United States v. Perez.
No. 24-3015. 1/17/2025. D.Kan. Judge Phillips. Conspiring to Possess With Intent to Distribute Methamphetamine—Miranda Warning—Waiver of Miranda Rights—Incriminating Statements—Cell Phone Contents—Motion to Suppress—Inevitable Discovery Doctrine.
January 17, 2025
While investigating a drug trafficking conspiracy operating in Kansas City, law enforcement identified Perez as a methamphetamine and fentanyl supplier. Some of Perez’s co-conspirators cooperated with law enforcement, including Cisneros and Krainbill, who stated that they had purchased kilogram-quantities of methamphetamine from Perez and identified him as their supplier. Then Tapia was pulled over in a traffic stop, and three pounds of methamphetamine was seized from his vehicle. Tapia agreed to cooperate in the Perez investigation and told Drug Enforcement Administration (DEA) agents that Perez had offered him $4,000 to transport the seized methamphetamine from Denver to Kansas City. Tapia continued the methamphetamine shipment to Perez, and agents arrested Perez when he arrived in his tow truck to obtain the methamphetamine after it reached Kansas City. Agents searched Perez incident to arrest and seized his cell phone. Agent Olberding then read Perez a standard Miranda warning, and with Perez’s permission, they interviewed him in custody for under an hour, during which Perez made incriminating statements and consented to a search of his cell phone. Perez was charged with conspiracy to distribute and possess with the intent to distribute 50 grams or more of methamphetamine and with intent to distribute 50 grams or more of methamphetamine. He moved to suppress statements he made before and after Agent Olberding read him the Miranda warning, as well as the contents of his cell phone. The district court denied the motion. The government later filed a superseding information reducing Perez’s charges to one count of conspiring to possess with intent to distribute methamphetamine. Perez entered a conditional guilty plea, reserving his right to appeal the district court’s denial of suppression.
On appeal, Perez argued that the district court improperly admitted evidence of his cell phone number, because he gave the phone to Agent Olberding before receiving a Miranda warning. Perez maintained that the district court erred by questioning Agent Olberding at the suppression hearing on whether he had dialed suspected phone numbers in past investigations, and then using that portion of Agent Olberding’s testimony to apply the inevitable-discovery exception. However, Perez forfeited this argument by not objecting to the district court’s questions at the suppression hearing and then waived it by failing to argue plain error in his opening brief.
Perez also argued that the district court overstepped its neutral role by developing its own basis for applying the inevitable discovery doctrine to Perez’s cell phone number, which went beyond the government’s argument that the doctrine applied because the agent had probable cause to obtain a search warrant for the phone. Here, the district court relied on Agent Olberding’s testimony that he would have simply called the telephone number that Tapia had called for Perez and waited for Perez’s seized cell phone to ring. The parties raised and responded to the inevitable discovery issue and provided some facts that supported the district court’s alternative basis for inevitable discovery. Under these circumstances, the district court’s application of the inevitable-discovery doctrine was within the “modest initiating role” that courts may assume without violating the party-presentation principle.
Perez further contended that the district court erred in admitting statements that he made after receiving a Miranda warning because (1) he did not knowingly and voluntarily waive his Miranda rights, and (2) his statements to Agent Olberding were coerced and therefore involuntary. However, Perez was an adult with a GED with no history of mental health or substance abuse treatment, so he comprehended the significance of waiving his Miranda rights; Agent Olberding provided him a Miranda warning; Perez agreed to be interrogated, and was detained for about 22 minutes before the interrogation and interrogated for under an hour; and law enforcement did not use or threaten physical force against Perez. Further, though Perez argued that Agent Olberding misrepresented Perez’s penalties and the potential for leniency, the district court found that Agent Olberding’s statements accurately reflected the penalties and potential for leniency given his charged crimes. Accordingly, Perez voluntarily waived his Miranda rights. And Perez’s responses to Agent Olberding show that he was aware of the rights he chose to waive and waived those rights while trying to negotiate the best deal he could, given the evidence of his guilt. Thus, his waiver was knowing.
Perez also asserted that the district court erred by admitting the contents of his cell phone based on his consent to the search. Here, Perez consented at least three times to letting Agent Olberding view his cell phone and volunteered, without prompting, that Agent Olberding could examine his phone to see that he supposedly had not communicated with Tapia about drugs. Accordingly, Perez voluntarily consented to the phone search, and the district court properly admitted the phone’s contents.
The denial of suppression was affirmed.