Opinion
Case No. 99-CR-403 W.
February 25, 2000
REPORT AND RECOMMENDATION
Jose Leyva, has been indicted on one count of possession with intent to distribute five grams or more of cocaine base ( 21 U.S.C. § 841(a)) (Count I), a petty offense for an alien eluding examination and inspection by immigration officers ( 8 U.S.C. § 1325(a)) (Count II), and being an illegal alien knowingly in possession of a firearm 18 U.S.C. § 922 (g)(5)) (Count III).
The defendant made a motion to suppress statements made by defendant about the offenses on the grounds that the statements were obtained illegally and were involuntary (File Entry #25). A memorandum in support of the motion was submitted (File Entry # 26). Hearing was held on the motion to suppress (File Entry #28). The defendant submitted a post hearing memorandum on the motion (File Entry #32). The United States submitted a response (docketed by unnumbered filing between entries 33,34, and 35). Following briefing, oral argument was set on the motion. However, counsel for Leyva did not appear and argument was vacated and the matter taken under advisement.
The case has been referred to the magistrate judge under 28 U.S.C. § 636 (b)(1)(B). This report and recommendation is submitted pursuant to the reference on the motion to suppress of defendant, Jose Leyva.
EVIDENCE
At hearing on the motion to suppress Officer Michael Ross, Salt Lake City Police Department, assigned to the Drug Endorsement Administration Metro Narcotics Task Force, testified he received information about controlled substances at 1310 Thornhill Drive, Apt. 404 in Salt Lake City (Tr. p. 10). A confidential informant had pointed out the apartment and said there was to two kilos of cocaine stored in the apartment. Id.
The officer attempted to investigate further in order to get a search warrant, but was limited and decided to conduct a "knock and talk" at the residence (Tr. p. 11), no warrant was obtained. Detective Ross and DEA Agent Aaron Raty and Special Agent Kleinschmidt approached the residence at 1:30 p.m. on June 23, 1999 for a knock and talk. The officers were all dressed in civilian clothes and a windbreaker which was marked "DEA" and had a badge (Tr.p. 12). A weapon was underneath Officer Ross' shirt and not visible (Id.). No guns were ever displayed (Tr.p. 13).
For recognition of the "knock and talk" procedure, see United States v. Scroger, 98 F.3d 1256 (10th Cir. 1996); United States v. Taylor 97 F.3d 1360 (10th Cir. 1996).
Ross walked to the door of the apartment and a female Hispanic woman, Wendy Guerrero, opened the door. The other officers were behind Ross who had knocked on the door (Tr.pp. 13-14). Ross showed his badge and told Guerrero the officers had knowledge of narcotics being inside. Guerrero invited the officers into the apartment. The officers entered. Guerrero said she was not renting the apartment but had been staying there for a short time. She said the renter, Jose, was asleep in the back bedroom (Tr. p. 14).
At that point, Officer Ross walked to the back bedroom with Guerrero following him. Ross knocked on the door of the bedroom and opened it. Ross then asked Guerrero to go to Detective Kleinschmidt back at the couch and Guerrero left and Ross closed the bedroom door (Tr. pp. 14-15).
The apartment is a small one bedroom apartment with a living room, kitchen, bathroom, and bedroom. When Ross opened the bedroom door, defendant Jose Leyva, was lying on the bed, his eyes were open (Tr. pp. 15-16). Ross walked over to Leyva and told him the officers were in the apartment because Ross had received information that others were storing narcotics in Leyva's apartment. He was dressed in shorts (Tr. p. 16). Leyva said nothing and Ross asked if Leyva could speak English and said "yeah, a little bit." Ross then asked Agent Raty to come into the room and speak to Leyva. Raty is fluent in Spanish (Tr. p. 17). Raty came into the room with a consent to search form and spoke to Leyva in Spanish and they spoke back and forth. Leyva signed the form. The form is in Spanish (Tr. p. 17).
Leyva was not under arrest or handcuffed. He was not taken into custody. After Leyva signed the form, Ross spoke to Leyva through Raty. Ross asked if there were narcotics in the apartment and Leyva said there were some underneath the dresser next to the bed (Tr. p. 18). Ross removed the drawer from a table next to the bed and found 34 grams of cocaine (Tr. p. 18). One of the officers asked Leyva if he would mind going into the living room with Guerrero and Agent Kleinschmidt. (Tr. p. 19). A scale was found under the bed and .380 caliber handgun on the floor of the closet. It was unloaded although it had a magazine with it (Tr. p. 19). Other drug paraphernalia was located and a plate with residue on it, which tested positive for cocaine (Id.).
