Opinion
No. CR98-4032-MWB
March 10, 1999.
REPORT AND RECOMMENDATION REGARDING MOTIONS TO SUPPRESS
I. INTRODUCTION
A motion to suppress (Doc. No. 37) was filed on January 15, 1999, by defendant Jeronimo Villa-Escamilla ("Villa-Escamilla"), and a motion to suppress (Doc. No. 43) was filed on January 20, 1999, by defendant Juan Carlos Mier-Godinez ("Mier-Godinez"). In their motions, Villa-Escamilla and Mier-Godinez both ask the court to suppress evidence obtained as a result of a warrantless search of an automobile in Sioux City, Iowa, on November 19, 1998. In a verbal amendment to their motions at a hearing on March 4, 1999, they also ask the court to suppress certain statements which they made to I.N.S. Special Agent Brian Nelson on November 19, 1998, at the scene of the automobile search.
On February 18, 1999, the court held a hearing on the motions. Assistant United States Attorney Peter E. Deegan, Jr. appeared on behalf of the United States of America ("government"), attorney Martha M. McMinn appeared on behalf of Villa-Escamilla, and attorney Jeffrey A. Neary appeared on behalf of Mier-Godinez. Tri-County Task Force officers Michael Van Beest ("Van Beest") and Kerry Northway ("Northway") testified on behalf of the government. The hearing was continued on March 4, 1999. Northway completed his testimony, and the government called I.N.S. Special Agent Brian Nelson ("Nelson") and D.E.A. Special Agent Scott Garland ("Garland") as additional witnesses. The court has considered the testimony and other evidence submitted at the hearings, and the briefs and arguments of the parties, and now considers the motions to suppress to be fully submitted.
II. FINDINGS OF FACT
In April 1997, a defendant named Mario Sanchez told authorities that someone named Ramon, who ran a video store in the 2100 block of Court Street in Sioux City, Iowa, trafficked in pounds of methamphetamine and kilograms of cocaine. Sanchez did not know Ramon's last name, but authorities determined that Ramon Hernandez ("Hernandez") owned a video store at that address.
In January 1998, the Nebraska Highway Patrol stopped an automobile outside of South Sioux City, Nebraska. Officers seized $43,998 from the vehicle and its occupants. Most of the money was found in the air filter compartment of the vehicle. Also found in the vehicle was a business card for California Video and Imports, a business owned by Hernandez. Written on the back of the card was the name "Ramon" and a pager number.
In April 1998, Task Force officers were contacted by an employee of a veterinary supply store in Sioux City, Iowa. The store employee advised the officers that someone had purchased 15 pounds of MSM from his store. The individual purchasing the 15 pounds of MSM generally fit Hernandez's description, and he was seen driving a white Plymouth Voyager registered to Hernandez. MSM is a legal substance used to relieve inflammation of the joints in horses, but it is also used as a dilutant for methamphetamine.
One pound of MSM will last one horse for approximately one year.
In August 1998, Task Force officers conducted a garbage search of Hernandez's residence. Officers found a piece of silver colored duct tape stuck to cellophane, which was consistent with packaging materials for pound quantities of methamphetamine.
In September 1998, a confidential informant ("CI 1") advised Task Force officers that over the past nine months he had purchased around 15 pounds of methamphetamine from Hernandez, and that each transaction was typically a quantity of about three pounds. CI 1 told the officers that he was indebted to Hernandez for approximately $15,000 for methamphetamine purchases. CI 1 told the officers that Hernandez used MSM to "cut" methamphetamine. CI 1 also told officers that Hernandez stored his methamphetamine in a garage that was within walking distance from his house and was possibly across an alley at the rear of his house. According to CI 1, on the previous evening Hernandez told CI 1 that he was expecting a shipment of approximately 30 pounds of methamphetamine within the next few days.
In August 1998, Task Force officers interviewed another informant ("CI 2") who corroborated some of CI 1's information. According to CI 2, CI 1 told him that he was purchasing five pounds of methamphetamine, and then took CI 2 to Hernandez's house. CI 2 waited in an automobile while CI 1 went into Hernandez's house and later came out. On a separate occasion, CI 1 took CI 2 to Hernandez's residence, but Hernandez was not home.
