Opinion
EP-00-CR-404-DB.
August 28, 2000.
MEMORANDUM OPINION AND ORDER
On this day, the Court considered two separate motions to suppress filed in the above-captioned cause: (1) Defendant Jesus Antonio Rascon's "Motion to Suppress Evidence Including Written or Oral Statements of Defendant," filed on June 29, 2000; and (2) Defendant Francisco Delgado Arzaga's "Motion to Suppress Evidence Including Written or Oral Statements of Defendant," filed on July 24, 2000. The Government filed separate responses to those motions on July 7, 2000, and August 2, 2000, respectively. On August 17, 2000, the Court held a hearing on the matters.
After careful consideration of the evidence and arguments presented, the Court is of the opinion that the motions should be denied for the reasons that follow.
FACTS
In the late morning of February 17, 2000, Drug Enforcement Administration ("DEA") Agent Carlos Galloza ("Galloza") received an anticipated telephone call from a confidential source ("CS"). Galloza had used the CS in the past and the information the CS provided had been reliable. The CS informed Galloza that he (the CS) had just taken the wheel of a white van from a man he called "Caceres," which was filled with marijuana. The CS informed Galloza that he would be driving the van into the United States from the Republic of Mexico through the Paso Del Norte port of entry. Galloza arranged for the van to pass through the checkpoint unmolested by the United States Customs Service ("Customs"), in what is typically known as a "controlled delivery." The CS also told Galloza that Caceres told him (the CS) that Caceres' brother would be waiting on the other side wearing a green shirt. At approximately 11:25 that morning, the van entered the United States.
Because this case involves a "taskforce" operation, there are so many agencies, titles, designations and monikers the Court need not keep them straight. Thus, the Court herein uses the term "agent(s)" generically and interchangeably with the term "officer(s)" and other law enforcement designations.
In law-enforcement parlance, during a controlled delivery, agents allow a vehicle known or suspected to contain drugs to pass through the inspection stations at the international border in order to follow the vehicle to discover distribution channels within the United States.
While approaching the checkpoint, the CS informed Galloza that a white Pontiac Trans Am seemed to be following the van. When the Trans Am pulled into the inspection station after the van, Galloza arranged for Customs to detain or delay the Trans Am, which it did. The vehicle was sent to the secondary inspection area, where canine detection officers inspected the vehicle and questioned the driver, who turned out to be Defendant Fernando Madrid Rascon ("Fernando Rascon"). Eventually, Fernando Rascon, who was wearing a green shirt, was released and allowed to enter the United States.
Meanwhile, various DEA "taskforce" agents established surveillance on the van. The van drove around the downtown streets of El Paso, Texas, for a short while, entered the Interstate-10 freeway westbound, and eventually stopped in the parking lot of a Tony Lama Boot Company factory outlet (the "Tony Lama location") just off the freeway near North Mesa Street. The CS got out of the van, walked to a nearby Diamond Shamrock gasoline station, and drove off in another vehicle parked there. Agents took up surveillance positions.
A short while later, as the agents watched, the same white Trans Am which Customs stopped at the port of entry approached the Tony Lama location, drove off, made a loop around several nearby streets, and returned at approximately 12:04 p.m., stopping in the parking lot of the nearby Diamond Shamrock. Fernando Rascon exited the Trans Am and stood around for about ten minutes. An older-model GMC pickup truck approached. The driver, later identified as Defendant Jesus Antonio Rascon ("Jesus Rascon"), got out and spoke with Fernando Rascon, his brother. The two talked for several minutes until a Pontiac Grand Am approached the Diamond Shamrock at approximately 12:21 p.m., and two more men got out. The driver of the Grand Am was later identified as Defendant Francisco Delgado Arzaga ("Arzaga"), and the passenger, Defendant Miguel Angel Archuleta ("Archuleta"). All four talked.
A short while later, Fernando Rascon and Arzaga left in the Trans Am. Then Jesus Rascon and Archuleta got into the pickup truck and drove toward the Tony Lama location where the van was parked, stopping just past the parking lot. Archuleta got out of the truck, walked to the van, got in, and drove off. Agents followed each vehicle.