The defendant was cooperative and did not appear frightened or upset. No promises were made or voices raised. The defendant's consent appeared voluntary (Tr. p. 20).
After the gun was located, a Miranda warning, in Spanish, was given to Leyva by Agent Raty. Defendant admitted he knew of the gun and narcotics and said he was storing them for a person from Price. He said his fingerprints would be on the gun because he had handled it (Tr. p. 21).
Miranda v. Arizona, 384 U.S. 436 (1966).
All three officers had been in Leyva's bedroom originally. Agent Raty may have sat on the bed while going over the consent form with Leyva (Tr. p. 22). The officers were wearing DEA wind breakers (Tr. p. 23). Guerrero did begin to walk to the bedroom with Officer Ross (Tr. p. 24). Officer Ross asked her to go and sit with Officer Kleinschmidt and Guerrero agreed. Ross did not ask Guerrero to bring Leyva out (Tr. pp. 24-25). This was because of concern for officer safety. The officer asked Leyva if he would please go out to the front room and sit with Kleinschmidt (Tr. p. 26). The defendant was given advice as to his constitutional rights in the consent form, before the search, and received a Miranda warning later when questioning occurred (Id.). Exhibit A is the consent form in Spanish (Tr. p. 27). Defendant wrote his address on the form and signed it. The door to the room was closed when Officer Ross went to the bedroom (Tr. p. 30).
Special Agent Aaron Raty with the DEA testified that he was with Officer Ross and Agent Kleinschmidt at the defendant's apartment (Tr. p. 31). He was to assist in translating and that was why he was with Officer Ross and Agent Kleinschmidt. The officers were wearing DEA wind breakers. No weapons were displayed (Tr. pp. 32-33).
Wendy Guerrero answered the door, the officers displayed their credentials, explained why they were there and requested permission to enter. They were invited in (Tr. p. 33). Guerrero explained she was not renting the apartment and that that person was in the bedroom. Guerrero had been residing in the apartment for a while. Detective Ross approached the bedroom where Leyva was and Ross knocked on the door, he was accompanied by Guerrero. Ross went in the bedroom and Agent Raty remained at the door. Ross spoke to Leyva, explained why the officers were there and asked Leyva if he understood English (Tr. pp. 34-35). Leyva said something like, "so, so" and Raty entered as a translator. Kleinschmidt remained in the living room with Guerrero (Tr. p. 35). Agent Raty explained, in Spanish, why officers were there and that Raty had a consent form and wanted consent to search the apartment. Leyva was very cooperative. Exhibit 1 is the consent to search form and is in Spanish (Tr. pp. 36-37). Exhibit 2 is the same form in English. Raty is fully converse in Spanish and could communicate with defendant (Tr. pp. 37-39).
Agent Raty advised defendant that the officers had information that there were drugs in his apartment and that was the purpose of their visit and that they would like permission to search the apartment (Tr. p. 40). The consent form was handed to the defendant who wrote his name and address and signed it (Tr. p. 41). The form was handed to defendant to read, he read it. The form authorized the search and advised defendant he did not have to permit the search.
The form actually states ". . . after having been informed of my constitutional rights that I cannot be subjected to a search . . . without a judicial order, and have my right to refuse or reject, the presence of law enforcement agents in my house . . . I hereby authorize . . ." The defendant had not been previously advised of such circumstances.
The agent had explained what the form was about. No threats were made, weapons displayed, or indication given that defendant would be taken into custody if he did not sign the form (Tr. pp. 43-44). The defendant signed the form. The search then began.
After defendant signed the form authorizing a search, Ross asked if there were drugs in the apartment and defendant pointed to a drawer and Ross asked Leyva to go sit with Agent Kleinschmidt and Guerrero (Tr. p. 45). After the search, Leyva was brought back into the bedroom and Agent Raty gave him a Miranda warning. Defendant said he understood and agreed to answer questions. Raty translated Ross' questions and the answers from Leyva (Tr. pp. 47-48). Defendant did not ask to leave and was not arrested or taken into custody at the end of the interrogation (Tr. p. 48).
