Opinion
No. CR00-3045-MWB
March 16, 2001
REPORT AND RECOMMENDATION ON JOINT MOTION TO SUPPRESS
The defendants Noe Ledezma Guajardo ("Guajardo") and Jose Pimentel Vega ("Vega") were indicted on October 26, 2000, for possession of methamphetamine with intent to deliver. ( See Doc. No. 1) On February 5, 2001, Guajardo and Vega filed a Joint Motion to Suppress (Doc. No. 32), and on February 20, 2001, they filed a supporting brief (Doc. No. 36). The plaintiff (the "Government") filed a brief in resistance to the motion on February 26, 2001 (Doc. No. 38). Under the trial scheduling and management orders entered on December 8, 2001, and January 5, 2001 (Doc. Nos. 20 and 27), motions to suppress in this case were assigned to the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B), for the filing of a report and recommended disposition.
On March 8, 2001, the court held a hearing on the suppression motion. Assistant United States Attorney C.J. Williams appeared on behalf of the Government. Guajardo appeared in person and with his attorney, Teresa A. O'Brien. Vega did not appear at the hearing, but he was represented at the hearing by his attorney Shelley Horak. The Government presented the testimony of Iowa State Trooper Dave Baker ("Trooper Baker"). Exhibits admitted by the court were Government Exhibit 1, a videotape of the traffic stop in question; Government Exhibit 2, a Spanish version of the Iowa State Patrol Consent-to-Search form signed by Vega; and Government Exhibit 3, an English version of the Iowa State Patrol Consent-to-Search form. Subsequently, the Court received into evidence for purposes of this motion an affidavit from Rosa Knapp, a certified federal court interpreter, attesting that the Spanish version of the consent to search form is "a literally true and correct" translation of the English version of the form.
Vega was released on bond and is a fugitive.
The court received a copy of the affidavit by facsimile on March 15, 2001. The Government will file the original with the court upon receipt from Ms. Knapp.
The court has reviewed the parties' briefs and carefully considered the evidence, and now considers the motion ready for decision.
II. FACTUAL BACKGROUND
The defendants seek to suppress all evidence arising from a search of the vehicle in which they were riding on Friday, October 20, 2000, near Clear Lake, Iowa. The pertinent facts are as follows.
Trooper Baker was driving in his patrol car south on Interstate 35, when he observed a white Ford panel van traveling in the northbound lane. He observed that the driver of the van was not wearing a seatbelt. Trooper Baker crossed the median and followed the van until he could pull up beside it to confirm that the driver was not wearing his seatbelt. He observed a passenger in the front passenger seat, and it also appeared the passenger was not wearing a seatbelt.
Trooper Baker slowed down and pulled into the right lane behind the van. The van got off the interstate at the next exit ramp, and Trooper Baker activated his emergency lights. The van continued down the ramp to a stop sign, and then turned right onto a county road. Trooper Baker noticed the van had no rear license plates, and then activated his siren. According to the videotape of the stop (Gov't Ex. 1), he pulled the van over at 3:42 p.m.
The officer approached the van from the passenger side, and observed that both the driver, Vega, and the passenger, Guajardo, were wearing their seatbelts. When he questioned the occupants about whether they had been wearing the seatbelts, Vega at first claimed he had been wearing his, but later he admitted he had not been wearing the seatbelt. Guajardo maintained he had been wearing his seatbelt all along.
When Trooper Baker looked into the van, he noticed pictures of the Virgin Mary hanging on the steel meshing separating the front of the van from the rear. He also noted two clean work shirts hanging from the meshing. This raised his suspicions. In his training, he had been told that displays of religious articles in a vehicle, like pictures of the Virgin Mary, often are "disclaimers," posted to indicate to law enforcement the occupants are God-fearing people who would not be involved in criminal activity. He also felt that the clean, pressed shirts gave the impression that the van's interior appearance had been staged.
Trooper Baker obtained picture identification from Vega and Guajardo. He determined that Vega had a valid California driver's license. Through his training, he was aware that California was a source area for narcotics. When questioned, Vega and Guajardo told the trooper they were traveling to St. Paul, Minnesota, which he knew to be a destination for narcotics. When Trooper Baker asked Vega about the lack of license plate on the van, Vega said the plate had been lost. He gave the officer a registration receipt and insurance information.
