Opinion
Case No. 8:02CR24
May 20, 2002
MEMORANDUM AND ORDER
INTRODUCTION
This matter is before the Court on the Report and Recommendation (Filing No. 18) issued by Magistrate Judge Kathleen Jaudzemis recommending that the Motion to Suppress Evidence (Filing No. 12) filed by the Defendant, Jaime Quezada, be denied.
Quezada filed a Statement of Objections to the Report and Recommendation (Filing No. 19) as allowed by 28 U.S.C. § 636(b)(1)(C) and NELR 72.4. Quezada submitted a brief in support of his Objections.
Quezada is charged in a one-count Indictment with possession of a firearm not registered to him, in violation of 26 U.S.C. § 5861(d). Defendant seeks an order suppressing evidence and statements obtained as a result of a traffic stop and Quezada's arrest on October 22, 2001.
Following an evidentiary hearing on the Motions, Magistrate Judge Jaudzemis issued a Report and Recommendation in which she determined: probable cause existed for the stop of the vehicle; the traffic stop was objectively reasonable; Officer Savage's question asking whether there were guns or drugs in the vehicle was a lawful part of the investigation; Quezada's admission that a gun was in the vehicle provided probable cause for a search of the vehicle under the automobile exception; the search of the vehicle was also lawful, as it occurred pursuant to Quezada's consent and within the Terry context to ensure officer safety; Quezada's statements made in the police vehicle were voluntary and not the product of interrogation. On the basis of these determinations, Judge Jaudzemis recommended that Quezada's Motion to Motion to Suppress Evidence be denied.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court shall make a de novo determination of those portions of the report, findings, and recommendations to which Noah and Scott have objected. The Court may accept, reject, or modify, in whole or in part, the Magistrate Judge's findings or recommendations. The Court may also receive further evidence or remand the matter to the Magistrate Judge with instructions.
STATEMENT OF FACTS
The Magistrate Judge provided a detailed account of the events leading up to Quezada's arrest. The Court has considered the transcript of the hearing conducted by the Magistrate Judge on March 14, 2002 (Filing No. 16). The Court also carefully viewed the evidence. There were no objections to the Magistrate Judge's factual findings. The Court adopts the factual findings in their entirety.
OBJECTIONS
Quezada raises objections to the following conclusions of the Magistrate Judge: 1) probable cause existed to stop the vehicle; 2) Officer Savage's observation of Quezada gave rise to a reasonable suspicion of additional criminal activity, i.e. the possession of a gun; 3) Officer Savage's question asking whether a gun was in the vehicle was a lawful part of the investigation; and 4) Officer Woolman's questioning after Quezada's arrest but before the administration of Miranda warnings did not constitute interrogation.
ANALYSIS
Stop of Vehicle — Probable Cause to Believe Traffic Violations Occurred
Quezada argues that the traffic violations were "manufactured" and not supported by probable cause. Quezada therefore argues that the traffic stop was not supported by probable cause and violated the Fourth Amendment.
The Court finds that the traffic violations, changing lanes without signaling in violation of Neb. Rev. Stat. § 60-6,161 (Reissue 1999), and making a wide turn ending in the wrong lane in violation of Neb. Rev. Stat. § 60-6,159 (Reissue 1999) were indeed traffic violations and provided sufficient probable cause for the traffic stop. As the Eighth Circuit has often stated, if an officer is authorized to stop a vehicle, the officer's subjective state of mind is irrelevant for purposes of determining the validity of the stop. United States v. Alcantar, 271 F.3d 731, 736 (8th Cir. 2001), cert. denied, 122 S.Ct. 1380 (2002) (citing Whren v. United States, 517 U.S. 806 (1996)). Moreover, even a minor traffic violation creates probable cause for a traffic stop. United States v. Perez, 200 F.3d 576, 579 (8th Cir. 2000).
Stop of Vehicle — Reasonable Suspicion to Suspect Criminal Activity
Quezada also argues that Officer Savage did not have reasonable suspicion to believe that criminal activity was afoot. This argument is moot, because the traffic violations discussed above provided probable cause for the stop, and the officer's suspicions did not affect the stop's objective reasonableness. United States v. Bell, 86 F.3d 820, 820 (8th Cir. 1996) (stating that an Iowa law prohibiting riding a bicycle without a headlamp between sunset and sunrise provided probable cause for the stop, and the officer's knowledge that Bell was involved in drug activity and was a gang member did not affect the objective reasonableness of the stop).
