Opinion
Crim. No. 19-1195 MV
2020-01-13
UNITED STATES of America, Plaintiff, v. Manuel DELGADO-SALAZAR, Defendant.
Román R. Romero, Attorney for Mr. Delgado-Salazar. Matthew T. Nelson, Kristopher N. Houghton, Assistant United States Attorneys.
Román R. Romero, Attorney for Mr. Delgado-Salazar.
Matthew T. Nelson, Kristopher N. Houghton, Assistant United States Attorneys.
MEMORANDUM OPINION AND ORDER
MARTHA VÁZQUEZ, UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on Defendant Manuel Delgado-Salazar's Motion to Suppress Evidence [Doc. 27]. The government responded [Doc. 30] and Defendant replied [Doc. 32]. The government filed an Opposed Motion For Leave to File a Supplemental Brief in Opposition to Defendant's Motion to Suppress [Doc. 34]. Defendant responded [Doc. 35] and the government replied [Doc. 36]. The Court granted the government's Motion for Leave to File a Supplemental Brief [Doc. 39]. The government filed a Supplemental Response in Opposition to Defendant's Motion to Suppress Evidence [Doc. 41], and Defendant responded [Doc. 42].
A two-day evidentiary hearing was held on December 13, 2019, and December 18, 2019. The Court took Defendant's Motion to Suppress Evidence under advisement. The Court, having considered the Motion, briefs, relevant law, witness testimony, exhibits, and being otherwise fully informed, now finds that the Motion is not well-taken and will be DENIED .
FACTUAL BACKGROUND
This Motion centers on an encounter between Defendant Manuel Delgado-Salazar ("Mr. Delgado") and Drug Enforcement Agency ("DEA") Special Agent ("SA") Jarrell Perry on an Amtrak train during a brief stop in Albuquerque, New Mexico. In an effort to resolve the factual issues presented in the briefs and to gain clarity on the details of the dispute, the Court held an evidentiary hearing on the Motion. In the interest of brevity and clarity, the Court will cabin its discussion of the facts to those issues material to the disposition of the pending motion. The following represents the Court's findings of fact, based on the parties’ briefing, the testimony of witnesses, and the exhibits.
SA Perry has worked in interdiction with the DEA for approximately twenty years. Transcript of December 13, 2019 Hearing ("Tr.") at 7:11-15, 7:22-24. He has conducted hundreds of encounters in Spanish. Id. at 8:18-19. However, he is not fluent in Spanish. Id. at 51:12-13. On March 28, 2019, SA Perry reviewed a Passenger Name Record ("PNR") in the name of Manuel Delgado. Id. at 9:23-10:4; 12:13-18. SA Perry wished to speak with Mr. Delgado because the PNR reflected one-way travel from San Diego, California, to Newton, Kansas. Id. at 13:5-8. See also Def. Ex. 1. SA Perry testified that one-way travel is often the way that people transporting illegal narcotics purchase their tickets. Tr. at 13:10-12. He also testified that he has made "numerous seizures of people traveling to Newton, then on to Wichita, transporting illegal narcotics." Id. at 14:1-2. SA Perry further testified that the PNR was reserved for the 21st of March for travel on the 24th of March, but was exchanged for travel on the 27th of March. Id. at 14:16-18. He opined that, "[o]ften, passengers that are transporting illegal narcotics don't receive the narcotics on the date they're supposed to travel, so they have to change their date of travel." Id. at 14:22-24.
References to the transcript are to the draft copy.
SA Perry originally testified that the ticket reflected one-way travel to Wichita, Kansas, Tr. at 12:7-8, but later clarified that it was actually Newton, Kansas. Id. at 13:23-25. The train does not go to Wichita, so in order to get there, one would have to get off the train at Newton, Kansas, and then board a bus to Wichita. Id.
SA Perry boarded the train by himself. Id. at 15:17-19. He was dressed in plainclothes. See Id. at 41:4-6. He boarded the first coach car because that is where passengers going to Newton are generally seated. Id. at 17:10-13. He wished to find the individual traveling under the name Manuel Delgado. Id. at 16:12-14. He boarded at the steps in the middle of the car, and walked forward toward the front of the car. Id. at 17:18-22. As he approached the front of the car, passengers were facing away from him, and he approached them from the rear. Id. at 20:2-4. SA Perry observed a male, later identified as Mr. Delgado, sitting in a window seat, and above the seat was a sign indicating "N-E-W," which stood for Newton. Id. at 19:3-5.
Mr. Delgado is twenty-three years old and was born in Mexico. Transcript of December 18, 2019 Hearing ("Cont'd Tr.") at 41:22-42:1. He was seated in the first row of the car, and as such, his row had "a lot more legroom" than the row behind it. Tr. at 20:12-21:11. Mr. Delgado's feet were down, and a black rolling suitcase was sitting in an upright position in front of Mr. Delgado, within a foot of his feet. Id. at 20:12-16; 21:7-8. SA Perry testified that, in his opinion, passengers transporting illegal narcotics may want their bag to be close to their person in order to be able to observe it. Id. at 22:3-7.
SA Perry testified that the aisle seat next to Mr. Delgado, as well as the two seats across the aisleway, were empty. Id. at 19:5-8. Mr. Delgado testified, however, that "there was a lady that was seated next to me. Then there was another person that was on the other side of the aisle." Cont'd Tr. at 44:24-25. Mr. Delgado clarified later in his testimony that when he returned from the bathroom, the lady who had been in the seat next to him was no longer there. Id. at 49:6-7. He further clarified that the seat directly across the aisle from the seat next to him was also empty when SA Perry approached. Id. at 63:1-64:12.
SA Perry testified that when he arrived at Mr. Delgado's row, he stood across the aisleway and began speaking with Mr. Delgado. Tr. at 19:8-9. At this time, SA Perry testified that if Mr. Delgado wanted to get up and leave, he "could have got up and went down the aisleway and got off the train down the steps, or he could have went through the doorway in the car that was right in front of him." Id. at 92:22-25. However, Mr. Delgado testified that when SA Perry first approached him, SA Perry stood in the aisle, partially blocking the exit from the seated area into the aisle. Cont'd Tr. at 26:25-47:19.
SA Perry displayed his DEA badge to Mr. Delgado, Tr. at 22:20-21, and said, "Hello sir, how you doing today? I'm a police officer and we check the train here. May I speak to you for a moment?" Gov't Ex. 1 at 00:08-00:14. Mr. Delgado responded, "Yes." Id. at 00:14. SA Perry asked, "You speak English okay?" Id. at 00:15. Mr. Delgado responded, "Um, no. Just a little bit." Id. at 00:16-00:17. SA Perry then asked, "¿Sí habla español?" ("You speak Spanish?" or "Yes you speak Spanish?"). Id. at 00:17-00:18; Gov't Ex. 1a at 1; Def. Ex. 8 at ¶ 7. Mr. Delgado responded, in English, "Yeah." Gov't Ex. 1 at 00:18.
An audio recording of the interaction between SA Perry and Mr. Delgado was admitted into evidence as Gov't Ex. 1. Mr. Delgado and the government each submitted transcripts of the audio recording, which include translations of the Spanish portions. See Gov't Ex. 1a, Def. Ex. 8. The accuracy of these transcriptions and translations was the focus of much of the hearing, and Mr. Delgado and the government each called expert witnesses to testify about them. This opinion will indicate when the Court relies on the expert testimony in order to reach a conclusion about the contents of the audio recording or the proper translation. However, when the Court is able to resolve a discrepancy on its own by listening to the audio recording, the Court will do so. Here, Defendant's transcript indicates that SA Perry said, "I'm a police officer ... going to check the train here," Def. Ex. 8 at ¶¶ 1, 3, whereas the government's transcript indicates that SA Perry said, "I'm a police officer ... and we check the train here." Gov't Ex 1a at 1. The Court has listened to the audio recording and agrees with the government's transcription of this statement.
SA Perry stated in Spanish, "Yo soy policía" ("I am a police officer"). Gov't Ex. 1 at 00:18; Gov't Ex. 1a at 1; Def. Ex. 8 ¶ 9. SA Perry then stated, "¿Me permite hablar con usted?" Gov't Ex. 1a at 1; Def. Ex. 8 ¶ 11. The government translates this statement as "May I speak with you?" Gov't Ex. 1a at 1. Defendant translates this as either "[D]o you permit me to speak with you?" or "Allow me to speak with you." Def. Ex. 1 at ¶ 11. Mr. Delgado responded, "Sí" ("Yes"). Gov't Ex. 1a at 1; Def. Ex. 8 ¶ 12.
