Order Adopting in Part and Rejecting in Part Memorandum and Recommendation — United States v. Mendoza

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Order adopting in part and rejecting in part a magistrate judge's memorandum and recommendation on a motion to suppress evidence in United States v. Guadalupe Mendoza, Criminal No. H-04-108, in the United States District Court for the Southern District of Texas, Houston Division, Document 54, filed May 12, 2005. The Court states that it denies the motion to suppress on the basis that the initial stop violated the Fourth Amendment, adopting the recommendation, and denies the motion on the basis that the consents to search were not voluntary, rejecting the recommendation. It concludes that Mendoza's consent to search his home and the two vehicles was voluntarily given. The order is signed on May 12, 2005, at Houston, Texas.

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“Order Adopting in Part and Rejecting in Part Memorandum and Recommendation — United States v. Mendoza.” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-4-04-cr-00108-dkt-54-3f2ae40259/, SHA-256 bd8a9c4e22e9f29c2eada896c492eae5edf1f7b29d4550697635efbff7602ebd.

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Case 4:04-cr-00108 Document 54 Filed in TXSD on 05/12/05 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

UNITED STATES OF AMERICA §
§
§
§
VS. §
§ CRIMINAL NO. H-04-108
GUADALUPE MENDOZA §
§
§
§

ORDER ADOPTING IN PART AND REJECTING IN PART MEMORANDUM
AND RECOMMENDATION OF MAGISTRATE JUDGE ON MOTION TO
SUPPRESS EVIDENCE

This court has reviewed the Memorandum and Recommendation of the United States

Magistrate Judge signed on December 9, 2004, granting the motion to suppress filed by

defendant Guadalupe Mendoza. (Docket Entry No. 51). This court has also considered the

objections filed by the government and made a de novo determination. FED. R. CIV. P. 72(b);

28 U.S.C. § 636(b)(1)(C); United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).

This court finds that the Memorandum and Recommendation should be, and the same is

hereby, adopted in part and rejected in part. Accordingly, it is ordered that the motion to

suppress on the basis that the initial stop violated the Fourth Amendment is denied, adopting

the Magistrate Judge’s recommendation; the motion to suppress on the basis that the consents

to search were not voluntary is denied, rejecting the Magistrate Judge’s recommendation.

The reasons for these rulings is set out below.

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I. Background

The Magistrate Judge held an evidentiary hearing, which is transcribed. The evidence

includes videotapes of the investigatory stop. Six law enforcement agents testified, two

police officers, one sheriff’s deputy, and three special agents from ICE. The testimony was

largely undisputed. The defendants did not testify. The government has not objected to the

facts stated in the Magistrate Judge’s Memorandum and Recommendation, but has argued

that the facts do not support the legal conclusions drawn from in the Memorandum and

Recommendation.

The record reveals that in October 2003, law enforcement agents in Jefferson Parish,

Louisiana seized $837,000 of purported proceeds from drug sales. (Tr. at 11). A target in

that investigation was stopped in a vehicle registered to Mendoza. (Id. at 11, 31, 85, 87).

ICE agents became aware that another targeted suspect had visited a home at 403 West

Republic, Baytown, Texas. Harris County Appraisal District records showed that Mendoza

owned that home. In mid-February 2004, the agents placed Mendoza’s home under

surveillance. (Id. at 11). On the morning of February 20, 2004, officers observed a number

of vehicles parked at the house, including a gray Volkswagen Passat parked on the street, a

black Chevrolet Tahoe, and two Ford pickup trucks in Mendoza’s garage. (Id. at 12). At

about 10:00 that morning, agents saw another black Chevrolet Tahoe, bearing a paper license

plate, arrive at the house. (Id.). The officers were unable to observe the driver. (Id.).

