U.S. v. Arango

• Decision Date: 28 August 1990
• Docket Number: No. 89-4084,89-4084
• Citation: 912 F.2d 441
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jorge Enrique ARANGO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 441

912 F.2d 441

UNITED STATES of America, Plaintiff-Appellee, v. Jorge Enrique ARANGO, Defendant-Appellant.

No. 89-4084.

United States Court of Appeals, Tenth Circuit.

Aug. 28, 1990.

Susan L. Foreman (Michael G. Katz, Federal Public Defender, and Frances Smylie Brown, Asst. Federal Public Defender, Denver, Colo., with her, on the briefs), Asst. Federal Public Defender, Denver, Colo., for defendant-appellant.

Richard D. McKelvie (Dee V. Benson, U.S. Atty., with him, on the brief), Sp. Asst. U.S. Atty., Salt Lake City, Utah, for plaintiff-appellee.

Before TACHA, BALDOCK and BRORBY, Circuit Judges.

TACHA, Circuit Judge.

Jorge Enrique Arango was convicted of possession of a controlled substance with intent to distribute in violation of 21 U.S.C. section 841(a)(1). Arango appeals his conviction, arguing that the trial court erred in denying his motion to suppress evidence of 100 kilograms of cocaine. We affirm.

I.

On November 16, 1988, Utah Highway Patrol Trooper James Hillin was traveling west on Interstate 70 when he noticed a pick-up truck moving at a high speed in one of the eastbound lanes. Hillin turned on his rear radar and clocked the truck at 84 m.p.h., which exceeded the area speed limit of 65 m.p.h. After pulling the truck over, Hillin noticed that there were two persons in the cab, a man and a woman, and two small clothing bags in the bed of the truck. The driver gave Hillin a California license identifying him as Jorge Enrique Arango and a California registration listing the owner as Walter A. or Linda A. McConaughy. Hillin then asked Arango to exit the truck and come sit in the police car so that Hillin could talk with him about why he had been stopped and show him the reading on the radar gun.

While in the patrol car, Hillin asked Arango who the registered owner was. Arango replied that the registered owner was a friend, who had loaned the truck to him so that he could drive to Denver for a two week vacation. This answer aroused Hillin's suspicions because he thought that the two small bags of clothing could not contain enough clothing for a two week stay. Hillin asked Arango for the owners' phone number, but Arango told him that the owners did not have a phone. Hillin instructed his dispatcher to contact directory assistance in the owners' hometown to see if the owners had a phone number. The dispatcher reported that California directory assistance had no listing for the McConaughys. The dispatcher also informed Hillin that the National Crime Information Center (NCIC) computer did not indicate that the truck was stolen.

Hillin gave Arango a citation for speeding and then asked if there was any alcohol, weapons, or drugs in the truck. Arango indicated that there was not. Hillin asked if he could "look in the vehicle for any of those items." Arango gave his consent.

Meanwhile, Trooper Chester Johnson had arrived at the scene. The two troopers proceeded to search the truck. As Johnson walked up to the pick-up from behind, he noticed that the bed of the truck "didn't seem right" because it was very shallow. After lifting the tailgate corner of a rubber mat covering the bed of the truck, Johnson observed that the truck bed apparently had been modified. The section seams in the truck bed were wide and rough, as if they had been puttied in by hand. Bolts on the sides of the bed did not match the color of the pick-up, and the bed appeared to have been freshly painted. As they were examining the bed of the truck, Arango asked the officers what they were doing and whether anything was wrong. Hillin replied that they were looking at the bed of the truck. Arango said nothing more, and the officers continued with their search. By placing one hand on the bed of the truck and reaching around the side to the undercarriage, Johnson and Hillin discovered a gap of several inches existed. Both Johnson and Hillin took turns tapping on the bed of the truck, but neither of them could feel the taps on the other side, suggesting that the truck had a false bed. The troopers next removed the rubber mat and observed that the same modifications had been made to the other three corners of the truck bed floor. Hillin retained Arango's license and vehicle registration and told Arango that he had to follow him seven miles to the sheriff's office in Richfield to post bail for the traffic citation. At the suppression hearing, Hillin admitted that this request was a pretext and that the real reason that he asked Arango to return to Richfield was to continue searching the truck. Arango drove to Richfield with Hillin in front of him and Johnson following him.

