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U.S. v. TORRES-DEL MURO

July 20, 1999

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JERONIMO TORRES-DEL MURO, DEFENDANT.



The opinion of the court was delivered by: Mills, District Judge.

OPINION

Is the exclusionary rule available as a remedy for a violation of the consular notification provision of the Vienna Convention?

No.

Motion to suppress denied.

I. Background

During early November of 1998, Illinois State Police stopped a 1994 Ford Aerostar van near Lincoln, Illinois. The van was driven by Defendant Jeronimo Torres-Del Muro ("Muro"), and the passengers included six other Mexican nationals. Suspecting that the occupants of the van might be illegal aliens, the Illinois State Police Officer contacted the Springfield, Illinois office of the Immigration and Naturalization Services ("INS").

INS officers determined that Muro and several other occupants were in the United States illegally and, thus, transported the occupants to their Springfield office for interrogation. Subsequently, INS Officer Tom Merchant advised Muro of his Miranda rights. Officer Merchant did not, however, notify Muro that he had a right to consult with Mexican consular officials in accordance with INS regulations*fn1 and Article 36 of the Vienna Convention, 21 U.S.T. at 100-101, 596 U.N.T.S. at 292 ("Convention"). Shortly after the Miranda warnings, Muro waived his Miranda rights and made inculpatory statements to the INS officers.

A federal grand jury indicted Muro on December 3, 1998. Muro now seeks to suppress his statements based on INS's failure to notify him of his right to consult with the Mexican Consulate. To support his motion, he has attached an affidavit from Fernando Gonzalez, the Mexican consul in St. Louis. Consul Gonzalez swore that if he had been notified of Muro's arrest, he would have advised Muro not to make any statements to the INS, and would have explained Muro's rights under the Fifth Amendment. In addition, Muro signed an affidavit stating that if he had been notified of his right to consult with a consulate, he "would have exercised that right and requested that I.N.S. allow [him] to talk to [his] consul. [He] would have told the I.N.S. agents that [he] did not want to speak to them until after [he] had spoken to a Mexican consul." Moreover, Muro swore that he would have followed the consulate's advice, which in effect would have resulted in Muro not waiving his Fifth Amendment rights.

Now, the Court turns to address the merits of Muro's motion to suppress.

II. Analysis

Article 36 of the Vienna Convention on Consular Relations, April 24, 1963, art 36, 21 U.S.T. 77,596 U.N.T.S. 261 provides:

  1.  With a view to facilitating the exercise
      of consular functions relating to
      nationals of the sending State: (a)
      consular officers shall be free to
      communicate with the nationals of
      the sending State and to have access
      to them. Nationals of the sending
      State shall have the same freedom
      with respect to communication with
      and access to consular officers of the
      sending State;
    (b) if he so requests, the competent
    authorities of the receiving State shall,
    without delay, inform the consular
    post of the sending State if, within its
    consular district, a national of that
    State is arrested or committed to prison
    or to custody pending trial or is
    detained in any other manner. Any
    communication addressed to the consular
    post by the person arrested, in
    prison, custody or detention shall also
    be forwarded by the said authorities
    without delay. The said authorities
    shall inform the person concerned
    without delay of his right under this
    subparagraph;
     (c) consular officials shall have the
    right to visit a national of the sending
    State who is in prison, custody or
    detention, to converse and correspond
    with him ...

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