UNITED STATES OF AMERICA, Appellee, v. KATHY VAZQUEZ, Defendant, Appellant.
No. 12-1203
United States Court of Appeals For the First Circuit
July 18, 2013
Before Torruella, Thompson and Kayatta, Circuit Judges.
Allison J. Koury, by appointment of the court, for appellant. Seth R. Aframe, Assistant United States Attorney, with whom John P. Kacavas, United States Attorney, was on brief for appellee.
July 18, 2013
On appeal, Vazquez challenges three different steps in the process that brought her to a prison cell. First, she claims that her consent to the FBI‘s warrantless search of her home was secured by a false claim that a lawful, warrantless search of her home would ensue without her consent, rendering the evidence discovered through that search inadmissible at trial. Second, she argues that the district court should have instructed the jury on the defense of duress. Finally, she asserts that the district court miscalculated her sentence under the United States Sentencing Guidelines by assigning her responsibility for too much crack cocaine, as well as for a gun possessed by her co-conspirator before the beginning of the charged conspiracy.
We find that the district court erred in failing to determine whether there were reasonable grounds to support the claim made to Vazquez that a lawful, warrantless search of her home would ensue without her consent. Otherwise, we reject Vazquez‘s arguments on appeal. As explained more fully below, we therefore affirm Vazquez‘s conviction on two of the three offenses, vacate
I. Background
In the fall of 2007, the Federal Bureau of Investigation received a tip from a confidential informant that Vazquez and her boyfriend, Bernado “Junito” Soto, were involved in the distribution of illegal drugs. On December 5, 2007, the FBI arranged for that informant to make a controlled buy of crack cocaine from Vazquez and Soto. The informant phoned Vazquez and agreed to meet her inside a local Walgreens to purchase 14 grams of crack cocaine from her, pre-bagged for resale. The sale occurred as planned, while Soto waited outside. After Vazquez and the informant exited the store together, the informant spoke to Soto for a few minutes about what Soto wanted done with a gun that he had previously loaned to the informant‘s boyfriend.
The next day, the informant made a second controlled buy of another 14 grams of crack cocaine from Vazquez and Soto, this time at Vazquez‘s home. The three chatted about various aspects of their drug dealing activities, including a scheme to smuggle liquid cocaine from the Dominican Republic into the United States.
The last controlled buy was supposed to occur on January 16, 2008. The informant again visited Vazquez‘s home, seeking to purchase crack cocaine, but this time Vazquez and Soto told her
Later that same day, New Hampshire Probation and Parole, working in coordination with the FBI, arrested Soto on a parole violation in a parking lot near a gym in Nashua. Thereupon, the FBI sought and received Vazquez‘s permission to search her home, where Soto had been staying. The search turned up two plastic bags of powder cocaine; a number of unused plastic bags; approximately $4,620 in cash; a Western Union receipt dated three days prior indicating that Vazquez had sent money to the Dominican Republic; a digital scale; two kinds of cutting agent used to prepare cocaine for sale; and a filter for cutting cocaine.
Vazquez was subsequently indicted on four separate counts: (I) Conspiracy to Distribute Cocaine and Cocaine Base (crack) beginning on December 5, 2007, and continuing through January 16, 2008; (II) Distribution of Cocaine Base on December 5, 2007; (III) Distribution of Cocaine Base on December 6, 2007; and (IV) Possession of Cocaine with Intent to Distribute on January 16, 2008. See
At sentencing, the district court calculated Vazquez‘s recommended sentence under the United States Sentencing Guidelines by attributing to her approximately 100 grams of crack cocaine, which gave her a base offense level of 26. See
II. Analysis
A. The Search of Vazquez‘s Home
The Fourth Amendment forbids law enforcement from searching a suspect‘s home without a warrant unless the search falls under “one of the ‘few specifically established and well-delineated exceptions’ to the warrant requirement.” United States v. Forbes, 181 F.3d 1, 5 (1st Cir. 1999) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). Consent to the search is one such exception. See id.
