Opinion
8:99CR246
June 2000
MEMORANDUM AND ORDER
I. Introduction
Before the Court are the statement of objections to the magistrate judge's report and recommendation filed by the defendant, Juan Escatera-Cabadas, and the statement of objections to the magistrate judge's report and recommendation filed by the defendant, Alejandro Espinoza. Filing Nos. 33-34. Both parties submitted briefs in support of their statement of objections. A superseding indictment charges both parties with one count of conspiracy to possess with intent to distribute methamphetamine in violation of 21 U.S.C. § 846 and one count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). Filing No. 1. Both defendants seek to suppress evidence obtained from an allegedly unlawful search, detention, and arrest of the defendants by officers of the Commercial Interdiction Unit at Omaha's Eppley Airfield. Filing Nos. 20-21.
After conducting combined evidentiary hearings on January 5 and January 10, 2000, the magistrate judge recommended that the district court deny the defendants' motions to suppress evidence. In his report and recommendation, the magistrate judge found that 1) the encounter between Escatera-Cabadas and officers outside the terminal building at Eppley Airfield was consensual and not a seizure under Fourth Amendment analysis; 2) Escatera-Cabadas' consent to the search of his person was voluntary; and 3) that Espinoza's consent to the search of his person and his luggage was voluntary. Filing No. 31.
The defendants filed objections to the magistrate judge's report and recommendation. Filing Nos. 33-34. After carefully reading the transcripts from the hearings on the defendants' motions to suppress evidence, the Court expressed its concerns to counsel regarding the language barrier between Investigator Lutter and the two defendants. The Court then held a separate evidentiary hearing on the issue of whether the search, in light of the totality of the circumstances, was truly consensual in nature. By joint stipulation, Jeck Navarrete took the stand as the Spanish language translator in the separate evidentiary hearing conducted on June 8, 2000. The Court received into evidence as Exhibit 1 an addendum to the transcript of the January 5 hearing prepared by Mr. Navarrete (hereafter "Exhibit 1"). This addendum is a translation that Mr. Navarrete compiled from the Spanish phrases that Investigator Lutter used during his encounters with the two defendants.
II. Standard of Review
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court shall to make a de novo determination of those portions of the report or specified proposed findings or recommendations to which the defendant objects. To that end, the Court has carefully reviewed the record, including the transcripts of the suppression hearings (Filing Nos. 29 and 30), the magistrate judge's report and recommendation (Filing No. 31), and the defendants' objections and briefs (Filing Nos. 33 and 34). The Court has also reviewed the government's brief submitted in response to the defendants' objections.
III. Factual Background
On October 11, 1999, Juan Escatera-Cabadas and Alejandro Espinoza, along with over one-hundred other passengers, arrived in Omaha on a Southwest Airlines flight. Interdiction officers Richard Lutter ("Lutter"), Gregory Kallhoff ("Kallhoff"), and Kathy Milone ("Milone") regularly watch the flights to observe the passengers in an attempt to detect drug smuggling activities. Lutter, dressed in plain clothes, observed Escatera-Cabadas and Espinoza deplane and begin to walk through the airport. Lutter testified that the two men were "following each other but . . . not communicating with each other in any way[,]" which drew Lutter's attention to them. Transcript of Jan. 5, 2000 at 13 (hereafter "TR1").
The two men walked down the hallway in the airport along with many of the other passengers of the plane that had just arrived. TR1 at 62-63. Lutter observed that as the two men walked from the jetway onto the satellite, one of the men was approximately five to ten feet in front of the other, and "[i]f one subject would start veering off to the left, the second subject would also go to the left . . . [or if one] went to the right or a different direction, the second subject would also follow." Id. at 13-14. Lutter continued to observe the two men as they entered and exited a restroom and then proceeded through the satellite to the main terminal. Id. at 16. The two men both stopped one time after passing a checkpoint at the end of the satellite. Id. Lutter walked between the men as they stopped, continuing to observe them by watching their reflections in airport store windows as the two men then proceeded to the main terminal. Id. at 17. The man in the rear of the procession continued to mimic the behavior of the front man as they passed Lutter, who had stopped near a bank of phones to again observe the behavior of the two men. Id. at 18.
