U.S. v. Gallardo

Decision Date31 July 2007
Docket NumberNo. 06-3214.,06-3214.
Citation495 F.3d 982
PartiesUNITED STATES of America, Appellee, v. Felipe DeJesus GALLARDO, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Before MELLOY, SMITH, and GRUENDER, Circuit Judges.

MELLOY, Circuit Judge.

Felipe DeJesus Gallardo conditionally pled guilty to possession with intent to distribute cocaine. 21 U.S.C. § 841(a)(1) and (b)(1). The district court1 sentenced him to fifty-two months in prison and ordered forfeiture of Gallardo's vehicle and nearly $4,000 in cash. Gallardo appeals the conviction, arguing that police officers illegally detained him, lacked voluntary consent to search his vehicle, exceeded the scope of that consent, and obtained self-incriminating statements from him absent a valid waiver of his Miranda rights. We affirm the judgment of the district court.

I. BACKGROUND

On the morning of July 2, 2005, Nebraska State Patrol trooper Greg Goltz placed several signs along Interstate 80 near Giltner, Nebraska. The signs were a ploy: they warned drivers of an upcoming drug interdiction checkpoint that did not exist in the hope that drivers transporting narcotics would see the signs, take the Giltner exit in response, and engage in suspicious activity, whereby a watchful Goltz could stop their vehicles. Gallardo was driving eastbound on I-80 in a 2004 Nissan pick-up truck and passed the signs around 11 a.m. He exited the Interstate at the Giltner interchange, took a right on the intersecting state highway, turned around in the nearest driveway, and got back on the Interstate heading the same direction. As Gallardo did so, Goltz noticed that Gallardo's truck lacked license plates, in violation of Nebraska state law.

Goltz turned on the squad car's flashing lights, which activated the vehicle's in-car camera and microphones. Therefore, the entire stop and the parties' interaction was captured on audio and video. Goltz stopped the truck, approached it, and told Gallardo that he had been pulled over for not having license plates. They conversed primarily in English, although Gallardo's spoke in accented and broken English. Goltz asked Gallardo for his license and registration; Gallardo produced a Nebraska driver's license, a California identification card, and numerous documents, including proof of insurance and several invoices for vehicle maintenance work performed between December 2004 and May 2005. Each service invoice stated the mileage of the truck at the time of service. From these invoices and the current odometer reading on the vehicle, Goltz learned that Gallardo had put roughly 39,000 miles on the truck in the previous seven months.

Goltz instructed Gallardo to join him in the squad car while Goltz processed the information and paperwork. Upon questioning, Gallardo stated that he lived with his wife and two children in Fontana, California, and that he put the mileage on his truck while working on projects as a carpet and tile installer in California. Gallardo also explained that he had a Nebraska license because he had previously lived in South Sioux City, Nebraska, with a friend. Goltz asked about Gallardo's travel plans, and Gallardo said he was traveling to Sioux City to look for an apartment or trailer there; he was considering moving there for a brief period of time for his job. Gallardo said he planned to stay three or four days in Sioux City to find a home, then return to California. He said he was still unsure if he was going to make the temporary move to the Sioux City area.

During the encounter, Goltz contacted his dispatcher to request information regarding Gallardo and the vehicle. The dispatcher stated that Gallardo's Nebraska license and California identification were valid and that Gallardo owned the pick-up. Goltz also asked why Gallardo had exited at the Giltner interchange after passing signs indicating an upcoming drug checkpoint. Gallardo stated that he was hoping to stop off for food and gas; when he saw upon exiting that there were no businesses near the interchange, he turned around and got back on the Interstate.

After this exchange, the dispatcher called and informed Goltz that Gallardo's California address had been the site of a sizeable methamphetamine bust two years earlier, although Goltz also learned that Gallardo himself had no criminal record or outstanding warrants for his arrest. Goltz questioned Gallardo about the duration of his residency at that address in California, and Gallardo said that he had lived with his wife at the Fontana address for one-and-a-half years. The dispatcher also informed Goltz that California had issued valid plates to Gallardo, but they had not yet arrived. Goltz then voided the ticket he had written to Gallardo for failing to properly display license plates on the truck. Goltz returned Gallardo's paperwork to him, and Gallardo opened the squad-car door and began to exit the vehicle.

