United States v. Calvetti

Decision Date08 September 2016
Docket NumberNos. 15-1526/1558,s. 15-1526/1558
Citation836 F.3d 654
Parties United States of America, Plaintiff–Appellee, v. Sarah Ann Calvetti (15-1526); Demas Hernandez Cortez (15-1558), Defendants–Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Benton C. Martin, Federal Defender Office, Detroit, Michigan, for Appellant in 15-1526. John W. Brusstar, Detroit, Michigan, for Appellant in 15-1558. Shane N. Cralle, United States Attorney's Office, Detroit, Michigan, for Appellee. ON BRIEF: Benton C. Martin, Natasha D. Webster, Federal Defender Office, Detroit, Michigan, for Appellant in 15-1526. John W. Brusstar, Detroit, Michigan, for Appellant in 15-1558. Shane N. Cralle, United States Attorney's Office, Detroit, Michigan, for Appellee.

Before: SUHRHEINRICH, ROGERS, and GRIFFIN, Circuit Judges.

GRIFFIN

, J., delivered the opinion of the court in which ROGERS and SUHRHEINRICH, JJ., joined. SUHRHEINRICH, J. (pp. 671–72), delivered a separate concurring opinion.

OPINION

GRIFFIN

, Circuit Judge.

In this consolidated case, defendants Sarah Calvetti and Demas Cortez appeal their convictions for drug trafficking offenses. The precedentially significant issue raised is whether Calvetti's consent to search her residence falls within the ambit of the Fifth Amendment. We hold that it does not. In doing so, we join the majority of our sister circuits in concluding that consenting to a search is not an incriminating statement under the Fifth Amendment because it is not testimonial or communicative evidence. Because the remaining issues are also without merit, we affirm.

I.

On March 26, 2014, Michigan State Police Trooper Craig Ziecina was patrolling from the median of Interstate Highway I-75 when he observed a minivan driven by defendant Sarah Calvetti abruptly slow down and change lanes without signaling. The minivan merged directly in front of another vehicle, causing it to slow down, and requiring other cars to drive around it to keep pace with traffic. Trooper Ziecina also noticed that Calvetti's arms were locked in a rigid, unnatural position on the steering wheel and that she had a frozen, cold expression on her face. Thereafter, Ziecina pulled onto the highway and followed the minivan. The minivan remained in the center lane moving at or below the posted minimum speed of 55 miles per hour. After about three miles, Ziecina activated his patrol car lights for the purpose of citing Calvetti for failure to signal before changing lanes, impeding traffic, and driving below the minimum speed.

Calvetti pulled over. Trooper Ziecina then approached the minivan, asking Calvetti and her passenger, defendant Demas Cortez, for their driver's licenses, registration, and proof of insurance. Cortez produced his identification but Calvetti could not find her driver's license, explaining that she had probably left her purse at a restaurant. Thereafter, Trooper Ziecina directed Calvetti to accompany him to his patrol car while he looked up her driver's license information.

In the patrol car, Ziecina asked Calvetti questions about her travel plans. Their conversation was recorded with the initial conversation lasting approximately five minutes. Calvetti told the trooper that she (1) owned the minivan, (2) had flown to Texas two weeks earlier, (3) was moving Cortez from Texas to Michigan, and (4) had driven straight through from Texas to Michigan. Calvetti also volunteered that the day before, she had been pulled over in Mississippi at which time her minivan was searched.

After this conversation, Ziecina then left the patrol car to speak with Cortez. In doing so, the trooper noticed that there were few personal belongings inside the minivan. When Ziecina returned to the patrol car, his database check revealed that the minivan was not registered to Calvetti. Confronted with this discrepancy, Calvetti explained that she was still in the process of buying the minivan but had not completed the sale. Thereafter, in response to Ziecina's questions, Calvetti stated that she was responsible for all of the vehicle's contents, denied there was anything illegal in the van, and authorized the police to search it. At that point, the traffic stop had lasted approximately fifteen minutes.

At about this time, Michigan State Police Officer Jeffery Schrieber arrived as a back-up officer with a drug-sniffing dog. Promptly, Schrieber conducted a canine sniff of the vehicle. Although the dog showed some interest in the seams of the minivan floor, it did not alert.

