U.S. v. Thompson

• Decision Date: 11 February 1997
• Docket Number: Nos. 95-3356,95-3357,s. 95-3356
• Citation: 106 F.3d 794
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Veronica M. THOMPSON and Veronica Andalon, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 794

106 F.3d 794

UNITED STATES of America, Plaintiff-Appellee, v. Veronica M. THOMPSON and Veronica Andalon, Defendants-Appellants.

Nos. 95-3356, 95-3357.

United States Court of Appeals Seventh Circuit.

Argued May 20, 1996.

Decided Feb. 11, 1997.

Bruce E. Reppert (argued), Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for U.S.

Charles F. Benninghoff, III, Martin G. Molina (argued), Benninghoff & Ramirez, San Juan Capistrano, CA, for Veronica M. Thompson.

Before CUDAHY, COFFEY, and RIPPLE, Circuit Judges.

COFFEY, Circuit Judge.

A jury found defendants Veronica Thompson and Veronica Andalon guilty of conspiracy and possession of marijuana with intent to distribute it. 21 U.S.C. §§ 846, 841. They appeal their convictions and sentences, arguing that (1) the district court should have suppressed evidence seized following a traffic stop, because Thompson did not voluntarily consent to her vehicle being searched; (2) the evidence was insufficient to support the convictions; and (3) because they cooperated fully with the authorities, the court should have granted a downward departure from their sentences under the provisions of 18 U.S.C. § 3553(f). We affirm.

I.

According to the facts revealed at trial, which we construe in the light most favorable to the government on appeal, United States v. Rogers, 89 F.3d 1326, 1334 (7th Cir.1996), Illinois State Police Trooper Robert Eisenbarger was performing a routine patrol on December 12, 1994. He clocked a closed rental truck going 61 miles per hour in a 55 mile per hour zone. Eisenbarger pulled up alongside the truck to see who was driving it, whereupon its speed dropped below the 45 mile per hour minimum. He also noticed another car with California license plates, which appeared to be tailing the rental truck. Both vehicles were equipped with CB radio antennae. When Eisenbarger pulled the rental truck over, the tail vehicle continued on its way.

Defendant Veronica Thompson was driving the truck, and defendant Veronica Andalon was riding as a passenger. Eisenbarger asked Thompson to sit in his squad car while he issued her a written warning for the violation, and checked her license on the squad car's computer. She acceded. While waiting for the computer check on her license, Eisenbarger engaged Thompson in casual conversation. Thompson told Eisenbarger that she was moving to New York. When Eisenbarger asked if she had an apartment, Thompson replied that she did not know the address, but had a phone number to call when she got there.

At one point, Eisenbarger left Thompson in the squad car and went back to the truck, where he asked Andalon for the rental agreement. Andalon acted nervous, but handed him some papers. When he got back to the squad car, Eisenbarger found out they were not the correct documents, so he had Thompson return to the truck and retrieve the rental agreement. She complied, whereupon Eisenbarger completed the written warning for the speeding violation. Eisenbarger, unbeknownst to Thompson, also filled out a Consent-to-Search form, using the information which Thompson had given him. When he had completed the forms, Eisenbarger returned the rental agreement and Thompson's driver's license. He gave Thompson the warning, and told her that if she signed it, she would be free to go.

Thompson signed the agreement, and moved to open the door of the squad car. Eisenbarger then asked if she would mind answering a few more questions. Thompson told him to go ahead. Eisenbarger explained that part of his duty was to investigate the transport of illegal drugs and guns. He asked if Thompson had any guns in the truck. She said she did not. He then asked if she had any illegal drugs. She looked away, and then said no again. Thereupon, Eisenbarger handed her the completed consent-to-search form, and explained what it was. He told her she did not have to sign it. Thompson examined the form, and then signed it. She then volunteered to Eisenbarger that some of the furniture in the truck belonged to a friend named Bill Smith, and she was taking it to New York as a favor.

Eisenbarger went into the cargo area of the truck, and immediately noticed the strong odor of a deodorizer. He searched some boxes near the passenger compartment, and found bundles of compressed marijuana wrapped in heat-sealed plastic and smeared with a gel deodorizer. He then arrested Thompson and Andalon, took them to Illinois State Police headquarters, and impounded the truck. Before either defendant had a chance to make a telephone call, an attorney from St. Louis called State Police headquarters to inquire about their arrest.

