Opinion
EP-00-CR-745-DB.
September, 2000.
MEMORANDUM OPINION AND ORDER
On this day, the Court considered four motions Defendant Javier Gomez filed in the above-captioned cause: (1) a "Motion to Suppress Evidence," filed August 23, 2000; (2) a "Motion to Suppress Statements," filed August 23, 2000; (3) a "Motion to Disclose the Identity of Informer" ("Motion to Disclose"), filed August 30, 2000; and (4) "Motion for Additional Discovery" ("Motion for Discovery"), filed August 30, 2000. On August 30, 2000, the Government filed a Response to Defendant's Motions to Suppress but did not file any response to Defendant's Motion to Disclose or Motion for Discovery. The Court held a hearing on the matter on August 31, 2000.
This fourth motion is appended to a document labeled "Brief in Support of Defendant's Motion to Disclose Identity.
After careful consideration of the evidence and arguments presented, the Court is of the opinion that Defendant's Motion to Suppress Evidence should be granted in part and denied in part, and all other motions denied for the reasons that follow.
FACTS
Sometime in May 1999, United States Customs Service ("Customs") Special Agent Ruben Atadero ("Atadero") received a telephone tip from an anonymous individual that certain suspicious activity was taking place at a residence located at 9817 Daphne Court in El Paso, Texas (the "Daphne residence" or "residence"). Essentially, the tipster told Atadero that many cars bearing Mexico licence plates and many rented moving trucks were frequenting the residence at late hours, and that unknown persons were loading and unloading items from those vehicles. Based on his experience investigating drug crimes and drug smuggling operations, Atadero testified, he suspected the residence was being used to store and/or repackage drugs. Atadero began sporadic surveillance on the Daphne residence, driving by the home, taking down license plate numbers and generally observing the activities.
The moving trucks were the type commonly rented to the public by specialty companies such as Penske, Ryder and U-Haul.
On April 11, 2000, Atadero received another anonymous telephone tip that there was a large yellow moving van parked at the residence. The tipster did not mention drugs at the residence. Atadero gathered several other agents and went to the residence, where they saw a yellow Penske truck backed up to the garage door in the driveway. Atadero and Agent Richard Nicoloff ("Nicoloff") decided to approach the residence and speak with the residents. Sometime around 1:00 p.m. they walked up to the door and knocked. Maria del Socorro Gomez ("Maria Gomez"), Defendant's wife, answered the door. Although the agents' tone, demeanor and exact words are in dispute, essentially, the agents identified themselves as Customs agents, stated that they were conducting a narcotics investigation and asked if they could search the house. Maria Gomez stated that the agents should speak to her husband and retreated from the door to get Defendant.
Defendant appeared and asked the agents what they wanted. Again, the agents identified themselves, stated that they were conducting a narcotics investigation and asked if they might search the house. Defendant declined. The agents asked if they could search the outside of the house along with the garage. Defendant still declined.
Here, again, the testimony differs. Defendant contends that he closed the door on the agents after he declined to allow them to search. He further testified that the agents then banged on the door for twenty minutes, and that he (Defendant) told them to keep it down because his grandchild was asleep. The Government, meanwhile, contends that Defendant never closed the door and was always cooperative.
Eventually, after some discussion, Defendant agreed to allow the agents to search the garage. Still standing behind the closed screen door, Defendant pointed backward into the house toward the garage, motioning to the agents to meet him in front of the garage doors. The agents went to the garage, where Defendant opened one of two doors from the inside. They entered and looked around. There was a trap door in the ceiling leading to a crawlspace, which the agents searched, finding nothing. Nicoloff smelled a strong odor of detergent, which the agents believed to be a "masking agent" used to cover up the odor of marijuana.
Defendant contends that he said the agents could "look" into the garage and that he meant he would open the garage door and Atadero and Nickoloff could literally peer from outside the garage into the garage. It did not mean, Defendant contends, that the agents could enter the garage to search. In any event, the agents did not find any evidence inside the garage.
Atadero asked Defendant about the truck — i.e. what was it doing there? Defendant stated that a person named Ben had the keys and that his cousin had parked it there. At some point, the agents went through a door leading past a utility room containing a clothes washer and dryer, and on into the house. According to Atadero, the agents asked Defendant if they could search inside the house, to which Defendant responded "okay" after certain assurances that they would be quiet and would not disturb Defendant's sleeping grandchild. Atadero further testified that Defendant refused to give a written consent, stating, "I've already given you permission, I don't need to sign any form." Defendant, on the other hand, testified that he never gave consent, oral or otherwise, for the agents to search beyond the garage.
