USA v. Jacques Hernes Telcy

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JAN 21, 2010
JOHN LEY
ACTING CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-11088
Non-Argument Calendar
________________________
D. C. Docket No. 08-60207-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACQUES HERNES TELCY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 21, 2010)
Before BLACK, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
After a jury trial, Jacques Hernes Telcy appeals his convictions for

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possession with intent to distribute cocaine and crack cocaine, in violation of 21
U.S.C. § 841(a)(1); possession of a firearm in furtherance of a drug trafficking
offense, in violation of 18 U.S.C. § 924(c)(1); and possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). After review, we affirm.
I. BACKGROUND
Acting on a tip from a confidential informant (“CI”), officers pulled Telcy
over in an apartment complex parking lot and eventually searched his nearby
apartment, where they found drugs and a firearm. Telcy moved to suppress his
statements to investigators and the physical evidence found in his apartment.
The district court held a suppression hearing at which Detective Osvaldo
Tianga recounted the circumstances of Telcy’s arrest and the search. According to
Detective Tianga, on August 1, 2008, he received information from a CI that a 30-
year-old black male of medium build would be driving a Ford Edge containing
contraband. According to the CI, with whom Tianga had worked and who had
proven reliable in the past, the man lived at the New River Cove Apartments in
Dania, Florida. Tianga and three other federal and state officers spotted Telcy,
who was driving a Ford Edge and fit the description given by the CI. The officers
followed Telcy into the New River Cove apartment complex parking lot and pulled
him over.
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As he approached Telcy’s car, Tianga smelled the odor of marijuana.
Because Telcy put his hand into his pocket, Tianga handcuffed him for officer
safety. When Tianga asked if Telcy had marijuana, Telcy said: “No. You can look
all you want. I just came from the bank.” Upon searching the car, Tianga found a
half-smoked marijuana cigarette and a trash bag containing cellophane bags caked
in a residue. A field test indicated that the residue was cocaine. Telcy denied
knowledge of the drugs or cellophane and stated that he was just at the apartment
complex to pick up a girl. At that point, Tianga advised Telcy of his Miranda
rights. When Tianga confronted Telcy about the cellophane and asked whether a
search of his apartment would yield anything further, Telcy pointed toward a door
in the apartment complex. According to Tianga, Telcy stated: “You could search
my apartment. That’s it. You know, it’s right there.”
The officers entered Telcy’s apartment and conducted a safety sweep, at
which time they noticed a digital scale in plain view, coated in cocaine residue.
Beneath the scale were sandwich bags and about 70 grams of cocaine and crack
cocaine. Further searching revealed a locked safe in Telcy’s bedroom closet.
Tianga returned and asked Telcy where the key for the safe was, and Telcy
responded that it was on his key chain. Tianga took the keys from a table, opened
the safe, and found inside three-quarters of a kilogram of cocaine. Tianga also
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found a firearm and a “kilo press,” used to shape cocaine bundles. Tianga pried
open a plastic compartment within the safe, but he found nothing further. Telcy
was re-advised of his Miranda rights, and he said that the apartment was rented for
him under a female acquaintance’s name, but that it was primarily his residence.
When asked to sign a written consent form, Telcy stated that he wanted to contact
an attorney.
On cross-examination, Tianga recounted that Telcy indicated his apartment
by pointing, and he initially misidentified or misunderstood the apartment to which
Telcy had pointed. On redirect examination, Tianga stated that he initially thought
Telcy deliberately misidentified his apartment, but Telcy later clarified which unit
was his, saying to Tianga, “I told you where the apartment is. It’s right there.”
Telcy also took the stand and testified that he did not consent to the search of
either his apartment or his car. On cross-examination, however, Telcy stated that
he gave officers permission to search the car for his bank receipt.
