US v. Luis Suarez

Filing 920090130

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-5020

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LUIS CORCHO SUAREZ, Defendant - Appellant.

No. 08-4022

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERNESTO PRIETO OSORIO, Defendant - Appellant.

Appeals from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:06-cr-00049-RLV; 5:06-cr-00049RLV-1)

Submitted:

December 23, 2008

Decided:

January 30, 2009

Before GREGORY, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN, P.C., Decatur, Georgia, for Appellants. Gretchen C. F. Shappert, United States Attorney, Adam Morris, Assistant United States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM: Luis Corcho Suarez entered a conditional plea of

guilty to one count of conspiracy to possess with intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. § 846 (2006), and was sentenced to sixty months'

imprisonment.

Ernesto Prieto Osorio entered a conditional plea

of guilty to one count of conspiracy to possess with intent to distribute at least five kilograms of cocaine and one count of possession with intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006), and was sentenced to the statutory mandatory minimum of 120 months' imprisonment. On Finding no error, we affirm. appeal, Suarez and Osorio contend the district

court erred in denying their motions to suppress the cocaine seized from the vehicle in which they were traveling. We review

the court's factual findings underlying the denial of a motion to suppress for clear error and its legal conclusions de novo. United States v. Branch, 537 F.3d 328, 337 (4th Cir. 2008). evidence is construed in the light most favorable to The the

prevailing party below. 704 (4th Cir. 2006).

United States v. Uzenski, 434 F.3d 690,

Suarez and Osorio, who are both Cuban, contend that the traffic stop initiated by law enforcement was pretextual and racially motivated. The Supreme Court "uniformly has held that 3

the application of the Fourth Amendment depends on whether the person invoking its protection can claim a `justifiable,' a

`reasonable,' or a `legitimate expectation of privacy' that has been invaded by government action." 460 U.S. 276, 280 (1983). United States v. Knotts,

"A person traveling in an automobile

on public thoroughfares has no reasonable expectation of privacy in his movements "if an from one place to another." cause or Id. a at 281.

Moreover,

officer

has

probable

reasonable

suspicion to stop a vehicle, there is no intrusion upon the Fourth Amendment." (4th Cir. 1993). We have specifically rejected the test advanced by United States v. Hassan El, 5 F.3d 726, 730

Appellants, which would require a court to look to the officer's subjective motivations in initiating a traffic stop, in favor of an objective test. traffic offense or Id. other Thus, "when an officer observes a unlawful conduct, he or she is

justified in stopping the vehicle under the Fourth Amendment," regardless of whether the officer's interest in the vehicle was based on "intuitive suspicions that the occupants of the car [were] engaged in some sort of criminal activity." Here, determined that the officer who initiated was the Id. traffic the stop speed

Appellants'

vehicle

exceeding

limit by thirteen miles per hour. challenges the district court's 4

Neither Suarez nor Osorio that they were

determination

speeding.

Instead, they argue that the "inception" of the stop

occurred when officers first determined that the vehicle was suspicious. However, until a seizure implicating the Fourth

Amendment has occurred, officers are "not required to have a `particularized individual] of and objective basis in for order suspecting to pursue [an him."

criminal

activity,'

Michigan v. Chesternut, 486 U.S. 567, 576 (1988) (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)). of this case, for Appellants Fourth cannot establish Under the facts that they because were the See

"seized" officers

Amendment that their

purposes vehicle

merely was

determined

suspicious.

Terry v. Ohio, 392 U.S. 1, 20 n.16 (1968) (stating a seizure occurs when an "officer, by means of physical force or show of authority, individual). Appellants' contention that the stop was racially has in some way restrained the liberty of" an

motivated is likewise without merit.

Allegations of racially

motivated law enforcement implicate the Equal Protection Clause rather than the Fourth Amendment. F.3d 896, 899 (4th Cir. 1996). United States v. Bullock, 94

The standard for establishing a

selective enforcement claim is "demanding" and requires evidence that clearly contradicts the presumption that officers have not violated equal protection. United States v. Armstrong, 517 U.S.

