U.S. v. Alcantar

• Decision Date: 11 September 2001
• Docket Number: 01-1144,No. 00-3418,PLAINTIFF-APPELLANT,REAL-FLORES,00-3418
• Citation: 271 F.3d 731
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA,, v. SAMUEL ALCANTAR, ELIASAPPELLEES. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 731

271 F.3d 731 (8th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT, v. SAMUEL ALCANTAR, ELIAS REAL-FLORES. APPELLEES.

No. 00-3418, 01-1144

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: September 11, 2001

Filed: November 14, 2001

Appeal from the United States District Court for the Northern District of Iowa

[Copyrighted Material Omitted] Before Morris S. Arnold and Bright, Circuit Judges, and Kyle, District Judge.¹

Kyle, District Judge.

Samuel Alcantar and Elias Real-Flores appeal their separate convictions for conspiring to distribute and possess with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. We affirm.

I.

On July 29, 1999, San Bernardino County Deputy Sheriff Robert Sanchez received a tip that Samuel Alcantar and another man were transporting drugs from San Bernardino, California, to Waterloo, Iowa, in a silver and blue Chevrolet pickup, with Iowa license plate number 722 GLE. The informant further stated that the men were "leaving now" for Iowa.

Deputy Sanchez relayed the information to the California Highway Interdiction Narcotics Enforcement Team (HINET) and to the Tri-County Drug Task Force in Waterloo. This information was further passed on to Officers Ken Weeks and David Neal, Jr., California police officers assigned to a HINET unit in Barstow, California.² Officers Weeks and Neal were instructed to watch for the truck and "make a case" against the driver if he violated any traffic laws. Officers Weeks and Neal positioned their car on eastbound U.S. Interstate 15 outside of Barstow, to begin their shift.

At approximately 2:26 p.m., the officers observed the truck following another car too closely and pulled it over. Officer Weeks approached the driver, who was identified by producing a driver's license as Elias Real-Flores. Real-Flores was directed to get out of the truck. The officers then ran a check on his driver's license, which indicated that the license was expired.

Officer Weeks told Real-Flores that he smelled of beer and asked him if he had been drinking. Real-Flores admitted to having had a few beers before leaving home that morning. Officer Neal then conducted a set of field sobriety tests, which Real-Flores passed. Officer Weeks asked Real-Flores where he was going and Real-Flores stated that they were going to Iowa to find work.

Officer Weeks then approached the passenger of the truck, who identified himself as Samuel Alcantar. Officer Weeks asked Alcantar where they were going. Alcantar stated that they were going to Iowa to find work. Officer Weeks asked if Alcantar had been drinking and inquired as to why there was no luggage in the truck. Alcantar stated that he had had a beer before leaving that morning. He further stated that he had clothes in both California and Iowa and that Real-Flores would buy new clothes when he found a job.

Less than 20 minutes after initiating the stop, Officer Weeks warned Real-Flores to drive more carefully, wished them good luck in Iowa, and told them they could leave. As Real-Flores walked back to the truck, Officer Weeks asked him if there were any drugs, cocaine, methamphetamine, marijuana, beer, or weapons in the truck. Real-Flores stated "no" to each question. Officer Weeks then asked for permission to search the truck. Real-Flores gave his permission by answering "yes." Real-Flores was then led back to the patrol car. Officer Weeks then asked Alcantar if there were any drugs, weapons, or beer in the truck. Alcantar stated that there were not. Officer Weeks then asked for permission to search the truck. Alcantar gave his permission by answering "yes." Alcantar was then led back to the patrol car.

At about 2:50 p.m. Officer Weeks told Real-Flores and Alcantar that the search would not take very long. At this time Officer Weeks turned on an audio tape recording device in the patrol car.³ The tape recorded the conversations of Real-Flores and Alcantar occurring in the car for one hour; neither was aware of the recording.

A very extensive search of the truck was then commenced. At about 2:56 p.m. a narcotics sniffing dog was used to search the car and did not respond positively to the presence of drugs. In total, the search lasted approximately two hours and forty-five minutes. During this time the officers removed and inspected pieces of the truck, used a fiber optic scope to search the gas tank, air conditioning vents, fenders and other hidden areas of the truck, climbed under the truck with a flashlight, pulled apart door and interior fabric panels, and used a stethoscope. No evidence of drugs was found during the search. At approximately 5:27 p.m., the truck was returned to its original condition and Real-Flores and Alcantar were allowed to continue on their trip.

