U.S. v. Randall

• Decision Date: 13 November 2001
• Docket Number: No. 4:01CR3076.,4:01CR3076.
• Citation: 211 F.Supp.2d 1127
• Parties: UNITED STATES of America, Plaintiff, v. Kanisha RANDALL, Defendant.
• Court: U.S. District Court — District of Nebraska

211 F.Supp.2d 1127

UNITED STATES of America, Plaintiff, v. Kanisha RANDALL, Defendant.

No. 4:01CR3076.

United States District Court, D. Nebraska.

November 13, 2001.

COPYRIGHT MATERIAL OMITTED

J. Bruce Teichman, Omaha, NE, for Defendant.

Michelle J. Oldham, U.S. Attorney, Hall County Attorney, Grand Island, NE, for United States.

MEMORANDUM AND ORDER

KOPF, Chief Judge.

This matter is before the court on Magistrate Judge Piester's report and recommendation (filing 17) that the defendant's motion to suppress (filing 12) be granted. No objections to the report and recommendation have been filed, as allowed by 28 U.S.C. § 636(b)(1)(C) and NELR 72.4.

I have reviewed the Magistrate Judge's report and recommendation pursuant to 28 U.S.C. § 636(b)(1) and NELR 72.4 and find, after de novo review, that inasmuch as Judge Piester has fully, carefully, and correctly found the facts and applied the law, the report and recommendation should be adopted and the defendant's motion should be granted in all respects.

Accordingly,

IT IS ORDERED that:

(1) The Magistrate Judge's report and recommendation (filing 17) is adopted; and

(2) Defendant's motion to suppress (filing 12) is granted.

REPORT AND RECOMMENDATION

PIESTER, United States Magistrate Judge.

The amended motion to suppress filed by defendant Kanisha Randall, filing 12, was heard on September 21, 2001. In this motion, the defendant seeks to suppress all evidence and statements arising from a June 27, 2001 traffic stop on Interstate 80 near Grand Island, Nebraska. The defendant claims that this traffic stop was pre-textual, that there was no basis for reasonable suspicion or for probable cause to believe Ms. Randall was engaged in or had committed any crime, and that the officer's questioning during the traffic stop exceeded the scope permitted under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). She also claims that there was no valid consent given for any search of the vehicle she was driving.¹

At about 2:30 p.m. on June 24, 2001, Trooper Robert Pelster of the Nebraska State Patrol was traveling westbound on Interstate 80 near Grand Island, Nebraska, when his radar indicated that the eastbound vehicle driven by Kanisha Randall was going 84 miles per hour. The speed limit at this location was 75 miles per hour. Trooper Pelster turned his vehicle, entered the eastbound lanes of the interstate and initiated a traffic stop of vehicle driven by the defendant, Kanisha Randall.

When the vehicle was stopped, Trooper Pelster approached the passenger side of the car and asked the defendant for her driver's license and registration. In response, she provided the officer with her license and a copy of a car rental agreement. Trooper Pelster noted that a Jerome Wilson had rented the vehicle and Kanisha Randall's name was not listed on the agreement as an authorized driver. He began a further inquiry about the defendant's authority or permission to drive the vehicle but due to the noise of the moving traffic on the interstate, Trooper Pelster was having difficulty communicating with the defendant while standing on the roadway. He therefore asked Ms. Randall to exit her vehicle and sit in his patrol car while he completed this stop and investigation. She complied with this request.

While in the vehicle, Trooper Pelster asked the defendant questions concerning where she was coming from, where she was going, the purpose of the trip, how she had obtained this vehicle for her cross country travel from Los Angelos to Minnesota and whether she had permission from anyone at the rental car company to drive this car. The questioning and responses, all of which were audible on videotape, occurred while Trooper Pelster was awaiting radio responses concerning the status of defendant's drivers license and confirmation that the car was not stolen. In the conversation, the defendant claimed that Jerome Wilson, the owner of a pager company, had rented the car from somewhere in the Los Angelos area and she had picked it up from him. Although she stated she was heading to Minnesota on business for the communications company, that company was also not listed on the rental agreement. She then claimed her profession was construction, that she was traveling to do a framing job for Mr. Wilson in Minnesota, and that she drove because she hates to fly. However, she stated that Mr. Wilson was now in Minnesota, her stay in Minnesota was scheduled to last only two days, that she would fly back to Los Angelos, and she had no tools with her to perform any construction project.

