U.S. v. Santurio, 93-5114

• Decision Date: 08 July 1994
• Docket Number: No. 93-5114,93-5114
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Louis E. SANTURIO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 550

29 F.3d 550

UNITED STATES of America, Plaintiff-Appellee, v. Louis E. SANTURIO, Defendant-Appellant.

No. 93-5114.

United States Court of Appeals, Tenth Circuit.

July 8, 1994.

Submitted on the Briefs: ^*

Michael G. Katz, Federal Public Defender, and Susan L. Foreman, Asst. Federal Public Defendant, Denver, CO, for defendant-appellant Louis E. Santurio.

Stephen C. Lewis, U.S. Atty. and James L. Swartz, Asst. U.S. Atty., Tulsa, OK, for plaintiff-appellee United States of America.

Before TACHA and BRORBY, Circuit Judges and BROWN, Senior United States District Judge. ^**

WESLEY E. BROWN, Senior District Judge.

The defendant, Louis Santurio, and his codefendant, Carmen Serrano, were indicted on a charge of possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(A)(ii). The charge resulted from evidence seized during a warrantless search of a vehicle they occupied on the Will Rogers Turnpike in Ottawa County, Oklahoma, on October 13, 1992. Prior to trial, the defendant filed a motion to suppress evidence obtained by this search and, after an evidentiary hearing, this motion to suppress was denied. The case was then tried to a jury which returned a verdict finding defendant guilty as charged. He was sentenced to 120 months imprisonment, a five-year term of supervised release, and a fine of $3,000 was imposed. ¹ This appeal follows.

The defendant contends that the district court erred in denying his motion to suppress because the evidence was obtained as a result of a search which exceeded the scope of defendant's consent.

At the evidentiary hearing conducted by the Honorable H. Dale Cook, testimony for the government was presented by Gary Hornback, the state trooper who conducted the search; and defendant Louis Santurio testified in support of his motion.

According to Hornback's evidence, which the district court found to be credible, he was working on the Will Rogers Turnpike in Ottawa County, Oklahoma, on October 13, 1992, when he first saw defendant's vehicle, a 1986 V.W. van at approximately 5:13 p.m. He noticed the van because it was traveling at 64 miles per hour in a construction zone which had a reduced speed limit of 45 miles per hour. Santurio was operating the van, and Carmen Serrano, his codefendant who was in the passenger's seat, gave her name as Karla Restrepo. The defendant gave Hornback a driver's license with the name Nicolas Fraguanda, issued in the state of New Jersey. While standing next to the van, Hornback noticed a strong chemical odor coming from the vehicle which he associated with the smell of heroin. ² When Hornback ran a check on defendant's driver's license, he found there was no record of a person named Fraguanda with a driver's license in New Jersey. Defendant told Hornback that he and "his wife" had flown to California to pick up the van for a friend and take it to Indianapolis, Indiana; and while he told the trooper he was a truck driver, the New Jersey license which he gave to Hornback was not a commercial driver's license.

Hornback then asked for and obtained the driver's license of the passenger, Ms. Serrano. She gave him a Connecticut license in the name of Karla Restrepo. Hornback asked the passenger where she was going, and she said she did not understand and did not respond further to any questions asked of her. Defendant told Hornback that he and his wife lived together but, when questioned why one lived in New Jersey and the other in Connecticut, defendant became nervous.

Hornback then issued a written warning on the speed violation and handed defendant's license back. When defendant began to exit the trooper's vehicle Hornback asked to speak further with defendant. Hornback then explained that there was a lot of narcotics traffic on the interstate and asked defendant if he had any narcotics in his vehicle. Defendant replied that he did not, and Hornback asked him if he could check the vehicle. Defendant said that he "did not mind." Hornback filled out a written consent to search form and explained to defendant that the form allowed him to search the vehicle and anything in it. Defendant read the consent form and signed it with the name Fraguanda. The consent form, which was signed at 5:27 p.m., provided in pertinent part that:

I hereby grant my consent to (Trooper) Gary Hornback, an officer of the Oklahoma Highway Patrol, to search the following: Motor Vehicle (and its contents), described as: ... Van V.W. 1986 ... License Number and State DND LEE CA....

I understand that I have the right to refuse to consent to the search described above and to refuse to sign this form. I further state that no promise, threat or force of any kind, directly or indirectly, has been used to obtain my consent to the search described above or to sign this form, and that my consent to the search is absolutely voluntary.

After the form was signed, the defendant and his passenger were directed to wait in the patrol car while Hornback began his search through a side door of the van. Hornback again noticed the same chemical odor around the vehicle. The first thing found was approximately $5,700 in cash in an overnight bag. Nearby he found a mobile telephone, a sky pager, and a billfold with a Texas driver's license, under a different name, but with a defendant's picture on it. While the search was going on, defendant left the patrol car and walked over to Hornback. When questioned about the Texas license, defendant told the trooper that he had had some problems in New Jersey about his driver's license, and that his wife did not know about the money. At this point, defendant appeared to be very nervous, and Hornback directed him to return to the patrol car while he finished the search.

Hornback noticed what appeared to be a false floor in the van, and when he raised the carpeting he noticed a 2 X 4 and a piece of corrugated steel which did not appear to be a part of the van. At that point, Hornback called in to headquarters for a drug detection dog, which arrived within 30 minutes. The dog alerted to the presence of...