arms out to his sides “like an airplane.”
While performing the search, Agent Hartnett felt an object in one of
Gutierrez’s shirt pockets and asked him what it was. “Cocaine,” Gutierrez replied.
Agent Hartnett retrieved the object, which laboratory tests later confirmed was
cocaine, and then handcuffed Gutierrez to finish searching him. Hartnett explained
at the suppression hearing that he handcuffed Gutierrez because he figured that if
Gutierrez had lied about not having cocaine, he might have been lying about not
having weapons as well. Finding no weapons, Agent Hartnett removed the
handcuffs and sat Gutierrez on the couch.
By this point, Agent Wessner had rejoined Agent Hartnett in the living room,
where the two obtained Gutierrez’s consent to a search of his residence. Agent
Hartnett retrieved a Spanish-language, consent-to-search form that he had used in
previous investigations. Gutierrez read it, then turned to Agent Wessner and said
in Spanish “You already searched.” Hartnett explained that a protective sweep of
the apartment had been conducted but not a search. Hartnett went on to explain to
Gutierrez that the discovery of cocaine in his shirt pocket would be sufficient to
contact the U.S. Attorney’s Office and prepare a search-warrant application to
search the residence. With that information, Gutierrez signed the form; in the
subsequent search, agents found two bricks of cocaine wrapped in separate
packaging, one of which had been sliced open, in the kitchen cabinets. Throughout
this encounter, as Agent Hartnett described it, Gutierrez’s demeanor was “calm and
No. 06-2006 Page 3
cooperative,” though Agent Wessner suggested that Gutierrez seemed “stressed” at
times.
Although Gutierrez did not testify at the suppression hearing, the defense did
call Carlos Mendoza, a court reporter who the parties stipulated was an expert in
Spanish-English translation. Mendoza analyzed the consent form and concluded
that it was poorly translated from English to Spanish. On cross-examination,
Mendoza admitted that his analysis of the form was purely based on the words as
they appeared on paper rather than on the context in which the form was
presented, and that despite the errors, he could translate the document roughly to
mean consent to search.
The district court credited the testimony of Agents Hartnett and Wesser and
determined that the two searches were consensual. The court also credited
Mendoza’s testimony, remarked that the consent form probably was poorly
translated, and advised the government to have that problem corrected. But the
judge did not think there was any question about what the form meant, for as he
said, “it’s obviously a consent to search form.” The judge then denied the motion to
suppress. Gutierrez was convicted after a jury trial and sentenced to 70 months’
imprisonment to be followed by a four-year term of supervised release.
Gutierrez argues for the first time on appeal that his consent was tainted by
the fact that the agents subjected him to an illegal detention. Specifically, he says
that the encounter had become a nonconsensual “seizure” by the time the agents
performed the pat-down search. In an effort to show the intrusiveness of the
encounter, Gutierrez emphasizes that he was approached by four agents wearing
“identifying police logos on their clothes” in the “late afternoon.” With those facts,
says Gutierrez, his case is like United States v. Jerez, 108 F.3d 684 (7th Cir. 1997),
in which this court invalidated consent that was given immediately following an
illegal seizure. The government responds that this argument should be reviewed
for plain error because it was never raised in the district court, and that in any
event, there was no detention at all until the officers found cocaine in Gutierrez’s
shirt pocket and handcuffed him.
The government is correct that Gutierrez never raised the illegality of his
detention in the district court, rendering this court’s review for plain error. See
United States v. Johnson, 415 F.3d 728, 730 (7th Cir. 2005). In reviewing the
argument, we ask whether “a reasonable person would feel free to decline the
officers’ request or otherwise terminate the encounter.” Jerez, 108 F.3d at 689(quoting Florida v. Bostick, 501 U.S. 429, 436 (1991)). Here, the agents testified
that they approached Gutierrez’s apartment while the sun was still out, gave no
commands, did not draw their guns, and applied no pressure to gain entry. Despite
Gutierrez’s attempt to recast these facts as more akin to those in Jerez, we find that
No. 06-2006 Page 4
a reasonable person in Gutierrez’s circumstances would have felt free to terminate
the encounter. Thus, Gutierrez has not met his burden of showing a plain error.
Gutierrez also argues that the district court erred in finding that he
voluntarily consented to the two searches. He says that the pat-down search was
involuntary because the agents failed to inform him of his constitutional right to
refuse consent. But the advisement of rights is just one of a totality of
circumstances that courts take into account in determining the voluntariness of
consent. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); United States v.
LaGrone, 43 F.3d 332, 333-34 (7th Cir. 1994). Further, informing a suspect of his
right to refuse consent is not required for a valid consent because “it would be
thoroughly impractical to impose on the normal consent search the detailed
requirements of an effective warning.” Schneckloth, 412 U.S. at 231, 232-33. The
ultimate question is whether, under the totality of the circumstances, the consent
appeared voluntary to a reasonable officer. United States v. Grap, 403 F.3d 439,
444 (7th Cir. 2005). Here, the testimony about Gutierrez’s “calm and cooperative”
demeanor, together with his immediate agreement to be searched, plus the fact that
he assumed an “airplane” stance without any prompting from the agent, provided
the district court with enough evidence to conclude that Gutierrez voluntarily
consented to the search.
Gutierrez also argues that his next consent, to the search of his residence,
was not voluntary. As he sees it, this consent was involuntary because (1) he was
not given Miranda warnings, (2) Agent Hartnett threatened to obtain a warrant,
and (3) the consent form was defective. But Miranda warnings are not required for
a consent to search to be deemed voluntary, see United States v. Renken,
No. 05-2838, 2007 WL 255383, *3-*4 (7th Cir. Jan. 31, 2007), and while “baseless
threats” to obtain a warrant can invalidate consent, see United States v. White,
979 F.2d 539, 542 (7th Cir. 1992), the threat here was anything but; agents had just
found cocaine on Gutierrez’s person and could readily have obtained a warrant
based on that discovery.
Gutierrez’s argument about the consent form is less understandable. He
calls the form “defective” and seems to suggest that he did not understand the
consent form because it was poorly translated. Yet he offers no reason why the
district court was wrong to conclude that given the context of the encounter, he
must have understood that the agents were asking for permission to search.
Gutierrez’s response to the form—“You already searched”—alone supports the
district court’s conclusion that Gutierrez knew and understood the effect of signing
the form.
Gutierrez finally seems to allege, for the first time on appeal, that his
language difficulty is not with Spanish but with English, and that this difficulty
allowed the police to pressure him to sign the consent form. But at the suppression
No. 06-2006 Page 5
hearing, counsel urged that Gutierrez did not know Spanish well enough to
understand the consent form. Moreover, the district court asked Gutierrez at two
separate proceedings whether he spoke English, and he replied that he did and that
he did not need an interpreter.
AFFIRMED.