U.S. v. Figueroa-Espana

• Decision Date: 28 December 2007
• Docket Number: No. 06-4270.,06-4270.
• Citation: 511 F.3d 696
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fernando FIGUEROA-ESPANA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

511 F.3d 696

UNITED STATES of America, Plaintiff-Appellee, v. Fernando FIGUEROA-ESPANA, Defendant-Appellant.

No. 06-4270.

United States Court of Appeals, Seventh Circuit.

Argued September 25, 2007.

Decided December 28, 2007.

Barry D. Glickman (argued), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Anthony R. Burch, Gary E. Grass (argued), Burch & Associates, Chicago, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and BAUER and KANNE, Circuit Judges.

BAUER, Circuit Judge.

After the district court denied his motion to suppress evidence, Fernando Figueroa-Espana pleaded guilty to one count of possession with intent to distribute five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii). He reserved the right to appeal the district court's denial of his motion to suppress and his sentence. For the following reasons, we affirm.

I. Background

At 1:20 p.m. on March 7, 2006, Indiana State Trooper Dennis Wade observed a Nissan pickup truck tailgating another vehicle on Interstate 65 near Indianapolis Indiana. Trooper Wade pulled over the truck, approached the driver, Figueroa-Espana, and told him that he was driving too close to the vehicle in front of him. Figueroa-Espana indicated that he did not speak English. Trooper Wade asked, in a mixture of English and Spanish, for Figueroa-Espana's driver's license. Figueroa-Espana produced a document which Trooper Wade thought to be an international driver's license, but was actually a voter registration card. Trooper Wade asked, again mixing English and Spanish, if Figueroa-Espana had a United States driver's license. Figueroa-Espana responded that he did not. Trooper Wade then asked for the "rejistro," which he understood to mean "registration." Figueroa-Espana produced an expired insurance document in the name of another individual.

At this point, Trooper Wade was joined by Trooper Dean Wildauer. Trooper Wade explained to Trooper Wildauer the language difficulties with Figueroa-Espana, and suggested that Trooper Wildauer, whose Spanish was stronger, might have more luck. Trooper Wildauer approached the truck and asked Figueroa-Espana about the ownership of the vehicle. Figueroa-Espana initially stated that he owned the truck. When Trooper Wildauer pointed out that the insurance document indicated that he was not the owner, Figueroa-Espana audibly sighed and, according to Trooper Wildauer, became nervous. Figueroa-Espana then said that the truck belonged to his friend, but he could not recall the friend's name. Figueroa-Espana later stated that the truck belonged to his boss. During the course of this conversation, Trooper Wildauer asked Figueroa-Espana to get out of the truck, and the conversation continued in front of Trooper Wade's cruiser.

Meanwhile, Trooper Wade returned to his cruiser to prepare a warning ticket and run the truck's license plates. While in the car, Trooper Wade turned on a video camera attached to his cruiser. The camera recorded video and audio of the remainder of the conversation.

Trooper Wildauer asked Figueroa-Espana about his immigration status and his ultimate destination. Figueroa-Espana said that he had been in the United States for three years, and that he was in the country illegally. He said that he was headed to Indianapolis for a job, but he could not give a specific address. He stated that the job involved laying asphalt, but Trooper Wildauer noted that Figueroa-Espana did not appear to be traveling with tools or clothes that would suggest this type of work. During the questioning, Trooper Wildauer observed Figueroa-Espana becoming increasingly nervous, hesitating before answering questions and uttering multiple audible sighs.

Trooper Wade then left his cruiser, issued Figueroa-Espana a warning ticket, and told him he was "free to go." As Figueroa-Espana walked back to his truck, Troopers Wade and Waldauer decided that they wanted more information. Trooper Wade honked the horn of his cruiser, which briefly activated the siren. Figueroa-Espana turned back, and Trooper Wildauer called out to him, in Spanish: "Friend, come here please, I have more questions, okay?" Trooper Wildauer then asked if Figueroa-Espana had any guns, drugs, or large sums of money in the truck, and Figueroa-Espana responded that he did not. Trooper Wildauer then asked if he could search the truck, and Figueroa-Espana said that he could. Trooper Wildauer informed Figueroa-Espana that he could refuse the search, saying in Spanish, "[y]ou don't have to." Figueroa-Espana acknowledged this, and allowed the search. During the search, the troopers discovered two electronically-controlled hidden compartments in the truck which contained approximately ten kilograms of cocaine.

