U.S. v. Cedano-Medina

• Decision Date: 30 April 2004
• Docket Number: No. 03-2980.,03-2980.
• Citation: 366 F.3d 682
• Parties: UNITED STATES of America, Appellee, v. Dagoberto Servero CEDANO-MEDINA, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 682

366 F.3d 682

UNITED STATES of America, Appellee, v. Dagoberto Servero CEDANO-MEDINA, Appellant.

No. 03-2980.

United States Court of Appeals, Eighth Circuit.

Submitted: February 10, 2004.

Filed: April 30, 2004.

John C. Vanderslice, argued, Lincoln, NE, for appellant.

Lynnett M. Wagner, argued, Lincoln, NE, for appellee.

Before MORRIS SHEPPARD ARNOLD, HANSEN, and SMITH, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

While driving across Nebraska, Dagoberto Cedano-Medina was pulled over by Nebraska State Patrol Trooper Jeffrey Roby for driving onto the shoulder of the highway. The two men talked for several minutes, culminating in a minute-long interchange in which Trooper Roby repeatedly asked Mr. Cedano-Medina if he could search his truck. After receiving a number of varying responses, Trooper Roby searched the truck and discovered seventeen pounds of cocaine hidden in the dash area. Mr. Cedano-Medina's primary language is Spanish. He spoke broken English throughout his encounter with Trooper Roby, and the two men had difficulty communicating and understanding each other during part of their discussion.

Mr. Cedano-Medina was indicted for possessing cocaine with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1). He filed a motion to suppress the cocaine that was found in his truck, contending that Trooper Roby did not obtain his voluntary consent before conducting the search. In denying the suppression motion, the district court¹ found that the government had proved by a preponderance of the evidence that it was reasonable to believe that Mr. Cedano-Medina knowingly and voluntarily consented to the search of his truck. Mr. Cedano-Medina conditionally pleaded guilty to the drug charge, reserving the right to appeal the denial of his motion to suppress. Reviewing the district court's finding for clear error, see United States v. Carrate, 122 F.3d 666, 669 (8th Cir.1997), we affirm.

I.

Under the fourth and fourteenth amendments, searches conducted without a warrant issued upon probable cause are presumptively unreasonable, subject to a few specifically established exceptions. See Katz v. United States, 389 U.S. 347, 356-57, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). A search that is consented to is one of those exceptions. Thus, "[a] warrantless search is valid if conducted pursuant to the knowing and voluntary consent of the person subject to a search." United States v. Brown, 763 F.2d 984, 987 (8th Cir.1985), cert. denied, 474 U.S. 905, 106 S.Ct. 273, 88 L.Ed.2d 234 (1985). The government has the burden of proving by a preponderance of the evidence that a subject's alleged consent to a search was legally sufficient to warrant admitting the fruits of the search into evidence. See United States v. Matlock, 415 U.S. 164, 177, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). This burden "`is not satisfied by showing a mere submission to a claim of lawful authority.'" United States v. $404,905 in U.S. Currency, 182 F.3d 643, 649 n.3 (8th Cir.1999) (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion)). Rather, the government must show that a reasonable person would have believed, see United States v. Sanchez, 156 F.3d 875, 878 (8th Cir.1998), that the subject of a search gave consent that was "the product of an essentially free and unconstrained choice," Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and that the subject comprehended the choice that he or she was making.

In other words, a person can render a search legal by behaving in a way that would cause a reasonable person to believe that he or she has knowingly and voluntarily consented, whether or not the person actually intends to consent. Thus, "the Fourth Amendment requires only that the police reasonably believe the search to be consensual." Sanchez, 156 F.3d at 878 (citing Illinois v. Rodriguez, 497 U.S. 177, 185-86, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990)). Consequently, Mr. Cedano-Medina's actual subjective state of mind at the time that he allegedly gave his consent is not determinative; our focus, rather, is on how a reasonable person could have perceived his state of mind at that time. We must determine whether it was reasonable to believe that Mr. Cedano-Medina understood what Trooper Roby was asking and gave him permission to search the truck and, if so, whether it was reasonable to believe that that consent was voluntary.

II.

The entirety of the encounter between Trooper Roby and Mr. Cedano-Medina leading up to the search was videotaped by a camera in Trooper Roby's cruiser, with audio provided by a microphone attached to Trooper Roby's body. This videotape was the central piece of evidence that the district court relied on in denying the motion to suppress, and we have examined it carefully. In evaluating Trooper Roby's conclusion that Mr. Cedano-Medina knowingly and voluntarily consented to the search of his vehicle, we rehearse the discernable dialogue and events on the videotape in some detail.

