Interlocutory Appeal from the District Court. Mesa County District Court Case No. 13CR1275. Honorable Thomas Deister, Judge.
In this interlocutory appeal, the People seek review of the trial court's order suppressing marijuana that the police discovered in a car registered to and driven by the defendant. The trial court found that the People did not establish that the defendant voluntarily consented to the search of his car. The supreme court determines that the trial court applied the wrong standard and holds that the defendant voluntarily consented to the search when he gave oral consent. Under the totality of the circumstances, the police's conduct did not overbear the defendant's exercise of free will. More specifically, it was not sufficiently coercive or deceptive to a person with the defendant's characteristics in his circumstances. Accordingly, the supreme court reverses the trial court's suppression order and remands the matter to the trial court.
Attorneys for Plaintiff-Appellant: Pete Hautzinger, District Attorney, Twenty-First Judicial District, David M. Waite, Deputy District Attorney, Grand Junction, Colorado.
Attorneys for Defendant-Appellee: Douglas K. Wilson, Public Defender, Kara L. Smith, Deputy Public Defender, Grand Junction, Colorado.
JUSTICE BOATRIGHT delivered the Opinion of the Court. JUSTICE HOOD concurs in part and dissents in part, and JUSTICE HOBBS and JUSTICE MÁRQUEZ join in the concurrence in part and dissent in part.
[¶1] In this interlocutory appeal pursuant to C.A.R. 4.1, the People seek review of the trial court's order suppressing marijuana that the police discovered in a car registered to and driven by the Defendant-Appellee, Ramiro Munoz-Gutierrez. The trial court found that the People did not establish that Munoz-Gutierrez voluntarily consented to the search of his car. We determine that the trial court applied the wrong standard and hold that Munoz-Gutierrez voluntarily consented to the search when he gave oral consent. Under the totality of the circumstances, the police's conduct did not overbear Munoz-Gutierrez's exercise of free will. More specifically, it was not sufficiently coercive or deceptive to a person with his characteristics in his circumstances. Accordingly, we reverse the trial court's suppression order and remand to that court for further proceedings consistent with this opinion.
I. Facts and Procedural History
[¶2] On October 19, 2013, Munoz-Gutierrez, a fifty-five-year-old man who first arrived in the United States in 1979, was driving his car to Chicago from Pixley, California. He was on Interstate 70 near Grand Junction, Colorado when Trooper Romine of the Colorado State Patrol spotted his car. Trooper Romine, a veteran trooper of approximately thirteen years and a member of a unit called the Smuggling Traffic Interdiction Section, was working the Mesa County area that day. In that capacity, he twice observed Munoz-Gutierrez's vehicle swerve over the white fog line on the right side of the highway. Based on these observations, Trooper Romine pulled over Munoz-Gutierrez.
[¶3] When Trooper Romine approached, he saw and smelled an air freshener in the vehicle. After Munoz-Gutierrez rolled down his window, Trooper Romine noticed that the odor of air freshener had become " overwhelming." Trooper Romine then asked Munoz-Gutierrez in English for his driver's license, registration, and proof of insurance. While Munoz-Gutierrez retrieved his license, Trooper Romine observed that Munoz-Gutierrez's hands were shaking, his cheek was twitching, and he had a large amount of cash in his wallet.
[¶4] After receiving Munoz-Gutierrez's driver's license, registration, and proof of insurance, Trooper Romine talked to Munoz-Gutierrez. Munoz-Gutierrez speaks Spanish and only a little English. Trooper Romine knows only a little Spanish. Despite the language barrier, Trooper Romine communicated with Munoz-Gutierrez in a combination of English and Spanish about Munoz-Gutierrez's background and purpose in driving through Colorado. Trooper Romine then returned to his patrol car to fill out a written warning for the traffic law violation, run Munoz-Gutierrez's name to check for outstanding warrants, and call for back-up to help him investigate the " suspicious activity." He asked for a drug canine to support him in the investigation of the suspicious activity and a trooper with Spanish-language skills to
assist in translating. Shortly thereafter, four other troopers arrived with the dog. Only Trooper Romine and Trooper Biesemeier, who offered to assist Trooper Romine by translating, had any contact with Munoz-Gutierrez regarding the consent to search. The other officers stayed near Trooper Romine's car.