Approximately twenty minutes later, two Hispanic males left the house. (Id.). One of those

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men, who was wearing a green shirt, has never been identified. The other Hispanic male,

who wore a white shirt, was later identified as Mendoza. (Id. at 13). Those two men left in

the black Tahoe. Approximately an hour later, they were seen at an Academy Sporting

Goods store close to Interstate 10 in Baytown. (Id. at 13–14). The two men were followed

to an adjacent Home Depot store, where they purchased a roll of black electrical tape. (Id.

at 15). They then drove back to the house on West Republic. (Id.). About five minutes after

they returned, the garage door opened. The Volkswagen Passat was driven in and the garage

door was closed. (Id.). The Passat stayed behind the closed garage door for several hours.

(Id. at 16).

At approximately 4:00 that afternoon, agents saw the Volkswagen being backed out

of the garage. The agents were able to see that it now carried paper license tags. (Id. at

16–17). Both the Volkswagen and the black Tahoe, with Mendoza driving, left the house

and traveled “in tandem” to a parking lot in Baytown, Texas. (Id. at 17, 42). In the parking

lot, Mendoza and the unidentified driver of the Volkswagen met with defendant Foster, who

was already there in a tan pickup truck. (Id. at 17). The agents watched Foster, Mendoza,

and the third unidentified male, also Hispanic, talk for approximately ten minutes. Foster

was seen taking luggage from the tan pickup truck and putting it into the Volkswagen Passat.

(Id. at 18). Foster was then given the keys to the Volkswagen, which he drove out of the

parking lot, towards Interstate 10, heading east. (Id. at 18–19).

The federal agents then contacted Deputy J.B. Ellis, a Harris County Sheriff’s patrol

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officer. The agents described the Volkswagen to Ellis and said that the vehicle had just left

a suspected narcotics storage location and might contain “contraband and that, if possible,

[he] should develop probable cause and stop the vehicle.” (Id. at 93–94). Deputy Ellis

testified that he stopped the Passat at approximately 4:30 p.m., after he observed Foster make

an illegal turn. (Id. at 108, 115). Foster provided consent to search the Volkswagen. (Id. at

97). Officers discovered a hidden compartment under the rear bumper cover. (Id. at 102).

From that compartment, the agents retrieved twenty-three separate packages each containing

approximately one kilogram of cocaine. (Id. at 20). Most of those packages were wrapped

in clear wrap, with an outer cover of black electrical tape on the ends; two of the packages

were completely wrapped in black electrical tape. (Mendoza Ex. 1: Customs Agency Report

of Investigation at 4). Foster was then placed under arrest, handcuffed, and seated in the

back of Deputy Ellis’s vehicle. (Tr. 21, 102). After waiving his right to remain silent, Foster

made additional statements about his involvement in cocaine trafficking. Foster stated that

he planned to take the Passat to New Orleans and deliver it to another individual. Foster also

said that Mendoza and two other men were to follow him to New Orleans in the black

Chevrolet Tahoe. (Id. at 27). He explained that, at the outskirts of New Orleans, Mendoza

was to give him an address at which to leave the car. (Id.). Foster stated that Mendoza and

the other men would then retrieve the car and deliver the cocaine. Foster was to return to

Houston that evening with the proceeds from the sale of the cocaine. (Id.).

Special Agent Crowe testified that, after Foster’s statement, he telephoned the agents

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conducting the surveillance at Mendoza’s home and told them about the cocaine found in the

Volkswagen and that Foster had implicated Mendoza as a participant. The video recording

shows Crowe talking on the telephone. (Id. at 69). Meanwhile, the agents watching the

house on West Republic had observed Mendoza walking back and forth from his garage to

a white pickup truck that was parked in his driveway. (Id. at 207–208). Special Agent Laura

Cook testified that Mendoza was carrying items from the garage and placing them in the

white pickup, although she could not see what those items were. (Id. at 208).

Following the news of Foster’s arrest, federal agents asked a Baytown patrol officer,

John Lunsford, to assist. Officer Lunsford testified that one of the ICE agents told him that

Mendoza’s house was under surveillance and that the agents were going to “attempt to . . .

get a consent to search and they wanted a uniformed Baytown police officer when they did

such.” (Id. at 134, 140, 143). Lunsford drove to Mendoza’s home to help in the anticipated

search. Several minutes later, Lunsford was told that Mendoza had just left the house.

