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United States v. Garcia-Guzman

United States District Court, D. New Mexico

January 7, 2020


          Erlinda Johnson Attorney for Mr. Garcia- Guzman.

          Mark Pfizenmayer Assistant United States Attorney.



         THIS MATTER comes before the Court on Defendant Everardo Garcia-Guzman's Motion to Suppress Evidence and Statements and Memorandum in Support Thereof [Doc. 23]. The government responded [Doc. 28] and Mr. Garcia-Guzman replied [Doc. 29]. An evidentiary hearing was held on November 15, 2019. The Court took the motion under advisement, and both parties filed written closing arguments by the Court's deadline of November 29, 2019 [Docs. 39, 40]. The Court, having considered the Motion, briefs, relevant law, witness testimony, exhibits, and being otherwise fully informed, finds that the Motion is well-taken and will be GRANTED.


         This motion centers on an encounter between Defendant Everardo Garcia-Guzman (“Mr. Garcia”) and Drug Enforcement Agency (“DEA”) agents on an Amtrak train during a brief stop in Albuquerque, New Mexico. In an effort to resolve the factual issues presented in the briefs and to gain clarity on the details of the dispute, the Court held an evidentiary hearing on the Motion. The following represents the Court's findings of fact, based on the parties' briefing, the testimony of witnesses, and the exhibits, including an audio recording of the encounter.

         On March 13, 2019, DEA Special Agent (“SA”) Jarrell Perry was conducting interdiction operations in Albuquerque, New Mexico. Doc. 37 at 5:21-6:13. DEA Task Force Officer (“TFO”) Reydesel Zamarron was assigned to assist SA Perry. Id. at 86:13-16. SA Perry identified Mr. Garcia as a person of interest based on SA Perry's review of an Amtrak train Passenger Name Record (“PNR”). Id. at 7:20-8:2. SA Perry wished to speak with Mr. Garcia due to the following facts about the PNR: (1) it was paid for with $1, 275 in cash; (2) it was a one-way ticket from Los Angeles, California to Philadelphia, Pennsylvania; (3) it was purchased approximately 29 minutes prior to the train leaving; (4) it was for a sleeper car; and (5) it did not list a contact telephone number for the passengers. Id. at 8:3-23; See also Gov't Exs. 8-1, 8-2.

         The PNR in question lists three passengers: Guzman-Garcia, Maria Cebreros-Lopez (“Ms. Cebreros”), and Infant Santiago Ferardo-Cebreros. Doc. 37 at 9:18-25; Gov't Ex. 8-1. SA Perry and TFO Zamarron boarded the train in order to speak with the individuals listed on the PNR. Doc. 37 at 14:24-15:2. Two additional DEA employees waited on the platform. Id. at 15:4-6. SA Perry and TFO Zamarron were dressed in plain clothes and had concealed firearms. Id. at 15:10-16:7. SA Perry made an audio recording of the encounter, which was admitted as Gov't Ex. 1. SA Perry testified that this audio recording, as well as the transcript of the recording made by the defendant's attorney (admitted as Def. Ex. A), were both accurate. Id. at 7:13-18.

         Mr. Garcia, Ms. Cebreros, and the infant were traveling in sleeper car 431, bedroom number 9.[1] Id. at 16:17-20; Gov't Ex. 8-1. The car is two levels. Doc. 37 at 17:1. There is a stairway in the middle of the car that connects the first level to the second. Id. at 17:6-7. There is an exit door in the middle of the first floor, through which all passengers must pass in order to board that car, unless they board another car and enter the car in question through the sliding doors that adjoin each car. Id. at 16:25-17:4. These sliding doors are located at both ends of the hallway that runs the length of the second level. Id. at 17:24-18:6. In the portion of the second level in which Mr. Garcia was traveling, the hallway was lined by small rooms on both sides. Id. at 17:14-15. The hallway is very narrow. As SA Perry explained, “[y]ou can pass in the hallway, but two people can't walk side by side. So if you meet someone, you have to turn, kind of, sideways to pass them.” Id. at 20:18-21.

         Upon boarding the train, SA Perry approached room number 9. Id. at 19:4-6. The room was occupied by Mr. Garcia, Ms. Cebreros, and the infant. Id. at 19:8-10. The sliding door was open and the curtain inside of the sliding door was “almost all the way shut.” Id. at 19:16-18. When SA Perry approached the room, he stood to the left of the doorway. Id. at 20:3-7. TFO Zamarron waited by the stairs in the center of the hall, so that he had a view of SA Perry. Id. at 89:9-14.

