U.S. v. Garcia, 88-6276

• Decision Date: 11 December 1989
• Docket Number: No. 88-6276,88-6276
• Citation: 890 F.2d 355
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Juan Jose GARCIA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 355

890 F.2d 355

UNITED STATES of America, Plaintiff-Appellant, v. Juan Jose GARCIA, Defendant-Appellee.

No. 88-6276.

United States Court of Appeals, Eleventh Circuit.

Dec. 11, 1989.

Dexter W. Lehtinen, U.S. Atty., Dawn Bowen, and Linda C. Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellant.

Michael O'Kane, Ft. Lauderdale, Fla., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before FAY and KRAVITCH, Circuit Judges, and CASTAGNA ^*, District Judge.

FAY, Circuit Judge:

The United States appeals the district court's ruling in favor of suppressing physical evidence discovered at the residence of defendant Juan Garcia. The court held that the consent which Garcia gave government agents to search his house was not given freely, voluntarily, and knowledgeably because of the circumstances existing at the time the consent was given. The government argues that the conditions present when Garcia consented to the search were not inherently coercive, and therefore Garcia's consent was in fact voluntary. We agree with the government. Accordingly, we REVERSE the district court's order granting defendant's motion to suppress and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

In 1988, Juan Garcia was under investigation for his involvement in cocaine and counterfeiting operations. As a result of information received from a confidential informant, federal authorities suspected that Garcia was linked to the importation of a substantial amount of cocaine, had arranged for the sale of counterfeit currency, and had agreed to sell 10 kilograms of cocaine. The Drug Enforcement Administration (DEA), which was conducting the investigation of Garcia's connection with narcotics, consolidated its efforts with the Secret Service, which was investigating the counterfeiting operation, in an attempt to make the investigations more effective.

On April 19, 1988, the Secret Service arrested a number of Garcia's associates when they delivered counterfeit currency to the confidential informant. Although Garcia was implicated in the counterfeiting scheme, he was not immediately arrested because he was not present when the delivery took place and because the Secret Service knew of the pending narcotics investigation. The Secret Service obtained a warrant for Garcia's arrest on April 20, 1988.

During the Secret Service's investigation of the counterfeiting operations, the confidential informant, under the direction of the DEA, was arranging a purchase of approximately ten kilograms of cocaine from Garcia. An individual named "Flaco" was to deliver the cocaine to Garcia so that Garcia could sell it to the informant. However, since many of Garcia's associates were arrested on counterfeiting charges on April 19, and the informant was not one of those arrested, DEA agent Gravat became concerned for the safety of the informant and on April 20, instructed the informant to cease contact with Garcia until he received further instructions.

On April 21, 1988, agent Gravat directed the informant to contact Garcia to arrange for the purchase of half of the ten kilograms of cocaine at a fast food restaurant. Gravat had previously convened with Secret Service agents and established surveillance at Garcia's residence. At approximately 11:45 a.m., Gravat received a telephone call from the informant who explained that Garcia was in possession of the cocaine at his house, and that Garcia desired that the transaction take place at his residence rather than the fast food restaurant. Gravat conferred with the other Secret Service and DEA agents participating in the surveillance regarding whether it would be safe to enter Garcia's residence to execute the arrest, as the agents had been apprised of the fact that Garcia frequently carried weapons. The agents also feared that "Flaco," the person who was to deliver the cocaine, was still in the house.

In the midst of these discussions, the agents observed Garcia walk out of the house without his handbag, in which he normally carried his weapon. Garcia began conversing with a man named "Tico" over the front yard fence, and the agents decided that since Garcia was probably unarmed, it would be a good time to arrest him. Secret Service agent Trasollas arrested Garcia in the front yard while a number of other officials searched the house not for physical evidence, but to protect the exposed officers from anyone inside. The agents found no one in the house other than Garcia's elderly mother-in-law, who was visibly shaken. Agent Raffanello, the DEA agent in charge, requested one of the female officers to assist Garcia's mother-in-law and called the paramedics to attend to her in case her condition worsened.

During the security sweep, agent Trasollas was conducting a "pat-down" search of Garcia, and asked Garcia if he had any weapons. Garcia answered affirmatively and led Trasollas into the house to show him the location of the weapons. Trasollas accompanied Garcia to the bedroom where he found the guns and took possession of them. Trasollas then led Garcia from the bedroom to the living room and placed him on the couch, handcuffed.

