U.S. v. Urbina, 04-3079.
| Decision Date | 09 December 2005 |
| Docket Number | No. 04-3142.,No. 04-3079.,04-3079.,04-3142. |
| Citation | 431 F.3d 305 |
| Parties | UNITED STATES of America, Appellee, v. Ramiro R. Urbina, Appellant. United States of America, Appellant, v. Ramiro R. Urbina, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Robert R. Barton, argued, Overland Park, KS, for appellant.
Assistant U.S. Atty., David P. Rush, Springfield, MO (Randall D. Eggert, Asst. U.S. Atty., on the brief), for appellee.
Before ARNOLD, McMILLIAN, and COLLOTON, Circuit Judges.
Following a jury trial, Ramiro Urbina was convicted of one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841. The jury also found that the government proved two counts of criminal forfeiture, pursuant to 21 U.S.C. § 853. The district court sentenced Urbina to 300 months' imprisonment. He appeals his conviction and sentence, and the government cross-appeals the sentence. We affirm the conviction and remand the case for resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
Urbina's first point on appeal challenges the district court's denial of his motion to suppress evidence. We relate the facts as found by the district court, adopting the report and recommendation of a magistrate judge. On April 1, 2003, at approximately 10 a.m., Missouri State Highway Patrolman Corporal Thomas Hall observed a gold pickup truck pulling a horse trailer on I-44 in Lawrence County, Missouri. Hall stopped the truck after observing the vehicle cross the center line of traffic on at least four occasions. Corporal Gary Braden, also of the Highway Patrol, arrived immediately after the stop. Hall asked Urbina, the driver, if the wind was blowing his vehicle over the line, and Urbina replied, "It may be, but I'm tired too." Urbina told the officer that he was en route to Dayton, Ohio, to pick up a horse for a friend.
Hall noticed an auxiliary gas tank in the back of the truck. He asked Urbina the purpose of the tank, and Urbina responded that he used it as an extra tank and hooked it up to the battery. Hall saw no wiring connecting the tank to the battery.
Urbina was unable to produce a driver's license, but did offer Hall an Oregon identification card. Hall asked Urbina to accompany him back to the patrol car, where he determined that the Oregon driver's license was suspended. While in the patrol car, Urbina said that the truck belonged to his brother-in-law, but that he, Urbina, owned the trailer and had purchased it specifically for this trip. Urbina acknowledged that he did not own any horses, and then said, contradicting his earlier explanation, that he was going to Ohio to purchase an automobile. Hall asked Urbina if there was anything illegal in the truck, and Urbina said no. Hall then asked for consent to search the truck, and Urbina agreed. A drug dog was in the back seat of the patrol car during the stop, but it was never used to investigate the vehicle, because Urbina consented to the search.
After examining the horse trailer and the cab of the truck without finding contraband, Hall and Braden examined the bed of the truck. Around the auxiliary tank, they observed scratch marks that appeared fresh. Hall also testified that the tank was not fastened to the bed of the truck. The officers tipped the tank and heard not the sloshing sound one might expect from gasoline, but rather a dull thud, as if nonmetallic objects were moving around inside. Hall noticed that on the bottom of the tank, there was fresh paint and putty surrounding a portion of the tank that had been cut out and then reattached. Hall stated that in his experience, there normally is no opening on the bottom of an auxiliary gas tank.
Both troopers had been involved in stops in which narcotics had been hidden in auxiliary gas tanks, and their suspicions were raised by what they had seen of the tank on Urbina's vehicle. Braden then kicked in the access panel on the tank with his boot and observed six bundles in the tank. He pried open the tank further with a screwdriver and discovered that the bundles contained cocaine.
Urbina first argues that he did not voluntarily consent to a search. The district court recognized that Urbina had raised this issue in his motion to suppress, and addressed the issue, noting that it was undisputed that Urbina answered "yes" when asked for consent and finding no evidence of any coercion by the troopers or the presence of the drug dog. We thus reject the government's contention that the issue is not preserved, and we review the district court's determination that consent was voluntary for clear error. United States v. Poulack, 236 F.3d 932, 936 (8th Cir.2001).
To determine if consent is freely and voluntarily given, we consider the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Characteristics of a defendant relevant to the voluntariness of his consent include (1) his age, (2) his general intelligence and education, (3) whether he was intoxicated or under the influence of drugs when he consented, (4) whether he consented after being informed of his right to withhold consent or of his Miranda rights, and (5) whether, because he had been previously arrested, he was aware of the protections afforded to suspected criminals by the legal system. United States v. Chaidez, 906 F.2d 377, 381 (8th Cir.1990). Urbina also points to the factors we have cited for use in examining the environment in which consent was given: whether the defendant (1) was detained and questioned for a long or short time, (2) was threatened, physically intimidated, or punished by police, (3) relied upon promises or misrepresentations made by the police, (4) was in custody or under arrest when the consent was given, (5) was in a public or secluded place, or (6) either objected to the search or stood by silently while the search occurred. Id.
