U.S. v. Zapata, 92-2183

• Decision Date: 23 June 1993
• Docket Number: No. 92-2183,92-2183
• Citation: 997 F.2d 751
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jorge ZAPATA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 751

997 F.2d 751

UNITED STATES of America, Plaintiff-Appellant, v. Jorge ZAPATA, Defendant-Appellee.

No. 92-2183.

United States Court of Appeals, Tenth Circuit.

June 23, 1993.

Sidney M. Glazer, Atty., U.S. Dept. of Justice, Washington, DC (Don J. Svet, U.S. Atty., and Tara Neda, Asst. U.S. Atty., D. of N.M., Albuquerque, NM, with him on the brief), for plaintiff-appellant.

Joseph W. Gandert, Asst. Federal Public Defender, Albuquerque, NM, for defendant-appellee.

Before ANDERSON, HOLLOWAY, and TACHA, Circuit Judges.

STEPHEN E. ANDERSON, Circuit Judge.

The government appeals from an order of the district court suppressing evidence--cocaine--seized pursuant to a search of defendant Jorge Zapata's luggage on a train in Albuquerque, New Mexico, as well as statements made following his arrest. Because we hold that the encounter between the officers and Mr. Zapata was consensual, and did not constitute a seizure in violation of the Fourth Amendment, and because we hold that Mr. Zapata voluntarily consented to the search of his luggage, we reverse the district court's grant of the motion to suppress.

BACKGROUND

Certain basic facts are undisputed. Drug Enforcement Administration Special Agent Kevin Small, dressed in civilian clothes, boarded an Amtrak train on May 27, 1992, while the train was stopped briefly in Albuquerque, en route from Los Angeles to Chicago. Accompanied by Albuquerque Police Department Detective Sam Candelaria, who was under assignment to the Drug Enforcement Administration Task Force, Agent Small walked through the coach section of the train where Mr. Zapata was sitting with his common-law wife, Brenda Contreras, and their young son. Agent Small testified at the suppression hearing that there were approximately 45 to 55 people in the coach car at the time. The agent further testified that he decided to question Mr. Zapata because he observed two new duffle bags in the rack above Mr. Zapata's seat and "of all the drug cases we've done on board the train about 75 percent of them have used new luggage." R.Vol. II at 11.

While Detective Candelaria "stood back against one of the windows watching the platform area," Agent Small turned on a tape recorder in a small fanny pack he wore around his waist and approached Mr. Zapata from behind. Id. Agent Small showed Mr. Zapata his DEA badge, and proceeded to ask him a series of questions. ¹ The agent stated that he knelt down in the aisle next to Mr. Zapata's seat while he questioned him, and that his gun remained inside his fanny pack and was not visible. Mr. Zapata testified that Agent Small "was standing in front of me" throughout the entire questioning. R.Vol. II at 41. When the agent asked Mr. Zapata if he could search his bags, Mr. Zapata stood up, got the bags down and opened them for Agent Small. Inside the bags Agent Small found several kilograms of cocaine.

The district court found that Agent Small "block[ed] [Mr. Zapata's] egress from the seat" while he asked him questions which "were rapid-fire, direct, accusatory and potentially incriminating." Order at 1-2, R.Vol. I tab 16. The district court also found, and no one disputes this finding, that Mr. Zapata was never told that he could refuse to answer Agent Small's questions or that he could otherwise refuse to comply with the agent's requests. The district court further found that Mr. Zapata was "born and raised in Mexico, and is a Mexican citizen. He had about 11 years of education in Mexico. He has resided in the United States for 3 to 4 years, and is able to communicate in English to a certain degree. However, he speaks with a heavy accent, and his understanding and command of the English language are somewhat deficient." Id. at 2-3.

Mr. Zapata testified at the suppression hearing that he got "scared" and "very nervous" when Agent Small identified himself as a police officer. R.Vol. II at 40. He testified that he was scared and nervous because he "knew what was in the bags." Id. When asked why he agreed to talk to the agent, Mr. Zapata testified, "I didn't know that I didn't have to talk to him and I thought I had to do it." Id. ² When asked if he felt "that [he] could just leave" while Agent Small was questioning him, Mr. Zapata testified that he did not "[b]ecause I didn't want to leave my family there and I saw the two individuals there, one in front and one in the back." Id. at 41.

