US v. Abreu
| Decision Date | 06 February 1990 |
| Docket Number | Civ. A. No. 89-CR-316. |
| Citation | 730 F. Supp. 1018 |
| Parties | UNITED STATES of America, Plaintiff, v. Jose ABREU, Defendants. |
| Court | U.S. District Court — District of Colorado |
COPYRIGHT MATERIAL OMITTED
Michael P. Carey, Katherine Meyer, Asst. U.S. Attys., Denver, Colo., for plaintiff.
Michael L. Bender, Stephanie B. Boyer, Bender & Treece, P.C., Denver, Colo., for defendants.
The defendant, Jose Abreu (Abreu), filed a motion to suppress evidence seized at the Loma, Colorado port of entry, statements made over the telephone just prior to his arrest and thereafter, and the fruits of his arrest and search of his New York apartment. Abreu also seeks return of an automobile seized by DEA agents on his arrest. For the reasons stated hereafter, I deny the motions.
The Colorado Department of Revenue has established eleven fixed weigh and check points. The port of entry at I-70 in Loma, Colorado is located about 15 miles east of the Colorado-Utah border on I-70. The port of entry handles all east-west commercial vehicles with a gross empty vehicle weight of 10,000 lbs. or greater or vehicles transporting hazardous materials. It is open 24 hours a day to eastbound traffic and during the daytime hours only to westbound traffic. Approximately 600 vehicles enter the port daily. The vehicles are inspected for safety and hazardous materials and to assess and collect taxes. The officers usually perform 8-10 inspections per day and the inspections normally last from 30 to 60 minutes.
As part of the safety inspection, port of entry officers are instructed to look for a color-coded safety inspection sticker which commercial vehicles are required by the North American Commercial Safety Alliance to obtain quarterly and display in the lower right windshield. For purposes of tax assessment, some commercial vehicles obtain a prorated plate which allows them to pay taxes in their home state. The home state then pays a portion of the tax to the other states through which the commercial vehicle travels. Other commercial vehicles pay tax on a trip by trip basis. If the port of entry officer does not see the pro-rated plate, he must weigh and inspect the truck in order to assess taxes.
Vehicles without current inspection stickers are moved into the scale lane. The vehicles are driven onto the scale and weighed across each axle. The driver speaks through a speaker atop a pole. Once the vehicle is weighed it is moved into the inspection lane for inspection.
On Friday, September 8, 1989 at about 1:30 p.m., a blue tractor with an attached silver trailer pulled into the Loma port of entry for eastbound traffic. Colorado Department of Revenue Officer, Motor Carrier Safety Inspector, Kevin Edens (Edens), was on duty and available to conduct an inspection of the vehicle. Edens' duties include the inspection of commercial vehicles for safety, the inspection of cargo for proper load-locking and hazardous materials, and the assessment and collection of tax revenue.
The tractor was a 1985 Kenworth with New Jersey license plate number XS98AL and a vehicle identification (VIN) number 405117BR3JM0008211. The trailer was a 1979 Dorsey with a VIN number 13186. The license plate on the trailer was New Jersey license plate number T388FL, which was registered to a different trailer, a 1984 Dorsey with a VIN number 44339. The tractor had no current vehicle safety inspection sticker in the lower right windshield as required by the North American Commercial Safety Alliance. The tractor-trailer was weighed and the driver, Escano, advised the weighmaster that the trailer was empty. The weight was determined to be 39,000 pounds or approximately 4,000 pounds over empty weight for this particular rig.
The tractor-trailer then was moved into the safety inspection lane. The inspection yard at the Loma Port of Entry is from 130 to 150 feet from the main building and is encircled by a fence. Edens approached Escano and told him that he was conducting a safety inspection of the vehicle and requested that Escano produce his driver's license, medical card, log book, and tax stamps. Escano initially produced only a driver's license application and a learner's permit which showed him to be 19 years old, under the 21 year minimum age required for the interstate transportation of cargo. Edens then spoke to the only passenger in the tractor-trailer, Brito, and discovered that he had a New York State commercial vehicle driver's license, but also was under age for the interstate transportation of cargo. Edens completed a violation sheet, citing Escano for not having a valid driver's license and asked Escano and Brito to accompany him to the port of entry building to get their tax permit started and to obtain a cash clearance.
