OpenJurist

917 F2d 566 United States v. Bruges

917 F.2d 566

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Ismael BRUGES, Defendants-Appellants.
UNITED STATES of America, Plaintiff-Appellee,
v.
Jose Gregori MAVARES, Defendant-Appellant.

No. 89-50081.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 1, 1990.
Decided Nov. 5, 1990.

Before PREGERSON, REINHARDT and CYNTHIA HOLCOMB HALL, Circuit Judges.

1

MEMORANDUM*

2

Defendants appeal the district court's decision denying their motions to suppress evidence seized during post-arrest searches. Both defendants sought to suppress the government's warrantless search and seizure of 707 pounds of cocaine found inside sealed boxes that were being transported in a tractor-trailer. Defendant Bruges further urged the district court to suppress evidence seized pursuant to a warrant, on the grounds that the magistrate's probable cause finding relied upon the prior "illegal" search. Additionally, defendant Mavares argues that the district court abused its discretion by admitting into evidence his date book and by failing to instruct the jury to disregard the prosecutor's statements in closing arguments regarding Mavares's Cadillac.

3

Pursuant to F.R.Crim.P. 11(a)(2), Bruges entered a conditional plea of guilty to (1) possession of cocaine with intent to distribute, and (2) possession of two unregistered machine guns; reserving the right to appellate review of the trial court's adverse determination of his pre-trial motions to suppress evidence. In accordance with the conditional plea, the parties agree that a reversal of the district court's denial of Bruges's motion to suppress the admission of the cocaine will invalidate both of Bruges's convictions. A jury returned a verdict of guilty against Mavares for (1) conspiracy to possess cocaine with intent to distribute and conspiracy to distribute cocaine; and (2) possession of cocaine with intent to distribute. We affirm with respect to Mavares and reverse with respect to Bruges.

4

* In May, 1988, the Los Angeles Police Department (LAPD) began conducting surveillance of several houses, as a result of complaints from an anonymous citizen. The surveillance team, headed by LAPD Detective Joseph Salce, observed activity among a group of Latinos that, according to Detective Salce, was indicative of narcotics trafficking. Defendants Bruges and Mavares were among those identified as participating in the narcotics trafficking enterprise. At approximately 1:30 a.m. on June 15, 1988, LAPD officers saw a van back up to a tractor-trailer in the parking lot of a motel in which Mavares had rented a room a day before. Several men, including Mavares, loaded a number of boxes from the van to the trailer. Javier Gomez drove the tractor-trailer, with his son Juan as a passenger, to the vicinity of Central Avenue and Olympic Boulevard in Los Angeles, while Mavares followed in another van. The caravan stopped at a fast food restaurant and the participants in the enterprise ordered food. They were on the street eating when at least six uniformed LAPD officers converged on them with their guns drawn. The officers ordered the men to lie face down on the pavement in front of the restaurant. Each of the men was handcuffed and frisked. Detective Salce spoke to one of them, Javier Gomez, and obtained a key from him. Detective Salce unlocked the trailer and saw 15 boxes tightly sealed with tape. He opened one box and discovered packages of cocaine. The parties stipulated that the boxes contained approximately 707 pounds of cocaine. The parties, however, disagree on the question whether the police received valid consent to conduct the search.

II

5

Defendants argue that the district court erred in denying their motion to suppress evidence seized in the warrantles search of the tractor-trailer. A party may challenge the legality of a search only if he has a reasonable expectation of privacy in the place searched. Bruges argues he has standing to contest the warrantless search of the tractor-trailer because he was engaged in a joint operation to conceal and transport contraband, and thereby evinced a reasonable expectation of privacy in the transported containers in which the contraband had been secreted. The government has not raised on appeal the issue of Bruges's standing to challenge the warrantless search of the tractor-trailer. Bruges's declaration submitted to the district court states that he not only supervised and controlled the trailer for his father, whose name appears as the registered owner, but that he had joint control and supervision over the transportation of the sealed boxes that contained the cocaine. Accordingly, Bruges has standing to challenge the search of the tractor-trailer. See United States v. Perez, 689 F.2d 1336 (9th Cir.1982).

6

Mavares, on the other hand, has not established a sufficient relation to, or interest in, the tractor-trailer or its contents. Mavares's only asserted interest stems from his contention that he had permission to enter the tractor-trailer, that he entered it to assist in loading cargo, and that he assisted in securing the tractor-trailer after it was loaded. Supplement To Defendant Mavares' Previous Joinder In Motion To Suppress, Sever Counts, Etc.; Declaration of Jose Mavares In Support Thereof. These facts combined with the fact that Mavares followed Javier and Juan Gomez, the men riding in the tractor-trailer, to the vicinity of Central Avenue and Olympic Boulevard after the tractor-trailer had been loaded at the motel, are insufficient to support a finding that Mavares shared joint control and supervision of the tractor-trailer or its contents. To establish standing under the "formalized arrangement" theory, the record must " 'amply indicate[] a formalized, ongoing agreement' " between Mavares and the others who participated in the transportation of the cocaine. United States v. Johns, 851 F.2d 1131, 1136 (9th Cir.1988) (quoting United States v. Broadhurst, 805 F.2d 849, 951-52). While Mavares clearly participated in the transportation of the cocaine, neither the declarations he submitted to the district court nor any other evidence supports a claim that he had an arrangement with the other participants to exercise joint control and supervision of the tractor-trailer or the boxes it was transporting. Thus, the record demonstrates that Mavares failed to establish that he had a legitimate expectation of privacy in the tractor-trailer or its contents. He therefore has no standing to challenge the search of the trailer and the seizure of the cocaine.1

