U.S. v. Torres-Sanchez

• Decision Date: 13 May 1996
• Docket Number: TORRES-SANCHE,D,No. 95-10209,95-10209
• Citation: 83 F.3d 1123
• Parties: 96 Cal. Daily Op. Serv. 3366, 96 Daily Journal D.A.R. 5483 UNITED STATES of America, Plaintiff-Appellee, v. Bulmaroefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1123

83 F.3d 1123

96 Cal. Daily Op. Serv. 3366, 96 Daily Journal

D.A.R. 5483

UNITED STATES of America, Plaintiff-Appellee, v. Bulmaro TORRES-SANCHEZ, Defendant-Appellant.

No. 95-10209.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 9, 1996.

Decided May 13, 1996.

N. Patrick Flanagan, III and Elizabeth N. Farley, Beckley, Singleton, Jemison & List, Reno, Nevada, for defendant-appellant.

Jamon A. Jarvis and Daniel G. Bogden, Assistant United States Attorneys, Reno, Nevada, for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada; David W. Hagen, District Judge, Presiding.

Before: BROWNING and JOHN T. NOONAN, Jr., Circuit Judges, and MERHIGE, Senior District Judge. ^*

MERHIGE, Senior District Judge:

Bulmaro Torres-Sanchez ("Sanchez") appeals his jury conviction for possession with intent to distribute methamphetamine, 21 U.S.C. § 841(a)(1), and travelling in interstate commerce in aid of racketeering, 18 U.S.C. § 1952(a)(3). We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 1294(l ). We AFFIRM.

I.

On November 24, 1994, at approximately 6:30 a.m., Elko County, Nevada, Deputy Sheriff Ernie Sardella ("Sardella") initiated a traffic stop on a Chevrolet pickup truck travelling near the Idaho/Nevada border. He stopped the truck for speeding, having no license plates, and having illegally tinted side windows.

Sardella made initial contact with the driver, co-defendant Avila-Soriano ("Avila"). Also in the vehicle were Sanchez, located in the front passenger seat, and Virginia Padilla ("Padilla"), seated in the back of the extended cab truck. Sardella first asked Avila for his driver's license and registration. Avila presented a valid driver's license, but neither he nor any of the other occupants produced valid registration. Therefore, Sardella was concerned that the truck may have been stolen or was being unlawfully used.

Sardella claims that Avila was extremely nervous when handing over his license. Sardella testified at the suppression hearing that:

the driver seemed very scared at that time .... when he handed me his driver's license, his hand was shaking, his eyes were watery, and he looked straight ahead. He kind of had a quiver in his lip. He was really--to me he looked frightened.

Concerned over the lack of valid registration, Sardella inquired as to ownership of the vehicle. In responding to this question, Sanchez and Padilla apparently spoke briefly in Spanish, and then Padilla told Sardella in English, "It's my sister-in-law's vehicle." During this exchange, Sardella noticed (1) a strong smell of cologne in the car; (2) a cologne bottle on the floor of the backseat; (3) a speedometer reading of 19,500 miles; (4) no luggage for any of the passengers; and (5) a small ice chest in the pickup bed of the truck. Sardella then asked the occupants where they were heading. Padilla turned to Sanchez, conversed with him in Spanish, and then both passengers answered "Twin Falls, Idaho."

At this point, Sardella returned to his patrol car and ran a check on Avila's driver's license. The license came up clear, but Sardella was still unable to determine ownership of the vehicle. Therefore, he returned to the truck for further questioning. Sardella once again questioned the occupants about the truck's ownership. This time Padilla allegedly responded that it belonged to Sanchez's sister-in-law. This concerned Sardella, as the statement was inconsistent with her previous answer that it was her sister-in-law's truck. Sardella, however, admitted at the suppression hearing that it was "very possible" he could have misunderstood Padilla's first response to this question.

Sardella then asked Sanchez for his sister-in-law's name. After allegedly "pausing for quite some time," Sanchez responded, "Estella Medina." This was the first indication to Sardella that Sanchez could converse in English. Sardella did confirm that Estella Medina was the name on the temporary new vehicle dealer's notice in the right front window. At trial, Estella Medina testified that she was Sanchez's sister-in-law and had given him permission to use the truck.

Sardella then told the occupants that he was not going to cite them, warned them to watch their speed, and told them to inform the owner that the tinted windows were prohibited in Nevada. He further explained, however, that he still had questions about ownership of the vehicle. At the suppression hearing, Sardella testified that he believed he had two different stories on who owned the truck, and "the more questions [he] asked the more suspicious [he] became."