Nevertheless, the Court will briefly address the reasonable suspicion argument. The Court must view the totality of the circumstances, in light of the officer's experience, to determine whether reasonable suspicion existed for the traffic stop. United States v. Dodson, 109 F.3d 486, 488 (8th Cir. 1997). "Reasonable suspicion" is "`a particularized and objective basis' for suspecting the person stopped of criminal activity." Ornelas v. United States, 517 U.S. 690, 696 (1996) (citing United States v. Cortez, 449 U.S. 411, 417-18 (1981). The concept of "reasonable suspicion is "fluid" and depends on the particular circumstances involved. The Court must determine whether the facts, from the viewpoint of an objectively reasonable officer, amount to reasonable suspicion. Id.
The Eighth Circuit has stated that even innocent acts may give rise to reasonable suspicion under the totality of the circumstances, and officers may consider vehicular movement that may reasonably be perceived to be suspicious. United States v. Juvenile TK, 134 F.3d 899, 903 (8th Cir, 1998). Such factors as the time of day or night, the suspect's location, and the parties' behavior once they are aware of an officer's presence may support a conclusion that reasonable suspicion exists. United States v. Dawdy, 46 F.3d 1427, 1429 (8th Cir. 1995).
In Quezada's case, as summarized in the Report and Recommendation (Filing No. 18, at 7), Officer Savage testified about the gang activity and shootings that had occurred in the area near South High School, the vicinity in which he observed Quezada. Officer Savage also testified that he saw: a group of ten to fifteen persons, with Quezada as its apparent leader, practicing fighting moves; Quezada's and his passenger's movements looking down at Quezada's lap; and Quezada placing whatever was in his lap on the floor of the vehicle and then driving with the other hand. Officer Savage testified that these observations led him to believe that Quezada was armed. This evidence amounts to more than an "unparticularized hunch."
In summary, the Court finds that Officer Savage had reasonable suspicion, under the totality of the circumstances, to stop the vehicle driven by Quezada.
Statement Responding to Question Asking Whether a Gun Was in the Vehicle
Quezada disagrees with the Magistrate Judge's reliance on United States v. Patterson, 140 F.3d 767 (8th Cir. 1998) to justify the officer's question asking Quezada whether a gun was in the vehicle. Quezada's argument is that because reasonable suspicion did not justify the stop of the vehicle, the question was not lawful pursuant to Terry v. Ohio, 392 U.S. 1 (1968).
Officer Savage testified that the question was asked as follows:
A. He initially asked me why we stopped him, and I told him for the traffic infractions as well as his behavior and gang — potential — or possible gang activity in the area of 27th and Q.
Q. Did he make any comment to that or did he respond to that?
A. I can't recall what his response was.
Q. Okay. What happened next?
A. I then asked Mr. Quezada if there were any drugs or weapons in the vehicle.
Q. What was your purpose in asking that question?
A. For our safety and under my assumption that I believed that he was armed, I wanted to see what his response would be.
Q. Okay. What was his response?
A. His response was that there was rifle in the door panel of the vehicle.
(TR 23:15-24:6.)
In Patterson, officers responded to a call about an attempted car theft involving a weapon. The officer found Patterson standing with a Mercedes, which Patterson said he was repossessing. The officer asked Patterson if he had a gun, and Patterson admitted that he had a gun in his vehicle. The officer found a gun and a large amount of cash in the vehicle, and he arrested Patterson. Patterson, 140 F.3d at 771. The Eighth Circuit found that the officer's question regarding the gun was asked in the course of a brief investigatory contact, and the inquiry was justified by reasonable suspicion of criminal activity. Id. at 772.
Therefore, the Court finds that the question posed to Quezada — whether a gun was in the vehicle — was both asked in the nature of a brief investigatory contact and justified by reasonable suspicion of criminal activity. The question was appropriately asked to dispel or confirm the officer's suspicions, and the question was limited in scope to the circumstances that justified the stop. United States v. Johnson, 64 F.3d 1120, 1124 (8th Cir. 1995); United States v. Cummins, 920 F.2d 498, 501 (8th Cir. 1990).
Post-Arrest/Pre-Miranda Questioning Voluntariness
Officer Woolman testified to the following sequence of events relating to the discussion in his police cruiser while he transported Quezada after his arrest:
Q. . . . . Who was the first person to speak?
A. . . . . [He] initiated the question to me.
Q. What was the question that he initiated to you?
A. He asked me if I had seen a blue Honda with front end damage on 24th Street.
Q. What was your response?
A. I said no, why.
Q. What did he indicate?
A. He stated that a party in that vehicle had pointed a gun at him earlier in the afternoon in the area of South High School. And that basically — that's why he had went and got the .22-caliber rifle.
Q. Did you do any follow-up conversation at that time?
A. Yes, I did.
Q. What did you say or what did you do?
A. I wanted to get some more particulars on the vehicle and what exactly happened at South High School so that I could put a broadcast out for all the other officers in the area, in case they would come into contact with this vehicle for officer safety reasons.
