United States v. Jorge Zamora-Garcia

Filing

OPINION FILED - THE COURT: Lavenski R. Smith, Raymond W. Gruender and Roseann A. Ketchmark AUTHORING JUDGE:Raymond W. Gruender (PUBLISHED) [4432871] [15-2994]

United States Court of Appeals
For the Eighth Circuit
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No. 15-2994
___________________________
United States of America
Plaintiff - Appellee
v.
Jorge Alberto Zamora-Garcia
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: June 14, 2016
Filed: August 2, 2016
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Before SMITH and GRUENDER, Circuit Judges, and KETCHMARK,1 District
Judge.
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GRUENDER, Circuit Judge.
Jorge Alberto Zamora-Garcia was charged with possession with intent to
distribute more than 500 grams of a mixture or substance containing a detectable
1

The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri, sitting by designation.

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amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). The district
court2 denied his motion to suppress the packages of methamphetamine gathered
during the search of his vehicle. Zamora-Garcia entered a conditional guilty plea,
preserving the right to appeal the court’s denial of his motion to suppress. He now
appeals, and we affirm.
I.
On July 23, 2012, Corporal Lowry Astin of the Arkansas State Police noticed
that a car driving on Interstate 40 had something dragging underneath it. Corporal
Astin stopped the car and informed its driver, Zamora-Garcia, of the dragging part.
According to Corporal Astin, Zamora-Garcia was extremely nervous during this
interaction, and Zamora-Garcia’s hands shook as he retrieved his driver’s license.
After speaking briefly with Corporal Astin, Zamora-Garcia stepped out of the car to
examine the underbody of the vehicle while his two passengers, his sister and niece,
remained inside. Corporal Astin then invited Zamora-Garcia to join him in the patrol
car while he checked Zamora-Garcia’s license. While the two men were sitting in the
car, Corporal Astin asked Zamora-Garcia where he lived and where he was going.
Zamora-Garcia responded that he was from California and that he was traveling
cross-country to visit family in Atlanta.
After verifying Zamora-Garcia’s license, Corporal Astin asked if the vehicle
contained anything illegal. Zamora-Garcia replied, “No, sir.” Corporal Astin then
said, “Do you mind if I search it? Can I?” Zamora-Garcia responded, “Yeah, if you
want to.” Zamora-Garcia opened the trunk, and Corporal Astin conducted a roadside
search.

2

The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas.
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Corporal Astin noticed that the trunk’s carpet had been glued to the floor. As
a former automobile mechanic, he knew that car manufacturers typically do not
adhere carpets to a vehicle’s trunk in this manner, and he suspected that the car had
been altered to contain a hidden compartment. He asked Zamora-Garcia if the car had
been in a wreck, and Zamora-Garcia said no. Corporal Astin also noticed a large sum
of cash, later inventoried as more than $1,600, in a bag under the luggage in the trunk.
When Corporal Astin commented on the cash, Zamora-Garcia quickly said that it
belonged to his sister. Corporal Astin then crawled underneath the vehicle with his
flashlight and saw that a metal box had been welded to the underbody of the car,
spanning the car’s entire width. Corporal Astin searched for a trapdoor to gain entry
into this compartment. As he was doing so, an Arkansas state trooper stopped to
assist. When Corporal Astin was unable to gain entry into the compartment, he
decided to move the search to police headquarters. Corporal Astin told ZamoraGarcia, “What I need you to do is follow me back to headquarters. We need to pull
this wheel off and look.” He explained that the wheel area did not “look right” to
him. Zamora-Garcia responded, “Okay” and “That’s fine.” After asking which
officer he should follow, Zamora-Garcia drove his car to headquarters.
Upon their arrival at headquarters, Corporal Astin and other law-enforcement
officers continued to search for the compartment’s trapdoor while Zamora-Garcia and
his passengers waited inside the headquarters building approximately fifty feet from
the car. Eventually, one of the officers drilled a hole through the trunk floor into the
hidden compartment. When he removed the drill bit, it was covered with green
cellophane and a white, crystal-like powder. The officers located the trapdoor in the
frame of the car shortly thereafter and pried it open. Inside the compartment, they
found fourteen one-pound cellophane bags of methamphetamine. Officers arrested
Zamora-Garcia, and he was indicted for possession with intent to distribute more than
500 grams of a mixture or substance containing a detectable amount of
methamphetamine. See 21 U.S.C. § 841(a)(1).

