United States v. Tellez

86 F.4th 1148

UNITED STATES of America, Plaintiff-Appellee, v. Yanier N. TELLEZ aka Yanier Tellez-Crespo, Defendant-Appellant.

No. 22-5902

United States Court of Appeals, Sixth Circuit

Decided and Filed: November 17, 2023

Appeal from the United States District Court for the Eastern District of Tennessee at Greeneville, No. 2:20-cr-00100-1—Clifton Leland Corker, District Judge.

ON BRIEF: Joseph O. McAfee, MCAFEE & MCAFEE, PLLC, Greeneville, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

Before: MOORE, READLER, and MURPHY, Circuit Judges.

READLER, J., delivered the opinion of the court in which MURPHY, J., joined. MOORE, J. (pp. 10-15), delivered a separate dissenting opinion.

OPINION

CHAD A. READLER, Circuit Judge.

During a routine traffic stop, Yanier Tellez handed his wallet to a police officer. The ensuing search of the wallet yielded altered gift cards containing stolen credit card information, leading to Tellez's indictment on conspiracy, bank fraud, and identity theft charges. Tellez sought to suppress that evidence on the grounds that he did not voluntarily consent to the search. When his efforts came up short, Tellez pleaded guilty, preserving his ability to raise the suppression issue on appeal. He now does so, and he also challenges, in both procedural and substantive respects, the sentence imposed by the district court. We affirm.

I.

A highway patrol officer observed Yanier Tellez drift out of his lane. During the traffic stop that followed, the officer asked Tellez if he could search his car. Tellez agreed and exited the vehicle. When the officer finished the search, he asked Tellez, "Do you have your wallet?" Tellez initially asked him to repeat the question but then began removing his billfold from his back pocket. The officer said, "Let me see it for a moment." Tellez handed over the wallet as the officer reached for it. Inside, the officer discovered three Visa gift cards, each with five-digit numbers written on the back, which the officer believed was indicative of credit card fraud.

The officer asked Tellez if he could swipe the cards. Tellez agreed. As the officer prepared to swipe one of the cards, Tellez changed his mind and said, "I don't give you permission." The officer nevertheless swiped the cards, and the numbers on the magnetic strips did not match the cards, indicating they had been altered. The officer then arrested Tellez.

Tellez was indicted for conspiracy to defraud the United States, 18 U.S.C. § 371, bank fraud, 18 U.S.C. § 1344(2), and aggravated identity theft, 18 U.S.C. § 1028A(a)(1). He moved to suppress all evidence derived from the search of his wallet on the grounds that he did not voluntarily consent to the search. Notably, Tellez did not challenge the officer's decision to swipe the cards despite Tellez's apparent withdrawal of consent for that activity. Cf. United States v. Bah, 794 F.3d 617, 630 (6th Cir. 2015) (holding that swiping a card is not a search under the Fourth Amendment). After reviewing a video recording of the traffic stop and considering the officer's testimony, the district court denied Tellez's motion. To the district court's eye, Tellez's gesture of handing over his wallet reflected his nonverbal, voluntary consent to a search. Other relevant considerations, the court noted, included that Tellez maintained a cooperative demeanor, appeared to communicate effectively with the officer, was not threatened or coerced by the officer, had previously consented to a search of his vehicle, and later consented to the officer scanning the gift cards and searching his phone. Following the denial of his motion, Tellez entered a guilty plea as to all charges conditioned on his ability to challenge the suppression ruling on appeal.

During the sentencing phase, Tellez objected to the intended loss calculations used to derive his Guidelines offense level. Tellez, all agree, was found with only three fraudulent gift cards. But he also possessed a thumb drive with information regarding 300 other debit and credit card accounts. The three cards found in Tellez's wallet had been used to spend or withdraw an average of $1,400 per card. So the probation office calculated the intended loss by multiplying the total number of accounts associated with Tellez's scheme—303—by what it believed to be the average theft per account—$1,400. Rather than $1,400, Tellez argued the multiplier should be $500 per account, the figure used in calculating his co-conspirator's sentencing range, which, if adopted in Tellez's case, would have lowered his offense level by two. The district court agreed with the government and calculated the intended loss amount based on the $1,400 average loss figure.