         SA Perry knocked on the frame to room number 9. Id. at 49:16. He showed his DEA badge, id. at 22:25, and stated in English: “Hi, I'm a police officer, and we check the train here.” Def. Ex. A at ¶ 1.[2] Ms. Cebreros replied, “Chicago.” Id. at ¶ 2. Realizing that Mr. Garcia and Ms. Cebreros were not fluent in English, SA Perry said in Spanish, “Yo soy policia” (“I'm a policeman”). Id. at ¶ 9.[3] SA Perry is not fluent in Spanish, and in his own words, he “could ask specific questions for what [he does] in interdiction, but [is] not fluent by any means.” Doc. 37 at 27:24-25.

         SA Perry then asked Mr. Garcia and Ms. Cebreros “¿Me permite hablar con usted?” (“May I speak with you?”). Def. Ex. A at ¶ 11. Mr. Garcia replied, “Sí” (“Yes”). Id. at ¶ 12. During the hearing, Mr. Garcia testified that he did not recall saying yes when SA Perry asked to speak with him, and even after the audio was played for him to refresh his recollection, he continued to testify that he did not recall saying yes. Id. at 139:18-140:3. The Court finds, based on the review of the audio and testimony of other witnesses, that Mr. Garcia did say “sí, ” meaning yes.

         SA Perry responded, “Okey. Me permite ver su boleto, por favor” (“Okay. May I please see your ticket?”) Id. at ¶ 13. Ms. Cebreros replied, “Sí” (“Yes”). Id. at ¶ 14. SA Perry continued in somewhat broken Spanish to ask Mr. Garcia and Ms. Cebreros questions about where they lived and their travels, and asked for identification. Id. at ¶¶ 15-54.

         SA Perry then asked Mr. Garcia and Ms. Cebreros if they had any luggage. Id. at ¶ 65. Mr. Garcia responded, “Está abajo” (“It's down below”). Id. at ¶ 66. SA Perry asked for permission to search the bags below for contraband. Ms. Cebreros said, “Sí” (“Yes”). Id. at ¶ 76. No. audible response from Mr. Garcia can be heard on the audio recording. Gov't Ex. 1 at 2:58. This is consistent with Mr. Garcia's testimony that it was his daughter who gave the agents permission to search the luggage. Doc. 37 at 157:1. In contrast, during the hearing, SA Perry testified that “they” consented to the search of the bags downstairs. Id. at 24:18-23. The Court finds that, contrary to SA Perry's testimony, it was in fact only Ms. Cebreros who responded to this request.

         Ms. Cebreros had a diaper bag with her in the room, and Mr. Garcia had a backpack. Doc. 37 at 23:24-24:2. SA Perry asked for permission to search those bags, and Ms. Cebreros responded, “Sí” (“Yes”). Def. Ex. A at ¶ 78. Again, contrary to the recording and transcript, SA Perry testified that “he” provided consent to search the bag, referring to Mr. Garcia. Doc. 37 at 26:20-27:8. The transcript and recording clearly indicate that it was Ms. Cebreros who provided consent, and not Mr. Garcia. See Def. Ex. A at ¶78; Gov't Ex. 1 at 3:04. Indeed, when confronted with the transcript during cross examination, SA Perry admitted that it was in fact only Ms. Cebreros who responded to both of these requests. Id. at 53:9-20.

         Upon receiving Ms. Cebreros's consent, SA Perry searched the diaper bag and backpack in the hallway. Doc. 37 at 28:7-8; 28:23-29:2. He did not find any contraband in those bags. Id. at 31:6-9. SA Perry then motioned for TFO Zamarron to come over in order to assist SA Perry with Spanish translation. Id. at 27:9-22. SA Perry explained TFO Zamarron's presence by saying, “mi amigo mucho habla Espanol” (“my friend speaks a lot of Spanish”). Def. Ex. A at ¶ 88. SA Perry, through the use of TFO Zamarron as an interpreter, proceeded to ask Mr. Garcia and Ms. Cebreros several follow-up questions about their travel plans. Id. at ¶¶ 89-131.

