858 F.2d 1387 (9th Cir. 1988), 86-5294, United States v. Vasquez

Docket Nº:86-5294, 86-5309.
Citation:858 F.2d 1387
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jose Rodrigo VASQUEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Gustavo Arias GOMEZ, Defendant-Appellant.
Case Date:October 03, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1387

858 F.2d 1387 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jose Rodrigo VASQUEZ, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Gustavo Arias GOMEZ, Defendant-Appellant.

Nos. 86-5294, 86-5309.

United States Court of Appeals, Ninth Circuit

October 3, 1988

Argued and Submitted June 7, 1988.

Page 1388

Joseph F. Walsh, Los Angeles, Cal., for defendant-appellant Vasquez.

Paul Anthony Stabile, Pasadena, Cal., for defendant-appellant Gomez.

Enrique Romero, Asst. U.S. Atty., Crim. Div., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before PREGERSON and THOMPSON, Circuit Judges, and MUECKE, District Judge. [*]

DAVID R. THOMPSON, Circuit Judge:

Jose Rodrigo Vasquez was arrested when he delivered to an undercover police officer five one-kilogram packages of cocaine contained in a red gym bag. After his arrest, the police conducted a warrantless search of his car, and of several items found in the car. The police asked Vasquez if he had any more cocaine at his apartment. Vasquez replied that he did not know what the police were talking about and that they could search his apartment.

At Vasquez's apartment, which was being used by Gustavo Arias Gomez at the time, the police conducted another search during which they seized in excess of twenty-five kilograms of cocaine and $85,000 in cash found hidden in the apartment. They also seized miscellaneous narcotics paraphernalia and photographs showing Vasquez counting large sums of money.

During their trial, Vasquez and Gomez moved to suppress the evidence found in the car and the apartment. The government objected to the untimely suppression motion, but the court decided to hear argument on the motion after the jury had left to deliberate. At the hearing, the court concluded that Vasquez had given voluntary consent to the search of the apartment, that the searches of the car and its contents were justified under the "automobile exception" to the warrant requirement, and that the evidence should not be suppressed. Vasquez and Gomez appeal this ruling.

In addition, Vasquez contends that he should not have been cross-examined on the contents of his apartment because his direct testimony only described the events surrounding his sale of the five kilograms of cocaine to the undercover agent. He also asserts that the district court abused its discretion when it allowed an expert witness to testify that his fingerprint was found on one of the packages of cocaine discovered in his apartment.

Page 1389

Gomez and Vasquez argue that the court should have suppressed a photograph of Gomez discovered in an unsealed envelope in a briefcase in Vasquez's car. Gomez also argues there was insufficient evidence to convict him of possession of the five kilograms of cocaine contained in the red gym bag.

We have jurisdiction of these appeals under 28 U.S.C. Sec. 1291, and we affirm.

ANALYSIS

  1. Waiver of Motion to Suppress

    The first issue we consider is whether Vasquez and Gomez waived their right to seek the suppression of evidence that they contend the police seized in violation of the fourth amendment. In arguing for waiver, the government relies on Federal Rule of Criminal Procedure 12(b), which provides that a motion to suppress evidence must be made before trial, see Fed.R.Crim.P. 12(b)(3), and that the failure to timely move for suppression waives the right to later assert the illegality of the search or seizure. Id. 12(f). The government also relies on three cases in which we held that a court does not abuse its discretion when it declines to hear an untimely suppression motion. E.g., United States v. Davis, 663 F.2d 824, 831 (9th Cir.1981); United States v. Wood, 550 F.2d 435, 439 (9th Cir.1976); United States v. Barclift, 514 F.2d 1073, 1075 (9th Cir.1975), cert. denied, 423 U.S. 842, 96 S.Ct. 76, 46 L.Ed.2d 63 (1975).

    Here the court did not decline to hear the untimely motion. The district court heard the motion, listened to oral argument and considered the parties' briefs on the suppression issues. We agree with the Fifth and Eleventh Circuits that when the district court considers and resolves an untimely suppression motion on its merits, we may review that decision on appeal. E.g., United States v. Crosby, 739 F.2d 1542, 1548 (11th Cir.), cert. denied, 469 U.S. 1076, 105 S.Ct. 576, 83 L.Ed.2d 515 (1984); United States v. Contreras, 667 F.2d 976, 978 n. 2 (11th Cir.), cert. denied, 459 U.S. 849, 103 S.Ct. 109, 74 L.Ed.2d 97 (1982); United States v. Marx, 635 F.2d 436, 440-41 (5th Cir. Unit B Jan. 1981); United States v. Hicks, 524 F.2d 1001, 1003 (5th Cir.1975), cert. denied, 424 U.S. 946, 96 S.Ct. 1417, 47 L.Ed.2d 353 (1976); see also 3 C. Wright, Federal Practice and Procedure: Criminal 2d Sec. 673, at 769 & n. 57 (1982) (collecting cases in support of statement that "if the district court entertains the belated [suppression] motion and decides it on its merits, it cannot be argued on appeal that it had been waived"). When a court rules on the merits of an untimely suppression motion, it implicitly concludes that there is adequate cause to grant relief from a waiver of the right to seek suppression. See Fed.R.Crim.P. 12(f).

  2. Vasquez's Appeal

    1. Vasquez Voluntarily Consented to the Search of His Apartment

    Vasquez contends he did not voluntarily consent to the search of his apartment. The voluntariness of consent is a question of fact to be determined from the totality of all the circumstances. United States v. Gomez, 846 F.2d 557, 559 (9th Cir.1988) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973)). We have said that the court should consider "those [facts] that, in the district court's judgment, in fact influenced the defendant's decision to consent to the search." Id. at 560. Because the "district judge has substantial latitude in making such determinations[,] we review these findings...

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