Opinion
No. 8:99CR253
February 2000.
REPORT AND RECOMMENDATION
This matter is before the court on the following motions:
Defendant Martin Mendiola-Moncada's (Mendiola) motion to suppress (Filing No. 19).
Defendant Jose Orozco's (Orozco) motion to suppress (Filing No. 20).
The defendants seek to suppress evidence seized and statements made on November 9, 1999, during the traffic stop of a vehicle driven by Mendiola. See Filing Nos. 19 and 20. The defendants are charged with one count of possession of cocaine with intent to deliver in violation of 21 U.S.C. § 841(a). See Filing No. 1.
On January 5, 2000, the court held an evidentiary hearing on the defendants' motions. Omaha Police Officers Douglas E. Henry (Henry) and John J. Neaman (Neaman), and the defendant, Martin Mendiola-Moncada, testified at the hearing. The court received into evidence an Omaha Police Department supplementary report (Exhibit 1), a photograph of the front seat of a car (Exhibit 2) and a photograph of a bag and its contents (Exhibit 3). On January 19, 2000, a transcript (TR.) of the hearing was filed (Filing No. 27). The government submitted a post-hearing brief on January 12, 2000. Mendiola submitted no post-hearing brief. Orozco submitted a post-hearing brief on February 1, 2000, whereupon the motions were deemed submitted.
FINDINGS OF FACT
Officer Henry has been employed with the Omaha Police Department for 15 years (TR. 7). Officer Henry has worked in the narcotics unit for approximately 11 years (TR. 7). As part of an ongoing investigation, on November 9, 1999, at approximately 3:00 p.m., Officer Henry posed as a buyer of cocaine (TR. 9-10). Prior to that time, Sergeant Ray Fidone and Special Agent Balli received information from a confidential informant (CI) that a person name "Martin" had a quantity of cocaine to sell (TR. 9-10). The officers, through the CI, arranged the purchase of one-half pound of cocaine (TR. 10). Based upon the arrangement, Officer Henry began surveillance and met with the CI (TR. 11-13). Officer Henry instructed the CI, who would be riding with the suspect, to hang his arm out of the window if the cocaine was in the vehicle (TR. 13). Officer Henry met with the CI and Martin, who was later identified as Mendiola, at the Burger King on 30th and Dodge St. (TR. 14-15). The CI acted as an interpreter for Officer Henry and Mendiola during negotiations for the purchase of cocaine (TR. 14-15). Orozco remained in the vehicle during this negotiation (TR. 15). Officer Henry made arrangements to meet Mendiola at a park on 31st and Farnam St. approximately one hour later (TR. 15).
Officer Henry testified surveillance revealed the CI, Mendiola, and Orozco drove to apartments on 29th and Woolworth St. (TR. 16). Mendiola waited outside the apartments for approximately one-half hour, at which time, the CI and Orozco exited the apartments. The three drove a circuitous route to 31st and Farnam St. (TR. 16-17). Officer Henry did not contact Mendiola in the park (TR. 17). As Mendiola drove away from the park, the CI hung his arm out of the window signaling the presence of cocaine in the vehicle (TR. 17). Officer Henry testified Sergeant Fidone authorized a traffic stop of the vehicle as it left the park because, the investigation revealed, the driver, Mendiola, did not have a valid driver's license and the CI had signaled the presence of cocaine (TR. 19-20; Exhibit 1).
Officer Neaman has been employed with the Omaha Police Department for 13 years (TR. 31). Officer Neaman participated in the investigation and traffic stop of Mendiola and Orozco on November 9, 1999, at approximately 5:00 p.m. (TR. 31). Officer Neaman and Officer Brian Janousek were uniformed and driving a police cruiser (TR. 32). Officer Neaman testified another officer informed Officer Neaman over the police radio that the CI had hung his arm out of the window signaling the presence of cocaine in the vehicle (TR. 33). Officer Neaman testified Sergeant Fidone instructed Officer Neaman to conduct a traffic stop of Mendiola at that time (TR. 33). Officer Neaman testified he had no knowledge if Mendiola had a driver's license prior to the stop (TR. 33).
Officer Neaman stopped Mendiola's vehicle at 36th and Harney St. (TR. 34). Officer Neaman approached the driver while Officer Janousek approached the passenger side of the vehicle (TR. 34). Officer Neaman saw three people in the vehicle (TR. 34). Officer Neaman asked Mendiola for his license and registration (TR. 34). Mendiola responded he did not have a driver's license (TR. 34). Mendiola testified that, because he does not understand English, he thought Officer Neaman requested only the vehicle title and insurance information, which Mendiola gave to the officer (TR. 60). Mendiola testified he did not have a driver's license on November 9, 1999 (TR. 61).
