United States Court of Appeals

For the Eighth Circuit

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No. 19-1807

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Evandro DaCruz-Mendes

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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Submitted: April 13, 2020

Filed: July 27, 2020 

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Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.

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GRASZ, Circuit Judge.

After his motion to suppress evidence was denied, Evandro DaCruz-Mendes

pled guilty to possession with intent to distribute methamphetamine in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(A). The district court1 sentenced DaCruz-Mendes to

1The Honorable Greg Kays, United States District Judge for the Western District

of Missouri. 
115 months of imprisonment. DaCruz-Mendes now appeals, arguing the district court

erroneously denied his motion to suppress evidence because he did not knowingly

consent to a search or waive his Miranda rights.2 DaCruz-Mendes also argues the

district court erred in determining his sentence by failing to properly weigh certain 18

U.S.C. § 3553(a) factors. We affirm.

I. Background

DaCruz-Mendes, a native of Brazil, took a bus from Dallas, Texas to Kansas

City, Missouri in February 2015. Upon arriving in Missouri, Detective Mark Merrill

and a fellow detective stopped DaCruz-Mendes because the officers thought it was

suspicious DaCruz-Mendes was carrying only a small duffel bag. Detective Merrill

approached DaCruz-Mendes as he was speaking with a taxi driver, verbally identified

himself, and showed his badge. Detective Merrill asked DaCruz-Mendes, in English,

if he could speak with him, to which DaCruz-Mendes replied in English “Yes, inside.” 

DaCruz-Mendes speaks Portuguese as his primary language, but has been

communicating in Spanish and English since first coming to the United States in 2002. 

Inside the terminal, Detective Merrill asked to see DaCruz-Mendes’s bus ticket

and passport, using the Spanish word for ticket, “boleto,” at least once. DaCruzMendes gave the officers both a ticket and a passport, but the names listed did not

match. Detective Merrill then asked DaCruz-Mendes in English if he could look inside

his duffle bag, also using the Spanish word for drugs while pointing toward the bag. 

DaCruz-Mendes responded “yes,” in English, and pointed to his bag. When Detective

Merrill searched the bag, DaCruz-Mendes voiced no objection. In the bag, Detective

Merrill found two Tupperware containers, covered in green plastic wrap, containing

methamphetamine. 

2

See Miranda v. Arizona, 384 U.S. 436 (1966).

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At this point, Detective Merrill placed DaCruz-Mendes under arrest and led him

to an office inside the bus terminal for further investigation. Given that English was

not DaCruz-Mendes’s first language, Detective Antonio Garcia, who was fluent in

Spanish, was called into the office to aid in the interview. Before beginning the

interview, Detective Garcia provided DaCruz-Mendes with a written copy of the

Miranda warnings in Spanish. DaCruz-Mendes read the entire form aloud in Spanish. 

Then DaCruz-Mendes stated in Spanish he understood his rights and signed the

Miranda waiver. At no point did DaCruz-Mendes indicate he did not understand

Spanish. During the interview, he told Detective Garcia that he spoke Portuguese but

also understood Spanish. 

Detective Garcia went on to interview DaCruz-Mendes for approximately two

hours in Spanish. Over the course of the interview, DaCruz-Mendes provided precise

details, in Spanish, about the narcotics exchange in which he was involved.

At one point during this interview, DaCruz-Mendes’s phone rang and displayed

the name “Gordito.” DaCruz-Mendes identified Gordito as the source in Texas for

whom he was transporting the methamphetamine. The officers then asked for

permission to search DaCruz-Mendes’s phone. Again, DaCruz-Mendes consented,

reading aloud an additional consent form written in Spanish and signing it. 

After being charged, DaCruz-Mendes moved to suppress the evidence gathered

from the search of his bag, his cell phone, and the interview with Detective Garcia,

arguing he lacked sufficient knowledge to consent given the language barrier. The

magistrate judge3

 held a suppression hearing, and then recommended denying the

motion. The district court adopted the report and recommendation. DaCruz-Mendes

later pled guilty, reserving the right to appeal the suppression motion. 

3The Honorable John T. Maughmer, United States Magistrate Judge for the

Western District of Missouri.

