United States District Court, S.D. Texas, Laredo Division
REPORT AND RECOMMENDATION
A. KAZEN UNITED STATES MAGISTRATE JUDGE
Matilde Alanis-Cuellar has been indicted for one count of
conspiracy to transport illegal aliens into the United States
in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(I)
and three counts of attempted transport of illegal aliens
into the United States in violation of 8 U.S.C. §
1324(a)(1)(A)(ii) and (v)(II). (Dkt. No. 24). Now pending
before the Court is Defendant's Opposed Motion to
Suppress Evidence (“Motion to Suppress”) (Dkt.
No. 31). Defendant's motion presents three primary
issues: (1) whether Defendant's rights under Miranda
v. Arizona, 384 U.S. 436 (1966) and its progeny were
“scrupulously honored”; (2) whether
Defendant's confession was knowing and voluntary; and (3)
whether Defendant's statements were obtained in violation
of the presentment rule. (See Dkt. No. 31 at 3).
Motion to Suppress has been referred to this Court by the
District Judge for findings of fact and recommendations of
law. (Dkt. No. 33). After referral from the District Judge,
the Court held an evidentiary hearing on Defendant's
Motion to Suppress at which the Government presented the
testimony of Border Patrol Agents James Bowser, Victor
Rivera-Cortes, and Juan Lopez. After the Government presented
its case, the Court received testimony from Defendant. At the
hearing's conclusion, the Court ordered additional
briefing from both parties. Pursuant to 28 U.S.C. §
636(b)(3), the Court submits the following Report and
Recommendation; and based on the parties' briefs, the
evidence presented at the hearing, and the reasons stated
below, the Court recommends that Defendant's Motion to
Suppress (Dkt. No. 31) be DENIED.
Findings of Fact
March 27, 2019, sometime after 8:00 p.m., a team of United
States Border Patrol agents (“BPAs”) posted in
static position by the Rio Grande River encountered a group
of approximately twenty individuals suspected of having
entered the United States illegally near Laredo, Texas. (Dkt.
No. 31 at 2; Dkt. No. 43 at 20). There were approximately six
Border Patrol personnel on the scene. (Dkt. No. 43 at 13,
25). Of the twenty individuals the BPAs spotted in the brush,
the agents were able to apprehend sixteen. (Dkt. No. 31 at 2;
Dkt. No. 43 at 22). By about 8:45 p.m., the BPAs gathered all
the detainees in a single location and began conducting field
immigration inspections, which involved a pat down and search
of each individual for officer safety, and recording each
individual's name, date of birth, and country of origin
onto a field inspection form. (See Dkt. No. 43 at
22, 24). During the inspections, several individuals admitted
that they had just crossed the Rio Grande River and had
entered the United States illegally. (Dkt. No. 31 at 2). BPAs
determined that all sixteen individuals entered the United
States illegally. (Dkt. No. 43 at 27). The six BPAs present
simultaneously performed field immigration inspections on the
detainees, each inspection lasting three to five minutes.
(Id. at 24-25). Within thirty minutes, all sixteen
field immigration inspections had been completed.
(Id. at 30-31).
completing the inspections, a Border Patrol van arrived to
transport the detainees to the Laredo South Border Patrol
Station, but the lone van lacked the capacity to transport
the entire group of sixteen. (Id. at 25-26). While
standard Border Patrol protocol dictated that the BPAs wait
for another transportation van to arrive-potentially
resulting in another thirty- to ninety-minute delay-the
agents in the field used several of their unit vehicles to
transport the remaining detainees to the Laredo South
station. (Id. at 26). Securing the BPAs'
vehicles, parked a mile away, added an additional ten to
fifteen minutes to the transportation process. (Id.
at 31-32). The BPAs arrived with the group of sixteen aliens
at the Laredo South station sometime between 10:00 p.m. and
The Border Patrol Station
the group arrived at the Laredo South station, a shift change
among Border Patrol agents was taking place. (Dkt. No. 43 at
44). At the same time, other detainees were being processed
at the station. (Id. at 46). As part of the
screening process, the aliens were questioned again about
their biographical information. (Id. at 42). During
this time, the aliens waited on a bench inside the station,
in the presence of other BPAs. (Id. at 89-90). At
some point, Defendant was asked by Border Patrol whether he
wanted anything to eat, but he only requested to use the
bathroom. (Id. at 148).
the aliens underwent initial processing. Three or four BPAs
were assigned to the task, but two others, BPAs Juan Lopez
and Victor Rivera-Cortes, members of separate units,
assisted with intake to expedite the
process. (See Dkt. No. 35 at 2; Dkt. No. 43 at
44-45). One by one, the aliens were patted down and searched.
