Opinion
Case No. 2:99CR515C
May 5, 2000
ORDER
On or about September 1, 1999, a grand jury indicted Defendants Carlos Felix, Martin Avila (a.k.a. Nicolas Zamudio) and Angelica Bugarin under 21 U.S.C. § 814(a)(1), for the knowing and intentional possession with intent to distribute five kilograms or more of cocaine and under 18 U.S.C. § 2, for aiding and abetting the commission of a crime. On March 15, 2000, Defendant Bugarin pled guilty and is, therefore, not a party to this motion. This matter comes before the court on Defendants Felix and Avila's ("Defendants") Motion to Suppress evidence.
Felix filed the pending motion to suppress on September 30, 1999. Avila joined this motion during the evidentiary hearing held on January 10, 2000. (See Transcript of January 10, 2000 hearing at 5-6.) Other motions to suppress, arguing violations of Defendants' Miranda rights and illegal interceptions, have also been filed. In an order dated January 12, 2000, this court denied Felix and Bugarin's motion to suppress statements. Defendants have apparently abandoned their Miranda argument since the government stated at oral argument that the allegedly incriminating statements will not be used at trial. At final argument on April 20, 2000, defense counsel indicated that the pending motion (involving suppression of evidence found in the van) was the only suppression motion remaining to be resolved.
Defendants filed this motion to suppress all evidence discovered during a search of a van they were driving, on the grounds that their Fourth Amendment rights had been violated. Defendants argue the search was unconstitutional since the police officer in charge did not obtain valid consent to search the van and did not, otherwise, have a sufficient basis for the search. The government argues against suppression on the grounds that the officer obtained valid consent to search.
I. Background
On September 1, 1999, Lt. Alan L. DeMille, of the Richfield City Police Department, responded to a call of a suspicious van at Classic Motors, a car repair shop in Richfield, Utah. DeMille learned that the van had been picked up by Mac Towing, and was soon to be towed to Denver. DeMille went to Mac Towing, saw the van, and went inside the office building.
Defendants and Bugarin were sitting inside the office. By speaking to all three, DeMille ascertained that Bugarin was the only one of the three that spoke English. Defendants speak only Spanish. DeMille, who does not speak Spanish, asked Bugarin about the van ownership, and was told that a person living in California owned the van. (See Transcript of January 10, 2000 hearing at 26.) Bugarin told DeMille that she and Defendants were driving from California to Denver when the car broke down. Unable to quickly repair the van, their plan was to pay to have the car towed to Denver.
DeMille asked Bugarin if he could search the car, and Bugarin told him that he could. Bugarin then turned to Defendant Avila and the two had a short conversation in Spanish. DeMille did not understand what was said. (See id. at 40.) At the conclusion of the conversation, Avila handed Bugarin the keys to the van. Bugarin then gave the keys to DeMille, who began a search of the interior of the van. DeMille testified that he became suspicious when he found two containers of gasoline inside the van. (See id. at 31.) According to DeMille, drug carriers often carry additional gasoline because use of the gas tank to house illegal drugs diminishes fuel capacity. (See id. at 32.)
When other officers arrived on the scene, the officers began searching the exterior of the van. Detective Kerry Ekker, of the Central Utah Narcotics Task Force, noticed that the bolts holding the mounting straps for the gas tank looked unusual. Drug dogs sniffed the area and alerted to possible drugs near the gas tank. The officers loosened the bolts and lowered the gas tank. When the gas tank was lowered, officers found fifteen packages of duct-tape-covered plastic, each containing cocaine.
DeMille arrested Defendants and Bugarin.
II. Analysis
It is fundamental that a defendant attempting to suppress evidence discovered as a result of a police search first establish that he had standing to object to the search. See United States v. Salvucci, 448 U.S. 83 (1980). The court concludes that Defendants have standing to challenge the search of the van. See, e.g., United States v. Rhodes, 30 F.3d 142, 1994 WL 386026 (10th Cir. 1994) (holding that defendant has standing to challenge the search of a vehicle he was driving, which he said was borrowed from a friend); United States v. Rubio-Rivera, 917 F.2d 1271, 1274 (10th Cir. 1990) (same).
A government official, acting without a warrant, may conduct a search based on an individual's voluntary consent, and any evidence discovered during the search may be seized and admitted at trial. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); United States v. Benally, 146 F.3d 1232, 1240 (10th Cir. 1998). The only issue presented in the pending motion is whether Bugarin's consent to search the van satisfies Fourth Amendment requirements. In general, the "consent of a third party to a search of common premises is effectual if the third party has either the actual authority or the apparent authority to consent to a search." United States v. Gutierrez-Hermosillo, 142 F.3d 1225, 1230 (10th Cir. 1998). The government has the burden of proving the effectiveness of a third party's consent. See Illinois v. Rodriguez, 497 U.S. 177 (1990); United States v. Salinas-Cano, 959 F.2d 861, 864 (10th Cir. 1992).
