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United States v. Ramos-Burciaga

United States District Court, D. New Mexico

September 19, 2018

UNITED STATES OF AMERICA Plaintiff,
v.
DULCE ISABEL RAMOS-BURCIAGA, Defendant.

          MEMORANDUM OPINION AND ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION TO SUPPRESS TANGIBLE EVIDENCE AND STATEMENTS

         THIS MATTER comes before the Court on Defendant's Motion to Suppress Tangible Evidence and Statements, filed April 2, 2018 (Doc. 58). Having considered the parties' written and oral arguments, evidence, and applicable law, the Court finds that Defendant's motion is largely not well-taken and, therefore, is DENIED IN PART. However, certain statements are in violation of Miranda violations, and excluded as agreed by the Government.

         BACKGROUND[1]

         Defendant challenges the validity of an allegedly consensual encounter and search, and seeks to suppress heroin found in her backpack. On August 4, 2017, Defendant was arrested by DEA Special Agent Jarrell Perry, after exiting a Greyhound bus at the downtown Albuquerque Greyhound station. She was indicted with

unlawfully, knowingly, and intentionally possess[ing] with intent to distribute a controlled substance, 1 kilogram and more of a mixture and substance containing a detectable amount of heroin. In violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A).

Doc. 12. Agent Perry works drug interdiction at the Albuquerque Greyhound and Amtrak terminals. He has been a DEA Agent for approximately 20 years, primarily at those terminals, investigating approximately 1, 500 narcotics cases.

         Defendant arrived in Albuquerque via a Greyhound bus at 9:35 p.m. on August 4, 2017. The bus was scheduled to depart at 11:15 p.m. Two other DEA agents were working with Agent Perry in the station that night, although only one of them was present during the encounter with Defendant.

         Agent Perry observed defendant exit the bus, grab her luggage, and enter the station. Agent Perry observed Defendant seated at a game machine in the station, and approached her. The station was open to the public, and “a lot” of people were present. Agent Perry told Defendant: “I'm a police officer and we check the station here for security. May I speak to you for a moment?” Defendant consented and represented she spoke English. Agent Perry again asked if he could speak to her, and she affirmed. The two next engaged in casual conversation; Agent Perry asked where she was coming from, and where she was going. Agent Perry was generally casual, calm, and respectful. He asked for her ID and ticket, and returned them to her.

         Defendant asked “what happened” and Agent Perry responded: “It's just for security here at the station because Amtrak, ur, Greyhound doesn't really have any security so we come down here and speak with passengers for security reasons.” She responded “okay.” The parties continued in casual conversation. Agent Perry asked where she was from, and how long she was going to be in Denver.

         Agent Perry again stated “yeah, we just check the station here. It's just for security, speaking to all the passengers.” Defendant asked “It's like vi-vi-violence here or something?” Agent Perry responded “well, no, it's just that Greyhound… really doesn't have any security when you board…. there's not really any security on the busses so basically you can carry whatever you want on the bus. Weapons, illegal narcotics, anything illegal. Weapons, hopefully not explosives but you can… anything illegal.” Agent Perry then asked if she had been to Denver before, and how long ago.

         Agent Perry asked if she had any luggage with her. Defendant had two bags: a suitcase and a backpack. Defendant first showed agent Perry her black suitcase, and they moved over to a row of seats by a pillar. Defendant gave consent for Agent Perry to search her suitcase, which appears to be undisputed. While Agent Perry was searching the suitcase, Agent Pantoja came over and introduced himself, and talked with her. Based on the testimony and admitted pictures of the area, it does not appear that Defendant's ability to leave was blocked.

         After searching her suitcase, Agent Perry asked for permission to search her backpack. Defendant did not give an answer, but asked “why?” She later asked “What happened? I'm nervous now.” Agent Perry responded “oh, there's no reason to be nervous. As I explained to you over there, it's just for security at the bus station. Is that a purse or backpack?” Agent Perry asked for permission to search her backpack a second time, and Defendant declined to answer, asking “but why?” Agent Perry said it was “just to make sure you don't have anything illegal inside ma'am. Let me ask you this, since you're not answering the question, can you just open up, show me the contents then… without me searchin' it? That okay with you?” Defendant responded “yeah, of course”. Defendant took the backpack off and placed it on her lap while sitting. Agent Perry did not put his hands in the bag, but instead Defendant moved the contents around at his request, after she expressly agreed to do so.

