Opinion
CR 22-02776-TUC-JGZ(EJM)
11-08-2023
United States of America, Plaintiff, v. Justin David Limon, Defendant.
REPORT AND RECOMMENDATION
Eric J. Markovich United States Magistrate Judge
Pending before the Court is a Motion to Suppress Defendant Statements. (Doc. 37.) The defendant argues that his statements made to law enforcement should be suppressed because he was under the influence of drugs and “dopesick,” and as a result, the statements were not voluntary. The government argues the totality of circumstances establish that the defendant's statements were voluntary even if he was under the influence of drugs or “dopesick.” (Doc. 44.)
For the reasons discussed below, the Court concludes that both the defendant's waiver of his Miranda rights and the subsequent statements he made to law enforcement were voluntary based on the totality of the circumstances of what occurred prior to and during his interview with law enforcement. Accordingly, it is recommended that the District Court deny the instant motion.
Factual Background
1. The Charges
The defendant was arrested on December 1, 2022, and subsequently charged in a criminal complaint with Possession with Intent to Distribute methamphetamine, in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(A)(viii). (Doc. 1). The probable cause alleged in the complaint to support the charge is as follows:
On December 1, 2022, the defendant was a passenger on a shuttle van which was subject to inspection at the U.S. Border Patrol checkpoint on Interstate 19 near Amado, Arizona. When conducting immigration inspections of the passengers, the defendant was found asleep in the last row of the van. After being awakened by agents, the defendant stated that he is a U.S. citizen but did not have an identification document. A Border Patrol Agent asked the defendant to remove his hands from the front pocket of his pullover jacket and remove whatever he had in the pocket. The defendant removed two phones, pocket trash, a glass pipe, and a piece of folded foil that contained a partial pill of suspected fentanyl. The defendant stated that he used “blues,” a slang term for fentanyl pills.
The agent asked the defendant if he had any bags in his possession and he said that he did not. An agent inspected the area where the defendant was seated and saw a black backpack located just behind the headrest. None of the other passengers claimed ownership of the backpack. The shuttle driver told the agent that the black backpack and two other bags belonged to the defendant and that the defendant and another man loaded the bags into the van. The defendant denied ownership of the bags.
A search of the bags revealed 15 cylindrical shaped bundles of suspected narcotics in the black backpack, as well as black electrical tape, burned foil pieces, and personal belongings in the other two bags. The bundles contained 4.42 kilograms of methamphetamine.
In a post-Miranda statement, the defendant again denied ownership of the bags. He stated that he had purchased a one-way shuttle ticket to Phoenix, Arizona to meet his cousin for a few hours. He planned to return to his residence in Nogales, Sonora. He provided vague details on who he was meeting and the purpose of the trip. He later stated that he was given the bag prior to getting on the shuttle by an unknown male who instructed him not to look in the backpack.
During processing of the defendant, one of his phones received calls. The defendant said that he could not provide consent to search the phone because the phone did not belong to him.
On December 28, 2022, a federal grand jury sitting in Tucson, Arizona returned a two count Indictment against the defendant charging him with the following offenses: (1) Conspiracy with the Intent to Distribute Methamphetamine, in violation of 18 U.S.C. 846; and (2) Possession with the Intent to Distribute Methamphetamine, in violation of 18 U.S.C. 841(a)(1) & (b)(1)(A)(viii).
2. The Motion to Suppress Statements.
As noted earlier, the defendant filed a motion to suppress his statements made to law enforcement claiming that his statements were not voluntary because he was under the influence of drugs and was “dopesick.” On October 23, 2023, the Court held an evidentiary hearing on the motion. Two witnesses testified at the hearing: (1) Border Patrol Agent Vanessa Salcedo; and (2) DEA Task Force Officer Miguel Verdugo. Their testimony is summarized below.
Agent Salcedo's testimony pertains primarily to a Motion to Suppress Evidence which the defendant has since withdrawn.
Direct Examination of Border Patrol Agent Salcedo
Vanessa Salcedo is an agent with the U.S. Border Patrol. Hr'g Tr. 10/23/23 at 5. (Doc. 59.) Her duties consist primarily of enforcing “immigration law to include arresting illegal aliens and also smugglers of illegal aliens and drugs.” Id. at 6. On December 1, 2022, Agent Salcedo was assigned to the secondary inspection area at the immigration checkpoint on Interstate 19 near Tubac, Arizona. Id. Her primary duty was to conduct immigration inspections. Id.
