CINDY K. JORGENSON, District Judge.
On July 16, 2015, Defendant was arrested at the Nogales, Arizona Port of Entry and charged with bulk cash smuggling in violation of 31 U.S.C. § 5332. (Doc. 1.) Defendant's juvenile sister was with him in the vehicle at the time of the stop. On August 12, 2015, Defendant was indicted on two-counts: violations of 31 U.S.C. § 5332 (Bulk Cash Smuggling) and 31 U.S.C. § 5324 (Evading Reporting Requirements).
Thereafter, Defendant filed a Motion to Suppress Statements and Evidence and a Motion to Dismiss the Indictment for Outrageous Government Conduct. (Docs. 31, 32.) The matter was referred to Magistrate Judge Eric J. Markovich, and an evidentiary hearing was held on April 14 and April 22, 2016. Magistrate Judge Markovich issued a Report and Recommendation (R & R) on May 19, 2016, recommending denial of both motions. (Doc. 68.) Defendant filed his objections and the Government filed its response. (Docs. 73, 75.)
The Court has reviewed the Motion to Suppress and the Motion to Dismiss (Docs. 31, 32), the government's responses (Docs. 37, 38), the R & R (Doc. 68), the hearing transcripts from April 14 and 22, 201 (Docs. 52, 58), Defendant's audio-taped interview, Defendant's objections to the R & R (Doc. 58), and the government's response (Doc. 61). The Court will overrule the objections, adopt the R & R, and deny the Motions.
Defendant's Motion to Dismiss the Indictment for Outrageous Government Conduct is based on the treatment that he and his juvenile sister allegedly received from the federal agents both before and after the arrest. (Doc. 32.) Defendant claims that government agents violated the Juvenile Delinquency Act ("JDA") by detaining his sister for a prolonged period of time without advising her of her legal rights and immediately notifying her parents that she was in custody for an alleged offense. He also claims that agents threatened to charge his juvenile sister with a crime if he did not speak to law enforcement and that U.S. Customs and Border Protection ("CBP") officers humiliated him both by telling his sister about his private medical condition and by making fun of his medical condition.
The Motion to Suppress alleges that Defendant's statements to law enforcement were involuntary because Defendant was coerced into waiving his rights by the threat to charge his juvenile sister and by the agents' violation of his sister's rights under the JDA. (Doc. 31). The Motion to Suppress also alleges that the search of the juvenile's purse and the pat down of Defendant were unreasonable under the Fourth Amendment because law enforcement did not have probable cause or a reasonable suspicion that Defendant and/or his sister were engaging in criminal activity at the time of the stop or initial searches.
At the evidentiary hearing, the government called CBP Officer Sony Bun; CBP Officer Adrian Morales; and Border Patrol Agent Julio Barajas. The defense called Defendant's juvenile sister; Defendant's mother, Leticia Saavedra; and Defendant. The R & R summarizes the testimony of the witnesses, and this Court will not repeat the summaries here. (Doc. 68 at 3-11.) The Court notes there is no dispute that on July 16, 2015, Defendant and his juvenile sister were in a vehicle attempting to leave the United States and enter the Republic of Mexico at the Nogales Port of Entry. Officer Bun, who was working the outbound vehicle lane at the port of Entry, waved for Defendant to stop his vehicle and asked Defendant if he or the female passenger had any weapons, ammunition, or currency in excess of $10,000 to declare. Defendant denied that he and the juvenile accompanying him had any of these items, including more than $10,000 in currency in their possession or in their vehicle. There is also no dispute that Bun had not received a tip to watch for someone transporting money and that there was nothing suspicious about Defendant or his vehicle.
Officer Bun noticed that the female in the passenger seat had a purse either on her lap or on the floor. According to Bun, he asked for consent to search the purse and it was handed to him; according to Defendant and his sister, Bun simply took the purse from her. He opened the purse and found two sealed envelopes. When he asked what it was, Defendant responded that it was money. Bun requested identification from both Defendant and the juvenile; they both provided their passports and were referred to the secondary inspection area.
At the secondary inspection area, Officer Bun gave the passports to his colleague, CBP Officer Adrian Morales, who conducted a pat down of Defendant to check for weapons. Officer Morales discovered something around Defendant's ankles and inner thigh. When Officer Morales asked what the bundles were, Defendant stated "money." Officer Morales placed Defendant in handcuffs. Bun testified that he stayed with the juvenile sister in a waiting area for about 30 minutes until a female officer was available to conduct a pat down.
