U.S. v. Correa
| Decision Date | 27 October 2010 |
| Docket Number | No. 8:10CR163.,8:10CR163. |
| Parties | UNITED STATES of America, Plaintiff,v.Miguel Angel CORREA, Defendant. |
| Court | U.S. District Court — District of Nebraska |
OPINION TEXT STARTS HERE
Martin J. Conboy, IV, U.S. Attorney's Office, Omaha, NE, for Plaintiff.Richard H. McWilliams, Federal Public Defender's Office, Omaha, NE, for Defendant.
This matter is before the court on defendant's objection, Filing No. 33, to the findings and recommendation of the magistrate judge (“F & R”), Filing No. 29, on the defendant's motion to suppress, Filing No. 22. The magistrate judge recommends that this court deny the defendant's motion to suppress evidence and statements obtained by law enforcement officers after an encounter on a bus at the Greyhound bus station in Omaha, Nebraska, on April 28, 2010. See Filing No. 34, Hearing Transcript (Hr'g Tr.) at 66. The defendant is charged with possession with intent to distribute 500 grams or more of methamphetamine, its salts, isomers, or salts of its isomers, in violation of 21 U.S.C. § 841(b)(1).
Pursuant to 28 U.S.C. § 636(b)(1), the court has conducted a de novo review of those portions of the F & R to which the defendant objects. United States v. Lothridge, 324 F.3d 599, 600–01 (8th Cir.2003). The court has reviewed the record, including the transcript of the suppression hearing on June 30, 2010. Filing No. 34, Hr'g Tr. The court finds the magistrate judge's recitation of the facts accurately represents the testimony adduced at the hearing. See id. at 56–60.
Briefly, Nebraska State Patrol Investigator Jason Scott testified that he and Investigators Rasgorshek, Eberle, Lutter and Special Agent Paul Orduna were conducting commercial interdiction for drug trafficking at the Greyhound station in Omaha. Id. at 5. They were dressed in plainclothes, body armor and carried concealed weapons. Id. at 15. The officers targeted an eastbound bus and waited for its passengers to disembark. Id. at 6. Investigator Eberle then spoke to the bus driver and asked to see the tickets of the passengers who would be reboarding the bus to continue to its next destination. Id. at 6–7. Scott testified that, generally, the officers look for tickets that had been purchased with cash immediately prior to, or less than 24 hours before, departure that were for travel between known drug source and destination cities. Id. at 6. Investigator Eberle later relayed the names of three passengers to Investigator Scott. Id. at 7.
The officers watched the passengers reboard the bus and then Investigators Scott, Eberle and Rasgorshek “boarded the bus and started in the rear of the bus contacting each and every passenger and just asking them if they could present a ticket in an effort to locate the three individuals that Investigator Eberle had located.” Id. at 8. Investigators Scott and Eberle walked up the aisle from the rear of the bus and Investigator Rasgorshek was “kneel[ing] in the driver's seat” of the bus. Id. Investigator Lutter stayed off the bus, and Investigator Scott did not know where he was during the encounter. Id. at 28.
The defendant was seated in the front third of the bus. Id. at 8–9. Investigator Scott testified that he identified himself to the defendant, showed his credentials and “explained that he was not under arrest or in any trouble, that we were just speaking with passengers on the bus, asked him if he could produce a bus ticket.” Id. at 9. The defendant produced a ticket and Investigator Scott recognized the name as one that Investigator Eberle had mentioned, noticed that it had been purchased with cash six hours before departure and that it was for travel between Las Vegas and Des Moines. Id. at 9. The defendant also gave his driver's license to the officer. Id. at 41. Investigator Scott asked the defendant “where he was headed to, how long he might be there, where he was coming from, where he called home, and what items on the bus belonged to him.” Id. at 10. The defendant stated that he was going home to Des Moines, Iowa. Id. Investigator Scott testified that “[b]ecause he had told me that Des Moines was home and then he had told me he'd been in Vegas for ten years, I clarified as to where home was, and he changed that story and said he lived in Las Vegas and—and that he would be visiting Des Moines, Iowa, to see family and was unaware of how long he would be there, but it might be up to a couple of weeks.” Id. at 10–11. Scott testified that the defendant did not appear confused, but that the defendant's responses were evasive and the defendant became increasingly nervous as time went on. Id. at 11. Scott also stated that the defendant periodically reached over and repositioned a jacket in an empty seat next to him. Id. The defendant identified a small gym bag in the overhead compartment as belonging to him. Id. at 12. Investigator Scott testified that he thought the small bag was not consistent with a trip of several weeks' duration. Id.
