United States v. Salvador Flores

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1938
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Salvador Flores, *
*
Appellant. *
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Submitted: October 16, 2006
Filed: January 25, 2007
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Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
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WOLLMAN, Circuit Judge.
Salvador Flores appeals from his conviction for possession with the intent to
distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1). We
affirm.
I.
On January 9, 2005, Nebraska Deputy Sheriff Bill Maddux was on routine
patrol, traveling east on Interstate 80 in Seward County, Nebraska, when he came
upon a vehicle driven by Flores, also traveling east. Maddux followed Flores for a
short distance and observed Flores’s vehicle twice cross the center line. Maddux
thereafter conducted a traffic stop because of Flores’s failure to maintain a single lane
of travel and driving left of center and to determine whether Flores was impaired.
Maddux activated his video camera and audio recorder, exited the patrol car,
and approached Flores’s vehicle. As he approached, Maddux noticed two air
fresheners in the back window deck of the vehicle and a Febreze deodorizer bottle on
the rear floorboard. Maddux then had a conversation with Flores, the lone occupant
of the vehicle, explained the reason for the stop, and asked him for his proof of
insurance, vehicle registration, and driver’s license. During this conversation,
Maddux detected a strong air-freshener fragrance emanating from the vehicle and
observed an additional air freshener hanging from the steering column and three
cellular telephones in the front seat, one mounted on the dashboard, one plugged into
a charger, and one lying on the front seat. Maddux found the presence of multiple air
fresheners and cellular telephones to be significant because, based on his training and
experience, he knew that people transporting large amounts of narcotics commonly
use numerous deodorizers to eliminate the smell of such narcotics and commonly
carry their own phone, plus phones given to them from the individuals for whom the
narcotics are being transported so they can stay in contact during the trip.
Once Flores retrieved the requested documents, Maddux had him exit the
vehicle and take a seat in the front passenger side of his patrol car. Inside the patrol
car, Maddux reviewed Flores’s documents and had the dispatcher run Flores’s
information through the computer. During this process, Maddux asked Flores where
he was headed, to which Flores replied that he had been in Colorado for a couple of
weeks visiting family and was now returning home to Illinois. Maddux also learned
that Flores was married and, when Maddux asked him where he worked, Flores
hesitated and then showed Maddux the logo on the pocket of his jacket. Maddux
found it strange that Flores would go on what appeared to be a family vacation while
his family remained in Illinois. Maddux also thought it suspicious that Flores
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hesitated upon being asked where he worked and that he found it necessary to use his
jacket as a means of identifying his employer.
The dispatcher eventually informed Maddux that everything was in order with
Flores’s driver’s license and vehicle registration. Maddux subsequently issued Flores
a written warning for driving left of center, explained it to him, returned all of Flores’s
documents, and told him that he was free to go. As Flores was preparing to leave the
patrol car, Maddux asked if he could ask him a few questions. Flores replied, “Yeah,
sure,” and remained standing next to the passenger side door of the patrol unit. From
inside the patrol unit, Maddux asked Flores if he had any marijuana, cocaine, or
weapons in the vehicle, to which Flores responded that he did not. Maddux then
asked Flores if he could search his car, to which Flores replied, “Yeah.” The entire
encounter between Flores and Maddux was recorded on video tape and conducted in
English.
Maddux had Flores take a seat in the patrol unit and then proceeded to conduct
a search of Flores’s vehicle. Maddux discovered that the spare tire in the trunk had
no air in it and was not beaded onto the rim. As he lifted the tire from the trunk
Maddux, who had worked at a service station changing tires while in college, noticed
that it was heavier than it should have been. He heard and felt objects within the tire
as he rolled it around on the roadway. Maddux cut open the tire and found nine
packages of methamphetamine located within. Flores was subsequently arrested and
charged with possession with the intent to distribute more than 500 grams of
methamphetamine.
Prior to trial, Flores moved to suppress the evidence found during the search of
his vehicle, arguing that he was unreasonably detained by Maddux and that his
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consent to search was not voluntarily given. The district court,1 relying on the report
and recommendation issued by the magistrate judge,2 held that Flores was not
unreasonably detained because the encounter between Flores and Maddux that
continued after Flores had exited the vehicle was consensual, that the continued
contact was supported by reasonable suspicion, and that Flores voluntarily consented
to the search of his vehicle. A jury subsequently found Flores guilty, whereupon the
district court imposed a sentence of 235 months’ imprisonment, five years of
supervised release, and a $100 special assessment.
