Opinion
EP-99-CR-1070-DB.
November, 1999.
MEMORANDUM OPINION AND ORDER
On this day, the Court considered Defendant Eloy Casas' Motion to Suppress, filed in the above-captioned cause on October 12, 1999. The Government filed a Response to Defendant's Motion on October 22, 1999. On October 28, 1999, the Court held a hearing on the matter. After careful consideration of the evidence and arguments presented, the Court is of the opinion that Defendant's Motion should be denied for the reasons that follow.
FACTS
On June 24, 1999, acting on information received from a reliable confidential source, agents from the United States Customs Service ("USCS"), the Federal Bureau of Investigations, and the El Paso County Sheriff's Department ("EPCSD") surveilled a van suspected of being involved in narcotics trafficking. The agents followed the van to a residence located at 10209 Celedon Street in Socorro, Texas (the "Celedon location"). On June 26, 1999, after two days of surveillance on the Celedon location, agents observed, a red 1993 Dodge Stealth (the "Stealth") with two occupants, park in the residence's driveway momentarily and then drive away. The Stealth, which had dark tinted windows and no visible licence plates, returned some time later and remained at the Celedon location until approximately 12:40 p.m. with the same two occupants. Agents surveilling the Celedon location contacted the EPCSD to request that any automobile matching the Stealth's description be stopped for any potential traffic violation.
Unless otherwise noted, all events described herein took place in the city of Socorro, Texas, which is within the Western District of Texas.
Deputy Manuel Marquez ("Deputy Marquez"), a Deputy Sheriff Patrolman with the EPCSD, assigned to the Traffic Division, was nearby in a marked patrol car. Deputy Marquez was requested to look for a 1990's red Dodge Stealth, but was not told that the Stealth had no visible licence plates. Soon thereafter, Deputy Marquez, traveling south on Socorro Road, spotted a red 1990's Dodge Stealth westbound on Moon Road approaching Socorro Road. As the Stealth approached, Deputy Marquez noticed that the vehicle had no front licence plate. He also noticed a vehicle inspection sticker from the State of Colorado on the Stealth's windshield. After the Stealth turned Right onto Socorro Road in front of him, Deputy Marquez pulled behind the vehicle and noticed that it also had no licence plate on the rear. At this point, Deputy Marquez initiated a traffic stop on the Stealth at approximately 12:48 p.m.
After stopping the vehicle, Deputy Marquez walked to the drivers' side of the vehicle. As he approached, Deputy Marquez noticed a temporary registration document from Colorado attached to the inside of the vehicle's back window. According to Deputy Marquez, the document was not visible without standing very close to the vehicle because of the dark window tinting and the near horizontal slope of the back window. Deputy Marquez then requested routine information, including drivers' licence, registration and proof of insurance, from the driver, later identified as one Jaime Olvera ("Olvera"). Olvera produced a Mexico drivers' licence and a temporary bill of sale/title from the State of Colorado. When asked where he had come from and where he was going, Olvera stated that he had come from the 12000 block of Bugambilia Street in San Elizario, Texas, and was on his way to an unspecified title company. Olvera, according to Deputy Marquez, appeared nervous as he spoke. Olvera's hands shook, his voice trembled, he fidgeted, he was very animated in his responses and he avoided eye contact with the deputy at times.
Deputy Marquez also spoke with Defendant, who was the passenger. At the time, he spoke to Defendant only in English and Defendant answered in what Deputy Marquez described as "normal" English, without any accent. Defendant, who testified that he does not speak or understand any English, identified himself at that time as "Jose Enriquez." Defendant stated that he and Olvera had come from the 11000 block of Celedon and were on their way to a title company on Zaragosa Avenue in El Paso, Texas, to register the Stealth.
Deputy Marquez then ran a standard check with EPCSD dispatch, to search for any outstanding arrest warrant on either occupant and, using Stealth's the Vehicle Identification Number, to check if the vehicle was stolen. The dispatch check did not reveal any outstanding warrant and revealed that the Stealth was registered previously in Colorado and was not stolen.
