Before
Torruella, Thompson and Kayatta,
Circuit Judges.
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.
-2-
her conviction on the third, and remand the case for further
proceedings consistent with this opinion.
I. Background
In the fall of 2007, the Federal Bureau of Investigation
received a tip from a confidential informant that Vzquez and her
boyfriend, Bernado "Junito" Soto, were involved in the distribution
of illegal drugs.
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 Vzquez and Soto, this
time at Vzquez'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.
purchase crack cocaine, but this time Vzquez and Soto told her
-3-
that they only had powder cocaine in stock and that it was not good
for cooking into crack.
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
was
subsequently
indicted
on
four
separate
Prior to trial,
-4-
Vzquez was
See U.S.S.G.
See id. at
imprisonment.
II. Analysis
A.
searching
Fourth
Amendment
forbids
law
enforcement
from
falls under "one of the 'few specifically established and welldelineated exceptions' to the warrant requirement."
United States
See id.
-5-
party's
possibly
vulnerable
subjective
state;
and
took place."
1989)
(citing
Schneckloth,
412
U.S.
at
227,
229,
247)).
that
acquiescence
Vzquez's
a
to
representation
the
consent
to
search.
search
by
the
FBI
prompted
Specifically,
her
home
by
the
telling
Vzquez's
FBI
her
obtained
that
In answering
-7-
for coffee.
Inside the Dunkin' Donuts, the agents ordered Vzquez a
cup of coffee and allowed her to use the restroom unescorted while
they secured a table.
table.
asked
for
her
cooperation
in
their
investigation,
In response, they told her that, while they did not have a
The
a mess of her house, and asked a few other questions about the
process.
proceed, and then reviewed with her a written consent form, she
signed
the
form
granting
consent
to
search
her
home.
FBI
home,
agents
drove
to
her
where
they
met
New
Hampshire
Having
vein, the government suggests that the agents merely allowed that
a search without consent was "likely."
As the district court
expressly found, however, the agents told Vazquez "that the state
had the authority to search and in fact were going to search."
-9-
for
reversing
as
clear
error
the
district
court's
Hampshire Probation and Parole did indeed have the right to conduct
the search of Vzquez's home without her consent, then the issue of
her consent would be moot.
the
government
then
claims
Building on this
that
Vzquez
never
challenge
the
independent
authority
of
New
Hampshire
Indeed, her
To suggest
New
Hampshire
Probation
and
Parole
as
an
unchallenged,
Rather, the
it
was
reasonable
to
think
that
they
did
have
such
authority. The district court explained: "I don't think that's the
turning point."
-11-
One suggested
basis for the search -- the arrest warrant issued for Soto due to
his violation of his parole -- could not have sufficed.
The
Since
2009)
("Although
the
officers
possessed
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
possible
alternative
justification
for
search
which
law
enforcement
clearly
had
here.3
However,
search
would
be
permissible
following
his
arrest.
appeal that New Hampshire Probation and Parole officers did not
have the right to search Vzquez's home absent her consent.
3.
the
foregoing,
the
question
posed
is
whether
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).
(1st Cir. 2003); United States v. Lee, 317 F.3d 26, 33 (1st Cir.
-14-
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.").
The
"If subjective
good faith alone were the test, the protections of the Fourth
Amendment would evaporate, and the people would be secure in their
persons, houses, papers, and effects, only in the discretion of
the
police."
Beck
v.
Ohio,
379
U.S.
89,
97
(1964).
Law
Brinegar v. United
See
Conversely,
merely acquiescence.
basis for sustaining the validity of the search. Rather, its force
is largely derivative, neither adding to nor subtracting from the
reasonableness of the representation of inevitability used to
secure the consent.
In Rodrguez, the
California, 401 U.S. 797, 803-04 (1971) ("The upshot was that the
officers in good faith believed Miller was Hill and arrested him.
They were quite wrong, as it turned out, and subjective good-faith
belief would not in itself justify either the arrest or the
subsequent search.").
In
consent
Rodrguez,
given
by
authorized to do so.
the
person
justification
who
law
for
the
enforcement
search
was
believed
was
the
beliefs
in
both
circumstances.
-18-
consent
and
required
exclusion
of
the
resulting
(Ga.
2003)
unintentionally
(consent
vitiated
misrepresented
to
the
when
police
defendant
that
officer
he
was
reasonable basis for their claim; it just turned out that they were
mistaken about the underlying facts. See United States v. Richard,
994 F.2d 244, 252 (5th Cir. 1993) (consent valid when police
-19-
In many
are
voidable.
See
Restatement
(Second)
of
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.
been error, we need not vacate and remand if, beyond a reasonable
-20-
doubt, the admission of the evidence could not have impacted the
result below.
"a
inquiry
panoramic,
case-specific
considering,
We conduct
among
other
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
846. The evidence discovered inside Vzquez's home, where Soto was
at least temporarily staying, was highly incriminating, but it was
also merely cumulative of the substantial additional evidence
offered at trial indicating that Vzquez and Soto had been working
-21-
from
the
materials
found
inside
Vzquez's
home,
the
are convinced that the jury would still have convicted Vzquez on
the first count even if the evidence from the search of her home
had been suppressed.
