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United States District Court, D. NebraskaAug 12, 2002
Case No. 8:02CR50 (D. Neb. Aug. 12, 2002)

Case No. 8:02CR50

August 12, 2002



This matter is before the Court on the Report and Recommendation (Filing No. 34) issued by Magistrate Judge Thomas D. Thalken recommending denial of the following Motions: to Suppress Evidence, filed by the Defendant, Larry A. Walden, Sr. (Filing No. 21); to Suppress Statement, filed by the Defendant Walden (Filing No. 22); to Suppress Evidence, filed by the Defendant, Charles Brown (Filing No. 24); and to Amend the Motion to Suppress, filed by the Defendant Brown (Filing No. 26). Walden and Brown filed Statements of Objections to the Report and Recommendation (Filing Nos. 36, 40) as allowed by 28 U.S.C. § 636(b)(1)(C) and NELR 72.4.

The Report and Recommendation recommends denial of Brown's Motion (Filing No. 26). However, this Motion to Amend the Motion to Suppress at Filing No. 24 was previously granted. (Filing No. 28.) The Court will consider the issue raised in Filing No. 26 as part of Filing No. 24.

Walden and Brown are charged in Count I of the Indictment with possession with intent to distribute more than 5 kilograms of a mixture or substance containing a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1). Both Defendants seek an order suppressing evidence and statements obtained as a result of the January 21, 2002, search of the van they were driving and their subsequent arrests.

Following an evidentiary hearing on the Motions, Magistrate Judge Thalken issued a Report and Recommendation in which he determined: 1) probable cause existed for the traffic stop; 2) the continued detention was lawful; 3) the search of the van was lawful and conducted pursuant to Brown's voluntary consent; and 4) both Defendants' post-arrest statements were voluntary. On the basis of these determinations, Judge Thalken recommended that the Motions to Suppress be denied.

Walden and Brown filed Statements of Objections to the Magistrate Judge's Report and Recommendation. (Filing Nos. 36, 40.) The Statements of Objections were each supported by a brief.


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 Walden and Brown have 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.


The Magistrate Judge provided a detailed account of the events leading up to the search, the arrests, and the questioning of both Defendants. The Court has considered the transcript of the hearing conducted by the Magistrate Judge on March 29, 2002 (Filing No. 33). The Court also carefully viewed the evidence. The Court notes in particular that it viewed the videotape (Ex. 7) in its entirety and twice listened to the audiotape (Ex. 2). Based on the Court's de novo review of the evidence, certain factual findings merit additional comment.

The videotape captures the post-arrest questioning of Walden, then Brown, and finally the traffic stop.

The audiotape contains a discussion between Sergeant Leroy Jones of the Nebraska State Patrol and primarily Brown. The audiotape also includes a brief discourse between Jones and Walden as well as radio communications with Jones.

Although not included as a specific delineated objection in Brown's Statement, Brown objects in his brief to the chronology of certain events as determined by Judge Thalken. Defendant Brown's Brief in Support of Defendant's Statement of Objections at 8-9. This Court finds, upon careful review of Exhibit 2 and in light of Brown's argument, that the chronological order of pertinent events occurring at the stop was as follows: Jones'discussion with Brown, during which Jones made the statement to Brown that the stop had turned into an investigatory stop; Jones' brief discussion with Walden; Jones' request for Triple I background checks on the Defendants. Accordingly, the Magistrate Judge's Report and Recommendation will be modified to reflect the above-described chronological order of the listed events.


Brown objects to the Magistrate Judge's Report and Recommendation, and alleges that: 1) the scope of the traffic stop was exceeded without reasonable suspicion; 2) Brown's consent to search was involuntary; 3) Brown's pre-arrest statements were involuntary as he was not given Miranda warnings during the alleged custodial interrogation; and 4) Brown's post-arrest statements were the fruit of his illegal arrest.

Walden objects to the Magistrate Judge's Report and Recommendation, and alleges that: 1) the detention exceeded the scope of the traffic stop; and 2) with regard to Walden's post-arrest questioning, he did not voluntarily waive his Miranda rights, and his statements were involuntary.

ANALYSIS Brown's Objections Scope of the Traffic Stop

Brown argues that when Jones told Brown the stop had turned into an investigative stop, reasonable suspicion was lacking. Brown argues that, in finding reasonable suspicion existed, the Magistrate Judge relied on inconsistencies between Brown's and Walden's stories about their trip and the owner of the van, while Exhibit 2 shows that Jones had not talked to Walden until afterwards.