At the hearing, the Government introduced into evidence a blank form labeled in Spanish "Consentimiento a Cateo" (consent to search), which purportedly is the form Defendant refused to sign. However, beyond the preprinted words on the page, there are no markings on that document to indicate that it was ever presented to Defendant or that Defendant refused to sign the form.
Inside the house, the agents saw a plastic bag inside the washer, which turned out to contain marijuana. As they continued into the house, the agents came upon a small room that appeared to be an office, where the agents peered in. The office had a tile floor on which Atadero saw small black granules lying all over. He also noticed a pair of scissors with a green residue on top of a file cabinet and several rolls or packages of vacuum-sealer-bags and cardboard boxes bearing the logo "Victory Packaging." Atadero smelled marijuana smoke coming from a small nearby bathroom. He went deeper into the home to investigate, where he came upon a young woman inside. He questioned the woman, who the agents determined to be Maria Gomez's cousin.
Atadero went back outside, where Nicoloff and the other agents already had entered the Penske truck using keys obtained from Defendant Benjamin John Lowe ("Lowe"), who other agents had detained in the back yard along with Defendant Angel Valenzuela ("Valenzuela"). Atadero stepped into the back yard and noticed a garbage can immediately behind a tall rock wall. Upon closer inspection, Atadero found a plastic bag with what appeared to be some type of plastic wrapping. Inside the truck, the agents found some 172.5 pounds of marijuana, cardboard boxes bearing the label "Victory Packaging," and a vacuum sealing machine. Defendant was placed under arrest.
There was no testimony regarding how the agents obtained Lowe's keys to open the truck or when and why agents entered the back yard. However, Defendant repeatedly testified that it was not his truck. Hence, Defendant has no standing to challenge any governmental entry to the truck. See United States v. Mendoza-Burciaga, 981 F.2d 192, 196 (5th Cir. 1992).
The testimony at the hearing was unclear on this point. Essentially, it appears that Atadero found certain plastic wrappings in or around the garbage cans, presumably used to package the marijuana for importation. The Government offered Government's Exhibits 4 through 7 into evidence, which are photographs purportedly showing the location of the garbage cans and their contents.
Agent Brian Keith Johnson ("Johnson") arrived some fifteen minutes later to assist Nicoloff to interview Defendant. At some point, an agent gave Defendant a Miranda warning. Defendant indicated he knew his rights and agreed to waive those rights. At the hearing, Defendant testified that he made three statements. Defendant testified at the hearing that the first and second (exculpatory) statements are true and the third (inculpatory) statement is false. Defendant made the second and third statements after he received a Miranda warning. Johnson testified that the agents did not yell at Defendant or threaten him in any way. According to Defendant, however, the agents told Defendant that Lowe and Valenzuela already had confessed and implicated Defendant, threatened to arrest his wife also, and threatened to call Child Protective Services to take his grandchild if he did not confess to knowing that the truck contained marijuana. They also allegedly told Maria Gomez that she would lose her job/career as a nurse if she did not convince Defendant to admit his guilt. According to Defendant, he confessed only after his wife told him to "tell them a lie, I don't want to go to jail," whereupon he finally broke down, crying — reciting the third story described above — so they wouldn't take his wife to jail.
Although Johnson could not recall whether he gave Defendant a Miranda warning, Defendant confirmed during testimony that Johnson did give him a warning. Also, Johnson testified that Nicoloff already had given Defendant a Miranda warning when he (Johnson) arrived some fifteen minutes after Defendant's arrest.
Actually, Defendant testified first that he made two statements, and later that there he made three. First, as described above, Defendant told Atadero that he knew nothing about the truck and that one Ben (Lowe) had the keys. Defendant then stated to Johnson that he knew nothing about the drugs found in the truck; that his cousin (Valenzuela) was going to do some "tile work" for him and brought some tile samples to him in the truck; that he (Defendant) left the house that morning to run some errands and meet his brother-in-law; and that the truck was parked in the street when he left and in the driveway when he returned. Finally, Defendant told the agents that Valenzuela asked Defendant to allow him (Valenzuela) to park the truck there; that Valenzuela offered him two-hundred dollars or some "tile work" in exchange and he (Defendant) knew there was marijuana and a vacuum-packing machine inside the truck.
At the hearing, Defendant first testified that he made statements one and two before receiving a Miranda warning. However, he testified later, changing his testimony, that the Miranda warning was given sometime before the second statement. In any event, it is clear that Defendant received a Miranda warning prior to the third statement.
