U S v. Bustillos-Munoz

• Citation: 235 F.3d 505,2000 WL 1842386
• Decision Date: 15 December 2000
• Docket Number: No. 99-1397,BUSTILLOS-MUNO,D,99-1397
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSEefendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 505

235 F.3d 505 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE BUSTILLOS-MUNOZ, Defendant-Appellant.

No. 99-1397

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

December 15, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. No. 99-CR-42-B)

David C. Japha of Zapiler, Ferris & Rhodes L.L.C., Denver, Colorado for Appellant.

James C. Murphy, Assistant United States Attorney (Thomas L. Strickland, United States Attorney, Denver, Colorado, with him on the brief) for Appellee.

Before EBEL, HOLLOWAY and MURPHY, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant/Appellant Jose Bustillos-Munoz was charged with possession with intent to distribute cocaine and with aiding and abetting that offense. Bustillos-Munoz moved to suppress drugs (four kilos of cocaine) and an incriminating statement he made. The government opposed the suppression motion and the case is before us following a conditional plea of guilty entered with reservation of Defendant's issues challenging the denial of suppression. We have jurisdiction pursuant to 28 U.S.C. 1291.

I

A

On January 23, 1999, in the early morning hours (12:30 a.m.) Colorado Trooper Cox was traveling north on Interstate 25 about one mile north of Pueblo, Colorado. A white Hyundai vehicle passed which had Arizona license plates. The headlights of the Hyundai shined brightly in the rear view mirror of Trooper Cox, causing him to believe the driver had failed to dim his high beam headlights in violation of Colorado law. Trooper Cox allowed the Hyundai to pass and then stopped the vehicle. Bustillos-Munoz immediately came out from the driver's side, causing Trooper Cox to become suspicious.

Trooper Cox exited his vehicle and met Bustillos-Munoz at the rear of the white Hyundai. Bustillos-Munoz said he was not driving with his high beam lights activated. Trooper Cox walked to the driver's side door. Bustillos-Munoz joined him and reached into the car and activated the high beam headlight so as to show Trooper Cox that the high beam headlights were not in use. Trooper Cox told Bustillos-Munoz his headlights must not be in alignment.

Both men walked around to the front of the white Hyundai. After they looked at the headlights, Trooper Cox told Bustillos-Munoz to have them fixed as soon as possible because they appeared not to have been maintained properly.

Trooper Cox had brief conversation with Bustillos-Munoz and then went back to his patrol car where he contacted the dispatcher who verified Bustillos-Munoz's driver's license and vehicle registration. Trooper Cox learned that: the driver's license and registration were valid; no arrest warrants were issued for Bustillos-Munoz; and he had been fingerprinted for some unknown reason. Trooper Cox walked back to Bustillos-Munoz's vehicle, handed him back his driver's license and registration, told him to have the headlights repaired as soon as possible, and advised him he was free to leave. Some 15 minutes passed between the time Trooper Cox stopped Bustillos-Munoz and the time when Trooper Cox advised Bustillos-Munoz he was free to leave.

Bustillos-Munoz then turned and walked toward the driver's side of his vehicle. Trooper Cox asked him whether he had any weapons and Bustillos-Munoz said no. Trooper Cox then asked him if he had any drugs in the vehicle and Bustillos-Munoz dropped his head, and shook his head side to side and said no. Trooper Cox then asked for permission to search the white Hyundai and Bustillos-Munoz assented. Trooper Cox never informed Bustillos-Munoz that he need not respond to questions or consent to the search of his vehicle.

Trooper Cox began a search of the vehicle by asking Bustillos-Munoz to open the trunk. Bustillos-Munoz opened the trunk release and then both men walked to the back of the white Hyundai. Trooper Cox frisked Bustillos-Munoz for weapons and directed him to stand at the front of the patrol car during the search. Trooper Cox searched the trunk and found fabrics, vases, etc., but nothing illegal.

Trooper Cox then tried to open the passenger door, but it was locked. Bustillos-Munoz walked to the front passenger door, without prompting, and unlocked it. Trooper Cox reached inside the door, unlocked the rear passenger door, and began to search the back seat. He unzipped a cloth duffle bag, felt something hard and large in it, and removed it from the bag. This revealed a kilogram size vacuum sealed plastic bag which he believed to contain methamphetamine. Bustillos-Munoz said he did not know what it was. Trooper Cox advised Bustillos-Munoz of his Miranda rights and placed him under arrest.