Officer Neaman instructed Officer Janousek to remove the passenger from the vehicle (TR. 34). Officer Neaman testified he looked around the inside of the vehicle for weapons as is customary as a safety precaution during a traffic stop (TR. 35). As the front seat passenger, who was later identified as the CI, exited the vehicle he pushed a potato chip bag away from his lap (TR. 35, 42). Officer Neaman observed, with the aid of his flashlight, a clear ziplock bag with a white substance inside (TR. 35). Based on his experience as an officer, Officer Neaman supposed the white substance was powder cocaine (TR. 36).
Officer Neaman testified the narcotics unit officers arrived on the scene minutes after the traffic stop (TR. 40). Officer Neaman stated he spoke to the back seat passenger, Orozco, explaining what was going on. Officer Neaman testified he did not question Orozco (TR. 40-41). Officer Neaman testified Orozco advised the officer that he (Orozco) did not know anything about the narcotics (TR. 43). Officer Neaman heard no other statements made by Orozco (TR. 43). Officer Neaman did not read Orozco his Miranda rights (TR. 43). Officer Neaman testified narcotics officers questioned Mendiola and Orozco at the scene, but Officer Neaman did not know what took place during those discussions (TR. 43-44, 48).
LEGAL ANALYSIS
A. Standing
The defendants seek to suppress the evidence seized from the vehicle on November 9, 1999, on the basis that the evidence obtained was the fruit of an unlawful stop. The government stipulates to standing with regard to Mendiola, the driver of the vehicle (TR. 5). However, during the hearing, the government disputed standing as to Orozco, a passenger of the vehicle, to object to the legality of the stop (TR. 5). The passenger in a vehicle may challenge the legality of a stop and argue suppression of evidence as the fruit of illegal activity. United States v. Lyton , 161 F.3d 1168, 1170 (8th Cir. 1998). Accordingly, Orozco has standing to object to the legality of the stop.
Traffic Stop
The defendants argue the traffic stop, conducted by Officer Neaman, on November 9, 1999, was unlawful because the stop lacked probable cause. See Mendiola Brief, p. 2; Orozco Post-Hearing Brief, p. 3. The defendants argue Sergeant Fidone lacked an objectively reasonable belief to initiate the traffic stop, predicated upon Mendiola's want of a driver's license, because eight days had passed since learning of Mendiola's driver's license status. See Mendiola Brief, p. 2; Orozco Post-Hearing Brief, p. 3. Officer Neaman, the officer who effected the traffic stop, did not learn of Mendiola's driver's license status, however, until after the stop (TR. 33). Officer Neaman testified the reason for the stop was information from other enforcement officers regarding the presence of cocaine in the vehicle based upon the CI's signal (TR. 33).
Courts have held:
The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. A traffic stop is a "seizure" within the meaning of the Fourth Amendment, "even though the purpose of the stop is limited and the resulting detention quite brief." Delaware v. Prouse , 440 U.S. 648, 653, 99 S.Ct. 1391, 1395-96, 59 L.Ed.2d 660 (1979). A routine traffic stop, however, is more analogous to an investigative detention than a custodial arrest. See United States v. Jones , 44 F.3d 860, 871 (10th Cir. 1995). We therefore analyze such stops under the principles developed for investigative detentions set forth in Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See Botero-Ospina , 71 F.3d [783] at 786 [(10th Cir. 1995), cert. denied, 518 U.S. 1007 (1996)]. To determine the reasonableness of an investigative detention, we make a dual inquiry, asking first "whether the officer's action was justified at its inception," and second "whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry , 392 U.S. at 20, 88 S.Ct. at 1879.
United States v. Hunnicutt , 135 F.3d 1345, 1348 (10th Cir. 1998); see United States v. Tuley , 161 F.3d 513, 515-16 (8th Cir. 1998). Similarly, the Eighth Circuit has held "when police have no probable cause to stop for a traffic violation, a purely investigative stop must be based upon at least a reasonable suspicion "that either the automobile or its occupants are subject to seizure under the applicable criminal laws." United States v. $404,905.00 in U.S. Currency , 182 F.3d 643, 646 (8th Cir. 1999) ( citing Prouse , 440 U.S. 648 at 655). A reasonable articulable suspicion of criminal activity justifies the stop, detention and investigation of a vehicle and its occupants. Terry , 392 U.S. at 20; Tuley , 161 F.3d at 515. Regardless of any probable cause to stop Mendiola for a traffic violation, the court finds the traffic stop was not constitutionally infirm. In this case, the officer effecting the stop was involved in surveillance of the defendants prior to the stop and informed by other officers that a CI in the vehicle signaled the presence of cocaine. The court finds Officer Neaman stopped Mendiola on the basis of a reasonably articulable suspicion that cocaine was present in the vehicle. Therefore, the seizure was based upon a reasonably articulable suspicion and satisfies the first prong of Terry that the initial stop be justified. Additionally, the entire investigatory stop, which lasted the few minutes it took Officer Neaman to learn Mendiola did not possess a driver's license and to uncover illegal narcotics, complied Terry's mandate to stay within the scope of the circumstances justifying the original stop.