Trooper Baker then brought Vega back to an area near the patrol car to talk further with him. As Trooper Baker and Vega stood between the car and van, Vega again said he had lost his license plate, and he had filed a report with the department of motor vehicles in California. Trooper Baker asked Vega where he was heading. Vega said he was a cable worker, he had been in Des Moines for the past three days looking for work, and he was headed to St. Paul to look for cable work. He said he had a friend in St. Paul, a Luis Martinez, who might be able to help him find a job, although he did not have Martinez's address or telephone number.
Trooper Baker told Vega he was going to obtain a vehicle identification number off of the van, and returned to the passenger side of the van and began talking with Guajardo. Guajardo said he and Vega were en route to St. Paul, and they had left California the day before. This conflicted with Vega's statement that they had spent the previous three days in Des Moines. Trooper Baker walked back to where Vega was standing by the patrol car, and asked him to have a seat inside the patrol car.
Trooper Baker confirmed that the van was registered to Vega. While Trooper Baker was checking Vega's and Guajardo's criminal histories, Trooper Chris Callaway arrived at the scene as backup. From dispatch, Trooper Baker learned Guajardo had a prior conviction for marijuana possession.
Trooper Baker then approached Guajardo and stated he was going to issue Guajardo a warning for the seatbelt violation. Guajardo stated he had been wearing his seatbelt with the shoulder strap under his arm. Trooper Baker then questioned Guajardo further about the trip. Guajardo said they had driven straight through from California, only making fuel stops, and they were en route to St. Paul. Guajardo said he thought they were going to stay in a motel in St. Paul, and made no mention of staying with a Luis Martinez.
The registration receipt for the van was in Vega's name, and showed that the van had been purchased in May of 2000, about four months earlier. This raised Trooper Baker's suspicions because he was aware that drug traffickers often use different types of vehicles, purchased just for the purpose of transporting drugs. Trooper Baker testified that during these conversations, Vega was "very nervous, fidgety," and Guajardo would not make eye contact.
Trooper Baker decided to issue Vega a citation for no seatbelt, and Guajardo a warning for improper seatbelt usage. At this point, beginning at 4:25 p.m., the following exchange occurred:
Baker: Okay. Here's your registration, I think I'm done with it now. And the reason why I stopped you is for the seatbelt use and then also I didn't see any plates on it.
This transcript has been prepared by the court from Government Exhibit 1, the videotape of the traffic stop.
Vega: Uh-huh.
Baker: Okay. This is a seatbelt ticket. It's a $28 fine in Iowa for no seatbelt use. And I need your signature here again. It's not pleading guilty; it's just saying that you do one of two things. You either appear in court — and the reason why you'd appear in court is if you want to plead not guilty.
Vega: Uh-huh.
Baker: And that's gonna be held on the 16th of November at 9:00 a.m. in the Mason City, Iowa, courthouse. Otherwise, you can mail that amount in by the 16th. If you wait until after the 16th, it turns into that amount.
Vega: [Unintelligible]
Baker: Okay. But I need your signature first and I'll tell you how you can send it.
Vega: Okay.
Baker: Okay. Two copies I'll give you, the first one of which is yours to keep. The second one, if you do decide to mail it, this is the one you send, the one I'm marking. Sign and date it right there.
Vega: Uh-huh.
Baker: It's a $28 fine. I'll write that here, and the due date again is 11/16.
Vega: Okay.
Baker: Check or money order payable to the Clerk of Court. I'll give you an envelope —
Vega: I'll send it tomorrow.
Baker: Okay.
Vega: I don't want to —
Baker: Yeah, just — it's an envelope that you just put it all in there and it'll be taken care of then.
Vega: Uh-huh.
Baker: Okay. Any questions on that?
Vega: No, nothing.
Baker: No questions?
Vega: No.
Baker: Okay. Um, you got — This is your driver's license back, and I'm gonna give Noe a warning for his seatbelt, but you're free to go.
Vega: Okay.
Baker: Okay. I've just got one other question for you, Jose.
Vega: Uh-huh?
Baker: [at 4:26 p.m.] Is there anything illegal in the van?
Vega: No. No, no, no, no, no.
Baker: Any guns?
Vega: No, no.
Baker: Any handguns?
Vega: No, I don't need that [unintelligible].