After Bustillos-Munoz was placed under arrest, Trooper Cox returned to the white Hyundai and found three more bags of what he believed was methamphetamine. Trooper Cox transported Bustillos-Munoz and the white Hyundai to the Colorado Patrol Office in Pueblo. A field test was performed there on the packages (the vacuum sealed bags) and the test indicated the bags contained cocaine.

Throughout their conversation, Trooper Cox and Bustillos-Munoz conversed in English. Bustillos-Munoz did not attempt to communicate in Spanish, which is his native tongue. Trooper Cox does not speak Spanish fluently or know the proper words for search, seizure, consent, refuse, submit cease, or intrusion. Although Bustillos-Munoz spoke English with a foreign accent, Trooper Cox did not have any difficulty understanding Bustillos-Munoz and Bustillos-Munoz never expressed any difficulty in understanding Trooper Cox.

After Bustillos-Munoz was transported to the Pueblo Patrol Office, he was interviewed by Deputy Sheriff Thurston and Colorado Patrol Trooper Powell. The interview started at about 1:30 a.m. on January 23, 1999. Before questioning Bustillos-Munoz, Deputy Thurston, who was assigned to the Drug Enforcement Agency's Southern Colorado Drug Task Force, told Bustillos-Munoz he desired to advise him of his rights and then question him about the substance found in the white Hyundai. Bustillos-Munoz assented. The two men spoke in English and Bustillos-Munoz did not seem to have any difficulty understanding Deputy Thurston. Thurston, who does not speak Spanish, understood Bustillos-Munoz even though the English Bustillos-Munoz spoke was with a foreign accent.

Deputy Thurston asked Bustillos-Munoz whether he preferred to read the English language or Spanish language, and Bustillos-Munoz responded that he read Spanish more easily. Deputy Thurston filled out the top portion of a CSP Miranda Advisement Form written in Spanish, noting Bustillos-Munoz's name, date of birth (6-20-69), the location, date, and time of the interview, and the suspected crime of possession of cocaine. Deputy Thurston instructed Bustillos-Munoz to read aloud and in the Spanish language several advisements written on the form. After Bustillos-Munoz read each advisement aloud, Deputy Thurston asked him whether he understood the right involved, and Deputy Thurston advised Bustillos-Munoz to write his initials next to the advisement if he understood it. Bustillos-Munoz then read aloud and placed his initials on the renunciation of rights section of the form, indicating waiver of his rights to remain silent and have an attorney present during questioning. Both men signed and dated the advisement form. Bustillos-Munoz never indicated he did not understand the advisements.

Ms. Salazar, the court interpreter, translated the advisement form used by Deputy Thurston into English during the suppression hearing. But for one misspelled word, the first advisement initialed by Bustillos-Munoz states: "You have the right to remain silent, and you are not obligated to answer any of our questions." The second advisement reads: "Any statement that you make may be used against you in a trial/judgment of court." The third advisement states: "You have the right to consult with an attorney and to have him present during this questioning." Order at 21, Attachment 2 to Appellant's Opening Brief.

Regarding the fourth advisement, Ms. Salazar testified that a pronoun was missing, leading to the following translation: "If you cannot pay for an attorney the State of Colorado will provide one for you, and you have the right to be present during the questioning." The fifth advisement also contains a typographical error rendering it susceptible to two possible translations: (1) "If you have decided to answer our questions without an attorney present, you still have the right to change your mind and not answer more to these questions until you consult with an attorney." or (2): "Yes, you have decided to answer our questions without an attorney present. You still have the right to change your mind and not answer more to these questions until you consult with an attorney." (emphasis added).

Ms. Salazar also translated the renunciation of rights section of the CSP form. The first sentence reads: "I wish to answer the questions and waive my right to remain silent." After that sentence, Bustillos-Munoz wrote his initials next to the word "Si," which means "yes" in English. The second sentence states: "I wish to have an attorney present during questioning." Following that sentence Bustillos-Munoz wrote his initials next to the word "NO" which means "no" in English. Just above his signature the following paragraph appears which, but for one misspelled word, states:

I have read and understood this statement of rights. I am willing to answer any question that is asked. This waiver of rights is voluntary and the agents of the State Patrol of Colorado have not made me any promise, threat or obligation. For now, I do not wish to have an attorney present during questioning.

Bustillos-Munoz signed and dated the form beneath that paragraph.

Ms. Salazar, who served as interpreter for Bustillos-Munoz on three occasions, also testified that Bustillos-Munoz is not fluent in English and has difficulty understanding English legal...