The two men, who law enforcement later learned were Juan Escatera-Cabadas and Alejandro Espinoza, carried carry-on bags, walked past the baggage claim area and left the main terminal building at the same time. Id. at 18-22, 58-59. Lutter testified that during their entire walk through the airport terminal, he did not observe the two men speak to each other. Id. Lutter became suspicious of the behavior of the two men and followed them out of the building to the sidewalk in front of the terminal, where the two were standing approximately five to seven feet apart and not communicating with each other. Id. at 23. When Lutter observed Escatera-Cabadas begin to walk away, Lutter followed him and gained Escatera-Cabadas' attention without making physical contact with him. Id. at 26, 43. Lutter then notified Escatera-Cabadas that Lutter was a police officer, and asked Escatera-Cabadas if he would talk with him. Id.
Through observing his eye movements and body language, Lutter learned that Escatera-Cabadas did not speak English. Id. at 26 Lutter commenced speaking to Escatera-Cabadas using "command" Spanish. Id. at 70-72. The purpose of an officer using command Spanish is to direct an individual what to do so that the officer retains control over a situation. 72:2-14. The conversation during the encounter between Lutter and Escatera-Cabadas is provided below, with the Spanish words in bold print and the English translation in parentheses.
Lutter: " )habla inglés?"
Translation: ("You speak English?")
Lutter: " habla español un poquito"
("You/he/she/it/ speak a little")
Lutter: " )entiendo?"
("Do I understand?")
Lutter: " Soy policia, no está arrestado."
("I am police, you are not arrested")
Lutter: " )tiene identificación?"
("Do you have identification?")
Lutter: " )tiene boleto?"
("Do you have a ticket?")
Lutter: " soy policia, drogas, )entiendo?"
("I am police, drugs, Do I understand?")
Lutter: " entiendo"
("I understand")
Lutter: " Soy policia"
("I am police")
Lutter: " drogas"
("drugs")
Lutter: " )me permite registrar su persona o su bolsa?"
("Do you allow me to search your person or your bag?")
Lutter: " )me permite registrar su persona, su bolsa?"
("Do you allow me to search your person, your bag?")
Lutter: " )tiene drogas?"
("Do you have drugs?")
Lutter: " )dónde vienes?"
("Where you come?")
Lutter: " )dónde vas?"
("Where you go?")
Exhibit 1.
After Lutter uttered two statements containing incorrect pronouns, " habla español un poquito" and " )entiendo?," Escatera-Cabadas responded by nodding his head and saying "si." Lutter testified that he believed that Escatera-Cabadas understood what Lutter was saying. Id. at 26-27. Although Lutter knew that Escatera-Cabadas did not speak English and knew that he had a limited command of the Spanish language, Lutter elected not to summon Officer Milone, who is fluent in Spanish, to assist him in communicating with Escatera-Cabadas. Transcript of Jan. 10, 2000 at 44 (hereafter "TR2"). Lutter testified that he did not summon Milone, who stood within thirty feet of him, because he felt that he "had enough control of the Spanish language to be able to communicate [his] desires" to Escatera-Cabadas. TR1 at 102:13-20. Lutter also testified that he did not provide Escatera-Cabadas with paperwork (presumably a rights advisory form) printed in Spanish, even though Kallhoff and Milone were on the scene and could have easily retrieved the paperwork from the airport office located 150-200 yards away from the encounter. TR1 At 112. On cross examination, Lutter admitted that, although he had access at all times to Spanish language forms, he did not use them on a regular basis and "chose not to use [the form] at this time." TR1 at 101:9-10, 13-14.
