United States v. Javier Guzman , 454 F. App'x 531 ( 2012 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2481
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United States of America, *
*
Appellee, * Appeals from the United States
* District Court for the
v. * Eastern District of Arkansas.
*
Javier Torres Guzman, * [UNPUBLISHED]
*
Appellant. *
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No. 11-2534
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United States of America, *
*
Appellee, *
*
v. *
*
Efren Diaz Jasso, *
*
Appellant. *
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Submitted: February 13, 2012
Filed: February 21, 2012
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Before LOKEN, BOWMAN, and BYE, Circuit Judges.
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PER CURIAM.
In September 2009, Javier Torres Guzman (Torres) and Efren Diaz Jasso (Diaz)
were driving across Arkansas when Arkansas State Trooper Mike McNeill stopped
their vehicle, which was being driven by Torres, because Torres was not wearing his
seat belt, a violation of Arkansas law. McNeill explained the reason for the traffic
stop, and Torres responded in English that he had been wearing his seat belt but had
just taken it off for the traffic stop. Thereafter, the two men engaged in a series of
questions and answers, with Torres’s responses occasionally suggesting that his
limited English-language skills caused him some difficulty in understanding
McNeill’s questions. McNeill repeatedly asked Torres if he could search Torres’s
vehicle and, after some confusing exchanges, McNeill searched the vehicle,
recovering 2.7 pounds of methamphetamine.
Torres and Diaz were indicted for conspiring to possess, and possessing,
methamphetamine with the intent to distribute. 18 U.S.C. §§ 841(a)(1), (b)(1)(a) &
846. Torres filed a motion to suppress the methamphetamine recovered from his
vehicle, arguing that he did not knowingly and voluntarily consent to the search.
Diaz joined in the suppression motion. In denying the motion, the District Court1
found that the government had proved by a preponderance that it was reasonable for
McNeill to believe that Torres knowingly and voluntarily consented to the search.
After a bench trial, Torres and Diaz were each found guilty of the crimes charged, and
each was sentenced to 151 months’ imprisonment.
1. Torres
On appeal, Torres argues that his limited understanding of English prevented
him from validly consenting to the search of his vehicle and that the District Court
erred in concluding otherwise. A search conducted without a warrant is valid if the
1
The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas.
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person subject to the search knowingly and voluntarily consents thereto. United
States v. Cedano-Medina, 366 F.3d 682, 684 (8th Cir.), cert. denied, 543 U.S. 1035(2004). “The focus is not whether [the defendant] subjectively consented, but rather,
whether a reasonable officer would believe consent was given . . . .” United States
v. Guerrero, 374 F.3d 584, 588 (8th Cir. 2004). Consent “can be inferred from words,
gestures, or other conduct.” Id. Whether a reasonable officer would believe that a
defendant consented is a question of fact that we review for clear error. United
States v. Pena-Ponce, 588 F.3d 579, 584 (8th Cir. 2009).
Here, McNeill testified at the suppression hearing that after he stopped Torres
for the seat-belt infraction, Torres explained in English that he had been wearing his
seat belt until he was pulled over. McNeill asked for Torres’s driver’s license and
proof of insurance, and Torres responded by providing an expired Arkansas
identification card and proof of insurance. McNeill asked Torres to step out of the
vehicle and move to the passenger side of the patrol car, and Torres complied. The
government introduced a video recording of the traffic stop but because of a technical
malfunction in the patrol-car equipment, the recording does not begin until after
Torres explained in English that he had been wearing his seat belt until he was pulled
over. The video revealed that when McNeill asked whether Torres had any drugs or
weapons, Torres responded, “No,” and when McNeill asked Torres how long he had
been in the United States, Torres responded, “Five.” But when McNeill asked Torres
his age, Torres responded with his full name. When McNeill asked whether Torres
would permit a search of his vehicle, Torres initially responded by stating that the car
was not his; it belonged to his cousin. McNeill asked several more times whether he
could search the vehicle, explaining that Torres could consent to a search even if he
did not own the vehicle because he had been driving it. Eventually, Torres agreed to
the search, stating, “Sure.” The government also called James White, who testified
that he and Torres had worked together for three years as seasonal employees; that
he spoke with Torres at work in English; and that on a scale of one to ten, Torres’s
English-language skills were “somewhere in the middle.” Suppression Hr’g Tr. at 8.
