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United States v. Garcia-Garibay

United States District Court, D. New Mexico

August 14, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
EDGAR GARCIA-GARIBAY, Defendant.

          Román Romero Attorney for Mr. Garcia-Garibay

          Kimberly Brawley Assistant United States Attorney

          MEMORANDUM OPINION AND ORDER

          MARTHA VÁZQUEZ, UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on Defendant Edgar Garcia-Garibay's Motion to Suppress Evidence, filed July 21, 2017 [Doc. 23], and Amended Motion to Suppress Evidence, filed January 8, 2018 [Doc. 39]. The Court held an evidentiary hearing on March 16, 2018. Having reviewed the briefs, testimony, exhibits, and relevant law, for the reasons below, the Court grants the Motion.

         BACKGROUND

         This case concerns the interdiction of drugs at the Greyhound bus station in Albuquerque, New Mexico. The following represents the Court's findings of fact, based on the transcripts and photographic evidence submitted, as well as witness testimony.[1]

         On February 15, 2017, Mr. Garcia-Garibay, 43 years old and a Mexican national, had traveled from Phoenix, Arizona, to Albuquerque by Greyhound bus. The bus began its journey in Los Angeles and had made numerous stops, including in Phoenix. The bus arrived a few minutes before 10:00 a.m. Mr. Garcia-Garibay disembarked, walked outside the station to the curbside area, and began using his phone to call an Uber ride. While he was standing outside the station and using his phone, he was approached by Drug Enforcement Agency (DEA) Special Agent (SA) Jerrell W. Perry.

         SA Perry has been employed with the DEA for nearly twenty years. He specializes in intercepting the movement of drugs and proceeds from illegal narcotics on means of public transportation, such as buses and trains. SA Perry is particularly familiar with the travel routes of the Greyhound buses that pass through Albuquerque. On February 15, 2017, SA Perry was at the bus station waiting for the eastbound bus to arrive at 9:55 a.m.

         On this particular day, SA Perry was accompanied by Task Force Officer (TFO) Clarence Davis. TFO Davis is employed by the Tribal Pojoaque Police Department and assigned to the drug task force at the DEA office in Albuquerque. He has over thirty years' experience in law enforcement, including extensive experience working on narcotics investigations. TFO Davis speaks Spanish. He learned Spanish from his grandparents while he was growing up, and during his tenure in the Albuquerque Police Department he tested as proficient in Spanish, earning him additional pay for his language skills. Furthermore, TFO Davis has taught classes in Spanish for immigrant communities on topics such as how to utilize and understand the role of law enforcement.

         While Mr. Garcia-Garibay was standing outside the station, looking down at his cell phone, SA Perry approached. The Court had the benefit of listening to the audio recordings made by the recording devices worn by SA Perry and TFO Davis. The first recording indicates that SA Perry introduced himself as a police officer, asked to see his ticket, asked about the purpose of his trip to Albuquerque, and asked for his identification. Immediately it became apparent to SA Perry that Mr. Garcia-Garibay was more comfortable speaking Spanish, so SA Perry, who speaks and understands some basic Spanish, switched to Spanish. Mr. Garcia-Garibay produced his ticket, stated that he was in Albuquerque for two or three days to set up business selling Herbalife products, and produced a border crossing card. SA Perry asked Mr. Garcia-Garibay where he was from in Mexico. SA Perry then asked if he had luggage and if he had any guns or weapons, to which Mr. Garcia-Garibay said no. SA Perry then asked, in Spanish, “[m]ay I check for contraband, sir?” to which Mr. Garcia-Garibay hesitated and said “I don't know . . . I don't know . . . how do you mean check?” At that point, SA Perry motioned to TFO Davis for help and said “Ok. I'm asking for permission to search him and he asked something that I don't know what he is saying. Can you translate for me?” TFO Davis then turned to Mr. Garcia-Garibay and explained that “the officer is asking for permission to check your baggage, for illegal items, sir, for drugs, weapons, explosives.” Mr. Garcia-Garibay immediately responded that he did not have anything. TFO Davis continued to explain “[b]ecause we are conducting a security verification, because there are lots of armed individuals around . . .” The following dialogue then ensued, in which Mr. Garcia-Garibay declined permission for a search of his belongings 3 more times:

Garcia-Garibay: I do understand that, but no, I don't have anything, guns, nothing of the sort. All is in order.
TFO Davis: So, you don't, you don't want to give him permission?
Garcia-Garibay: Well, no, I don't want to because, because just no . . . [chuckles] I don't know.
TFO Davis: [To SA Perry] He says he doesn't want to give permission.
SA Perry: Ok.
TFO Davis: Would you give me permission to put your package down and, and to look for a dog to sniff?
Garcia-Garibay: Well, the thing is I don't understand why . . . I don't have any guns, nor weapons, nor nothing.
TFO Davis: Well, how do we know that?
Garcia-Garibay: Ok, how is it that . . .
TFO Davis: Is it all right if, if a dog just sniffs your, your luggage?
Garcia-Garibay: [chuckles] Well, ok, it's fine like that but what I don't understand.
TFO Davis: He gave permission for a dog to sniff ...

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