United States v. Tinajero ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40651
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CESAR ROBERTO TINAJERO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-00-CR-1266-ALL
--------------------
March 27, 2002
Before DeMOSS, PARKER and DENNIS, Circuit Judges.
PER CURIAM:*
Cesar Roberto Tinajero appeals the district court’s denial of
his motion to suppress currency seized from him and his statements
made before and after he was taken into custody. Tinajero argues
that: (1) the pat-down of his clothes was unconstitutional because
the police officer squeezed the objects in his pockets and ordered
him to remove them; (2) there was no probable cause to arrest him
and, therefore, all of the statements made after his allegedly
illegal arrest are inadmissible; and (3) the statements he made
after receiving Miranda1 warnings are also inadmissible because
there were no intervening events to break the causal connection
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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between the illegal arrest and the statements. For the reasons
that follow, we disagree. We therefore affirm the judgment of the
district court.
BACKGROUND
On October 26, 2000, Officer Gustavo Guerra, an eleven-year
veteran of the Laredo, Texas, Police Department, was assigned to
monitor activity at Laredo’s bus station. Guerra observed Tinajero
get off of a bus from Dallas, Texas. Tinajero was carrying a
duffle bag and walked hurriedly into the bus station. Tinajero
proceeded to walk out of the station’s front entrance, but quickly
stopped when he saw Guerra. Guerra approached Tinajero and asked
him in Spanish whether he was willing to answer a couple of
questions. Tinajero answered affirmatively in Spanish. Guerra
noticed that Tinajero was avoiding eye contact as Guerra asked him
for some type of identification. Tinajero produced a Texas
driver’s license with a Laredo address. When asked the reason for
his trip to Dallas, Tinajero stated that he went to Dallas to visit
a relative. Tinajero first stated that he stayed at his brother’s
house, but then stated that he had stayed at a motel called the
Mustang Motel. He did not respond when asked why he initially
stated that he stayed at his brother’s house.
At this point, Guerra noticed that Tinajero was very nervous
and kept putting his hands in front of his front pockets. Tinajero
was wearing a black T-shirt and blue jeans, with the T-shirt
outside of his jeans. Thinking that Tinajero might have a weapon,
Guerra asked to pat Tinajero down for safety, and Tinajero
consented. When Guerra patted him down, he felt two square,
rectangular brick-shaped objects in both of Tinajero’s front
pockets. Based on his experience, Guerra thought the objects could
be drugs or drug proceeds. Guerra asked Tinajero if he had any
currency, and Tinajero answered negatively. Guerra asked Tinajero
what was in his pockets, and Tinajero said, “things.” Tinajero
then stated that he had important papers that belonged to his
No. 01-40651
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brother. Guerra again noticed that Tinajero was acting very
nervous. Guerra asked Tinajero if he would mind taking the objects
out of his pocket. Guerra agreed and stated that he had a package.
Tinajero then removed the packages himself.
The packages contained currency wrapped in clear plastic and
vacuum-sealed; one was labeled “30,000" and the other was labeled
“10,000.” Guerra had observed currency packaged in this way in
prior drug cases and believed the packages contained drug proceeds.
Tinajero stated that the currency belonged to his brother and that
his brother gave him the currency at a motel for him to deliver to
an unknown person at the plaza in Nuevo Laredo, Mexico.
Guerra then told Tinajero that he was not under arrest, but
asked him whether he would be willing to go to the police station
for further questioning; Tinajero agreed. Tinajero was transported
to the police station by Sergeant Hector Garcia because Guerra had
a drug-sniffing dog in his patrol car. Tinajero was not handcuffed
during the trip to the police station.
When they arrived at the police station, Tinajero was escorted
into an interview room. Tinajero was not handcuffed at this time.
Police officers contacted agents of the Federal Bureau of
Investigation (F.B.I.) and asked them to come to the police
station. Before the arrival of F.B.I. agents, Laredo Police
Department Investigator Bernardo Vasquez spoke with Tinajero in
Spanish. Tinajero agreed to speak to Vasquez, and their
conversation was “free flowing” and “cooperative.” Vasquez did not
advise Tinajero of his rights prior to their conversation.
