U.S. v. Garcia Hernandez

Decision Date17 December 1996
Docket NumberCivil No. 2:96-CR-76C.
Citation955 F.Supp. 1361
PartiesUNITED STATES of America, Plaintiff, v. Fortino GARCIA HERNANDEZ, and Luis Angel Villagomez, Defendants.
CourtU.S. District Court — District of Utah

Richard G. MacDoughall, Assistant United States Attorney, Salt Lake City, UT, for Plaintiff.

Michael D. Murphy, Kaysville, UT, Scott S. Kunkel, Salt Lake City, UT, for Defendants.


CAMPBELL, District Judge.

This case is before the court on the defendants' motion to suppress evidence and statements. The case was referred to United States Magistrate Judge Ronald N. Boyce pursuant to 28 U.S.C. § 636(b)(1)(B). A hearing was held on the motion to suppress and memoranda were filed by the parties. On November 20, 1996, the Magistrate Judge filed a Report and Recommendation in which he recommended that the motions to suppress of the defendants be denied. Defendant Fortino Garcia Hernandez filed no objection to the Report and Recommendation. On December 2, 1996, defendant Luis Angel Villagomez filed an objection to the Report and Recommendation which states only a general objection, without making any specific objections to the Report and Recommendation.

The court has carefully reviewed the Report and Recommendation and finds it to be correct in all material respects. Accordingly, the court hereby adopts the Report and recommendation of the United States Magistrate Judge as the order of this court

IT IS HEREBY ORDERED that defendants motions to suppress are DENIED.


BOYCE, United States Magistrate Judge.

Defendants Fortino Garcia Hernandez and Luis Angel Villogomez have been indicted by a grand jury and charged in one count with possession of methamphetamine in excess of 100 grams with intent to distribute (File Entry # 10). The defendant, Luis Angel Villagomez, made a motion to suppress (File Entry # 17) alleging that evidence and statements were illegally obtained from him as the result of an illegal stop and search of a vehicle operated by Villagomez. The defendant Villagomez contends the officer did not have probable cause or reasonable suspicion for the stop of the vehicle, that a subsequent detention of Villagomez was illegal and the search of the vehicle cannot be validated on the basis of a consent search (File Entry # 18).

The defendant Fortino Garcia Hernandez made a motion to suppress contending that the stop of the vehicle driven by Villagomez, in which Garcia Hernandez was a passenger, was illegal and the ensuing search of the vehicle was also illegal.

The case was referred to the magistrate judge under 28 U.S.C. § 636(b)(1)(B). Hearing was held on the motion to suppress. Subsequent to the hearing, the United States submitted a memorandum in opposition to the defendants' motions to suppress contending the actions by the officer were lawful (File Entry # 26). Defendant Villagomez submitted a post hearing supplemental memorandum (File Entry # 27). Defendant Fortino Garcia Hernandez submitted a post hearing supplemental memorandum in support of his motion to suppress (File Entry # 28). This report and recommendation is submitted pursuant to the reference on the defendants' motions to suppress.


Sergeant Fred A. Swain, Utah Highway Patrol (UHP), testified at the suppression hearing (Tr. pp. 5-6). He is a supervisor of a patrol area in Beaver and Iron counties in Utah. His responsibility is traffic patrol and enforcement of other criminal laws encountered in the patrol function. He has had training and experience in drug identification and interdiction (Tr. pp. 6-7). At about 6:48 a.m. on April 12, 1996 he was patrolling north of the Beaver south exchange on Interstate 15; he was in the median in his patrol vehicle. He observed a vehicle going northbound that did not have a light illuminating the rear license plate. Utah Code Ann. § 41-6-120 requires a rear light1 (Tr. p. 8).

At 6:48 a.m. it was not dark as in the middle of the night but it was before sunrise. The defendants' vehicle was a sedan with headlights on, but the officer could not see the occupants except that there was a driver. He could not determine sex or race (Tr. p. 9). Because the rear plate was not illuminated the officer made a traffic stop with his lights and the vehicle pulled over (Tr. p. 10). As the officer pulled the vehicle over, he could see it had California plates. He exited the vehicle and went to the driver's side of the vehicle. He observed a 12 pack box of Budweiser beer with four cans inside which items appeared unopened (Tr. pp. 10-11). Villagomez was driving the vehicle and Hernandez was a passenger. The officer requested a driver's license and registration. He told the driver that he was stopped because the light that shines on the rear plate was gone. The officer could smell the odor of an alcoholic beverage coming from the vehicle. While the occupants were getting the things the officer requested, he asked Villagomez where he was going (Tr. pp. 11-12). He said he was going to Ogden [Utah] to get work. Hernandez said the same thing.