(Dkt. No. 43 at 43). If an alien possessed money, the money
was counted in front of him, and he would sign a Form I-213
confirming the amount of money in his possession.
(Id. at 73). If the individual had any other
property on his person, such as a cell phone or religious
items, that property would be placed in a bag and the
tracking number would also be recorded on the Form I-213.
(Id. at 43, 73). Photographs were taken of each of
the aliens, and everyone over fourteen years old had his
fingerprints scanned. (Id. at 47, 100). The
information obtained was entered into the Border Patrol's
electronic database and used to retrieve criminal history and
any records of prior apprehensions by Border Patrol.
(Id. at 47).
group of sixteen aliens was one of the largest groups the
Laredo South station had ever received. (Dkt. No. 43 at 106).
A typical group of detainees consists of six to eight aliens.
(Id. at 46). Given the size of the group, BPAs
Rivera-Cortes and Lopez suspected that one of the sixteen
individuals was a brush guide and suspected that Defendant,
specifically, was the brush guide for the
group. (Id. at 48). He was the only
person in the group from Nuevo Laredo,  and he was
dressed differently than the other aliens. (Id. at
48-49, 91). As is standard Border Patrol operating procedure,
Defendant was placed in an isolated cell. (Id. at
was later removed from his cell and escorted to BPA
Rivera-Cortes's desk. (See Id. at 65). BPA
Rivera-Cortes attempted to confirm Defendant's
biographical information because Defendant's profile was
not showing up in the Clave Única de Registro de
Población (commonly referred to as the
“CURP”), an electronic database maintained by the
Mexican government in which each Mexican national is
registered. (See Id. at 61). BPA Rivera-Cortes made
several attempts in Defendant's presence to pull up
Defendant's information based on the biographical
information he provided, but to no avail. (See Id.
at 65-66). BPA Rivera-Cortes told Defendant that he suspected
he was lying about his age. (Id. at 66-67). BPA
Rivera-Cortes eventually showed Defendant his computer screen
indicating that the information was not showing up in the
system, after which Defendant gave his correct date of birth.
(Id. at 66). Once the correct date of birth was
entered, Defendant's profile appeared in the CURP.
(Id. at 66). Defendant's delay in providing the
correct date of birth added approximately twenty minutes to
his intake processing. (Id. at 64). Defendant was
not Mirandized at this point, nor did he invoke any
Miranda rights. (Id. at 56-57, 114). He was
not questioned further and was returned to his cell.
(Id. at 99-100). It took between one and two hours
to complete the intake process for the entire group.
(Id. at 44).
between 11:00 p.m. and midnight, after the completion of the
intake process and a review of the record check information,
the BPAs began to conduct individual interviews.
(Id. at 44, 106-07). Aside from the Defendant,
twelve of the sixteen aliens were interviewed. (Id. at
107). BPAs Rivera-Cortes and Lopez were the only agents
conducting interviews of the group. (Id. at 107).
While under normal circumstances both agents would be present
during each one of the interviews, BPAs Rivera-Cortes and
Lopez decided to split the duties to expedite the process.
(See Id. at 107-08). Thus, Agent Lopez conducted the
interviews mostly on his own. (Id. at 51). The time
each interview took to complete varied, but each interview
lasted on average between thirty and forty-five
minutes. (Id. at 54). Meanwhile, Agent
Rivera-Cortes prepared six-pack photo lineups (id.
at 51), reviewed records checks (id. at 51), sat-in
on portions of interviews (see Id. at 2), and
drafted narrative summaries of the completed interviews onto
a Form D-166. (Id. at 51, 79). BPA Rivera-Cortes
testified that he did not take a break during his shift.
(Id. at 54). Agent Lopez, on the other hand, took a
twenty-minute lunch break. (Id. at 111).
individual is suspected of being a guide for undocumented
aliens, the BPAs interview all the other witnesses first to
establish the facts of the case, prior to speaking to the
suspect. (See Dkt. No. 35 at 2; Dkt. No. 43 at 109).
Defendant was therefore interviewed last. (Id.).
The Subject Interview
interview took place at 4:00 a.m. on March 28, 2019.
(Gov't Ex. 2). BPAs Lopez and Rivera-Cortes were both
present for Defendant's interview. (Dkt. No. 43 at 81).
BPA Lopez began by confirming with Defendant that his
preferred language was Spanish. (Id. at 112). BPA
Lopez then read the Miranda rights listed on Form
I-214 to Defendant in Spanish. (Dkt. No. 43 at 85, 111-12;
Gov't Ex. 2). The notice of rights on the Form I-214 are
presented in Spanish. (Gov't Ex. 2). Upon his request,
Defendant was provided with the Form I-214, which he read
over himself. (See Dkt. No. 43 at 83-84). BPA Lopez
then asked Defendant whether he understood his rights.