During the conversation, Tinajero stated that he had been
visiting his brother in Dallas, but he did not recall his brother’s
address or telephone number. Tinajero stated that he met his
brother at a Dallas motel and that his brother gave him the
currency to bring back.
Two F.B.I. agents subsequently arrived. Vasquez spoke with
the agents briefly outside of the interview room, then asked
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Tinajero whether he was willing to provide a written statement.
Tinajero agreed to provide a written statement. The form on which
Tinajero provided the statement contained Miranda warnings written
in Spanish. Vasquez explained the meaning of the warning and that
the information provided could be used against Tinajero in a court
of law. Tinajero stated that he understood. Vasquez read each of
the warnings to Tinajero, Tinajero read them himself, and then
Tinajero initialed each warning to indicate his understanding.
Tinajero then provided a written statement and signed it.
After Tinajero gave this statement, Vasquez asked Tinajero
whether he had anything to add. Tinajero agreed to continue
talking to Vasquez but did not ask for an attorney. Tinajero
stated that his brother had other people working for him and that
they were making about $100,000 a week. Tinajero also told Vasquez
that he believed he was transporting “dirty money” and that he did
not think the money was “righteous money.” At some point during
the interview, Vasquez was advised that the narcotic-sniffing dog
had altered to Tinajero’s packages of currency. After the
interview, Tinajero agreed to make a recorded telephone call to his
brother, in which he stated that he had been caught with the money
and the money had been taken away from him.
Subsequently, Tinajero was indicted and charged with
misprision of a felony (money laundering), in violation of 18
U.S.C. § 4. Tinajero filed a motion to suppress his statements and
the currency seized from him. The district court granted the
motion to suppress in part with respect to Tinajero’s statements
made at the police station prior to his being given Miranda
warnings, but denied the motion to suppress in all other respects.
Tinajero was convicted following a bench trial on stipulated facts.
He received three years of probation, 120 days of home confinement,
a $900 fine, and a $100 special assessment. Tinajero then filed
this appeal.
STANDARD OF REVIEW
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This court “employ[s] a two-tier standard of review in
evaluating a district court’s denial of a motion to suppress based
on an evidentiary hearing.” United States v. Orozco, 191 F.3d 578,
581 (5th Cir. 1999). This court accepts the district court’s
findings of fact unless they are clearly erroneous, but its
ultimate conclusion as to the constitutionality of the law
enforcement action is reviewed de novo. See id. A district
court’s factual finding that an encounter with police was
consensual is reviewed for clear error. United States v. Gonzales,
79 F.3d 413, 419 (5th Cir. 1996). The evidence introduced at the
suppression hearing is viewed in the light most favorable to the
prevailing party. See Orozco, 191 F.3d at 581. The Government has
the burden to prove that the warrantless search and arrest were
constitutional and that the statements obtained from Tinajero were
voluntary. See United States v. Guerrero-Barajas, 240 F.3d 428,
432 (5th Cir. 2001), cert. denied, 122 S. Ct. 919 (2002).
ANALYSIS
A. Initial Questioning at Bus Station
Tinajero contends that the district court erred in denying his
motion to suppress his statements made at the bus station, the
statements he made after he received Miranda warnings, and the
currency seized from him. Tinajero argues that the police
officer’s pat-down search was an unconstitutional search because he
squeezed the objects in Tinajero’s pockets and ordered him to
remove them.
Not all police-citizen contact invokes the Fourth Amendment.
See United States v. Galberth, 846 F.2d 983, 989 (5th Cir. 1988).
There are three tiers of police-citizen encounters: “communication
between police and citizens involving no coercion or detention and
therefore without the compass of the Fourth Amendment, brief
‘seizures’ that must be supported by reasonable suspicion, and
full-scale arrests that must be supported by probable cause.”
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United States v. Berry, 670 F.2d 583, 591 (5th Cir. 1982)
(en banc). Whether in the circumstances of a particular case the
Fourth Amendment is invoked depends on the intrusiveness of the
encounter as well as the strength of the government interest at
stake. United States v. Simmons, 918 F.2d 476, 480 (5th Cir.
