Opinion
Case No. 04-40088-01-RDR.
December 14, 2004
MEMORANDUM AND ORDER
This case is now before the court upon defendant's pretrial motions. Defendant is charged with possession with intent to distribute methamphetamine. This case arises from a vehicle search which followed a traffic stop for speeding. The hearing upon defendant's motions focused upon defendant's motion to suppress.
MOTION TO SUPPRESS
The motion to suppress asserts that defendant did not validly consent to the search of his vehicle because he is Spanish-speaking and did not understand what was being requested. The government contends that there was a valid consent to search and that defendant does not have "standing" to object to the search.
At the hearing, the court heard testimony from four witnesses. The first witness was the arresting officer, Corey Doudican, of the Lyon County Sheriff's Office. He testified that he stopped defendant for speeding while he was going north on I-35 near Emporia, Kansas. Defendant was driving a Jeep Cherokee. Doudican stated that while defendant had a heavy accent, he had no difficulty speaking with defendant and that defendant was very cooperative. Doudican testified that when he asked for defendant's driver's license, defendant produced the license and an insurance document immediately without demonstrating a hint of confusion. Doudican asked defendant where defendant was from and where he was going. Defendant responded that he was from Dallas and that he was going to Nebraska to visit friends. Again, according to Doudican, defendant had no difficulty with these questions. Doudican learned that defendant did not own the Jeep Cherokee, but it was not reported as stolen.
Doudican gave defendant a warning ticket for speeding. He told defendant to drive safely and that he was free to go. Then, Doudican began to walk back to his patrol car. He turned around, however, and reapproached defendant's vehicle. He told defendant that there was a problem with illegal guns, knives and drugs, such as marijuana, methamphetamine, heroin and cocaine, being transported up and down I-35. At that point, defendant conveyed for the first time that he was having difficulty understanding Doudican. Doudican asked to search defendant's vehicle.
Doudican stated that when he asked for consent to search, defendant nodded, said "yes" and opened the car door. Doudican asked defendant to wait in front of the vehicle while the search was conducted. Doudican may have gestured in the direction he was asking defendant to go. Defendant complied. After finding contraband in the vehicle, Doudican proceeded to arrest and handcuff defendant. When Doudican began to read the Miranda warning to defendant, defendant told him, "No English."
Doudican testified that he knows very little Spanish and did not attempt to use Spanish when speaking with defendant. He stated that defendant was interviewed with the help of a translator the day after defendant's arrest.
Defendant testified that he was born in Mexico and came to the United States in 1993 when he was 15 or 16 years old. He testified that he did not progress beyond the third grade in school even though he attended school until he was 12 or 13 years old. He stated that he has some difficulty reading and writing Spanish and that he has not worked to learn English while in the United States. He stated that he only knows a few words and phrases in English.
After entering the United States, defendant first lived in California and then traveled to Texas, apparently by airplane, in 1995. He stated that he did not find it necessary to learn English while living in either state. He works in the construction business in Texas. He is married and has three children. He and his wife own a house. His wife speaks Spanish. She is a waitress and speaks more English than defendant. Defendant's oldest child is six and is just starting school. Defendant has been able to live comfortably without learning English.
Defendant testified that his approach when stopped by police officers is to cooperate with whatever they say. He knew that if a police officer stopped him the officer would ask for his license. He has received a traffic ticket in the past and understands the word "ticket." He said he understood the question, "Where are you from?" He said he understood the question, "Where are you going?" and that he replied "Nebraska." Defendant stated that he did not understand when Doudican told him he was free to leave, otherwise he would have left. He said that he exited the car because Doudican made a hand gesture for him to exit the car and that he understands the phrase "come on." Defendant knows English words like "hammer" and other words connected with the construction business. Defendant also stated that Doudican used the Spanish words "mota" for marijuana and "coca" for cocaine. Defendant said that he did not ask any questions until after he was arrested. He directed those questions to the officer who transported him from the site of the arrest.
Defendant testified that he had never been north of Dallas and yet he did not need a map. He wasn't sure when he would arrive in Nebraska or where to go in Nebraska. He was relying on someone to call him when he was there. A cell phone was seized from defendant during the investigation.
Defendant stated that he had been arrested on an immigration matter previously.
John Floyd, an investigator for defendant's attorney, testified that he has spoken with defendant and has the impression that defendant does not understand English well enough to proceed far without an interpreter. He said that defendant understands certain English words and short sentences. Floyd traveled to Dallas to investigate defendant's living environment. He stated that it appeared to be a completely Spanish-speaking home and that one could work, shop and attend church easily in that area without knowing English. He used an interpreter to conduct his investigation in Dallas.
Floyd also stated that when he interviewed deputy Doudican, he was told that Doudican used a couple of Spanish words for "license" and "guns" during the traffic stop in this case. Floyd further commented that he thought defendant knew the key issue in this hearing was defendant's ability to understand English.
Mike Mahler was the interpreter who worked with Floyd. He is a certified federal court interpreter and has been a professor of Spanish. He also testified in this matter.