Agent Salcedo testified that when a shuttle van arrives at a checkpoint all passengers must get out of the van so that agents can conduct an immigration inspection. Id. at 7. She explained that it is “it is impossible to conduct immigration inspections from the primary lanes,” so all shuttles are referred to secondary inspection so there is more time for agents to conduct immigration inspections on all passengers. Id.
At around 6:25 p.m. that evening she encountered the defendant who was a passenger on a shuttle van that was referred to secondary inspection. Id. at 6. After passengers had exited the van, Agent Salcedo “peeked inside of the shuttle just to verify that there were no other occupants visible in the shuttle[.]” Id. at 7. Agent Salcedo saw the defendant, who appeared to be asleep, seated in the last row of the van. Id. at 8. She “kind of yelled at him” to get his attention and used her “flashlight to kind of put it in his face” to get some kind of reaction. Id. The defendant “appeared a little bit startled” or lost when he woke up. Id. The defendant complied with Agent Salcedo's request that he exit the shuttle. Id. He did not bring any bags with him when he exited. Id. at 11.
After the defendant exited the van, he told Agent Salcedo that he did not have an identification document. Id. at 8. Agent Salcedo testified that the defendant was “wearing an overlarge, oversized loose sweater, like a pullover.” Id. He had his hands in the front pocket of his pullover. Id. at 9. Agent Salcedo asked the defendant to remove his hands and whatever he had in the front pocket. Id. She did that to make sure the defendant did not have a weapon, like a gun or a knife. Id. at 22-23. The defendant removed his hands from the pocket as well as a cell phone, pocket trash, and a folded-up piece of foil. Id. at 9. Based on her training and experience, Agent Salcedo knows that the foil is used to burn a fentanyl pill. Id. As a result, she handles the foil with care because it is typically has burn marks or “partial pills still left over.” Id. at 10. Agent Salcedo discovered what she believed was a fentanyl pill wrapped in the foil that the defendant had in his pocket. Id. In response to Agent Salcedo's question what the pill was, the defendant stated that he uses “blues, which is a street name for fentanyl.” Id. Agent Salcedo then searched the defendant and discovered “a glass pipe with some . . . white burn residue on it.” Id.
Agent Salcedo asked the defendant “if he had any other belongings or bags with him, and he stated that he did not.” Id. Based on the defendant's response, Agent Salcedo “decided to go inside of the shuttle just to check the immediate area of where he was sitting to make sure there was no other contraband.” Id. at 10-11. Agent Salcedo saw some personal belongings (a jacket and sunglasses) and there was a bag sitting in the rear cargo compartment of the shuttle near the headrest of the seat where the defendant had been sitting. Id. at 11. Agent Salcedo got out of the shuttle and went to the back of the shuttle to open the rear doors. Id. She asked the passengers if the bag belonged to anyone “and nobody claimed the bag.” Id. One gentleman said that “he had a backpack, but he wasn't sure that it was the backpack that [she] was talking about.” Id. Agent Salcedo had the man look at the backpack and he confirmed that it did not belong to him. Id.
As Agent Salcedo was looking at the unclaimed bags, the shuttle driver stated that the bags belonged to the man that she had just searched. Id. at 12. He added that he helped that man and another man load the bags onto the shuttle. Id. at 12, 17. The driver did not know if the other man got on the shuttle. Id. at 17. Agent Salcedo called the defendant over to the rear of the shuttle and asked if the three unclaimed bags belonged to him. Id. at 12. The defendant stated that they were not his bags. Id. Agent Salcedo testified that the defendant appeared “oriented to time and place,” and appeared to comprehend her question, and there was nothing unusual about his demeanor. Id. A search of the bags revealed personal items as well as 15 cylindrical bundles that Agent Salcedo believed contained drugs, which was later confirmed to be methamphetamine. Id. at 14.