Officer Morales brought Defendant into the building at the Port of Entry to conduct a more thorough pat down; he asked Defendant if he was taking any medications or had any medical conditions. Defendant stated that he had a skin rash around his waist area that might be contagious. Officer Morales testified that officers use latex gloves for all thorough pat downs, and he used gloves to conduct the pat down, which revealed currency bundles tucked into Defendant's socks and shoes and taped around his thighs. Morales conceded that he did not ask for Defendant's consent to perform the pat down and testified that officers routinely conduct such pat downs for officer safety when an occupant exits a vehicle in secondary inspection. There is evidence that the officers made unprofessional comments about Defendant's skin rash and that Defendant's sister heard the comments.
Officer Barajas took a recorded statement from Defendant after reading Defendant his Miranda warnings; Defendant said he understood his rights and was willing to speak without counsel. Defendant also signed a form acknowledging receipt of the warnings and that he understood them, and he waived his rights. (Docs. 52, Exs. 1, 5.) Defendant made various statements during the interview. Defendant asserts that prior to the recorded interview and Miranda warnings, he had a brief conversation with Barajas as Barajas escorted Defendant from his cell; Defendant claims that Barajas told him that "if I did not-if I didn't pretty much talk to them, that my sister would be facing the same thing that I'll be facing." Barajas denied that he threatened to charge or arrest Defendant's sister and testified that did not recall having a conversation about the sister before the tape recorded was turned on, although he admitted that Defendant may have asked him a question and he answered truthfully.
As noted Magistrate Judge Markovich recommended that this Court deny both motions. He summarized his conclusions as follows:
(Doc. 68 at 11-12.)
The Court reviews de novo the objected-to portions of the Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court reviews for clear error the unobjected-to portions of the Report and Recommendation. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); see also, Conley v. Crabtree, 14 F.Supp.2d 1203, 1204 (D. Or. 1998).
As noted, the R & R summarizes the testimony of the six witnesses. Defendant complains the R & R cites to inconsistent witness testimony and that Magistrate Judge Markovich did not make a finding regarding what testimony he believed. (Doc. 73 at 2.)
Defendant's first example relates to when during the course of the stop and arrests the government agents determined the age of Defendant's juvenile sister; Defendant notes that the Magistrate Judge concluded that "the government may well have violated the JDA by failing to timely ascertain the age of the defendant's sister. . . ." (Id. at 2-3.) But Defendant fails to explain why the conclusion is problematic for him or why a finding as to when the sister's age was determined is relevant to his claims. The R & R finds that Defendant had no standing to assert a JDA violation on behalf of his sister. (Doc. 68 at 13.) Defendant does not cite authority to contradict this or object to this finding, which is the legally significant finding regarding the alleged JDA violation. This Court finds no error as to that issue and overrules the objection.
Defendant's next example of inconsistent statements concern the R & R's summary of Agent Barajas' testimony regarding the recorded interview of Defendant and contact with Defendant that would not have been recorded—a five to ten minute window when they were walking together from the cell. Defendant does not initially explain the significance of these alleged inconsistencies but later in his objections, he argues that Barajas was lying regarding the threat and implies, without stating, that the R & R erroneously concluded that there was no threat to charge the sister if Defendant did not talk to the agents. (Doc. 73 at 7-9.) Because the claim of the threat to prosecute Defendant's sister and the evidence of that claim are central to the remaining objections, the Court addresses the issues here.
Barajas admitted to a short unrecorded conversation but testified that he would not have had an unrecorded ten-minute conversation with Defendant prior to advising him of his Miranda rights. Barajas testified that he never threatened to charge or arrest Defendant's sister and did not recall having a conversation about the sister before the tape recorded was turned on, although he admitted that Defendant may have asked him a question and he answered truthfully.
