U.S.
v.
Williams

United States District Court, D. MinnesotaFeb 11, 2010
690 F. Supp. 2d 829 (D. Minn. 2010)

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Criminal No. 09-298 (MJD/FLN).

February 11, 2010

Steven L. Schleicher and Jeffrey M. Bryan, United States Attorney's Office, for Plaintiff.

Thomas G. Dunnwald, Dunnwald Peterson PA, for Defendant Timothy Williams.

William G. Selman, III, Selman Law Office, for Defendant Jessie Danielle Capers.



MEMORANDUM OF LAW ORDER


I. INTRODUCTION

The above-entitled matter comes before the Court upon the Report and Recommendation of United States Magistrate Judge Franklin L. Noel dated February 1, 2010. [Docket Nos. 504 and 505]

Defendant Jessie Danielle Capers objects to Magistrate Judge Noel's recommendation to deny her Motion to Suppress Evidence from Search and Seizure [Docket No. 353] and to deny, in part, her Motion to Suppress Statements, Admissions and Answers [Docket No. 352].

Defendant Timothy Williams objects to Magistrate Judge Noel's recommendation to deny Williams' Motion for Suppression of Search and Seizure Evidence [Docket No. 285] and to deny Williams' Motion for Translation or Suppression of Communications [Docket No. 406]. Williams has withdrawn his request for an evidentiary hearing. The Court conducted a status conference on this case on February 10, 2010, and there were no outstanding issues preventing the Court from ruling on the parties' objections to the Report and Recommendation.

Pursuant to statute, the Court has conducted a de novo review of the record, including the transcript of the January 7, 2010, hearing and the exhibits submitted in conjunction with that hearing. 28 U.S.C. § 636(b)(1); Local Rule 72.2(b).

II. FACTUAL BACKGROUND

The Court adopts the Findings of Fact in the Report and Recommendation with the following modifications:

On page 6, the first sentence in the first paragraph is modified to read: "At the time of the stop, Officer Greene directed Trooper Schneider `not to let [Defendants] go,' and testified that the trooper `continued his search farther under my direction.'"

On page 6, the first paragraph in section B(1)(a), the second to the last sentence is modified to read: "Trooper Schneider testified: `I was to tell them a legitimate reason for the stop,' and `if a reason could not have been found, yes, essentially, the vehicle was going to be stopped.'"

On page 8, footnote 7, the quotation marks are deleted from around the term "pinpoints the area of the smell."

On page 10, the first line states that "the first time around, the dog hesitates only slightly, if at all, at the passenger door before continuing." This passage is modified to state that "the first time around, the dog hesitates at the passenger door before continuing."

On page 12, the first sentence in the first full paragraph is modified to read as follows:

During Defendant Capers' interview, Officer Freichels asks: "What were you guys doing? Where were you coming from?" to which Defendant Capers responds: "I'm done answering questions, I'm sorry, goodbye." Officer Freichels responds, "You're done?" Capers responds, "Yes," and, without pause, continues to speak, uninterrupted, explaining her situation and saying that she "didn't do anything."

III. WILLIAMS' MOTION FOR TRANSLATION OR SUPPRESSION OF COMMUNICATIONS

Williams objects to the Magistrate Judge's recommendation that Williams' motion to suppress the wiretap evidence be denied. The Court adopts the Report and Recommendation's analysis of this issue. Williams provides no specific reason that suppression might be warranted. Additionally, his objections regarding obtaining translations from the Government are moot. The Government has already provided or been ordered to provide the relevant rough translations, the wiretaps, and the full translations of the wiretaps that the Government will use at trial.

IV. OCTOBER 16, 2009, VEHICLE STOP AND SEARCH

The Court adopts the Report and Recommendation's discussion of the October 16 use of the drug sniffing dog and subsequent vehicle search, found in section II(A) of the Report and Recommendation. The Court further addresses the objections raised by Defendants.

A. Schneider's Use of His Firearm During the Stop

Williams objects that the Conclusions of Law portion of the Report and Recommendation did not address the fact that Schneider drew his firearm on Williams during the stop. There is no indication that Schneider's act of drawing the gun on Williams is relevant to the pending motions. His reasonable response to Williams' movement in the car appearing to place something under or retrieve something from under the seat, which is clearly visible on the video, had no effect on the legality of the stop, seizure, or search of Defendants and the car. Additionally, there is no dispute that Williams was in custody at that point.

B. Whether Bandit Alerted

Capers asserts that, based on the video of the traffic stop, Bandit did not alert at the front passenger side door. Based on the Court's own viewing of the video and its review of the testimony in this case, the Court concludes that Bandit did alert.

C. Legality of the Traffic Stop and the Length of the Seizure

Capers argues that there was insufficient evidence to justify the traffic stop. She further argues that Schneider exceeded the scope of the investigatory traffic stop based on the driving violations when he employed Bandit to sniff the vehicle. Williams also objects that the Report and Recommendation did not address the extended stop of the vehicle and seizure of Defendants before the dog was let out.

At a minimum, Schneider had probable cause to conduct the traffic stop because he witnessed Capers speeding and driving without headlights.

When a traffic stop is lawful at its inception and otherwise executed in a reasonable manner, a dog sniff conducted during the stop does not infringe on a constitutionally protected privacy interest. A traffic stop can become unlawful, however, if it is prolonged beyond the time reasonably required to complete its purpose.
United States v. Olivera-Mendez, 484 F.3d 505, 509 (8th Cir. 2007) (citations omitted). Asking several questions about whether the defendant is carrying narcotics, although unrelated to the driving violations, does not unreasonably prolong the time of a traffic stop. Id. at 511. Therefore, Schneider's questions about drugs did not unreasonably prolong the traffic stop.

Additionally, Schneider's use of the drug dog a few minutes after issuing the warning was a de minimis extension of the traffic stop that did not violate the Fourth Amendment. See United States v. Suitt, 569 F.3d 867, 873 (8th Cir. 2009) (noting that the Eighth Circuit has "repeatedly upheld dog sniffs that were conducted within a few minutes after a traffic stop ended").