         Next, SA Perry asked TFO Zamarron to ask Mr. Garcia for permission to search the room for contraband. Id. at ¶ 135. TFO Zamarron stated to Mr. Garcia: “Y, uh, ¿le puede dejar permiso para que, uh, esculque” (“And, uh, can you give him permission to, uh, search”). Id. at ¶ 136. Mr. Garcia responded, “Uh, no se la verdad” (“Uh, I really don't know”). Def. Ex. A at ¶ 137.[4]

         Despite Mr. Garcia's indication that he was unsure if he would give permission to search the room, TFO Zamarron continued to seek his consent, stating: “Ahi, su cuarto… ¿Cuarto?” (“there, your room… room?”) Id. at ¶¶ 138, 140. TFO Zamarron still received no response from Mr. Garcia, but pressed forward, asking, “Okey, ¿Podemos entrar?” (“okay, can we come in?”) Id. at ¶ 143. Mr. Garcia's answer was unintelligible. Id. at ¶ 144. SA Perry then said “Gracias, señor” (“Thank you, sir”). Id. at ¶ 145. TFO Zamarron testified that although SA Perry said, “Thank you, sir, ” there was no response from Mr. Garcia prior to that. Doc. 37 at 112:13-15. However, later in TFO Zamarron's testimony, he claimed that Mr. Garcia and Ms. Cebreros “verbally said yes.” Id. at 125:6-7. Upon questioning from the Court, he admitted that this is not reflected in the transcript. Id. at 129:13. SA Perry also testified that he was provided permission to search the room. Doc. 37 at 29:17-18.

         Mr. Garcia and Ms. Cebreros stepped out of the room and stood in the hallway while SA Perry searched the room. Id. at 29:21-25. SA Perry did not find any contraband. Id. at 31:10-12.

         Next, SA Perry asked TFO Zamarron to request that Mr. Garcia show them the luggage downstairs. Def. Ex. A at ¶ 146. TFO Zamarron translated the request into Spanish. Id. at ¶ 147. Mr. Garcia responded, “Sí” (“Yes”), id. at ¶ 148, and TFO Zamarron informed him, “Ahi vamos con usted” (“We'll go over there with you”). Id. at ¶ 149. Mr. Garcia walked downstairs with SA Perry and TFO Zamarron, and showed them the bags that belonged to himself and Ms. Cebreros. Doc. 37 at 32:20-21. SA Perry searched the bags and found no contraband therein. Id. at 34:10-11.

         SA Perry asked TFO Zamarron to ask Mr. Garcia to see his ticket again. Def. Ex. A at ¶ 225. TFO Zamarron asked Mr. Garcia if he had his ticket. Id. at ¶ 226. Mr. Garcia stated that he left his ticket upstairs. Id. at ¶ 227. TFO Zamarron, at SA Perry's instruction, asked Mr. Garcia: “Okey, Podemos ah, a ver, encontrar el… el boleto” (Okay, could we, ah, to see, find the… the ticket”). Id. at ¶¶ 232-34. Mr. Garcia responded, “Claro” (“Of course”). Def. Ex. A at ¶ 235.

         Mr. Garcia led the way upstairs, followed by SA Perry and TFO Zamarron. Doc. 37 at 36:1-2; 63:12-15; 117:6-10. When they arrived at the room, Mr. Garcia retrieved his tickets from his backpack. Id. at 36:7-11. Mr. Garcia then exited the room and handed the tickets to SA Perry. Id. at 36:15-16. SA Perry looked at the tickets and then returned them. Id. at 36:16; 142:18-19.

         Next, SA Perry sought Mr. Garcia's permission to pat him down. The format of SA Perry's question is of great significance. The transcript and audio recording reflect that while SA Perry was asking the question, the baby started crying, making it difficult to hear the question. Doc. 37 at 64:12-13. The transcript prepared by United States Courts certified translator Bety Zimerman reflects that SA Perry stated, “Okay, gracias senior [sondido de un bebe llorando], me permite [sonido de chequeo] gracias” (“Okay, thank you sir, [sound of a baby crying] may I [patting sounds] thank you.” Def. Ex. A at ¶ 247. The government asserts in its briefing that the United States' interpreter was able to transcribe the portion of the audio fully, as follows: “Okay, gracias senor, Me permite registrar por contraband en su persona?” (“Okay, thank you, sir. Would you allow me to search you for contraband? Thank you”). Doc. 28 at 6, n.1.

