United States v. Moreno, No. CR00-3014-MWB (N.D. Iowa 9/6/2000)
| Decision Date | 06 September 2000 |
| Docket Number | No. CR00-3014-MWB.,CR00-3014-MWB. |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. EDDIE ALCAREZ MORENO and VICTOR ROJAS MADRIGAL, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
On April 13, 2000, a one-count indictment was returned against defendants Eddie Alcarez Moreno and Victor Rojas Madrigal, charging each with possessing with intent to distribute more than 500 grams of methamphetamine, in violation of 21 U.S.C. §§ 841 (a)(1) and 841(b)(1)(A).1 The methamphetamine which forms the basis for the charge against each of these defendants was discovered as the result of a traffic stop of the automobile in which defendants were travelling.
On June 1, 2000, defendant Moreno filed his Motion For Suppression Of Wiretaps, Oral Communications Or Other Electronic Eavesdropping (#26) and his Motion To Suppress Evidence Obtained Through Illegal Search (#28). Defendant Madrigal joined each of defendant Moreno's motions, but subsequently withdrew his joinder to defendant Moreno's Motion For Suppression Of Wiretaps, Oral Communications Or Other Electronic Eavesdropping. Defendants' motions to suppress were referred to United States Magistrate Judge Paul A. Zoss, pursuant to 28 U.S.C. § 636(b), for the purpose of holding an evidentiary hearing and preparing a Report and Recommendation on defendants' motions to suppress. On June 28, 2000, an evidentiary hearing was held, and on July 14, 2000, Judge Zoss filed a Report and Recommendation in which he recommends that defendants' Motion To Suppress Evidence Obtained Through Illegal Search be granted but recommends that defendant Moreno's Motion For Suppression Of Wiretaps, Oral Communications Or Other Electronic Eavesdropping be denied. The government filed objections to Judge Zoss's Report and Recommendation on July 20, 2000. The court, therefore, undertakes the necessary review of Judge Zoss's recommended disposition of defendants' motions.
The government has filed five factual objections to Judge Zoss's Report and Recommendation, and three objections to the legal conclusions reached by Judge Zoss in his Report and Recommendation. Specifically, the government asserts that Judge Zoss's legal conclusions were incorrect in the following three respects: First, the government asserts that the Iowa State Trooper's stop of the automobile in which defendants were travelling was lawful. Second, the government contends that defendant Moreno's consent to search the automobile was voluntary. Finally, the government asserts that defendant Madrigal does not have a reasonable expectation of privacy in the automobile and therefore, even if the evidence is suppressed, it should be suppressed only as to defendant Moreno.
The court held telephonic oral arguments on the government's objections on August 25, 2000. At the oral arguments, the government was represented by Assistant United States Attorney C.J. Williams. Defendant Moreno was represented by Charles Lee Hawkins, Minneapolis, Minnesota. Defendant Madrigal was represented by Assistant Federal Public Defender Jeffrey A. Neary.
Pursuant to statute, this court's standard of review for a magistrate judge's report and recommendation is as follows:
A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge].
28 U.S.C. § 636(b)(1). Similarly, Federal Rule of Civil Procedure 72(b) provides for review of a magistrate judge's report and recommendation on dispositive motions and prisoner petitions, where objections are made, as follows:
The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.
As noted above, the government has filed objections to Judge Zoss's Report and Recommendation. The court, therefore, undertakes the necessary review of Judge Zoss's recommended disposition of defendants' motions.
The court will address each of the government's factual objections seriatim.
First, the government objects to Judge Zoss's finding that the temporary transit tag was "clearly legible" from the distance in which Iowa State Trooper Chris Callaway was following the Chevrolet Beretta in which defendants were travelling. Report and Recommendation at p. 3 n.2. The government contends that the only portion of the temporary transit tag which was legible from the distance in which Trooper Callaway was following the Beretta were the four large numbers and two letters. The government further asserts that the Iowa Department of Transportation logo and the words on the tag are not legible from the distance in which Trooper Callaway was following the Beretta. The court finds that only the large numbers and letters "ZH3733" were clearly visible from the distance in which Trooper Callaway was following the Beretta. The court, however, further finds that the Iowa Department of Transportation logo and the words on the tag would have been legible to Trooper Callaway if he had pulled into the left, passing lane and driven up to near of the rear of the Beretta, an action which Trooper Callaway did not attempt before stopping the Beretta.
The government next objects to Judge Zoss's finding that from the documents defendant Moreno gave Trooper Callaway, Trooper Callaway was able to determine the Beretta's temporary transit tag was valid, but nevertheless asked defendant Moreno to come back to the patrol car while he checked the validity of defendant Moreno's driver's license. Report and Recommendation at p. 4. The court finds that after obtaining defendant Moreno's license and documents related to the registration and sale of the Beretta, but before reading any of the documents, Trooper Callaway requested that defendant Moreno come back to the patrol car. Tr. at p.22. Once at the patrol car, Trooper Callaway looked through the documents given to him by defendant Moreno, the original title for the Beretta, an Iowa registration for the car and the bill of sale for the automobile, and determined that the Beretta's registration was valid. Tr. at pp. 22, 61.
The government's third objection to Judge Zoss's findings of fact is not to a factual finding actually made by Judge Zoss but to the failure of Judge Zoss to make an additional factual finding that the government believes is significant. The government asserts prior to the second search of the Beretta, Trooper Callaway asked defendant Moreno for his consent to search the car and told him, "But if you don't want to, that's fine." The court finds that Trooper Callaway did make this statement to defendant Moreno prior to the second search of the Beretta. Ex. 1, Videotape of the Traffic Stop.
The government's fourth objection to Judge Zoss's findings of fact is again not to a factual finding actually made by Judge Zoss but to the absence of an additional factual finding. The government asserts that although defendants were given the number of the towing company which they could have used to contact Trooper Callaway, defendant Moreno never telephoned or otherwise contacted Trooper Callaway to withdraw his consent to search. The government's assertion of fact is correct, defendants were in fact given the number of the towing company which they could have used to contact Trooper Callaway. Defendant Moreno never telephoned or otherwise contacted Trooper Callaway to withdraw his consent to search.
Again, the government's objection in this instance is not to an actual factual findings made by Judge Zoss but to the absence of an additional factual finding. The government argues that the factual findings fail to indicate that defendant Madrigal was only a passenger in the vehicle and, as such, had no ownership interest in the car. The government further asserts that defendant Madrigal did not introduce any evidence at the hearing establishing that he had an expectation of privacy in the Beretta. The court finds that the record does reflect that defendant Moreno was the owner of the Beretta and that defendant Madrigal was a passenger in the vehicle on the day it was stopped by Trooper Callaway. Moreover, the court finds that defendant Madrigal did not introduce any evidence establishing that he had an expectation of privacy in the Beretta.
As noted above, the government lodges three objections to Judge Zoss's legal conclusions. First, the government asserts that asserts that Trooper Callaway's stop of the automobile in which defendants were travelling was lawful. Second, the government asserts that defendant Madrigal does not have a reasonable expectation of privacy in the automobile and therefore, even if the evidence is suppressed, it should be suppressed only as to defendant Moreno. Finally, the government contends that defendant Moreno's consent to search the automobile was voluntary. The court will take up each of the government's contentions in turn.
Initially, the government contends that Judge Zoss erred in concluding...
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