U.S. v. Sanchez

• Decision Date: 24 August 1994
• Docket Number: Nos. 94-1023,94-1025,s. 94-1023
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis SANCHEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jose CHAVIANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1330

32 F.3d 1330

UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis SANCHEZ, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jose CHAVIANO, Defendant-Appellant.

Nos. 94-1023, 94-1025.

United States Court of Appeals,

Eighth Circuit.

Submitted April 11, 1994.

Decided Aug. 24, 1994.

Martin J. Kushner, Omaha, NE, argued, for Sanchez.

Alan G. Stoler, Omaha, NE, argued, for Chaviano.

Michael P. Norris, Omaha, NE, argued, for appellee.

Before MAGILL and LOKEN, Circuit Judges, and FRIEDMAN ^*, Senior Circuit Judge.

FRIEDMAN, Senior Circuit Judge.

The principal issue is whether the United States District Court for the District of Nebraska ^** correctly denied the appellants' motion to suppress cocaine and other evidence seized from a tractor-trailer they were driving in Nebraska following a search of the vehicle to which they had consented. They contend that their consent was not voluntary and therefore was invalid. We uphold the search because the district court's finding that the state officer who made it reasonably believed that the appellants had consented to the search is not clearly erroneous. We also reject the appellants' challenge to the sentences. Accordingly, we affirm the convictions and sentences.

I.

A. The evidence relating to the search, as developed at the evidentiary hearings before the magistrate-judge on the motions to suppress, is not contested.

The appellant Chaviano was driving a tractor-trailer on a highway in Nebraska. The truck was owned by Evelio Perez-Hernandez, and the appellant Sanchez was sitting in the passenger seat next to Chaviano. When the truck pulled into a weighing station, Rodney Ford, a Nebraska Carrier Enforcement Officer, saw that the truck did not have a front license plate. Ford asked the two men to bring their driver's licenses and the vehicle registration to the office.

Chaviano and Sanchez entered the office, and approached Officer Ford, who began a routine inquiry into the appellants' destination, permits, license, and origination point. Ford initially addressed the driver Chaviano, but found that Chaviano did not understand. Sanchez informed Ford that Chaviano did not speak English and that Sanchez would interpret. Ford spoke with Sanchez, who claimed to be fluent in both Spanish and English. Ford requested Chaviano's driver's license. Sanchez spoke in a foreign language to Chaviano, who produced a driver's license for Evelio Perez-Hernandez, with a Miami, Florida residence.

Ford made a check on Perez-Hernandez's license and found that the license had been suspended.

The scale on the truck indicated that the trailer was either empty or light.

Sanchez informed Ford that Sanchez and Chaviano had begun their trip in Ontario, California and were going to Chicago, Illinois. Ford recalled from drug trafficking training that Ontario, California is a point of origin for drugs, and decided to look for drugs. He gave Sanchez a standard printed consent form, captioned "PERMISSION FOR SEARCH AND SEIZURE," to search the vehicle and asked Sanchez to explain the form to Chaviano. Ford told Sanchez that he needed to look in the truck and that Chaviano and Sanchez would have to sign the form authorizing a search of the vehicle.

Ford watched as Sanchez conversed with Chaviano in a foreign language. Ford believed that in this conversation, Sanchez explained to Chaviano Ford's need to look in the truck and what the consent-to-search form meant. Ford then observed Chaviano sign the form, scribble over the initial signature and then affix the name Evelio Perez on the signature line. Sanchez then signed the form on the witness line and gave the form to Ford who, in turn, signed and dated the form.

Ford walked with the appellants to the back of the trailer, and asked Sanchez to open it. Without objection, Sanchez did so. Ford climbed in the trailer while the appellants stood nearby. The appellants were silent as Ford walked toward the front part of the trailer, where he observed sealed boxes. Ford then left the trailer and asked about the boxes. Sanchez said the boxes were empty.

Ford thought it peculiar that the appellants would haul sealed empty boxes. He returned to the front end of the trailer, while the appellants remained silent. Upon opening one box, Ford observed what he believed to be kilogram bricks of cocaine. He returned to Sanchez and Chaviano, placed them under arrest, and escorted them back to the office, where the Nebraska State Patrol was called. When asked at the preliminary hearing: "At the time in which you conducted a search of the trailer, did you believe that you had consent to search that trailer?"; Officer Ford replied, "Yes."