Eventually, after some circuitous routes, the pickup truck entered the driveway of a property located at 8817 Kingsway, in Canutillo, Texas (the "8817 property"). The van arrived shortly afterward and entered the same property, stopping near the rear of the lot. Finally, the Trans Am drove up, driving into a neighboring property at 8809 Kingsway (the "8809 property") (together with the 8817 property, the "Kingsway properties"). Both properties had a partial cinder-block wall, but no gate blocking the driveway. Agents watched from various surveillance positions. The brothers Rascon met on the 8809 property and walked to the 8817 property through a passageway in the wall between the properties. Then Fernando Rascon got into the Trans Am and drove off.
The Government entered Exhibit 1 into the Record — an aerial photograph of the properties and some surrounding areas. The photograph shows a large square property (the 8817 property) next to a narrow rectangular property (the 8809 property) to the south, it's length running east-west. Each property has an unpaved driveway flanked by a partial cinder-block wall of unknown height. The 8817 property has a small building with a large awning located near the road, and is partially bordered by a short chain-link fence. The 8809 property has a mobile home parked roughly in the middle of the property. There is no wall or fence to the south. Also, a small motor home appears in the photo parked to the rear of the 8817 property, behind the structure.
At approximately 12:55 p.m., upon a coordinated "signal," taskforce agents swarmed the Kingsway properties. With their guns drawn, the agents conducted a "protective sweep" of the properties, taking persons present into custody, including Jesus Rascon's wife, Patricia Rascon, and a man allegedly doing some construction work there, Alfonso Camarillo ("Camarillo"). The agents conducting the protective sweep approached the white van they followed from the port of entry. The windows on the van were rolled down, and the agents smelled a strong odor of marijuana. There were several small packages on the front passenger seat, wrapped in a shape and manner commonly used for marijuana packaging. The agents glanced into the back of the van and saw some sort of cargo piled to the van's ceiling and covered by a tarp. Eventually, the agents uncovered some 3,790 pounds of marijuana in the van. At the same time, the agents confronted Jesus Rascon, placing him on the ground, face down until handcuffed. Once the protective sweep was completed, the agents lifted Jesus Rascon off the ground. DEA Special Agent Apolonio Ruiz ("Ruiz") gave Jesus Rascon a Miranda warning in Spanish and asked if he would consent to a search of the 8817 property. Jesus Rascon indicated he understood his Miranda rights and agreed to waive those rights. He also agreed to give consent for the agents to search the 8817 property, which he owns together with a sister, even though Ruiz told him he could withhold consent. Ruiz, who drove his pickup truck onto the 8817 property, went to the truck and retrieved a Spanish translation consent form, a "Consentimiento Para Registrar" (entered as Government's Exhibit 2), which Jesus Rascon signed. Then he told Ruiz that his brother, Fernando Rascon, asked him to store the van, but that they had not discussed whether he (Jesus) would receive any money to do so. When asked about the marijuana in the van, Jesus Rascon declined to speak further. El Paso Police Department officers Eduardo Gomez ("Gomez") and Joe Rios ("Rios") witnessed administration of the Miranda warning to Jesus Rascon and his signing of the consent to search form. At the time he signed the consent to search, Jesus Rascon was standing, uncuffed, surrounded by some four or five agents whose guns then were holstered. The agents did not threaten Jesus Rascon or make any promises to induce him to sign the consent form.
At the hearing Camarillo testified that Jesus Rascon was not on either property when the agents entered, having gone "to the store." Camarillo testified that Jesus Rascon was arrested when he (Rascon) returned some twenty to twenty-five minutes after the agents stormed the properties. When questioned further, however, Camarillo could not state where Rascon allegedly had gone, for what purpose or even when. Accordingly, the Court finds Camarillo's version of the events suspect and disregards his testimony in this regard.
According to Jesus Rascon, Ruiz threatened to shoot him if he did not consent, while the agents were pointing their guns at him the entire time. He also testified that the agents threatened to arrest and charge (with unspecified crimes) his wife and/or mother and/or sister if he did not consent. Finally, Jesus Rascon testified that all of the agents yelled and screamed at him while entering the property and taking him into custody, repeatedly calling him a "son-of-a-bitch." Gomez and Rios, however, testified that no threats were made, and Ruiz testified that he never threatened to kill Jesus Rascon. Because the Court does not find Jesus Rascon credible, the Court finds that there were no such threats.
