U.S. v. Cotton, 4:02CR3025.

• Decision Date: 26 June 2002
• Docket Number: No. 4:02CR3025.,4:02CR3025.
• Citation: 223 F.Supp.2d 1039
• Parties: UNITED STATES of America, Plaintiff, v. Kevin L. COTTON, Defendant.
• Court: U.S. District Court — District of Nebraska

223 F.Supp.2d 1039

UNITED STATES of America, Plaintiff, v. Kevin L. COTTON, Defendant.

No. 4:02CR3025.

United States District Court, D. Nebraska.

June 26, 2002.

COPYRIGHT MATERIAL OMITTED

Michael J. Hansen, Federal Public Defenders Office, Omaha, NE, for Defendant.

Janice M. Lipovsky, Asst. U.S. Atty., Lincoln, NE, for U.S.

ORDER

STROM, Senior District Judge.

This matter is before the Court on defendant's objection (Filing No. 19) to the magistrate judge's report and recommendation (Filing No. 18), wherein the magistrate judge recommends that defendant's "motion to dismiss, or alternatively, to suppress" be denied in part and granted in part. The effect of the magistrate judge's report and recommendation is that the motion to dismiss be denied and that the motion to suppress be denied except as to the questions and answers which occurred after Mr. Cotton was handcuffed, during which the trooper elicited information about the ownership, type and amount of the drugs found in the vehicle as this constituted custodial interrogation without having been given his Miranda warnings.

The Court has conducted a de novo review of the defendant's motion, the transcript of the hearing before the magistrate judge held on May 2, 2002 (Filing No. 17), the report and recommendation of the magistrate judge, defendant's objection to said report and defendant's brief in support of his objections. A review of the transcript included viewing the exhibits and in particular the tape of the stop which occurred on December 24, 2001. Having completed this review, the Court finds that the magistrate judge's report and recommendation should be approved and adopted by the Court. Accordingly,

IT IS ORDERED:

1) The report and recommendation of the magistrate judge is approved and adopted.

2) Defendant's objection is overruled and his motion to dismiss is denied. His motion to suppress is granted to the extent that statements made by defendant at the scene of the traffic stop and in response to questioning by the troopers during and after Mr. Cotton was handcuffed are suppressed.

3) Trial of this matter is scheduled for:

Monday, August 26, 2002, at 9 a.m.

in Courtroom No. 2, Denney Federal Building, Lincoln, Nebraska, as soon thereafter as may be called by the Court. The ends of justice will be served by continuing this case and outweigh the interests of the public and the defendant in a speedy trial. The additional time between June 26, 2002, and August 26, 2002, shall be deemed excludable time in any computation of time under the requirement of the Speedy Trial Act. 18 U.S.C. § 3161(h)(8)(A) & (B).

REPORT AND RECOMMENDATION

PIESTER, United States Magistrate Judge.

The "Motion to Dismiss, or Alternatively, to Suppress" filed by the defendant Kevin L. Cotton, filing 9, was heard on May 3, 2002. Defendant seeks to suppress any and all evidence gathered as a result of a stop and subsequent search of his person and of the vehicle he was driving on December 24, 2001. The defendant claims that his Fourth Amendment rights were violated in that Trooper Michael Rathe had no basis for reasonable suspicion or probable cause to believe that any violation of the law had occurred, that he unlawfully stopped defendant's vehicle, and that he unlawfully searched defendant's person¹ and the vehicle he was driving. The defendant further claims that he was subjected to custodial interrogation prior to being provided warnings as required under Miranda, and his responses to this questioning must be suppressed under the Fifth Amendment.

For the reasons set forth herein, I shall recommend denying defendant's claim that evidence be suppressed under the Fourth Amendment. Regarding defendant's motion based on the Fifth Amendment, I shall recommend that statements made by the defendant prior to being handcuffed are not subject to suppression. I shall, however, grant defendant's motion to the extent that it requests suppression of statements made in response to the officers' questioning during and after the time when defendant was placed in handcuffs.²

On December 24, 2001³, at approximately 4:30 p.m., the defendant was driving a 1975 Chevy Blazer westbound on Highway 6 between Waverly and Lincoln, Nebraska. The roadway at this location is a four-lane divided highway. The defendant was traveling in the right lane within the speed limit. The weather was clear and the sun was beginning to set in the west, directly in the line of vision for westbound drivers on Highway 6.

