The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge
RECOMMENDATION REGARDING MOTIONS TO SUPPRESS (Docket Nos. 19, 21)
Defendant Jose Manuel Noyola-Martinez moves to suppress evidence seized from the kitchen, living room area and bedroom "No. 2" of 3106 West 33rd Avenue, Apt 1 on September 16, 2010, as well as statements made by him to law enforcement officers on September 18, 2010. Dockets 19 and 21. The motions are opposed by the government. Dockets 25 and 24 respectively. An evidentiary hearing was conducted on February 4, 2011 before the magistrate judge. Upon due consideration of the evidence adduced and arguments of counsel and memoranda the magistrate judge recommends that the motions to suppress be denied except as to the defendant's suitcase in bedroom No. 2.
On September 10, 2010, officers were conducting surveillance at 3106W. 33rd Ave. They observed Jesus Ayalacoria and an unknown individual (later identified as Noyola-Martinez) leaving Ayalacoria's pick up truck carrying a white box and then walking into the entrance of the apartment complex. The drug investigation on that day involved an investigation of individuals named Enrique Zermeno and Jesus Ayalacoria.
Ty Bishop, Special Agent with Homeland Security Investigations, (SA Bishop) responded to a traffic stop by Anchorage police on September 16, 2010, where he first encountered Mr. Noyola-Martinez. The vehicle had been stopped for excessive speed and excessive window tint. There were two occupants in the vehicle. The driver of the vehicle was Enrique Zermeno. The passenger did not speak English and had Mexican identification. The passenger was Noyola-Martinez and SA Bishop was asked to speak to Noyola-Martinez in Spanish.
Guy Tavoliero is a special agent (SA Tavoliero) with Homeland Security Investigations (HSI (formerly known as ICE)). He was called to the scene of the vehicle stop. The first time SA Tavoliero heard the name Noyola-Martinez was after the search was conducted on September 16, 2010.
Zermeno appeared to be very cooperative. He consented to a search of his vehicle which turned up no contraband. Just before the vehicle search began, Zermeno informed the officers that he had a substance abuse problem with cocaine and marijuana. He was then asked by SA Guy Tavoliero if he would consent to a search of his residence. Zermeno said he would give his consent if he could be present. Zermeno identified his residence as 3106 W 33rd Apt 1. The written consent did not address whether there were any other persons staying in the apartment. There were no limitations as to location within the apartment stated in the consent to search. There was no mention about any other person using his apartment. Zermeno signed a consent form.
After determining that they could understand one another SA Bishop ascertained Noyola-Martinez's citizenship. Noyola-Martinez had with him a Mexican passport and a fradulent Arizona drivers license in someone else's name. Noyola-Martinez was forthcoming and told him that he was in the United States illegally. Based upon this response Noyola-Martinez was taken into administrative custody. He was transported to an office on 10th and Gamble.
C. First Interrogation of Noyola-Martinez
After taking the defendant's fingerprints SA Bishop conducted an interview in Spanish. The agent advised Noyola-Martinez of his Miranda rights using a Miranda card in Spanish which the officer read to Noyola-Martinez line by line, asking him after each sentence if he understood that right. At no time did Noyola-Martinez indicate that he did not understand what was being said. Noyola-Martinez indicated that he understood "perfectly," and that he was willing to waive the rights and speak with SA Bishop. The interview focused on immigration questions. There was no discussion about any sort of involvement with drugs.
D. Second Interrogation of Noyola-Martinez
On September 18, 2010, SA Bishop was again present when Noyola-Martinez was interviewed by Anchorage Police Detective Ramon Dojaque and SA Guy Tavoliero. SA Tavoliero identified himself and displayed his credentials. Tavoliero's credentials state that he is a Special Agent with Immigration and Customs Enforcement under the Department of Homeland Security. The credentials do not suggest that the officer participates in any drug investigations. That interview also took place at the Michael Building office on 10th and Gamble. Detective Ramon Dojaque is a Native Spanish speaker. Once again Noyola-Martinez was advised of his Miranda rights by Detective Dojaque. Noyola-Martinez indicated he understood those rights and he did not have a problem talking to the officers confronting him.
This interview lasted just over an hour. The agents did not tell Noyola-Martinez what the questions were going to be about nor did Noyola-Martinez inquire.
One of the rights advised Noyola-Martinez was that he could terminate the interview at any time if he wanted to. The interview was not recorded. Noyola-Martinez did not ask to end the questioning.
On September 18, SA Tavoliero wanted to determine the relationship between Ayalacoria and Zermeno. SA Tavoliero asked Noyola-Martinez about his relationship with those two individuals and how long he had been associated with them. Noyola-Martinez indicated that he alternated between staying in Ayalacoria's apartment and Zermeno's apartment. He said that Zermeno sold cocaine and marijuana in the room identified as bedroom No. 2. SA Tavolario was not aware on September 18 that Noyola-Martinez had been with Mr. Ayalacoria on September 15 when a box was brought to 3106 W. 33rd.
E. Search of Apartment No. 1
On September 16, 2010 the agents transported Zermeno to his apartment. SA Calderon, with the Internal Revenue Service Criminal Investigation Division, waited with Zermeno while SA ...