Lunsford was “asked if [he] could stop the vehicle that had just left the residence.” (Id. at

140). The agents reportedly told Lunsford that they wanted Mendoza detained because an

earlier traffic stop had resulted in the seizure of several kilograms of cocaine. (Id. at 135).

With that information, Officer Lunsford drove his patrol car after Mendoza’s pickup truck.

(Id.).

A video recording taken from the patrol car shows that Lunsford began the pursuit

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at about 5:21 p.m. and that he stopped the Mendoza truck at about 5:25 p.m.1 (Id. at

146–147; Mendoza Ex. 2). Mendoza’s wife, mother-in-law, and six year-old daughter were

in the truck with him. (Id. at 142). The video recording captured Lunsford’s request that

Mendoza make his hands visible and get out of the truck. (Id. at 147). Lunsford testified that

he had done nothing more than approach Mendoza and ask for his driver’s license when a

number of federal agents arrived. (Id. at 137; and see Mendoza Ex. 2). Lunsford played no

further role. (Tr. 137).

Special Agent Eric Gann testified that he had followed Officer Lunsford’s patrol unit

and that he was present when the truck was pulled over, at approximately 6:00 p.m. (Id. at

195). The videotape shows that three federal agents approached Mendoza’s truck, each with

his gun drawn, although not pointed at any person. (Mendoza Ex. 2, see also Tr. 198). Gann

explained that, as shown in the video recording, Mendoza was searched for almost a full

minute to make certain that he was not armed. (Mendoza Ex. 2). Gann stated that he told

Mendoza, “you are not under arrest at this point, you are being temporarily detained pending

the outcome of this investigation.” (Tr. 196). Gann testified that he received Mendoza’s

assurance that he understood that he was not under arrest. Gann stated that Mendoza not

only seemed willing to cooperate with the officers, but seemed rather “relaxed.” (Id.). In

response to a question, Gann testified that, at that point, Mendoza was not “free to leave,”

1
Lunsford testified that he actually made the stop at about 6:00 in the evening, and he could not
“explain why the tape time was different” from his own recollection. (Tr. 136, 155). He stated further that, at the
time of the stop, he had no reason to think that the video camera clock was wrong. (Id. at 159).
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because he was “temporarily being detained.” (Id. at 200). HPD Officer Joe Garcia testified

that he arrived at approximately 6:01 p.m. or 6:02 p.m., and he saw Mendoza already

standing at the back of his truck, in the midst of the federal agents. (Id. at 163–64). Garcia

testified that, at that point, had Mendoza chosen not to cooperate, he would not have been

free to leave. (Id. at 191–92).

When the agents were satisfied that Mendoza was not armed, Garcia had him move

away from the back of the pickup truck and to the roadside next to the back of Lunsford’s

patrol car. (Id. at 165). By this time, the Mendoza family was also out of the truck and

standing on the shoulder of the road. (Mendoza Ex. 2). Officer Garcia testified that he told

Mendoza that Foster’s car had been stopped, that cocaine had been seized from a hidden

compartment in the bumper, and that surveillance officers had seen that car at his house just

before. (Tr. 165). After speaking with Mendoza for “approximately four minutes,” Garcia

asked him to consent to a search of the house on West Republic. (Id. at 167). Garcia gave

Mendoza a written consent to search form and explained it. Garcia testified that he asked

Mendoza if he could read and understand English, and learned that Mendoza had gone to

school in Roma, Texas. Garcia testified that “I wanted to make sure that he understood what

he was signing.” (Id. at 167–168). Garcia testified that he typically stresses to defendants

that the consent to a search is to be voluntary, and that they have “the right to refuse to sign.”

