U.S. v. Madrid, 93-8113

• Decision Date: 07 July 1994
• Docket Number: No. 93-8113,93-8113
• Citation: 30 F.3d 1269
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Edward MADRID, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1269

30 F.3d 1269

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Edward MADRID, Defendant-Appellant.

No. 93-8113.

United States Court of Appeals, Tenth Circuit.

July 7, 1994.

Michael R. O'Donnell, Asst. Federal Defender, Cheyenne, WY, for appellant.

Lee Pico (David D. Freudenthal, U.S. Atty., Aleksander D. Radich, Asst. U.S. Atty., William U. Hill, Asst. U.S. Atty., D. Wyoming, Cheyenne, WY, with him on the brief), for appellee.

Before EBEL, KELLY and BARRETT, Circuit Judges.

BARRETT, Senior Circuit Judge.

Thomas Edward Madrid (Madrid) appeals from the judgment and sentence entered following his conditional plea of guilty to the indictment charging him with unlawful possession of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Madrid was sentenced to a term of 51 months incarceration.

On appeal, Madrid presents the issue as: "Did the District Court err in finding the Defendant voluntarily consented to accompany a police officer from the scene of his automobile accident into a nearby town when that police officer was intentionally hiding from the Defendant his investigative purpose in transporting him into that nearby town?" (Brief of Appellant, p. 2).

Facts

A detailed summary of the evidence adduced at the suppression hearing follows.

At approximately 7:00 a.m. on March 22, 1993, Madrid, of Yuma, Arizona, was driving a van bearing California license plates with permission of its owner, Robert Brown. The weather on Interstate 80 near the 8,000 foot "summit" east of Laramie, Wyoming was cold, windy, and icy. The van spun out, left the highway, hit an embankment, flipped over, and came to a stop. Madrid suffered only a few scratches. A passer-by stopped and, at Madrid's request, used his cellular phone to call "the cops." (R., Vol. II, p. 16). Soon thereafter, a trucker stopped at the scene and Madrid drank a cup of coffee in the cab of his truck while awaiting the appearance of police.

Wyoming Highway Patrolman Dan Dyer, a 16-year veteran, responded to Madrid's accident report and arrived at the scene of the accident about 7:29 a.m. He observed the van backed into the side of a snowbank on the eastbound side of I-80. The back end of the van was badly damaged.

Testimony of Thomas Edward Madrid

When Officer Dyer came upon the scene of the accident, Madrid left the cab of the truck. Dyer commented that it was a bad accident and that Madrid was lucky to be alive. Dyer then asked Madrid where he was coming from. Madrid responded, "California." (R., Vol. 2, p. 17). When asked what had happened, Madrid explained that his van started to spin out on the ice and before he could react, "I hit the embankment, flipped over in the air, and came to a stop." Id.

Officer Dyer asked Madrid for his driver's license. Madrid explained that it was in his wallet which he had left at the Pilot Gas Station in Laramie. However, Madrid informed Dyer that he had a valid Arizona driver's license, which Dyer then confirmed through a dispatcher. Madrid also produced the vehicle registration papers at Dyer's request. Madrid stated that the van was owned by Robert Brown of California who loaned him the car. Brown was an acquaintance with nightclub owner contacts in the Los Angeles area and he had helped to get engagements for their band. Id. at 25, 26, 45. Madrid heard Officer Dyer advise the dispatcher to phone the Pilot Gas Station to determine if anybody had turned in a wallet containing Madrid's driver's license and social security card.

Because of the coldness, Madrid and Dyer entered Dyer's patrol car. Dyer started to complete the accident report while awaiting the tow truck. Dyer asked Madrid questions concerning the accident, such as Madrid's speed, conditions of the road, insurance, etc. Madrid informed Dyer that he was traveling to North Carolina to visit his mother and an uncle, and perhaps to bring them back to California.

When Dyer asked Madrid about his work, Madrid stated that he worked for his cousin booking engagements for a band which played in Mexico, crossing the border at Tijuana.

Dyer and Madrid then left the patrol car to get whatever Madrid wished to remove from the van. Apparently, Madrid removed the vehicle registration and insurance papers. Later, Dyer asked Madrid to hold the dummy end of a tape as Dyer took various measurements in order to complete the accident report. The two returned to Dyer's patrol car after completing the measurements.

Madrid recalled that after Dyer ordered a tow truck, another patrol officer phoned and asked Dyer, "Do you want to talk to me?" Dyer responded, "Yeah, I'll talk to you when we get there." He also recalled the other patrol officer asking Dyer, "What do you got?" To which Dyer responded, "I'll tell you when we get there." Id. at 24-25.

