U.S. v. Almeida-Perez, 07-2602.
| Decision Date | 16 December 2008 |
| Docket Number | No. 07-2635.,No. 07-2602.,07-2602.,07-2635. |
| Citation | 549 F.3d 1162 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Porfirio ALMEIDA-PEREZ, also known as Javier Medina-Rios, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. José Almeida-Perez, also known as José Alvaro-Lara, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Henri J. Watson, Watson & Dameron, LLC, Kansas City, MO, argued, for appellant Porfirio Almeida-Perez.
Cenobio Lozano, Jr., Harrisonville, MO, argued, for appellant, José Almeida-Perez.
D. Michael Green, Asst. U.S. Atty., Kansas City, MO, argued (John F. Wood, U.S. Atty., on the brief), for appellee.
Before WOLLMAN, JOHN R. GIBSON, and SHEPHERD, Circuit Judges.
José and Porfirio Almeida-Perez, brothers who pled guilty to being illegal aliens in possession of firearms that had been transported in interstate commerce, 18 U.S.C. § 922(g), appeal from the district court's denial of their suppression motion and from the twenty-four month sentences it imposed on each of them. The Almeidas contend that the district court erred in finding that police reasonably relied on the real or apparent authority of their cousin Sergio Almeida-Alvarez to consent to police entry of the Almeida house. They also contend that the district court erred in finding that the other occupants of their house consented to police entering José's and Porfirio's bedrooms. They challenge the district court's credibility determinations, which they contend rest on mutually inconsistent findings. Finally, they challenge the district court's determination at sentencing that they possessed the firearms in connection with possession of cocaine. We affirm the district court's denial of the suppression motion, but we remand for clarification of the findings at sentencing.
Our recitation of the facts is complicated by the problem that the testimony at the suppression hearing varied at almost every important particular, depending on whether the witness was called by the prosecution or defense. Therefore, we will tell the story several times in order to fairly present the scenario faced by the Magistrate Judge who heard the testimony in this case.
Kansas City, Missouri police detective Luis Ortiz was the principal actor on the police side of this case by virtue of the fact that he was the only officer involved who was fluent in Spanish. Before the date of the entry at issue here, July 6, 2006, police had received a report from a confidential informant that a Hispanic male called "Sinaloa" was selling drugs out of the house at 5115 East 22nd Street in Kansas City and that he had weapons. Ortiz had surveilled the house on July 5 and 6 and had seen people going in and out of the house. Ortiz and Tracy Raggs, an Immigration and Customs Enforcement agent, decided to go up to the house for a "knock and talk," in other words, to see if they could investigate by consent of the suspects.
Ortiz and Raggs walked up to the house, where Sergio Almeida was sitting on the front porch. Ortiz said that he introduced himself and Raggs, explained that they were conducting a narcotics investigation, and asked if they could "talk about it inside." Ortiz said that during surveillance, he had seen Sergio going in and out of the house, but he did not ask Sergio whether he "had any interest in the house." According to Ortiz, Sergio "was very cooperative, and he invited us inside the residence." Sergio walked into the house without knocking, and Ortiz and Raggs followed him in, their sidearms still in the holsters.
Inside the house they found three or four people in the living room. Ortiz explained in Spanish who he and Raggs were and why they were there. Ortiz asked if there was anyone else in the house. Raggs testified that the person who answered this question was Maria Juarez-Galaviz, Porfirio's wife, and that she said her husband Porfirio was in a bedroom, and she gestured toward it. Ortiz testified that "they" (the people in the living room) gestured toward the northeast bedroom and said Porfirio was there, then toward the west bedroom and said that José and Maria (Almeida-Perez, teenaged sister to Jose and Porfirio) were in that room. Ortiz said that he asked them "if I could knock on the door and see if they wanted to come outside, if it was okay that I could go and knock on the door and call them to the living room," and that they said yes. Raggs, who spoke little Spanish, said that Ortiz asked Maria if he could go in the bedrooms, and Maria said yes.