Baker: Any other sort of weapon?
Vega: No, nothing, no.
Baker: Okay. Is there any marijuana in the van?
Vega: No. No, no, no.
Baker: Cocaine?
Vega: No.
Baker: Any methamphetamine?
Vega: Nothing.
Baker: Nothing?
Vega: Nothing, no.
Baker: Any heroin?
Vega: What is that?
Baker: It's a drug.
Vega: No. No, no, no, no.
Baker: It's an illegal drug.
Vega: No.
Baker: Okay. Is there any large sums of money, like thousands and thousands of dollars?
Vega: No. No, no, no, no, no.
Baker: Nothing like that?
Vega: No, no, I'm looking for that.
Baker: Okay. So —
Vega: [Unintelligible.]
Baker: Nothing like that?
Vega: No.
Baker: Would you mind if I searched the van?
Vega: [Unintelligible]
Baker: Can I search the van?
Vega: Sure, yeah.
Baker: Okay. Do you — do you read English?
Vega: Poco, little.
Baker: Do you read Spanish?
Vega: Uh-huh.
Baker: Okay, good. I got a —
Vega: Spanish is better.
Baker: Spanish is better?
Vega: Uh-huh.
Baker: Okay.
[Pause — silence for several seconds.]
Uh, to make it go faster, do you mind if the Trooper behind me helps me search? Would that be okay?
Vega: Yeah.
Baker: Okay.
Vega: [Unintelligible]
Baker: No, I don't think we'll need your help. That's why he's here. He'll help me and we'll get you going.
Vega: [Unintelligible.]
Baker: Okay. It's a Ford F250 van, no plates. I'm going to write "and contents" here. When we — Usually when we search — Is there anything that we need to look into or can we — can we search the entire van or — and the contents? Everything in the van? You understand that?
Vega: Uh-huh.
Baker: What I'm wanting to search?
Vega: Uh-huh.
Baker: You understand? Okay. What I want you to do here is read this and it'll be signed — each one of these down here I want you to initial, okay?
Vega: Uh-huh.
Baker: Just to make sure you understand and that I have consent to search your van, okay?
Vega: Um-hum.
Baker: Did you read it?
Vega: Oh.
Baker: Yeah, can you . . . . can you initial right there beside each sentence?
Vega: Where?
Baker: Right — right where I put the line right beside each sentence, if you agree.
Vega: On that one?
Baker: Yep. Okay. Can you read me — what does that — what does that first sentence say?
Vega: In English?
Baker: Yeah.
Vega: [Unintelligible.]
Baker: Can you read that?
Vega: I can read it in Spanish. I don't know what it is in English
Baker: Oh, okay. I'm just gonna read it to you then, —
Vega: Uh-huh.
Baker: — just to make sure, okay. What this says is the date and time and the location. We're at mile marker 193 exit out of Clear Lake, Iowa. And the troopers are the ones that's gonna be searching, me and this other trooper behind me.
Vega: Uh-huh.
Baker: And that we're gonna search your Ford F250 van with no plates, and the contents. Okay? And that you have not been threatened or forced in any way.
Vega: Uh-huh.
Baker: That you are aware that you have a constitutional right to refuse a search and that you are not required to give consent. Okay? And that you freely are giving this consent.
Vega: Uh-huh.
Baker: Do you understand that?
Vega: Uh-huh.
Baker: Okay. I'm gonna go give — What works best here, Jose, if you want to stay in here. And — and I'll give Jose — or Noe [Guajardo] his warning here and we'll get going, okay?
Vega: Uh-huh.
[Baker walks to passenger side of van.]
Hi, Noe.
Guajardo: Hi.
Baker: Here's the warning I was talking about for the seatbelt. I just need your signature here at the star . . . . [more conversation]
. . .
Noe, I've got your driver's license, here you go. Jose gave me consent to search the van. Okay?
Guajardo: Okay.
Baker: Is there anything in the van that's yours?
Guajardo: [Unintelligible], that's it.
According the testimony of Trooper Baker, Guajardo mentioned three items, which did not include the box where the Troopers later found the illegal drugs.
Baker: That's it? Okay. This is what's called a "consent to search" form.
Guajardo: Uh-huh.
Baker: It gives — What it says is just the time and the date —
Guajardo: Uh-huh.
