Opinion
Criminal Action No. 00-20094-KHV
September 25, 2000
MEMORANDUM AND ORDER
During a warrantless search of defendant's temporary residence, police discovered a firearm and the fact that he was an illegal alien. On July 3, 2000, the United States charged him with being an illegal alien in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5) and 924(a)(2). This matter is before the Court on the Motion To Suppress Evidence And Memorandum In Support (Doc. #22) which defendant filed August 24, 2000. On September 12, 2000, the Court held an evidentiary hearing. Based on the evidence of record, after careful consideration, the Court finds that for reasons set forth below, defendant's motion should be overruled.
Factual Background
On June 27, 2000, INS agents learned that a drug offender had purchased cocaine from a house at 1248 Bunker in Kansas City, Kansas. Following this tip, DEA Special Agent Tim McCue and Task Force Officer Santiago Vasquez went to the dwelling in plain clothes to question the residents. They did not have a warrant to search the home. Mark Romero, a Kansas City, Kansas police officer, Dan Stitt, a DEA supervisor, and other unnamed DEA agents accompanied McCue and Vasquez.
When they arrived at the home McCue and Vasquez knocked on the front door. Romero stood behind them in uniform, with his marked police car directly in front of the residence. A young girl opened the door and McCue and Vasquez asked to speak with her mother or father. At this point the factual accounts of the incident differ. According to the testimony of McCue and Vasquez, defendant came to the door while they were talking with the girl. The officers noticed other children in the home. Vasquez, who is fluent in Spanish, identified himself as a police officer, determined that defendant was a temporary resident of the dwelling, and asked if the officers could come in to search for drugs. Defendant, who speaks only Spanish, replied in the affirmative.
Defendant agrees that the officers had permission to enter, but argues that they obtained it from the child and not from him. The only evidence on this point comes from Niles Shirkey, an investigator for the office of the Federal Public Defender, who interviewed the children a month after the incident. Shirkey is a credible witness, but without an opportunity to directly evaluate the testimony of the children, the Court has no reason to credit their version of the events. It accepts as accurate the government's account of the occurrence.
The Court recognizes that the Federal Rules of Evidence do not apply to hearings on motions to suppress. See United States v. Jackson, 213 F.3d 1269, 1281-82 (10th Cir. 2000). The Court, however, is not required to accept every hearsay statement as true.
Vasquez and McCue entered the residence after defendant signed a Consent to Search form which was written in both Spanish and English. They did not explicitly tell defendant that he had a right to refuse the search or a right to decline to sign the consent form. Following safety precautions, Vasquez asked defendant if any firearms were in the home. Defendant replied that he had a gun under his bed. After retrieving the weapon, Vasquez discovered that defendant was an illegal immigrant.
McCue and Vasquez testified that their weapons remained holstered throughout the encounter with defendant and that they did not coerce him in any way or threaten to obtain a search warrant. Romero told the Court that he was present in uniform with a patrol car to reassure the household residents that the officers were authentic, and not for purposes of intimidation. Other officers, including Stitt, provided security for the perimeter of the home.
Analysis I. Resident Illegal Aliens Are Entitled To Fourth Amendment Protection
The government first argues that as an illegal alien, defendant lacks standing to claim a Fourth Amendment right to privacy in his temporary residence. As the government notes, the Supreme Court has held that non-resident illegal aliens in foreign countries do not have constitutional rights. Response To Defendant's Motion To Suppress (Doc. #23) at 2-3 (citing United States v. Verdugo-Urquidez, 494 U.S. 259, 261 (1990)). Verdugo did not hold that resident illegal aliens lack Fourth Amendment protection, but only that rights should be assessed based on the connection between the alien and the United States. Id. In United States v. Iribe, 806 F. Supp. 917, 919 (D.Colo. 1992), the District of Colorado rejected the contention that aliens lack Fourth Amendment rights. On appeal, the government apparently did not challenge the holding. The Tenth Circuit thereafter accepted without discussion the district court's holding that illegal aliens have Fourth Amendment rights. United States v. Iribe, 11 F.3d 1553 (10th Cir. 1993) (overruling part of the trial court opinion on other grounds); see also United States v. Guitterez, 983 F. Supp. 905, 916 (N.D.Cal. 1998) (Fourth Amendment is substantive bar protecting aliens and citizens alike), overruled on other grounds, 203 F.3d 833, 1999 WL 1128650 (9th Cir. 1999). Based on Iribe and without any contrary authority, the Court is hesitant to narrow the reach of Fourth Amendment rights. The Court therefore assumes without deciding that defendant has standing to challenge the search under the Fourth Amendment.
II. Defendant Voluntarily Consented To The Search
The events which surround defendant's initial consent and later acquiescence to the search of the residence do not bear any marks of undue police coercion. To determine whether consent is voluntary, the Court must look to the totality of the circumstances. Factors relevant to the determination include: "physical mistreatment, use of violence or threats of violence, promises or inducements, deception or trickery, and the physical and mental condition and capacity of the defendant." United States v. Glover, 104 F.3d 1570, 1583-84 (10th Cir. 1997). In order to admit evidence obtained during a consent search, the government must "produce clear and positive testimony that the consent was unequivocal, specific, and freely given" and also show a lack of duress or coercion. Id. at 1584. The government has met that burden in this case.
In this case, the record does not suggest that police unlawfully obtained defendant's consent. Defendant does not allege that any agent used physical force or intimidation. He argues that "knock and talks" are inherently coercive, but the District of Kansas has upheld this method of questioning. See United States v. Park-Swallow, No. 00-40019-01-SAC, 2000 WL 821383, *4-5 (D.Kan. 2000). Moreover, the record does not establish a colorable claim of coercion or suggest that defendant possessed a reduced mental or physical capacity that would negate voluntary consent. Officers testified that defendant signed the consent form of his own free will, and the record contains no evidence to the contrary. The consent form was written in both Spanish and English. The form did not mention defendant's right to refuse consent, but this fact alone does not establish a Fourth Amendment violation. The Supreme Court has rejected the proposition that police must specifically advise defendant that he has a right to refuse a search. See Schneckloth v. Bustamonte, 412 U.S. 218, 232-33 (1973); accord Ohio v. Robinette, 519 U.S. 33, 39-40 (1996) (affirming Schneckloth principle that suspect need not be told he is free to refuse a search or seizure); United States v. Broomfield, 201 F.3d 1270, 1275-76 (10th Cir. 2000) (not necessary to tell suspect he has right to refuse to answer questions). Such advice weighs heavily in favor of a finding of voluntariness, but it is not a prerequisite. See United States v. Fernandez, 18 F.3d 874, 882-83 (10th Cir. 1994), accord United States v. Creech, 2000 WL 1014868 (10th Cir. 2000). The Court finds that the officers were not obligated to tell defendant that he had a right to refuse the search and that his consent was voluntarily given. Consequently, defendant's motion to suppress is overruled.
IT IS THEREFORE ORDERED that defendant's Motion To Suppress Evidence And Memorandum in Support (Doc. #22) filed August 24, 2000 be and hereby is OVERRULED.