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II. Analysis

A. Motion to Suppress

On appeal of a denial of a motion to suppress evidence we review the district

court’s legal conclusions de novo and its factual findings for clear error. United States

v. Vanover, 630 F.3d 1108, 1113 (8th Cir. 2011). The district court’s credibility

determinations are “virtually unreviewable on appeal.” United States v. Wright, 739

F.3d 1160, 1166–67 (8th Cir. 2014) (quoting United States v. Heath, 58 F.3d 1271,

1275 (8th Cir. 1995)).

The Fourth Amendment prohibits unreasonable searches and seizures, but “[n]ot

all personal encounters between law enforcement and citizens fall within the ambit of

the Fourth Amendment.” United States v. Richards, 611 F.3d 966, 968 (8th Cir. 2010)

(alteration in original) (quoting United States v. Jones, 269 F.3d 919, 925 (8th Cir.

2001)). Consensual encounters between officers and citizens are permitted. Id. at

968–69. “Even when law enforcement officers have no basis for suspecting a

particular individual, they may pose questions, ask for identification, and request

consent to search luggage — provided they do not induce cooperation by coercive

means.” United States v. Drayton, 536 U.S. 194, 201 (2002). The encounter is

considered consensual so long as a reasonable person would feel free to terminate the

encounter or refuse to answer questions. Id. 

First, DaCruz-Mendes argues the district court clearly erred in its factual

findings surrounding the initial encounter with the police. He suggests the district

court failed to give due weight to evidence suggesting the encounter was not

consensual. However, the district court relied on officer testimony to conclude the

encounter was consensual and we will not disturb that credibility finding. See Wright,

739 F.3d at 1166-67. We see no clear error in the factual findings of the district court

as to this issue. 

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DaCruz-Mendes also suggests the district court committed legal error in finding

that the initial encounter with the police was consensual rather than an illegal seizure

under the Fourth Amendment. To determine whether an encounter with the police was

consensual, we consider the totality of the circumstances, looking at factors such as the

brandishing of weapons, the use of commands, or language indicating compliance is

necessary — among others. United States v. Aquino, 674 F.3d 918, 923 (8th Cir.

2012). Here, the district court’s findings surrounding the encounter support the

conclusion that DaCruz-Mendes did consent to the encounter. There was no clear error

in finding there was no brandishing of weapons, physical touch, or threats or

commands to indicate to DaCruz-Mendes that he was not free to terminate the

encounter. Though DaCruz-Mendes argues the presence of two officers stopping him

as he entered a taxi suggested a coercive show of police force, that alone is not enough

to create a seizure under the Fourth Amendment when considering the totality of the

circumstances. Accordingly, we find the initial encounter between the detectives and

DaCruz-Mendes was consensual. 

Likewise, a reasonable officer would believe DaCruz-Mendes had consented to

the search of his luggage despite the existing language barrier. “A consensual search

does not violate the Fourth Amendment if the consent was given voluntarily and

without coercion.” United States v. Meza-Gonzalez, 394 F.3d 587, 592 (8th Cir.

2005). Determining whether consent to search was given voluntarily requires an

analysis of the totality of the circumstances. United States v. Carr, 895 F.3d 1083,

1089 (8th Cir. 2018). We have found that individuals can consent to searches despite

language difficulties. See, e.g., United States v. Cedano-Medina, 366 F.3d 682,

684–87 (8th Cir. 2004); United States v. Mendoza-Cepeda, 250 F.3d 626, 629 (8th

Cir. 2001). In this case, DaCruz-Mendes was still in a public space when the bag

search was initiated. The police officers made no threats or misrepresentations. 

DaCruz-Mendes did not object to the search at any point nor did he indicate that he did

not understand what Detective Merrill was asking. “[T]he Fourth Amendment requires

only that the police reasonably believe the search to be consensual.” United States v.

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Garcia, 197 F.3d 1223, 1227 (8th Cir. 1999) (quoting United States v. Sanchez, 156

F.3d 875, 878 (8th Cir. 1998)). DaCruz-Mendes’s responsiveness to the detective’s

questions and affirmative response when asked if his bag could be searched would

indicate to a reasonable officer that the search was consensual. 

Similarly, the later search of DaCruz-Mendes’s cell phone was also consensual. 