1990). A seizure occurs only if “in view of all the circumstances
surrounding the incident, a reasonable person would have believed
that he was not free to leave.” Berry, 670 F.2d at 595 (internal
quotation and citation omitted). “[E]ven when officers have no
basis for suspecting a particular individual, they may generally
ask questions of that individual[;] . . . ask to examine the
individual’s identification . . .; and request consent to search
his or her luggage . . . as long as the police do not convey a
message that compliance with their requests is required.” United
States v. Cooper, 43 F.3d 140, 145 (5th Cir. 1995)(citing Florida
v. Bostick, 501 U.S. 429, 435 (1991)) (internal quotation marks
omitted); see also Galberth, 846 F.2d at 989; Florida v. Royer, 460
U.S. 491, 497 (1983).
“Police officers may briefly detain individuals on the street,
even though there is no probable cause to arrest them, if they have
a reasonable suspicion that criminal activity is afoot.” United
States v. Michelletti, 13 F.3d 838, 840 (1994) (en banc).
Reasonable suspicion exists “when law enforcement officials are
able to point to `specific and articulable facts which, taken
together with rational inferences from those facts, reasonably
warrant the intrusion.’” United States v. Webster, 162 F.3d 308,
332 (5th Cir. 1998) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)).
Tinajero has not shown that the district court erred in
holding that Tinajero’s Fourth Amendment rights were not violated
by the questioning that occurred at the bus station and the
discovery of the currency. Guerra’s questioning was not
threatening or coercive. Tinajero voluntarily answered Guerra’s
questions, voluntarily consented to a pat-down of his clothes, and
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voluntarily removed the two packages from his pockets. See Cooper,
43 F.3d at 145; Galberth, 846 F.2d at 989. Tinajero has not shown
that the district court clearly erred in finding that Tinajero
voluntarily answered Guerra’s questions and voluntarily removed the
packages from his pockets. See Gonzales, 79 F.3d at 419.
B. Post-Miranda Questioning
Tinajero asserts that he was under arrest when he was taken to
the police station. He complains that the police officers lacked
probable cause to arrest him because they did not have probable
cause to believe that he had committed a crime. Tinajero argues
that all of the statements that he made while he was in custody
illegally are inadmissible. He further argues that statements that
he made after receiving Miranda warnings are also inadmissible
because there were no intervening events to break the causal
connection between the illegal arrest and the statements.
A warrantless arrest may be made if the arresting officers
have probable cause. United States v. Chappell, 6 F.3d 1095, 1100
(5th Cir. 1993). “Probable cause exists when facts and
circumstances within the knowledge of the arresting officer would
be sufficient to cause an officer of reasonable caution to believe
that an offense has been or is being committed.” United States v.
Carrillo-Morales, 27 F.3d 1054, 1062 (5th Cir. 1994).
“[W]hen an individual is taken into custody or otherwise
deprived of his freedom by the authorities in any significant way
and is subjected to questioning, the privilege against
self-incrimination is jeopardized.” Miranda, 384 U.S. at 478.
Custodial interrogation means “questioning initiated by law
enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant
way.” Id. at 444.
“The failure to give a Miranda warning prior to custodial
interrogation alone will not necessitate suppression of all
derivative evidence absent a constitutional violation, such as the
No. 01-40651
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statement being a product of coercion.” United States v. Medina,
887 F.2d 528, 532 (5th Cir. 1989). In Oregon v. Elstad, 470 U.S.
298, 318 (1985), the Supreme Court held “that a suspect who has
once responded to unwarned yet uncoercive questioning is not
thereby disabled from waiving his rights and confession after he
had been given the requisite Miranda warnings.” The fruit-of- the-
poisonous-tree doctrine does not extend to Miranda violations. See
United States v. Harrell, 894 F.2d 120, 125 (5th Cir. 1990).
The district court did not directly address whether the arrest
of Tinajero was based on probable cause. The district court
determined that Tinajero was in custody at the time that he made
the first statements to Vasquez; the district court determined that
because Tinajero did not receive Miranda warnings before he made
these statements, these statements should be suppressed. The
district court determined that Tinajero was then given Miranda
warnings and that he subsequently voluntarily gave written and oral
statements to Vasquez and F.B.I. agents.