As we will explain, this is a case in which the record is clear that a representation by the FBI prompted Vazquez‘s acquiescence to the search. Specifically, the FBI obtained Vazquez‘s consent to search her home by telling her that a warrantless search of her home would be conducted without her consent. The central questions thus posed for the district court were whether the representation was correct and, if not, whether the consent was invalid and the search unlawful. In answering these rather difficult questions, the district court found itself
On appeal from that ruling, we review the district court‘s conclusions of law de novo and its findings of fact for clear error. See Ornelas v. United States, 517 U.S. 690, 696-98 (1996). In so doing, we find that reasonableness, rather than subjective good faith, is the controlling legal standard; consent procured by a claim that a search will ensue anyhow is valid only if the claim is based on a reasonable assessment of the facts under the applicable law. Because the district court did not determine whether the FBI agents’ representation was correct based on a reasonable assessment of the facts, because the record does not dictate an answer to this question, and because admission of the results of the search at trial was not harmless as to Count IV, remand is required. Our reasoning follows.
1. Procuring Vazquez‘s Consent
Once Soto was arrested, two FBI agents dressed in plain clothes approached Vazquez, identified themselves, and asked if she would have a cup of coffee with them at a nearby Dunkin’ Donuts. Neither agent displayed firearms or handcuffs, touched Vazquez, or
Inside the Dunkin’ Donuts, the agents ordered Vazquez a cup of coffee and allowed her to use the restroom unescorted while they secured a table. Vazquez later joined the agents at the table. She did not appear upset or unsettled. One of the agents asked Vazquez for her cooperation in their investigation, explaining that Soto had been arrested for a parole violation.
As it became clear that Vazquez was not willing to cooperate with the investigation, the agents changed tack and attempted to obtain Vazquez‘s consent to a search of her home. Vazquez asked the FBI agents if they had a search warrant for her home. In response, they told her that, while they did not have a warrant, New Hampshire Probation and Parole had the authority to search her home without her consent, and was going to do so. The agents based that assertion on information communicated to them by New Hampshire Probation and Parole, which had informed the FBI earlier in the day that it intended to search Soto‘s residence--assumed to be the same as Vazquez‘s--after his arrest.1
The FBI agents explained to Vazquez that if she consented to an authorized search, she could help the agents to separate her property from Soto‘s and thereby distance herself from his illegal activities. Vazquez expressed concern that the search might make a mess of her house, and asked a few other questions about the process. After the officers explained to her how the search would proceed, and then reviewed with her a written consent form, she signed the form granting consent to search her home.
The entire conversation in the Dunkin’ Donuts lasted between 15 and 20 minutes. Having obtained Vazquez‘s consent, the FBI agents drove to her home, where they met New Hampshire Probation and Parole officers. Together, the agents and officers jointly searched the premises, discovering the evidence described above.
Three aspects of the discussion between the FBI agents and Vazquez are especially pertinent. First, nothing in the record can be reasonably understood to suggest that Vazquez would have consented to the search but for the agents’ assertion that a search by New Hampshire Probation and Parole would ensue anyway. Having first refused to cooperate generally, her initial response to the agents’ request for consent to search was to ask if there was
2. New Hampshire Probation and Parole‘s Authority to Search Vazquez‘s Home
On appeal, the government correctly observes that, if New Hampshire Probation and Parole did indeed have the right to conduct the search of Vazquez‘s home without her consent, then the issue of her consent would be moot. That is so because the consent secured no earlier or broader search than could have been conducted lawfully were the claim of authority correct. Building on this observation, the government then claims that Vazquez never challenged the independent authority of New Hampshire Probation and Parole to conduct the search. Therefore, reasons the government, we can affirm the denial of the motion to suppress on that
The flaw in this mootness argument is that Vazquez did fairly challenge the independent authority of New Hampshire Probation and Parole to conduct a search of her home. Indeed, her argument was precisely that because New Hampshire Probation and Parole did not have such authority, the agents should be found to have employed a false claim to procure her consent. To suggest that Vazquez somehow artificially limited this argument in a manner that left unchallenged the authority of New Hampshire Probation and Parole as an independent basis for sustaining the validity of the search is to suggest that the parties and the district court knowingly engaged in a pointless hearing.