On June 14, 2000, the Grand Jury indicted Defendant, Lowe and Valenzuela with three counts: conspiracy to possess with intent to distribute fifty kilograms or more of marijuana; possession with intent to distribute fifty kilograms or more of marijuana; and maintaining a residence for the purpose of possessing and distributing marijuana
The instant motion followed.
DISCUSSION
Through his Motion to Suppress Evidence, Defendant asks the Court to suppress "[a]ll tangible evidence seized by law enforcement officers or others in connection with the search of the residence . . . or in connection with the investigation of this case." Through his Motion to Suppress Statements, Defendant asks the Court to suppress "any and all confessions and statements taken from" Defendant because they "were involuntary and were coerced and enticed" and Defendant "was deprived of right to counsel and . . . did not make an intelligent and knowing waiver of that right." Finally, through his Motion to Disclose and Motion for Discovery, Defendant seeks either the name of the informant that lead Customs to Defendant's house or discovery of certain "informant's reports" and "surveillance logs."
A. Evidence
The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." "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 v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967)). Thus, the Fourth Amendment protects an individual's reasonable expectation of privacy from certain types of government intrusion. See Katz, 389 U.S. at 350, 88 S.Ct. at 510.
In general, warrantless searches and seizures are per se unreasonable and 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). Without question, Defendant has a subjective expectation of privacy in his home and its curtilage, including the home's fenced/gated back yard, which society is prepared to recognize as reasonable. See United States v. Cardoza-Hinojosa, 140 F.3d 610, 613-14 (5th Cir. 1998). Hence the agents' entry into Defendant's home and back yard constitutes a search in Fourth Amendment parlance.
Here, because the agents acted without a warrant, the Government bears the burden to 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).
The Court finds that the Government has not met its burden. First, Defendant freely admits that he gave some consent, but contends that he only authorized the agents to look into the garage, not search. Because the agents found no evidence within Defendant's garage, there is no need to determine the scope of that consent. The Government, however, contends that Defendant also consented to the agents entering to search the house. In this respect, there simply is no evidence to show that Defendant gave such consent. The Government offered evidence that Defendant orally consented to a search of his home but refused to sign a written consent. Although oral consent can be valid, see, e.g. United States v. Garza, 118 F.3d 278, 283 (5th Cir. 1997), the Government has not proven that Defendant orally consented. Atadero says Defendant did and Defendant says he did not. Here, because of the conflicting testimony, the Court finds Defendant's testimony credible on this point simply because it is the most reasonable interpretation. The Court finds it incredible that Defendant, having just passed through the hallway past the utility room to the garage, and knowing that there were granules of marijuana on the floor of the utility room, scissors with marijuana residue on it in clear view and probably someone inside smoking marijuana, would allow the agents to enter through that back door. Moreover, Nicoloff, supposedly present when Defendant allegedly gave oral consent, was also present during the hearing and did not testify.
Notwithstanding, the Court finds that the only reasonable interpretation of Defendant's consent to "look into" the garage is that the agents could go into the garage and look around, not simply stand outside and look in. See United States v. Rich, 992 F.2d 502, 505 (5th Cir. 1993) (noting that standard for determining scope of consent is reasonableness).
Although the Government in its Response focuses on the voluntariness of Defendant's consent, the issue here is whether Defendant gave consent in the first place. Hence, voluntariness is not at issue because the Court finds that Defendant did not consent (or, at least the Government did not prove by a preponderance of the evidence that he did).
Furthermore, the Government made no effort to establish any basis for entering Defendant's back yard, where the agents found certain plastic wrappings and other ostensibly incriminating evidence. Government's Exhibit 7, which shows the approximate location of the garbage area, shows a relatively tall rock-wall fence with several garbage cans and other refuse pushed up against the wall. There is a gate leading from the driveway to the back yard, open in the photograph but bearing some sort of latching mechanism. From this photograph, the Court finds that the evidence was found inside the home's curtilage. In short, the Government has not met its burden to show that any exception to the warrant requirement applies. Hence, the Court is of the opinion that all evidence seized from within Defendant's house, as well as any evidence seized from the garbage area of Defendant's back yard should be suppressed, and, accordingly, Defendant's Motion to Suppress Evidence should be granted in part and denied in part.
