Opinion
Criminal No. 03-178(2) (JRT/FLN)
August 22, 2003
Andrew R. Winter, OFFICE OF THE UNITED STATES ATTORNEY, Minneapolis, MN for plaintiff
J. Richard Soderberg and R.J. Zayed, FISH RICHARDSON, Minneapolis, MN for defendant
ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Defendant Tonatiuh Ortiz Mandujano ("Mandujano") is charged with conspiracy to distribute methamphetamine, and aiding and abetting possession with intent to distribute methamphetamine. Mandujano made motions to suppress evidence obtained as a result of detention and subsequent arrest and evidence obtained as a result of arrest, and to suppress statements. In a Report and Recommendation ("RR") dated July 2, 2003, United States Magistrate Judge Franklin L. Noel recommended that Mandujano's motions to suppress be denied. Mandujano objects to the RR on several grounds.
The Court has conducted a de novo review of Mandujano's objections to the RR pursuant to 28 U.S.C. § 636 (b) (1) (C) and D. Minn. LR 72.1(c) (2). For the reasons set forth below, the Court adopts the July 2, 2003 Report and Recommendation of the Magistrate Judge.
In his objections, defendant also included an appeal to the portion of the Magistrate Judge's Order dated July 1, 2003 relating to disclosure of the identity of the government's informant. The appeal is under advisement.
BACKGROUND
The following facts are summarized from the RR, as well as the parties' memoranda.
Officers observed a Chevy Blazer, driven by Mandujano, pick up Sagrero. The pair drove to a residence on Lawson Street in St. Paul, and then to Mandujano's residence. Mandujano went into both residences for short periods of time. One of the surveillance officers, Deputy Martin of the Hennepin County Sheriff's Department, testified that Mandujano was not taking a direct route and was driving in an "evasive" manner.
As the Blazer approached the pre-set meeting location, police initiated an investigative stop. Both Mandujano and Sagrero were asked to step out of the Blazer, and Deputy Parker saw a brick-shaped package wrapped in clear plastic on the floorboard on Sagrero's side (the passenger side). Officers suspected the package contained methamphetamine, and a drug dog then alerted to the passenger-side door seam, the driver's door handle, and to the suspected methamphetamine itself. The substance in the brick-shaped package was later tested, and was found to be methamphetamine.
Both Mandujano and Sagrero were arrested. Mandujano was taken to the Hennepin County Sheriff's office, where he was interviewed by Deputy Martin. The interview was videotaped. Deputy Martin read Mandujano the Miranda warning, and interviewed him for approximately ten to fifteen minutes.
ANALYSIS
I. Initial Stop of Defendant
Law enforcement may stop persons in the absence of probable cause under limited circumstances. United States v. Eisenberg, 807 F.2d 1446, 1450 (8th Cir. 1986) (citing United States v. Hensley, 469 U.S. 221 (1985); United States v. Doffin, 791 F.2d 118 (8th Cir. 1986) (per curiam); Terry v. Ohio, 392 U.S. 1 (1968)). Officers may stop a moving vehicle "to investigate a reasonable suspicion, based on specific and articulable facts, that its occupants are or have been involved in criminal activity." Id. (citing United States v. Doffin, 791 F.2d 118, 120 (8th Cir. 1986)).
To have "reasonable suspicion" of criminal activity, the officer must acquire a "particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Villa-Chaparro, 115 F.3d 797, 801-02 (10th Cir.), cert. denied, 522 U.S. 926 (1997). Despite the considerable deference courts afford to the observations and conclusions of police, United States v. Dickerson, 58 F.3d 1258, 1262 (8th Cir. 1995), an officer may not detain someone on an "unparticularized suspicion or hunch." Terry, 392 U.S. at 27.
In this case, the officers point to the following "particularized and objective" basis for stopping defendant. First, the officers had information from a CRI that Mandujano's passenger had been distributing methamphetamine in the Twin Cities area, and she had a scheduled methamphetamine transaction set up for that day (April 16, 2003). In addition, officers observed Mandujano driving through alleys and taking what the officers considered to be an indirect route. The officers characterized this as "suspicious" and the type of driving consistent with evasive counter-surveillance techniques used when someone is attempting to detect law enforcement surveillance. Mandujano was stopped by a marked police car just a few blocks from the location where the drug transaction was to take place. The Magistrate Judge determined that these circumstances justified an investigative stop.
Tips from confidential reliable informants can provide sufficient basis for an investigatory stop. Adams v. Williams, 407 U.S. 143, 146-47 (1972); United States v. Spotts, 275 F.3d 714, 720 (8th Cir. 2002) ("A tip from a known informant can suffice by itself to establish reasonable suspicion for a vehicle stop."). In this case, the officers had established surveillance outside of Sagrero's home, and had knowledge of a drug transaction that was to take place that day. The officers had a tip not from an anonymous informant, but from a confidential reliable source. An important additional consideration is that officers had a recorded conversation between the CRI and Sagrero setting up a meeting to exchange a pound of methamphetamine. Cf., Spotts, 275 F.3d at 720 (information from anonymous tipster should be verified or corroborated to give rise to adequate reasonable suspicion). Finally, Mandujano and Sagrero were approaching the location of the arranged transaction. The Court finds this combination of events and information adequate to establish reasonable suspicion for an investigatory stop.
