Unpublished Disposition, 911 F.2d 739 (9th Cir. 1990)

MEMORANDUM^** 

Luis Humberto Martinez appeals his conviction, following a conditional guilty plea, for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(1) (a). Martinez contends that the district court erred by denying his motion to suppress evidence seized following a warrantless and allegedly nonconsensual search of Martinez' automobile. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

We review the denial of a motion to suppress de novo. United States v. Thomas, 863 F.2d 622, 625. The determination that a defendant voluntarily consented to a search depends on the totality of circumstances and is a question of fact reviewed under the clearly erroneous standard. United States v. Brown, 884 F.2d 1309, 1311 (9th Cir. 1989), cert. denied, 110 S. Ct. 732 (1990); United States v. Vasquez, 858 F.2d 1387, 1389 (9th Cir. 1988), cert. denied, 109 S. Ct. 847 (1989). "On appeal the evidence must be viewed in the light most favorable to the fact-finder's decision." United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir. 1989). "Credibility determinations ... are matters left to the trier of fact." Vasquez, 855 F.2d at 1391 (citation omitted).

Relevant factors in determining whether consent to a search was voluntary under the totality of the circumstances include:

(1) whether the defendant was in custody; (2) whether the arresting officers have their guns drawn; (3) whether Miranda warnings have been given; (4) whether the defendant was told he has a right not to consent; and (5) whether the defendant was told a search warrant could be obtained.

Vasquez, 858 F.2d at 1390-1391 (citing United States v. Castillo, 844 F.2d 1379, 1387-1388 (9th Cir. 1988) (superseded on other grounds, 866 F.2d 1071 (9th Cir. 1989)). None of these factors alone are dispositive in determining whether consent to a search is voluntary. Castillo, 866 F.2d at 1082.

Examining the totality of the circumstances here, we find that the district court's determination that Martinez freely and voluntarily consented to a search is not clearly erroneous. The record demonstrates that although the defendant was in custody, neither of the officers had their guns drawn. Officer Alegria questioned Martinez in Spanish, Martinez's native language. Martinez testified that he had no trouble understanding the questions put to him by Officer Alegria. Officer Alegria testified that he read Martinez his rights in Spanish and that Martinez indicated he understood those rights. There was no evidence that Martinez was threatened or coerced in any way into giving consent to the search of his car trunk. In fact, the testimony of both officers involved shows that Officer Alegria asked for and received permission from Martinez to search the trunk of Martinez's car, where Officer Warren discovered the box containing the drugs.

Although Martinez contests the officers' account, the district court as fact-finder was entitled to believe the officers' testimony rather than that of the defense witnesses. See Vasquez, 858 F.2d at 1391. Thus, viewed in the light most favorable to the fact-finder's decision, the district court's finding that Martinez voluntarily consented to the search of his car trunk was not clearly erroneous, and the motion to suppress was properly denied. See Brown, 884 F.2d at 1311; Vasquez, 858 F.2d at 1389; Castillo, 866 F.2d at 1082.

AFFIRMED.