United States v. Arreola, No. CR02-3015MWB (N.D. Iowa 7/17/2002), CR02-3015MWB.
| Decision Date | 17 July 2002 |
| Docket Number | No. CR02-3015MWB.,CR02-3015MWB. |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JUAN SERENO ARREOLA and HOMERO BUSTOS FLORES, Defendants. |
| Court | U.S. District Court — Northern District of Iowa |
This matter is before the court on motions to suppress evidence (Doc. Nos. 19 & 23) and supporting briefs (Doc. Nos. 20 & 24) filed April 24, 2002, by the defendants Juan Sereno Arreola ("Sereno)" and Homero Bustos Flores ("Bustos"). On May 3, 2002, the plaintiff (the "Government") filed a combined brief resisting both defendants' motions (Doc. No. 27). Pursuant to the trial scheduling order entered March 11, 2002 (Doc. No. 4), motions to suppress in this case were assigned to the undersigned United States Magistrate Judge for the filing of a report and recommended disposition.
The court held a hearing on the motions on June 28, 2002, at which Assistant United States Attorney C.J. Williams appeared for the Government; Sereno appeared in person with his attorney, Assistant Federal Defender Priscilla Forsyth; and Bustos appeared in person with his attorney, Alexander Esteves. The Government offered the testimony of Iowa State Troopers Justin Simmons and Chris Callaway.
The following exhibits were admitted without objection from any party: Gov't Ex. 1, a videotape of the traffic stop at issue; Gov't Ex. 2, "Government's Transcript [of the videotape] with Revisions by Federal Public Defender"; Gov't Ex. 3, "Transcript [of the videotape] prepared by Hal Sillers, International Translation Service"; Gov't Ex. 4, a consent-to-search form signed by Defendant Sereno, with English translation; and Defense Ex. A, a police report prepared by Trooper Simmons concerning the traffic stop at issue in the defendants' motions.
The court has reviewed the parties' briefs and carefully considered the evidence, and now considers the motions ready for decision.
II. FACTUAL BACKGROUND
The same factual background is relevant to both defendants' motions. On February 27, 2002, immediately before Trooper Simmons was scheduled to go on duty at 3:00 p.m., he received a telephone call from Trooper Callaway telling him to be on the lookout for a black Pontiac Grand Am with Minnesota plates bearing license number DGT 348. Special Agent Tim Shanley of the Minnesota Bureau of Criminal Apprehension had called Trooper Callaway to report that the vehicle in question was believed to be traveling on I-35, carrying three Hispanic occupants who were suspected of transporting narcotics.
Trooper Simmons went on duty at 3:00 p.m., and performed routine duties for the next several hours. At 9:10 p.m., he saw a small, dark-colored car traveling southbound on I-35. The car was in the left-hand lane, passing a semi-truck that was in the right-hand lane. Trooper Simmons turned on his radar and clocked the car at 70 mph in a 65 mph zone. He was curious as to whether this might be the vehicle Trooper Callaway had mentioned, and because the vehicle was speeding, Trooper Simmons decided to stop the vehicle. When he began pursuit, the vehicle slowed down and pulled into the right-hand lane, allowing the semi-truck it had just passed to then pass the vehicle.1 Trooper Simmons stopped the vehicle and confirmed that the license number and description matched the vehicle described to him by Trooper Callaway.
Trooper Simmons approached the passenger's side window, and saw there were two occupants in the vehicle. He told them why they had been stopped, and asked the driver for his license, registration and insurance verification. While the driver was retrieving his documents, Trooper Simmons observed the interior of the vehicle. He saw a couple of blankets and several fast-food wrappers in the back seat, and a couple of tubes of silicone caulk in a mesh pocket attached to the front seatback. He also noticed a cell phone, a phone antenna on top of the car, and the strong odor of Bounce fabric softener inside the car.2
The driver produced a Minnesota driver's license identifying him as Sereno, and some insurance papers. The passenger, Bustos, retrieved some of the papers from the glove box, and Trooper Simmons noticed Bustos's hands were shaking. Officer Simmons asked Sereno to come back and sit in the patrol car. The trooper called in Sereno's driver's license information, and while he was awaiting a response, he and Sereno engaged in casual conversation. The trooper could understand Sereno, for the most part, and Sereno appeared to the trooper not to have trouble understanding English.3
Sereno said he had been in Des Moines, Iowa, looking for an apartment because he planned to move to Des Moines to find work. Trooper Simmons said he had a friend in Des Moines, and asked Sereno in what areas of town he had been looking. Sereno was unable to identify any specific area of town where he had looked at apartments.