Lutter, who, according to his testimony is 6'5" tall and weighs 280 pounds, then said to Escatera-Cabadas, " Soy policia, no está arrestado," which Lutter believed to mean "I am a police officer, and you are not under arrest." TR1 at 68. Lutter then proceeded to ask to see Escatera-Cabadas' identification, and Escatera-Cabadas produced a California driver's license bearing the name Fernando Garcia. TR1 at 28-32. Lutter next requested to see Escatera-Cabadas' plane ticket, and Escatera-Cabadas complied by producing a ticket. From observing the ticket, Lutter determined that Escatera-Cabadas could travel no farther than Omaha by plane. Id. Lutter asked Escatera-Cabadas from where and to where he was traveling. Id. at 32-33. To these questions, Escatera-Cabadas replied "Los Angeles" and "Sioux City." Id.
Next, Lutter attempted to inform Escatera-Cabadas that Lutter was an police officer who looked for drugs. Id. at 33-34. However, Lutter's statement " soy policia, drogas, )entiendo?" did not clearly state what Lutter intended to convey. Exhibit 1. The words spoken, as translated by Mr. Navarrete, mean "I am police, drugs, do I understand?" Exhibit 1. Escatera-Cabadas responded to the garbled statement by saying "si."
Lutter next asked Escatera-Cabadas, " )me permite registrar su persona o su bolsa?" TR1 at 97. This statement asked Escatera-Cabadas for permission to search his person or bag. Exhibit 1. Escatera-Cabadas responded by handing Lutter his bag. Id. After searching the bag and finding no contraband, Lutter requested permission to search Escatera-Cabadas' person, and Escatera-Cabadas responded by nodding and spreading his arms away from his body. Id. at 35.
Lutter then ceased speaking in Spanish and commanded Escatera-Cabadas in English to remove his shoe. Id. at 98-99. Lutter testified that he used English words because he "did not know the Spanish terms" to say "please take off your shoe." TR1 at 38, 99. In addition to commanding the defendant in English to remove his shoe, Lutter employed a "form of sign language" to request that Escatera-Cabadas remove the shoe. Id. at 38. Escatera-Cabadas hesitated, but then responded by using the toe of his left foot to remove the heel of his right shoe from his foot. Id. Lutter proceeded to observe the inside of the shoe, then he touched inside the shoe with his hand. Id. at 40. Upon searching the shoe, Lutter discovered plastic bundles containing what he believed to be methamphetamine. Id. at 41. Lutter then placed Escatera-Cabadas under arrest. Id. at 41-42.
Sergeant Kallhoff, whom Lutter had earlier contacted during his observations of Escatera-Cabadas and Espinoza, had been standing outside the terminal door and watching Espinoza along with Officer Milone. TR2 at 28-29. As Lutter was escorting Escatera-Cabadas back to the terminal, Kallhoff stated that he saw Escatera-Cabadas nod toward Espinoza, who had witnessed the encounter between Lutter and Escatera-Cabadas. TR1 at 42, TR2 at 19. Lutter testified that the nod confirmed to him that the two men were traveling together. Id. at 45. At that time, Kallhoff proceeded to stop Mr. Espinoza, not by speaking to him, but by laying "[his] entire palm onto [Espinoza's] shoulder" for the express purpose of gaining Espinoza's attention. TR2 at 29-30. Kallhoff then motioned, using his index finger, to Espinoza that Kallhoff wanted Espinoza to return to the sidewalk. Id. at 21. Kallhoff did not notify Espinoza that Kallhoff was with the police or state that Espinoza was under arrest. Id. at 30.
Espinoza, following Kallhoff's order, returned to the sidewalk, where he observed the remainder of the encounter between Lutter and Escatera-Cabadas. Id. at 70. Lutter then approached Espinoza, believing that he had probable cause to detain him, and discovered from Kallhoff that Espinoza did not speak English. TR1 at 45, 54. Once again, Lutter chose not to request the assistance of Milone, who is fluent in Spanish and who was standing in the immediate vicinity. TR2 at 44.
Lutter's conversation with Espinoza was significantly shorter than the one he had with Escatera-Cabadas. Lutter did not ask Espinoza any questions to elicit information about his identification, his flight, or his relationship, if any, to Escatera-Cabadas. Id. at 69. According to the translation provided to the Court, Lutter spoke to Espinoza using these Spanish phrases.
Lutter: " )habla inglés?"
Translation: ("You speak English?")
