                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         DEC 18 1998
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk
UNITED STATES OF AMERICA,

      Plaintiff-Appellee,
v.                                                  No. 98-4024
GEORGE CASTILLO,                            (D.C. No. 96-CR-269-01-G)
                                                    (D. Utah)
      Defendant-Appellant.



UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                   No. 98-4021
v.                                          (D.C. No. 96-CR-269-02-G)
                                                   (D. Utah)
VINCENTE MEZA-RUELAS,

      Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before PORFILIO, BALDOCK, and EBEL, Circuit Judges. **


      *
         This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and appellate record this panel has
determined that oral argument would not materially assist the determination of
these appeals. These cases are therefore ordered submitted without oral
                                                                     (continued...)
       On November 20, 1996, Defendants George Castillo and Vincente Meza-

Ruelas were charged in a one-count indictment with possession of cocaine with

intent to distribute, in violation of 21 U.S.C. § 841(a).   1
                                                                The day before, police

officers at the Salt Lake City International Airport found approximately one

kilogram of cocaine fastened around the waist of each Defendant. Both

Defendants filed motions to suppress the cocaine, arguing that the officers

obtained the evidence in violation of the Fourth Amendment to the United States

Constitution. After evidentiary hearings, the district court denied the motions.

On November 17, 1997, Defendants entered conditional guilty pleas pursuant to

Fed. R. Crim. P. 11(a)(2), reserving their right to appeal the denials of their

respective motions to suppress evidence.

       On appeal Defendants argue that the district court erred by refusing to find

that (1) the DEA agents initiated contact with Defendants solely on the basis of

their race, in violation of the Equal Protection Clause; (2) Defendants never

voluntarily consented to the encounter and search; and (3) the agents had no

reasonable, articulable suspicion of criminal activity justifying an investigative




       (...continued)
       **

argument. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1.9.
       1
         Because Defendants raise similar issues and those issues all arise out of a
November 19, 1996, encounter with police officers at the Salt Lake International
Airport, we have consolidated these appeals.
detention. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.

                                   I. Background

      On November 19, 1996, Defendants arrived at the Salt Lake City

International Airport on a Delta Airlines flight from Los Angeles. Members of

the Drug Enforcement Agency Metro Narcotics Task Force working at the airport

randomly selected the flight to observe deplaning passengers because the flight

originated in a narcotics source city. Detectives Paul Gardiner and Mike Judd, of

the Salt Lake City police department, observed Defendants exiting the plane and

testified that Defendants obviously were looking for someone, turning their heads

from side to side and looking behind themselves repeatedly. Defendants were

wearing untucked shirts and Defendant Castillo carried an overcoat in front of his

body. The Detectives testified that they noted Defendants were Hispanic and

may be from Mexico. The Detectives also testified that they would have

followed Defendants regardless of their race because of their demeanor and

conduct. The two detectives followed Defendants as they walked quickly

through the terminal, repeatedly looking behind them, and through baggage claim

without retrieving any luggage.

      Once Defendants were outside of the terminal, Detective Gardiner

approached Defendants, identified himself and asked them if they would speak

with him for a few minutes. Defendant Castillo answered “yes” in English. As


                                           3
the conversation began, Detective Gardiner noticed that Defendant Meza-Ruelas

apparently did not speak English because Castillo was translating what Gardiner

said into Spanish for Meza-Ruelas. Detective Gardiner then motioned for

Detective Judd to join them to talk with Meza-Ruelas in Spanish. Detective Judd

informed Meza-Ruelas, in Spanish, that he was a police officer, showed him his

credentials and told him he was not under arrest and was free to go. Judd then

asked Meza-Ruelas if he understood and the Defendant said “si” and nodded his

head. Judd then asked Meza-Ruelas if he could speak to him for a few minutes

and Meza-Ruelas responded “si.” Defendants cooperated with the detectives,

answering their questions and consenting to a search of their bag, coats and

persons. Upon searching Defendants, the detectives found approximately one

kilogram of cocaine fastened around the waist of each Defendant.

                                     II. Analysis

      When reviewing the district court’s denial of a motion to suppress, we

accept the factual findings of the district court unless those findings are clearly

erroneous. United States v. Arzaga , 9 F.3d 91, 93 (10th Cir. 1993). In doing so,

we consider the totality of the circumstances and view the evidence in the light

most favorable to the government.    United States v. Hunnicutt , 135 F.3d 1345,

1348 (10th Cir. 1998). The credibility of witnesses, the weight to be given

evidence, and the reasonable inferences drawn from the evidence fall within the


                                          4
province of the district court.   Id. The determination of whether a seizure

occurred and the ultimate determination of reasonableness under the Fourth

Amendment are questions of law reviewable de novo.       Id.

