Opinion
Case No. 8:02CR28
June 17, 2002
MEMORANDUM AND ORDER
This matter is before the Court on the Report and Recommendation (Filing No. 39) issued by Magistrate Judge Kathleen Jaudzemis recommending that the Motions to Suppress Evidence (Filing Nos. 22 and 23) filed by the Defendant, Ryan M. Rhone, be denied.
Rhone filed Objections to the Report and Recommendation (Filing No. 40) as allowed by 28 U.S.C. § 636(b)(1)(C) and NELR 72.4. Rhone submitted a brief in support of his Objections.
Rhone is charged in two counts of a four-count Indictment with: conspiracy to distribute and posses with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine (Count I); and possession with intent to distribute less than 50 grams of methamphetamine (Count II). Rhone seeks an order suppressing evidence and statements obtained as a result of a traffic stop and Rhone's arrest on April 23, 2001.
At the evidentiary hearing, Rhone withdrew the portion of the motion at Filing No. 23 that relates to the search of a residence at 1406 W. Walnut, Lexington, Nebraska, on March 27, 1998. (TR 5:8-6:6; "TR" refers to the transcript of the evidentiary hearing held on May 1, 2002, at Filing No. 36.)
Following an evidentiary hearing on the Motions, Magistrate Judge Jaudzemis issued a Report and Recommendation in which she determined: probable cause existed for the traffic stop; Officer Colgan's request that Rhone remove items from his pants pockets pursuant to a Terry-type pat search was not unreasonable; Rhone consented to the search of the cloth bag containing the methamphetamine; Rhone voluntarily waived his Miranda rights. On the basis of these determinations, Judge Jaudzemis recommended that Rhone's Motions to Suppress Evidence and Statements (Filing Nos. 22 and 23) be denied.
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 Rhone has objected. 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 a detailed account of the events leading up to Rhone's arrest. The Court has considered the transcript of the hearing conducted by the Magistrate Judge on May 1, 2002 (Filing No. 36). The Court also carefully viewed the evidence. There were no objections to the Magistrate Judge's factual findings. The Court adopts the factual findings in their entirety.
OBJECTIONS
Rhone raises the following objections to the following conclusions of the Magistrate Judge: 1) reasonable suspicion did not exist for the traffic stop; 2) Rhone did not consent to the search of the cloth bag; and 3) the evidence and statements obtained as a result of the search and seizure is admissible as fruit of the poisonous tree.
The brief, however, argues that the scope of a traffic stop may not be expanded unless the continued detention is based on a reasonable, articulable suspicion of criminal activity. Therefore, the issue will be discussed accordingly.
ANALYSIS Probable Cause — Stop of Vehicle
To the extent that Rhone argues that the traffic stop was without reasonable suspicion, this argument is addressed briefly. Traffic violations such as changing lanes without signaling and turning right without signaling in violation of Neb. Rev. Stat. § 60-6,161 (Reissue 1999) are indeed traffic violations, and they provided sufficient probable cause for the traffic stop. United States v. Cummins, 920 F.2d 498, 501 (8th Cir. 1990) (stating that an "otherwise valid stop does not become unreasonable merely because the officer has intuitive suspicions that the occupants of the car are engaged in some sort of criminal activity").
Rhone also argues that law enforcement lacked reasonable suspicion to extend the traffic stop and that evidence obtained afterwards should have been suppressed. The Supreme Court has described reasonable suspicion as "a particularized and objective basis" for suspecting criminal activity. Ornelas v. United States, 517 U.S. 690, 696 (1996). Whether an officer has reasonable suspicion to expand the scope of a traffic stop is determined by looking at "`the totality of the circumstances, in light of the officer's experience.'" United States v. Linkous, 285 F.3d 716, 720 (8th Cir. 2002) (quoting United States v. Dodson, 109 F.3d 486, 488 (8th Cir. 1997)). Although each factor giving rise to reasonable suspicion might appear innocent when considered alone, a combination of factors may justify further investigation when viewed together. United States v. Bloomfield, 40 F.3d 910, 918 (8th Cir. 1994). Suspicion of criminal activity may increase during the course of the traffic stop. Id.
In this case, Officer Colgan testified that he believed that the Cadillac was evading contact with him initially just before the stop. Also, Officer Colgan testified about a citizen complaint received before the stop. The citizen described a Cadillac in some detail, including the license plate, and that one passenger in the car was a Hispanic male with a shaved head pointing a gun at the citizen's vehicle. The Cadillac was stopped by Officer Colgan, and the passenger in the vehicle at the time of the stop was an Indian male with a shaved head. It is not inconceivable that, particularly from a distance, an Indian male could be mistaken for a Hispanic male. The Court finds that, in combination, these factors including possible evasion of the officer and a passenger pointing a gun were sufficient to justify further investigation beyond the initial traffic stop.
Consent to Search of Cloth Bag
In deciding whether Rhone actually consented to a search of the cloth bag, the Fourth Amendment requires only that the officer "reasonably believe the search to be consensual." United States v. Sanchez, 156 F.3d 875, 878 (8th Cir. 1998) (citing Illinois v. Rodriguez, 497 U.S. 177, 185-86 (1990)).
The transcript states the following sequence of events surrounding the search of the cloth bag:
A. . . . . He hesitated slightly, then removed a cloth bag with a zipper on it from the pocket and placed that on the hood — or I'm sorry, the trunk. I asked him what was in the bag. He shrugged his shoulders and did not verbally respond. I again asked him what was in the bag. He shrugged his shoulders and said check.
Q. At this point did you check to see what was in the bag?
A. Yes, I did.
(TR 15:17-25.)
Rhone only suggested that Officer Colgan should not have repeated the question to Rhone asking what was in the bag after Rhone did not answer the first time. Rhone also argued that by responding "check" the second time, Rhone could have been referring to a financial instrument. Other than arguing the question should not have been repeated, Rhone did not argue that his consent was involuntary or that Rhone was coerced. Upon reviewing the evidence, the Court finds that asking the question again did not appear to be coercive. The Court also finds that the situation had nothing to do with financial instruments, and the suggestion that "check" might have referred to a financial instrument is not worthy of further discussion.
The Court finds that the government has shown that Officer Colgan reasonably believed the search of the cloth bag to be consensual.
Fruit of the Poisonous Tree
Because the search and seizure have been found lawful under the Fourth Amendment, evidence and statements will not be suppressed under the fruit-of-the-poisonous tree doctrine.
IT IS ORDERED:
1. The Magistrate Judge's Report and Recommendation (Filing No. 39) is adopted in its entirety;
The Objections to the Report and Recommendation (Filing No. 40) is denied;
3. The Defendant's Motions to Suppress (Filing Nos. 22 and 23) are denied.