When he received confirmation that the drivers license was valid and the car was not reported as stolen, Trooper Pelster advised the defendant that he would let her proceed even though her name did not appear on the rental agreement and that he would give her a warning ticket for speeding. He handed the defendant her driver's license, the car rental agreement and a warning ticket and told her she was "free to go." He then asked her if she had a few seconds for a couple of questions. She hesitated and explained that she was already behind by a couple of hours because the hotel in Sidney, Nebraska had not provided the requested wake up call. Trooper Pelster asked again if she would respond to his questions and as she hesitated, he reminded her several times that he was requesting only a few seconds of her time. Ultimately she stated, "A few seconds? I guess. What choice do I have?" Trooper Pelster did not answer that question and proceeded to ask the defendant if she had a weapon or any drugs. Although Trooper Pelster testified that Ms. Randall was hesitant when asked if she had cocaine in her possession, the videotape of this incident reveals that she did not hesitate in responding to any question and readily denied possession of any gun or drug.

Trooper Pelster and the defendant exited the trooper's vehicle. He then asked for consent to search her car. She clearly hesitated but then said, "I guess. I mean, I guess." Trooper Pelster immediately directed the defendant to stand near the front right bumper of the patrol car as he proceeded to retrieve the vehicle keys from the ignition of the rental car. He tried to locate the lock under the center medallion of the trunk but when the medallion did not turn, he immediately moved to the right lower corner of the trunk hood and located the trunk lock. Simultaneously, the defendant gestured and spoke to advise Trooper Pelster of the location of the trunk lock.

Inside the trunk, Trooper Pelster located cocaine (which he originally identified as marijuana) under the trunk carpet. He placed the defendant under arrest, hand cuffed her and she waited in the patrol car while he further searched the vehicle and secured the evidence.

The defendant was transported to Grand Island. At the Grand Island State Patrol office, Investigator Steven Kolb advised the defendant verbally and in writing of her rights under Miranda. The defendant signed a written waiver of those rights and provided a statement to Investigator Kolb.

The defendant claims that any evidence, including this statement, which arose from this traffic stop, and the questioning and search of her vehicle during that stop, must be excluded. Under Terry, the issue of whether an investigatory detention or traffic stop complies with the Fourth Amendment depends upon two factors—whether the stop was justified at its inception, and whether the officer's actions during the stop were reasonably related in scope to the circumstances that justified the interference in the first place. U.S. v. Navarrete-Barron, 192 F.3d 786, 790 (8th Cir.1999); United States. v. Ramos, 42 F.3d 1160, 1163 (8th Cir.1994). An investigatory, or Terry, stop without a warrant is valid only if police officers have a reasonable and articulable suspicion that criminal activity may be afoot. When justifying a particular stop, police officers "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." U.S. v. Navarrete-Barron, 192 F.3d at 790.

A traffic violation, however minor, creates probable cause to stop the driver of a vehicle. United States v. Neumann, 183 F.3d 753, 755 (8th Cir.1999); United States v. Caldwell, 97 F.3d 1063, 1067 (8th Cir. 1996); United States v. Pereira-Munoz, 59 F.3d 788, 791 (8th Cir.1995). Although a traffic stop cannot be pretextual, "[i]f the officer is legally authorized to stop the driver, any additional `underlying intent or motivation' does not invalidate the stop." United States v. Poulack, 82 F.Supp.2d 1024, 1030 (D.C.Neb.1999) (citing United States v. Bloomfield, 40 F.3d 910, 915 (8th Cir.1994)). See also, Whren v. United States, 517 U.S. 806, 812, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); Caldwell, 97 F.3d at 1067; United States v. Bell, 86 F.3d 820, 822 (8th Cir.1996).

The defendant has claimed that this traffic stop was pretextual. However, Trooper Pelster had probable cause to stop the defendant for speeding because she was traveling nine miles per hour over the posted speed limit. His underlying motive for the stop, if any, is therefore irrelevant. A law enforcement officer who personally observes a traffic violation has probable cause to stop the vehicle and offending driver. U.S. v. Neumann, 183 F.3d at 755; U.S. v. $404,905.00 in U.S. Currency, 182 F.3d 643, 646 (8th Cir.1999). When the officer observes a vehicle traveling in excess of the permitted highway speed set by law, the automobile or its occupants can be lawfully stopped and the driver asked to accompany the officer to the patrol car, even if the officer is planning to issue only a warning ticket. U.S. v. Neumann, 183 F.3d 753 at. "A valid traffic stop may not be challenged on the ground that it was a pretext for other investigation." U.S. v. $404,905.00 in U.S. Currency, 182 F.3d at 646. (citing Whren v. United States, 517 U.S. 806, 116 S.Ct....