Cross-examination of Agent Salcedo
Agent Salcedo confirmed that the defendant denied ownership of any of the bags at issue. Id. at 19. She did not find any identification or anything else “linking him to any of those bags[.]” Id. She agreed with counsel that she relied on the shuttle driver who told her that the defendant and another man had loaded the bags onto the shuttle. Id. at 20. Agent Salcedo clarified that the bag she saw when she went into the passenger compartment of the shuttle was in the cargo compartment in the rear of the shuttle, and not in the passenger compartment with the defendant. Id. The bag was sitting on top of other cargo in the rear compartment. Id. As a result, her perception was that the bag appeared to be behind the defendant's head. Id. at 20-21. Agent Salcedo made clear that “[t]he only questions that were asked to the shuttle occupants [as a group] were if they had any bags that matched my description of the bags that I was questioning.” Id. at 21.
Agent Salcedo confirmed that she found a pipe on the defendant during her search and another pipe in one of the unclaimed bags. Id. She believes that both pipes are used for smoking methamphetamine. Id. But the pipes were not tested for drug residue. Id.
At the time that Agent Salcedo approached the defendant and talked with him she was not sure if he was a United States citizen. Id. at 22. After the defendant was arrested, a records check confirmed that he is a United States citizen. Id. Agent Salcedo was present during the defendant's interview, but she did not ask questions or otherwise participate. Id.
Direct Examination of Officer Michael Verdugo
Michael Verdugo has worked for the Tucson Police Department (“TPD) for over 19 years. Id. at 26. When he started with TPD, he worked in a patrol capacity for three years. Id. He was then assigned to the community response team in the south side of Tucson, which is a plain-clothed unit. Id. In that position, he first started getting experience with street level narcotic investigations, such as how to identify illegal drugs and methods of drug transportation. Id. at 27. He was later assigned to and worked for five years in the Special Investigations Division of the Street Crimes Interdiction Unit. Id. He worked in an undercover capacity where he continued to gain knowledge on narcotics and firearm trafficking. Id. He was promoted to the rank of detective in 2014 and assigned the child sexual assault unit. Id. at 27. Shortly thereafter, he was assigned to the DEA task force. Id. at 26-27. As a task force officer, Detective Verdugo talks to sources of information and conducts follow-up investigations based on information that he learns from sources and matters that he is called out to assist on. Id. at 27.
On December 1, 2022, Detective Verdugo was assigned to “the on-duty group” that was tasked with responding to calls from Border Patrol agents. Id. at 27-28. On that day, he was called out to the Border Patrol checkpoint on Interstate 19. Id. at 28. He believes he arrived at the checkpoint between 8:00 p.m. and 8:30 p.m. Id. Upon his arrival, he spoke with the Border Patrol agent on the scene and asked her to provide information on the events that led him to respond to the checkpoint. Id.
Detective Verdugo first encountered the defendant in a detention cell at the checkpoint. Id. at 29. Detective Verdugo turned on his recorder prior to going into the cell to interview the defendant. Id. at 29. Detective Boling and Agent Salcedo were present when he spoke with the defendant. Id. at 29. Detective Verdugo testified that the defendant “appeared to be under the influence of some kind of substance. He seemed a little disheveled and he was hard to hear.” Id. Detective Verdugo added that the defendant's responses to questions “were a little difficult to understand, so I had to repeat myself quite a bit to solicit those responses.” Id. But the defendant was awake throughout the interview and appeared to be alert. Id. And he did not need to be taken to the hospital after the interview. Id. at 30.
Detective Verdugo testified that the interview started by asking the defendant biological information, such as his name and date of birth. Id. The defendant was able to provide that information. Id. Detective Verdugo then administered Miranda warnings to the defendant. He explained that he carries “a card that has Miranda warnings on it,” and his practice is to read it verbatim. Id. The defendant “said yes to both understanding and wanted to continue answering questions.” Id. The defendant again denied ownership of the bags at issue. Id.
The recording of the interview was admitted into evidence and played in court. The parties did not and have not provided the Court with a transcript of the interview. As such, the Court will summarize the pertinent portions of the interview based on the recording. The Court notes that in many instances the defendant's responses were inaudible either because the defendant mumbled or spoke softly. But Detective Verdugo almost always repeated or confirmed the defendant's response.
The defendant was provided with a bucket to spit in if he needed it. Detective Verdugo asked if the defendant felt sick, and then followed up by asking if he felt “dopesick.” It sounds like the defendant said: “pretty soon.” In response to Detective Verdugo's questions of when the defendant last “smoked” and how much he “smokes,” the defendant said he last smoked five hours ago, he smokes all day, and smokes 20-30 times an hour.
