United States District Court, D. Arizona
ORDER
JAMES
A. SOTO UNITED STATES DISTRICT JUDGE
Pending
before the Court is a Report and Recommendation (“R
& R”) (Doc. 47) issued by United States Magistrate
Judge Macdonald that recommends denying Defendant Iris
Rodriguez's Motion to Suppress Evidence (Doc. 29). Ms.
Rodriguez filed an Objection to the R & R (Doc. 48)
urging the Court to reject the R & R. The Government
filed a response to Ms. Rodriguez's objection (Doc. 49).
For the reasons stated below, the R & R is rejected, in
part, and adopted in part.[1]
BACKGROUND[2]
On July
28, 2017, at approximately 5:25 p.m., a Sonoran shuttle drove
into the I-19 Border Patrol Checkpoint in Southern Arizona.
Ms. Rodriguez was a passenger in the shuttle. Per the
standard practice at the checkpoint, the shuttle was directed
to the secondary inspection area. Agent Salcedo was stationed
in the secondary inspection area of the I-19 checkpoint.
Agent
Salcedo observed the passengers exit the shuttle. Ms.
Rodriguez caught Agent Salcedo's attention because she
made eye contact and moved away from Agent Salcedo. Agent
Salcedo questioned Ms. Rodriguez regarding her citizenship.
Ms. Rodriguez provided her Arizona driver's license.
Agent Salcedo asked for additional identification as she did
not believe the picture on the driver's license matched
the person standing in front of her. Ms. Rodriguez provided a
United States passport card. Again Agent Salcedo did not
believe the picture on the identification matched the person
standing in front of her; additionally, Agent Salcedo did not
believe that the pictures on the separate identifications
matched one another. Agent Salcedo ran a records check to
further investigate Ms. Rodriguez's immigration status.
While
Agent Salcedo awaited the results from the record check, she
questioned Ms. Rodriguez on where she was from and where she
was coming from. At some point during the conversation Ms.
Rodriguez moved away from Agent Salcedo and sat on a bench
within the secondary inspection area. Agent Salcedo again
approached Ms. Rodriguez.[3] Agent Salcedo asked Ms. Rodriguez if
she would consent to a search. Ms. Rodriguez consented to be
searched and Agent Salcedo escorted her to a white shed for
privacy. Agent Salcedo was armed during the interaction, but
she did not motion toward her holstered weapon or place Ms.
Rodriguez under arrest. During the pat-down Agent Salcedo
felt a hard, abnormal bulge under Ms. Rodriguez's left
breast. This object felt similar to objects on other body
carriers. Agent Salcedo requested that Ms. Rodriguez remove
the object several times. Ms. Rodriguez became
“hysterical.” Agent Mead, who had been standing
outside the shed, entered the shed, and instructed Ms.
Rodriguez to comply with Agent Salcedo's instructions or
he would deploy his taser. The object was recovered and
tested positive for characteristics of methamphetamine.
DISCUSSION
First,
the Court finds the R & R appropriately resolved the
issue regarding an Immigration Checkpoint. The Court agrees
with the R & R that the checkpoint in this matter is
constitutional. The only remaining issue is the search of the
Defendant.
“[A]
search conducted pursuant to a valid consent is
constitutionally permissible.” Schneckloth v.
Bustamonte, 412 U.S. 218, 222 (1973). “It is the
government's burden to prove that the consent was freely
and voluntarily given.” United States v. Patayan
Soriano, 361 F.3d 494, 501 (9th Cir. 2004). Whether the
consent is valid is determined from the “totality of
all the circumstances.” Id.
Previous
cases from the Ninth Circuit Court of Appeals have identified
five non-exhaustive factors to consider when determining
voluntariness of consent. Id. at 502. The five
factors are: “(1) whether defendant was in custody; (2)
whether the arresting officers had their guns drawn; (3)
whether Miranda warnings were given; (4) whether the
defendant was notified that she had a right not to consent;
and (5) whether the defendant had been told a search warrant
could be obtained.” Id. It is important to
note that “[n]o one factor is determinative in the
equation.” Id. The Ninth Circuit has examined
cases similar to the matter at hand. See United States v.
Ortiz-Flores, 462 Fed.Appx. 759 (9th Cir. 2011) (mem.);
United States v. Preciado-Robles, 964 F.2d 882 (9th
Cir. 1992). In such a close call, those cases are
instructive.