Because the Court finds the information from the CRI adequate, the Court does not analyze the officer's characterization of Mandujano's driving as demonstrating "evasive counter surveillance." But the Court does note that "[l]aw enforcement officers may perceive meaning in actions that appear innocuous to the untrained observer." United States v. Gutierrez-Daniez, 131 F.3d 939, 942 (10th Cir. 1997) (citation omitted).
The narcotics were in plain view, once the officers lawfully stopped Mandujano. The Court agrees with the Magistrate Judge's finding that the three requirements of the "plain-view" doctrine are satisfied in this case. United States v. Hughes, 940 F.2d 1125, 1126 (8th Cir. 1991) (setting out elements (1) the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed, (2) the object's incriminating character is immediately apparent, and (3) the officer has a lawful right of access to the object itself) (quoting Horton v. California 496 U.S. 128, 136-37 (1990)). Because the Court finds the stop justified by reasonable suspicion, and the requirements of the plain view doctrine satisfied, the Court denies Mandujano's motion to suppress evidence seized from the vehicle.
Mandujano objects to the Magistrate Judge's finding that the drugs were found "on the rear floorboard behind the passenger, Soberenes' seat." It is irrelevant, for the purposes of this motion, whether the drugs were behind the driver or the passenger seat, so long as they were in plain view.
The Court also agrees with the Magistrate Judge's conclusion that probable cause supported the arrest of Mandujano, once the drugs were found. Mandujano bases his objection to the probable cause finding on the fact that the drugs were found on the floorboard near the passenger seat, as opposed to behind his seat. The Court does not credit this argument. As a practical matter, of course, the drugs easily could have slid from one part of the car to another during transit, or Mandujano could have simply placed the package on that side of the floor so as not to interfere with his driving. In addition, a large amount of drugs in a car driven by an individual provides probable cause for an arrest, regardless of where in the car the drugs are found. E.g., United States v. Turner, 933 F.2d 240, 244 (4th Cir. 1991) (holding that observing cocaine and drug paraphernalia in plain view between the seats in vehicle justified arrest of driver).
In particular, he argues that "No drugs were found on Mr. Mandujano's side." (Defendant's pre-trial brief, [Docket No. 30] at 4.)
II. Post-Arrest Statements
A. Waiver of Miranda Rights
The Court next turns to Mandujano's motion to suppress statements made after his arrest. Mandujano argues that he did not make a knowing, voluntary, and intelligent waiver of his rights prior to being questioned by Deputy Martin. He bases this argument on two grounds: First, he argues his English skills are not adequate to have understood the warning, and second, that he never explicitly or expressly waived his rights, he merely acquiesced to answer questions. The Court therefore must determine whether Mandujano's command of English was such that the waiver was knowing, intelligent and voluntary.
The Court notes that inquiries such as this could almost effortlessly be avoided with minimal burden to law enforcement by simply offering the warning in Spanish. In this instance, officers could have offered Mandujano a written explanation of his rights (in Spanish), or read him the warning and conducted the interview in Spanish. Had officers done either of those, the Court would not be in the difficult position of attempting to divine Mandujano's level of comprehension.
Custodial interrogation must be knowing, intelligent, and voluntary to satisfy Constitutional requirements. Miranda v. Arizona, 384 U.S. 436, 478-79 (1966). The burden is on the government to prove that the waiver was constitutionally sufficient.
In this case, Mandujano challenges not the voluntary nature of the statement taken, but the characterization that his waiver was either knowing or intelligent. Mandujano also argues that, while he answered that he understood his rights, he was not asked if he wanted to waive those rights. He simply continued answering questions, as he had when his rights were initially read.
Although Mandujano can communicate in English, it is clear from the videotape that Mandujano is far from fluent. Deputy Martin asked Mandujano if he understood English, and after Mandujano said yes, Martin proceeded to read Mandujano his rights in English. Martin read the rights slowly, pausing briefly after each clause for a response from Mandujano. Martin used rote language while reading Mandujano his rights. For example, he noted that "you have the right to remain silent," but did not further explain, what this meant. After Martin read Mandujano the Miranda warning, Martin continued the interview. Mandujano and Martin conversed in English for approximately ten minutes. Mandujano was responsive to the questions, though Martin at times clarified (or simplified) questions by using slightly different language. It did not appear that Mandujano was struggling to understand the questions.
In addition to the videotape Agent Vasper testified that when he spoke Spanish to Mandujano, Mandujano responded in English. Mandujano's responses persuaded Vasper to stop speaking Spanish, and to switch to English.
