United States v. Velasco-Esparza

          ORDER DENYING MOTION TO SUPPRESS STATEMENTS AND GRANTING MOTION IN LIMINE AS TO PRE-MIRANDA STATEMENTS. [ECF NOS. 20, 30, 34.]

          HON. GONZALO P. CURIEL, UNITED STATES DISTRICT JUDGE

         On May 24, 2019, Defendant Antonio Velasco-Esparza filed a motion to suppress post-Miranda statements taken by officers following his arrest at the Otay-Mesa border. ECF No. 20. On May 31, 2019, the Government filed a response. ECF No. 21. The Court conducted an evidentiary hearing on August 16, 2019. ECF Nos. 26, 29. Following the hearing, on September 6, 2019, Mr. Velasco-Esparza filed a supplemental motion to suppress statements made prior to the administration of Miranda warnings. ECF No. 30. On September 20, 2019, the Government filed a response. ECF No. 31. The Court then held an evidentiary hearing on the motions to suppress all of Velasco's statements on October 4, 2019. ECF Nos. 33, 35. After the hearing, the Government confirmed that it did not intend to offer Defendant's post-Miranda statements in their case-in-chief, and the Court found that all of Defendant's statements taken by the officers were voluntary.

         Because the prosecution has agreed not to offer any of Defendants' statement made during, after or while, he received Miranda warnings, the remaining question is whether Defendant's post-arrest, pre-Miranda statements are admissible under the booking questions exception. See Pennsylvania v. Muniz, 496 U.S. 582 (1990). Most recently, on November 8, 2019, the Government filed a motion in limine requesting, among other things, permission to admit Defendant's pre-Miranda statements at trial. ECF No. 34 at 5. For the following reasons, the Court finds that these statements are admissible, and DENIES Defendant's motions to suppress and GRANTS the Government's motion in limine.

         I. Factual and Procedural Background

         a. The Arrest

         On February 11, 2019, at approximately 10:55 a.m., Antonio Velasco-Esparza (“Defendant”) applied for admission to the United States at the Otay Mesa Port of Entry. Defendant drove alone to the Otay Mesa Port of Entry. While approaching the primary inspection area, a Customs and Border Protection (“CBP”) dog alerted to Defendant's vehicle. A CBP Officer inspected the vehicle. During the inspection, another officer asked Defendant if the vehicle was his and if everything in it belonged to him. Defendant responded yes to both questions. He then told the officer that he was going home to San Diego. Defendant was arrested, and the vehicle was taken to secondary inspection.

         In the secondary inspection area, Defendant's vehicle was scanned using the Z-Portal machine. After the vehicle was scanned, a third CBP officer identified “anomalies” in the vehicle's gas tank. A fourth CBP officer physically inspected the vehicle as a CBP contractor removed the gas tank. The gas tank was found to contain 25.74 kilograms of methamphetamine.

         b. The Interrogation Pre-Miranda

         At approximately 3:00 p.m., Defendant was taken to a room at the Otay Mesa Port of Entry which had been converted from an old cell and contained a table, a bench, and a couple of chairs. (ECF No. 29, August 16, 2019 Hearing (“Aug. Hrg.”) at 10.) Homeland Security Investigations Special Agents Mendoza and Salcedo joined Defendant there and explained that they were going to “go over some biographical information.” (ECF No. 20-1, Ex. A, Interrogation Transcript (“Int. Tr.”) at 2.) Agents Mendoza and Salcedo asked Defendant his name, date of birth, social security number, and address. (ECF No. 20-1, Int. Tr. at 1-2.) Among Defendant's responses, Defendant stated he had “barely moved out . . . to San Diego” and “honestly live[d] in San Jose.” (ECF No. 20-1, Int. Tr. at 2.)

         Defendant then informed the Agents that he “wan[ted] to talk to [his] lawyer.” (ECF No. 20-1, Int. Tr. at 3.) Agent Mendoza ignored the request, repeating his question, “Okay. Um, well what's your address in San Jose?” (ECF No. 20-1, Int. Tr. at 3.) Mendoza continued to ask Defendant various questions from “ICE Form 73, a personal history report, ” (ECF No. 29, Aug. Hrg. at 7), including his place of birth, e-mail, weight, height, eye color, scars/tattoos, and employment. (ECF No. 20-1, Int. Tr. at 2-5.)

         Agent Mendoza thereafter turned to inquire about Defendant's family. Mendoza asked for Defendant's parents' names, phone numbers, and addresses. (ECF No. 20-1, Int. Tr. at 5-7.) Mendoza clarified to Defendant that the questions were “just for biographical purposes.” (ECF No. 20-1, Int. Tr. at 5.) As Defendant responded to Mendoza's questions, he provided some incriminating answers not directly responsive to Mendoza's questioning. In response to a question about his father's address, Defendant offered that his parents “have nothing to do, like, with this stuff, Bro, trust me, ” and that he was “the only stupid here (sic).” (ECF No. 20-1, Int. Tr. at 6.)

         Mendoza next asked for Defendant's marital status and, upon learning he had a girlfriend and two children, inquired of Defendant's girlfriend's name, date of birth, phone number, and address as well as the children's names, ages, and primary residence (mother or father). (ECF No. 20-1, Int. Tr. at 5-7.) Defendant expressed some hesitation, asking do “[y]ou need those names?” (ECF No. 20-1, Int. Tr. at 7.) Defendant repeated, “You need, like the names, like, is there something, like, background or something?”, to which Agent Mendoza responded, “it's not something bad, it's just, I'm just trying to get the information, background information on you.” (ECF No. 20-1, Int. Tr. at 8.) Otherwise, Defendant answered Mendoza's questions.

         At this point, Agent Mendoza asked Defendant about any alcohol and drug use. Specifically, Agent Mendoza asked Defendant how often and recently he drank alcohol, used drugs, or smoked. (ECF No. 20-1, Int. Tr. at 9-10.) Mendoza also asked Defendant how much money he had on him, as well as whether he had any medical conditions or took prescription medicine. (ECF No. 20-1, Int. Tr. at 10.)

         c. Questioning During and After Miranda

         Once the agents completed the background questioning, Agent Mendoza read Defendant his rights pursuant to Miranda. (ECF No. 20-1, Int. Tr. at 11.) Defendant orally acknowledged that he understood each right, (ECF No. 20-1, Int. Tr. at 11), and signed a Miranda waiver form. (ECF No. 20-1, Ex. B.) Agent Mendoza subsequently asked Defendant several times if he waived his Miranda rights would he wish to speak with the Agents until Defendant eventually agreed. (ECF No. ...