Officer Diazlay of the Miami Police Department, acting as an interpreter, read Garcia his Miranda rights. After Garcia acknowledged that he understood his rights, DEA agent Raffanello directed Diazlay to request Garcia's consent to search the house for physical evidence. Diazlay complied, and Garcia responded that the officers could search only certain rooms, because he did not want the agents to see various personal items. Raffanello did not accept Garcia's conditional consent, and told Garcia, through Diazlay, that they would have to secure the house and attempt to obtain a search warrant. ¹ Garcia responded that the agents need not procure a search warrant; they could "go ahead and search the house." (R2-119).

Pursuant to Garcia's statement, the agents began searching the house and found in Garcia's bedroom more than two kilograms of cocaine and various drug paraphernalia. On April 28, 1988, the grand jury charged Garcia with possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841 (a)(1). Garcia filed a motion to suppress the physical evidence obtained during the search on the ground that his consent was involuntary. The trial court granted Garcia's motion to suppress. We review the district judge's decision.

II. STANDARD OF REVIEW

Initially, we must determine under which standard to review the trial court's ruling that Garcia's consent to the search of his home was involuntary. In his order granting Garcia's motion to suppress evidence resulting from the allegedly unlawful search, the trial judge found as a matter of fact that Garcia's consent to the search was involuntary. In support of his conclusion, the judge stated in his findings of fact:

The defendant's consent given here, when viewed under the totality of the circumstances, cannot be deemed to have been given freely, voluntarily, and knowledgeably. In particular, the Court notes that fourteen armed officers were present, that the defendant was placed in handcuffs and was taken into his own home in the presence of his mother-in-law, that the defendant initially refused to give consent, and only after persistence by the officers was consent obtained. These factors, combined with all other evidence presented, necessitate a finding of unacceptable, involuntary consent.

(Supp.R. 4).

The Supreme Court has held that "[v]oluntariness is a question of fact to be determined from all the circumstances" when evaluating the validity of a consent to search. Schneckloth v. Bustamonte, 412 U.S. 218, 248-249, 93 S.Ct. 2041, 2058-2059, 36 L.Ed.2d 854 (1973). However, the Court has further admonished that when a claim disputing voluntariness is raised, "it is the duty of an appellate court ... 'to examine the entire record and make an independent determination of the ultimate issue of voluntariness.' " Beckwith v. United States, 425 U.S. 341, 348, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1 (1976) (quoting Davis v. North Carolina, 384 U.S. 737, 741-742, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966)). This circuit has assimilated these cases and determined that rulings on motions to suppress evidence involve mixed questions of law and fact. United States v. Malekzadeh, 855 F.2d 1492, 1496 (11th Cir.1988), cert. denied sub nom. Shayanfar v. United States, --- U.S. ----, 109 S.Ct. 1149, 103 L.Ed.2d 209 and cert. denied --- U.S. ----, 109 S.Ct. 1163, 103 L.Ed.2d 221 (1989); United States v. Rioseco, 845 F.2d 299, 302 (11th Cir.1988); United States v. Alexander, 835 F.2d 1406, 1408 (11th Cir.1988); Jurek v. Estelle, 623 F.2d 929, 932 (5th Cir.1980) (en banc) ² cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981). Hence, while we must defer to the trial judge's findings of fact unless clearly erroneous, United States v. Bulman, 667 F.2d 1374, 1379 (11th Cir.) (per curiam), cert. denied sub nom. Howard v. United States, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982), we are to review the district judge's application of law to the facts de novo. United States v. Alexander, 835 F.2d at 1408.

Normally, we will accord the district judge a great deal of deference regarding a finding of voluntariness, and we will disturb the ruling only if we are left with the definite and firm conviction that the trial judge erred. See United States v. Chemaly, 741 F.2d 1346, 1352 (11th Cir.1984); United States v. Alegria, 721 F.2d 758, 761 (11th Cir.1983); see also United States v. Edmondson, 791 F.2d 1512, 1514-1515 (11th Cir.1986) (finding of fact clearly erroneous when reviewing court is left with definite and firm conviction that mistake was committed). However, this is true because the trial judge usually bases his finding on credibility choices resulting from conflicting testimony. Further, in making these choices, the...