Shortly thereafter, about three or four minutes after Deputy Marquez stopped the vehicle, one Sergeant Donald Marshall ("Marshall"), also with the EPCSD, arrived at the scene wearing civilian clothing but displaying his badge on the outside of his coat. Marshall, who testified that he does not speak any Spanish, also spoke to Defendant only in English. Marshall then asked Defendant if there were any drugs in the car, to which Defendant answered that, while there were no drugs in the Stealth, the drugs were "in a van." Marshall then Mirandized Defendant. Defendant made no reply.
Olvera then gave oral consent for the officers to search the Stealth, but they found no drugs or contraband. Deputy Marquez informed Olvera, and Marshall informed Defendant, of the ongoing investigation of the Celedon location and the van parked there. Both men agreed to accompany the officers to the Celedon location. After being searched for weapons and handcuffed, Olvera was placed into Deputy Marquez's vehicle, and Defendant rode with Marshall. According to Marshall, he and Defendant had no conversation during the short three minute trip to the Celedon location.
Meanwhile, other law enforcement officers and agents approached the Celedon location and knocked on the door. One Bertha Marquez ("Ms. Marquez") answered the door. Deputy Oscar Martinez ("Martinez"), also of the EPCSD, questioned Ms. Marquez. Ms. Marquez stated that she was the owner of the residence at the Celedon location and lived there with her husband, daughter and granddaughter. She informed Martinez that the structure is a duplex and that she rented the right side of the structure to "some man" whose name she did not know. Martinez informed Ms. Marquez of the ongoing narcotics investigation and asked here if there were any drugs in her house. Ms. Marquez said that, while there were no drugs in her house, she had no idea what might be going on "next door." Martinez then asked Ms. Marquez if the officers could search her home. After consulting briefly with her daughter, Ms. Marquez gave oral permission for the officers to search. She accompanied them through the house during their search of her side of the Celedon location. Although the officers found no drugs, at some point, they noticed a common passageway between Ms. Marquez's half of the structure and the right side. Ms. Marquez explained that the structure once was one unit, and was converted into two by covering certain doorways, which the officers noticed was accomplished by using some type of particle-board planks.
After the search of her home, Ms. Marquez left, stating that she did not want any trouble. As she was leaving, Marshall drove up to the residence with Defendant. Ms. Marquez identified Defendant as the man she rented to, but again stated that she did not know him. Later, Defendant stated that Ms. Marquez is his mother.
At this point, according to Martinez, there were about ten law enforcement officers at the Celedon location. Martinez, who was not wearing a police uniform, asked Defendant, in English, his name. Defendant answered "Eloy Casas." Thereafter, Martinez spoke to Defendant only in Spanish because Defendant stated that he (Defendant) was more comfortable speaking Spanish.
Martinez informed Defendant of the ongoing investigation and asked Defendant if the officers could search his side of the structure. Defendant agreed. He was taken inside to the livingroom of his residence, where Martinez gave Defendant a `Consent to Search' form translated into Spanish. Martinez did not tell Defendant that he (Defendant) did not have to sign the form and did not have to consent to a search. Nor did Martinez give Defendant any Miranda warning. Defendant read the document seated on the couch, uncuffed, and, after stating in Spanish that he understood its contents, signed the consent form.
The Document was entitled "Consentimiento Para Registrar." At the hearing, the document was translated into English on the record. According to the translation, the document, entitled "Consent for Search" in English, (1) notes that Defendant was informed of his Constitutional right not to give consent to search; (2) authorizes Deputy Martinez and one A. Juarez of the USCS to make a complete search of Defendant's property or his vehicle located at 10209 Celedon; (3) authorizes officers to take any letters, documents, materials or any other property therein located; (4) states that Defendant is giving his consent voluntarily and without having been made any promises of any type; and (5) states that Defendant has the right to terminate the search at any time.
At this point, officers entered Defendant's residence using Defendant's keys and conducted a thorough search. Officers found a quantity of marijuana in a toolbox and in a freezer, as well as approximately $20,720 in currency secured to a heater. Outside the structure, but within the fenced area immediately to the right of the garage, officers approached the previously surveilled van, which was parked to the rear of the lot beyond the driveway. As officers approached, they noticed a heavy odor of marijuana emanating from the van. Using keys provided by Defendant, the officers found approximately ninety large bundles inside the van of what was later identified as marijuana, having a gross weight of approximately 2,246.1 pounds.
