Opinion
Case No. 8:02CR48
August 6, 2002
MEMORANDUM AND ORDER
INTRODUCTION
This matter is before the Court on the Report and Recommendation (Filing No. 22) issued by Magistrate Judge Kathleen Jaudzemis recommending denial of the Motion to Suppress filed by the Defendant, Agustin Cuevas Cordova (Filing No. 14). Cordova filed a Statement of Objections to the Report and Recommendation (Filing No. 27) as allowed by 28 U.S.C. § 636(b)(1)(C) and NELR 72.4.
Cordova is charged in a one-count Indictment with possession with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1). Cordova seeks an order suppressing evidence obtained as a result of his February 7, 2002 arrest.
Following an evidentiary hearing on the Motions, Magistrate Judge Jaudzemis issued a Report and Recommendation in which she determined: 1) probable cause existed for the traffic stop; 2) the traffic stop was lawful and was reasonably related in scope to the circumstances that justified the stop; and 3) Cordova voluntarily consented to the search of the car. On the basis of these determinations, Judge Jaudzemis recommended that Cordova's Motion to Suppress be denied.
Cordova filed a Statement of Objections to the Magistrate Judge's Report and Recommendation. (Filing No. 27.) The Statement of Objections was supported by a brief.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court shall make a de novo determination of those portions of the report, findings, and recommendations to which Cordova has objected. The Court may accept, reject, or modify, in whole or in part, the Magistrate Judge's findings or recommendations. The Court may also receive further evidence or remand the matter to the Magistrate Judge with instructions.
STATEMENT OF FACTS
The Magistrate Judge provided a detailed account of the events leading up to the traffic stop, Cordova's consent to search, and the search of the car. The Court has considered the transcript of the hearing conducted by the Magistrate Judge on May 20, 2002 (Filing No. 19). The Court also carefully viewed the evidence. The Court adopts the Magistrate Judge's version of the facts set out on the Report and Recommendation. In particular, the Court notes that it listened several times to the portion of the videotape where Cordova is asked for consent to search. The Court agrees with the Magistrate Judge that in response to the question "can I search your vehicle," Cordova did not answer "Que?" as argued by the defense but rather answered "Okay."
OBJECTIONS
Cordova objects to the portion of the Report and Recommendation in which the Magistrate Judge concludes that Cordova voluntarily consented to Trooper Dowling's request to search the vehicle. Cordova further argues that any consent was involuntary due to the language barrier and Cordova's acquiescence to the Trooper's authority.
ANALYSIS
Consent is voluntary if it results from "an essentially free and unconstrained choice" rather than from "duress or coercion." Schneckloth v. Bustamonte, 412 U.S. 218, 225, 227 (1973). Whether consent is voluntary depends upon the "totality of the circumstances," including "the characteristics of the accused and the details of the interrogation." Id. at 226. When evaluating such circumstances, the court pays particular attention to the characteristics of the person giving consent and to the encounter that resulted in the alleged consent. United States v. Thomas, 93 F.3d 479, 486 (8th Cir. 1996). Relevant characteristics of the suspect include age, intelligence and education; chemical intoxication, if any; whether the individual was informed of Miranda rights or the right to withhold consent; and whether, due to previous arrests, the suspect was aware of rights afforded to criminal suspects. United States v. Chaidez, 906 F.2d 377, 380 (8th Cir. 1990). To assess the environment of the encounter, the court considers the length of time that the suspect was detained and questioned; whether the police intimidated the suspect; whether the suspect relied upon promises or misrepresentations made by the police; whether the suspect was in custody; whether the encounter occurred in a public or secluded place; and whether the suspect objected. Id.
Also, consent may be inferred from "words, gestures, and other conduct." United States v. Jones, 254 F.3d 692, 695 (2001). Chatting with the officer may suggest voluntary consent. United States v. Gleason, 25 F.3d 605, 607 (8th Cir. 1994).
The Court finds that, in such circumstances demonstrated in this case, it would be prudent for an officer encountering a non-English-speaking suspect to obtain the necessary assistance to allow the officer to freely converse with the suspect in his or her native language. It would also have been advisable, particularly under these circumstances, to use a bilingual consent to search form, assuming that Cordova had the ability to read the Spanish or English languages. However, after very careful consideration of the totality of the circumstances, the Court finds the following facts particularly persuasive in this case: Cordova himself used the word "search" appropriately before he was asked for consent to search; Trooper Dowling testified that when Cordova consented to the search, he also nodded his head "yes" and got back into the cruiser without being asked; and at no time did Cordova express discomfort or disagreement with the traffic stop, including during the time he and Trooper Dowling waited for the canine to arrive or during the search.
The Court also notes Cordova's argument in his Objections that his acquiescence to authority support the argument that any consent was involuntary. However, no evidence was presented directly relating to this issue.
In summary, the videotape corroborates Trooper Dowling's testimony.
CONCLUSION
For the reasons discussed, the Court finds that the Defendant Agustin Cuevas Cordova's consent to search the vehicle was voluntary. The Court concludes that the Magistrate Judge's Report and Recommendation should be adopted, and the Defendant's Motions to Suppress will be denied.
IT IS ORDERED:
1. The Magistrate Judge's Report and Recommendation (Filing No. 22) is adopted in its entirety; and
2. The Defendant's Motion to Suppress (Filing No. 14) is denied