Q. Okay. Did you at any time ask him about his possession of the short-barrel rifle that was taken from the vehicle at the scene of the arrest?
A. No, I did not.
(TR, 60:9-61:10.)
Quezada argues that the Magistrate Judge's reliance on United States v. Hatten, 68 F.3d 257 (8th Cir. 1995) is misplaced, and the statements made to Officer Woolman in the police cruiser were not voluntary. Quezada argues that Hatten is distinguishable because in Quezada's case Officer Woolman posed a question to Quezada that elicited an incriminating response.
The Court disagrees that reliance on Hatten is misplaced. In Hatten, the Eighth Circuit found that Hatten's statements made while he was in custody at the police station were not only voluntary, but "volunteered." Id. at 260, 262. As in Hatten, Quezada initiated the discussion. Quezada did so by asking Officer Woolman about a blue Honda, which could have been understood as a mere conversational question. Officer Woolman responded with "why," at which time Quezada volunteered an incriminating statement. Officer Woolman's question related only to Quezada's question, and, even given the circumstances, the question did not appear to be incriminating.
Even closer to Quezada's factual situation is United States v. Cordova, 990 F.2d 1035 (8th Cir. 1993). Cordova was inside a residence during a search in which drugs were found. An officer asked Cordova if her husband had more drugs in the house. Cordova then told the officer that she wanted to talk to him, and she whispered to him that the drugs were inside of her. The officer asked Cordova to explain, and she indicated that the drugs were in her vagina. Id. at 1036. Cordova argued that her statements were the products of custodial interrogation and flowed from the officer's question asking whether her husband had other drugs stored in the house. Id. at 1038. The Court determined that there was no coercive questioning or any causal link between Cordova's volunteered statement and the question previously posed to her, the officer did not prompt her for the statement, and the officer's "one follow-up question was designed to clarify what she meant." Id. Once Cordova made the incriminating statement, the officer did not question her further, but rather had another officer assist Cordova in removing the drugs. Id. The court concluded that Miranda does not apply to voluntary statements that "are not a product of express questioning or police practice reasonably likely to evoke an incriminating response." Id.
The Court finds that Quezada's statements were voluntary. Quezada initiated the question. Quezada has not offered any evidence showing that the conversation occurred differently from the manner testified to by Officer Woolman. Officer Woolman's response to Quezada's question about the blue Honda could have been a simple conversational "why." Quezada then volunteered the information about the gun. Officer Woolman did not question him about the gun. Because the statements were voluntary, Miranda warnings were not required.
Public Safety Exception
Quezada also argues that the public safety exception to Miranda does not apply here, and United States v. Lawrence, 952 F.2d 1034 (8th Cir. 1992) is not controlling. Although Lawrence involves a somewhat different factual pattern, the Court disagrees that the principle does not apply in Quezada's case.
A factual pattern closer to Quezada's was presented in United States v. Williams, 181 F.3d 945 (8th Cir. 1999). During execution of a search warrant, Williams was handcuffed and in the living room of the apartment being searched. Without having been given his Miranda warnings, officers asked Williams if they would "find anything." Williams then responded that he would show him the "stuff." The officer then asked to what "stuff" was Williams referring. Williams' response to that question related to cocaine and marijuana. The Eighth Circuit determined that Williams' statement was admissible under the public safety exception to Miranda. Id. at 948 (citing New York v. Quarles, 467 U.S. 649 (1984) and Lawrence, 952 F.2d at 1036). The Court found that although Williams was handcuffed when officers asked him if they needed to be aware of anything else, the officers:
could not have known if any armed individuals were present in the apartment or preparing to enter the apartment within a short period of time. Similarly, the officers could not have known whether other hazardous weapons were present in the apartment that could cause them harm if they happened upon them unexpectedly or mishandled them in some way. Therefore, the district court did not commit error by admitting Williams' statement identifying the location of the gun.Id. at 953-54.
In Quezada's case, assuming that Officer Woolman's question "why" was intended to obtain information about firearms, the question nevertheless was justified by the public safety exception. Although Quezada was handcuffed and in the police cruiser, officers were unaware of what might still be in the vehicle. This situation is analogous to the facts in Williams.
CONCLUSION
For the reasons discussed, the Court will adopt the Magistrate Judge's Report and Recommendation and deny the Defendant's Motion to Suppress.
IT IS ORDERED:
1. The Magistrate Judge's Report and Recommendation (Filing No. 18) is adopted in its entirety;
2. The Defendant's Statement of Objections to the Report and Recommendation (Filing No. 19) is denied; and
2. The Defendant's Motion to Suppress (Filing No. 12) is denied.