On Monday, November 16, 1998, Task Force officers learned from the veterinary supply store that someone had just purchased six pounds of MSM. Task Force officers reviewed photographs from a videotape of the transaction and determined that the individual purchasing the MSM was Hernandez.
On Thursday, November 19, 1998, Task Force officers learned that two Hispanic males had purchased one pound of MSM from the veterinary supply store. A store employee reported that the two males were driving a white Honda. A check of the vehicle's license plate determined that the vehicle belonged to Ramon Hernandez.
Task Force officers then began surveillance of the vehicle and observed it pull into a grocery store on the way from the veterinary supply store to Hernandez's house. Two Hispanic males went into the grocery store, as did an undercover Task Force officer, who saw the two men purchase two or three boxes of plastic ziplock bags. The officer recognized one of the two men as Ramon Hernandez. The two men then left the store carrying a plastic grocery sack, which contained the ziplock bags, and drove to Hernandez's business, the California Video Store. The two men went into the video store, and came out with a third individual, a female. One of the men was carrying a cardboard box, which he put in the trunk of the Honda. They all then drove the Honda to an alley in back of Hernandez's house.
At the house, Hernandez and the female got out of the Honda, and the female went into the house. Hernandez opened the trunk, retrieved the plastic grocery sack and the cardboard box, and carried them into the house. The other man sat in the Honda for a while, and then sat in another vehicle behind the house. Later, officers observed Hernandez leave the house, cross the alley, and go to some nearby apartments. Officers suspected that Hernandez was going to the location where CI 1 indicated that drugs were stored. A short time later, Hernandez returned, appearing to have something hidden under one of his arms.
Later, Villa-Escamilla and Mier-Godinez left the house and walked toward the Honda. Villa-Escamilla was carrying a white and red cooler while Mier-Godinez was carrying a metal mixing bowl and a plastic grocery bag similar to the bag containing the boxes of ziplock bags. Before they got to the Honda, Hernandez came out of the house with the cardboard box. Villa-Escamilla walked back to Hernandez and took the cardboard box, and then Villa-Escamilla and Mier-Godinez put everything into the trunk, got into the Honda, and drove away. Villa-Escamilla was driving and Mier-Godinez was in the front passenger seat of the vehicle.
Task Force officers decided that they had probable cause to stop the vehicle, and about two miles from Hernandez's house, they pulled the Honda over. Villa-Escamilla and Mier-Godinez were taken out of the vehicle and handcuffed. The officers saw no incriminating evidence in plain view in the vehicle.
After it was determined that Villa-Escamilla and Mier-Godinez did not speak English, I.N.S. Agent Brian Nelson asked them in Spanish who owned the car and what was in the trunk. Neither answered his questions. Nelson then asked them, again in Spanish, their names, where they were born, and whether they had INS papers. Both gave Nelson their names and both said they were from Mexico. In response to Nelson's question about INS papers, Villa-Escamilla said that he had no papers and Mier-Godinez did not respond. Villa-Escamilla and Mier-Godinez were searched, and Nelson found a false green card and a false social security card in Mier-Godinez's wallet. No identification was found in Villa-Escamilla's wallet.
The officers took the key out of the ignition and used it to open the trunk. In the trunk they found a plastic grocery bag containing three boxes of baggies, a cardboard box containing several cartons of MSM, a paper sack containing a one pound carton of MSM, the metal mixing bowl, and the red and white cooler. Inside the cooler the officers found approximately five pounds of methamphetamine.
III. LEGAL ANALYSIS A. Did the Officers Have the Right to Conduct a Warrantless Search of the Honda?
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. CONST. amend. IV. The Fourth Amendment guarantee of the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures" is "preserved by a requirement that searches be conducted pursuant to a warrant issued by an independent judicial officer." United States v. Caves, 890 F.2d 87, 89 (8th Cir. 1989) (citing California v. Carney, 471 U.S. 386, 390, 105 S.Ct. 2066, 2068-69, 85 L.Ed.2d 406 (1985)). "The touchstone of the fourth Amendment's promise is `reasonableness' which generally — though not always — translates into a warrant requirement." United States v. Hatten, 68 F.3d 257, 260 (8th Cir. 1995) (citations omitted).