First, the Court does not believe that Barajas' testimony is inherently contradictory. Second, as the R & R points out, "[D]efendant never testified that Agent Barajas explicitly threatened his sister with criminal prosecution if the defendant did not speak with him," . . . and "[n]o testimony was elicited to clarify what the defendant meant by the phrase `the same treatment.'" The R & R further states:
(Doc. 68 at 20.) Later the Magistrate Judge wrote "[t]he Court finds that no threats occurred. . . ." (Id.) In other words, Magistrate Judge Markovich, who heard the witnesses testify, found no threat by Barajas to prosecute Defendant's sister if Defendant did not speak to the agents. The Magistrate Judge implicitly found Barajas' testimony credible and Defendant's testimony insufficient to overcome the denial of a threat. This Court declines to overturn the Magistrate Judge's credibility determination. See United States v. Thoms, 684 F.3d 893, 903 (9th Cir. 2012) (holding that a district court abuses its discretion when it reverses a magistrate judge's credibility determinations, made after receiving live testimony and favorable to the government, without viewing key demeanor evidence, with one exception: where the district judge finds that the magistrate judge's credibility determinations had no legally sufficient evidentiary basis.) Having reviewed the record and found sufficient basis for the finding, the Court overrules the objection.
Defendant asserts in his Motion to Suppress that the currency seized from him and his sister should be suppressed because the pat down of his outer clothing and the search of his sister's purse were not consensual and the agents did not have probable cause or reasonable suspicion to conduct those searches.
The R & R discusses the border-search doctrine, noting that border searches are generally deemed "reasonable simply by virtue of the fact that they occur at the border," United States v. Ramsey, 431 U.S. 606, 616 (1977). (Doc. 68 at 14-17.) As the R & R notes:
(Doc. 68 at 14, citing United States v. Seljan, 547 F.3d 993, 999 (9th Cir. 2008) (internal quotations and citations omitted).) The R & R also briefly discusses 31 U.S.C. § 5317(b), which provides that to ensure compliance with section 5316, "a customs officer may stop and search, at the border and without a search warrant, any vehicle, aircraft, or other conveyance, any envelope or other container, and any person entering or departing from the United States." (Doc. 68 at 16.)
The R & R correctly observes that although border searches are generally deemed reasonable that does not mean that at the border "anything goes'"; individual privacy rights are not abandoned at the border. United States v. Cotterman, 709 F.3d 952, 960 (9th Cir. 2013) (en banc) (quoting Seljan, 547 F.3d at 1000). Indeed, in Flores-Montano, the Supreme Court suggested that even in border cases, where there is a highly intrusive search of the person, some level of suspicion might be required. 541 U.S. 149, 152 (2004). "[T]he touchstone of the Fourth Amendment analysis remains reasonableness. The reasonableness of a search and seizure depends on the totality of the circumstances, including the scope and duration of the deprivation." Cotterman, 709 F.3d at 960.
Defendant argues in his objections that officers were required to have reasonable suspicion to stop and search the vehicle, to search his sister's purse, and to conduct the pat down of Defendant's outer clothing (Doc. 73 at 5); that 31 U.S.C. § 5317(b) is unconstitutional (id. at 4-5); and that the Magistrate Judge failed to rule on the constitutionality of the initial stop (id. at 5). These objections are without merit and are overruled.
"Congress, since the beginning of our Government, `has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country.'" United States v. Flores-Montano, 541 U.S. 149, 152 (2004), citing United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985). Defendant cites no authority supporting a need for reasonable suspicion for the search. His only citation is to United States v. Nates, where the Ninth Circuit Court of Appeals upheld the constitutionality of a prior version of 31 U.S.C. § 5317(b). 831 F.2d 860, 863 (9th Cir. 1987). That version permitted a customs officer to conduct a search without a search warrant. Id at 862. In upholding the constitutionality of that version of § 5317(b), the court wrote:
(Id. (emphasis added).) In other words, Defendant's cited authority does not support a claim that reasonable suspicion was required for the search, and contrary to Defendant's argument, there is no "tension" between the statute and an individual's Fourth Amendment rights. (See Doc. 73 at 6.)
Turning to the pat down of Defendant and search of the sister's purse, the Magistrate Judge wrote:
(Doc. 68 at 16-17.) In his Objections, Defendant states that he disagrees with this conclusion but cites to no factual error regarding the intrusiveness or offensiveness of the searches and offers no legal authority to suggest that the intrusions were unreasonable. (Doc. 73 at 5.)
Thus, Magistrate Judge Markovich, in fact, ruled on the constitutionality of the stop and the searches when he wrote "the customs inspectors had both statutory authority and authority under the border search doctrine to stop and search the defendant, his sister, their vehicle, and all containers in that vehicle as they were leaving the United States to ensure compliance with section 5316" and found the searches to be reasonable. (Doc. 68 at 16.) This Court agrees with those conclusions and overrules these objections.