As
to
Count
III,8
Distribution
of
Cocaine
Base
on
testimony
Vzquez
sold
14
and
grams
recorded
of
crack
cocaine
to
indicating
the
that
confidential
Accordingly, a remand
will be necessary.
5.
Guidance on Remand
Given the relative novelty of the issues as framed in a
As at
F.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,
the
other
hand,
it
would
create
perverse
incentives
if
Cf.
United States
the
issues
were
prioritized
below,
our
ruling
renders
consent
was
actually
conducted
simultaneously
and
co-
The
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 Vzquez's
-25-
violated
the
law
only
because
she
was
unlawfully
She
gun, and that she was particularly fearful of firearms because she
had witnessed her father shoot her mother when she was a child.
Vzquez recounted that Soto had told her about the eta
gang's rules and that his gang-member friends had shared stories
"of what they do to people [who] . . . snitch."
-26-
Although Soto
never threatened her, and she did not believe that he would have
hurt her himself, Vzquez felt that she had been implicitly
threatened that other eta gang members might harm her or her
children if she attempted to go to the police. Allegedly, she only
participated in the scheme in order to protect herself and her
children.
The district court was unmoved.
It declined Vzquez's
United States v.
In this case, it is
the
disregarded.
inferred
threat
against
"snitches"
can
be
Vzquez is
360
F.3d
216,
219
(1st
Cir.
United States v.
2004).
The
same
her.
always around" at home and that the etas had a presence "all over
the place," making it extremely difficult for her to turn Soto over
to the authorities.
between December 5 and January 16, Vzquez did not have just a few
minutes in private when she could have contacted the police, there
is nothing to suggest that she could not have simply terminated her
romantic and professional relationships with Soto in order to
extricate herself from the drug-dealing business.
Vzquez
claims
that
the
district
court
sentencing
range
for
the
defendant,
and
then
to
United States v.
overall
substantive
reasonableness
of
the
sentence
they
receive, see Zapata, 589 F.3d at 486, Vzquez challenges only the
calculation.
that decision will not impact the facts considered by the district
court in calculating Vzquez's sentence. Because the sentencing
calculation issues will arise either way, we can decide those
questions on this appeal, despite the fact that we are vacating one
of Vzquez's three counts of conviction and remanding the case for
further proceedings.
-30-
police informant).11
findings
were
made
for
purposes
of
Because
sentencing,
the
See United States v. Laboy, 351 F.3d 578, 582 (1st Cir.
2003) (drug quantity); United States v. Hoey, 508 F.3d 687, 691
(1st Cir. 2007) (facts central to upward adjustments in offense
levels).
11
As for the
The cash
found, minus the proceeds from the sale of a car, equaled the
estimated sales proceeds of approximately 100 grams of crack.
Small-time drug dealers rarely "author[]. . . formal
business
plan[s]
records."
or
keep[]
meticulously
detailed
inventory
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."
Cir. 1994).
others.
(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, Vzquez 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.
also United States v. Chuong Van Duong, 665 F.3d 364, 368 (1st Cir.
2012) ("Commentary to the guidelines is generally authoritative.").
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 Vzquez 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)).
Vzquez was
12
See, e.g., United States v. Mrquez, 699 F.3d 556, 558, 56061 (1st Cir. 2012); United States v. Barbour, 393 F.3d 82, 92 (1st
Cir. 2004); Laboy, 351 F.3d at 581; United States v. Santos
Batista, 239 F.3d 16, 21-27 (1st Cir. 2001); United States v.
Tabares, 951 F.2d 405, 410 (1st Cir. 1991); see also U.S.S.G.
1B1.3(a)(2); id. at 3D1.2(d).
-33-
Eisom, 585 F.3d 552, 557 (1st Cir. 2009) (listing factors to be
considered when deciding whether to include uncharged drug sales in
a Guidelines sentence calculation as "the nature of the offenses,
their timing, their commonalities, and the existence or nonexistence of overarching patterns").
For all of these reasons, the court did not clearly err
by attributing 100 grams of crack cocaine to Vzquez when it
calculated her Guidelines sentence.
2.
Soto's Gun
See
belonged to Soto, not to her, and that Soto only had possession of
the
weapon
in
October
2007--two
months
before
the
charged
state
that
in
cases
of
"jointly
undertaken
criminal
-34-
U.S.S.G. 1B1.3(a)(1)(B).
Vzquez does not dispute that she knew Soto possessed a gun.
Indeed, she testified at trial that a gun was "accessible" to Soto,
and that she had asked him not to keep the weapon in her house.
The fact that Vzquez never handled the gun herself does not
relieve her of responsibility for its foreseeable possession by a
co-conspirator in connection with their drug dealing venture.
As to chronology, the Guidelines also make clear that the
acts and omissions for which Vzquez 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
id.
1B1.3(a)(2); see also id. 3D1.2(d); id. 2D1.1. That phrase has
been interpreted to be "broader than, rather than coterminous with,
the definition of a 'conspiracy' as that term of art is used in the
overall criminal law."
(1st Cir. 1998).
conspiracy for which Vzquez was convicted, she was present during
-35-
that
it
was
well
aware
of
the
danger
posed
by
-36-
-37-