Although the traffic violations that Schneider witnessed were sufficient to sustain the stop and seizure until Bandit alerted and clearly established probable cause to search the vehicle, there is additional evidence to support the stop, seizure, and search. Although Schneider conducted the stop, ultimately, it was Greene who ordered Schneider to stop Capers' vehicle. Greene had a reasonable and articulable suspicion that the vehicle was carrying contraband based on the wiretap investigation; the telephone calls between Enrique Garcia and Jasmine Hall and between Garcia and Sergio Lozada; the surveillance of Lozada driving from the stash house to Garcia's apartment; the surveillance of Capers' vehicle appearing at Garcia's apartment after Hall indicated to Garcia that his "cousin" would be arriving to pick up the "nine;" the fact that Capers' vehicle had been recognized by law enforcement as the vehicle involved in the September transaction between Hall and Garcia; the fact that the occupants of the vehicle had appearances consistent with the occupants seen during the September 8 event and consistent with Garcia's indication that more than one person would pick up the "nine" and that they would be African-American; and surveillance of Williams' meeting with Garcia.

Greene's reasonable articulable suspicion can be imputed to Schneider under the collective knowledge theory because Schneider acted at Greene's instruction and, as heard in the video and explained in the testimony, was in communication with Greene's team throughout the stop and search, relaying information and receiving direction.

Where officers work together on an investigation, we have used the so-called "collective knowledge" theory, to impute the knowledge of one officer to other officers to uphold an otherwise invalid search or seizure. Under this rationale, the validity of a search may be based on the collective knowledge of all of the law enforcement officers involved in an investigation if . . . some degree of communication exists between them. The requirement that there be a degree of communication serves to distinguish between officers functioning as a "search team," and officers acting as independent actors who merely happen to be investigating the same subject.
United States v. Gillette, 245 F.3d 1032, 1034 (8th Cir. 2001) (citations omitted). See also United States v. Banks, 514 F.3d 769, 776 (8th Cir. 2008).

In addition to the collective knowledge imputed from Greene, during the stop, Schneider observed Williams moving in the car as if he were retrieving or hiding something under the seat while Schneider questioned Capers, which lent additional reasonable articulable suspicion to extend the stop until the drug dog was brought to sniff the vehicle.

D. Records Related to Bandit's Reliability

Williams next objects that although he has received Bandit's "Certificate of Certification," he did not receive the underlying test records for Bandit upon which the certification is based. Nor has he received records of Bandit's search history with the State Patrol. In the January 25 Order, the Magistrate Judge granted Williams' motion for discovery of these records. [Docket No. 496] The Government indicates that it has requested these records but not yet received them. The Government is ordered to provide the responsive documents at least one week before trial. If the documents reveal material information regarding Bandit's reliability, Williams may renew his motion for suppression on the basis of that new evidence.

V. STATEMENTS

A. Williams' Statements

Neither Williams nor the Government object to the Report and Recommendation with regard to suppression of Williams' statements.

B. Capers' Statements

Capers objects to the Report and Recommendation's conclusion that her post- Miranda October 16, 2009 statements to Officer Freichels should not be suppressed. Specifically, she objects that, during the October 16 interrogation, she unequivocally invoked her right to silence, but Freichels continued the questioning.

The Court has reviewed the audio tape of the October 16 interrogation and adopts the Magistrate Judge's conclusion. Officer Freichels clearly reads Capers' Miranda rights. She indicates that she understands each right and then answers his questions. Partway through the interrogation, at approximately 5:20 on the CD, Capers states, "I'm done answering questions, I'm sorry, goodbye." Officer Freichels responds, "You're done?" Capers responds, "Yes," but, without pause, quickly launches into a monologue explaining her situation and claiming "I didn't do anything." Her desire to remain silent was not clear, consistent, or unequivocal. See United States v. Ferrer-Montoya, 483 F.3d 565, 569 (8th Cir. 2007) ("A suspect invokes his right to remain silent by making a clear, consistent expression of a desire to remain silent. Indirect, ambiguous, and equivocal statements or assertions of an intent to exercise the right to remain silent are not enough to invoke that right for the purposes of Miranda.") (citations omitted).

IT IS HEREBY ORDERED that:

1. The Court ADOPTS the Report and Recommendation of United States Magistrate Franklin L. Noel dated February 1, 2010 [Docket Nos. 504 and 505] with the modifications set forth above.
2. Defendant Williams' Motion for Disclosure of Any Legal or Illegal Electronic Surveillance and Suppression [Docket No. 283] is DENIED to the extent Defendant Williams seeks to suppress surveillance.
3. Defendant Williams' Motion for Suppression of Search and Seizure Evidence [Docket No. 285] is DENIED.
4. Defendant Williams' Motion to Suppress Statements [Docket No. 286] is GRANTED to the extent Defendant Williams seeks to suppress any pre- Miranda statements made to law enforcement during the traffic stop on October 16, 2009 as well as any statements made after he invoked his right to counsel on October 21, 2009. In all other respects, the motion is DENIED.
5. Defendant Williams' Motion for Translation or Suppression of Communications [Docket No. 406] is DENIED to the extent Defendant Williams seeks to suppress communications.
6. Defendant Capers' Motion to Suppress Statements, Admissions and Answers [Docket No. 352] is GRANTED to the extent Defendant Capers seeks to suppress any pre- Miranda statements made to law enforcement during the traffic stop on October 16, 2009. In all other respects, the motion is DENIED.
7. Defendant Capers' Motion to Suppress Evidence Obtained as a Result of Search and Seizure [Docket No. 353] is DENIED.
8. The Government shall provide the canine records to Defendant Williams at least one week before the start of trial. If the records contain material evidence regarding Bandit's reliability, Williams may renew his motion to suppress based on that new evidence.