While Raggs stayed with the family in the living room, Ortiz went to Porfirio's room, knocked on the door, identified himself as police, and then opened the door. When Ortiz opened the door, he saw a black shotgun next to the bed where Porfirio was sleeping. Ortiz asked Porfirio to come out to the living room, which he did. Ortiz radioed for another officer, Detective Michael Miller, to come as backup. Ortiz and Miller then went to the other bedroom, knocked, and identified themselves as police. Ortiz opened the door and saw Maria Almeida-Perez on the bed and José asleep on the floor with a rifle at his side. On cross-examination, Ortiz admitted that he entered both bedrooms. He asked José and Maria to come to the living room, which they did.
Once all the occupants of the house were gathered in the living room, Ortiz told them that the police were conducting a narcotics investigation and that Immigration and Customs Enforcement was involved because the police had information that there were illegal aliens there. He asked who was responsible for the house and was told that Porfirio, Maria Juarez, and José were. He also asked for permission to search the house for narcotics, weapons, and currency, and the three said that they had no problem with that. Ortiz produced a consent to search form written in English and explained to the three of them in Spanish that it was up to them whether to give permission to search the house. They all signed the consent form. Ortiz testified that during this conversation, the occupants of the house were sitting in the living room, mostly along the east wall, some in chairs and some on the floor. Ortiz said that neither he nor Raggs had their guns drawn.
With the permission of the occupants, Ortiz called in still more officers and began the search. He asked if there were any narcotics in the house and Porfirio answered that there was some cocaine. Porfirio looked around for some cocaine, but could not find it; he commented that everybody in the house used cocaine, so someone probably had used the cocaine he was looking for.
Raggs said that during the search, he stayed in the living room, talking to the occupants of the house about their immigration status. He said that they were "very cooperative" and that he and the occupants were "just kind of joking" and "talking about all kinds of stuff." Raggs said that he did not have his gun drawn the occupants were not handcuffed or arrested, and he did not ask them to face the wall. Raggs said he asked Porfirio, José, and the others in Spanish whether they had entered this country legally or illegally; they answered, "Ilegal."
The search produced the two guns already mentioned, as well as one other shotgun found up in the attic, $19,353 in cash, and less than a gram of cocaine, which was found inside a shoe in José's room. After the search, the police moved the family out to the back yard so the police could bring in a drug-sniffing dog, which alerted to the cash, indicating that it smelled of cocaine.
In contrast to the congenial atmosphere described by Ortiz and Raggs, the scene described by the Almeida family was one of strife and coercion. Sergio Almeida testified that he was visiting at his cousins' house on July 6 when two police officers walked up; he was told (not asked) to go inside, which he did without asking permission from the people who lived there. They went into the living room, where they met Vinancio Almeida and Urbana Perez, parents of Porfirio; Maria Juarez, Porfirio's wife; and Manuel Perez, Porfirio's uncle. Sergio said that Ortiz told them to line up against the wall, to put their hands on the wall, and not to move. The police frisked them. The police did not have their guns drawn, but they had their hands on their weapons. According to Sergio, the officers did not ask permission to go get Porfirio and José or to search the house. Sergio recounted that another officer went into Porfirio's room with Ortiz and that the officer had his gun out and was pointing it ahead of him. Sergio heard the police ask Porfirio if he had any drugs, and Porfirio answered that he did have some for personal use.
Maria Juarez, Porfirio's wife, also testified that the police came in and told the family that they had information that there were guerillas there. She said the police made them line up against the wall with their hands up. The police took their guns out and pointed them at the family. She said Ortiz and another officer entered Porfirio's bedroom without asking anyone's permission and that Ortiz had his gun drawn and pointed it at Porfirio. Maria Juarez said there were ten officers in the house and that while the family were lined up in the living room, one officer was swinging a baseball bat menacingly for ten minutes. She said that she was not allowed to talk to her husband during the search, which went on for three hours. She also said no one asked for permission to search the house before they began, but she signed a form after the police were done with the search because the police told them if they did not sign it, they would all be arrested. She did not understand the form because it was in English, and no one ever told them that they had a right to withhold permission to search the house. However, she also testified that the family all admitted to the immigration officer that they were in the...
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Fourth Amendment Consent Searches and the Duty of Further Inquiry
...ambiguous situation, nevertheless proceed without making further inquiry."); see also infra Part II. [14]United States v. Almeida-Perez, 549 F.3d 1162, 1171 (8th Cir. 2008) (citations omitted) ("Some circuits have interpreted these precedents to require police to go behind appearances to ve......