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United States v. Diaz-Delgado

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


December 10, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ANTONIO DIAZ-DELGADO, DEFENDANT.

The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is Defendant's Motion to Suppress Evidence and Statements. (Doc. # 10.)

FACTS

On November 25, 2008, the Court held an evidentiary hearing. Robert Von Kaenel, a federal agent with the Drug Enforcement Administration ("DEA") testified that on July 2, 2008, he was working with an informant that had been arrested earlier that same day. Agent Von Kaenel testified that he was present when the informant placed a call to Ricardo Lopez and negotiated a methamphetamine transaction. The informant arranged to meet the Lopez in the parking lot of an Albertsons grocery store and Lopez gave the informant a description of the vehicle he would be arriving in.

Agent Von Kaenel testified that after the meeting was set up between the informant and Lopez, he and other DEA agents established surveillance at the Albertsons parking lot. Agent Von Kaenel testified that he was in his vehicle with the informant and observed a vehicle that matched the description of the vehicle that Lopez was arriving in pull into the parking lot. Agent Von Kaenel testified that the informant placed a call to Lopez from his vehicle in order to confirm whether the vehicle observed was the vehicle that Lopez was arriving in. Agent Von Kaenel testified that agents observed the passenger of the vehicle under observation on his phone after the informant placed the call. Agent Von Kaenel testified that the informant was able to look into the vehicle and identified the passenger of the vehicle as Lopez.

Agent Von Kaenel testified that the DEA requested San Diego Sheriff deputies to assist in the stop of the vehicle. San Diego Sheriff deputies approached and stopped the vehicle. Defendant Antonio Diaz-Delgado was the driver of the vehicle. The deputies discovered methamphetamine in the car.

On August 26, 2008, Defendant was placed into the custody of Immigration and Customs Enforcement ("ICE"). On that same day at 11:45 a.m., Defendant was advised of his Miranda rights by ICE Agent Jesus Robles. Defendant stated that he was a citizen of Mexico and did not possess legal documents that would allow him to reside in the United States. Defendant stated that he entered the United States sometime between February and April of 2007.

On September 24, 2008, the federal grand jury returned an indictment against Defendant charging that he is an alien, who previously had been excluded, deported, and removed from the United States to Mexico, found in the United States without permission to re-enter in violation of Title 8, United States Code, Sections 1326 (a) and (b).

I. Motion to Suppress Evidence

Defendant moves to suppress evidence on grounds that the agents did not observe facts that would support a reasonable suspicion to stop the vehicle Defendant was driving. Defendant contends that all evidence obtained from the illegal stop should be suppressed as fruit from a poisonous tree. The Government contends that there was a reasonable suspicion to conduct a Terry stop of the vehicle.

The Fourth Amendment prohibits "unreasonable searches and seizures" by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. Terry v. Ohio, 392 U.S. 1, 9 (1968). The Fourth Amendment is satisfied if the officer's action is supported by reasonable suspicion to believe that criminal activity may be afoot. United States v. Arvizu, 534 U.S. 266, 273 (2002); see also United States v. Cortez, 449 U.S. 411, 417 (1981) ("An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity."). When making the determination whether the officer's action is supported by a reasonable suspicion, the Court should examine the "totality of the circumstances" and determine whether the officer had a "particularized and objective basis" for suspecting legal wrongdoing. Cortez, 449 U.S. at 417-418.

Agent Von Kaenel testified that the informant placed a call to Lopez in his presence and negotiated the methamphetamine transaction, that the informant and Lopez agreed to meet at a certain Albertsons grocery store, and that Lopez provided a description of the vehicle he would be arriving in to the informant. Agent Von Kaenel testified that he and other agents established surveillance at the Albertsons parking lot and that he observed a vehicle pull into the Albertsons parking lot that matched the description of the vehicle Lopez told the informant he would be arriving in. Agent Von Kaenel testified that the informant placed a call to Lopez from his vehicle in order to confirm that the vehicle observed in the Albertsons parking lot was the vehicle that Lopez was arriving in, and that agents observed the passenger in the vehicle under observation on his phone after the informant placed the call to Lopez.

Based upon the totality of circumstances, the Court finds that the information known to the agent provided the agents with a particularized and objective basis to believe the Defendant and Lopez were about to be engaged in criminal activity, that is, a methamphetamine transaction. The Court concludes that the stop did not violate the Defendant's fourth amendment rights and the motion to suppress evidence is denied.

Even if the Defendant is successful in his motion to suppress evidence, the Defendant's identity is not itself suppressible. Once the Government is aware of the Defendant's identity, the Government may rely on his identity, and his criminal and immigration records, in bringing charges against him under Title 8, United States Code, Section 1326. See United States v. Ortiz-Hernandez, 427 F.3d 567, 577 (9th Cir. 2005).

II. Motion To Suppress Statements

Defendant moves to suppress his statements on the grounds of an invalid Miranda waiver. Defendant contends that the waiver of his Miranda rights was not made voluntarily, knowingly and intelligently. The Government contends that the Defendant was advised of his Miranda rights and voluntarily and knowingly waived his Miranda rights. The Government further contends that statements made by the Defendant were made voluntarily and not coerced.

A statement is not compelled within the meaning of the Fifth Amendment if an individual "voluntarily, and knowingly and intelligently" waives his constitutional privilege. Miranda v. Arizona, 384 U.S. 436, 444 (1966). The inquiry into the validity of a Miranda waiver involves two distinct issues: 1) whether the relinquishment of the right was a "product of a free and deliberate choice" and 2) whether "the waiver was made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Moran v. Burbine, 475 U.S. 412, 421 (1986).

"A confession is involuntary under the fourteenth amendment if the police use coercive activity to undermine the suspect's ability to exercise his free will." Id. at 818; see also Colorado v. Connelly, 479 U.S. 157, 167 (1986) ("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").

In this case, Immigration and Customs Enforcement Agent Jesus Robles testified at the evidentiary hearing that he advised the Defendant of his Miranda rights in Spanish, that Defendant voluntarily waived these rights, and that Defendant executed a written waiver in Spanish. (Ex. # 1.) There is no evidence presented to suggest that Defendant was not fully aware of the nature of the rights he voluntarily and knowingly waived. There is no evidence presented to suggest that statements made after Defendant waived his Miranda rights were coerced. The Court concludes that the preponderance of the evidence indicates that the statements were voluntarily made by the Defendant after an advisement of Miranda rights, and a voluntary and knowing waiver. The motion to suppress statements is denied.

CONCLUSION

IT IS HEREBY ORDERED that Defendant's motion to suppress evidence and motion to suppress statements (Doc. # 10) are DENIED.

WILLIAM Q. HAYES United States District Judge

20081210

© 1992-2008 VersusLaw Inc.



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