Us v. Hephner
| Decision Date | 08 May 2003 |
| Docket Number | No. CR 02-0023 LRR.,CR 02-0023 LRR. |
| Citation | 260 F.Supp.2d 763 |
| Parties | UNITED STATES of America, Plaintiff, v. Jesse HEPHNER and Shannon Wayne Kramarczyk, Defendants. |
| Court | U.S. District Court — Northern District of Iowa |
Daniel C. Tvedt, U.S. Attorney's Office, Ceader Rapids, IA, for Plaintiff.
David Nadler, Johnston & Nathnson PLC, Ceder Rapids, IA, defendants.
TABLE OF CONTENTS
I. STANDARD OF REVIEW .......................................................... 767
II. FACTS ...................................................................... 767
III. DISCUSSION ................................................................ 770
A. Initial Stop ........................................................... 770
B. The Searches ........................................................... 771
1. Scope of the Consent to Search the Truck ............................ 771
2. Consent to Search the Toolbox in the Truck .......................... 772
a. Scope of the Consent to Search Toolbox ........................... 773
b. Actual Authority to Search Toolbox ............................... 773
c. Apparent Authority to Search Toolbox ............................. 775
d. Implied Consent to Search Toolbox ................................ 776
3. Length of the Stop .................................................. 776
4. Certification of the Canine ......................................... 776
C. Hephner's Statements ................................................... 777
1. Whether Hephner Was "In Custody" .................................... 778
2. Whether Hephner Waived His Right to Consult Counsel ................. 779
IV. CONCLUSION ................................................................. 779
This matter is before the Court on Jesse Hephner's and Shannon Wayne Kramarczyk's objections to the Report and Recommendation of Magistrate Judge John Jarvey [docket no. 39] on Defendants' Motions to Suppress
Jesse Hephner ("Hephner") filed Motions to Suppress on May 30, 2002 and June 4, 2002. Magistrate Judge Jarvey held an evidentiary hearing on the motions on June 24, 2002. Following the hearing, it was revealed for the first time that videotapes of the traffic stop in question had been made. Hephner moved for further hearing on his Motions to Suppress. Shannon Wayne Kramarczyk ("Kramarczyk") joined in Hephner's Motions to Suppress on July 26, 2002. Pursuant to Hephner's request, Magistrate Judge Jarvey took additional evidence on the Motions to Suppress on October 10, 2002. On January 21, 2003, Magistrate Judge Jarvey issued a Report and Recommendation that the Motions to Suppress be denied.
This Court held a hearing on the Report and Recommendation on April 2, 2003 because it appeared to the Court that defense counsel was raising an objection on appeal that had not been raised and fully litigated before Magistrate Judge Jarvey. Kramarczyk's attorney, Jane Kelly, objected to the hearing, arguing that she had raised the issue before the magistrate judge.
Pursuant to 28 U.S.C. § 636(b)(1)(C), the district court is to make a de novo determination of those portions of the report or specified proposed findings or recommendations to which the defendant objects.
28 U.S.C. § 636(b)(1)(A) provides that the district judge shall reconsider any pretrial order where the movant succeeds in showing that the magistrate judge's order is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(C) provides that the district judge shall make a de novo determination of those portions of the report or recommendation to which the movant objects. See also United States v. Felipe Lothridge, 324 F.3d 599, 600 (8th Cir. 2003). The district judge may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. The district court judge may also receive further evidence or recommit the matter to the magistrate with instructions. 28 U.S.C. § 636(b)(1).
Defendants have made specific, timely objections in this case; therefore, de novo review of "those portions of the report or specified proposed findings or recommendations to which objection is made" is required. See 28 U.S.C. § 636(b)(1).
The facts as found by Magistrate Judge Jarvey are undisputed by the parties. The Court finds the facts as follows:
This case originated following a traffic stop in the Northern District of Iowa. On April 3, 2002, at approximately 10:30 a.m., Defendants were stopped by Iowa State Troopers while traveling east in a truck on Interstate 80 near the Little Amana, Iowa exit. Jesse Hephner was a passenger in a truck driven by Shannon Kramarczyk. Prior to the stop, the Iowa State Patrol had received information from Wisconsin law enforcement alerting them that a particularly-described truck registered to Kramarczyk would be passing through Iowa in route to Wisconsin from California. The truck was reported to be carrying cocaine to Wisconsin. Wisconsin law enforcement described the vehicle as a black Dodge truck bearing Wisconsin license plate number 396702 with a yellow stripe and many after-factory add-ons. Wisconsin law enforcement indicated that the truck might have a loud exhaust system. Kramarczyk's truck matched the description given by Wisconsin law enforcement, right down to the license plate. The information from Wisconsin advised the Iowa troopers to "make your own case," meaning that Wisconsin law enforcement officers were unable to supply specific grounds for a traffic stop.