II.
Flores contends that the district court erred when it denied his motion to
suppress the evidence found during the search of his vehicle. We review a district
court’s factual determinations supporting a denial of a motion to suppress for clear
error and its conclusions of law de novo. United States v. Velazquez-Rivera, 366 F.3d
661, 664 (8th Cir. 2004). “We review the lower court’s determination of whether a
voluntary consent to a search was given under the clearly erroneous standard.” United
States v. Barahona, 990 F.2d 412, 417 (8th Cir. 1993).
Flores acknowledges that he was lawfully stopped and that Maddux’s initial
investigation was permissible. It is Maddux’s questioning of Flores after this initial
investigation and after he had returned Flores’s documents that Flores raises as an
issue. He contends that this questioning was not consensual and therefore constituted
a seizure under the Fourth Amendment that was not supported by a reasonable
suspicion. We disagree.
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
2
The Honorable F.A. Gossett, United States Magistrate Judge for the District
of Nebraska.
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An officer may conduct an investigation reasonably related to the scope of a
lawful stop. United States v. Jones, 269 F.3d 919, 924 (8th Cir. 2001). Once this
initial investigation is finished, however, the purpose of the traffic stop is complete
and further detention of the driver or vehicle would be unreasonable, “‘unless
something that occurred during the traffic stop generated the necessary reasonable
suspicion to justify a further detention’” or unless the continued encounter is
consensual. Id. at 925 (quoting United States v. Mesa, 62 F.3d 159, 162 (6th Cir.
1995)). If consensual, the continued encounter is not considered a seizure, the Fourth
Amendment is not implicated, and the officer is not prohibited from asking questions
unrelated to the traffic stop or seeking consent to search the vehicle. Id.The determination whether an encounter is consensual depends upon the unique
factual nature of each case. Jones, 269 F.3d at 925. “A seizure does not occur simply
because a law enforcement officer approaches an individual and asks a few questions
or requests permission to search an area . . . .” United States v. White, 81 F.3d 775,
779 (8th Cir. 1996). Rather, a person is considered to be seized when, considering all
the circumstances, “‘a reasonable person would have believed that he was not free to
leave.’” Jones, 269 F.3d at 925 (quoting United States v. Mendenhall, 446 U.S. 544,
545 (1980)). Circumstances supportive of a finding that a seizure occurred include
“‘the threatening presence of several officers, the display of a weapon by an officer,
some physical touching of the person of the citizen, or the use of language or tone of
voice indicating that compliance with the officer’s request might be compelled.’”
White, 81 F.3d at 779 (quoting United States v. Angell, 11 F.3d 806, 809 (8th Cir.
1993)). If, however, “a reasonable person would feel free ‘to disregard the police and
go about his business,’” we consider the encounter consensual. Id. (quoting California
v. Hodari D., 499 U.S. 621, 628 (1991)).
The facts present here support a determination that Flores was no longer seized
within the meaning of the Fourth Amendment after Maddux returned his documents
to him and issued the warning ticket. Similar to the circumstances found in White, a
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case in which we determined the encounter to be consensual, the tone of the entire
exchange between Maddux and Flores was cooperative, Flores had everything he
needed to proceed with his journey, and Maddux displayed no weapon during the
encounter. See id. at 779. The fact that Flores was informed that he was free to leave
and was in the process of leaving the patrol car before Maddux inquired whether he
could ask more questions further supports a finding that the continued encounter was
consensual, as does the fact that Maddux was the only officer present at the scene and
remained seated in the patrol car while making this inquiry. See Jones, 269 F.3d at
926; White, 81 F.3d at 779. In light of these circumstances, we agree with the district
court’s finding that the encounter was consensual and that Fourth Amendment
considerations are thus not relevant. Accordingly, we need not address whether
Maddux had reasonable suspicion for such encounter.
Flores further contends that his consent to search his vehicle was not voluntarily
given and that the evidence obtained during this search should therefore be
suppressed. We disagree.
