U.S. v. Soriano

• Decision Date: 15 October 2003
• Docket Number: No. 01-50461.,01-50461.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Herman Patayan SORIANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

346 F.3d 963

UNITED STATES of America, Plaintiff-Appellee, v. Herman Patayan SORIANO, Defendant-Appellant.

No. 01-50461.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 16, 2003.

Filed October 15, 2003.

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Jeffrey H. Rutherford, Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellant.

Adam D. Kamenstein, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Lourdes G. Baird, District Judge, Presiding, D.C. No. CR-00-01262-LGB-1.

Before TASHIMA, BERZON, and CLIFTON, Circuit Judges.

Opinion by Judge CLIFTON; Dissent by Judge BERZON.

OPINION

CLIFTON, Circuit Judge.

Herman Patayan Soriano appeals his convictions for possession of stolen mail and receipt of a stolen United States Treasury check, and also the sentence that resulted. Soriano challenges his convictions on the ground that the district court erred in denying his motion to suppress evidence found during a search of a motel room where he and his girlfriend resided. Soriano's girlfriend signed a consent form allowing the warrantless search. The issue on appeal is whether the district court clearly erred in finding that her consent was voluntary, notwithstanding a threat made to her by one of the police officers on the scene that her children could be taken away if she did not sign the form. If the conviction stands, Soriano challenges the sentence he was given on the ground that the district court erred in calculating the appropriate loss amount for sentencing purposes. We reject both challenges and affirm.

I. BACKGROUND

On December 7, 2000, officers from the Los Angeles Police Department ("LAPD") were contacted by a bank regarding a possibly altered check that had been presented to a teller. Based on a description of the man who was trying to cash the check, LAPD officers arrested Keenan San Yung French. French told the officers that Soriano gave him the stolen check and that Soriano was staying in Room 228 at a certain motel. He also told the police that stolen checks, credit cards, and drug paraphernalia could be found in that motel room and that the checks had been stolen from the mails at various residences in the Los Angeles area.

The LAPD officers contacted the United States Postal and Inspection Service ("USPIS") for assistance in responding to this apparent mail theft scheme. Based on the tip from French, but without a warrant, LAPD and USPIS officers went to the motel to investigate Soriano and search his room. LAPD Detective Manente was informed by the surveillance team that a woman left Room 228 and was headed to the lobby. Detective Manente approached her in the lobby and identified himself as a police officer, informing her that he was there with other officers conducting an investigation involving Soriano. The woman identified herself as Hiroe Mukai and told the detective that she, Soriano, and their two children resided in Room 228, and that she had come to the lobby to pay the rent. Manente asked for her consent to search the room, telling her that she had a right to refuse consent, but that if she did, he would obtain a search warrant. Mukai indicated that she was concerned about her two small children, who were still in the room. Manente then left Mukai with several other police officers, and three postal inspectors joined them in the lobby.

Postal Inspector Callas approached Mukai, who was sitting on a couch, and sat down in a chair next to her. He explained that he was a federal agent and that they had received information that there was stolen mail in Room 228. He placed a consent form on the table and asked for her cooperation. Mukai repeatedly told him that she did not know what to do. Inspector Callas told her that she was not a suspect in the crime, but that Soriano was, and again asked for her cooperation. He also told her that if she did not consent, the officers would seek to obtain a search warrant to search the room.

LAPD Officer Shanahan, who was standing nearby, then told Mukai that if she did not sign, she might be arrested and her children would be placed in custody with social services. Inspector Callas interrupted Shanahan and told Mukai that the only way for her children to be taken from her and placed with social services would be if she were arrested, but that they did not have any reason to suspect that Mukai was involved. Callas explained that since she was not at risk of being arrested, her children were thus not at risk. Callas then told Mukai again that she had the right to refuse consent. He also read the consent form to her because he did not know if she could read English. Mukai stated again that she did "not know what to do." She finally signed the consent form about ten minutes after Shanahan's threat. During this entire time, which lasted roughly 30 minutes, a total of six to seven officers were in the lobby, including Officer Shanahan, who remained present after articulating the threat.

