Opinion
Case No. 8:02CR45
July 16, 2002
MEMORANDUM AND ORDER
INTRODUCTION
This matter is before the Court on the Report and Recommendation (Filing No. 24) issued by Magistrate Judge Kathleen Jaudzemis recommending denial of the Motions to Suppress filed by the Defendants, Jamie Marquez-Cruz (Filing No. 17) and Raul Sanchez-Flores (Filing No. 16). Sanchez-Flores filed a Statement of Objections to the Report and Recommendation (Filing No. 25) as allowed by 28 U.S.C. § 636(b)(1)(C) and NELR 72.4. Marquez-Cruz has not objected to the Report and Recommendation.
The Defendants are charged in a one-count Indictment with possession 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) and 841(b)(1). The Defendants seek an order suppressing all evidence and statements obtained as a result of the vehicle search and their January 17, 2002 arrest.
Following an evidentiary hearing on the Motions, Magistrate Judge Jaudzemis issued a Report and Recommendation in which she determined: 1) probable cause and reasonable suspicion supported the traffic stop; 2) the length and scope of the traffic stop were not unreasonably lengthened; 3) Sanchez-Flores voluntarily consented to the search of the vehicle; and 4) explicit permission was obtained to search the Tide box, in which the methamphetamine was found. On the basis of these determinations, Judge Jaudzemis recommended that the Motions to Suppress be denied.
Sanchez-Flores filed a Statement of Objections to the Magistrate Judge's Report and Recommendation. (Filing No. 25.) The Statement of Objections was supported by a brief. The Court has considered the transcript of the hearing conducted by the Magistrate Judge on April 17, 2002 (Filing No. 22). The Court also carefully viewed the evidence and viewed the videotape on three separate occasions.
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 Sanchez has objected. Although Marquez-Cruz has not objected to the Report and Recommendation, the Court will also make a de novo determination as to the issues as they pertain to him. 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 an account of the events leading up to the stop and search of the vehicle and the Defendants' arrests. Although there have been no objections to the Magistrate Judge's factual findings, one finding merits consideration.
The Report and Recommendation states at the top of page five, referring to Marquez-Cruz and Sanchez-Flores: "Neither of them knew the boy's birth date and neither had gotten the child a birthday present." (Filing No. 24, at 5 (emphasis added).) The Report and Recommendations does not contain citations to the transcript of the hearing or the videotape for factual findings.
Sanchez-Flores and Marquez-Cruz were stopped by Omaha Police Officer Stephen Worley on Interstate 80 while in a vehicle with a California license plate. Sanchez-Flores was driving, but the vehicle belonged to Marquez-Cruz. Officer Worley took Sanchez-Flores to his cruiser while he performed license and background checks on both Defendants.
In reviewing the videotape, this Court viewed the following pertinent details. While Sanchez-Flores was in Worley's cruiser, he told Worley the following: the two men were going to Des Moines to see a mutual friend, who Sanchez-Florez named; the length of stay in Des Moines would be a couple of days; and in Des Moines the men were going to attend a birthday party for their friend's son. (1:27:40-1:29:39.) Worley then walked to the vehicle and spoke with Marquez-Cruz, who told Worley the following: the two were en route to Des Moines to see a mutual friend, who Marquez-Cruz named; they were going to attend a birthday party for the friend's son; and they were going to stay in Des Moines a couple of days. (1:32:13-1:32:32.) Worley returned toward the cruiser and turned off his radio. (1:34:44.) Worley testified that, while the radio was off, he was talking with Omaha Police Officer VanBuren, a backup officer. (Tr. 22:20-23:22.) The radio was turned on again. (1:37:16.) At about that point, VanBuren can be seen at the passenger side of the vehicle. Worley testified that VanBuren was then talking with Marquez-Cruz, and Worley assumed that during this conversation Marquez-Cruz told VanBuren that he had not yet bought a present for the child about to celebrate his birthday in Des Moines. (Tr. 23:23-24:3; 27:12-17.) Worley, again in his cruiser, asked Sanchez-Flores about the age of the child who was going to celebrate his birthday. Sanchez-Flores answered: "Four or five, I think." (1:38:02.) Worley gave Sanchez-Flores a warning citation. (1:41:35.) During the search, Worley told VanBuren, apparently for the first time, that he "asked the kid's age," and Sanchez-Flores said "four or five." VanBuren then told Worley that he asked Marquez-Cruz the same question, and he also responded: "four or five." VanBuren also told Worley that when he asked Marquez-Cruz what he had gotten the child for a present, Marquez-Cruz responded "nothing." (1:45:38.)
Citations without the designation "Tr." refer to the videotape.
The videotape does not reflect that either Defendant was asked the birth date of the child. The Defendants were separately questioned about the age of the child. The Magistrate Judge's factual findings shall therefore be amended to accurately reflect this detail.
Also, the Magistrate Judge's factual findings will also be amended to reflect that only Marquez-Cruz had not yet gotten the child a birthday present.
OBJECTIONS
Sanchez objects to the Report and Recommendation, arguing that the Magistrate Judge erred in finding: 1) probable cause supported the stop of the vehicle; 2) the stop was not pretextual based on the Sanchez-Flores's race; 3) the delay between the stop and request to search the vehicle was not an unreasonable delay and seizure; and 4) the evidence should not be suppressed as fruit of the poisonous tree. (Filing No. 25.)
