The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge
ORDER: (1) GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO SUPPRESS [Doc. No. 21] (2) GRANTING IN PART DENYING IN PART DEFENDANT'S MOTION IN LIMINE TO ADMIT EXCULPATORY STATEMENTS [Doc. No. 23]
Presently before the Court is Defendant Catherine Cabrera's motion to suppress and her motion in limine to admit exculpatory statements. [Doc. Nos. 21, 23.] For the reasons below, the Court GRANTS IN PART and DENIES IN PART both motions.
I. Vehicle Inspection and Arrest*fn1 On September 7, 2011 at approximately 10:55 a.m., Defendant attempted to enter the United States through the San Ysidro Port of Entry as the driver and sole occupant of a white, 2006 Honda Civic. Defendant informed the primary officer on duty that she was headed home to Whittier, California, had purchased the car a week earlier, and had nothing to declare. Upon query of the vehicle's VIN number, the primary officer received a computer generated referral on the vehicle and requested the assistance of a canine enforcement officer. The canine officer then ran his dog on the vehicle, and the dog alerted to the dashboard area of the car.
The officers referred the vehicle to secondary for further inspection. Once in secondary, an officer opened the hood of the car and observed some packages in the firewall area. The officers then drove the vehicle through an x-ray machine and saw anomalies in the firewall area. Thereafter, the officers removed 11 packages of a substance that field-tested positive for cocaine from the car. The packages had a total weight of approximately 9.5 kilograms or 20.9 pounds. At around 1:00 p.m., officers informed Defendant of their discovery and placed her under arrest.
II. Defendant's Interrogation
Defendant's interrogation began at approximately 5:00 p.m., and lasted approximately three hours and forty-five minutes. [See generally Doc. Nos. 21-2, 21-3, 21-4, 21-5.]*fn2 The interrogation was conducted primarily by Department of Homeland Security Agents Patrick MacKenzie and Javier Enriquez in English. [Id.] Defendant is fluent in English and states in her motion that the fact the interrogation was conducted in English is not at issue in her motion. [Doc. No. 21-1 at 2.]
The agents began the interrogation by obtaining background information from Defendant. [Doc. No. 21-3 at 1-10.] Agent MacKenzie then informed Defendant of her Miranda rights one by one. [Id. at 10-11.] Defendant stated that she understood each right, and initialed that she understood the rights on the waiver form. [Id.] Agent MacKenzie explained to Defendant that if she wished to speak with them, she would have to sign the waiver form acknowledging she understood her rights and that she waived them freely and voluntarily without threat or intimidation and without any promise of reward or immunity. [Id. at 11.]
Defendant began to tell the agents that she was not involved with the narcotics and did not know about them. [Doc. No. 21-2 at 11.] Agent MacKenzie explained to Defendant again that if she wanted to speak to them about what happened, she would have to sign the waiver, and that she could stop the interrogation at any time for the purpose of consulting with an attorney. [Id. at 12.] The agent also told Defendant that she would eventually be provided with an attorney even if she agreed to waive her Miranda rights. [Id. at 13.] Agent MacKenzie then explained to Defendant she was under arrest and charged with two federal felonies and that she would be taken to the federal jail whether or not she spoke with them. [Id.]
Defendant again tried to explain her story to the agents. [Doc. No. 21-2 at 14.] Agent MacKenzie again told her that they could not talk to her about her background story and stated the following:
Agent MacKenzie: So I don't mean to be rude or disrespectful. I mean you know we're kind of at that point where its either you gotta you gotta waive your rights. If you're uncomfortable with the way this is going . . .
Agent MacKenzie: And you don't want to do it anymore just say hey guys I think now is the time to call a time out and I don't want to do this anymore. And then its over you know, then we're done. Its your decision. And we don't want to you know have any influence over that. [Id.] Defendant still stated that she was not sure. [Id. at 14-15.] The agents tried to explain the process to Defendant. They told her she would go to jail no matter what, and then she would be taken before a judge and given an attorney. [Id. at 15.] The agents explained that they would make a report based on any statements Defendant made during the interview, and that the report would be provided to the U.S. Attorney and Defendant's attorney. [Id.] But if Defendant did not tell them anything, then they would not provide the attorneys with a report. [Id. at 15-16.] The agents also explained that Defendant might not get an attorney that day, but that she would be provided one before she appeared before a judge. [Id. at 16.]
Defendant stated that she was still not sure. [Id. at 17.] She said that she wanted to tell the agents her story, but she did not want to sign the waiver form and have it hurt her later. [Id.] The agents said that it was her decision, that she did not have to sign the waiver, and that they would respect her decision. [Id. at 17-18.] The agents then gave Defendant a more thorough explanation of her Miranda rights, and Defendant read through the waiver form again. [Id. at 18-20.] Defendant stated that she was worried about statements coming back to hurt her later, and the agents stated that they could not guarantee that her statements would not be used against her later. [Id. at 20.] The agents informed Defendant of her rights a third time. [Id. at 20-21.] Defendant read the waiver aloud, acknowledged that she understood her rights, and signed the waiver form. [Id. at 21.]
Defendant's interrogation was conducted in three phases. The first phase lasted about three hours including the portions where the agents obtained her background information and her Miranda waiver. During the first phase, Defendant began to tell the agents her story, but she made several inconsistent statements. Agents MacKenzie and Enriquez stated that they did not believe her story, and told her that the U.S. attorney would not believe her story, and that they would like her to be honest with them. [See, e.g., Doc. No. 21-2 at 47; Doc. No. 21-3 at 51, 67-68.] In addition, Agent MacKenzie stated a couple times that although he could not make any promises, things generally go better for people that tell the truth and the agents would tell the U.S. Attorney if they thought she was being honest with them. [Doc. No. 21-3 at 55-56, 89.] Agent MacKenzie also told Defendant that he could not promise anything, but he assumed that because her story had so many holes in it, the U.S. Attorney would go "full tilt" and seek the maximum penalty for her. [Doc. No. 21-3 at 63.] Later in the interview, the agents looked through Defendant's cell phone, and the agents told Defendant:
Agent Enriquez: You know from the brief look I had at those messages. I think you do know this guy. Not only do you know him, but you are involved with this guy. Okay? Once we get the time of those messages in better detail, we're going to get a better picture.
Agent MacKenzie: But that means that might have to come out in court, you know, maybe he is somehow involved. Because we have to cover all the angles on this, you know, that's just the way it works, um. You might want to have a little talk with your husband before I have to do that just in case. [Id. at 90; see also id. at 87.]
Throughout this initial interview, Defendant told the officers that she was being honest but then changed some parts of her story. Her story continued to contain noticeable inconsistencies.
However, even after changing her story, Defendant continued to maintain that she did not know there were drugs in her car. [See, e.g., Doc. No. 21-3 at 56, 67, 73.] Eventually, the agents said that they were frustrated, and Agent MacKenzie stated a few times that he would end the interview because he thought he was being lied to, but Defendant appeared to want to continue the interrogation. [See, e.g., id. at 63-64, 100-01.] During this phase, the agents remained calm, were sitting at a table with Defendant, and never raised their voices at her.
After about three hours, agent Michael Bettencourt entered the room. Agent Bettencourt appeared to be agitated and began speaking to Defendant forcefully, yelling at times, interrupting her, and pacing around the room. Agent Bettencourt told Defendant that an innocent person would not be as calm as she was ...