559 F.Supp.2d 1016 (D.Neb. 2008), 4 08CR3001, United States v. Vargas-Miranda

Docket Nº4 08CR3001
Citation559 F.Supp.2d 1016
Party NameUnited States v. Vargas-Miranda
Case DateJune 03, 2008
CourtUnited States District Courts, 8th Circuit, District of Nebraska

Page 1016

559 F.Supp.2d 1016 (D.Neb. 2008)

UNITED STATES of America, Plaintiff,

v.

Rene Manuel VARGAS-MIRANDA, Santiago Lopez-Mendoza, Defendants.

No. 4:08CR3001.

United States District Court, D. Nebraska.

June 3, 2008

Page 1017

[Copyrighted Material Omitted]

Page 1018

John C. Vanderslice, Federal Public Defender's Office, James L. Beckmann, Lincoln, NE, Gregory C. Damman, Damman Law Firm, Seward, NE, Defendants.

Melissa R. Vincent, U.S. Attorney, Lincoln, NE, for Plaintiff.

Page 1019

MEMORANDUM AND ORDER

RICHARD G. KOPF, District Judge.

The defendants object to Judge Piester's report and recommendation that I deny their motions to suppress. After de novo review, I find that Judge Piester has fairly and accurately stated the facts and fairly and accurately applied the law. I will therefore deny the objections, adopt the report and recommendation, and deny the motions to suppress. Although I need not and will not address all the arguments raised by defense counsel because Judge Piester's report and recommendation fully addresses each of them, three additional comments are in order.

First, after carefully reviewing the transcript (Filing 40 ) and viewing and listening to the significant parts of the deputy sheriff's recording of the consent to search and the ensuing search (Filing 37, Ex. 1), I am persuaded that Magistrate Judge Piester's recitation of the facts is, with immaterial exceptions, correct.

Second, the driver of the car, and the person who produced the insurance card as proof of lawful possession, Vargas-Miranda, clearly gave voluntary consent to look for the drugs. To begin with, Vargas-Miranda explicitly confirmed that his exchange with the deputy sheriff was consensual. Then, when asked if the deputy sheriff could look for drugs, Vargas-Miranda responded by saying “Go ahead," followed by an affirmative nod of his head when the deputy sought to confirm the consent. In particular, I find the following recitation by Judge Piester to be a fair statement of the facts relevant to consent:

Deputy Sheriff Brown walked toward the back of the Dodge Magnum, met with Vargas-Miranda, and returned all the documents that had been produced. Deputy Sheriff Brown stated, “I appreciate you talking to me. I appreciate it. You understand it's consensual right? You talking to me?" Ex. 1, 1:49-2:01. Vargas-Miranda affirmed that he understood it was consensual. Approximately ten minutes had elapsed since the defendants entered the Speedee Mart parking lot.

Deputy Sheriff Brown then asked if Vargas-Miranda had any drugs, or any marijuana in the vehicle. Vargas-Miranda responded, “No" to both questions. When asked if he had any heroin, Vargas-Miranda laughed and stated he left it at home. He also denied possessing any cocaine. Deputy Sheriff Brown asked, “You care if I look and see?," simultaneously gesturing this request by pointing two fingers first toward his eyes and then at the Dodge Magnum. Vargas-Miranda responded, “Go ahead," but added “you don't got no right" because “I wasn't even driving." Deputy Sheriff Brown responded, “Well I'm asking you. I'm just asking you. I'm asking you. But like you said, it's all consensual. I'm just asking you." Ex. 1, 2:30-2:48. Vargas-Miranda, standing with his arms folded, nodded his head.

(Filing 41 at CM/ECF pp. 5-6.)

In my view, the statement “you don't got no right" because “I wasn't even driving" was not, in context, a withdrawal of the consent. Rather, as the deputy sheriff testified, a reasonable person would have concluded that Vargas-Miranda was simply asserting the he had not committed a traffic violation inasmuch as the car was parked. In contrast, the statement, fairly understood by a reasonable officer, meant: “Go ahead and look for drugs, even though you have no right to do so absent my consent because I have not committed a traffic violation." If there was any doubt about whether Vargas-Miranda intended to withdraw his consent, it evaporated when the deputy sheriff responded by saying,

Page 1020

“Well I'm asking you. I'm just asking you[,]" and Vargas-Miranda nodded his head and asserted no objection to the search.

Finally, applying Eighth Circuit precedent and realizing that no damage was done to the car and none of the defendants made a contemporaneous objection to the manner of the officer's examination, a search of a vehicle that took about 34 minutes from the time of the consent to the finding of the package of heroin (Ex. 1 at approximately 2:40 to approximately 36:38) did not exceed the consent to “look" for drugs even though the deputy sheriff used a dog to sniff for contraband, removed (and replaced) a few screws that appeared to be out of the ordinary, and removed a plastic piece over the center radio console after observing that the glove compartment was missing a rivet. See, e.g., United States v. Ferrer-Montoya, 483 F.3d 565, 568-569 (8th Cir.2007) (state trooper, with the assistance of a drug dog, did not exceed the defendant's consent to a search of his vehicle for drugs during a traffic stop when trooper removed screws from console panel and lifted panel to reveal hidden compartment; defendant placed no qualifications or limitations on his consent to search of his vehicle for drugs, officer noticed scarred screws on console panel during search, officer opened compartment in minimally intrusive manner by removing the screws, and did no damage to the vehicle, and at no time did defendant object or suggest that he wished to withdraw his consent to search).