SA Perry then asked to see Mr. Delgado's ticket, which Mr. Delgado provided. Tr. at 24:2-13. SA Perry looked at the ticket for a few seconds, and then returned it to Mr. Delgado. Tr. at 26:9-13. SA Perry proceeded, in very imperfect Spanish, to ask Mr. Delgado a series of questions about his destination, origin, travels, and where he lives. See Gov't Ex. 1 at 00:34-00:01:07; Gov't Ex. 1a at 2-3; Def. Ex. 8 at ¶¶ 17-34. SA Perry also asked Mr. Delgado for his identification. Tr. 25:9-10. Mr. Delgado provided his identification, which SA Perry reviewed and then immediately returned. Tr. at 25:19-20. SA Perry testified that he believed that Mr. Delgado understood the request for identification. Id. at 25:14-15. When Mr. Delgado was asked whether he had understood that SA Perry was asking for his identification, Mr. Delgado testified, "I rectified [SA Perry's question] several times, and, yes, after I corrected him, yes." Cont'd Tr. at 77:1-2.
Mr. Delgado and the government have provided conflicting transcriptions and translations of SA Perry's request for identification. The government transcribes and translates the question as "¿Ah, me permite ver su identifición, por favor?" ("Uh, will you allow me to see your identification, please?"). Gov't Ex. 1a at 3. Defendant transcribes the question as "Uh. ¿Mi [sic.] permite vir [sic.] su identification [sic.] por favor?" Def. Ex. 8 ¶ 29 (alterations in original). Defendant provides three possible translations for this statement, which highlight SA Perry's mispronunciations and mistakes when using the Spanish language. See Def. Ex. 8 ¶ 29.
Next, SA Perry asked Mr. Delgado, in Spanish, if he had any luggage. See Gov't Ex. 1a at 3; Def. Ex. 8 at ¶ 29. Mr. Delgado responded, in English, "Yeah." Gov't Ex. 1a at 3; Def. Ex. 8 at ¶ 40. Mr. Delgado also tapped the black suitcase that was in front of him, and looked at it. Tr. at 26:1-8. SA Perry then stated, "Ok. ¿Me permite registrar por contrabando en su maleta señor?" Gov't Ex. 1a at 4; Def. Ex. 8 at ¶ 44. The government translates this as "Okay. Will you allow me to search for contraband in your suitcase, sir?" Gov't Ex. 1a at 4. Mr. Delgado provides four alternative translations: "Ok. [Do] you permit me to search for contraband in your suitcase, sir?" or "Ok. [Do] you permit me to search because of contraband in your suitcase, sir?" or "Ok. Allow me to search for contraband in your suitcase, sir," or "Ok. Allow me to search because of contraband in your suitcase, sir." Def. Ex. 8 at ¶ 44 (alterations in original).
In response, Mr. Delgado stated, "Ah?" or "Huh?" See Gov't Ex. 1a at 4; Def. Ex. 8 at ¶ 45. SA Perry responded, "¿Me permite registrar por contrabando?" Gov't Ex. 1a at 4; Def. Ex. 8 at ¶ 46. The government translates this as, "Will you allow me to search for contraband?" Gov. Ex. 1a at 4. Mr. Delgado provides five alternative translations for this question: "[Do] you permit me to search for contraband?" or "[Do] you permit me to search because of contraband?" or "Allow me to search for contraband," or "[Do] you permit me to register as contraband?" or "[Do] you permit me to register because of contraband?" Def. Ex. 8 at ¶ 46 (alterations in original).
Mr. Delgado responded, in English, "Yeah." Gov't Ex. 1a at 4; Def. Ex. 8 at ¶ 47. During the hearing, Mr. Delgado gave conflicting testimony about what he understood SA Perry to mean by "¿Me permite registrar por controbando?" Mr. Delgado first testified that "[SA Perry] informed me that he was going to search it. That's how he told me in Spanish, that he was going to search it." Cont'd Tr. at 78:14-15. However, upon further questioning, Mr. Delgado agreed that he "answered [SA Perry's] question by saying ‘yeah’." Id. at 78:16-18. Mr. Delgado further agreed that, by saying "yeah," he was agreeing with what SA Perry was asking him. Id. at 79:4-5.
After Mr. Delgado said, "Yeah," SA Perry responded, "Ok. Gracias" ("Okay. Thanks," or "Okay, thank you"). Gov't Ex. 1a at 4; Def. Ex. 8 ¶ 48. SA Perry picked up the black suitcase, and sat it in the empty aisle seat immediately next to Mr. Delgado. Tr. at 27:17-19. SA Perry unzipped the suitcase and began to search it. Id. at 27:19.
SA Perry testified he remained in the aisleway during his search of the suitcase. Id. at 69:20-21. He testified that the suitcase did not block or obstruct Mr. Delgado's ability to walk in front of the seat and leave. Id. at 69:22-25. This was particularly true given the extra legroom in the front row. Id. at 93:11-17. He testified that if Mr. Delgado wanted to get up and leave during the search of the suitcase, "[h]e could have got up and went through that doorway [in the front of the car], ... And he probably could have gotten by the aisleway where I was standing, also, and went behind me." Id. at 93:7-10. Mr. Delgado agreed that when SA Perry searched the suitcase, he placed it on the empty seat next to Mr. Delgado. Cont'd Tr. at 48:25-49:3. However, according to Mr. Delgado's testimony and his in-court demonstration, the luggage was placed on the seat was "long ways, so that the suitcase hung substantially off the seat, perhaps completely[ ] blocking the exit from the window seat Mr. Delgado[ ] was seated, into the aisle." Id. at 50:3-7.
Inside of the suitcase, SA Perry observed a black backpack lying on top of the clothing that was in the suitcase. Tr. at 28:13-15. The backpack appeared to be new, never before used, and totally empty. Id. at 28:20-21. SA Perry testified that there have been a few times in his career that he has seen a brand-new backpack inside of a suitcase, and every time, it contained illegal narcotics. Id. at 29:2-3. In those experiences, the narcotics had been placed in the liners of the backpacks, which were then sewn back together. Id. at 29:6-11. Therefore, SA Perry looked at and felt the back of Mr. Delgado's backpack, where the lining would be. Id. at 29:10-11.
SA Perry testified that when he felt the back of Mr. Delgado's backpack, "I could feel a hard-like bundle inside of that foam. Actually, I could see it ... [T]he entire lining wasn't all the way to the top of the backpack where the stitching was. And then I could see the stitching had been manipulated at the top. It wasn't the factory stitching." Id. at 29:14-18.
SA Perry demonstrated his search of the backpack for the Court while describing that search in detail:
I picked up the backpack, and I held it in my hands. I unzipped the two ... main compartments. There's a large main compartment in the front, then the one in the back. And then I looked ... in the little front compartment. And there's basically – it's empty. There was nothing in it. So I felt the back ... And when I felt it, I could see the little bit of stitching was different on the top here, and then the lining that was inside of it, when I moved it back ..., that was not all the way to the top. It was down a little bit a few inches, and it was thicker. Then I felt it. I manipulated it and moved it like this, and I could feel a hard bundle inside of the, like, foam that was inside of. From my experience I believed immediately that it was a bundle of illegal narcotics that had been put in that lining of ... the backpack.
Tr. at 30:16-31:7. SA Perry further elaborated that when he felt the back of the backpack, he "felt it with [his] hands, [his] thumbs and [his] fingers," and that he "kind of squeezed it and moved it back and forth ... with [his] fingers and thumbs. Id. at 31:17-25. While SA Perry conducted this search of the backpack, Mr. Delgado remained in his seat, staring straight ahead. Id. at 29:20-22. SA Perry testified that at that point, he was "100 percent sure" that there were narcotics within the lining of the backpack. Id. at 32:5.
Next, SA Perry removed the contents of the suitcase. Id. at 32:8-10. He unzipped the lining inside of the suitcase, and looked at the "inner lining, the bottom or backside of the suitcase." Id. at 33:9-10. SA Perry observed that it was raised, whereas in a normal suitcase, it would be flat. Id. at 33:10-12. Believing that there was a compartment in there, SA Perry placed one finger on the bottom of the suitcase, and placed his other finger inside of the suitcase in order to see if they touched or came close together, and they did not. Id. at 32:13-16; 33:14-23. SA Perry testified that based on his experience from other suitcases he has seized that contained illegal narcotics in that type of compartment, he believed the suitcase contained illegal narcotics. Id. at 33:24-34:2.
SA Perry then made a small cut into the back side of the backpack with a knife. Id. at 34:10-12. The cut measured approximately half an inch. Id. at 35:4-5. Upon making the half-inch incision, a clear crystal substance came out of the cut that SA Perry recognized as consistent with illegal narcotics, specifically crystal methamphetamine. Id. at 36:8-11.
SA Perry placed Mr. Delgado under arrest. Id. at 36:13-14. Mr. Delgado and his belongings were transported to the DEA Albuquerque District Office ("ADO"). Id. at 39:9-12. The suitcase was taken to a processing area, and SA Perry and Task Force Officer ("TFO") Clarence Davis removed the bundles of narcotics from Mr. Delgado's backpack and suitcase. See Id. at 40:3-19. This process was video recorded, and the recording, which is comprised of three video files, was admitted as Gov't Ex. 2. SA Perry testified that Detective Kelly Sinclair made the recording, and SA Perry, TFO Clarence Davis, James Montoya, and possibly additional individuals were present. Id. at 77:3-9. SA Perry testified that no one edited the video. Id. at 77:17.
