U.S. v. Benitez-Arreguin

• Decision Date: 01 July 1992
• Docket Number: D,BENITEZ-ARREGUI,No. 91-4040,91-4040
• Citation: 973 F.2d 823
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesusefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 823

973 F.2d 823

UNITED STATES of America, Plaintiff-Appellee, v. Jesus BENITEZ-ARREGUIN, Defendant-Appellant.

No. 91-4040.

United States Court of Appeals, Tenth Circuit.

July 1, 1992.

Order on Rehearing Sept. 3, 1992.

G. Fred Metos, Salt Lake City, Utah, for defendant-appellant.

Mark K. Vincent, Asst. U.S. Atty., Salt Lake City, Utah (David J. Jordan, U.S. Atty., with him on the brief), for plaintiff-appellee.

Before LOGAN and HOLLOWAY, Circuit Judges, and CONWAY, District Judge. ^*

HOLLOWAY, Circuit Judge.

This is an appeal from a conviction under 21 U.S.C. § 841(a)(1) for possession of heroin with intent to distribute. The defendant was convicted on a jury verdict of guilty as to Count I of the indictment. He was sentenced for a term of 63 months of imprisonment, to be followed by five years of supervised release, and a $50 special assessment. Defendant appeals, claiming error in the denial of a motion to suppress evidence including the controlled substance.

I

A

The issue raised concerns a search at the Salt Lake City, Utah, Amtrak Station. At that time defendant Benitez-Arreguin arrived from Los Angeles by train and was noticed by Utah state narcotics agents Hall and Larsen, who were on duty at the station on May 30, 1990. They testified that they were to "profile" passengers arriving on the early morning train from Los Angeles. II R. 3-4. The defendant was the only Hispanic observed leaving the train. Id. at 49. He entered the station and was followed by the officers who observed him In the station, defendant went to a telephone to place a call. Agent Larsen stood nearby and attempted to overhear the conversation. However, defendant conversed in Spanish, which Larsen did not understand. III R. 51. After making the call, defendant took a seat in the waiting area of the station, placing the two bags near his feet and under his chair. As he sat in the waiting room, he looked around and watched other people. Hall and Larsen moved about the waiting room, watching the defendant.

                carrying two cloth symmetrical bags about two feet in length and eight inches in diameter.   Id. at 37.   Defendant did not retrieve any other luggage from the baggage counter
                

About ten or fifteen minutes later another male Hispanic, Ramirez, entered the station. Defendant picked up his bags and the two walked out of the station together. The agents followed and Hall asked to speak with them and displayed his badge. II R. 41. The agents then requested identification from defendant and Ramirez. The defendant produced a "green card." When Larsen attempted to talk to defendant, he realized that defendant did not speak English. In his report, Hall said that defendant Benitez-Arreguin did not speak English. Id. at 28. Larsen spoke and made hand motions toward the bags held by the defendant to indicate that he wanted to look into the bags. Id. at 46. Larsen testified at the suppression hearing that the defendant opened the first bag, which contained clothing. Larsen then used gestures indicating he wanted to look into the other bag. The defendant bent down, opened it and handed it to Larsen. Id. at 47. In the second bag, Larsen found some pants, and in a pocket he found a tube-shaped object six or eight inches long and wrapped in duct tape. After this incident, Larsen testified that he took the suspected narcotic and placed it back inside the bag and had his narcotics dog inspect it, and the dog made a definite alert. Id. at 48-49. Larsen opened the package and had the contents tested later by the state crime lab and it was found to contain heroin, about 350 grams in quantity. Id. at 49.

At the suppression hearing, the defendant testified that he did not speak English. His testimony throughout was conducted through an interpreter. He had been in this country approximately two or three years during the fruit season but spent most of his time in Mexico. III R. 2-3. On May 30, 1990, he was at the train station in Salt Lake City, and when Mr. Ramirez came into the station the defendant stood and greeted him, shaking hands, and they started to go outside. He said that at this point two policemen overtook them, got in front of them and showed Ramirez and the defendant their badges. Id. at 5. Ramirez and the defendant stopped and the officers then asked for their identification. He understood this because the word "identification" was very similar to the word in Spanish. Id. at 6. The defendant then showed the officer his green card issued by the Immigration Service. It was returned to them when they went to an officer in the train station. Id.