Back at the patrol car, Ziecina asked Calvetti if she had ever been arrested. In response, she admitted to serving probation for a non-felony drug conviction. She also volunteered that Cortez had a felony drug charge involving fifty pounds of marijuana, had been incarcerated for eighteen years, smoked marijuana, and had been involved in a shootout. Ziecina observed that Calvetti acted very nervously throughout their conversation, did not make eye contact, was sweating and shaking, touched her face, and “search[ed] for answers” to simple questions.

Approximately thirty-five minutes into the traffic stop, the officers moved Cortez to the patrol car with Calvetti while the officers searched the minivan. Neither defendant was restrained. The car's audio recording system recorded a conversation between Calvetti and Cortez. They conferred as to whether their independent answers to Ziecina's questions matched and made observations about the drug-sniffing dog's behavior. As the search continued, Calvetti said that she was “not doing this anymore,” wondered whether the patrol car contained a recording device, and told Cortez that he would have to take the blame. Calvetti also talked to a co-conspirator on Cortez's cell phone, alerting the co-conspirator that the police were searching the minivan using a drug-sniffing dog. Calvetti then erased the co-conspirator's number from the cell phone.

During the search, Ziecina observed “discrepancies” in the minivan's design, including seats that looked as if they had been “built upward,” a vehicle floor that appeared “too thick,” and visible sheet metal on the driver's side sliding door. He suspected that someone had installed a hidden contraband trap under the minivan floor. Ziecina inserted an optical scope into an opening in the floor, revealing areas where the floor had been welded. He then removed a center portion of the floor and inserted the scope again, observing five kilogram-sized packages.

Cortez and Calvetti were then arrested. Aided by Cortez, who did not want the trap damaged, the officers opened the trap and found sixteen kilograms of cocaine. The officers then transported Calvetti and Cortez to the U.S. Drug Enforcement Administration's (DEA) field office for questioning. The duration of the stop until the time of arrest was about one hour and thirteen minutes.

At the DEA office, agents informed Cortez of his Miranda

rights, and he signed a waiver agreeing to answer questions. Cortez told agents that he took the minivan to Mexico to buy cocaine and have the trap installed. He planned to split the profits with co-conspirator Yasiel Garcia and provided the agents with Garcia's phone number. Agents later determined that this was the same number from which Calvetti received a phone call in the patrol car. Cortez agreed to help the agents with a controlled delivery but subsequently tipped off the buyer.

As they interviewed Cortez, the agents sometimes left the room to talk to Calvetti, a technique known as “whipsawing.” After the agents advised Calvetti of her rights, she signed a Miranda

form indicating that she understood her rights but did not want to answer questions. Nevertheless, the agents questioned Calvetti, explaining that they wanted her help with the investigation. The agents asked her about her travel plans, ownership of the minivan, and her residence in Dearborn Heights. Thereafter, the agents asked and obtained Calvetti's permission to use her Dearborn Heights residence to stage a controlled delivery. Calvetti then signed a consent for the search of her house. The written consent stated that she “freely consent[ed] to a search of her Dearborn Heights residence and she had “not been threatened, nor forced in any way.”

After the controlled delivery failed, the DEA and Michigan State Police searched Calvetti's residence. The residence was nearly empty, even though Calvetti had rented it for four months. The search uncovered drug packing materials, including boxes of clear plastic wrap, dryer sheets, grease, and Ziploc bags—materials similar to those that had been used to wrap the cocaine found in the minivan's hidden trap.

Subsequently, a grand jury indicted Calvetti and Cortez each on two counts: conspiracy to possess with intent to distribute and to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841

, 846, and possession with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1). In the district court, Calvetti moved to suppress her statements made to the DEA agents and the fruits of the search of her Dearborn Heights residence on the basis that the agents violated her Miranda rights. After an evidentiary hearing at which DEA Agent Jeffrey Moore testified, the district court ruled that Calvetti had implicitly waived her right to remain silent by answering Agent Moore's questions after receiving Miranda warnings. Finding no Miranda violation, the district court denied Calvetti's motion.

Calvetti and Cortez also filed a joint motion to suppress the cocaine found in the minivan. Cortez argued that the arresting officers had unconstitutionally prolonged the traffic stop without reasonable suspicion of criminal activity. Calvetti maintained that there was no probable cause to initiate the traffic stop because she was driving in compliance with Michigan law.

Regarding the joint motion to suppress, the district court held a...

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