U.S. v. Morales

• Decision Date: 16 November 1988
• Docket Number: No. 87-3841,87-3841
• Parties: UNITED STATES of America v. Lorgio D. MORALES, Jr. UNITED STATES of America v. Luis L. VIERA. UNITED STATES of America, Appellant v. Luis L. VIERA, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 396

861 F.2d 396

UNITED STATES of America v. Lorgio D. MORALES, Jr.

UNITED STATES of America v. Luis L. VIERA.

UNITED STATES of America, Appellant v. Luis L. VIERA, Appellee.

No. 87-3841.

United States Court of Appeals, Third Circuit.

Argued June 1, 1988.

Decided Nov. 16, 1988.

William C. Carpenter, Jr., U.S. Atty., Kent A. Jordan (argued), Asst. U.S. Atty., U.S. Dept. of Justice, Wilmington, Del., for appellant.

Joel DeFabio (argued), Malman, DeFabio & Lapidus, P.A., Miami, Fla., for appellee.

Before SEITZ, SLOVITER and HUTCHINSON, Circuit Judges.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

HUTCHINSON, Circuit Judge.

Appellee Luis Lazaro Viera (Viera) and co-defendant Lorgio Danilo Morales, Jr. (Morales) were charged with conspiracy and possession with the intent to distribute cocaine in violation of 18 U.S.C.A. Sec. 2 (West 1969) and 21 U.S.C.A. Secs. 841(a)(1), 846 (West 1981). Indictments were returned to the United States District Court for the District of Delaware. Both defendants filed motions to suppress evidence found during a warrantless search of defendants' vehicle. The district court denied Morales's motion to suppress but granted Viera's. The government appeals the order suppressing the evidence as to Viera pursuant to 18 U.S.C.A. Sec. 3731 (West Supp.1988). We have jurisdiction over this appeal pursuant to that section. The issue presented is whether a consent to search a rented vehicle, given by the driver rather than the actual lessee, extends to a hidden, but accessible area in the rear of the passenger compartment. I find that this consent is valid. Since Judge Seitz concurs as to the validity of the consent, we will reverse the order suppressing the evidence.

I.

On September 10, 1987 Viera and Morales were travelling north in Delaware on Interstate 95 when they were stopped by Delaware state police corporal Robert J. Durnan (Durnan) for speeding. Corporal Durnan clocked the car, a late model Chevrolet with Virginia license plates, as travelling at 62 miles per hour in violation of the posted 55 mile per hour speed limit. He pulled the car over approximately one mile north of the Delaware-Maryland state line toll plaza.

Corporal Durnan approached the car and asked Morales, who was driving, for his driver's license and registration. Morales handed Corporal Durnan his Florida driver's license and the car's rental agreement, which Viera had retrieved from the glove compartment. Appendix (App.) at 64.

Corporal Durnan noted that the car was rented from Miami International Airport by Luis Viera. ¹ The rental agreement's expiration date was August 29, 1987. Durnan also noted a 4,000-4,500 mile difference between the odometer reading and the mileage listed on the rental agreement. ²

Corporal Durnan then asked Morales to step out of the car, told him that he had been stopped for speeding and asked him where he was going. Morales replied that he was going to North Bergen, New Jersey to visit relatives. Corporal Durnan then went to the passenger side of the car and asked Viera where he was going. Viera replied that he was going to Bergenfield, New Jersey to visit Morales's relatives.

Corporal Durnan asked Morales to join him in the front seat of his patrol car. While inside, he asked Morales if there were guns, fireworks or untaxed cigarettes in the car. Morales told him "no, you can look if you want." Id. at 17. Durnan produced a standard Delaware state police consent to search form in English, which Morales filled out. The consent form authorized a full search of the vehicle. Id. at 114. Durnan then returned to defendants' car and asked Viera to step out. Viera complied and stood next to the car as Durnan searched the front and back seat areas. ³ Durnan saw that the backrest of the back seat was "pulled slightly away from the rear deck." Id. at 19. He pulled the backrest forward and found two packages taped to the back foam portion of the seat. The packages contained cocaine. He arrested both defendants and advised them of their Miranda rights. It was not until after the arrest that Corporal Durnan learned that the passenger was Viera, the lessee of the rental car.

II.

The district court found that the traffic stop was valid and denied Morales's motion to suppress the evidence based on an illegal stop. United States v. Morales, 676 F.Supp. 560, 562-63 (D.Del.1987). The district court also found that Morales lacked standing to contest the validity of the search, since he had no legitimate expectation of privacy in the compartment inside the rear seat. The court therefore denied Morales's motion to suppress. ⁴ Id. at 564-65.

