Opinion
4:01CR3073
October 2, 2001
MEMORANDUM AND ORDER ON OBJECTIONS TO MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
This matter is before me on the defendant's objection, filing 26, to the report and recommendation of the magistrate judge, filing 24, regarding the defendant's motion to suppress, filing 13. In this motion, the defendant seeks to exclude all evidence that was obtained as a result of his June 18, 2001, traffic stop, arguing that the stop violated his Fourth Amendment right to be free from unreasonable seizure. The magistrate judge has recommended that I deny the defendant's motion. Pursuant to 28 U.S.C. § 636(b)(1) and NELR 72.4, I have reviewed this recommendation de novo, and, after considering the briefs of each party, the complete transcript of the suppression hearing of August 28, 2001, and the exhibits admitted into evidence at that hearing, I find that the defendant's objections are without merit. See Jones v. Pillow, 47 F.3d 251, 252 (8th Cir. 1995) ("Once a proper objection is made to a magistrate judge's finding, the district court must review that finding de novo." (citations omitted)). The magistrate judge's Report and Recommendation, filing 24, will therefore be adopted.
The Honorable David L. Piester, United States Magistrate Judge for the District of Nebraska.
I. Background
Around 2:00 a.m. on June 18, 2001, Officer Miller observed the defendant driving a Chevrolet Suburban on a city street in Lexington, Nebraska. The vehicle did not have licence plates, but Officer Miller did see a white piece of paper in the window of the vehicle's rear hatch area. This paper was the size and shape of an In Transit decal and was located where one would expect to see such a decal. Officer Miller testified that this paper appeared to be blank. After following the vehicle for approximately one block, Officer Miller stopped the vehicle to check for appropriate sales documents.
Officer Miller approached the suburban and first examined the paper in the rear window. It appeared to be an In Transit decal approved by the Nebraska Department of Motor Vehicles, and the date on the decal had not yet passed. Officer Miller noted, however, that this expiration date "was not filled out in a normal fashion," as it was not completed in accordance with the instructions on the form. Tr. at 17:21-23. These instructions require the expiration date to be written in a block-style of print in black ink. See Ex. 2. The form has six rectangular boxes, two boxes each for the month, day, and year, and the instructions require the numbers to be of a size that completely fills the space allotted for each number. See id. Officer Miller testified that he could not recall the color of ink that was used on the suburban's decal, but he did note that the numbers on the decal were not block style and did not fill the rectangular boxes. Instead, the numerals were written in "fine ink." Tr. at 18:8-11. Officer Miller also testified that the print on the In Transit decal was faded. According to Officer Miller, these irregularities led him to conclude that the transit decal was either invalid or altered. He therefore approached the defendant, who was driving the vehicle, to verify the validity of the decal.
"Tr." refers to the transcript of the suppression hearing held on August 28, 2001. See filing 23.
"Ex." refers to the exhibits received at the August 28, 2001, suppression hearing.
When asked for his driver's license, proof of insurance, and the sales contract for the suburban, the defendant could produce only the latter. The sales contract indicated that the vehicle had been purchased from a dealership within the past thirty days by Tanya Lopez. Both the defendant and the passenger claimed that they had no form of identification, and the defendant stated that his name was Juan Rodriguez. However, when the passenger exited the suburban, he dropped a wallet that contained an identification card with the defendant's picture and the name "Gerardo Borrego-Lopez." Officer Miller called in a license check on this name and learned that Gerardo Borrego-Lopez' Nebraska license had been surrendered to Colorado and that his Colorado driving privileges had been suspended.
At some point during the stop, additional officers arrived as back-up. Officer Michael Bose, also with the Lexington Police Department, testified that as he approached the suburban, he noticed that the In Transit decal "did not look like a normal in transit." Tr. at 63:19-21. Specifically, he noted that the numerals were written in blue ink and were not in block form. According to Officer Bose, these observations led him to conclude that the decal may have been altered. A state patrol trooper also arrived on the scene with a drug dog. The defendant denied that he had any drugs, and a search by the drug dog did not uncover any contraband.
The defendant was arrested at the scene for driving without an operator's licence and for false reporting, based on his assertion that he was Juan Rodriguez. The suburban was impounded. When the defendant arrived at the Dawson County Jail, he was booked pursuant to standard jail procedures. In accordance with these procedures, the defendant was fingerprinted and his personal property was inventoried. The defendant's fingerprints were sent to the Nebraska State Patrol's Criminal Intelligence Division to verify his identity. While inventorying the defendant's wallet, Officer Miller found two social security cards, one with the name "Manuel Murillo" and one with the name "Manuel Carrillo."