Lutter: " Soy policia, no está arrestado."
("I am police, you are not arrested")
Lutter: " Soy policia, no está arrestado."
("I am police, you are not arrested")
Lutter: " )me permite registrar su persona?"
("Do you allow me to search your person?")
Exhibit 1.
After Lutter requested permission to search Espinoza's person, Espinoza responded "si." Id. at 48-49. At this point, Lutter abandoned any attempt at speaking Spanish. Instead, he commanded Espinoza, using English words, to remove his shoe and employed hand signals and gestures to illustrate the removal of his shoe. Thereafter, Espinoza removed his shoe . . . Id. at 49. Lutter then saw and felt what he believed to be drugs, and placed Espinoza under arrest. Id. at 49-50.
IV. Discussion A. Defendant Juan Escatera-Cabadas
Juan Escatera-Cabadas objects to the magistrate judge's factual finding that "Investigator Lutter observed the two subjects mimic each other's movements. . . ." Magistrate Judge's Report an Recommendation, Filing No. 31 at 3 (hereafter "RR"). Escatera-Cabadas further objects to the magistrate judge's conclusion that reasonable suspicion existed to lead to a detention and search of Escatera-Cabadas. RR at 11. Escatera-Cabadas also objects to the magistrate judge's factual finding that "Escatera-Cabadas voluntarily consented to the searches in question." Id.
1. Mimicking Conduct
Escatera-Cabadas first objects to the magistrate judge's finding that Investigator Lutter observed the two men mimicking each other's movements. The defendant contends that this finding is unsupported by the evidence. The record establishes that Lutter testified on direct examination that "the two subjects were following or mimicking each other's movements but not having any kind of communication." TR1 at 18:5-7. Lutter also testified that "it appeared that they were following each other . . ." and that "[i]f one subject would start veering off to the left, the second subject would also go to the left." Id. at 13:14-15, 22-24. Lutter later testified that "one subject [led] and the second subject follow[ed]. . . ." Id. at 16:12-13. Lutter further testified that "[t]hese two individuals proceeded directly to the restroom, mimicking each other's move [sic] without any kind of communication whatsoever." Id. at 20:10-12.
On cross-examination, Lutter stated that he followed the two subjects because of "[t]he way that Mr. Espinoza followed Mr. Cabadas." TR1 at 89:1-2. Later, Lutter explained during cross-examination precisely what he meant when he used the term "mimic." Id. at 61:13-62:10. He stated that the term "mimic" referred to the movements of the two men in close proximity to each other as they passed through the airport. Id. The two men mimicked each other in that one man followed the other around objects in the airport satellite, into restrooms, and through the ramp to the main terminal. Id. Lutter testified that the men also stopped walking and resumed walking at the same time during their trip through the airport, both left through the same door, and both stopped in the same general location once outside the terminal. Id. Therefore, based on Lutter's detailed testimony, the Court finds that sufficient evidence exists in the record to support the magistrate judge's factual finding that Investigator Lutter observed the two subjects mimic each other's movements.
2. Reasonable Suspicion
Escatera-Cabadas also objects to the magistrate judge's conclusion that reasonable suspicion existed to lead to a detention and search of Escatera-Cabadas. The Court has carefully reviewed the Report and Recommendation and does not find this alleged conclusion. Accordingly, the Court will not address the objection.
3. Consent to Search
Escatera-Cabadas raises a third objection to the magistrate judge's legal conclusion that he voluntarily consented to the searches of his person and luggage. The defendant does not contest the voluntariness of his encounter with law enforcement officers. He objects only to the magistrate judge's finding that the search was consensual.
In considering all the circumstances surrounding the encounter and the search, the magistrate judge found the search was consensual. The magistrate judge based this conclusion on several factors, including that "Escatera-Cabadas provided the California identification card and the Southwest Airlines Frequent Flyer boarding pass/card without objection and without hesitation to Investigator Lutter[,]" and that "[t]here was no objection by Escatera-Cabadas during the search." Id. at 10-11. Furthermore, the magistrate judge found no evidence in the record to suggest that the defendant's actions of providing his carry-on bag and lifting his arms to facilitate the search were conducted in acquiescence to authority or to a display of force or firearms. Id. at 11. The magistrate judge also noted that Escatera-Cabadas did not object to or resist Investigator Lutter's request to look in his shoe. Id.
