U.S. v. Magallanes
| Decision Date | 03 August 2010 |
| Docket Number | No. 8:10CR107,8:10CR107 |
| Citation | 730 F.Supp.2d 969 |
| Parties | UNITED STATES of America, Plaintiff, v. Alberto MAGALLANES, Defendant. |
| Court | U.S. District Court — District of Nebraska |
Robert C. Sigler, U.S. Attorney's Office, Omaha, NE, for Plaintiff.
This matter is before the court on the government's objection, Filing No. 36, to the findings and recommendation ("F & R") of the magistrate judge, Filing No. 35, concerning the defendant's motion to suppress evidence obtained as a result of a traffic stop and subsequent search that occurred on November 30, 2009. Filing No. 25. The indictment charges defendant with two counts under 21 U.S.C. § 841(a)(1), (b)(1) for intentionally possessing with the intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of a Schedule II controlled substance: (1) methamphetamine,its salts, isomers, or salts of its isomers; and (2) cocaine. Filing No. 1.
Under 28 U.S.C. § 636(b)(1), the court makes a de novo determination of those portions of the F & R to which the parties object. United States v. Lothridge, 324 F.3d 599, 600-01 (8th Cir.2003). The court has conducted a de novo review of the record and exhibits, including the transcript of the suppression hearing. Filing No. 34, Transcript ("Tr."); Filing No. 31, List of Hearing Exhibits ("Ex.") 1, 101, 102. The court agrees with the magistrate judge's recitation of the facts, and concurs with the magistrate judge's recitation of the law. The court finds the government's objections to the F & R should be overruled and the defendant's motion to suppress granted as to evidence obtained as a result of the traffic stop.
At approximately 10:30 p.m. on November 30, 2009, while patrolling Interstate 80 around Harrison Street, Deputy Peterson, a deputy with the Douglas County Sheriff's Office K-9 interdiction unit, "observed [a vehicle] heading eastbound with Arizona plates" driving at the speed limit. Tr. 5:18-21, 6:17-24, 7:7-13, 26:10-12. Deputy Peterson decided to follow the defendant's vehicle because the vehicle had out-of-state license plates. Tr. 26:3-6. Deputy Peterson testified that "[o]ut-of-state plates is what we typically will stop." Tr. 25:24. As he followed the vehicle, Deputy Peterson saw the vehicle commit two alleged traffic violations. These alleged traffic violations consisted of "[d]riving on the shoulder at two separate locations." Tr. 7:12-15. As Deputy Peterson described it, he witnessed the vehicle drive onto the shoulder of the interstate for approximately 100 feet at two separate locations. Tr. 7:15, 28:10-13, 44:1. Those two locations were (1) somewhere between I Street and L Street, and (2) at the Interstate 680/80 junction. Tr. 7:17-20, 27:19-20. Each time, the defendant's vehicle was on the shoulder for approximately one second and the width of the right side passenger tires crossed onto the shoulder. Tr. 28:19-21, 38:10-12, 44:2-4. Deputy Peterson testified that he had the ability to record these alleged traffic violations on video using a camera in his cruiser, but did not do so. Tr. 27:2-17, 30:15-20.
Deputy Peterson followed the defendant's vehicle for about a mile and a half before he activated his lights and pulled over the defendant's vehicle. Tr. 11:8-10, 30:21-22. Between the time Deputy Peterson saw the defendant's vehicle cross onto the shoulder at the Interstate 680/80 junction and the time Deputy Peterson actually activated his light, the defendant "followed every traffic law requirement." Tr. 31:19-25, 32:3-6. Deputy Peterson gave two responses as to why he stopped the defendant's vehicle. On direct examination, Deputy Peterson testified that the only reason he stopped the defendant was because the defendant violated a traffic law by driving on the shoulder. Tr. 17:2-5.1 On cross-examination, by the defendant's attorney, Deputy Peterson testified that he stopped the defendant for both the traffic violation and for the possibility that the defendant was an impaired driver. Tr. 38:13-18.2
There were two individuals in the defendant's vehicle: the defendant and his passenger. Deputy Peterson advised the defendant that he pulled the defendant over because the defendant "drove on the shoulder a couple times." Ex. 1, video at 22:35:27; Tr. 12:15. Deputy Peterson also asked the defendant if the defendant was "ok to drive." 3 Ex. 1, video at 22:35:34, 22:35:53. The defendant responded by saying he was confused due to the Interstate 680/80 junction. Ex. 1, video at 22:35:49; Tr. 11:21-23. Deputy Peterson told the defendant that confusion at this location "happens quite a bit." Ex. 1, video at 22:35:50; Tr. 16:16-19.