Tellez also sought a downward variance from his Guidelines range based on a host of factors, including his acceptance of responsibility and a comparison to his co-conspirator's sentence. The district court rejected Tellez's request. Calculating Tellez's confinement range as 70 to 81 months, the district court sentenced Tellez to 70 months of total confinement.

II.

A.

We begin with Tellez's request to suppress the evidence discovered from the search of his wallet. The Fourth Amendment establishes a right against "unreasonable searches and seizures." U.S. CONST. amend. IV. A person may waive this right, however, by freely and voluntarily consenting to a search. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Lewis, 81 F.4th 640, 652 (6th Cir. 2023). The district court concluded that Tellez so consented here, and on that basis denied his motion to suppress.

Whether Tellez's consent was given freely and voluntarily is "a question of fact to be determined from the totality of all the circumstances." Bustamonte, 412 U.S. at 227, 93 S.Ct. 2041. "[O]ur review," accordingly, "is for clear error," United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004) (en banc), which requires a "definite and firm conviction that a mistake has been committed," United States v. Loines, 56 F.4th 1099, 1105 (6th Cir. 2023). In assessing whether a clear error occurred, we consider the evidence in the light most favorable to the government, the prevailing party. Carter, 378 F.3d at 587.

Numerous data points may inform a voluntariness inquiry. The analysis "is fact-specific, and there is no magic formula or equation for determining consent in the abstract." Id. at 588 (cleaned up). We thus look to factors such as "the age, intelligence, and education of the individual; whether the individual understands the right to refuse to consent; whether the individual understands his or her constitutional rights; the length and nature of detention; and the use of coercive or punishing conduct by the police." United States v. Blomquist, 976 F.3d 755, 759 (6th Cir. 2020) (citation omitted). And consent, it bears adding, need not be verbal; it can be communicated through gestures or conduct. Carter, 378 F.3d at 587; see also United States v. Hinojosa, 606 F.3d 875, 882 (6th Cir. 2010).

We see no clear error in the district court finding that Tellez voluntarily consented to the search of his wallet when he handed it to the officer. Tellez acknowledges that he agreed to a search of his vehicle. Following the search, the officer asked Tellez if he had his wallet. Tellez indicated that he did, first by reaching for it, and then by handing the item over to the officer—telltale signs of a consented-to search. Cf. Carter, 378 F.3d at 588-89 (moving out of the way to allow an officer to search a room); United States v. Thurman, 525 F. App'x 401, 404 (6th Cir. 2013) (handing over car keys).

True, the officer's precise wording—"Let me see [the wallet] for a moment"—could, in some contexts, perhaps be viewed as a command. But in the circumstances here, it was not clear error for the district court to find otherwise. Consider the evidence before the court. Dashcam video of the encounter demonstrated that Tellez was calm and cooperative throughout the traffic stop. There was nothing coercive or threatening about the officer's actions. And the stop occurred during the day on a public street, lasting just fifteen minutes before Tellez turned over his wallet. That Tellez later tried to revoke his consent, if anything, demonstrates his appreciation of his right to refuse a police search to begin with. See United States v. Mendenhall, 446 U.S. 544, 558-59, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (holding that knowledge of a right to refuse is "highly relevant to the determination that there had been consent").

Nor do we agree with Tellez that the question, "Do you have your wallet," and ensuing instruction, "Let me see it for a moment," failed to reflect the officer's intent to search the item. There is no particular script for seeking consent. See United States v. Gant, 112 F.3d 239, 243 (6th Cir. 1997) ("[A]ny words, when viewed in context, that objectively communicate to a reasonable individual that the officer is requesting permission to conduct a search constitute a valid search request." (cleaned up)). And the record here fairly demonstrates that the officer's question implied a request for consent. Tellez's own actions confirm the point. By reaching for his wallet and then holding it out towards the officer, Tellez demonstrated his understanding of the officer's desire to search the item. See Carter, 378 F.3d at 588-89. An understandable conclusion to reach, to be sure. Why else, after all, would the officer ask Tellez if he could see Tellez's wallet other than to express his interest in searching the item?

Tellez's reliance on Harris v. Klare, 902 F.3d 630 (6th Cir. 2018), is similarly unpersuasive, for two reasons. Start with the facts. In Harris, the subject of the alleged consent search was a teenager who was detained for over an hour, at night, surrounded by six police cars. Id. at 633, 639-41. During her conversation with the teenager,...