The Court notes that Defendant's Motion to Suppress Evidence does not expressly state that Defendant seeks to suppress any of the evidence found within the Penske truck. However, Defendant does ask the Court to suppress "[a]ll tangible evidence seized by law enforcement officers or others in connection with the search of the residence . . . or in connection with the investigation of this case" which could include the evidence seized from the Penske truck. In the interest of clarity, the Court is of the opinion that to the extent Defendant seeks to suppress any evidence seized from within the Penske truck, Defendant's motion should be denied. As noted above, Defendant has not shown that he has standing to challenge that seizure. See Mendoza-Burciaga, 981 F.2d at 196.
B. Statements
Defendant next contends that all three statements he made violate Miranda because Defendant did not receive any warning of his constitutional rights and/or are involuntary because garnered by government overreaching and coercion. The Court disagrees.1. Miranda
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 id. at 479, 86 S.Ct. at 1630.
Miranda applies only to custodial interrogation. See United States v. Bengivenga, 845 F.2d 593, 596 (5th Cir. 1988). A Defendant is "in custody" 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." Id.
Here, Defendant clearly was not in custody when he gave his first statement. He was standing in or near his garage, which the agents had just searched and found nothing. Hence, no Miranda warning was required for the first statement. With respect to the second and third statements, there is no question about whether Defendant was in custody when he made the statements. Nor is there any question that Defendant was interrogated — the agents asked him about his knowledge of the drugs inside the truck. Rather, Defendant contends that he did not agree to waive his rights and speak.
A Miranda waiver must be knowing, intelligent and voluntary. See Moran v. Burdine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1140-41, 89 L.Ed.2d 410 (1986). Here, the undisputed evidence shows that a Miranda warning was given to Defendant and that he indicated he understood the rights. However, Defendant contends he did not waive those rights. Defendant's contention is belied by Defendant's second statement, which he made after receiving the Miranda warning and which he characterizes as "the truth." Defendant did not need to make any statement, but chose to make an exculpatory statement. Hence, the Court finds that Defendant waived his rights knowingly and intelligently. Defendant waived his right to remain silent and his right to have an attorney present and, thus, cannot now claim that the agents violated Miranda.
2. Voluntariness
Next, Defendant contends that, even if the statements do not violate Miranda, the statements should not be admissible because they were involuntarily made. Again, the Court disagrees.
A confession is admissible if voluntarily given. See 18 U.S.C.A. § 3501(a) (West 1985). Defendant having made a claim of involuntariness, the burden falls to the Government to show by a preponderance of the evidence that Defendant voluntarily waived his rights and that her statements were made voluntarily. See United States v. Restreppo, 994 F.2d 173, 183 (5th Cir. 1993).
"A confession is voluntary if, under the totality of the circumstances, the statement is the product of the accused's free and rational choice[,]" id. (internal quotation marks removed) (quoting United States v. Doucette, 979 F.2d 1042, 1045 (5th Cir. 1992)), "in the absence of official overreaching, in the form of either direct coercion or subtle psychological persuasion." Id. Among other factors, a court should take into consideration the following: (1) the time elapsed time between arrest and confession; (2) the defendant's understanding of the nature of the offense; (3) whether the defendant knew he need not speak; (4) whether the defendant knew she had the right to have an attorney present; and (5) whether the defendant actually had counsel at the time he made a statement. See 18 U.S.C.A. § 3501(b); see also United States v. Perez-Bustamante, 963 F.2d 48, 51 (5th Cir. 1992).
Here, the entire episode — from the agents' knock on Defendant's door through Defendant's statements — took no more than three or four hours. Defendant testified that the agents came to his house around 1:00 p.m., and Maria Gomez testified that she returned to the house around 3:30 p.m., shortly before Defendant made the third statement he seeks to suppress. Thus, there was no significant time lapse pressuring Defendant. Moreover, Nicoloff and Atadero informed Defendant from the outset that the agents were conducting a narcotics investigation and were looking for drugs. Hence, previously convicted of a narcotics crime, Defendant surely knew the seriousness of being involved with a federal drug crime. Finally, Defendant made both incriminating statements after having heard a Miranda warning. However, he chose to waive his right to counsel and make a statement. On balance, nearly all factors indicate that Defendant's statement was voluntary. Thus, the Court finds that the Defendant's statements are admissible, and Defendant's Motion to Suppress Statements should be denied.
With respect to Defendant's contention that the agents threatened to arrest his wife and take his children, the Court finds that neither Defendant nor his wife, Maria Gomez, testified credibly as to that point. Moreover, both Atadero and Johnson testified that they made no such threats.
