U.S. v. Moya-Matute
| Decision Date | 22 July 2008 |
| Docket Number | No. CR 07-1180 JB,CR 07-1180 JB |
| Citation | 735 F.Supp.2d 1306 |
| Parties | UNITED STATES of America, Plaintiff, v. Oscar MOYA-MATUTE, Defendant. |
| Court | U.S. District Court — District of New Mexico |
Larry Gomez, Acting United States Attorney, James Tierney, Kimberly A. Brawley, Assistant United States Attorneys, Albuquerque, NM, for Plaintiff.
Erlinda O. Johnson, Albuquerque, NM, for Defendant.
AMENDED MEMORANDUM OPINION AND ORDER 1
THIS MATTER comes before the Court on the Defendant's Motion to Suppressand Memorandum in Support Thereof, filed July 4, 2007 (Doc. 16). The Court held an evidentiary hearing on the motion on October 29, 2007. The primary issues are: (i) whether the interaction among Senior Border Patrol Agent Brian Knoll, Immigration Enforcement Agent Mike Underdown, and Defendant Oscar Moya-Matute was a consensual encounter; (ii) whether the agents had reasonable suspicion to subject Moya-Matute to an investigatory detention; and (iii) whether there was probable cause to arrest Moya-Matute. Because the Court finds that the encounter between the agents and Moya-Matute was consensual, and finds that the agents had probable cause to arrest Moya-Matute, the Court will deny the Defendant's Motion to Suppress.
Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for purposes of rule 12(d). The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure and the voluntariness of an individual's confession or consent to search. See United States v. Merritt, 695 F.2d 1263 (10th Cir.1982). cert. denied, 461 U.S. 916, 103 S.Ct. 1898, 77 L.Ed.2d 286 (1983). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed.R.Evid. 1101(d)(1). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Merritt, 695 F.2d at 1269.
1. Moya-Matute was born in and is a citizen of Honduras. See Transcript of Hearing at 71:5-8 (taken October 29, 2007)("Tr.")(Brawley & Moya-Matute). 2
2. Underdown works as an immigration enforcement agent through the Department of Homeland Security with Immigration and Customs Enforcement ("ICE"). See Tr. at 3:20-24 (Brawley & Underdown).
3. ICE has employed Underdown for a year and four months. See Tr. at 3:25-4:3 (Brawley & Underdown).
4. Part of Underdown's job as team captain is to interview people in jail to ascertain their immigration status in the United States. See Tr. at 4:13-22 (Brawley & Underdown).
5. Underdown has previous law enforcement experience with the military police, where he was assigned to presidential detail, traveled with Presidents Bush and Clinton as security, and set up local liasons with other law enforcement. See Tr. at 5:1-9 (Brawley & Underdown).
6. Underdown also has previous experience working as security at a nuclear-power plant in Louisiana. See Tr. at 5:1-9 (Brawley & Underdown).
7. Underdown has received training at the military police academy, Border Patrol, and Wackenhut; he received Fourth-Amendment search-and-seizure training. See Tr. at 5:21-6:13 (Brawley & Underdown).
8. Underdown has also had on-the-job training with encounters on buses. See Tr. at 10:10-13 (Underdown).
9. Underdown estimates that he has arrested over one-hundred people. See Tr. at 10:18-20 (Brawley & Underdown).
10. Underdown is not a fluent Spanish speaker, but can understand basic questions in Spanish. See Tr. at 27:12-14 (Underdown).
11. For approximately three months before April 5, 2007, agents Knoll and Underdown went to the Greyhound bus station in Albuquerque, New Mexico nearly everyday because, based on their training and experience, they knew the bus station to be a staging area for undocumented aliens passing through to other parts of the United States. See Tr. at 11:17-12:1 (Underdown & Brawley); id. at 33:23-25 (Underdown).
12. Underdown was familiar with Albuquerque being a "hub" and the bus station as a "staging area" for undocumented aliens passing through to other parts of the United States for several years before he began working with Knoll. See Tr. at 8:15-23 (Underdown).
13. Underdown believes that undocumented individuals choose buses for transportation because there is less security and because it is not necessary to present a passport. See Tr. at 11:6-10 (Underdown).
14. Knoll had been going to the bus station in Albuquerque on a daily basis much longer than three months before April 5, 2007. See Tr. at 12:11-15 (Brawley & Underdown).
15. Before April 5, 2007, Knoll and Underdown, however, had only worked together for three months. See id.
16. Knoll and Underdown employed a standard practice on each of their visits to the bus station. See Tr. at 14:5-15:6 (Brawley & Underdown).
17. Knoll and Underdown would go to the bus station to speak with as many people as possible. See at 14:7 (Underdown).
18. Knoll and Underdown typically tried to arrive early so that they could speak with the bus passengers before the passengers got off of the buses. See Tr. at 14:1-2 (Underdown).