SA Perry was asked on cross examination whether there were actually three videos, rather than one. SA Perry responded that he did not know "for sure" how many videos there were, and speculated that Detective Sinclair may have turned the video off to take pictures with the camera, since the video camera is also used as a camera to take photographs. Tr. at 77:18-23. TFO Clarence Davis was also asked whether he was aware of "why [Detective Sinclair] stopped the recording." Cont'd Tr. at 22:1. TFO Davis responded, "I couldn't tell you. You'd have to ask him, sir. I don't know that he stopped the recording." Id. at 22:3. He further testified that he did not recall anything happening that would necessitate the person holding the recorder to stop recording. Id. at 25:6-12.
Defendant argues that the second video in Gov't Ex. 2 shows the duffel bag in "good shape." Tr. at 82:7-20. The Court admitted Def. Exs. 3 and 4 into evidence, which show what is a rip, tear, or cut, in the duffel bag. When SA Perry was asked why the video does not show the DEA agents cutting the duffel bag, SA Perry testified that he does not recall himself or other agents ever cutting the duffel bag. Tr. at 83:18-21. When SA Perry was shown the duffel bag during the hearing, SA Perry testified, "To me that doesn't look like it's cut because there's no compartment. Looks like it's just worn out or torn to me. I don't see a cut. It's frayed at the top. It doesn't look cut to me." Tr. at 84:1-4.
SA Perry was asked directly, on cross examination, "Is it true sir, that the reason why there's three videos instead of one is because your ability to feel for drugs in the Adidas duffel bag actually failed and you cut a hole for nothing?" Tr. at 85:6-8. SA Perry responded, "There's no lining or compartment – to answer your question, definitely no. That's just a hole. There's no – nowhere to put anything in the middle, so there's no reason to cut that." Id. at 85:9-11. TFO Davis was also asked directly whether he had cut the bag. He testified, "I don't recall ever cutting a blue Adidas bag," and, "I don't know that it was cut, sir. I didn't cut it, nor did I see anyone cut that bag." Cont'd Tr. at 26:4, 16-17.
The Court is unable to discern definitively from the video whether there were any cuts or tears in the Adidas bag at the time the video was made. The Court found SA Perry's testimony to be credible when he denied the allegations that he cut a hole in the Adidas bag and then edited the video to remove evidence of that. The Court also found TFO Davis's testimony to be credible when he likewise denied either cutting the Adidas bag or having seen anyone else cut the bag. The Court does not reach the conclusion that SA Perry or other agents cut a hole in the Adidas bag, or that they edited the videos in order to hide such conduct.
At no time during the encounter did SA Perry inform Mr. Delgado that he was free to leave or to refuse consent to search his belongings. Id. at 50:5-16. At no point did SA Perry ask permission specifically to search the backpack inside the suitcase, and at no point did he ask for permission to cut a small hole in the backpack. Id. at 76:3-12.
Both parties called expert witnesses to testify about the correct translation of the various communications that SA Perry made in Spanish. The government called Nancy Valladares, the language specialist for the U.S. Attorney's Office in Albuquerque. Id. at 101:19-102:2. Prior to working at the U.S. Attorney's Office, she held multiple positions doing translation work, including working for the FBI for 20 years as a language specialist. Id. at 103:22-23. During those 20 years, one hundred percent of her work involved Spanish to English translations involving narcotics crimes. Id. at 104:2-7. The Court accepted Ms. Valladares as an expert in the field of Spanish language. Id. at 112:8-10.
Ms. Valladares testified that she transcribed and translated the audio recording of SA Perry speaking to Mr. Delgado on the train on March 28, 2019, and that her transcription and translation are contained in Gov't Ex. 1a. Tr. at 114:6-115:11. Regarding the question SA Perry asked at Gov't Ex. 1a at 4, "¿Me Permite registrar por contrabando en su maleta, señor?", she testified that it should be translated as "Will you allow me to search for contraband in your suitcase, sir?" Tr. at 122:8-12. She then gave her opinion regarding the four alternative translations of that phrase provided by Mr. Delgado's expert. She testified that his first translation, "Do you permit me to search for contraband in your suitcase, sir?" would be a correct translation. Id. at 122:16-18. However, she testified that his other translations are not correct in her opinion. "Do you permit me to search because of contraband in your suitcase, sir," does not make sense because "that's not something that we'd use in English, in everyday English." Id. at 123:6-11. "Allow me to search for contraband in your suitcase, sir," is not correct because "Agent Perry says Me permite , which ... would not be translated as, Allow me ... In this particular instance, Agent Perry was asking him a question ..." Id. at 123:17-124:1. "Finally, "Allow me to search because of contraband in your suitcase, sir," is not a correct translation because it is "a command." Id. at 124:2-4.
Ms. Valladares also testified about Defendant's proposed translations of SA Perry's follow-up question, "¿Me permite registrar por controbando?" which she translates as "Will you allow me to search for contraband?" See id. at 124:7-10; Gov't Ex. 1a at 4. Ms. Valladares testified that "Do you permit me to search for contraband?" is a correct translation. Id. at 124:11-13. "Do you permit me to search because of contraband" is incorrect due to the use of the word "because." Id. at 124:14-16. "Allow me to search for contraband" is an incorrect translation because that is a command. Id. at 124:17-19. "Do you permit me to register as contraband?" is incorrect because the word "registrar" cannot be translated as "register" in this instance. Id. at 124:20-125:8. Finally, "Do you permit me to register because of contraband?" is not a proper translation either. Id. at 125:9-11. Ms. Valladares testified that the phrasing that SA Perry used is not confusing in any way in Spanish. See id. at 120:9-12.
Ms. Valladares did not state specifically why "Do you permit me to register because of contraband?" is not a correct translation.
Mr. Delgado called Damian Wilson as his expert witness. Dr. Wilson has taught at the University of New Mexico's (UNM) Department of Spanish and Portuguese since 2001. Id. at 145:17-20. He holds a master's degree in Spanish linguistics, as well as a Ph.D. from UNM's Department of Spanish and Portuguese. Id. at 151:17-152:5. He described his areas of expertise as "mainly in sociolinguistics, secondarily in pragmatics." Id. at 145:22-24. The field of sociolinguistics "examines how social factors influence in linguistic outcomes." Id. at 146:9-10. The field of pragmatics "studies speaker intent and the way language is used in order to accomplish speech acts ... [such as] requests, refusals, leave taking, like saying good-bye, greetings." Id. at 147:18-22. The Court accepted Dr. Wilson as an expert. Tr. at 185:22-186:8. Dr. Wilson prepared a report entitled "Analysis of Interpretation of Conversation Between Manuel Delgado-Salazar and DEA Agent Jarrell W. Perry," which was admitted as Def. Ex. 10. Tr. at 191:2.
Dr. Wilson testified that his goal when doing interpretive work "is to be scientifically accurate, and sometimes being accurate means to acknowledge that there might be several possibilities." Id. at 162:8-10. His translation "wasn't meant to sound nice. It was trying to show different ways that a Spanish speaker could reasonably interpret [what SA Perry said]." Id. at 192:14-16.
He testified that the phrase "¿Me permite registrar por contrabando en su maleta señor?" could be interpreted as "Do you permit me to search for contraband?", but there are also other potential interpretations. Id. at 196:17-20. Dr. Wilson testified that the preposition "por" is used "to describe because of something," whereas "para" would have been a "more precise preposition to use there ..." Id. at 197:13-15. He opined that therefore, "when you use por there, it could mean to search because of contraband." Id. at 197:16-17. He described at length his attempts to find documented instances of the word "registrar" followed by the word "por." Id. at 206:12-208:11. As a result of this search, he only found one instance on Google of the words used together to create the phrase "registrar por," and that neither the Diccionario de la Lengua Espanola , which is a learned treatise in his field, nor the Corpus del Espanol , which generated a random sample of one hundred uses of "registrar," contained instances of "registrar por." Id.
He also testified that the term "registrar" can mean "to register," and therefore, another potential translation of the phrase would be "Do you permit me to register as contraband?" Id. at 197:21-22. Dr. Wilson further testified that he agrees with Ms. Valladares's testimony regarding the first three meanings of the term "registrar," but according to the Diccionario de la Lengua Espanola it has several meanings, including: "to look at something with care and diligence, to look at something very carefully, to reveal or declare merchandise ..., to record, to register documents, to annotate ..., to place a bookmark, to register signatures, to examine accounting, to display mathematical measurements, to measure, to overlook, and to sign up for something." Id. at 204:19-205:6.
Finally, Dr. Wilson testified that the phrase "me permite" could be interpreted as either a request or a command, depending on nuances and intonation, which were "employed very irregularly by Agent Perry." Id. at 201:9-13.
On cross examination, Dr. Wilson agreed that a significant part of communication is non-verbal, and that in rendering his opinion, he had not considered the physical interaction between SA Perry and Mr. Delgado. Id. at 233:1-15. He agreed that although his report did not consider the physical interaction, the Court should take that into account because it is a significant part of communication between two people. Id. at 242:3-12.
