United States v. Garcia-Garcia

• Decision Date: 29 April 2020
• Docket Number: No. 18-3071,18-3071
• Citation: 957 F.3d 887
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Adan GARCIA-GARCIA, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

957 F.3d 887

UNITED STATES of America, Plaintiff - Appellee

v.Adan GARCIA-GARCIA, Defendant - Appellant

No. 18-3071

United States Court of Appeals, Eighth Circuit.

Submitted: November 15, 2019

Filed: April 29, 2020

Martin Conboy, IV, Special Assistant U.S. Attorney, U.S. Attorney's Office, District of Nebraska, Omaha, NE, for Plaintiff - Appellee.

Adan Garcia-Garcia, Post, TX, Pro Se, Jennifer L. Gilg, Richard Haile McWilliams, Assistant Federal Public Defender, Federal Public Defender's Office, Omaha, NE, for Defendant - Appellant.

Before GRUENDER, KELLY, and ERICKSON, Circuit Judges.

GRUENDER, Circuit Judge.

Adan Garcia-Garcia entered a conditional guilty plea to one count of possession with intent to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1). Garcia now appeals his conviction, arguing that the district court¹ erred in denying his motion to suppress evidence. We affirm.

I.

On the morning of May 12, 2017, Kevin Finn, an investigator with the Nebraska State Patrol commercial narcotics interdiction unit, conducted routine surveillance inside a Greyhound bus station in Omaha, Nebraska. There, Finn noticed a suitcase sitting next to a bus, waiting to be loaded into the checked-baggage compartment. Three things about the suitcase caught Finn's attention: it was new; it emitted an odor consistent with a "masking agent," such as an air freshener, which he later testified drug traffickers use to hide the scent of narcotics from detection; and it was tagged for a trip from Denver, a location known to law enforcement as a hub for narcotics trafficking, to Indianapolis. Based on these facts, Finn suspected that the suitcase may contain illegal narcotics. He examined its luggage tag and noted that it was ticketed to an "Adam Garcia."

Finn approached Garcia, who he identified as the lone male standing without luggage in the terminal waiting to board the bus. The entirety of the encounter between Finn and Garcia was videotaped, with audio provided by a microphone. We have carefully examined this recording, as well as other exhibits, transcripts, and testimony. The facts set out below are those found by the magistrate judge and district court and are not clearly contradicted by the record.

After approaching Garcia, Finn—speaking in English—identified himself, displayed his badge, and told Garcia he was not under arrest. Finn then asked Garcia, "¿habla inglés? " Garcia indicated that he did not speak English but that he did speak Spanish. Finn, while not a fluent Spanish speaker, began to ask simple questions of Garcia in Spanish, including where he was coming from and where he was going. Garcia indicated he was traveling from Denver to Indianapolis.

Speaking in English again, Finn asked for Garcia's identification and bus ticket, which Garcia produced without expressing any difficulty in understanding him. The name on the documents was consistent with that on the suitcase Finn had observed by the bus. Viewing Garcia's boarding pass and checked-baggage ticket, Finn then asked, in Spanish, "¿uno bolsa? ", by which Finn intended to ask, "one bag?" Garcia confirmed that he had one bag. Finn then returned the documents to Garcia.

To ensure Garcia understood him, Finn began to translate his questions using a smartphone translation application. He asked Garcia if he had any drugs in his bag. Garcia replied "no." The parties agree that Finn then asked Garcia for consent to search Garcia's "bolsa ," or bag, and that Garcia consented to the search. At no point did Garcia express difficulty understanding the smartphone translation application.

After consenting to a search of his "bolsa ," Garcia led Finn outside to the bus. Once they reached the boarding area, Garcia motioned toward the passenger area of the bus, but Finn stopped him, pointed to the previously identified suitcase sitting on the ground in the checked-baggage area, and asked Garcia if it belonged to him. Finn read the luggage tag aloud, and Garcia confirmed the bag was his. Finn then asked, "¿permite? ", or "May I?" In response, Garcia put his hands up and nodded. According to Finn, based on Garcia's prior consent to search his bag, he interpreted Garcia's response as one indicating he was not "withdrawing his previously given consent." Less than thirty seconds elapsed between Finn's first request to search Garcia's bag made inside the station and his subsequent search of Garcia's suitcase beside the bus.

Finn unzipped and searched the suitcase as Garcia watched. Garcia, standing within inches of Finn, made no attempt to stop him nor did he express any opposition to the search. In a zipper lining of the bag, Finn found several wrapped bundles, which were later confirmed to contain heroin. Finn arrested Garcia, and Garcia was subsequently charged with possession with intent to distribute one kilogram or more of a mixture or substance containing a detectable amount of heroin. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(i).

