United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued February 27, 2007

Decided March 7, 2007

Before

Hon. DIANE P. WOOD, Circuit Judge

Hon. TERENCE T. EVANS, Circuit Judge

Hon. DIANE S. SYKES, Circuit Judge

No. 06-2006

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RUBEN M. GUTIERREZ,

Defendant-Appellant.

Appeal from the United States 

District Court for the Northern

District of Illinois, Eastern Division.

No. 04 CR 662

Robert W. Gettleman,

Judge.

ORDER

With Ruben Gutierrez’s consent, law enforcement agents performed searches

that turned up cocaine in both his shirt pocket and his kitchen cabinet. He moved

to suppress the drugs on the ground that his consent was not knowing or voluntary. 

The district court denied his motion, and after a jury trial he was convicted of

possession with intent to distribute cocaine. 21 U.S.C. § 841(a)(1). Gutierrez now

challenges the denial of his motion to suppress and renews his contention that his

consent was invalid. We affirm.

Agents Sean Hartnett and Andrew Wessner, both with the Department of

Homeland Security in the division of Immigration and Customs Enforcement, along

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with 

Fed. R. App. P. 32.1
No. 06-2006 Page 2

with two other agents, were conducting surveillance on a particular apartment

building in Melrose Park, Illinois. At 2:00 p.m. Gutierrez pulled up in his minivan

and entered the building. The agents did not have a warrant, so they waited in

their cars until 5:00 p.m., when they decided to make contact. 

The sun was still shining when Agent Harnett, along with another agent,

went to the door. Agent Wessner and the fourth agent stood to the side of the door,

out of sight. The agents were wearing bulletproof vests, each affixed with a badge

that read “U.S. Customs,” and all four agents had their weapons holstered. After

Agent Hartnett knocked and announced, “police,” Gutierrez appeared at the door. 

Agent Hartnett asked for permission to speak with Gutierrez, who replied, “Yeah,

come on in,” opened the door, and retreated down the hallway to the living room. 

Agent Hartnett followed, while the other three agents entered and performed a

protective sweep of the apartment. 

As he entered the living room, Agent Hartnett informed Gutierrez in English

that he and his associates were federal agents and that the apartment was the

subject of an investigation. Continuing in English, Agent Hartnett asked whether

Gutierrez had any weapons or contraband on him. Gutierrez said no, and so Agent

Hartnett asked if he could search him. Gutierrez responded “Yeah” or “Yeah sure,”

and then raised his arms out to his sides “like an airplane.” 

While performing the search, Agent Hartnett felt an object in one of

Gutierrez’s shirt pockets and asked him what it was. “Cocaine,” Gutierrez replied. 

Agent Hartnett retrieved the object, which laboratory tests later confirmed was

cocaine, and then handcuffed Gutierrez to finish searching him. Hartnett explained

at the suppression hearing that he handcuffed Gutierrez because he figured that if

Gutierrez had lied about not having cocaine, he might have been lying about not

having weapons as well. Finding no weapons, Agent Hartnett removed the

handcuffs and sat Gutierrez on the couch. 

By this point, Agent Wessner had rejoined Agent Hartnett in the living room,

where the two obtained Gutierrez’s consent to a search of his residence. Agent

Hartnett retrieved a Spanish-language, consent-to-search form that he had used in

previous investigations. Gutierrez read it, then turned to Agent Wessner and said

in Spanish “You already searched.” Hartnett explained that a protective sweep of

the apartment had been conducted but not a search. Hartnett went on to explain to

Gutierrez that the discovery of cocaine in his shirt pocket would be sufficient to

contact the U.S. Attorney’s Office and prepare a search-warrant application to

search the residence. With that information, Gutierrez signed the form; in the

subsequent search, agents found two bricks of cocaine wrapped in separate

packaging, one of which had been sliced open, in the kitchen cabinets. Throughout

this encounter, as Agent Hartnett described it, Gutierrez’s demeanor was “calm and
No. 06-2006 Page 3

cooperative,” though Agent Wessner suggested that Gutierrez seemed “stressed” at

times. 

Although Gutierrez did not testify at the suppression hearing, the defense did

call Carlos Mendoza, a court reporter who the parties stipulated was an expert in

Spanish-English translation. Mendoza analyzed the consent form and concluded

that it was poorly translated from English to Spanish. On cross-examination,

Mendoza admitted that his analysis of the form was purely based on the words as

they appeared on paper rather than on the context in which the form was

presented, and that despite the errors, he could translate the document roughly to

mean consent to search.