19. If the people were still on the bus when Underdown and Knoll got there, they then would board the bus. See Tr. at 14:16-17 (Underdown).
20. When they boarded the bus, Knoll would give a speech about Tr. at 14:18-21 (Underdown).
21. Knoll and Underdown sometimes, however, arrived at the bus station, after the people were off of the bus. See Tr. at 14:9-10 (Underdown).
22. When Knoll and Underdown arrived after the passengers were off of the bus, the agents would speak with everyone. See Tr. at 20:19-20 (Brawley & Underdown).
23. The agents tried to talk to everyone, regardless of how the individual people looked or what language they seemed to speak. See Tr. at 21:16-21 (Brawley & Underdown).
24. Knoll and Underdown did not target individuals "that looked like they mayhave some kind of Hispanic heritage." Tr. at 21:16-18 (Brawley & Underdown).
25. When the agents encountered people, either on a bus or in the bus terminal, they always greeted the people in English. See Tr. at 22:7-11 (Underdown & Brawley).
26. The bus in which Moya-Matute was traveling on April 5, 2007 made a stop in Albuquerque, New Mexico at approximately 7:00 a.m. See Tr. at 61:22-62:1 (Johnson & Moya-Matute).
27. Moya-Matute was traveling on a Greyhound bus from Indianapolis. See Tr. at 61:17-21 (Johnson & Moya-Matute).
28. There were about thirty-five people on the bus on which Moya-Matute arrived. See Tr. at 62:2-4 (Johnson & Moya-Matute).
29. At approximately 7:00 a.m., Moya-Matute exited the bus and proceeded to the restroom inside the bus terminal. See Tr. at 62:9-11 (Johnson & Moya-Matute).
30. Moya-Matute then got in line to see if he could buy food. See Tr. at 62:13-14 (Moya-Matute).
31. Moya-Matute had met a person on the bus, and wanted to see if he could share some food with him. See Tr. at 62:14-17 (Moya-Matute & Johnson).
32. On the morning of April 5, 2007, Knoll and Underdown encountered Moya-Matute at the bus station by the snack bar area. See Tr. at 23:16-20 (Brawley & Underdown).3
33. There were over thirty-five people in the bus terminal. See Tr. at 65:9-13 (Johnson & Moya-Matute); Tr. at 35:7-8 (Johnson & Underdown)(Underdown could not recall how many people were in the bus station on April 5, 2007 when theyencountered Moya-Matute).4
34. There were about fifteen people in the snack bar area. See Tr. at 65:14-16 (Johnson & Moya-Matute).5
35. Knoll and Underdown encountered Moya-Matute by the snack bar line. See Tr. at 25:2-5 (Brawley & Underdown).
36. Underdown stood behind Knoll. See Tr. at 25:12-13 (Brawley & Underdown).
37. Knoll talked to Moya-Matute. See Tr. at 25:14-15 (Brawley & Underdown).
38. Underdown was standing at an angle, so they were not standing in a straight line against the counter. See Tr. at 25:16-19 (Brawley & Underdown).
39. Knoll was approximately three feet from Moya-Matute. See Tr. at 25:21 (Underdown).
40. Underdown was approximately six feet away from Moya-Matute. See Tr. at 26:14-17 (Brawley & Underdown).
41. Underdown and Knoll approached Moya-Matute because he was in the bus station, and they were trying to encounter as many people as they could. See Tr. at 27:3-4 (Underdown).
42. Knoll initially spoke English to Moya-Matute, but then spoke to Moya-Matute in Spanish. See Tr. at 27:8-9 (Underdown).6
43. Knoll used a normal tone when he spoke with Moya-Matute. See Tr. at 69:1-3 (Johnson & Moya-Matute).
44. Underdown never spoke with Moya-Matute at all. See Tr. at 67:23-24 (Johnson & Moya-Matute).
45. Underdown could not hear everything that Knoll was telling Moya-Matute. See Tr. at 44:17-19 (Johnson & Underdown).
46. Underdown could not understand or did not know exactly what Knoll and Moya-Matute were saying. See Tr. at 45:7-10 (Johnson & Underdown). 7
47. Underdown could not recall what exactly was said during the initial encounter between Knoll and Moya-Matute. See Tr. at 53:1-4 (Underdown).
48. Underdown did not understand enough Spanish at the time that Knoll began to talk to Moya-Matute to determine whether Knoll asked Moya-Matute to see his papers. See Tr. at 94:20-25 (Court & Underdown).
49. Underdown could not understand Knoll's first couple of questions in Spanish to Moya-Matute. See Tr. at 53:11-12 (Underdown).
50. Because Knoll and Moya-Matute were speaking in Spanish, that "took [Underdown] a little out of the...
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