         The recorded encounter lasted for approximately five minutes. After seeing the alleged heroin in her backpack in plain view, he arrested her and brought her back to the local DEA office. The DEA questioned Defendant and read her a Miranda advisement. She then asserted her right to remain silent. The parties appear to agree that one answer given by Defendant prior to the Miranda advisement should be excluded.

         On August 6, 2018, the Court held an evidentiary hearing, and heard testimony from Agent Perry, Agent Pantoja, and the Defendant. During the hearing, the Court heard the audio recording of the encounter. The parties requested written closing, and this matter was fully briefed and ready for decision on September 7, 2018.

         C. Agent Perry's Credibility.

         Initially, Defendant attacks Agent Perry's credibility. At the hearing, Agent Perry testified that prior to encountering Defendant, he received a copy of the passenger list from a confidential source. Defendant asserts that Agent Perry made no mention of a confidential source in prior pleadings, reports, or testimony. In fact, a confidential source was discussed at a previous hearing in this case, and based on the Government's vigorous assertion of the informant privilege, it was assumed that a confidential source was used. At that prior hearing, Agent Perry was prohibited from discussing the informant based on a Touhy letter, and the Court ultimately determined that it did not need to rule on whether the confidential source should be disclosed, because it was not relevant to the motion at issue. Doc. 66. Both parties are aware that Agent Perry operates using a confidential source that provides him with a passenger manifest list. It is unclear why that passenger manifest list was not provided to defense counsel or brought to the Court's attention. However, it appears that this oversight does not fall on Agent Perry, who was forthright about its existence when asked and allowed to answer at the hearing.[2] Therefore, the Court concludes that it does not affect the credibility of his testimony on the narrow issues in the motion to suppress.

         DISCUSSION

         Defendant argues that her Fourth Amendment rights were violated, because Agent Perry seized her early on in the encounter, and the search of her backpack was otherwise not consensual. She seeks suppression of the heroin found in her backpack.

         “The Fourth Amendment typically requires that law enforcement agents obtain a warrant before conducting a search. A warrant is not required, however, when the defendant consents to the search.” United States v. Jackson, 381 F.3d 984, 988 (10th Cir. 2004) (internal citation omitted); see also United States v. Jones, 701 F.3d 1300, 1317 (10th Cir. 2012). “Subject to a few exceptions, evidence obtained in violation of the Fourth Amendment will be suppressed under the exclusionary rule.” United States v. Christy, 739 F.3d 534, 540 (10th Cir. 2014). The exclusionary rule encompasses both “evidence obtained during the illegal police conduct” and “any other evidence deemed to be ‘fruit of the poisonous tree.'” United States v. Olivares- Rangel, 458 F.3d 1104, 1108 (10th Cir. 2006).

         Moreover, no seizure (and no violation of the Fourth Amendment) “occurs when police ask questions of an individual, ask to examine the individual's identification, and request consent to search his or her luggage-so long as the officers do not convey a message that compliance with their requests is required.” Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).

         For consent to be valid, the Government must show that (1) there is clear and positive testimony that consent was unequivocal and specific and freely given, and that (2) “consent was given without duress or coercion, express or implied.” United States v. Guerrero, 472 F.3d 784, 790 (10th Cir. 2007); see also United States v. Jones, 710 F.3d 1300, 1318 (10th Cir. 2012). The Government bears “the burden of proving that consent is given freely and voluntarily.” United States v. Jones, 701 F.3d 1300, 1318 (10th Cir. 2012) (citation omitted). Whether consent was given voluntarily without duress or coercion “is a factual issue, determined through the totality of the circumstances.” United States v. Guerrero, 472 F.3d 784, 789 (10th Cir. 2007). Since consent for both the encounter and search are substantially similar, the Court will analyze them together, with differences noted below.

         I. First prong: clear and unequivocal consent.

         A. Agent Perry searched Defendant's backpack.

         Initially, Agent Perry understood that he did not search her backpack, and therefore did not receive consent. His subjective understanding of whether he performed a search is not determinative. The Court agrees with Defendant's well-reasoned analysis that Agent Perry searched Defendant's ...


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