The district court, however, concluded that Morales's consent was invalid as to Viera and granted Viera's motion to suppress the evidence. In determining whether the consent to search was justifiable based on a privacy interest in the hidden compartment, the district court found that since Morales had no privacy expectation in the compartment within the back seat, and since the lessee, Viera, was present at the search, Morales's consent to search "would not be valid as to Mr. Viera." Id. at 566. The court also found that the search was not justifiable as a valid third party consent because the hidden compartment "was not an area to which Mr. Morales would have access as the driver of the vehicle.... It was not an area of common access or control." Id.

Finally, the district court found that "Corporal Durnan did not have a reasonable good faith belief in the validity of Morales' [sic] consent." Id. at 567. The court found that the rental agreement put Durnan on notice that Morales was not the lessee of the car and that Durnan could easily have ascertained Viera's identity as the lessee of the car. ⁵

III.

Our review of the district court's order involves questions of both law and fact. We have plenary review over the court's legal conclusions but review the court's factual findings for clear error. United States v. Mitlo, 714 F.2d 294, 296 (3d Cir.), cert. denied, 464 U.S. 1018, 104 S.Ct. 550, 78 L.Ed.2d 724 (1983).

The Supreme Court has held that a warrantless search is justified by a valid consent. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973). The consent must be voluntarily made, ⁶ id., and the person giving consent to search must have the authority to do so. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). Authority to consent to a search arises from:

mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

Id. at 171 n. 7, 94 S.Ct. at 993 n. 7. The government bears the burden of proving, by a preponderance of the evidence, that Morales's consent to search the car is valid as to Viera. Id. at 171, 94 S.Ct. at 993; Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972); Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968).

Under the Matlock test, a driver of a vehicle has the authority to consent to a search of that vehicle. As the driver, he is the person having immediate possession of and control over the vehicle. See Delaware v. Ledda, No. 87-07-0742 through 0744, 87-07-0814 through 0818 (Del.Super.Ct. April 20, 1987) (available on LEXIS, State Library, Del. file) (driver's consent to search valid as to passengers due to driver's immediate possession and control of vehicle, as well as passengers' failure to contest consent, despite one being owner of car); State v. Foster, 33 N.C.App. 145, 234 S.E.2d 443 (owner or person having lawful possession and control of car may consent to its search), cert. denied, 293 N.C. 255, 237 S.E.2d 537 (1977). As driver, he also has general access to all areas of the vehicle. ⁷ Therefore, a driver has the requisite "joint access and control" giving rise to the authority to consent to a full search of a vehicle. Because a driver has control over the entire vehicle, that driver may consent to a full search of the vehicle, including its trunk, glove box and other components. See United States v. Espinosa, 782 F.2d 888 (10th Cir.1986) (during search based on consent of driver and passenger/owner, officer, while searching trunk, looked under trunk rug, in trunk padding and in luggage; while searching passenger compartment, looked in glove box, under seats, dashboard and rugs; in examining back seat, removed back seat, spotted two screws missing from left rear quarter panel, lifted up loose corner of panel and discovered cocaine); United States v. Lopez, 777 F.2d 543, 546 (10th Cir.1985) (officer, using screwdriver found in glove compartment, removed stripped screws from speakers in rear of station wagon to trace strong ether odor during consent search); United States v. Diaz-Albertini, 772 F.2d 654, 655 (10th Cir.1985) (officer, noticing heaviness of trunk door during consent search, unscrewed metal plate and discovered package of cocaine inside door), cert. denied, --- U.S. ----, 108 S.Ct. 82, 98 L.Ed.2d 45 (1987).

In this case Morales, as driver, had immediate possession of and control over the car. By giving Morales control over the car, Viera conferred on Morales power to consent to a reasonable search of it. ⁸ Furthermore Viera's silence during Corporal Durnan's inspection of the car is material in assessing Morales's authority. See United States v. Varona-Algos, 819 F.2d 81, 83 (5th Cir.) (passenger who later claimed ownership of car remained silent during search, thereby impliedly consenting to it), cert. denied, --- U.S. ----, 108 S.Ct. 296, 98 L.Ed.2d 255 (1987); Ledda, slip op. at 8 (owner's failure to countermand driver's consent during search reinforced driver's control and authority over vehicle,...