Opinion
4:00CR3077
March 13, 2001
MEMORANDUM AND ORDER ON THE DEFENDANTS'OBJECTION TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
This matter is before me on the defendants' objection to the report and recommendation of the magistrate judge regarding their motions to suppress, filings 12 and 13. I find that the objection must be sustained.
Despite the punctuation of the title of the statement of objection, it is apparent that the objection is made by the defendants jointly.
The case arises out of a traffic stop performed by Trooper Fiala of the Nebraska State Patrol which ultimately led to the discovery of controlled substances stored within the windshield washer fluid reservoir of the defendants' rented vehicle. The defendants were stopped because their vehicle did not have a front-mounted license plate. At the conclusion of the traffic stop, the trooper asked the defendants if they were carrying any drugs or weapons in the vehicle. After defendant Nguyen responded, "no," Trooper Fiala asked the defendants if they would mind if he took a look in their vehicle. The defendants consented to the search, and drugs were discovered. A more detailed summary of the background facts appears in the magistrate judge's report and recommendation.
I. STANDARD OF REVIEW
Pursuant to NELR 72.4, the defendants have filed an objection to the magistrate judge's report and recommendation. (Filing 22.) Specifically, the defendants object to the magistrate judge's conclusion that the defendants voluntarily consented to the search of their vehicle. The government has not submitted a brief in response to the defendants' objection, nor has the government filed its own objection to the report and recommendation. I shall therefore focus my de novo review of the report and recommendation upon the issue raised by the defendants. Sims v. Wyrick, 552 F. Supp. 748, 750 (W.D.Mo. 1982); Branch v. Martin, 886 F.2d 1043, 1045 (8th Cir. 1989); 29 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made."); Fed.R.Civ.P. 72(b) ("The district judge to whom the case is assigned shall make a de novo determination upon the record . . . of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule.")
II. ANALYSIS
I have carefully reviewed the magistrate judge's entire report and recommendation, the transcript of the hearing before the magistrate judge regarding the defendants' motions to suppress, and the exhibits admitted into evidence at that hearing The magistrate judge's report is well-reasoned and thorough, but I find that I must respectfully disagree with his conclusion that the consent to search was "sufficiently an act of free will to purge the primary taint." (Report, Recommendation, and Order at 6); United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir. 1994).
The magistrate judge correctly determined that Trooper Fiala did not have a reasonable suspicion of criminal activity to support the continued detention of the defendants when the relevant documents were returned to Nguyen at the conclusion of the traffic stop. (Report, Recommendation, and Order at 4-5.) The magistrate judge also correctly rejected the government's argument that following the completion of the traffic stop, the encounter was consensual. (Id. at 5-6.) Neither party has objected to these determinations, and I find that they should be adopted.
Although the detention of the defendants at the conclusion of the traffic stop was unlawful, it must still be determined whether the defendants' consent to the search of their vehicle was valid The defendants' objection to the report and recommendation is directed at the magistrate judge's determination that the consent to search was sufficiently an act of free will to purge the taint of the unlawful detention. The magistrate judge noted that, even though the detention of the defendants was in violation of the Fourth Amendment, Nguyen's consent to the search will still be valid if it is "sufficiently an act of free will to purge the primary taint." (Report, Recommendation, and Order at 6) (quoting United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir. 1994)). To determine whether the consent is sufficiently an act of free will that purges the taint of the unlawful detention, the following factors must be considered:
Although I could not hear either defendant consent to the search during my review of the videotape of the incident (Hr'g on Mot. to Suppress Ex. 1), testimony at the hearing before the magistrate judge on the motions to suppress established that when Trooper Fiala asked Nguyen "if he minded if I would take a look," Nguyen responded, "no." (Hr'g Tr. at 13:18-25.)
[W]hether [the defendant] understood his right to withhold consent, the temporal proximity of his consent and the prior Fourth Amendment violation, the presence of intervening circumstances, "and, particularly, the purpose and flagrancy of the official misconduct."
(Report, Recommendation, and Order at 6) (quoting United States v McGill, 125 F.3d 642, 644 (8th Cir. 1997), cert. denied, 118 S.Ct. 1108 (1998)).
