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United States v. Velasquez

argued as amended september 7 1989. as amended october 2 1989.: March 3, 1989.

UNITED STATES OF AMERICA
v.
FRANCISCA ROSA VELASQUEZ, APPELLANT



On Appeal from the United States District Court For the District of Delaware, D.C. Criminal Action No. 88-00011-02.

Higginbotham, Stapleton, and Cowen, Circuit Judges.

Author: Cowen

Opinion OF THE COURT COWEN, Circuit Judge

On July 20, 1988, a jury found Francisca Rosa Velasquez ("Velasquez") guilty on one count of possession of greater than five kilograms of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and one count of conspiracy, in violation of 21 U.S.C. § 846. On September 30, 1988, Velasquez was sentenced to 151 months in prison on both counts, to be served concurrently. Velasquez appeals her conviction on a number of grounds. For the reasons discussed below, we will affirm the conviction for possession but will reverse the conviction for conspiracy.

I.

On February 8, 1988, at 11:10 a.m., Velasquez and a companion, Ivan Terselich ("Terselich") were driving a 1982 Ford LTD with Florida license plates northbound on Interstate 95 in Delaware. Corporal Robert Durnan ("Durnan") pulled the vehicle over for speeding, after clocking the vehicle at 62 miles per hour in a 55 mile per hour zone. At Durnan's request, Velasquez identified herself and produced the Ford's registration card, which indicated the car's registered owner to be one Javier Perez, residing at 401 Southwest 18th Avenue, Miami, Florida.

Durnan asked Velasquez to exit the car and accompany him to an area on the shoulder of the turnpike between the rear of her car and the front of his patrol car. He then explained that she was being stopped for speeding. He asked her where she was going, and she answered that she was traveling from Miami to Long Island for a few days vacation with her husband, seated in the car. She also stated that the Ford belonged to her cousin, although she was unable to provide his name. Durnan testified that Velasquez was nervous and stuttered.

Durnan then spoke with Terselich, who was still seated in the Ford. Contradicting Velasquez, Terselich stated that she was not his wife and that he was traveling from Miami to New York on business, not vacation. He stated that the car belonged to his friend named Lopez. Terselich also appeared nervous.

Durnan testified that he asked Velasquez to accompany him into his patrol car to talk because it was warmer and quieter than the shoulder of the highway. When they were seated in his car, Durnan asked Velasquez if she had any contraband in the Ford. She replied that she did not, and he asked her for permission to search the car. He testified that she replied, "Yes, you can search." Because he detected a Spanish accent in Velasquez's voice, Durnan produced a written "Consent to Search" form in Spanish. He completed the form, explained it to Velasquez, and asked her to read and sign it. Velasquez examined and signed the form.

After obtaining Velasquez's consent to the search, Durnan asked Terselich to step from the vehicle. He first searched the passenger area of the car. He then obtained the keys from Terselich, who had removed them from the ignition while Durnan was interviewing Velasquez. Durnan opened the Ford's trunk and, within ten seconds, recognized a false floor in the trunk. While the underside of the car revealed a large well beneath the trunk area, the floor on the inside of the trunk was flat.

Durnan testified that, at this point, he believed that the trunk contained a secret compartment which concealed contraband, such as illicit drugs, weapons or money. He also believed that the secret compartment could only be reached by removing the gas tank, and he did not have the tools or facilities to do so. At approximately 11:20 a.m., Durnan advised Velasquez and Terselich that they were being detained under Delaware's two-hour "detention" statute, Del.Code Ann. tit. 11, § 1902, and had them handcuffed and, along with the Ford, transported to Delaware State Police Troop 6. On arrival at the station, Velasquez was placed in a holding area by the main desk.*fn1

The Ford was placed on a lift, and Durnan attempted to remove the gas tank to get at what he believed was the secret compartment. He was unable to do so, because the filler tube which would normally flow into the gas tank had been altered to go into the secret compartment, and this hindered his efforts. He then took the vehicle down from the lift, opened the trunk, and removed a loose rug from the floor of the trunk. He noticed on the trunk floor a six inch-by-ten inch hinged door, which was locked. He pried the door open with a crowbar and immediately observed block packages, twenty-one in all, wrapped in a manner which Durnan recognized was customary to cocaine smuggling. On closer inspection and testing, the packages were found to contain twenty-one kilograms of cocaine.

After discovering the cocaine, Durnan testified that he read Velasquez Miranda warnings from a card, reading slowly, in English, and stopping after each sentence to ask if she understood. She answered in the affirmative each time. Durnan also testified that he provided Velasquez with a card containing the Miranda warnings in Spanish, which she held and appeared to read. Durnan then left the detention room and contacted Agent William Glanz ("Glanz") of the Drug Enforcement Agency ("DEA").

Between 12:30 and 1:00 p.m., Agent Glanz arrived at troop 6. In an interview room, Durnan introduced Glanz to Velasquez. Glanz showed Velasquez his credentials and explained that he was a federal agent with the DEA and wanted to talk with her. Velasquez immediately indicated that she did not wish to be questioned and that she would like to speak with a lawyer. The conversation ended at this point, and Durnan returned her to the holding room. Durnan and Glanz began attending to administrative details in another part of the building.

One half hour later, Durnan went to the holding area to take Velasquez into federal court to have her bail set by a United States Magistrate. Velasquez told Durnan that she wanted to speak to the federal agent again. Durnan brought Velasquez back to the interview room to speak with Glanz. According to Glanz, she asked him, "What is going to happen?" He explained, truthfully, that she would be brought before a magistrate and her bail would be set, and that the minimum mandatory sentence for possession of in excess of five kilograms of cocaine was ten years. This information was correct.