On July 14, 1999, Defendant was indicted in a single count Indictment, charging Defendant with knowingly and intentionally possessing with intent to distribute one-hundred kilograms or more of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(vii). The instant Motion followed.
DISCUSSION
The Fourth Amendment to the United States Constitution guarantees "[t]he right the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . ." Thus, it protects an individual's reasonable expectation of privacy from certain types of government intrusion. See Katz v. United States, 389 U.S. 347, 350, 88 S. Ct. 507, 510, 19 L.Ed.2d 576 (1967). "The touchstone of the Fourth Amendment is reasonableness." Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991) (citing Katz, 389 U.S. at 360, 88 S.Ct. at 516).
Here, Defendant takes four different approaches to suppressing the marijuana and other contraband seized by the Government for use against him. First, Defendant challenges the initial stop of the Stealth in which he was a passenger, arguing that Deputy Marquez' stated reason for stopping the vehicle — no visible registration — is unreasonable as pretext. Second, Defendant argues that the scope of the roadside detention and questioning of Defendant went beyond the need justified by Deputy Marquez's reason for stopping the Stealth. Third, Defendant contends that he was interrogated while in custody without having first been Mirandized. Finally, Defendant contends that the warrantless searches of the Celedon location and the van located there were unreasonable because the consent obtained from Defendant was invalid. The Court addresses Defendant's arguments, in turn, below.
A. The Initial Traffic Stop
Defendant first argues that Deputy Marquez's initial stop of the Stealth for having "no visible registration" was pretext and, therefore, unreasonable. The Court disagrees.
As a general matter, because "[t]emporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a `seizure' of `persons' within the meaning of [the Fourth Amendment]," Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996) (citations omitted), "[a]n automobile stop is . . . subject to the constitutional imperative that it not be `unreasonable' under the circumstances." Id.; see also United States v. Shabazz, 993 F.2d 431, 434 (5th Cir. 1993). Where, as here, a defendant is stopped for violating the traffic laws, courts have analyzed the case under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See Shabazz, 993 F.3d at 435. Under Terry, the judicial inquiry into the reasonableness of a seizure "is a dual one — whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 19-20, 88 S.Ct. at 1879.
"The decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren, 517 U.S. at 810, 116 S.Ct. at 1772 In Whren, the Supreme Court reaffirmed its decision in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), which held that a traffic-violation arrest is not invalid by the fact that it is a mere pretext for a narcotics search. See Whren, 517 U.S. at 812-13, 116 S.Ct. at 1774. The Whren Court stated that an arresting officer's "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." Id. Thus, "the fact that [an] officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." Id. (internal quotes omitted) (quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978)); see also Goodwin v. Johnson, 132 F.3d 162, 173 (5th Cir. 1998) (stating that "so long as a traffic law infraction that would have objectively justified the stop had taken place, the fact that the police officer may have made the stop for a reason other than the occurrence of the traffic infraction is irrelevant for purposes of the Fourth Amendment. . .").
Here, Deputy Marquez credibly testified that, upon receiving information from the surveilling officers regarding the Stealth, he located the Stealth southbound on Socorro Road. According to Deputy Marquez, he observed that the Stealth had no front licence plate as it approached him, and that the Stealth had no rear licence plate once it passed. Texas law prohibits operating a vehicle without a licence plate or registration. See Tex. Transp. Code Ann. § 502.404 (West 1999) (stating in part, "(a) A person commits an offense if the person operates on a public highway . . . a passenger car . . . that does not display two license plates, at the front and rear of the vehicle. . . ."). Defendant does not dispute that the Stealth had no visible licence plate. Thus, the Court finds that Deputy Marquez' initial stop of the Stealth is validated by probable cause to suspect that the driver of the Stealth committed a traffic violation, namely, operating a vehicle without two visible license plates.