The defendant does not object to this "standard for analysis," and I find that the portions of Ramos and McGill cited by the magistrate judge set forth the law that must be applied in the present case. However, there appear to be inconsistencies in this circuit regarding the question before me. In United States v. Palacios-Suarez, 149 F.3d 770 (8th Cir. 1998), the court did not use the McGill factors to analyze the question of whether a consent to a search was "sufficiently an act of free will to purge the primary taint." Instead, the court stated that, "[t]o determine whether [the defendant's] consent was voluntary, we examine the totality of the circumstances under which it was given." Palacios-Suarez, 149 F.3d at 772. The court relied upon United States v. Washington, 957 F.2d 559, 562 (8th Cir. 1992), in support of using this "totality of the circumstances" standard, and found that, despite the fact that the defendant was not informed that he could refuse to consent to the search, the consent constituted a sufficient act of free will to purge the primary taint. Palacios-Suarez, 149 F.3d at 772. However, Washington involved what was found to be a consensual encounter between a law enforcement officer and the defendants, and thus there was no "primary taint" to purge. See Washington, 957 F.2d at 562. Washington presented a question of voluntariness. The question raised on the present motion to suppress, however, is not one of voluntariness, but whether the consent is sufficiently an act of free will to purge the primary taint. It seems to me that McGill provides the appropriate structure for the analysis of the "purging of the taint" issue, and Palacios-Suarez confused "voluntariness" with "taint purging." Unfortunately, Palacios-Suarez has spawned other cases which apply the "totality of circumstances" standard in the "purging of the taint" context See, e.g., United States v. Beatty, 170 F.3d 811, 813-14 (8th Cir. 1999). See also United States v. Kreisel, 210 F.3d 868, 869-70 (8th Cir. 2000) (upholding district court's use of the totality of the circumstances standard). Although the McGill test has never been expressly overruled, Beatty holds that the fact that a law enforcement officer did not inform the defendant that he could refuse to consent to the search, which is the first McGill factor, isirrelevant under the totality of circumstances test. Compare United States v. Beatty, 170 F.3d at 814 ("Finally, the fact that Deputy Coop did not inform Beatty that he could deny his search request is irrelevant.") with United States v. McGill, 125 F.3d at 644 ("[The] question turns on whether McGill understood his right to withhold consent. . . .") Hopefully, the Eighth Circuit will soon have an opportunity to clarify the appropriate analysis to be used in this context.
In his discussion of the first factor cited by McGill, the magistrate judge concluded that "there is no evidence whatsoever that Nguyen had even a vague understanding of his right to withhold consent," and concluded that this factor weighed in favor of the defendants. (Report, Recommendation, and Order at 7.) No objection has been made to this determination, and I find it to be correct.
The second factor in the McGill analysis involves the temporal proximity of the consent and the Fourth Amendment violation. The magistrate judge concluded that Nguyen's consent occurred immediately following the unlawful detention, and that this factor weighed heavily in favor of the defendants. (Report, Recommendation, and Order at 7-8.) The defendants claim that the consent did not occur "immediately following the unlawful detention," but rather during the unlawful detention. This is an important distinction, argue the defendants, because if the defendants did not feel free to leave, they necessarily would not feel free to withhold consent to the search. Therefore, it is argued that the consent must have been obtained "involuntarily." In effect, the defendants argue that when consent to search is given during the course of an illegal detention, the consent is per se "involuntary," the McGill analysis is inapplicable, and there is no act of free will to purge the taint of the unlawful detention.
I place quotes around the term "voluntarily" and "voluntary" in this context, because the true inquiry is not whether the consent was given voluntarily, but whether the consent was sufficiently an act of free will to purge the primary taint of the unlawful detention.
While I agree with the defendants that the consent to search was obtained during an unlawful detention, and not following some other Fourth Amendment violation as in McGill, I do not agree that this distinction is as meaningful as the defendants argue. Firstly, in Ramos consent to search the vehicle was given by that defendant "during" an unlawful detention, and yet the court used an analysis parallel to that subsequently articulated in McGill to decide the matter. See Ramos, 42 F.3d at 1163-64 The defendants attempt to distinguish Ramos on the ground that the consent in Ramos was a result of the illegal detention in a "but for" sense, but the consent in the present case did not "merely" result from the detention in a "but for" sense, but "through the actual force of the violation." The defendants' argument on this point lacks substance. I find no reason to distinguish Ramos in the manner that the defendants suggest. If the consent in this case was obtained through the "force of the violation," so it was in Ramos. Secondly, the defendants refer me to no authority in support of their argument that the consent to search given by Nguyen in this case should be per se "involuntary." Finally, the defendants' entire argument rests on the questionable and unsupported premise that a person who does not feel free to leave when unlawfully detained must necessarily not feel free to refuse his or her consent to a search. It seems to me that this premise merely conflates the analysis of whether an encounter with the police was consensual with the analysis of whether a defendant's consent to a search was sufficiently an act of free will to purge the primary taint.