(Id. at 182). Garcia also testified that, based on talking to Mendoza and watching him, he

was “confident” that Garcia understood both the form and the request, as well as his right to

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refuse the request. (Id. at 168, 182). After Mendoza signed, Garcia consulted his watch, and

recorded the time, 6:05 p.m., on the form. (Id. at 172). That notation is consistent with

Officer Lunsford’s testimony that approximately five minutes elapsed from the time that he

stopped the truck to the time that the consent to search was obtained. (Id. at 156). Special

Agent Gann testified that, when Mendoza signed the consent to search form, he was not free

to leave. (Id. at 201).

After Mendoza gave his consent to a search of the home, Officer Lunsford drove him

there in his patrol car, at the federal agents’ request. (Id. at 152–53). Mendoza was not

handcuffed during the ride. (Id. at 138). Mendoza’s family members drove the truck back

to the house, followed by one of the agents. (Id. at 152; Mendoza Ex. 1, p. 5). The video

recording shows that Mendoza arrived at the house at about 5:40 p.m., but Special Agent

Laura Cook, who was maintaining surveillance, testified that he arrived at approximately

6:35 p.m. (Tr. 205). During the search of his home, Mendoza remained inside, and was not

handcuffed. (Id.). In response to questioning, Cook agreed that Mendoza was not free to

leave the house and that the agents would not have permitted him to leave had he revoked

his consent to the search. (Id. at 217–218). She testified that Mendoza was stopped on the

highway so that the agents could obtain his consent to a search. (Id. at 220).

The search of the house uncovered no items of evidentiary value. (Id. at 207). While

the search was in progress, Mendoza was in the house, not handcuffed. Officer Garcia

obtained Mendoza’s consent to search the maroon pickup in the garage. Before that consent

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was given, no officer threatened Mendoza or his family or made any promises. The consent

was added to the form Mendoza had already signed. (Id. at 170–71). Officer Garcia testified

that supplied the information on the consent form, but this time he did not note the time at

which Mendoza agreed to the search. (See Gov’t Ex. 3).

Special Agent Cook testified that more than $475,000 was found in a laundry basket

on the front seat of the maroon truck. (Tr. 207). The money was all in cash, stacked “in

boxes wrapped in stretch wrap.” (Id.). Near the maroon truck, the agents found bags of

wrappings, stretch wrap and electrical tape, wrappings similar to the packaging on the

cocaine found in Foster’s car. (Id. at 208–09).

At some point, Mendoza also consented to a search of the white Ford truck, which was

parked in his driveway. (Id. at 170). For this search, Officer Garcia did complete a second

form, recording the time of Mendoza’s consent as 6:55 p.m. (Id.; Gov’t Ex. 4). In the white

pickup truck, the agents found a vacuum packaging/sealing machine, a receipt, dated the

same day, for the purchase of that machine, a scale, two used, and six new rolls of electrical

tape, and rolls of stretch wrap. (Tr. 209).

II. The Motion to Suppress

In his motion, Mendoza challenged the admissibility of any incriminating evidence

that was seized following the stop of his pickup truck. He argued that his initial detention

violated the Fourth Amendment and that his consent to the searches of his home and trucks

was involuntarily given.

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A. The Investigative Stop

The Magistrate Judge found that the investigative stop was supported by reasonable

suspicion and did not violate the Fourth Amendment. This court adopts the Magistrate

Judge’s memorandum and recommendation. The facts in the present record amply support

the finding that the investigative stop of the Mendoza vehicle was constitutional.

“[I]f police have a reasonable suspicion, grounded in specific and articulable facts,

that a person they encounter was involved in or is wanted in connection with a completed

felony, then a Terry stop may be made to investigate that suspicion.” United States v.

Hensley, 469 U.S. 221, 229, 105 S. Ct. 675, 680, 83 L. Ed. 2d 604 (1985). In the course of

an investigation, officers have two goals: to investigate and to protect themselves during their

investigation. See Terry v. Ohio, 392 U.S. 1, 23, 88 S. Ct. 1868, 1881, 20 L. Ed. 2d 889

(1968) (“[I]n addition [to the governmental interest in investigating crime], there is the more

immediate interest of the police officer in taking steps to assure himself that the person with

whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used

against him.”).

