Summary
holding that the failure of the defendant driver to have a driver's license when stopped for a traffic offense was a factor that contributed to a reasonable suspicion of criminal activity
Summary of this case from United States v. CorderoOpinion
8:02CR54
August 5, 2002
MEMORANDUM AND ORDER
I. Introduction
Before me are the defendants' objections, Filing Nos. 36 and 37, to the magistrate judge's report and recommendation, Filing No. 34. The indictment charges the defendants with one count of possession with intent to distribute methamphetamine under 21 U.S.C. § 841(a) and (b), and one count of forfeiture pursuant to 21 U.S.C. § 853. Filing No. 1. The defendants moved to suppress, Filing Nos. 19 and 24, and following a hearing on the motions, Magistrate Judge Kathleen Jaudzemis recommended that the motions be denied. I have now reviewed the record, including the transcript from the suppression hearing, Filing No. 33; the defendants' briefs; and the applicable law. The government filed a responsive brief. I find that the defendants' motions to suppress should be denied and the magistrate judge's report and recommendation adopted in its entirety.
II. Factual Background
Because the magistrate judge's report and recommendation fully and accurately summarized the arresting officers' testimony at the suppression hearing as well as the contents of the videotape of the traffic stop and the defendants' arrest, a lengthy factual presentation is not needed here.
Briefly, Sergeant Timothy Hrbek of the Bellevue Police Department pulled the defendants' car over on the evening of January 7, 2002, for running a red light. When the driver appeared to have trouble understanding English, Hrbek asked the passenger for translation assistance. Through the passenger, defendant Avalos-Bernal, the driver identified himself as Juan Duenas and gave his date of birth as 4-4-81. Avalos-Bernal told Hrbek that the person whose name appeared on the registration, Juan Padilla, had given him permission to use the car. Neither Duenas-Rosales nor Avalos-Bernal appeared to have a valid driver's license, although Avalos-Bernal gave Hrbek a card that he claimed was a Mexican license.
A records check turned up an Arizona felony warrant for a man named Bernal who seemed to match Avalos-Bernal's physical description. Hrbek was able to determine that Avalos-Bernal was not the same man, however, because Avalos-Bernal lacked the tatoos which the Arizona Bernal was reported to have.
Because of the language problems, Hrbek called Bellevue Police Department Officer Mike Brazda, who speaks some Spanish, to assist him. Brazda testified that when he asked Duenas-Rosales for his name and date of birth, Duenas-Rosales replied, "Jose Juan Rosales" and "4-4-80," a different name and date than Duenas-Rosales had given Hrbek. Duenas-Rosales told Brazda he was in the United States illegally, on vacation. Brazda searched Duenas-Rosales after obtaining his consent; the search revealed a large amount of cash but no weapons or contraband.
While Brazda spoke with Duenas-Rosales in Spanish, Hrbek spoke with Avalos-Bernal in English. Although he testified that he knew that he would not let either Duenas-Rosales or Avalos-Bernal leave with a car that was registered to an absent third party, Hrbek nevertheless told Avalos-Bernal that since Duenas-Rosales did not have a license, Avalos-Bernal would have to drive the car. Hrbek then asked Avalos-Bernal if there were guns or drugs in the car, and Avalos-Bernal said no. Avalos-Bernal gave Hrbek permission to search the car.
When a brief search revealed a cylinder-shaped package under the passenger-side front seat, Hrbek called Officer Matthew McKinney of the Papillion Police Department to have his dog, Kai, perform a sniff search of the vehicle. Kai passively indicated twice at the trunk of the car. Officers then searched the trunk while Hrbek opened the package found on the car floor. The material field-tested negative for cocaine and positive for methamphetamine.
III. Standard of Review
28 U.S.C. § 636(b)(1)(A) provides that the district judge shall reconsider any pretrial order where the movant succeeds in showing that the magistrate's judge's order is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(C) provides that the district judge shall make a de novo determination of those portions of the report or recommendation to which the movant objects. The district judge may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. The district judge may also receive further evidence or remand the matter to the magistrate judge with instructions.
IV. Discussion A. Duenas-Rosales.
Duenas-Rosales argues that the magistrate judge erred in finding that Hrbek lawfully detained Avalos-Bernal. Specifically, Duenas-Rosales argues that once the officers determined that Avalos-Bernal was not the person wanted on the Arizona felony warrants and that he had a driver's license, registration (in Juan Padilla's name), and proof of insurance, the officers no longer had grounds to hold him or the car, especially since Avalos-Bernal told the officers that Juan Padilla had given him permission to use the car. Duenas-Rosales admits that the officers may have had probable cause to arrest him for driving without a valid driver's license, but maintains that the officers had no reason to continue questioning Avalos-Bernal or to not return the car to him.