“Consent is voluntary if it was ‘the product of an essentially free and
unconstrained choice by its maker, rather than the product of duress or coercion,
express or implied.’” United States v. Bradley, 234 F.3d 363, 366 (8th Cir. 2000)
(quoting United States v. Chaidez, 906 F.2d 377, 380 (8th Cir. 1990)). In determining
whether consent was voluntary, we look at the totality of the circumstances,
“including ‘both the characteristics of the accused and the details of the
interrogation.’” Id. (quoting Chaidez, 906 F.2d at 380-81). Characteristics of persons
giving consent that may be relevant include:
(1) their age; (2) their general intelligence and education; (3) whether
they were intoxicated or under the influence of drugs when consenting;
(4) whether they consented after being informed of their right to
withhold consent or of their Miranda rights; and (5) whether, because
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they had been previously arrested, they were aware of the protections
afforded to suspected criminals by the legal system.
Id. (citing Chaidez, 906 F.2d at 381). Relevant characteristics of the environment
in which consent was given include:
whether the person who consented (1) was detained and questioned for
a long or short time; (2) was threatened, physically intimidated, or
punished by the police; (3) relied upon promises or misrepresentations
made by the police; (4) was in custody or under arrest when the consent
was given; (5) was in a public or a secluded place; or (6) either objected
to the search or stood by silently while the search occurred.
Id. (citing Chaidez, 906 F.2d at 381). These factors are not to be applied
mechanically, but serve as a valuable guide to our analysis. Chaidez, 906 F.2d at 381.
In light of the totality of the circumstances, we find no clear error in the district
court’s finding that Flores’s consent was voluntarily given. Flores is an adult who
consented to the search after only brief questioning. Maddux did not threaten him,
intimidate him, or cause him to rely on any promises or misrepresentations, and Flores
voiced no objection to Maddux’s search of the vehicle. There was no evidence that
Flores was intoxicated or under the influence of drugs, and the roadside encounter was
not unduly coercive. See id. at 382 (holding that sitting in a patrol car on the shoulder
of a public highway during daylight hours is not an unduly coercive setting).
The fact that the communication between Maddux and Flores took place in
English, rather than in Spanish – Flores’s primary language – does not suggest a
finding of involuntariness. Flores promptly retrieved his documents in response to
Maddux’s request and consistently answered Maddux’s questions in English, giving
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Maddux no indication that Flores did not understand the conversation. As a result, it
was reasonable for Maddux to believe that Flores had consented to the search.
The fact that Flores was never informed of his right to withhold consent and
that there is no evidence that he had previously been arrested or was otherwise
familiar with protections afforded to him are not determinative of the issue. Chaidez,
906 F.2d at 381.
III.
Flores contends that the evidence was insufficient to convict him of possessing
with the intent to distribute more than 500 grams of methamphetamine. We review
a challenge to the sufficiency of the evidence de novo and “‘view the evidence in the
light most favorable to the government, resolving evidentiary conflicts in favor of the
government, and accepting all reasonable inferences drawn from the evidence that
supports the jury’s verdict.’” United States v. Chapman, 356 F.3d 843, 847 (8th Cir.
2004) (quoting United States v. Abfalter, 340 F.3d 646, 654-55 (8th Cir. 2003)). We
will reverse only if “‘no reasonable jury could have found [the defendant] guilty
beyond a reasonable doubt.’” United States v. Exson, 328 F.3d 456, 460 (8th Cir.
2003) (quoting United States v. Carter, 270 F.3d 731, 734 (8th Cir. 2001)).
The evidence presented to the jury shows, among other things, that Maddux
found more than 3,500 grams of 90 to 95% pure methamphetamine in the spare tire
of Flores’s vehicle, that Flores had three cellular telephones within the vehicle, and
that Flores’s vehicle contained multiple air fresheners and smelled strongly of such
fragrance.
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Flores’s dominion over the vehicle alone could support a finding that he
knowingly possessed the methamphetamine, see United States v. Flores, 362 F.3d
1030, 1036 (8th Cir. 2004), as could the presence of multiple cellular telephones and
air fresheners in light of Maddux’s testimony regarding the use of cellular telephones
and air fresheners by drug transporters. Further, the possession of such a large
quantity of high-level purity methamphetamine supports a finding that Flores had the
intent to distribute the methamphetamine. See United States v. Serrano-Lopez, 366
F.3d 628, 635 (8th cir. 2004) (“A large quantity of drugs, standing alone, is sufficient
evidence of . . . intent to distribute.”); United States v. Brett, 872 F.2d 1365, 1370 (8th
Cir. 1989) (“Purity level is another factor properly considered with respect to intent
to distribute.”). Considering this evidence as a whole, and the favorable light in which
it must be viewed, we cannot say that it was unreasonable for the jury to find Flores
guilty.
The judgement is affirmed.
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