United States v. Amezcua-Aguirre

UNITED STATES OF AMERICA, Plaintiff, v. JENNIFER AMEZCUA-AGUIRRE, Defendant.

15-cr-627 JAP

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

July 24, 2015

MEMORANDUM OPINION AND ORDER

On May 21, 2015, Defendant Jennifer Vanessa Amezcua-Aguirre filed a MOTION FOR SUPPRESSION OF THE EVIDENCE (Motion to Suppress) (Doc. No. 20). On June 12, 2015, the government filed a RESPONSE IN OPPOSITION (Response) (Doc. No. 27). On June 19, 2015, Defendant filed a REPLY (Doc. No. 28). On June 22, 2015, the Court held a hearing on the Motion to Suppress. Drug Enforcement Administration (DEA) Special Agent Jarrell W. Perry (Agent Perry) was the only witness who testified at the hearing. However, the entire encounter between Agent Perry and the Defendant was recorded and the audio recording was introduced into evidence as Government Exhibit 2.

I. Background

"Amtrak Train No. 4, the august 'Southwest Chief',...has been traveling the rails through Albuquerque since 1939." United States v. Miller, 811 F.Supp. 1485 (D.N.M. 1993) (Parker, J.), rev'd, 21 F.3d 1025 (10th Cir. 1994). As this Court noted in 1993, trains are "[i]cons of American folklore; venerated objects of our nation's songs." Id.; see also id. n.1 (cataloging American folk songs about trains). Trains have a deep metaphorical, even philosophical significance to modern society. "The railway...[is a] premise[] whose thousand-year conclusionno one has yet dared to draw." Friedrich Nietzsche, Human, All too Human: A Book for Free Spirits 378 (R. J. Hollingdale trans.) (Cambridge 1996).

Fortunately, the Court's focus is not the train's thousand-year legacy, but merely the sequence of events that occurred on the Amtrak Southwest Chief on a single day in February, 2015. On that day, Defendant Jennifer Amezcua-Aguirre rode the Southwest Chief into Albuquerque with a substantial quantity of heroin strapped to her back, concealed underneath several layers of clothing. Agent Perry found that heroin and arrested her. The question is whether Agent Perry discovered the heroin by violating the Defendant's constitutional rights. If so, the Court must suppress the heroin and any further evidence obtained as a result of the unconstitutional search. If not, the Court must deny the Motion to Suppress.

II. Findings of fact

As Rule 12 of the Federal Rules of Criminal Procedure requires, the Court makes the following findings of fact:

On February 5, 2015, Agent Perry and DEA Task Officer Pedro Gutierrez met Amtrak Train No. 4 when it arrived in Albuquerque, New Mexico. Agent Perry was not wearing a uniform; instead he was dressed in plainclothes. Agent Perry had a handgun that was under his shirt and not visible to others.

Prior to meeting the train, Agent Perry had obtained a printout of what he called a "PNR,"¹ which was admitted as government Exhibit 1. See Doc. No. 31-1. The PNR indicated that on February 3, 2015, Luis L. Garcia-Isicardia had used a Visa credit card, with a billingaddress in San Luis, Arizona, to purchase two one-way train tickets, one in his name and the other in the name of the Defendant, Jennifer Vanessa Amezcua-Aguirre. The tickets were for travel, in a private roomette on Amtrak Train No. 4, from Flagstaff, Arizona, to Chicago, Illinois, on February 5, 2015.

After Amtrak Train No. 4 arrived in Albuquerque, Agent Perry went to Roomette No. 8 on Sleeper Car No. 430. Roomette No. 8 is approximately 6.5 feet long and 4.5 feet wide.

The recording of the encounter between Agent Perry and the Defendant began a few seconds before Agent Perry knocked on the door to Roomette No. 8.² At 0 minutes and 40 seconds after starting the recording, Agent Perry identified himself as a police officer and asked the Defendant if he could speak to her. The Defendant in a clear voice assented, "Sure." Agent Perry never told Defendant that she did not have to speak to him or that she had a right not to cooperate.

At the inception of this conversation, Agent Perry was standing in the hallway of the upper level of the train to the side of the door to Roomette No. 8. While Agent Perry was talking to the Defendant and Garcia-Isicardia, Officer Gutierrez was about twelve feet down the hallway from Roomette No. 8 and out of sight of the Defendant and Garcia-Isicardia. The Defendant and Garcia-Isicardia were the only persons inside Roomette No. 8. Agent Perry asked to see their tickets and identifications, which they provided and which Agent Perry promptly returned. Both the Defendant and Garcia-Isicardia said they were born in Flagstaff but lived in Las Vegas.

