United States v. Felix

12 F. App'x 827
CourtCourt of Appeals for the Tenth Circuit
DecidedJune 7, 2001
Docket00-4157
StatusUnpublished
Cited by2 cases

This text of 12 F. App'x 827 (United States v. Felix) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Felix, 12 F. App'x 827 (10th Cir. 2001).

Opinion

ORDER AND JUDGMENT *

PORFILIO, Circuit Judge.

Carlos Felix challenges his conviction for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Mr. Felix contends officers searching the vehicle in which the drug was secreted exceeded the scope of the consent for the search. We affirm.

Mr. Felix and co-defendants, Angelica Bugarin and Martin Avila, were traveling companions whose van broke down in Richfield, Utah. The mechanic who examined the van became suspicious and contacted the local police on September 1, 1999, when the trio offered him $4,000 in cash if the van could be fixed quickly. Upon learning the van could not be fixed as quickly as they liked, the travelers made the unusual request to have the van towed 500 miles to Denver, Colorado.

Lt. Alan DeMille of the Richfield Police responded and approached the travelers while the van was awaiting departure to Denver. Finding Ms. Bugarin was the only one who spoke English, Lt. DeMille questioned her about the ownership of the van. Ms. Bugarin claimed the van belonged to a friend in California, and in response to further questioning, indicated she and the others had been traveling to Denver for a wedding on August 28, when the van broke down. They had decided to have the van towed to Denver, even though they had missed the wedding, because they thought it could be repaired more quickly there.

Lt. DeMille then asked Ms. Bugarin for permission to search the van. She consented, and then spoke with Mr. Avila in Spanish, retrieved the van’s keys from him, and turned them over to Lt. DeMille. Lt. DeMille invited the travelers to ob *829 serve him search the vehicle, and after a short time in the towing company office, they moved to a position outside from where they could see the van and the search.

The van was parked on a flatbed tow truck, and Lt. DeMille climbed up and began a search of the passenger spaces. He immediately located a gallon container full of gasoline in the passenger compartment. Lt. DeMille was joined in the search by Detective Kerry Eeker of the Utah Narcotics Task Force. Together the two located a second gallon container also full of gasoline in the passenger compartment. This alerted the two officers because, in their experience, travelers secreting contraband in a hidden compartment in a vehicle’s gasoline tank need to carry extra gasoline to make up for the reduction in fuel tank capacity.

The two officers proceeded to look at the underside of the van. Their view was limited, but the officers noted several indications the gasoline tank had been recently removed. The bands holding the gasoline tank in place were not as dirty as the tank itself, and the bolts securing the bands showed no evidence of undercoating as did the rest of the vehicle, yet displayed no rust.

Pursuant to a request from Detective Eeker, K 9 officers then arrived. Two dogs were placed on the flatbed tráiler, and one alerted slightly near the van’s gasoline tank. The other dog did not alert. Concerned that the flatbed did not provide the dogs with adequate room, the officers decided to remove the van from the flatbed. After moving the van to the floor of the shop, the dogs again swept the van; both alerted to the underside of the vehicle near the gasoline tank.

Another visual inspection was made of the van’s underside, as officers could now crawl beneath it. In addition to the details mentioned before, officers noticed discoloration on the gasoline tank. Detective Ecker, who had worked as a welder, believed the discoloration was due to the heat from a welding torch. He concluded a compartment had been cut into the gasoline tank with a welding torch.

The officers then raised the rear of the van with a jack and loosened the bolts securing the bands holding the gasoline tank in place to examine the top of the tank. Upon lowering the tank, the officers were able to observe the top of the tank and several white plastic bags that were protruding from a compartment cut into the top of the tank. Upon the discovery of the compartment, Mr. Felix and his companions were arrested. The van was moved to a nearby garage hoist and hoisted up; the gasoline tank was removed, and under the white plastic bags fifteen one-kilogram packages of cocaine were discovered.

Based on the search of the van, Mr. Felix filed a motion to suppress the cocaine, arguing he did not personally consent to the search of the vehicle, and thus the search was invalid against him. The district court properly denied the motion, and Mr. Felix entered a conditional plea of guilty, reserving the right to appeal the denial of the motion to suppress. On August 21, 2000, Mr. Felix was sentenced to 70 months’ incarceration, to be followed by 36 months of supervised release. This appeal followed.

On appeal, Mr. Felix changes the thrust of his argument. He now argues officers exceeded the scope of the general consent given to search the van by dismantling the gasoline tank and rendering the van unusable. Because Mr. Felix did not raise this argument below, it is subject only to plain error review here. United States v. Ramirez, 63 F.3d 937, 947 (10th Cir.1995). Review for plain error has *830 three requirements: 1) an error, 2) that is plain, and 3) an effect on substantial rights. Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). Only if all three requirements are met may we exercise our discretion to notice a forfeited error, but only if the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. Mr. Felix cannot meet these requirements.

Mr. Felix first argues the officers’ search of the van exceeded the scope of the consent given. The scope of a consent search is limited by the breadth of the consent given. United States v. Wacker, 72 F.3d 1453, 1470 (10th Cir.1995). The measure of the breadth of the consent is objective, based on what a typical reasonable person would have believed he was consenting to in the exchange with the law enforcement official. Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991).

Mr. Felix relies primarily on two cases from this Court in making his argument. First, he cites our recent decision in United States v. Osage, 235 F.3d 518 (10th Cir.2000). In Osage the defendant, traveling by train, consented to a search of his bag. The searching officer opened several sealed metal cans, believing they had been tampered with. We overturned the results of the search despite the consent and the defendant’s failure to object to the cans’ opening at the time.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Jones
501 F. Supp. 2d 1284 (D. Kansas, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
12 F. App'x 827, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-felix-ca10-2001.