At that time Trooper Rathe was also driving westbound on Highway 6 at this location. He pulled into the left lane to pass the defendant to stop a different vehicle traveling ahead of the defendant for speeding. As he passed the vehicle driven by the defendant, he noted that due to their width, the tires on the vehicle extended approximately four inches beyond the confines of the vehicle's fenders. Although he still intended to stop the speeding vehicle, Trooper Rathe noted that the width of tires on the vehicle defendant was driving created a violation of Neb.Rev.Stat. § 60-6,283. The tires were large, off-road tires designed to be driven over muddy terrains, and were taller and wider than tires placed on this vehicle by the factory. Because the width of the tire extended beyond the fender, and the vehicle had no mud flaps or splash aprons, there was nothing to cover the portion of the tire extending outside of the fender area and nothing to prevent this tire area from splashing up water and mud.

Trooper Rathe chose not to continue pursuing the speeding vehicle, but decided to stop defendant's vehicle for the § 60-6,283 violation instead. He slowed his marked patrol car and pulled in behind the vehicle driven by the defendant. When this occurred, defendant briefly stepped on the brakes and Trooper Rathe noticed that the vehicle's right brake light was not working. Trooper Rathe activated his lights and initiated a traffic stop. This stop and the occurrences thereafter were videotaped by the equipment in Trooper Rathe's patrol car, although the quality of the images depicted on the videotape is poor because, during this traffic stop, the camera was facing directly into the setting sun.⁴ Trooper Rathe forgot to activate his microphone and therefore the audio portion of the tape is missing for a large portion of the encounter.

Trooper Rathe exited his vehicle and went to the passenger side window to speak with its occupants. Antoine Young was a passenger in the vehicle and motioned to the trooper that the window could not be lowered. Trooper Rathe motioned for the passenger to open the door instead. The trooper stepped back to provide clearance for the door to open and when it opened, Trooper Rathe noticed an intense odor of burnt marijuana. At Trooper Rathe's request, Mr. Young provided the officer with an identification card or driver's license and the defendant provided his driver's license. Trooper Rathe was also given the registration and insurance card for the vehicle which revealed that neither the driver nor the passenger owned the vehicle. The defendant, Mr. Cotton, who was the driver, was asked to step out of the vehicle. Standing at the rear of the vehicle with the defendant, Trooper Rathe explained that the vehicle's tire width was excessive and pointed out the non-operating right brake light. Defendant Cotton was then told to have a seat in the patrol car while Trooper Rathe prepared a vehicle defect ticket for the tire and brake light violations. Mr. Young remained seated in the front passenger side of the stopped vehicle.

While in the patrol car with the defendant, Trooper Rathe checked by radio the defendant's driving history, and for local information on any outstanding warrants or criminal history on the defendant and Mr. Young. The dispatcher responded that the defendant Cotton had a history of prior drug arrests in Lincoln. While seated in the patrol car with the defendant, Trooper Rathe told Mr. Cotton that he had smelled the burnt marijuana odor emanating from the vehicle, and asked the defendant if he had been smoking marijuana and if there was any marijuana in the vehicle or on the defendant's person. Defendant Cotton responded, "No" to each of these questions. Trooper Rathe told Mr. Cotton that he was planning to search Mr. Cotton and the vehicle. The defendant then produced a small amount of marijuana from his right coat pocket, laid it on the patrol car dashboard, and stated that he had smoked marijuana but that Mr. Young was not involved in any drug use or possession.

Trooper Rathe exited the patrol car and told Mr. Young to step out of the stopped vehicle. Mr. Young complied and was pat searched to look for weapons and drugs. He was then told to stand in the ditch about thirty feet in front of the vehicle while the vehicle was searched.

Trooper Rathe jumped up into the vehicle, which had been elevated by a "lift kit," and found a package containing a white powdery substance the size of a golf ball in the center console of the vehicle. This substance appeared to Rathe to be crack cocaine. Upon finding this suspected drug in the vehicle, Trooper Rathe motioned for Mr. Young to approach the officer. While Trooper Rathe was handcuffing Mr. Young, Mr. Cotton jumped out of the patrol car and moved quickly toward Trooper Rathe, stating that the drugs found in the vehicle were his and that Mr. Young had nothing to do with them. Trooper Rathe was not questioning the defendant in any way when these statements were made, but was instead repeatedly directing the defendant to get back into the patrol car. The defendant eventually complied. Trooper Rathe then radioed for help and placed Mr. Young on his knees in the ditch at a distance in front of the stopped vehicle.

Trooper Rathe returned to the patrol car to retrieve his spare set of handcuffs, and placed the package of white substance he had found on the hood of his patrol car. Trooper Rathe obtained the spare...