Although the Court recognizes, and appreciates, Mandujano's argument that cultural differences and language difficulties are pertinent to whether a waiver of rights is "knowing and intelligent," the Court finds that in this case there is sufficient evidence that Mandujano understood his rights. Therefore a waiver, if indeed there was one, was knowing and intelligent.
Mandujano argues that even if he knew his rights, he did not waive them. The Constitution, however, does not require that officers use a waiver form, or obtain an affirmative answer to a question such as "Do you waive these rights." See North Carolina v. Butler, 441 U.S. 369, 373 (1979). Waiver can be inferred by conduct, and a willingness to answer questions after acknowledging Miranda rights is sufficient to constitute an implied waiver. Burket v. Angelone, 208 F.3d 172, 198 (4th Cir. 2000) (citing United States v. Frankson, 83 F.3d 79, 82 (4th Cir. 1996).). In this case, Mandujano did not explicitly waive his rights, but he continued to answer questions after he was advised of his Miranda rights. Because the Court finds that he understood his rights sufficiently to make a knowing and intelligent decision, the Court finds that he waived his rights by continuing to answer Deputy Martin's questions.
B. Consulate Notification
Defendant states, without elaboration or citation to authority, that his rights were violated because he was not notified of his right to contact the Mexican consulate until after the interview. Although not specifically stated, defendant might be arguing that officers violated Article 36 of the Vienna Convention on Consular Relations by failing to promptly inform Mandujano of his right to speak with the Mexican consulate. This argument is unavailing.
Article 36 of the Vienna Convention provides in relevant part:
[I]f [a detainee] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph . . .
Vienna Convention on Consular Relations, Art. 36(b), April 24, 1963, 21 U.S.T. 77 (emphasis added).
The Court has addressed this argument at length in previous orders. Because Mandujano only mentioned, and did not elaborate on this argument, the Court will only briefly address why it is not successful. For a full discussion of the issue, see United States v. Rumbo Rosendiz Manzanares-Valle, Crim. No. 01-186 (JRT/FLN), Order (D. Minn. Nov. 26, 2001).
The Vienna Convention provides that government authorities should inform those arrested in a foreign country of the right to communicate with their home country's consulate. See Vienna Convention on Consular Relations, art. 36, April 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820, 1969 WL 97928. The Vienna Convention came into force in the United States on December 24, 1969, see 21 U.S.T. 77, and the requirement to advise foreign nationals of their right to speak to a member of their consulate is codified in Department of Justice Regulations at 28 C.F.R. § 50.5.
As this Court recently noted, however, it is not clear that the Vienna Treaty creates rights that are privately enforceable in federal courts. See United States v. Rumbo-Rosendiz Manzanares-Valle, Crim. No. 01-186 (JRT/FLN), Order (D. Minn. Nov. 26, 2001). Further, even if the Treaty does create privately enforceable rights, every circuit to address the question has determined that suppression is not the appropriate remedy for violations of Article 36. See United States v. Minjares-Alvarez, 264 F.3d 980, 986 (10th Cir. 2001); United States v. Jimenez-Nava, 243 F.3d 192, 198-200 (5th Cir. 2001); United States v. Page, 232 F.3d 536, 540 (6th Cir. 2000); United States v. Chaparro-Alcantara, 226 F.3d 616, 621-22 (7th Cir. 2000); United States v. Cordoba-Mosquera, 212 F.3d 1194, 1196 (11th Cir. 2000); United States v. Lombera-Camorlinga, 206 F.3d 882, 885 (9th Cir. 2000) (en banc); United States v. Li, 206 F.3d 56, 60 (1st Cir. 2000) (en banc).
The Court discussed at length the rationale for this holding in United States v. Rumbo-Rosendiz Manzanares-Valle, Crim. No. 01-186 JRT/FLN, Order (D. Minn. Nov. 26, 2001). In that Order, the Court concluded that the purpose and history of both the exclusionary rule and the Convention support the determination that the exclusionary rule is an inappropriate remedy for a violation of Article 36. In sum, the Court reasoned that the Vienna Convention does not purport to create rights on par with those guaranteed in the Fourth, Fifth, or Sixth Amendments to the United States Constitution. Id. Mandujano has not shown that he was prejudiced by the failure to advise him of his rights under the Convention; therefore, even if suppression was an appropriate remedy in certain cases, the suppression of Mandujano's statements is unwarranted.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, the Court OVERRULES defendant Mandujano's objections [Docket No. 39] and ADOPTS the Magistrate Judge's Report and Recommendation [Docket No. 36]. Accordingly, IT IS HEREBY ORDERED that:
1. Defendant Mandujano's Motion to Suppress Evidence Obtained as a Result of Detention and Subsequent Arrest of Defendant and Evidence Obtained as a Result of Arrest [Docket No. 18] is DENIED.
2. Defendant Mandujano's Motion to Suppress Statements [Docket No. 19] is DENIED.