Iowa State Troopers Adkins and Snedden received a cell phone call from Iowa State Trooper Rozendaal in which they were apprised of the information from Wisconsin law enforcement. Troopers Adkins and Snedden positioned their patrol cars in the median of Interstate 80 to enable them to monitor eastbound traffic. While the troopers were sitting in Trooper Adkins' car, a truck matching the description of the wanted truck passed them. The muffler was loud enough that Trooper Adkins was able to hear the truck's exhaust system as it went by, even with the patrol car windows rolled up and with his car radio on. In his opinion, the muffler was excessively loud and the truck was in violation of an Iowa law prohibiting excessively loud exhaust systems. Trooper Snedden got out of Trooper Adkins' car and into his own car. Trooper Adkins pursued the truck and stopped it in approximately four miles. Trooper Snedden arrived at the scene of the stop shortly thereafter.
Kramarczyk was identified as the driver of the truck. Hephner was the passenger. Kramarczyk was separated from Hephner and each was asked questions by Troopers Adkins and Snedden. Hephner and Kramarczyk gave conflicting accounts of where they had been and why they had been there. Hephner claimed to be coming back from Reno, Nevada. He stated that he had lost his job and he and Kramarczyk had gone to Reno to gamble. Kramarczyk admitted he owned the truck. He told the troopers that he and Hephner (his cousin) had been in Wyoming visiting a friend for Easter vacation. Kramarczyk was unsure of the name of the town in Wyoming and stated that he and Hephner were on their way back to Wisconsin.
As soon as Kramarczyk got into Trooper Adkins' patrol car, Trooper Adkins informed Kramarczyk that he was being given a warning for an excessively loud exhaust system. Trooper Adkins told Kramarczyk that he could hear it over the sound of his radio as the truck passed him on the highway. Following a discussion about registration papers, Kramarczyk told the trooper that his cousin had been stopped for the same offense but that his cousin's truck was a lot louder. He then told Trooper Adkins that he had put on "resonated tips" to quiet the muffler. Approximately seven minutes after the stop began, Trooper Adkins requested the passenger's identification. An extended search for a current registration for the truck began nine minutes after the car was stopped. Twelve minutes after the stop, Trooper Adkins noted that the driver did not have proof of insurance and that this infraction would be added to the warning ticket. Pursuant to a question by Kramarczyk, Trooper Adkins examined some papers to determine what the requirement was in Wisconsin regarding carrying proof of insurance. Fourteen minutes after the stop, Kramarczyk was given the warning ticket.
Immediately after Kramarczyk got the warning ticket, Trooper Adkins asked if Kramarczyk had anything illegal in the truck. Kramarczyk said that he did not. When asked whether it would be okay to search the truck, Kramarczyk unequivocally stated, "Sure, go ahead." Kramarczyk then signed the consent to search form (Government Exhibit 1) at 10:45 a.m. and the search began.
While Adkins was talking with Kramarczyk, Iowa State Trooper Hernandez, a K-9 officer, came to the scene with his drug dog, Woody. Within minutes after consent to search was given, Trooper Hernandez directed Woody to the truck. Woody gave a positive indication for narcotics inside the truck and near a duffel bag in the bed of the truck. After the dog alerted to the truck, the troopers decided it would be safer to continue the search of the truck at an Iowa Department of Transportation ("DOT") maintenance garage in Oakdale, Iowa. Iowa State Trooper Rozendaal arrived on the scene to assist. The troopers testified that the garage was approximately 15 miles east of the point of the traffic stop on Interstate 80. Kramarczyk and Hephner were not asked whether they were willing to go to Oakdale; however, Kramarczyk assisted Trooper Adkins in finding the keys to the truck and gave him advice as to how to drive it. Neither subject offered any objection to the change in...
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