U.S. v. Recalde

Decision Date10 May 1985
Docket NumberNo. 84-1698,84-1698
Citation761 F.2d 1448
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Miguel Angel RECALDE, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Hank Farrah, Albuquerque, N.M., for defendant-appellant.

David N. Williams, Asst. U.S. Atty., Albuquerque, N.M. (William L. Lutz, U.S. Atty., and Don J. Svet, First Asst. U.S. Atty., Albuquerque, N.M., with him on the brief), for plaintiff-appellee.

Before SEYMOUR, McWILLIAMS and WINDER, * Circuit Judges.

SEYMOUR, Circuit Judge.

Miguel Recalde was convicted on one count of possession with intent to distribute cocaine under 21 U.S.C. Sec. 841(a)(1) (1982). On appeal, he argues that the district court erred in denying his motion to suppress evidence seized during a search of his automobile. We agree and reverse his conviction.


Recalde is an Argentinian citizen and a resident alien of the United States. On October 20, 1983, while driving westbound on Interstate 40, he was stopped near Moriarty, New Mexico, by Officer Thomas Christian of the New Mexico State Police, who had observed Recalde's vehicle speeding. Recalde was traveling alone and the stop occurred shortly after noon, approximately five miles west of Moriarty, during a rainstorm.

At Christian's request Recalde produced a Virginia driver's license in his name and a Virginia automobile registration listing as the owner one Roberto Sosa. Christian told Recalde he was going to issue him a speeding ticket and returned to his police cruiser to conduct a National Crime Information Center (NCIC) check, via his car radio, on the status of Recalde's car. The NCIC check was negative. At this time Christian also used his radio to contact Officer Jerome Armijo of the Moriarty Police Department. Christian testified he had "a gut instinct" that Recalde "was transporting narcotics." Rec., vol. II, at 15. 1 Christian told Armijo about his suspicion and requested that Armijo proceed to the scene to assist him.

While waiting for Armijo, Christian told Recalde he either could appear in traffic court or could plead guilty by signing the ticket and paying a fine. Recalde said he would pay the fine and he signed the ticket. Christian requested that Recalde step out of his car and asked if he knew the car owner's telephone number. Recalde replied that he did not. When asked how he would contact the owner if something happened to the car, Recalde did not respond. At some point Recalde told Christian he was from Argentina, showed him his resident alien green card, 2 and said he was a car salesman on his way to Los Angeles. During this questioning Armijo arrived on the scene.

Christian then asked Recalde if he could look in the car's trunk and Recalde gave his permission. Christian found one suitcase which Recalde opened, revealing some casual clothes. Recalde also opened a briefcase stored in the trunk. At the suppression hearing, Christian admitted that he found nothing suspicious in Recalde's luggage. He testified, however, that during the roadside stop he did notice that a number of screws in the automobile's interior molding showed signs of having been scratched or tampered with.

At this point, the testimony of the parties diverges. Recalde testified that he was told he would have to accompany the officers to Moriarty. Christian and Armijo both testified that Recalde was asked if he would follow them into Moriarty and that Recalde agreed. However, neither officer disputes that Recalde was not told he was free to proceed on his way or that he could refuse to follow them into Moriarty. It is also undisputed that Christian kept possession of the speeding ticket, Recalde's driver's license, and the automobile registration throughout the roadside encounter and during the trip into Moriarty.

Recalde and the officers then proceeded back five miles to Moriarty, with Recalde's car sandwiched between Christian's and Armijo's police cruisers. When they arrived at the state police office in Moriarty, it was locked and no one else was present. Christian and Armijo took Recalde into a small room inside the station, where Christian gave Recalde Miranda warnings. In response to several questions by Christian, Recalde replied that he did not want to answer any questions but that the officers could search the car if they wanted to. Christian, who still had possession of the ticket, Recalde's driver's license, and the automobile registration, told Recalde he wanted to search the car and handed him a consent-to-search form, which he executed.

Recalde's car was taken to a nearby gas station where it was dismantled. Christian, aided by several narcotics agents, searched the car and discovered ten kilograms of cocaine stored inside the car's interior quarter panels. Christian then placed Recalde under arrest.