The officers had significant collective knowledge before stopping Mendoza’s truck

that supported reasonable suspicion that Mendoza was involved in criminal activity. In the

Louisiana investigation, a suspected drug trafficker used a car registered to Mendoza; a target

of the Houston investigation had been seen at Mendoza’s house the night before; the gray

Passat had been seen at Mendoza’s house, and it had been moved out of view, into a closed

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garage, for approximately four hours before it left; Mendoza and others were seen meeting

with Foster in a parking lot before the cars were exchanged; cocaine was recovered from the

Passat; Mendoza had been seen buying electrical tape that day and electrical tape was used

to package the drugs found in the Passat; Foster made statements implicating “Lupe”; and

Mendoza had been seen transferring unknown objects from the house to the white truck

parked in his driveway. This information provided reasonable suspicion of wrongdoing

necessary to support the detention. Although there was confusion created by inconsistent

time recordings in the police vehicles and other information, the record supports the

conclusion that before the stop of the Mendoza vehicle, the officers were aware of the stop

of Foster’s vehicle, the results of the search of that vehicle, and Foster’s statements

implicating “Lupe.” This court agrees with the Magistrate Judge’s recommended finding and

conclusion that from the “totality of the circumstances,” the collective facts known to the

agents before and when Mendoza was intercepted amounted to a “reasonable suspicion” that

he was involved in criminal activity, and justified the stop and investigative detention. Terry,

392 U.S. at 27.

B. The Voluntariness of the Consents to Search

Six factors bear on the voluntariness of consent: (1) the voluntariness of the

defendant’s custodial status; (2) the presence of coercive police procedures; (3) the extent

and level of the defendant’s cooperation with the police; (4) the defendant’s awareness of his

right to refuse consent; (5) the defendant’s education and intelligence; and (6) the

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defendant’s belief that no incriminating evidence will be found. Although all six factors are

relevant, no single factor is dispositive. United States v. Shabazz, 993 F.2d 431, 438 (5th Cir.

1993) (internal quotation and citation omitted); United States v. Portillo-Aguirre, 311 F.3d

647, 658–59 (5th Cir. 2002).

The Magistrate Judge found that the consents to search were not voluntarily provided,

recognizing that the question was a close one. A careful review of the record leads this court

to reject this recommended finding and conclusion, and instead to hold that the consents were

voluntarily given.

The consent to search the house was the first Mendoza provided. As to the first factor,

the evidence is undisputed that although he was not under arrest, he was subject to detention

and was not free to leave. The courts have recognized three types of encounters between law

enforcement officers and citizens, including: 1) a consensual encounter during which an

individual voluntarily agrees to communicate with the police; 2) a limited investigatory stop

based upon less than probable cause; and 3) an arrest which constitutes a seizure under the

Fourth Amendment. United States v. Cooper, 43 F.3d 140, 145–46 (5th Cir. 1995). This

encounter fell into the second category. Although Mendoza was detained for investigative

purposes and not free to leave, the evidence is undisputed that he was not under arrest, not

in custody, and not physically restrained. He was not handcuffed before he gave the consent.

Although he was fully patted down as soon as he got out of the truck, he was not otherwise

physically touched or restrained until after he gave the consents.

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The second factor—the procedures the police used—was significant to the Magistrate

Judge’s conclusion that Mendoza’s consent to search was not voluntary. The most

significant evidence was that when officers approached Mendoza’s vehicle, some had their

weapons drawn. The evidence showed that the officers had their weapons drawn but not

pointed at any person when they approached the truck. Such an approach is consistent with

the officers’ collective knowledge that the driver of the truck was suspected of involvement

in distributing a large amount of cocaine. It does not appear that the officers who talked to

Mendoza to obtain his consent to search displayed their weapons in any way. The officers

testified that they talked to Mendoza in normal conversational tones, without physical or

verbal threat or any promise. The officers testified that Mendoza was calm and appeared