Moreover, the information provided to Officer Neaman, and observed by other officers, rose to the level of probable cause. See United States v. Caldwell , 97 F.3d 1063, 1067 (8th Cir. 1996) (objective facts received from other officers supported probable cause). "Probable cause [for arrest or for search and seizure] exists when a practical, common-sense evaluation of the facts and circumstances shows a fair probability that contraband or other evidence will be found in the asserted location." United States v. Adams , 110 F.3d 31, 33 (8th Cir. 1997) ( citing Illinois v. Gates , 462 U.S. 213, 238 (1983)); see also United States v. Dawdy , 46 F.3d 1427, 1431 (8th Cir. 1995) ( citing Carroll v. United States , 267 U.S. 132, 162 (1925)). Accordingly, the traffic stop of Mendiola's vehicle was within the bounds of the Fourth Amendment justified by reasonable suspicion or probable cause, without regard to a traffic violation supporting the stop.
C. Statements and Evidence
The exclusionary rule prohibits the admission of evidence unconstitutionally obtained. Weeks v. United States , 232 U.S. 383 (1914). The rule applies to evidence, tangible and testimonial, which was derived, directly or indirectly, from the unconstitutionally obtained evidence, i.e., the "fruit of the poisonous tree." Wong Sun v. United States , supra; Nardone v. United States , 308 U.S. 338 (1939); Silverthorne Lumber Co. V. United States , 251 U.S. 385 (1920). The court has found Mendiola's vehicle was not illegally stopped and the evidence stemming from the stop should not be suppressed. Therefore, evidence and statements asserted to be suppressed as the fruit of an illegal stop should not be suppressed pursuant to Wong Sun v. United States , 371 U.S. 471 (1963). The evidence seized from the vehicle on November 9, 1999, should be admissible against the defendants in any trial of this matter. Statements made by the defendants are discussed below.
Mendiola
During the evidentiary hearing, the government stated the only statements made by Mendiola it intended to introduce in its case-in-chief were made subsequent to an advice of rights (TR. 65-66). Counsel for Mendiola stated the objection and motion were related solely to statements excludable as fruit of the poisonous tree or product of an illegal stop (TR. 66). No such statements were in evidence at the hearing.
Orozco
The government indicated at the hearing it intends to introduce in its case-in-chief two statements made by Orozco (TR. 66-67). The statements are: "I was not involved" and "I was just translating." See Government's Brief, p. 6. Officer Neaman testified Orozco made the statement to the effect that Orozco did not know anything about the cocaine (TR. 43). Officer Neaman testified the statement was made in response to the officer explaining to Orozco what was going on at the scene, i.e., "we're doing a narcotics investigation and everybody is going to be detained until we figure out . . . what's going on" (TR. 43). Officer Neaman testified he did not question Orozco (TR. 40-41).
The court further finds Orozco's statement to Officer Neaman was voluntarily given. Whether a person's statements and actions are voluntary or not depends on the totality of the circumstances. Stansbury v. California , 511 U.S. 318, 114 S.Ct. 1526 (1994); United States v. Knight , 58 F.3d 393, 397 (8th Cir. 1995), cert denied, 116 S.Ct. 827 (1996); United States v. Severe , 29 F.3d 444, 446 (8th Cir. 1994), cert denied, 513 U.S. 1096 (1995). Based on the foregoing description of events and given the totality of the circumstances, Orozco's statement, after being informed of the reason for the traffic stop, can only be described as voluntarily given. The statement should be admissible against Orozco in any trial of this matter.
Insufficient evidence was presented at the hearing to show the voluntariness of the statement: "I was just translating." The statement was made to an officer not present at the hearing and Exhibit 1, which contains the statement, is unclear with regard to the timing and voluntariness of the statement. Accordingly, the statement should not be admissible against Orozco.
IT IS RECOMMENDED TO JUDGE JOSEPH F. BATAILLON that:
Defendant Martin Mendiola-Moncada's (Mendiola) motion to suppress (Filing No. 19) be denied. Defendant Jose Orozco's (Orozco) motion to suppress (Filing No. 20) be denied as to evidence seized and the statement made during the traffic stop, but granted as to the statement made about being a translator.
ADMONITION
Pursuant to NELR 72.4 any objection to this Report and Recommendation shall be filed with the Clerk of the Court within ten (10) days after being served with a copy of this Report and Recommendation. Failure to timely object may constitute a waiver of any such objection. The brief in support of any objection shall be delivered to Judge Joseph F. Bataillon at the time of filing such objection. Failure to submit a brief in support of any objection may be deemed an abandonment of the objection.