Baker: — and then where we're at. We're at mile marker 193 here in Clear Lake, and that gives trooper consent — I'm the trooper — to search the van. Okay? And if you want to read through these provisions here, I'll read them to you.
The first one says, "I have not been threatened nor forced in any way. I am aware that I have a constitutional right to refuse this search and that I am not required to give this consent, and that I freely consent to the search." Okay?
Guajardo: Uh-huh. Yes.
Baker: You want to read them here, too, also, `cause these are in — Do you read Spanish?
Guajardo: Yes.
Baker: Okay.
Guajardo: [Unintelligible.]
Baker: Okay. Is it okay if I search the van?
Guajardo: Yes.
Baker: Can I search the van?
Guajardo: Yes, I have no problem with it.
Baker: Okay. Would you sign this form right on the line below?
Guajardo: There you go, sir.
Baker: Okay.
Trooper Baker then placed Guajardo and Vega in the patrol car, and told them to honk the horn if they needed to talk to him. On the videotape, Vega and Guajardo can be heard conversing in Spanish. At 4:50 p.m., after finding what they believed to be illegal drugs in the van, the Troopers returned to the patrol car and placed Guajardo and Vega under arrest for possession of narcotics.
The search yielded 27 packages of cellophane-packed marijuana, located in a large tool box within the van. The box could not be seen from the outside of the van.
On cross-examination, Trooper Baker testified Guajardo and Vega were not free to leave before they received their seatbelt citations, but they were free to go after that until the illegal drugs were found and they were placed under arrest.
III. LEGAL ANALYSIS A. Guajardo's Standing to Challenge Search
The Government argues Guajardo lacks standing to challenge the constitutionality of the search because he was only a passenger in the van. "A defendant moving to suppress evidence on the basis of an unlawful search bears the burden of proving that he had a legitimate expectation of privacy that was violated by the challenged search." United States v. Gwinn, 191 F.3d 874, 878 (8th Cir. 1999) (citing United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995)). To establish a legitimate expectation of privacy, "the defendant must demonstrate (1) a subjective expectation of privacy; and (2) that the subjective expectation is one that society is prepared to recognize as objectively reasonable." United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995) (citing United States v. Stallings, 28 F.3d 58, 60 (8th Cir. 1994)).
Guajardo seems to agree with this contention. See Doc. No. 32, ¶ 19.
Factors relevant to the determination of standing include: (1) ownership; (2) possession and/or control of the area searched or item seized; (3) historical use of the property or item; (4) ability to regulate access; (5) totality of the circumstances surrounding the search; (6) existence or nonexistence of a subjective anticipation of privacy; and (7) objective reasonableness of the expectation of privacy considering the specific facts of the case. United States v. Gomez, 16 F.3d 254, 256 (8th Cir. 1994) (citing United States v. Sanchez, 943 F.2d 110, 113 (1st Cir. 1991)); United States v. McKibben, 928 F. Supp. 1479, 1484 (D.S.D. 1996)).
Nothing in this record would support a claim by Guajardo that he had any expectation of privacy in the van or in the box where the narcotics were discovered by the Troopers. Accordingly, Guajardo does not have standing to challenge the search. Nevertheless, the court will consider the arguments of both Guajardo and Vega in support of their joint claim that the search of the van was unlawful.
B. Legality of the Stop
During the hearing, the defendants stated they do not contest the validity of the traffic stop itself or the issuance of the seatbelt citation to Vega or the seatbelt warning to Guajardo. Instead, they argue they were unlawfully detained, and that the unlawful detention tainted their later consent to the search of the van.
The stop of a vehicle by law enforcement constitutes a seizure within the meaning of the Fourth Amendment of the Constitution. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). A traffic stop is, therefore, "subject to the constitutional imperative that [the stop] not be `unreasonable' under the circumstances." Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). "As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Id.; Prouse, 440 U.S. at 661, 99 S.Ct. at 1400; see also Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977); see generally Thomas v. Dickel, 213 F.3d 1023, 1024-25 (8th Cir.), cert. denied, ___ U.S. ___, 121 S.Ct. 571 (2000).
