F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 19, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 04-3160
v. (D.C. No. 02-CR-40133-SAC)
JOSE LOPEZ-GUZMAN, (D. Kan.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL, McKAY, and HENRY, Circuit Judges.
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). The case is therefore submitted without
oral argument.
Defendant was indicted for possession with intent to distribute
approximately 5.9 kilograms of cocaine in violation of 18 U.S.C. § 841(a)(1).
Defendant filed a motion to suppress evidence allegedly obtained in violation of
*
This order and judgment is not binding precedent, except under the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.
his Fourth Amendment rights. The district court denied the motion. Defendant
then entered a conditional plea and subsequently brought this appeal.
On September 13, 2002, Defendant was driving eastbound on I-70 through
rural Kansas. Sergeant Rule, driving westbound on that same stretch of road, was
conducting routine patrol when he noticed Defendant following too closely behind
another driver in violation of Kansas traffic law. After noticing the traffic
violation, Sergeant Rule turned around and followed Defendant for approximately
one mile before pulling him over.
After stopping Defendant, Sergeant Rule immediately realized that an
apparent language barrier existed between Defendant and himself; Defendant
spoke Spanish while Sergeant Rule spoke English. Over the course of Sergeant
Rule’s career, he had learned some Spanish and therefore attempted to
communicate with Defendant in both English and in his admittedly poor Spanish.
The two discussed several issues and Sergeant Rule eventually issued Defendant a
traffic citation.
After issuing the traffic citation, Sergeant Rule handed Defendant his
drivers’ license and registration, and began to step away from the car. Before
arriving back to his patrol car, Sergeant Rule turned around and returned to
Defendant’s vehicle to ask Defendant additional questions. Sergeant Rule first
asked Defendant if he could engage him in further questioning. Defendant
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agreed. He then asked Defendant, in Spanish, if he had any drugs. Defendant
denied carrying any drugs. Sergeant Rule then asked in both English and Spanish
if he could search the vehicle. Defendant agreed.
After agreeing to a search of the vehicle, Defendant began to move his car.
Sergeant Rule immediately corrected Defendant’s action by telling him that he
had asked him, Defendant, to exit the car. Defendant complied. Sergeant Rule’s
subsequent search revealed approximately 5.9 kilograms of cocaine.
On appeal, Defendant claims that his consent was not knowingly and
voluntarily given, rendering Sergeant Rule’s search violative of his Fourth
Amendment rights, and, as a result, the district court should have granted
Defendant’s suppression motion. “In reviewing the denial of a motion to
suppress, we must accept the district court’s factual findings unless clearly
erroneous and we view the evidence in the light most favorable to the prevailing
party.” United States v. Springfield, 196 F.3d 1180, 1183 (10th Cir. 1999)
(citation omitted). In considering this evidence, “we are mindful that at a hearing
on a motion to suppress, the credibility of the witnesses and the weight to be
given the evidence together with the inferences, deductions and conclusions to be
drawn from the evidence, are to be determined by the trial judge.” United States
v. Werking, 915 F.2d 1404, 1406 (10th Cir. 1990) (internal quotation marks
omitted). Nevertheless, we review de novo the district court’s legal conclusion
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that the search comported with the strictures of the Fourth Amendment. United
States v. Ramirez, 63 F.3d 937, 940 (10th Cir. 1995).
Generally, prior to searching one’s possessions, an officer must have a
warrant issued from a judicial officer. See United States v. Jackson, 381 F.3d
984, 988 (10th Cir. 2004). However, an exception to the warrant requirement
exists when consent is given by the person to be searched. Id. For consent to be
valid, the government bears the burden of proving by a preponderance of the
evidence that the consent was freely and voluntarily given. See United States v.
Zubia-Melendez, 263 F.3d 1155, 1160 (10th Cir. 2001). “The government must
show 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
States v. Hernandez, 93 F.3d 1493, 1500 (10th Cir. 1996).
Defendant contends that he could not have given voluntary consent because
he does not speak English very well. The existence of a language barrier can
vitiate consent. See United States v. Hernandez, 913 F.2d 1506, 1510 (10th Cir.
1996) (explaining that “language barriers may inhibit a suspect's ability to [act]
knowingly and intelligently”). However, a finding by the district court that a
defendant could converse sufficiently with the officer to demonstrate an
understanding of the officer supports a decision of voluntary consent. See Zubia-
Melendez, 263 F.3d at 1163.
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The district court made such findings in this case:
The court finds . . . that defendant understood Sergeant Rule’s
requests sufficiently to respond to them, and that he did
respond to them. Defendant demonstrated adequate receptive
language skills to consent to search, particularly given the fact
that Sergeant Rule spoke Spanish at crucial times to assure
defendant’s understanding of what was being asked him.
....
Defendant responded to several of Sergeant Rule’s requests
made in English, without any Spanish counterparts, such that
the court is persuaded that defendant understood English
sufficiently to consent to the officer’s request to search the
vehicle.
United States v. Lopez-Guzman, 246 F. Supp. 2d 1155, 1161 (D. Kan. 2003). This
finding was based on a preponderance of the evidence standard. Id. at 1160.
While what Defendant truly understood in his conversation with Sergeant
Rule is difficult to ascertain, we cannot say that the district court’s finding is
clearly erroneous. “A finding of fact is ‘clearly erroneous’ if it is without factual
support in the record or if the appellate court, after reviewing all the evidence, is
left with a definite and firm conviction that a mistake has been made.” Manning
v. United States, 146 F.3d 808, 812 (10th Cir. 1998). After reviewing the record,
including the video-taped encounter between Defendant and Sergeant Rule, we
are not left with a firm conviction that a mistake has been made. Indeed, the high
hurdle imposed by the clearly erroneous standard has not been met.
In addition, Defendant argues that notwithstanding this court’s finding that
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his consent was valid, he revoked his consent when he began to move his car
forward. A suspect may revoke his consent. See United States v. West, 219 F.3d
1171, 1178 (10th Cir. 2000) (recognizing the right of a criminal suspect to
withdraw his consent). The district court again made a clear finding in this
regard: “[T]he movement [of the vehicle] does not appear to evidence defiance of
the officer’s request that defendant move to the shoulder of the road, but rather
compliance with what defendant thought Sergeant Rule’s request to be.” Lopez-
Guzman, 249 F. Supp. 2d at 1162. The fact that Defendant may have
misunderstood the specifics of Sergeant Rule’s request does not demonstrate a
revocation of his consent. 1 Misunderstandings are commonplace in our culture,
regardless if the two parties speak the same language. After reviewing the record,
we do not find the district court’s finding of fact to be clearly erroneous. The fact
that Defendant quickly exited his car when Sergeant Rule clarified his request
defeats Defendant’s argument that he was revoking his consent when he began to
move his car.
1
We also agree with the district court that “the fact of the vehicle’s
movement [is also] insufficient to . . . indicate that [Defendant’s consent] was not
freely given.” Lopez-Guzman, 346 F. Supp. 2d at 1162.
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AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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