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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

Chester Wayne Wilson, 

Defendant. 

No. CR-15-02231-001-TUC-CKJ (LCK)

ORDER 

 On November 19, 2015, Drug Enforcement Agency (DEA) agents arrested 

Defendant for possession of methamphetamine for distribution. The arrest was made at 

the FedEx Shipping facility located at 3601 E. Columbia Street, Tucson, Arizona, and the 

Agents were there to intercept a package containing methamphetamine that Florida 

agents said was intended to be mailed by Defendant to Panama City, Florida that 

afternoon. On December 16, 2015, Defendant was indicted for Possession With Intent to 

Distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. 841(a)(1) 

and 841(b)(1)(B)(viii). (Doc. 8). 

 Defendant filed a Motion to Suppress Statements and a Motion to Suppress Fruits 

of Illegal Seizure. (Docs. 29, 30). Evidence and argument were heard on July 18, 2016, 

and August 17 and 19, 2016 before Magistrate Judge Lynette C. Kimmins. On September 

7, 2016, Magistrate Judge Kimmins issued a Report and Recommendation (R & R), 

recommending denial of the Motions. (Doc. 69.) The R & R advised that pursuant to 

Federal Rule of Criminal Procedure 59(b)(2), any party may serve and file written 

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objections within 14 days of being served with a copy of the R & R. (Id.) No objections 

were filed, and on October 7, 2016, this Court adopted the R & R and denied Defendant’s 

Motions. (Doc. 72.) Thereafter, The Court granted Defendant’s Motion to Extend Time 

to File Objections to the Magistrate Judge’s Report and Recommendation (Doc. 79) and 

vacated its prior Order adopting the R & R. (Docs. 79, 83.) Defendant has now filed his 

objections, and the Government filed its response. (Docs. 84, 88.) Defendant’s 

objections relate only to the Motion to Suppress Fruits of Illegal Seizure and consent to 

search the package. 

 The Court has reviewed the Motion to Suppress Statements and the Motion to 

Motion to Suppress Fruits of Illegal Seizure (Docs. 29, 30), the government’s responses 

(Docs. 37, 38), the R & R (Doc. 69), the hearing transcripts from July 18, 2016 (Doc. 84, 

Ex.1), and August 17 and 19, 2016 (Docs. 68, 81), Defendant’s objections to the R & R 

(Doc. 84), and the government’s response (Doc. 88), and Defendant’s reply (Doc. 89). 

 The Court will adopt the R & R with respect to the Motion to Suppress Statements 

and deny the Motion. The Court will also adopt the R & R with respect to the finding of 

consent to search the package and need not reach the issue of probable cause for the 

warrantless search. Therefore, the Court will deny the Motion to Suppress Fruits of 

Illegal Seizure. 

I. Background 

 The seizure of the package and arrest of Defendant were the result of cooperation 

between Arizona-based DEA agents and Florida-based DEA Agents Bell and Key in 

Panama City, Florida. It is undisputed that the Arizona DEA Agents had no warrant to 

seize the package. The Magistrate Judge found, inter alia, that the Tucson Agents had 

probable cause to seize the package and that Defendant gave his consent to the search of 

the package. 

 Defendant objects to the Magistrate Judge’s findings on two grounds: (1) the 

Magistrate Judge improperly limited the probable cause inquiry to information and 

evidence obtained after the Arizona DEA Agents received Defendant’s identity from the 

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Florida DEA Agents; i.e. she refused to allow inquiry into how the Florida DEA Agents 

initially determined Defendant’s identity; and (2) the Magistrate Judge improperly found 

that Defendant had consented to the opening of the package.1

 (Doc. 84 at 5, 10.) 

 The evidence leading to Defendant’s arrest is adequately set forth in the R & R. 

(Doc. 69 at 2-3.) Because the Court finds that Defendant gave his consent for the search 

of the package, the Court need not reach the issue of probable cause and will not further 

discuss the facts related to that issue. 

 On November 19, 2015, Arizona DEA agents had a FedEx shipping facility under 

surveillance, and when the Defendant arrived and handed a package to Shane Karwoski 

to mail at the FedEx, Defendant and Mr. Karwoski were both arrested. After Defendant’s 

arrest, he participated in an unrecorded interview. Defendant acknowledged signing a 

Recording Declination form. (Govt’s Exhibit 1). Defendant testified that he did not 

consent to the opening of the package taken from Shane Karwoski at the time of the 

arrest. The Government presented evidence (Govt’s Exhibit 2) of Defendant’s consent to 

search his phone, which the Defendant claims he did not sign. Defendant asserts that the 

signature on the consent form does not match the signature on the Recording Declination 

form. (Doc. 84 at 4.) The Magistrate Judge found Defendant’s statement that the package 

was not his was not credible and, for the same reason, found Defendant’s testimony that 

he did not consent to a search of the package not credible. (Doc. 69 at 9.) 

II. Legal Standards 

A. Review of R & R 

 The Court reviews de novo the objected-to portions of the Report and 

Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court reviews for 

clear error the unobjected-to portions of the Report and Recommendation. Johnson v. 

Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); see also, Conley v. Crabtree, 14 

F.Supp.2d 1203, 1204 (D. Or. 1998). 

 

1

 Defendant does not object to the R & R with respect to the findings relevant to the Motion to Suppress Statements. 

