United States v. Sarli

• Decision Date: 16 January 2019
• Docket Number: No. 17-50294,17-50294
• Citation: 913 F.3d 491
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Arturo SARLI, also known as Jose B. Sanchez, also known as Billy Sarli, also known as Arturo Sarly, also known as Armadillo Sarly, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

913 F.3d 491

UNITED STATES of America, Plaintiff-Appellee

v.Arturo SARLI, also known as Jose B. Sanchez, also known as Billy Sarli, also known as Arturo Sarly, also known as Armadillo Sarly, Defendant-Appellant

No. 17-50294

United States Court of Appeals, Fifth Circuit.

FILED January 16, 2019

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, Zachary Carl Richter, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, Austin, TX, for Plaintiff-Appellee.

Philip J. Lynch, San Antonio, TX, for Defendant-Appellant.

Before HAYNES, HO, and DUNCAN, Circuit Judges.

JAMES C. HO, Circuit Judge:

Following a tip from a confidential source, Arturo Sarli was arrested and convicted for possession with intent to distribute methamphetamine. He challenges his conviction under the Fourth and Sixth Amendments. We unanimously deny Sarli's Fourth Amendment claim, on the ground that he consented to the search of his vehicle. But we are divided with respect to Sarli's claim that, due to certain statements made at trial in violation of the Confrontation Clause, he is entitled to a new trial.

During trial, both the prosecutor and a prosecution witness referred to certain out-of-court statements by a confidential source. Sarli contends these references violated the Confrontation Clause because he did not get to cross-examine the source. By a divided vote, we hold that these references were harmless.

To be sure, the confidential source placed Sarli at the scene of the crime—providing Sarli's name, identifying his vehicle, and alleging he would be transporting methamphetamine to a particular location on a particular date. But so did the officers who pursued the tip and caught Sarli red-handed. They testified in court that they personally saw Sarli at that very location, on that very day, transporting methamphetamine in that very vehicle. So any references to out-of-court statements from the confidential source were entirely redundant of the testimony of the officers who caught Sarli at the scene.

Moreover, Sarli's defense at trial wasn't that he didn't do it—it was that he didn't know what he was doing. Sarli admitted he agreed to be paid to transport a box of cat litter from a Walmart parking lot to a restaurant parking lot. He simply denied knowing that the cat litter contained methamphetamine. Naturally, the prosecution ridiculed Sarli's dubious story as implausible in the extreme (and as evidence of guilt, as our precedents permit). The officers at the scene also testified that, once they found the drugs, Sarli cried about not wanting to go to prison, and protested his wife's innocence.

In sum, the prosecution proved that Sarli knew he was carrying drugs, based not on statements from the confidential source, but on statements from Sarli himself and the various in-court witnesses who testified at trial. So any reference to the confidential source was harmless. There is no reasonable possibility that those references contributed to the conviction. We affirm.

I.

In June 2014, a confidential source told Detective Steven Contreras of the San Antonio Police Department that a man named Arturo was using a white Avalanche pickup truck to transport methamphetamine around San Antonio. About a month later, that same confidential source told Detective Contreras that Arturo would be transporting about two kilograms of methamphetamine that very day, to the parking lot of Bill Miller's restaurant in San Antonio.

Officers established surveillance and saw a white Avalanche pickup truck. They checked the license plate of the truck and found it was registered to Arturo Sarli, who had a pending municipal arrest warrant. When a marked police unit entered the parking lot, Sarli appeared nervous and drove away. Other officers, including Officer Juan Torres, followed Sarli and initiated a stop after witnessing a traffic violation. Sarli appeared shaky in the presence of the officers.

Officer Torres asked if Sarli would consent to a search of the truck. Sarli agreed. Officer Torres then waited until other officers were free to assist him, before again requesting and obtaining consent to search. Before beginning the search, officers told Sarli that he was under arrest on the outstanding warrant, handcuffed him, and placed him in the back of a police car.

Officer Torres and others then began the search. The initial search was unsuccessful. About 15 minutes after the stop, the first of two police dogs arrived to conduct a "sniff" of the truck. Neither dog alerted. Within five minutes of the second dog beginning to sniff, Detectives Contreras and Robert Tamez arrived at the scene. Soon thereafter, Detective Tamez looked inside of a box of cat litter in the back of the truck and found several small bundles that were later determined to contain methamphetamine. From beginning to end, the entire search lasted roughly 51 minutes.