(Id. at 127). Defendant said that he did and that he
was willing to answer questions. (Id. at 112-13,
127-28). BPA Lopez asked Defendant whether he wished to have
a lawyer present and remain silent or would he answer some
questions; and Defendant agreed to answer Agent Lopez's
questions. (See Id. at 84-85, 112-13). Defendant
signed the Form I-214 indicating that he read the notice of
rights, that he was willing to answer questions, and that he
did not wish to have an attorney present. (Id. at
112; Gov't Ex. 2). At the time Defendant waived his
Miranda rights, he showed no signs of confusion.
(Dkt. No. 43 at 134). During the hearing, Defendant confirmed
that he was able to read and write in Spanish (id.
at 132); that he completed school up to the age of sixteen,
receiving passing grades in all of his courses (id.
at 136); that he had read over the Form I-214 (id.
at 146); and that he had signed the form. (Id. at
140; Gov't Ex. 2).
interview lasted for approximately forty-five minutes. (Dkt.
No. 43 at 114). Agents asked about Defendant's background
and his reason for traveling to the United States.
(Id. at 115). Defendant initially claimed that he
had entered the United States with a relative and denied
being the brush guide of the group. (Id. at 67,
115). When Defendant was confronted with the information
gathered from the material witnesses and told that he was
suspected of engaging in human trafficking, he verbally
confessed that he was the group's brush guide.
(Id. at 67, 114). The confession occurred twenty- to
twenty-five minutes into the interview. (Id. at
115). At no point did Defendant invoke his right to remain
silent. (Id. at 61, 108). At no point did Defendant
request an attorney. (Id. at 61, 108). BPA Lopez and
BPA Rivera-Cortes denied ever suggesting to Defendant that
telling the truth would result in leniency. (Id.
at 89, 128). At some point after Defendant confessed,
Defendant asked the BPA agents how much jail time he was
facing. (Id. at 114-15). The BPA agents told him he
was facing three to five years in jail,  but that the
final determination was up to a judge. (Id. at 68,
Lopez then prepared a Form I-215B sworn statement.
(Id. at 86-87). The form was written in English and
organized in a question-and-answer format, memorializing the
specific questions that BPA Lopez had asked Defendant and
Defendant's corresponding responses. (Id. at
86-87). BPA Lopez went over the form with Defendant, page by
page, explaining in Spanish what he had written down.
(Id. at 131). Defendant initialed each page of the
form to indicate that he adopted its contents. (See
Id. at 131). The process took about fifteen minutes.
(Id. at 132-33).The proposed complaint was
filed later that day. (Dkt. No. 1). On March 29, 2019,
Defendant made his initial appearance before Magistrate Judge
Sam Sheldon. (See Minute Entry dated March 29,
Motion to Suppress raises three principal issues: (1) whether
Defendant's Miranda rights were
“scrupulously honored”, (2) whether
Defendant's confession was knowing and voluntary; and (3)
whether Defendant's statements were obtained in violation
of the presentment rule. The Government does not dispute that
Defendant was in custody at the time he was interrogated, nor
that Defendant was entitled to Miranda warnings
prior to his interrogation. (See Dkt. No. 31 at 3).
The issues raised by the Motion to Suppress are addressed in
Whether Defendant's Miranda Rights were
Miranda Rights Overview
Fifth Amendment provides that “[n]o person . . . shall
be compelled in any criminal case to be a witness against
himself.” U.S. Const. amend. V; Malloy v.
Hogan, 378 U.S. 1, 8 (1964). This provision-the
Self-Incrimination Clause-protects the right of the accused
to not bear witness against himself at trial. “The
privilege against self-incrimination guaranteed by the Fifth
Amendment is a fundamental trial right of criminal
defendants.” Chavez v. Martinez, 538 U.S. 760,
767 (2003) (quoting United States v.
Verdugo-Urquidez, 494 U.S. 259, 264 (1990)). To protect
against violations of the Self-Incrimination Clause, the
Supreme Court announced a prophylactic rule in Miranda v.
Arizona, whereby the failure to give suspects specific
warnings will create a generally irrebuttable presumption of
coercion. 384 U.S. 436 (1966).
decrees that any person subjected to custodial interrogation
must invariably be given four constitutionally mandated
[The person] must be warned prior to any questioning that he
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, and that if he cannot afford an
attorney one will be appointed for him prior to any
questioning if he so desires.
Miranda, 384 U.S. at 479. All four warnings and a
waiver thereof are “prerequisites to the admissibility
of any statement made by a defendant.” Duckworth v.
Eagan, 492 U.S. 195, 202 (1989) (citing
Miranda, 384 U.S. at 476). If an officer were to
elicit statements from a suspect in violation ...