ANALYSIS
Probable Cause for the Stop
Sanchez-Flores argues that probable cause did not exist for the traffic stop. The argument also implies that the stop was pretextual in that the officer decided to stop the vehicle to search for drugs and not due to the alleged traffic violations.
Even a minor traffic violation provides probable cause for a traffic stop. United States v. Pulliam, 265 F.3d 736, 739 (8th Cir. 2001). In deciding whether a stop was pretextual or based on probable cause, the district court applies an "objectively reasonable" standard. United States v. Chatman, 119 F.3d 1335, 1340 (8th Cir. 1997). "So long as the officer is doing nothing more than he is legally permitted and objectively authorized to do, his actual state of mind is irrelevant for purposes of determining the lawfulness of the stop." United States v. Pereira-Munoz, 59 F.3d 788, 790 (8th Cir. 1995). The subjective intentions of an officer making the stop are irrelevant for the purpose of determining the validity of the stop. Whren v. United States, 517 U.S. 806, 813 (1996); United States v. Alcantar, 271 F.3d 731, 736 (8th Cir. 2001), cert. denied, 122 S.Ct. 1380 (2002).
Officer Worley testified that the license plate was difficult to see from a normal following distance and did not appear to be lighted, and that twice he saw the vehicle weave over the lane within a short period of time.
Regarding careless driving, the Nebraska statutes provide: "Any person who drives any motor vehicle in this state carelessly or without due caution so as to endanger a person or property shall be guilty of careless driving." Neb. Rev. Stat. § 60-6,212 (2001).
Regarding the proper display of license plates and registration tags, the Nebraska statutes have been interpreted to mean "a display which is visible." State v. Reiter, 524 N.W.2d 575, 578 (Neb.Ct.App. 1994). See also Neb Rev. Stat. §§ 60-323 to -324 (2001). Therefore, given the evidence before the Court of two occasions of weaving over the lane and the lack of a visible rear license plate provided Worley with sufficient probable cause to justify the traffic stop. Moreover, the stop was not pretextual as argued.
Pretext Based on Race
The objections appear to refer to a Fourteenth Amendment argument that the traffic stop was based on race. The issue was not briefed and therefore, under NELR 72.4 the issue is deemed abandoned.
Reasonable Suspicion
Sanchez-Flores argues that law enforcement lacked reasonable suspicion to detain them long enough to search the vehicle and that the "scope" of the traffic stop was impermissibly extended.
The difficulty with this argument is that, as the Magistrate Judge determined, the Defendants were no longer detained after the completion of the traffic stop. "Not all personal contacts between law enforcement officers and citizens constitute seizures which implicate the Fourth Amendment. United States v. Beck, 140 F.3d 1129, 1135 (8th Cir. 1998) (citing Terry v. Ohio, 392 U.S. 1, 19-20 n. 16 (1968)). The determination is fact-intensive and depends on the facts of each case. United States v. Hathcock, 103 F.3d 715, 718 (8th Cir. 1997). The Eighth Circuit has stated: "A seizure does not occur simply because a law enforcement officer approaches an individual and asks a few questions or requests permission to search an area — even if the officer has no reason to suspect the individual is involved in criminal activity — provided the officer does not indicate that compliance with his request is required." United States v. White, 81 F.3d 775, 779 (8th Cir. 1996.) A consensual encounter becomes a Terry stop occurs only "when the questioning is so `intimidating, threatening or coercive that a reasonable person would not have believed himself free to leave.'" Hathcock, 103 F.3d at 718 (quoting United States v. McKines, 933 F.2d 1412, 1419 (8th Cir. 1991)). Circumstances that indicate a seizure include "`the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.'" United States v. Angell, 11 F.3d 806, 809 (8th Cir. 1993) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)), cert. denied, 512 U.S. 1239 (1994).
The record in this case fails to indicate that Worley's conduct was intimidating, threatening, or coercive. Once he gave Sanchez-Flores the warning ticket, the two were outside of the vehicle and the cruiser when Worley asked Sanchez-Flores for consent to search the vehicle. Although Worley did not tell Sanchez-Flores that he was free to leave, he returned his license and had given him the warning ticket. Although leaving might have been somewhat awkward, Sanchez-Flores could have done so. Therefore, the Court finds that the encounter was consensual, the Defendants were no longer detained, and therefore the encounter did not implicate the Fourth Amendment. Beck, 140 F.3d at 1035 (finding that a consensual encounter did not ripen into a seizure where a driver's license and rental agreement had been returned); White, 81 F.3d at 779 (finding that the driver was no longer seized within the meaning of the Fourth Amendment after police had returned his license, vehicle registration, and had issued a warning ticket).
Because the detention ended with the traffic stop, and the ensuing encounter did not ripen into an investigative detention, the Court need not reach the issue of reasonable suspicion.
IT IS ORDERED:
1. The Magistrate Judge's Report and Recommendation (Filing No. 24) is adopted in part, and modified in part as follows;
a. The Magistrate Judge's factual findings are modified as described in this Memorandum and Order;
b. Otherwise, the Magistrate Judge's Report and Recommendation is adopted;
2. The Objections to the Report and Recommendation (Filing No. 25) filed by the Defendant, Sanchez-Flores, are overruled;
3. The Motion to Suppress filed by the Defendant, Jamie Marquez-Cruz (Filing No. 17) is denied; and
4. The Motion to Suppress filed by the Defendant, Raul Sanchez-Flores (Filing No. 16) is denied.