III

7

Bruges contends that the district court erred in finding that the police obtained valid consent to search the tractor-trailer and the sealed boxes inside the trailer. We review the district court's factual determination of voluntary consent for clear error. United States v. Castillo, 844 F.2d 1379, 1387 (9th Cir.1988). In doing so, we must bear in mind that the government has the burden of proving effective consent to a warrantless search. United States v. Guzman, 852 F.2d 1117 (9th Cir.1988).

8

Several factors must be considered in determining the question of voluntariness of a consent: (1) whether defendant was in custody; (2) whether officers had their guns drawn at the time the consent was given; (3) whether Miranda warnings had been given; (4) whether defendant was told he was free not to consent; and (5) whether defendant was told that the police would attempt to obtain a search warrant if he refused to consent. See Castillo, 844 F.2d at 1387-88. While these factors are not necessarily exclusive, they are the ones that are most frequently determinative.

9

The government failed to carry its burden as to each of the Castillo factors. When Detective Salce allegedly obtained the consent, Gomez was clearly in custody. The government does not contend that the officers guns were not drawn when the consent was obtained. The record tells us only that they had been drawn moments before. The government offers no evidence that Miranda warnings were given; nor does it even suggest that Detective Salce informed Gomez that he was free not to consent. Finally, the government makes no assertion that Gomez was told that a search warrant could be obtained despite his refusal to consent. While the government contends that under Castillo other circumstances may be relevant as well, it offers none that is pertinent here.2 We find that the government failed to carry its burden with respect to the voluntariness of the consent and therefore conclude that the district court erred in denying Bruges's motion to suppress the evidence obtained from the search of the tractor-trailer and the sealed boxes it was transporting.3

10

Since the officers failed to show that they obtained voluntary consent to search the trailer and its contents, we reverse Bruges's convictions.4

IV

11

Mavares's remaining arguments lack merit. First, Mavares asserts that the district court erred in admitting his date book into evidence. Although Mavares conceded the relevancy of the date book, he argues that its admission was unduly prejudicial because the jury "could conclude that the numerical entries in some fashion indicated quantities of drugs or sums of money." Mavares Opening Brief at 25. The date book is undoubtedly prejudicial, as is the case with respect to most evidence introduced by the prosecution in criminal trials. However, we do not believe the introduction of the date book was unfairly prejudicial. The government made no reference in its closing argument to any of the date book's numerical entries. In any event, the district court did not abuse its discretion in admitting the date book into evidence.

12

Finally, Mavares contends that the prosecutor engaged in misconduct by contending in his closing argument that the presence of Mavares's car in Bruges's driveway, prior to Mavares's arrival in California, suggests that he was involved in the transportation of earlier loads of cocaine. Claimed misconduct in final argument is reviewed to "consider first whether the statements were improper, and if so, whether it is more probable than not that the prosecutor's conduct 'materially affected the fairness of the trial.' " United States v. Polizzi, 801 F.2d 1543 (9th Cir.1986) (quoting United States v. McKoy, 771 F.2d 1207, 1212 (9th Cir.1985)). We do not find the prosecutor's statements to be improper. The evidence regarding the car buttresses, to some degree, the contention that Mavares knew what the sealed boxes contained. In any event, we do not believe that it is more probable than not that the prosecutor's conduct materially affected the fairness of the trial.

13

REVERSED as to appellant Bruges,

14

AFFIRMED as to appellant Mavares.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

In his effort to establish standing, Mavares relies heavily on United States v. Perez, 689 F.2d 1336 (9th Cir.1982). That case is clearly distinguishable. There, we found that the defendants "assert[ed] an interest both in the truck and in the seized property." Id. at 1338 (emphasis added). That is simply not what the record shows here with respect to Mavares

2

The government suggested at oral argument, for example, that Detective Salce was polite and well-mannered at all times and offered Gomez the choice of conversing in English or Spanish. While such conduct is commendable, it does not render Gomez's consent voluntary

3

The government reaffirmed at oral argument that the search of the sealed packages must be justified on the basis of Gomez's consent and expressly disclaimed reliance on any other theory to support that search

4

We need not address the question whether there was probable cause, independent of the seizure of the cocaine from the trailer, to allow the issuance of the search warrant for the residences and other vehicles. The government conceded at oral argument that, for purposes of this appeal, both of Bruges's convictions hinge on the validity of the consent search of the trailer and its contents