456, 463-65 (1996); see also Bullock, 94 F.3d at 899 (applying 5

Armstrong in traffic stop case). establish that the effect law and

A defendant must therefore practice motivated "had by a a

enforcement that it was

discriminatory

discriminatory purpose."

Armstrong, 517 U.S. at 465.

Moreover,

a defendant must show that the law enforcement practice was not enforced against "similarly situated individuals of a different race." Id. Other than contradictory testimony on the issue of

whether one officer described Appellants as "black," there is nothing in the joint appendix to suggest that race played any part in the traffic stop. The district court determined that

even assuming the comment was made, it was merely a descriptor used to identify the vehicle's occupants rather than evidence of improper racial motivation. Additionally, there is no evidence

in the joint appendix establishing that the officers failed to stop individuals of other races for exceeding the speed limit by more than ten miles per hour. Suarez and Osorio also contend that the request for consent to search the vehicle was improper. They incorrectly

argue that probable cause is required before an officer may seek consent to search. See Schneckloth v. Bustamonte, 412 U.S. 218,

219 (1973) ("[O]ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a

search that is conducted pursuant to consent."). 6

Rather, where

officers

"lack

probable

cause

to

arrest

or

search,

a

search

authorized by a valid consent may be the only means of obtaining important and reliable that or prompt be a evidence." the initial Id. at 227. to search "The may

circumstances develop

request of

quickly

logical

extension

investigative

police questioning."

Id. at 232.

In this case, there is no evidence that the officers used any coercive tactics in obtaining consent. After

Appellants' identification cards and vehicle registration were returned to them, they were informed that they were free to leave. Appellants do not allege, and the joint appendix does

not show, that the officers drew their weapons, behaved in an antagonistic manner, or otherwise informed Suarez or Osorio that they were under arrest prior to requesting consent to search. The totality of the circumstances therefore establishes that

consent was voluntarily rendered.

See Schneckloth, 412 U.S. at

248-49 ("Voluntariness is a question of fact to be determined from all the circumstances . . . ."). Thus, we conclude the

district court did not err in refusing to suppress the evidence obtained during the vehicle search. Osorio additionally contends that the district court erred under in determining Sentencing that he was ineligible Manual for a reduction § 5C1.2(a)

U.S.

Guidelines

("USSG")

(2006) ("the safety valve").

To qualify for sentencing under 7

the

safety

valve

provision, in 18

a

defendant §

must 3553(f)

meet

all

five and

criteria

set

forth in

U.S.C.

(2006),

incorporated

USSG

§ 5C1.2(a).

The

district

court's

determination of whether a defendant has satisfied the safety valve criteria is a question of fact reviewed for clear error. United States v. Wilson, 114 F.3d 429, 432 (4th Cir. 1997). We unambiguous defendants they have have previously of [18 stated U.S.C. § that the "plain and

language to

3553(f)(5)]

obligates that

demonstrate,

through

affirmative to the

conduct,

supplied

truthful

information

Government."

United States v. Ivester, 75 F.3d 182, 184-85 (4th Cir. 1996). Such information includes everything the defendant knows about "the offense or offenses that were part of the same course of conduct or of a common scheme or plan." USSG § 5C1.2(a)(5).

The information provided by Osorio was vague and, at times, contradictory. in another Furthermore, a birth certificate issued name as well as other documents

individual's

discovered in Osorio's possession were never fully explained. Thus, the district court cannot be said to have clearly erred in determining that Osorio's provision of "vague, incomplete, and in several aspects, untruthful" information rendered him

ineligible for the safety valve reduction. Accordingly, we affirm the judgments of the district court. We dispense with oral argument because the facts and 8

legal before

contentions the court

are and

adequately argument

presented not

in aid

the the

materials decisional

would

process. AFFIRMED

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