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Zamora-Garcia moved to suppress the packages of methamphetamine found in
his vehicle, arguing that the officers’ search violated the Fourth Amendment. The
district court denied his motion, and Zamora-Garcia entered a conditional guilty plea.
He now appeals, renewing his argument that the search was illegal and that the
evidence should have been suppressed.
II.
Zamora-Garcia contends that the district court should have granted his motion
to suppress because Corporal Astin and the other officers unlawfully searched his
vehicle. “In an appeal of a denied motion to suppress, ‘we review the district court’s
factual findings for clear error and its ultimate determination of whether those facts
amounted to a constitutional violation de novo.’” United States v. Santana-Aguirre,
537 F.3d 929, 932 (8th Cir. 2008) (quoting United States v. Valencia, 499 F.3d 813,
815 (8th Cir. 2007)).
The Fourth Amendment permits the warrantless search of an automobile for
contraband if an officer has obtained voluntary consent to search, as long as the
search stays within the scope of the consent. United States v. Guevara, 731 F.3d 824,
829 (8th Cir. 2013). Significant here, Corporal Astin did not begin searching
Zamora-Garcia’s vehicle until after he obtained Zamora-Garcia’s express consent.
Corporal Astin asked Zamora-Garcia if he could search the car, and Zamora-Garcia
responded “Yeah, if you want to.” At no time during the subsequent search did
Zamora-Garcia attempt to withdraw this consent. Indeed, after observing Corporal
Astin move luggage around the trunk to search the entire interior space, ZamoraGarcia offered to take—and subsequently took—one of the large bags out of the trunk
to give Corporal Astin a better view. See United States v. Saenz, 474 F.3d 1132, 1137
(8th Cir. 2007) (finding consent was voluntary because the defendant gave consent
to search the truck to two officers and he did not complain or question officers during
the search).
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On appeal, Zamora-Garcia argues that the officers exceeded the scope of his
initial consent when Corporal Astin instructed Zamora-Garcia to bring the car to
headquarters in order to continue the search. However, we see no constitutional
problem associated with this change of location. As the district court noted, ZamoraGarcia gave Corporal Astin unqualified consent to the search, and Zamora-Garcia did
not object or otherwise withdraw his consent when Corporal Astin indicated that the
search would continue at a second location or that the car wheel would be removed.
See United States v. Lopez-Vargas, 457 F.3d 828, 830-31 (8th Cir. 2006) (finding no
clear error in the district court’s determination that a defendant’s consent identifying
one location permitted a subsequent search at a second location); United States v.
Martel-Martines, 988 F.2d 855, 857 (8th Cir. 1993) (finding no Fourth Amendment
violation related to a search conducted at two locations where an officer told the
defendant that his truck would be taken to a second location and the defendant agreed
to drive his truck to that location). Zamora-Garcia instead asked which officer he
should follow and then drove his car to headquarters. “The standard for measuring
the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’
reasonableness,” an inquiry that asks what “the typical reasonable person [would]
have understood by the exchange between the officer and the suspect.” United States
v. Sanders, 424 F.3d 768, 774 (8th Cir. 2005) (quoting Florida v. Jimeno, 500 U.S.
248, 251 (1991)). “[W]hether or not the suspect has actually consented to a search,
the Fourth Amendment requires only that the police reasonably believe the search to
be consensual.” United States v. Sanchez, 156 F.3d 875, 878 (8th Cir. 1998). Given
the circumstances here, we think the officers reasonably could have concluded that
Zamora-Garcia’s consent extended to the continued search at headquarters.
Moreover, even if Zamora-Garcia’s initial consent were somehow limited to the
roadside search, we see no clear error in the district court’s determination that
Corporal Astin requested, rather than demanded, that Zamora-Garcia allow officers
to conduct a more thorough search at headquarters. Because Zamora-Garcia
responded “Okay” and “That’s fine” and then asked, without prompting, which
officer he should follow, we find no clear error in the court’s factual determination
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that Zamora-Garcia’s consent to the continued search was voluntary. See United
States v. Quintero, 648 F.3d 660, 665 (8th Cir. 2011) (noting that voluntariness of
consent is a factual issue).
Our inquiry does not end with Zamora-Garcia’s consent, however, because
general consent to a search does not give law enforcement officers license to destroy
property. Guevara, 731 F.3d at 830. “Cutting or destroying an object during a search
requires either explicit consent for the destructive search or articulable suspicion that
supports a finding that probable cause exists to do the destructive search.” Id.
(quoting Santana-Aguirre, 537 F.3d at 932). The Government does not contend that