Meanwhile, at the same time the agents stormed the Kingsway properties, an El Paso County Sheriff's Department marked patrol unit stopped the Trans Am a short distance from the two properties. The three occupants — Fernando Rascon, Archuleta and Arzaga — were arrested once the traffic officer received a radio broadcast that agents had discovered the marijuana in the van. They were taken to a DEA field office for processing, where Arzaga was given a Miranda warning and expressly waived his Miranda rights. Arzaga then told Galloza that he had picked up Archuleta at approximately 10:30 a.m. that day at Delta and Alameda Streets in El Paso; that the two drove to the Diamond Shamrock near the Tony Lama location to meet with the Rascons to "do a job"; and that he knew they were going to do "something bad." At that point, Arzaga declined to answer any more questions and Galloza terminated the interview.
Shortly after Jesus Rascon signed the consent form, agents entered the building on the 8817 property to search. They discovered that the building was a business — some sort of martial arts school. They seized no evidence. The agents may also have searched the motor home on the 8817 property and the trailer home on the 8809 property, finding no evidence therein.
In this respect, the evidence presented at the hearing is unclear. At the hearing, Patricia Rascon testified that the agents stormed the trailer home at the same time as they entered the two properties initially and placed her in custody. Because there was no evidence found in any structure or in the motor home, however, those facts are not relevant.
On March 8, 2000, through a two-count Indictment, the Grand Jury charged Fernando Rascon, Jesus Rascon, Arzaga and Archuleta with conspiring to possess one-thousand kilograms or more of marijuana in violation of 21 U.S.C. § 846, and 841(a)(1) and (b)(1)(A)(vii). The Indictment also charged Archuleta with possessing with intent to distribute one-thousand kilograms or more of marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(vii).
The instant motions followed.
DISCUSSION
Jesus Rascon asks the Court to suppress "any and all physical evidence obtained as a result [of the search] and all written statements, admissions or confession[s]," because the agents entered and searched his property without a warrant; he was arrested without a warrant; and the statement he made to the agents was made in violation of Miranda. Similarly, Arzaga asks the Court to suppress "any and all written statements, admissions or confessions" because he was arrested without a warrant and any statement he made to the agents was made in violation of Miranda.
The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." "The touchstone of the Fourth Amendment is reasonableness." Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991) (citing Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967)). Thus, the Fourth Amendment protects an individual's reasonable expectation of privacy from certain types of government intrusion. See Katz, 389 U.S. at 350, 88 S.Ct. at 510.
What is reasonable under the Fourth Amendment depends upon the circumstances and nature of the seizure. See, e.g., Bell v. Wolfish, 441 U.S. 520, 558-59, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). A citizen-police encounter may be consensual, see Florida v. Rodriguez, 469 U.S. 1, 5-6, 105 S.Ct. 308, 311, 83 L.Ed.2d 165 (1984), a brief investigatory detention, see Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968), or an outright arrest or "seizure." See Dunaway v. New York, 442 U.S. 200, 214, 99 S. Ct. 2248, 2257, 60 L.Ed.2d 824 (1979).
The Government contends that the agents had sufficient probable cause to arrest all defendants and to enter the Kingsway properties to arrest Jesus Rascon based on the information from the CS and the agents' observations of the defendants' conduct in transporting the van from the Tony Lama location to the 8817 property; the agents found the marijuana in plain view and, in any event, Jesus Rascon gave voluntary consent to search the entire 8817 property; and both Jesus Rascon and Arzaga were informed of their rights under Miranda and expressly waived those rights. The Court agrees with the Government.
A. Entry and Search of Kingsway Properties
Jesus Rascon contends that the warrantless search of the two properties violates the Fourth Amendment. In response, the Government contends that there was no "search" in Fourth Amendment terms and, even if a search did occur, exigent circumstances necessitated an immediate entry. The Court agrees with the Government.
To trigger Fourth Amendment protection, the alleged government intrusion must amount to a "search." See United States v. Cardoza-Hinojosa, 140 F.3d 610, 614 (5th Cir. 1998). For an intrusion to constitute a search, the defendant must have some subjective expectation of privacy in the place searched that society is prepared to recognize as reasonable. See id. at 613-14. The person asserting such a privacy interest bears the burden of proving the interest by a preponderance of the evidence. See id. at 613. A court should consider
[1] whether the defendant has a possessory interest in . . . the place searched, [2] whether he has a right to exclude others from that place, [3] whether he has exhibited a subjective expectation of privacy that it would remain free from governmental intrusion, [4] whether he took normal precautions to maintain privacy, and [5] whether he was legitimately on the premises.
United States v. Ibarra, 948 F.2d 903, 906 (5th Cir. 1991).
