U.S. v. Torres-Guevara, TORRES-GUEVAR

• Decision Date: 08 July 1998
• Docket Number: D,No. 97-4115,TORRES-GUEVAR,97-4115
• Citation: 147 F.3d 1261
• Parties: 98 CJ C.A.R. 3660 UNITED STATES of America, Plaintiff-Appellee, v. Yolandaefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1261

147 F.3d 1261

98 CJ C.A.R. 3660

UNITED STATES of America, Plaintiff-Appellee, v. Yolanda TORRES-GUEVARA, Defendant-Appellant.

No. 97-4115.

United States Court of Appeals Tenth Circuit.

July 8, 1998.

R. Steven Chambers, Salt Lake City, Utah, for Defendant-Appellant.

Richard D. McKelvie, Assistant United States Attorney, Salt Lake City, Utah, for Plaintiff-Appellee.

Before ANDERSON, MAGILL, ^* and KELLY, Circuit Judges.

MAGILL, Circuit Judge.

Yolanda Torres-Guevara entered a conditional guilty plea to possession of cocaine with intent to distribute. Torres-Guevara appeals the district court's order denying her motion to suppress statements and evidence obtained during her encounter with drug enforcement agents at the Salt Lake International Airport. Torres-Guevara argues that she was the subject of an unlawful seizure, in violation of the Fourth Amendment, and that the police failed to advise her of her Miranda ¹ rights before interrogating her, in violation of the Fifth Amendment. Because we find that the encounter remained consensual until she admitted possessing drugs, we affirm.

I.

On June 20, 1996, Detective Michael Judd, Sergeant Mark Whittaker, and Special Agent John Eddington, members of a Drug Enforcement Agency (DEA) Task Force, were working a narcotics interdiction detail at the airport. As members of the detail, officers Judd, Whittaker, and Eddington were responsible for meeting flights arriving from drug source cities, such as Los Angeles, California, and watching disembarking passengers for abnormal behavior indicative of drug-courier activity.

That same afternoon, Torres-Guevara arrived at the Salt Lake International Airport on a flight from Los Angeles. Officers Judd Whittaker, and Eddington watched Torres-Guevara and the other passengers disembark. Torres-Guevara exited, wearing a long, sleeveless, baggy sweatshirt over her T-shirt, and carrying only her purse. She walked quickly through the airport toward the exit, keeping her head down, avoiding eye contact, and holding her hands against her stomach. She did not stop for luggage. At all times, she "rest[ed] her hands on her stomach area [and] appeared as if she was holding something in place." Suppression Hrg. Tr. at 12 (testimony of Detective Judd).

Once outside the airport, Miguel Garcia, who had also been a passenger on Torres-Guevara's flight from Los Angeles, joined her and started a conversation. Though Garcia was a copassenger on Torres-Guevara's flight, he had disembarked before Torres-Guevara and had not walked with her through the airport. While she and Garcia talked, they walked past the taxi pickup area toward the curb of the main road, where cars pick up arriving passengers. They then proceeded to walk on the sidewalk along the curb.

Finding all of this behavior suspicious, Detective Judd approached Torres-Guevara and Garcia and, speaking English, identified himself as a police officer and showed them his DEA credentials. When Torres-Guevara and Garcia did not respond, Judd asked them, in Spanish, whether they spoke Spanish. After learning that they spoke and understood Spanish, Detective Judd conducted the conversation in Spanish.

Without blocking either Torres-Guevara or Garcia from continuing their walk along the curb, Detective Judd advised them that they were free to leave, and then asked them if he could speak to them for a minute. ² Both agreed. Detective Judd again asked whether they understood that they were not under arrest and that they were free to go. Both replied in the affirmative.

Detective Judd proceeded to ask them for identification. Each produced California identification. Special Agent Eddington joined Detective Judd at this time, and Torres-Guevara gave her identification to Eddington, while Garcia gave his identification to Judd. After returning the identifications, Judd asked to see their airline tickets. Garcia's ticket was a one-way ticket from Los Angeles. Her's was a round-trip ticket scheduled to leave Salt Lake City within two hours.

After returning the tickets, Judd asked them whether they were carrying drugs or large amounts of cash. Garcia responded "no," but she did not respond. Id. at 19. Judd then asked her whether she understood his question, but she avoided eye contact and did not respond.