After being arrested, transported to a police station, and read his Miranda rights, Figueroa-Espana confessed to a bilingual Drug Enforcement Agent that he knowingly transported the drugs. On March 22, 2006, Figueroa-Espana was charged by indictment with possession with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii).

Figueroa-Espana filed a motion to suppress the drugs recovered from the search of the truck. On August 23, 2006, the district court held a hearing on the motion. The district court denied Figueroa-Espana's motion; shortly thereafter, Figueroa-Espana entered a conditional plea of guilty to the charge in the indictment. On November 21, 2006, the district court sentenced Figueroa-Espana to 176 months' imprisonment and 5 years' supervised release. This appeal followed.

II. Discussion

Figueroa-Espana argues that the district court (1) erred in denying his motion to suppress evidence uncovered after an unconstitutional search; and (2) improperly considered the fact that he made a motion to suppress in calculating his sentence. We address these issues in turn.

A. Motion to Suppress Evidence

Figueroa-Espana raises three challenges to the district court's denial of his motion to suppress. First, he contends that he was detained by the troopers in violation of his Fourth Amendment rights, and that the evidence obtained must be excluded. Second, he contests the finding that he did not have a protected Fourth Amendment interest in the truck that would allow him to challenge the search. Finally, he argues that the court erred in holding that, even if he did have a protected Fourth Amendment interest, he consented to the search. This court reviews a district court's legal determinations made with respect to the suppression ruling de novo and reviews factual determinations for clear error. United States v. Riley, 493 F.3d 803, 808 (7th Cir.2007).

1. The Detention of Figueroa-Espana

Figueroa-Espana argues that the encounter consisted of two separate and legally distinguishable stops, the second of which violated his Fourth Amendment rights. The first stop, according to Figueroa-Espana, began with the traffic stop and ended when Trooper Wade issued the warning ticket and said he was "free to go." The second stop began when Trooper Wade honked the horn which activated the siren, and Trooper Wildauer told Figueroa-Espana, in Spanish, that he had more questions.

Figueroa-Espana rightly does not challenge the constitutionality of the traffic stop. Officer Wade had probable cause to stop the truck when he observed that the truck was "more close[] than is reasonable and prudent" to the car before it, in violation of Ind.Code § 9-21-8-14. See Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (finding that a police officer may stop a vehicle when he has "probable cause to believe that a traffic violation has occurred"). Rather, Figueroa-Espana contends that once the troopers completed the traffic stop and informed him he was free to leave, they had no reasonable basis to initiate a second stop which was neither consensual nor supported by reasonable suspicion of criminal conduct. Figueroa-Espana argues that, under Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), any evidence uncovered from this improper second encounter should have been excluded as "fruit of the poisonous tree."

The district court found that what Figueroa-Espana labeled a "second stop" was actually a consensual encounter following the initial stop, and, therefore did not implicate any Fourth Amendment rights. In the alternative, the court found that the interaction was a brief investigatory stop, entirely justified by reasonable suspicion of criminal activity based on Figueroa-Espana's behavior and responses to the troopers' questions.

As a preliminary matter, we decline to adopt the analytical framework offered by Figueroa-Espana of his encounter with the Indiana troopers. The fact that the troopers sought further information from Figueroa-Espana after he was told he could leave does not render this second phase of questions a new seizure. See United States v. Rivera, 906 F.2d 319, 322-23 (7th Cir.1990) (finding that an officer's request to search a car, after giving the motorist a written warning, returning his identification, and indicating that he was free to leave, was part of a consensual encounter and not a new seizure). Rather, the events following the issuance of the warning ticket are more appropriately analyzed as either a consensual encounter or an extension of the initial stop based on reasonable suspicion.

A consensual encounter between an individual and a law enforcement official does not trigger Fourth Amendment scrutiny. United States v. Moore, 375 F.3d 580, 584 (7th Cir.2004). In determining whether a stop is consensual, relevant factors include whether the encounter took place in public, whether the suspect consented to speak to police, whether the officers told the suspect that he was not under arrest and free to leave, whether the suspect was moved to another area, the number of officers...