Urbina argues that the circumstances surrounding his consent undermine its voluntariness. He claims that Hall did not advise him of his right not to consent, that he was taken to a relatively secluded place (the patrol car) for no reason, that a German Shepherd was in the back seat of the patrol car, that Hall told Urbina neither that he suspected he was a drug courier nor why he wanted to search the vehicle, that Urbina was not requested to aid the search, that Urbina did not assist the search, that Urbina was not told that he could revoke his consent at any time, and that there was no visible evidence of contraband.
We conclude that adequate evidence supports the district court's conclusion that Urbina's consent was voluntarily given, and we see no convincing evidence to the contrary. The interior of a police patrol car on the shoulder of a public highway during the day is not a secluded location. Chaidez, 906 F.2d at 382; see also United States v. Mancias, 350 F.3d 800, 806 (8th Cir.2003). The district court specifically found that there was no evidence of any coercion by the presence of the dog, and we do not believe that the mere presence of a dog in the back seat of the patrol car requires a finding that Urbina was coerced into giving consent. See United States v. Malone, 886 F.2d 1162, 1165-66 (9th Cir.1989). The lack of visible evidence of contraband and Hall's failure to inform Urbina of his suspicions are not relevant to determining whether the totality of the circumstances indicates that consent was voluntary.
Even if Urbina was unaware of his right to withhold or revoke consent, this is another case in which "other considerations set out in Chaidez overwhelmingly favor the district court's finding" that Urbina's consent was voluntary. United States v. Thompson, 408 F.3d 994, 996 (8th Cir.2005). Urbina is an adult with a lengthy criminal record. The traffic stop had lasted only a few minutes before Hall asked Urbina for consent to search. There is no evidence that the officer treated Urbina in anything other than a professional manner. The district court's finding that Urbina's consent was voluntary was not clearly erroneous.
Urbina also argues that the evidence should have been suppressed because the patrolmen exceeded the scope of his consent when they used force to open his auxiliary gas tank. We measure the scope of consent under the Fourth Amendment using a standard of objective reasonableness, considering what an objectively reasonable person would have understood the consent to include. United States v. Fleck, 413 F.3d 883, 892 (8th Cir.2005). We believe a reasonable person would have understood Urbina's consent to search the vehicle to include consent to examine and open unlocked containers within the vehicle, see Florida v. Jimeno, 500 U.S. 248, 251-52, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991), but Urbina suggests that the officers' efforts to access the interior of the gas tank went beyond opening a container to the point of destroying it, and that the latter is outside the scope of an objectively reasonable interpretation of his consent. See United States v. Alverez, 235 F.3d 1086, 1088-89 (8th Cir.2000). We need not resolve this question, because by the time the officers removed the panel, they had probable cause to search the tank. The sound of objects moving in the tank gave the officers probable cause to believe that the gas tank contained contraband, and probable cause is sufficient to justify the warrantless search of an automobile or a container therein, including the destruction, if necessary, of the container. Id. at 1089.
Urbina next argues that the district court erred by not granting a mistrial when the government, in its opening statement, made dramatic reference to Urbina's flight from police in a stolen car following his arrest. We recognize the trial court's broad discretion in controlling the direction of opening statements and closing arguments, and we will...
To continue reading
Request your trial
- United States v. Streb
-
United States v. Castellanos
...619 (1991). It cannot seriously be argued that a vehicle gas tank is anything other than a closed container. Cf. United States v. Urbina, 431 F.3d 305, 310 (8th Cir.2005) (“The sound of objects moving in the tank gave the officers probable cause to believe that the gas tank contained contra......
-
U.S. v. Wilcox
...(8th Cir.1999) (internal quotations omitted). We review the district court's rulings for abuse of discretion. United States v. Urbina, 431 F.3d 305, 310 (8th Cir.2005). During his closing argument, Wilcox's counsel rhetorically asked the jury, "Did you hear medical evidence in this case? Wa......
-
U.S. v. Shepard
...trial. "`We review the district court's evidentiary rulings for abuse of discretion.'" Katz, 445 F.3d at 1031-32 (quoting Urbina, 431 F.3d 305, 311 (8th Cir.2005)). The article in question referred to a state homicide trial in which Holmes was a witness and was cooperating with the state. (......