855 F.2d 357 (6th Cir. 1988), 87-6129, United States v. Pino
|Docket Nº:||Osvaldo Ramon PINO (87-6129), Silverio Juan Llera (87-6130),|
|Citation:||855 F.2d 357|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v.|
|Case Date:||August 31, 1988|
|Court:||United States Courts of Appeals, Court of Appeals for the Sixth Circuit|
Argued June 16, 1988.
A.P. Walter, Jr. (argued), Daniel S. Carusi, Coral Gables, Fla., for Osvaldo Ramon Pino.
Joel C. Fanning (argued), Pensacola, Fla., for Silvero Juan Llera.
John W. Gill, U.S. Atty., Steve Cook (argued), Chattanooga, Tenn., for the U.S.
Before LIVELY and JONES, Circuit Judges, and BROWN, Senior Circuit Judge.
BAILEY BROWN, Senior Circuit Judge.
This is an appeal from an order of the United States District Court for the Eastern District of Tennessee denying defendants Osvaldo Ramon Pino and Silverio Juan Llera's motions to suppress evidence of approximately twelve kilograms of cocaine seized from a rented automobile driven by defendant Pino in which Llera was a passenger. Subsequent to the district court's order denying defendants' motions to suppress, defendants entered into a conditional guilty plea agreement with the United States pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure, reserving the right to appeal the district court's denial of their motions to suppress. We AFFIRM.
I. FACTUAL BACKGROUND
The bulk of the evidence presented at the suppression hearing came from Trooper Terry Thomas of the Tennessee Highway Patrol. Counsel for defendants extensively cross-examined Thomas and argued in closing that his testimony was incredible and not entirely truthful. The district court determined that Thomas and the other witnesses who testified at the hearing were truthful in every regard.
At approximately 9:30 p.m. on June 12, 1987, Thomas was traveling westbound on Interstate 24 in a marked patrol car. Thomas had recently attended a Drug Enforcement Administration seminar on drug interdiction and was acquainted with the fact that Interstate 24 is a drug corridor used by drug couriers in transporting illegal narcotics from Miami, Florida, to Chicago, Illinois. Additionally, Thomas was aware of the various characteristics of drug couriers, including their propensity to drive rented cars bearing Florida license plates and their tendency to be Hispanic.
While traveling westward on Interstate 24, Thomas came upon a station wagon bearing Florida plates driven by defendant Pino with defendant Llera in the front passenger seat. 1 Thomas recognized the vehicle as a possible rental car due to a "Z" on the license plate.
Thomas pulled alongside the station wagon. When the driver, Pino, glanced over and saw Thomas to his left, he immediately braked and swerved onto the interstate's shoulder almost hitting the guardrail. In
his rearview mirror, Thomas saw Pino swerve back onto the freeway, without signaling, drifting partially into the left lane. Thomas slowed his squad car to thirty-five miles per hour and waited for Pino to pass. Pino did not pass, however, slowing his vehicle to avoid doing so. Thomas then pulled his patrol car off the road and stopped completely, waiting for Pino to pass. When Pino did overtake Thomas, Thomas turned on his blue lights, signaling Pino to stop.
Pino stopped his vehicle alongside the freeway, exited it, and approached Thomas on foot. Thomas noticed that Pino was visibly upset in that his hands trembled as he produced his driver's license and automobile rental contract for Thomas. Thomas noted that Pino was unusually nervous for someone stopped for a traffic violation.
Thomas examined Pino's driver's license and rental contract and noticed that they contained different addresses for Pino. He also noticed that the car had been rented at the Miami International Airport. Thomas remarked to Pino that he thought it was odd that Pino would go to the airport to rent a car in his hometown. Pino replied that the airport was the only place he could rent a car in Miami. 2
Since the shoulder was narrow and it was raining heavily, Thomas asked Pino if he would mind driving his car down the nearby exit ramp and underneath the freeway overpass. Pino complied. Thomas retained possession of Pino's license and rental car contract during this relocation.
Upon relocating to underneath the freeway overpass, Thomas asked Pino where he was headed. Pino responded that he was going to Chicago to watch the Cubs play softball tomorrow. Thomas asked Pino if he didn't mean "baseball," and Pino became "flustered." 3 Thomas asked Pino if he was going to watch the Cubs play baseball at Wrigley Field tomorrow night, knowing that night games were not played at that stadium at that time due to the absence of lights. Pino responded affirmatively to this inquiry.