The search of the motel room revealed stolen mail, numerous altered checks, bank account and credit card information pertaining to various other people, counterfeit INS documents, and a stolen United States Treasury check in the amount of $1,138. Postal inspectors also recovered solvents, such as acetone, used to chemically alter checks so that payees and amounts could be changed.

Following a two-count indictment for possession of stolen mail, 18 U.S.C. § 1708, and receipt of a stolen Treasury check, 18 U.S.C. § 510(b), Soriano moved to suppress all evidence obtained from the search, arguing that Mukai's consent was invalid because of threats and intimidation. At the suppression hearing, the district court heard testimony from Mukai, Detective Manente, and Postal Inspectors Callas and Walters. Mukai testified that she was scared and gave consent only because she wanted to prevent her children from going to a social worker. The district court concluded that Mukai had been threatened, but that her consent was voluntary. The court reasoned that although Officer Shanahan uttered a threat to the custody of her children, Inspector Callas interrupted and took time to clarify to Mukai that (a) she was not a suspect, (b) she had an unqualified right to refuse consent, and (c) her children would need to be taken into custody "only if she was arrested," which was not going to happen since she was not a suspect. The court noted that Mukai thought her decision through for 5 to 10 minutes following Inspector Callas's explanation. Thus, the court concluded that, in the "totality of the circumstances, the government has met its burden of proof [that] Mukai's consent was free and voluntary."

At trial, the government introduced physical evidence from Soriano's motel room, including personal checks, credit card applications, personal identification information, chemicals used to alter checks, and a United States Treasury check. The government established that Soriano had not been given permission to possess the undelivered mail and that the $1,138 Treasury check had been altered to change the payee. The jury returned a guilty verdict on both counts.

At sentencing, Soriano objected to the calculation of the loss amount in the Pre-Sentence Report as $15,484.62, derived by adding up the face amounts of the 20 checks found in the motel room. He argued that the loss amount should have excluded several of the checks, including a $9,661 check made out to French. Although the district court did not accept all of the recommendations of the Pre-Sentence Report, it did find that the $9,661 check payable to French was in Soriano's possession. The net result was a loss amount of $12,932.62, resulting in a base offense level of 11 and a Guideline range of 8-14 months. Soriano was sentenced to 14 months, to be followed by three years of supervised release.

II. DISCUSSION

A. Motion to Suppress

We review de novo the district court's denial of a suppression motion. United States v. Jones, 286 F.3d 1146, 1150 (9th Cir.2002). The district court's underlying factual finding that a person voluntarily consented to a search is reviewed for clear error. Id.

It is well settled that "a search conducted pursuant to a valid consent is constitutionally permissible." Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Whether consent to search was voluntarily given is "to be determined from the totality of all the circumstances." Id. It is the government's burden to prove that the consent was freely and voluntarily given. See Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); United States v. Chan-Jimenez, 125 F.3d 1324, 1327 (9th Cir.1997). "On appeal, evidence regarding the question of consent must be viewed in the light most favorable to the fact-finder's decision." United States v. Kaplan, 895 F.2d 618, 622 (9th Cir.1990).

Our cases have identified five factors to be considered in determining the voluntariness of consent to a search. They are: "(1) whether defendant was in custody; (2) whether the arresting officers had their guns drawn; (3) whether Miranda warnings were given; (4) whether the defendant was notified that she had a right not to consent; and (5) whether the defendant had been told a search warrant could be obtained." Jones, 286 F.3d at 1152 (citing United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir.1989) (distilling from the case law the five factors now widely used)); accord United States v. Reid, 226 F.3d 1020, 1026 (9th Cir.2000) (citing the five factors); United States v. Cormier, 220 F.3d 1103, 1112 (9th Cir.2000) (same); Chan-Jimenez, 125 F.3d at 1327 (same). No one factor is determinative in the equation. Castillo, 866 F.2d at 1082. It is not necessary to check off all five factors, but "many of this court's decisions upholding consent as...