After Trooper Roby stopped Mr. Cedano-Medina's vehicle, Mr. Cedano-Medina provided his driver's license and vehicle registration upon request, the two men talked for a while about Mr. Cedano-Medina's travel itinerary, and Trooper Roby wrote Mr. Cedano-Medina a warning citation for careless driving. Trooper Roby then asked Mr. Cedano-Medina if he could ask him a couple of questions, to which Mr. Cedano-Medina responded, "No, yeah," and then asked Trooper Roby questions about where to get dog food (Mr. Cedano-Medina was traveling with a dog that he told Trooper Roby was "free" and a gift for his brother, whom he was on his way to visit in "Rock-a-ford," Illinois.). Trooper Roby then said, "Out here, people have — uh, the stop's over and everything, you can go if you want, but — a lot of times people carry weapons. Do you have any pistols, any pistolas?" Mr. Cedano-Medina answered, "No." Trooper Roby also asked if there were any knives or marijuana in the vehicle, and Mr. Cedano-Medina responded "No" to both inquiries. Trooper Roby then inquired whether Mr. Cedano-Medina had ever been arrested or "in trouble with the cops," and Mr. Cedano-Medina answered "No" to both of these questions.

At this point, Trooper Roby said, "Okay, would you have a problem — can I search the vehicle? Can I look through it?" After each of these questions, Mr. Cedano-Medina said "yeah" (or possibly "huh" or "nah"). The conversation continued as follows:

Trooper Roby: "Can I look through your vehicle? Can I search it?"

Mr. Cedano-Medina: "Do I keep this?"

Trooper Roby: "Yeah. The vehicle? Can I search it?"

Mr. Cedano-Medina: "No." (Followed by two unclear syllables).

Trooper Roby: "Can I look through it?"

Mr. Cedano-Medina: "No. Oh, the food?"

Trooper Roby: "Through the, through the truck. Can I look through the truck?"

Mr. Cedano-Medina: "I don't know. I don't understand."

Trooper Roby: "Can I search the truck?"

Mr. Cedano-Medina: "The food?"

Trooper Roby: "Can I search the whole truck? On the inside and on the outside. Can I look through it?"

Mr. Cedano-Medina: (Unintelligible except for the words "outside," "nothing," and "inside.")

Trooper Roby: "Can I look?"

Mr. Cedano-Medina: "Yeah."

Trooper Roby: "I can?"

Mr. Cedano-Medina: "Yeah. No." (Followed by an unclear syllable.)

Trooper Roy: "No problem?"

Mr. Cedano-Medina: Something about "nothing" and "uh huh."

Trooper Roby: "Okay, there's nothing in there? No problem if I look?"

Mr. Cedano-Medina: "No." (Followed by something about "afraid".)

Trooper Roy: You don't care?

Mr. Cedano-Medina. "Nah."

Trooper Roy: "Is it okay? Can I go ahead?"

Mr. Cedano-Medina: (Unintelligible.)

Trooper Roby testified that, at some point toward the end of this exchange, Mr. Cedano-Medina said, "Sure, go ahead," although we did not hear these specific words on the tape.

After this, Trooper Roby said, "Okay, let's get your dog out here," and the two men exited the patrol car. Mr. Cedano-Medina walked ahead to his truck, opened the door, took his dog out of the truck on a leash, and stood back on the side of the road while Trooper Roby conducted the search. Mr. Cedano-Medina never made an effort to stop the search. At one point during the search, Mr. Cedano-Medina came up to the back of his truck and retrieved some water for his dog.

III.

The difficulty in assessing Mr. Cedano-Medina's alleged consent arises from the obvious language barrier between him and Trooper Roby and the apparent lapses in communication that occurred during their conversation. Many of Mr. Cedano-Medina's utterances on the videotape are monosyllabic or undecipherable. Mr. Cedano-Medina argues that it was unreasonable for Trooper Roby to believe that he had consented to the search based on the ambiguous interaction that they had. Trooper Roby testified that, after he initially asked for Mr. Cedano-Medina's permission to search the truck, "his mannerisms and stuff made it clear to me that he wasn't exactly clear on what I was asking him." Trooper Roby further testified, though, that by the end of the conversation, he "felt that [Mr. Cedano-Medina] understood what I wanted to do, was look through the vehicle, search...