The opinion of the court was delivered by: Hayes, Judge:
The matters before the Court are: 1) motion to suppress statements and to sever defendants for trial (ECF No. 21) filed by the Defendant Barragan-Lopez; 2) the motion to dismiss or for adverse instruction due to loss of evidence (ECF No. 35) filed by the Defendant Barragan-Lopez; and 3) the motion to dismiss for missing evidence (ECF No. 38) filed by the Defendant Estrada.
On June 11, 2011, at approximately 10:00 p.m., Defendant Maria Estrada and Defendant Barragan-Lopez were waiting in a vehicle in the primary lane at the San Ysidro Port of Entry. Defendant Maria Estrada was the driver and Defendant Barragan-Lopez was the passenger. A narcotics dog alerted to the gas tank of the vehicle. Customs officers obtained identification from the Defendants and escorted the vehicle to the secondary lot. Defendants were taken to the security officer while the vehicle was inspected. Packages were observed through a fiber optic scope in the gas tank. The packages were subsequently found to contain methamphetamine.
At approximately 12:43 a.m., on June 12, 2011, a Border Patrol Officer escorted Defendant Maria Estrada from the security office to the security cell and informed her that she was under arrest. At approximately 12:53 a.m., on June 12, 2011, the same Border Patrol Officer escorted Defendant Barragan-Lopez from the security office to the security cell and informed him that he was under arrest. The investigation continued.
At 5:02 a.m., on June 12, 2011, Immigration and Customs Enforcement Officer Karb interviewed Defendant Maria Estrada. Defendant Maria Estrada was informed of her Miranda rights and invoked.
At 6:34 a.m., on June 12, 2011, Immigration and Customs Enforcement Officer Karb, assisted by a Spanish-speaking agent, interviewed Defendant Barragan-Lopez. Defendant Barragan-Lopez was informed of his Miranda rights. Defendant Barragan-Lopez waived his Miranda rights and agreed to speak to the agents.
On June 24, 2011, the federal grand jury in the Southern District of California returned an Indictment charging the Defendants with importation of cocaine and methamphetamine in violation of 21 U.S.C. §§ 952 and 960.
1) Defendant's motion to suppress statements and to sever defendants for trial.
Defendant Barragan-Lopez moves the Court to suppress his statements made to government agents on following grounds: 1) his statements were not taken within six hours of his arrest; 2) his Miranda waiver was not knowing; and 3) his statements were involuntary as a result of coercion by the interviewing agent. The Government asserts that the Defendant was interviewed within six hours of his arrest. The Government asserts that the Defendant was informed of his Miranda rights and validly waived his rights. The Government asserts that all statements made by the Defendant were voluntary and not a result of coercion.
18 U.S.C. § 3501(c) provides in relevant part: "In any criminal prosecution by the United States..., a confession made or given by a person ... under arrest..., shall not be inadmissible solely because of delay in bringing such person before a magistrate judge ... if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such person within six hours immediately following his arrest . . .: Provided, that the time limitation contained in this subsection shall not apply in any case in which the delay in bringing such person before such magistrate judge . . . beyond such six-hour period is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available ...magistrate judge."
In this case, the Defendant was placed under arrest at approximately 12:53 a.m., two hours after crossing the border. The interview started at 6:34 a.m. on June 12, 2011. The Court finds no violation of 18 U.S.C. §3501(c). Defendant made his first appearance before a Magistrate Judge on June 13, 2011 without unnecessary delay.
The transcript and the video in this case shows that the Defendant was informed of his Miranda rights and knowingly waived his rights. Defendant stated that he did not have his glasses to read the waiver form and the Spanish-speaking agent read the form to the Defendant. Defendant signed the waiver of rights form. Defendant stated that he left Jalisco with his sister and spent the night in a hotel in Tijuana; that they bought tiles in Tijuana in order to fix his sister's bathroom; and that they were on their way to Ontario. The agent told the Defendant Barragan-Lopez that there was 25 kilos of meth in the gas tank of the vehicle and very little gas in the car. Defendant Barragan-Lopez told the agent that he did not know anything about the drugs found in the vehicle. The agents asked the Defendant a number of background questions. The agents asked the Defendant the name of the hotel in Tijuana where Defendants spent the prior night. Defendant Barragan-Lopez stated "I don't remember the name of the hotel." ECF No. 27 at 40. The Spanish-speaking agent stated: "Are you going to ...