Opinion
Case No. 8:01CR299.
April 15, 2002
MEMORANDUM AND ORDER
INTRODUCTION
This matter is before the Court on the Report and Recommendation (Filing No. 38) issued by Magistrate Judge Kathleen Jaudzemis recommending denial of the Motion to Suppress filed by the Defendant, Jorge Bedolla (Filing No. 20). Bedolla filed a Statement of Objections to the Report and Recommendation (Filing No. 40) as allowed by 28 U.S.C. § 636(b)(1)(C) and NELR 72.4.
Bedolla is charged in Count I of a two-count Indictment with conspiracy to distribute and possess with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1) and 846. Bedolla seeks an order suppressing all evidence and statements obtained as a result of his October 19, 2001 arrest.
Bedolla's codefendant, Teresa Ann Crow, was charged in Counts I and II of the Indictment.
Following an evidentiary hearing on the Motions, Magistrate Judge Jaudzemis issued a Report and Recommendation in which she determined: 1) sufficient probable cause existed to justify Bedolla's arrest, and the arrest was also authorized by the search warrant; 2) although Bedolla was not advised of his Miranda rights before being questioned by Nebraska State Patrol Investigator Ross Lyon about the currency found on Bedolla's person, Lyon's questions were routine questions necessary for identification and processing. On the basis of these determinations, Judge Jaudzemis recommended that Bedolla's Motion to Suppress be denied.
Bedolla filed a Statement of Objections to the Magistrate Judge's Report and Recommendation. (Filing No. 40.) The Statement of Objections was supported by a brief.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court shall make a de novo determination of those portions of the report, findings, and recommendations to which Bedolla has objected. The Court may accept, reject, or modify, in whole or in part, the Magistrate Judge's findings or recommendations. The Court may also receive further evidence or remand the matter to the Magistrate Judge with instructions.
STATEMENT OF FACTS
The Magistrate Judge provided a detailed account of the events leading up to the execution of the search warrant, Bedolla's arrest, and Bedolla's questioning. The Court has considered the transcript of the hearing conducted by the Magistrate Judge on February 8, 2002 (Filing No. 35). The Court also carefully viewed the evidence. Based on the Court's de novo review of the evidence, two factual findings merit additional comment. The first finding relates to Magistrate Judge Jaudzemis' referral, on more than one occasion, to the bedroom where Bedolla and three others were found in Crow's residence as being "filled with a haze of methamphetamine smoke." The transcript, however, reflects Investigator Lyon's description of the smoke haze more accurately as follows: "There was quite a haze of the methamphetamine smoke that was in the bedroom." The factual finding will be modified to reflect the actual testimony. This modification, however, does not affect the disposition of the Motion to Suppress.
The second finding, however, affects the Court's conclusion with regard to the portion of the Motion to Suppress relating to Lyon's questioning of Bedolla in the booking area of the Hall County Jail. The Magistrate Judge found that "the brief conversation between Lyon and Bedolla in the booking area of the Hall County Jail constituted routine questions necessary for identification and processing." Consequently, the Magistrate Judge concluded that "it was not necessary under the law for Bedolla to be advised of his Miranda rights prior to Lyon asking these questions." The Magistrate Judge's finding will be modified as discussed below, and the Magistrate Judge's conclusion of law will be reversed as described below.
OBJECTIONS
Bedolla objects to the Magistrate Judge's Report and Recommendation with the following arguments: 1) probable cause did not exist for Bedolla's warrantless arrest; 2) probable cause did not exist for the search of Bedolla's person upon his arrest; and 3) the questioning of Bedolla violated his Fifth and Sixth Amendments to the United States Constitution.
ANALYSIS
Probable Cause for Warrantless Arrest
Bedolla argues that law enforcement officers lacked probable cause for his warrantless arrest.