The Eighth Circuit has held that voluntariness is determined by examining the totality of the circumstances. United States v. Hathcock, 103 F.3d 715, 719 (8th Cir. 1997) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)). The test for totality of the circumstances in determining the voluntariness of consent "necessitates a highly individualized, fact specific inquiry." United States v. Gaviria, 775 F. Supp. 495, 497-98 (D.R.I. 1991). Several individual characteristics aid in the determination of whether the consent given was voluntary under the circumstances. Hathcock, 103 F.3d at 719-20. Escatera-Cabadas cites to several factors that the Court should consider in determining whether the consent he gave was voluntary. These factors include: 1) age; 2) educational background; 3) language fluency; 4) the suspect's criminal record or employment history; 5) whether Miranda warnings were given; 6) whether the defendant was advised of the right to refuse consent; and 7) whether detention occurred prior to consent to search.
First, Escatera-Cabadas argues that his "relatively young" age mitigates in his favor. The record establishes that Escatera-Cabadas was eighteen years old at the time of his arrest. TR1 at 82. Other courts have found a defendant's age to be a compelling factor using the totality of the circumstances test. See Gaviria, 775 F. Supp. at 502 (stating that the defendant's age was one factor that lent credence to his claim that his consent was not voluntary) and United States v. Gallego-Zapata, 630 F. Supp. 665, 666 (D.Mass. 1986) (considering the factor that the defendant was twenty-two years old in determining that his consent was not voluntary). The Court agrees that Escatera-Cabadas' relatively young age mitigates in his favor. Filing No. 33 at 9.
The second factor that Escatera-Cabadas cites is his educational background. Escatera-Cabadas asserts that Investigator Lutter's lack of knowledge of his educational background must also mitigate in Escatera-Cabadas' favor. During his encounter with Escatera-Cabadas, Lutter made no attempt to ascertain the defendant's level of education. However, given Escatera-Cabadas' age, at the very most, he may have completed the equivalent of an American high school education, although his actual level of education may be considerably less. In view of these facts, the Court finds that Lutter's lack of knowledge of his educational level mitigates in Escatera-Cabadas' favor.
The third factor discussed by the defendant is language fluency. After carefully considering of all of the evidence, the Court finds that this factor is the most critical determinant in establishing whether the defendant's consent was voluntarily given. Investigator Lutter's testimony establishes that he knew that Escatera-Cabadas did not speak English. TR1 at 90. The evidence also establishes that Lutter's attempt to communicate in Spanish was, at best, inadequate. His brief conversation with Escatera-Cabadas translates into a jumble of words, phrases, and sentences containing improper pronouns and incorrect verb tenses. On at least two occasions, Lutter incorrectly asks the defendant, "Do I understand?" instead of "Do you understand?" Lutter then attempted to tell Escatera-Cabadas that he was not under arrest, but instead used Spanish words that translate into "you are not arrested." Exhibit 1. Admittedly, the difference is subtle to an English speaker but to the mind of a Spanish speaking suspect, the statement "you are not arrested" could have multiple meanings. The statement could be interpreted as a warning that the person was not presently arrested but that he would be, might be, or could be arrested at any time, if he failed to cooperate with law enforcement.
Referring to his own ability to speak Spanish, Lutter erroneously told Escatera-Cabadas "habla español un poquito," which translates as "you/he/she/it speak a little [Spanish]." Obviously, Lutter intended to say "hablo español un poquito," meaning "I speak a little Spanish." Lutter also stated to Escatera-Cabadas "soy policia, drogas,)entiendo?," which translated, means "I am police, drugs, Do I understand?" Id. As spoken, this statement is literally meaningless. Not only did Lutter make consistent speaking errors throughout his conversation with Escatera-Cabadas, his Spanish vocabulary was so lacking that he found it necessary to convert to speaking English to ask a simple command B "Remove your shoe."