Even though, as it turns out, the Stealth had an out-of-state temporary registration documentation attached to the back window, Deputy Marquez also testified that the documentation could not be seen from afar. According to Deputy Marquez, it was not until he already had stopped the vehicle and was very close to it that he saw the registration documents behind dark tinting on the Stealth's sloping rear window. Texas law also prohibits the display of an "unclean licence plate." See Tex. Transp. Code Ann. § 502.409 (West 1999) (providing in part, "(a) A person commits an offense if the person attaches to or displays on a motor vehicle . . . registration insignia that: . . . (5) has letters, numbers, or other identification marks that because of blurring matter are not plainly visible at all times during daylight"). Thus, because it is undisputed that the Stealth's Colorado registration documentation was barely visible behind the vehicle's dark window tinting, Deputy Marquez' initial stop of the Stealth is further validated by probable cause to suspect that the driver of the Stealth committed a traffic violation, namely, display of an unclean license plate. Consequently, the Court is of the opinion that the initial stop of the Stealth was reasonable.
B. The Roadside Detention and Search
Defendant next asserts that the stop, even if reasonable in the first instance, exceeded the scope of Deputy Marquez's reason for stopping the vehicle and, as such, was unreasonable. The Court, thus, now examines the second Terry second prong, whether Deputy Marquez's detention of Defendant and Olvera exceeded the reasonable scope of the stop's original justification. Because Marshall's question of whether the Stealth contained any drugs does not relate to the failure to display a licence plate, Defendant argues, the scope of the detention exceeded the justification for a minor traffic violation. The Court disagrees.
Police questioning, even on a subject unrelated to the purpose of a stop is neither a seizure nor a Fourth Amendment violation. See Shabazz, 993 F.2d at 436. An officer conducting a routine, valid traffic stop may request a driver's licence, insurance papers and vehicle registration, may run a computer check and may issue a citation. See id. at 435. "Detention, not questioning, is the evil at which Terry's second prong is aimed." Id. Moreover, "when questioning takes place while officers are waiting for the results of a computer check — and therefore does not extend the duration of the stop — the questioning does not violate Terry." United States v. Crain, 33 F.3d 480, 485 (5th Cir. 1999) (citing Shabazz, 993 F.2d at 437).
Here, Deputy Marquez contacted EPCSD dispatch to run routine computer checks on the driver, Olvera, the vehicle and the passenger, Defendant. Deputy Marquez testified that these questions and radio inquiry to dispatch are routine traffic stop procedure. In the meantime, Sergeant Marshall arrived on the scene and asked Defendant about any whether there were any drugs in the vehicle. Defendant's response eventually led them to the marijuana in the van parked at Defendant's home. Deputy Marquez testified credibly that Marshall arrived while he (Deputy Marquez) was still waiting for the computer search results, some three to four minutes after the stop was initiated. Thus, the Court finds that, in questioning Defendant, Marshall did not extend the duration of the stop.
Deputy Marquez further testified that Defendant's statement that there were drugs in a van took place some five minutes after the stop, and that entire roadside stop took no longer than ten minutes. Thus, the Court finds that Defendant and the driver of the Stealth were detained no longer than justified by the reason justifying the stop. Consequently, the Court is of the opinion that the requirements of Terry are satisfied.
C. Miranda Warnings
Defendant next contends that the statement he allegedly made to Sergeant Marshall, that there were drugs in a van, was made without any Miranda warning and, thus, should be suppressed. Once again, the Court disagrees.
It is well-established that Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966), prohibits use during trial of statements made by a defendant during custodial interrogation unless procedural safeguards are employed to protect his Fifth Amendment privilege against self-incrimination and Sixth Amendment right to counsel. The Miranda requirement is satisfied by a warning nearly universally recognized, that a suspect has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney during questioning, and that an attorney will be provided for him if he cannot afford one. See Miranda, 384 U.S. at 479, 86 S.Ct. at 1630.