Shortly thereafter, another highway patrol officer, Sergeant Johnson, arrived at the scene of the accident. Madrid observed the patrol officer and Dyer inspecting the van and the scene of the accident. The tow truck arrived at the scene about 9:00 a.m. It took about 20 minutes for the tow truck driver to move the van away from the hillside and to get it hooked up. At Officer Dyer's request, Madrid helped Dyer take additional measurements during the time it took to hook up the van to the tow car. It was very cold. During the taping, Officer Dyer said to Madrid, "Well, I'll take you on in there (to Laramie), take you to the tow yard, take you to the Western Union or Greyhound bus depot. I just want you to know where the van is so you can take care of it." Id. at 32.

Officer Dyer, accompanied by Madrid, followed the tow truck into Laramie. The highway patrol car operated by Sergeant Johnson preceded them. The trip into Laramie took about 20 minutes. Officer Dyer did not provide Madrid with an opportunity to travel with the tow truck and the van. Dyer did not ask Madrid any questions concerning drugs, although he did ask Madrid whether he had any weapons on him or in the van. Id. at 33-34. Madrid recalls that Officer Dyer made only one radio call during the trip and that was to advise that they were then going to the tow yard.

When they arrived at the tow yard, Madrid observed Sergeant Johnson's patrol vehicle and another police car parked there. Madrid also observed a dog in one of the police cars. He saw Officer Dyer, Sergeant Johnson, and another officer confer. He then saw the officers walk around the van. He observed Officer Dyer with a tire iron in his hand and saw Dyer pry open the two rear doors of the van. The three officers then approached Madrid. Officer Dyer asked Madrid if he had any narcotics in the van. Madrid answered, "No, there isn't." Id. at 37. A sheriff's officer then remarked that if there were narcotics in the van, they would find them. Id. During this time, Officer Dyer said, "Well, you're not under arrest, but it wouldn't be too prudent for you to just walk away." Id. at 38. Madrid believed that this statement meant that he could not walk away. Id. About this time, Officer Dyer asked Madrid to remove his sweatshirt and he proceeded to frisk Madrid for weapons. Id. at 40.

Madrid then observed a sheriff's officer take the dog around the van a couple of times. Afterwards, the three officers approached him and asked, "Where's the narcotics in this car?" Madrid responded, "I don't know what you're talking about." Id. The officers informed him that was not what the dog said. Id. The officers took the dog around the van again and then into the van. Madrid asked Sergeant Johnson what they were looking for. The officers approached Madrid again and informed him that it was just a matter of time before they found it and that he might as well tell them where the narcotics were located in the van. Madrid denied knowing what they were talking about, and remarked that he was going to the bathroom. Id. at 41. The door to the bathroom was locked, so Madrid went to the tow yard office to obtain a key. When he left the office, Officer Dyer approached him again and stated that he was going to frisk him again. Madrid remarked that he had already frisked him once. Dyer responded, "Bear with me." Id. at 42. Officer Dyer then reached into Madrid's pocket and pulled out a spoon, a knife, and a syringe. Id. Madrid acknowledged that he kept the spoon and the syringe handy because he was still using drugs. Id. at 43. At this point, Officer Dyer placed Madrid under arrest.

On cross-examination, Madrid stated that, following the accident, he stayed at the scene after the police were contacted by a passer-by because in California it is against the law to leave the scene of an accident. Id. at 46. Madrid denied telling law officers that the Robert Brown who owned the van and who loaned it to him for the trip to North Carolina was his cousin, his boss, or his brother-in-law. Id. at 48. Madrid stated that Brown was simply an acquaintance. Id. During the period Madrid and Officer Dyer were in Dyer's patrol car, Dyer, in response to Madrid's question, informed him of all available transportation out of Laramie, id. at 52, and Dyer also informed him that he would take him wherever he needed to find out about transportation. Id. at 53. After Sergeant Johnson arrived at the scene, Madrid freely moved about the area, in and out of the patrol car. Id. Madrid stated that Officer Dyer had informed him that he would take him wherever he needed to go, including the tow yard. Id. at 54. Madrid did not request to ride into Laramie in the tow truck. Id. At no time did Officers Dyer or Johnson ever mention narcotics or drugs to Madrid. Id. at 55.

At the tow yard, Officer Dyer inquired of Madrid whether there were any narcotics in the van. Id. at 56. After the dog completed its search of the van, Officer Dyer conducted another search of Madrid, resulting in discovery of the spoon, knife, and syringe. Madrid's arrest followed. Id. at 57.

On re-direct examination, Madrid testified that he did not feel free...