United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON, CHIEF JUDGE
the Court is the Motion to Suppress (Doc. 16). Defendant
seeks to suppress the evidence and statements taken during
his arrest and subsequent detention. (Doc. 16 at p. 2). The
United States of America ("Government") filed a
memorandum in opposition to the motion. (Doc. 20). The Court
held an evidentiary-hearing on the motions and permitted the
simultaneous filing of post-hearing briefs. (Docs. 33, 37).
For reasons explained fully herein the Motion is DENIED.
28, 2016 Defendant was arrested and was ultimately charged
with Possession of a Firearm by an Illegal Alien. (Doc. 1;
Doc. 33, Hr'g Tr. at p. 86:10-14). On that night, Baton
Rouge City Police Communications received an anonymous call
that complained that a Hispanic male was carrying a pistol
across the street from 9116 Great Smokey Avenue. (Doc. 20 at
p. 2). The Baton Rouge Police Department also received a call
around that same time that indicated shots had been fired in
the area around 9116 Great Smokey Avenue. (Doc. 33, Hr'g
Tr. at p. 18:6-22). Two days earlier police had received
similar reports alleging that shots had been fired in that
response to the complaint Corporal Shedrick Hawkins and
Officer Damien Collins were dispatched to the area around
9116 Great Smokey Avenue. (Id. at p. 21:4-12). The
officers noticed a group of Hispanic males located on the
second floor on a balcony. (Id. at 49:1-14). The
Officers walked up to the balcony and approached the group.
(Id.). The officers, who did not speak Spanish,
asked in English if anyone in the group had any weapons.
(Id. at 35:23-25; Id. at 36:1-6). The
officers testified that all in the group responded that they
did not have weapons, and were generally responsive to the
officers' questioning in English. (Id. at
68:3-12). The officers then asked the members of the group as
a whole if the officers could search them. (Id. at
68:23-25; Id. at 69:1-3). The officers testified
that everyone in the group was responsive, and indicated the
officers could search. (Id. at 23:12-20). During the
officer's interaction with the group, one Hispanic male,
the Defendant, bladed his body to the side and attempted to
move backwards. (Id. at 49:23-25). This caught the
attention of the officers. (Id. at 50:10-14).
Officer Collins then approached Defendant and asked for
permission to conduct a search of Defendant's person.
(Id.). Defendant gave an affirmative reply, which
the officers interpreted as consent to search him.
(Id.). The officers then located the gun on
Defendant's person, (Id. at 50:18-25).
was placed in handcuffs, and was taken to the officer's
patrol vehicle. (Id. at 42:1-8; Id. at
51:1-2). Another member of the group joined the officers and
Defendant, and translated what the officers were saying,
in the Spanish language. (Id. at 28:16-19).
The officers handed Defendant a Miranda rights
advisement form in the Spanish language, and had him read
over the form. (Id. at 51:4-5). Officer Collins then
asked Defendant, in English, if he understood the form, and
Defendant shook his head affirmatively. (Id. at
53:1-24). Officer Collins then asked, in English, where
Defendant had gotten the gun, and Defendant, responding in
English, said that he purchased it from an African-American
male. (Id. at 54:10-14). The officers then called a
dispatcher who checked computer indices and determined that
the gun was stolen. (Id. at 55:18-19).
discovering the gun was stolen, the officers took Defendant
to the Baton Rouge Police Department's Third District
Precinct. (Id. at 55:18-20). During the booking
process the officers communicated with Defendant in English,
and Officer Collins testified that he did not have any
trouble obtaining information from Defendant while speaking
the English language. (Id. at 56:22-25; Id.
29, 2016, Deportation Officer Ben Bordelon met with Defendant
while Defendant was detained. (Id. at 75:20-24).
Officer Bordelon interviewed Defendant in Spanish, with some
use of English, and asked questions about Defendant's
country of origin. (Id. at 82:11-16). Based on the
interview, Officer Bordelon determined that Defendant was not
a United States citizen and has not received legal permission
to be present in the United States. (Id. at 85:1-3).
August 1, 2016, after recommending to the U.S. Attorney's
Office that Defendant be considered for criminal prosecution,
Officer Bordelon returned to the jail, along with Agent
Anthony Crowell, to interview Defendant for the criminal
case. (Id. at 86:22-25). Agent Crowell provided
Miranda warnings in the Spanish language.
(Id. at 87:18-25). When Agent Crowell asked if
Defendant understood his rights, Defendant responded
affirmatively in the Spanish language. (Id. at
89:6-11). The officers then proceeded to ask Defendant a
series of questions as to why he was arrested, including if
he was carrying a gun on the night of his arrest.
(Id. at 90:13-19). Defendant admitted to the
officers that he was carrying a gun. (Id.).
Search of Defendant's Person
argues that the search by Officers Hankins and Collins of his
person was not supported by reasonable suspicion, and thus,
the results of the search should be suppressed. (Doc. 16-1 at
p. 2). The Government counters that the Court need not reach
the issue of reasonable suspicion because Defendant consented
to the search. (Doc. 38 at p. 5). The Government also argues
that there was reasonable suspicion to support the search.
warrantless search is unconstitutional unless it meets one of
a limited number of exceptions." United States v.
Zavala, 459 F.App'x 429, 433 (5th Cir. 2012)
(citing United States v. Jenkins, 46 F.3d 447, 451
(5th Cir. 1995)). "One exception is a search conducted
pursuant to voluntary consent." Id. "To be
valid, consent to search must be free and voluntary."
United States v. Oliuier-Becerril, 861 F.2d 424, 425
(5th Cir. 1988). Whether there is voluntary consent is
"a question of fact to be determined from the totality
of all the circumstances." Schneckloth v.
Bustamonte, 412 U.S. 218, 227 (1973).
Court is persuaded that the consent in this case was valid
and voluntary. No assertion has been made to suggest that the
officers coerced Defendant into consenting to the search; the
officers merely asked. Defendant argues that his limited
knowledge of English demonstrates that consent was not valid
because he could not understand the officers well enough to
provide valid consent. However, considering the totality of
the circumstances, the Court finds this argument
unpersuasive. The credible testimony of the officers
indicates that Defendant was responsive to the officer's
requests while the officers spoke English. (Doc. 33, Hr'g
Tr. at p. 23:12-20). Moreover, it is clear that Defendant
understood enough English to communicate with the officers,
as he was able to provide his basic ...