Mahler is from the Dallas area and testified that it is very common for persons to live in Dallas and speak nothing but Spanish. He said that at any construction site, the majority of workers are Spanish-speaking. Mahler testified that he has spent time with defendant and reviewed defendant's writing. He said defendant's writing corroborates defendant's lack of education. He said it is possible for a person such as defendant to learn certain words and phrases in English without understanding normal sentences in English. He testified that many Spanish-speaking persons will keep quiet and acquiesce rather than say they don't speak English so they won't look foolish.
Mahler said that it is difficult for Spanish-speaking persons to distinguish requests from commands even if they know some English words and phrases. He said he tried to test defendant's command of English and was convinced that defendant was not hiding his knowledge of English. He concluded that defendant understands a number of single words and basic commands, but that defendant does not know full sentences and cannot construct a full sentence in English. He testified that it would be consistent with his evaluation of defendant's understanding of English if defendant did not comprehend Doudican's request to search his vehicle.
Legal standards Standing. This topic was addressed in U.S. v. Valdez Hocker, 333 F.3d 1206, 1208-09 (10th Cir. 2003):
Standing inquiries . . . "turn on the classic Fourth Amendment test: whether the individual manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as objectively reasonable." United States v. Allen, 235 F.3d 482, 489 (10th Cir. 2000) (quotation omitted).
To establish standing to challenge a car search, the defendant bears the burden of showing that he had a "legitimate possessory interest in or [a] lawful control over the car." Id. (quotation omitted) (alteration in original). Because the focus of the inquiry is on reasonable expectations, however, a defendant need not submit legal documentation showing a chain of lawful custody from the registered owner to himself. United States v. Rubio-Rivera, 917 F.2d 1271, 1275 (10th Cir. 1990). In resolving standing issues of this type, we consider important, but not determinative, the following factors: "(1) whether the defendant asserted ownership over the items seized from the vehicle; (2) whether the defendant testified to his expectation of privacy at the suppression hearing; and (3) whether the defendant presented any testimony at the suppression hearing that he had a legitimate possessory interest in the vehicle." Allen, 235 F.3d at 489.
. . . .
Where the proponent of a motion to suppress is the car's driver but not the registered owner, mere possession of the car and its keys is not sufficient to establish a legitimate possessory interest. Id.; United States v. Martinez, 983 F.2d 968, 973 (10th Cir. 1992). Rather at a minimum, the proponent bears the burden of establishing "that he gained possession from the owner or someone with authority to grant possession. United States v. Arango, 912 F.2d 441, 445 (10th Cir. 1990). omitted).
It may be incorrect to label this element of a successful motion to suppress as "standing." See Minnesota v. Carter, 525 U.S. 83, 87-88 (1998). Nevertheless, many appellate court decisions, including some from the Tenth Circuit, use that label.
Consent to search. Law enforcement officers may conduct a lawful warrantless search if there has been a valid consent to the search. SeeSchneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Before consent may be used as a justification for a search, two standards must be met: "`the government must proffer clear and positive testimony that consent was unequivocal and specific and freely and intelligently given . . . [and] must prove that this consent was given without implied or express duress or coercion.'" U.S. v. McRae, 81 F.3d 1528, 1537 (10th Cir. 1996) (quoting U.S. v. Angulo-Fernandez, 53 F.3d 1177, 1180 (10th Cir. 1995)). In determining whether the government has met its burden of proof, the court looks at the totality of the circumstances. U.S. v. Sanchez, 89 F.3d 715, 718-19 (10th Cir. 1996). "[A] `working knowledge' of the English language is all that is required for an encounter to be consensual." U.S. v. Manjarrez, 348 F.3d 881, 886 (10th Cir. 2003) cert. denied, 124 S.Ct. 1622 (2004).
In addition, under Illinois v. Rodriguez, 497 U.S. 177, 185-86 (1990), a search may be found constitutional if it is determined that an officer "would have had valid consent to search if the facts were as he reasonably believed them to be." U.S. v. Salinas-Cano, 959 F.2d 861, 865 (10th Cir. 1992) (quoting U.S. v. Whitfield, 939 F.2d 1071, 1074 (D.C. Cir. 1991)); see also, U.S. v. Guerrero, 374 F.3d 584 (8th Cir. 2004);U.S. v. Cedano-Medina, 366 F.3d 682 (8th Cir. 2004).
Analysis
Defendant does not have standing to object to the search of the vehicle he was driving at the time of the traffic stop. It is undisputed that defendant did not own the vehicle or know the registered owner of the vehicle. He does not know the first or last name of the person who asked him to drive the Jeep Cherokee to Nebraska. Defendant testified that he thought that person owned the vehicle. But, there is no evidence or explanation as to how he reached that conclusion. Defendant only saw this person two or three times previously at a "public place." Although defendant was alone in the vehicle and the vehicle has not been reported as stolen, we do not believe defendant established that he had a reasonable expectation of privacy in the vehicle.