The district court credited the testimony of Agents Hartnett and Wesser and

determined that the two searches were consensual. The court also credited

Mendoza’s testimony, remarked that the consent form probably was poorly

translated, and advised the government to have that problem corrected. But the

judge did not think there was any question about what the form meant, for as he

said, “it’s obviously a consent to search form.” The judge then denied the motion to

suppress. Gutierrez was convicted after a jury trial and sentenced to 70 months’

imprisonment to be followed by a four-year term of supervised release.

Gutierrez argues for the first time on appeal that his consent was tainted by

the fact that the agents subjected him to an illegal detention. Specifically, he says

that the encounter had become a nonconsensual “seizure” by the time the agents

performed the pat-down search. In an effort to show the intrusiveness of the

encounter, Gutierrez emphasizes that he was approached by four agents wearing

“identifying police logos on their clothes” in the “late afternoon.” With those facts,

says Gutierrez, his case is like United States v. Jerez, 108 F.3d 684 (7th Cir. 1997),

in which this court invalidated consent that was given immediately following an

illegal seizure. The government responds that this argument should be reviewed

for plain error because it was never raised in the district court, and that in any

event, there was no detention at all until the officers found cocaine in Gutierrez’s

shirt pocket and handcuffed him. 

The government is correct that Gutierrez never raised the illegality of his

detention in the district court, rendering this court’s review for plain error. See

United States v. Johnson, 415 F.3d 728, 730 (7th Cir. 2005). In reviewing the

argument, we ask whether “a reasonable person would feel free to decline the

officers’ request or otherwise terminate the encounter.” Jerez, 108 F.3d at 689

(quoting Florida v. Bostick, 501 U.S. 429, 436 (1991)). Here, the agents testified

that they approached Gutierrez’s apartment while the sun was still out, gave no

commands, did not draw their guns, and applied no pressure to gain entry. Despite

Gutierrez’s attempt to recast these facts as more akin to those in Jerez, we find that
No. 06-2006 Page 4

a reasonable person in Gutierrez’s circumstances would have felt free to terminate

the encounter. Thus, Gutierrez has not met his burden of showing a plain error.

Gutierrez also argues that the district court erred in finding that he

voluntarily consented to the two searches. He says that the pat-down search was

involuntary because the agents failed to inform him of his constitutional right to

refuse consent. But the advisement of rights is just one of a totality of

circumstances that courts take into account in determining the voluntariness of

consent. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); United States v.

LaGrone, 43 F.3d 332, 333-34 (7th Cir. 1994). Further, informing a suspect of his

right to refuse consent is not required for a valid consent because “it would be

thoroughly impractical to impose on the normal consent search the detailed

requirements of an effective warning.” Schneckloth, 412 U.S. at 231, 232-33. The

ultimate question is whether, under the totality of the circumstances, the consent

appeared voluntary to a reasonable officer. United States v. Grap, 403 F.3d 439,

444 (7th Cir. 2005). Here, the testimony about Gutierrez’s “calm and cooperative”

demeanor, together with his immediate agreement to be searched, plus the fact that

he assumed an “airplane” stance without any prompting from the agent, provided

the district court with enough evidence to conclude that Gutierrez voluntarily

consented to the search. 

Gutierrez also argues that his next consent, to the search of his residence,

was not voluntary. As he sees it, this consent was involuntary because (1) he was

not given Miranda warnings, (2) Agent Hartnett threatened to obtain a warrant,

and (3) the consent form was defective. But Miranda warnings are not required for

a consent to search to be deemed voluntary, see United States v. Renken,

No. 05-2838, 2007 WL 255383, *3-*4 (7th Cir. Jan. 31, 2007), and while “baseless

threats” to obtain a warrant can invalidate consent, see United States v. White,

979 F.2d 539, 542 (7th Cir. 1992), the threat here was anything but; agents had just

found cocaine on Gutierrez’s person and could readily have obtained a warrant

based on that discovery. 

Gutierrez’s argument about the consent form is less understandable. He

calls the form “defective” and seems to suggest that he did not understand the

consent form because it was poorly translated. Yet he offers no reason why the

district court was wrong to conclude that given the context of the encounter, he

must have understood that the agents were asking for permission to search. 

Gutierrez’s response to the form—“You already searched”—alone supports the

district court’s conclusion that Gutierrez knew and understood the effect of signing

the form. 

Gutierrez finally seems to allege, for the first time on appeal, that his

language difficulty is not with Spanish but with English, and that this difficulty

allowed the police to pressure him to sign the consent form. But at the suppression
No. 06-2006 Page 5

hearing, counsel urged that Gutierrez did not know Spanish well enough to

understand the consent form. Moreover, the district court asked Gutierrez at two

separate proceedings whether he spoke English, and he replied that he did and that

he did not need an interpreter. 

AFFIRMED.