Certainly, the district court did not view the authority of New Hampshire Probation and Parole as an unchallenged, alternative basis for denying the motion to suppress. Rather, the court expressly avoided deciding whether New Hampshire Probation and Parole actually had the authority to search Vazquez‘s home or whether it was reasonable to think that they did have such authority. The district court explained: “I don‘t think that‘s the turning point.” Instead, the district court determined that, because the FBI agents believed that a search could be conducted anyway, and because the FBI agents did not otherwise coerce Vazquez‘s consent, the consent validated the search even if New
It is, indeed, unclear whether New Hampshire Probation and Parole had the right to search Vazquez‘s home. One suggested basis for the search -- the arrest warrant issued for Soto due to his violation of his parole -- could not have sufficed. The warrant granted “the limited authority to enter [the] dwelling in which [Soto] live[d] when there [was] reason to believe [that he was] within.” Payton v. New York, 445 U.S. 573, 602 (1980). Since Soto had already been arrested at another location, the arrest warrant did not authorize a subsequent search of his home as a matter of law. Cf. United States v. Graham, 553 F.3d 6, 15 (1st Cir. 2009) (“Although the officers possessed a valid arrest warrant, this warrant only permitted them to seize Graham and did not, standing alone, authorize the search of the bedroom where Graham was found.“).
As a possible alternative justification for search without consent, that leaves only the fact that, as a condition to his parole, Soto had agreed that New Hampshire Probation and Parole could search his residence at any time. This kind of probation condition can so diminish a probationer‘s expectation of privacy
Because the district court did not reach the question of whether New Hampshire Probation and Parole really did have the authority to search Vazquez‘s home, we have no analysis of whether the terms of Soto‘s probation agreement would permit a warrantless search of his home based only on reasonable suspicion, nor whether such a search would be permissible following his arrest. Importantly, we also have no factfinding on whether Soto resided with Vazquez and, if not, what the various officers knew that might have reasonably led them to believe that Soto resided with Vazquez.
3. “Subjective Good Faith” Versus “Reasonableness”
Given the foregoing, the question posed is whether Vazquez‘s consent can justify the search if secured by a sincere, but erroneous representation that a search would ensue anyhow. The otherwise well-developed case law on consensual searches secured by the looming promise of a non-consensual search marks the boundaries of our inquiry, but provides no clear answer to the specific question posed here. The law is clear, for example, that consent to a search is invalid if given only because of an officer‘s knowingly false assurance that there will soon be a lawful search anyway. Bumper v. North Carolina, 391 U.S. 543, 548 (1968); United States v. Miller, 589 F.2d 1117, 1132 (1st Cir. 1978); 2 Wayne R. LaFave, et al., Criminal Procedure § 3.10(b), at 410-11 (3d ed. 2007). Similarly, the law is almost as clear that consent to a search is not invalid merely because it is secured by an officer‘s accurate assurance that there will soon be a lawful search anyway. See United States v. Marshall, 348 F.3d 281, 286 (1st Cir. 2003); United States v. Lee, 317 F.3d 26, 33 (1st Cir. 2003); Twomey, 884 F.2d at 52 (fact that warrant would have issued rendered it unnecessary to decide whether and when honest, but mistaken, representation implying that warrant could be obtained invalidated consent); see also United States v. Wilkinson, 926 F.2d 22, 25 (1st Cir. 1991), overruled on other grounds, Bailey v. United States, 516 U.S. 137 (1995) (the officers accurately stated the likely consequences if the suspect refused to consent to a search); Robbins v. MacKenzie, 364 F.2d 45, 49-50 (1st Cir. 1966) (“Bowing to events, even if one is not happy about them, is not the same thing as being coerced.“). In short, the law rejects consent secured by knowingly false representations while at the same time seeing no reason to deter officers from securing convenient and prompt consensual access by conveying accurate information to a recipient.6
This case falls between these boundaries because, as noted, we have neither knowing falsity nor a determination of accuracy. While there is no controlling precedent on point, the applicable principles and analogous case law nevertheless convince us that the agents’ subjective good faith is not enough. The Fourth Amendment by its express terms demands that searches be “reasonable,” not merely based on good intentions. “If subjective
The government‘s position, that the subjective good faith of its officers is enough to sustain the validity of consent as an independent justification for a search, overlooks the compelling potency of a representation that a search is imminent even without consent. When law enforcement officers seek consent to search a person‘s home without making such a representation, the person giving the consent can reasonably believe that she has a choice. Such consent, unless otherwise coerced, stands on its own as an independent basis for sustaining the validity of the search. See Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973). Conversely, “‘[w]hen a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search.‘” Id. at 234 (quoting Bumper, 391 U.S. at 550). Consent pried loose by such a claim of authority is
Illinois v. Rodriguez, 497 U.S. 177 (1990), supports our conclusion that reasonableness, not merely subjective good faith, is the standard that the government must meet. In Rodriguez, the police conducted a warrantless search based on the consent of a person who appeared to have, but did not in fact have, authority over the premises. See id. at 179-82. The defendant argued that without valid consent from an authorized party, the search was unlawful. See id. at 180. The Supreme Court rejected that argument, holding that no Fourth Amendment violation occurs when the police reasonably, though erroneously, believe that the person who has consented to their entry has authority over the premises. See id. at 185-86.
