United States District Court, D. New Mexico
Erlinda Johnson Attorney for Mr. Garcia- Guzman.
Pfizenmayer Assistant United States Attorney.
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE.
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
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.
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,
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.
Garcia, Ms. Cebreros, and the infant were traveling in
sleeper car 431, bedroom number 9. 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.
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.
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 ¶
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. 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.
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.
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.
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
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.
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
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 ¶
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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.
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
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.
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.
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. 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.
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.
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.
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 ...