United States v. Emilio Jose Saenz ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2696
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Emilio Jose Saenz, *
*
Defendant - Appellant. *
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Submitted: December 11, 2006
Filed: January 29, 2007
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Before LOKEN, Chief Judge, MURPHY, and SHEPHERD, Circuit Judges.
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MURPHY, Circuit Judge.
A jury convicted Emilio Jose Saenz of one count of conspiracy to distribute and
possess with the intent to distribute more than five kilograms of cocaine, in violation
of 21 U.S.C. § § 841 (a)(1) and 846. The district court1 sentenced Saenz to 210
months imprisonment. Saenz appeals, claiming that the evidence resulting from a
vehicle search should have been suppressed. We affirm.
1
The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
In June 2005 the St. Charles police began investigating a series of money orders
sent by a city resident, Simon Hernandez, to individuals in Albuquerque, New
Mexico. They then discovered that on July 5, 2005 Hernandez sent a moneygram in
the amount of $3125 to a Melissa Saenz in Texas (Melissa is the sister of appellant
Emilio Saenz). A confidential source informed the police on September 27, 2005 that
Melissa was staying in the St. Charles area and that a vehicle registered to Emilio
Saenz was parked outside the residence of Simon Hernandez. The police initiated
surveillance on the house, and observed a red pickup truck with Texas license plates
parked outside. A record check revealed that the truck was registered to Emilio Saenz.
During the course of the surveillance on September 27, officers observed two
individuals, later identified as Emilio and Melissa Saenz, arrive at the Hernandez
house at approximately 1:30 p.m. in a blue Ford F150 truck with temporary Texas
license plates. At approximately 6:30 p.m. the blue truck was backed into the garage.
Thirty minutes later Emilio Saenz drove it out with Melissa sitting in the passenger
seat. The police tracked the truck to a gas station, where Melissa moved into the
driver seat. Officers then followed the blue truck as it drove onto eastbound interstate
70, and turned onto southbound interstate 270 and then westbound interstate 44, a
route the police knew was often used for drug trafficking. Officers observed the truck
make improper lane changes and arranged to have a uniformed officer stop it.
Officer David Doyle was informed that Emilio and Melissa Saenz were being
investigated for drug trafficking and that their truck had made improper lane changes
and was asked to pull over the vehicle. Officer Doyle identified the truck and
followed it until he reached a spot where it was safe to stop it. Several detectives from
the investigative team soon arrived at the scene and separated Melissa and Emilio for
questioning. Both of them told officers that they had traveled to Missouri to sell the
red pickup truck to Hernandez. Emilio said he did not know the sale price of the
vehicle and denied that the money from the sale was in the blue truck. Melissa also
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did not know the sale price but indicated that she thought the proceeds were in the
truck.
The officers asked the suspects to move the truck to an exit ramp to avoid
interrupting traffic. Officers David Senter and Gary Sodoma each asked Emilio Saenz
if they could search the vehicle; Emilio consented both at the original stop and after
the truck was moved. Melissa also gave her consent to the search. Detective Sodoma
then obtained Emilio's permission to use his drug dog, and the dog alerted to the back
of the truck. The officers observed that the spare tire appeared to have been recently
removed so they picked it up, tapped it, and rolled it. It appeared to them that
something solid was inside the tire. When they cut it open, they found several bundles
of currency which amounted to $128,160 when counted. Melissa and Emilio Saenz
were arrested. At Emilio's booking, $3500 in cash was seized from his person.
Special agents from the Drug Enforcement Administration, Steve Hofer and Jim
McHugh, were notified of the stop and arrived at the scene after the tire had been cut
open. They took the cash into custody, and Agent Hofer obtained a search warrant for
Hernandez's house. A search of his home pursuant to the warrant discovered
approximately six kilograms of cocaine. The agents also found a money counter and
rolls of packing tape like that used to seal the bundles of cash hidden in the truck.
Emilio Saenz and three other defendants were charged in an indictment with
conspiracy to distribute and possess with the intent to distribute more than five
kilograms of cocaine, in violation of 21 U.S.C. § § 841(a)(1) and 846. He moved to
suppress the evidence seized in the blue truck, and an evidentiary hearing was held
before a magistrate judge who issued a report and recommendation finding that Emilio
and Melissa Saenz voluntarily consented to the search of the truck. The district court
adopted the report and recommendation and denied the motion to suppress. A jury
trial was held in March 2006 during which Officers Doyle, Senter, and Sodoma
described their investigation. Senter and Sodoma testified that Emilio Saenz had
consented to the search, and Simon Hernandez, who had been indicted as a
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codefendant, also testified against Emilio. The jury found him guilty as charged. On
his appeal Saenz argues that the district court erred in finding that he voluntarily
consented to the search and in denying his motion to suppress.
