U.S. v. De La Rosa, 89-5517

• Decision Date: 28 January 1991
• Docket Number: No. 89-5517,89-5517
• Citation: 922 F.2d 675
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Luis Fernando DE LA ROSA, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 675

922 F.2d 675

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Luis Fernando DE LA ROSA, Defendant-Appellant, Cross-Appellee.

No. 89-5517.

United States Court of Appeals, Eleventh Circuit.

Jan. 28, 1991.

Roy J. Kahn, Miami, Fla., for defendant-appellant, cross/appellee.

Carol A. Wilkinson, Harriett Galvin and Linda Collins Hertz, Asst. U.S. Attys., Miami Appeal from the United States District Court for the Southern District of Florida.

Fla., for plaintiff-appellee, cross-appellant.

Before CLARK, Circuit Judge, MORGAN and HILL ^*, Senior Circuit Judges.

MORGAN, Senior Circuit Judge:

Appellant, Luis Fernando De La Rosa, was charged with conspiracy to possess cocaine with intent to distribute, conspiracy to commit money laundering, possession of cocaine with intent to distribute, and money laundering. Following the denial of his pretrial motion to suppress certain evidence seized and statements made by him on the night of his arrest, appellant entered a negotiated guilty plea to money laundering, reserving the right to appeal the denial of his motion to suppress. The district court imposed a Guidelines sentence of 87 months imprisonment followed by two years supervised release. Appellant now appeals the denial of his motion to suppress. The government cross-appeals, alleging that the district court misapplied certain sections of the Federal Sentencing Guidelines in arriving at the sentence. We affirm the judgment of conviction and the sentence imposed by the court.

MOTION TO SUPPRESS

The following facts, which we find to be supported by the record, are taken primarily from the order of the district court on the motion to suppress:

On July 6, 1988, at about 9:15 p.m., Metro Dade police officer Nick Anagnostis observed a Latin male, Raphael Bustamante, using a public telephone located at the Town and Country Mall in Miami, Florida. After Bustamante finished using the telephone, he entered the passenger side of appellant's rental vehicle. At this time, Anagnostis and two other police officers in unmarked cars began to follow appellant's vehicle. Appellant subsequently dropped Bustamante off at the Promenade Apartments in Miami, Florida. Appellant proceeded to his apartment across the street and used a special pass in order to open a security gate into the parking lot. Before the gate closed, one of the police officers, Detective Tom Gross, entered the complex. After appellant parked and began walking toward his apartment, Detective Gross positioned his unmarked police car directly behind appellant's vehicle, approached appellant, identified himself as a police officer, and asked appellant if he could speak with him. Appellant agreed. Detective Gross was dressed in plain clothes and carried a holstered firearm. At Gross's request, appellant produced identification, a Georgia driver's license. Before returning appellant's license, Detective Gross asked for and received permission to search appellant's vehicle. At this time, detective Anagnostis arrived at the scene and parked a couple of parking spaces away from appellant's car. Detective Gross then handed Detective Anagnostis appellant's license and proceeded to search the vehicle. ¹

During the search, Detective Gross discovered a notebook in the back seat of the car and, after reading its contents, concluded that the inscriptions in the notebook related to narcotics transactions. The officers then asked appellant if he would show them where Bustamante lived and stressed that he did not have to consent to this request. Appellant replied that he understood, but that he would take them to Bustamante's home anyway. Detective Anagnostis and another police officer, Detective Haines, placed appellant in one of the unmarked cars and proceeded to Bustamante's apartment. No contraband was found at Bustamante's apartment and appellant was then taken back to his apartment where the officers asked if they could search his residence. Appellant was informed During the search, the officers found approximately $378,000, an electric money counting machine, rubber bands and other ledgers. Defendant was placed under arrest for violation of Florida state law prohibiting conspiracy to traffic in narcotics and was advised of his Miranda rights. Appellant then stated that he was in the cocaine business but did not deal directly with the drugs and that he only handled money. Appellant stated that the detectives had missed some currency at Bustamante's apartment and that there was another apartment that he knew of which should have both cocaine and cash. The officers returned to Bustamante's apartment, and upon entering, observed Bustamante burning paper. After searching both Bustamante's apartment and the other apartment identified by appellant, the officers found one kilogram of cocaine and more cash.

that he did not have to consent to this search and, as he had done throughout the encounter, he consented.

