United States v. Suarez

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-5020

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LUIS CORCHO SUAREZ,

Defendant - Appellant.

No. 08-4022

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ERNESTO PRIETO OSORIO,

Defendant - Appellant.

Appeals from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:06-cr-00049-RLV; 5:06-cr-00049-
RLV-1)

Submitted: December 23, 2008 Decided: January 30, 2009

Before GREGORY, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.

Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN, P.C., Decatur,
Georgia, for Appellants. Gretchen C. F. Shappert, United States
Attorney, Adam Morris, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Luis Corcho Suarez entered a conditional plea of

guilty to one count of conspiracy to possess with intent to

distribute at least five kilograms of cocaine, in violation of

21 U.S.C. § 846 (2006), and was sentenced to sixty months’

imprisonment. Ernesto Prieto Osorio entered a conditional plea

of guilty to one count of conspiracy to possess with intent to

distribute at least five kilograms of cocaine and one count of

possession with intent to distribute at least five kilograms of

cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006), and

was sentenced to the statutory mandatory minimum of 120 months’

imprisonment. Finding no error, we affirm.

On appeal, Suarez and Osorio contend the district

court erred in denying their motions to suppress the cocaine

seized from the vehicle in which they were traveling. We review

the court’s factual findings underlying the denial of a motion

to suppress for clear error and its legal conclusions de novo.

United States v. Branch, 537 F.3d 328, 337 (4th Cir. 2008). The

evidence is construed in the light most favorable to the

prevailing party below. United States v. Uzenski, 434 F.3d 690,

704 (4th Cir. 2006).

Suarez and Osorio, who are both Cuban, contend that

the traffic stop initiated by law enforcement was pretextual and

racially motivated. The Supreme Court “uniformly has held that

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the application of the Fourth Amendment depends on whether the

person invoking its protection can claim a ‘justifiable,’ a

‘reasonable,’ or a ‘legitimate expectation of privacy’ that has

been invaded by government action.” United States v. Knotts,

460 U.S. 276, 280 (1983). “A person traveling in an automobile

on public thoroughfares has no reasonable expectation of privacy

in his movements from one place to another.” Id. at 281.

Moreover, “if an officer has probable cause or a reasonable

suspicion to stop a vehicle, there is no intrusion upon the

Fourth Amendment.” United States v. Hassan El, 5 F.3d 726, 730

(4th Cir. 1993).

We have specifically rejected the test advanced by

Appellants, which would require a court to look to the officer’s

subjective motivations in initiating a traffic stop, in favor of

an objective test. Id. Thus, “when an officer observes a

traffic offense or other unlawful conduct, he or she is

justified in stopping the vehicle under the Fourth Amendment,”

regardless of whether the officer’s interest in the vehicle was

based on “intuitive suspicions that the occupants of the car

[were] engaged in some sort of criminal activity.” Id.

Here, the officer who initiated the traffic stop

determined that Appellants’ vehicle was exceeding the speed

limit by thirteen miles per hour. Neither Suarez nor Osorio

challenges the district court’s determination that they were

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speeding. Instead, they argue that the “inception” of the stop

occurred when officers first determined that the vehicle was

suspicious. However, until a seizure implicating the Fourth

Amendment has occurred, officers are “not required to have a

‘particularized and objective basis for suspecting [an

individual] of criminal activity,’ in order to pursue him.”

Michigan v. Chesternut, 486 U.S. 567, 576 (1988) (quoting United

States v. Cortez, 449 U.S. 411, 417-18 (1981)). Under the facts

of this case, Appellants cannot establish that they were

“seized” for Fourth Amendment purposes merely because the

officers determined that their vehicle was suspicious. See

Terry v. Ohio, 392 U.S. 1, 20 n.16 (1968) (stating a seizure

occurs when an “officer, by means of physical force or show of

authority, has in some way restrained the liberty of” an

individual).

