United States v. Francisco Manuel Cervantes-Gaitan

792 F.2d 770, 1986 U.S. App. LEXIS 24996

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 9, 1986
• Docket: 85-5124
• Status: Published

Opinions

WALLACE, Circuit Judge:

Cervantes-Gaitan appeals from his conviction for importing heroin in violation of 21 U.S.C. §§ 952, 960, 963, and for possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

Testimony at a pretrial hearing supports the following factual account. CervantesGaitan and four other male aliens illegally entered the United States at Stuart’s Bridge, one mile west of the San Ysidro, California Port of Entry. A border patrol agent was notified of the illegal entry and, with the help of a service helicopter, located Cervantes-Gaitan and the four other aliens in some high brush. The border patrol agent identified himself as an officer and arrested all five aliens after they admitted having illegally entered the United States. At the time of his arrest, Cervantes-Gaitan was carrying a duffel bag that was zippered closed.

The border patrol agent called for transport assistance and walked the aliens to a road 150 yards away from where he first found them. He took the duffel bag from Cervantes-Gaitan, placed it on the ground, and searched Cervantes-Gaitan and the four other aliens. After completing the search, the agent opened the duffel bag and found a sock with a hard object inside that he thought might be a knife. He asked what was inside the sock and Cervantes-Gaitan indicated that it was heroin. At this point, the border patrol agent put handcuffs on Cervantes-Gaitan. He then looked inside the sock and found an object wrapped in black electrical tape. Later, while in the transport vehicle, the agent unwrapped the object and found a plastic bag filled with brown powder.

Cervantes-Gaitan was taken to a border patrol station where the border patrol agent and other immigration officials conducted an inventory search of the duffel bag. At some point during the inventory search of the bag, the agent asked Cervantes-Gaitan if he had some more heroin. Cervantes-Gaitan said that he did. The inventory search continued and additional heroin was discovered in the duffel bag.

Drug Enforcement Administration (DEA) agents then advised Cervantes-Gaitan of his constitutional rights, which he waived. Cervantes-Gaitan admitted that he was paid $3,000 for smuggling the heroin across the border and signed a written confession. The written confession stated that his statements were made voluntarily, with no threats or promises having been made. The four aliens who were arrested with Cervantes-Gaitan were sent back to Mexico on the same day of their arrest.

Cervantes-Gaitan’s version of the facts is slightly different. He testified that the complete search of the duffel bag and the agent’s question relating to whether he had any more heroin occurred in the field shortly after the initial search of the bag. He also testified that he asked for an attorney, but that the DEA agents told him that he should just finish writing his confession and that he would be taken to a place like a hotel and then be deported to Mexico.

After Cervantes-Gaitan was charged in a two-count indictment, he filed motions to suppress evidence seized from his duffel bag, to suppress statements made at the border patrol station, and to dismiss the indictment, all of which were denied. The district judge tried the case based on stipulated facts and the transcript of the pretrial hearing, and found Cervantes-Gaitan guilty of both counts.

II

Cervantes-Gaitan contends that the district court erred in denying his motion to suppress. “Because no findings of fact were made and because none were requested, we must uphold the trial court’s denial of the motion to suppress if there is a reasonable view of the evidence that will sustain it.” United States v. Williams, 630 F.2d 1322, 1327 (9th Cir.), cert. denied, 449 U.S. 865, 101 S.Ct. 197, 66 L.Ed.2d 83 (1980); see United States v. Coletta, 682 F.2d 820, 825 (9th Cir.1982), cert. denied, 459 U.S. 1202, 103 S.Ct. 1187, 75 L.Ed.2d 433 (1983).¹ We must view the evidence in the light most favorable to the government. United States v. Harrington, 636 F.2d 1182, 1185 (9th Cir.1980).