Deputy Peterson then took the defendant back to his police cruiser to discuss with him the defendant's travel itinerary, destination, and purpose. Tr. 12:25, 13:1-3. After asking the defendant these types of questions, Deputy Peterson told the defendant that he was going to talk to the defendant's passenger. Ex. 1, video at 22:40:42. Before leaving the car, Deputy Peterson said to the defendant, "don't pet my dog." Ex. 1, video at 22:40:45. Deputy Peterson then asked the passenger similar questions to the ones he asked the defendant. Ex. 1, video at 22:41:27-22:43:06. The passenger had trouble speaking the English language. Ex. 1, video at 22:41:19. Both the defendant and the passenger said they were traveling together, but gave some apparently inconsistent answers in response to Deputy Peterson's questions.4 Ex. 1, video at 22:37:20-22:40:55, 22:41:27-22:43:04.
At about 10:50 p.m., Deputy Peterson left the defendant in his cruiser with his dog in order to summarize for another deputy, Deputy Olson, the events that had occurred up to that point.5 Ex. 1, video at 22:49:30-22:51:03; Tr. 13:9-19, 33:16-17, 36:12-14. During that summary, Deputy Peterson discussed the possibility that the defendant had a "suicide load" 6 of narcotics or contraband in the vehicle, and testified that at this time, he "thought there was going to be a suitcase or a bag in the trunk with contraband in it." Tr. 17:10-21. Deputy Peterson then returned to the cruiser and gave the defendant a written warning for "driving on the shoulder." Tr. 14:2-3; 32:18-22. After issuing the written warning and giving back the defendant's license and passport, the defendant agreed to Deputy Peterson's request to ask the defendant some additional questions. Ex. 1, video at 22:53:52, 22:54:09-22:54:13; Tr. 14:3-9.
Deputy Peterson first asked the defendant a series of questions relating to whether there was any contraband in the defendant's vehicle.7 Ex. 1, video at22:54:29-22:54:54; Tr. 14:10-13. The defendant denied the presence of contraband in the vehicle. Tr. 14:14-16. Next, Deputy Peterson asked the defendant, twice, if the defendant would allow the deputies to search the defendant's vehicle. Ex. 1, video at 22:54:55; Tr. 14:17-20. The defendant told Deputy Peterson both times that the deputies could search the vehicle. Ex. 1, video at 22:54:55. After the defendant agreed to the search, Deputy Peterson advised the defendant that he had the right to refuse consent. Ex. 1, video at 22:54:56. Deputy Peterson then asked the defendant, "You sure ... nothing to hide?" Ex. 1, video at 22:55:01. The defendant said he did not. Ex. 1, video at 22:55:04. The deputy asked the defendant if he was sure one last time before the deputies searched the vehicle. Ex. 1, video at 22:55:12. The defendant did not change his initial consent or indicate to the deputies that he wanted the deputies to stop searching the vehicle. Tr. 15:3-9. The deputies left both the defendant and the passenger in one of the two cruisers, one per cruiser, with the doors closed, while the deputies searched the vehicle.8 Tr. 16:3-6.
The deputies first searched the trunk of the vehicle. Ex. 1, video at 22:56:44; Tr. 17:6-9. The deputies did not find any contraband or anything suspicious there. Tr. 18:4-7. The deputies then searched the interior of the vehicle. Tr. 18:8-11. Deputy Peterson testified that when the deputies lifted the backseat of the vehicle, they saw the vehicle's sending unit 9 and could smell gasoline. Tr. 19:4-5. Deputy Peterson testified that he could see suspicious scratches on the sending unit cover that are not usually present when a manufacturer performs maintenance on a vehicle. Tr. 19:5-6, 17-22. Deputy Olson then retrieved his tool bag from his cruiser so the deputies could remove the cover of the sending unit themselves.10 Ex. 1, video at 23:05:58; Tr. 20:24-25, 21:1. Deputy Peterson testified that upon removing the sending unit's cover, the deputies could see eleven plastic bundles floating in the gas tank. Tr. 41:21-25, 42:1-2, 42:22-24. These bundles contained narcotics, including methamphetamine and cocaine. Ex. 1, video at 23:20:36; Tr. 42:13-23. The deputies then placed the defendant under arrest. Tr. 21:17-22; 22:22-25.
Defendant argues in his motion to suppress that the court should suppress all evidence obtained as a result of the traffic stop. Filing No. 25. First, the defendant argues that Deputy Peterson stopped the defendant's vehicle without probable cause of unlawful conduct or a traffic violation. Filing No. 25. Defendant contends that driving on the shoulder for 100 feet for approximately one second does not constitute a traffic offense under Nebraska law, and, therefore, could not provide probable cause to stop the defendant's vehicle. Filing No. 26. Second, the defendant argues that if the initial stop were lawful, the stopbecame unlawful because the deputies prolonged the traffic stop beyond the time reasonably required to complete the initial traffic stop. Filing No. 25. Defendant contends that the stop became unlawful because Deputy Peterson extended contact beyond the time necessary to issue a citation to or identify the defendant. Filing No. 26. As a result, the defendant contends that any consent the defendant gave to the deputies to search...
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