The language barrier in this case is particularly troublesome to the Court in light of Lutter's failure to summon the assistance of Officer Milone to serve as a translator/interpreter even though she was only thirty feet away from him. That Lutter believed he was in control of the Spanish language is simply incredible. Lutter's inability to correctly speak the simplest of phrases and commands such as "Do you understand?" "I speak a little Spanish," and "Remove your shoe," illustrates that he was anything but "in control" of the Spanish language.
Arguably, no speaking error, standing alone, would necessarily be enough to confuse a Spanish speaker. However, the cumulative effect of Lutter's multiple speaking errors coupled with his inability to ask the defendant in Spanish to remove his shoe followed by the defendant's hesitation after Lutter issued the command in English mitigates in favor of finding that the consent was involuntary.
In Gaviria, the court faced a situation wherein an officer spoke to a Spanish-speaking individual intermingling the use of two languages. Gaviria, 775 F. Supp. at 499. The officer began questioning the suspect by stating, "I love myself Detective Thomas Underhill." Id. at 501. The officer also told the defendant "excuse me, answer" and "I speak more slowly" when attempting to ask the defendant to speak slower. Id. Later, in an attempt to give the defendant Miranda warnings, the officer said, "I don't say anything," when he was attempting to tell the defendant to be silent. Id. The court ruled that the communication difficulties between the officer and the defendant in that case were significant enough to find that the consent to search was not valid. Specifically, the court stated that it was clear that the officer did not grasp the proper use of tenses or pronouns. The court noted that "[v]ery few of us are in a position to adequately understand how important subtle differences in pronunciation are." Id. The court explained:
When viewed individually, Mr. Gaviria's responses to some of the questions posed by Detective Underhill show that a limited amount of communication did occur. Other segments of the conversation, as reported by Detective Underhill, clearly could not have made sense to the defendant, since a portion of what the Detective said was literally meaningless in Spanish. Looking at the conversation as a whole, this Court does not feel comfortable second guessing what was, and what was not, comprehensible. It is unreasonable to assume that Mr. Gaviria voluntarily consented to the search, simply because he eventually bent down and removed items from the bag.Id.
The similarities between the encounters in Gaviria and the present case are significant. While it can be argued that Escatera-Cabadas ultimately complied with Lutter's Spanish-English commands, compliance does prove that the defendant's consent was voluntary. Based on the addendum received in evidence, this Court, too, does not feel comfortable second guessing which of Lutter's statements and commands were comprehensible to Escatera-Cabadas which were not. Therefore, the Court must find that the language barrier in this case vitiated the defendant's consent.
The fourth factor Escatera-Cabadas raises is his lack of criminal record/employment history. While this factor may be considered in determining consent, there is no evidence in the record relating to either the defendant's criminal record or his employment history. Therefore, the Court will not address this factor in determining the validity of the consent.
Fifth, Escatera-Cabadas contends that he received no Miranda warnings prior to the search. The Eighth Circuit has stated that one of the factors that is relevant in determining voluntariness of consent is whether these warnings were given before the search. Chaidez, 906 F.2d at 381. Again, this factor is not the only one that determines whether the consent was voluntary. However, it is one that, along with several other factors, comprises the totality of the circumstances. The record establishes that the Commercial Interdiction Unit's office at the airport has paperwork printed in Spanish, which the Court presumes to be rights advisory forms containing the Miranda warnings. TR1 at 112. Lutter testified that at all times this paperwork was accessible to him and his fellow officers. Lutter also testified that he regularly does not use the Spanish language documents and consciously chose not to use them during his encounter with Escatera-Cabadas. Given the language barrier resulting from Lutter's deficiencies in the Spanish language, Miranda warnings should have been given. Because they were not, the Court finds that this factor also mitigates in favor of the defendant.