Here, although Jesus Rascon couches his argument in terms of the area's proximity to his home, which is parked on the 8809 property, that property is separate from the 8817 property. The high cinder-block wall between the properties implores treating the properties as separate. Though the agents entered the 8809 property and conducted a protective sweep there, they did not recover any evidence on the 8809 property which can be suppressed. Thus, the inquiry focuses only on the 8817 property where the van containing the marijuana was parked.
Although there was no evidence of the exact height of the walls, at the hearing, Galloza testified that he is only five-feet-six-inches tall and could see over the wall. As the hearing progressed, however, the walls grew incrementally taller so that at one point, defense counsel suggested during cross-examination of one of the Government's witnesses that the wall was over ten feet tall. As the Court later notes, the size of those walls is not important.
Jesus Rascon owns the 8817 property along with his sister. Hence, he has a property interest, albeit a joint one, and presumably retains a right to exclude others from that property. However, the Court finds that Jesus Rascon failed to exhibit a subjective expectation of privacy and take normal precautions to maintain any privacy therein. First, although the 8817 property is a business, purportedly a martial arts school of sorts, Fourth Amendment protections extend to commercial properties as well as personal. See Cardoza-Hinojosa, 140 F.3d at 613. Although there is a high wall around the north and west borders of the 8817 property, and between the 8809 and 8817 properties, there is only a partial wall facing Kingsway (the eastern boundary). This partial wall has both an open pedestrian entrance and, more importantly, an open driveway entrance. Combined with the short chain-link fence and gate from the driveway to the 8817 property building, the openness of this driveway invites patrons to drive in to park. By the same token, any police officer could drive into the 8817 property. Thus, Jesus Rascon cannot contend that the area where the van was parked is not open to any person entering what apparently doubles as a parking lot for patrons of the business. On balance then, Jesus Rascon could not and did not exhibit a subjective expectation of privacy in the 8817 property. Accordingly, the agents' entry onto the 8817 property is not a "search" without a warrant prohibited by the Fourth Amendment. Having so decided, the Court need not address the Government's "exigent circumstances" argument.
B. Search of the Van and Seizure of the Marijuana
Next, Jesus Rascon and Arzaga complain that the van containing the marijuana was searched and the marijuana inside seized without a warrant. In general, warrantless searches and seizures violate the Fourth Amendment unless they fall within a specific exception to the general rule. See United States v. Karo, 468 U.S. 705, 717, 104 S.Ct. 3296, 3304, 82 L.Ed.2d 530 (1984). Here, several exceptions justify the lack of a warrant.
It is unclear from Arzaga's Motion to Suppress and supporting Brief whether he claims the search of the van and seizure of its contents violates his Fourth Amendment rights. To the extent he does, Arzaga clearly has no standing to complain of the search, illegal or otherwise, of Jesus Rascon's property. He has no interest in the property, which is generally required. See United States v. Mendoza-Burciaga, 981 F.2d 192, 196 (5th Cir. 1992).
First, because Jesus Rascon has no reasonable privacy interest in the driveway are of the 8817 property, the agents could lawfully enter without a warrant. On the property lawfully, the agents are entitled to make a "protective sweep" to ensure the safety of the agents. See United States v. Mendoza-Burciaga, 981 F.2d 192, 196 (5th Cir. 1992). The search may include any part of the area which reasonably poses a threat to the officers, see id., including inside vehicles. See, e.g., United States v. Ibarra-Sanchez, 203 F.3d 356, 357 (5th Cir. 2000). During the protective sweep, the agents discovered marijuana in plain view within the van. Law enforcement officers may seize any evidence they find in "plain view" if they are lawfully in a position to see the object and its incriminating character is readily apparent. See United States v. Munoz, 150 F.3d 401, 411 (5th Cir. 1998). The uncontradicted evidence shows that windows on the van were rolled down and when they looked inside (presumably to see if any dangerous person was hiding therein), they saw several tape-wrapped bundles lying on the front passenger seat. Upon closer inspection, the rest of the 3,790 pounds of marijuana was seen stacked to the van's roof inside.
Second the odor of marijuana emanating from a vehicle may constitute probable cause to search that vehicle. See United States v. Ibarra-Sanchez, 199 F.3d 753, 760 (5th Cir. 1999) (citing, e.g., United States v. McSween, 53 F.3d 684, 686-87 (5th Cir. 1995)). Here, the uncontradicted evidence shows that, as the agents approached the van, they smelled the distinct odor of marijuana. Hence, the agents then had probable cause to search the van and seize evidence therein.