Zamora-Garcia explicitly consented to drilling into the car’s trunk. Accordingly, our
determination turns on whether the officers had probable cause to drill into the trunk
to reach the hidden compartment.
“A police officer has probable cause to conduct a search when the facts
available to him would warrant a person of reasonable caution in the belief that
contraband or evidence of a crime is present.” Id. (quoting Florida v. Harris, 568
U.S. ---, 133 S. Ct. 1050, 1055 (2013)). “[T]his practical and common-sensical
standard” is based on “the totality of the circumstances.” Harris, 133 S. Ct. at 1055.
“The test for probable cause is not reducible to precise definition or quantification,”
and “[f]inely tuned standards such as proof beyond a reasonable doubt or by a
preponderance of the evidence have no place in the probable-cause decision.” Id.
(internal alterations, citations, and quotations omitted). “All [that is] required is the
kind of fair probability on which reasonable and prudent people, not legal
technicians, act.” Id. (internal alterations and quotations omitted).
At the time police drilled into the trunk floor, several facts supported the
reasonable belief that contraband would be present in the hidden compartment. The
existence of the welded metal compartment itself suggested the car was used for some
illegal activity. The Supreme Court has instructed appellate courts to give “due
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weight” to a trial court’s conclusion that an officer may infer the presence of
contraband from the existence of such compartments. Ornelas v. United States, 517
U.S. 690, 700 (1996). In Ornelas, the Supreme Court stated:
To a layman the sort of loose panel below the back seat armrest in the
automobile involved in this case may suggest only wear and tear, but to
[the officer], who had searched roughly 2,000 cars for narcotics, it
suggested that drugs may be secreted inside the panel. An appeals court
should give due weight to a trial court’s finding that the officer was
credible and the inference was reasonable.
Id. Here, Corporal Astin drew from his twenty-eight years of patrol experience and
his prior work as an automobile mechanic to conclude that the compartment served
no licit purpose and was instead used to transport drugs.
Our court repeatedly has cited the existence of a hidden compartment in a
vehicle as a significant factor supporting probable cause to conduct a destructive
search. In Guevara, for example, we held that the presence of a hidden
compartment—when combined with inconsistent answers from the car’s passengers
about which relative they were going to visit, their failure to give a destination
address, the car’s open title, and evidence suggesting the engine compartment had
been manipulated—gave the officers probable cause to destructively search the car’s
engine compartment for drugs. 731 F.3d at 830-31. We explained: “After finding
the compartment, the troopers had more than enough information such that a
reasonable person, particularly with their training and experience, would believe there
was a ‘fair probability’ that drugs were hidden in the engine compartment.” Id. at
831. Similarly, in Martel-Martines, we stated that the presence of auto-body
modifications and the existence of a hidden compartment, when combined with a
defendant’s “evasive and inconsistent responses to routine questions,” provided
probable cause to support a warrantless, minimally destructive search of the vehicle’s
concealed compartment. 988 F.2d at 858-59. At least one circuit has gone so far as
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to say that “because it is difficult to imagine a licit purpose for a large hidden
compartment in a vehicle the size of a Chevy van, the[] signs of a hidden
compartment strongly suggest—and perhaps even singlehandedly
establish—probable cause to search” the van’s covert cavity. United States v.
Ledesma, 447 F.3d 1307, 1318 (10th Cir. 2006) (emphasis added).
Although we agree that the existence of the concealed compartment provided
the strongest indicator of probable cause, we need not decide whether the existence
of a hidden compartment was independently sufficient because additional facts also
supported the reasonable belief that contraband was present in the hidden
compartment. For example, Corporal Astin observed that Zamora-Garcia was
extremely nervous during their initial interaction; indeed, Zamora-Garcia’s hands
shook as he retrieved his driver’s license from his wallet.3 See United States v. Mayo,
627 F.3d 709, 714 (8th Cir. 2010) (citing the defendant’s nervous behavior as a factor
supporting probable cause). Zamora-Garcia also stated that he was making the long,
cross-country journey from California, which our court has recognized as a “drug
source state.” United States v. $141,770.00 in U.S. Currency, 157 F.3d 600, 604 (8th
Cir. 1998); see also United States v. Kelly, 329 F.3d 624, 628-29 (8th Cir. 2003)
(finding that probable cause supported a warrantless arrest in part because the
defendant was traveling from a drug-source state); but see United States v. Beck, 140
F.3d 1129, 1138 (8th Cir. 1998) (stating that geography is at best a weak factor
supporting suspicion of criminal activity). In addition, Corporal Astin found a large