The district court denied Telcy’s motion to suppress the fruits of the search,
but granted the motion to suppress any statements made after he invoked his right
to counsel. The district court stated that it had considered Tianga’s and Telcy’s
testimony and “determined [the] credibility of witnesses.” The district court
recited the facts crediting Tianga’s version of events. Specifically, the district
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court found that “Telcy consented to the search of his apartment and indicated that
the keys were on his key chain. When the police went to the wrong apartment,
Telcy pointed out the correct apartment, #102.” The district court concluded that
“Telcy voluntarily consented to the search of Apartment #102.”
After trial, a jury convicted Telcy of possession with intent to distribute
crack cocaine (Count One), possession with intent to distribute cocaine (Count
Two), both in violation of 21 U.S.C. § 841(a)(1), possession of a firearm in
furtherance of a drug trafficking offense (Count Three), in violation of 18 U.S.C.
§ 924(c)(1), and possession of a firearm by a convicted felon (Count Four), in
violation of 18 U.S.C. § 922(g)(1). The district court sentenced Telcy to life
imprisonment on Count One, concurrent 235-month sentences on Counts Two and
Four and a consecutive 60-month sentence on Count Three. Telcy filed this
appeal.
II. DISCUSSION
Generally, police officers must obtain a warrant supported by probable cause
to justify a search under the Fourth Amendment. United States v. Magluta, 418
F.3d 1166, 1182 (11th Cir. 2005). A search of property without a warrant and
probable cause is constitutionally permissible if preceded by valid consent. United
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States v. Dunkley, 911 F.2d 522, 525 (11th Cir. 1990).1
Telcy argues that the district court improperly credited Detective Tianga’s
suppression hearing testimony and failed to make a specific credibility finding.
We disagree. The district court expressly stated that it had considered the
credibility of both Tianga and Telcy and then credited the facts conveyed in
Tianga’s testimony. We must defer to the district court’s credibility findings and
accept the credited testimony “unless it is contrary to the laws of nature, or is so
inconsistent or improbable on its face that no reasonable factfinder could accept
it.” United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). Nothing
in the record suggests Detective Tianga’s testimony is improbable on its face. The
district court did not clearly err in finding credible Detective Tianga’s testimony
that Telcy consented to the search of his apartment.
Further, Telcy has cited no precedent requiring the district court to give a
detailed explanation of its credibility finding. Telcy’s reliance on Gallego v.
United States, 174 F.3d 1196 (11th Cir. 1999), is misplaced. In Gallego, this Court
rejected a rule or presumption that, as a matter of law, a defendant must submit
“In reviewing a district court’s ruling on a motion to suppress, we review findings of1
fact for clear error and the application of the law to those facts de novo.” United States v.
Martinelli, 454 F.3d 1300, 1306 (11th Cir. 2006). We construe the facts in this case in the light
most favorable to the government, as it was the prevailing party in the district court. United
States v. Newsome, 475 F.3d 1221, 1223-24 (11th Cir. 2007). We are not limited to a review of
the evidence presented at the suppression hearing; instead, we may consider the entire record,
including trial testimony. Id. at 1224.
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additional corroborating evidence in order to be found credible. Id. at 1198-99.
Here, the district court applied no such rule.
Telcy also raises two new arguments on appeal, which we review for plain
error. See United States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir. 2009). First,
Telcy argues that, even if he did consent, his consent was not voluntary, but the
product of coercion.
The voluntariness of the defendant’s consent to a search is a factual
assessment and “depends on the totality of the circumstances.” United States v.
Purcell, 236 F.3d 1274, 1281 (11th Cir. 2001). In evaluating voluntariness, we
examine several factors, including the defendant’s custodial status, “the presence
of coercive police procedures, the extent of the defendant’s cooperation with the
officer, the defendant’s awareness of his right to refuse consent, the defendant’s
education and intelligence, and the defendant’s belief that no incriminating
evidence will be found.” Id. at 1281-82.