There was no court order to allow entrance into the defendant's apartment. The directions to Leyva to sit with Agent Kleinschmidt were for officer safety (Tr. p. 52). Only Officer Ross and Agent Raty were in the bedroom (Tr. p. 56).
FINDINGS OF FACT
1. Officer Michael Ross, Salt Lake City Police Department, received information from an informant that two kilos of controlled substances were being stored in an apartment at 1610 West Thornbill Drive in Salt Lake City, Utah.
2. The officer made an attempt to investigate further, but concluded he did not have probable cause for a search warrant. The officer decided to pursue a walk and talk which is a procedure whereby a police officer would go to a residence, talk to the occupants, and obtain consent to enter and search for drugs.
3. Officer Ross, DEA Agent Aaron Raty, a fluent Spanish speaker, and Special Agent Kleinschmidt, DEA, went to the apartment at 1610 East Thornbill Drive at about 1:30 p.m. on June 23, 1999. They were dressed in casual civilian cloths, but with windbreakers labeled "DEA" and with a badge. They had weapons but they were not visible during the episode. Officer Ross went to the apartment of defendant and after a while a Hispanic woman, Wendy Guerrero, answered the door. Ms. Guerrero had been staying at the apartment for awhile and was the friend of the apartment renter, defendant Jose Leyva.
4. Officer Ross displayed his badge to Guerrero and told her they had knowledge of narcotics being inside. Guerrero invited the officers into the apartment. No force or threat was made and Guerrero acted voluntarily in inviting the officers to enter the apartment. Guerrero advised the officers she was not the renter but had been staying on the premises and the renter, Jose Leyva, was asleep in the back bedroom.
5. The door to the bedroom was closed and Officer Ross and Guerrero approached the bedroom. Ross told Guerrero to go out and sit with Agent Kleinschmidt. Ross knocked and then opened the door and observed Leyva lying on the bed, with his eyes open. The defendant was not asleep, disabled, or unable to understand. Ross walked over to Leyva and Ross advised him as to why the officers were in the apartment and the information about others storing narcotics in the apartment. Leyva was dressed in shorts. Leyva did not reply and Ross asked if Leyva could speak English, and Leyva said "yeah, a little bit." Ross then asked Agent Raty to come to the room and speak to Leyva in Spanish.
6. Agent Raty explained in Spanish, again, why the officers were present. Raty stated he had a consent form and wanted consent to search the apartment. The consent form was in Spanish (Exhibit A). Raty advised Leyva that the officers had information that there were drugs in Leyva's apartment and wanted permission to search. The consent form (in Spanish) was handed to Leyva to read, he read it. The form authorized the search by Officer Ross and Agent Raty to search Leyva's apartment and to seize property they desired. The authorization confirmed the search authorization was voluntary. It was signed by Jose Leyva. The authorization stated that Leyva had been informed of his constitutional rights that he could not be subjected to a search of his premises without a judicial order and of his right to refuse and reject the officers' presence. Such advice was not previously given, but was clearly implicit and expressed in the authorization, so that when Leyva read the document, he was informed of such rights. The authorization was voluntary and defendant was cooperative.
7. After Leyva signed the authorization for the search, Officer Ross asked Leyva if there were drugs in the apartment. Leyva pointed to a dresser and stated where the drugs could be located. Ross opened a drawer in the dresser and found cocaine. Officer Ross asked Leyva to go and sit with Agent Kleinschmidt. Drug paraphernalia, including a scale, was found along with an unloaded .380 caliber pistol in a closet. Leyva was asked to return to the bedroom.
8. Agent Raty then gave Leyva a complete and full Miranda warning in Spanish from a printed card. Leyva acknowledged he understood and said he would speak to the officers. Officer Ross questioned Leyva and Raty translated. Leyva made incriminating statements. Leyva was not arrested, nor was he handcuffed during the episode. Defendant did not object at anytime. The officers left without arresting Leyva.
DISCUSSION
The defendant has made a series of challenges to the search and seizure in this case. First, defendant makes a challenge to the interrogation of defendant in the first instance when Leyva was questioned in his bedroom about location of drugs without being given a Miranda warning. The circumstances showed the entry was voluntary based on consent to the occupants and there was no violation of the Fourth Amendment.
The defendant's last memoranda does not challenge the consentual entry of the knock and talk practice. See United States v. Cruz, 838 F. Supp. 535, 542-3 (D.Utah 1993) (knock and talk entry voluntary).
