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United States v. Marquez

United States District Court, M.D. Louisiana

February 23, 2017

UNITED STATES OF AMERICA
v.
RUDY A. MARQUEZ

          RULING AND ORDER

          BRIAN A. JACKSON, CHIEF JUDGE

         Before 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.

         I. BACKGROUND

         On July 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 area. (Id.).

         In 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).

         Defendant 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).

         After 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. at 57:1-25).

         On July 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).

         On 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.).

         II. DISCUSSION

         A. Search of Defendant's Person

         Defendant 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. (Id.).

         "A 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).

         The 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 ...


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