D.N.M.: Gov’t fails to show consent for search of person; body recording doesn’t back it up

Defendant did not consent to a search of her person on a stop on a train. Defendant’s alleged “okay” on the body recording made by the officer and shown on the government’s transcript is an incoherent mumble, and not clear and positive proof. [And the court notes the officer was 17-5 going into this one.] United States v. Amezcua-Aguirre, 2015 U.S. Dist. LEXIS 114935 (D.N.M. July 24, 2015) (citing Treatise § 12.5):

Distilled to its core, this case is about a battle of wills. DEA Special Agent Jarrell Perry’s job is to find contraband being transported by drug mules on the Southwest Chief. The Defendant’s job was to get heroin from A to B without arousing Agent Perry’s suspicions or giving him a justification to search her person. Just as a chess match between established grandmasters often turns on a single, miniscule error, the Defendant’s Motion to Suppress turns on what exactly was said 18 minutes and 5 seconds into Agent Perry’s belt tape recording. The government says it wins because the Defendant said “Okay,” in response to Agent Perry’s request that she consent to a pat-down search. The Defendant says she prevails because she said no such thing. The Court concludes that the drug running Defendant outwitted Agent Perry. She deftly parried Agent Perry’s repeated attempts to gain permission to search her waistline; Defendant never unequivocally, or clearly, or specifically consented to him doing that. Agent Perry failed to get consent; checkmate, Defendant.

Agent Perry testified at the hearing on the Defendant’s Motion to Suppress that the Defendant said “okay” after he asked for her to consent to a pat-down. The government’s transcript echoes this testimony. But this evidence falls well short of the sort of “clear and positive testimony” required to show consent for two reasons. First, the audio recording of the encounter is the best evidence of what the Defendant actually said to Agent Perry. It suffers none of the vagaries and latent biases of human recollection. And the audio recording shows, as the Defendant maintains, that the Defendant mumbled an incoherent response to Agent Perry before Agent Perry precipitously conducted the pat-down search.

Second, even if the Defendant in fact said “Okay,” to Agent Perry, this was not in response to a request to conduct a pat-down search. Recall that at 18 minutes and 4 seconds into Agent Perry’s recording of his encounter with the Defendant, he asked her “How ’bout if I just use the back of my hand and pat-down around your waist, around your back?” The Defendant’s undisputed response was not “Okay” or a mumbled incoherent response; it was “No, what for?” Next, Agent Perry said “To make sure you don’t have anything strapped to your body.” Even if the Defendant then said “Okay,” there is nothing to suggest that this response related back to the original request for consent as opposed to Agent Perry’s more recent statement explaining why he wanted to conduct the pat-down search. In other words, Defendant’s “okay” (assuming she said that, which the audio recording reveals she did not) could have been a mere acknowledgement that Agent Perry in fact wanted to conduct the search to discover drugs, not a consent to that search.