U.S. v. Pena, 97-2112

• Citation: 143 F.3d 1363
• Decision Date: 12 May 1998
• Docket Number: No. 97-2112,97-2112
• Parties: 98 CJ C.A.R. 2272 UNITED STATES of America, Plaintiff-Appellee, v. Marcos Amabiles PENA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1363

143 F.3d 1363

98 CJ C.A.R. 2272

UNITED STATES of America, Plaintiff-Appellee, v. Marcos Amabiles PENA, Defendant-Appellant.

No. 97-2112.

United States Court of Appeals Tenth Circuit.

May 12, 1998.

Joseph W. Gandert, Assistant Federal Public Defender, Albuquerque, NM, for Defendant-Appellant.

Renee L. Camacho, Assistant U.S. Attorney, Las Cruces, NM, (John J. Kelly, U.S. Attorney, and Charles L. Barth, Assistant U.S. Attorney, Albuquerque, NM, on the brief), for Plaintiff-Appellee.

Before PORFILIO, HOLLOWAY, and TACHA, Circuit Judges.

TACHA, Circuit Judge.

Defendant Marcos Pena was convicted of possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), and 18 U.S.C. § 2(a). Prior to trial, Pena filed a motion to suppress evidence, but the district court denied the motion. He appeals that denial, asserting that he did not consent to the search during which the police found the drugs that he was convicted of possessing, and that even if he did give his consent, the officers' search exceeded the scope of his consent. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I. Facts

On March 8, 1996, Albuquerque Police Department Officer Stephen Devoti was dispatched to the Friendship Inn to investigate a report from an anonymous caller that two Cubans were dealing drugs out of Room 312. Officer Devoti learned at the front desk of the motel that the room was registered under the defendant's name. For the next two hours, Devoti observed the room from a park across the street from the motel. Then, Officer Devoti, accompanied by three other officers, went to the door of the room, knocked, and identified himself in Spanish as a police officer. The defendant opened the door. Officer Devoti asked Pena whether he spoke English, and Pena said that he did, though Pena later testified that he does not understand much English. Devoti testified that he believed Pena understood what Devoti said in English without difficulty. In English, Devoti told Pena that the police had received complaints about the room, that there was too much foot traffic to and from the room, and that he could smell marijuana. According to Devoti, Pena stated that he and a friend, Luis Gonzalez, had smoked marijuana but that it was all gone. At the suppression hearing, Pena denied that this conversation occurred.

Devoti testified that he then asked Pena, "You wouldn't mind if I looked then, if I had a look in the room?" On cross-examination, Devoti was unable to recall the exact form of the permission Pena gave, but he testified that Pena said "something to the effect, 'Yeah, go ahead.' " Pena testified to the contrary. He said that he gave the officers permission to enter the motel room but never gave them permission to search the room.

Devoti then told Pena to sit down on the bed with Gonzalez, who was still in the room with Pena. While Devoti watched Pena and Gonzalez, fellow officers Michael Sullivan and Lawrence Horan entered the bathroom. They saw two marijuana cigarettes floating in the toilet. The officers then placed Pena and Gonzalez under arrest. Officer Sullivan went back into the bathroom and removed a ceiling tile in the bathroom above the toilet and found a bag of marijuana. Officer Horan inserted his head into the hole where the ceiling tile had been and found two bags of crack cocaine. After he discovered the crack cocaine, Officer Horan transported Pena and Gonzalez to jail.

II. Discussion

On appeal, the defendant first asserts that he did not freely and voluntarily consent to the search of his motel room. Second, he argues that even if he did consent to the search, the officers exceeded the scope of that consent by searching the bathroom and above the ceiling in the bathroom. When reviewing a district court's grant or denial of a motion to suppress, we accept the court's findings of fact unless clearly erroneous and consider the evidence in the light most favorable to the government. See United States v. Elliott, 107 F.3d 810, 813 (10th Cir.1997).