Magistrate Judge Thalken stated that Walden and Brown had told Jones different stories, and Jones detained the Defendants until the Triple I check came back and Jones issued the warning for speeding. Judge Thalken reasoned that at that time, Jones received permission from Brown to search the van, and therefore further detention of the van was pursuant to Brown's consent. The Court notes that Judge Thalken also stated: "Brown told Jones various versions of who owned the car, how he got from the Chicago/Indiana area to Nevada, and where he went in Nevada." (Filing No. 34, at 6.)

As Judge Thalken stated, a law enforcement officer may detain a driver while completing routine tasks such as routine checks of the vehicle, driver's license, criminal history, and issuing a citation or warning ticket. United States v. $404,905.00, 182 F.3d 643, 647 (8th Cir. 1999). Such was the situation in Brown's and Walden's case, until Jones issued the warning and Brown consented to the search of the van. At that time, the continued detention was lawful pursuant to Brown's consent.

Moreover, the Court finds that Sergeant Jones was fully justified in detaining the Defendants as part of an investigative stop. Whether reasonable suspicion exists to expand the scope of a traffic stop is determined by viewing "`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 supporting a finding of reasonable suspicion might seem innocent in isolation, a combination of factors may warrant further investigation. Id. "An officer's suspicion of criminal activity may reasonably grow over the course of a traffic stop as the circumstances unfold and more suspicious facts are uncovered." Id. (citing United States v. Morgan, 270 F.3d 625, 631 (8th Cir. 2001). For example, "where the responses of the detainee and the circumstances give rise to suspicions unrelated to the traffic offense, an officer may broaden his inquiry and satisfy those suspicions." United States v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993) (emphasis added). In this case, Brown's inconsistent stories alone about the trip and the owner of the van, together with the other circumstances as they appeared at that time to Jones, provided reasonable suspicion for continued detention.

Exhibit 2 includes Brown's statements that the van belonged to a cousin, then a friend of the cousin. Exhibit 2 also portrays Brown's frequent rambling monologue in answer to simple questions. In his objections, Brown argues that there was confusion as to whether he was being asked who was the "owner" of the van versus the "registered owner" of the van. The Court sees no distinction, as "who owns the van" is a simple question that should be easily understood by a man of Brown's age, apparent intelligence, and experience.

For these reasons, Brown's objection relating to the issue of the scope of the traffic stop will be denied.

Involuntary Consent to Search Brown argues that he did not voluntarily consent to the search of the van.

The government must bear the burden of showing voluntary consent to a search. The United States Court of Appeals for the Eighth Circuit Court has identified guidelines for this Court to consider when evaluating voluntariness of a consent to search. The Eighth Circuit Court has stated:

The question of whether an expression of consent is voluntary or coerced is also a question of fact. . . . We have identified factors to be considered in making this determination, including personal characteristics of the defendant, such as age, education, intelligence, sobriety, and experience with the law; and features of the context in which the consent was given, such as the length of detention or questioning, the substance of any discussion between the defendant and police preceding the consent, whether the defendant was free to leave or was subject to restraint, and whether the defendant's contemporaneous reaction to the search was consistent with consent.

United States v. Jones, 254 F.3d 692, 696 (8th Cir. 2001) (citations omitted). When applying these guidelines to the facts presented here, the Court finds that Brown voluntarily consented to the search of the van.

At the time of the stop, Brown was an adult, and the videotape shows that he appeared sober and answered questions appropriately yet in a somewhat rambling manner. Brown stated he had been in the military, which gave Jones some limited information about his background. Brown was issued a citation and then asked for consent to search. He was not threatened or pressured, and promises of leniency were not made. Jones showed his frustration with Brown's somewhat rambling and inconsistent answers to rather simple questions, and Jones told Brown that he had lied. However, under all of the facts and circumstances the Court finds that Jones' tone was not unacceptably "accusatory, aggressive, and interrupting," as Brown suggests. Defendant's Brief in Support of Defendant's Objections at 10. The evidence fails to indicate any impermissible detention or other factors. Brown signed a consent-to-search form.

For these reasons, Brown's objection that he did not voluntarily consent to the search of the van is denied.

Pre-Arrest Statements Were Involuntary

Brown argues that his pre-arrest statements were involuntary and made without the benefit of Miranda warnings.

Under the factors set out in 18 U.S.C. § 3501(b), the Court finds that Brown's statements were voluntary. In making this finding, the Court in particular considered the facts discussed above relating to the issue of Brown's consent to search the van.

