United States v. Ramirez

          MEMORANDUM OPINION AND ORDER DENYING MOTION TO SUPPRESS

         On this 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.

         I. FINDINGS OF FACT

         On June 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.

         On 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.

         A. Referral to Secondary Inspection

         Defendant 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)^[1], 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.

         Officer 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.

         B. Initial Search of Defendant's Cell Phone

         At 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.

         It is 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.

         Specifically, 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 personal stuff.

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. at 39:23-24.

         Meanwhile, 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 73:23-74:9, 81:6-11.

         Meanwhile, 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 121:20-122:8.

         In 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.

         Having 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^[2] and Officer Blanco's initial testimony^[3] 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.

         C. Defendant's Placement in Holding Cell

         Subsequent 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.

         Defendant 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.

         Additionally, 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.

         That 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.

         Subsequently, 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.

         II. LEGAL STANDARD

         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." 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 exception.").

         III. ANALYSIS

         In his 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.^[4]

         Meanwhile, 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.

         After 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.

         A. Initial Search: Consent to Search Exception

         "One 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, 219 (1973)).

         "When 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."^[5] 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)).

         The 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 ...