In reaching this conclusion, we rely upon the following cases. In U.S. v. Betancur, 24 F.3d 73 (10th Cir. 1994), the defendant was driving a pickup truck given to him by someone other than the registered owner. The Tenth Circuit stated:
While Betancur testified that someone named "Tio" gave him the pickup truck, there was no evidence presented which would establish ownership in "Tio" or a linkage between "Tio" and Nava [the registered owner]. In sum, Betancur failed to carry his burden of establishing a reasonable expectation of privacy in the pickup truck by showing either ownership or lawful possession.24 F.3d at 77.
In U.S. v. Rascon, 922 F.2d 584 (10th Cir. 1990) cert. denied, 500 U.S. 926 (1991), the defendant was loaned a car by a friend named Avita who was not the registered owner. The Tenth Circuit concluded that the defendant/appellant did not have standing:
Appellant argues that because the testimony suggested that the registered owner of the car was Mr. Avita's brother-in-law, we should infer that Avita's possession of the car was legitimate. This fact by itself, however, shows nothing with regard to Avita's possession of the car. There was simply no evidence, testimonial or otherwise, explaining how or why Avita had possession of the automobile. To presume that Avita's possession of the car was legitimate in the absence of any such evidence would be inconsistent with the burden of proof on this issue, which lies with the proponent of a motion to suppress.922 F.2d at 587. See also, U.S. v. Martinez, 983 F.2d 968, 972-74 (10th Cir. 1992) (no standing where driver and passenger were traveling in car borrowed from friend who was not the registered owner and no evidence established authority of friend to loan the car); U.S. v. Arango, 912 F.2d 441, 445 (10th Cir. 1990) (denying standing to defendant who borrowed vehicle from a person whom he knew was not the registered owner, and who provided no evidence suggesting that the lender was in lawful possession of the vehicle) cert. denied, 499 U.S. 924 (1991);U.S. v. Cardenas, 2001 WL 1507315 (10th Cir. 2001) (no reasonable expectation of privacy established when defendant failed to state he gained possession of vehicle from owner or establish that possession came from someone with authority to grant possession); U.S. v. Fuentes, 1999 WL 311481 (10th Cir. 1999); (same); U.S. v. Santana, 2003 WL 23356402 (D.Utah 2003) (same).
Assuming that defendant did establish a reasonable expectation of privacy in the vehicle, the court finds that no constitutional violation occurred for two reasons. First, the totality of the circumstances persuades the court that defendant understood English sufficiently to freely and voluntarily consent to the search of the vehicle. Doudican credibly testified that he had no difficulty communicating with defendant until he listed illegal drugs transported along I-35. Prior to that time, defendant responded promptly and without misunderstanding when Doudican asked for his license and inquired about his travel plans. Defendant also replied "yes" promptly when he was asked if Doudican could search the car and then moved to the front of the car at Doudican's direction without hesitation. Hand gestures may have assisted the communications process, but the absence of any hesitation or apparent misunderstanding indicates that defendant understood what was being said. Defendant was reluctant but not unable to speak to the officers; he testified that after he was arrested he asked questions of the officer who transported him. Defendant testified that his normal course and desire is to cooperate with police officers. Therefore, when defendant cooperated with the request to search the vehicle it was consistent with his understanding what the officer was requesting.
Defendant has lived and worked in the United States for several years. He and the other defense witnesses testified that he knew various English words or phrases, including "license," "ticket," "hammer," "where are you from," "where are you going" and "come on." Defendant accepted the task of driving a vehicle by himself from Texas to an unfamiliar state with a much smaller Hispanic presence. He has been arrested previously on an immigration matter. All of this indicates a working knowledge of English, considerable contact with English-speaking persons, and a stronger ability to adapt to an English-speaking environment than defendant's motion suggests. Defendant did not object to the search while it was being conducted. There is no evidence or claim of duress or coercion in this case. Defendant appeared calm and the circumstances of the traffic stop were not threatening or intimidating. In sum, we conclude from all the circumstances that defendant made a knowing, voluntary and unequivocal consent to the request to search.
Finally, the circumstances apparent to Doudican during the traffic stop provided a reasonable basis for a law enforcement officer to believe defendant understood what Doudican was saying and freely and voluntarily consented to the request to search the vehicle. This is the second grounds for upholding the constitutionality of the search.
For these reasons, the motion to suppress shall be denied.
OTHER MOTIONS
There were three other motions pending in this case at the time of the hearing upon the motion to suppress. The court announced the following rulings upon those motions.
Motion for production of discovery
On the basis of the government's response to this motion, it appears that the government has supplied the information which is available to be produced. Therefore, this motion shall be considered moot.
Motion for notice of evidence
The government has no objection to this motion. The motion shall be granted.
Motion to disclose expert testimony
The government has no objection to this motion with the exception of KBI witnesses testifying to drug composition. The defense appears content with this approach. Therefore, the court shall consider this motion moot.
IT IS SO ORDERED.