REPORT AND RECOMMENDATION

THIS MATTER came before the undersigned United States Magistrate Judge on January 7, 2010, on Defendant Williams' Motion for Disclosure of Any Legal or Illegal Electronic Surveillance and Suppression [# 283], Motion for Suppression of Search and Seizure Evidence [# 285], Motion to Suppress Statements [# 286], Motion for Translation or Suppression of Communications [# 406], and Defendant Capers' Motion to Suppress Statements, Admissions and Answers [# 352], and Motion to Suppress Evidence Obtained as a Result of Search and Seizure [# 353]. The Court received testimony from Troy Greene, Christopher Hage, Christian Freichels, and Scott Schneider, and the Government submitted exhibits into evidence during the course of the hearing. The parties have since submitted supplemental briefs on the issues before the Court. (Doc. Nos. 478, 480 and 488.)

The matter was referred to the undersigned for Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. For the reasons which follow, this Court recommends Defendants' suppression motions be GRANTED, in part, and DENIED, in part.

I. FINDINGS OF FACT

Timothy Williams and Jessie Danielle Capers ("Defendants") have been indicted and charged with one count of Conspiracy to Distribute, and Possess with Intent to Distribute, 5 kilograms of cocaine or more and 50 grams of methamphetamine or more between January 2008 and October 2009, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. (Doc. No. 1, Indictment.)

A. Testimony of Task Force Officer Troy Greene

DEA Task Force Officer Troy Greene testified that he was familiar with Defendants pursuant to an approximately 60-day long, wiretap investigation that started in or about the summer of 2009. During the investigation, Officer Greene determined that Enrique Garcia ("Garcia") was the leader of a narcotics operation, which dealt mostly in the distribution of cocaine. Officer Greene testified that Garcia would receive phone calls from customers placing drug orders and would then direct Sergio Lozada ("Lozada"), also known as "Jimmy the Driver," to pick up the drugs from a stash location and deliver them to his clients. During the investigation, officers obtained wiretap authorization for multiple telephones, including target phones 3 and 4, used by Garcia.

Officer Greene testified that neither Defendant Capers' nor Defendant Williams' phones were wiretapped during the course of the investigation. He further testified that Defendant Capers' voice did not appear on any wiretap recordings during the investigation, however, the record is unclear as to whether Defendant Williams' voice was recorded pursuant to wiretaps.

1. September 8, 2009

Officer Greene testified that, on September 8, 2009, law enforcement intercepted a phone call on target phone 3 between Garcia and Jasmine Hall ("Hall"). At 2:35 P.M., officers overheard an English language call during which Hall indicated he was waiting on "his cousin" to conduct a transaction later in the day. Hall indicated that he expected a call from "his cousin" at approximately 8 P.M. that night.

Officer Greene testified that he was familiar with the usage of the term "cousin" as not only one's blood relative but sometimes one's friend or "guy." In this case, he was not able to determine the intended meaning of the term.

Officer Greene testified that surveillance teams then went to Hall's address "on Charles" and to the known stash house location on Holly Street in Saint Paul Park. Subsequently, officers observed Hall arrive at the Charles address in a Ford Expedition, a vehicle law enforcement knew him to drive, accompanied by two other males. Shortly thereafter, surveillance observed Hall leave the Charles address. Law enforcement followed the vehicle to a park in West Saint Paul, where a meeting took place between Hall and an occupant of a white Cavalier, driven by a female. A surveillance team watched a bald, black male with glasses and facial hair exit the Cavalier and meet with Hall at the park, while the driver remained in the vehicle. Officer Greene testified that the meeting took place between 7:47 P.M. and 8:08 P.M., after which Hall traveled to another apartment complex in Saint Paul. Officer Greene, however, was not a member of the surveillance team on that date.

Law enforcement recorded the Minnesota license plate number of the white Cavalier and determined that the registered owner of the vehicle was Defendant Capers.

2. October 16, 2009

Beginning at about 3:03 P.M. on October 16, 2009, law enforcement intercepted a series of calls between Garcia and Hall on target phone 4, during which Hall and Garcia coordinated, in English, a meeting between Hall's "cousin" and Garcia for the purpose of purchasing "nine," which Officer Greene testified he believed to mean nine ounces of cocaine. At 3:27 P.M., Garcia called Lozada and instructed him, in Spanish, to "come to the house, dude, get the nine and come over. The black guys are on their way over here." The call was translated into English by Spanish-speaking interpreters.

At 3:30 P.M., surveillance officers saw Lozada leave his apartment complex driving a black Toyota pickup and arrive at the stash house on Holly Street. At 3:41 P.M., Garcia called Hall on target phone 4 and asked Hall if Hall's "cousin" was on his way, to which Hall responded that he was. Officer Greene testified that, about 4 minutes later, Garcia received a call from Hall, who said that his "cousin" was pulling up, and Garcia stated that he was "by the balcony." At 3:50 P.M., Garcia received a call on target phone 4 from Lozada, who indicated he was on his way. Then, at 4:05 P.M., surveillance observed Lozada leave the stash house on Holly Street in the black pick up. Meanwhile, a separate surveillance team observed a white Cavalier, driven by a black female with a black male passenger, pull into a parking spot at Garcia's apartment building at an address on "Upper 55th." At that time, Officer Fletcher reported to Officer Greene that he recognized the white Cavalier and its occupants from the meeting with Hall at the park, which occurred approximately one month prior. The white Cavalier remained in the parking spot for 20 to 25 minutes, during which the driver remained in the vehicle.

Officer Greene testified that "surveillance reported the male passenger exiting the vehicle and walking up to what would be the balcony area on the ground level." The male passenger and Garcia then met on the patio walk-out from the ground level apartment. Soon afterward, Lozada's vehicle pulled into the same lot and parked. Lozada then joined in the meeting between Garcia and the male passenger (later identified as Defendant Williams).

Officer Greene testified that he did not know what, if anything, the passenger carried with him as he approached the apartment. He also acknowledged that nothing in the report indicates that surveillance observed the passenger carrying anything when he left the apartment building and re-entered the white Cavalier. Officer Greene further explained that he was communicating with surveillance by radio throughout the event and not every communication between him and surveillance was included within his report.

