United States v. Dacruz-Mendes
| Decision Date | 19 January 2017 |
| Docket Number | Criminal Action Number 15-00044-01-CR-W-DGK |
| Parties | United States of America, Plaintiff, v. Evandro DaCruz-Mendes, Defendant. |
| Court | U.S. District Court — Western District of Missouri |
Pending before the Court is the MOTION TO SUPPRESS (Doc. #37) filed on March 9, 2016 by defendant Evandro DaCruz-Mendes ("Mendes"). On November 22, 2016, the undersigned held an evidentiary hearing on Mendes' motion. Mendes was present and represented by his counsel, Assistant Federal Public Defender Robert Kuchar. The government was represented by Assistant United States Attorney Bruce Clark. At the evidentiary hearing, testimony was given by five witnesses: the defendant himself; Officer Mark Merrill, Detective Antonio Garcia, and Errol Riggins with the Kansas City, Missouri Police Department; and an expert witness, Sara Gardner. Additionally, the following exhibits were admitted into evidence:
| Number |
| Description |
| Gov't. #1 |
| Passport |
| Gov't. #2 |
| Bus ticket |
| Gov't. #3 |
| Police report |
| Gov't. #4 |
| Consent to search form |
| Gov't. #5 |
| Miranda waiver |
| Def't. #1 |
| Gardner CV |
| Def't. #2 |
| Gardner expert report |
| Def't. #3 |
| Affidavit |
On the basis of all the evidence adduced at the evidentiary hearing, the undersigned submits the following:
PROPOSED FINDINGS OF FACT1
1. Mark Merrill is an officer with the Kansas City Missouri Police Department. Tr. at 3-4.
2. Antonio Garcia is a detective with the Kansas City, Missouri Police Department. Tr. at 19.
3. On February 3, 2015, Officer Merrill and Detective Garcia were working with the interdiction squad at the Kansas City Greyhound bus terminal. Tr. at 5, 19.
4. Officer Merrill observed an individual - later identified as Mendes - exit a Greyhound bus that had originated in Dallas, Texas. Tr. at 5.
5. Officer Merrill noted that Mendes was only carrying one small duffle bag - a suspicious indicator of a possible drug smuggler. Tr. at 5, 10-11.
6. Officer Merrill observed Mendes walk into the lobby area of the terminal then straight out the door to the taxi area. Tr. at 5-6, 11.
7. Officer Merrill approached Mendes, identified himself, and asked (in English) if he could talk to Mendes. Tr. at 6-7, 13.
8. Mendes responded (in English) "Yes, inside." Tr. at 6, 14, 17.
9. Officer Merrill and Mendes went back into the terminal lobby area. Tr. at 6.
10. Officer Merrill then asked Mendes (in English and Spanish) if he could see his bus ticket and his passport. Tr. at 7.
11. Mendes produced a ticket and a passport, but he appeared nervous. Tr. at 8.
12. The ticket and the passport were in different names. Tr. at 8.
13. Officer Merrill told Mendes that he was performing drug interdiction looking for individuals carrying narcotics and firearms and asked (in English and Spanish) if he could look in Mendes' bag. Tr. at 8-9, 18.
14. Mendes said (in English) "yes" and pointed to his bag. Tr. at 9, 15, 18.
15. Officer Merrill then began searching the bag. Tr. at 9.
16. Mendes did not voice any objection to the search. Tr. at 9.
17. The search of the bag uncovered two Tupperware containers wrapped in green plastic wrap that contained methamphetamine. Tr. at 9.
18. Officer Merrill asked Mendes about the containers and Mendes replied (in English) "I don't know." Tr. at 10.
19. At no point during the conversations in English between Officer Merrill and Mendes did Mendes indicate that he did not understand what was being said or indicate that he did not understand English. Tr. at 10, 14-15.
20. After searching the bag, Officer Merrill placed Mendes under arrest and transported him to an office at the bus terminal for an interview. Tr. at 20.
21. Detective Garcia was then asked to come to the office to assist in communicating with Mendes. Tr. at 20.
22. Detective Garcia presented Mendes with a written copy of the Miranda rights which Mendes read aloud in Spanish to Detective Garcia. Tr. at 20-21.
23. Mendes informed Detective Garcia - in Spanish - that he understood his rights and signed the Miranda waiver. Tr. at 20, 22.
