U.S. v. Hernandez, 95-7177

Decision Date30 August 1996
Docket NumberNo. 95-7177,95-7177
Citation93 F.3d 1493
PartiesUNITED STATES of America, Plaintiff--Appellant, v. Pablo HERNANDEZ; Suleima Silva, Defendants--Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Richard A. Friedman, of the Department of Justice, Washington, D.C. (John Raley, United States Attorney, and J. Michael Littlefield, Assistant United States Attorney, for the Eastern District of Oklahoma, with him on the brief), for appellant.

Stephen J. Gruebel, Assistant Federal Public Defender (Stephen J. Knorr, Federal Public Defender, with him on the brief), Tulsa, Oklahoma, for appellee Pablo Hernandez.

Gene V. Primomo, of Wilcoxen, Wilcoxen & Primomo, Muskogee, Oklahoma, for appellee Suleima Silva.

Before HENRY, BRISCOE, and LUCERO, Circuit Judges.

BRISCOE, Circuit Judge.

This is an interlocutory appeal by the United States from the district court's order suppressing Suleima Silva's post-arrest statement and 28 bags of pseudoephedrine seized after a traffic stop of the car in which Silva and her husband, Pablo Hernandez, were traveling. We have jurisdiction over an interlocutory appeal from the granting of a motion to suppress pursuant to 18 U.S.C. § 3731. We reverse suppression of the statement and the drugs, and remand for further proceedings.

Dennis Flowers, an Oklahoma state trooper, stopped a car for speeding on Interstate 35 in Murray County, Oklahoma, in the early evening of September 26, 1995. Hernandez was driving the car and Silva was in the front passenger seat. Flowers asked Hernandez to sit in the front passenger seat of the patrol car while Flowers wrote a warning ticket and ran a license and registration check. The check revealed Hernandez had a valid California driver's license and that the car he was driving was registered to Adolpho Silva of Fresno, California.

When the check was completed, Flowers returned the license and registration to Hernandez and told him he was free to go. As Hernandez turned to get out of the car, Flowers inquired if he could ask him some more questions. Hernandez said "yes," and Flowers asked where he had been, where he was headed, and the purpose of the trip. Hernandez told Flowers he was returning to California after a visit with his wife's relatives in Dallas. Flowers asked if the passenger in the car was Hernandez' wife and was told that she was. He also asked her name. Flowers asked if there was luggage in the car and Hernandez stated there were no suitcases, only clothing. Flowers asked if there was any contraband in the car. Hernandez replied there was none, and consented to a search of the car. Flowers testified that he does not ask such questions in all traffic stops, but asked the questions because the car was not registered to Hernandez and he wanted to check the possibility that the car was stolen, and he was "fishing."

When Flowers went to the passenger side of the car and spoke to Silva, he noticed a strong odor that he thought was laundry detergent, which from his training and experience he knew was frequently used to mask the odor of illegal drugs. Flowers asked Silva to get out of the car. Flowers then looked under the front passenger seat and noticed metal shavings near the bolts on the right front seat indicating they may have been recently turned. In response to a call from Flowers, another trooper arrived with a dog trained to detect illegal drugs by scent. The dog alerted to a purse that contained $1,800 in cash and to the area under the front passenger seat. A further search revealed 65 pounds of white powder packed in 28 bags in a hidden compartment under the seat, which was later identified as pseudoephedrine, an ingredient of methamphetamine.

Defendants were arrested and the next day Silva, who was 18 years old and spoke no English, was questioned by Tom Allen, a deputy sheriff. Allen did not speak Spanish and he asked an acquaintance, Jose Romo, to interpret. Romo had a third-grade education, had no training as an interpreter, had never acted as an interpreter, and did not read either Spanish or English very well. 1

