U.S. v. Sanchez, 97-4217

• Decision Date: 28 September 1998
• Docket Number: No. 97-4217,97-4217
• Citation: 156 F.3d 875
• Parties: UNITED STATES of America, Plaintiff--Appellee, v. Gilberto SANCHEZ, Defendant--Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 875

156 F.3d 875

UNITED STATES of America, Plaintiff--Appellee, v. Gilberto SANCHEZ, Defendant--Appellant.

No. 97-4217.

United States Court of Appeals,

Eighth Circuit.

Submitted April 16, 1998.

Decided Sept. 28, 1998.

John C. Vanderslice, Asst. Federal Public Defender, Lincoln, NE, argued, for appellant.

Michael G. Heavican, Asst. U.S. Atty., Omaha, NE, argued, for appellee.

Before FAGG, JOHN R. GIBSON, and HANSEN, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Gilberto Sanchez appeals from the sentence imposed upon him following his conditional guilty plea to a charge of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (1994). Sanchez first argues that the district court ¹ erred in denying his motion to suppress the methamphetamine seized following what the court determined to be a consensual search. Second, he argues that the jury selection process employed below violated the Sixth Amendment's fair-cross-section requirement by systematically excluding various racial and ethnic groups; see Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). We affirm Sanchez's conviction and sentence.

During the morning of June 14, 1996, DEA Agent Charles Noonan received an anonymous telephone call regarding an impending delivery of "speed" to Omaha. The caller related the courier's travel plans: the individual would arrive in Omaha at 12:00 by Amtrak from California, via Kansas City. The courier was described as an Hispanic male named Gilbert, approximately five feet eight inches in height, with curly dark hair, a light mustache, and a medium to dark complexion. A later call from the anonymous source revealed the courier's last name as Sanchez. Noonan contacted Amtrak and was informed that it provides no rail service between Kansas City and Omaha; nevertheless, he learned that Amtrak passengers bound for Omaha frequently arrive from Kansas City by Greyhound bus. Noonan then called Omaha's Greyhound bus depot and discovered that a bus would arrive from Kansas City at 11:20 a.m. that day.

Noonan asked DEA Agents William Johannes and James McDowell to accompany him to the bus station. The three arrived shortly after 11:00 a.m., and Noonan awaited the Kansas City bus's arrival. Noonan observed three Hispanic males get off of the bus; one of the men matched the anonymous caller's description almost identically, and was later identified as Gilberto Sanchez. As Sanchez walked through the bus terminal, his behavior was fidgety and nervous. Johannes entered the terminal, and he and Noonan finally approached Sanchez. They identified themselves as DEA agents and displayed their credentials. Noonan told Sanchez that he would like to speak with him for a few minutes but informed Sanchez that he was under no obligation to speak with them. When asked his name, Sanchez replied "Gilbert." Noonan then asked for a last name, which Sanchez provided. When Noonan asked to see Sanchez's identification, Sanchez handed him his bus ticket. Noonan then asked whether Sanchez had any photographic identification, and Sanchez provided a fake California driver's license. All the while, Sanchez's hands shook nervously.

Johannes asked Sanchez if he could inspect the two bags that Sanchez was carrying but informed Sanchez of his right not to consent to the search. Sanchez initially said that Johannes could inspect the bags. Sanchez then stated that DEA agents in Kansas City had already done so. Johannes responded that he nevertheless wished to inspect the bags again, and he again told Sanchez that he did not have to permit the search. Sanchez once more told Johannes and Noonan that they could look through the bags. Johannes inspected a duffle bag and found a starter jacket inside. He felt an object in one of the jacket pockets, and he removed a large bundle wrapped tightly in black duct tape. Johannes asked Sanchez what the bundle contained, and Sanchez replied, "Meth." Noonan then arrested and handcuffed Sanchez. After transporting Sanchez to the DEA office, Johannes advised Sanchez of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Sanchez said that he understood his rights but that he did not understand English very well. At that point, Noonan and Johannes ended the conversation.