Law enforcement officers have probable cause to justify a warrantless arrest when, at the moment of the arrest, officers are aware of "facts and circumstances grounded in reasonably trustworthy information sufficient to warrant a belief by a prudent person that an offense has been or is being committed by the person to be arrested." United States v. Hartje, 251 F.3d 771, 775 (8th Cir.), cert. denied, 122 S.Ct. 925 (2001) (citing Beck v. State of Ohio, 379 U.S. 89, 91 (1964)); United States v. Reinholz, 245 F.3d 765, 778 (8th Cir.), cert. denied, 122 S.Ct. 218 (2001). "In establishing probable cause, law enforcement officials enjoy substantial latitude in interpreting and drawing inferences from factual circumstances." United States v. Horne, 4 F.3d 579, 589 (8th Cir. 1993). "While a `bare suspicion' of criminal activity is not sufficient to establish probable cause," evidence sufficient to justify a conviction is not required before making a warrantless arrest. United States v. Morales, 923 F.2d 621, 624 (8th Cir. 1991). The determination of probable cause does not depend on isolated facts, but rather on the cumulative effect of the totality of the circumstances. United States v. Reiner Ramos, 818 F.2d 1392, 1394 (8th Cir. 1987). The approach used in determining probable cause is "`practical, commonsense,' and `non-technical.'" Id. (quoting United States v. Briley, 726 F.2d 1301, 1306 n. 3 (8th Cir. 1984)). The mere fact that one person is in the company of another person who the police have probable cause to arrest does not alone establish sufficient probable cause for an arrest. United States v. Capers, 685 F.2d 249, 251 (8th Cir. 1982) (citing United States v. Di Re, 332 U.S. 581 (1948)). Similarly, mere presence at the scene where a search warrant is being executed alone does not establish probable cause. Id. (citing Ybarra v. Illinois, 444 U.S. 85 (1979)).
As Magistrate Judge Jaudzemis found, law enforcement officers arrived at the Crow residence to execute a search warrant. Officers entered a bedroom with "quite" a haze of methamphetamine smoke and encountered four persons in the room, one of which was smoking methamphetamine. The affidavit and application for the search warrant indicated that drugs were being sold out of the residence. Applying the appropriate legal standards, officers had sufficient probable cause to believe a crime was being committed and that Bedolla was involved in the commission of that crime. Bedolla did not appear to be an innocent bystander.
Therefore, probable cause existed for Bedolla's warrantless arrest, and the objection will be denied.
Probable Cause for Search of Bedolla's Person
Bedolla argues that law enforcement officers lacked probable cause to search his person upon his arrest.
Initially, the Court notes that the search of Bedolla's person was authorized under the search warrant. The warrant clearly authorized the search of the persons of any third parties found on the premises. (Exhibit 1.)
Moreover, apart from the search warrant, a search of one's person incident to a lawful arrest is an exception to the warrant requirement of the Fourth Amendment. United States v. Lewis, 183 F.3d 791, 794 (8th Cir. 1999).
In summary, the search of Bedolla's person was authorized by the search warrant and as a search incident to a lawful arrest. Therefore, the objection to the lack of probable cause for the search of Bedolla's person upon his arrest will be denied.
Questioning — Fifth and Sixth Amendments
Bedolla objects to Investigator Lyon's questioning of Bedolla in the booking area at the Hall County Jail, arguing that the questioning violated Bedolla's Fifth and Sixth Amendment rights.
Sixth Amendment
The objection will be denied with regard to the alleged violation of Bedolla's Sixth Amendment rights. It is well established that one's Sixth Amendment right to counsel does not attach until a prosecution is commenced, defined as "`at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.'" Von Kahl v. United States, 242 F.3d 783, 789 (8th Cir.), cert. denied, 122 S.Ct. 317 (2001) (quoting McNeil v. State of Wisconsin, 501 U.S. 171, 175 (1991)).
Fifth Amendment Miranda warnings are not required before asking routine booking questions designed to gather background biographical information, because routine questions rarely elicit incriminating responses. United States v. Reyes, 908 F.2d 281, 292-93 (8th Cir. 1990). "`If, however, the questions are reasonably likely to elicit an incriminating response in a particular situation, the [booking] exception does not apply.'" Id. at 293 (quoting United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (9th Cir. 1983)). Although the test is objective, a questioning officer's subjective intent is relevant. Id. Also "highly relevant" is the relationship of the question to the suspected crime. Id.