Here, Defendant argues that he was in custody when he allegedly told Sergeant Marshall that there were drugs in the van at his residence. The Court disagrees. A defendant is "in custody" whenever he "has been deprived of his freedom of action in any significant way," id., at 444, 86 S.Ct. at 1612, or when a suspect's freedom of action is curtailed to a "degree associated with formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983). The inquiry is an objective one, where "the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed. 317 (1983); see also United States v. Bengivenga, 845 F.2d 593, 596 (5th Cir. 1988) (explaining, "[a] suspect is therefore `in custody' for Miranda purposes when placed under formal arrest or when a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest."). In Berkemer, addressing facts similar to those present here, the Supreme Court stated:
[W]e reject the contention that the initial stop of respondent's car, by itself, rendered him "in custody." And respondent has failed to demonstrate that, at any time between the initial stop and the arrest, he was subjected to restraints comparable to those associated with a formal arrest. Only a short period of time elapsed between the stop and the arrest. At no point during that interval was respondent informed that his detention would not be temporary. . . . A policeman's unarticulated plan has no bearing on the question whether a suspect was "in custody" at a particular time. . . . Treatment of this sort cannot fairly be characterized as the functional equivalent of formal arrest.468 U.S. at 441-42, 104 S.Ct. at 3151 (emphasis added).
Here, Defendant's statement to Marshall that there were drugs in a van came prior to any Miranda warning. Until Defendant made this incriminating statement, however, as far as Defendant knew, he was merely a passenger in a vehicle stopped by a traffic officer for not having any visible license plates. According to Deputy Marquez, the Stealth was stopped by the side of the road, and all questioning took place there. Deputy Marquez first talked to the driver, Olvera, asking routine questions, and then spoke with Defendant. The two occupants answered Deputy Marquez' questions and then Marquez returned to his patrol car to radio dispatch. When Deputy Marquez returned to speak with the driver, Marshall arrived to assist Deputy Marquez. Marshall, not wearing a uniform but with his badge displayed outside his civilian clothes, approached Defendant and asked Defendant whether there were any drugs in the car. In response, Defendant stated that there were drugs in a van. Immediately thereafter, Marshall gave Defendant a Miranda warning. Neither Deputy Marquez nor Marshall ever communicated to Defendant prior to this final event their suspicions regarding narcotics trafficking activity. Thus, the Court finds that a reasonable suspect in Defendant's position would have no reason to believe that he would not be allowed to proceed shortly.
Deputy Marquez' testimony at the hearing does not state whether he spoke with the two occupants of the Stealth separately or together.
Moreover, according to Deputy Marquez, this entire series of events occurred within only three to four minutes of the initial stop. From these events, which the Court finds "cannot fairly be characterized as the functional equivalent of formal arrest," Berkemer, 468 U.S. at 442, 104 S.Ct. at 3151, the Court can find no reason why any objective person in Defendant's position at that time would feel that he was not free to leave. Thus, the Court finds that Defendant was not in custody when he allegedly made to Marshall the incriminating statement that he now seeks to suppress. Consequently, the Court is of the opinion that no Miranda warning was necessary prior to Marshall's questions to Defendant, and, thus, Defendant's response should not be suppressed.
D. Search of Defendant's Residence
Defendant finally argues that his consent to search his half of the residence at the Celedon location, if made, was made unknowingly and involuntarily and, as such, any evidence obtained as a result of that search must be suppressed. The Government, in reply, asserts that Defendant consented in writing to a search of his house and vehicle and that his consent was knowing and voluntary.
In general, warrantless searches violate the Fourth Amendment unless they fall within a specific exception to the general rule. See United States v. Karo, 468 U.S. 705, 717, 104 S.Ct. 3296, 3304, 82 L.Ed.2d 530 (1984). Consent to search is one such exception to the warrant requirement. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973); United States v. Jenkins, 46 F.3d 447, 451 (5th Cir. 1995).
Here, the officers had no search warrant. Thus, in order to satisfy the consent exception, the Government must establish by a preponderance of the evidence that consent to search was freely and voluntarily given by an individual who had the authority to do so. See Jenkins, 46 F.3d at 451; see also United States v. Hurtado, 905 F.2d 74, 76 (5th Cir. 1990). Defendant does not contend that he had no authority to consent to any search. Thus, the Court proceeds to determine whether Defendant's consent was voluntary.