A review of the evidence presented at the suppression hearing
indicates that the officer had probable cause to arrest Tinajero
for a possible money-laundering offense. Tinajero was observed
walking hurriedly through the bus station, then stopped and turned
around when he saw Officer Guerra standing outside of the bus
station. Tinajero avoided eye contact, gave inconsistent answers
to Guerra’s questions concerning his travel, stated that he did not
know his brother’s address or telephone number, and appeared to be
very nervous during the questioning at the bus station. Tinajero
also placed his hands in front of his front pants pockets. Because
Guerra thought Tinajero might have a weapon, Guerra asked
permission to pat Tinajero down for weapons, and Tinajero
consented. Guerra discovered two large brick-shaped objects in
Tinajero’s front pockets and asked him about the objects. Tinajero
stated they were “things” and then stated that they were important
papers for his brother. Guerra then asked whether Tinajero would
No. 01-40651
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mind removing the objects from his pockets. Tinajero consented and
voluntarily removed the packages from his pockets. The objects
were clear plastic vacuum-sealed packages, one containing $30,000
and one containing $10,000. Based on Guerra’s experience, he knew
that drug proceeds are frequently packaged in this manner. Based
on Tinajero’s behavior in the bus station, inconsistent answers to
Guerra’s questions, his nervous demeanor, and his possession of
such a large amount of currency packaged in the manner that drug-
proceeds are frequently packaged, Guerra had probable cause to
arrest Tinajero for a possible money-laundering offense.
See Carrillo-Morales, 27 F.3d at 1062. Because probable cause for
the arrest existed, we need not consider whether Tinajero’s post-
Miranda statements must be suppressed due to the allegedly illegal
arrest.
Tinajero has not shown that the district court erred in
holding that his post-Miranda statements were voluntary and,
therefore, admissible. The evidence presented at the evidentiary
hearing established that Vasquez read the Miranda warnings to
Tinajero in Spanish, Tinajero read the warnings himself, and he
initialed the form indicating that he had read the warnings.
Vasquez advised Tinajero concerning the meaning of the warning and
that the information he provided could be used against him in a
court of law. Tinajero then provided a written statement. After
giving the written statement, Vasquez asked him whether there was
anything else that he wished to add. Tinajero continued to talk to
Vasquez and made additional inculpatory statements. Tinajero has
not shown that the district court erred in finding that the written
and oral statements made by Tinajero after the Miranda warnings
were voluntarily made. The evidence presented at the evidentiary
hearing does not indicate that Tinajero was threatened or coerced
into making the statements. The district court did not err in
holding that the statements made by Vasquez during the interview
were not threatening or coercive. See United States v. Barfield,
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507 F.2d 53, 56-57 (5th Cir. 1975); United States v. Brown, 459
F.2d 319, 323-24 (5th Cir. 1971). Therefore, the district court
did not err in denying Tinajero’s motion to suppress the seized
currency and statements made at the bus station, or the statements
made after he received Miranda warnings at the police station.
CONCLUSION
The evidence presented at the evidentiary hearing indicates
that Tinajero voluntarily cooperated with Officer Guerra at the bus
station. Because the pat-down was based on reasonable suspicion
that Tinajero had a weapon and because Tinajero voluntarily removed
the objects from his pockets, Tinajero has not shown that the
district court erred in denying his motion to suppress the seized
currency and his statements to Guerra at the bus station. See
United States v. Cooper, 43 F.3d 140, 145 (5th Cir. 1995; United
States v. Galberth, 846 F.2d 983, 989 (5th Cir. 1988).
Based on Tinajero’s behavior at the bus station, his
inconsistent answers to Guerra’s questions, his nervous demeanor,
and his possession of a large amount of currency packaged in the
manner drug proceeds are frequently packaged, Guerra had probable
cause to arrest Tinajero at the bus station for a possible money-
laundering offense. See United States v. Carrillo-Morales, 27 F.3d
1054, 1062 (5th Cir. 1994).
Tinajero has not shown that the district court erred in
holding that his post-Miranda statements were voluntary and,
therefore, admissible. After being advised of his Miranda warnings
in Spanish, Tinajero provided a written statement. When Officer
Vasquez asked Tinajero if he had anything to add, Tinajero made
additional inculpatory statements. Tinajero did not show that he
was threatened or coerced into making the statements. Therefore,
the district court did not err in holding that his post-Miranda
statements were voluntary and admissible. See United States v.
Medina, 887 F.2d 528, 532 (5th Cir. 1989).
AFFIRMED.