In McGill, the court assumed without deciding that the defendant's Fourth Amendment rights were violated when the investigating officer put his head inside the open window of the defendant's vehicle to view the vehicle identification number, which was visible from the outside of the vehicle. 125 F.3d at 644.
I find that the magistrate judge properly determined that the second factor of the McGill analysis weighs heavily in favor of the defendants. Although I have rejected the defendants' argument that the contemporaneousness of the Fourth Amendment violation and the obtainment of consent should be dispositive of the issue regarding the validity of the consent to search the vehicle, I note that this contemporaneousness should slightly increase the already significant weight given to this factor, since the magistrate judge stated only that the consent immediately followed the unlawful detention.
The third McGill factor also weighs heavily in favor of the defendants, as there were no relevant intervening circumstances between the ongoing unlawful detention and the consent. The defendants do not object to this portion of the report, and I find that it should be adopted.
The final McGill factor requires me to consider the purpose and flagrancy of the officer's misconduct. In its discussion of the officer's purpose, the court noted in McGill that the officer was investigating a traffic accident in which McGill had been involved. 125 F.3d at 644. When the officer stuck his head inside the vehicle to read the vehicle identification number, the officer smelled marijuana fumes. Id. at 643. The court assumed that a Fourth Amendment violation occurred when the officer put his head inside the window of the vehicle, but found that noting the vehicle identification number and determining whether McGill had been under the influence of drugs or alcohol were relevant to the officer's investigation. Id. at 644. Therefore, the court found that the officer could have properly asked for permission to search the passenger compartment of the vehicle even if he had not smelled marijuana. Id. at 644-45.
In McGill, the detection of the marijuana fumes by the officer occurred while the officer was investigating facts directly related to his purpose. In the present case, Trooper Fiala's purpose had been satisfied when he completed his investigation regarding the missing front license plate on the defendant's vehicle. The magistrate judge properly determined that the trooper had no articulable reasonable grounds to shift his purpose into a drug investigation, and it seems to me that the trooper's request to search the defendants' vehicle was not related to the purpose of the original, lawful detention. Since the request to search the defendants' vehicle was unrelated to the officer's lawful purpose, this aspect of the fourth McGill factor cannot be said to weigh in favor of the government.
The magistrate judge also concluded that the trooper's violation was not flagrant and he acted in good faith. The magistrate judge stated as follows:
First, it is not contested that Fiala's initial reason for stopping the defendants was legally justifiable. . . . Having lawfully stopped the defendants, he was in a position that he could have easily obtained the consent to search without having to resort to an illegal detention. See McGill, supra Additionally, even though he asked for consent immediately after the illegal detention, he did not do it in a coercive or threatening manner. Consequently, I find that Fiala's conduct was not flagrant
(Report, Recommendation, and Order at 9.).
Based upon my review of the transcript of the hearing on the defendants' motions to suppress and Exhibit 1 from that hearing, I find that Fiala did not ask for consent to search in a coercive or threatening manner. However, I disagree with the magistrate judge's conclusion that Fiala could have "easily obtained the consent to search without having to resort to an illegal detention." The magistrate judge relied on McGill in support of this conclusion. However, McGill is distinguishable in important respects. As I have explained above, unlike the officer inMcGill, Trooper Fiala did not perceive the presence of illegal drugs during the course of his lawful traffic stop. Nor did Fiala have any basis for suspecting that either defendant was under the influence of drugs or alcohol at the time of the traffic stop The lawful stop of the defendants related to the absence of a front license plate. There was no collision as there was in McGill, nor even a stop for speeding, reckless driving, or any violation that in any way suggested impaired driving. Therefore, although the officer in McGill would not have had to rely upon an illegal detention to search for drugs, the same cannot be said for Trooper Fiala under the facts of this case. It was permissible for Fiala to conduct a reasonable investigation during the traffic stop in this case, including obtaining identification and registration papers, asking the driver to sit in the patrol car, and asking about the destination and purpose of the detainees Ramos, 42 F.3d at 1163. Fiala performed such an investigation, ran a background check on the defendants, and found nothing suspicious. (Hr'g Tr. at 11:7-12.) Fiala himself testified that he had no reason to suspect that other crimes were afoot when he completed the investigation associated with the lawful traffic stop. (Hr'g Tr. at 27:9-22.) The magistrate judge correctly determined that further detention must either be consensual in nature or supported by a reasonable, articulable suspicion that a crime is being committed, and that neither of these factors was present in this case. Under the circumstances, I do not agree that the consent to search could have easily been obtained.
