United States v. Reynaldo Alverez ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-1531
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Reynaldo F. Alverez, *
*
Appellant. *
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Submitted: October 19, 2000
Filed: December 26, 2000
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Before WOLLMAN, Chief Judge, BEAM, and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
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WOLLMAN, Chief Judge.
Reynaldo Alverez appeals from the district court’s1 final judgment sentencing
him to 188 months of imprisonment and five years of supervised release for his
conviction for possession with intent to distribute methamphetamine in violation of 21
U.S.C. § 841(a)(1). We affirm.
1
The Honorable Warren K. Urbom, United States District Judge for the District
of Nebraska.
I.
On February 22, 1999, Nebraska State Trooper Michael Korte observed a 1994
Honda Del Sol with expired California license plates parked for several hours at a rest
area adjacent to Interstate 80 near Grand Island, Nebraska. The trooper investigated
and conversed with Alverez, who was walking toward the car. Alverez stated that he
was the car’s owner and was waiting for his cousin, the other occupant of the vehicle,
to return with sealant to fix the car’s flat front tire. According to Alverez, the tire had
been damaged the previous evening and both men had remained in the car overnight.
Trooper Korte noted that an ice storm had passed through the area the previous night.
Alverez replied that he had occasionally started the car’s engine to heat the vehicle.
Further conversation elicited that Alverez had begun the trip in California and
was traveling to Chicago to visit his father. Alverez first stated that he would be
staying only a few days, but amended his statement to “probably a week” after Trooper
Korte expressed surprise that Alverez would drive so far for such a short stay. During
this conversation, the passenger returned with tire sealant, and Alverez began to fix the
tire. Trooper Korte inquired whether there were any narcotics or illegal firearms in the
vehicle, which Alverez denied. The trooper then requested permission to search the
car, which Alverez granted.
Another trooper joined Trooper Korte, whereupon the officers searched the
vehicle. In the trunk of the car, the troopers observed a crate containing bottles of juice
and a small duffel bag containing clothes. After removing these items and some
cardboard flooring, the troopers noticed a fully inflated spare tire that appeared to
match those on the car. The officers unbolted the tire and shook it. Hearing several
thudding noises, they unsuccessfully attempted to break the tire loose from the rim.
Trooper Korte then cut through the tire’s sidewall, an action that exposed
approximately seven pounds of methamphetamine.
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Based on the report and recommendation of a magistrate judge,2 the district court
denied Alverez’s motion to suppress the methamphetamine evidence. Alverez was
convicted of the narcotics possession crime after a bench trial.
II.
A.
Alverez first argues that his motion to suppress should have been granted
because the troopers exceeded the scope of his consent to search by removing and then
cutting the tire. Alverez does not dispute that he gave consent to search his vehicle,
including the trunk, for drugs or firearms.
We review for clear error the district court’s findings of fact and de novo its
determination that the Fourth Amendment was not violated. United States v. Hogan,
25 F.3d 690, 692 (8th Cir. 1994). A search resulting from an individual’s general
statement of consent is limited by boundaries of reasonableness. United States v.
Martel-Martines, 988 F.2d 855, 858 (8th Cir. 1993). “The standard for measuring the
scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’
reasonableness--what would the typical reasonable person have understood by the
exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251
(1991). “Although an individual consenting to a vehicle search should expect that
search to be thorough, he need not anticipate that the search will involve the destruction
of his vehicle, its parts or contents.” United States v. Strickland, 902 F.2d 937, 942
(11th Cir. 1990); see also Arizona v. Hicks, 480 U.S. 321, 324 (1987) (seizure of
property occurs when governmental intrusion “meaningfully interferes” with
individual’s possessory interest). Accordingly, the cutting of the spare tire likely
2
The Honorable David L. Piester, United States Magistrate Judge for the District
of Nebraska.
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exceeded the scope of the consensual search and may well have required suppression
of the evidence had the officers not had probable cause to expand the search.
We need not speculate on what the outcome would have been had the troopers
relied solely upon the consent given by Alvarez, however, because observations made
during the consensual search gave the officers probable cause to believe that there was
contraband in the vehicle, thus lawfully expanding the scope of search under the
automobile exception to the warrant requirement. United States v. Ross, 456 U.S. 798,
823 (1982). The “warrantless search of an automobile, predicated on consent, may be
expanded beyond the scope of the consent when it yields a basis for a reasonable
articulable suspicion that additional contraband may be found in parts of the car not
included in the consent.” United States v. Casares-Cardenas, 14 F.3d 1283, 1286 (8th
Cir. 1994).
The troopers’ action in moving the items and the cardboard covering in order to
view smaller areas in the trunk that could easily contain drugs or weapons was
objectively reasonable in light of Alverez’s consent; indeed, Alverez did not object to
such action. See United States v. Hammons, 152 F.3d 1025, 1027 (8th Cir. 1998)
(objectively reasonable pursuant to valid consensual search of automobile to search
bags in trunk that could contain object of search); Martel-Martines, 988 F.2d at 858(silence gave rise to reasonable belief that defendant consented to minimally intrusive
puncture of truck bed). Removing the cardboard exposed what appeared to be a usable
spare tire that matched the other tires on the car but which did not appear to have been
moved from its location, despite the damaged front tire. The fact that Alverez and his
passenger had remained in the small vehicle during the overnight ice storm and had
purchased tire sealant rather than attempting to use the apparently usable spare tire
gave the officers a reasonable suspicion that the tire or the area around it contained
contraband and thus probable cause to remove the tire and examine it more closely.