It is unclear from the record whether any part of the meeting was conducted inside the apartment building or if it was limited to the outdoor exchange.

Officer Greene testified that the observed behavior was consistent with the passenger of the vehicle paying Garcia for the drugs, which would have been retrieved from the stash house by the driver, Lozada, and subsequently delivered to Defendant Williams before he placed them in the Cavalier. Officer Greene testified that he was not told, however, that surveillance had visually confirmed a hand-to-hand transfer of drugs.

Based on all of the phone calls, including the discussion of "nine," the observations of surveillance, the meeting between Defendant Williams, Garcia and Lozada, and the time frames within which the events occurred, "there was no question in [Officer Greene's] mind that a drug transaction for nine ounces of cocaine at that time had occurred."

Officer Greene testified that he believed the translations and information he received from surveillance officers were reliable.

Once the vehicle pulled away, surveillance was able to confirm the license plate on the white Cavalier as that registered to Defendant Capers. Officer Greene then provided Trooper Schneider with the description and license plate of the Cavalier and instructed him to stop the vehicle. He further testified that Defendants' "identities were not known until the traffic stop."

At the time of the stop, Officer Greene directed Trooper Schneider "not to let [Defendants] go," and testified that the trooper "continued his search under my direction." Ultimately, nine ounces of cocaine were found under dash compartment in the front passenger area of the Cavalier, which Officer Greene testified would be about the size of a softball.

B. October 16, 2009 Traffic Stop 1. Testimony of Trooper Scott Schneider a. Circumstances of the Stop

On October 16, 2009, Minnesota State Trooper Scott Schneider received a call from the DEA requesting that he be available to conduct a traffic stop in the City of Inver Grove Heights on a "white, Chevrolet Cavalier" with a specific license plate number. He was informed that the Cavalier would be arriving at a residence in Inver Grove Heights and would be leaving that location "with a large amount of cocaine." He testified that he was then asked [by the DEA] to conduct a traffic stop on the vehicle "and try and make it look as routine as possible so the occupants of the vehicle would not suspect the ongoing investigation." Trooper Schneider testified: "I was to tell them a legitimate reason for the stop," and "if a reason could not have been found, yes, the vehicle was going to be stopped." He acknowledged that he intended to detain Defendants at the time of the stop.

Additionally, when asked on cross-examination: "They [Defendants] were not free to leave?," Trooper Schneider responded: "Correct."

Trooper Schneider first saw the white Cavalier shortly after 4 P.M. and proceeded to follow it for a period of time. He observed that "the vehicle's wipers had been intermittently activated and there was a slight mist . . . and rain, precipitation, however, the vehicle's headlights were not activated," which constitutes a violation of Minnesota statute. He also "obtained a speed reading of 62 miles per hour" on the vehicle in a 55 mile per hour zone on Highway 52.

At 4:22 P.M., Trooper Schneider activated his emergency lights, which triggered the squad car video camera ( see Gov't Ex. 1), and proceeded to stop the vehicle. He identified the female driver by her Minnesota driver's license as Defendant Capers and the male passenger by name and date of birth as Defendant Williams. Trooper Schneider asked Defendant Capers to exit the vehicle, and while speaking with Defendant Capers outside the vehicle, he saw "the male passenger moving frantically from side to side and ducking down as if he was trying to hide something." Trooper Schneider testified that he approached the passenger door, opened the door, asked the passenger what he was hiding and became concerned when Defendant Williams' "hands went inside his jacket pockets." Although none of the agents involved in the investigation indicated that Defendants were carrying weapons, Trooper Schneider testified that he was concerned that Defendant Williams was trying to retrieve a gun or that he was "going for something." He then drew his firearm and ordered Defendant Williams out of the vehicle. Pursuant to a pat down search, Trooper Schneider did not recover any weapons, but found three or four cell phones in Defendant Williams' jacket and "a large bundle of currency in his pants pocket."

Trooper Schneider testified that he explained the reason for the stop to Defendant Capers, at which time she admitted to "speeding and going 60 miles per hour in a 55 mile per hour zone." He further testified that "she appeared abnormally nervous for being stopped for traffic violations," broke eye contact, and stuttered when she spoke. She told Trooper Schneider that she was coming from a female friend's house, but "she did not know how long she had known the passenger."

She then relayed that her proof of insurance was in the vehicle's center console, which Trooper Schneider testified was directly next to the area Defendant Williams was seated when he made frantic movements. He explained his concern for her "going in the area that I had seen Mr. Williams reaching, and asked her if it would be OK if I would just take a look in the center console before she removed her proof of insurance." She permitted him to do so. Trooper Schneider then asked Defendant Capers if there were narcotics in the vehicle, and he testified that, when asked about cocaine specifically, she broke eye contact. He testified that he asked Defendant Williams the same questions, with the same response.

He then asked for consent to search the vehicle. Defendant Williams indicated that he "didn't care," but stated that the car was not his. Trooper Schneider testified that, when he asked Defendant Capers for consent to search, "[s]he made it clear that she didn't want me using my narcotics dog or going in the vehicle."

b. Narcotics Dog Sniff and Vehicle Search

Trooper Schneider testified that his dog, "Bandit," is trained and certified in narcotics detection. During the stop in this case, he used Bandit to conduct a sniff on the vehicle. Bandit then alerted to the "odor of controlled substance on the exterior of the vehicle." Trooper Schneider described that, while at the front passenger door, Bandit stopped following him, "took deep breaths and intensely stared at the window." Trooper Schneider believed the dog was alerting to odor of controlled substance. He testified that the dog then jumped through the open passenger window without a command to do so. Bandit then sniffed the dashboard area and went down underneath the glove box, in an effort to reach the source of the odor.