The defendant does not purport to challenge the consent to search based on a claim that a Miranda warning was required before the request to search was executed by defendant. A Miranda warning is not required under such circumstances. No such Miranda warning obligation exists. There is no interrogation of a suspect in requesting permission to search. United States v. McCurdy, 40 F.3d 1111 (10th Cir. 1994); United States v. Rodriguez, 983 F.2d 1563, 1568 (10 Cir. 1993); United States v. Gay, 774 F.2d 368, 379-80 (10th Cir. 1985).
Consent Search
The defendant contends he did not voluntarily consent into search of his premises. If the consent was voluntary, evidence found during a consent search is admissible.
The officers entered the premises on invitation of Wendy Guerrero. Officer Ross advised defendant, in English, why the officers were there, that they had information about drugs being on the premises and a wanted Leyva's consent to search. The officer asked Leyva if he understood English and he said "so, so" or to that effect. Officer Ross then, wanting to make certain defendant understood, asked Agent Raty to speak to defendant in Spanish. Raty again explained why the officers were present and they wanted Leyva's permission to search.
A consent to search form, in Spanish, was given to Leyva by Raty. The defendant read the form, signed his name and filled in the address. The form recited certain rights the defendant had. The form spoke as if Leyva had previously been advised of rights about the search. Raty testified Leyva was not so advised. However, the form itself would reasonably inform a reader of the referenced right to refuse a search and to ask the officers to leave. Leyva did not invoke his rights.
A walk or knock and talk process is lawful and constitutional if it meets the standards for a valid consent search. United States v. Cruz, supra. (Citing cases). The standard for a consent search was set forth in Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The prosecution has the burden to establish consent. Id. p. 222. The court said "voluntariness" . . . "is itself an amphibian." Id. p. 224. The court in Schneckloth referenced cases dealing with confessions. Id. pp. 224-225. The question of voluntariness is one "of fact to be determined from the totality of all the circumstances." Id. p. 227. "While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as a sine qua non of effective consent." Id. The absence of coercion is the test. It is not required that the suspect know he may refuse consent. Id. p. 230. Advice of such right has been "universally repudiated" as a requirement. Id. p. 231. The issue is distinct from interrogation. Id. p. 232. Consent is involuntary if coerced by threats or force or "submission to a claim of lawful authority." Id. p. 233. Sixth Amendment trial standards of waiver are inapplicable. Id. pp. 253-242. Waiver not an applicable doctrine Id. p. 245. The consent need only be "in fact voluntarily given, and not the result of duress or coercion." Id. pp. 248-249.
It is not a question of whether a defendant acts in one's ultimate self interest but only one of voluntariness. United States v. Mendenhall, 446 U.S. 544 (1980). The issue is whether a reasonable person would feel "free to decline the officer's request or otherwise terminate the encounter." Florida v. Bostick, 501 U.S. 429, 437-38 (1993). There's no presumption against consent to search. United States v. Price, 925 F.2d 1268 (10th Cir. 1991). Non-verbal contact can constitute consent. United States v. Gordon, 173 F.3d 761 (10th Cir. 1999). It may be implied from the circumstances, United States v. Garcia Fernandez, 955 F. Supp. 1361 (D.Utah 1996) 153 F.3d 729 (10th Cir.). The consent must be freely and voluntarily given. United States v. Pena, 143 F.3d 1363 (10th Cir. 1998).
Although, some decisions from the Tenth Circuit have spoken of "freely and intelligently given," United States v. Pena, 143 F.3d 1363, 1366 (10th Cir. 1998); United States v. McRae, 81 F.3d 1528, 1537 (10th Cir. 1996); United States v. Angulo-Fernandez, 53 F.3d 1177, 1180 (10th Cir. 1995); United States v. Rodriguez-Garcia, 983 F.2d 1563 (10th Cir. 1993), this reference appears to emanate from a pre Schneckloth decision. See the Villano v. United States, 310 F.2d 680,684 (10th Cir. 1962) referenced in Rodriguez-Garcia, supra at p. 1567.
Recently, in United States v. Davis, 197 F.3d 1048, 1052 (10th Cir. 1999) the court restated this claim proposition citing United States v. Soto, 988 F.2d 1548, 1557 (10th Cir. 1993).
