United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER DENYING MOTION TO
day, the Court considered Defendant Ricardo Ramirez,
Jr.'s [hereinafter "Defendant"] "Motion to
Suppress Evidence" (ECF No. 31) [hereinafter
"Motion"], filed on April 8, 2019; the
Government's "Amended Response to Defendant's
Motion to Suppress" (ECF No. 35) [hereinafter
"Response"], filed on April 29, 2019; the testimony
offered at the Suppression Hearing held on June 13, 2019,
Defendant's "Summation on Motion to Suppress
Evidence" (ECF No. 44) [hereinafter
"Summation"], filed on July 3, 2019; and the
Government's "Response to Defendant's
Summation" (ECF No. 45) [hereinafter "Response to
Summation"], filed on July 3, 2019, in the
above-captioned cause. After due consideration, the Court is
of the opinion that the Motion should be denied for the
reasons that follow.
FINDINGS OF FACT
13, 2019, a suppression hearing was held. The Court heard the
testimony of Andrew Fyffe, Special Agent, Homeland Security
Investigations; Isaias Saucedo, Officer, U.S. Customs and
Border Protection; Briana Blanco, Officer, U.S. Customs and
Border Protection; Jesus Barron, Officer, U.S. Customs and
Border Protection; Jose Fuentes, Officer, U.S. Customs and
Border Protection; and Defendant Ricardo Ramirez, Jr.
November 7, 2018, Defendant attempted to enter the United
States from Mexico via the Bridge of Americas port of entry
in El Paso, Texas. Mot. 2; Resp. 2. Defendant, who lived in
Ciudad Juarez, Mexico, but worked and went to community
college in El Paso, Texas, was going to his work at Walmart,
which was to start at 5:30 pm. Tr. 117:11-119:10, June 21,
2019, ECF No. 42; Resp. 10. Defendant arrived at the port of
entry at approximately 5:06 pm. Tr. 117:11-119:10.
Referral to Secondary Inspection
presented his United States passport card to Officer Cesar
Garcia, who scanned the card into the computer. Mot. 2; Resp.
2. The Treasury Enforcement Communication System
(TECS), a computerized database, generated a
referral that alerted the officer that Defendant might have
child pornography and was possibly associated with the
purchase of child pornography. Id. Specifically, the
TECS record indicated, "SUBJ LINKED TO THE PURCHASE OF
CHILD PORNOGRAPHY' and "IF ENCOUNTERED, REFER TO
SECONDARY, RECOMMEND MEDIA EXAM." Gov't Ex. 6.
Garcia escorted Defendant and his vehicle to secondary
inspection. Mot. 2; Resp. 2. Officer Jesus Barron was the
TECS coordinator on duty that afternoon and was stationed in
a "super booth" where he reviewed the TECS record
on a computer. Tr. 88:14-21, 91:12-17. Officer Barron
contacted the originator of the TECS record and discussed
what the originator "wanted to do with the further
inspection." Id. at 93:22-94:2. Additionally,
Officer Barron ran a "super query," a query for
more information and a better description of the TECS record,
but did not discover any additional information other than to
contact the originating agent. Id. at 94:10-23.
Initial Search of Defendant's Cell Phone
secondary inspection, Officer Isaias Saucedo took a negative
declaration for goods or merchandise from Defendant and
questioned Defendant regarding his travel. Tr. 36:21-25,
38:19-25, 110:13-20. Subsequently, Officer Saucedo asked
Defendant to drive his vehicle through the
"Z-portal," a type of x-ray machine. Resp. 2; Tr.
38:3-6. Defendant declined to do so, indicating that he
suffered from headaches from the machine. Id.; Tr.
38:3-18. Accordingly, Officer Saucedo drove the vehicle
through the Z-portal machine. Id. Meanwhile, Officer
Briana Blanco escorted Defendant from one side of the
Z-portal machine to the other and waited with Defendant. Tr.
71:5-72:5. After Officer Saucedo drove Defendant's
vehicle through the Z-portal machine, he parked the vehicle,
placing the keys on the windshield, and went to a booth to
ask Officer Barron "what else he wanted [Officer
Saucedo] to perform for the inspection." Id. at
40:23-42:1. In response, Officer Barron instructed Officer
Saucedo to "go through" Defendant's cell phone.
Id. at 41:24. Accordingly, Officer Saucedo stepped
out of the booth and walked to Defendant and Officer Blanco.