When Officer Miller returned that evening for his next shift, he received a call from Tanya Lopez, who was requesting the return of her impounded suburban. Officer Miller advised her that he had arrested her boyfriend, and she told the officer that her boyfriend's name was Manuel Murillo-Carrillo. Officer Miller then received a message from an INS agent indicating that the defendant's fingerprints identified him as Manuel Murillo-Carrillo. Subsequent investigation revealed that the suburban's decals had, in fact, been issued by a dealer less than thirty days before the stop.
On June 18, 2001, INS Special Agent Gilbert Johnson prepared a questionnaire and, on the following day, obtained a statement from the defendant after first advising him of his Miranda rights. In this statement, the defendant admits that he is Manuel Murillo-Carrillo, a citizen of Mexico who, when previously in the United States, was convicted of an aggravated felony and deported to Mexico by the INS.
The criminal complaint, filed on June 27, 2001, alleges that the defendant violated 8 U.S.C. § 1326(a) when he reentered the United States as a deported alien without first obtaining consent of the United States Attorney General to reapply for admission. See filing 1. In his motion to suppress, the defendant contends that Officer Miller "had no reasonable suspicion that [the defendant] was engaged in any criminal activity nor probable cause to believe that [the defendant] had committed any crime" before he stopped the defendant. Filing 13 at 1. Thus, the defendant concludes, the stop violated his Fourth Amendment right to be free from unreasonable seizure, and all evidence obtained as a result of the illegal detention, including the government's information relating to the illegal re-entry charge, should be suppressed under the "fruit of the poisonous tree" doctrine. See Wong Sun v. United States, 371 U.S. 471, 487-88 (1963).
II. Analysis
The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . ." U.S. Const. Amend. IV. Because the temporary detention of individuals during the stop of an automobile constitutes a "seizure" within the meaning of the Fourth Amendment, an automobile stop is necessarily subject to the constitution's reasonableness requirement. Whren v. United States, 517 U.S. 806, 809-10 (1996). Generally, a stop will be deemed reasonable when an officer has probable cause to believe that a traffic violation has occurred, regardless of the officer's subjective intent. See id. at 811-19; see also United States v. Neumann, 183 F.3d 753, 755-56 (8th Cir. 1999), cert. denied, 528 U.S. 981 (1999) ("`[A]ny traffic violation, even a minor one, gives an officer probable cause to stop the violator.'" (quoting United States v. Bell, 86 F.3d 820, 822 (8th Cir. 1996)). In addition, an officer may constitutionally stop and briefly detain a person for investigative purposes, provided that the officer "has a reasonable suspicion that that person had committed or was committing a crime." United States v. Juvenile TK, 134 F.3d 899, 902 (8th Cir. 1998) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). Reasonable suspicion requires "more than an officer's inchoate or unparticularized hunch"; rather, "the police officer must point to particularized facts, and the rational inferences that may be drawn, which, viewed together and in light of the officer's experience, suggest illegal conduct." United States v. Fletcher, 91 F.3d 48, 51 (8th Cir. 1996), cert. denied, 520 U.S. 1121 (1997) (citations omitted); see also United States v. Hawthorne, 982 F.2d 1186, 1189 (8th Cir. 1992) (indicating that the totality of the circumstances must be considered in determining whether facts known to an officer permit the requisite degree of suspicion to justify an investigative stop).
Under Nebraska law, all vehicles operated or parked on highways are required to be registered with the Department of Motor Vehicles. See Neb. Rev. Stat. § 60-302(1). The purchaser of a new or used vehicle is afforded thirty days in which to register the vehicle. See id. §§ 60-320(3)(d), 60-320.01. When a vehicle is purchased from a licensed dealer, the dealer provides In Transit decals to display in lieu of license plates. See id. § 60-320(3)(d). Such decals must contain the words "In Transit," a registration number, and the date upon which the thirty-day grace period expires. See id. The decals must also conform with the form and numbering system prescribed by the Department of Motor Vehicles. See id. When a vehicle is purchased from anyone other than a licenced seller, In Transit decals are not required. See id. § 60-320.01. Thus, the purchaser may lawfully operate an unregistered vehicle, without licence plates or In Transit decals, for the thirty-day grace period. See id. The Nebraska Supreme Court, in interpreting these provisions, has concluded that (1) when a vehicle appears to have valid In Transit decals and an officer has no information indicating that any law has been violated, the officer may not stop the vehicle solely to confirm that the In Transit decals are, in fact, valid; and (2) "[w]hen an officer observes a vehicle without license plates or in-transit [decals], a particularized and objective basis exists to justify a reasonable, articulable suspicion that the driver may be criminally avoiding the motor vehicle registration statutes," even though a vehicle purchased through a private sale need not have In Transit decals or license plates until thirty days after the purchase. See State v. Childs, 495 N.W.2d 475, 481-482 (Neb. 1993), cert. denied, 508 U.S. 940 (1993); State v. Bowers, 548 N.W.2d 725, 731 (Neb. 1996).
