United States v. Ramos

659 F.Supp.3d 779

UNITED STATES of America, v. Shirley Rose RAMOS, Defendant (1).

EP-22-CR-01450-DCG-1

United States District Court, W.D. Texas, El Paso Division

Signed March 6, 2023

Richard Douglas Watts, U.S. Attorney's Office, El Paso, TX, for United States of America.

Elyse M. Bataller-Schneider, Public Defender, Federal Public Defender, El Paso, TX, for Defendant.

SEALED MEMORANDUM OPINION AND ORDER DENYING MOTION TO SUPPRESS^*

DAVID C. GUADERRAMA, UNITED STATES DISTRICT JUDGE

Defendant Shirley Rose Ramos moves to suppress certain evidence in the above-captioned criminal case. Mot., ECF No. 22. The Court DENIES her Motion.

I. BACKGROUND

The Court makes the following factual findings based on the testimony the parties introduced at the suppression hearing and the Court's credibility determinations.¹

A. The Confidential Informants

Sometime before the events at issue here, Homeland Security Investigations ("HSI") began investigating a fentanyl smuggling operation in the El Paso area. Participants in that scheme would allegedly carry fentanyl in their body cavities across the international border into the United States.

As part of that investigation, HSI arrested and interviewed several people whom the Government caught trying to sneak fentanyl into the country. Two participants who cooperated with the Government in hopes of receiving a lighter sentence told HSI that Defendant was part of the trafficking ring and had previously successfully carried fentanyl across the border inside her body. The Government accordingly placed an alert on Defendant's file in its computer system so officers would subject her to greater scrutiny the next time she tried crossing the border.

B. Defendant's Earlier Border Crossing

On August 2, 2022, Defendant and two others arrived at an international port of entry in a vehicle and asked to enter the United States. A Customs and Border Protection ("CBP") officer inputted Defendant's personal information into the Government's computer system and discovered the alert identifying Defendant as a suspected drug trafficker. The Government therefore searched Defendant and the vehicle for narcotics. Although a drug-detecting canine alerted to the odor of narcotics on Defendant's person, officers didn't find any contraband when they searched her. Although officers found a small amount of fentanyl in the vehicle's center console, the record contains no indication that the Government arrested or charged Defendant at that time.

C. The Alleged Offense

On the night of August 15, 2022, Defendant again tried to enter the United States through a port of entry—this time on foot. The Government again stopped Defendant based on the alert on her file.

1. The Drug Dog Alert

During a secondary inspection, a canine trained to detect the odor of controlled substances inside the human body alerted to Defendant's buttocks. The Government therefore remanded Defendant to a female CBP officer's custody for a visual examination of her body cavities.

2. The Visual Cavity Search

The officer ordered Defendant to lower her shorts and underwear and bend over so she could inspect Defendant's vaginal and rectal areas with a flashlight. The officer also ordered Defendant to perform ten squats—presumably to try to dislodge any contraband Defendant might have hidden in her body. The officer did not, however, physically touch Defendant or penetrate any of her orifices during the inspection. Nor did the officer order Defendant to spread her private areas so she could peer deeper into Defendant's body.

The officer did not see any foreign objects in or protruding from Defendant's body. She did, however, observe droplets of dried blood on Defendant's underwear and a "low-shine substance" resembling personal lubricant on her vaginal area.² Because Defendant denied that she was menstruating, the fluids led the officer to suspect that Defendant had recently inserted narcotics into her body. The Government thus detained Defendant overnight for further investigation.

3. The First and Second Interview

The following morning, HSI personnel interviewed Defendant after advising her of her Miranda rights. After initially denying any involvement with or knowledge of the fentanyl-smuggling operation, Defendant invoked her right to an attorney and stopped talking to the agents. Law enforcement personnel therefore ceased questioning and escorted Defendant to a holding cell.

Soon thereafter, however, Defendant told a CBP officer that she wanted to talk to the agents again. That officer summoned the agents, who then escorted Defendant from the holding cell back to the interview room. After the agents readvised Defendant of her right not to speak with them without an attorney, Defendant admitted that she knew about the fentanyl-trafficking scheme, but denied participating in it herself. Defendant then voluntarily unlocked her cell phone and showed the agents information and photographs pertaining to the fentanyl-smuggling operation. However, Defendant explicitly refused to let the agents independently search or manipulate her cell phone or view any of its contents other than what she voluntarily showed them.