Voluntariness of consent is a "question of fact to be determined from a totality of the circumstances." United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993) (quoting Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2048). In United States v. Olivier-Becerril, 861 F.2d 424, 426 (5th Cir 1988), the Fifth Circuit considered the following six factors to determine whether consent to search there was voluntary: (1) the voluntariness of the defendant's custodial status; (2) the presence of coercive police procedures; (3) the extent and level of the defendant's cooperation with the police; (4) the defendant's awareness of his right to refuse to consent; (5) the defendant's education and intelligence; and (6) the defendant's belief that no incriminating evidence will be found. Although all of these factors are relevant, none is dispositive or controlling. See id.
With respect to the first factor, Defendant was involuntarily held when he gave consent to the officers to search his home. Marshall testified that he transported Defendant, handcuffed, in the back of his police car to the residence. Once there, Marshall removed the handcuffs and turned Defendant over to the USCS agents on the scene. Although Defendant did not present any evidence that he was not there willingly, it is safe to assume this to be the case. Thus, the Court finds that the first factor weighs in Defendant's favor.
Next, with respect to the second factor, there is no evidence that any government agent or police officer used any threats or coercive practices to obtain Defendant's consent to search his residence. Martinez testified that Defendant was never denied any basic necessities and was seated on the livingroom couch while reading the consent form he signed. Defendant was given time to read the form before signing it. Defendant introduced no evidence to the contrary. Thus, the Court finds that the second factor weighs in the Government's favor.
Under the third factor, Defendant appears to have been cooperative throughout the day's events. First, Defendant cooperated with Deputy Marquez and Sergeant Marshall during the initial traffic stop. He answered their questions and did not object to a search of the Stealth. Later, while officers searched his residence at the Celedon location, Defendant assisted the officers by, among other things, providing the officers the keys to the van. Thus, the Court finds that this factor, too, weighs in favor of the Government.
The Court notes that, while Defendant initially gave the false name "Jose Olvera" to Deputy Marquez, when he arrived at the residence and Deputy Martinez spoke to him, Defendant stated his true name, Eloy Casas, and from then on used that name.
With respect to the fourth factor, the Government concedes that it did not expressly inform Defendant that he could refuse to consent. Thus, this factor weighs Defendant's favor.
Fifth, with respect to Defendant's education and intelligence, Defendant testified that he completed two years of high school. Defendant also testified initially that he speaks only Spanish and no English, inferring that he was at a lingual disadvantage. However, because Martinez, the officer who obtained Defendant's consent at the residence, spoke with Defendant in Spanish, and all the forms given to Defendant were translated into Spanish, the Court finds that Defendant's language limitation, if any, is not relevant. Thus, given Defendant's average education and the lack of any evidence to question Defendant's intelligence, the Court further finds that this fifth factor weighs in the Government's favor.
The Court harbors doubts about the credibility of Defendant's testimony. On cross-examination at the hearing in this matter, Defendant admitted that he does speak and understand some English. Among other reasons, this leads the Court to believe that Defendant's testimony is less than credible.
Finally, with respect to the sixth factor, the only evidence put forth in this case relevant to the inquiry is Defendant's testimony that he was surprised to learn that the officers discovered marijuana in the van. The Court finds the credibility of this testimony questionable. If Defendant testified truthfully, then his belief that there was no drugs in the van supports a finding of knowing and intelligent consent because he should not have had any problem allowing the officers to search. On the other hand, if Defendant was not telling the truth, and Defendant knew the contents of the van, then his subjective knowledge of its contents would weigh factor number six in Defendant's favor, because a defendant whose van is full of more than 2,000 pounds of marijuana is unlikely to lead the police by the hand to the van's door. Thus, the Court finds factor number six weighs in neither party's favor.
On balance, the Court finds that Defendant's consent was voluntary. Only factors one and four of the Olivier-Becerril test help Defendant, and factors two, three and five weigh in favor of the Government. Thus, the Court finds that, under the totality of the circumstances, Defendant's consent to search his residence and the van located on the property was voluntary.
Accordingly, IT IS HEREBY ORDERED that Defendant Eloy Casas' Motion to Suppress is DENIED.