Defendant moves to suppress the post-Miranda statements he made following his arrest on the grounds that his waiver of Miranda rights was not voluntary because Agent Barajas threatened his sister with criminal prosecution if Defendant did not speak with law enforcement, and he was emotionally distraught both by the comments made by CBP officers about his skin condition and CBP officers telling his sister about his skin condition. (Doc. 31.) The government argues that Defendant's statement was voluntary because Agent Barajas explained Defendant's Miranda rights to him and Defendant stated that he understood those rights and wanted to speak to the agent without a lawyer present and Defendant read the Miranda rights waiver form, placed his initials by each right that was explained to him, and signed the form indicating that he understood all of his rights and was willing to speak with Agent Barajas. Moreover, the audio recording of Defendant's interview does not show that Defendant was forced to speak to law enforcement based on the alleged threats about his sister or the alleged belittling comments about his skin condition.
The prosecution may not use statements obtained by custodial interrogation of a defendant unless the government demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444 (1996). Once the government establishes that the warnings were given, it must be established that a "waiver [was] made voluntarily, knowingly, and intelligently." Id.
To determine voluntariness of a confession, a court must consider "whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution." United States v. Bautista-Avila, F.3d 1360, 1364 (9th Cir. 1993) (citations omitted); see also Schnekloth v. Bustamonte, 412 U.S. 218, 226 (1973). Defendant agrees with the R & R that courts look at factors such as the age of the accused, lack of education, low intelligence, the absence of any advice regarding the accused's constitutional rights, the length of the detention, the repeated and prolonged nature of the questioning, and the use of physical punishment, such as the deprivation of food or sleep, to determine if law enforcement officers elicited a voluntary confession. United States v. Haswood, 350 F.3d 1024, 1027 (9th Cir. 2003).
In his objections, Defendant essentially concedes that the above-listed factors weigh in favor of the government (Doc. 73 at 9-10), but he argues that in addition to the listed factors, the Court should consider the inappropriate behavior that coerced Defendant into talking to officers, including the threat to Defendant's sister and the delay in determining her age or acting on the determination. (Doc. 73 at 7-8.) This Court has already determined to adopt the R & R conclusions that no threat was made and that the Defendant has no standing to assert possible JDA violations as to his sister. Defendant also suggests that the inconsistencies and possible outright lies in testimony regarding determining the sister's age and derogatory comments about Defendant's skin condition should be included in the totality-of-the-circumstances analysis. He cites no authority for this, and the Court has already found that Barajas' testimony is not inconsistent.
The objections also note that the R & R focuses on the audio recording of Defendant's interview. The R & R finds:
(Doc. 68 at 14.) The R & R also states:
(Id. at 19.)
Defendant does not object to the R & R characterization of the circumstances of the interview; rather, he argues that the Magistrate Judge should have focused on the inconsistent testimony and unrecorded conversation—i.e. the threat. (Doc. 73 at 8.) The Court has already overruled those objections. The Court adopts the R & R conclusion that the waiver of Miranda rights was voluntary.
Defendant argues that he had to distinguish between the agent's threat that his sister would face criminal prosecution and the Miranda warning right to remain silent. (Doc. 73 at 10-11, citing United States v. San Juan-Cruz, 314 F.3d 384, 387 (9th Cir. 2002).) In San Juan-Cruz, the Ninth Circuit invalidated the Miranda warnings because the detainee was first read his Administrative rights which informed him that he had the right to have an attorney present during questioning but "not at the [G]overnment's expense."
Here, the Magistrate Judge found that no threat was made. For the reasons previously stated, the Court will adopt this finding. Therefore, this argument fails and the objection is overruled.
Defendant moves to dismiss the indictment based on outrageous government conduct; specifically, the JDA violations committed by the CBP officers in their arrest and detention of Defendant's sister and the humiliating treatment the defendant received when he told officers of his skin condition. The government argued that Defendant has no standing to assert a violation of the JDA and that Defendant was more upset by the medical condition itself than the comments made by the officers. The R & R sets forth the standard for determining outrageous government conduct, and Defendant does not dispute that standard in his objections.
IT IS ORDERED:
(1) Defendant's Motion to Suppress Statements and Evidence (Doc. 31) and Motion to Dismiss the Indictment for Outrageous Government Conduct (Doc. 32) are
(2) The R & R (Doc. 68) is
(3) The plea deadline is July 15, 2016, and trial is set for August 2, 2016 at 9:30 a.m. before the Hon. Cindy K. Jorgenson.
