US v. Iribe

• Citation: 806 F. Supp. 917
• Decision Date: 18 November 1992
• Docket Number: Crim. A. No. 91-CR-181.
• Parties: UNITED STATES of America, Plaintiff, v. Nicanor Almeida IRIBE, Defendant.
• Court: U.S. District Court — District of Colorado

806 F. Supp. 917

UNITED STATES of America, Plaintiff, v. Nicanor Almeida IRIBE, Defendant.

Crim. A. No. 91-CR-181.

United States District Court, D. Colorado.

November 18, 1992.

Guy Till, Asst. U.S. Atty., Denver, Colo., for plaintiff.

Albert Cohen, Denver, Colo., for defendant.

MEMORANDUM OPINION AND ORDER

MATSCH, District Judge

On June 4, 1991, Detective Dale Wallis of the Denver Police Department was conducting surveillance on a residence at 8371 W. 50th Avenue, # A. He observed the defendant, Nicanor Almeida Iribe, leave that location in a van which Detective Wallis followed for about 40 blocks to 52nd and Stuart Streets. Detective Wallis alerted other Denver police officers who arrested Mr. Iribe at that location. The arrest was made on a federal warrant for arrest pursuant to an indictment.

Detectives Frank Padilla and Bernie Montoya took Mr. Iribe into custody and gave him a Miranda warning in Spanish. Mr. Iribe does not speak or understand English. Detective Padilla suggested that they return to the residence at 8371 W. 50th Avenue. Mr. Iribe said that he did not live there; that it was the residence of his friend, Juanita Lopez. Despite the defendant's protestations, Detectives Padilla and Montoya took him to 8371 W. 50th Avenue, # A. The three of them were met at the door by Juanita Lopez, a young woman who had come from Mexico about a week earlier. She spoke only Spanish. Detective Padilla advised Ms. Lopez that Mr. Iribe was under arrest and asked permission to enter. Other officers arrived. Ms. Lopez let the police into the house and agreed to a search, signing a consent to search form, written in English, and explained to her in Spanish by Detective Padilla.

Nine police officers, including Jefferson County Sheriff's officers, searched in the house. In the course of the search, the officers found men's clothing in a back bedroom and Detective Padilla asked Ms. Lopez who lived there with her. She responded that her uncle, the defendant, also lived there.

At that point, Mr. Iribe admitted that he lived there and Detective Padilla asked Mr. Iribe, in Spanish, to sign the consent to search form and he did. The search of the house yielded $49,000 in currency and some weapons.

A padlocked garage was near the house but not attached to it. Special Agent Carlos Archuleta of the Immigration and Naturalization Service had accompanied the Denver police officers to be of assistance in the arrest and search. Agent Archuleta testified that he asked Mr. Iribe's permission to search the garage and Mr. Iribe gave it. Mr. Iribe testified that no one asked for his consent to search the garage and that he did not give it. He said that he thought that because he was under arrest he had to consent. On this conflict in the testimony, the court accepts the testimony of Mr. Archuleta that permission was given. However, that testimony did not include a specific statement that Mr. Iribe was told that he could refuse to consent to the search of the garage.

The police found several handguns, drug distribution paraphernalia and 13 kilograms of cocaine in the garage.

Mr. Iribe has moved to suppress the evidence obtained in the search of the house and the garage on the ground that his Fourth Amendment rights were violated. The government takes the position that Mr. Iribe has no Fourth Amendment protection because he is an excludable alien. To support that position, the government cites the language of Chief Justice Rehnquist in United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990), rehearing denied, 494 U.S. 1092, 110 S.Ct. 1839, 108 L.Ed.2d 968 suggesting that excludable aliens are not "people" within the language of the Fourth Amendment. In that case, the Court held that United States agents were not limited by the Fourth Amendment in the search and seizure of property owned by a nonresident alien and located in a foreign country. The broad language of the Chief Justice was not required for the holding and was not joined by the majority of the justices.

This is not an extraterritorial application of the Fourth Amendment. Here, the question is whether only citizens of the United States have protection under the Fourth Amendment against unreasonable searches and seizures by local police officers. A negative answer is required by those cases, recognized by Chief Justice Rehnquist at pages 270-271 of the Verdugo opinion, holding that aliens enjoy this country's constitutional rights when they are here unless the Fourth Amendment is to be interpreted differently from the Equal Protection clause, the Fifth Amendment, the Sixth Amendment and the Fourteenth Amendment. This court rejects the notion that Denver police officers are not restrained from conducting unreasonable searches and seizures of the person and property of an alien in Colorado.

Mr. Iribe testified that when he agreed to the continuing search of his residence he was not aware that he had a right to refuse the officers' request. He said that he thought he had to agree since he was under arrest. He expressly denied consenting to the search of the garage. The prosecutor has the burden of proving that the permission to search was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968). Since the garage was detached and padlocked, it is incumbent upon the government to show that it was the subject of a separate consent to search. See United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987), rehearing denied, 481 U.S. 1024, 107 S.Ct. 1913, 95 L.Ed.2d 519 (1987).

Whatever Nicanor Iribe said to the officers about these searches and seizures, their validity depends upon evidentiary support for disbelieving his testimony and finding that Mr. Iribe gave his voluntary consent to both searches.

There is no simple test to determine the voluntariness of a consent to search. Schneckloth v. Bustamonte, 412 U.S. 218, 224, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854 (1973). Different from the waiver of other constitutionally protected rights (see e.g. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)), it is not necessary to show full knowledge of the scope of the Fourth Amendment's protection or even the basic requirements for obtaining a warrant. Schneckloth, 412 U.S. at 234-46, 93 S.Ct. at 2051-58. Voluntariness is a question of fact to be determined from the totality of the circumstances. Schneckloth v. Bustamonte, at 248-49, 93 S.Ct. at 2058-59, and United States v. Lindsey, 877 F.2d 777, 783 (9th Cir.1989). Knowledge of the right to refuse permission to search is, of course, highly relevant to voluntariness. United States v. Mendenhall, 446 U.S. 544, 558-59, 100 S.Ct. 1870, 1879-80, 64 L.Ed.2d 497 (1980), rehearing denied, 448 U.S. 908, 100 S.Ct. 3051, 65 L.Ed.2d 1138. The defendant's being under arrest and in custody is also a factor in determining voluntariness. United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir.1988). Finally, voluntariness of consent to search must be shown by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 177, 94 S.Ct. 988, 996, 39 L.Ed.2d 242 (1974).

In this case, the circumstances support a finding that Mr. Iribe did not voluntarily consent to the search of the house or the garage. The defendant was placed under arrest, taken out of his motor vehicle and physically restrained by handcuffs at least forty blocks from 8371 W. 50th Avenue. He was given Miranda warnings and did not waive his Fifth Amendment privileges. When he was told that the police wanted to take him to the residence at 8371 W. 50th Avenue, he denied living there. He was taken into the house against his will and a full search of the house began by officers dispatched to the scene expressly for that purpose without anyone asking for his approval and in reliance on the permission granted by his niece — a young woman newly arrived from...