Goltz then called to Gallardo by name and asked, "Do you have a minute?" Gallardo said he did, and he returned to his seat in the vehicle. Goltz told him that Nebraska had been experiencing problems with vehicles carrying drugs and guns from California. Goltz then switched languages and attempted to speak to Gallardo in Spanish, a language with which Goltz's familiarity was limited. Goltz successfully asked Gallardo if he had any guns or drugs in the truck, to which Gallardo responded in the negative. The following exchange then ensued. The parties stipulated to the accuracy of the English translation of the audio transcription of the recorded conversation, which appears in brackets, although they apparently disagree as to whether a question mark or a period should follow Goltz's first sentence below:

Goltz: ¿Yo, yo policía, yo policía buscar el carro? [I, I police, I police search the car?]

Gallardo: OK, go ahead.

Goltz: Any problemo? [Any problem?]

Gallardo: Nada de problema. [No problem at all.]

Goltz: You comprende? [You understand?]

Gallardo: Sí. [Yes.]

Goltz: ¿No problemo? [No problem?]

Gallardo: No problema. [No problem.]

Goltz: OK. Gracias. Muchas gracias. [OK. Thank you. Thanks a lot.]

Another trooper arrived at the scene, and he and Goltz proceeded to search the pick-up while Gallardo remained in the squad car. In less than ten minutes, Goltz had opened the hood and noticed an indentation in the engine's firewall area that had been filled with auto-body repair putty, then covered with fresh paint. Goltz, a trooper with seventeen years' experience, had seen similar firewall modifications in the past and associated them with hidden compartments for narcotics. He also noticed that the adjacent fender had been attached incorrectly using an electronic trunk-lock mechanism, possibly indicating a point of entry into what he increasingly suspected was a hidden compartment beyond the firewall.

Goltz arrested Gallardo and drove him to the Nebraska State Patrol office in nearby Grand Island. Another trooper took the truck to the State Patrol office, where officers dismantled part of the vehicle to gain access to the hidden compartment. Inside, they found thirty-one packages containing a total of approximately seventy-eight pounds of cocaine.

In the State Patrol office, Goltz attempted to inform Gallardo of the nature of the charges he faced and expressed his desire for Gallardo's cooperation. His tone was straightforward and informative, and he did not ask Gallardo any questions about the offense. Goltz also provided Gallardo with a waiver-of-Miranda-rights form written in Spanish. Gallardo read the form aloud, but expressed confusion regarding its meaning and did not sign it. Goltz was unable to clarify the kind of cooperation he sought from Gallardo, the nature of Gallardo's rights, or the significance of their waiver due to the language barrier. A fellow officer returned shortly thereafter with a Spanish-speaking agent from the United States Bureau of Immigration and Customs Enforcement ("ICE").

Gallardo re-read the Miranda waiver aloud, and the ICE agent answered his questions and described the significance of signing the form. The ICE agent also informed Gallardo that Gallardo could cease the officers' interrogation at any time and request the assistance of an attorney. Gallardo indicated that he understood his rights, the implication of waiving them, and the nature of the interrogation to follow. He signed the Miranda waiver. Officers then questioned Gallardo, and he made several self-incriminating statements.

The government charged Gallardo with possession of cocaine with intent to distribute. Gallardo moved to suppress the cocaine evidence, arguing that Goltz's search of the truck violated the Fourth Amendment because Gallardo's purported consent to the search was involuntary. He also moved to suppress his self-incriminating statements to officers, arguing that his waiver of his Miranda rights was invalid. The district court denied the motions. Despite obvious language barriers between Goltz and Gallardo, the district court examined the videotape and the translated transcription of the encounter, as well as other circumstances, and found that "as a whole the circumstances show that consent [to search the truck] was voluntarily given without coercion." The district court also found that Gallardo voluntarily and knowingly waived his Miranda rights because he had read the waiver form in Spanish, had the opportunity to ask questions with a Spanish-speaking agent, and was informed of his right to cease questioning at will and request an attorney.

Gallardo entered a conditional guilty plea preserving his right to appeal the denial of his motions to suppress evidence. The district court sentenced Gallardo to fifty-two months in prison. It also ordered forfeiture...

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