"In certain circumstances, however, a search may comport with the fourth amendment reasonableness standard even though not conducted pursuant to a warrant. (citation omitted). One such exemption to the warrant requirement is the so-called `automobile exception,' which allows a police officer who has lawfully made a roadside stop of an automobile to search that vehicle without a warrant if probable cause exists to believe that contraband or evidence of criminal activity is located inside." Caves, 890 F.2d at 89 (citing Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) and Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925)). The automobile exception is recognized because "[t]he mobility of automobiles . . . `creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible'" and because "`the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office.'" Carney, 471 U.S. at 391, 105 S.Ct. at 2069 (quoting South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976)). Thus, the question in the present case is whether the officers had probable cause to stop the Honda after it left Herdandez's house.
Probable cause for an automobile search exists if the facts and circumstances known by the police when they begin the search are sufficient in themselves for a person of reasonable caution to believe that contraband or evidence of criminal activity was in the vehicle. United States v. Horne, 4 F.3d 579, 585 (8th Cir. 1993) (quotations and citations omitted). The collective knowledge of all law enforcement officers involved in an investigation may form the basis for probable cause to conduct a warrantless search. Id.; see also United States v. Rich, 795 F.2d 680, 682 (8th Cir. 1986) ("[T]he [C]ourt does not merely look to the actual knowledge of the arresting officer, but to the combined knowledge of all the officers involved.").
The task force had been investigating Hernandez since April 1997 when a cooperating defendant told police that a person named "Ramon" dealt drugs from a video store. In January 1998, while searching a car and its occupants, police seized over $43,000 from the air filter compartment and found a business card from a video store with the name "Ramon" and a pager number written on the back of the card. In September 1998, a confidential informant told police that, over the past nine months, he had bought fifteen pounds of methamphetamine from a dealer named "Ramon Hernandez." He also told police that Ramon Hernandez owned a video store, stored his drugs in a garage behind his house, and used MSM to cut his drugs. A separate confidential informant told police in August 1998 that he had accompanied the other confidential informant to Hernandez's house for a drug deal. On November 16, 1998, and November 19, 1998, a veterinary supply store employee reported to police that an hispanic male purchased large amounts of MSM, six pounds and one pound, respectively. Still frame photos of the videotape from the store's security camera showed the person to be Ramon Hernandez. Police followed Hernandez after the November 19, 1998 purchase and saw him purchase two or three boxes of plastic baggies at a grocery store, retrieve a cardboard box from his video store, and take all the items to his house. Hernandez walked across an alley behind his house towards a garage and returned to his house looking as if he was concealing something under his jacket. Mier-Godinez, carrying a large metal mixing-bowl, and Villa-Escamilla, carrying a cooler, emerged from the house. Hernandez followed them carrying the cardboard box retrieved from the video store. After all the items were placed in the trunk of the Honda, Villa-Escamilla and Mier-Godinez got in the car and drove away. This exhaustive list of evidence, though circumstantial, was more than sufficient to give a person of reasonable caution the belief that contraband was in the car. See United States v. Edmiston, 46 F.3d 786, 788 (8th Cir. 1995) (finding circumstantial evidence alone can establish sufficient probable cause).
Furthermore, the officers did not exceed the lawful scope of their search. In United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), the Court clarified the automobile exception announced in Carroll. The Ross Court addressed "the extent to which police officers — who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it — may conduct a probing search of compartments and containers within the vehicle whose contents are not in plain view." Ross, 456 U.S. at 800, 102 S. Ct. at 2160. The Court held that the police "may conduct a search of the vehicle that is as thorough as a magistrate could authorize in a warrant 'particularly describing the place to be searched.'" Id. (quoting U.S. CONST. amend. IV).
Even if the officers lacked probable cause to stop the Honda, they certainly had a reasonable suspicion that the automobile was involved in some kind of criminal activity. The Supreme Court has recognized an exception to the warrant requirement which allows an officer to "seize" a person for a brief investigatory stop, not amounting to an arrest, if the officer is "able to point to specific and articulable facts" that give rise to a reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This rationale also applies to stops of automobiles. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694 (1981) (automobiles are subject to Terry stops); accord United States v. Chhunn, 11 F.3d at 109-10 (8th Cir. 1993).
