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United States v. Garcia-Garcia

United States District Court, D. Nebraska

October 17, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ADNAN GARCIA-GARCIA, Defendant.

          FINDINGS AND RECOMMENDATION

          Michael D. Nelson United States Magistrate Judge.

         This matter is before the Court on the Motion to Suppress (Filing No. 26) filed by Defendant, Adnan Garcia-Garcia. Defendant filed a brief (Filing No. 27) in support of the motion and the government filed a brief (Filing No. 30) in opposition.

         The Court held an evidentiary hearing on the motion on September 7, 2017. Defendant was present with his attorney, Richard McWilliams. The government was represented by Assistant United States Attorney, Martin J. Conboy, IV. Kevin Finn (“Investigator Finn”) of the Nebraska State Patrol testified on behalf of the government. Dr. Jeck-Jenard G. Navarrete, a Spanish-English interpreter for the Federal Public Defender, testified on behalf of Defendant. The Court received into evidence the audio/visual recording from Finn's body camera of the encounter between Defendant and Finn (Exhibit 1), consisting of two video files. (TR. 13-14). The Court also received into evidence Dr. Navarrete's Curriculum Vitae (Ex. 101), Dr. Navarrete's transcripts of the encounter between Defendant and law enforcement (Ex. 102 and 103), and Defendant's criminal history (Ex. 104). (TR. 44, 63-64, 70).

         A transcript (TR.) of the hearing was prepared and filed on September 19, 2017. (Filing No. 37). This matter is now fully submitted to the Court. For the following reasons, the undersigned magistrate judge recommends that Defendant's motion be denied.

         BACKGROUND

         In the early morning on May 12, 2017, Investigator Finn was working in his capacity in the commercial narcotics interdiction unit at the Omaha bus station. (TR. 7-8). Sometime between 5:45 a.m. and 6:00 a.m., a bus arrived at the Omaha station from California after stopping in Denver. (TR. 8). Investigator Finn was familiar with this bus route and testified that all passengers must exit the bus upon arrival in Omaha before re-boarding or continuing their travel. Investigator Finn explained that during this time, baggage handlers pull luggage from the checked baggage area of the bus to determine if luggage needs to be transferred to a new bus or if it will stay on the arriving bus. (TR. 9-10).

         During this process, Investigator Finn observed a newer luggage bag in the checked bag area of the bus. (TR. 8). Investigator Finn testified that individuals engaging in narcotics transportation typically use new luggage. (TR. 11). Investigator Finn also smelled an odor consistent with a masking agent, such as a car freshener, which is used to hide the scent of narcotics from detection by police or a drug dog. (TR. 10-11). Investigator Finn noticed the bag had a luggage tag with Defendant's name and that the bag was en route from Denver to Indianapolis. (TR. 12). Investigator Finn testified that Denver is a major source area of controlled substances such as heroin, methamphetamine, and marijuana. (TR. 24). Investigator Finn has extensive and ongoing training regarding drug interdiction, and testified that based on his training and experience, the above factors made him suspicious of the bag. (TR. 10-12). Investigator Finn noticed that the bag's luggage tag had a Hispanic name and observed Defendant was the only Hispanic male left in the terminal that had no luggage. (TR. 32). Investigator Finn approached Defendant to identify whether he was the owner of the bag. (TR. 12). Investigator Finn's body camera recorded the encounter. (Ex. 1).

         When Investigator Finn approached Defendant, he identified himself and showed his badge, and told Defendant that he was not under arrest in English. Investigator Finn then asked Defendant, “habla inglés?” (Ex. 102). Defendant indicated he did not speak English, but did speak Spanish. Investigator Finn is not fluent in Spanish, but can understand basic conversational Spanish and speak broken Spanish. (TR. 15). Investigator Finn used some Spanish phrases to ask Defendant where he was coming from and where he was going. Defendant replied he was traveling from Denver to Indianapolis. Defendant also stated he was from Mexico. (Ex. 102; TR. 15).

