U.S. v. Durades

• Decision Date: 01 April 1991
• Docket Number: No. 89-1844,89-1844
• Citation: 929 F.2d 1160
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alcides DURADES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1160

929 F.2d 1160

UNITED STATES of America, Plaintiff-Appellee, v. Alcides DURADES, Defendant-Appellant.

No. 89-1844.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 18, 1990.

Decided April 1, 1991.

Thomas M. Durkin, Ava M. Gould, Scott D. Levine, Asst. U.S. Attys., Office of the U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Stephen Levy, Chicago, Ill., for defendant-appellant.

Before BAUER, Chief Judge, CUMMINGS and FLAUM, Circuit Judges.

BAUER, Chief Judge.

Alcides Durades was charged in a one count indictment with possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). The district court denied the defendant's pretrial motion to suppress evidence seized during a warrantless search of his apartment, finding that the defendant's consent to the search was voluntarily given. The evidence seized during that search and introduced at trial included cocaine as well as several incriminating statements made by the defendant to FBI agents. After hearing four days of evidence the jury found the defendant guilty as charged. The district court denied the defendant's post-trial motions for acquittal and a new trial based, to the extent relevant here, on the court's denial of the motion to suppress and the court's failure to instruct the jury properly. The court sentenced the defendant to ninety-seven months imprisonment under the sentencing guidelines. On appeal the defendant argues that the court erred in denying his motion to suppress and that the court committed reversible error in failing to adequately instruct the jury. We affirm.

I.

Warrantless searches and seizures are reasonable within the meaning of the Fourth Amendment when conducted under the authority of voluntary consent. When relying on voluntary consent to justify such a search the prosecution has the burden of establishing that the consent was freely and voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973); Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968). This court will reverse the district court only if persuaded that the finding was clearly erroneous. United States v. Sanchez-Jaramillo, 637 F.2d 1094, 1098 (7th Cir.), cert. denied, 449 U.S. 862, 101 S.Ct. 166, 66 L.Ed.2d 79 (1980). Whether consent to a warrantless search is voluntarily given is a question of fact to be determined by looking to the totality of the circumstances. Schneckloth, 412 U.S. at 222, 93 S.Ct. at 2045. Accordingly, a recitation of the circumstances surrounding the search in question is necessary to our review of the district judge's disposition of the motion to suppress.

The evidence introduced at the suppression hearing revealed that as part of a narcotics investigation FBI special agents Sanz, Roberts and Jackson were conducting surveillance of an apartment building located at 1344-46 West Bryn Mawr in Chicago, Illinois. On July 22, 1988, as part of that investigation the three agents, accompanied by an individual named Osorio who had earlier been placed under arrest, sought admittance to the apartment where the defendant and his son resided. When the defendant's twenty-year-old son Islan answered the door agent Sanz testified that, in Spanish, he identified himself and the other agents, informed Islan they were involved in a narcotics investigation and asked if they could come into the apartment to ask questions. Islan indicated that the agents could enter, and the defendant testified that he consented as well. The three agents and Osorio entered a small foyer where they stood for several moments before moving into the living room. The defendant, his son, and a third individual identified as Fernando Valera, were present in the apartment. Upon entry agent Sanz asked if anyone else was present in the apartment or if anyone had guns. Although all three individuals indicated that no guns or other persons were present Sanz testified that he requested authority to perform a protective sweep.

The record contains conflicting accounts as to whether the defendant or his son consented to this sweep. According to Sanz, when asked if the defendant would mind if the agents looked around the defendant told him to go right ahead, and that they were welcome to conduct the sweep. Agent Roberts, who does not speak or understand Spanish, initially testified that after hearing a brief conversation in Spanish between Sanz, the defendant and the defendant's son, he and agent Jackson did a protective sweep of the apartment. He did not state whether the sweep was in response to a statement by Sanz that such a sweep was permitted. On cross-examination Roberts testified that the protective sweep occurred immediately upon their entry into the apartment and that he could not recall whether consent was obtained beforehand. The defendant testified that when asked by Sanz whether they could make a protective sweep he indicated he did not believe he could refuse such a search and that he trusted the agents to do whatever was right.