Velasquez then asked what would happen to her companion Terselich. Glanz testified that at this point he believed she was initiating a conversation about the investigation and that she was thereby waiving the Miranda rights which she had previously invoked. Glanz then provided her with misinformation. He told Velasquez that Terselich was being released because he had given a statement against Velasquez and that he was going to testify against her. Glanz also asked her if she wanted to give Terselich her belongings, because he would be traveling back south that evening.

Velasquez did not respond to these statements. Glanz then asked if she would like to tell her version of the story, and she responded by asking him what he wanted to know. He inquired as to who owned the car, to which she replied that she did not know. He then asked her how she came to be driving a car containing a large amount of cocaine. Glanz testified that she stated that she had been paid $10,000 to drive the drugs north, was afraid to make the trip alone, and was paying Terselich $5,000 to accompany her.*fn2 When asked about Terselich's knowledge of the drugs, she did not respond directly, but shook her head several times and stated, "This is all my fault, this is all my fault."

Glanz testified that he next asked Velasquez what she had planned to do with the drugs when she arrived in New York. She responded that she was to call Miami to receive a New York phone number, and that she was to then call that New York number and make arrangements to transfer the drugs. When asked about the number, she did not respond. At this point, Glanz terminated the interview, which had lasted ten to fifteen minutes, because of the need to bring Velasquez before a magistrate that afternoon.

Velasquez and Terselich were each indicted on two counts: possession with the intent to distribute more than five kilograms of cocaine, and conspiracy "with each other and with persons presently unknown to the grand jury" to possess cocaine with the intent to distribute. App. at 11. After pleading not guilty to the indictment, on March 28, 1988 Velasquez filed a motion to suppress the cocaine and her statements and for the determination of her competency to stand trial. The court denied the motion after a hearing and, as to the statements, after briefing.

On March 28, 1988, Velasquez's counsel submitted to the district court the affidavit of Jorge A. Pereira-Ogan, M.D., in which Ogan rendered the opinion that Velasquez was unable to assist properly in her defense. The judge ordered that Velasquez be committed to a federal facility to undergo psychiatric examination pursuant to 18 U.S.C. § 4241 to aid in determining her competency to stand trial, and to undergo an evaluation pursuant to 18 U.S.C. § 4242, to aid in determining any question regarding her sanity at the time of the offense. From April 14 to June 15, 1988, Velasquez was held at the Federal Correctional Institute in Lexington, Kentucky. The forensic team which performed the court-ordered evaluation recommended that Velasquez was competent to stand trial. On June 29, 1988, after a hearing, the court entered an order finding Velasquez competent to stand trial.

A jury trial of Velasquez and co-defendant Terselich commenced in the district court on July 18, 1988, but on that day a mistrial was declared when the first witness testified to a statement that the court had previously excluded under Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). On July 19 and 20, another trial was held, resulting in a jury verdict finding Velasquez and Terselich guilty as charged in both counts of the indictment. Velasquez's motion for acquittal or, alternatively, for a new trial was denied. On September 30, 1988, she was sentenced to ten years for each offense, to run concurrently. She filed a notice of appeal with this Court on the same date. We have jurisdiction pursuant to 28 U.S.C. § 1291.

II.

Velasquez raises three major arguments on appeal. First, she argues that the warrantless stop and search of the car on the highway was illegal and that the court erred in denying her motion to suppress the cocaine. Second, she argues that Delaware's two-hour detention statute, under which she was held immediately prior to her arrest, is unconstitutional and therefore the court erred in denying her motion to suppress both the cocaine and the incriminating statement which she made while in police custody. Third, she argues that her statements made to the DEA agent were inadmissible because she had already invoked her right to counsel, and had not waived that right prior to making the statements. Because these are issues of law, our review is plenary.

A.

1. The stop

Velasquez first argues that the warrantless stop and search of the car were unlawful, and that because the cocaine was the fruit of that unlawful stop and search, the district court erred in denying her motion to suppress the cocaine. The fourth amendment to the Constitution states that "[the] right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ."

The Supreme Court has determined that stopping an automobile and detaining its occupants constitute a seizure within the meaning of the fourth amendment. Delaware v. Prouse, 440 U.S. 648, 653, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979). Warrantless automobile stops and detentions to check the driver's license and registration are permissible, however, when they are based on an "articulable and reasonable suspicion that . . . either the vehicle or an occupant" has violated the law. Id. at 663. We have noted specifically in the context of automobile stops that objective factors known to the seizing officer must support this suspicion. United States v. Hawkins, 811 F.2d 210, 213-215 (3d Cir.), cert. denied, 484 U.S. 833, 108 S. Ct. 110, 98 L. Ed. 2d 69 (1987).

Velasquez testified during her competency hearing that she did not think that she was speeding at the time she was stopped, and that the car's cruise control mechanism was activated and set at fifty-five miles per hour. App. at 155-56. However, neither Velasquez nor any other defense witness testified at the suppression hearing to controvert Durnan's testimony that she was speeding. Nor did her counsel argue during the hearing that she was not speeding. See app. at 438-42. Accordingly, the district court did not consider whether Velasquez was speeding when he ruled that the cocaine was admissible into evidence; rather, he assumed that she was speeding. Therefore, although Velasquez appears to argue on appeal that she was not speeding, see Appellant's Reply Brief, at 3, she waived this issue by not arguing it below. Because this is an issue of fact which was not decided below, we do not reach it.*fn3

2. The search

The district court denied Velasquez's motion to suppress the physical evidence -- the cocaine -- obtained from the search. The court based its decision on its rulings that Velasquez lacked standing to object to the search and that she voluntarily gave her consent to the search. See app. at 448. As the court noted, either ruling by ...


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