For present purposes, the important point is that in rejecting the argument that the police must be correct on the facts, the Court also made clear that an honest belief in the
In Rodriguez, the justification for the search was consent given by a person who law enforcement believed was authorized to do so. Here, the justification was consent secured by law enforcement‘s announced belief that a nonconsensual search would ensue anyway. We see no reason why reasonableness need not characterize the officers’ beliefs in both circumstances. Otherwise, unreasonable but honest officers could parlay unlawful grounds for conducting searches into lawful searches merely by using the prospect of the unlawful search as a means of securing acquiescence.
The conclusion that consent is invalid if procured by an officer‘s unreasonable claim that a lawful search will ensue anyway imposes no unusual burden on law enforcement officials. In many walks of life, agreements given in justified reliance on false representations are voidable. See Restatement (Second) of Contracts § 164(1) (1981). (Indeed, in an ordinary contract case, even reasonableness in making the representation might not save the deal. Id.) Law enforcement officials, moreover, are knowledgeable in assessing whether the facts render a search lawful. In this context, it is no great demand to expect that they know the law and themselves be reasonable in assessing the facts when they procure consent to search a person‘s home by assuring the person that a lawful search will ensue anyway.
In sum, by failing to determine whether the claimed authority to search was based on a reasonable assessment of the facts, the district court may have erred in its ultimate decision denying the motion to suppress.
4. Harmless Error Analysis
Even if admission of the results of the search may have been error, we need not vacate and remand if, beyond a reasonable
When we apply the harmless error analysis, we place the burden on the government to show “that the supposed error did not affect the outcome of trial.” Jiménez, 419 F.3d at 42. We conduct “a panoramic, case-specific inquiry considering, among other things, the centrality of the tainted material, its uniqueness, its prejudicial impact, the uses to which it was put during the trial, the relative strengths of the parties’ cases, and any telltales that furnish clues to the likelihood that the error affected the factfinder‘s resolution of a material issue.” United States v. Castellini, 392 F.3d 35, 52 (1st Cir. 2004) (quoting United States v. Sepulveda, 15 F.3d 1161, 1182 (1st Cir. 1993)) (internal quotation marks omitted).
We begin with Count I, Conspiracy to Distribute Cocaine and Cocaine Base (crack) beginning on December 5, 2007 and continuing through January 16, 2008. See
As to Count III,8 Distribution of Cocaine Base on December 6, 2007, see
5. Guidance on Remand
Given the relative novelty of the issues as framed in a case involving a joint law enforcement exercise and the assertion of an independent and a derivative ground for the warrantless search, we address three additional questions that necessarily will arise below as a foreseeable product of our holding.
First, to what determination does the assessment of reasonableness apply: the determination of the facts, or the determination of what the law is, based on those facts? As at least two other sister circuits have noted, Rodríguez permits warrantless searches based only on a reasonable mistake of fact, not on a mistake of law. See United States v. Salinas-Cano, 959F.2d 861, 865-66 (10th Cir. 1992); United States v. Whitfield, 939 F.2d 1071, 1073-75 (D.C. Cir. 1991); see also United States v. Harrison, 689 F.3d 301, 309-10 (3d Cir. 2012). In other words, Rodríguez “applies to situations in which an officer would have had valid consent to search if the facts were as he reasonably believed them to be.” Whitfield, 939 F.2d at 1074. Rodríguez does not permit an officer to search if his mistake is about the law -- for instance, if he mistakenly believes that the Fourth Amendment authorizes a search when in fact it does not, even based on the facts as he understands them.