The sweep took place within the first few minutes the agents were present in the apartment and the testimony clearly reveals that its duration was less than a minute. When Roberts and Jackson returned they found Sanz conversing in Spanish with the defendant and his son. At that time Sanz asked everyone for identification and requested permission to conduct a search of the apartment. Sanz, the only agent who could understand and speak Spanish, testified that he told the defendant he wanted to do everything according to the law and he was going to write out a consent form which he would then explain to the defendant and his son. Sanz claimed that before permitting the defendant and his son to sign the form he explained the form's contents to them both and advised them of their right to stop the search at any time.

The defendant, on the other hand, stated that when Sanz asked for permission to search the apartment he responded, "well, now that the authorities are already inside of my house, what can I do, how can I refuse," to which the agents did not respond. Durades further testified that Sanz did not inform him of his right to demand a search warrant, a statement which Sanz did not contradict in his testimony at the hearing. Finally, Durades' statements at the hearing reflected his belief that the protective sweep constituted the search itself and, therefore, the agents' subsequent request for written consent came after the search had occurred.

The consent to search form was handwritten in Spanish and, as translated, states as follows:

I, Alcides Durades, and Islan Durades allow the agents of the Federal Bureau of Investigation to search my home/apartment located at 1340 West Bryn Mawr, Chicago, Illinois, (312) 271-5328.

I understand that I have a right to deny such search, and I can do so at any time. ¹

After Alcides and Islan signed the form Sanz told Roberts and Jackson to conduct the search. The two agents were accompanied by Islan to insure that the agents acted properly. In the freezer Roberts found six square packages wrapped in aluminum foil, one of which, when opened, contained white powder. Roberts and Jackson immediately returned to the living room and informed Sanz of their discovery. At this time Alcides Durades confessed to Sanz that the cocaine was his and that Islan had nothing to do with it. Sanz placed the defendant under arrest and read him and the other occupants of the apartment their Miranda rights in both Spanish and English. Durades, however, continued to speak with Sanz and recited the circumstances leading up to his possession of the cocaine.

The defendant moved to suppress the evidence seized during the search on grounds that his consent to the search was not voluntary and, therefore, any evidence seized and subsequent confessions were the result of an illegal search. Based on the evidence submitted at the hearing the district court denied the defendant's motion to suppress. The court specifically found that Durades' testimony was not credible and that the testimony given by agents Sanz and Roberts was credible. Based on this credible evidence, the district judge evaluated the evidence in light of the totality of the circumstances and rejected the defendant's claim that his consent was not freely given. The court found that Sanz adequately informed the defendant of his right to refuse and stop the search, both verbally and in writing, before the search took place. The court also rejected the defendant's argument that the agents' failure to use a preprinted consent form or track its language exactly vitiated the consent otherwise freely given.

A.

Before turning our attention to a review of the circumstances surrounding the search we must first determine what weight, if any, to give to statements given by Durades which conflict with those given by the agents at the suppression hearing, for the defendant's counsel places particular weight on Durades' version of events to sustain his challenge on appeal. It is clear that we will not reevaluate the witnesses' credibility or the weight given their testimony, for "[t]hat is the province of the trial court." In re Lemmons & Co., Inc., 742 F.2d 1064, 1070 (7th Cir.1984). We will not reverse a credibility finding absent a conclusion that the trial court's findings are clearly erroneous. United States v. Morgan, 725 F.2d 56, 58 (7th Cir.1984). See also In re Lemmons, supra (to reverse credibility finding appellate court must be left with "definite and firm conviction" district judge erred); United States v. Verrusio, 742 F.2d 1077, 1081 (7th Cir.1984) (trial judge's evaluation of conflicting evidence is "peculiarly within the scope of his responsibilities"); United States v. $73,277, United States Currency, 710 F.2d 283, 291 (7th Cir.1983) (particular deference given to trial judge's weighing of conflicting evidence).

The defendant does not...