The Eighth Circuit Court of Appeals has held that "`any traffic violation, even a minor one, gives an officer probable cause to stop the violator.'" United States v. Lyton, 161 F.3d 1168, 1170 (8th Cir. 1998) (citations omitted); see also United States v. Foley, 206 F.3d 802, 805 (8th Cir. 2000); United States v. Ramos, 20 F.3d 348, 351 (8th Cir. 1994). "[A]n officer has probable cause to stop a vehicle if he or she `objectively has a reasonable basis for believing that the driver has breached a traffic law.'" United States v. Grennell, 148 F.3d 1051, 1052 (8th Cir. 1998) (quoting United States v. Thomas, 93 F.3d 479, 485 (8th Cir. 1996)). However, the Supreme Court has made it clear the Fourth Amendment does not allow a random, discretionary automobile stop that is unsupported by any articulable, reasonable suspicion of a violation. See Prouse, 440 U.S. at 663, 99 S.Ct. at 1401; United States v. Villamonte-Marquez, 462 U.S. 579, 592, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983) ("Random stops without any articulable suspicion of vehicles away from the border are not permissible under the Fourth Amendment . . . .").
Here, Trooper Baker observed that the driver of the van was not wearing a seatbelt. He pulled the van over to investigate the possible traffic violation. As he started to pull the van over, he also noticed the van had no plates. On these facts, the Trooper had ample justification to stop the van.
In Thomas v. Dickel, 213 F.3d 1023 (8th Cir.), cert. denied, ___ U.S. ___, 121 S.Ct. 571 (2000), the Eighth Circuit addressed seatbelt violations under Iowa law as the justification for a traffic stop:
Under Iowa law (with exceptions not relevant here), a vehicle driver and all front-seat passengers are required to wear a "properly adjusted and fastened safety belt or safety harness" while the vehicle is moving, see Iowa Code Ann. § 321.445.2. The officers testified that they followed the plaintiffs' car for one or two blocks but could not see shoulder harnesses pulled down and across the plaintiffs' bodies, and the plaintiffs themselves readily concede that their shoulder harnesses could not be seen from behind when in use because the harnesses were attached to the top of the seats and not to the roof of the car. The officers concluded that the plaintiffs might well be violating Iowa law and therefore stopped the car.
The plaintiffs argue that an officer driving behind a car may not stop that car just because he or she cannot see a shoulder harness pulled down and across a car's occupant. We agree, however, with the district court's observation that it is unreasonable to expect police officers to be aware of all of the idiosyncratic designs of vehicle seat-belt systems. It is common knowledge that many, if not most, automobiles now have shoulder harnesses, see generally Iowa Code Ann. § 321.445.1, requiring that "1966 model year or newer motor vehicles subject to registration in Iowa shall be equipped with safety belts and safety harnesses" (emphasis added); see also State v. Aderholdt, 545 N.W.2d 559, 563 (Iowa 1996), holding that a stop was supported by reasonable suspicion because, "although the officer could not see whether the vehicle's occupants might be wearing lap-type seatbelts, it was apparent [that] they were not wearing shoulder harness belts." It is likewise common knowledge that most shoulder harnesses are visible from behind when deployed. We believe that the absence of a visible shoulder harness pulled down and across a driver provides police in Iowa with a reasonable, articulable suspicion that a crime is being committed, and therefore conclude that the stop in this case did not violate the plaintiffs' fourth amendment rights.213 F.3d at 1025.
C. Legality of the Subsequent Detention
The next question is whether Trooper Baker was justified in detaining the defendants for 44 minutes, between 3:42 p.m., when the van was stopped, and 4:26 p.m., when Trooper Baker requested Vega's consent to search the van. The answer to this question must begin with an analysis of the Fourth Amendment's guarantee of a person's right to be secure against unreasonable searches and seizures of his or her person, house, papers, and effects.
The United States Supreme Court has held repeatedly that "searches and seizures conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions." Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 2135, 124 L.Ed.2d 334 (1993) (internal quotation marks, citations omitted). One such exception was recognized by the Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
In Terry, the court considered the right of a police officer to stop and inquire of a person engaging in suspicious activity. The court explained the duty of a reviewing court in considering the propriety of such a search:
The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate? Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction. And simple good faith on the part of the arresting officer is not enough. . . . If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be "secure in their persons, houses, papers and effects," only in the discretion of the police.Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880 (footnote, internal quotation marks, citations omitted).