Regarding Ms. Valladares's translation, Dr. Wilson opined, "I think where her transcription and translation fails in the present matter is that ... [i]t's designed to describe to an English language reader the nature of the conversation without getting into some of the problematic things ... [I]t's one thing to translate native idiomatic speech, and it's quite another to translate Spanish language learner speech ... taking such a liberty." Id. at 264:13-19.
At the conclusion of the hearing, the Court took Mr. Delgado's Motion under advisement.
DISCUSSION
I. The Parties’ Arguments
Mr. Delgado raises three arguments in his Motion. First, he argues that SA Perry detained him without reasonable suspicion. Doc. 27 at 1. He argues that the encounter became a seizure when SA Perry approached him and "explained that he worked for the train, asked Defendant about his travels, viewed his train and luggage documents, then explained that he had to take his luggage due to the drugs in it." Id. at 10. Second, he argues that he gave neither express nor voluntary consent to the search of his luggage. Id. at 11. He argues that there was no express consent because, due to the confusing Spanish used by SA Perry, there is no way to discern what was asked or agreed upon. Id. at 13. Further, he argues that any consent was not voluntary because SA Perry deceived him into believing that, as a passenger on a privately-owned train, he was "implicitly subject to unfettered train-checking services by the police." Id. at 16. Third, he argues that the search exceeded the scope of consent when SA Perry slashed his backpack with a knife. Id. at 19.
From Mr. Delgado's briefing, it is not clear precisely when he asserts that the encounter became a seizure.
In response, the government first argues that no seizure occurred until Mr. Delgado was placed under arrest, in light of the factors that the Tenth Circuit uses in determining whether a reasonable person would consider themselves free to terminate the encounter. See Doc. 30 at 8-10. Second, the government argues that Mr. Delgado's consent to the search of his luggage was voluntary, and that the phrasing used by SA Perry did not create confusion that prevented him from giving consent. See id. at 11-16. Finally, the government argues that SA Perry did not exceed the scope of consent when he made an incision in the backpack's lining with a knife because (1) the backpack was still useable for its intended purpose and the incision in the lining could have been repaired [Doc. 30 at 17]; and (2) SA Perry had reasonable suspicion at the time he made the incision since he had already felt a hard bundle that he believed to be narcotics [Doc. 30 at 18-19].
In its Supplemental Response, the government argues that even if SA Perry exceeded the scope of consent by making an incision in the backpack's lining, he had another lawful basis on which to proceed: plain view seizure. Doc. 41 at 2. After receiving valid consent to search, SA Perry felt the bundle within the lining of the backpack, which, based on his training and experience, he knew was likely to be illegal narcotics – thereby granting him a lawful basis to seize the bundle without a warrant under the plain view seizure doctrine. Id. at 4.
In his Supplemental Reply, Mr. Delgado argues that the plain view seizure doctrine does not apply because SA Perry did not view Mr. Delgado's suitcase or backpack until after he violated Mr. Delgado's rights. Doc. 42 at 3-4. He further argues that even if the consent in the case were deemed valid, the plain view doctrine does not apply because the narcotics were never in "plain view," id. at 4, nor was it apparent that the item seized was incriminating on its face. Id. at 7-9.
The Court now finds: (1) Mr. Delgado was not seized prior to his arrest; (2) Mr. Delgado validly consented to the search of his luggage; and (3) SA Perry did not need consent to cut an incision into the backpack because he had a lawful basis to proceed under plain view seizure. The Court does not reach the issue of whether cutting the incision in the backpack exceeded the scope of Mr. Delgado's consent.
II. Fourth Amendment Seizure
A. Legal Framework
The Fourth Amendment protects "the right of the people to be secure in their ... effects, against unreasonable searches and seizures," U.S. Const. Amend. IV. Not all encounters between police officers and citizens involve seizures within the meaning of the Fourth Amendment. Florida v. Bostick , 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). The Supreme Court has recognized three types of police-citizen encounters: arrests, investigative stops, and consensual encounters. United States v. Jones , 701 F.3d 1300, 1312 (10th Cir. 2012). Consensual encounters are not seizures within the meaning of the Fourth Amendment, and need not be supported by suspicion of criminal wrongdoing. Id. "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred." Bostick , 501 U.S. at 434, 111 S.Ct. 2382.
Police officers do not implicate the Fourth Amendment by posing questions, asking for identification, and requesting consent to search, even when they have no particular reason to suspect an individual has violated the law. United States v. Easley , 911 F.3d 1074, 1079 (10th Cir. 2018) (citing United States v. Drayton , 536 U.S. 194, 200–01, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) ). As long as a reasonable person would feel free to terminate the encounter, then there is no seizure. Drayton , 536 U.S. at 201, 122 S.Ct. 2105. This must be assessed under the totality of the circumstances and from the perspective of the objective, reasonable person. Easley , 911 F.3d at 1079 (citations omitted).
When an encounter with police occurs on a bus or train, the relevant inquiry to determine whether there was a seizure for Fourth Amendment purposes is not whether a reasonable passenger would feel free to leave , but rather, whether a "reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter." Bostick , 501 U.S. at 436, 111 S.Ct. 2382. Courts look to the totality of circumstances to determine whether the police conduct would "have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." Id. at 437, 111 S.Ct. 2382 (citations omitted).
Bostick recognized the following non-exhaustive factors as relevant to the Fourth Amendment seizure analysis: (1) whether the agent advised the individual that he had the right to refuse consent, (2) whether the agent in any way threatened the individual (i.e. , the display of a weapon and/or the nature of the questioning), and (3) the particular location of the encounter. 501 U.S. at 437, 111 S.Ct. 2382. In addition to the factors set forth in Bostick , the Tenth Circuit has set forth its own list of non-exhaustive list of factors to be considered in determining whether an individual has been seized:
(1) the threatening presence of several officers; (2) the brandishing of a weapon by an officer; (3) physical touching by an officer; (4) aggressive language or tone of voice by an officer indicating compliance is compulsory; (5) prolonged retention of an individual's personal effects; (6) a request to accompany an officer to the police station; (7) interaction in a small, enclosed, or non-public place; and (8) absence of other members of the public.
Jones , 701 F.3d at 1313 (citation omitted). "[N]o single factor is dispositive." Id. These factors are not exhaustive, and the Court may consider other relevant factors. See United States v. Hernandez , 847 F.3d 1257, 1264 (10th Cir. 2017).
B. Application of the Law to the Instant Case
Under the totality of the circumstances, a reasonable passenger in Mr. Delgado's position would have felt free to terminate the encounter with SA Perry until SA Perry placed him under arrest. Therefore, he was not seized within the meaning of the Fourth Amendment until his arrest.
First, there was "no threatening presence of several officers." Jones , 701 F.3d at 1313. SA Perry was the only law enforcement agent present until Mr. Delgado was placed under arrest. The Tenth Circuit has found that the presence of two officers is insufficient to establish the threatening presence of several officers. See United States v. Benard , 680 F.3d 1206, 1211 (10th Cir. 2012). Certainly, as SA Perry was the only agent present, the first factor weighs in favor of finding that the encounter was consensual.
Regarding the second and third factors, SA Perry did not brandish a weapon and did not touch Mr. Delgado prior to his arrest. Fourth, based on the Court's review of the audio recording of the encounter, SA Perry's tone of voice was polite and soft-spoken, although he spoke rapidly at times. However, at no time did SA Perry use "aggressive language or tone of voice ... indicating compliance [was] compulsory." Jones , 701 F.3d at 1313.
Fifth, SA Perry returned Mr. Delgado's train ticket and identification immediately after reviewing them. Based on the audio file, less than four minutes passed from the time that SA Perry began to search Mr. Delgado's luggage to the time that he placed Mr. Delgado under arrest. Therefore, there was no "prolonged retention" of Mr. Delgado's effects.
Sixth, SA Perry did not ask Mr. Delgado to accompany him to the police station or to another location for questioning.
With regard to the seventh factor, whether the interaction occurred in a small, enclosed, or non-public space, the encounter occurred in the enclosed space of a train. The Court heard contradictory testimony as to whether SA Perry was blocking Mr. Delgado's path to exit his seat.
SA Perry's testimony that at no time did he block Mr. Delgado's means of egress was clear and consistent. He testified that when he began speaking with Mr. Delgado, he stood across the aisle. Tr. at 19:8-9. He estimated that the aisleway is about two-feet wide, and that he was standing about five to six feet from Mr. Delgado, or "maybe a little farther." Id. at 21:15-17. At this time, SA Perry testified that if Mr. Delgado wanted to get up and leave, he "could have got up and went down the aisleway and got off the train down the steps, or he could have went through the doorway in the car that was right in front of him. He could have left either way." Id. at 92:22-25. SA Perry further testified that while he searched Mr. Delgado's suitcase, he remained in the aisleway and did not block or obstruct Mr. Delgado's ability to exit. Id. at 69:20-25.