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The thudding sound produced by the tire as it was being inspected indicated that
it was being used as a container. Because the troopers had probable cause to believe
that contraband was secreted in the vehicle, in particular in the spare tire, they could
lawfully complete a full and thorough search of the tire, including dismantling or
damaging it. Martel-Martines, 988 F.2d at 858-59 (defendant’s evasive and
inconsistent responses to routine questions and inaccessible hidden compartment built
onto underside of truck aroused suspicion and gave probable cause to puncture hole in
truck bed). Accordingly, the court did not err in denying Alverez’s motion to suppress.
B.
Second, Alverez contends that the indictment against him should have been
dismissed as a violation of the Double Jeopardy Clause of the Fifth Amendment
because the State of Nebraska had already seized some of his property in connection
with the drug possession for which the federal charges were brought. Under the
Double Jeopardy Clause, “a defendant is protected from both successive prosecutions
and multiple punishments for the same criminal offense.” United States v. Bennett, 44
F.3d 1364, 1368 (8th Cir. 1995). To make out a successful claim under the clause, a
defendant must show that “the two offenses charged are in law and fact the same
offense.” Id. The district court’s denial of a motion to dismiss an indictment on the
grounds of double jeopardy is reviewed de novo. Id.After Alverez’s arrest, Nebraska instituted forfeiture proceedings to seize the
$309.00 that Alverez had on his person at the time. Regardless of whether this
particular forfeiture amounts to a criminal punishment, it is well established that the
Double Jeopardy Clause does not prevent the federal government from prosecuting the
defendant for a violation of federal law based on the same acts for which he was
subject to proceedings in Nebraska. Abbate v. United States, 359 U.S. 187, 194-96
(1959); United States v. Kummer, 15 F.3d 1455, 1460-61 (8th Cir. 1994).
Accordingly, this claim fails.
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C.
Lastly, Alverez argues that the court erred when it declined to grant him,
pursuant to sentencing guidelines section 3B1.2, a downward adjustment in offense
level for having a minor or minimal role in the offense. See U.S.S.G. § 3B1.2. The
burden is on the defendant to demonstrate that he is entitled to the reduction. United
States v. Chatman, 119 F.3d 1335, 1341 (8th Cir. 1997). Although he owned and
drove the car, Alverez contends that he was unaware that the spare tire, which had been
given to him by another individual, contained contraband, and that he thus was merely
an unknowing courier entitled to the reduction.
Although we review the district court’s interpretation and construction of the
sentencing guidelines de novo, United States v. Snoddy, 139 F.3d 1224, 1227 (8th Cir.
1998), “[w]hether a defendant qualifies for a minor participant reduction is a question
of fact, the determination of which we review for clear error.” United States v. Hale,
1 F.3d 691, 694 (8th Cir. 1993). Under section 3B1.2, a defendant may receive a
reduction in his offense level if his role is “minimal” or “minor,” as determined by
“comparing the acts of each participant in relation to the relevant conduct for which the
participant is held accountable, [and] also by measuring each participant’s individual
acts and relative culpability against the elements of the offense.” Snoddy, 139 F.3d at
1228 (quoting United States v. Padilla-Pena, 129 F.3d 457, 471 (8th Cir. 1997)). Even
a defendant who is decidedly less culpable than his co-defendants is not entitled to the
minor participant reduction if he is “deeply involved” in the criminal acts. United
States v. Thompson, 60 F.3d 514, 518 (8th Cir. 1995) (citation omitted). A role as a
courier does not automatically entitle the defendant to a downward adjustment.
“Transportation is a necessary part of illegal drug distribution, and the facts of the case
are critical in considering a reduction for minor role.” United States v. Martinez, 168
F.3d 1043, 1048 (8th Cir. 1999).
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The district court declined to reduce Alverez’s offense level because it
concluded that Alverez was not less culpable than other participants involved in the
possession crime. The court noted that there was ample evidence that Alverez was
aware of the substantial quantity of narcotics in the tire, the amount for which Alverez
was held accountable. Alverez may have been only a courier for a larger distribution
operation, but his sentence was based solely on the quantity of drugs in his vehicle.
See Hale, 1 F.3d at 695 (no clear error in denial of minor participant status when
defendant responsible only for transaction he facilitated). The amount of narcotics in
Alverez’s car was substantial and was consistent with a finding of possession with
intent to distribute. On these facts, we discern no clear error in the district court’s
ruling. See Chatman, 119 F.3d at 1341 (no clear error in denying minor participant
status when defendant drove own vehicle, amount of drugs suggested distribution, and
defendant lacked clothing or luggage for the trip); Martinez, 168 F.3d at 1048 (no clear
error in denial based on defendant’s demeanor and statements, appearance of trunk
interior, manner in which drugs were hidden, and substantial quantity of drugs).
The judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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