When the officers stopped the Honda, no evidence was discovered during the pat-down of the occupants or in plain view inside the vehicle to support the officers' suspicions that Villa-Escamilla and Mier-Godinez were engaged in illegal drug activities. However, Van Beest determined that neither occupant of the vehicle was a licensed driver. Under the facts of the present case, according to Van Beest, he would have arrested Villa-Escamilla in any event for driving without a valid driver's license. Van Beest further testified that since Mier-Godinez was also not a licensed driver, the vehicle would have been impounded and the methamphetamine in the trunk discovered during an inventory search. The government argues that, under these circumstances, it is entitled to the benefit of the "inevitable discovery" rule.
That is, the driver was unlicensed and had no apparent ties to the community.
The doctrine of "inevitable discovery" allows for the admission of illegally seized evidence if the government meets certain conditions. "To succeed under the inevitable-discovery exception to the exclusionary rule, the government must prove by a preponderance of the evidence: (1) that there was a reasonable probability that the evidence would have been discovered by lawful means in the absence of police misconduct, and (2) that the government was actively pursuing a substantial, alternative line of investigation at the time of the constitutional violation. United States v. Connor, 127 F.3d 663, 667 (8th Cir. 1997) (citation omitted).
The inevitable discovery doctrine applies in the present case. Before the search took place, Special Agent Nelson was in the process of identifying the car's occupants, an action entirely permissible under Terry. See United States v. Dawdy, 46 F.3d 1427, 1430 (8th Cir. 1995) (noting request for identification as "minimally intrusive," and therefore permissible under Terry). Neither defendant produced a driver's license, and, in fact, one was carrying false identification documents. Since Villa-Escamilla was driving while not licensed, the officers had authority to arrest him. See IOWA CODE ANN. § 321.174.3 (West 1998) (licensee must have license in immediate possession at all times when operating motor vehicle); IOWA CODE ANN. § 321A.32.4 (West 1998) (person violating this section for which penalty is not specified is guilty of serious misdemeanor); IOWA CODE ANN. § 321.485.1.a (West 1998) (officer may immediately arrest person if officer has "reasonable cause" to believe person violated any provision of chapter relating to motor vehicle offenses punishable as simple, serious, or aggravated misdemeanor). Since Mier-Godinez was also not licensed to drive the vehicle, according to Sioux City Police Department policy, the car could have then be towed to the department's headquarters and subjected to an inventory search. See South Dakota v. Opperman, 428 U.S. 364, 369-372, 96 S.Ct. 3092-3098, 49 L.Ed.2d 1000 (1976) (warrantless search of automobile in police custody does not violate Fourth Amendment, but must be done pursuant to "standard police procedures" and for purpose of "protecting car and its contents"). It is clear that an inventory search of the car would have resulted in discovery of the drugs and other evidence in the trunk.
B. Should the Court Suppress Villa-Escamilla's and Mier-Godinez's Statements to Special Agent Nelson?
The defendant's both gave statements to Nelson shortly after they were arrested but before they had been advised of their Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The both told I.N.S. agent Nelson their names and that they both came from Mexico, and Villa Escamilla's told Nelson that he did not have "papers." While those statements do not appear to be inculpatory, the government states that it might nevertheless attempt to offer them into evidence at trial. Therefore, the court must decide if those statements were obtained unlawfully.
Routine biographical data is exempted from Miranda's coverage . United States v. Brown, 101 F.3d 1272, 1274 (8th Cir. 1996) (citations omitted). However, "if the government agent should reasonably be aware that the information sought, while merely for basic identification purposes in the usual case, is directly relevant to the substantive offense charged," then the officer's questions are subject to scrutiny. United States v. McLaughlin, 777 F.2d 388, 391-92 (8th Cir. 1985). Although the request for the defendants' names seems to clearly fall within the routine biographical data exemption, the other two requests are more tenuous. Nevertheless, the questions about where the defendants came from and whether they had immigration documents were not directly relevant to the substantive crime for which the defendants were arrested, i.e. drug trafficking. Therefore, the Constitution does not prohibit the admission of these statements at trial.
IV. CONCLUSION
For all the foregoing reasons, the defendants' motions to suppress should be denied.
IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, the defendants' motions to suppress be denied.
Objections must specify the parts of the report and recommendation to which objections are made. Objections must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155, 106 S. Ct. 466, 475, 88 L. Ed. 2d 435 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).
IT IS SO ORDERED.