Id. at 42:2-4.
undisputed that-after certain interactions between Officer
Saucedo, Officer Blanco, and Defendant-Defendant ultimately
unlocked his phone and provided it to Officer Saucedo, who
then searched the phone and discovered images that he
suspected to be child pornography. See Tr. 54:14-
55:24; Mot. 2; Resp. 2. However, Officer Saucedo, Officer
Blanco, and Defendant's testimony differ as to the
precise interactions between the officers and Defendant.
Officer Saucedo testified that Defendant unlocked his phone
without hesitation and only expressed hesitation upon being
asked to navigate to his pictures on his phone:
I asked Mr. Ramirez can I have you unlock your phone. He
unlocked his phone. I did not know how to get to his pictures
. . . I told him I am going to look through your pictures,
can you show me how to look through the picture. He pause[d]
and told me -- he looked at Officer Blanco and told me I have
Tr. 42:5-9. According to Officer Saucedo, Defendant did not
hesitate when Officer Saucedo asked Defendant if he can
unlock his phone. Tr. 42:10-14. Specifically, Defendant did
not say anything and "just unlocked it."
Id. at 42:19-24. Additionally, Officer Saucedo
testified that, after Defendant indicated that he had
"personal stuff in his cell phone, Officer Blanco told
him that "we are all adults." Id. at
42:22-43:9. According to Officer Saucedo, Defendant did not
express any additional hesitation after this exchange with
Officer Blanco. Id. Finally, Officer Saucedo
testified that he did not threaten Defendant in any way at
any time during his interaction with Defendant. Id.
Officer Blanco testified that Defendant handed his cell phone
to Officer Saucedo but expressed hesitation when asked to
unlock the cell phone:
Officer Saucedo came over and asked for a cell phone. A cell
phone was handed to him. ... By Mr. Ramirez. Officer Saucedo
looked at it. I was not sure what he was doing with it. He
asked Mr. Ramirez to go ahead and unlock your phone. Mr.
Ramirez looked at his cell phone and said I have personal
things on here. From there, I said we are all adults here. At
that point, [Mr. Ramirez] did something with his phone and
handed it back to . . . Officer Saucedo.
Id. at 73:23-74:9. Officer Blanco testified that she
did not notice any hesitation by Defendant other than his
comment regarding having personal things on the phone.
Id. at 75:2-5. In particular, she testified that
Defendant "never said no" to Officer Saucedo's
request. Id. at 80:10-19. Additionally, though
Officer Blanco initially testified that Officer Saucedo
"asked for a cell phone," she later testified that
she could not recall whether Officer Saucedo asked or
instructed Defendant to unlock the phone. Id. at
Defendant testified that Officer Saucedo demanded access to
Defendant's cell phone and Defendant objected:
As the car finished with the x-rays, Officer Saucedo comes at
me, and he pretty much demanded to open my cell phone at
which point I hesitated. I told him no, what for? I
didn't let him answer. I quickly said I have sensitive
pictures of me and my girlfriend on my cell phone. That's
when Officer [Blanco] said we are all grownup here. . . .
Soon after Officer Saucedo demanded again I need to see your
phone at which point I hesitated, and he said we can do this
the easy way or do this the hard way.
Id. at 110:21-111:13. Additionally, Defendant
testified, "I perceived [Officer Saucedo's tone] as
a threatening tone like we are going to open it whether you
like it or not, and I remember I grabbed it and took my
fingerprints password off, and I just opened it."
Id. at 113:3-7. According to Defendant, he had
experienced a similar situation two to three years ago, in
which officers asked to check his cell phone, he declined, he
was put in holding cell for two to three hours, and he
ultimately agreed to open his cell phone so that he would not
be late for work. Id. at 111:14-112:12. Regarding
the November 2018 search of his cell phone at issue in this
case, Defendant testified that he unlocked the phone because
he remembered the incident from two to three years ago and
did not want to be late to work. Id. at
addition, Defendant testified that, after he unlocked his
phone, the following occurred:
I set it up to my pictures of my cell phone, and [Officer
Saucedo] went through it, and he pressed the home button and
started searching and started inspecting it at which point I
sort of made a hand gesture like what are you doing. By this
time, Officer Blanco got aggressive. She didn't do
anything physically. She made herself or her presence felt
and, afterwards they grabbed me by the arm tightly in a way
sort of not arresting me but holding me back and pushed me to
the holding cell.