Finally, even if the agents had not found the marijuana in plain view or smelled such a strong odor, the agents obtained Jesus Rascon's written consent to search the 8817 property, which is another exception to the warrant requirement. See United States v. Jenkins, 46 F.3d 447, 451 (5th Cir. 1995). That consent extends to vehicles parked on the property, such as the van. See United States v. Rich, 992 F.2d 502, 505 (5th Cir. 1993) (noting that standard for determining scope of consent is reasonableness); United States v. Stewart, 93 F.3d 189, 192 (5th Cir. 1996) ("[T]he key inquiry focuses on what the typical reasonable person would have understood by the exchange between the officer and the suspect."). Here, the consent form, Exhibit 2, leaves a blank for a description of the place the agents asked the defendant to be allowed to search, in which it is handwritten, "8817 Kingsway, Westway (Canutillo TX). Presumably, if consent were limited to, for example, the building on that property only or the RV parked there, that would be noted in the appropriate place. Rather, the uncontradicted testimony shows that the agents asked if they could search the property, any reasonable person would have understood that to include vehicles parked on the property, and Jesus Rascon signed the form containing a broad description of the place to be searched.
Moreover, the Court finds that the Government established by a preponderance of the evidence that consent to search was freely and voluntarily given, see Jenkins, 46 F.3d at 451, based on a totality of the circumstances, see United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993), taking into consideration all the appropriate factors. See United States v. Olivier-Becerril, 861 F.2d 424, 426 (5th Cir 1988) ((1) voluntariness of custodial status; (2) presence of coercive police procedures; (3) extent and level of defendant's cooperation with police; (4) defendant's awareness of right to refuse consent; (5) defendant's education and intelligence; and (6) defendant's belief that no incriminating evidence will be found). Although Jesus Rascon was obviously not in police custody willingly when he consented and, as the Court found above, there was no police coercion. Ruiz told Jesus Rascon that he did not have to sign the consent form, but signed anyhow and did so in three different places, reflecting his substantial cooperation. He also appeared sufficiently intelligent when giving testimony at the hearing on this matter. With respect to what he believed the agents would find on the property, perhaps Jesus Rascon did not believe the agents would look under the tarp inside the van. On balance, the Court finds that the consent was voluntary and knowing and should not be suppressed.
C. Warrantless Arrests
Next, Jesus Rascon and Arzaga both contend that they were arrested without a warrant, also in violation of the Fourth Amendment. The Government contends that the agents had probable cause to arrest each defendant without a warrant. The Court agrees with the Government.
A person has been "seized" within the meaning of the Fourth Amendment "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988). Here, both Jesus Rascon and Arzaga clearly were seized. Jesus Rascon was handcuffed nearly immediately after the agents stormed the Kingsway properties, and Arzaga was stopped in the Trans Am nearby. Moreover, even without a warrant, an officer may arrest a suspect if he has "probable cause," based on facts and circumstances that would be sufficient to cause an officer of reasonable caution to believe the person committed, is committing or is about to commit a crime. See United States v. Carillo-Morales, 27 F.3d 1054, 1062 (5th Cir. 1994). A court examines the totality of the circumstances to determine whether such facts and circumstances are sufficient to constitute probable cause, see United States v. Buchner, 7 F.3d 1149, 1154 (5th Cir. 1993), which the Government bears the burden to prove. See United States v. Ho, 94 F.3d 932, 936 (5th Cir. 1993).
Here, the agents started the day with a tip from a CS that a van carrying a large load of marijuana would cross the border that morning. The CS called Galloza on a cellular phone from inside the van and described the load of marijuana to Galloza. The CS also told Galloza that a the CS believed a white Trans Am was following the van. The van passed through the checkpoint and Customs stopped a white Trans Am at the border directly following the van. After a period circling around the streets of downtown El Paso, the van proceeded to a predetermined drop-off point, the Tony Lama location. By coincidence or otherwise, the same Trans Am which was stopped at the border crossing showed up to the Diamond Shamrock next to the place where the drug van was parked, circling the area to see if anyone was following before finally stopping. One Rascon got out of the Trans Am and waited for the other Rascon, who came a short while later. They talked. Then another car arrived and all four defendants chatted for a short while. They disbursed in separate cars, Archuleta driving the van. Again with round-about paths, the three cars met up at the Kingsway properties. Three left, leaving Jesus Rascon with the van. At the right time, agents stormed the property and nearly immediately found the marijuana in plain view in the van. At the very same time, Arzaga and the others were stopped and placed under arrest upon notification that the agents had found the marijuana in the van. Clearly, based on a all of these events and circumstances, the agents had probable cause to believe that Jesus Rascon and Arzaga (as well as Fernando Rascon and Archuleta) committed a crime, namely, importing, possessing and/or conspiring to import and/or possess a large quantity of marijuana, and, therefore could arrest Jesus Rascon and Arzaga without a warrant.