The term "highways" includes "public streets, roads, turnpikes, parks, parkways, drives, alleys, and other public ways used for the passage of road vehicles. . . ." Neb. Rev. Stat. § 60-301(13).
In addition, Nebraska law provides that "[i]t shall be unlawful for any person to drive any vehicle upon a highway with any sign, poster, or other nontransparent material upon the . . . rear windows of such motor vehicle other than a certificate or other paper required to be so displayed by law." See id. § 60-6,255(2); see also U.S. v. Harris, 528 F.2d 1327, 1329 (8th Cir. 1975) (concluding that where a vehicle had both current license plates and an In Transit decal, the officer had "reasonable grounds" to stop the vehicle since the decal was not "required to be so displayed by law").
Relying on the authorities outlined above, the magistrate judge concluded that Officer Miller had lawfully stopped the defendant. In reaching this decision, the magistrate judge made the following findings, to which the defendant now objects:
(1) "[Officer Miller] had a reasonable and articulable suspicion justifying his stop of this vehicle and his contact and questioning of the defendant. I find no constitutional basis to suppress the evidence and statements arising as a result of this traffic stop."; and
(2) "Officer Miller could not determine that the paper he saw in the rear window of the vehicle [the] defendant was operating was an in-transit tag, and even upon closer analysis, believed it was an invalid or altered in-transit tag. The in-transit tag was not completed in accordance with the instructions on the standard form; bold printing was not used to specify the expiration date; and in the darkness, this in-transit tag was not visible."
Filing 24 at 8.
In challenging these findings, the defendant first questions Officer Miller's credibility. According to the defendant:
The testimony by Officer Miller indicated that he was approximately half a block away from the Defendant's vehicle when he pulled it over. The stop occurred at 2:00 a.m. in a residential neighborhood. At such a distance, even with bold, black lettering on an in-transit sticker, it strains credulity to believe that any in-transit sticker could be read.
Brief in Support of Statement of Objections to Magistrate Judge's Report and Recommendation [hereinafter Defendant's Brief] at 2. I disagree. Officer Miller indicated during cross-examination that he was "approximately" half a block away from the defendant when he activated his lights, and that the block was a "small block." Tr. at 52:4-11, 53:16-17. Officer Miller was not certain as to the distance between the two vehicles at that time and could only opine that it was 200 feet "or less." Id. at 53:8-17. Officer Miller also indicated that on the street where he stopped the defendant, there were "average street lights" illuminating the area. Id. at 41:20-24. Thus, I have no reason to doubt Officer Miller's suggestion that he would have been able to read the expiration date on the suburban's In Transit decal, had it been completed in accordance with the instructions on the form. See id. at 52:17-25 (stating that "[o]n a normal in transit you can read the date from a half a block in Lexington"). I am therefore persuaded that Officer Miller's inability to see any writing on the decal, combined with his prior experience of frequently encountering drivers in Lexington with invalid decals, supplied him with the requisite reasonable suspicion to question whether the suburban was being operated in compliance with Nebraska's motor vehicle registration laws. See Juvenile TK, 134 F.3d at 902 (providing that reasonable suspicion will justify a brief investigative stop); Fletcher, 91 F.3d at 51 (providing that an officer's experience is relevant in determining whether the officer had reasonable suspicion to justify a stop); Tr. at 14:22-24 (testimony of Officer Miller) (indicating that before stopping the vehicle, he observed what appeared to be a blank piece of paper in the window of the rear hatch area); id. at 18:17-20 (testimony of Officer Miller) (testifying that has regularly encountered altered In Transit decals); id. at 18:21-23 (testimony of Officer Miller) ("Anything other than what is normal procedure for a dealer to do usually constitutes an invalid or altered in transit of some sort."); id. at 25:4-11 (testimony of Officer Miller) (indicating that he has "very frequently" encountered cars displaying altered In Transit decals); see also id. at 66:12-17 (testimony of Officer Bose) (indicating that in his experience, it was "very common" to encounter fraudulent or altered In Transit decals).