Id. at 113:9-17.
observed Officer Saucedo, Officer Blanco, and Defendant's
demeanor and testimony at the Suppression Hearing, the Court
considers the consistent testimony of Officer Saucedo and
Officer Blanco most credible and makes the following
findings. Both Officer Saucedo's testimony and Officer
Blanco's initial testimony support that Officer Saucedo
asked Defendant to, and did not demand that he, unlock his
cell phone. Accordingly, the Court finds that when Officer
Saucedo initially approached Defendant, he asked Defendant to
unlock his cell phone and did not demand that Defendant
unlock his cell phone. Additionally, the Court finds, based
on the consistent testimony of both Officer Saucedo and
Officer Blanco, that the only hesitation that Defendant
expressed was his indication that he had personal things on
his cell phone.
Defendant's Placement in Holding Cell
to Officer Saucedo's initial search of Defendant's
cell phone, Defendant was escorted from the secondary area
and was placed into a holding cell. Id. at 76:4-11.
Defendant testified that when he was taken to the cell, the
officers had their "batons out but not in a threatening
way." Id. at 124:9-11. According to Defendant,
prior to being put in the holding cell, Defendant was asked
for his cell phone's passcode again. Id. at
114:3-6. Defendant testified, "Since I already had given
it, I figured what is the point of fighting it."
Id. Officer Blanco testified that she was given
Defendant's cell phone so that she could ensure that it
would "continue to be unlocked." Id. at
76:7-19. Specifically, she scrolled the phone up and down to
keep the cell phone open and prevent it from locking due to
inactivity. Id. In doing so, she saw images of
females who were not fully dressed and who she believed to be
below the age of 18. Id. at 77:3-16.
asked Officer Barron why he was being held and Officer Barron
replied that, often, individuals have similar names to other
individuals that are wanted. Id. at 97:14-99:6. At
the Suppression Hearing, Officer Barron admitted that this
was a lie, as he understood that Defendant was being held
because of the suspected child pornography discovered on his
cell phone. Id. at 98:23-99:6. Additionally, at some
point, Officer Barron asked Defendant to unlock his cell
phone because it had locked. Id. at 101:19-102:10.
Officer Barron stated, "[G]o ahead and do it if you
don't have anything to hide." Id. at
99:12-100:19. Officer Barron looked at pictures in
Defendant's cell phone and saw what he believed to be
child pornography. Id. at 102:25-103:7.
Officer Jose Fuentes testified that he asked Defendant for
his passcode and Defendant complied without any resistance.
Id. at 106:24-107:7. Officer Fuentes testified that
he "didn't unlock the phone to look at it" but
to make it "easier for the agents when they arrived to
access the phone." Id. at 107:24-108:1.
same day, Agent Andrew Fyffe, a Special Agent with Homeland
Security Investigations received a call regarding the
possibility of child pornography on Defendant's phone and
proceeded to the port of entry to investigate the matter.
Id. at 5:16, 6:1-17. Once at the port of entry,
Agent Fyffe made contact with Defendant, who was inside a
holding cell, and spoke with him for fifteen minutes.
Id. at 6:18-7:17. At some point, Agent Fyffe read
Defendant his Miranda rights. Id. at
7:19-20, 115:25-116:2. Agent Fyffe executed a search warrant
on Defendant's cell phone and performed a forensic
examination of the cell phone, revealing approximately 1, 400
files containing suspected child pornography. Id. at
14:2-11. The forensic examination involved plugging a device
into the cell phone and applying forensic software.
Id. at 14:23-15:6.
on December 4, 2018, Defendant was charged in a two-count
indictment with transportation of child pornography, in
violation of 18 U.S.C. §§ 2252(a)(1) and (b)(1),
and possession of child pornography in violation of 18 U.S.C.
§§ 2252(a)(4)(B) and (b)(2). Indictment, Dec. 4,
2018, ECF No. 13.
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." U.S. CONST, amend. IV. The
Supreme Court has determined that warrantless searches and
seizures are per se unreasonable unless they fall within a
few narrowly defined exceptions. United States u.
Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993) (citing
Coolidge v. New Hampshire, 403 U.S. 443, 454-55
(1971)). Accordingly, "[t]he government bears the
ultimate burden of proof when it searches without a
warrant." United States v. Rivas, 157 F.3d 364,
368 (5th Cir. 1998) (citing United States v. Roch, 5
F.3d 894, 897 (5th Cir. 1993)); see United
States v. Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir.