Detective Verdugo then stated that he wanted to talk about what's going on. He asked the defendant some biographical information - e.g., name, date of birth, and age -which the defendant provided. As to his address, the defendant said that did not know his address. When asked if he is homeless, the defendant said: “I guess.” The defendant explained that he has lived in Nogales, Sonora for the past four months but does not know the address of where he lives. He lived in Mexicali for a year before moving to Nogales, Sonora. Before moving to Mexicali, he lived in Brawley, California. The defendant said that he “wasn't doing too good” in California - he was living on the streets. He moved to Mexico because it was cheaper there. When asked for his phone number, the defendant said he does not have a phone.
When asked to explain why he was here today, the defendant said he did not know. The defendant said he was on his way to Phoenix. He got on the shuttle in Nogales, Arizona. He paid $35 for a one-way ticket. As to his employment, the defendant said he helped out at a ranch in Nogales, Sonora, and made “enough to get by.” When asked for a dollar amount, he said $300 a week.
Detective Verdugo told the defendant that he wants to “figure out what's going on” and get his side of the story. However, Detective Verdugo first asked the defendant if he's been arrested before. The defendant said that he was arrested for possession of a firearm in 2017; but did not go to prison for that offense. In around 2018, he went to prison in California for 4.5 years for possession to sell heroin and a firearms offense.
Detective Verdugo said that he wanted to get the defendant's side of the story and to keep talking to him. Detective Verdugo asked if the defendant ever had his rights read to him before, including the first time he went to prison. The defendant did not recall.
The Court need not address whether any preMiranda statements should be suppressed because the parties have (informally) stipulated as to what statements would be admissible at trial. For example, government counsel agreed to redact the conversation about prior arrests, the prior conviction, the length of the sentence, and where the defendant was incarcerated. Government counsel also agreed to redact the conversation about the defendant's financial situation and prior period of homelessness. With respect to preMiranda discussions about the defendant's drug use, defense counsel represented that he would want the jury to hear about his client's drug use to provide context for the postMiranda interview if that interview is admitted at trial.
Detective Verdugo then advised the defendant of his Miranda rights. When asked if he understood his rights, the defendant said: “mm hmm.” When asked if he was willing to keep talking about what happened tonight, the defendant said that he is “not really sure what happened.” Detective Verdugo told the defendant, “That's why were here, to try to figure out what happened.” Detective Verdugo asked if the defendant was willing to keep talking to him. Before the defendant responds, Detective Verdugo said that he wanted to get the defendant's side of the story to try to resolve the issue, whatever the issue may be. The defendant said that he got on the shuttle, fell asleep, and then was woken up. Detective Verdugo asked if the defendant wanted to keep talking to him. In response, the defendant said he wants to know what happened. Detective Verdugo asked if that “is a yes or no?” The defendant said, “Yeah.”
In response to specific questions from Detective Verdugo, the defendant said that he arrived at the shuttle station in Nogales around 4:00 p.m. and bought a one-way ticket to Phoenix. He did not recall the name of the shuttle company. When asked who is in Phoenix, the defendant said his cousin. When asked his cousin's name, the defendant says, “Markey.” When asked for the last name, the defendant first said he does not know and later said he does not want to provide the last name. The defendant said that his cousin lives on the east side of Phoenix, but he does not know Phoenix well. When asked how he was going to let his cousin know he was in Phoenix, the defendant said he would “knock on his door.” But he agreed with Detective Verdugo that he did know where his cousin lived. The defendant then said that he would have called his cousin to let him know he arrived but he “fell asleep.” When asked how he was going to call his cousin, the defendant said that one of his phone works - the red one. The defendant described the red phone as a “Blackberry look-alike.” When asked for permission for Detective Verdugo to look in the phone, the defendant stated, “it's not exactly my phone; I was just using it.” Detective Verdugo explained that the defendant used the phone and again asked for permission to look in the phone. The defendant responded, “no.”
The defendant agreed with Detective Verdugo that he bought a one-way ticket to Phoenix and fell asleep when he got on the shuttle. The defendant was going to stay in Phoenix a couple hours and then return home. The defendant did not talk to anybody when he got to the shuttle station and no one gave him a bag. The defendant did not take any clothes with him.
