U.S. v. Gutierrez-Hermosillo, GUTIERREZ-HERMOSILL

• Decision Date: 28 April 1998
• Docket Number: GUTIERREZ-HERMOSILL,D,No. 97-2082,97-2082
• Citation: 142 F.3d 1225
• Parties: 152 A.L.R. Fed. 757 UNITED STATES of America, Plaintiff--Appellee, v. Amadorefendant--Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1225

142 F.3d 1225

152 A.L.R. Fed. 757

UNITED STATES of America, Plaintiff--Appellee, v. Amador GUTIERREZ-HERMOSILLO, Defendant--Appellant.

No. 97-2082.

United States Court of Appeals, Tenth Circuit.

April 28, 1998.

Barbara A. Mandel, Assistant Federal Public Defender (Ann Steinmetz, Federal Public Defender, with her on the briefs), Las Cruces, NM, for Defendant-Appellant.

Mick I.R. Gutierrez, Assistant United States Attorney (John J. Kelly, United States Attorney for the District of New Mexico, with him on the brief), Las Cruces, NM, for Plaintiff-Appellee.

Before PORFILIO, McKAY, and BRISCOE, Circuit Judges.

McKAY, Circuit Judge.

Mr. Amador Gutierrez-Hermosillo (Defendant) was indicted on one count of violating 21 U.S.C. § 841(a)(1) & (b)(1)(B), possession with intent to distribute 100 kilograms or more of marijuana, and 18 U.S.C. § 2, aiding and abetting. Defendant pled not guilty to these charges. Defendant filed a Motion to Suppress Physical Evidence and Statements, which was denied after a hearing. See R., Vol. I, Doc. 44. After a trial by jury, Defendant was found guilty and sentenced to ninety-two months in prison and four years of supervised release. See id. Defendant is appealing the trial court's denial of his Motion to Suppress. We affirm.

FACTS

On May 12, 1996, Defendant drove a van into the U.S. Border Patrol checkpoint on Interstate 10 between Las Cruces and Deming, New Mexico. See R., Vol. II at 7. Also present in the van were Defendant's fourteen-year-old daughter, Nora, and Javier Garcia-Chavez. The occupants of the van were questioned about their citizenship, and U.S. Border Patrol [USBP] Agent Armendariz confirmed that Mr. Gutierrez was a lawful permanent resident. See id. at 41. USBP Agent Alvarado was also present at the Border Patrol station. The van was searched and nothing illegal was found, and the van and its occupants were released. See id. at 8.

On May 13, 1996, Agent Alvarado was on patrol on New Mexico Highway 185 when he saw the van driven by Defendant the previous evening being followed by a Mazda pickup truck with a Texas license plate. See id. at 8-9. Agent Alvarado pulled the van over. The van was now driven by Javier Garcia-Chavez. Mr. Garcia was questioned about his destination and was allowed to go on his way. See id. at 9. Agent Alvarado advised other USBP agents that he had stopped the van detained the previous day at the border checkpoint. See id.

At approximately 2:00 a.m. on May 14, 1996, USBP Agent Armendariz contacted Agent Alvarado and advised him that he had located a Mazda pickup truck, potentially the one seen by Agent Alvarado on Highway 185 on May 13, in the parking lot of the Super 8 motel in Las Cruces. See id. at 49-51. The van detained at the Border Patrol station on May 12 was parked in the parking lot of the Motel 6, adjacent to the Super 8 motel. See id. at 11. The agents ascertained that the truck was listed on the Super 8 motel registration of Defendant. See R., Vol. III at 35-36. The agents received permission from the night clerk of the Super 8 to bring a drug-sniffing dog to the motel parking lot. See R., Vol. II at 11. The drug-sniffing dog alerted to the Mazda truck. See id. at 11, 50. Agent Armendariz asked the clerk at the Motel 6 located adjacent to the Super 8 if there was a party named Amador Gutierrez registered at the Motel 6. See R., Vol. III at 37. The clerk replied that there was an individual by that name at the motel. See id.

Six additional agents from the USBP and the U.S. Drug Enforcement Agency [DEA] were called to the scene. See R., Vol. II at 12; Appellant's Br. at 5. At 6:00 a.m., the eight law enforcement officers divided themselves into two groups, and one group went to each motel room registered in Defendant's After the officers entered the motel room, Agent Armendariz entered the bathroom, where Defendant was taking a shower, and told Defendant the officers would like to speak with him. See id. Agent Armendariz searched Defendant's clothes, which were on the floor of the bathroom. See id. at 46. Agent Torrez noticed car keys on a table inside the motel room. See R., Vol. II at 36, 45; Vol. V at 4. An officer asked Defendant if he was driving the Mazda truck, and he replied that he had borrowed the truck from a friend. See R., Vol. II at 31. Defendant was told that a drug dog had alerted to the truck, and he was asked if he would consent to a search of the truck. See id. Defendant consented to have the truck searched. See id. Defendant was then read his Miranda warnings. See Appellant's Br. at 6; Appellee's Answer Br. at 4. ¹ The search of the Mazda truck revealed approximately 389 pounds of marijuana hidden in a false bed of the truck. See R., Vol. V at 4.