Mr. Delgado's testimony, while at odds with SA Perry's testimony, was more equivocal. He testified that when SA Perry first approached him, SA Perry stood in the aisle, partially blocking the exit from the seated area into the aisle. Cont'd Tr. at 46:25-47:19. According to Mr. Delgado's testimony about the search of his luggage, the suitcase hung off the seat and there would not have been room for Mr. Delgado to exit his seating area into the aisle. Id. at 49:15-19. Mr. Delgado demonstrated this by placing the suitcase on a seat in the courtroom, and the record reflects that the suitcase "hung substantially off the seat, perhaps completely, blocking the exit from the window seat ... into the aisle." Id. at 50:4-7.
Although Mr. Delgado testified that the suitcase blocked his exit while SA Perry searched the suitcase, the Court credits SA Perry's testimony that the exit was not blocked. This is particularly so in light of the layout of the train that was described. SA Perry specifically testified that Mr. Delgado was seated in the first row of the car, which has "a lot more legroom" than the row behind it. Tr. at 20:12-21:11. Given that SA Perry left the aisle open throughout his search, the seventh factor weighs in favor of a consensual encounter. See United States v. Broomfield , 201 F.3d 1270, 1275 (10th Cir. 2000) (finding that an encounter on a bus was consensual where a DEA agent boarded the bus alone and left a clear path for any passenger who wanted to exit the bus); Drayton , 536 U.S. at 204, 122 S.Ct. 2105 (finding that the search of a bus was not coercive in part because the agent "left the aisle free so that respondents could exit").
With regard to the eighth and final factor, the encounter occurred in the presence of other members of the public, specifically, the other train passengers. Mr. Delgado specifically testified that when SA Perry started questioning him, there were people seated behind him, Cont'd Tr. at 61:2, and there was a person sitting in the window seat across the aisle from him. Id. at 64:1-3.
Bostick identified additional factors for courts to consider, including whether the agent advised the defendant he had the right to refuse consent. 501 U.S. at 437, 111 S.Ct. 2382. Here, SA Perry never informed Mr. Delgado that he had the right to refuse consent. Although notification of the right to refuse consent is one factor to consider, it alone is not dispositive. See Drayton , 536 U.S. at 206-07, 122 S.Ct. 2105 ; Broomfield , 201 F.3d at 1275. Here, the failure to advise does not outweigh all of the other factors which indicate that the encounter was consensual.
Mr. Delgado's briefing seems to incorporate subjective attributes into his Fourth Amendment analysis at times, such as the fact that he was unfamiliar with his rights as a person traveling within the United States. See, e.g. , Doc. 27 at 10. Subjective characteristics may not be taken into account in this context – rather, whether an encounter constitutes a seizure under the Fourth Amendment is an objective inquiry and is viewed from the lens of a reasonable person. See Easley , 911 F.3d at 1081-82.
For the foregoing reasons, the Court finds that Mr. Delgado was not seized under the Fourth Amendment prior to his arrest.
III. Validity of Consent
A. Legal Framework
"Travelers have a legitimate expectation of privacy in their personal luggage, which the Fourth Amendment protects." United States v. Nicholson , 144 F.3d 632, 636 (10th Cir. 1998). "If the government seeks to validate a search based on consent, the government bears the burden of proving that the consent was freely and voluntarily given." United States v. McRae , 81 F.3d 1528, 1536 (10th Cir. 1996) ; see also United States v. Mendenhall , 446 U.S. 544, 557, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). The Tenth Circuit has established a two-part test for determining the validity of consent: (1) the government must proffer clear and positive testimony that consent was unequivocal and specific and freely and intelligently given; and (2) the government must prove that this consent was voluntarily given without implied or express duress or coercion. McRae , 81 F.3d at 1537. See also United States v. Guerrero , 472 F.3d 784, 789 (10th Cir. 2007).
"[T]he question whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth v. Bustamonte , 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). While Fourth Amendment seizure analysis is a purely objective analysis, "the test for voluntariness of consent accounts for some subjective characteristics of the accused." Easley , 911 F.3d at 1081 (holding that while courts may not consider race or other subjective characteristics in the context of Fourth Amendment Seizure, such subjective factors may be permissible considerations in the context of whether consent is voluntary) (citing Bustamonte , 412 U.S. at 226, 93 S.Ct. 2041 ). See also Mendenhall , 446 U.S. at 558, 100 S.Ct. 1870 (noting that factors including the defendant's age, education, defendant's race, and the race of the officers were "not irrelevant" to the totality of the circumstances inquiry).
The Tenth Circuit has identified the following non-exhaustive relevant considerations for courts to use when assessing the voluntariness of consent under a totality of the circumstances:
Physical mistreatment, use of violence, threats, promises, inducements, deception, trickery, or an aggressive tone, the physical, and mental condition and capacity of the defendant, the number of officers on the scene, and the display of police weapons. Whether an officer reads a defendant his Miranda rights, obtains consent pursuant to a claim of unlawful authority, or informs a defendant of his or her right to refuse consent also are factors to consider in determining whether consent given was voluntary under the totality of the circumstances.
Jones , 701 F.3d at 1318.
Knowledge of the right to refuse consent may be taken into account under the totality of the circumstances as to whether an individual consented to a search, but that factor does not deserve extra weight. Drayton , 536 U.S. at 207, 122 S.Ct. 2105. See also Bustamonte , 412 U.S. at 227, 93 S.Ct. 2041 ("While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent."). There is no per se requirement that law enforcement agents must always inform citizens of their right to refuse when seeking permission to conduct a consent search. Drayton , 536 U.S. at 206, 122 S.Ct. 2105.
B. Application of the Law to the Instant Case
First, the Court addresses Mr. Delgado's argument that his consent was not unequivocal due to the confusing nature of the questions SA Perry posed in incorrect Spanish. See Doc. 27 at 13. Mr. Delgado argues that "[i]n examining the language used by Agent Perry, there is no way to ‘unequivocally’ discern what was asked/stated or agreed to based on the multiple possible interpretations of Mr. Perry's use of the Spanish language." Id. The Court now finds, based on careful analysis of the expert testimony, as well as based upon the testimony of SA Perry and Mr. Delgado themselves, that SA Perry's question, "¿Me permite registrar por contrabando en su maleta señor?" was not so vague, confusing, or unclear that it prevented Mr. Delgado from unequivocally, specifically, freely, and intelligently consenting to the search. The Court further finds that Mr. Delgado did in fact unequivocally, specifically, freely, and intelligently consent to the search.
The Court received hours of testimony from two expert witnesses regarding this issue. The Court found Dr. Wilson to be a more credible witness than Ms. Valladares. Ms. Valladares's testimony appeared to be biased at times. She sought to render a clearer translation of SA Perry's Spanish than was accurate. However, despite finding that SA Perry's Spanish was not as clear as Ms. Valladares claimed that it was, the Court also finds that SA Perry's Spanish was adequate to communicate his request to search Mr. Delgado's luggage.
For example, Ms. Valladares testified that "Donde vivó, en San Diego o en Wichita," is translated as "Where do you live, in San Diego or in Wichita?" Gov't Ex. 1a at 2; Tr. at 117:15-17. She explained that she translated it this way because "the word viv[ó] doesn't exist. And it's obvious that he's asking him, Where does he live? He wouldn't be asking him, Where do I live?" Tr. at 117:24-118:1. She testified on cross examination that the phrase "Donde vivo" (without an accent on the "o") would mean "Where do I live?" Id. at 129:11-17.
Dr. Wilson testified that he heard "donde vivo," with the stress placed on the first "i." Id. at 217:17. He testified that a native speaker would have interpreted that as, "Where do I live?" Id. at 217:18-19. He also testified that neither "donde vivo" nor "donde vivó" is well-formed Spanish in terms of asking "what should have been donde vive ..." Id. at 216:22-25.
It is clear to the Court from both Ms. Valladares's testimony and Dr. Wilson's testimony that neither "Donde vivo" nor "Donde vivó" could be correctly translated as "Where do you live?" Ms. Valladares's translation of this phrase as "Where do you live?" strains credulity and points to a pattern in Ms. Valladares's testimony of taking liberties when translating SA Perry's Spanish, rather than accurately and impartially translating the phrases that he used even if they are grammatically incorrect.
In his analysis, Dr. Wilson highlights the ambiguity of the term "registrar." Def. Ex. 10. at 2-5. Dr. Wilson's report states that the first three definitions of "registrar" provided by the Dictionary of the Spanish Language by the Royal Spanish Academy are: (1) "Look at, examine something with care and diligence"; (2) "Examine something or someone meticulously, to find something that could be hidden"; (3) "Reveal or declare merchandise, goods or assets so that they may be examined or documented." Id. at 3. Dr. Wilson's report asserts that instead of "registrar," SA Perry could have used a "much more common and semantically narrow verb – revisar – to describe this type of search." Id. During his in-court testimony, Dr. Wilson was asked if there was a better word that one could use instead of "registrar," and Dr. Wilson testified that "the word revisar is more semantically narrow, meaning that there are fewer documented meanings for the verb revisar. And you see revisar used by more proficient speakers ..." Id. at 209:1-4.
