Opinion
Case No.: 23-cr-01282-BTM
2023-10-06
UNITED STATES of America, Plaintiff, v. Alexander MARQUEZ, Defendant.
U.S. Attorney CR, Assistant United States Attorney, U.S. Attorneys Office Southern District of California, Criminal Division, San Diego, CA, Ashley Kaino-Allen, James Redd, Sean Van Demark, Assistant United States Attorneys, DOJ-USAO, San Diego, CA, for Plaintiff. Federal Defenders, Jamie Elizabeth Schmid, Public Defenders, Theodore J. Torres, Assistant United States Attorney, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant.
U.S. Attorney CR, Assistant United States Attorney, U.S. Attorneys Office Southern District of California, Criminal Division, San Diego, CA, Ashley Kaino-Allen, James Redd, Sean Van Demark, Assistant United States Attorneys, DOJ-USAO, San Diego, CA, for Plaintiff. Federal Defenders, Jamie Elizabeth Schmid, Public Defenders, Theodore J. Torres, Assistant United States Attorney, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO SUPPRESS
[ECF NO. 16]
BARRY TED MOSKOWITZ, United States District Judge
Pending before the Court is Defendant Alexander Marquez's motion to suppress. (ECF No. 16). For the reasons discussed below, the motion will be granted in part and denied in part.
I. BACKGROUND
On May 31, 2023, a dog alerted to the spare tire of the defendant's car at the Tecate Port of Entry, and officers found fentanyl in a package in the spare tire. About four hours later, Agent Anthony Lyons and Agent Scott Templin interrogated the defendant, who was nineteen years old. They began by asking biographical questions.
After that, they read the defendant his Miranda rights and asked him if he understood them. (ECF No. 25, Exh. A at 10-11). The defendant said that he did. (Id.). The defendant then agreed to speak with the agents. (Id. at 11-12). He read the following sentences from a Miranda form: "I have read or someone has read to me the statement of my rights and I understand what my rights are at this time. I am willing to answer questioning without a lawyer present." (Id. at 12). The defendant acknowledged that those statements were true and signed the form. (Id.).
At the start of the interrogation, the defendant denied knowing that there were drugs in the car. (Id. at 12-13). The defendant did, however, "assume" the drugs were found in the back of the car—and by the spare tire, specifically. (Id. at 13). Agent Lyons thought the defendant knew the drugs were in the car and told him that the U.S. Attorney would decide what happens with his case. (Id. at 24-26).
Agent Lyons told the defendant it would be better for him, and that it would look better before the judge, to be honest and confess if he accepted money to drive the car across the border. (Id. at 26-27). Agent Lyons told the defendant that, "you don't have to convince any of us. You have to convince a judge that you were not involved." (Id. at 27). "[T]the way the law looks at things," the agent told the defendant, "it's your vehicle and you're responsible for what you bring in." (Id.). "[E]ven if you truly didn't know what was in that vehicle," the agent said, "[y]ou're responsible." (Id.).
Agent Lyons asked the defendant for "permission to take a look through [his] phones" and read him a consent-to-search form. (Id. at 28). The defendant agreed to allow the agents to search his phone, read out loud the part of the form providing that he voluntarily agreed to the search, and signed the form. (Id. at 28-29).
After a short break to look through the defendant's phone, the agents asked the defendant if he remembered his rights, and he said that he did. (ECF No. 16, Exh. B at 1). The agents wanted to know why the defendant used his phone to share his location with a friend. (Id.). The defendant claimed he shared his location so his friend would know he could not have drinks. (Id. at 1-2). The agents did not believe the defendant. (Id. at 2-4). The agents also asked the defendant why there was a video on his phone of someone leaving keys under a car seat. (Id. at 7). The defendant said he made the video for his friend, who was helping him fix his car battery. (Id. at 7-8). The agents asked why they could not find a message showing the defendant sending that video to his friend, and the defendant said that he deletes his conversations. (Id. at 9).
The agents explained that "this is trade craft. This is what smugglers do." (Id.). Agent Lyons told the defendant, "in a sense we're trying to help you out," and that it would look better if the defendant told the truth. (Id. at 10).
Agent Lyons told the defendant that:
A judge is gonna see all this. A judge that sees all of this all the time. Do you wanna walk into that judge not cooperating or maybe do you wanna help lead our investigation into a different direction? That's the decision you have to make . . . for your family and especially your 9-year-old child. Okay? (Id. at 11).Agent Lyons soon thereafter told the defendant that, "[p]eople get life sentences for [fentanyl] for killing people with that" and "[t]hat's going down on you. Judges aren't being very soft on fentanyl right now." (Id. at 13).
Agent Lyons told the defendant that if someone persuaded the defendant to drive the drugs across the border by promising it would be easy, then that was dishonest. (Id.). The defendant then acknowledged, "Yes, they said it was gonna be easy. Okay." (Id.). The defendant then admitted he was paid to drive the car across the border and knew there would be drugs in the car. (Id. at 14). The defendant said that he thought he was driving about "six bags" of cocaine across the border. (Id. at 15). The conversation ended shortly thereafter.
The defendant claims his statement and consent to search his phone were involuntary and argues that: (1) the agents threatened to tell the court and the prosecutor that he did not cooperate; (2) the agents mislead him about the legal process; (3) the agents told him he would not serve time if he confessed; (4) the agents used his concern for his child against him; and (5) his personal circumstances precluded him for waiving his rights voluntarily.
The government must prove that a confession was voluntary by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). A statement is involuntary if it was induced by threats, violence, promises or improper influence. See Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 50 L.Ed.2d 194 (1976) (per curiam). A threat or promise by law enforcement officers must "overbear the suspect's will" in order for the subsequent statement to be involuntary. See United States v. Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988); see also Henry v. Kernan, 197 F.3d 1021, 1026 (9th Cir. 1999) ("[A] confession is involuntary only if the police use coercive means to undermine the suspect's ability to exercise his free will.").