Judd next asked for permission to search their persons. Garcia promptly consented. While searching Garcia, Judd again informed him that he was not under arrest and Garcia acknowledged that he understood. Judd did not find anything and thanked Garcia for consenting to the search. Garcia then started walking away, and Judd waved him on. While Garcia was leaving, Judd again asked for permission to search Torres-Guevara. When she did not respond, Judd asked her whether she understood his question. She again did not respond. Judd then told her that if she had drugs, she should turn them over to him. Sergeant Whittaker then joined officers Judd and Eddington, and, in Spanish, asked Torres-Guevara: "you have drugs, don't you[?]" Id. at 23. When she put her head down instead of answering, he asked: "don't you[?]" Id. This time she responded: "yes." Id.

After Torres-Guevara admitted having drugs, Whittaker asked: "it's under your shirt, isn't it[?]" Id. Torres-Guevara nodded her head, and Whittaker reached out with the back of his hand and touched the front of her shirt and felt something hard. A female officer was then contacted to search her, and Whittaker placed her under arrest and escorted her to the airport office. While walking to the office, and before she had been given a Miranda warning, she started to cry and said that "this was my first time." Id. at 24. After reaching the office, and still before giving her a Miranda warning, Whittaker asked her if the drugs were in her stomach area. Rather than answering, she pulled out two kilogram-size packages of cocaine from under her shirt and placed them on a table in front of her.

The government charged her in a one-count indictment for possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a) (1994). Prior to trial, she filed a motion to suppress the drugs and her incriminating statements. She argued that the drugs and her statements were obtained pursuant to an unlawful search and seizure, and also that her statements were obtained in violation of the Fifth Amendment because the officers had failed to give her a Miranda warning. The magistrate judge determined that Torres-Guevara's encounter with the three officers remained consensual until she admitted having drugs and, therefore, that she was not entitled to a Miranda warning prior to the admission. The magistrate judge also found that her statement that "this was my first time" was made without any interrogation and was also not subject to Miranda. Finally, the magistrate judge held that the drugs were obtained pursuant to a lawful search incident to arrest. The district court agreed, adopting the magistrate judge's report and recommendation. Torres-Guevara subsequently entered a guilty plea conditioned on her ability to appeal the denial of her motion to suppress. She now appeals.

II.

Torres-Guevara argues that the drugs and her incriminating statements should have been suppressed because she was the subject of an illegal search and seizure. We disagree.

When reviewing a district court's denial of a motion to suppress, we accept the district court's factual findings unless clearly erroneous, and view the evidence in the light most favorable to the government. See United States v. Glass, 128 F.3d 1398, 1405 (10th Cir.1997). However, "[w]e review de novo the district court's conclusion of law whether a seizure occurred." Id.

This court has previously

"identified three categories of police-citizen encounters: (1) consensual encounters which do not implicate the Fourth Amendment[;] (2) investigative detentions which are Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity[;] and (3) arrests, the most intrusive of Fourth Amendment seizures and reasonable only if supported by probable cause."

United States v. Shareef, 100 F.3d 1491, 1500 (10th Cir.1996) (quotations omitted). Torres-Guevara agrees that her encounter with Judd commenced as a consensual encounter. See Appellant's Br. at 10. She contends, however, that the encounter escalated to a seizure at some point in time after Garcia left and before she admitted to Whittaker that she was carrying drugs. She argues that any reasonable person subjected to Judd's repeated requests to search her, in conjunction with Whittaker's questioning, would not have felt free to leave.

An encounter is consensual if the defendant "is free to leave at any time during the encounter." United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir.1996). "A person is seized only when that person has an objective reason to believe he or she is not free to end the conversation with the officer and proceed on his or her way." Id. (emphasis added). The defendant's subjective belief that she was not free to leave is not determinative. "The correct test is whether a reasonable person in [the defendant's] position would believe [she] was not free to leave." Id. at 1499.

We review all of the circumstances surrounding an encounter to determine whether it constitutes a seizure or a consensual encounter. See United States v. Little, 18 F.3d 1499, 1503 (10th Cir.1994) (en banc) (Little I); see also Glass, 128 F.3d at 1406 (analyzing encounter "under a totality of the circumstances test"). Relevant circumstances include, but are not limited to, whether:

"[T]he encounter occurred in a confined or nonpublic space; the officers confronting the subject were armed or uniformed; more than one officer confronted the subject; the officers exhibited an intimidating or coercive demeanor; and the officers asked the subject potentially incriminating questions."

Glass, 128...