Ms. Valladares testified that the word "registrar" means "to examine or look at something." Tr. at 132:24. She testified that in "in this context, registrar was definitely meant to search, as it says in any dictionary, Spanish-English dictionary, the first definition for registrar is to search." Id. at 133:19-21. When asked whether the word "registrar" could mean "register," she testified that "[t]hat is what they use here in the United States, and it's a direct translation of the word ‘register’ from English into Spanish." Id. at 133:7-9. Ms. Valladares testified that the word "revisar" means "to review," "to look through," or "to look at." Tr. at 137:17-138:5. She agreed when she was asked whether "revisar" would have been a "very exacting" word that SA Perry could have used in this case. Id. at 138:6-8.
The Court is convinced that "revisar" would be a more unambiguous term for SA Perry to use when seeking consent to conduct a search of an individual's luggage, rather than "registrar." Both experts agreed that "revisar" would be a clear and precise term meaning to conduct a search. Additionally, as Mr. Delgado points out, there is support for this conclusion in the transcript of the encounter between SA Perry and the defendant in the case of United States v. Edgar Garcia Garibay , 19-cr-1195-MV, Doc. 27-6 (D.N.M. Sept. 9, 2019). The transcript from Garcia Garibay was admitted in the instant case as Def. Ex. 7. That transcript reflects that SA Perry stated to the defendant, "¿Me permite registrar por contrabando señor?", which was translated as "May I check for contraband, sir?" Def. Ex. 7 at ¶ 51. The defendant responded "No sé ... no sé, ¿cómo registrar?" ("I don't know ... I don't know, how do you mean check?") Id. at ¶ 52. Clearly, the defendant in that case did not understand SA Perry's use of the word "registrar." The transcript reflects that SA Perry then asked a Spanish-speaking officer to ask for permission to search the defendant, and the Spanish-speaking officer used the term "revisar" rather than "registrar." Id. at ¶ 62. The defendant replied, "Ah, ok," after he heard the term "revisar." Id. at ¶ 63.
During cross examination in the instant case, Defendant's attorney asked SA Perry whether, in the case of Garcia Garibay , SA Perry used the word "registrar." Tr. at 99:7-9. SA Perry confirmed that he did. Id. at 99:10. Defendant's attorney then asked SA Perry, "And prior to the hearing, I informed the Government and yourself and the Government's expert, Ms. Valladares, that that was not a good word to use when you're requesting permission to search, right?" Id. at 99:11-14. SA Perry responded, "You never informed me of anything, so I have no idea what you're talking about." Id. at 99:15-16. Ms. Valladares subsequently testified that in the case of Garcia Garibay , there was "some discussion" between defense counsel, Ms. Valladares, the government, and SA Perry concerning defense counsel's "allegation that the use of [the word "registrar"] was not correct when you're asking someone permission to search." Tr. at 138:16-23. Based on this record, there is insufficient evidence before the Court to find that SA Perry "was put on notice about his use of Spanish in these interdictions," as Defendant argues. See Cont'd Tr. at 90:15-18.
However, unlike the defendant in Garcia Garibay , Mr. Delgado's responses indicated that he understood what SA Perry meant by his use of the term "registrar." Although Mr. Delgado stated "¿Huh?" after SA Perry asked his question the first time, Mr. Delgado responded, "Yeah," when SA Perry repeated the question. Gov't Ex. 1a at 4; Def. Ex. 8 at ¶¶ 45, 47. Mr. Delgado disputes that he said "yeah," and argues that he may instead have said "ya," which means "now" in Spanish. Cont'd. Tr. at 92:23-93:6. This argument is disingenuous. Not only do both parties’ transcripts reflect that Mr. Delgado said "yeah" in English, see Gov't Ex. 1a at 4; Def. Ex. 8 at ¶ 47, but Mr. Delgado himself agreed, on cross examination, that he answered SA Perry's question by saying, "yeah," because he was agreeing with what SA Perry was asking him. Cont'd Tr. at 79:4-5. Additionally, Mr. Delgado answered three of SA Perry's previous question by saying "yeah" in English. For example, when SA Perry asked Mr. Delgado, in Spanish, if he spoke Spanish, Mr. Delgado replied, in English, "Yeah." Gov't Ex. 1a at 1; Def. Ex. 8 at ¶ 8. When SA Perry asked Mr. Delgado if he was Manuel Delgado after viewing his ticket, Mr. Delgado replied, in English, "Yeah." Gov't Ex. 1a at 3; Def. Ex. 8 at ¶ 28. When SA Perry asked Mr. Delgado, in Spanish, if he had any luggage, Mr. Delgado responded, in English, "Yeah." Gov't Ex. 1a at 3; Def. Ex. 8 at ¶ 40. Therefore, the Court finds that when Mr. Delgado stated, "Yeah," in response to SA Perry's question, "¿Me permite registrar por contrabando?", Mr. Delgado was not saying "ya," meaning "now" in Spanish, but rather, he said "yeah" in English – thereby agreeing to the search and demonstrating that he understood what SA Perry was asking
Dr. Wilson also asserts that SA Perry's use of the word "por" rather than "para" created confusion. Def. Ex. 10 at 4. Dr. Wilson opines that the phrase "registrar por controbando en su maleta" is not a phrase that a native Spanish speaker would use, and "we cannot expect a native speaker to understand someone speaking learner Spanish when they use this phrase." Id. at 5. The Court is convinced that, while SA Perry's use of "por" was grammatically incorrect and confusing, it did not ultimately prevent Mr. Delgado from understanding the meaning of SA Perry's question.
The Court finds it instructive that, towards the end of the hearing, the Court interpreters approached the bench in order to inform the Court that they needed to make a correction on the record. Court Interpreter Hibner then placed the following correction on the record:
The interpreter team wishes to correct a rendition that was previously given for the record. When Mr. Orive translated into English the question that was posed by Agent Perry, Me permite registrar por contrabando , Mr. Orive interpreted it into English by saying, May I search for contraband? That is more properly and correctly rendered into English as: May I search your bag because of contraband, or may I search your bag due to contraband, or may I search your bag through contraband? But not "for." The proposition "for" in English does not correctly reflect P-O-R, por in Spanish.
Cont'd. Tr. at 89:6-15. This correction that was put on the record by the interpreters confirms Dr. Wilson's opinion that "por" is not the correct preposition to use in that context. But it also demonstrates that the meaning of the question is still comprehensible despite SA Perry's grammatical error. The Court also concludes that Mr. Delgado's response, "Yeah," indicates that Mr. Delgado was able to comprehend the question.
Finally, Dr. Wilson identifies SA Perry's use of "me permite" as a source of ambiguity. See Def. Ex. 10 at 5. According to Dr. Wilson's report, this phrase could be "interpreted as either a request or firm, yet polite, command." Id. Based on Dr. Wilson's report, it appears that his opinion that "me permite" is ambiguous is not based on the literal translation of "me permite," but rather, is based on the possibility that the speaker and listener will interpret a question as a politely encoded demand. Dr. Wilson contends that "command forms are often viewed as impolite and speakers often use other devises, such as requests, in order to soften the force of a command." Id. He analogizes to English, explaining: "For example, in a formal dinner an English speaker is unlikely to tell someone with whom they are not acquainted, ‘Pass the salt.’ Instead, this speaker would likely frame it as a request, ‘Could you please pass the salt?’, which would be pronounced with a rising intonation." Id. Dr. Wilson therefore appears to concede that the literal translation of a phrase beginning with "me permite" would be in a question form.
Ms. Valladares's translation of "me permite" appears to be more literal. She testified that Dr. Wilson's proposed alternative translations of that phrase are incorrect because "Agent Perry says Me permite , which ... would not be translated as, Allow me. Allow me would be permitame ... not me permite ... In this particular instance, Agent Perry was asking him a question ..." Id. at 123:17-124:1.
Once again, the correction placed on the record by the Court interpreters is instructive. While their correction centered around the correct translation of the preposition "por," all three of their proposed translations interpreted the words "Me permite registrar ..." as "May I search ..." See Cont'd. Tr. at 89:6-15. Overall, the circumstances of the exchange demonstrate that Mr. Delgado understood SA Perry's communication to be a request to search his luggage, rather than a command. SA Perry's tone of voice was courteous and non-aggressive, and the Court does not find that a reasonable person would have interpreted his question as a command under the circumstances. Furthermore, when SA Perry stated "¿Me permite registrar por contrabando?", Mr. Delgado responded, "Yeah." Gov't Ex. 1a at 4; Def. Ex. 8 at ¶ 47. It does not make sense that Mr. Delgado would have responded, "yeah," if he had understood SA Perry to be informing him that he was going to search his luggage, rather than asking for permission. Therefore, the Court finds that by saying, "yeah," in response to SA Perry's statement "¿Me permite registrar por controbando?", Mr. Delgado unequivocally, specifically, freely and intelligently consented to the search.
