U.S. v. Mora

• Decision Date: 09 February 1998
• Docket Number: No. 97-4093,97-4093
• Citation: 135 F.3d 1351
• Parties: 98 CJ C.A.R. 958 UNITED STATES of America, Plaintiff-Appellee, v. Maria Louisa MORA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1351

135 F.3d 1351

98 CJ C.A.R. 958

UNITED STATES of America, Plaintiff-Appellee, v. Maria Louisa MORA, Defendant-Appellant.

No. 97-4093.

United States Court of Appeals, Tenth Circuit.

Feb. 9, 1998.

Wayne T. Dance, Assistant United States Attorney (Scott M. Matheson, Jr., United States Attorney, and Brooke C. Wells, Assistant United States Attorney, with him on the brief), Salt Lake City, Utah, for Plaintiff-Appellee.

Stephen R. McCaughey of McCaughey & Metos, Salt Lake City, Utah, for Defendant-Appellant.

Before PORFILIO, HOLLOWAY and HENRY, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant-Appellant, Maria Louisa Mora, entered a conditional plea of guilty of possessing with intent to distribute heroin, reserving her right to appeal the district court's denial of her pre-trial motions to suppress and to dismiss for violation of the Speedy Trial Act, 18 U.S.C. § 3161, et seq. Following entry of her conviction and the judgment sentencing Mora to the custody of the Bureau of Prisons, this appeal was timely filed. Mora asserts that the district court erred in (1) denying her motion to dismiss on speedy trial grounds; (2) improperly reviewing the magistrate's report and recommendation; and (3) denying her motion to suppress evidence. We have jurisdiction by virtue of 28 U.S.C. § 1291, and we reverse in part, vacate in part, and remand.

I

On January 8, 1996, agents with the Drug Enforcement Administration (DEA) Metro Narcotics Task Force in Salt Lake City, Utah, were alerted by California police officials that Mora was flying from Los Angeles to Salt Lake International Airport. Officer Dahl testified that on that day the task force received information from a detective in Long Beach, California, that a female hispanic by the name of Maria Louisa Mora would be arriving in Salt Lake City from Los Angeles on either a Southwest or Delta Airlines flight, and she would be "body-packing" a quantity of heroin. Aplt.App. at 71-72, 106. Officer Dahl and two other officers first surveyed people deplaning the Delta flight, and they briefly questioned one female who matched the general description. Id. at 73. Upon discovering that the person they questioned was not Mora, the officers proceeded to the gate at which the Southwest flight was scheduled to arrive. Id.

Again, the officers noticed a potential suspect deplane, but they did not take immediate action. Id. The officers continued to observe the suspect, who they later learned was Mora, as she walked towards the baggage claim area. Id. at 74. At that point after Mora was out of sight, the officers received further, more detailed information through police channels, and, upon determining that Mora matched the description, the officers attempted to locate her. Id. at 74-75, 95. The officers spotted Mora leaving the terminal and they approached her as she stood outside. Id. at 74-75. The magistrate judge found that upon reaching Mora, Officer Dahl identified herself as a police officer, told Mora that she was not under arrest, and that she was free to leave (which Mora disputes), and asked to speak to her. Id. at 75. Discovering that Mora did not understand English, Dahl motioned for Officer Judd, who speaks Spanish. Id. at 76.

Officer Judd approached Mora, identified the officers in Spanish as airport narcotics police, and asked her if she understood. Id. at 98-99. Mora indicated that she did. Judd testified that he told Mora she was free to leave, but Mora testified that she was never advised by Judd that she was free to go. Id. at 99, 154. Judd told Mora he would like to speak with her for a moment. Mora agreed to talk with the officers, and she asked if there was a problem, to which Judd answered no. Id. at 99. Officer Judd asked for identification, and Mora produced a card issued by California and bearing the name of Maria Louisa Mora Madrigal. Id. at 99-100. Judd testified that after returning her identification card, he asked Mora if she had any drugs or large amounts of cash with her, to which she responded no. Id. at 100, 163. Mora testified that her identification was never returned by Judd. Id. at 138. Officer Judd requested to search her bags, and after advising her once more that there was no problem, she consented. Id. at 101. Finding nothing related to narcotics in her bags, Officer Judd asked Mora if she would permit Officer Dahl to search her clothing, and Mora consented. Id.