       The district court held two evidentiary hearings on the motions to suppress

at which Defendants Castillo and Meza-Ruelas, along with narcotics task force

detectives Gardiner and Judd, testified. The district court made thorough

findings of fact and found the officers’ testimony more credible than

Defendants’. The district court concluded that Defendants were not targeted by

the agents solely on the basis of race. The district court, applying the factors set

forth in United States v. Zapata , 997 F.2d 751, 756-57 (10th Cir. 1993), also

concluded that the encounter remained consensual and was not an investigative

detention implicating the Fourth Amendment. Accordingly, the district court

denied the motions to suppress.

       We have reviewed the briefs of the parties, the transcripts of the

suppression hearings, the district court’s order and the entire record before us.

The only issue raised on appeal that warrants further attention, is whether

Defendants’ voluntarily consented to the respective searches of their belongings

and persons. Although Defendants raised this issue before the district court, the




                                            5
order denying the motions to suppress did not clearly address it.    2
                                                                         Therefore, we

do so now. As to Defendants other arguments, we agree with the district court

substantially for the reasons set forth in the order denying the motions to

suppress evidence.

                              A. Voluntariness of Consent

       To determine whether Defendants voluntarily consented to the searches, we

evaluate the totality of the circumstances, with the government bearing the

burden of proof.    United States v. McRae , 81 F.3d 1528, 1536-37 (10th Cir.

1996). The government must show that there was “no duress or coercion, express

or implied, that the consent was unequivocal and specific, and that it was freely

and intelligently given.”   Zapata , 997 F.2d at 758.

       Our review of the record reveals no evidence of duress or coercion. The

officers never unholstered or displayed their weapons.       See United States v. Soto ,

988 F.2d 1548, 1558 (10th Cir. 1993). The encounter lasted less than five

minutes and occurred in public view on a busy sidewalk outside the terminal.        See

id. Detective Gardiner testified that he returned Defendants’ identification and

airline tickets to them prior to asking permission to search Defendants and their

belongings. See United States v. Werking , 915 F.2d 1404, 1410 (10th Cir. 1990)


       2
         Without providing further analysis, the district court’s order merely
stated that the record included “affirmative acts which indicate defendants’
consent.”

                                             6
(no duress where officer returned driver’s license and registration before asking

to search).

      Furthermore, the consent was specific and unequivocal. The detectives

specifically sought permission to search Defendants’ belongings and persons.       See

Zapata , 997 F.2d at 758. Detective Gardiner testified that he asked Castillo if the

bag he was carrying belonged to him and if he had packed the bag. After Castillo

answered “yes” to both questions, Gardiner then asked him if he could search the

bag. After Defendant answered “yes,” Gardiner looked through the bag and did

not find any contraband. Gardiner asked Castillo if he could search his coat and

Castillo replied “yes” and handed the detective his coat. Gardiner searched it and

again did not find anything. Gardiner then asked Castillo if he had drugs on his

person and he answered “no.” Gardiner asked him if he could search him and

Castillo said “yes.” Consistent with Gardiner’s testimony, Castillo testified that

Gardiner asked him if he could search him and he “agreed.” Castillo also

testified that Gardiner told him that “[he] was not under arrest and was free to

go” immediately prior to asking him if he could search his person.

      Similarly, Detective Judd testified that after Meza-Rueles indicated that he

understood Spanish, Judd asked Meza-Ruelas in Spanish if he could search his

coat. Meza-Ruelas then handed Judd the coat and shook his head to indicate

“yes.” After Judd handed the coat back to Meza-Ruelas, he inquired in Spanish


                                           7
if he could search him. Meza-Ruelas shook his head up and down and Judd

inquired “with your permission” in Spanish and Meza-Ruelas said “si.”

      The record contains no evidence that Defendants did not understand the

detectives’ requests. Indeed, Castillo testified that when Gardiner asked him if

he could search his bag, Castillo handed his bag to Gardiner.   See Zapato , 997

F.2d at 758 (act of opening bag and handing it to agent precluded claim that the

defendant misunderstood the request). These circumstances compel the

conclusion that Defendants’ consent was unequivocal, specific, and freely and

intelligently given. For the reasons stated above, the decision of the district court

is

      AFFIRMED.

                                  Entered for the Court,



                                  Bobby R. Baldock
                                  Circuit Judge




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