The Court also finds that the government has met its burden to show that Mr. Delgado's consent was voluntary, without implied or express coercion. McRae , 81 F.3d at 1537. Mr. Delgado argues that his consent was not voluntary because SA Perry "lied to the Defendant by telling him he was a police officer and was going to ‘check the train.’ " Doc. 27 at 16. He argues that SA Perry continued his deceptive tactics when he requested to see Mr. Delgado's ticket – leading Mr. Delgado to believe that, "as a passenger on a privately owned train, he was implicitly subject to unfettered train-checking services provided by police." Id. Mr. Delgado argues that this led him to believe that he could not refuse to consent to the search of his luggage because the officer had "unlimited authority" and "was going to do his train check anyway." Id. Mr. Delgado analogizes this case to Bumper v. North Carolina , 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), in which a property owner gave permission for officers to search her residence after the officers falsely claimed they had a warrant. The Supreme Court held that "[w]hen a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search ... Where there is coercion there cannot be consent." Id. at 550, 88 S.Ct. 1788.
The instant case differs from Bumper in that SA Perry did not tell Mr. Delgado that he had a warrant to search his luggage. SA Perry's conduct in the instant case does not come close to creating the level of coercion in Bumper . However, the Court does find that SA Perry misled Mr. Delgado by identifying himself as a police officer, rather than as a DEA agent, and by informing him that "we check the train here" without clarifying that his purpose is drug interdiction. See Gov't Ex. 1 at 00:08-00:14. As this Court has stated recently, it is "troubled by SA Perry's lack of transparency regarding his position and role." United States v. Rebolledo , 18-CR-2217-MV, Doc. 39 at 19 (D.N.M. Apr. 16, 2019). Yet in Rebolledo , this Court noted that despite SA Perry's troubling lack of transparency, he "did not misrepresent that he was only searching for weapons and/or explosives, but rather indicated, among other things, that he was also interested in locating illegal narcotics." Id. Similarly, in the instant case, despite initially stating that he was a police officer who checks the train, SA Perry later requested to search Mr. Delgado's bag for "contraband" and did not limit the nature of the contraband for which he was searching. As in Rebolledo , "nothing in SA Perry's misrepresentation created the impression that [the Defendant] would be in physical danger if [he] refused to consent. Nor did SA Perry's statement that he was a police officer ... reasonably convey to [the Defendant] that [ ]he was not free to decline SA Perry's requests." Id. at 20 (citation omitted).
Other factors recognized by the Tenth Circuit that may contribute to a coercive environment are not present here: there was no physical mistreatment, use of violence, threats, aggressive tone, promises, inducements, or display of weapons. See Jones , 701 F.3d at 1318. The number of officers on the scene also weighs against a coercive environment, as SA Perry was the only agent present inside the train car at the time Mr. Delgado consented to the search. See id. There was nothing about the physical or mental condition or capacity of Mr. Delgado that would lead the Court to believe that he was particularly vulnerable to coercion. See id. Accordingly, the Court finds that SA Perry's misrepresentation about his role and purpose, although troubling and a relevant factor for consideration viewed within the totality of the circumstances, does not tip the balance in favor of finding coerced consent. Id. at 20.
Finally, SA Perry did not inform Mr. Delgado of his right to refuse to consent. While the absence of such a warning is one relevant factor, the Supreme Court has held that there is no requirement for law enforcement agents to inform citizens of their right to refuse when seeking permission to conduct a search. Drayton , 536 U.S. at 206, 122 S.Ct. 2105. Rather, the "totality of the circumstances must control, without giving extra weight to the absence of this type of warning." Id. at 207, 122 S.Ct. 2105. Here, SA Perry requested permission to search, rather than demanding such consent through his actions, tone of voice, or words. While SA Perry did not inform Mr. Delgado of his right to refuse, this does not overcome the other indicia that the consent to search was given voluntarily.
For the foregoing reasons, the Court finds that the government has proffered clear and positive testimony that consent was unequivocal and specific and freely and intelligently given; and has proven that this consent was voluntarily given without implied or express duress or coercion. See McRae , 81 F.3d at 1537. Therefore, Mr. Delgado's consent to the search of his luggage was valid.
IV. Plain View Seizure
Next, Mr. Delgado argues that the search exceeded the scope of consent when SA Perry cut a hole in his backpack with a knife. Id. at 19. The Court does not reach this issue because the Court now finds that at the time that SA Perry cut the hole in the lining of the backpack, the warrantless search and seizure of the backpack were justified under the plain view seizure doctrine. Therefore, consent was no longer required.
A. Legal Framework
Warrantless searches are "are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." United States v. Donnes , 947 F.2d 1430, 1438 (10th Cir. 1991). One such exception is the "plain-view doctrine." Law enforcement personnel may seize evidence in plain view without a warrant if the following circumstances are present: (1) the item is indeed in plain view; (2) the police officer is lawfully located in a place from which the item can be plainly seen; (3) the officer has a lawful right of access to the item itself; and (4) it is immediately apparent that the seized item is incriminating on its face. United States v. Corral , 970 F.2d 719, 723 (10th Cir. 1992) (citations omitted). This principle "reflects the fact that requiring police to obtain a warrant once they have obtained a first-hand perception of contraband, stolen property or incriminating evidence generally would be a needless inconvenience that might involve danger to the police and public." Texas v. Brown , 460 U.S. 730, 739, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (citations omitted).
In Minnesota v. Dickerson , 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), the Supreme Court explained the "plain touch" corollary to the plain view doctrine. Dickerson held that in the course of a protective pat down search, officers may seize nonthreatening contraband. Id. at 373, 113 S.Ct. 2130. In so holding, the court explained that the "plain-view" doctrine "has an obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search." Id. at 375, 113 S.Ct. 2130.
Without explanation, Mr. Delgado asserts that Dickerson ’s discussion of the plain view doctrine as it relates to the sense of touch is "clearly dicta." Doc. 42 at 8. This is not accurate. In Dickerson , after announcing a rule that the plain view doctrine "extends to tactile discoveries of contraband," the Supreme Court stated that "[i]t remains to apply these principles to the facts of this case," and proceeded to do just that. Dickerson , 508 U.S. at 377, 113 S.Ct. 2130.
In order to meet the requirement that it be "immediately apparent" that an item is incriminating on its face, an officer does not need to know with certainty that the item is contraband. Brown , 460 U.S. at 741, 103 S.Ct. 1535. Rather, probable cause is all that is required. Id. at 741-42, 103 S.Ct. 1535. Probable cause in this context requires a "nontechnical probability that incriminating evidence is involved." Id. at 742, 103 S.Ct. 1535. In Brown , the Supreme Court upheld the plain view seizure of an opaque green balloon, given the police officer's awareness that balloons tied in the manner of the one in question were frequently used to carry narcotics. Id. at 743, 103 S.Ct. 1535. Despite the officer's inability to see through the opaque fabric of the balloon, the balloon's distinctive character – combined with the officer's ability to observe other drug paraphernalia in plain view – made it immediately apparent that the balloon contained contraband. Id.
The Tenth Circuit has noted that " Brown makes clear ... [that] ‘contraband need not be visible in order for a plain view seizure to be justified.’ " Corral , 970 F.2d at 724 (quoting Brown , 460 U.S. at 747, 103 S.Ct. 1535 (Stevens, J., concurring)). In Corral , the Tenth Circuit upheld a plain view seizure of a "taped package resembling a brick of cocaine" even though the package was opaque and its contents not readily visible, because the detective had probable cause to associate the taped package with criminal activity and therefore the incriminating nature of the package was immediately apparent. 970 F.2d at 722, 725.
When the item seized under the plain view doctrine is a closed container, the plain view doctrine does not necessarily justify a warrantless search of the concealed contents of the container. Corral , 970 F.2d at 725 (citations omitted). Generally, any search of the contents of the container must be accompanied by either a warrant or an exception to the warrant requirement. Id. However, "where the contents of a seized container are a foregone conclusion, this prohibition against warrantless searches of containers under the plain view doctrine does not apply." Id. When a container's "distinctive configuration proclaims its contents," a container is not considered closed. Id. Such containers support "no reasonable expectation of privacy and the contents are said to be in plain view." Id. (citations omitted). Compare Donnes , 947 F.2d at 1437-38 (warrantless search of the contents opaque camera case could not be justified under plain view doctrine) with United States v. Jackson , 381 F.3d 984, 989 (10th Cir. 2004) (warrantless search of baby powder container was justified under plain view doctrine because, after the agent saw a white powdery substance inside a baggy hidden within the baby powder container, it was a "foregone conclusion that the baby powder container held drugs") and United States v. Miller , 929 F.2d 364, 364-65 (8th Cir. 1991) (no warrant was needed for search of contents of bag where the size and shape of the bag suggested it contained a gun). "In determining whether the contents of a container are a foregone conclusion, the circumstances under which an officer finds the container may add to the apparent nature of its contents." United States v. Williams , 41 F.3d 192, 197 (4th Cir. 1994).