In the context of a typical traffic stop, "`a reasonable investigation . . . may include asking for the driver's license and registration, requesting the driver to sit in the patrol car, and asking the driver about his destination and purpose.' . . . Moreover, an officer may undertake similar questioning of other vehicle occupants to verify information provided by the driver." Foley, 206 F.3d 802, 805 (8th Cir. 2000) (citations omitted). Furthermore, "[a]n officer may properly expand the scope of his investigation as reasonable suspicion dictates. . . . To evaluate reasonable suspicion, '[w]e look to the totality of the circumstances, in light of the officer's experience.'" Foley, 206 F.3d at 807 (citations omitted).
In determining whether the length of a traffic stop was reasonable, courts must "consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes." United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985) (citations omitted). See id., 470 U.S. at 685-86, 105 S.Ct. at 1575-76 (recognizing that particular situations may dictate longer detentions, therefore rejecting a "hard-and-fast time limit" for investigatory stops); United States v. Place, 462 U.S. 696, 710 n. 10, 103 S.Ct. 2637, 2646 n. 10, 77 L.Ed.2d 110 (1983) (police officers may graduate their responses to the demands of particular situations); United States v. Pereira-Munoz, 59 F.3d 788, 791 (8th Cir. 1995); United States v. Bloomfield, 40 F.3d 910, 915-16 (8th Cir. 1994). As the court pointed out in United States v. Willis, 967 F.2d 1220, 1224 (8th Cir. 1992), "an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." (Quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325-26, 75 L.Ed.2d 229 (1983)).
In the present case, the Government argues the following factors justified the continued detention of the defendants until the they were asked for consent to search the van: (1) the van had no plates, and Vega's explanation that the plates had been lost was unconvincing; (2) additional time was necessary to confirm ownership of the van because it lacked plates; (3) Trooper Baker was suspicious that the interior of the van was staged with "disclaimers" to throw off law enforcement; (4) Vega and Guajardo gave conflicting stories about their route of travel, where they had stayed on the route, and the date they had left California; (5) California is a drug source state; (6) Minnesota is a drug destination state; (6) Guajardo had a prior conviction for marijuana possession; and (7) Vega was nervous and fidgety, and Guajardo would not make eye contact.
In a similar case, United States v. Carrate, 122 F.3d 666, 668-69 (8th Cir. 1997), the defendant was subjected to a traffic stop and then detained for additional investigation. The troopers testified the following factors raised their suspicion that the defendant may have been transporting drugs: (1) the defendant was not the owner of the vehicle, (2) he was en route from California to Illinois, (3) California is a point of origin for illegal drugs, (4) Chicago is a common destination for the shipment of illegal drugs, (5) the defendant had very little clothing in the car to suggest a legitimate trip, (6) the six-year-old car had high mileage, and (7) the defendant had a prior criminal record in California. The court held the facts of the case collectively provided the troopers with a reasonable suspicion that the defendant was transporting illegal drugs, thus justifying their further questioning, detention, and investigation of the defendant. The court held found the troopers were justified in asking the defendant if he had any weapons, illegal drugs, or alcohol in his car, after issuing the traffic citations. Id., 122 F.3d at 669 (citing Ramos, 42 F.3d at 1163, wherein the court held, "A trained officer may properly infer from a collection of circumstances, no one of which itself indicates illegal activity, that further inquiry is appropriate.")
The court finds the facts of the present case, viewed collectively through the eyes of a trained officer, provided Trooper Baker with a reasonable suspicion that the defendants were transporting illegal drugs, and justified further questioning, detention, and investigation.
D. Consent to Search
The defendants claim that consent to search the van "was not voluntarily given." "The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and '[v]oluntariness is a question of fact to be determined from all the circumstances[.]'" Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854 (1973).
In United States v. Martinez, 168 F.3d 1043 (8th Cir. 1999), the court noted, "A traffic violation alone will not justify an automobile search; there must be probable cause or consent." Id. at 1046 (citing Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998)). The court explained:
In order to determine if consent is voluntary a court should look at all the circumstances, including the nature of the interchange, the characteristics of the individual stopped, and the coerciveness of the environment. United States v. Chaidez, 906 F.2d 377, 380-81 (8th Cir. 1990). Voluntary consent need not amount to a waiver; consent can be voluntary without being an "intentional relinquishment or abandonment of a known right or privilege." Id. An officer is not required to warn a driver that he does not have to sign a consent form. United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir. 1994).Martinez, 168 F.3d at 1046.