Second, who must have been reasonable in assessing the facts, the FBI agents who told Vázquez that New Hampshire Probation and Parole could and would search, or the state officers who so told the FBI? On the one hand, agents working in a team should be able to rely on facially plausible statements made by their colleagues without having to conduct due diligence on their own. On the other hand, it would create perverse incentives if unreasonable judgments by one officer directly involved in the arrest and search could be laundered by transmission through another officer as ipse dixit. The answer that best balances the considerations in this particular case is that the FBI agents were entitled to supplement their own knowledge of the facts by relying on the judgments of the state officers concerning the facts, provided that those judgments were themselves reasonable. Cf.
Third, and perhaps ironically in view of the manner in which the issues were prioritized below, our ruling renders Vázquez‘s consent irrelevant in this particular case because the threatened search by New Hampshire Probation and Parole used to secure consent was actually conducted simultaneously and co-extensively with the consented search. If that search by New Hampshire Probation and Parole was valid, then as the government argued below, there is no need to rely on Vázquez‘s consent. Conversely, if that search was unlawful on its own terms, it would only be because the facts as reasonably perceived by the officers did not as a matter of law justify the warrantless search. The consent here is thus truly derivative, and drops out of the equation altogether in determining the lawfulness of this particular search.
On remand, the district court will therefore need to decide whether the facts as reasonably understood by the officers and agents at the scene gave them the authority to search Vázquez‘s
B. The Requested Jury Instruction on Duress
Vázquez‘s second claim of error challenges the district court‘s refusal to instruct the jury on the defense of duress. Duress is a common law defense that excuses criminal conduct if the defendant violated the law only because she was unlawfully threatened by another person with death or serious bodily injury. See United States v. Bailey, 444 U.S. 394, 409-10 (1980).
At the close of trial, Vázquez asked the district court to include a duress defense in its charge to the jury. She emphasized that Soto was a member of the “Ñetas,” a prison gang that originated in Puerto Rico but had since acquired thousands of members across the United States, including in New Hampshire, and which has been involved in drug trafficking, gun violence, and witness intimidation. She also noted that Soto had access to a gun, and that she was particularly fearful of firearms because she had witnessed her father shoot her mother when she was a child.
Vázquez recounted that Soto had told her about the Ñeta gang‘s rules and that his gang-member friends had shared stories “of what they do to people [who] . . . snitch.” Although Soto
The district court was unmoved. It declined Vázquez‘s request for a duress instruction, citing a lack of evidence in the record to support that theory of defense. Vázquez timely preserved her position by objecting to the omission of the instruction before the jury retired.
On appeal, we review de novo whether the defendant made a threshold showing that the record evidence, construed in her favor, supported her requested instruction. United States v. Baird, 712 F.3d 623, 627 (1st Cir. 2013).9 In this case, it is clear that Vázquez has not made such a showing.
First, the threat she cites was hardly immediate, or even imminent. Rather, it was no more than a “vague threat of future
Second, even if we were to accept the notion that Vázquez might have construed an inferred threat against “snitching” to be the equivalent of a threat of harm for not actively committing the crime, such a subjective belief would not constitute a “well-grounded” fear. Bello, 194 F.3d at 27. She needed to produce evidence of threats that would have caused “a defendant of ordinary firmness and judgment” to believe that she would be in immediate danger should she not commit the criminal acts. United States v. Castro-Gómez, 360 F.3d 216, 219 (1st Cir. 2004). The same principle negates Vázquez‘s claim that the implicit threat had a more powerful effect on her due to her past traumatic experiences with firearms--our objective analysis does not permit consideration of special factors unique to this particular defendant.
Finally, there was no evidence to suggest that Vázquez lacked the opportunity to escape or frustrate any threat against
For these reasons, the evidence at trial, construed in Vázquez‘s favor, could not have supported a finding of duress. Accordingly, the district court did not err in refusing to instruct the jury on the elements of the defense.