Appellants’ contention that the stop was racially

motivated is likewise without merit. Allegations of racially

motivated law enforcement implicate the Equal Protection Clause

rather than the Fourth Amendment. United States v. Bullock, 94

F.3d 896, 899 (4th Cir. 1996). The standard for establishing a

selective enforcement claim is “demanding” and requires evidence

that clearly contradicts the presumption that officers have not

violated equal protection. United States v. Armstrong, 517 U.S.

456, 463-65 (1996); see also Bullock, 94 F.3d at 899 (applying

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Armstrong in traffic stop case). A defendant must therefore

establish that the law enforcement practice “had a

discriminatory effect and that it was motivated by a

discriminatory purpose.” Armstrong, 517 U.S. at 465. Moreover,

a defendant must show that the law enforcement practice was not

enforced against “similarly situated individuals of a different

race.” Id.

Other than contradictory testimony on the issue of

whether one officer described Appellants as “black,” there is

nothing in the joint appendix to suggest that race played any

part in the traffic stop. The district court determined that

even assuming the comment was made, it was merely a descriptor

used to identify the vehicle’s occupants rather than evidence of

improper racial motivation. Additionally, there is no evidence

in the joint appendix establishing that the officers failed to

stop individuals of other races for exceeding the speed limit by

more than ten miles per hour.

Suarez and Osorio also contend that the request for

consent to search the vehicle was improper. They incorrectly

argue that probable cause is required before an officer may seek

consent to search. See Schneckloth v. Bustamonte, 412 U.S. 218,

219 (1973) (“[O]ne of the specifically established exceptions to

the requirements of both a warrant and probable cause is a

search that is conducted pursuant to consent.”). Rather, where

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officers “lack probable cause to arrest or search, a search

authorized by a valid consent may be the only means of obtaining

important and reliable evidence.” Id. at 227. “The

circumstances that prompt the initial request to search may

develop quickly or be a logical extension of investigative

police questioning.” Id. at 232.

In this case, there is no evidence that the officers

used any coercive tactics in obtaining consent. After

Appellants’ identification cards and vehicle registration were

returned to them, they were informed that they were free to

leave. Appellants do not allege, and the joint appendix does

not show, that the officers drew their weapons, behaved in an

antagonistic manner, or otherwise informed Suarez or Osorio that

they were under arrest prior to requesting consent to search.

The totality of the circumstances therefore establishes that

consent was voluntarily rendered. See Schneckloth, 412 U.S. at

248-49 (“Voluntariness is a question of fact to be determined

from all the circumstances . . . .”). Thus, we conclude the

district court did not err in refusing to suppress the evidence

obtained during the vehicle search.

Osorio additionally contends that the district court

erred in determining that he was ineligible for a reduction

under U.S. Sentencing Guidelines Manual (“USSG”) § 5C1.2(a)

(2006) (“the safety valve”). To qualify for sentencing under

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the safety valve provision, a defendant must meet all five

criteria set forth in 18 U.S.C. § 3553(f) (2006), and

incorporated in USSG § 5C1.2(a). The district court’s

determination of whether a defendant has satisfied the safety

valve criteria is a question of fact reviewed for clear error.

United States v. Wilson, 114 F.3d 429, 432 (4th Cir. 1997).

We have previously stated that the “plain and

unambiguous language of [18 U.S.C. § 3553(f)(5)] obligates

defendants to demonstrate, through affirmative conduct, that

they have supplied truthful information to the Government.”

United States v. Ivester, 75 F.3d 182, 184-85 (4th Cir. 1996).

Such information includes everything the defendant knows about

“the offense or offenses that were part of the same course of

conduct or of a common scheme or plan.” USSG § 5C1.2(a)(5).

The information provided by Osorio was vague and, at

times, contradictory. Furthermore, a birth certificate issued

in another individual’s name as well as other documents

discovered in Osorio’s possession were never fully explained.

Thus, the district court cannot be said to have clearly erred in

determining that Osorio’s provision of “vague, incomplete, and

in several aspects, untruthful” information rendered him

ineligible for the safety valve reduction.

Accordingly, we affirm the judgments of the district

court. We dispense with oral argument because the facts and

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legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional

process.

AFFIRMED

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