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United States v. Garcia-Garcia

United States District Court, D. Nebraska

December 11, 2017

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

          MEMORANDUM AND ORDER

          LAURIE SMITH CAMP, CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Findings and Recommendation, ECF No. 38, issued by United States Magistrate Judge Michael D. Nelson, recommending that the Motion to Suppress filed by the Defendant Adan Garcia-Garcia (“Defendant”), ECF No. 26, be denied. Defendant filed Objections to the Findings and Recommendation, ECF No. 39, as allowed by 28 U.S.C. § 636(b)(1)(C) and NECrimR 59.2(a). The Government responded, ECF No. 40, to the Objections. For the reasons set forth below, the Findings and Recommendation will be adopted, and the Motion to Suppress will be denied.

         BACKGROUND

         Defendant is charged with one count of possessing with intent to distribute a mixture or substance containing a detectable amount of heroin. Defendant moves to suppress evidence and statements made to law enforcement on May 12, 2017. Neither party directly objects to the Magistrate Judge's factual findings. The Court adopts the Magistrate Judge's factual findings and provides the following summary of the facts based on its review of the evidence:

On May 12, 2017, Defendant was waiting to reboard a bus to Indianapolis at the Greyhound Bus Station in Omaha, Nebraska. Investigator Kevin Finn, an officer with the Commercial Interdiction Unit of the Nebraska State Patrol, noticed a new Samsonite suitcase sitting next to the bus, waiting to be loaded. Based on several factors, Finn suspected the suitcase to be transporting contraband. Finn entered the bus station, approached Defendant, identified himself as law enforcement, and began to question Defendant.

         Defendant explained to Finn that he did not speak English. Finn, using basic Spanish and a smart-phone translation app, began to question Defendant about his travels. Finn and Defendant exchanged documents in response to Finn's requests, and Defendant produced a bus ticket, baggage claim check, and identification. Using the translation app, Finn showed Defendant a screen with a statement asking for consent to search Defendant's bag. Defendant replied yes. Finn used the Spanish term “bolsa” when requesting permission to search.

         Finn asked Defendant to identify his “bolsa.” Defendant began to get onto the bus to retrieve a small personal bag. Before Defendant boarded the bus, Finn pointed at the checked suitcase outside the bus and asked if it belonged to Defendant. Defendant acknowledged it was his. Finn then said “permite?” to request to search the suitcase. Defendant did not respond verbally, but raised his hands chest high and nodded. Finn testified that Defendant's body language indicated permission to search the suitcase.

         Finn then searched the Samsonite suitcase and found a wrapped package, which he suspected to be drugs. The contents were later determined to be heroin. Finn then placed Defendant in handcuffs and escorted him to a back room of the bus station. Later, Defendant made several incriminating statements including, but not limited to, an admission that he had been paid to deliver contraband.

         STANDARD OF REVIEW

         Under 28 U.S.C. § 636(b)(1)(C), the Court must make a de novo determination of those portions of the findings and recommendation to which the Defendant has objected. The Court may accept, reject, or modify, in whole or in part, the Magistrate Judge's findings or recommendation. The Court may also receive further evidence or remand the matter to the Magistrate Judge with instructions.

         DISCUSSION

         I. Initial Encounter with Law Enforcement

         Defendant first argues that Finn seized him without reasonable suspicion. The Fourth Amendment demands that people shall “be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, . . . and no Warrants shall issue, but upon probable cause. . . .” U.S. Const., amend. IV. “The Fourth Amendment ‘is not triggered by a consensual encounter between an officer and a private citizen.'” United States v. Aquino, 674 F.3d 918, 923 (8th Cir. 2012) (quoting United States v. Villa-Gonzalez, 623 F.3d 526, 531 (8th Cir. 2010)). An encounter is consensual unless, “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Grant, 696 F.3d 780, 784 (8th Cir. 2012). Courts evaluate several factors when assessing consent under the totality of the circumstances:

Officers positioning themselves in a way to limit the person's freedom of movement, the presence of several officers, the display of weapons by officers, physical touching, the use of language or intonation indicating compliance is necessary, the officer's retention of the person's property, or an ...

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