         Investigator Finn asked Defendant for documents. Defendant provided his boarding pass for the bus, his re-boarding pass, a checked bag ticket, and identification. (TR. 15-16). The name on the identification matched the name of the checked bag ticket. (TR. 16). Investigator Finn also noticed that Defendant had purchased his bus ticket with cash within thirty hours of departure. Investigator Finn testified that individuals engaged in transportation of narcotics often will have last minute purchases paid in cash. (TR. 16-17). According to Investigator Finn, thirty hours is considered a last minute purchase. (TR. 17).

         At this point, Investigator Finn opened a Google Translate app on his cell phone to assist him in continuing to communicate with Defendant in Spanish. (Tr. 17). While Investigator Finn could not say whether the translation app was accurate, he testified that Defendant did not appear to have any issues understanding what was typed into the translation app, nor did Defendant express an inability to understand the app. (TR. 38-39). Investigator Finn asked Defendant a series of questions using the translation app, and Defendant responded appropriately. (TR. 17-19). Investigator Finn asked Defendant if he had any drugs in his bag using the Spanish phrase, “Tienes alguna droga en tu bolsa?” (TR. 19, 39; Ex. 1 at 4:28-38). Defendant replied “no.” (TR. 40). Investigator Finn testified he then asked Defendant for consent to search his bag, and Defendant replied, “si, ” which means “yes.” (TR. 20; Ex. 1 at 4:38-42). Investigator Finn testified the only bag he knew Defendant had at that point was the bag associated with the checked claim ticket that Investigator Finn previously identified in the checked baggage area. (TR. 20).

         Investigator Finn and Defendant walked towards the bus and Defendant indicated he wanted to get onto the passenger area of the bus. (TR. 20-21; Ex. 1 at 4:47-51). Investigator Finn pointed to the previously identified bag sitting in the checked baggage area of the bus and asked Defendant if it belonged to him. Defendant indicated through his body language that the checked bag belonged to him. (TR. 21; Ex. 1 at 4:56-5:01). Investigator Finn verified that the luggage tag had Defendant's name and asked Defendant, “permite?” as a request to search the bag. Investigator Finn testified that the body language used by Defendant in response, putting his hands up and taking a step back, indicated to him that Defendant was “ok” with the search of his bag. (TR. 21; Ex. 1 at 5:01-04).

         Investigator Finn commenced searching Defendant's bag. Defendant watched the search and made no attempt to stop Investigator Finn. (TR. 25). During the search, Investigator Finn found bundles in the zipper lining of the bag consistent with controlled substances. The substance in the bundles was later identified as heroin. (TR. 21, 23). Investigator Finn handcuffed Defendant and led him to a backroom. A post-arrest search of Defendant's wallet recovered $970 in cash. (TR. 37). Defendant was provided with Miranda warnings and he made no subsequent statements. (TR. 23). After Defendant's arrest, a second bag belonging to him was recovered from the passenger area of the bus. (TR. 24-25).

         Investigator Finn testified that at the time of Defendant's consent, Defendant did not appear to be under the influence of drugs or alcohol, appeared to be of average intelligence, responded appropriately to questions posed to him, and was not in custody. Investigator Finn was in plain clothes, used conversational tones, did not brandish his weapon, and made no threats to get Defendant's consent. Investigator Finn was alone when he was conversing with Defendant, although another investigator was standing nearby. (TR. 22-23).

         Dr. Navarrete testified at the suppression hearing on behalf of Defendant. Dr. Navarrete has a Juris Doctor degree and a Ph.D. in Linguistics from the University of Nebraska - Lincoln. (TR. 53). Dr. Navarrete is a federally certified court interpreter in Nebraska and an expert in the Spanish language. (TR. 54-55). Dr. Navarrete examined the video recording (Ex. 1) of the encounter ...


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