United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
Michael D. Nelson United States Magistrate Judge.
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.
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).
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.
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).
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).
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).
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).
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).
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).
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).
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).
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 ...