Officer Judd motioned for Officer Dahl, advised her of Mora's consent, and Officer Dahl proceeded with the search. Id. at 102. As Officer Dahl conducted the pat-down search and approached her waist, Mora stepped away and indicated that she wanted to go to the bathroom to complete the search. Id. at 78, 102. The officers escorted Mora inside the terminal and headed in the direction of the restrooms. Id. at 102. The first restroom they found was closed and they proceeded toward a different restroom further inside the terminal. Id. at 103. Mora, however, began walking toward a public phone bank. Id. Officer Judd asked if Mora would permit Officer Dahl to complete the search prior to making her phone call. Id. Mora responded that she did not want to proceed with the search prior to using the phone. Id. at 104.

Officer Judd then advised Mora that they had received information that she was transporting drugs and that, if the information was correct, she needed to surrender them. Id. Mora stood silent, at which point Officer Whittaker addressed her in Spanish, asking her, "you have heroin, true?" Id. at 104-105. Mora paused, lowered her head, and said "si." Id. at 105, 126. The officers asked Mora to go into the restroom and produce the contraband. Id. at 105. Officer Whittaker asked Officer Dahl to accompany Mora into the restroom to retrieve the substance. Id. at 79. Once inside the restroom, Mora pulled a baseball size object containing heroin from the crotch area of her pants and surrendered it to Officer Dahl. Id. at 79, 106. Immediately after exiting the restroom, the officers placed Mora under arrest. Id. at 80.

II

On January 10, 1996, Mora was charged in a one count indictment alleging possession of heroin, in violation of 21 U.S.C. § 841(a)(1), and she had her first appearance and arraignment on January 11. Aplt.App. at 5, 56. Trial was set for March 5, 1996. Id. at 1. A superseding indictment was subsequently filed on January 24, charging Mora with possession with intent to distribute in excess of 100 grams of heroin. Id. at 5. On January 24 Mora filed a motion to suppress, and the matter was referred to a magistrate judge on January 31 pursuant to 28 U.S.C. § 636(b)(1)(B). Id. at 5, 56. A suppression hearing was held before the magistrate on February 27. Id. at 6. Supplemental briefs were ordered by the magistrate on March 7, which Mora filed on March 20 and the government filed on April 9. Id. at 6, 174. On May 1, approximately two months beyond the original trial date, the magistrate ordered the trial continued without setting a new trial date, finding that the ends of justice would best be served if the trial date was continued in order to allow the parties to file written memoranda addressing Mora's motion to suppress. Id. at 1-2. This order also purported to stay the running of time under the Speedy Trial Act, pursuant to 18 U.S.C. §§ 3161(h)(1)(F), (J), and (h)(8)(A). Id.

The record shows no further actions in Mora's case until the magistrate entered a report and recommendation on January 31, 1997, recommending that Mora's suppression motion be denied. Id. at 5-52, 175. Mora filed "Objections to Report and Recommendation" on February 5, 1997, along with a motion to dismiss for violation of the Speedy Trial Act. Supp.App. at 1; Aplt.App. at 57. The district court held a hearing on these matters on February 24 and ordered the parties to file supplemental briefs with respect to Mora's objections to the report and recommendation and her motion to dismiss. Id. at 55, 175.

After submission of all required materials, the district court entered an order on April 1, 1997, adopting the magistrate's report and recommendation and denying Mora's motion to dismiss. Id. at 55-59. Relying on Henderson v. United States, 476 U.S. 321, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986), the district court held that until it received all materials necessary to decide the motion to suppress, including the magistrate's report and recommendation and the parties' supplemental filings, the matter was not under advisement and the thirty-day period under 18 U.S.C. § 3161(h)(1)(J) did not begin to run. Id. at 58. Thus, the court concluded that the time from the filing of Mora's motion to suppress until the date of the judge's order adopting the magistrate's report and recommendation was excludable under 18 U.S.C. § 3161(h)(1)(F) and (J). Id.

Following the district court's adverse rulings on her motions to suppress and dismiss, Mora entered a conditional plea of guilty on April 9, 1997, reserving her right to appeal these rulings. Mora was sentenced on June 16, 1997, to thirty-seven months' imprisonment, sixty months of supervised release, and fined $1,500. Aplt.App. at 177.

III

Mora first attacks the district court's denial of her motion to dismiss. She claims that the delay of some 209 non-excludable days during which the magistrate judge held her motion to suppress under advisement violated the Speedy Trial Act. The government counters, arguing that the magistrate is not bound by the requirements of the Speedy Trial Act, and, therefore, the time did not begin to run under the Act until the district judge was in possession of both the magistrate's report and recommendation as well as the parties' materials in support of their respective positions.

"Compliance with the requirements of the Speedy Trial Act is a question of law which we review de novo." United States v. Dirden, 38 F.3d 1131, 1135 (10th Cir.1994). The Act generally requires that the trial of a defendant charged with the...