U.S. v. Vasquez

• Decision Date: 03 October 1988
• Docket Number: 86-5309,Nos. 86-5294,s. 86-5294
• Citation: 858 F.2d 1387
• Parties: 26 Fed. R. Evid. Serv. 1159 UNITED STATES of America, Plaintiff-Appellee, v. Jose Rodrigo VASQUEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Gustavo Arias GOMEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1387

858 F.2d 1387

26 Fed. R. Evid. Serv. 1159

UNITED STATES of America, Plaintiff-Appellee, v. Jose Rodrigo VASQUEZ, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Gustavo Arias GOMEZ, Defendant-Appellant.

Nos. 86-5294, 86-5309.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 7, 1988.

Decided Oct. 3, 1988.

Joseph F. Walsh, Los Angeles, Cal., for defendant-appellant Vasquez.

Paul Anthony Stabile, Pasadena, Cal., for defendant-appellant Gomez.

Enrique Romero, Asst. U.S. Atty., Crim. Div., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before PREGERSON and THOMPSON, Circuit Judges, and MUECKE, District Judge. ^*

DAVID R. THOMPSON, Circuit Judge:

Jose Rodrigo Vasquez was arrested when he delivered to an undercover police officer five one-kilogram packages of cocaine contained in a red gym bag. After his arrest, the police conducted a warrantless search of his car, and of several items found in the car. The police asked Vasquez if he had any more cocaine at his apartment. Vasquez replied that he did not know what the police were talking about and that they could search his apartment.

At Vasquez's apartment, which was being used by Gustavo Arias Gomez at the time, the police conducted another search during which they seized in excess of twenty-five kilograms of cocaine and $85,000 in cash found hidden in the apartment. They also seized miscellaneous narcotics paraphernalia and photographs showing Vasquez counting large sums of money.

During their trial, Vasquez and Gomez moved to suppress the evidence found in the car and the apartment. The government objected to the untimely suppression motion, but the court decided to hear argument on the motion after the jury had left to deliberate. At the hearing, the court concluded that Vasquez had given voluntary consent to the search of the apartment, that the searches of the car and its contents were justified under the "automobile exception" to the warrant requirement, and that the evidence should not be suppressed. Vasquez and Gomez appeal this ruling.

In addition, Vasquez contends that he should not have been cross-examined on the contents of his apartment because his direct testimony only described the events surrounding his sale of the five kilograms of cocaine to the undercover agent. He also asserts that the district court abused its discretion when it allowed an expert witness to testify that his fingerprint was found on one of the packages of cocaine discovered in his apartment.

Gomez and Vasquez argue that the court should have suppressed a photograph of Gomez discovered in an unsealed envelope in a briefcase in Vasquez's car. Gomez also argues there was insufficient evidence to convict him of possession of the five kilograms of cocaine contained in the red gym bag.

We have jurisdiction of these appeals under 28 U.S.C. Sec. 1291, and we affirm.

ANALYSIS

A. Waiver of Motion to Suppress

The first issue we consider is whether Vasquez and Gomez waived their right to seek the suppression of evidence that they contend the police seized in violation of the fourth amendment. In arguing for waiver, the government relies on Federal Rule of Criminal Procedure 12(b), which provides that a motion to suppress evidence must be made before trial, see Fed.R.Crim.P. 12(b)(3), and that the failure to timely move for suppression waives the right to later assert the illegality of the search or seizure. Id. 12(f). The government also relies on three cases in which we held that a court does not abuse its discretion when it declines to hear an untimely suppression motion. E.g., United States v. Davis, 663 F.2d 824, 831 (9th Cir.1981); United States v. Wood, 550 F.2d 435, 439 (9th Cir.1976); United States v. Barclift, 514 F.2d 1073, 1075 (9th Cir.1975), cert. denied, 423 U.S. 842, 96 S.Ct. 76, 46 L.Ed.2d 63 (1975).