         During the hearing, this portion of the audio recording was played four times for SA Perry. Doc. 37 at 64:14-66:15. Even after hearing it multiple times, SA Perry testified that he could not remember which “exact words” he used when he asked Mr. Garcia for permission to search his person. Id. at 65:6-8. SA Perry testified that based on the audio, he could hear parts of it, and explained: “I can't hear every single word that I - I can understand me asking permission to search him for contraband.” Id. at 65:12-14. SA Perry stated that from the audio, he heard the words “search, ” “contraband, ” “mi permite, ” “gracias, ” and “persona.” Id. at 65:18-66:10. When asked if he would agree that what he said was not very clear because there is a baby crying, SA Perry stated, “[w]ell, if you're there in person, it might be different than listening to it now. So I don't know what he heard.” Id. at 66:14-15. SA Perry's testimony appeared to be based on the recording and he had little independent recollection of what he said, or of how the noise level and sound quality was in person as compared with the audio recording.

         On re-direct examination, SA Perry was asked whether he has a phrase that he generally uses for when he asks permission to pat someone down. Id. at 73:25-74:4. SA Perry testified that he does, as he does it on a daily basis. Id. at 74:5. He testified that the phrase he typically uses is “Mi permite registrar por contraband on su persona, ” which he understands to mean, “Will you give me permission to search your person for contraband?” Id. at 74:9-12. SA Perry then testified that he did in fact recall saying that phrase to Mr. Garcia. Id. at 74:13-15. This testimony stands in stark contrast with his earlier testimony that he could not recall which exact words he used.

         SA Perry further testified that the patting sounds in the recording are the sounds of SA Perry patting his own body in order to demonstrate to Mr. Garcia what he wanted to do. Doc. 37 at 41:6-8. SA Perry demonstrated for the Court the same general motions that he demonstrated to Mr. Garcia. Id. at 42:1-4. In doing so, SA Perry made a two-handed patting motion, starting towards the top of his chest and working down his torso towards his waistline. Id. at 42:6-9. SA Perry testified that he only asked the question once, did not clarify it or ask it a second time despite the background noise, and did not ask TFO Zamarron to translate the question into Spanish. See Id. at 69:16-23.

         TFO Zamarron's testimony offered a completely different account of this interaction. TFO Zamarron testified that he translated SA Perry's question into Spanish in order to obtain Mr. Garcia's permission for a pat down. Id. at 96:13-14. TFO Zamarron testified that he stated to Mr. Garcia, “Le dije que si podia esculcar a la persona de el, le podia esculcar.” Id. at 96:18-19. When confronted with the fact that this was not in the audio recording or the transcript, TFO Zamarron replied, “It was not audible - able to - intangible, maybe. I couldn't tell you. I don't know.” Id. at 119:12-13. TFO Zamarron acknowledged that the audio does capture his voice saying, “Pasale. Pasale” (“Go ahead. Go ahead”) during this portion of the recording. Id. at 120:4-6; 22-23. TFO Zamarron then doubled down on his testimony that he asked Mr. Garcia in Spanish if Agent Perry could pat him down, but recalled using a completely different phrase: “Puede checarlo, puedes?” Id. at 120:15-17. That phrase also is neither heard on the recording nor reflected on the transcript.

         The Court does not credit TFO Zamarron's testimony that he asked Mr. Garcia in Spanish for permission to pat him down. Not only was TFO Zamarron's testimony internally inconsistent, as he offered two different phrases that he recalled using to request permission to search Mr. Garcia, but it was also inconsistent with the audio recording, with the transcript, and with SA Perry's testimony that TFO Zamarron did not translate the question into Spanish. The fact that the audio reflects TFO Zamarron's voice saying “Pasale, Pasale, ” is indicative that the microphone did pick up his voice during this portion of the interaction. Therefore, the Court does not credit this testimony and finds that TFO Zamarron did not ask Mr. Garcia in Spanish for permission to pat him down.

         Mr. Garcia testified that SA Perry “asked me if he could - if he could pat me down, and he was making these kind of gestures. And my son was crying a lot, but I don't recall what he told me.” Id. at 143:10-12. Mr. Garcia testified that he could not hear SA Perry ask if he could search his person due to the baby crying, but rather, just saw SA Perry motion to indicate “if he could touch me up here, ” referring to his chest. Id. at 144:5-9.