Before the district court, Garcia moved to suppress all evidence stemming from the search of his suitcase on the grounds that the evidence comprised fruit of an unconstitutional search. See Wong Sun v. United States , 371 U.S. 471, 484-85, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The district court denied the motion to suppress, finding that it was reasonable under the circumstances for Finn to believe that Garcia knowingly and voluntarily consented to the search of his suitcase. Garcia then entered a conditional guilty plea, and the district court sentenced him to 46 months' imprisonment.² Garcia appeals.

II.

Garcia argues that the district court erred by not granting his motion to suppress evidence because he did not consent to a search of his suitcase. In the alternative, he argues that even if he consented, it was unreasonable to conclude that his consent was given voluntarily.

"We review the denial of a motion to suppress de novo but the underlying factual determinations for clear error, giving due weight to inferences drawn by law enforcement officials." United States v. Tamayo-Baez , 820 F.3d 308, 312 (8th Cir. 2016). This court will affirm the district court's denial of "a motion to suppress unless the decision is unsupported by substantial evidence, is based on an erroneous view of the applicable law, or in light of the entire record, we are left with a firm and definite conviction that a mistake has been made." United States v. Garcia , 888 F.3d 1004, 1008 (8th Cir. 2018).

The Fourth Amendment protects "[t]he right of the people to be secure in their ... effects, against unreasonable searches and seizures." U.S. Const. amend. IV. A consensual search is consistent with the Fourth Amendment because it is "reasonable for the police to conduct a search once they have been permitted to do so." Florida v. Jimeno , 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). Thus, a "warrantless search is valid if conducted pursuant to the knowing and voluntary consent of the person subject to a search." United States v. Cedano-Medina , 366 F.3d 682, 684 (8th Cir. 2004). "The issue turns not on the defendant's subjective state of mind, but on whether the officer reasonably believed the defendant consented." United States v. Espinoza , 885 F.3d 516, 523 (8th Cir. 2018).

A.

Garcia first contends that it was unreasonable for Finn to search his suitcase because Finn never effectively communicated a request to search the suitcase. According to Garcia, Finn's question, "¿permite? ", did not convey a request to search, and Finn could not rely on Garcia's previous consent to a search of his "bolsa " because a reasonable Spanish speaker would understand the term to refer to a backpack, not a suitcase. Thus, he only consented to a search of his backpack, which he was attempting to retrieve from the bus when Finn began searching his suitcase.

Consent-to-search cases involving translated requests present a threshold question of comprehension. United States v. Gallardo , 495 F.3d 982, 988 (8th Cir. 2007). We have previously suggested that a reasonable officer would not believe that a suspect consented where there is a clear lack of comprehension by the listener. See Cedano-Medina , 366 F.3d at 686-87. This is because a reasonable officer would only believe a suspect consented if he believed the suspect understood the request. See Jimeno , 500 U.S. at 251, 111 S.Ct. 1801 (noting that we measure reasonableness in this context by determining what "the typical reasonable person [would] have understood by the exchange"). Therefore, we must determine if "it was reasonable to believe that [Garcia] understood what [Finn] was asking and gave him permission to search the [suitcase]." Cedano-Medina , 366 F.3d at 685.

In the context of an imperfect translation, we look to indicators that would give a reasonable officer confidence that the suspect comprehended the request. See, e.g. , Gallardo , 495 F.3d at 988 ; United States v. Leiva , 821 F.3d 808, 818-19 (7th Cir. 2016). These include whether the "context of the conversation" made the officer's meaning reasonably apparent, Gallardo , 495 F.3d at 988 ; whether the suspect responded in appropriate ways suggesting comprehension, see United States v. Guerrero , 374 F.3d 584, 588 (8th Cir. 2004) ; and whether the officer relied on a translation produced by a reliable source such as a translator, United States v. Sanchez , 32 F.3d 1330, 1333-35 (8th Cir. 1994), or an approved foreign-language consent form, Cedano-Medina , 366 F.3d at 687. As elsewhere in the Fourth Amendment context, no factor is dispositive; we instead analyze reasonableness based on the totality of the circumstances. United States v. Drayton , 536 U.S. 194, 206-07, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). We review for clear error the factual determination that a reasonable officer would believe the suspect comprehended and consented to the request. See Garcia , 888 F.3d at 1009 ; United States v. Mendoza , 677 F.3d 822, 829 (8th Cir. 2012).

With these...