At this point, Sardella asked Sanchez if he would mind coming back to his patrol car. Sanchez agreed, and as they approached the patrol car, Sardella stated, "Let's sit up inside, it's cold, get you out of the weather." Sanchez responded, "sure ... it's real cold." Once both men were seated in the front of the patrol car, Sardella returned Avila's driver's license to Sanchez. He then began to question Sanchez about the purpose of their trip, the ownership of the vehicle, whom they were visiting, and his relationship to the other occupants. Sanchez responded that he was from Riverside, California, that none of the occupants had ever been to Idaho, and that they were travelling to Twin Falls, Idaho, to see his aunt for a day or two. Although Sardella admitted Sanchez was "very cooperative," his suspicions were increased by many of Sanchez's statements.

First, although Sanchez produced a telephone number for his aunt, he did not have her address. Sanchez also admitted to Sardella that Avila had never been to Twin Falls before. This admission was inconsistent with Sanchez's earlier statement that Avila was driving because he was familiar with the route to Twin Falls. Furthermore, unlike the initial questioning where Sanchez appeared to speak almost no English, Sardella claims that Sanchez understood what he was saying while in the patrol car.

Somewhere between seven and nine minutes into his questioning of Sanchez, Sardella left Sanchez in the patrol car and asked Deputy Hester, who had arrived on the scene, to remain with Sanchez while he, Sardella went back to the pickup truck. Sardella decided to return to the truck for further questioning, in order to "get the facts straight." He engaged Padilla in general conversation, asking her how long she had known Avila. She responded that she had just met Avila "today," but had known Sanchez for ten or eleven years. Sardella testified that it made him "a little suspicious" to find out she had just met Avila that day. When Sardella asked Padilla further questions about their travel, he claims that she "seemed kind of confused," and stated, "I think we're going to visit some of his relatives." However, she did not know exactly which relatives they were going to visit. Sardella found it strange for these individuals to be travelling from California, without luggage, unsure of exactly whom they were visiting, and with no address of their final destination.

Sardella then asked Padilla whether there were any guns, cocaine, marijuana, etc. in the truck. Her reply to each of these questions was, "No, not that I know of." He then asked whether she had any problem with him searching the truck. Padilla allegedly responded in a confident manner, "No, none at all ... it's not my vehicle."

At this point, Sardella returned to his patrol car, and asked Sanchez whether there was illegal contraband in the vehicle. Sanchez replied that there was not, but did mention that there might be $600.00 in cash. Sardella's police report indicates that when he asked Sanchez whether there was any cocaine in the vehicle, Sanchez looked away, and with a nervous voice replied, "No, nothing like that." He also apparently avoided eye contact when asked about marijuana and money. Sardella then asked Sanchez if he minded him searching the vehicle. Sanchez's first response was, "I don't understand." Sardella explained, "Do you mind if I look and search in the vehicle," this time emphasizing the word "search." Sanchez allegedly responded, "Yeah, go ahead, if you want to."

Sardella returned to the truck and instructed Avila and Padilla to leave the vehicle and walk back to his patrol car. At approximately 6:55 a.m., Sardella began a systematic search of the vehicle and located a wrapped bundle within the center console. The bundle was later determined to be the drug methamphetamine. All three defendants were arrested, and Sanchez and Avila eventually indicted.

In his police report, Sardella noted twelve factors which gave him reasonable suspicion that the truck was being used in an illegal activity. They are as follows:

(1) Avila, more than just nervous, appeared scared. Sanchez was nervous at first.

(2) Strong masking smell of men's cologne. Bottle on rear floor.

(3) High miles on recently purchased vehicle.

(4) Registered owner not present, no ownership papers.

(5) Padilla saying pickup was her sister-in-law's and then changing story later. Padilla not knowing destination of travel or sure of reason for trip.

(6) It was mentioned Avila was along for trip because he knew the roads, but further investigation revealed all three were making trip to Idaho for first time.

(7) No luggage for such a long trip.

(8) Origin of Southern California.

(9) Padilla stated she had met driver that day, for the first time.

(10) Sanchez acting like he spoke no English, but when he felt like he was free to go he spoke good English.

(11) Sanchez could not give officer his Aunt's address in Twin Falls, Idaho.

(12) Prior experience in highway drug interdiction.

Sanchez and co-defendant Avila were indicted on December 7, 1994, for violations of 21 U.S.C. § 841(a)(1), possession with intent to distribute methamphetamine (Count I), and 18 U.S.C. § 1952(a)(3), interstate travel in aid of racketeering (Count II). Counts I and II also included violations of 18 U.S.C. § 2,...