When they arrived at the sheriff's office, Hillin asked Arango to sign a written consent to search form. Arango responded by stating: "I already told you, you could search, you could look in the truck; and you have looked." Hillin left and found Deputy County Attorney Paul Lyman. Arango told Lyman that he had already granted his consent to search and questioned why the form was necessary. Lyman replied that "they'd like to have it in writing." Arango then asked what would happen if he signed the form and Lyman replied that they would search the bed of the pick-up and if they did not find anything, "you'll be on your way in fifteen minutes. If we find something, we'll go from there." Lyman also told Arango that if he did not sign the form, he would request a search warrant.

Arango signed the form, and several troopers then assisted Hillin and Johnson in dismantling the bed of the truck. The troopers found 100 kilograms of cocaine hidden in secret compartments underneath the bed in the four corners of the truck. Arango testified that he inferred from Lyman's comments that a judge would sign the form if he did not, that he did not feel he was free to leave, that no one explained his constitutional rights to him, that he was unfamiliar with his rights because he is a citizen of Colombia, and that he never would have signed the form had he known that the search of the truck included dismantling it.

Arango admitted at the suppression hearing that he had not told the truth when he told Hillin that he received the truck from the registered owners. Arango stated that he actually received the truck from a person known as Jesus Gonzalez, who paid Arango $2000 to drive the truck to Denver. Arango presented no evidence at the suppression hearing showing that Gonzalez had lawful possession of the truck from the registered owners. Arango testified that Gonzalez told him that there was money hidden in a secret compartment somewhere in the truck. Arango denied any knowledge of the cocaine.

In response to the government's argument that Arango lacked standing to contest the search, the district court observed: "There is some genuine question as to whether the defendant Jorge Enrique Arango has standing to challenge the search of the truck." The district court, however, found it unnecessary to resolve this issue, concluding that even if Arango had standing, he had consented to the search. Accordingly, the district court denied Arango's motion to suppress evidence of the cocaine. On April 10 and 11, the government tried Arango before a jury, which returned a guilty verdict.

II.

When reviewing a district court's denial of a motion to suppress, we accept the district court's factual findings unless they are clearly erroneous. United States v. Berryhill, 880 F.2d 275, 280 (10th Cir.1989). The ultimate determination of reasonableness under the fourth amendment, U.S. Const. amend. IV, is a question of law, which we review de novo. United States v. McKinnel, 888 F.2d 669, 672 (10th Cir.1989).

Arango argues that the district court erred in denying his motion to suppress for the following reasons: (1) he has standing to contest the search; (2) his allegedly illegal detention on Interstate 70 fatally tainted his subsequent oral consent to search; (3) his allegedly illegal arrest and transportation to the sheriff's office fatally tainted his subsequent written consent; and (4) his written consent to search was invalid on its face.

Arango argues that he has standing to contest the search of the truck because the government failed to introduce any evidence demonstrating that Arango's possession of the truck was not lawful. Arango contends that his mere physical possession of the truck at the time of the search gives him standing to object to the search. We disagree.

In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court reformulated the issue of standing under the fourth amendment. Rakas concluded that the "Court's long history of insistence that Fourth Amendment rights are personal in nature has already answered many ... traditional standing inquiries, and we think that the definition of those rights is more properly placed within the purview of substantive Fourth Amendment law rather than within that of standing." Id. at 140, 99 S.Ct. at 428. Because the issue of standing is "invariably intertwined" with substantive fourth amendment analysis, the most logical inquiry focuses solely on a particular defendant's rights under the fourth amendment. Id. at 139, 99 S.Ct. at 428. In reviewing a motion to suppress, we must thus determine "whether the challenged search or seizure violated the Fourth Amendment rights of [the] criminal defendant who seeks to exclude the evidence...." Id. at 140, 99 S.Ct. at 429. It is immaterial if evidence sought to be introduced against a defendant was obtained in violation of someone else's fourth amendment rights. Fourth amendment rights are personal and cannot be asserted vicariously. See id.

To ascertain whether a search has violated the rights of the particular defendant who seeks to exclude the resulting evidence, we consider two primary factors: whether the defendant manifested a subjective expectation of privacy in the area searched and whether society would recognize that expectation as objectively reasonable....