Trooper Simmons asked Sereno about ownership of the vehicle because the paperwork he had provided indicated it was owned by someone else. Sereno said his cousin or another family member had bought the car from a Mr. Cortez, and he bought the car from that cousin or family member. Sereno did not give the trooper a phone number for Cortez, and he could not produce any paperwork to verify that he was the vehicle's owner. In the meantime, Trooper Callaway had driven to the scene after hearing Trooper Simmons call in the vehicle's license number. When he arrived, Trooper Callaway sat in the back seat of Trooper Simmons's patrol car and listened to the conversation between Trooper Simmons and Sereno for a few minutes. The insurance papers Sereno had provided were for a different vehicle, and Trooper Callaway got out of the patrol car and went up to talk to Bustos to see if he could find any other insurance papers inside the car. Bustos asked Trooper Callaway to push down on the passenger's window to help it go down, and the trooper said it was difficult to get the window down.4
While Bustos looked for the insurance papers, Trooper Callaway talked to Bustos briefly. Bustos said he and Sereno had gone to Des Moines to meet girls. He later said they were looking for jobs in Des Moines. Trooper Callaway testified Bustos "seemed unusually nervous," and his nervousness appeared to increase each time the trooper spoke to him. Trooper Callaway noticed a strong smell of fabric softener emanating from the car. He also noticed the silicone tubes, blankets, fast-food wrappers, and cell phone, as well as a very small plastic baggie in the glove box that was visible when Bustos opened the box to look for the insurance papers.
About half an hour after Trooper Simmons had stopped the vehicle, Bustos finally located the appropriate insurance verification inside the vehicle. Trooper Callaway took the insurance verification back to Trooper Simmons's patrol car, and again sat in the back seat. Once Trooper Simmons had verified that Sereno had proper insurance, he completed a warning ticket, had Sereno sign the ticket, returned all Sereno's paperwork, and told Sereno he was free to leave. As Sereno was preparing to leave, but before he had actually opened the door of the patrol car, Trooper Callaway mentioned to Sereno that he had seen the little plastic bag in the glove box,5 and he asked Sereno if there were any illegal narcotics in the car. Sereno said there were no drugs in the car, responding negatively when Trooper Callaway specifically mentioned marijuana, cocaine, methamphetamine and heroin. Sereno said there were no guns in the car, and nothing illegal of any kind.
Trooper Callaway asked, "Can we search the car?" and Sereno answered, "Sure." Trooper Callaway stated five to ten minutes had elapsed from the time Bustos found the proper insurance papers in the car, and only about one minute had elapsed from the time Trooper Simmons issued the warning and told Sereno he was free to go, to the time when Trooper Callaway asked Sereno for consent to search the car.
Trooper Callaway asked if Sereno could read Spanish, and Sereno said he could. Trooper Callaway handed Sereno a consent-to-search form in Spanish, on which the trooper had written the car's license plate number (DGT 348) and the words "and contents." Sereno began to read the form, and the following exchange took place between Sereno and Trooper Simmons:6
SERENO: What's this for, DG
SIMMONS: That's the license plate, DGT 348
SERENO: Oh, oh. Oh, sure, sure
SIMMONS: Um, and if you want, you can sign on there. . . . No, I'm not
making you sign that, understand you don't have to sign that
You know what I'm saying? I'm not making you sign that
SERENO: Uh-huh.
SIMMONS: Okay?
SERENO: Oh. Oh, you, you gonna check the (unintelligible) for something is wrong or you wanna check the car plates?
SIMMONS: No, no. I put the plates because that's what car it is.
SERENO: Uh-huh.
SIMMONS: That — the DGT 34 . . . that's the car.
SERENO: Oh, yeah.
SIMMONS: Okay.
SERENO: You want to check the car, oh.
SIMMONS: Yeah.
SERENO: Oh, you want me to sign that?
SIMMONS: Right there, if you'd like to. . . .
Sereno signed the consent form. Trooper Simmons stated Sereno did not appear nervous and did not object in any way to the troopers searching the car. Trooper Callaway testified he believed it was clear to Sereno that the troopers intended to search the car, and there was no confusion about their intentions.
Trooper Simmons testified that prior to beginning the search, his suspicions had been raised by the following factors: (1) the vehicle's owner was not present; (2) Sereno was not sure who had given him the car, saying he thought he had gotten it from a cousin, who had gotten it from a Mr. Cortez; (3) the driver and passenger were from different states; (4) fast food...
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