42 F.3d 1160 (8th Cir. 1994), 93-2726, United States v. Ramos

Docket Nº:93-2726, 93-2739.
Citation:42 F.3d 1160
Party Name:UNITED STATES of America, Appellee, v. Salvador RAMOS, Appellant. UNITED STATES of America, Appellee, v. Servando RAMOS, Appellant.
Case Date:December 07, 1994
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1160

42 F.3d 1160 (8th Cir. 1994)

UNITED STATES of America, Appellee,

v.

Salvador RAMOS, Appellant.

UNITED STATES of America, Appellee,

v.

Servando RAMOS, Appellant.

Nos. 93-2726, 93-2739.

United States Court of Appeals, Eighth Circuit

December 7, 1994

Submitted Sept. 13, 1994.

Page 1161

Michael J. Burdette, Des Moines, IA, argued, for Salvador Ramos.

Chip J. Lowe, Des Moines, IA, argued, for Servando Ramos.

Edwin F. Kelly, Des Moines, IA, argued, for U.S.

Before RICHARD S. ARNOLD, Chief Judge, BEAM, Circuit Judge, and JACKSON, [*] District Judge.

RICHARD S. ARNOLD, Chief Judge.

Servando and Salvador Ramos appeal the District Court's 1 refusal to suppress evidence seized during a search of Salvador's truck. The Ramos brothers argue that the police did not have probable cause to search their truck, and that the consent given by Salvador to search the truck was not knowing or voluntary. After hearing argument, we filed an opinion reversing the judgment, one judge dissenting. 20 F.3d 348 (8th Cir.1994). We then granted the United States' petition for rehearing and restored the case to the calendar for reargument. We now hold that the District Court's finding of consent is not clearly erroneous, and therefore affirm.

I.

Early one August morning in Scott County, Iowa, brothers Salvador and Servando Ramos were driving their truck east on Interstate 80. Trooper Brian Abernathy had positioned himself at a crossover when he spotted a truck with a Texas license plate carrying a passenger, Servando, not wearing his seat belt. The trooper followed the truck to make sure he was right and then pulled it over. The trooper asked for both Salvador's and Servando's driver's licenses and asked Salvador, who had been driving the truck, to come back to his patrol car while he ran checks on both licenses. Neither of the two appeared nervous, and both cooperated with the trooper.

While checking the licenses, Trooper Abernathy engaged Salvador in some conversation, asking him about his employment, where they were going, and where they were coming from. Salvador told the trooper that they were driving to Chicago to see a sick cousin. When Trooper Abernathy asked Salvador what part of Chicago they were going to, Salvador did not know.

After the checks on their licenses and the truck came back clear, the trooper gave Salvador his license back and asked him to remain in the patrol car while he gave Servando

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a warning. 2 He wanted Salvador to stay in the patrol car because he wanted to continue asking Salvador more questions. Trooper Abernathy went up to the truck, gave Servando his warning, and asked Servando where they were going. To this question Servando also told the trooper that they were going to Chicago to visit a sick cousin. Even though the brothers' answers were consistent, the trooper returned to his patrol car and asked Salvador whether they had any guns or drugs because "it's a known fact that drugs and weapons are being transported across the interstate." (Suppression Hearing p. 54.) Salvador answered no, and the trooper then asked for permission to search the truck.

When Salvador told Abernathy he could search, the trooper pulled out a bilingual (English and Spanish) "Consent to Search" form. He advised Salvador that he did not have to consent, filled out one side of the form, and asked Salvador to sign it. Salvador did so, and Trooper Abernathy called for back-up to assist in the search. When the back-up arrived, Servando was asked to stand behind the truck, and Salvador joined him.

At first Trooper Abernathy found only medical supplies consistent with Servando's infirmities. Then he looked in the driver's side map pouch and found a .45 caliber bullet. He also noticed an old pair of boots behind the driver's seat, and in one of the boots there was a brown paper sack with more bullets. The trooper then asked Salvador if there was a gun in the truck; Salvador said that he was not sure. Trooper Abernathy went back to the truck, looked in the other boot, and found a handgun.

Trooper Abernathy noticed there was some spot welding at the seams of the fuel tank, which made him wonder whether the tank could hold fluid. He began to inspect the tank and noticed details suggesting the tank was not being used for diesel. Residue usually associated with diesel was not there, and there was visible...

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