                name.  See R., Vol.  II at 12, 51.  At the Super 8 motel, DEA agents Payne and Link, and USBP agents Armendariz and Torrez, went to Defendant's motel room.  See id. at 29, 45.   Agent Payne knocked on the door of the room, and a female answered, "Who is it?"   See id. at 30.   The agent replied, "[T]he police," and the door was opened.  Id. The agent displayed his identification to the female, and he asked if the officers could enter the room.  See id.   All four agents then entered the motel room.  See id
                

ISSUES ON APPEAL

Defendant contends that the trial court's denial of his Motion to Suppress was in error, arguing that the evidence seized from the truck was the result of an illegal warrantless entry into, and search of, his motel room. See Appellant's Br. at 13. The government argues that the entry and search were legitimate because Defendant's fourteen-year-old daughter gave her consent to the law enforcement officers' entry. See Appellee's Answer Br. at 5-6. Defendant maintains that his minor child, Nora, did not have the legal capacity to grant consent to enter the motel room and that Nora's consent was not voluntary. See Appellant's Br. at 13, 20. Defendant argues that the warrantless entry and search violated his rights under the Fourth Amendment and that the evidence obtained as a result of this search, including his statements, is therefore subject to the exclusionary rule as fruit of an illegal warrantless search. See Murray v. United States, 487 U.S. 533, 536-37, 108 S.Ct. 2529, 2533, 101 L.Ed.2d 472 (1988); Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417-18, 9 L.Ed.2d 441 (1963). Defendant also contends that the prosecution withheld evidence which was material and exculpatory and, therefore, under Brady v. Maryland, 373 U.S. 83, 87-88, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215 (1963), he is entitled to a new trial. See Appellant's Br. at 32. Defendant also argues that the failure to disclose this evidence entitles him to a new trial because it is newly discovered evidence, or, alternatively, that he is entitled to a new trial as an appropriate sanction against the government for failing to reveal this evidence pursuant to Federal Rule of Criminal Procedure 16. See id. at 27, 30. Defendant also asserts that the trial court erred in not holding a hearing to determine Defendant's competency to stand trial. See id. at 24.

DISCUSSION

The Fourth Amendment protects a citizen of the United States from searches that are unreasonable. We review the reasonableness of a warrantless entry and search under the de novo standard, accepting the trial court's findings of fact unless they are clearly erroneous. See United States v. McCurdy, 40 F.3d 1111, 1115 (10th Cir.1994); United States v. Evans, 937 F.2d 1534, 1536-37 (10th Cir.1991) (stating that the question of objective reasonableness is a question of law subject to de novo review). If the officers reasonably believed that they were given consent to enter the motel room by a third party with the legal capacity to grant them admittance, then the entry is not unreasonable. See Illinois v. Rodriguez, 497 U.S. 177, 186-88, 110 S.Ct. 2793, 2800-01, 111 L.Ed.2d 148 (1990); United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). Additionally, any consent granted by a third party must be voluntary. See United States v. Iribe, 11 F.3d 1553, 1557 (10th Cir.1993). "Voluntariness is a finding of fact, to be determined under the totality of the circumstances." United States v. Guzman, 864 F.2d 1512, 1521 (10th Cir.1988).

The consent of a third party to a search of common premises is effectual if the third party has either the actual authority or the apparent authority to consent to a search. See Rodriguez, 497 U.S. at 188, 110 S.Ct. at 2801. Whether or not a third party has the actual authority to grant entry to law enforcement officers is determined by the test articulated in Matlock. The test is whether the third party has "mutual use of the property[,] ... generally ha[s] joint access or control for most purposes[,] ... and [whether] the others have assumed the risk that one of their number might permit the common area to be searched." Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. at 993 n. 7; see also United States v. McAlpine, 919 F.2d 1461, 1463-64 (10th Cir.1990).

The Supreme Court's holding in Rodriguez delineates the proper analysis for determining whether third-party consent searches are valid under the "apparent authority" exception. Rodriguez, 497 U.S. at 186-88, 110 S.Ct. at 2800-01. Rodriguez held that the Fourth Amendment is not violated when officers enter without a warrant when they reasonably, although erroneously, believe that the person who consents to their entry has the authority to consent to this entry. See id. at 185-89, 110 S.Ct. at 2799-2802; United States v. Rosario, 962 F.2d 733, 736 (7th Cir.1992). The determination of the reasonableness of the officers' belief is an objective one: "[W]ould the facts available to the officer at the moment ... warrant a man of reasonable caution [to believe] that the consenting party had authority over the premises?" Rodriguez, 497 U.S. at 188, 110 S.Ct. at 2801 (internal quotations omitted); United States...