Although Arzaga did not press the issue, there potentially is an issue about whether the agents had enough probable cause to stop the Trans Am in the first place, given that they were not actually "arrested" until the agents back at the Kingsway properties discovered the marijuana in the van. In that respect, the Court finds that the agents did have sufficient probable cause to believe that Arzaga had committed a crime, even before they found the marijuana in the van.
Alternatively, the Court finds that the initial stop of the vehicle is akin to an investigatory stop based on a reasonable suspicion of criminal activity, see Terry, 392 U.S. 1, 88 S.Ct. 1868, which under a totality of circumstances, see Illinois v. Gates, 462 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968), can be based on the collective knowledge of officers involved in an investigation, see United States v. Shaw, 701 F.2d 367, 376-77 n. 4 (5th Cir. 1983), and reliable information from a confidential source, see United States v. Wrangler, 987 F.2d 228, 230 (5th Cir. 1993). Based on the officers' collective observations and the information from the CS (who had been reliable in the past), the officers were justified in stopping the three defendants in the Trans Am as they left the scene, even if temporarily until the agents on the 8817 property investigated the van. Then, once the Kingsway properties agents found the marijuana, there was probable cause to arrest Arzaga.
D. Miranda Warnings
Finally, Jesus Rascon and Arzaga each contends that any statement he allegedly made to the agents was made in violation of Miranda and, thus, should be suppressed. Once again, the Court disagrees.
It is well-established that Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966), prohibits use during trial of statements made by a defendant during custodial interrogation unless procedural safeguards are employed to protect his Fifth Amendment privilege against self-incrimination and Sixth Amendment right to counsel. The Miranda requirement is satisfied by a warning nearly universally recognized, that a suspect has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney during questioning, and that an attorney will be provided for him if he cannot afford one. See id. at 479, 86 S.Ct. at 1630.
Here, there is no question about whether these defendants were in custody when they made the statements. Nor is there any question that they were interrogated — the agents asked the two whether they would make a statement. Rather, each defendant contends that he did not agree to waive his rights and speak.
A Miranda waiver must be knowing, intelligent and voluntary. See Moran v. Burdine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1140-41, 89 L.Ed.2d 410 (1986). Frankly, the undisputed evidence shows that a Miranda warning was given in Spanish, that each defendant indicated he understood his rights and that each expressly waived his rights. Jesus Rascon stated to the agents that Fernando (Rascon) brought the van to his (Jesus's) property and asked him to store the van there; and that they had not discussed how much money Fernando was to pay him for storing the van. When the agents asked him about the marijuana inside the van, he declined to answer any further questions, which indicates he knew he could refuse to speak.
Similarly, Arzaga told Galloza that he had picked up Archuleta at approximately 10:30 a.m. that day at Delta and Alameda Streets in El Paso; that the two drove to the Diamond Shamrock near the Tony Lama location to meet with the Rascons to "do a job"; and that he knew they were going to do "something bad." Moreover, at that point, Arzaga declined to answer any more questions and Galloza terminated the interview, further indicating he too knew he could refuse to answer questions. Accordingly, the Court finds that there is no Miranda violation here with respect to either Jesus Rascon or Arzaga.
After due consideration of the evidence and arguments presented, and having found no constitutional violations during the events leading up to the arrest and prosecution of Defendants Jesus Rascon and Arzaga, the Court is of the opinion that the instant motions should be denied.
Accordingly, IT IS HEREBY ORDERED that Defendant Jesus Antonio Rascon's "Motion to Suppress Evidence Including Written or Oral Statements of Defendant" is DENIED.
IT IS FURTHER ORDERED that Defendant Francisco Delgado Arzaga's "Motion to Suppress Evidence Including Written or Oral Statements of Defendant" is DENIED. SIGNED this 28th day of August, 2000. THE HONORABLE DAVID BRIONES, United States District Judge.