[¶5] While not fluent in Spanish, Trooper Biesemeier is familiar with the language. Before he became a trooper in 2006, he traveled to Mexico to study at the Universidad Internacional. The two-month immersion program consisted of Spanish training five days a week. Trooper Biesemeier uses Spanish at work, although he has not taken any courses since he became a trooper. When speaking in Spanish, he asks others to slow down and uses simple words to enhance communication.
[¶6] After Trooper Romine advised Trooper Biesemeier of the situation, they went to talk to Munoz-Gutierrez. When Troopers Romine and Biesemeier reached Munoz-Gutierrez's vehicle, Trooper Romine followed his usual routine. For safety reasons, he asked Munoz-Gutierrez to get out of his car. Munoz-Gutierrez complied. Trooper Romine then explained the written traffic warning in English while Trooper Biesemeier translated. Trooper Biesemeier noticed that Munoz-Gutierrez seemed relieved when he realized he was receiving only a warning. Munoz-Gutierrez also told Trooper Biesemeier in Spanish that he had committed the violation because he was tired. Trooper Biesemeier understood that Munoz-Gutierrez said he was fatigued and suggested that he seek a local hotel. After this discussion, the troopers told Munoz-Gutierrez that he was free to leave. Munoz-Gutierrez shook hands with the troopers and started walking to his vehicle. Munoz-Gutierrez testified at the suppression hearing that he understood this conversation, and the trial court found that " there was an ability to communicate between Trooper Biesemeier and Mr. Munoz-Gutierrez."
[¶7] After they separated and Munoz-Gutierrez began to walk back to his vehicle, Trooper Romine reinitiated contact and asked Munoz-Gutierrez in English if he could ask him a few more questions. Munoz-Gutierrez agreed. Trooper Romine asked him in English if there was something illegal in his vehicle, to which Munoz-Gutierrez replied, " No." Trooper Romine then asked, " [M]ay we search your vehicle?" Munoz-Gutierrez paused and looked at Trooper Biesemeier, and Trooper Biesemeier translated the question into Spanish. Trooper Biesemeier testified that Munoz-Gutierrez demonstrated verbally and with his " body language" that the officers could search his car.
[¶8] The troopers then gave Munoz-Gutierrez a consent to search form, written in Spanish, for him to read and sign. Trooper Biesemeier testified that they would not have given him the consent form if Munoz-Gutierrez had declined because " it would have been pointless to go forth" without the oral consent. As the troopers handed him the consent form, Trooper Biesemeier asked Munoz-Gutierrez if he could read Spanish. Munoz-Gutierrez responded that he could read a little Spanish. He then took more time than the average person to read the form, and as he read, he mouthed the words and followed along with his finger.
[¶9] After " reviewing" the form, Munoz-Gutierrez looked at the troopers. The troopers thought Munoz-Gutierrez was asking where to sign, and Trooper Biesemeier pointed at the place to sign on the form. Munoz-Gutierrez then signed on the wrong line--the blank for the date rather than the signature line.
[¶10] Once Munoz-Gutierrez had signed the written consent form, Trooper Romine patted Munoz-Gutierrez down, and Trooper Biesemeier searched the vehicle where they found three large bags in the trunk. The troopers opened the bags and found roughly ninety pounds of marijuana. The troopers then arrested Munoz-Gutierrez.
[¶11] The People charged Munoz-Gutierrez with one count of Possession with the Intent to Manufacture or Distribute Marijuana or Marijuana Concentrate, and one count of Conspiracy-Marijuana and Marijuana Concentrate. Munoz-Gutierrez pled not ...