In United States v. Chaidez, 906 F.2d 377 (8th Cir. 1990), the court set out the standards for analyzing whether a consent to search was given voluntarily:
Even when police officers have neither probable cause nor a warrant, they may search an area if they obtain a voluntary consent from someone possessing adequate authority over the area. United States v. Matlock, 415 U.S. 164, 171 n. 7, 94 S.Ct. 988, 993 n. 7, 39 L.Ed.2d 242 (1974); Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973). Moreover, a voluntary consent need not amount to a waiver; consent can be voluntary without being an "intentional relinquishment or abandonment of a known right or privilege." Id. at 235, 93 S.Ct. at 2052 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). Rather, the proper test is whether the totality of the circumstances demonstrates that the consent was voluntary. See id. at 226, 93 S.Ct. at 2047. In deciding whether a consent was voluntary, courts should require the prosecution to prove voluntariness by a preponderance of the evidence. See Matlock, 415 U.S. at 177, 94 S.Ct. at 996.
* * *
Chaidez's consent was voluntary if it was "the product of an essentially free and unconstrained choice by its maker," Bustamonte, 412 U.S. at 225, 93 S.Ct. at 2047, rather than "the product of duress or coercion, express or implied." Id. at 227, 93 S.Ct. at 2047. This determination depends upon the totality of the circumstances in a particular case, including "both the characteristics of the accused and the details of the interrogation." Id. at 226, 93 S.Ct. at 2047.
The following characteristics of persons giving consent are relevant when assessing the voluntariness of their consent: (1) their age, id. at 226, 93 S.Ct. at 2047; Haley v. Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 303, 92 L.Ed. 224 (1948); (2) their general intelligence and education, United States v. Watson, 423 U.S. 411, 425, 96 S.Ct. 820, 828, 46 L.Ed.2d 598 (1976); Bustamonte, 412 U.S. at 226, 93 S.Ct. at 2047; Payne v. Arkansas, 356 U.S. 560, 567, 78 S.Ct. 844, 849, 2 L.Ed.2d 975 (1958); Fikes v. Alabama, 352 U.S. 191, 196-97, 77 S.Ct. 281, 284, 1 L.Ed.2d 246 (1957); (3) whether they were intoxicated or under the influence of drugs when consenting, United States v. Rambo, 789 F.2d 1289, 1297 (8th Cir. 1986); (4) whether they consented after being informed of their right to withhold consent or of their Miranda rights, Watson, 423 U.S. at 424-25, 96 S.Ct. at 828; Bustamonte, 412 U.S. at 226, 93 S.Ct. at 2047; and (5) whether, because they had been previously arrested, they were aware of the protections afforded to suspected criminals by the legal system, Watson, 423 U.S. at 424-25, 96 S.Ct. at 828; Laing v. United States, 891 F.2d 683, 686 (8th Cir. 1989); United States v. Carter, 884 F.2d 368, 375 (8th Cir. 1989).
In examining the environment in which consent was given, courts should ask whether the person who consented: (1) was detained and questioned for a long or short time, Bustamonte, 412 U.S. at 226, 93 S.Ct. at 2047; (2) was threatened, physically intimidated, or punished by the police, Watson, 423 U.S. at 424, 96 S.Ct. at 828; Bustamonte, 412 U.S. at 226, 93 S.Ct. at 2047; Reck v. Pate, 367 U.S. 433, 442-43, 81 S.Ct. 1541, 1547, 6 L.Ed.2d 948 (1961); Laing, 891 F.2d at 686; (3) relied upon promises or misrepresentations made by the police, Watson, 423 U.S. at 424, 96 S.Ct. at 828; Laing, 891 F.2d at 686; Carter, 884 F.2d at 374-75; (4) was in custody or under arrest when the consent was given, Watson, 423 U.S. at 424, 96 S.Ct. at 828; (5) was in a public or a secluded place, id.; or (6) either objected to the search or stood by silently while the search occurred, United States v. Olivier-Becerril, 861 F.2d 424, 425-26 (5th Cir. 1988); United States v. Espinosa, 782 F.2d 888, 890-92 (10th Cir. 1986); United States v. Lopez, 777 F.2d 543, 546-48 (10th Cir. 1985).Id., 906 F.2d at 380-81; see United States v. Bradley, 234 F.3d 363, 366 (8th Cir. 2000); United States v. Carmen Zamoran-Coronel, 231 F.3d 466, 469 (8th Cir. 2000).
