Unpublished Disposition, 932 F.2d 973 (9th Cir. 1991)

No. 90-50044.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER and REINHARDT, Circuit Judges, and KING, District Judge.^* 

MEMORANDUM^** 

Enrique Salazar Lara ("Lara") was convicted for possessing unregistered firearms and firearms without serial numbers, violations of 26 U.S.C. §§ 5681(d) and 5681(i). He was sentenced to 12 months in custody and fined $20,000. Lara appealed his conviction, claiming that the district court erred in denying his motion to suppress the guns as evidence. We affirm.

FACTS AND PROCEDURAL HISTORY

In November, 1988, Deputy Gary Alley of the Los Angeles County Sheriff's Department received information that the owner of Tony's Tire Shop in Paramount, California, was selling cocaine and dealing in stolen goods. In January, 1989, while conducting undercover surveillance of the shop, Deputy Alley observed an unknown person exchange a small package wrapped in tinfoil for a small square object from the owner, Enrique Salazar Lara ("Lara"). After the unknown person departed, Lara, looking around nervously, placed the tinfoil package in the trunk of a vehicle and drove away. Deputy Alley observed Lara immediately make a telephone call on a mobile telephone.

Deputy Alley radioed instructions to another officer, Deputy Brian Fitch, to stop Lara's vehicle, which he did. Deputy Alley then pulled his unmarked car in behind Deputy Fitch's patrol car. After consulting with Deputy Alley, Deputy Fitch informed Lara that he was being investigated for narcotics and asked him to exit the vehicle. Deputy Fitch then conducted a pat-down search and discovered a large quantity of money on Lara's person. Lara stated that the money was the proceeds from the sale of a truck. Deputy Fitch testified that he asked for and received permission to search Lara's vehicle and asked Lara to sit in the back of his patrol car while he conducted the search.

In the trunk of the car Deputy Fitch found the tinfoil wrapped package. He opened it and discovered that it contained $5,000. Lara was then asked to get out of the patrol car, and he did so. By this time, a Spanish-speaking officer, Officer Joseph Villanuva had arrived on the scene. Deputy Villanuva then questioned Lara in Spanish to make certain that he understood why he had been stopped and what was happening. Lara denied that the money from the trunk was his and stated that he did not know how it had gotten there. While Deputy Villanuva was questioning Lara, Deputy Fitch searched the back of his patrol car and found a folded $10 bill containing a bindle of cocaine. Lara was then placed under arrest. Deputy Fitch testified that prior to the arrest Lara had been detained for approximately five minutes.

After Lara's arrest, he was again placed in the patrol car. Deputy Villanuva told Lara that the officers believed that drugs and stolen property would be found at his residence and business. Lara denied this and signed a search consent form giving the officers permission to search his home and the tire shop for narcotics and money. The consent form was written in Spanish on one side and English on the other. Prior to giving his consent for the search Lara was not informed of his Miranda rights.

While conducting a search of the tire shop, Deputy Robert Ruegger found a blue box in a desk drawer which contained an Uzi automatic pistol. Deputy Ruegger removed the Uzi from the box, unloaded it, and determined that it was in a fully automatic mode and that the serial numbers had been obliterated. He seized the Uzi. Deputy Ruegger then found an AR-15 semi-automatic rifle in plain view in the rear portion of the shop. While disarming the AR-15, Deputy Ruegger noticed that its serial numbers had also been obliterated. Deputy Ruegger then seized the AR-15.

Lara was subsequently indicted for possession of unregistered firearms and possession of firearms without serial numbers. 26 U.S.C. §§ 5861(d) and 5861(i). Lara moved to suppress the firearms, alleging that they were the fruits of an illegal arrest and that the illegality of the arrest vitiated the consent given, or, if the court found that consent was voluntary, the seizure of the guns exceeded the scope of the consent.

The district court denied the motion, finding that: (1) placing Lara in the patrol car did not transform the Terry stop into an arrest; (2) Lara voluntarily consented to the search of the tire shop; and (3) seizing the weapons did not exceed the scope of the consensual search. Lara timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.

ANALYSIS

A district court's findings of fact in a suppression hearing are reviewed for clear error. United States v. Mitchell, 812 F.2d 1250, 1253 (9th Cir. 1987). Whether the seizure of a defendant prior to formal arrest has exceeded the bounds of a Terry stop is reviewed de novo. United States v. Ricardo D., 912 F.2d 337, 339 (9th Cir. 1990).

The district court found that the facts described above were sufficient to provide reasonable suspicion to justify the initial Terry stop.¹  Lara admits that the Terry stop was supported by reasonable suspicion. Lara's argument is that the stop developed into a de facto arrest when he was placed in the back of the patrol car. Therefore, the first issue to be decided is whether, under the totality of the circumstances, the detention constituted an arrest. See United States v. Robertson, 833 F.2d 777, 780 (9th Cir. 1987) ("Whether an arrest has occurred depends on all the surrounding circumstances ...").

Although there is no "bright-line for determining when an investigatory stop crosses the line and becomes an arrest," Id., (citing United States v. Hatfield, 815 F.2d 1068, 1070 (6th Cir. 1987)), the detention must last no longer than is necessary to effectuate the purpose of the stop and the methods employed must be the least intrusive available. Florida v. Royer, 460 U.S. 491, 500 (1983). We have held that "a suspect may be moved from the location of the initial stop without converting the stop into an arrest when it is necessary for safety or security reasons." Ricardo D., 912 F.2d at 340.

