641 F.3d 961 (8th Cir. 2011), 10-3504, United States v. Correa

Docket Nº:10-3504.
Citation:641 F.3d 961
Opinion Judge:MURPHY, Circuit Judge.
Party Name:UNITED STATES of America, Appellant, v. Miguel Angel CORREA, Appellee.
Attorney:Martin J. Conboy, IV, AUSA, argued, Omaha, NE, for appellant. Richard Haile McWilliams, AFPD, argued, Omaha, NE, for appellee.
Judge Panel:Before MURPHY and COLLOTON, Circuit Judges, and ERICKSON,[1]District Judge.
Case Date:June 13, 2011
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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641 F.3d 961 (8th Cir. 2011)

UNITED STATES of America, Appellant,

v.

Miguel Angel CORREA, Appellee.

No. 10-3504.

United States Court of Appeals, Eighth Circuit.

June 13, 2011

Submitted: May 12, 2011.

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[Copyrighted Material Omitted]

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Martin J. Conboy, IV, AUSA, argued, Omaha, NE, for appellant.

Richard Haile McWilliams, AFPD, argued, Omaha, NE, for appellee.

Before MURPHY and COLLOTON, Circuit Judges, and ERICKSON,1District Judge.

MURPHY, Circuit Judge.

Nebraska state troopers found methamphetamine in Miguel Correa's possession as he was traveling by bus through Omaha. Correa was arrested and indicted for possession with intent to distribute over five hundred grams of methamphetamine. The district court granted Correa's motion to suppress evidence of the methamphetamine and the statements he made after its discovery. The government challenges that order in this interlocutory appeal. We reverse and remand for further proceedings.

The following undisputed facts are from suppression hearing testimony. In April 2010 Correa was traveling by bus from Las Vegas to Des Moines. His bus stopped in Omaha, where all through passengers briefly got off at the terminal. Nebraska state troopers were checking

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bus passenger lists for people who had bought their tickets in cash within a day of departure from drug source cities, such as Las Vegas. They found three such people on Correa's bus; he was one of them.

After the through passengers reboarded, troopers Scott, Eberle, and Rasgorshek got on the bus. They wore plain clothes but carried concealed weapons. They followed their usual practice in checking out the passengers. Rasgorshek knelt in the driver's seat facing backwards into the bus. Eberle and Scott went to the back of the bus and began to work their way forward, asking to see each passenger's ticket.

Scott eventually reached Correa, who sat in the front third of the bus. Scott stood slightly behind Correa's seat, not blocking him from the aisle. When Correa showed his ticket, Scott realized that he was one of the passengers in which they were interested. Scott asked where Correa was going, where he had come from, and which items on the bus were his. Correa said he was going home to Des Moines but that he had been in Las Vegas for ten years. He clarified that he lived in Las Vegas but would visit family in Des Moines for up to a few weeks. Throughout their encounter Scott and Correa spoke in English in normal conversational tones. Scott found Correa's demeanor " evasive but not confused."

Scott noticed that during their conversation Correa " periodically reach[ed] over and reposition[ed]" a jacket on the empty seat next to him. He observed that Correa became increasingly nervous over the course of the conversation. Asked about his luggage, Correa pointed overhead to a small gym bag which Scott considered too small for the trip he described. Scott told Correa that the troopers were " watching for people transporting illegal ... guns, knives, [and] drugs," and asked permission to search him, his bag, and his jacket. Correa said yes, pointed to his bag, and stood, apparently expecting to be patted down. Scott told Correa " he could say seated," and again asked Correa's permission specifically to search the jacket. Correa said " yes" and handed it to Scott. Scott noted that the jacket felt heavy and found inside it two duct taped wet wipe container packages. Each weighed about a pound. Scott testified that in his six years of conducting searches on buses, he had " never come across a duct taped wet wipe container that did not contain methamphetamine."

Scott handcuffed Correa, removed him from the bus, and took him to a back office of the bus terminal. Scott did not consider this removal an arrest, but rather " custody ... in furtherance of [his] investigation." Over 500 grams of methamphetamine were found inside the containers, " confirm[ing] [Scott's] suspicion." Scott then issued a Miranda warning. Correa waived his Miranda rights and made incriminating statements, offering to reveal his contacts in Des Moines in exchange for leniency.

Correa was indicted for possession of methamphetamine with intent to distribute under 21 U.S.C. § 841. He moved to suppress...

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