I find that the fourth McGill factor does not weigh in favor of either the defendants or the government. Although the unlawful detention was unrelated to the purpose of the lawful stop, the request for consent to search the vehicle was not done in a threatening or coercive manner. However, overall it is apparent that the balance of the four factors supports a finding that the consent provided by Nguyen was not sufficiently an act of free will to purge the primary taint of the unlawful detention. It seems to me that even under the magistrate judge's assessment of the McGill factors, wherein three of the four factors were found to weigh in favor of the defendants, the balance favors the defendants' position. However, it must be recognized that the fourthMcGill factor, which the magistrate judge erroneously weighed in favor of the government, is entitled to particular emphasis in the analysis.McGill, 125 F.3d at 644. The magistrate judge correctly observed that the present case presents a close question, and his determination that the primary taint was purged when the first three of the four McGill factors nevertheless weighed in favor of the defendant was not entirely unprecedented. See, e.g., United States v. Poulack, 82 F. Supp.2d 1024, 1031-32 (D.Neb. 1999).
In Poulack, however, the magistrate judge found that the encounter between the defendant and the law enforcement officer was consensual, and therefore there was no primary taint to purge 82 F. Supp.2d at 1031. The analysis of the purging of the taint issue was conducted to demonstrate that, "even assuming that [the defendants] were then illegally detained, I conclude . . . that [one of the defendant's] consent to search the truck was not a product of his illegal detention." Id. (citation omitted).
In an abundance of caution due to the confusion in the law, I have considered the totality of the circumstances in the case before me. Although Trooper Fiala appeared very pleasant and non-confrontational in his request to search the vehicle, the circumstances on the whole, including the McGill factors, weigh in favor of a finding that the defendants' consent to the search was not voluntary. The defendants were being detained unlawfully by a police officer leaning on the window of their vehicle, such that, according to Fiala, a reasonable person would not have felt free to leave. (Hr'g Tr. at 42:5 — 44:9.) The Trooper requested to search the vehicle during this unlawful detention. The request to search the vehicle was not based upon any reasonable, articulable suspicion of criminal activity, but instead was part of a mere "fishing expedition." (Hr'g Tr. at 27:20-22.) My review of the evidence provides no indication that the defendants were aware that they could refuse the trooper's request to search their vehicle. Fiala did not inform the defendants that they had the right to leave when the investigation associated with the traffic stop was concluded, and the videotape of the stop reveals that Fiala did not inform the defendants that they could refuse to consent to the search of the vehicle. (Hr'g Tr. at 28:6-8; Hr'g on Mot. to Suppress Ex. 1.) The purpose of the lawful traffic stop had been satisfied before the Trooper asked to search the vehicle, and the request to search the vehicle had no discernable nexus with the basis for the original, lawful stop. In favor of the government is the fact that Fiala requested to search the vehicle in a pleasant, nonthreatening tone. Considering the totality of the circumstances, I find that the consent to search was not voluntarily given.
Nguyen's consent to search the vehicle was not sufficiently an act of free will that purged the taint of the unlawful detention under theMcGill test, nor was the consent voluntary under the "totality of circumstances" analysis. The defendants' objection to the magistrate judge's report, recommendation, and order is sustained, and the defendants' motions to suppress are granted. The controlled substances uncovered in the unlawful search of the defendants' rented vehicle must be suppressed Nguyen's subsequent statements to the law enforcement officers must be suppressed as well, because they were obtained as a direct result of the illegal detention. Wong Sun v. United States, 371 U.S. 471, 484-86 (1963); United States v. Ramos, 42 F.3d at 1164 ("As we understand the Supreme Court's cases, statements that result from an illegal detention are not admissible).
IT IS ORDERED that the defendants' objection to the magistrate judge's report, recommendation, and order denying the defendants' motions to suppress, filing 21, is sustained.
IT IS FURTHER ORDERED that the defendants' motions to suppress, filings 12 and 13, are granted.