The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION & ORDER
Defendants Carlos Beltran and Jesus Ivan Vazquez-Ramirez move to suppress evidence uncovered on May 13, 2008 by the Drug Enforcement Administration (the "DEA") and challenge their arrests on that date arguing that the DEA violated their rights under the Fourth Amendment to the United States Constitution. Though Beltran and Vazquez-Ramirez challenge their arrests and the search of their respective Residences separately, the court resolves the motions together as they involve overlapping issues of fact and law.
The government's version of the events leading up to the arrest of Beltran and Vazquez-Ramirez (altered for purposes of this opinion)*fn1 is as follows:
On May 13, 2008 at approximately 2:30 p.m. Drug Enforcement Administration Special Agent Donald Wood, and Task Force Officers ("TFO") James Healy, Michael Bedalow, Mark Porlier, Samuel Ayyad, John Kosmowski, and Edward Sobkowiak (collectively the "Officers") arrived at a two-flat, free-standing Residence located at 1901 South Harvey Avenue, Berwyn, Illinois (the "Residence") to conduct an interview.
Agent Wood and TFO Healy knocked on the front door of the Residence while the other Officers waited in front and on the side of the Residence. No one answered the door. About five minutes later TFO Ayyad saw someone in the second-story window. TFO Ayyad identified himself to that individual as a police officer and asked him to come to the front door. Before the individual arrived at the front door, some of the Officers pointed out to TFO Bedalow that the Residence had a security camera. Vazquez-Ramirez opened the front door and stood on the front porch while speaking in Spanish on a cell phone. Vazquez-Ramirez indicated to Agent Wood that his English was poor and that he was speaking to the owner of the Residence. Vazquez-Ramirez handed the phone to Agent Wood, who began speaking to Carlos Beltran, the owner of the Residence. Wood informed Beltran that he and other DEA Officers were at his home and wished to speak with him. Beltran responded that he was at work and that it would take him at least an hour to arrive at the Residence. Beltran additionally stated that he lived on the first floor of the two-flat Residence, denied that that there was any illegal contraband in the Residence and indicated that he would consent to a search of his home once he arrived onsite. Agent Wood told Beltran that they would await his arrival at the Residence.
Beltran next agreed to speak to Vazquez-Ramirez to see if Vazquez-Ramirez would consent to a search of the second-floor apartment. Wood handed the phone to Vazquez-Ramirez and after a short conversation in Spanish between the pair, Vazquez-Ramirez gave the phone back to agent Wood. Beltran subsequently conveyed to Agent Wood that Vazquez-Ramirez would consent to search his Residence when Beltran arrived. Agent Wood told the other Officers at the Residence what Beltran had said to him.
Agent Wood, TFO Healy, TFO Kosmowski, and Vazquez-Ramirez waited on the front porch for Beltran to arrive. Agent Wood asked Vazquez-Ramirez to provide him with the telephone numbers assigned to Vazquez-Ramirez's phones. Vazquez-Ramirez told Agent Wood the number for one of the phones, but could not remember the number for the second phone. Vazquez-Ramirez then passed both phones to Agent Wood who used them to call his own cell phone (confirming the numbers) and then returned them both to Vazquez-Ramirez.
Agent Wood asked Vazquez-Ramirez if anyone remained inside the Residence and Vazquez-Ramirez replied in the negative. According to Agent Wood, Vazquez-Ramirez appeared very nervous, was sweating, and spoke on his cell phone while the Officers and Vazquez-Ramirez waited for Beltran to arrive at the Residence. After waiting fifteen minutes, TFO Kosmowski, who was standing on the porch looking down the side of the house to the backyard, saw an individual he believed to be Beltran enter the backyard through the alley while talking on a cell phone; he informed the other Officers of the sighting. TFO Porlier and TFO Bedalow then moved toward the back of the Residence and observed that the back door to the Residence was closed, and no one was in the yard.
A short while after an individual entered the backyard of the Residence, Agent Wood and TFO Ayyad (while standing on the porch) heard footsteps coming from the second floor apartment and heard the door to the second-floor apartment slam shut. For the next twenty minutes or so, Agent Wood and other agents remained on the front porch with Vazquez-Ramirez. Meanwhile, TFO Bedalow noticed garbage cans positioned in the alley outside the fence bearing the number "1901" and searched them, uncovering packaging materials which he believed were used to wrap kilogram-quantities of narcotics.
About twenty-five minutes after TFO Porlier moved to the back of the Residence, he saw Beltran exit the back door with his hand positioned inside his shirt and called out to Beltran several times. TFO Porlier approached Beltran, patted him down and discovered a large amount of U.S. currency in his front pocket. Beltran was sweating, shaking and very nervous after exiting the Residence, according to TFO Porlier. After being told that Beltran had come out the back door of the Residence, Agent Wood handcuffed Vazquez-Ramirez, and left him on the front porch with TFO Ayyad, while Agent Wood and TFO Healy went to the rear of the Residence to speak to Beltran. Agent Wood testified that when he reached the rear of the Residence, Beltran was sweating, "soaking wet," "extremely nervous," and "shaking," and that his appearance was consistent with someone who had been moving things around. Agent Wood asked Beltran what he was doing, and Beltran replied that he had just arrived at the Residence and was coming to talk to the agents. Agent Wood believed that Beltran was lying because an individual had been spotted entering the backyard approximately twenty minutes prior to Beltran's exit from the Residence and Agent Wood had heard someone rummaging around on the second floor. Agent Wood then asked Beltran where he parked his car. Beltran led Agent Wood to the alley and pointed out his car, which was parked several houses away from his own even though parking spots more proximate to the Residence were unoccupied. As Beltran and Agent Wood returned to the backyard, Agent Wood asked Beltran whether there was any contraband in his Residence; Beltran responded in the negative.