Trooper Schneider testified that the terms "alert" and "indicate" have different meanings within the context of a narcotics dog sniff. The behavior of a dog when he "first comes into contact with the odor" — in this case, where the dog stopped following him and stayed at the door as the trooper continued to walk — is considered an "alert." Once a dog "pinpoints the area of the smell" and tries to get at its source — in this case, when the dog was inside the vehicle and trying to get under the dashboard, biting and barking — is considered an "indication."

Trooper Schneider subsequently conducted a search of the passenger compartment of the vehicle. He recovered two tablets of ecstasy from under the gear shifter near the center console as well as a softball-sized amount of cocaine "almost in brick form," packaged in a plastic grocery store bag. The cocaine was retrieved from the area under the glove box, "up in the dashboard," which he later determined weighed about 9.5 ounces.

Trooper Schneider reported to DEA investigators by radio, who instructed him to arrest Defendants and transport them to the Ramsey County Jail. He testified that he took the contraband with him and told Defendants they were under arrest for the ecstasy found in the vehicle. He further testified that he did not provide either Defendant with a Miranda advisory. Trooper Schneider transported Defendant Capers to the jail, while Defendant Williams traveled in a different vehicle.

2. Squad Car Video

For the most part, the squad car video is consistent with the testimony of Trooper Schneider. ( See Gov't Ex. 1.) Once outside the vehicle, Defendants are separated by Trooper Schneider and remain separated throughout the duration of the stop. See id. It is unclear from the video if Defendants averted eye contact when asked about cocaine, however, they do not appear to change their behavior in any way during this line of questioning. See id.

When asked by Defendants why he wants to search the vehicle, Trooper Schneider responds "because of my observations." Id. Once he begins the dog sniff, the video shows Trooper Schneider circling the white Cavalier counterclockwise, beginning on the passenger side of the vehicle. Id. As he moves, he makes an up and down hand motion, apparently presenting areas of the vehicle to the dog. Id. At the time of the dog sniff, the vehicle's doors are closed, however, the front passenger window (and likely the driver's window) is open. Id. It appears from the video that, the first time around, the dog hesitates only slightly, if at all, at the passenger door before continuing. Id. The second time around, however, after a similar series of hand motions by Trooper Schneider, the dog jumps up and through the open passenger window, into the passenger compartment of the vehicle. Id. Although the dog's subsequent actions are not visible on the video, the dog is heard barking from within the car. Id.

Once the dog is removed from the vehicle, Trooper Schneider asks Defendant Williams: "What's on your side of the vehicle? Somebody smoke some weed in there or why's my dog excited?" Id. Defendant Williams states that Defendant Capers "had some weed earlier" and asks her, from a distance, where is "that little blunt?" Id. She tells the trooper it may be in the ashtray. Id.

Trooper Schneider directs Defendants to sit in what appear to be separate squad vehicles and tells Defendant Williams that it's starting to rain, and he doesn't want him to get wet. Id. He then begins his search of the passenger compartment of the Cavalier. Id. He first finds "two tabs of X" and then appears to find the cocaine. Id. Another trooper is visible on the scene, however, he does not participate in the search or questioning of Defendants. Id. Trooper Schneider is then heard to say he "found the brick in the dash" and can be seen putting something in his back pocket. Id. Upon exiting the vehicle, it appears that Trooper Schneider turns off his microphone. Id. He then tells Defendant Capers that he found "a couple tabs of ecstasy," tells her she's under arrest, and transports her from the scene in his vehicle. Id.

Trooper Schneider testified, however, that he does not recall if he turned off his microphone at any point.

C. October 16, 2009 Interviews 1. Testimony of Officer Christian Freichels

DEA Task Force Officer Christian Freichels testified that he interviewed Defendants on October 16, 2009 at the Ramsey County Jail. He issued a Miranda warning to both Defendants, who indicated that they understood their rights and agreed to speak with Officer Freichels. Both statements were recorded. ( See Gov't Exs. 3 and 4.)

Officers Freichels testified that Defendant Williams did not show signs of intoxication and did not appear to be impaired or confused. He further testified that Defendant Williams appeared to be a person of average intelligence and that he had no reason to question his competence.

Officer Freichels testified that he was confident Defendant Capers understood the questions asked of her, despite her emotional state. He testified that, although she stated that she had "had some problems" at the jail, he did not see any physical evidence that she had been assaulted.

After the interviews, both Defendants were released pending the investigation. To Officer Freichels' knowledge, neither Defendant was aware that cocaine had been recovered from the vehicle. Officer Freichels discussed the ecstasy found in the car, but not the cocaine, and neither Defendant brought up the existence of the cocaine during the interviews.

2. Interview Recordings

On the recordings, Officer Freichels asks each Defendant a series of biographical questions (including name, date of birth, employment status and education history) and then proceeds to recite their rights. (Gov't Exs. 3 and 4.). After the reading of each right, Officer Freichels indicates that Defendants "don't need to initial, but just tell me if you understand each of these rights." Both Defendants acknowledge, with a "yes," that they understand each of their rights. After the rights advisories in both interviews, he advises Defendants that the decision to "talk" is theirs to make.

Officer Freichels states to Defendant Capers: "I'll tell you why I'm here, and it's up to you if you want to talk to me about it." (Gov't Ex. 3). He states to Defendant Williams: "If you want to talk about it you can, it's up to you." (Gov't Ex. 4).

During Defendant Capers' interview, Officer Freichels asks: "What were you guys doing? Where were you coming from?" to which Defendant Capers responds: "I'm done answering questions I'm sorry bye," but she continues to speak, uninterrupted, saying that she "didn't do anything." Officer Freichels then asks Defendant Capers to "tell me what happened here." Defendant Capers relates that she was at a friend's house and later admits to smoking marijuana and using ecstasy in the past. Defendant Capers appears to be agitated and emotional throughout the interview.

D. Testimony of Agent Christopher Hage: October 21, 2009 Interviews

DEA Special Agent Christopher Hage testified that he interviewed both Defendants at the U.S. Marshal's Office in Saint Paul on October 21, 2009 and issued Miranda warnings to each, consistent with that of Government Exhibit 2. ( See Gov't Ex. 2.) The interviews were not audio or video recorded. Agent Hage testified that he identified himself as law enforcement to Defendant Williams, who invoked his right to counsel after hearing the Miranda warning. Defendant Capers, however, agreed to speak with Agent Hage, despite the Miranda warning.