A. Consent to Search

The officers did not have a warrant to search the motel room. While a police search conducted without a warrant would constitute a violation of the Fourth Amendment in other circumstances, it is well settled that "one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973). Thus, the pivotal issue here is whether Pena gave the officers consent to search the motel room, including the bathroom. Valid consent is that which is " 'freely and voluntarily given.' " Id. at 222, 93 S.Ct. at 2045 (quoting Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968).) Whether a defendant freely and voluntarily gave his consent to a search is a question of fact and is determined from the totality of the circumstances. United States v. Santurio, 29 F.3d 550, 552 (10th Cir.1994) (citing United States v. Mendenhall, 446 U.S. 544, 557, 100 S.Ct. 1870, 1878-79, 64 L.Ed.2d 497 (1980)).

The district court found "that consent was given, that the Defendant did understand the request by Officer Devoti to look around, to examine, to check the room...." Tr. Vol. III at 128-29. The defendant asserts that this finding was clearly erroneous and that he did not freely and voluntarily give his consent because, among other reasons, (1) his alleged response to the search request, "go ahead," was not unequivocal and specific; (2) the defendant's lack of understanding of English inhibited him from intelligently giving his consent; (3) the police failed to inform him that he could have refused or withdrawn his consent; and (4) the defendant was confronted with four armed officers when Officer Devoti asked him for his consent to search.

The government has the burden of proving valid consent to a warrantless search. United States v. Cody, 7 F.3d 1523, 1526 (10th Cir.1993). First, it must present "clear and positive testimony that consent was unequivocal and specific and freely and intelligently given." United States v. Angulo-Fernandez, 53 F.3d 1177, 1180 (10th Cir.1995) (citations and internal quotation marks omitted). Second, the government must show that the police did not coerce the defendant into granting his consent. See id.

Under the first step of this two-part test, the government presented clear and positive testimony that Pena gave his specific and unequivocal consent to search the motel room, and that he did so freely and intelligently. In response to Officer Devoti's question, "You wouldn't mind if I looked then, if I had a look in the room," Pena responded with words to the effect of "go ahead." At the suppression hearing, the defendant denied ever giving this response. On appeal, he renews that assertion and also argues that the government did not meet the first step of the two-part test because his response of "go ahead," if actually said, was not unequivocal and specific and because his lack of understanding of English inhibited him from intelligently giving his consent.

The district court simply did not believe Pena's contention that he did not acquiesce when the officers requested to search the room. "Evaluation of the credibility of witnesses, the weight to be given the evidence, and inferences to be drawn from the evidence are for the district court." United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir.1996). Thus, we defer to the district court's evaluation of the defendant's credibility on this matter. ¹

In addition, contrary to Pena's argument that his alleged response of "go ahead" was not unequivocal and specific, we find that the district court properly concluded that the statement was an unequivocal and specific consent. The statement was in direct response to Officer Devoti's request to search the room. Further, Pena's assertion that his lack of understanding of English kept him from intelligently consenting to the search is without merit. The record demonstrates that Pena spoke and understood more than enough English to know what Devoti asked him. Devoti testified that Pena, although he had a strong accent, had no trouble conversing with him in English. Officer Horan testified that he had a conversation in English with Pena while en route to book him into jail. Pena asked Horan in English whether money seized from him would be returned. Horan and Pena also discussed the gold watch Pena was wearing. At one point during the government's cross-examination of Pena at the suppression hearing, the court noted that Pena answered a question that had been asked in English before it was translated for him.

There was extensive testimony to serve as a basis for the district court's finding that the defendant freely and intelligently gave his specific and unequivocal consent to the search. Pena's arguments do not undermine the court's finding. The district court did not believe the defendant's assertion that he did not consent to the search, nor did the district court believe Pena's contention that he does not speak English or that his statement of "go ahead" was not a clear response to Officer Devoti's specific request to search. We cannot say that the district court clearly erred in finding that Pena freely and intelligently gave specific and unequivocal consent to search his motel room.

Turning to the second part of the two-step test, we hold that the government proved the police did not coerce the defendant into granting his consent to search. In determining whether a consent to search was free from coercion,

a court should consider, inter alia, physical mistreatment, use of violence, threats, threats of violence, promises or inducements, deception or trickery, and the physical and mental condition and capacity of the defendant within the totality of the...