A "promise to inform the government prosecutor about a suspect's cooperation does not render a subsequent statement involuntary, even when it is accompanied by a promise to recommend leniency or by speculation that cooperation will have a positive effect." Guerrero, 847 F.2d at 1366; see also United States v. Coleman, 208 F.3d 786, 791 (9th Cir. 2000) (ruling that "an inducement to cooperate" was "insufficient to establish involuntariness"); United States v. Brandon, 633 F.2d 773, 777 (9th Cir. 1980) (rejecting argument that agents coerced informant by offering to mention his cooperation to the prosecutor and to recommend leniency).
However, "there are no circumstances in which law enforcement officers may suggest that a suspect's exercise of the right to remain silent may result in harsher treatment by a court or prosecutor." United States v. Harrison, 34 F.3d 886, 891-92 (9th Cir. 1994). Thus, agents may not suggest that the failure to cooperate will be reported to a judge and may lead to a harsher punishment. Id. at 891; see also Tobias v. Arteaga, 996 F.3d 571, 582-83 (9th Cir. 2021) (detailing and applying Harrison's "bright-line rule").
When assessing whether a confession was voluntary, courts generally "consider the following factors: the youth of the accused, his intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep." United States v. Haswood, 350 F.3d 1024, 1027 (9th Cir. 2003).
II. DISCUSSION
The Court finds United States v. Harrison instructive here. In that case, the interrogating agent told Harrison that:
[S]he might be facing up to twenty years in prison. He asked her whether she thought it would be better if the judge were told that she had cooperated or had not cooperated. Harrison responded that it would be better if she talked to the agents and they told the judge that she had cooperated. She then gave a statement to the agents.Harrison, 34 F.3d at 890. The Ninth Circuit held that Harrison's statement should have been suppressed because the agents improperly suggested that "they might inform the court that she had not cooperated." Id. at 891. Because of that suggestion, "Harrison could only conclude that she might suffer for her silence." Id. The agents' suggestion was not "compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means . . . ." Id. at 892. Because "Harrison broke her silence only after the agent asked whether she thought it preferable if the judge were informed that she had cooperated or not cooperated," the Ninth Circuit held that the government did not "meet its burden of proving that Harrison decided of her own free will to give a statement." Id.
Here, Agent Lyons told the defendant that he had to convince a judge he was not "involved" with the drugs, that he was responsible for the drugs even if he did not know they were in the car, and that judges giving defendants life sentences for fentanyl would "go down" on him. Moreover, Agent Lyons asked the defendant if he wanted to "walk into that judge not cooperating"—suggesting, as in Harrison, that he would suffer for exercising his constitutional right not to incriminate himself. Additionally, the agent referenced the defendant's child implicating that the harsher penalty for not cooperating would prevent the defendant from seeing his child for a longer period of time.
Based on those facts, the government has not satisfied its burden of proving that the defendant's statements were voluntary. The Court is convinced that the agents used "coercive means to undermine the suspect's ability to exercise his free will." See Henry, 197 F.3d at 1026. After all, "[s]ubtle psychological coercion suffices as well, and at times more effectively, to overbear 'a rational intellect and a free will.' " United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir. 1981). To be sure, the facts of Harrison differ slightly because there the suggestive comment was made when the defendant was deciding whether to waive her rights. Nevertheless, the Ninth Circuit's analysis there strongly supports a holding that the defendant's confession was not voluntary.
As in Harrison, the agents here improperly suggested that the defendant would receive a harsher penalty for not incriminating himself. And as in Harrison, the defendant confessed shortly after the agent's improper suggestion. The agent also referenced the defendant's child "to cause [him] to fear that, if [ ]he failed to cooperate," he would not see his child for a longer period of time. See Tingle, 658 F.2d at 1336 (finding the defendant's statements involuntary in part because "the purpose and objective of the interrogation was to cause Tingle to fear that, if she failed to cooperate, she would not see her young child for a long time").
In short, the agent's improper suggestion violated the defendant's Fifth Amendment right not to incriminate himself and, combined with the agent's other troubling incorrect statements of the law, overbore the defendant's will. See id.; id. at 1335 (explaining that the "fifth amendment secures the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty for such silence" (quotation marks, ellipsis, and quotation omitted)); Harrison, 34 F.3d at 891-92. The Court will thus suppress the defendant's statements following the agent's comment about how defendants receiving life sentence for fentanyl would "go down" on the defendant.
However, the Court denies the defendant's motion for all statements before that point and for the search of the defendant's phone. At the start, the defendant voluntarily agreed to speak with the agents. He acknowledged that he understood his Miranda rights and knowingly, voluntarily, and intelligently waived them. Until he was pressured as set forth above, his statements were voluntary.
He also voluntarily consented to the agents searching his phone, and voluntarily signed the consent form. The defendant understood his rights and voluntarily waived them. The Court is not persuaded that the defendant's age or personal circumstances rendered his original statement or his consent to the phone search involuntary. See generally Balbuena v. Sullivan, 980 F.3d 619, 630 (9th Cir. 2020) (upholding ruling that a sixteen-year-old defendant's statement was voluntary). In short, the defendant's initial choice to speak with the agents and to consent to the phone search were "the product of a free and deliberate choice rather than intimidation, coercion, or deception," and were "made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." See Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). Therefore, the Court denies suppression of the initial statement and the evidence from the phone search.
III. CONCLUSION
For the reasons stated, the defendant's motion to suppress is granted in part and denied in part. (ECF No. 16). The Court suppresses the defendant's statements after line 527 in Exhibit B of ECF No. 16.