U.S. v. Araque, 8:02CR316.

• Decision Date: 10 April 2003
• Docket Number: No. 8:02CR316.,8:02CR316.
• Citation: 255 F.Supp.2d 1010
• Parties: UNITED STATES of America, Plaintiff, v. William R. ARAQUE, Defendant.
• Court: U.S. District Court — District of Nebraska

Page 1010

255 F.Supp.2d 1010

UNITED STATES of America, Plaintiff, v. William R. ARAQUE, Defendant.

No. 8:02CR316.

United States District Court, D. Nebraska.

April 10, 2003.

Patrick J. Boylan, Hascall, Jungers Law Firm, Bellevue, NE, for Defendant.

Kimberly C. Bunjer, Assistant United States Attorney, Omaha, NE, for Plaintiff.

MEMORANDUM AND ORDER

BATAILLON, District Judge.

Introduction

The defendant stands indicted on one count of conspiracy to attempt to manufacture and manufacture methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1) and 21 U.S.C. § 846, and one count of possession of pseudoephedrine with intent to manufacture methamphetamine in violation of 21 U.S.C. § 841(c)(1) and 21 U.S.C. § 846. Before me now is the defendant's objection, Filing No. 64, to Magistrate Judge Thalken's report and recommendation, Filing No. 58. Magistrate Judge Thalken recommended that this court deny the defendant's motion, Filing No. 34, to suppress the evidence seized and the statements made in connection with a traffic stop in Sidney, Nebraska, on August 29, 2002. The government did not respond to the defendant's objection.

I have conducted a careful de novo review of the record pursuant to 28 U.S.C. § 636(b)(1)(A) and NELR 72.3(d), and I find that the report and recommendation is neither contrary to law nor clearly erroneous. Therefore, I adopt the report and recommendation in its entirety and deny the defendant's motion to suppress. Because the defendant does not dispute Magistrate Judge Thalken's factual findings, I specifically adopt those findings and forego a lengthy rehearsal of the events leading to the defendant's detention and arrest. See Filing No. 58, Report and Recommendation at 2-6.

Factual Background

Briefly, the defendant and another male tried to purchase two gallons of iodine from the Mercantile Store in Sidney, Nebraska, but left without completing the purchase when employees asked them for identification. The employees were suspicious because they had received training from Cheyenne County, Nebraska, law enforcement officers about materials like iodine that are used to produce methamphetamine in clandestine labs. They reported the attempted purchase to the Cheyenne County Sheriffs Office, along with a description of the men's car and its license plate number.

Cheyenne County Chief Deputy Sheriff Jenson went looking for the car and upon locating it in Sidney, contacted officers from the Sidney Police Department, who then joined Jenson in conducting surveillance of the car and its occupants. The officers observed a female passenger going into and leaving two drug stores with purchases. When Sidney Police Officer Slama telephoned one of the drug stores to ask what the woman had bought, he learned that she had purchased fifteen boxes of cold medicine containing pseudoephedrine.¹ The officers decided to stop the car, which the defendant was driving.

Co-defendant Kelly Foutch was the registered owner of the car; she gave officers permission to search it. The search turned up boxes of cold medicine containing pseudoephedrine in the passenger compartment and, in the trunk, items and chemicals used to manufacture methamphetamine, some of which constituted a danger to public safety. The trunk also contained evidence of methamphetamine use.

In a Mirandized interview, Foutch told officers that she lived with the defendant in Evergreen, Colorado, and that they had a methamphetamine lab in their apartment. Chief Deputy Jenson informed the Metro Task Force in Jefferson County, Colorado, about Foutch's statement. Officers there obtained a search warrant for the apartment and discovered the lab.

Discussion

Reasonable Suspicion. An officer may stop a vehicle to conduct an investigation if the officer has a reasonable suspicion that the occupants are engaged in criminal activity. United States v. Spotts, 275 F.3d 714, 718 (8th Cir.2002) (citing United States v. Bell, 183 F.3d 746, 749 (8th Cir.1999)). The defendant contends that Magistrate Judge Thalken erred in determining that the officers in this case had a reasonable, articulable suspicion of criminal activity sufficient to justify an investigatory detention of the vehicle the defendant was driving. The defendant notes that no federal or state law requires proof of identification to purchase iodine, that no federal or state law prohibits buying multiple packages of cold medicine containing pseudoephedrine, that no testimony established the store employees as reliable informants, that none of the officers observed the defendant commit any traffic violations, and that the stop occurred mid-day in a commercial section of Sidney. Based on these facts, the defendant argues that the officers could not reasonably believe that the occupants of the car were engaged in criminal activity; the stop therefore was based only "an inarticulable hunch or a generalized suspicion." Filing No. 64 at 2.

Since the reasonable suspicion needed to make a valid investigatory stop of a vehicle is "a less demanding standard than the probable cause for arrest, it `can arise from information that is less reliable than that required to show probable cause.'" United States v. Wheat, 278 F.3d 722, 727 (8th Cir.2001) (quoting Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)). "The validity of an investigatory stop under the ...