The sixth factor that Escatera-Cabadas addresses is that he was not told that he had the right to refuse to consent to the search. The Eighth Circuit has held that "[a]wareness of the right to refuse is not necessary for a consent to be voluntary." United States v. Barahona, 990 F.2d 412, 417 (8th Cir. 1993) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973)). Indeed, as the Eight Circuit has stated, knowledge of the right to refuse to consent is not the "sine qua non of an effective consent to a search." Id. at 234. However, while not necessary, it is still a factor that is part of the totality of the circumstances test. While this factor is not an indispensable condition, it is a condition in determining consent nonetheless. As the United States District Court for the District of Massachusetts has stated, "[a]lthough telling a suspect that he or she need not consent to a search is not required in order for a court to conclude that the consent was freely given, if done, it is strong evidence of voluntariness." Gallego-Zapata, 630 F. Supp. at 668 (citing Schneckloth, 412 U.S. at 249). The court further stated that if the warning is not given, "it can be part of the totality of the circumstances that indicate that consent was not truly voluntary." Id. (citing Schneckloth, 412 U.S. at 249). Because the record establishes that Miranda warnings were not given, the Court finds that the defendant's lack of knowledge of his right to refuse consent also mitigates in his favor.
The seventh factor Escatera-Cabadas addresses is that he was detained and not free to leave at the time he allegedly gave his consent to search. Considering Lutter's imposing presence coupled with his deficient use of command Spanish, the Court finds that it would not be unreasonable for Escatera-Cabadas to believe that he was not free to leave. The question arises: Would an American citizen arriving at a foreign airport, who is approached by a 6'5" 280 pound police officer speaking command English fraught with ambiguity and grammatical errors feel free to walk away from the officer? Because the answer cannot be known, the Court finds that this factor must also mitigate in favor of Escatera-Cabadas.
The United States Supreme Court has ruled that consensual encounters involving a police officer and a private citizen do not implicate the Fourth Amendment. Florida v. Bostick, 501 U.S. 429, 434-35 (1991). The Court declared that "the encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature." Id. at 434. In the present case, the Court finds that the totality of the circumstances establish Escatera-Cabadas did not voluntarily consent to the search of his baggage, his person, and his shoe. The Court finds that the government has failed to prove by a preponderance of the evidence that Lutter's search was made pursuant to voluntary consent. Accordingly, the Court will sustain the defendant's statement of objections and grant his motion to suppress evidence.
B. Defendant Alejandro Espinoza
Alejandro Espinoza objects to the magistrate judge's factual finding that "Investigator Lutter observed the subjects mimic each other's movements." RR at 3. Espinoza also objects to the magistrate judge's factual finding that "[b]ased upon the connection between Escatera-Cabadas and Espinoza, and the nod towards Espinoza after the drugs were found in Escatera-Cabadas' shoe, Investigator Lutter believed he had probable cause to detain Espinoza." RR at 6. Espinoza further objects to the magistrate judge's legal conclusion that "there was sufficient indicia of [Escatera-Cabadas and Espinoza's] connection to warrant further inquiry by the officers[,]" and that "[t]here was sufficient articulable suspicion that Espinoza was engaged in criminal activity with Escatera-Cabadas to warrant an investigative detention under Terry v. Ohio, 392 U.S. 1 (1968)." RR at 11. Finally, Espinoza objects to the magistrate judge's legal conclusion that Espinoza voluntarily consented to the search of his person and luggage, and his recommendation that Espinoza's motion to suppress should be denied. RR at 11-12.
1. Mimicking Conduct
Espinoza first objects to the magistrate judge's finding that Investigator Lutter's observation of the two men mimicking each others movements is unsupported by the evidence. The Court has considered and overruled the identical objection raised by codefendant Escatera-Cabadas. Therefore, the Court will not readdress the objection.
2. Probable Cause for Detention
Espinoza also objects to the magistrate judge's factual finding that Investigator Lutter believed he had probable cause to detain Espinoza based on the connection between the Espinoza and Escatera-Cabadas and the nod towards Espinoza. Espinoza argues that the evidence presented at the hearing does not demonstrate any connection between the two defendants and that the evidence does not demonstrate that Escatera-Cabadas was nodding at Espinoza. Lutter testified that he observed the two subjects mimic each other's movements. Additionally, Lutter testified that Escatera-Cabadas' nod toward the direction of Espinoza confirmed his suspicion that the two men were traveling together. TR1 at 45. Lutter further testified that at the time he first approached Espinoza he believed that he had probable cause to detain Espinoza, and that if Espinoza had chosen not to cooperate, Lutter would have had grounds to detain Espinoza for questioning. Id. at 54. Therefore, based on the uncontradicted testimony of Investigator Lutter, the Court finds sufficient evidence to adopt the magistrate judge's finding that Lutter believed that he had probable cause to detain Espinoza.