After identifying himself as a DEA Agent to Defendant Capers, he filled out DEA form 202, which is a biographical information form including name and date of birth, while Task Force Officer Potter obtained a digital voice exemplar. Agent Hage testified that Capers' voice was recorded briefly during biographical questioning and then the recording was turned off. He further testified that he did not recall if he read the Miranda warning before or after the biographical questioning, but that it is "usually my practice to read it after the exemplar because the DEA 202 is not an interrogation form, it's just biographical."

Agent Hage testified that the exemplar consisted of the responses to the DEA 202 biographical form, including "first name, last name, date of birth, etc." He stated that it is general practice for the agent to fill out the form as the questions are answered. The exemplar was used to compare Defendant Capers' voice to other voices recorded in the investigation.

Agent Hage testified that Defendant Capers appeared to understand the questions asked of her and did not appear intoxicated, despite the fact that she was emotional. She asked sensible, logical questions and responded appropriately to Agent Hage's inquiries. According to Agent Hage, the interview lasted approximately 20 minutes.

II. CONCLUSIONS OF LAW

A. The October 16, 2009 Drug Dog Sniff and Subsequent Vehicle Search Were Valid.

The automobile exception allows officers to conduct a warrantless search of a vehicle when they have probable cause to believe it contains contraband or evidence of criminal activity. See e.g. California v. Carney, 471 U.S. 386, 390, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). Probable cause exists where there is a "fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Determining whether probable cause exists at the time of the search is a "commonsense, practical question" to be judged from the "totality-ofthe-circumstances." Id. at 230, 103 S.Ct. 2317. "Probable cause does not require evidence sufficient to support a conviction, nor even evidence demonstrating that it is more likely than not that the suspect committed a crime." United States v. Donnelly, 475 F.3d 946, 954 (8th Cir. 2007).

The use of a "drug-sniffing dog on the exterior of a vehicle during a valid traffic stop does not infringe upon any Fourth Amendment rights." United States v. Williams, 429 F.3d 767, 772 (8th Cir. 2005), citing Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). Thus, a dog sniff of the exterior of a vehicle does not constitute a search for Fourth Amendment purposes and, therefore, requires neither probable cause nor reasonable suspicion. See e.g. Williams, 429 F.3d at 772; United States v. Gregory, 302 F.3d 805, 810 (8th Cir. 2002). A dog sniff by a reliable dog, which results in an alert on a car, however, gives an officer probable cause to believe that there are drugs present, standing alone. Donnelly, 475 F.3d at 955, citing United States v. Sundby, 186 F.3d 873, 875-76 (8th Cir. 1999) (holding that an affidavit stating that a dog has been trained and certified to detect drugs is sufficient to establish a dog's reliability).

Although in the case at hand, Defendant Capers did not consent to a search of her vehicle, her consent was not necessary for the dog sniff conducted on the exterior of the Cavalier. The dog, trained and certified in narcotics detection, then alerted to the passenger door of the vehicle, which created independent probable cause to conduct a search for controlled substances.

Moreover, the fact that the passenger window of the vehicle was open, creating an opportunity for the dog to breach the interior of the vehicle, did not render the search unlawful. See United States v. Lyons, 486 F.3d 367, 373 (8th Cir. 2007) (holding that a canine search of a vehicle was not rendered illegal, under the Fourth Amendment, by the fact that the vehicle's windows were open where the passenger window was opened by the passenger without any order or request from the trooper, the trooper did not order that the windows remain open, and the canine's handler did not direct the canine to stick his head through the window). But see United States v. Winningham, 140 F.3d 1328, 1329-31 (10th Cir. 1998) (holding a search illegal where officers opened the door of a suspect's van, given that an officer may not open a vehicle to create the opportunity for a drug dog to go where the officer himself cannot go, although a suspect may). The squad car video confirms that Trooper Schneider did not order the passenger window to remain open. ( See Gov't Ex. 1.)

Although it is unclear from the video whether the dog entered the vehicle pursuant to a non-verbal command, assuming, without deciding, that Trooper Schneider directed the dog through the open passenger window, any such command did not invalidate the subsequent search. This Court finds that, as the open window was the strongest source of the odor, there is little doubt that the dog would have ultimately detected the narcotics, "even if he had been reined back and held outside the plane of the window track." Lyons, 486 F.3d at 374 (upholding a district court's finding that the dog would have inevitably smelled the odor of drugs).

Trooper Schneider had independent probable cause to search the vehicle for narcotics once the dog alerted to the odor in the passenger compartment. Evidence seized pursuant to the search of the vehicle on October 16, 2009 is, therefore, admissible.

B. Statements

The next issue before the Court is whether Defendants' statements to law enforcement on October 16, 2009 and October 21, 2009 should be suppressed.

Before any evidence obtained as a result of a custodial interrogation may be used against a defendant at trial, the Fifth Amendment requires that a defendant in custody and subject to interrogation by law enforcement be advised of his constitutional rights and that he make a knowing, intelligent and voluntary waiver of those rights. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Before questioning begins, a suspect in custody must be informed of the following: (1) that he has the right to remain silent; (2) that his statements may be used against him in a court of law; (3) that he has the right to an attorney; and (4) that if he cannot afford an attorney, one will be appointed. Id. at 444, 469-70, 478-79, 86 S.Ct. 1602. Law enforcement officials must use either this formulation of the warnings or "other procedures [that] are at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it." Id. at 467, 86 S.Ct. 1602. After the warnings are given, if the suspect indicates that he wishes to assert these rights, the interrogation must stop. Id. at 473-74, 86 S.Ct. 1602. Statements elicited from a suspect in violation of Miranda are inadmissible. Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994).