Appellant sought to suppress the notebook found in his automobile, the records, currency and other related items found in his apartment, and all statements, admissions and confessions which he made on the night of his arrest.

It is axiomatic that not every encounter between law enforcement officers and a citizen in a public place constitutes a seizure within the meaning of the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). The police can be said to have seized an individual if, in view of all the surrounding circumstances, a reasonable person would believe that he was not free to leave. Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980)). This is necessarily an imprecise test. Id. Some specific factors may be considered in making this inquiry, including: whether a citizen's path is blocked or impeded; whether identification is retained; the suspect's age, education and intelligence; the length of the suspect's detention and questioning; the number of police officers present; the display of weapons; any physical touching of the suspect, and the language and tone of voice of the police. See United States v. Puglisi, 723 F.2d 779, 783 (11th Cir.1984).

Applying these factors to the instant case, the district court determined that the initial encounter between appellant and the officers was a non-coercive encounter to which the Fourth Amendment did not apply. It made this finding, despite its somewhat questionable factual conclusion that the detectives retained appellant's driver's license at the time they asked permission to search his car. The district court found that appellant "had returned home for the evening, and was not anticipating using the automobile in the immediate future," and determined that under these facts a reasonable person would believe he was free to walk into his home and avoid further conversation with the police. We agree with the district court that even though the defendant's driver's license may have been temporarily retained, a reasonable person, under the totality of the circumstances, would have believed he was free to leave. ²

We decline to accept appellant's argument that the existence of the security gate at the entrance to the parking lot of his apartment complex transforms that parking lot from a public into a private area. Likewise, we decline appellant's invitation to remand this case to the district court for consideration of whether the initial encounter and search was lawful under state standards. The admissibility of evidence in a federal prosecution is governed by federal law, rather than state law. United States v. Mastrangelo, 733 F.2d 793, 799 (11th Cir.1984). "In determining whether there has been an unreasonable Appellant also argues that even if he was not seized for Fourth Amendment purposes at the time he consented to the search of his automobile, his consent did not extend to the contents of the notebook found in the back seat. A consensual search is confined to the terms of its authorization. United States v. Blake, 888 F.2d 795, 798 (11th Cir.1989). At bar, we find that appellant voluntarily consented to a search of the interior of his automobile and placed no special restrictions on that search. Thus, it was reasonable for Detective Gross to open the notebook which he found lying on the seat. Compare United States v. Milian-Rodriguez, 759 F.2d 1558, 1563 (11th Cir.) (upholding search of locked closet after defendant gave voluntary consent to search his house), cert. denied, 474 U.S. 845, 106 S.Ct. 135, 88 L.Ed.2d 112 (1985).

                search and seizure by state officers a federal court must make an independent inquiry ...  The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed."    Elkins v. United States, 364 U.S. 206, 224, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960). 3
                

Finally, we reject appellant's contention that his consent to search his apartment and all of the statements by him made after he accompanied the officers to Bustamante's apartment, were somehow involuntary because he had been removed from the site of the initial encounter. The only case cited by appellant in support of this argument, United States v. Waksal, 709 F.2d 653, 659 (11th Cir.1983) is factually inapposite. Waksal and the cases cited therein deal with individuals who accompany police officers away from the public area of an initial encounter to a private area for further questioning. Here, appellant was not taken off for further interrogation, rather, he voluntarily complied with the officers' request that he show them where Bustamante lived. Compare Id. For these reasons, we find that the motion to suppress was properly denied by the district court.

SENTENCING GUIDELINES

By cross appeal, the government argues that the district...