3. Articulable Suspicion
Espinoza also objects to the magistrate judge's legal conclusion that there were sufficient indications of a connection between Escatera-Cabadas and Espinoza to warrant further inquiry by the interdiction officers. Espinoza also objects to the magistrate judge's related legal conclusion that sufficient articulable suspicion existed that Espinoza was engaged in criminal activity with Escatera-Cabadas to warrant a Terry investigative detention. The magistrate judge noted that the connection between the two men was not completely clear, but he determined that the association was close enough to warrant the inquiry by the officers. RR at 11. The magistrate judge pointed out that the "mirroring" behavior while the two men were in the airport terminal, the nod from Escatera-Cabadas while Escatera-Cabadas was being arrested, and Espinoza's movement away from the curb after Escatera-Cabadas made the nod were sufficient to warrant the Terry investigative stop. Id.
A reasonable stop and frisk under the Fourth Amendment must be supported by facts showing more than that a defendant accompanied or was in proximity to a person about whom the police had a reasonable articulable suspicion to stop or probable cause to arrest. United States v. Perez, 732 F. Supp. 347, 348 (E.D.N Y 1990). The Court finds that Lutter did not have a reasonable suspicion to justify the investigatory stop of Espinoza based on the discovery of drugs on the person of his presumed travel partner, Escatera-Cabadas, and/or by Escatera-Cabadas' alleged nod in the direction of Espinoza. Therefore, the Court does not adopt the magistrate judge's legal conclusion that sufficient articulable suspicion existed to warrant a Terry investigative stop.
4. Consent to Search
Finally, Espinoza objects to the magistrate's judge's legal conclusion that he voluntarily consented to the search of his person and his luggage, and to the magistrate judge's subsequent recommendation that Espinoza's motion to suppress should be denied. The magistrate judge found that Investigator Lutter put the same questions and requests to Espinoza as he had earlier to Escatera-Cabadas, and Espinoza had responded similarly. Id. at 11. The magistrate judge also found that Lutter told Espinoza that he was not under arrest before Lutter requested consent to search Espinoza and his luggage. Id. The magistrate judge further found that Espinoza then consented by raising his arms and by allowing Lutter to inspect his shoe. Upon inspecting the shoe, Lutter found what he believed to be drugs and arrested Espinoza. Id.
The facts surrounding Lutter's search of Espinoza's person and shoe are similar to Lutter's search of Escatera-Cabadas. As discussed above, Lutter's imposing presence coupled with his deficient Spanish speaking skills may well have led Espinoza to believe that he was not free to refuse consent and to walk away. It is entirely reasonable that Espinoza complied with Lutter's commands not because he wished to but because he was confused by Lutter's statements and was intimidated by his imposing presence. Because the Court finds that the government has not met its burden of proof of proving a valid encounter and search based on voluntary consent, the Court will sustain the defendant's objection and will grant his motion to suppress evidence.
IT IS THEREFORE ORDERED that
1. The statement of objections to the magistrate judge's report and recommendation (Filing No. 34) filed by defendant Juan Escatera-Cabadas is sustained in part and overruled in part;
2. The statement of objections to the magistrate judge's report and recommendation (Filing No. 33) filed by defendant Alejandro Espinoza is sustained in part and overruled in part;
3. The magistrate judge's report and recommendation (Filing No. 31) is not adopted for the reasons cited above;
4. The motion to suppress evidence (Filing No. 20) filed by defendant Juan Escatera-Cabadas is granted; and
5. The motion to suppress evidence (Filing No. 21) filed by defendant Alejandro Espinoza, is granted.