Further, Duenas-Rosales contends that Avalos-Bernal's statements that he did not know Duenas-Rosales very well and that he did not know where he and Duenas-Rosales were going were not inconsistencies sufficient to create reasonable suspicions that justified further investigation. Duenas-Rosales argues that being a tourist in a car with another tourist whom one does not know well is not unusual activity for an innocent traveler.
Duenas-Rosales also states that merely because Avalos-Bernal was unable to give a destination did not indicate they were engaged in criminal activity. Avalos-Bernal was unfamiliar with the Bellevue area and, given the language difficulties, he might have had problems formulating an exact answer to Hrbek's question about their destination.
The scope of an officer's questioning during a traffic stop is limited to circumstances that justified the stop initially. United States v. Johnson, 64 F.3d 1120, 1124 (8th Cir. 1995). The officer may ask the driver about his or her destination and purpose, check the driver's license and registration, or ask the driver to move to the officer's patrol car. United States v. Poulack, 236 F.3d 932, 935 (8th Cir.), cert. denied, 122 S.Ct. 148 (2001). The officer may also question the passengers to verify information obtained from the driver. United States v. Foley, 206 F.3d 802, 805 (8th Cir. 2000). To expand the scope of the investigative stop, however, an officer must have reasonable suspicions based on the totality of the circumstances, filtered through the officer's experience. United States v. Foley, 206 F.3d at 806; United States v. Condelee, 915 U.S. 1206, 1209 (8th Cir. 1990). "If reasonably related questions raise inconsistent answers, or if the licenses and registration do not check out, a trooper's suspicions may be raised so as to enable him to expand the scope of the stop and ask additional, more intrusive questions." United States v. Ramos, 42 F.3d 1160, 1163 (8th Cir. 1994). The officer cannot rely on a hunch or on circumstances which "describe a very large category of presumably innocent travelers." Reid v. Georgia, 448 U.S. 438, 441 (1980). Reasonable suspicion may, however, be based on a combination of individually innocent factors that, when viewed together, warrant further investigation. United States v. Bloomfield, 40 F.3d 910, 918 (8th Cir. 1994) (en banc).
Given the totality of the circumstances existing shortly after he stopped the car for running the red light, Hrbek was reasonably suspicious that Duenas-Rosales and Avalos-Bernal were engaged in some illegal activity. Duenas-Rosales had no driver's license at all and Avalos-Bernal gave Hrbek a document that looked like a Mexican identification card rather than a driver's license. Neither Avalos-Bernal nor Duenas-Rosales were from Nebraska, and both claimed to be in Nebraska on vacation — in January. The car was registered to neither occupant but rather to a person named Juan Padilla whom Avalos-Bernal claimed was his friend and had given Avalos-Bernal permission to use the car. These "particularized, objective facts . . . taken together with rational inferences from those facts," United States v. Beck, 140 F.3d 1129, 1136 (8th Cir. 1998), signaled to Sergeant Hrbek that Duenas-Rosales and Avalos-Bernal were likely illegal aliens, in a car that did not belong to them, who might be engaged in illegal activity that merited further investigation. Hrbek's suspicions became even more reasonable after Officer Brazda learned that Duenas-Rosales had a large amount of cash and an Arizona identification card with a different name and birth date than Duenas-Rosales had given Hrbek. "An officer's suspicion of criminal activity may reasonably grow over the course of a traffic stop as the circumstances unfold and more suspicious facts are uncovered." United States v. Linkous, 285 F.3d 716, 720 (8th Cir. 2002) (citing United States v. Morgan, 270 F.3d 625, 631 (8th Cir. 2001).
I conclude that the magistrate judge correctly found that because of Hrbek's reasonable suspicions unrelated to the traffic offense, Hrbek was entitled to broaden his inquiry to satisfy those suspicions. Duenas-Rosales's motion to suppress is therefore denied.
Avalos-Bernal.
Like Duenas-Rosales, Avalos-Bernal contends that Hrbek lacked a reasonable, articulable suspicion that Avalos-Bernal was involved in criminal activity unrelated to the traffic stop. Specifically, he asserts that 1) Hrbek detained him after completing the traffic stop only because he is Hispanic, and 2) the seizure was unreasonably lengthy. Defendant Avalos-Bernal's Brief at 7.
The brief supporting Avalos-Bernal's objection provides an overview of the general law on the issue of Terry-type stops, but does not explain how that law supports his argument that Hrbek's stop was pretextual nor how it demonstrates that the magistrate judge's findings were clearly erroneous or contrary to law.