Villagomez gave the officer a California driver's license. Hernandez gave the officer a title to the vehicle in the name of Roberto Guerrero with that name in the transfer or block on the title, but no name in the transferee block (Tr. pp. 13-14, Exh. # 1). The officer asked who owned the vehicle and Hernandez said he did (Tr. p. 14). The officer asked Hernandez for identification and Hernandez gave the officer a Utah identification card with an Ogden address (Tr. p. 15). This was after Hernandez had said he was going to Ogden to find work. The officer asked Hernandez where he lived and he said Ogden. Villagomez said he lived in California. At that point the officer became suspicious. He had not received a registration and the only person named in the title was not in the vehicle (Tr. p. 15).

The officer then asked Villagomez if he'd been drinking and he replied no. The officer had Villagomez blow on the officer's hand but the officer couldn't smell alcohol. Villagomez did admit he had been drinking earlier in the night. The officer went to his patrol car to write out a notice violation for the light violation and he called his dispatcher for a check on the vehicle (Tr. p. 16). The dispatcher advised Officer Swain that a check was being run on the status of the vehicle, but the computer was backed up and there would be ten to fifteen minutes delay (Tr. p. 16). Officer Swain decided to exit his vehicle and investigate some matters about which he still had suspicion. He asked Hernandez to exit the vehicle and asked if he had a bill of sale or something to show title. Hernandez said he had nothing else. Swain decided to ask permission to search the vehicle. This was based on the alcohol factor and his belief the vehicle might contain an open container.2 Second, he suspected a stolen vehicle and he might find property or something that would identify the owner of the vehicle (Tr. p. 17). The officer also suspected drug trafficking because of the statements of the suspects about one person living in Ogden and a California driver's license of the driver and going to Ogden. Also, the car was from California and the officer was aware of the way drug traffickers work in tandem (Tr. p. 18). Also, the small amount of luggage and the difficulty in determining the rightful owner of the vehicle was suspicious (Tr. pp. 18-19). Before asking for consent to search the vehicle, the officer asked Hernandez for additional information but Hernandez provided no additional documents. He said he had recently purchased the vehicle from the title owner, a Mr. Guerrero (Tr. p. 20).

At that point, the officer asked Mr. Hernandez if he could search the vehicle and Hernandez said "yes." Id. The officer then asked permission to search from defendant Villagomez. The officer asked if he could look through the entire vehicle and Villagomez said "yes" (Tr. pp. 20-21). The officer asked both persons to step out of the vehicle and the officer commenced a search. He searched the passenger area and found nothing. He took the key from the ignition and opened the trunk of the vehicle. Defendants originally were in the front of the vehicle (Tr. p. 21). On opening the trunk various items were observed (Tr. p. 22, Exh. # 2). As the officer was getting ready to close the trunk he noticed a roll of duct tape (Tr. p. 23, Exh. # 3). The officer leaned over to pick up the duct tape and looked into an open cardboard box where he observed a package wrapped in duct tape (Tr. p. 25). The officer pulled out the package and asked Hernandez what was in the package and he said it was "pine" (Id.). The officer made further inquiry and Hernandez said it was pine wood like that used for cabinets (Tr. p. 26).

The officer then took a knife that was in the box and cut open the package. There were two packages inside. The officer could smell one of the packages and it smelled like marijuana. It was cut open and contained a pound of marijuana (Tr. p. 26). A second clear package was cut open and contained methamphetamine. There were a couple of other white powdery packages in plastic that contained the methamphetamine (Tr. p. 27, see Exh. # 4). The officer returned to his vehicle and requested a backup. He went to Hernandez and gave him a Miranda3 warning (Id.). The warning was proper and complied with the pre-interrogation warning requirements (Tr. p. 28). The officer asked Hernandez if he understood his rights and he said yes. The officer asked if Hernandez would be willing to answer some questions and he said he would (Tr. pp. 28-29). The officer then told Hernandez that if he would be willing to deliver the drugs he could get out of some of the trouble he was in and Hernandez agreed. Then Hernandez was questioned about his role in the drug activity and made an incriminating statement about the activity including what he would be paid (Tr. pp. 29-30)....

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  • United States v. Scott
    • United States
    • U.S. District Court — District of Kansas
    • July 22, 2015
    ...an intention. Ms. Parkers conclusory assertion is not credibleand thus fails to nullify her consent. See United States v. Garcia Hernandez, 955 F. Supp. 1361, 1372 (D. Utah 1996) (holding that defendant's "explanation that the officer would search anyway does not defeat [consent]," when obj......

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