Saenz first argues that the officers were not justified in stopping his truck
because there was no proof of a traffic violation and there were insufficient grounds
for a stop based on reasonable suspicion. He points out that the police video on
Doyle's squad car did not show any traffic violation, that no traffic ticket was issued
until the next day, and that the government abandoned its reliance on the traffic
violation to focus on reasonable suspicion midway through the prosecution,
suggesting pretext. He argues that the officers did not have reasonable suspicion
because a $3125 money transfer was not a large enough amount to be consistent with
drug trafficking and the money was sent too early for it to have been related to the
Saenzs' trip to St. Charles. Emilio also contends that if the officers had reasonable
suspicion to make the initial stop, it expired before they cut open the spare tire, citing
United States v. Watts, 7 F.3d 122, 126 (8th Cir. 1993). He argues that the
government's reliance on the inconsistent stories told by him and Melissa to justify use
of the drug dog is misplaced and that the inconsistencies in their answers could be
reconciled.
The government responds that the traffic stop was justified because the officers
had reasonable suspicion that the Saenzs were involved in drug trafficking and
because they had observed lane change violations. The government points out that the
officers followed the truck onto three different highways, two officers testified during
trial that they witnessed lane violations, and Doyle's camera only recorded the truck's
movement for one minute prior to its being pulled over. The government also asserts
that the primary reason for the stop was the officers' reasonable suspicion that Emilio
and Melissa were involved in drug trafficking. That suspicion was based on the money
transfer, the information from the confidential source, and the thirty minute stop inside
Hernandez's garage before the truck departed on a common drug route.
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The denial of a motion to suppress is reviewed de novo with the underlying
factual determinations reviewed for clear error. United States v. Carpenter, 422 F.3d
738, 744 (8th Cir. 2005). An officer is allowed to stop and briefly detain a person for
investigative purposes if the officer has a reasonable suspicion supported by
articulable facts that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1, 30
(1968). Here, the officers had more than a mere hunch to justify the stop. See Terry,
392 U.S. at 27. The officers knew of the wire transfer from Hernandez to Melissa
Saenz, they had received information from a confidential source that she was visiting
St. Charles, and they confirmed the presence of Emilio Saenz's vehicle at Hernandez's
house. The officers also witnessed the blue pickup truck enter the garage and leave
thirty minutes later, consistent with the unloading or loading of drugs or drug profits.
We conclude that the officers had reasonable suspicion to pull over the truck.
Moreover, that suspicion did not dissolve after they talked with Emilio and Melissa
Saenz because neither could name the sale price of the red truck which they both said
they had sold to Hernandez and they gave conflicting responses about the location of
the money they claimed to have received from the vehicle sale. We conclude the
district court did not err in denying the motion to suppress.
Saenz contends that the district court erred by finding that he gave voluntary
consent to search the truck. He argues that he and Melissa were coerced when they
were asked to moved the truck to an isolated road and were confronted by multiple
officers. He complains that he was not given his Miranda warning until after the
search and that the officers should have given him a written consent form.
Furthermore, he asserts that the use of the drug dog suggests the officers did not think
they had received voluntary consent.
The voluntariness of a consent to a search is a factual question that is reviewed
for clear error. United States v. Hines, 387 F.3d 690, 694 (8th Cir. 2004). A consent
is voluntary if the consenting individual had "a reasonable appreciation of the nature
and significance of his actions." United States v. Rambo, 789 F.2d 1289, 1297 (8th
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Cir. 1986). Consent can be given orally or in writing, and it is not necessary to use
a written consent form. United States v. Siwek, 453 F.3d 1079, 1084 (8th Cir. 2006).
We have not required an officer to provide Miranda warnings before requesting
consent to search or held that an absence of Miranda warnings would make an
otherwise voluntary consent involuntary. United States v. Payne, 119 F.3d 637, 643
(8th Cir. 1997). The government must prove by a preponderance of the evidence that
the consent was voluntary. United States v. Czeck, 105 F.3d 1235, 1239 (8th Cir.
1997).
We examine the totality of the circumstances to evaluate whether consent was
voluntary. United States v. Chaidez, 906 F.2d 377, 380-81(8th Cir. 1990). The
following factors are relevant to determining whether Emilio's consent was voluntary:
1) his age; 2) his general intelligence and education; 3) whether he was intoxicated at
the time; 4) whether he consented after being informed of his Miranda rights; and 5)
whether he was aware of his rights and protections due to previous arrests. See id. at
381. Other relevant circumstances include: 1) the length of time the subject was
detained; 2) whether the officers acted in a threatening manner; 3) whether any
promises or misrepresentations were made; 4) whether the subject was in custody or
under arrest at the time; 5) whether the consent occurred in public; and 6) whether the
subject was silent as the search was conducted. Id.Here, Emilio was in his thirties, did not seem to be under the influence of drugs
or alcohol, and appeared to be of normal intelligence. The officers' request to move
the truck to a safer area with less traffic was not coercive, nor did they use threats,
offer improper promises, or suggest that Emilio could not refuse consent. His
detention was for a short period of time, and Emilio gave his consent to at least two
officers. During the search he was silent and did not complain or question the
officers, but instead offered oral consent again when Officer Sodoma asked if the
officers could use the drug dog. Even though no Miranda warning was given until
after the search was completed, this does not nullify his otherwise voluntary consent.
The district court properly weighed the factors identified in United States v. Chaidez,
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and we conclude it did not clearly err by finding that Emilio Saenz voluntarily
consented to the search of the truck.
Accordingly, we affirm the judgment of the district court.
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