United States District Court, D. New Mexico
Román Romero Attorney for Mr. Garcia-Garibay
Kimberly Brawley Assistant United States Attorney
MEMORANDUM OPINION AND ORDER
VÁZQUEZ, UNITED STATES DISTRICT JUDGE.
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.
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
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.
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.
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.
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
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
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,
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 ...