Scott testified that he returned the defendant's documents to him and then explained that he was “watching for people transporting illegal items such as guns, knives, drugs, large amounts of currency, things that aren't supposed to be on the bus” and asked for permission to search the defendant, his bag, and the jacket next to him. Id. at 12–13. He stated that the defendant responded “yes,” and then stood up, at which time Scott testified he told the defendant to remain seated and asked the defendant to hand him the jacket. Id. at 13–14. Scott testified once he asked for the jacket, the defendant was “somewhat apprehensive” and that he noticed that the defendant “seemed defeated at that point,” and that
[h]e kind of took a—a big deep breath, reached over, grabbed the jacket, would not make eye contact with me, stared at the floor of the bus, handed me the jacket and kind of slumped his head down as—almost as if he were defeated and then, you know, moments later I located the packages and asked him to stand up and he did.
Id. at 21. Investigator Scott agreed that the behavior was “like [the defendant] had been trying to avoid having [Scott] look at this jacket and he had lost” and characterized it as a “look that we generally get when people know that they're caught.” Id. at 38. The defendant handed the jacket to the officer and Scott noticed it was heavy. Id. at 16–17. Investigator Scott then searched the jacket and found “two gray duct taped wet wipe bundles” in the interior pockets of the jacket. Id. at 17.
Officer Scott testified that he had found several similar packages in previous searches and that he had “never come across a duct taped wet wipe container that did not contain methamphetamine.” Id. Investigator Scott testified that, at that point, he “placed Mr. Correa in custody, detained him in furtherance of our investigation until I could determine what exactly was in the bundles,” handcuffed the defendant, removed him from the bus and escorted him to a back room where the packages were opened and methamphetamine was discovered. Id. at 17–19. Upon discovering the methamphetamine, the defendant was given a Miranda warning and formally arrested. Id. at 19–20. After he was Mirandized, Mr. Correa made several incriminating statements to the officers. Id. at 20.
Investigator Scott testified that the conversation on the bus lasted only a matter of minutes. Id. at 41. He did not know the defendant's country of origin, level of education, or prior criminal history but testified that the defendant did not appear to be under the influence of drugs or alcohol and seemed to be of average intelligence. Id. at 16, 35–36.
The magistrate judge found Investigator Scott was credible. Id. at 56. He found the initial encounter between the defendant and Investigator Scott was a consensual encounter. Id. at 60. Viewing “the totality of the circumstances, including the characteristics of the accused,” the magistrate judge noted that the defendant was able to communicate with Investigator Scott and answer the questions, and “there was no evidence that he was in any way not of at least average intelligence, and it was Scott's opinion that he was.” Id. at 61. The magistrate judge next applied the factors set forth in United States v. Chaidez, 906 F.2d 377 (8th Cir.1990), and found the defendant's consent to the search was voluntary. Id. He also found that after Investigator Scott found the duct-taped wrapped containers, the encounter became an investigative detention “which is a seizure of limited scope and duration within the Fourth Amendment and must be supported by reasonable and articulable suspicion of criminal activity.” Id. at 63. The magistrate judge found that “Investigator Scott had such an articulable suspicion of criminal activity although he certainly did not have probable cause.” Id. Further, the magistrate judge found that “the record in this case does not reflect that Scott put the individual under arrest when he cuffed him and moved him,” agreeing with Investigator Scott's characterization of the episode as a continued detention. Id. at 62. The magistrate judge also stated that “the removal from the bus to the room in the Greyhound bus depot was either “part of the never withdrawn consent” or an investigative detention. Id.
The defendant objects to the magistrate judge's characterization of the initial encounter between Investigator Scott and Mr. Correa as “consensual.” Filing No. 34, Brief at 5. Further, he objects to the magistrate judge's finding that the defendant was of average intelligence and argues that the magistrate judge improperly shifted the burden to the defendant on that issue. Id. at 8. He also objects to the magistrate judge's finding that the defendant consented to the search of his person and belongings and the finding that the consent was freely and voluntarily given. Id. at 8–9. The defendant also objects to the finding that handcuffing the defendant and removing him...
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