Deputy Fitch stated that the investigative purposes of the detention in question were accomplished in approximately five minutes. He also testified that Lara was asked to sit in the patrol car for his own safety and the safety of the officer. Lara's vehicle was stopped on the side of the freeway at night. Lara was suspected of drug trafficking. The need for safety precautions for both the suspect and the officer in such a situation is obvious. Therefore, it was not overly intrusive for Deputy Fitch to request that Lara sit in the patrol car while the search of the trunk took place.

Since the length of the detention was reasonable and the means employed constituted a minimal intrusion, we find that no arrest resulted from placing Lara in the patrol car.

To be effective, consent to a search must be voluntary. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The government has the burden of proving effective consent to a warrantless search. United States v. Guzman, 852 F.2d 1117 (9th Cir. 1988). "We review for clear error a district court's ruling that a consent to search was voluntary." United States v. Iglesias, 881 F.2d 1519, 1522 (9th Cir. 1989). The voluntariness of the consent is determined from the totality of the circumstances. United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1299 (9th Cir. 1988). However, " [o]n appeal, the evidence must be viewed in the light most favorable to the verdict." United States v. Alfonso, 759 F.2d 728, 740 (9th Cir. 1985).

With respect to this issue, the district court made the following findings of fact:

After defendant was arrested, defendant consented to allow the deputies to search his home and tire business. While the Court considers it coercive for the deputies to follow and stop defendant on the highway and during the stop to ask if they can search his home and business, such action did not rise to the level of vitiating defendant's consent to search.

In United States v. Castillo, 866 F.2d 1071 (9th Cir. 1988), we stated that, although no one factor or combination of factors was dispositive, the following factors are particularly important to consider when making this determination: "(1) whether 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 defendant was told a search warrant could be obtained." Castillo, 866 F.2d at 1082.

In the instant case, defendant was in custody, no Miranda warning was given, and he was not told that he had a right not to consent. Further, the government did not suggest to Lara that a search warrant could be obtained even if he refused to consent. However, as we held in Castillo, " [t]he fact that some of these factors are not established does not automatically mean that consent was not voluntary." Id. There, we noted that neither the absence of Miranda warnings nor the fact that the defendant was in custody was dispositive. Id. (citing United States v. Alfonso, 759 F.2d 728, 741 (9th Cir. 1985)); see also United States v. Ritter, 752 F.2d 435, 439 (9th Cir. 1985) ("The absence of Miranda warnings is not [ ] dispositive of whether an individual has voluntarily consented to a search."). Indeed, our review of the facts is not limited to the circumstances enumerated in Castillo.

Here, Lara signed a consent form (written in Spanish) permitting the officers to search his home and business. He also made an exculpatory statement that no drugs or money would be found during a search of either location. Both of these factors suggest that Lara's consent was voluntary.² 

The district judge stated that, although she believed that asking for Lara's consent while he was in the patrol car was coercive, it was not so coercive as to vitiate his voluntary consent. Based on the factors present and the testimony before it, the district court could reasonably have determined that consent was voluntary. At least, we cannot say that this finding was clearly erroneous.

The district court's finding as to the scope of the consent is also reviewed for clear error. United States v. Mines, 883 F.2d 801, 803 (9th Cir. 1989). We review the totality of the circumstances to determine whether the search exceeded the scope of the consent. Id.

When Lara consented to the search, he agreed that the deputies could look for drugs and money. Lara argues that when Deputy Ruegger picked up the weapons to disarm them, thereby discovering that the serial numbers were obliterated, he exceeded the scope of the search. See e.g., Arizona v. Hicks, 480 U.S. 321 (1987) (officer who moved stereo equipment to note the serial numbers while investigating a gunshot in an apartment was found to have exceeded the scope of the limited search allowed by the exigent circumstance).

The district court found that

The deputy's examination of weapons found at defendant's business during the consent search did not exceed the scope of the consent given by defendant. One of the weapons was in plain view on the floor of the business and the second weapon was discovered during the valid consent search of a desk in the business. The deputy who discovered and seized the weapons reasonably believed them to be contraband, in that the weapons were not marked with serial numbers as required by law.

The AR-15 was in plain view in the back of the tire shop and the Uzi automatic pistol was found in a box in a desk drawer. The district court properly found that the deputy did not exceed the scope of the search by looking in the drawer. With respect to the question of the officers' right to examine the guns once they lawfully came upon them, Mines is dispositive. In Mines, the defendant consented to a search of his bag for drugs. While searching the bag, the officer noticed a machine gun, pulled it out of the bag, and upon examination determined that it had no serial numbers. Mines, 883 F.2d at 802. The district court found that by picking up the gun to examine it the officer did not exceed the scope of the consent. We affirmed that finding, holding that " [o]nce the officers lawfully possessed the machine gun, it could be examined for serial numbers." Id. at 804.

Here, the officers testified that although the search was conducted after business hours, there were three persons inside the shop while they conducted the search. Deputy Ruegger testified that when non-officer personnel are present at the search site, weapons found in plain view are disarmed as a safety precaution. This was a valid reason for Deputy Ruegger to pick up the weapons. Having done so, he lawfully possessed them. Thus, under Mines, the district court was not clearly erroneous in finding that he was entitled to examine both guns for missing serial numbers.

Lara's conviction is

AFFIRMED.