Once advised of his Miranda rights, a suspect's waiver of his Fifth Amendment privilege against self-incrimination is only valid if it is voluntarily, knowingly, and intelligently made. Miranda, 384 at 444, 86 S.Ct. 1602; United States v. Syslo, 303 F.3d 860, 866 (8th Cir. 2002). A waiver is made knowingly if it is "made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). It is voluntary if it is "the product of a free and deliberate choice rather than intimidation, coercion, or deception." Id. It is the Government's burden to show by a preponderance of evidence that the suspect's waiver meets these standards. Miranda, 384 U.S. at 473, 86 S.Ct. 1602; Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

A court determines whether Miranda rights were knowingly and voluntarily waived under a totality of the circumstances test. Tippitt v. Lockhart, 859 F.2d 595, 598 (8th Cir. 1988). The court looks to such factors as the age and education level of the defendant, lack of advice as to constitutional rights, length of detention, "repeated and prolonged nature of questioning," and the use of physical punishment. Id.

1. October 16, 2009 Statements a. Pre- Miranda Traffic Stop Statements Must Be Suppressed.

Here, it is uncontested that Trooper Schneider did not recite the Miranda warning to Defendants at any time during his traffic stop on October 16, 2009. The question of admissibility, with respect to statements made during the traffic stop, therefore, turns on whether Defendants were in custody at that time.

The test for determining whether a roadside traffic stop amounts to a custodial interrogation subject to Miranda is whether the "traffic stop exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights." Berkemer v. McCarty, 468 U.S. 420, 437, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). "If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him `in custody' for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda." Id. at 440, 104 S.Ct. 3138. The relevant inquiry, therefore, "is how a reasonable man in the suspect's position would have understood his situation." Id. at 442, 104 S.Ct. 3138.

In the instant case, the stop, as conducted, was not an ordinary traffic stop. In fact, Trooper Schneider testified that the vehicle would have been stopped even if he could not find an independent, "legitimate reason" to pull the vehicle over. Trooper Schneider conceded that Defendants were detained from the time he initiated the stop. At no time were they free to leave.

Therefore, this Court finds that Defendants were in custody from the time Trooper Schneider pulled over the Cavalier and were thus entitled to a Miranda warning prior to any questioning from law enforcement. Because no such warning was administered at the time of the stop, all statements made by Defendants to Trooper Schneider on October 16, 2009 must be suppressed.

b. Recorded Interview Statements Made On October 16, 2009 Should Not Be Suppressed.

This Court finds that both Defendants knowingly and voluntarily waived their Miranda rights on October 16, 2009. ( See Gov't Exs. 3 and 4.) Consequently, all post- Miranda statements on that date are admissible.

Although Defendants did not sign waiver of rights forms after hearing the Miranda advisory, they both acknowledged that they understood each of their rights. Also, Officer Freichels testified that Defendants did not appear impaired in any way and appeared to understand the questions posed to them. Neither Defendant requested an attorney at any time during the interviews. Additionally, Defendant Williams never expressed discomfort or asked to stop the interview, and any discomfort expressed by Defendant Capers did not amount to an invocation of her right to silence.

i. Defendant Capers Did Not Invoke Her Right To Silence.

Defendant Capers contends that her statement and waiver were not knowing and voluntary given her emotional state at the time of questioning. She further argues that she invoked her right to silence during the interview.

A suspect invokes her right to remain silent by making "a clear, consistent expression of a desire to remain silent." United States v. Thompson, 866 F.2d 268, 272 (8th Cir. 1989). "Indirect, ambiguous, and equivocal statements or assertions of an intent to exercise the right to remain silent are not enough to invoke that right for the purposes of Miranda." United States v. Ferrer-Montoya, 483 F.3d 565, 569 (8th Cir. 2007), citing United States v. Johnson, 56 F.3d 947, 955 (8th Cir. 1995); see Mann v. Thalacker, 246 F.3d 1092, 1100 (8th Cir. 2001) ("Being evasive and reluctant to talk is different from invoking one's right to remain silent."). The question of whether a suspect invoked her right to remain silent is a factual determination for the district court. Ferrer-Montoya, 483 F.3d at 569.

Officer Freichels read Defendant Capers her Miranda rights, after which she indicated that she understood each right, and was initially receptive to talking about her arrest. (Gov't Ex. 3.) Although she did say: "I'm done answering questions I'm sorry bye," midway through the interview, this statement was part of a much longer, uninterrupted narrative. See id. In fact, immediately after expressing her desire to stop answering questions, Defendant Capers proceeded to proclaim her innocence and speak at length about her situation, unprovoked by Officer Freichels. See id. Therefore, she expressed, at most, an ambiguous and equivocal desire to remain silent, insufficient to "invoke that right for the purposes of Miranda." Ferrer-Montoya, 483 F.3d at 569.

In sum, this Court finds that Defendant Capers did not invoke her right to silence. Therefore, suppression of her statements to Officer Freichels on October 16, 2009 is not warranted.

ii. Biographical Statements Are Admissible.

"It is well-settled that routine biographical data is exempted from Miranda's coverage." United States v. Brown, 101 F.3d 1272, 1274 (8th Cir. 1996); see Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990). "A request for routine information necessary for basic identification purposes is not interrogation under Miranda, even if the information turns out to be incriminating." United States v. McLaughlin, 777 F.2d 388, 391-92 (8th Cir. 1985). If, however, the government agent "should reasonably be aware that the information sought, while merely for basic identification purposes in the usual case, is directly relevant to the substantive offense charged," the question will be subject to scrutiny. Id.; see Muniz, 496 U.S. at 602 n. 14, 110 S.Ct. 2638 (holding that, during booking procedures, government agents may not ask questions "that are designed to elicit incriminatory admissions"); United States v. Robinson, 441 F.Supp.2d 1029, 1043 (D.Minn. 2006); see also United States v. Scott, 270 F.3d 30, 44 (1st Cir. 2001) (determining that questions about age and residence were interrogation not fitting routine booking exception because officer knew answers would likely produce inculpatory information), cert. denied 535 U.S. 1007, 122 S.Ct. 1583, 152 L.Ed.2d 501 (2002); United States v. Henley, 984 F.2d 1040, 1042-43 (9th Cir. 1993) (holding that an officer asking whether a suspect owned a vehicle was interrogation when officer had reason to believe the vehicle was involved in illegal activity).