Upon discovery of the drugs, Sarli began to cry. He told the officers that he was scared of going to prison. He also told them that his wife was innocent.

After he was advised of his rights, Sarli confessed that he drove to a Wal-Mart parking lot to meet an unknown man who gave him the box of cat litter—and that he agreed to be paid for transporting that box of cat litter to another unknown man he would meet at the restaurant.

Sarli was indicted for possession with intent to distribute 50 grams or more of methamphetamine under 21 U.S.C. § 841(a)(1) and 21 U.S.C. § (b)(1)(A). He moved to suppress the methamphetamine and his statements to police as the products of an unlawful search. After a suppression hearing, the magistrate judge recommended that the motion to suppress be denied. The magistrate judge found that the officers had probable cause to search Sarli's vehicle at the time of the traffic stop, but that the probable cause had dissipated by the time of Detective Tamez's search. The magistrate judge nevertheless found that Sarli had validly consented to the search, that he had not limited the scope of his consent, and that Detective Tamez's search of the cat litter box was valid.

Both parties filed objections to the magistrate judge's report. The district court agreed that the stop of Sarli's vehicle was supported by reasonable suspicion, that the outstanding warrant justified his arrest, and that the truck was subject to impoundment under police policy. It also found that the officers initially had probable cause to search the truck, but that the probable cause had dissipated by the time Detectives Contreras and Tamez arrived. However, the district court agreed that Sarli validly consented to the search, that Detective Tamez's search did not exceed the scope of his consent, and that Sarli had not objected to the continued search or tried to revoke his consent.

Sarli proceeded to trial. At trial, Detective Contreras testified that, when a marked police unit first entered the parking lot, Sarli behaved nervously and quickly drove away. Officer Torres testified that, following his traffic stop, Sarli appeared shaky. Detective Contreras presented unchallenged testimony that Sarli confessed that he agreed to be paid to deliver the package of cat litter from one person to another. Furthermore, Detective Contreras testified that the methamphetamine seized from Sarli's truck was the second largest quantity of methamphetamine he had ever handled.

When Detective Contreras was asked to describe how the investigation "came about"—namely, the tip from the confidential source—Sarli objected on Confrontation Clause grounds. The prosecutor rephrased the question, and Sarli again objected but was overruled. Detective Contreras testified that he received information from the confidential source that a "Hispanic man by the name of Arturo [was] driving a white Avalanche that's going to be delivering narcotics."

During closing arguments, Sarli's counsel argued that Sarli was unaware of the methamphetamine, and that police made various mistakes. The government stated that Sarli was not randomly stopped, that the investigation originated with the tip from the confidential source, and that the allegations in the tip were corroborated by the evidence obtained from the stop and search of Sarli's vehicle. Sarli objected to the prosecutor's reference to the confidential source but was again overruled.

The jury convicted Sarli, and he received a prison sentence of 324 months.

II.

Sarli raises two issues on appeal. First, he challenges the denial of his motion to suppress the evidence seized from Detective Tamez's search of his vehicle. Second, he challenges the denial of his objections that the two references during trial to the tip from the confidential source violated the Confrontation Clause. We address each in turn.

A.

"When reviewing a denial of a motion to suppress evidence, this Court reviews factual findings for clear error and the ultimate constitutionality of law enforcement action de novo ." United States v. Robinson , 741 F.3d 588, 594 (5th Cir.2014). A district court's denial of a motion to suppress should be upheld "if there is any reasonable view of the evidence to support it." United States v. Michelletti , 13 F.3d 838, 841 (5th Cir.1994) (en banc). This Court must "view the evidence in the light most favorable to the party that prevailed below." United States v. Pack , 612 F.3d 341, 347 (5th Cir.2010).

"The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of objective reasonableness"—what a reasonable person would have understood by the exchange between the officer and the suspect. Florida v. Jimeno , 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) (collecting cases). Officer Torres did not qualify or limit his request for Sarli's consent, and "an affirmative response to a general request is evidence of general consent to search." United States v. Garcia , 604 F.3d 186, 190 (5th Cir.2010). Where there is ambiguity regarding the scope of a...