United States v. Marco Perez

FILED
NOT FOR PUBLICATION FEB 04 2013
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. 11-50389
Plaintiff - Appellee, D.C. No. 2:10-cr-00760-CAS-1
v.
MEMORANDUM *
MARCO JOSHUA PEREZ, AKA Jack
Mario Orfalina, AKA Shy, AKA Shy boy,
AKA Shy One, AKA Victor Wakey, AKA
Wacky,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted January 7, 2013
Pasadena, California
Before: CANBY, REINHARDT, and WARDLAW, Circuit Judges.
Marco Joshua Perez pled guilty to possession of methamphetamine with
intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). His
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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plea was conditioned on his right to appeal the district court’s denial of his motions
to suppress evidence recovered from a search of his truck and subsequently of his
home. We hold that the district court erred in determining that the consent to
search Perez’s vehicle was voluntary. The district court made no further finding
with respect to whether the agents would have gone to Perez’s home had they not
seen the evidence seized during the illegal search. Because a hearing is necessary
to determine whether this illegal search prompted the officers’ visit to Perez’s
home, we remand to the district court for further findings on this issue.1
Involuntary Consent
As our precedent makes clear, the “government bears the heavy burden of
demonstrating that the consent was freely and voluntarily given.” United States v.
Chan–Jimenez, 125 F.3d 1324, 1327 (9th Cir. 1997) (citation omitted). The
government did not meet that burden here. We consider five factors to determine
whether consent was voluntarily given: “(1) whether the person was in custody; (2)
whether the officers had their guns drawn; (3) whether a Miranda warning had
been given; (4) whether the person was told that he had the right not to consent;
and (5) whether the person was told that a search warrant could be obtained.”
1
Because we reverse on the issue of involuntary consent and remand for
determination of whether the evidence seized thereafter was a fruit of the illegal
vehicle search, we do not reach the other issues raised on appeal.
2
United States v. Reid, 226 F.3d 1020, 1026 (9th Cir. 2000) (citation omitted). The
district court did not engage in an analysis of each of these five factors, but it
nonetheless found the consent given by the driver of Perez’s truck, Garcia, to have
been voluntarily given. An analysis of these factors makes clear, however, that
Garcia’s consent was involuntary and the search was, therefore, illegal.
As to the first factor, Garcia may not have been under arrest in all respects,
but he was de facto in custody because he was ordered out of the vehicle, frisked,
seated, and forbidden to rise. He was told, “You can’t stand up because we[’]re
ordering you to sit down.” See United States v. Curtis, 568 F.2d 643, 646 (9th Cir.
1978) (“If the person reasonably believes that he cannot leave freely, he is
considered in custody[.]”) (quoting United States v. Luther, 521 F.2d 408, 410 (9th
Cir. 1975)). As to the second factor, Garcia testified that when he was asked to
step out of the vehicle, he saw “guns drawn by uniform[ed] police officers.” The
third and fourth factors favor a finding of involuntariness because Garcia was not
advised of his right to refuse to consent or given a Miranda warning. He was also
denied his right to call his lawyer, despite his repeatedly asking to do so. Perez’s
case meets four of the five factors. In Reid, this court found consent to be
involuntary on facts very similar to this case: “the officers ordered [the individual]
up against the sliding glass door, placed him in a spread eagle position, frisked
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him, and then handcuffed him[,] . . . at least one officer had his gun drawn[,] . . .
[and] the officers neither read [the individual] his Miranda rights nor informed him
that he had the right not to consent to the search.” 226 F.3d at 1027. In light of
Reid and the totality of the circumstances, Garcia’s consent was involuntary and
the resulting search of Perez’s truck illegal. The district court clearly erred in
concluding otherwise.