The state patrol removed 269 kilograms of cocaine from the trailer. A later search of the tractor revealed an additional kilogram in the glove box. Laboratory analysis confirmed that the substance was cocaine.

Sanchez and Chaviano agreed to cooperate with the Drug Enforcement Agency (DEA) and assist in the controlled delivery of the tractor-trailer and its contents to New York. Sanchez and Chaviano told the DEA that they had been hired to transport the cocaine from Ontario, California to New York. Sanchez's function was to interpret for Chaviano. The appellants completed their delivery and two other persons were arrested.

B. In a superseding indictment, Sanchez, Chaviano and Perez-Hernandez were charged with conspiring to distribute and possessing with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. Sec. 846 and with knowing and intentional possession, with intent to distribute, of more than five kilograms of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1).

Chaviano and Sanchez each moved to suppress the cocaine and the other evidence seized from the tractor-trailer. After evidentiary hearings, the magistrate-judge recommended that the motions be denied. She concluded that the government had established that Chaviano voluntarily consented to the search, and that Ford had a reasonable belief that there was consent when Chaviano signed the consent form and failed to object when Ford began searching the trailer, and that the facts showed probable cause for the search. With respect to Sanchez' motion, she concluded that Sanchez failed to establish standing to object to the search, but that in any event Chaviano validly consented to the search and that Ford had a good faith reasonable belief that he had obtained consent to search.

The district court approved and adopted the recommendations of the magistrate-judge, and denied the motions to suppress.

The court held that "Chaviano gave valid consent to the search. In addition, the only reasonable conclusion which can be drawn from the totality of facts and circumstances, as established by the testimony presented at the hearing, is that the officer had a good faith belief that he had consent to conduct the search." The court agreed with the magistrate-judge's finding that Sanchez did not have standing to object to the search, but further ruled that "[e]ven assuming standing, the Court's finding that Chaviano gave a valid consent would be dispositive of the defendant's respective motions."

In accordance with plea agreements and pursuant to Fed.R.Crim.P. 11(a)(2), Sanchez and Chaviano tendered conditional pleas of guilty to the possession count and reserved the right to appeal from the district court's denial of their motions to suppress.

II.

The appellants contend that Chaviano could not voluntarily have consented to the search because he spoke only Spanish, not English; Ford spoke only English, and did not have a Spanish interpreter, through whom he could speak to Chaviano; Ford could not have known what Sanchez told Chaviano in Spanish about the consent form and Ford's proposed search of the tractor-trailer; and Chaviano did not understand the consent form he signed because it was in English. It is unnecessary to decide that issue, however, because the search may be upheld on the ground that Ford reasonably believed that Chaviano voluntarily consented to the search. Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991).

A. The question in Rodriguez was "[w]hether a warrantless entry is valid when based upon the consent of a third party whom the police, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not do so." 497 U.S. at 179, 110 S.Ct. at 2796. There, Ms. Fischer, who had shared an apartment with Rodriguez, opened the door to the apartment from outside with her key and gave the police officers permission to enter, to arrest Rodriguez for assaulting her. The police entered the apartment without a warrant, and found illegal drugs there. Rodriguez was indicted in state court for drug possession. The Illinois courts suppressed all the evidence seized from the apartment, on the ground that Fischer had no authority to consent to the police's entry into the apartment because she did not have common authority (with Rodriguez) over the apartment. The trial court "rejected the State's contention that, even if Fischer did not possess common authority over the premises, there was no Fourth Amendment violation if the police reasonably believed at the time of their entry that Fischer possessed the authority to consent." Id. at 180, 110 S.Ct. at 2797.

The Supreme Court reversed and remanded, upholding the state's contention that in order to satisfy the "reasonableness" requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government--whether the magistrate issuing the warrant, the police officer executing the warrant, or the police officer conducting a search or seizure under one of the exceptions to the warrant requirement--is not that they always be correct, but...