The test for actual authority is whether that third person has "mutual use of the property[,] . . . generally ha[s] joint access or control for most purposes[,] . . . and [whether] the others have assumed the risk that one of their number might permit the common area to be searched." Id., quoting United States v. Matlock, 415 U.S. 164, 171 n. 7 (1974). According to Defendant Felix, the owner of the van gave Felix permission to drive the car on or about August 25, 1999. (See Transcript of January 18, 2000 hearing at 7.) When the owner gave Felix permission, the owner was aware that the car would be taken to Denver and how long the car would be gone. (See id.) According to Felix, the owner gave permission to take the van knowing that others would be driving the vehicle on the trip. (See id. at 8.) Felix admitted that Bugarin was more than just a passenger during the trip:
Q [by Mr. Rasmussen]: During the trip from California until you were stopped, who maintained control of the keys for the van?
A [by Felix]: Angelica [Bugarin]
(Id. at 14.)
Felix's statements acknowledge that Bugarin had mutual use of the van and generally had joint access and control of the van (at least for the main purpose of driving). By letting Bugarin drive the van and entrusting her with the keys, the Defendants assumed the risk that she might consent to search of the van. Accord United States v. Welch, 4 F.3d 761, 764 (9th Cir. 1993) ("By sharing access to and use of the car with [third party, defendant] relinquished, in part, her expectation of privacy in the vehicle."); United States v. Jaras, 96 F.3d 764, 766 (5th Cir. 1996) ("[A] passenger assume[s] the risk that a driver with whom the passenger shares control of the vehicle may consent to it being searched.") (internal citations omitted). Under the test articulated in Matlock, the court concludes that Bugarin had the actual authority to consent to the search of the van.
Even if Bugarin did not have actual authority to consent to the search, DeMille reasonably could have believed that she did. See Rodriguez, 497 U.S. at 186 (if facts, as officer reasonably believes them to be, would allow third party to consent, consent is valid under apparent authority doctrine). When DeMille asked Bugarin for permission to search, he knew that none of the three individuals were the owner of the car, but that all three were driving the car to Denver. DeMille asked for permission in front of the Defendants. After he asked to search, DeMille saw Bugarin turn to Aliva and say something in Spanish. After a short conversation, Avila gave Bugarin the keys to the van. Despite the fact that Defendants saw DeMille search the van, they took no steps to try to stop the search. The court concludes that under these facts an officer could reasonably believe that Bugarin had the actual authority to authorize a search. Under the apparent authority doctrine, therefore, the court concludes that the search of the van was valid.
Defendants cite numerous cases, which they claim demonstrate that standard police practice obligates officers "first to inquire and determine ownership [of the vehicle] and second to request and receive consent to search from all occupants with an ownership interest, and when ownership is unclear consent from all occupants." (Defendants' Memorandum in Support of Motion to Suppress at 10.) The court declines to address the issue of what inquires and steps are required under "standard police practices." Defendants claim raises a Fourth Amendment claim, and, as discussed above, the court is satisfied that Bugarin had actual and/or apparent authority to consent to search of the van. If Defendants mean to raise an argument that DeMille improperly applied established police practices, the court concludes that Defendants fail to make such a showing, and hereby reject it.
Even if Defendants had raised the issue more clearly, the court is not at all convinced that the argument has merit. In addition to express consent, consent may be implied by the circumstances surrounding the search or by a person's failure to object to a search. See, e.g., United States v. Dewitt, 946 F.2d 1497, 1501 (10th Cir. 1991) (valid implied consent to continue search when defendant failed to object to officer searching under back seat cushions of car); United States v. Morales, 861 F.2d 396, 399-400 (3d Cir. 1988) (valid implied consent when passenger lessee of rental car remained silent after driver consented and search occurred). While the court need not decide whether Defendants' silence throughout DeMille's search is valid implied consent, the court is convinced that Defendants' argument that DeMille was required to obtain verbal consent from all parties is incorrect.
At oral argument, Defendants argued that even if Bugarin gave consent, it was not voluntary, and therefore invalid. The court rejects this argument because Defendants do not have standing to challenge whether a third party's consent was voluntarily made. See United States v. Payner, 447 U.S. 727, 735 (1980) (evidence acquired through an unlawful search that violated a third party's rights, but not the rights of the defendant, could not be excluded on the basis of either the Fourth Amendment or the court's inherent supervisory power).
For the reasons set forth above, the court concludes that the search of the van was conducted after receipt of valid consent and is, therefore, constitutional. Defendants' motion to suppress is DENIED.
SO ORDERED.