Officer Weeks then arranged for Deputy Sanchez to review the tape and provide a transcript. The next day Deputy Sanchez obtained the tape. Deputy Sanchez, who is fluent in both Spanish and English, reviewed the tape and determined that Real-Flores and Alcantar were talking about drugs in the truck. He also noted that they were "praying" that the officers not find the drugs, and that they were fabricating a story to tell the officers if the drugs were found. After returning to his office, he had a transcript made of the conversation.

Deputy Sanchez then phoned Detective Geisinger in Waterloo, Iowa, and relayed the conversations on the tape. Detective Geisinger established surveillance at the Ravenwood Apartments complex, the residence of the owner of the truck. Around noon on July 31, 1999, the truck was seen at the Ravenwood Apartments. Shortly thereafter, the truck left the apartment complex and was pulled over some two blocks away.

A search warrant was then obtained for the truck based on the information relayed to Detective Geisinger by Deputy Sanchez. The warrant was read to the occupants of the truck and a search ensued. During the search, three pounds of methamphetamine were found in the fan housing unit under the air conditioning fan motor. The drugs were contained in three one-pound packages, all wrapped in plastic and smeared with grease and pepper. Real-Flores and Alcantar were then arrested and charged with possession with intent to distribute methamphetamine.

While awaiting trial, both Defendants were held at the Linn County Jail. During their detention, both Defendants had conversations with Steven Freeman, another inmate at the facility, in which they described why they were in jail and admitted to transporting methamphetamine.

At trial the methamphetamine and the taped conversation from Officer Weeks's patrol car were admitted over the Defendants' objections. In addition, Freeman testified at Alcantar's trial about what Alcantar had communicated to him while at the Linn County Jail.

II.

Both Defendants argue that the district court⁴ erred in denying their motions to suppress evidence found during the search of the truck in Waterloo, Iowa.⁵ In support of that motion, and here on appeal, the Defendants raise three principal arguments.

A.

Defendants first argue that the stop in California was pretextual and, therefore, the stop in Iowa was the fruit of an illegal search. We review the district court's decision for clear error. United States v. Pereira-Munoz, 59 F.3d 788, 790 (8th Cir. 1995).

"It is well established... that any traffic violation, no matter how minor, provides a police officer with probable cause to stop the driver of the vehicle." Id. at 791. In deciding whether a stop was pretextual or based on probable cause, the district court applies an "objectively reasonable" standard. United States v. Chatman, 119 F.3d 1335, 1340 (8th Cir. 1997). "So long as the officer is doing nothing more than he is legally permitted and objectively authorized to do, his actual state of mind is irrelevant for purposes of determining the lawfulness of the stop." Pereira-Munoz, 59 F.3d at 790. The subjective intentions of an officer making the stop are irrelevant for the purpose of determining the validity of the stop. United States v. Whren, 517 U.S. 806 (1996).

The district court expressly found that the officers waited until they had a valid reason to stop the truck before pulling it over. The evidence before the district court established that the Defendants were driving too close to another vehicle -- a violation of a traffic law and a legitimate reason to stop a vehicle. The district court's finding that the stop was not pretextual was not clearly erroneous.

B.

Defendants also contend that the search of their truck was unreasonable in length and scope.⁶ Specifically, Alcantar argues that (a) he did not voluntarily consent to the search of the truck and (b) if he did consent, the search exceeded the scope of his consent. Real-Flores contends that although he initially consented to the search, he did not consent to a two hour and forty-five minute search of the truck.

1.

We review the district court's determination that Alcantar voluntarily gave consent under the clearly erroneous standard. United States v. Miller, 20 F.3d 926, 930 (8th Cir. 1994). "[T]he question of whether a consent to search was in fact 'voluntary' or was the product of duress or coercion, expressed or implied, is a question of fact to be determined from the totality of all circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). We have held the following characteristics of persons giving consent to be relevant when determining the voluntariness of their consent: (1) the defendant's age; (2) the defendant's general intelligence and education; (3) whether the defendant was under the influence of drugs or alcohol; (4) whether the defendant was informed of his Miranda rights prior to the consent; and (5) whether the defendant had experienced prior arrests so that he was aware of the protections the legal system affords to suspected criminals. United States v. Hathcock, 103 F.3d...