Recalde was indicted for possession of cocaine with intent to distribute. At a pretrial suppression hearing, he challenged the voluntariness of his consent to the search of the car at the station. He sought to have the cocaine suppressed as the fruit of an illegal search. In a short written order the district court found that Recalde had knowingly and voluntarily consented to the search of his vehicle and denied the motion to suppress. 3 Later, represented by new counsel, Recalde requested reconsideration of his motion to suppress, and the district court held a second hearing. Recalde challenged the search at the station on the grounds that he was unlawfully seized and detained on the highway and at the station. The district court rejected this argument. The court made no findings but, ruling from the bench, denied the motion. In so doing, the court erred.


The Government conceded in the district court, and concedes on appeal, that the search of Recalde's car at the Moriarty station was not based on probable cause or a judicial warrant. The Government also does not assert any exception to the warrant requirement, such as exigent circumstances, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), or a search incident to arrest, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The Government relies entirely on the consent form Recalde signed at the station. For the reasons set forth below, the validity of Recalde's consent at the station turns on the lawfulness of his earlier detention and movement into Moriarty.

The Government argues that Recalde voluntarily accompanied the officers into Moriarty. The Government alternatively argues that even if Recalde did not consent to accompany Christian and Armijo, his movement to Moriarty was justified as a lawful investigative detention. Finally, the Government contends that Recalde consented to the search by signing the consent form.

A. Recalde's Consent to the Trip to Moriarty

The Government argues that Recalde was not unlawfully seized because he agreed to accompany the police to Moriarty. Whether consent is in fact voluntary, or is the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. United States v. Mendenhall, 446 U.S. 544, 557, 100 S.Ct. 1870, 1878, 64 L.Ed.2d 497 (1980); Schneckloth v. Bustamonte, 412 U.S. 218, 227, 248-49, 93 S.Ct. 2041, 2047, 2058-59, 36 L.Ed.2d 854 (1973); United States v. Prichard, 645 F.2d 854, 857 (10th Cir.1981), cert. denied, 454 U.S. 832, 102 S.Ct. 130, 70 L.Ed.2d 110 (1981). The Government has the burden of proving that consent was given freely and voluntarily. Mendenhall, 446 U.S. at 557, 100 S.Ct. at 1878; Schneckloth, 412 U.S. at 222, 93 S.Ct. at 2045; cf. United States v. Donahue, 442 F.2d 1315, 1316 (10th Cir.1971).

In determining the specifics necessary to sustain the burden of showing that consent was voluntary, this court has established a three-tiered analysis. First, there must be clear and positive testimony that the consent was unequivocal and specific. Second, the Government must establish that the consent was given without duress or coercion. Finally, we evaluate those first two standards with the traditional indulgence of the courts against a presumption of waiver of constitutional rights. See United States v. Abbott, 546 F.2d 883, 885 (10th Cir.1977); Villano v. United States, 310 F.2d 680, 684 (10th Cir.1962). Applying these standards to the facts in this case as analyzed below, we conclude that Recalde did not voluntarily follow the police to Moriarty. 4

When Recalde was asked or directed to accompany Christian and Armijo, he was in the presence of two uniformed officers, one of whom had arrived on the scene as a reinforcement after the initial stop. His car trunk and luggage had already been searched. Officer Christian held Recalde's driver's license and vehicle registration and had not returned them to Recalde nor in any way indicated that he would. Although Recalde had signed the traffic ticket, Christian had not given him a copy of it. Recalde was never told he was free to go, and he testified that he did not feel free to leave because "[I] [n]ever got back my registration. Never got through with the ticket. That means he wasn't finished with me." Rec., vol. II, at 56. Moreover, Christian had already determined that he would not permit Recalde to leave in the car 5 and while Christian testified that he would have permitted Recalde to leave on foot, he never indicated this to Recalde. We reject any suggestion that Recalde could have done so. Recalde was traveling alone and was in the middle of a sparsely populated area of rural New Mexico, five miles from the nearest town. He was caught in the middle of a heavy rainstorm and all of his luggage was locked in the trunk of his car. Recalde, a resident alien, could reasonably have felt constrained and unable to simply terminate his confrontation with Officers Christian and Armijo. He gave undisputed testimony that his upbringing and experiences in Argentina had instilled in him an acquiescence to police...

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