In Bedolla's case, Lyon testified as follows:
He was in the . . . booking area. One of the jailers was booking him in, asking him questions.
Q. And at this time did you have any conversation with Mr. Bedolla?
A. Just about — that I can recall, just about where he lived. I know we specifically talked about if he had a job and where he had earned his money.
Q. And what was Mr. Bedolla's response?
A. He told me that he didn't have a job and had not had a job for a few months, and he could not give me a statement as to where he had earned that money or gotten the money that was on his person.
. . . .
Q. Before you had this conversation with Mr. Bedolla, did you read him his Miranda rights?
A. No, I did not.
Q. Had anyone else in your presence?
A. No.
. . . .
Q. And is it a fact that basically he asked you for his money back? He said do you got my money, I want it back?
A. He inquired as to what would happen to his money. And I told him we would seize his money.
(TR 18:14-19:13 (emphasis added); 28:5-9.)
The record does not indicate clearly when the all of the questioning about Bedolla's employment occurred in relation to the discussion about the seizure of the cash found on Bedolla's person. Clearly, however, Lyon testified that Bedolla "could not give [Lyon] a statement as to where he had earned that money or gotten the money that was on his person." (TR 19:1-3.) In other words, Lyon questioned Bedolla about the origin of the cash found on Bedolla's person without first advising Bedolla of his Miranda rights. Also, Lyon testified that a "jailer" was asking Bedolla questions necessary for the booking process. Lyon obviously was trying to elicit incriminating information. As the "jailer" was handling the booking process, there was no apparent need for Lyon to assist in asking additional booking questions, particularly where such questions were obviously incriminating.
Lyon's questions regarding where Bedolla earned the cash found on his person cannot be considered "routine questions necessary for identification and processing." The questions relating to employment and the origin of the cash found on Bedolla's person were: not necessary or even reasonably related to the booking process; not related to identification; specifically designed and reasonably likely to elicit an incriminating response regarding the cash found on Bedolla's person which Lyon had already told Bedolla would be seized; and elicited absent Miranda warnings. Therefore, the Court concludes that the questioning violated Bedolla's Fifth Amendment rights. Compare Reyes, 908 F.2d at 293 (stating that a question pertaining to identity related to the suspected crime of using false identification, and therefore was not a routine booking question) with United States v. Duarte, 160 F.3d 80, 81 (1998 8th Cir.) (stating that employment status questions were "not designed to elicit incriminating responses" and were excepted from Miranda as "routine booking questions").
For these reasons, the Magistrate Judge's finding that the questioning of Bedolla in the booking area constituted routine booking questions and the conclusion that Miranda warnings were not required will be reversed. Consequently, the Motion to Suppress will be granted insofar as Bedolla's statements to Lyon in the booking area of the Hall County Jail will be suppressed. IT IS ORDERED:
1. The Magistrate Judge's Report and Recommendation (Filing No. 38) is adopted in part and rejected in part as follows:
a. The Magistrate Judge's factual findings are modified as described above;
b. The Magistrate Judge's Report and Recommendation is reversed insofar as the statements made by Bedolla to Investigator Lyon in the booking area of the Hall County Jail are suppressed; and
c. Otherwise, the Magistrate Judge's Report and Recommendation is adopted with regard to Bedolla's Motion to Suppress (Filing No. 20);
The Statement of Objections to the Report and Recommendation (Filing No. 40) is granted in part and denied in part as follows:
a. The Objections are granted insofar as Bedolla's statements to Lyon in the booking area of the Hall County Jail are suppressed; and
b. Otherwise, the Objections are denied.
3. The Defendant's Motion to Suppress (Filing No. 20) is granted and denied as follows:
a. Bedolla's statements to Lyon in the booking area of the Hall County Jail are suppressed, and to this extent the Motion to Suppress filed by the Defendant, Jorge Bedolla (Filing No. 20) is granted; and
b. Otherwise, the Motion to Suppress filed by the Defendant, Jorge Bedolla (Filing No. 20) is denied.