Opinion
No. CR 05-1616 BB.
October 4, 2005
COURT'S FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER GRANTING SUPPRESSION
THIS MATTER came on for an evidentiary hearing on September 28, 2005, on Defendant's Motion to Suppress [Doc. 20] any and all evidence obtained from the search of Defendant. The Court reviewed the briefs of counsel, adduced evidence, heard the arguments of counsel, and indicated its ruling and reasons therefor in open court. The Court now adopts its in-court findings and makes the following supplemental findings of fact and conclusions of law:
Findings of Fact
1. On July 7, 2005, Special Agent Jay Perry of the Drug Enforcement Agency ("DEA") was at the bus station in Albuquerque, New Mexico, to meet the northbound bus traveling from El Paso. This bus makes a regularly scheduled stop in Albuquerque.
2. Agent Perry approached a 65-year old female, later identified as Maria Romero-Vargas, who was talking on the phone in front of the Albuquerque bus station. Agent Perry displayed his DEA badge and credentials to Ms. Romero-Vargas and asked if she spoke English. The woman indicated she did not. Agent Perry then asked if she spoke Spanish. She confirmed that she spoke only Spanish.
3. Agent Perry asked if Ms. Romero-Vargas had any luggage. Ms. Romero-Vargas indicated she did, looking at the grey bag on the ground in front of her. Agent Perry asked for permission to search her grey bag. The search was negative for contraband. Agent Perry then asked for consent to search her purse which was also on the ground. Ms. Romero-Vargas handed the agent her purse. That search was also negative for contraband.
4. Maria Romero-Vargas never heard Agent Perry request permission to search her person.
5. The Court found Maria Romero-Vargas to be a credible witness and believable when she testified she did not hear or understand that Agent Perry was asking her for consent to search her body.
6. Agent Perry nonetheless patted down Maria Romero-Vargas and felt two hard packages in her underwear. Agent Perry arrested Maria Romero-Vargas. A further search by female DEA agents revealed each of the hard packages contained approximately one kilogram of cocaine.
Conclusions of Law
1. Law enforcement personnel may conduct a search without probable cause pursuant to voluntary consent. Schneckloth v. Bustomante, 412 U.S. 218, 219 (1973).2. In order to be legally valid, an individual's consent to search must be voluntary. United States v. McSwain, 29 F.3d 558, 563 (10th Cir. 1994).
3. In considering whether consent was voluntary, a court should consider the totality of the circumstances. United States v. Zubia-Melendez, 263 F.3d 1155, 1162-3 (10th Cir. 2001). This would include an awareness of the constitutional right to refuse consent, United States v. Manuel, 992 F.2d 272, 275 (10th Cir. 1993); United States v. Jones, 846 F.2d 358, 360-61 (6th Cir. 1988), as well as the age, education, and language skills of the individual questioned. Zubia-Melendez, supra.
4. Based on her lack of understanding of Agent Perry's request to search her body, Maria Romero-Vargas did not give voluntary consent for such a search. United States v. Benitz-Arreguin, 973 F.2d 823 (10th Cir. 1992); United States v. Yousif, 308 F.3d 820 (8th Cir. 2002); United States v. Hernandez, 224 F. Supp. 2d 1156 (W.D. Tenn. 2002); United States v. Hernandez, 944 F. Supp. 847 (D. Kan. 1996); United States v. Gaviria, 775 F. Supp. 495 (D.R.I. 1991).
5. The Government does not maintain that Agent Perry had any legal basis other than consent to search the person of Maria Romero-Vargas, and the search was therefore illegal. The evidence obtained from an illegal search is not admissible. Smith v. Ohio, 494 U.S. 541, 543 (1990); Wong Sun v. United States, 371 U.S. 471 (1963).
Order
Based on the above, Defendant's Motion to Suppress must be GRANTED.