The defendant smokes drugs using a straw and foil. When told that agents found foil in one of the bags, the defendant stated that he had foil on him. He does “meth and pills.” It is not clear from the defendant's response whether he smoked meth the day of his arrest. But he states that meth “doesn't really do anything” for him anymore, apparently because his tolerance is so high.
The defendant sat in the last seat in the back of the shuttle on the right side. He fell asleep when he got on. He does not remember how many people were on the shuttle or if anyone was sitting next to him. He got on the shuttle at about 5:30 p.m. Between 4:00 p.m. and 5:30 p.m. he was at a McDonalds. He did not meet with or talk to anyone at McDonalds and did not get into anyone's car. When asked again if he talked with anyone, it sounds like the defendant said that he spoke with a man in Nogales but does not know the man's name.
Detective Verdugo told the defendant that we know that you brought meth with you and want to know why and how much you were getting paid. Detective Verdugo went on to tell the defendant that it seems like he's in a “tough spot” since he's making $300 a week working at a ranch and had been homeless for a while. Detective Verdugo continued that he doesn't blame the defendant if he was trying to make a couple extra bucks and is not here to judge him; he just wants to know how much the defendant was being paid to transport the drugs. When asked if it was more or less than $100.00, the defendant said he wasn't going to get paid. When asked if he was doing it for free, it sounds like the defendant said that he is not feeling good. Detective Verdugo again told the defendant that he knows that the defendant was bringing the drugs and wants to know how much he was getting paid to see if it was worth his while. The defendant again said that he was not getting paid.
In response to Detective Verdugo again telling the defendant, “we know you did it,” the defendant said that he was not aware of what was in the bag and was told not to look in it. When asked the color of the bag, the defendant said he has been up for two weeks and is “exhausted right now.” The defendant did not respond to the question of whether he picked up the bag at the McDonalds in Nogales, Arizona. Detective Verdugo told the defendant that “we know more than you think we do;” we just want to know why you did it - is it because you are in a hard spot right now in your life or is this what you do? Detective Verdugo went on to say that he is not trying to portray the defendant as a bad guy narco-trafficker. The defendant said, “I don't do shit like that.” When asked if “they” gave you a bag and told you not to look in it, the defendant responded, “Yeah.” In response to the question of how much he was being paid to move the bag, the defendant said that he did not get to that part. When asked if he was going to be paid in Phoenix or was given a little bit of money to pay for his ticket, the defendant says he was not sure about payment. He did not know how much he was going to be paid.
The defendant did not know where he was taking the bag to in Phoenix and does not know the name of the man who gave him the bag. When asked if the man's number was saved in his phone, the defendant says it is not his phone. However, he said that it is a “Mexican number.” The man talked to the defendant in Spanish and the defendant had to “wing it.”
The defendant is asked if he thinks he will get another chance to tell his story and is told that “this is your shot” to let us know how involved you are and what's going on. The defendant said that he does not “understand what you guys want.” Detective Verdugo told the defendant that he is at the “very bottom of this whole game” and they want the “big fish” and the defendant isn't a “big fish.” When asked who he was talking to in Mexico, the defendant said that he tries not to associate with anyone over there - he does not know Spanish. When asked if he is going to take the rap for this, the defendant said, “take the rap for what?” Detective Verdugo said for the 15 pounds of meth that was found. Another agent said that the defendant has already been to prison for trafficking narcotics with a firearm and asked, “what do you think they are going to do with this charge?” The defendant did not respond.
In response to Detective Verdugo's question if the defendant wanted to say anything else, the defendant said that he does not feel well. Detective Verdugo said that there is a bucket next to the defendant in case he needs to vomit. The defendant had no questions, and the interview concludes.
Detective Verdugo testified that the term “dopesick” he used during the interview is a term that “is used to refer to somebody who begins the withdrawal process, usually from opiates. They become ill. They start feeling feverish, almost kind of like a common cold-type symptom because they haven't had a recent fix of their choice of drug.” Id. at 31-32.