24. At no point during the conversations in Spanish between Detective Garcia and Mendes did Mendes indicate that he did not understand what was being said or indicate that he did not understand Spanish. Tr. at 22.
25. Detective Garcia then interrogated (in Spanish) Mendes who indicated that upon arriving in Kansas City he was supposed to call a telephone number and inform a man of his arrival and then proceed to a hotel in Independence, Missouri. Tr. at 23. 26. Mendes stated that he had made this trip on six prior occasions and had handed the methamphetamine to a man named Wilson in exchange of $1,000 each time. Tr. at 23-24.
27. Mendes related the information to Detective Garcia in Spanish. Tr. at 24.
28. Detective Garcia then asked Mendes (in Spanish) for permission to search his cell phone. Tr. at 24.
29. Mendes consented to the search, reading out loud in Spanish a written consent form and signing the form. Tr. at 24.
30. Mendes is from Brazil and his native language is Portuguese. Tr. at 15, 26, 67.
31. Mendes told Garcia that he spoke Portuguese but also understood Spanish. Tr. at 28.
In his motion to suppress, Mendes seeks to suppress the results of the searches of his luggage and his cell phone and to suppress incriminating statements he made to Detective Garcia. As explained below, all of Mendes' suppression arguments largely turn on a single question - given that Mendes' native language is Portuguese, whether or not he adequately understood his rights and knowingly waived those rights.
With regard to the initial encounter between Mendes and Officer Merrill at the taxi area of the bus terminal, the Court concludes that it was consensual and does not implicate the Fourth Amendment. It is well-settled that:
Not all personal encounters between law enforcement officials and citizens fall within the ambit of the Fourth Amendment. A consensual encounter between an officer and a private citizen does not implicate the Fourth Amendment.
United States v. Jones, 269 F.3d 919, 925 (8th Cir. 2001). See also Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386 (1991) (); United States v. Richards, 611 F.3d 966, 968-69 (8th Cir. 2010). As such, OfficerMerrill was entitled to ask general questions of Mendes in the taxi area of the bus terminal. By that same reasoning, Mendes was free to answer the officer's questions or, alternatively, to simply walk away. As summarized by the Eighth Circuit:
There is no per se requirement that an officer inform a citizen of his right to refuse consent, and there is no presumption that consent is invalid where given without an explicit notification of the right to refuse. That many people agree to speak with police when asked does not tend to suggest that reasonable persons do not feel free to decline: While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.
United States v. Vera, 457 F.3d 831, 834-35 (8th Cir. 2006) (citations and internal quotations omitted).
However, such consensual-encounter questioning does not encompass searching someone's property. Such a rule recognizes that the Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." U.S. Const. amend. IV. Without question, individuals possess a privacy interest in their property that is protected by the Fourth Amendment. See, e.g., United States v. Gwinn, 191 F.3d 874, 878 (8th Cir. 2000). As protection for the citizen from unwarranted government intrusion, the Fourth Amendment generally requires law enforcement to obtain a court-sanctioned search warrant based on probable cause before undertaking a search of private property. See, e.g., Shade v. City of Farmington, Minnesota, 309 F.3d 1054, 1059 (8th Cir. 2000).
As made clear in the Fourth Amendment, however, the constitution does not forbid all searches and seizures, but only unreasonable searches and seizures. Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446 (1960). In many search and seizure scenarios, the question oflegal authority (as well as reasonableness) is presumptively satisfied by a judicially-issued warrant. In this case, law enforcement officers, of course, did not have a warrant to search Mendes' luggage. To that end, the Supreme Court has cautioned:
[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions.
Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 1716 (2009) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514 (1967)). In the present case, the government seeks to justify the search of Mendes' bag under an exception to the warrant requirement: consent.
It is established law that an exception to the warrant requirement of the Fourth Amendment is consent to search. Florida v. Jimeno, 500 U.S. 248, 250-51, 111 S.Ct. 1801, 1803 (1991). In a typical consent-to-search case, the touchstone in analyzing a motion to suppress is whether the consent was voluntary. In broad strokes, consent to search is voluntary if it is "the product of an essentially free and unconstrained choice by its maker . . . rather than a product of duress or coercion, express or implied." Schneckloth v. Bustamante, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-48 (1973). To assist a court in making this ultimate determination, numerous factors relating to the person giving the consent and the environment surrounding the consent have been articulated. For instance,...
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