4. The DOMEX Inspection

At some point during Defendant's detention, the Government performed a warrantless Document and Media Exploitation ("DOMEX") inspection of her cell phone. See Phone Warrant Aff., ECF No. 22-3, at 6;³see also infra Section II.E (describing DOMEX searches in greater detail). That search uncovered conversations consistent with drug trafficking activity,⁴ as well as two photographs of a bag of blue pills resembling fentanyl.⁵ Phone Warrant Aff. at 7.

5. The X-Ray Examination

Shortly after the second interview, the Government applied for a warrant to perform a "medical examination of [Defendant]'s vaginal/rectal cavity and pelvic area for the purpose of locating an unidentified amount of contraband believed to be narcotics." Body Warrant Appl., ECF No. 22-2, at 1-2. To support that application, one of the HSI agents who interviewed Defendant prepared an affidavit explaining why he suspected that she was concealing drugs inside her body. Body Warrant Aff., ECF No. 22-2, at 2-7. Among other evidence, the affiant relied on the CBP officer's observations from the visual cavity inspection, as well as Defendant's statements during the two interviews. See id. at 5-6.

Once U.S. Magistrate Judge Anne T. Berton signed the warrant, see Body Warrant, ECF No. 22-2, at 9, the Government transported Defendant to a hospital for an x-ray of her body's contents. The x-ray revealed a foreign object in Defendant's vaginal cavity, which a CBP officer ordered Defendant to remove. Defendant extracted the object from her body herself; law enforcement personnel did not forcibly remove it from her. The object turned out to be a bundle of pills that tested positive for fentanyl.

6. The Cell Phone Warrant

A few days later, the Government applied for a warrant to search her cell phone more thoroughly than it had when it performed the DOMEX examination. Phone Warrant Appl., ECF No. 22-3, at 1-14. The Government's affidavit supporting that application relied at least in part on the incriminating conversations the Government found during the DOMEX inspection,⁶ as well as the CBP officer's observations from the visual cavity inspection and Defendant's statements during her two interviews. See id. at 4-5. U.S. Magistrate Judge Miguel A. Torres authorized the search warrant, see id. at 1, and the Government searched Defendant's phone accordingly.

D. The Indictment

Based on the evidence it collected during the aforementioned searches, the Government charged Defendant with unlawfully importing fentanyl into the United States and possessing fentanyl with intent to distribute. Indictment, ECF No. 11.⁷

II. ANALYSIS

Defendant now moves to suppress

(1) "any evidence obtained" as a result of her "detention and body cavity search;"

(2) "any evidence obtained from her phone;"

(3) "any statements" she made to law enforcement personnel during her detention; and

(4) "any fruits of her ... detention and searches."

Mot. at 1.

A. The Visual Body Cavity Search Did Not Violate the Fourth Amendment

Defendant first claims that the Government violated the Fourth Amendment to the U.S. Constitution—which provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," U.S. CONST. amend. IV—by subjecting her to a visual body cavity search, Mot. at 5-8.

1. The Fourth Amendment and Warrantless Searches

Subject to various exceptions, "[w]hen government officials conduct a search in violation of the Fourth Amendment, prosecutors are barred from introducing evidence obtained in the unlawful search at trial." E.g., United States v. Aguilar, 973 F.3d 445, 449 (5th Cir. 2020). Furthermore, "[u]nder the 'fruit of the poisonous tree' doctrine, all evidence derived from ... an illegal search ... must be suppressed, unless the Government shows that there is a break in the chain of events sufficient to refute the inference that the evidence was a product of the Fourth Amendment violation." E.g., United States v. Rivas, 157 F.3d 364, 368 (5th Cir. 1998) (emphasis added).

Because the Government performed the visual body cavity search without a warrant, the Government "bears the burden of proving, by a preponderance of the evidence," that it was lawful. United States v. McKinnon, 681 F.3d 203, 207 (5th Cir. 2012). Warrantless searches "are per se unreasonable" under the Fourth Amendment "unless they fall within a few narrowly defined exceptions." E.g., United States v. Roberts, 274 F.3d 1007, 1011 (5th Cir. 2001).

2. The Border Search Doctrine

One such exception is the "border-search doctrine." E.g., Rivas, 157 F.3d at 367. "Although the Fourth Amendment applies at" the border between the United States and its neighboring countries, the Amendment's "protections are severely diminished" t...