U.S. v. Hidalgo, 93-8009

• Decision Date: 29 November 1993
• Docket Number: No. 93-8009,93-8009
• Citation: 7 F.3d 1566
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alfonso HIDALGO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1566

7 F.3d 1566

UNITED STATES of America, Plaintiff-Appellee, v. Alfonso HIDALGO, Defendant-Appellant.

No. 93-8009.

United States Court of Appeals Eleventh Circuit.

Nov. 29, 1993.

Donald Samuel, Garland & Samuel, P.C., Atlanta, GA, for defendant-appellant.

Janis Gordon, Asst. U.S. Atty., Atlanta, GA, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, Chief Judge, EDMONDSON and CARNES, Circuit Judges.

CARNES, Circuit Judge:

Alfonso Hidalgo pled guilty to seven counts of a twenty-six count indictment charging him with distribution of cocaine and related offenses. Pursuant to Fed.R.Crim.P. 11(a)(2), he reserved his right to appeal from the district court's denial of his motion to suppress evidence seized by police officers during a consent search of his residence in Duluth, Georgia. This is that appeal. ¹

Hidalgo contends: 1) that introduction of evidence from a search based on consent obtained after invocation of the right to remain silent violates the Fifth Amendment privilege against self-incrimination; 2) that introduction of evidence from a search based upon consent obtained after indictment and without the advice of counsel violates the Sixth Amendment right to counsel; 3) that the search conducted in this case exceeded the scope of his consent; and 4) that his consent to search was the product of undue coercion. For reasons that follow, we reject each of Hidalgo's contentions and affirm his conviction.

I. BACKGROUND

At 6:30 a.m. on November 13, 1991, officers of the Gwinnett County Police Department arrested Hidalgo at his residence in Duluth, Georgia. With Hidalgo's consent, the officers searched the premises and seized numerous files containing canceled checks, bank records, disbursement and expenditure records, tax records, and other documents. Hidalgo moved to suppress the evidence seized in the search, and a federal magistrate judge held a hearing on that motion. At the hearing, Mike Jenkins and Manuel Perez, narcotics investigators employed by Gwinnett County, testified about the events surrounding Hidalgo's arrest and his consent to the search. Hidalgo and his wife testified about the same events. The testimony established that a SWAT team made the initial entry to Hidalgo's residence, woke the Hidalgos, and held them on the floor at gunpoint until Jenkins and Perez arrived moments later. Jenkins introduced himself and Perez to Hidalgo, advised Hidalgo that he was under arrest, and determined that Hidalgo's Miranda rights should be recited to him in Spanish. Accordingly, Perez, who spoke Spanish, read Hidalgo his Miranda rights in Spanish and asked Hidalgo if he understood his rights. Perez testified that Hidalgo responded affirmatively. He further testified: "[A]fter I read him the Miranda warning I asked him if he had any weapons or drugs in the house. He stated to me no. Then I asked him if he wanted to talk to me. He declined so I didn't ask him any more questions."

Shortly thereafter, Jenkins and Perez presented Hidalgo with a consent to search form written in English. According to Jenkins and Perez, Perez told Hidalgo in Spanish that the officers were requesting his consent to search the premises and asked him to fill in his name at the top of the form. After Hidalgo had supplied his name, Jenkins filled in the blanks, so that it authorized the officers to conduct a complete search of the residence, the curtilage, two automobiles, and all outbuildings. It also authorized the officers to remove from the premises "any articles, items, letters, or papers to be used in the investigation of a drug violation." Rather than reading the consent to search form to Hidalgo, Perez explained it to him in Spanish. According to Perez, he also explained to Hidalgo that he had a constitutional right to refuse consent, and, Hidalgo indicated that he understood his rights, stated that he had nothing to hide, and signed the form. Although Hidalgo admitted at the suppression hearing that he had signed the consent to search form, he testified that the form was blank when he signed it. He further testified that Perez did not explain to him which buildings, other than the house, the officers would search or which documents the officers would be authorized to seize.

On May 7, 1992, the magistrate judge issued a report and recommendation crediting the Government witnesses' testimony and recommending that Hidalgo's motion to suppress be denied. The district court adopted the magistrate judge's report and recommendation and denied Hidalgo's motion to suppress.