Thomas decided, at this point, to arrest Pino for the illegal lane change, rather than just giving him a citation. He did this because he did not believe that Pino would mail in the fine, given that Pino had only a transient connection with Tennessee and that he had given some suspicious responses to Thomas's questioning. Accordingly, Thomas returned to his vehicle and radioed for another patrol car, as was his routine when he made an arrest. He then proceeded to complete a citation for the improper lane change. 4 At the most, nine minutes elapsed from the time that Thomas stopped Pino on the interstate to the time Thomas decided to place Pino under arrest.
Sergeant Roy Phillips, Thomas's shift supervisor, arrived on the scene shortly thereafter in response to Thomas's call for a backup unit. Thomas apprised Phillips of the situation, and both troopers went to Pino and asked him if he would consent to a search of his vehicle. Pino refused to consent. Thomas then advised Pino that he did not have to consent but that the car would eventually be searched anyway since the troopers were going to arrest Pino for the improper lane change, tow his car, and conduct an inventory search of its contents. Pino became loud and upset at this intimation that he was going to be arrested and his rental car searched.
While Phillips remained with Pino, Thomas walked over to the rental car. As he approached, Thomas noticed that defendant Llera, who was seated inside the car, had
pulled a pillow out of the rear portion of the vehicle. It appeared to Thomas that Llera could not see him because of the patrol lights and the rain.
Thomas tapped on the passenger window, and Llera hurriedly threw the pillow into the back portion of the car. The pillow produced a thumping sound audible to both Thomas and Phillips. Llera then rolled down the passenger side window. Thomas asked Llera for identification. Llera, who does not speak much English, appeared not to understand the question and started to exit the vehicle. Thomas again asked Llera for identification. Llera responded by exclaiming, "No cocaine."
Thomas then asked Llera if he had any marijuana or weapons. Llera shook his head. Thomas looked inside the vehicle and his gaze fell upon a small shaving kit bag in the front seat. Unbidden, Llera opened the bag. Llera then exited the vehicle and, without being requested to do so, began opening various other bags and containers in the vehicle, showing their contents to Thomas.
Thomas then looked at the pillow defendant had previously thrown into the very back of the station wagon. He reached in and patted the pillow inquiringly. Llera threw his hands in the air and shook his head, indicating that he did not know what was in the pillow.
In patting the pillow, Thomas noticed that it was hard, consistent with the earlier thumping sound it had produced when thrown into the back of the car by Llera. Thomas also noticed that the open end of the pillow case had been stitched with thread of a different color from that of the rest of the case. Thomas removed the stitching. The pillow case concealed some heavy, brown-taped packages. The packages contained a powdery substance later found to be cocaine. Thomas then searched an identical pillow in the car and found that it contained similar packages of powder. Thomas and Phillips then arrested both Pino and Llera for possession of cocaine.
II. DEFENDANT LLERA
Llera contends that the district court erred in concluding that he lacks standing to assert that the search of the rental car violated his fourth amendment rights. Under United States v. Salvucci, 448 U.S. 83, 86, 100 S.Ct. 2547, 2550, 65 L.Ed.2d 619 (1980), Llera bore the burden of establishing fourth amendment standing. The ultimate issue upon which Llera bore the burden of proof is whether he had a legitimate expectation of privacy in the automobile or the pillows. Rakas v. Illinois, 439 U.S. 128, 144, 99 S.Ct. 421, 431, 58 L.Ed.2d 387 (1978).
In Rakas, the defendants, passengers in a car driven by another, argued that they had standing to assert that a search of the vehicle violated their fourth amendment rights by the mere fact that they were legitimately in the vehicle. The Court disagreed, noting, with special import, that the defendants "asserted neither a proprietary nor a possessory interest in the property seized." Id. at 148, 99 S.Ct. at 433.
In the instant case, the record clearly shows that Llera had neither a property nor possessory interest in either the rental car or the pillows. With regard to the rental car, the rental contract, itself, showed that Pino used his credit card to rent the vehicle and that Llera was not listed as an authorized driver of the vehicle. Indeed, as the troopers later learned, Llera's driver's license had been suspended, and he was therefore unable to legally drive the car. With regard to the pillows, Llera's action of throwing one of the pillows in the back of the station wagon upon Thomas's approach and his gesturing to the effect that he did not know what was in the pillows act as a clear disavowal of any property or possessory interest in them. Moreover, Llera...
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