F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 3 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Defendant-Appellee,
v. No. 98-6264
OCTAVIO PEREZ-CAMPOS, a/k/a (D.C. No. 98-CR-6)
Octavio Perez, (W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges.**
On December 17, 1997, Oklahoma City police officers found marijuana in
Defendant Octavio Perez-Campos’ residence during a warrantless search. On January 20,
1998, Defendant was charged with various drug offenses in a five-count indictment.
Defendant subsequently filed a motion to suppress the marijuana, arguing that the officers
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34(A)(2). The case is therefore ordered
submitted without oral argument.
obtained the evidence in violation of the Fourth Amendment of the United States
Constitution. The district court denied Defendant’s motion to suppress. Defendant then
entered a conditional guilty plea to use of a telephone facility to facilitate the distribution
of marijuana, in violation of 21 U.S.C. § 843(b). Defendant reserved the right to appeal
the denial of his motion to suppress evidence. See Fed. R. Crim. P. 11(a)(2)
On appeal, Defendant argues that the district court erred in denying his motion to
suppress the marijuana. Defendant argues that because of his limited ability to speak and
understand English, his consent to the search of his home was not voluntary. Our
jurisdiction arises under 21 U.S.C. § 1291. We affirm.
I. Background
On December 16, 1997, officers of the Oklahoma City Police Department seized
approximately forty pounds of marijuana from several individuals. The individuals
informed the officers that they had obtained the marijuana from a house at 2609 South
Ollie from a person named “Octavio.” At approximately 3 a.m. the next morning, four
police officers went to 2609 South Ollie. Officer Mark Danner and another officer, both
in plain clothes, proceeded to the front door of the residence and knocked on the door.
Neither officer’s firearm was visible. Defendant looked out of the window and asked in
English what the officers wanted. The officers identified themselves and asked to speak
to him. After two or three minutes, Defendant opened the door. The officers then told
Defendant that they received a complaint about narcotics activity in the residence and
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asked if they could come in and speak to Defendant. In English, Defendant responded
“yes” and opened the screen door to allow them entry into the residence. Once inside
the house, the officers conversed with Defendant briefly in English regarding the other
occupants of the house. Defendant responded to all of their questions in English. The
officers asked Defendant if there were drugs in the house and he responded “no” in
English. Then the officers asked if they could search the house and Defendant answered
“yes” in English. A consent to search form was presented to Defendant and one of the
officers asked Defendant if he could read English and Defendant responded “a little.”
The officers then read the form to Defendant in English and Defendant took the form and
signed it. The officers searched the home, finding marijuana in a container in the living
room closet. Defendant observed the search from the living room, never indicating to the
officers that he wanted them to stop.
After the marijuana was discovered, Officer Danner testified that Defendant
appeared to have difficulty understanding English. As a result of Defendant’s changed
demeanor, Dana Mitchell, a Spanish-speaking officer, was called to the scene to assist.
Upon arriving at Defendant’s home, Officer Mitchell indicated that based on a previous
encounter with Defendant, he believed Defendant could speak English and did not need
an interpreter.1 Nevertheless, prompted by the other officers, Mitchell read Defendant
1
Officer Mitchell’s opinion regarding Defendant’s ability to speak and understand
English was based on an October 27, 1997, contact with Defendant during a 9-1-1 call,
(continued...)
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his Miranda rights in Spanish.
II. Analysis
When reviewing the district court’s denial of a motion to suppress, we accept the
factual findings of the district court unless those findings are clearly erroneous. United
States v. Arzaga, 9 F.3d 91, 93 (10th Cir. 1993). In doing so, we view the evidence in
the light most favorable to the government. United States v. Hunnicutt, 135 F.3d 1345,
1348 (10th Cir. 1998). The credibility of witnesses, the weight to be given evidence, and
the reasonable inferences drawn from the evidence fall within the province of the district
court. Id. The ultimate determination of reasonableness under the Fourth Amendment is
a question of law reviewable de novo. Id.
To determine whether Defendant voluntarily consented to the search of his
residence, we evaluate the totality of the circumstances, with the government bearing the
burden of proof. United States v. McRae, 81 F.3d 1528, 1536-37 (10th Cir. 1996). The
court must find that there was “no duress or coercion, express or implied, that the consent
was unequivocal and specific, and that it was freely and intelligently given.” United
1
(...continued)
at which time Defendant conversed in English with Officer Mitchell for approximately
ten minutes. At the suppression hearing, Officer Dale Reed also testified that he had
spoken with Defendant for 15 to 20 minutes in English on November 1, 1997, when
responding to two 9-1-1 calls at Defendant’s residence. In response to the second 9-1-1
call, Officer Reed arrested Defendant and transported him to the station for processing.
During that time, Defendant conversed with Officer Reed in English and never indicated
that he did not understand English.
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States v. Zapata, 997 F.2d 751, 758 (10th Cir. 1993). After examining the totality of the
circumstances, we conclude that the district court did not clearly err when it found that
Defendant’s English comprehension was sufficient to allow him to voluntarily consent to
the search of his residence.
Until the marijuana was discovered, all of Defendant’s communications with the
officers were in English; and Defendant responded promptly and appropriately in English
to the officers’ questions. Furthermore, the testimony of Officer Mitchell and Officer
Reed regarding their previous contact with Defendant also supports the district court’s
finding that Defendant understood English. In addition, FBI Special Agent Mark D.
Seyler testified that he had reviewed wiretap tapes which contain conversations in English
between Defendant and other individuals. These tapes were obtained during an organized
crime and drug investigation conducted in Oklahoma City.
Brushing aside the officers’ testimony, Defendant argues that the testimony of
Teresa Rendon, an expert in the field of language acquisition, established that Defendant
could not understand English. Rendon testified that after administering language
assessment tests to Defendant, she determined that Defendant could not have
comprehended the consent form read to him by the officers. Rendon also testified that it
is possible for an individual to “fake” the tests by pretending not to understand English.
The district court found Rendon’s testimony unpersuasive in light of the other witnesses’
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testimony regarding Defendant’s ability to comprehend English. We cannot conclude
that the district court clearly erred in doing so.
Accordingly, the decision of the district court is
AFFIRMED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
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United States v. Perez-Campos
Combined Opinion