Here the court did not decline to hear the untimely motion. The district court heard the motion, listened to oral argument and considered the parties' briefs on the suppression issues. We agree with the Fifth and Eleventh Circuits that when the district court considers and resolves an untimely suppression motion on its merits, we may review that decision on appeal. E.g., United States v. Crosby, 739 F.2d 1542, 1548 (11th Cir.), cert. denied, 469 U.S. 1076, 105 S.Ct. 576, 83 L.Ed.2d 515 (1984); United States v. Contreras, 667 F.2d 976, 978 n. 2 (11th Cir.), cert. denied, 459 U.S. 849, 103 S.Ct. 109, 74 L.Ed.2d 97 (1982); United States v. Marx, 635 F.2d 436, 440-41 (5th Cir. Unit B Jan. 1981); United States v. Hicks, 524 F.2d 1001, 1003 (5th Cir.1975), cert. denied, 424 U.S. 946, 96 S.Ct. 1417, 47 L.Ed.2d 353 (1976); see also 3 C. Wright, Federal Practice and Procedure: Criminal 2d Sec. 673, at 769 & n. 57 (1982) (collecting cases in support of statement that "if the district court entertains the belated [suppression] motion and decides it on its merits, it cannot be argued on appeal that it had been waived"). When a court rules on the merits of an untimely suppression motion, it implicitly concludes that there is adequate cause to grant relief from a waiver of the right to seek suppression. See Fed.R.Crim.P. 12(f).

B. Vasquez's Appeal

1. Vasquez Voluntarily Consented to the Search of His Apartment

Vasquez contends he did not voluntarily consent to the search of his apartment. The voluntariness of consent is a question of fact to be determined from the totality of all the circumstances. United States v. Gomez, 846 F.2d 557, 559 (9th Cir.1988) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973)). We have said that the court should consider "those [facts] that, in the district court's judgment, in fact influenced the defendant's decision to consent to the search." Id. at 560. Because the "district judge has substantial latitude in making such determinations[,] we review these findings only for clear error." Id. Furthermore, we view the evidence in the light most favorable to the fact-finder's decision. United States v. Castillo, 844 F.2d 1379, 1387 (9th Cir.1988) (citation omitted).

In assessing the voluntariness of consent, we have identified several factors the fact-finder should consider, although none is dispositive. Id. at 1387. We have found the following factors relevant to whether consent is voluntary:

(1) whether the defendant was in custody; (2) whether the arresting officers have their guns drawn; (3) whether Miranda warnings have been given; (4) whether the defendant was told he has a right not to consent; and (5) whether the defendant was told a search warrant could be obtained.

Id. at 1387-88 (citations omitted).

Viewing the evidence in the light most favorable to the fact-finder's decision, the following facts emerge: After arresting Vasquez, Officer Moreno conducted a pat-down search and then advised him of his Miranda -rights. Although Vasquez was in handcuffs at the time, none of the officers had their weapons drawn. Speaking in Spanish, Officer Moreno asked Vasquez whether he had any more cocaine in his apartment. Vasquez responded that he did not know what Officer Moreno was talking about and that Officer Moreno could search Vasquez's apartment to see for himself. Officer Moreno then explained that Vasquez did not have to consent to the search of his apartment. Moreno further explained that if Vasquez did not consent, the police would be required to seek a warrant before they could search his apartment. Officer Moreno asked Vasquez whether he understood and Vasquez said that he did and that the police could go ahead and search the apartment. Officer Moreno again explained to Vasquez that he did not have to consent and that the police would obtain a warrant if he did not. Vasquez replied that he understood and the police could search his apartment. Under these facts, the scrupulous attention by the police to the niceties of obtaining valid consent to a search, coupled with Vasquez's repeated assertions that he understood he did not have to consent and his repeated consent to the police officer's request to search, support the district court's finding of voluntary consent. ¹

Vasquez relies on Channel v. United States, 285 F.2d 217 (9th Cir.1960), in arguing that his consent was not voluntary. Vasquez points out that in Channel, in responding to a question by a government agent whether Channel had any more drugs in his apartment, Channel stated: "No, my apartment is clean. There is nothing there. You can go out and search the place." Id. at 219. We held that Channel had not voluntarily consented to the search of his apartment. We stated his words "were not to give consent at all but only evidenced false bravado." Id. at 220. Vasquez contends that, like Channel, his purported words of consent were only false bravado.

Vasquez's reliance on Channel is misplaced. We decided Channel before the Supreme Court held in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), that the voluntariness of consent is to be determined from the totality of the circumstances. Id. at 227. Applying this test to Channel, it is clear that Channel's consent was not voluntary. In Channel, government agents "made a display of firearms," handcuffed Channel and took him to their office where he was interrogated for thirty to forty-five minutes. Channel, 285 F.2d at 219. Channel remained handcuffed throughout his interrogation. Id. He was not told that the agents intended to search his apartment. Id. at 220. He also was not told that he did not have to consent to the search or that the agents would have to obtain a warrant if he refused to consent. Id. These circumstances are far different from the circumstances of the present case under which Vasquez voluntarily consented to the search of his apartment. Channel, therefore, is inapposite.

2. The Car Search Was...