2001) ("When the government searches or seizes a
defendant without a warrant, the government bears the burden
of proving, by a preponderance of the evidence, that the
search or seizure was constitutional."); United
States v. Riley, 968 F.2d 422, 424-25 (5th Cir. 1992)
("Because a warrantless search is presumed to be
unreasonable, the Government has the burden of proving that
the warrantless search was conducted pursuant to an
Motion, Defendant seeks to suppress "[a]ny and all
documents, books, records, notes or other tangible things
that were seized from the Defendant's telephone" on
November 7, 2018. Mot. 1. Specifically, Defendant argues that
Defendant only provided his cell phone passcode to officers
"involuntarily and without effective consent" after
being "frighten[ed] and coerced by the demands from CBP
Officers." Id. at 2. In addition to Officer
Saucedo's initial search of Defendant's cell phone,
Defendant argues that there were "subsequent and
continuing violations when ... at least three other CBP
Officers repeated these violations." Summation 3-4.
Finally, Defendant argues that "[a]ny statements made
after the initial discovery of any prohibited material should
be suppressed" because the officers failed to read
Defendant his Miranda rights after discovering the
suspected child pornography. Id. at 5.
the Government argues that the search of Defendant's
phone falls under two exceptions to the warrant requirement:
the border search exception and the consent to search
exception. Resp. 3. Specifically, the Government argues that
the "cursory, manual" search of Defendant's
phone at the border was a routine border search requiring no
suspicion. Id. at 6. Alternatively, the Government
argues, even if the search were not routine, the TECS
referral provided the requisite reasonable suspicion to
manually search the phone. Id. Additionally, the
Government argues that Defendant voluntarily consented to the
search of his phone and, therefore, the search fell under the
voluntary consent exception to the warrant requirement.
Id. at 7. Finally, the Government argues that
suppression is inappropriate because the "good
faith" exception to the exclusionary rule applies.
Id. at 10.
due consideration, the Court is of the opinion that the
Government has met its burden of establishing that the search
of Defendant's cell phone was constitutional. First, the
initial search of Defendant's cell phone, prior to his
placement in the holding cell, falls under the consent
exception to the warrant requirement because Defendant
voluntarily consented to the search. Second, the
officers' subsequent searches of Defendant's cell
phone following Defendant's placement in the holding cell
fall within the border search exception to the warrant
requirement. Alternatively, the fruits of the subsequent
searches should not be suppressed pursuant to the good faith
exception to the exclusionary rule. Additionally, the Court
denies Defendant's request to suppress his statements
under the theory that the officers failed to initially read
him his Miranda rights. Specifically, Defendant
fails to identify the statements that he seeks to suppress as
well as the specific conduct that might constitute an
"interrogation" pursuant to Miranda.
Initial Search: Consent to Search Exception
of the specifically established exceptions to the
requirements of both a warrant and probable cause is a search
that is conducted pursuant to consent." United
States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010)
(quoting Schneckloth v. Bustamonte, 412 U.S. 218,
courts review a search justified by consent, there are four
distinct issues." United States v. Freeman, 482
F.3d 829, 831 (5th Cir. 2007). "First, as a threshold
matter, the government must demonstrate that the defendant
did consent," a determination that is "based on the
totality of circumstances." Id. at 831-32
(citing United States v. Price, 54 F.3d 342, 345-46
(7th Cir. 1995)). Second, if the government is successful in
demonstrating consent, the Government must next demonstrate
that the defendant consented voluntarily. Id. at 832
(citing Schneckloth, 412 U.S. at 222). Third and
fourth, the government must show that "the search was
within the scope of consent" and that "the
consenting individual had authority to
consent." Id. (first citing United
States v. Ibarra, 965 F.2d 1354, 1356 n.2 (5th Cir.
1992); then citing United States v. Matlock, 415
U.S. 164, 169-71 (1974); and then citing Illinois v.
Rodriguez, 497 U.S. 177, 183-89 (1990)).
Court will first address the first and third issues for
consent- whether Defendant did consent to the search and
whether the search was within the scope of consent-before
determining whether Defendant voluntarily consented to the
search. Regarding the fourth issue, the parties do not
dispute that Defendant had authority to consent. The Court
will only address whether Defendant consented to Officer
Saucedo's initial search of his cell phone at secondary