IT IS ORDERED that:

1. Judge Piester's report and recommendation (Filing 41 ) is adopted and the objections (Filings 42 & 44 ) are denied.

2. The motions to suppress (Filings 28 & 30 ) are denied.

REPORT, RECOMMENDATION AND ORDER

DAVID L. PIESTER, United States Magistrate Judge.

The defendants have filed motions to suppress all evidence obtained as a result of their detention and the subsequent search of their vehicle on December 29, 2007. Filings 28 & 30. The detentions and vehicle search at issue did not arise from a traffic stop. Rather, the vehicle was parked in a Shell gas station parking lot located off of Interstate 80, at Exit 379, in Seward County, Nebraska. Seward County Deputy Sheriff Randy Brown contacted defendant Vargas-Miranda, the operator of the vehicle, inside the gas station, and he contacted defendant Lopez-Mendoza, the vehicle passenger, while he was seated in the vehicle's back seat.

The defendants claim they were illegally detained and questioned by Deputy Sheriff Brown, and the vehicle was unlawfully searched without a warrant, probable cause, or the defendants' consent. For the reasons discussed below, the defendants' motions to suppress should be denied.

FINDINGS OF FACT

At approximately 8:30 a.m. on December 29, 2007, Deputy Sheriff Brown was inside a Shell gas station convenience store (the “Speedee Mart" ) located north of Interstate 80 at exit 379 in Seward County, Nebraska. Deputy Sheriff Brown has been an officer for the Seward County Sheriff's Department for seven years, and has received basic law enforcement training and additional training in drug identification and interdiction, including instruction on the methods used to package, conceal, and transport illegal contraband. He is a canine officer and has been involved in 25-30 past drug interdiction

Page 1021

stops, approximately one-half of which involved transport of illegal drugs in concealed compartments. During his contacts with the defendants, Deputy Sheriff Brown was in uniform and visibly armed with his service weapon.

Interstate 80, Exit 379 provides access to Nebraska Highway 15, a north/south roadway that leads to Seward, Nebraska north of the interstate. The Speedee Mart was located in the northeast quadrant of the intersection of Interstate 80 and Highway 15, and the officer's patrol vehicle was parked on the west side of the Speedee Mart in one of the parking stalls toward the north side of that store.

Deputy Sheriff Brown was standing inside the Speedee Mart looking out the window when he noticed a blue Dodge Magnum with New York license plates turn off Highway 15 onto the Speedee Mart driveway, and then stop and back up onto Highway 15 before again proceeding forward and parking on the south side of the store. The driver, later identified as Vargas-Miranda, exited the vehicle and proceeded into the station and toward the coffee machines. When Vargas-Miranda entered the store, Deputy Sheriff Brown was standing behind the store counter close to a station attendant. Vargas-Miranda was advised by another station attendant that the coffee was still brewing and would be ready soon.

The defendant then approached the counter and participated in a two or three minute conversation with Deputy Sheriff Brown and the station attendant. Deputy Sheriff Brown asked Vargas-Miranda where he was coming from and where he was going. Vargas-Miranda responded that he was traveling to New York to visit his girlfriend, and planned to be there for two or three weeks. Vargas-Miranda asked Deputy Sheriff Brown if the sheriff's office had Dodge Chargers in its fleet. When Deputy Sheriff Brown responded, “Yes," Vargas-Miranda explained that he liked that vehicle. Vargas-Miranda further stated that the vehicle he was currently driving belonged to his girlfriend. The communications between Vargas-Miranda, the officer, and the station attendant were in English, and the...

To continue reading

Request your trial
2 practice notes
  • United States v. Leiva, 020420 IWNDC, 19-CR-79-CJW-MAR
    • United States
    • Federal Cases United States District Courts 8th Circuit
    • February 4, 2020
    ...that a traffic stop did not occur because the vehicle was parked at its destination); United States v. Vargas-Miranda, 559 F.Supp.2d 1016, 1020 (D. Neb. 2008), aff'd, 601 F.3d 861 (8th Cir 2010) (holding that a traffic stop did not occur because the vehicle was parked......
  • United States v. Stately, 012214 MNDC, 13-cr-280 (DWF/LIB)
    • United States
    • Federal Cases United States District Courts 8th Circuit District of Minnesota
    • January 22, 2014
    ...to a search of the vehicle. See United States v. Chavez Loya , 528 F.3d 546, 554 (8th Cir. 2008); United States v. Vargas-Miranda , 559 F.Supp.2d 1016, 1019 (D. Neb....
2 cases
  • United States v. Leiva, 020420 IWNDC, 19-CR-79-CJW-MAR
    • United States
    • Federal Cases United States District Courts 8th Circuit
    • February 4, 2020
    ...that a traffic stop did not occur because the vehicle was parked at its destination); United States v. Vargas-Miranda, 559 F.Supp.2d 1016, 1020 (D. Neb. 2008), aff'd, 601 F.3d 861 (8th Cir 2010) (holding that a traffic stop did not occur because the vehicle was parked......
  • United States v. Stately, 012214 MNDC, 13-cr-280 (DWF/LIB)
    • United States
    • Federal Cases United States District Courts 8th Circuit District of Minnesota
    • January 22, 2014
    ...to a search of the vehicle. See United States v. Chavez Loya , 528 F.3d 546, 554 (8th Cir. 2008); United States v. Vargas-Miranda , 559 F.Supp.2d 1016, 1019 (D. Neb....