The court in Chaidez explained further:
These factors should not be applied mechanically, because "[t]he concept of reasonable suspicion, like probable cause, is not `readily, or even usefully, reduced to a neat set of legal rules.'" United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983)). Nevertheless, the factors are valuable as a guide to analysis.Chaidez, 906 F.2d at 381.
The court applied these standards in Martinez, supra. The defendant verbally agreed to let the officer search his car, the defendant signed a Spanish language consent form after indicating he could read Spanish, the officer spoke to the defendant in a normal tone of voice and did not display a weapon or remove the defendant from his car, the defendant did not appear intoxicated or lacking in intelligence, and the defendant had some prior experience with the legal system. Id., 168 F.3d at 1047. On these facts, the court held the consent to search was voluntary.
These standards again were applied in United States v. Pereira-Munoz, 59 F.3d 788 (8th Cir. 1995). After a traffic stop, the defendant appeared nervous and his hands were trembling. When the officer said the defendant had been speeding, he disagreed with such vehemence that the officer feared a confrontation might occur. The defendant was unable to provide proof of insurance as required by state law. He informed the officer he had been stopped earlier that day for speeding, and he had been detained for two hours and subjected to a vehicle search. He made reference to a dog, and produced a warning ticket that had the word "searched" written on it. Upon these facts, the court held, "Although any one of these factors, standing alone, may not have provided a basis for a finding of reasonable suspicion, taken together as a whole, [they] provided ample justification for the limited additional request to search the defendant's vehicle." Id. (citations and quotation marks omitted).
In the present case, Trooper Baker asked both occupants of the van for consent to search the van, and both gave both verbal and written consent. In fact, Trooper Baker went beyond what was required of him under the law when he explained to the defendants that they did not have to consent to the search. See United States v. Palacios-Suarez, 149 F.3d 770, 773 (8th Cir. 1998) (officer is under no obligation to inform suspect that he does not have to consent to search, citing Schneckloth, supra). Furthermore, after the search had begun, the defendants did not honk the horn of the patrol car to ask the officers to stop the search.
As discussed in the previous section of this opinion, the officers had a reasonable suspicion the defendants were transporting drugs when they asked for consent to search the van. Nothing about the age, intelligence, or education of the occupants detracted from their apparent ability to give voluntary consent to search the van. Neither occupant appeared to be intoxicated. Both were informed of their right to refuse consent. Guajardo had some prior involvement with the legal system, and may have been aware from that involvement of the rights afforded to suspected criminals in the legal system. The amount of time the defendants were detained before the consent was requested, 44 minutes, was not long in light of the problems created by the fact that the van had no license plates. The troopers acted professionally at all times throughout the stop, and were not at any time threatening or physically intimidating toward the defendants. The troopers made no promises or misrepresentations to Vega or Guajardo. The stop was on an interstate highway in daylight. Neither defendant objected to the search at any time. Thus, the factors set out in Chaidez overwhelmingly support the lawfulness of the consents to search given by the defendants.
Vega did have some difficulty understanding English, but this potential problem was effectively addressed by the use of a Spanish consent form.
Finally, the court finds that after Trooper Baker asked for consent to search the van, he reasonably believed the defendants both had consented to the search. "[W]hether or not the suspect has actually consented to a search, the Fourth Amendment requires only that the police reasonably believe the search to be consensual. Illinois v. Rodriguez, 497 U.S. 177, 185-86, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); United States v. Sanchez, 32 F.3d 1330, 1335 (8th Cir. 1994), cert. denied, 513 U.S. 1158, 115 S.Ct. 1119, 130 L.Ed.2d 1082 (1995)." United States v. Sanchez, 156 F.3d 875, 878 (8th Cir. 1998)
Considering all the circumstances, the court finds that consent to search the van was obtained lawfully from both Guajardo and Vega.
IV. CONCLUSION
IT IS RECOMMENDED, 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, that the defendants' motion to suppress evidence (Doc. No. 19) be denied, in accordance with the court's recommendations set forth above.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also 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).