United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter is before the Court on a Motion to Suppress
Statements and Evidence [Doc. 43] filed by Defendant
Brenda Amelia Jimenez (hereafter, “Jimenez”) and
joined by Defendant Edgar Gomez-Guzman (hereafter,
“Gomez”). Doc. 45. On Tuesday, January 16, 2018,
the Court held an evidentiary hearing on the motion, at which
both defendants were present and represented by counsel.
Following the hearing, all parties were given the opportunity
to file written closings and rebuttal arguments [Docs. 53 and
55]. After considering the parties' briefs, the evidence
and arguments presented at the hearing, as well as the
written closing arguments, the Court concludes that the
motion to suppress should be denied.
sole purpose of ruling on the motion to suppress, the Court
makes the following findings of fact:
night of Saturday, August 19, 2017, Drug Enforcement Agency
(“DEA”) Special Agent Jarrell Perry went to the
Greyhound bus station in Albuquerque, New Mexico. Task Force
Officer (“TFO”) Seth Chavez of the Valencia
County Sheriff's Office, who was assigned to the DEA,
accompanied Agent Perry. The pair arrived at the bus station
shortly before 9:30 p.m. in order to check the eastbound bus
as it stopped in Albuquerque. When the bus arrived, Perry
stood nearby and watched the passengers step off. Perry
observed both defendants retrieve luggage from underneath the
bus: Gomez picked up a green, hard-sided suitcase, while
Jimenez retrieved a maroon suitcase. Then, the two walked
toward the front of the bus station. Perry did not follow or
keep track of them after that.
the bus was empty, Greyhound had it washed and serviced.
Afterwards, Perry and Chavez examined the checked luggage on
the bus. Then, the two boarded the bus and spoke to the
passengers who got on. When they were done, Perry and Chavez
got off the bus, which departed at approximately 11:15 p.m.
There is no evidence that either of the defendants was on the
bus while Perry and Chavez were onboard.
approximately 11:30 p.m., Perry and Chavez walked from the
boarding area into the bus station and then continued out the
front door toward First Street. Perry saw Gomez and Jimenez,
who were sitting on the curved wall in front of the bus
station with their luggage. They sat facing the bus station,
with their back to the street. Perry approached the couple
from the sidewalk on the other side of the wall. He asked
them how they were doing. Remaining seated on the wall, Gomez
and Jimenez looked at him over their shoulders and said they
were “good.” Then Perry displayed his badge,
identified himself as a police officer, showed them his
badege, and asked if he could speak with them. Both
defendants said “yes.” Perry pointed to Chavez,
who was about 50 feet away, standing under the archway in
front of the bus station, and told defendants that Chavez was
his partner. Noticing that Gomez had an accent, Perry asked
him if he spoke English. Gomez said, “A little.”
As a result, Perry began speaking Spanish to Gomez. He
identified himself as a police officer and asked permission
to speak to Gomez, who said yes. Perry was not in uniform and
did not display a weapon. The area in front of the bus
station was well lit.
asked if he could see Gomez and Jimenez's bus tickets.
The pair handed him their tickets, which were for passage
from Flagstaff, AZ to Billings, MT. Perry returned the
tickets. The bus going to Billings was scheduled to depart
several hours later, around 2:25 a.m. Then, Perry asked them
if they had identification with them. Again, the pair
complied with the request, and Perry reviewed and returned
their IDs. Perry began asking questions in English, which
Jimenez answered. He asked where they were going, and she
told him they were heading to Denver, CO. Jimenez also told
Perry that the two were a couple who lived together in
Phoenix and were traveling to Denver to visit a friend for
approximately one week. Perry asked if they planned to return
by Greyhound bus, and Jimenez responded that they might
return to Phoenix by car.
then asked both defendants if they had any luggage with them.
Gomez identified the green, hard-sided suitcase that Perry
saw him remove from the bus, as well as a camouflage
backpack. Jimenez claimed the maroon suitcase Perry saw her
remove from the bus, along with a purse and a small duffel
bag that was resting on top of the green suitcase. Perry
walked around the end of the wall on which the defendants
were sitting so that they were facing him, and stood a few
feet away from their luggage. Perry asked Jimenez for consent
to search her luggage for contraband, and she verbally
responded, “Yes.” Perry searched the maroon
suitcase, the small duffel bag, and the purse, and found
nothing of interest. At some point during the search process,
Chavez moved closer, finally standing within a few feet of
Perry and the defendants.
then asked Gomez in Spanish for consent to search his luggage
for contraband. Gomez, responding in Spanish, agreed. Perry
searched the green suitcase and found a small pink bag of the
type often used for giving gifts. At this point, Jimenez
lowered her head and shoulders in a manner that Chavez
perceived as though she had been caught in something or was
in trouble. Perry removed the gift bag and looked inside,
where he saw two clear plastic containers that contained a
clear crystal-like substance that, based on his training and
experience, was consistent with crystal methamphetamine.
Perry gave a signal to Chavez, and they arrested Jimenez and
Gomez. They then transported the defendants to the DEA's
Albuquerque district office, where the crystalline substance
field tested positive for the presence of methamphetamine.
I. The Initial Encounter Was Voluntary
Fourth Amendment, applied to the states through the
Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643
(1961), prohibits unreasonable seizures by law enforcement
officers. U.S. Const. amend. IV. But “[t]he Fourth
Amendment does not proscribe all contact between the police
and citizens.” INS v. Delgado, 466 U.S. 210,
215 (1984). For instance, “law enforcement officers do
not violate the Fourth Amendment by merely approaching an
individual on the street or in another public place, by
asking him if he is willing to answer some questions, [or] by
putting questions to him if the person is willing to
listen.” Florida v. Bostick, 501 U.S. 429, 434
(1991) (quoting Florida v. Royer, 460 U.S. 491, 497
(1983) (plurality opinion)). These are referred to as
consensual encounters which do not implicate the Fourth
Amendment. See United States v. Lopez, 443 F.3d
1280, 1283 (10th Cir. 2006). It is “[o]nly when the
officer, by means of physical force or show of authority, has
in some way restrained the liberty of a citizen [that a
court] may conclude that a ‘seizure' has
occurred.” Terry v. Ohio, 392 U.S. 1, 19 n.16
determining whether an encounter between a police officer and
a citizen is consensual, “the crucial test is whether,
taking into account all of the circumstances surrounding the
encounter, the police conduct would ‘have communicated
to a reasonable person that he was not at liberty to ignore
the police presence and go about his business.' ”
Bostick, 501 U.S. at 437 (quoting Michigan v.
Chesternut, 486 U.S. 567, 569 (1988)). “[T]he test
allows officers to make inquiries so long as they don't
throw their official weight around unduly.” United
States v. Tavolacci, 895 F.2d 1423, 1425 (D.C. Cir.
1990). There are no per se rules that govern this inquiry.
“Rather, every case turns on the totality of the
circumstances presented.” United States v.
Hill, 199 F.3d 1143, 1147 (10th Cir. 1999) (quoting
United States v. Little, 18 F.3d 1499, 1503 (10th
Cir. 1994) (en banc)).
Tenth Circuit has enumerated a non-exhaustive list of factors
to be considered in determining whether a reasonable person