Cross-examination of Detective Verdugo
Detective Verdugo did not recall if the first thing that he did when he walked into the detention cell “was start poking Mr. Limon to wake him up[.]” Id. at 32. But he was clearly “dopesick.” Id. Detective Verdugo agreed with counsel that at the end of the interview he was “concerned enough to give him a bucket so he could throw up in[.]” Detective Verdugo also agreed that the defendant said he had been up for two weeks and was exhausted by the end of the interview. Id. at 32-33. Detective Verdugo conceded that doing an interview with someone who is “dopesick” and exhausted because he has been up for two weeks is not “consistent with getting a good, coherent narrative.” Id. at 33. Detective Verdugo agreed with counsel that he asked questions “over and over and over again in different ways,” as well as added information to the question(s), when the defendant was nonresponsive. Id.
Discussion
The defendant argues that his statements to law enforcement were not voluntarily made and should therefore be suppressed. However, the defendant's motion is vague in that he does not articulate whether he is claiming that the Miranda waiver was not voluntary, whether the post-Miranda statements were not voluntary, or both. The Court will assume the defendant is claiming that both the Miranda waiver and subsequent statements were not voluntary.
The government must prove the voluntariness of a defendant's statement by a preponderance of the evidence. United States v. Kelley, 953 F.2d 562, 564 (9th Cir. 1992). “A voluntary statement is one that is the product of a rational intellect and free will.” Kelley, 953 F.2d at 564. As a result, a defendant's statement to law enforcement “may not be admitted if because of mental illness, drugs, intoxication, or if the statement was not the product of a rational intellect and a free will.” Id. at 565. In determining the voluntariness of a statement, a court considers the “totality of the circumstances,” including “both the characteristics of the accused and the details of the interrogation.” Id. at 564-565. “No one factor is determinative.” Id. at 564.
The Ninth Circuit has held that a defendant can voluntarily waive his Miranda rights even when he is in the hospital, on medication, under the influence of substances, and/or in pain. See United States v. Lewis, 833 F.2d 1380, 1384 (9th Cir. 1987) (holding statement voluntary despite the fact that defendant had recently returned from surgery on her shoulder, was in pain, and had recently received a general anesthetic); United States v. Martin, 781 F.2d 671, 673-674 (9th Cir. 1985) (statement was voluntarily even though defendant was under the influence of Demerol (a pain killer) and still in pain); United States v. Heller, 551 F.3d 1108, 1112 (9th Cir. 2009) (statement voluntary even though defendant took Tylenol III with codeine the morning of the day he made the statement, felt tired and groggy, and his hands shook uncontrollably); Medeiros v. Shimoda, 889 F.2d 819, 823 (9th Cir. 1989) (defendant made a voluntary statement even though he was intoxicated). Similarly, that court has held that a defendant can make a voluntarily statement when suffering from physical signs of withdrawal from illegal drugs. Kelley, 953 F.2d at 565.
Although the voluntariness of a statement when a defendant is suffering from physical and/or mental impairments is fact specific, Kelley is very similar to the case at hand. The defendant in Kelley claimed that his statement to FBI agents was not voluntary because he was on the verge of heroin withdrawal. Id. at 565. Specifically, during questioning the defendant told the agents that he was a heroin addict with a $200-a-day habit and was on the way to purchase heroin when arrested. Id. at 564. He also told the agents that “at some point in the afternoon he would be getting sick due to heroin withdrawal.” Id. At the beginning of the interview, the defendant requested, and was given, at least two cups of coffee with extra sugar to help delay the effects of the withdrawal. Id. Approximately two-thirds of the way through the interview, the defendant “began to experience cold chills, sweats, shakes, and trembling hands.” Id. The defendant was then given more coffee with extra sugar so he could continue the interview. Id. The defendant told the agents that “they needed to hurry and finish their questioning because of his withdrawal.” Id.
The Ninth Circuit affirmed the district court's denial of the defendant's motion to suppress statements based on involuntariness. The court concluded that the effects of withdrawal did not overcome the defendant's ability to think rationally. Id. at 565. The court reasoned that the defendant “remained coherent and responsive, was aware of what was going on, and told the FBI agents that he was able to continue with the questioning.” Id. He was able to distinguish between the various bank robberies that were the subject of questioning and told the agents that they needed to hurry if they wanted to continue the interview. Id. Those facts demonstrated that the defendant's statement was the product of a rational intellect and a free will. Id.