         In response to SA Perry's question fragment and gestures, Mr. Garcia said, “Sí” (“Yes”). Def. Ex. A. at ¶ 248. At the hearing, Mr. Garcia initially testified that he did not recall saying the word yes. Id. at 144:16-17; 144:25-145:1. After the audio recording was played for him twice, he acknowledged that he heard himself say yes. Id. at 145:5-6. He then testified that he said yes because he understood that SA Perry was going to check him “up here on [his] chest.” Id. at 145:24-146:3.

         The Court heard conflicting accounts of what transpired after Mr. Garcia said “Si” (“Yes”). SA Perry testified that in addition to his verbal answer of yes, Mr. Garcia turned away from SA Perry and raised his hands above his shoulders. Doc. 37 at 37:23-24. TFO Zamarron also testified that Mr. Garcia lifted his hands and allowed SA Perry to pat him down. Id. at 98:2-3. In contrast, Mr. Garcia testified that he did not move or turn around and at no point did he put up his arms. Id. at 146:13-25; 164:16-20. Mr. Garcia testified he was positioned “sort of sideways” because the hallway is very narrow, and he was in between the two officers. Id. at 146:13-20; 147:3-6.

         Mr. Garcia testified that SA Perry grabbed his left arm and twisted it behind his back. Id. at 148:15-16; 149:6-20. According to Mr. Garcia's testimony, this is why Mr. Garcia said, “aye, aye, aye, aye.” Id. 148:14-18. Although it is not reflected in the transcript, the Court has reviewed the audio recording and hears someone saying, “aye, aye, aye, aye.” Gov't Ex. 1. at 11:03. Mr. Garcia testified that as SA Perry twisted his left arm, SA Perry started unzipping Mr. Garcia's vest.[5] Doc. 37 at 148:15-18. SA Perry could not fully unzip the vest because the zipper got stuck on the buttons, and was therefore only able to unzip the vest halfway. Id. at 148:15-18; 149:11-16. SA Perry then stuck one hand inside the vest while twisting Mr. Garcia's arm back with his other hand. Id. at 148:15-149:1. SA Perry's hand went all the way down to his waistline beneath his vest, and Mr. Garcia was handcuffed directly after that. Id. at 150:12-14. Mr. Garcia testified that at no time did he himself remove or unzip his vest. Id. at 150:4-6; 173: 19-21.

         In contrast, SA Perry testified that he did not grab Mr. Garcia's arm or unzip the vest. Id. at 66:21-23. Rather, according to SA Perry, as he was trying reach around Mr. Garcia to pat him down in the front lower waist area, Mr. Garcia was turning his body from side to side, away from where SA Perry was trying to pat him down. Id. at 38:19-23. In response to Mr. Garcia moving his body away, SA Perry asked Mr. Garcia to unzip his jacket. Id. at 39:8. Mr. Garcia began to unzip his own jacket, and while he did so, his hand was visibly shaking and the zipper got caught. Id. at 39:16-17.

         SA Perry testified that he completed the pat down after Mr. Garcia unzipped his jacket. Id. at 39:20-22. However, he later testified that Mr. Garcia did not unzip his vest all the way; rather, it remained partially zipped at the bottom. Doc. 37 at 70:2-3. SA Perry denied reaching underneath Mr. Garcia's vest, claiming that he only touched over the vest and felt hard bundles at Mr. Garcia's waist area. Id. at 70:10-17.

         The Court sought clarification on this critical issue. In response to the Court's questioning, SA Perry testified that prior to the jacket being unzipped, SA Perry was unable to feel anything because he was unable to complete the pat down due to Mr. Garcia turning his body away. Id. at 76:1-17. He stated that when Mr. Garcia unzipped his jacket, he unzipped it “the majority of the way” and “[t]here was a small portion on the bottom that wasn't unzipped.” Id. at 77:6-8. SA Perry explained: “[t]he vest was long, and the bottom portion was not unzipped. I patted him down inside of the vest, down around his waist. The bottom portion of it wasn't unzipped, so I didn't pat down the area that wasn't unzipped because it was hanging below his waist area.” Id. at 77:13-17. The Court asked, “So your hands were inside the vest over his shirt?” Id. at 77:18-19. SA Perry responded in the affirmative: “[h]is shirt was untucked. Over the top of his shirt. Yes, ma'am.” Id. at 77:20-21. SA Perry specified that it was not until this point that he was able to conclude that what Mr. Garcia had was contraband. Id. at 77:22-78:3. However, upon further ...

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