C. Identity of Informant
Finally, Defendant asks the Court to order the Government to reveal the name of the "confidential informant" that led the agents to Defendant's home or, alternatively, to order discovery of "surveillance logs" and similar material. The Court finds no merit to Defendant's Motion to Disclose and Motion for Discovery.
In confidential informant cases, in order to order disclosure, the Court "must determine and balance: (1) the level of the informant's involvement in the alleged activity, (2) helpfulness of disclosure to the asserted defense, and (3) the government's interest in nondisclosure." United States v. Singh, 922 F.2d 1169, 1171-72 (5th Cir. 1991). Ultimately, the decision "turns upon whether the disclosure of the informant's identity or communication is relevant and helpful to the defendant." United States v. Sanchez, 988 F.2d 1384, 1391 (5th Cir. 1993).
The Government did not prepare a response to Defendant's Motion to Disclose and Motion for Discovery, which Defendant filed one day prior to the hearing on Defendant's other motions. Notwithstanding, the Court assumes that the Government's reasons for keeping the informant's identity confidential are those repeatedly upheld as valid in informant-identification cases. See, e.g., Sanchez, 988 F.2d at 1391 (noting informant secrecy designed to further and to protect public's interest in effective law enforcement and that "citizens have an obligation to inform law enforcement organizations of their knowledge about criminal activity"). Moreover, it is not clear that the Government knows the informant's identity in any event.
Here, the Court finds no reason to disclose the informant's identity. More aptly referred to as an anonymous tipster, the Court finds that the confidential informant had little, if any, involvement with the events taking place at Defendant's home. Although Defendant states that he believes "the informant was present during the time of the offense and can testify that when he, the defendant[and (sic)] Angel Valenzuela . . . looked into the penske [sic] truck there was no marijuana present," Defendant provides no basis upon which he bases that contention. If the informant was present as alleged, Defendant apparently already knows the informant's identity, since Defendant, too, was present. Furthermore, because Valenzuela was also present, this is not a case where the defendant and the informant are the only witnesses to an alleged crime. See, e.g. Rovario v. United States, 353 U.S. 53, 61, 77 S.Ct. 623, 628, 1 L.Ed.2d 639 (1957).
Furthermore, presumably Defendant intends to establish that Defendant knew nothing of the marijuana in the truck, and the informant could testify that Defendant looked in the truck while the informant was present and there was no marijuana inside. To the contrary, such testimony would establish only that Defendant once looked into the truck at a time when there was no marijuana therein. It does not speak to Defendant's knowledge of a conspiracy to possess marijuana, his intent to possess marijuana and his knowing maintenance of a residence to facilitate the distribution of marijuana.
Finally, the Court finds further support for denying Defendant's Motion to Disclose in this case because the informant's identity is not relevant to the Government's burden on Defendant's Motions to Suppress. Most disclosure issues arise in the context of using an informant to establish probable cause to justify a warrantless search. See, e.g., Rovario, 353 U.S. at 61, 77 S.Ct. at 628. Here, the agents merely approached Defendant and asked him to consent. There is no probable cause requirement for police officers to ask a citizen to consent to a search. Thus, even without considering the Government's reasons for non-disclosure, Defendant falls far short of showing even some relevant need for the informant's identity.
With respect to Defendant's request for surveillance logs and the like, the Court is of the opinion that Defendant's motion should be denied. First, Defendant makes no showing of any need for such logs, if any exist. Second, even without the identity of an informant, Defendant is not entitled to information the agents obtained from sources independent to the confidential tip, such as surveillance. Cf. United States v. Mendoza-Burciaga, 981 F.2d 192, 195-96 (5th Cir. 1993). Here, the informant simply told Atadero about certain suspicious activity — multiple cars with Mexico license plates and rented moving vans coming and going at all hours of the night — taking place at the residence. Any surveillance, interrogation and searches taking place thereafter had nothing to do with the events leading up to Defendant's arrest. Thus, the Court is of the opinion that Defendant's Motion to Disclose and Motion for Discovery should be denied.
Accordingly, IT IS HEREBY ORDERED that Defendant Javier Gomez's Motion to Suppress Evidence is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that all evidence seized within Defendant Javier Gomez's home at 9817 Daphne Court or within the home's curtilage as set forth herein is SUPPRESSED.
IT IS FURTHER ORDERED that Defendant Javier Gomez's Motion to Suppress Statements is DENIED
IT IS FURTHER ORDERED that Defendant Javier Gomez's Motion to Disclose the Identity of Informer is DENIED
IT IS FINALLY ORDERED that Defendant Javier Gomez's Motion for Additional Discovery is DENIED.