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United States v. Jimenez

United States District Court, D. New Mexico

February 7, 2018



         This 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.


         For the sole purpose of ruling on the motion to suppress, the Court makes the following findings of fact:

         On the 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.

         When 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.

         At 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.

         Perry 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.

         Perry 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.

         Perry 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

         The 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 (1968).

         In 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)).

         The Tenth Circuit has enumerated a non-exhaustive list of factors to be considered in determining whether a reasonable person would ...

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