Unpublished Disposition, 928 F.2d 409 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 928 F.2d 409 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Alfonso CAMACHO-HERRERA, Defendant-Appellant.

No. 90-10252.

United States Court of Appeals, Ninth Circuit.

Submitted March 4, 1991.* Decided March 12, 1991.

Appeal from the United States District Court for the District of Arizona; No. CR-89-338-PHX-EHC, Earl H. Carroll, District Judge, Presiding.

D. Ariz.

AFFIRMED.

Before HUG, ALARCON and WIGGINS, Circuit Judges.


MEMORANDUM** 

Alfonso Camacho-Herrera (Camacho) was indicted for possession with intent to distribute marijuana, pursuant to 21 U.S.C. § 841(a) (1). After the district court denied his motion to suppress evidence, Camacho entered a conditional plea of guilty pursuant to Rule 11(a) (2) of the Federal Rules of Criminal Procedure. Camacho appeals from the district court's order denying his motion to suppress. We affirm.

PERTINENT FACTS

Camacho was arrested by officers of the Highway Patrol Bureau of the Arizona Department of Public Safety after they discovered marijuana in a duffle bag in the trunk of his vehicle. Camacho had been initially observed driving a white Ford automobile, traveling in tandem with a black Pontiac Trans Am. Both vehicles were driven by males who appeared to be Hispanic.

Camacho was stopped by Officer Eaves for exceeding the speed limit. Officer Torres, who speaks Spanish fluently, joined Officer Eaves within minutes after the detention. Officer Torres explained to Camacho in Spanish that he was being given a warning for speeding. He advised Camacho that he was free to go. Officer Torres then asked Camacho if he minded if the officers looked in the Ford. Camacho replied: "Go ahead." After looking in the passenger compartment, Officer Torres asked Camacho if he minded if they "looked inside the trunk." Camacho consented and complied with Officer Torres' request that he unlock the trunk himself.

When the trunk was opened, Officer Torres and Officer Eaves smelled a strong odor of marijuana. They also noticed brick-shaped objects pressing against the side of a zipped duffle bag in the trunk. The officers opened the duffle bag and discovered 123 bricks of marijuana. Camacho's motion to suppress the marijuana was denied.

ANALYSIS

Camacho contends that the district court erred in denying his motion to suppress the evidence found in the trunk of his car because the search was conducted without a warrant and the Government failed to prove that he voluntarily consented to the search. Camacho further contends that even if the search of the trunk was properly conducted pursuant to his consent, the search of the duffle bag exceeded the scope of his consent. Camacho does not challenge the legality of the stop by the police officers for the purpose of issuing a warning for excessive speed.

Camacho contends that the Government failed to establish that his consent to the search of the car's trunk was freely and voluntarily given. He argues that he was unaware of his right to withhold or revoke consent based on his Mexican nationality and his background. In Schneckloth v. Bustamonte, 412 U.S. 218 (1973), the Supreme Court held that " [w]hile knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent." Id. at 227. The Court also held that "the question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Id. We review a district court's finding of voluntary consent for clear error. United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1299 (9th Cir. 1988).

In its order denying Camacho's motion to suppress, the district court made the following findings:

The defendant was not informed of his constitutional rights but there is no indication that Camacho did not understand that he was giving consent or that he felt compelled to give consent. DPS officer Torres was speaking to the defendant in Spanish. There was no coercion, in fact prior to his consent to view the contents of the trunk, the defendant was told by the officers he was free to go. Finally the defendant himself opened the trunk not the DPS officers.

The defendant's vehicle was lawfully stopped. The DPS officers properly obtained consent to search the trunk of the defendant's car.

The record reveals that the district court examined the totality of the circumstances surrounding Camacho's consent to the search of his vehicle. The evidence produced at the hearing on the motion to suppress supports the district court's finding that the consent was freely and voluntarily given, notwithstanding the fact that Herrera may not have been fully aware of his right to refuse consent.

Camacho contends that even if his consent to search the vehicle was voluntary, the search of the luggage contained in the trunk went beyond the scope of his consent. Therefore, Camacho argues, the officers' search of his luggage without a warrant violated his fourth amendment rights and his motion to suppress should have been granted. " [T]he lawfulness of a search presents a mixed question of law and fact that is reviewed de novo." United States v. Limatoc, 807 F.2d 792, 794 (9th Cir. 1987). See also United States v. Normandeau, 800 F.2d 953, 957 n. 5 (9th Cir. 1986) ("The propriety of a warrantless automobile search is a mixed question of law and fact that we review de novo.").

In United States v. Ross, 456 U.S. 798 (1982), the Supreme Court held that " [i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." Id. at 825. We followed Ross in United States v. Vasquez, 858 F.2d 1387 (9th Cir. 1988), cert. denied, 488 U.S. 1034 (1989). In Vasquez, we upheld the validity of a warrantless search in which the police officers opened an envelope found in a briefcase in the defendant's car. Id. at 1391. We held that this was appropriate under the automobile exception to the warrant requirement pursuant to Ross. Id.

Camacho contends that the officers did not have probable cause to believe that the vehicle contained contraband. He points to the facts known by the officers before they legally stopped his vehicle to issue a warning for excessive speed. The Government contends that the officers had probable cause to believe Camacho's vehicle contained contraband at the time it was legally stopped for speeding. We need not reach the issue of whether probable cause to search the vehicle existed at the time of the legal stop. The search of the luggage was valid under Vasquez because at the time of the search of the contents of the duffle bag, probable cause existed to believe that it contained contraband.

As discussed above, the record shows that Camacho voluntarily consented to a search of the trunk. Once the trunk was opened, both officers smelled a strong scent of marijuana and saw brick-shaped objects in the duffle bag. These observations provided probable cause to believe that the duffle bag contained contraband. Under Ross, the officers were justified in searching the duffle bag without a warrant or Camacho's consent.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument pursuant to Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4

 **

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