Fruits of the Illegal Search
Because the consent to the vehicle search was involuntary, we must next
determine what, if any, evidence should be suppressed as a fruit of the illegal
search. The only evidence directly obtained as a result of that search was Perez’s
home address and Garcia’s cell phone. Because the police were also able to obtain
Perez’s address from the “independent source” of checking the registration of the
vehicle, the address need not be suppressed. United States v. Beardslee, 197 F.3d
378, 386 (9th Cir. 1999). Nor does Perez have standing to challenge the $3,976 in
cash and the criminal case number seized from Garcia’s person. The contrary is
true, however, of the photographs and text messages from the cell phone indicating
that drug transactions were in progress. This evidence was seized and searched
during the illegal search of Perez’s truck and, thus, constitutes “the fruit of the
poisonous tree.”
4
Perez seeks the suppression of the evidence seized from his home. This
evidence was obtained after the officers went there, according to officer Segura’s
declaration, in order to “ask him if he gave Garcia permission to be in possession
of his vehicle and to see if he would give [the officers] consent to search his
residence for drugs.” The officers’ suspicion that Perez might have drugs at his
home seems to have arisen, at least in part, as a result of their seeing the
incriminating photographs and text messages on Garcia’s phone.
In Wong Sun v. United States, the Supreme Court made clear that in
determining the “fruit of the poisonous tree” question, we ask “whether, granting
establishment of the primary illegality, the evidence to which instant objection is
made has been come at by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary taint.” 371 U.S. 471, 488
(1963) (citation omitted). In cases in which we deal with evidence obtained
indirectly, as here, “we have stated the test to be whether the illegal activity tends
to significantly direct the investigation to the evidence in question.” United States
v. Chamberlin, 644 F.2d 1262, 1269 (9th Cir. 1980) (citations omitted) (emphasis
added); see also United States v. Davis, 332 F.3d 1163, 1171 (9th Cir. 2003). The
record before us does not disclose whether the illegally seized evidence from
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Garcia’s phone “tend[ed] to significantly direct the investigation” to the search of
Perez’s home. Chamberlin, 644 F.2d at 1269 (citations omitted).
The Supreme Court addressed similar circumstances in United States v.
Murray, 487 U.S. 533 (1988). It explained that a search pursuant to a warrant was
not a “genuinely independent source . . . . if the agents’ decision to seek the
warrant was prompted by what they had seen during the initial entry.” Id. at 542.
Therefore, it remanded for a factual determination as to whether the officers would
have sought a search warrant regardless of the illegal entry. Id. at 543-44; see also
United States v. Duran-Orozco, 192 F.3d 1277, 1281 (9th Cir. 1999) (remanding
for a determination of whether agents would have sought a search warrant absent
their prior illegal search).
In this case, we cannot determine from the record to what extent the officers’
decision to go to Perez’s home was motivated by the evidence seized from the
illegal search of Perez’s vehicle, and thus, “whether the illegal [vehicle search]
tend[ed] to significantly direct the investigation to [Perez’s home].” Chamberlin,
644 F.2d at 1269 (citations omitted). The district court did not consider this issue
or make any factual findings regarding whether the illegally seized evidence
prompted the officers’ decision to go to Perez’s home because it found the vehicle
search to be lawful. Distr. Ct. Op. at 10 n.9 (“Because the Court finds that the
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search of defendant’s vehicle . . . was conducted pursuant to lawful consent, the
Court does not reach the question of whether the search of defendant’s residence
and statements he made during that search must be suppressed because they are the
poisonous fruits of the vehicle search.”). In short, our review depends on both a
factual finding and a legal determination that the district court did not make.
Accordingly, we remand to the district court to determine whether the
officers were prompted to go to Perez’s home by the evidence uncovered as a
result of the illegal search of his vehicle, specifically the photographs and text
messages relating to drugs on Garcia’s cell phone. If the illegally seized evidence
“tend[ed] to significantly direct” the officers’ decision to go to Perez’s home, the
evidence seized in the search of that home must be suppressed. Chamberlin, 644
F.2d at 1269 (citations omitted).
REMANDED.
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