Because biographical questions were not designed to elicit incriminatory admissions in this case, the answers to all pre- Miranda biographical questioning on October 16, 2009 and October 21, 2009 are admissible.

2. October 21, 2009 Questioning

For the reasons set forth above, any pre- Miranda biographical statements made to law enforcement by Defendants on October 21, 2009 are admissible. Any statements made after Defendant Williams invoked his right to counsel, however, must be suppressed.

With respect to Defendant Capers' post- Miranda statements, this Court finds Agent Hage's testimony to be credible and finds that Defendant Capers knowingly and voluntarily waived her Miranda rights at the time of the interview. Defendant Capers has failed to raise any specific issues warranting suppression with respect to her interview with Agent Hage. ( See § C Below.) Therefore, Defendant Capers' statements to Agent Hage on October 21, 2009 are admissible.

C. Defendant Williams Has Not Met His Burden In Bringing His Additional Motions To Suppress.

Apart from the issues addressed above, Defendant Williams has additionally filed a Motion for Disclosure of Any Legal or Illegal Electronic Surveillance and Suppression [# 283] and a Motion for Translation or Suppression of Communications [# 406]. To the extent these motions raise discovery requests, the motions have been addressed in this Court's January 24, 2010 Order. (Doc. No. 496.) To the extent the motions seek suppression of surveillance and communications, this Court finds that Defendant Williams has not met his burden.

"It is well established that the burdens of production and persuasion generally rest upon the movant in a suppression hearing." See e.g. United States v. de la Fuente, 548 F.2d 528, 533 (5th Cir. 1977), cert. denied 431 U.S. 932, 97 S.Ct. 2640, 53 L.Ed.2d 249 (1977). Of course, where a defendant seeks to suppress evidence as the fruit of an illegal search, the ultimate burden of persuasion may shift to the Government "upon an initial showing of certain facts by the defendant." de la Fuente, 548 F.2d at 533. Even in circumstances in which the Government bears the ultimate burden of persuasion, however, "the defendant must first discharge his initial burden of producing some evidence on [sic] specific factual allegations sufficient to make a prima facie showing of illegality." Id. at 534; see e.g. Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939) ("The burden is, of course, on the accused in the first instance to prove to the trial court's satisfaction that wiretapping was unlawfully employed.")

Thus, despite the fact that the Government may have "the ultimate burden of persuasion to show that its evidence is untainted" once an illegal search has come to light, defendants seeking to suppress evidence must present "specific evidence demonstrating taint." Alderman v. United States, 394 U.S. 165, 183, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); see Carter v. United States, 729 F.2d 935, 940 (8th Cir. 1984) ("As a general rule, the burden of proof is on the defendant who seeks to suppress evidence, but on the government to justify a warrantless search.") (citations omitted); see also United States v. Edwards, 563 F.Supp.2d 977, 994 (D.Minn. 2008) ("At the end of the day, as the moving party, at a minimum it is defendant's burden to come forth with some evidence and argument to support his position that evidence, statements or a witness identification should be suppressed.").

Defendant has presented to this Court no such evidentiary support for his claim that suppression of wiretapping and communications is warranted. Had he done so, the ultimate burden of persuasion to show that its evidence is untainted would have shifted to the Government. See Alderman, 394 U.S. at 183, 89 S.Ct. 961.

Because the record is silent, the outcome of the suppression motions on these bases turns on the determination of the question of the parties' respective burdens. Here, Defendant Williams bears the initial burden to put forth some "specific evidence demonstrating taint," in this case, by presenting some evidentiary support for any argument that allegedly unlawful wiretapping or translation took place and, thus, requires suppression. See id. Defendant Williams has failed to make the necessary "initial showing," by affidavit, testimony or otherwise, that the wiretapping was unlawful. See de la Fuente, 548 F.2d at 534. Instead, he has only argued for its disclosure, including the discovery of translations. (Doc. No. 478, 6-7.) He has, therefore, failed to carry his burden and is consequently entitled to neither a suppression of the wiretap evidence nor an additional evidentiary hearing on the issue of suppression. See id.; United States v. Losing, 539 F.2d 1174, 1177-79 (8th Cir. 1976).

Because Defendant Williams has failed to meet his burden in bringing his motion to suppress surveillance and communications, this Court finds that suppression is not warranted.

III. RECOMMENDATION

Based upon all the files, records and proceedings herein, IT IS HEREBY RECOMMENDED that Defendants' Motions to Suppress be GRANTED, in part, and DENIED, in part, as follows:

1. Defendant Williams' Motion for Disclosure of Any Legal or Illegal Electronic Surveillance and Suppression [# 283] should be DENIED to the extent Defendant Williams seeks to suppress surveillance.
2. Defendant Williams' Motion for Suppression of Search and Seizure Evidence [# 285] should be DENIED.
3. Defendant Williams' Motion to Suppress Statements [# 286] should be GRANTED to the extent Defendant Williams seeks to suppress any pre- Miranda statements made to law enforcement during the traffic stop on October 16, 2009 as well as any statements made after he invoked his right to counsel on October 21, 2009. In all other respects, the motion should be DENIED.
4. Defendant Williams' Motion for Translation or Suppression of Communications [# 406] should be DENIED to the extent Defendant Williams seeks to suppress communications.
5. Defendant Capers' Motion to Suppress Statements, Admissions and Answers [# 352] should be GRANTED to the extent Defendant Capers seeks to suppress any pre- Miranda statements made to law enforcement during the traffic stop on October 16, 2009. In all other respects, the motion should be DENIED.
6. Defendant Capers' Motion to Suppress Evidence Obtained as a Result of Search and Seizure [# 353] should be DENIED.