“relaxed.” Both the undisputed testimony, the evidence from the videotape, and the case law

make it clear that a brief display of weapons by officers in effecting a Terry stop does not

amount to coercion that precludes voluntary consent. See United States v. Broussard, 80

F.3d 1025, 1036 (5th Cir. 1996); United States v. Edwards, 53 F.3d 616, 619 (3d Cir. 1995)

(citing cases and noting “[t]he vast majority of courts have held that police actions in

blocking a suspect’s vehicle and approaching with weapons ready, and even drawn, does not

constitute an arrest per se”); United States v. Yeagin, 927 F.2d 798, 801 (5th Cir. 1981); see

also United States v. Trueber, 238 F.3d 79, 94 (1st Cir. 2001); United States v. Kimball, 741

F.2d 471, 474 (1st Cir. 1984); c.f. United States v. Morales, 171 F.3d 978, 983 (5th Cir.

1999) (finding consent involuntary when officers rushed into warehouse with guns drawn

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and ordered suspects to the floor). The absence of handcuffs or other physical restraint

further supports an absence of coercive procedures. At the house, Mendoza agreed to a

search of two vehicles, with no evidence of any coercive procedures other than what is

inherent in the presence of police and an inability to leave. The cases are clear that the

presence of officers during detention is not sufficiently coercive to preclude voluntary

consent. See United States v. Solis, 299 F.3d 420, 438 (5th Cir. 2002); United States v.

Gonzales, 121 F.3d 928, 939 (5th Cir. 1997); United States v. Jones, 475 F.2d 723, 729 (5th

Cir. 1973).

The third factor, the extent and level of the defendant’s cooperation with the police,

supports a finding of voluntariness. The evidence was undisputed that Mendoza fully

cooperated with the officers as they explained the consent form to him, accompanied them

to the house, and agreed to the search of two vehicles. Mendoza also answered all questions

posed by the officers. Nowhere in the record is it reflected that Mendoza was uncooperative

with the officers at any time.

The fourth factor, the awareness of the right to refuse consent, similarly supports a

finding of voluntary consent. The evidence was undisputed that Mendoza was told that he

had a right to refuse before he signed the consent to search the house. The evidence was

undisputed that this was repeated before Mendoza consented to the searches of the two

vehicles. Although there is no evidence of prior criminal history, the cases do not require

that direct experience in police procedures is necessary for voluntary consent.

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The fifth factor, the defendant’s education and intelligence, do not weigh against a

finding of consent. The evidence showed that Mendoza had gone to school in Roma, Texas,

and could speak and understand English. There is no evidence of any deficiency in either

education or intelligence that would make his consent to search involuntary.

The fifth factor is whether the defendant believed that officers would find

incriminating evidence. The evidence shows that Mendoza did not believe that officers

would find any incriminating evidence in his house, but presumably was aware that there was

a large amount of money inside one truck. This factor weighs in favor of finding voluntary

consent as to the house, but is not determinative in the analysis. United States v. Hernandez,

279 F.3d 302, 307 (5th Cir. 2002).

The totality of the circumstances supports a finding of voluntary consent to search.

Mendoza gave written consent to search the residence and two vehicles, signing two separate

consent forms. Both consent forms informed Mendoza of his right to refuse consent. He was

cooperative and gave every indication of understanding what the police said. He was not

under arrest, although he was not free to leave. There were no coercive police procedures

used to obtain the consents. See, e.g., Solis, 299 F.3d at 439. Accordingly, based on an

application of the facts shown in the record to the six-factor inquiry, this court concludes that

Mendoza’s consent to search his home and the two vehicles was voluntarily given.

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III. Conclusion

The Magistrate Judge’s Memorandum and Recommendation is adopted in part.

Mendoza’s motion to suppress is denied.

SIGNED on May 12, 2005, at Houston, Texas.

______________________________________
Lee H. Rosenthal
United States District Judge

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