In the case at hand, the testimony of Detective Verdugo and the interview of the defendant establishes that the defendant was in withdrawal from illegal drugs. Detective Verdugo immediately commented to the defendant that he appeared “dopesick,” which he explained means that the defendant was in withdrawal (usually) from opiates. Detective Verdugo provided the defendant with a trash can in case he became nauseous. The defendant described the frequency and amount of his drug use, both of which were substantial, and the amount of time that had elapsed since he last used his drug of choice. The defendant told Detective Verdugo that he had been up for two weeks and was exhausted by the end of the interview. Those facts certainly cut against the defendant's statements being voluntary. However, as in Kelley, that is not the end of the voluntariness analysis.
The Court first addresses the voluntariness of the Miranda waiver. The defendant had no questions about his Miranda rights and did not express any confusion about his rights. He stated that he understood his rights and agreed to continue with the interview. Other than being tired, which the defendant did not mention until about half-way through the interview, there is simply no evidence to support the defendant's contention that he did not voluntarily waive his Miranda rights.
Additionally, the defendant's later refusal to consent to law enforcement searching the red phone demonstrates that the defendant was able to exercise his rights using a rational intellect and free will. Specifically, the defendant was never advised that he had the right to refuse consent to search, but he still exercised that right. Thus, it stands to reason that he had the rational intellect to understand his Miranda rights and the free will to invoke those rights which, unlike the right to refuse consent to search, were explained to him. For these reasons, the Court concludes that the defendant voluntarily waived his Miranda rights.
The Court now turns to the voluntariness of the defendant's statements made during the post-Miranda interview. The Court first notes that, unlike in Kelley, the defendant never manifested physical symptoms of withdrawal, other than being tired. But he did not mention being tired until about half-way through the interview and did not request to end the interview because he was tired. Moreover, although the defendant was provided with a trashcan in case he became nauseous, he never said he was nauseous (and apparently never vomited) and did not request or need to be taken to a hospital.
While many of the defendant's responses to questions were inaudible because he mumbled and/or spoke softly, Detective Verdugo repeated or confirmed the answers which were generally responsive to the questions asked. It is true that, in some instances, Detective Verdugo had to ask questions in different ways or add information to a question. However, repeating or rephrasing a question is not uncommon during a custodial interview where honesty may not be the best policy for someone facing criminal charges.
More importantly, the defendant's denials that the bags at issue belonged to him demonstrates a rational and logical thought process. If the bags truly do not belong to him, then he was coherent and thinking rationally enough to provide that important exculpatory information to Detective Verdugo. Perhaps more importantly, if he was lying about the bags, the defendant was also showing a rational thought process, specifically, trying to convince Detective Verdugo that he did not commit a crime. The defendant's rational and logical thought process was also demonstrated by his response to Detective Verdugo's assertions that he knew the bags belonged to the defendant and that this was the defendant's chance to tell his story and not take the fall alone. Specifically, the defendant told Detective Verdugo that an unknown male gave him the bag and told him not to look in it. Once again, whether true or not, the defendant is engaging in a rational thought process -- if he did not know what was in the bag, then he did not commit a crime.
Finally, as discussed earlier, the defendant's refusal to consent to a search of the phone also demonstrates his rational intellect and thought process. The defendant was never told of his right to refuse consent to a search. Nevertheless, he did not simply acquiesce to the request to search the phone, which one would expect to happen if the defendant's withdrawal symptoms rendered him unable to exercise free will. In fact, the defendant did more than refuse to consent to the search. When first asked for consent to search the phone, the defendant explained that the phone did not belong to him. That explanation demonstrates a rational and logical thought process - i.e., that he could not, even if he wanted to, consent to a search of a phone that did not belong to him. The defendant's refusal to consent to a search came only after Detective Verdugo suggested or implied that the defendant could consent to a search because he used the phone. This conversation regarding consent to search the phone further shows that the defendant was coherent, thinking rationally, and exercising free will during the interview.
Although clearly tired as a result of being in withdrawal from illegal drugs, the evidence discussed above demonstrates that the defendant's Miranda waiver and subsequent statements were voluntarily because they were the product of a rational intellect and free will. Accordingly, it is recommended that the motion to suppress statements be denied.
Conclusion
For the reasons discussed above, it is recommended that the District Court deny the defendant's Motion to Suppress Statements.