The police completed a thorough search of the rental truck, although the smell from the deodorizer was so overpowering that it was necessary to remove the vehicle from the police garage. The search revealed two refrigerators sealed with caulk, and filled with more marijuana. Police found a total of about 630 pounds of marijuana, with an estimated street value of $1.1 million. A fingerprint which matched defendant Thompson was lifted from one of the plastic bags in which the marijuana was wrapped. Further investigation revealed that the tail vehicle, which left the scene when Eisenbarger pulled the truck over, was registered to Jose Luis Romero, a convicted narcotics trafficker. Shortly before the incident in question, Romero had been seen with Guillermo Flores Andalon, a convicted marijuana trafficker who was defendant Andalon's brother, and Thompson's brother-in-law. Neither Romero nor Guillermo Andalon were arrested in connection this case.

DEA agents interviewed both Thompson and Andalon at police headquarters. Both claimed ignorance of the marijuana found in the truck. Thompson explained that she ran her own import/export business, and was changing her base of operations from San Diego to New York. Before she left California, she got a call from a man named Bill Smith, whom she had met some months earlier at a San Diego disco. She had seen Bill Smith and his brother John socially on two subsequent occasions. According to Thompson, when she told Bill Smith that she was moving her business to New York, he offered to help pay her moving expenses if she would take some of his furniture to New York. Bill Smith was unable to move the items himself, she explained, because he had broken his leg. Bill Smith also gave her extensive directions about renting the truck, and the route she should take to New York.

Defendant Andalon's version of events differed slightly. She stated that she and Thompson had met John Smith at a disco in Tijuana. According to Andalon, she and Thompson were going to New York on vacation. When John Smith learned of their vacation plans, he asked if they would help him move some furniture to a house he owned in Philadelphia, in exchange for his paying for the rental truck. It was John Smith, according to Andalon, who had the broken leg. Both defendants consistently denied any knowledge of the tail vehicle Trooper Eisenbarger noticed following their truck.

A federal grand jury indicted Thompson and Andalon for conspiracy and possession of marijuana with intent to distribute it. 21 U.S.C. §§ 846, 841. Defendants filed a motion in limine to exclude the seized evidence on the ground that Thompson did not voluntarily consent to the search. The district court denied the motion following a suppression hearing. A jury convicted the defendants on both counts. The court sentenced them to concurrent sentences of sixty-three months in jail on each count, at the bottom end of the range prescribed by the Sentencing Guidelines.

II.

A.

Defendant Thompson ¹ argues that district court should have suppressed the evidence seized from the rental truck, because she did not voluntarily consent to the search. The voluntariness of a consent to search is a finding of fact to be determined from the totality of the circumstances. United States v. Stribling, 94 F.3d 321, 324 (7th Cir.1996). A consent obtained during an illegal detention is invalid unless the state proves that the consent resulted from an independent act of free will. Florida v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983). We review the denial of a motion to suppress evidence for clear error. United States v. Marshall, 79 F.3d 68, 69 (7th Cir.1996).

Thompson concedes that the state trooper had probable cause to make the initial traffic stop, that he told her she was free to leave after he gave her a written warning about speeding and returned her identification, and that this statement ended the traffic stop. She complains only that before she had a chance to get out of the squad car, the trooper turned toward her and asked if she would answer more questions. This action, she maintains, negated the previous permission to leave, transformed the additional questioning into an unlawful detention, and created an inherently coercive atmosphere which compelled her to accede to the trooper's request, and thus tainted her consent to the search. The trooper, Thompson contends, should have reiterated that even though he wanted to ask more questions, she was still free to leave.

A recent Supreme Court decision dooms Thompson's argument. Ohio v. Robinette, --- U.S. ----, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). The Fourth Amendment, the Court teaches, does not even require that a lawfully seized defendant be told that she is free to go before her consent to a search will be recognized as voluntary. Id. at ----, 117 S.Ct. at 419. Robinette reaffirmed that courts must apply an objective standard in determining whether an action was lawful under the Fourth Amendment. Thus, the appropriate test for assessing the coercive effect of police conduct is whether a reasonable person, viewing the particular police conduct as a whole and within the setting of all the surrounding circumstances, would have concluded that the officer had in some way restrained her...