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Based on this evidence, the District Court did not clearly err in concluding that
“a reasonable person would believe Torres voluntarily consented to the search when
he answered ‘sure’ to McNeill’s request to search the car.” Order of Oct. 22, 2010,
at 4. As in Cedona-Medina, 366 F.3d at 686, there was a “language barrier” and
“apparent lapses in communication” between McNeill and Torres, but Torres
responded appropriately to most of the questions posed and requests made by
McNeill, Torres did not object to the search once it had begun, and the government
established by a preponderance of the evidence that McNeill reasonably believed that
Torres spoke and understood English, a finding bolstered by White’s testimony that
he and Torres frequently conversed in English. See e.g., United States v. Gallardo,
495 F.3d 982, 989 (8th Cir. 2007) (upholding district court's determination that
consent was voluntary where language barrier existed); United States v. Sanchez, 156
F.3d 875, 878 (8th Cir. 1998) (same); United States v. Galvan-Muro, 141 F.3d 904,
907 (8th Cir. 1998) (same).
2. Diaz
Diaz first argues that the District Court erred in ruling that because he was
merely a passenger in Torres’s vehicle, he did not have standing to challenge the
search of the vehicle. He also argues that the court erred in ruling that Torres
knowingly and voluntarily consented to the search. To have standing to assert his
claim, Diaz must demonstrate that he personally had a reasonable expectation of
privacy in the vehicle; such an expectation cannot be asserted vicariously. See United
States v. Barragan, 379 F.3d 524, 529 (8th Cir. 2004). As a mere passenger in
Torres’s vehicle with no legitimate expectation of privacy, Diaz does not have
standing to challenge the search of Torres’s car. See id. at 530. Diaz cites the U.S.
Supreme Court’s holding in Brendlin v. California, 551 U.S. 249 (2007), for the
proposition that he has standing to challenge the search even though he was only a
passenger in Torres’s vehicle. Brendlin held that a passenger is seized during a traffic
stop and thus may challenge the stop itself. Id. at 255. But Diaz is attempting to
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challenge the search of Torres’s vehicle, not the traffic stop, and Brendlin provides
no support for Diaz’s argument. See United States v. Crippen 627 F.3d 1056, 1063
(8th Cir. 2010), cert. denied, 131 S. Ct. 2914 (2011). The District Court did not err
in concluding that Diaz does not have standing to assert a challenge to the search of
Torres’s vehicle.
Diaz next argues that the District Court erred in ruling that the initial traffic
stop was valid because, according to Diaz, McNeill did not have reasonable suspicion
to stop Torres’s vehicle. We disagree. It is well established that even a minor traffic
violation provides probable cause for a traffic stop. Barragan, 379 F.3d at 528. Even
when an officer has a subjective belief that other illegal activity is afoot, the officer’s
subjective beliefs do not invalidate the traffic stop. United States v. Long, 320 F.3d
795, 798 (8th Cir. 2003) (concluding that a traffic stop is constitutional regardless of
an officer’s motive as long as the officer had probable cause to believe a traffic
violation had occurred). Here, McNeill testified that as he was passing Torres’s
vehicle on the driver’s side, he looked into the vehicle and it appeared as if Torres
was not wearing his seatbelt. To confirm, McNeill pulled ahead of Torres and into
the same lane, confirming through use of his rear-view mirror that Torres was not
wearing his seat belt. Although Torres and Diaz testified that Torres was wearing his
seat belt, the District Court credited McNeill’s testimony, and that determination “is
entitled to considerable weight.” Cedano-Medina, 366 F.3d at 686.
Diaz also argues that even if the initial stop was valid, the lawful scope of the
stop was impermissibly exceeded and he was illegally detained. A valid traffic stop
can become unlawful if it is “prolonged beyond the time reasonably required” to
complete the purpose of the stop. Illinois v. Caballes, 543 U.S. 405, 407 (2005).
Here, once Torres consented to a search of his vehicle, he necessarily consented to
the extension of the traffic stop for the length of time required for McNeill to execute
the search. The traffic stop was not impermissibly extended and Diaz was not
illegally detained while McNeill carried out the search to which Torres consented.
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For the foregoing reasons, we affirm the judgment of the District Court.
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