Agent Wood then asked Beltran whether he would consent to a search of his Residence. Beltran agreed, but told Agent Wood that, because Vazquez-Ramirez was renting the second floor, he did not have authority to authorize a search of that floor. Shortly thereafter, Beltran asked Agent Wood whether he had a search warrant. Agent Wood told him that he did not. Beltran then retracted his consent and told Agent Wood that he would prefer that Agent Wood obtain a search warrant. Agent Wood said that was fine.
Agent Wood then prepared to secure the premises in order to obtain a warrant. Agent Wood placed Beltran in handcuffs, and asked whether there was anyone else present inside of the Residence; Beltran responded that there was not. Agent Wood asked Beltran whether he could look inside the Residence to ensure there was no one inside; Beltran agreed. Agent Wood and other Officers then performed a protective sweep of Beltran's Residence and determined that there was no one inside the Residence. After performing the protective sweep, Agent Wood walked to the front porch with TFO Healy to talk to Vazquez-Ramirez. When Agent Wood arrived at the front porch, he contacted Agent Zamora, a Spanish-speaking agent, and asked him to interpret a conversation between Agent Wood and Vazquez-Ramirez. Phone records reflect that Agent Wood made a call to Agent Zamora during this period.
While speaking with Agent Zamora, Agent Wood informed Agent Zamora that he had recovered narcotics packaging from the garbage cans of the Residence and that he would like for Agent Zamora to ask Vazquez-Ramirez whether he would consent to the search of his Residence. Agent Wood then set his phone to speaker-mode and Agent Zamora and Vazquez-Ramirez had a brief conversation in Spanish. Agent Zamora began by identifying himself, and then told Vazquez-Ramirez that agents had recovered kilogram packaging materials from the garbage cans. Agent Zamora also told Vazquez-Ramirez that the agents were seeking his consent to search his Residence. Vazquez-Ramirez responded in Spanish, "sure, go ahead." Agent Zamora asked Vazquez-Ramirez whether he would provide the agents with written consent, and Vazquez-Ramirez said that he would. Agent Zamora testified that Vazquez-Ramirez sounded calm during their conversation, and that he seemed to understand Zamora's questions and never responded in a way that indicated that he did not understand them. When Agent Zamora finished speaking with Vazquez-Ramirez, he told Agent Wood that Vazquez-Ramirez had just provided oral consent to search his Residence. Agent Wood then provided Vazquez-Ramirez with a consent form written in Spanish. Vazquez-Ramirez read the form and then he, Agent Wood, and TFO Healy signed it. TFO Healy wrote the time, "3:37 p.m." on the form immediately after everyone signed it. Agent Wood and TFO Healy watched as Vazquez-Ramirez put his initials next to the time. At that point, TFO Healy and Agent Wood conducted a quick search of the second floor apartment. During that search, TFO Healy and Agent Wood found two storage bins containing over $1 million in cash, a loaded pistol, and a significant amount of narcotics packaging material consistent both in color and texture with the packaging material that TFO Bedalow recovered from the garbage cans in the alley. After completing the search (which took ten or fifteen minutes) Agent Wood and TFO Healy then went to the backyard and Agent Wood informed Beltran that he had recovered a large amount of money from Vazquez-Ramirez's apartment and packaging material in the garbage cans, that Beltran was being detained, and that the agents were going to obtain a search warrant. As Agent Wood was walking Beltran to his vehicle, Beltran advised him that he wanted to cooperate, and consented to a search of his Residence. An agent then gave Beltran a written consent form, which Beltran read and signed. TFO Healy noted the time the consent form was signed ("3:50 p.m.") on the form. Beltran acknowledged that the basement was part of his Residence and he had access to it. However, he claimed that he rented one small room in the basement to another individual.
The Officers then searched Beltran's Residence and recovered, inter alia, a shotgun, scales, packaging material, and a heat sealer. The packaging material recovered from Beltran's Residence was consistent in both color and texture with packaging material recovered from the upstairs apartment and from the garbage can in the alley behind the Residence. After searching Beltran's Residence, agents searched a washer and dryer located in a common area on the second floor, just outside of the second floor apartment, and recovered approximately three kilograms of cocaine and a large sum of U.S. currency. While the search of Beltran's Residence was occurring, Beltran sat in the front room of his Residence, along with TFO Porlier. During that time, Beltran engaged in small talk with TFO Porlier and was social and cooperative. At approximately 4:30 p.m., Beltran was read his Miranda rights and was asked by Agent Wood if he would like to cooperate and consent to an interview. Beltran declined, saying that he viewed his consent to search as cooperation. Thereafter, Vazquez-Ramirez and Beltran were brought to separate police stations for processing.
Beltran and Vazquez-Ramirez present a version of the events of May 13, 2008 that differs substantially from the government's. For example, where the government contends Vazquez-Ramirez signed a consent to search form prior to conducting its search of the Residence and after Agent Zamora spoke to Vazquez-Ramirez in Spanish about consenting to that search, Vazquez-Ramirez claims that the conversation with Agent Zamora on the telephone never occurred and that he signed the Spanish language consent to search form only after he was brought to a police station. Beltran, for his part, admits to signing a consent to search form, but contends that his consent was nevertheless involuntary.
While both Beltran and Vazquez-Ramirez presented testimony that established a sequence of events that diverged materially from the government's, neither defendant has pointed to any inconsistencies in the testimony of the seven government witnesses who testified over the course of four days of in-court hearings, and the court has not located any discrepancies on its own. Absent evidence that the government's account is unreliable, Beltran and Vazquez-Ramirez effectively ask the court to suppress evidence and quash their arrests*fn2 based solely on crediting their testimony in preference to the consistent ...