In
Preciado-Robles, the defendant was sent to secondary
at a permanent checkpoint. 964 F.2d at 884. At secondary an
agent questioned the defendant and asked if he could search
the defendant's car. Id. The agent searched the
car compartments, asking for and receiving consent prior to
searching each container. Id. The agent found
“a brick-like bundle, ” which was later
determined to be cocaine. Id. The defendant moved to
suppress the search, which the district court denied.
Id. The Ninth Circuit looked at the five factors and
determined that the consent was voluntary. Id. at
885.
In
Ortiz-Flores, the defendant entered a permanent
checkpoint in a shuttle van.[4]Defendant-Appellant's Opening
Brief, at 6, Ortiz-Flores, 462 Fed.Appx. 759 (No.
11-50095), 2011 WL 2452512, at *6; Brief for Appellee United
States, at 3, Ortiz-Flores, 462 Fed.Appx. 759 (No.
11-50095), 2011 WL 3019781, at *3. The van was inspected at
the bus lane. Defendant-Appellant's Opening Brief, at 6,
Ortiz-Flores, 462 Fed.Appx. 759 (No. 11-50095), 2011
WL 2452512, at *6; Brief for Appellee United States, at 3,
Ortiz-Flores, 462 Fed.Appx. 759 (No. 11-50095), 2011
WL 3019781, at *3. The agent spoke with the passengers.
Defendant-Appellant's Opening Brief, at 8,
Ortiz-Flores, 462 Fed.Appx. 759 (No. 11-50095), 2011
WL 2452512, at *8; Brief for Appellee United States, at 5,
Ortiz-Flores, 462 Fed.Appx. 759 (No. 11-50095), 2011
WL 3019781, at *5. After the agent began to suspect that the
defendant was engaged in illegal activity, the agent asked
the defendant to exit the van. Defendant-Appellant's
Opening Brief, at 8, Ortiz-Flores, 462 Fed.Appx. 759
(No. 11-50095), 2011 WL 2452512, at *8; Brief for Appellee
United States, at 5, Ortiz-Flores, 462 Fed.Appx. 759
(No. 11-50095), 2011 WL 3019781, at *5. The agent asked to
search the defendant's backpack and the defendant
consented. Defendant-Appellant's Opening Brief, at 9,
Ortiz-Flores, 462 Fed.Appx. 759 (No. 11-50095), 2011
WL 2452512, at *9; Brief for Appellee United States, at 6,
Ortiz-Flores, 462 Fed.Appx. 759 (No. 11-50095), 2011
WL 3019781, at *6. The agent never gave Miranda
warnings or told the defendant that he could refuse the
search. Defendant-Appellant's Opening Brief, at 11,
Ortiz-Flores, 462 Fed.Appx. 759 (No. 11-50095), 2011
WL 2452512, at *11; Brief for Appellee United States, at 6,
Ortiz-Flores, 462 Fed.Appx. 759 (No. 11-50095), 2011
WL 3019781, at *6. When the Ninth Circuit applied the five
factors, they stated “Here, three factors indicate that
the consent was involuntary: (1) Ortiz-Flores was seized at
the time he gave putative consent, see
Preciado-Robles, 964 F.2d at 884 (“A stop at a
permanent immigration checkpoint constitutes a
‘seizure' within the meaning of the Fourth
Amendment.” (citing United States v.
Martinez-Fuerte, 428 U.S. 543, 556 (1976))); (2) the
agent did not give Ortiz-Flores Miranda warnings; and (3) the
agent did not tell Ortiz-Flores he could refuse consent. Two
factors weigh in favor of voluntariness: (1) guns were not
drawn; and (2) the agent did not tell Ortiz-Flores that he
could obtain a search warrant. Considering these facts in
light of the totality of the circumstances and the context in
which the searches took place, we find that Ortiz-Flores did
not voluntarily consent to the backpack search or the
pat-down search.” Ortiz-Flores, 462 Fed.Appx.
at *1.
Based
on the above precedent, the Court believes that this is a
close question with guidance from the Ninth Circuit that
points in multiple directions. Because Ortiz-Flores
is more recent and closer to the facts presented in this
case, the Court finds that in light of the totality of the
circumstances the consent in this matter was not voluntary.
It is clear that Ms. Rodriquez was seized at the checkpoint.
She could not leave secondary at the checkpoint and when she
did attempt to avoid the agent, the agent followed her. There
were no Miranda warnings or acknowledgement that Ms.
Rodriguez could withhold consent. While there were many guns
present, none of these seems to have been used or referenced
prior to obtaining consent from Ms. Rodriguez. Ms. Rodriguez
was never told that a search warrant could be obtained.
Additionally, unlike the agent in Preciado-Robles,
Agent ...