Silva was given a written Miranda warning in Spanish at the start of the interview. Romo testified that he watched her look at the form and she appeared to be reading it. Silva made an apparent reference to the document she was reading, saying "It also says here if, if I have the right to remain silent when they ask me a question." R III at 32-33. Romo testified that Silva told him she had one year of college education and could read. When Silva was first given the form, she was asked three times to read it aloud to Romo, but did not do so and responded, "All of it, everything?" Interrogation tr. at 2. Allen apparently gave up and asked Romo to translate an oral Miranda warning. Romo's translation was not perfect, but the transcript of the interview shows he advised Silva that she had the right to remain silent, that anything she said may be to her detriment and could be used against her "according to the law," that she had the right to "contract" an attorney before and during questioning, that an attorney would be provided if she could not afford one, and that she had the right to change her mind and not answer any questions. When asked if she understood her rights, Silva answered in the affirmative. Romo's translation of Allen's question of whether Silva waived her rights omitted the word "waive." He simply asked her if, with her rights, she was willing to answer questions. She responded with a question: "It also says here if, if I have the right to remain silent when they ask me a question?" Interrogation tr. at 6. Romo told her she had that right, but that Allen wanted to know if she was willing to answer his questions. "In other words, it's, it's up to you whether or not you want to answer any questions he asks you." Interrogation tr. at 7. Silva consented to answer questions.

Early in the interview, Silva admitted ownership of the car but denied knowledge of the drugs. She stated she had loaned the car to friends shortly before the trip, but would not provide their names. At a later point in the interview and after Silva had admitted that she owned the car, Allen told Silva the offense carried a possible life sentence and that, although he could make no promises, he would talk to the district attorney if she cooperated. Romo embellished this statement, telling Silva she faced life without parole, without bail, and with no right to appeal. He also omitted Allen's statement that he could make no promises, telling her if she cooperated, Allen would talk to the district attorney "so that neither of you will end up so bad." Interrogation tr. at 14. Silva continued to deny any knowledge of the drugs, but gave some details of her trip with Hernandez from California to Texas.

Defendants were charged in federal court with possession of pseudoephedrine (18 U.S.C. § 841(d)(2)), interstate travel in aid of drug trafficking (18 U.S.C. § 1952(a)(3)), and conspiracy to possess pseudoephedrine (18 U.S.C. § 846). Defendants moved to suppress Silva's statement and the drugs. The only witnesses at the hearing on the motion to suppress were Flowers, another state trooper, Romo, and a professional translator who testified as an expert witness for the defense. Neither Hernandez nor Silva testified.

The district court granted the motion to suppress. The court concluded Hernandez was illegally detained without reasonable articulable suspicion when Flowers asked him questions about drugs and requested consent to search the car because Hernandez was inside the patrol car and believed he was not free to leave. The drugs were suppressed as the product of an illegal detention with the court ruling the consent to search was insufficient to purge the taint of the illegal detention. The court also concluded that Silva's statement was given while she was unlawfully confined because her arrest was the product of the illegal detention and search. The court ruled the Miranda warning and waiver were insufficient to purge the taint of the illegal arrest. Noting Romo's lack of qualifications as an interpreter, the imperfections in his translation, and the threat and promise he made to Silva, the court concluded the Miranda warning was inadequate and, consequently, Silva's waiver of her Fifth Amendment rights was not sufficiently voluntary and intelligent to purge the taint of her illegal confinement.

Standard of Review

When reviewing a district court decision on suppression of evidence, we must accept the court's findings of fact unless, viewing the evidence in the light most favorable to the court's findings, we conclude the findings were clearly erroneous. Evaluation of the credibility of witnesses, the weight to be given the evidence, and inferences to be drawn from the evidence are for the district court. However, the ultimate determination of whether a search and seizure were reasonable under the Fourth Amendment is subject to de novo review. United States v. Fernandez, 18 F.3d 874, 876 (10th Cir.1994). See Ornelas v. United States, --- U.S. ----, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Whether a seizure occurred is a question of law reviewed de novo. See United States v. McKneely, 6 F.3d 1447, 1451 (10th Cir.1993).

Was Hernandez illegally detained during questioning in patrol car?

Neither Hernandez nor Silva has challenged the validity of the initial stop. The district court's suppression of evidence was based on Flowers' questioning of Hernandez after completion of the license and registration check following a routine traffic stop for speeding.

If a license and registration check after a routine traffic stop reveals no reason to detain the driver, he or she must be permitted to proceed unless the officer has reasonable articulable suspicion of other crimes or the driver voluntarily consents to further questioning. See United States v. Sandoval, 29 F.3d 537, 539-40 (10th Cir.1994). Here, after Flowers had completed the...

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