The record establishes that Telcy was in handcuffs and in custody following
the discovery of contraband in his car. However, the officers did not employ any
coercive tactics. The officers did not brandish their weapons and did not threaten
Telcy or lie to him or otherwise unreasonably pressure him into acceding to their
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request. Detective Tianga merely asked Telcy where his apartment was, whether2
they would find anything illegal inside and whether they could search. Telcy
identified his apartment and consented. According to Detective Tianga, Telcy was
fully cooperative with the officers, permitting them to search his car, directing
them to the right apartment when they approached the wrong door and showing
them where they could find the keys to his safe. Although officers did not inform
Telcy of his right to refuse his consent, this does not invalidate an otherwise valid
consent. See United States v. Taylor, 458 F.3d 1201, 1205 (11th Cir. 2006).
Telcy makes a generalized argument that his background (mainly his
limited, tenth-grade education) undermined his ability to voluntarily consent, but
does not identify how this constrained his ability to refuse or impaired his ability to
appreciate the consequences of his consent. Indeed, Telcy later refused to sign a
written consent form, which demonstrates that he appreciated the consequences of
the search and that his will was not overborne. Given the totality of the
circumstances, we find no error, much less plain error, in the district court’s
finding that Telcy’s consent was voluntary.
Although Telcy testified that one officer drew his gun as they approached him, Detective2
Tianga testified that officers did not draw their weapons until they entered the apartment.
Crediting Detective Tianga’s testimony over Telcy’s, as it was permitted to do, the district court
found that, as Telcy exited his vehicle, the officers approached, identified themselves as police
officers, and told Telcy to remove his hands from his pants, that, at that point, the police still had
not drawn their guns and that the officers drew their guns for the first time as they entered the
apartment.
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Telcy’s second newly-raised argument is that, even if he gave the officers
valid consent to search his apartment, the officers exceeded the scope of his
consent when they searched the locked safe in his bedroom. Again, we find no
error, plain or otherwise.
When a defendant gives a general statement of consent, the scope of the
permissible search “is constrained by the bounds of reasonableness: what a police
officer could reasonably interpret the consent to encompass.” United States v.
Street, 472 F.3d 1298, 1308 (11th Cir. 2006). Permission to search an area for
narcotics “may be construed as permission to search any compartment or container
within the specified area where narcotics may be found.” United States v.
Martinez, 949 F.2d 1117, 1119 (11th Cir. 1992). Additionally, “[b]y describing
the location of the keys which would provide entry into [a locked area], [a
defendant] provide[s] additional evidence of his consent to the search.” United
States v. Milian-Rodriguez, 759 F.2d 1558, 1564 (11th Cir. 1985).
Here, Telcy gave the officers permission to search his apartment and did not
limit the terms of the search to exclude the safe. Further, given the context of the
requested consent, it was clear that further narcotics were the object of the search.
Telcy watched as Detective Tianga conducted a field test, which yielded a positive
result for cocaine, on the cellophane wrappers in his car. Detective Tianga
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confronted Telcy about the cocaine-encrusted wrappers and asked if there would
be anything else in his apartment.
Moreover, Detective Tianga asked Telcy where the keys to the safe were
located. Even assuming he did not know earlier, Telcy knew then that Tianga
intended to open the safe and examine its contents. Not only did Telcy fail to
object to a search of the safe, he told Tianga where to find the key. In short, Telcy
knew the object of the search and did not attempt to limit his consent. Under these
circumstances, it was reasonable to believe Telcy’s consent encompassed the safe
in his bedroom.
For all these reasons, the district court did not err in denying Telcy’s motion
to suppress the evidence found in his apartment.3
AFFIRMED.
Telcy’s argument that the fruits of the search must be excluded because officers did not3
give him a Miranda warning before asking him to identify his apartment is foreclosed by United
States v. Jackson, 506 F.3d 1358, 1360-61 (11th Cir. 2007) (concluding, based on United States
v. Patane, 542 U.S. 630, 124 S. Ct. 2620 (2004), “that Miranda does not require the exclusion of
physical evidence that is discovered on the basis of a voluntary, although unwarned, statement”).
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