3

Zamora-Garcia argues that the district court clearly erred by finding that he
was nervous because Corporal Astin said at the same suppression hearing that
Zamora-Garcia was relaxed as he observed the subsequent roadside search. We reject
this argument. The district court chose to credit Corporal Astin’s assessment of
Zamora-Garcia’s demeanor and his view that Zamora-Garcia was nervous initially but
later relaxed. As we often note, determinations of credibility are “virtually
unassailable on appeal.” United States v. Freeman, 625 F.3d 1049, 1052 (8th Cir.
2010) (quoting United States v. Guel-Contreras, 468 F.3d 517, 521 (8th Cir. 2006)).
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sum of cash in a bag underneath the luggage in Zamora-Garcia’s trunk: an amount
in excess of $1,600.4 We previously have found probable cause to search for
contraband based in part on the presence of a large sum of cash in a vehicle’s console.
See United States v. Patterson, 140 F.3d 767, 773 (8th Cir. 1998). As the Sixth
Circuit recognized in United States v. Brooks, such “large sums of cash are indicative
of the drug trade.” 594 F.3d 488, 495 (6th Cir. 2010) (finding probable cause in part
because the defendant was carrying $1,000 in cash); cf. United States v. Chhien, 266
F.3d 1, 8-9 (1st Cir. 2001) (concluding that the discovery of $2,000 in cash in a
defendant’s pocket during a traffic stop supported reasonable suspicion and justified
a brief period of further detention). Finally, Zamora-Garcia offered no legitimate
explanation for the car’s modifications to dispel the officer’s suspicion, even after
Corporal Astin said the rear wheel area did not “look right.” These facts, taken
together with the presence of the large metal compartment welded to the bottom of
the car, supported the reasonable belief that this hidden compartment contained
contraband. See United States v. Tyler, 238 F.3d 1036, 1038 (8th Cir. 2001) (stating
that, when assessing probable cause, “we do not evaluate each piece of information
independently; rather, we consider all of the facts for their cumulative meaning”).
Based on the totality of circumstances, we conclude that the facts at issue
would warrant a person of reasonable caution to believe that contraband was present
in the concealed compartment under the car. See Harris, 133 S. Ct. at 1055.
Probable cause therefore justified drilling into the floor of Zamora-Garcia’s trunk to
search for drugs. The district court properly denied Zamora-Garcia’s motion to
suppress.

4

On appeal, Zamora-Garcia raises no challenge to Corporal Astin’s search of
this bag. See Jimeno, 500 U.S. at 251 (holding that it was objectively reasonable for
the police to conclude that the general consent to search the respondent’s car included
consent to search a bag within that car).
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III.
For the foregoing reasons, we affirm.
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