Further, Avalos-Bernal's brief does not address the issue of the defendants' standing to object to the search of the car. Since neither Avalos-Bernal nor Duenas-Rosales demonstrated they were in lawful possession of the car registered to a third party, they cannot establish that they had any expectation of privacy in the car protected by the Fourth Amendment. See Rakas v. Illinois, 439 U.S. 128, 148-49 (1978). Even were Avalos-Bernal able to establish some right of possession creating a reasonable expectation of privacy, the videotape of the stop clearly indicates that Avalos-Bernal voluntarily consented to a search of the car for weapons and drugs.
As to Avalos-Bernal's profiling claim, the magistrate judge found that the defendants failed to establish that the traffic stop was based on Sergeant Hrbek's racially selective enforcement of Nebraska's facially neutral traffic statutes. Filing No. 34, Report and Recommendation at 12-13. I agree with the magistrate judge. The defendants offered no proof that Hrbek stopped their car because they were Hispanic or that he conducted the traffic stop differently than he normally would have once he discovered they were Hispanic.
Avalos-Bernal also challenges the legality of the detention. The case Avalos-Bernal cites as closest on point, however, United States v. Ramos, 42 F.3d 1160 (8th Cir. 1994), is clearly inapposite. First, the case nowhere discusses the issue of selective enforcement of traffic laws, so it offers no support for Avalos-Bernal's argument that his detention was a result of racial profiling. Second, unlike the defendants in the present case, both Hispanic defendants in Ramos had valid, clear licenses; their stories about their destination were consistent; and their vehicle was not stolen. The Eighth Circuit held that given those circumstances, the defendants' out-of-state plates and their uncertainty about where precisely in Chicago they were headed did not create a "collection of circumstances" making further inquiry appropriate. Id. at 1163.
In contrast, Duenas-Rosales had no license and Avalos-Bernal offered a card that looked like a Mexican identification card rather than a license; neither Avalos-Bernal nor Duenas-Rosales was the owner of the vehicle they were in; and neither Avalos-Bernal nor Duenas-Rosales was able to articulate any destination at all. Hrbek's decision to expand the scope of the stop was based on reasonable suspicions that Avalos-Bernal and Duenas-Rosales might be engaged in criminal activity, not on their nationality.
Ramos offers little support for Avalos-Bernal's argument for a second reason. While the circuit did hold that the "collection of circumstances" was insufficient to justify expanding the scope of the inquiry, it also held that the defendant's voluntary consent to a search of his vehicle "purge[d] the taint of the preceding illegal detention." Id. at 1164. The parties here do not dispute the voluntariness of Avalos-Bernal's consent to search the car. Hence, even assuming his detention was illegal, his consent "purged the taint" of that illegality.
Finally, Avalos-Bernal asserts that the seizure was unreasonable in length. Having watched the videotape of the traffic stop and the subsequent canine search, I find that the officers did not detain the defendants for an unreasonable length of time. When Sergeant Hrbek had difficulty conversing with Duenas-Rosales following the stop, he called Officer Brazda to assist. Brazda arrived about ten minutes later while Hrbek was doing a data check on the information on Avalos-Bernal's card and the name and date of birth Duenas-Rosales had given him. The data check took approximately fifteen minutes. Then, almost immediately after beginning the search of the car, the officers saw the package on the floor of the car. They contacted the Papillion Police Department to see if a canine unit was available for a sniff search. Officer McKinney came as soon as he was available. The sniff search occurred approximately forty minutes after Hrbek first made contact with the defendants. A forty-minute detention was not unreasonable in these circumstances. "When police need the assistance of a drug dog in roadside Terry stops, it will in general take time to obtain one; local government police forces and the state highway patrol cannot be expected to have drug dogs immediately available to all officers in the field at all times." United States v. Bloomfield, 40 F.3d 910, 917 (8th Cir. 1994).
Accordingly, Avalos-Bernal's motion to suppress is denied.
V. Conclusion
The defendants have failed to establish that the magistrate judge's order is clearly erroneous or contrary to law. Consequently, I adopt the magistrate judge's report and recommendation in its entirety and deny the defendants' motions to suppress.
IT IS THEREFORE ORDERED:
1. The defendants' objections, Filing Nos. 36 and 37, to the magistrate judge's report and recommendation are overruled;
2. The magistrate judge's report and recommendation, Filing No. 34, is adopted in its entirety; and
3. The defendants' motions to suppress, Filing Nos. 19 and 24, are denied.