Cervantes-Gaitan contends that certain evidence obtained from his duffel bag should have been suppressed. Under a reasonable view of the evidence, the initial search of the bag in which the agent discovered a plastic bag of heroin wrapped in electrical tape was valid as a search incident to arrest. United States v. Burnette, 698 F.2d 1038, 1049 (9th Cir.), cert. denied, 461 U.S. 936,103 S.Ct. 2106, 77 L.Ed.3d 312 (1983). There is a conflict between the testimony of Cervantes-Gaitan and the government agents as to when and where a more complete search of the duffel bag occurred. The district court did not make a factual finding on this issue, and Cervantes-Gaitan did not request that one be made. The district court could reasonably have found that the more complete search occurred at the border patrol station. Under this view, there is sufficient evidence to sustain a conclusion that the search was a valid inventory search. See Illinois v. Lafayette, 462 U.S. 640, 643-48, 103 S.Ct. 2605, 2608-11, 77 L.Ed.2d 65 (1983). The agent testified that the search of the duffel bag at the station was a “standard inventory procedure.” The same agent testified on cross-examination that he did not make an inventory list of all the articles found in the bag because standard procedure normally calls for only an inventory list of money. Cervantes-Gaitan contends that the agent’s testimony indicates that the search at the station was not a valid inventory search. The district court, however, could reasonably have concluded that the agent’s later testimony referred only to what items the officers regularly included in the inventory list and did not indicate that a standard inventory search had not occurred. Thus, a reasonable view of the evidence exists to support the district court’s denial of the motion to suppress.

III

Cervantes-Gaitan next contends that the court erred in refusing to suppress voluntary statements that were made after a valid Miranda warning was given. He argues that the statements were tainted by two earlier failures to give Miranda warnings prior to receiving incriminating statements. In Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) (Elstad), the Supreme Court concluded that

absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.

Id. 105 S.Ct. at 1296. Thus, Elstad required the district court to determine if Cervantes-Gaitan’s initial statements were actually coerced in violation of the fifth amendment. See United States v. Wauneka, 770 F.2d 1434, 1440 (9th Cir.1985). We think that there exists a reasonable view of the evidence that sustains the district court’s implicit determination that his initial statements were not coerced. Cervantes-Gaitan conceded at oral argument that the statements made after the Miranda warning was given were voluntary. Consequently, this case falls squarely within Elstad, and the district court properly denied the motion to suppress.

IV

As a final matter, Cervantes-Gaitan contends that the district court erred in not dismissing the indictment because the government violated his fifth and sixth amendment rights by deporting and making unavailable for interview the four individuals who were with him at the time of his arrest. In United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982), the Supreme Court concluded that the mere fact that potential witnesses were deported is not sufficient to establish a violation of the fifth and sixth amendments. Rather, a criminal defendant must make “a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses.” Id. at 873, 102 S.Ct. at 3449; see also United States v. Marquez-Amaya, 686 F.2d 747, 748 (9th Cir.1982).

Cervantes-Gaitan made no such showing of materiality in the district court. Consequently, the district court did not err in denying the motion to dismiss. See United States v. Fierros, 692 F.2d 1291, 1296 (9th Cir.1982), cert. denied, 462 U.S. 1120, 103 S.Ct. 3090, 77 L.Ed.2d 1350 (1983).

AFFIRMED.

1 . The dissent reads United States v. Miner, 484 F.2d 1075 (9th Cir.1973) (Miner), and United States v. Heimforth, 493 F.2d 970 (9th Cir.) (Heimforth), cert. denied, 416 U.S. 908, 94 S.Ct. 1615, 40 L.Ed.2d 113 (1974), as supporting a remand to the district court for specific findings of fact. Neither case, however, undermines our reliance on United States v. Williams, 630 F.2d at 1327. In Miner, we concluded that the "any reasonable view of the evidence” standard should not be applied because it was doubtful that the district judge had considered the proper legal issue. Miner, 484 F.2d at 1077. That is not the case here. Similarly, in Heimforth, we expressly declined to hold that findings must be made on every suppression motion; instead, we stated merely that district judges "ought to" make such findings when the involved issues are “delicate." Heimforth, 493 F.2d at 972. To the extent that Heimforth gives us the discretion to remand, notwithstanding the “must uphold” language of Williams, we find it unnecessary to do so under these facts. Regardless of whether the full search occurred in the field or at the border patrol station, we would still hold that the evidence should not be suppressed. If the district court had found that a second and more complete search of the duffel bag occurred in the field immediately after the initial search, a reasonable view of the evidence indicates that the second search would have been proper as a search incident to arrest and the search at the station would have been proper under Burnette's reduced expectation of privacy analysis. 698 F.2d at 1049-50. Furthermore, in United States v. Coletta, 682 F.2d at 825, which also involved application of the fourth amendment to the search of a bag, we applied the "any reasonable evidence” standard to affirm the denial of a suppression motion because it was “implicit in the district judge’s denial ... that he believed the testimony of the agents and discredited that of Coletta.” We see no reason to apply a different standard in this case. Cervantes-Gaitan cannot be saved from his failure to request findings of fact.