Edens then asked Escano where they were coming from, their destination, and the contents of the trailer to compute and assess the mileage tax. Escano replied that they came from Salt Lake City and that the trailer was empty. Escano told Edens that they were enroute to New York City. Edens testified that this was not the most direct route for truckers. Edens asked if they were going to pick up anything and Escano said no. Escano told Edens that he and Brito had flown from New York to Salt Lake City because their truck had broken down in an empty parking lot and they were returning it to New York.
On their way to the port of entry building, Edens asked Escano and Brito to retrieve the registration from the tractor-trailer to compute taxes. Edens went alone into the port of entry building where he told his supervisor that he had a suspicious contact and to "watch his back."
When Edens returned to the truck, Escano told him that they did not have the trailer's vehicle registration documents. Escano did have a vehicle registration for the tractor showing defendant Jose Abreu (Abreu) to be the owner. Escano also had a resident alien card which he gave to Edens. Edens again asked Escano if the truck was empty and Escano replied yes. Edens noticed that the trailer was padlocked and asked Escano to open it. Escano did not object. He retrieved the key from the cab and opened the padlock to the trailer doors.
Edens looked inside and saw wooden pallets in the front of the trailer. The pallets were secured with two load locks. Edens climbed into the trailer and saw cardboard between the pallets. He asked Escano what it was and Escano replied that he did not know. Escano helped Edens move the pallets and Edens saw that there was a row of taped cardboard U-Haul boxes underneath the pallets. There were no placards for the cargo and nothing to indicate specifically that the cargo contained hazardous materials. However, Edens did not see any leaks, fumes, or clouds, or smell any odors.
Edens testified credibly. He stated that he had no idea what was in the boxes, but that he was suspicious. Edens testified that it was his custom to physically examine load-locking bars securing cargo, that it was unusual for cargo to rest on the floor of a trailer with pallets riding on top and in front of the cargo rather than the cargo riding on top of the pallets, and that in his considerable experience he had never before encountered two underage drivers operating an interstate commercial vehicle. Edens left the trailer, took his supervisor to one side, and asked him to call the Colorado State Patrol.
Colorado State Patrol Trooper Andrew Murin (Murin) arrived at the port of entry within 5 to 10 minutes. Escano and Brito were inside the port of entry building. Edens met Murin outside and told Murin that he had two underage drivers who did not have the required medical cards or log book with undeclared freight in the trailer, and a registration card for the tractor but none for the trailer. Edens gave Murin Escano's resident alien card and the other documents. Murin went into the port of entry building and arrested Escano and Brito for the interstate transportation of cargo while under age and handcuffed them.
Murin and Edens then went out to the tractor-trailer. The trailer doors were open. Murin climbed into the trailer and looked at the U-Haul boxes under the pallets and pulled one out. Murin testified credibly. He stated that he was not conducting an inventory. He had not gotten that far yet. He testified that "something was amiss". He suspected something "fishy" such as contraband, guns, drugs, or hazardous materials. Murin also testified that he did not think that he needed probable cause to search the boxes when he put on thin rubber gloves, removed a box, and opened it with a knife to inspect its contents. Inside the box was a package wrapped in opaque brown plastic with a "Metro" label on it. Murin cut the bag open and saw a white crystalline powder. Murin then went inside the port of entry building, advised Escano and Brito of their Miranda rights, and called the Mesa County Narcotics Team.
Shortly thereafter, Mesa County Sheriff's Department Detective Steven Stogsdill (Stogsdill), who is a member of the Mesa County Narcotics Enforcement Team, and Detective Timothy Grimsby (Grimsby), of the Grand Junction Police Department arrived at the port of entry. Grimsby brought his narcotics detection dog, Duke. Stogsdill and Grimsby entered the trailer and showed Duke the boxes. Duke signaled positive for the presence of narcotics.
Stogsdill took custody of the plastic bag with the white powder that Murin found. Stogsdill took the white powder to Jerry Hill (Hill), laboratory technician for the Grand Junction Police Department. Hill performed chemical tests on the powder and the results were positive for cocaine. The tractor-trailer was sealed, impounded, and driven by Edens to Grand Junction for inventory.
A search warrant for the tractor and trailer was obtained at about 5:00 p.m. At 6:00 p.m., Stogsdill searched the tractor-trailer pursuant to the search warrant. 474 kilograms of cocaine were...
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