The defendant said the officers then made signs which the defendant took to mean that they wanted to search the suitcases. The defendant did nothing to stop them from searching the suitcases because they were policemen. III R. 7. When the suitcases were searched, the officer still had defendant's identification. The defendant said he did not understand he had the right to deny the officer permission to look in the bag. Id. The defendant testified that he knew Ramirez because he had come to Salt Lake City once looking for work, sometime around April. When one of the officers made signs pointing toward the bag, he was looking at the defendant's face and the officer bent down and opened the bag. As he was bending down, the officer said "coca, mota, chiva." Id. at 15. "Mota," he had heard, was marijuana, and "chiva," the defendant believed, was heroin. The defendant's response to the officer's statements was only to shrug his shoulders and hold his hands up as if to signify he did not know anything. Id. at 16.

The defendant testified that just one of the two bags was his, the large one carrying his clothing and lotions. The other one he got when he was looking for work. A friend in a Los Angeles bar, who was not

                really a friend, knew that the defendant was looking for work and asked the defendant if he could take the bag for him to a hotel, "Colacha," in Salt Lake City.   III R. 19.   The man told the defendant that someone would get the bag at the hotel, a woman who would take him to a farm to work.   The defendant was told that the bag belonged to the woman and contained children's clothing.   Id. at 21, 23.   The defendant did not know if the bag belonged to the friend or to the woman, but he was to take it to her and the defendant did not look inside the bag.   The defendant took care of the bag as if it were his, but he did not know what was inside the bag.   Id. at 24-25.   The defendant testified that he did not want the officers to search the bags because he was in charge of them.   Id. at 25
                

B

After hearing the testimony in two hearings on the suppression motion, the trial judge heard oral argument and made his ruling from the bench. The judge found that from the totality of the circumstances there was a valid Terry-type stop. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The judge said that some of the observations, such as the man sitting in the chair, the reading of a book or watching television, did not impress him as showing a basis for suspicion. However, the judge said he was impressed that the police officer had a vast background of experience and testified that the defendant appeared to be nervous, looking over both shoulders, and seemingly anxious to be going someplace. He looked like a man with a mission. He seemed to know where a telephone was, although it was not obvious. The greeting for Ramirez was unusual in that the defendant did not embrace Ramirez or seem to even shake his hand. IV R. 34-35.

The judge found that the examination of the bag was not consensual. There was no clear and unequivocal or specific permission given. The judge found there was implied duress and that the presumption against waiver of constitutional rights was not overcome. Also, there was an obvious language barrier and it was obvious to the officer that the defendant did not speak English. The pantomime gestures were not sufficient to produce a consent to search.

The judge then turned to the issue of the extent of the defendant's rights under the Fourth Amendment, or standing. Citing Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), he found that arcane distinctions developed in property and tort law concerning guests, licensees, invitees and the like ought not to control. Thus whether the defendant was a bailee or not, the judge found the real question to be whether the defendant had a subjective expectation of privacy, and whether society would recognize the expectation as objectively reasonable. The judge took the position that even though the search would not have been permitted due to lack of a valid consent, the fortuitous circumstance that the defendant disclaimed ownership in the bag was such as to destroy his right to standing to raise the question, even though that was not known by the officer. IV R. 36-37. Accordingly, the motion to suppress was denied from the bench.

The ruling was memorialized in a written order of October 4, 1990. There the court stated: that the initial stop of the defendant was not a consensual police-citizen encounter; that, however, it did constitute a valid investigatory stop under Terry v. Ohio in light of the totality of the circumstances creating a reasonable suspicion; that the search of the defendant's bag containing the controlled substance was not consensual because of implied duress and the obvious language barrier and because the pantomime gestures were an insufficient method by which to obtain clear and unequivocal consent. The order concluded:

4. The defendant's subsequent disclaimer of ownership of the bag and his testimony regarding the circumstances by which he came into possession of the bag and where he was taking the bag, effectively destroys his standing to bring this motion to suppress.

The court finds that the defendant possibly had a subjective expectation of privacy in the bag,...