When Agent Perry asked, "What takes you out to Chicago?" the Defendant responded, "To have a trip." Defendant said, "We have a week to go and come back." Agent Perry next queried, "Are you coming back on the train also?" to which Defendant replied, "Most likely."Agent Perry then inquired where they would be staying in Chicago and the Defendant said they did not know. That prompted Agent Perry to remark, "Don't have any idea yet?" to which Defendant responded, "No."

After some further conversation about travel, Agent Perry explained why he was talking to them by stating, "And you all boarded in Flagstaff, you probably realized there wasn't a lot of security on the train so sometimes we got a problem with people carrying contraband on the train, weapons, illegal narcotics, anything illegal. That's basically why we're here and what we're doing."

Then, Agent Perry asked if they had any luggage. The Defendant reported that she and Garcia-Isicardia had two pieces of luggage downstairs on the lower level. Agent Perry asked, "Would you voluntarily consent to a search of those bags for contraband?" and the Defendant promptly and clearly acquiesced, "Yes." Straightaway Agent Perry asked, "Would you also give me permission to search the items that you have inside of your bedroom?" Without hesitation Defendant distinctly said, "Yes."

At approximately 6 minutes and 30 seconds into the encounter, the following exchange took place:

Agent Perry: Ma'am, would you give me permission to enter your room to conduct a search...

Defendant: Yes.

Agent Perry: Of your room for contraband?

Defendant: Yes.

Soon thereafter, Agent Perry requested permission to search the Defendant's purse:

Agent Perry: And Ma'am, this is your purse here?

Defendant: Yes.

Agent Perry: Would you give me permission to search that also?

Defendant: Sure.

Agent Perry's search of Roomette No. 8 took less than two minutes. At approximately 8 minutes and 17 seconds after the beginning of the recording Agent Perry asked the Defendant and Garcia-Isicardia if they would show him the bags they had downstairs. The recording indicates that it took a little less than a minute for Agent Perry, the Defendant, and Garcia-Isicardia to go downstairs to where the luggage was located. At approximately 9 minutes and 11 seconds Agent Perry can be heard saying, "These two?" and soon thereafter Defendant said, "This is his; that one's mine." Agent Perry then asked Defendant and Garcia-Isicardia, "Would you give me permission to search your bag for contraband?" Defendant responded, "Yes" and Garcia-Isicardia said in Spanish, "Claro que sí." (of course).

The search of the Defendant's and Garcia-Isicardia's luggage took place in a passageway on the lower level of the bi-level Sleeper Car No. 430. Only Agent Perry, the Defendant, and Garcia-Isicardia were in the immediate area of the luggage, but during the search, which lasted a little longer than seven minutes, several people can be heard passing by in the hallway.

After Agent Perry finished searching the Defendant's and Garcia-Isicardia's luggage, the tenor of the dialogue between Agent Perry and the Defendant changed dramatically. This occurred approximately 16 minutes and 19 seconds into the encounter. At that point Agent Perry asked: "Would you consent for a pat-down search of your person, ma'am, for contraband?" Instead of giving a short, direct answer---as she had done previously when Agent Perry had requested permission (1) to speak to the Defendant, (2) to see the Defendant's ticket and identification, (3) to consent to a search of her luggage, (4) to search items inside Defendant's bedroom, (5) to enter the Defendant's roomette for a search for contraband, and (6) to look through Defendant's purse—Defendant retorted with a question: "Can I know what's the problem?" Up to this juncture, Defendant knew that affording Agent Perry the opportunity toconduct the various searches he had requested would not result in discovery of contraband. Without equivocation the Defendant had rapidly and definitively given Agent Perry permission to do the things he had asked to do. Now, knowing that Agent Perry was homing in on where she was keeping heroin, the wily Defendant changed her tactics.

Defendant's question seemed to discombobulate Agent Perry. He dissembled somewhat by mentioning security and by saying he was going to other cars to "talk to as many people as we can."

Agent Perry tried again: "Do you have anything...do you have a shirt underneath that shirt?" Defendant said she did and asked if there was a "woman around" who could conduct the pat-down. Agent Perry rejoined: "We don't have a female here." Trying a different tack, Agent Perry continued: "How 'bout if I just use the back of my hand? That be okay with you?" This prompted the Defendant to counter-offer: "If you could bring a woman, I can just get undressed; if that's okay with you."

Again, in a rather conspicuous attempt to extricate herself from a sticky situation, Defendant avoided directly answering Agent Perry by using a quasi-question. Agent Perry fumbled his reply: "Well, na, well, I don't have a fe, we don't have a female that's available to come do the...."

Defendant detoured the interaction with a suggestion that Agent Perry had singled her out: "It's that I'm just seeing it's only us." Agent Perry tried to oppugn Defendant's accusation by saying: "Once I get done talkin' to you, I'm gonna go...