C. The Calculation of Vázquez‘s Guidelines Sentence
Finally, Vázquez claims that the district court miscalculated her sentence under the United States Sentencing Guidelines.10
The standard practice when imposing a sentence is for a district court to use the Sentencing Guidelines to calculate a recommended sentencing range for the defendant, and then to consider whether a guideline sentence is appropriate in light of the factors enumerated in
Vázquez specifically challenges two of the variables in her sentencing equation. First, she objects to the court‘s attribution to her of approximately 100 grams of crack cocaine (86 grams more than the 14 grams she was convicted of selling to the
1. The Amount of Crack Cocaine
Vázquez alleges that there was insufficient evidence that the 100 grams of drugs existed, and even if they did, that they took the form of crack cocaine rather than powder cocaine (which is punished less severely under the Guidelines). The record, however, amply supported the district court‘s calculation. As to the nature of the product, Vázquez‘s conversations with the confidential informant made clear that she and Soto were in the business of selling crack cocaine, not powder. Vázquez was, after all, convicted of selling crack. Nor does the fact that powder cocaine was found in the search dictate a contrary conclusion, since powder
Small-time drug dealers rarely “author[] . . . formal business plan[s] or keep[] meticulously detailed inventory records.” United States v. Sklar, 920 F.2d 107, 111 (1st Cir. 1990). Therefore, “in a case where cash is seized and where either no drug is seized or the amount seized does not reflect the scale of the offense, the sentencing court may estimate the quantity of drugs with which Defendant was involved by converting cash to its drug equivalent.” United States v. Rios, 22 F.3d 1024, 1028 (10th Cir. 1994). This method is commonplace in our circuit and in others. See, e.g., United States v. Chandler, 534 F.3d 45, 50-51 (1st Cir. 2008); United States v. Sepulveda, 102 F.3d 1313, 1318 (1st Cir. 1996); United States v. Jackson, 3 F.3d 506, 510-11 (1st Cir. 1993); see also United States v. Tokars, 95 F.3d 1520, 1541-42 (11th Cir. 1996) (collecting cases).
More broadly, Vázquez claims that she should not be held responsible for uncharged drug sales and objects to the attribution to her of any drugs beyond the 14 grams of crack she was convicted of selling. While perhaps surprising to a lay person, sentencing
Although “[n]ot every drug transaction undertaken by every drug trafficker is necessarily linked in a meaningful sense,” the sentencing court in this case was permitted to attribute uncharged drug quantities to Vázquez so long as it found, by a preponderance of the evidence, “a sufficient link between the acts charged and those included for sentencing purposes.” United States v. Santos Batista, 239 F.3d 16, 21 (1st Cir. 2001) (quoting United States v. Sklar, 920 F.2d 107, 111 (1st Cir. 1990)). Vázquez was convicted both of conspiring to distribute crack cocaine between
For all of these reasons, the court did not clearly err by attributing 100 grams of crack cocaine to Vázquez when it calculated her Guidelines sentence.
2. Soto‘s Gun
Vázquez also challenges the district court‘s finding that a gun was possessed in connection with the charged conspiracy, increasing her base offense level by two (raising it to 28). See
As to who owned the gun, the Sentencing Guidelines plainly state that in cases of “jointly undertaken criminal activity,” a defendant may be held responsible for “all reasonably
As to chronology, the Guidelines also make clear that the acts and omissions for which Vázquez was accountable included all those that were “part of the same course of conduct or common scheme or plan as the offense of conviction.” See
In Vázquez‘s case, the government presented evidence that she and Soto were engaged in the distribution of crack cocaine at least as far back as October 2007, the same month that Soto possessed the gun. Furthermore, even during the period of the conspiracy for which Vázquez was convicted, she was present during
Therefore, we find no error in the district court‘s calculation of Vázquez‘s Guidelines sentence.
III. Conclusion
First, we conclude that the district court erred by denying Vázquez‘s motion to suppress without determining whether it was reasonable for law enforcement to believe that New Hampshire Probation and Parole had the authority to search without her consent. On remand, the district court will need to determine whether the facts as reasonably understood by the officers and agents at the scene gave them the authority to search Vázquez‘s home without consent. If so, the conviction on Count IV will stand and Vázquez need not be resentenced. Otherwise, the conviction on that count must be reversed, and Vázquez resentenced.
Second, we conclude that the district court committed no error by denying Vázquez‘s request for a duress instruction.
Accordingly, we affirm Vázquez‘s first two counts of conviction and vacate her third count of conviction. We remand the case for further proceedings consistent with this opinion.
So ordered.