United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE United States District Judge
matter comes before the Court on Defendants' Motion to
Suppress (Doc. 25). The Court held a hearing on the motion on
September 22, 2016. For the following reasons and those
stated on the record, the motion is DENIED.
October 8, 2015, Defendants Eriberto Ricardo Gomez
(“Gomez”) and Yasmanis L. Oduardo Fonseco
(“Fonseco”) were pulled over while traveling east
on Interstate 70 by Caseyville Illinois Police Officer, Kale
Pirtle. Officer Pirtle approached the passenger side of the
vehicle and asked Defendants for their driver's licenses.
Gomez and Fonseco are native Spanish speakers and did not
appear to understand the request. Officer Pirtle said the
word “I.D.” and made a hand gesture, holding his
hand with his fingers in the shape of a small rectangle. Both
defendants then produced their driver's licenses. Officer
Pirtle then made attempts to communicate Defendants using
single Spanish words such as “donde” to ask where
Defendants were traveling to. To this, Fonseco responded
“New York.” Officer Pirtle ran Defendants'
driver's licenses which did not return anything unusual.
Pirtle returned to the Defendants' car and asked Fonseco,
in English, to exit the vehicle. Fonseco did not respond.
Pirtle said, “no ticket” and returned the license
to Fonseco. Officer Pirtle asked, again in English, if there
was anything illegal in the vehicle: “Marijuana?
Cocaine? Meth? Narcos? Narcoticos?” Fonseco responded,
“No.” The officer then pointed two of his fingers
at his eyes then at the vehicle and asked,
“Revisar?” Fonseco responded, “Yes” and
gestured with his hand towards the vehicle. Officer Pirtle
asked Gomez if he owned the vehicle by pointing at Gomez then
at the car and asking, “Yours?” Gomez nodded his
head. The officer repeated, “Revisar?” to Gomez
while making the same gesture he made to Fonseco. Gomez
nodded his head again.
search of the car revealed several dozen gift cards and a
credit card reader. Officer Pirtle approached Defendants with
the gift cards and asked, in English, what they were. Fonseco
responded, “Baby shower.” Officer Pirtle used the
same word, “revisar” while simultaneously
pointing at Fonseco's pockets to ask the Defendants if he
could search their persons. Fonseco responded,
“yes” and Gomez nodded his head. This search
revealed several more gift cards and a credit card re-coder.
Defendants were arrested and transported to the Pontoon Beach
violations of federal crimes, the Caseyville Police
Department recruited the help of FBI Agent Mike Lovell. Agent
Lovell arrived at the Pontoon Beach Police Department with a
translator, Intelligence Specialist Mario Jimenez of the
United States Attorney's Office for the Southern District
of Illinois. Jimenez is a native of Puerto Rico and a fluent
Spanish speaker. Defendants were informed of their
constitutional rights and interrogated separately. The
interrogations were video and audio recorded. During the
interrogation, Jimenez asked Gomez if he recalled Officer
Pirtle asking for permission to search the vehicle. Gomez
said he did. Gomez also said he gave permission for Officer
Pirtle to search the vehicle. Jimenez also asked Fonseco if
the officer asked for permission to search the car. Fonseco
said he did and that permission was granted.
now seek to suppress the evidence and statements obtained.
They argue that, due to the language barrier, Defendants'
consent to the search of the vehicle and their persons was
unknowing and involuntary, in violation of the Fourth
Amendment. The Government argues that the consent appeared
voluntary to Officer Pirtle and would have appeared voluntary
to a reasonable officer.
searches are permissible under the Fourth Amendment if
officers receive voluntary consent to conduct the search.
United States v. Figueroa-Espana, 511 F.3d 696, 704
(7th Cir. 2007). “The government bears the burden of
proving by a preponderance of the evidence that consent was
freely and voluntarily given. Whether consent is voluntary is
a question of fact, dependent upon the totality of the
circumstances.” Id. In
Figueroa-Espana, the Seventh Circuit provided a
non-exclusive list of factors that courts should consider
when determining if consent was voluntary: (1) age,
intelligence, and education; (2) whether the person was
advised of their constitutional rights; (3) how long they
were detained before giving consent; (4) whether the consent
was given immediately or after repeated requests; (5)
physical coercion; (6) whether they were in police custody
when they gave consent. Id. at 704-05.
these factors into account, “[t]he ultimate question is
whether, under the totality of the circumstances, the consent
appeared voluntary to a reasonable officer.” United
States v. Gutierrez, 221 F.App'x 446, 449 (7th Cir.
2007). Here, five of the six factors weigh in favor of
voluntary consent: both Defendants proved to be intelligent
adults; the defendants were not detained very long before
giving consent; consent was given immediately and multiple
requests were not necessary; there is no evidence of physical
coercion; and Defendants were not in police custody when they
gave consent. It is undisputed that Defendants were not
advised of their constitutional rights prior to giving
consent. However, “[t]he ‘failure to inform a
suspect of his right to refuse to consent to a search does
not invalidate a consent that is voluntary.'”
United States v. Navarro, 90 F.3d 1245, 1257 (7th
Cir. 1996) (quoting United States v. Baker, 78 F.3d
1241, 1245 (7th Cir. 1996)).
there is no evidence to suggest the consent would appear
anything other than voluntary to a reasonable officer. It was
clear that the defendants speak and understand some English
and they coherently responded to some questions either
verbally or through gestures. For instance, when the officer
said, “revisar” while pointing at his eyes then
pointing at the vehicle, Fonseco responded, “yes”
and gestured towards the vehicle with an open hand. Viewing
this conduct in context strongly suggests that, although a
language barrier existed, the parties indeed understood each
other and that the consent to search the vehicle would have
appeared voluntary to a reasonable officer. Further, during
their recorded interrogations, both Defendants admitted that
Officer Pirtle asked for permission to search the vehicle and
that they knew they were giving consent to have the vehicle
foregoing reasons, the Court finds by a preponderance of the
evidence that Defendants gave knowing and voluntary consent
to Officer Pirtle to search their vehicle and persons at the
scene. Accordingly, Defendants' Motion to Suppress is