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B. Consent to the search 

 Under the Fourth and Fourteenth Amendments, a search made without a warrant 

supported by probable cause is “per se unreasonable . . . subject only to a few specifically 

established and well-delineated exceptions.” Schneckloth v. Bustamonte, 412 U.S. 218, 

219 (1973), quoting Katz v. United States, 389 U.S. 347, 357, 88 (1967). One of those 

exceptions to the warrant and probable-cause requirement is a search conducted pursuant 

to consent. Bustamonte, 412 U.S. at 219. Defendant does not dispute the legal standard 

set forth by the Magistrate Judge in the R & R: 

In order for the prosecution to demonstrate that consent was voluntarily 

given, courts look at the totality of the circumstances surrounding the 

acquisition of consent. [Bustamonte, 412 U.S.] at 223. Some of the factors 

taken into account have included “youth of the accused; or his low 

intelligence; his lack of education; the lack of any advice to the accused of 

his constitutional rights; the length of detention; the repeated and prolonged 

nature of questioning; and the use of physical punishment such as 

deprivation of food or sleep.” Id.at 226. 

(Doc. 69 at 9.) 

III. Motion to Suppress Fruits of Illegal Seizure

Defendant seeks an order suppressing the search of the FedEx package, arguing 

that it was illegal because it was without a warrant or probable cause and arguing, in his 

reply, that no valid consent was given. (Doc. 41 at 3-4.) 

A. The standing ruling was not clearly erroneous 

Defendant told agents that he could not give permission for a search of the 

package because it was not his. Nevertheless, the Magistrate Judge found Defendant had 

standing because his testimony disavowing ownership of the package was not credible; 

Defendant had an ownership interest in the package. 

 Defendant does not object to this but the Government in its response points out 

that Defendant has made competing arguments. (Doc. 89 at 3.) 

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B. The totality of the circumstances demonstrate consent to the search

 The R & R found the following facts regarding consent to the search: 

SA Chicas testified that shortly after reading Wilson his Miranda rights and 

beginning the interview, he asked Wilson if he would consent to a search of 

the package. According to SA Chicas, Wilson verbally consented to the 

search. In contrast, Wilson testified that he told the agents he could not 

consent because it was not his package. Wilson does not argue that his 

consent to a search of the package was involuntary; rather, he contends he 

did not consent to a search under any circumstances. Indeed, there is no 

evidence that consent, if given, was involuntary. It is undisputed that 

Wilson was advised of his Miranda rights, had experience as an adult with 

the criminal justice system, was detained and questioned for only a short 

period of time before consent was requested, and was not subject to any 

physical punishment or deprivation. 

 (Doc. 69 at 9.) 

 The Magistrate Judge also noted that the Court had already found Defendant not 

credible when he testified at the hearing that the package was not his and reasoned that 

“[f]or the same reasons, the Court finds not credible his testimony that he did not consent 

to a search of the package.” (Id.) 

 Defendant objects to the finding of consent, arguing that even if the Magistrate 

Judge did not believe Defendant when he claimed the package was not his, it does not 

follow that Defendant would consent to the agent opening the package. (Doc. 84 at 11.) 

Defendant claims that the weight of the evidence is against the finding of consent. He 

claims that Agent Chicas testified that the Defendant verbally consented to agents 

opening the package (R.T. 7/18/16 at 47-48) but could not say how the Defendant gave 

such consent. Agent Chicas said it was possible that when asked if he could open the 

package, the Defendant told him “The package is not addressed to me” (id. at 58), but 

when pressed further, he became sure that the Defendant said something along the lines 

of “Go ahead and open it.” (Id.) But Agent Chicas also testified that no consent to search 

form was signed because a verbal consent was sufficient. (R.T. 8/17/16 at 65-66.) 

Defendant points out that in contrast, he was required to sign a Recording Declination, 

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and according to Agent Chicas, a Consent to Search related to Defendant’s cell phone. 

(R.T. 7/18/16 at 46, 48.) Defendant argues that the agent’s claims to have overlooked the 

written consent “strains credulity.” (Doc. 84 at 11.) 

 Defendant does not claim that his consent was involuntary; rather he claims he did 

not give consent. The test for voluntariness is the “totality of the circumstances” in 

obtaining consent. The Magistrate Judge considered that Defendant had adult experience 

with the criminal justice system and had knowingly waived his Miranda rights. Further, 

“he agreed that when the agents told him he had been under surveillance for a period of 

time for shipping the methamphetamine to Florida, he said ‘What took you so long?’” 

(Doc. 69 at 9.) In other words, as the R & R finds, Defendant “did not decline to 

participate in the interview or wholly deny involvement.” (Id.) The Magistrate Judge 

also had the opportunity to observe the demeanor of the witnesses testifying at the 

evidentiary hearing and found Defendant not credible. The Court finds that Defendant 

consented to a search of the package. Because the Court finds consent, the agents did not 

need probable cause or a warrant. 

 In sum, the Court overrules Defendant’s objections. 

IT IS ORDERED: 

 (1) The R&R entered on September 7, 2016 (Doc. 69) is ADOPTED. 

 (2) The Motion to Suppress Statements (Doc. 29) and the Motion to Suppress 

Fruits of Illegal Seizure (Doc 30) are DENIED. 

/// 

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(3) The Court affirms the trial date of December 13, 2016 at 9:00 a.m. 

before the Hon. Cindy K. Jorgenson. 

(4) A Status Conference is set for December 12, 2016 at 11:30 a.m. 

(5) The deadline for filing proposed jury instructions and voir dire is noon 

on December 7, 2016. 

 Dated this 2nd day of December, 2016. 

Honorable Cindy K. Jorgenson

United States District Judge 

 

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