B. Application of the Law to the Instant Case
The circumstances which justify a plain view or plain touch seizure, as set forth in Corral , are met here. First, the item must be in plain view. Corral , 970 F.2d at 723. Here, the backpack was in plain view once SA Perry began to search Mr. Delgado's luggage, which contained the backpack. Although the bundle itself was not visible, since it was hidden within the backpack's lining, it was discovered through SA Perry's sense of touch. See Dickerson , 508 U.S. at 375, 113 S.Ct. 2130 (expanding "plain-view" doctrine to "plain-touch" analogue). Additionally, the contour of the bundle was plainly visible. SA Perry credibly testified that, when he felt the back of the backpack, "I could feel a hard-like bundle inside of that foam. Actually, I could see it ... [T]he entire lining wasn't all the way to the top of the backpack where the stitching was. And then I could see the stitching had been manipulated at the top. It wasn't the factory stitching." Id. at 29:14-18. Additionally, SA Perry showed the Court an image at 0:3:29 in the first video file in Gov't Ex. 2, which depicts the backpack in the condition it was in when it was seized, prior to SA Perry removing the narcotics. Tr. at 43:11-44:17. In that image, the shape, or outline, of the bundle can be seen in the lining of the backpack. See Gov't Ex. 2 at 0:3:29. SA Perry stated that when he observed this, it was "very obvious to me that that's not a normal manufactured backpack, and that bundle – it's thicker. You can't see the thickness on a normal backpack like that. It's thicker and it's lower. And that leads me to believe that there's nothing – it's been altered, something's been opened, and placed inside of it." Tr. at 44:11-16. SA Perry testified that after feeling and squeezing the backpack with his thumbs and fingers, id. at 31:17-25, he was "100 percent sure" that there were narcotics within the lining of the backpack. Id. at 32:5.
Second, SA Perry was "lawfully located in a place from which the item [could] be plainly seen." Corral , 970 F.2d at 723. The Court has discussed in detail its findings that SA Perry did not detain Mr. Delgado prior to his arrest, as well as its findings that Mr. Delgado validly consented to the search of his luggage. Although SA Perry did not ask for specific consent to search the backpack inside of the luggage, this was within the scope of Mr. Delgado's general authorization for SA Perry to search for contraband inside of his luggage. Mr. Delgado placed no limits on his authorization to search the luggage, and at no point during the search did he object. The Tenth Circuit has "consistently and repeatedly ... held [that] a defendant's failure to limit the scope of a general authorization to search, and failure to object when the search exceeds what he later claims was a more limited consent, is an indication the search was within the scope of consent." United States v. Gordon , 173 F.3d 761, 766 (10th Cir. 1999). The Supreme Court has held that if an individual's consent would reasonably be understood to extend to a particular container, the Fourth Amendment provides no grounds for requiring a more explicit authorization. Florida v. Jimeno , 500 U.S. 248, 252, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). See also United States v. Santurio , 29 F.3d 550, 553 (10th Cir. 1994) ("While a person giving consent to a search may limit the area to be searched, a general consent to search includes closed containers within [a] vehicle, and this court has specifically ruled that a failure to object to the continuation of a search indicates that the search was conducted within the scope of the consent given.") (citations omitted); United States v. Stewart , 93 F.3d 189, 192 (5th Cir. 1996) (defendant's consent to officer's request to look "at" a medicine bottle authorized officer to look in the bottle). Because Mr. Delgado's general authorization for SA Perry to search his suitcase for contraband would be reasonably understood to encompass a search of a backpack within the suitcase, SA Perry had consent to look inside of the backpack. Therefore, SA Perry was in a lawful place from which the bundle hidden backpack's lining could be plainly felt.
Third, SA Perry had a lawful right of access to the item itself, as the item was a controlled substance. See, e.g., Corral , 970 F.2d at 723-26 (finding that the requirements for a plain view seizure were met where the item was a package of cocaine).
Fourth, it was "immediately apparent that the seized item [was] incriminating on its face." Id. at 723. The fact that SA Perry felt a bundle concealed under the backpack's lining and immediately recognized it as narcotics establishes a "nontechnical probability that incriminating evidence is involved." Brown , 460 U.S. at 742, 103 S.Ct. 1535. SA Perry has worked in drug interdiction for the DEA for over 20 years. Tr. at 7:11-15. He testified that after feeling and squeezing the backpack with his thumbs and fingers, Tr. at 31:17-25, he was "100 percent sure" that there were narcotics within the lining of the backpack. Id. at 32:5. SA Perry testified that there have been a few times in his career that he has seen a brand-new backpack inside of a suitcase, and every time, it contained illegal narcotics. Id. at 29:2-3. In those experiences, the narcotics had been placed in the liners of the backpacks and then sewn back together. Id. at 29:6-11. He testified that based on his experience, upon feeling the backpack, he "immediately believed that it was a bundle of illegal narcotics that had been put in that lining of ... the backpack." Id. at 30:16-31:7. Therefore, the Court finds that it was "immediately apparent" that the seized item was incriminating on its face.
Based on these factors, the backpack was validly seized under the plain view doctrine and its corollary, the plain touch doctrine. Additionally, the Court finds that the warrantless search of the contents of the backpack, including the small incision into the lining of the backpack that SA Perry made with his knife, was valid because the contents of the backpack were a foregone conclusion. See Corral , 970 F.2d at 725.
In United States v. Sanchez , another court in the District of New Mexico considered a case in which, after SA Perry received permission to search the defendant's luggage, SA Perry located within the suitcase two large black attaché cases. No. CR. 15-1278-WJ, Doc. 71 at 2 (D.N.M. July 21, 2016). SA Perry noticed that the attaché cases were heavy, but when he looked inside of them, they were empty. Id. When he held each attaché case, he could feel a large bundle which, based on his training and experience, he believed to be illegal narcotics. Id. He therefore used his Leatherman tool to cut a small incision in the top of one of the attaché cases, and inside of it he saw a bundle, later confirmed to contain crystal methamphetamine. Id. at 2-3.
In Sanchez , the court denied the defendant's motion to suppress and based its ruling on part on its finding that SA Perry had a lawful basis to search and seize the attaché case by cutting open the false compartment under the "plain view seizure" exception to the warrant requirement. Id. at 5-7. The court found that the contents of the attaché case were a foregone conclusion based on SA Perry's training and experience, and the fact that, although SA Perry could feel a hard bundle from the outside of the attaché case, when he opened the case, it appeared empty. Id. at 7. The court found that these characteristics gave the attaché case a distinctive configuration and led to the foregone conclusion that it contained narcotics. Id.
Here, like in Sanchez , prior to cutting into the backpack, SA Perry observed that there appeared to be a hidden compartment in the bottom of the suitcase. Tr. at 32:8-33:23. Further, as in Sanchez , SA Perry noted that although the backpack appeared to be new and "totally empty," id. at 28:20-21, he could feel and see that there was a hard bundle within the foam lining. Id. at 29:14-18. These characteristics gave the backpack a unique configuration that proclaimed its contents.
The instant case is unlike cases in which the Tenth Circuit held that a warrant was required to search the contents of a closed container that was validly seized under the plain view doctrine. The Tenth Circuit has found that a warrant was required in circumstances when the containers seized were not only opaque, but also were made of a hard material and were innocuously shaped, which prevented the officers from determining what was inside them. See, e.g. , United States v. Donnes , 947 F.2d at 1438 ("The ‘incriminating character’ of the contents of a closed, opaque, innocuously shaped container, such as a camera lens case, is not ‘immediately apparent.’ "); United States v. Bonitz , 826 F.2d 954, 956-57 (10th Cir. 1987) ("This hard plastic case did not reveal its contents to the trial court even though it could perhaps have been identified as a gun case by a firearms expert ... only the soft-sided gun cases could self-reveal the presence of a weapon inside.")
Here, unlike in those cases, the shape and texture of the backpack revealed that it contained a bundle of narcotics. The bundle could be felt through the material of the backpack, and its contour could be clearly seen. The Court therefore finds that the contents of the bundle hidden in the lining of the backpack were a "foregone conclusion" by the time that SA Perry cut into the backpack with his knife. Corral , 970 F.2d at 725. Because the backpack's "distinctive configuration proclaim[ed] its contents," it supported "no reasonable expectation of privacy and the contents [may be said] to be in plain view." Id. (citations omitted). As such, SA Perry was entitled to conduct a warrantless search of the contents of the bundle in the backpack's lining.
CONCLUSION
The Court finds that Mr. Delgado was not seized in violation of the Fourth Amendment and that he validly consented to a search of his luggage. The Court also finds that at the time that SA Perry cut a small hole in the lining of Mr. Delgado's backpack, SA Perry had a valid basis to do so under the plain view exception to the warrant requirement. Accordingly, there is no basis to suppress the evidence discovered pursuant to the search of Mr. Delgado's belongings.
IT IS THEREFORE ORDERED that Mr. Delgado-Salazar's Motion to Suppress Evidence [Doc. 27] is DENIED .