The defendant also seems to suggest that because Officer Miller did not maintain the In Transit decals as evidence or take a picture of such decals, I should question his credibility. See Defendant's Brief at 2. I am not persuaded. As the government notes in its brief, Officer Miller and the Lexington Police Department viewed the defendant's case as one involving no operator's licence, false reporting, and, potentially, invalid In Transit decals. Thus, I agree with the government that once the department learned that the In Transit decals were issued by a dealer, there was no apparent need to seize the decals, or take photographs of such decals, for evidentiary purposes.
Next, the defendant contends that once Officer Miller approached the suburban and verified that there was an expiration date on the decal and that this expiration date had not yet passed, he had no justifiable basis to continue the investigatory stop. According to the defendant, "Officer Miller used his personal requirements unsupported by Nebraska statutes, regulations or case law for the completion of the dealer issued in-transit sticker as his basis for the stop." Defendant's Brief at 2; see also id. at 3 ("Officer Miller's attempts to require a higher degree of penmanship than required by any Nebraska statute or regulation cannot be ratified by this Court."). Contrary to the defendant's assertion, however, it is not Officer Miller's "personal requirement" that the numerals in the expiration date be in black ink, in block letter form, and in a size that fills the space allotted for each number; rather, the instructions on the standard form require that the decal be completed in such a fashion. See Ex. 2. Furthermore, Officer Miller also testified that even the preprinted portion of the In Transit decal appeared irregular because it was unusually faded. See Tr. at 57:5-17. I therefore agree with the government that the irregular appearance of the suburban's decal, combined with Officer Miller's prior experience involving invalid decals, entitled the officer to stop the suburban in order to verify compliance with Nebraska's vehicle registration laws. See Juvenile TK, 134 F.3d at 902; Fletcher, 91 F.3d at 51; Tr. at 18:17-20, 18:21-23, 25:4-11; see also Tr. at 66:12-17 (testimony of Officer Bose) (indicating that in his experience, it was "very common" to encounter fraudulent or altered In Transit decals).
The defendant contends that this result is contrary to the Nebraska Supreme Court's decision in State v. Childs, 495 N.W.2d 475 (Neb. 1993). In Childs, the arresting officer testified that "his sole reason or purpose for stopping [the defendant's] car was `to check the validity of the in-transits' and that he had no information or indication that any Nebraska law or Omaha ordinance had been violated, or was being violated . . . ." Childs, 495 N.W.2d at 477. In short, the arresting officer in Childs had no reason to question the validity of the In Transit decals at issue. Here, by contrast, Officer Miller did have reason to suspect, based on his observations and his experience, that the suburban's rear decal was not valid. Thus, I am not persuaded that my decision will "allow Nebraska police officers `unfettered discretion' to stop vehicles contrary to Nebraska law." Defendant's Brief at 3-4.
Finally, the defendant also asserts that the stop was pretextual. According to the defendant, the pretextual nature of this stop is shown by the fact that a drug dog was run through the suburban during the stop. The defendant also points out that this search by the drug dog is not mentioned anywhere in the police reports. Thus, the defendant concludes, the record demonstrates that "Officer Miller simply wanted to see if he could uncover any evidence of illegal activity within the vehicle." Defendant's Brief at 2. I disagree.
As the government notes in its brief, there is no indication that Officer Miller called for back-up or requested the assistance of State Patrol Trooper Covert, the drug dog handler who later arrived on the scene. Tr. at 44:24-45:2 (testimony of Officer Miller) (indicating that he did not suspect that the defendant had drugs in the vehicle); id. at 45:5-15 (testimony of Officer Miller) (stating that Trooper Covert "just showed up" at the scene); id. at 46:10-20 (testimony of Officer Miller) (stating that he did not call for Trooper Covert); id. at 62:9-11 (testimony of Officer Bose) (stating that Officer Miller did not ask for back-up). Instead, it appears that it is the custom of local law enforcement to provide back-up, even if such assistance is not requested. Id. at 62:7-21 (testimony of Officer Bose). Thus, I am not convinced that the search by the drug dog demonstrates pretext. See also Whren, 517 U.S. at 813 (noting that its prior case law "foreclose[s] any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved").
For the reasons outlined above, I find that Officer Miller had a reasonable and articulable suspicion justifying his stop of the defendant. The defendant's motion to suppress will therefore be denied.
IT IS ORDERED that the defendant's Statement of Objections to Magistrate Judge's Report and Recommendation, filing 26, is denied.
IT IS FURTHER ORDERED that the magistrate judge's Report and Recommendation, filing 24, is adopted, and the defendant's Motion to Suppress, filing 13, is denied.