II. DISCUSSION

A. THE FIFTH AMENDMENT ISSUE

Because the consent to search was requested and obtained after Hidalgo had invoked his right to remain silent, he argues that his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the Fifth Amendment privilege against self-incrimination were violated by use of the consent and by introduction of the evidence obtained as a result of the ensuing search. Miranda and its progeny are designed to ensure that an individual being subjected to a custodial interrogation is accorded his Fifth Amendment privilege against compulsory self-incrimination. 384 U.S. at 444, 86 S.Ct. at 1612. It requires, among other things, that interrogation cease once the individual "indicates in any manner that he does not wish to be interrogated," and it prohibits the use of any incriminating statement obtained in violation of that requirement. Id. at 444-45, 86 S.Ct. at 1612; accord Michigan v. Mosley, 423 U.S. 96, 103-04, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975); Christopher v. Florida, 824 F.2d 836, 839-40 (11th Cir.1987).

The problem with Hidalgo's argument is that no incriminating statement obtained after he invoked his right to remain silent was introduced into evidence. The consent, which was obtained after Hidalgo asserted his Fifth Amendment rights, was used to justify the search and the introduction of physical evidence. But the Supreme Court has held that the Fifth Amendment protects only against compelled incriminating "evidence of a testimonial or communicative nature," and not against compelled production of physical evidence. Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966).

An essential premise of Hidalgo's Fifth Amendment argument is the proposition that a consent to search is an incriminating statement. Our decision in Smith v. Wainwright, 581 F.2d 1149, 1152 (5th Cir.1978), forecloses that proposition and Hidalgo's argument. In that case, police interrogation had continued after the defendant had asserted his Miranda rights. The continued interrogation produced no incriminating statements but did lead to a consent to search, and the resulting physical evidence was admitted at trial. In affirming the denial of habeas relief and holding that there was no violation of the Fifth Amendment, we explained that: "A consent to search is not a self-incriminating statement; '[i]t is not in itself evidence of a testimonial or communicative nature.' " Id. (quoting United States v. Lemon, 550 F.2d 467, 472 (9th Cir.1977)). We are not alone in our position on this issue. As the Tenth Circuit has recently observed, "[e]very federal circuit court which has addressed the Miranda issue presented here has reached the conclusion that a consent to search is not an incriminating statement." United States v. Rodriguez-Garcia, 983 F.2d 1563, 1568 (10th Cir.1993) (citing United States v. Lewis, 921 F.2d 1294, 1303 (D.C.Cir.1990); United States v. Glenna, 878 F.2d 967, 971 (7th Cir.1989); Cody v. Solem, 755 F.2d 1323, 1330 (8th Cir.), cert. denied, 474 U.S. 833, 106 S.Ct. 104, 88 L.Ed.2d 84 (1985); Lemon, 550 F.2d at 472); see also United States v. Faruolo, 506 F.2d 490, 495 (2d Cir.1974). We reject Hidalgo's contrary contention on this issue.

B. THE SIXTH AMENDMENT ISSUE

Hidalgo next argues that, because he was indicted before his arrest and his consent to the search, his Sixth Amendment right to counsel had attached, and use of his consent obtained without the advice of counsel violated the Sixth Amendment. ² The Sixth Amendment guarantees a defendant a right to counsel in all criminal prosecutions, as a means of protecting his right to a fair trial. The right to counsel attaches once adversary judicial proceedings have been initiated against the defendant. See, e.g., United States v. Gouveia, 467 U.S. 180, 187-88, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984). An adversary judicial proceeding can be initiated "by way of formal charge, preliminary hearing, indictment, information, or arraignment." Id. at 188, 104 S.Ct. at 2297 (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972) (plurality opinion)). After a defendant's Sixth Amendment right to counsel attaches, he has a right to the advice of counsel "at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial." United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967). The Supreme Court has referred to such a stage as a "critical stage" of a criminal proceeding. Michigan v. Jackson, 475 U.S. 625, 632 n. 5, 106 S.Ct. 1404, 1409 n. 5, 89 L.Ed.2d 631 (1986); see also Maine v. Moulton, 474 U.S. 159, 170, 106 S.Ct. 477, 484, 88 L.Ed.2d 481 (1985). Because Hidalgo had been indicted when he consented to the search of his Duluth residence, his Sixth Amendment right to counsel had attached, and he was entitled to advice of counsel at any critical stage of the post-indictment proceedings. Thus, we must determine whether a request for a consent to search is a critical stage of a criminal proceeding.

The Second Circuit addressed this issue in United States v. Kon Yu-Leung, 910 F.2d 33, 38 (2d Cir.1990), and held that a request for a consent to search is not a critical stage of a criminal...