Therefore, Brown's objection relating to pre-arrest statements is denied.

Post-Arrest Statement Was Fruit of the Illegal Arrest

Brown contends that his post-arrest statements made at the police station should be suppressed as the fruit of his illegal arrest.

Because Brown's arrest was lawful under the Fourth Amendment, his post-arrest statements will not be suppressed under the fruit-of-the-poisonous tree doctrine.

Walden's Objections Scope of the Traffic Stop

For the reasons discussed above with regard to the same objection raised by Brown, Walden's objection relating to the scope of the traffic stop will be denied. Additionally, the Court finds that Walden was not ill at the time of the traffic stop. Although HIV positive, there were no signs of active illness at that time, and although Walden was taking medication for an ulcer he did not complain of illness at the time of the stop. He indicated no major health problems, other than testing positive for HIV, during his post-arrest statement.

Post-Arrest Statements

Walden argues that his post-arrest statements were involuntary and that he involuntarily waived his Miranda rights before questioning at the police station.

Custodial interrogations, by nature, generate "compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Miranda v. Arizona, 384 U.S. at 436, 467 (1966). To combat this natural pressure, Miranda demands that persons in custodial interrogation be advised of their right to remain silent and to have counsel present. Id. at 468-70. Although a defendant may waive these rights, the government is held to a high level of proof that a waiver has been effectuated. Specifically, the government must prove that, taking into account the background, experience, and conduct of the defendant, the waiver was "the product of a free and deliberate choice rather than intimidation, coercion, or deception" and was made with "a full awareness of both the nature of the right being abandoned and the consequences surrounding the interrogation." Moran v. Burbine, 475 U.S. 412, 421 (1986). The test has been explained by the Eighth Circuit as whether a defendant's "will was overborne and his capacity for self-determination critically impaired." United States v. Kilgore, 58 F.3d 350, 353 (8th Cir. 1995). In deciding voluntariness, courts are required to view the totality of the circumstances and consider both the conduct of law enforcement officers and the suspect's capacity to resist pressure. Id.

18 U.S.C. § 3501(a) provides that a confession is admissible in evidence only if it was voluntarily given. Section 3501(b) provides:

The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including: (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment; (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession; (3) whether or not such defendant was advised or knew that he was not required to make any statement and that such statement can be used against him; (4) whether or not such defendant had been advised prior to questioning of his right to assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession.
18 U.S.C. § 3501(b).

In determining whether a confession is voluntary, the Court should consider all circumstances, including the factors specifically listed in section 3501(b). United States v. Casal, 915 F.2d 1225, 1228 (8th Cir. 1990). In viewing the totality of the circumstances, the Court must consider both the conduct of law enforcement officers and the suspect's capacity to resist pressure. Rhode Island v. Innis, 446 U.S. 291, 301 (1980) ; Kilgore, 58 F.3d at 353. The totality of the circumstances is determined by the "characteristics of the accused and the details of the interrogation." Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).

Walden voluntarily waived his Miranda rights. Walden stated that he was fifty-two years old, tested positive for HIV but had no major health problems, had ulcers, and last used heroin two months previously. Although it was late when he was questioned, he did not appear to be tired. The tone of Nebraska State Patrol Investigator Lyon remained pleasant, courteous and professional. Near the end of the session, when Lyon told Walden if he wanted to cooperate he would have to do so then, Lyon's tone of voice was raised, yet not inappropriately loud or at all threatening. In completing the rights advisory form, Walden himself initialed each right on the form. When Walden said he wanted an attorney, the questioning ended.

Walden specifically argues that he was promised leniency, which caused him to waive his rights and make a statement. However, the tape clearly shows that when Lyon explained that probation or dismissal of charges were possibilities, Lyon also specifically stated: "I can't promise you anything." Therefore, the Court finds that Walden was not promised leniency.

For these reasons, the Court finds that Walden voluntarily waived his rights and that his statements were voluntary.


For the reasons discussed, the Court finds that the Defendants' Motions to Suppress should be denied.


1. The Magistrate Judge's Report and Recommendation (Filing No. 34) is adopted, with the factual findings modified herein; and

2. The following Motions are denied: to Suppress Evidence, filed by the Defendant, Larry A. Walden, Sr. (Filing No. 21); to Suppress Statement, filed by the Defendant Walden (Filing No. 22); and to Suppress Evidence, filed by the Defendant, Charles Brown (Filing No. 24).

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