The language, "intelligently", might be claimed to be inconsistent with Schneckloth. The defendant seems to suggest that some special knowledge by defendant was required to meet the consent standard. The "knowing" standard as to the rights being given up was expressly rejected by the Supreme Court in Schneckloth. Obviously, the Court of Appeals must follow Schneckloth and a language of the Court of Appeals' opinion could not have been intended to be an expansion or different from the Supreme Court's standard. Therefore, the language consistent with the Supreme Court's standard in Schneckloth, must be interpreted to mean that the defendant must understand that he is authorizing a search.
In this case, it is clear from the circumstances and the execution of the written consent, that the defendant understood he was authorizing the police to search his premises.
In United States v. Cruz, supra p. 543, this court upheld a knock and talk consent search and observed:
The precise issue is whether under the totality of the circumstances a valid consent to search was given by defendant Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). Recently in United States v. Butler, 966 F.2d 559 (10th Cir. 1992) the court stated the proper standard: To admit evidence obtained from a search, wherein consent was given, the following must be found:
(1) There must be a clear and positive testimony that consent was unequivocal and specific and freely given; and (2) The government must prove consent was given without duress or coercion, express or implied.966 F.2d p. 562.
The facts of this case meet the Butler standard for a consent search. There was less ambiguity and confusion in this case than in United States v. Maynes-Ortega, 857 F.2d 686 (10th Cir. 1988) where the search was upheld and found to be validly based on consent. See also United States v. Wilkinson, 926 F.2d 22 (1 Cir. 1991); United States v. Benitez, 899 F.2d 995, 998-99 (10th Cir. 1990); United States v. Medlin, 842 F.2d 1194 (10th Cir. 1988).
In this case defendant was in his own home. At the time consent was requested no guns were displayed. No threats were made. The officers had identified themselves. Only two officers were present when consent was given. It is natural that other persons on the premises of a drug trafficker's home would leave when the police arrived. The persons were not told to leave but left on their own. Although defendant was nervous, the circumstances do not show any confusion or lack of understanding by the defendant of the officer's request. The defendant's initial response was not mere acquiescence in the request but rather was an affirmative authorization made immediately on request. There was no hesitation. Before the search commenced, Officer Metcalf again asked defendant if the search of the house was authorized. Again defendant answered affirmatively. The scope of the search was made known to the defendant to include the full premises. There was no misunderstanding by defendant. The search was within the scope of the authorization. Florida v. Jimeno, 500 U.S. 248, ___, ___, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991); United States v. Gay, 774 F.2d 368, 377 (10th Cir. 1985). The defendant at no time asked that the search cease, even after drugs and guns were first found. There is no presumption against consent, United States v. Price, 925 F.2d 1268 (10th Cir. 1991); United States v. Recalde, 761 F.2d 1448 (10th Cir. 1985), although burden of proof is on the prosecution to show consent. The government has carried its burden by convincing evidence. In this case, the defendant's consent was voluntary.
See also United States v. Davis, supra.
Based on the cited cases and the facts and findings in this case it must be concluded that defendant's consent to search was voluntary.
Allegations of Violations of Miranda
The defendant contends that the statements he made to Officer Ross and Agent Raty, after defendant executed the consent to search authorization, were obtained contrary to Miranda v. Arizona, supra. At that time, defendant was not under arrest, he was not handcuffed or otherwise restrained, he was in his own bedroom, he had not been told he could not leave nor had he been directed to remain, and the officers did not intend to arrest defendant and did not do so, even at the end of the episode. Defendant had just read a document that would advise him that he could ask the officers to leave. He did not make such a request.
At that point, Officer Ross asked the defendant if there were any drugs in the apartment, and Leyva pointed to a dresser and said where the drugs were located and could be found in it.
It is apparently defendant's contention that the question about drugs should have been preceded by a Miranda warning. The government concedes the question was interrogation and contends defendant was not in custody and a Miranda warning was not required. It is well settled that a Miranda warning is only required when a suspect is subjected to custodial interrogation which involves a deprivation of "freedom action in any significant way." Miranda, 384 U.S. at p. 479. This is to be assessed by objective circumstances. Id. p. 444. The defendant bears the burden of showing custody. United States v. Charles, 738 F.2d 686, 692 (5th Cir. 1984). This factor is assessed under the totality of the circumstances. California v. Beheler, 63 U.S. 1121, 1125 (1983). Ultimately, the "inquiry is simply whether there was a formal arrest or restraint on freedom of movement of a degree associated with formal arrest." Id.; Berkemer v. McCarty, 468 U.S. 420 (1984); Pennsylvania v. Bruder, 488 U.S. 9 (1988); Stansbury v. California, 511 U.S. 318 (1994).