Before the district court, Sanchez moved to suppress the methamphetamine seized from his jacket. He argued he did not understand English, that Noonan and Johannes knew or should have known of this language barrier, and that this barrier vitiated Sanchez's consent to the luggage search. The magistrate judge ² denied the motion, finding that Sanchez had consented to the search or, alternatively, that the agents reasonably believed that Sanchez had done so. The magistrate judge also determined that the initial encounter between Sanchez and the agents was either (i) voluntary or (ii) supported by "reasonable suspicion" and thus a valid investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The district court adopted the magistrate's report and recommendation in full. Sanchez entered a conditional guilty plea to preserve his Fourth and Sixth Amendment claims. The court imposed a sentence of thirty months' imprisonment, three years' supervised release, and a $100 special assessment. This appeal followed.

I.

Sanchez presents only one Fourth Amendment claim on appeal, challenging the luggage search. In light of his limited English and the officers' "double teaming" approach, Sanchez contends that he did not consent to the search and that reasonable officers in Noonan and Johannes's position could not have believed that he consented. We are not persuaded. The voluntariness of one's consent to a search presents a factual question. United States v. Barahona, 990 F.2d 412, 417 (8th Cir.1993); United States v. Galvan, 953 F.2d 1098, 1101 (8th Cir.1992). We must accept the district court's finding of voluntariness, absent clear error. United States v. Galvan-Muro, 141 F.3d 904, 907 (8th Cir.1998); United States v. Czeck, 105 F.3d 1235, 1239 (8th Cir.1997). We have carefully examined the record and find no such error.

One's consent to a search is voluntary if it results from "an essentially free and unconstrained choice" rather than from "duress or coercion." Galvan-Muro, 141 F.3d at 907; United States v. Chaidez, 906 F.2d 377, 380 (8th Cir.1990) (citations omitted). Whether consent is voluntary depends upon the "totality of the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). When evaluating such circumstances, we pay particular attention to the characteristics of the person giving consent and to the encounter from which the consent arose. United States v. Thomas, 93 F.3d 479, 486 (8th Cir.1996); Chaidez, 906 F.2d at 380-81. Relevant characteristics of the consenting party include age, intelligence and education; chemical intoxication (if any); whether the individual was informed of the right to withhold consent; and whether the suspect generally understood the rights enjoyed by those under criminal investigation. Chaidez, 906 F.2d at 381. To assess the environment surrounding the consent, we consider the length of time that the suspect was detained and questioned; whether the police intimidated the suspect; whether the suspect relied upon promises or misrepresentations made by the police; whether the suspect was in custody when the consent was given; whether the encounter occurred in a public or secluded place; and whether or not the suspect objected to the search. Id.

Finally, whether or not the suspect has actually consented to a search, the Fourth Amendment requires only that the police reasonably believe the search to be consensual. Illinois v. Rodriguez, 497 U.S. 177, 185-86, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); United States v. Sanchez, 32 F.3d 1330, 1335 (8th Cir.1994), cert. denied, 513 U.S. 1158, 115 S.Ct. 1119, 130 L.Ed.2d 1082 (1995).

The government must prove that Sanchez consented to the luggage search or that the officers reasonably so believed. See Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Barahona, 990 F.2d at 417. We conclude that the government met its burden of proof and that the record amply supports the district court's findings. Agents Noonan and Johannes both testified that Sanchez appeared to understand the questions directed to him. When asked to do so, Sanchez twice gave the officers express permission to inspect the bags. Other responses to the agents' questions similarly evince Sanchez's grasp of the conversation: Sanchez gave his name, provided photographic identification, stated that DEA agents in Kansas City had earlier searched his luggage, and described the contents of the tape-wrapped package as "meth." If indeed Sanchez did not consent to the luggage search, Noonan and Johannes reasonably believed otherwise.

Furthermore, we are undisturbed by the agents' alleged "double-teaming." The record lacks any evidence of duress, intimidation, or over-reaching by the officers. Noonan and Johannes twice told Sanchez that he need not permit the luggage search; they wore plain...