Before his cell phone was searched, DaCruz-Mendes read aloud and signed a consent

form in Spanish. And, by this point, Detective Garcia had been speaking with

DaCruz-Mendes in Spanish for some time. During this conversation, DaCruz-Mendes

provided a detailed discussion about the drug exchange in which he was involved. 

Based on this interaction, Detective Garcia reasonably believed DaCruz-Mendes

voluntarily gave consent to search his cell phone and understood what his consent

entailed. Given that DaCruz-Mendes and Detective Garcia were able to communicate

to each other over the course of the interview, DaCruz-Mendes read and signed the

consent disclosure, and there was no indication of coercion, a reasonable officer would

believe DaCruz-Mendes had consented, making the cell phone search consistent with

the Fourth Amendment. See Garcia, 197 F.3d at 1227.

Finally, the district court did not clearly err in concluding DaCruz-Mendes’s

waiver of his Miranda rights was knowing and voluntary. For a waiver to be

voluntary, it must first be “the product of a free and deliberate choice rather than

intimidation, coercion, or deception.” United States v. Vinton, 631 F.3d 476, 483 (8th

Cir. 2011) (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). And, the waiver

must be undertaken “with a full awareness of both the nature of the right being

abandoned and the consequences of the decision to abandon it.” Id. (quoting Moran,

475 U.S. at 421). DaCruz-Mendes does not allege coercion or intimidation, only that

he did not understand Spanish well enough to waive his Miranda rights with full

awareness. DaCruz-Mendes read the Miranda waiver aloud in Spanish and he

indicated to Detective Garcia that he understood the content. Now, DaCruz-Mendes

argues he did not understand. However, following the Miranda waiver, Detective

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Garcia spoke with him for roughly two hours in Spanish. During this time DaCruzMendes provided specific details about the drug trade in which he was involved. This

long, thorough conversation held in Spanish contradicts DaCruz-Mendes’s claim that

he did not understand Spanish enough to appreciate the Miranda rights he waived. 

Since the record reflects both an absence of coercion or intimidation, and the requisite

understanding of Spanish to appreciate the value of his Miranda rights, DaCruzMendes’s waiver of those rights was valid. 

B. Sentencing

DaCruz-Mendes was sentenced to 115 months of imprisonment following his

guilty plea. The United States Sentencing Guidelines Manual (“Guidelines”)

recommended a sentence of 108 to 135 months of imprisonment. On appeal, DaCruzMendes challenges his sentence, arguing the district court improperly weighed

mitigating and § 3553(a) factors. 

We review the substantive reasonableness of a sentence using a deferential abuse

of discretion standard. United States v. Mitchell, 914 F.3d 581, 587 (8th Cir. 2019). 

An abuse of discretion occurs when a district court “fails to consider a relevant factor

that should have received significant weight . . . [or] gives significant weight to an

improper or irrelevant factor.” United States v. Berry, 930 F.3d 997, 1000 (8th Cir.

2019) (alterations in original) (quoting United States v. Feemster, 572 F.3d 455, 461

(8th Cir. 2009) (en banc)). Additionally, the district court has discretion in

determining how to weigh sentencing factors, and on appeal a defendant “must show

more than the fact that the district court disagreed with his view of what weight ought

to be accorded certain sentencing factors.” United States v. Long, 906 F.3d 720, 727

(8th Cir. 2018) (quoting United States v. Townsend, 617 F.3d 991, 995 (8th Cir.

2010)). We presume sentences within the Guidelines recommended range are

reasonable. United States v. Duke, 932 F.3d 1056, 1062 (8th Cir. 2019). 

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Here, DaCruz-Mendes argues the district court failed to properly weigh certain

factors in his favor and meaningfully consider those mitigating factors. To the

contrary, the district court properly undertook an analysis of the § 3553(a) factors,

addressing them specifically at the sentencing hearing. How the district court chose

to weigh those factors was within its discretion. Long, 906 F.3d at 727. Additionally,

the 115-month sentence was squarely within the recommended range. This sentence

is presumed reasonable and there is no evidence suggesting the district court failed to

give due consideration to any factors. Since the district judge gave due consideration

when weighing all factors and the sentence fell within the Guidelines range, we find

no abuse of discretion. 

III. Conclusion

For the foregoing reasons, we affirm the judgment of the district court. 

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