Mr. Zapata was indicted for possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). He filed a motion to suppress all evidence seized pursuant to the search of his bags as well as all statements made following his arrest, on the grounds that "[t]he initial encounter between Jorge Zapata and Agent Small was an involuntary and nonconsensual seizure" in violation of the Fourth Amendment. Motion to Suppress at 4, R.Vol. I tab 6.

The district court held an evidentiary hearing at which Agent Small and Mr. Zapata testified, and the court listened to the tape recording of the encounter between the two. It granted Mr. Zapata's motion to suppress, finding as follows:

10. Because of his upbringing in Mexico, Defendant believed that he must acquiesce to all police requests because failure to do so could result in dire consequences, including physical harm.

11. A reasonable person in these circumstances with Defendant's background would not have felt free to ignore Agent Small's presence, to decline Agent Small's requests, or to otherwise terminate the encounter and go about his business. When Agent Small began to question Defendant, the Defendant reasonably believed that he was not free to leave or to refuse to answer questions. Defendant reasonably believed he was required to produce his ticket and identification and to allow the agent to search his luggage.

12. Under the circumstances of this case, Defendant reasonably felt intimidated by the presence of the officers, and reasonably interpreted Agent Small's "requests" as commands or demands.

13. The government has not proven that Defendant's consent to the police questioning and search was given freely and voluntarily. The questioning of Defendant was not a voluntary, consensual encounter.

14. Defendant was seized for purposes of the Fourth Amendment when Agent Small began asking Defendant questions. Agent Small lacked reasonable articulable suspicion that Defendant had been, was, or was about to be engaged in criminal activity to justify this seizure. The subsequent search and statements made by Defendant were fruits of the initial illegal detention.

Order at 3-4, R.Vol. I tab 16. The government appeals that order, arguing that the district court erred in concluding that Mr. Zapata was seized in violation of the Fourth Amendment and that the subsequent search and statements must be suppressed.

DISCUSSION

When we review an order granting a motion to suppress, "we accept the trial court's factual findings unless clearly erroneous, and we view the evidence in the light most favorable to the district court's finding." United States v. Swepston, 987 F.2d 1510, 1513 (10th Cir.1993) (citing United States v. Waupekenay, 973 F.2d 1533, 1535 (10th Cir.1992) and United States v. Preciado, 966 F.2d 596, 597 (10th Cir.1992)). "[T]he ultimate determination of Fourth Amendment reasonableness is a conclusion of law which we review de novo." United States v. Allen, 986 F.2d 1354, 1356 (10th Cir.1993); United States v. Laboy, 979 F.2d 795, 798 (10th Cir.1992) ("the ultimate determination of the reasonableness of any search or seizure is a question of law reviewed de novo by this court"); United States v. Bloom, 975 F.2d 1447, 1450 (10th Cir.1992) (" 'the ultimate issue of whether a seizure occurred is a question of law.' ") (quoting United States v. Ward, 961 F.2d 1526, 1534 (10th Cir.1992)). "If the district court's factual findings are based on an erroneous interpretation of law, a remand is appropriate unless the record is such that only one resolution of the factual issue is possible." United States v. Nicholson, 983 F.2d 983, 987 (10th Cir.1993).

We turn first to the question of whether the encounter on the Amtrak train between Agent Small and Mr. Zapata was a purely consensual encounter or an investigative detention implicating the Fourth Amendment.

I. Seizure or Consensual Encounter

"[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions." Florida v. Bostick, --- U.S. ----, ----, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). " '[O]nly when the officer, by means of physical force or show of authority, ... in some way restrain[s] the liberty of a citizen may we conclude that a "seizure" has occurred.' " Id. (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968)); see also Laboy, 979 F.2d at 798. Thus, police may freely ask questions of any individual they choose, including requesting to see identification and requesting consent to search the individual's luggage, "so long as the officers do not convey a message that compliance with their requests is required." Bostick, --- U.S. at ----, 111 S.Ct. at 2388; see also Bloom, 975 F.2d at 1451-52.

The Supreme Court in Bostick articulated the test to be applied to any police encounter, whether occurring on "trains, planes, [or] city streets":

[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.

Bostick, --- U.S. at ---- - ----, 111 S.Ct. at 2388-89. ³ Applying that "free to decline officers' requests or otherwise terminate the encounter" test to the facts of this case, we hold that no seizure occurred when Agent Small questioned Mr. Zapata.

We consider a...