There is nothing in this case associated with custody. Defendant was not under arrest (contrast Orozco v. Texas, 394 U.S. 324 (1969)) nor was defendant's circumstances the functional equivalent of arrest. No restraint was imposed on the defendant.
The defendant was in his own residence. See Beckwith v. United States, 425 U.S. 341, 345-47 (1976) (Miranda warnings not required when defendant was questioned by IRS officers in his own home); United States v. Rith, 164 F.3d 1323 (10th Cir. 1999) (defendant questioned in his home after officers were admitted by another); United States v. Erving L., 147 F.3d 1240, 1247-1248 (10th Cir. 1998) (no Miranda warning required when FBI agent questioned juvenile defendant in his home); United States v. Olsen, 840 F. Supp. 842 (D.Utah 1993) (questioning by officers in defendant's home, Miranda not required). See also Michigan v. Summers, 452 U.S. 692 (1981) (brief detention while executing search warrant was not coercive or custodial requiring a Miranda warning); United States v. Dozal, 173 F.3d 787 (10th Cir. 1999) (defendant not in custody when statement refusing consent to search was made); United States v. Ritchie, 35 F.3d 1477,1485-86 (10th Cir. 1994) (holding that defendant was not in custody during search of his residence).
There is no basis to exclude the defendant's act of pointing out the presence of drugs in his dresser because the Miranda warning was not given to defendant.
The second interrogation of defendant occurred at defendant's apartment. After the officers found drugs and other contraband, Leyva was told to go and sit in the living room with another officer and Ms. Guerrero. He was then returned to the bedroom. A full and complete Miranda warning was given to defendant in Spanish. He said he understood and would speak to the officers. There was no Miranda violation of any kind that would effect the admissibility of defendant's statement.
VOLUNTARINESS OF THE DEFENDANT'S CONFESSION
Defendant contends his statements were involuntary and should be excluded. The claim is without merit. There was no Fourth Amendment violation, no illegal arrest or detention, the defendant was fully advised of his Miranda rights before his second interrogation and he was not in custody when asked as to the location of the drugs. There were no weapons displayed, no threats or promises used, and there were no false or misleading statements made to defendant. The defendant was cooperative. There was no coercive police activity.
In Colorado v. Connelly, 479 U.S. 157, 170 (1986), discussing the issue of a challenge to a confession based on voluntariness said:
We hold that coercive police activity is a necessary predicate to the finding that a confession is not "voluntary" within the meaning of the Due Process Clause of the Fourteenth Amendment.
The same standard applies under the Fifth Amendment in this case.
A statement is involuntary if "the government's conduct cause[d] the [person's] will to be overborne and his `capacity for self-determination critically impaired'", United States v. Gonzales, 164 F.3d 1285, (10th Cir. 1999); United States v. McCullah, 76 F.3d 1087, 1100 (10th Cir. 1996). This is to be determined by the totality of the circumstances. Arizona v. Fulminante, 499 U.S. 279, 285-86 (1991).
In United States v. Nguyen, 155 F.3d 1219 (10th Cir. 1998) the court held a defendant's statement, as to the commission of a robbery, was voluntary where defendant was advised of his Miranda rights, no force or threat of force was used and defendant was intelligent and capable of understanding his statement when reduced to writing. The interrogation was noncoercive and not lengthy. See also United States v. Erving L., supra; Nguyen, supra; United States v. Benally, 146 F.3d 1232 (10th Cir. 1998); United States v. Alvarez, 142 F.3d 1243 (10th Cir. 1998); Lucero v. Kerby, 133 F.3d 1299 (10th Cir. 1998); United States v. Glover, 104 F.3d 1570 (10th Cir. 1997). The prosecution has carried its burden to establish by a preponderance of the evidence, that the defendant's confession was voluntary. Lego v. Twomey, 404 U.S. 477 (1972).
CONCLUSION
Jose Leyva's motion to suppress should be DENIED.
Copies of the foregoing Report and Recommendation are being mailed to the parties who are hereby notified of their right to object to the same. The parties are further notified that they must file any objections to the Report and Recommendation, with the clerk of the court, pursuant to 28 U.S.C. § 636(b), within ten (10) days after receiving it. Failure to file objections may constitute a waiver of those objections on subsequent appellate review.