Opinion
8:02CR56
July 10, 2002
MEMORANDUM AND ORDER
Introduction
Before me is the objection of defendant LaShawn Humphrey, Filing No. 46, to the magistrate judge's report and recommendation, Filing No. 44. The defendant Lavita Cox did not file a statement of objections as required by NELR 72.4, but did submit to chambers a brief detailing her objections to the report and recommendation. I shall therefore construe the brief as a statement of objection and instruct the Clerk's Office to docket the brief as an objection. The government did not submit responsive briefs.
Humphrey's filing does not comply with NELR 72.4, since the "objections" are no more than a brief. NELR 72.4 specifically states that an objecting party must file a "Statement of Objection to Magistrate Judge's Recommendation," specifying the portion of the report and recommendation to which the defendant objects. The rule also requires an objecting party to support the objection with "a brief setting forth the party's arguments."
The defendants stand indicted on one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1). Filing No. 1. Nebraska State Patrol troopers arrested the defendants in January 2002 when, during a search of the defendants' rental vehicle following a traffic stop, the officers discovered in a deflated spare tire twenty-six pounds of cocaine. The defendants moved to suppress, Filing Nos. 25 and 31. The magistrate judge recommended that the motions be denied.
I have now reviewed the record, including the transcript of the suppression hearing, Filing No. 41, the videotape of the traffic stop, Filing No. 35 (Ex. 1), and the report and recommendation; the defendants' briefs; and the applicable law. I find that the defendants' motions should be denied and the magistrate judge's report and recommendation adopted in its entirety.
The report and recommendation accurately summarizes both the events seen on the videotape and the suppression hearing testimony of Nebraska State Patrol Trooper Bradley Hand. For that reason, I specifically adopt the portion of the report and recommendation labeled "Factual Background," Filing No. 44 at 2-8, and decline to restate the facts here.
Discussion
Probable Cause for Traffic Stop. Both Humphrey and Cox object to the magistrate judge's conclusion that the Nebraska State Patrol troopers had probable cause to stop the defendants' vehicle for a traffic violation. The defendants contend that because nothing in the operation of their vehicle violated Nebraska's rules of the road, the troopers had no probable cause to pull them over.
Trooper Hand testified that the defendants' Jeep Cherokee passed his cruiser on the left on I-80. The driver of the Cherokee signaled a lane change, but re-entered the driving lane in front of the cruiser with only one to one-and-one-half car lengths between the two vehicles. Filing No. 41 at 9:17-22. Trooper Hand said that Trooper Roby, who was driving the cruiser, had to brake "to avoid following too closely." Id., 9:23-10:1. Trooper Roby then activated his overhead lights and pulled the Cherokee over. Trooper Hand gave defendant Humphrey, the driver, a warning ticket for "crowd[ing] me a little bit" in changing lanes.
Trooper Hand testified on cross-examination that the Cherokee was "[m]aybe one and a half to two car lengths" ahead of the cruiser when it pulled into the right lane. Filing No. 41 at 79:22-80:12. The report and recommendation does not mention this slightly longer distance, instead relying on the trooper's first statement that the distance was "one to one and a half car lengths."
Nebraska law provides that a driver passing another driver on the left may not come back to the right lane "until safely clear of the overtaken vehicle." Neb. Rev. Stat. Ann. § 60-6,133(1) (Michie Cum. Supp. 2001). The driver of the overtaken vehicle is expected to "give way to the right in favor of the overtaking vehicle" and not speed up until the pass is completed. Neb. Rev. Stat. Ann. § 60-6,133(2). The magistrate judge found Trooper Hand's testimony about the lane change credible and stated that "pulling in to the right lane too close in front of the cruiser, in essence, `cutting it off,'" violated section 60-6,133 and provided probable cause to stop the Cherokee.
The law is well settled that a traffic violation, however minor, gives an officer probable cause to stop a vehicle. See United States v. Beck, 140 F.3d 1129, 1133 (8th Cir. 1998) (quoting United States v. Barry, 98 F.3d 373, 376 (8th Cir. 1996)). Whether the defendants' lane change violated section 60-6,133 is a close question, but the defendants have failed to persuade me that the troopers' assessment of Humphrey's driving was incorrect. As a consequence, I adopt the magistrate judge's finding that the troopers had probable cause to stop the Cherokee for a traffic violation.
Scope of Detention. Humphrey also objects to the scope of the defendants' detention after the troopers stopped the Cherokee for the traffic violation. Humphrey argues that once the troopers finished their routine initial investigation and issued the warning ticket, she and Cox should have been allowed to proceed on their way without further questioning. Humphrey contends that during the traffic stop, she "did not exhibit any outward manifestations such as nervousness, shaking, red eyes, sweating, evasiveness or the like. There were no scent of drugs, no masking odors, and no suspicious objects or bags." Humphrey's Brief at 8. She also claims that Trooper Hand was not entitled to question her about personal matters unrelated to the traffic stop. She maintains that the troopers had no reasonable articulable suspicions that she and Cox were involved in criminal activity sufficient to justify the continued detention and questioning of the defendants after the traffic stop.
Humphrey minimizes other information that led the troopers to reasonably suspect she and Cox might be engaged in illegal activities. Humphrey was seated in the cruiser during the initial traffic stop while Trooper Hand did a routine license and registration check. See United States v. Ramos, 42 F.3d 1160, 1163 (8th Cir. 1994) (reasonable traffic stop investigation may include asking for driver's license and registration, putting driver in patrol car, and asking driver about destination and purpose). During general conversation of approximately eight minutes about her destination and purpose, she volunteered that she was leaving Las Vegas to escape an abusive boyfriend. She told the troopers that Cox was her aunt and that Cox had driven to Las Vegas to help Humphrey move back to Michigan. The rental agreement listed only two authorized drivers: Cox and another woman named Quinn. Humphrey claimed Quinn was also an aunt. Throughout the conversation, Humphrey was congenial and cooperative.
The troopers returned to the Cherokee to question Cox in an attempt to verify Humphrey's story. See United States v. Foley, 206 F.3d 802, 805 (8th Cir. 2002) (officer may question "other vehicle occupants to verify information provided by the driver"). The officers spoke with Cox for two or three minutes. Cox told the troopers that she was a friend of Humphrey's family and that she had flown to Las Vegas from Michigan.
"An officer may expand the scope of his investigation as reasonable suspicion dictates. To evaluate reasonable suspicion, `[w]e look to the totality of the circumstances, in light of the officer's experience.'" Id. at 806 (interior citation omitted) (quoting United States v. Carrate, 122 F.3d 666, 668 (8th Cir. 1997)). Here, the discrepancies in the stories alerted the troopers that something was potentially amiss and justified additional questioning. After speaking with Cox, therefore, the troopers returned to the cruiser to ask follow-up questions of Humphrey. Humphrey again stated that Cox was her aunt and that Cox had come to Las Vegas in a U-Haul with other family members. Given the totality of the circumstances, I find that the magistrate judge correctly found that the troopers' additional questioning of Humphrey did not unlawfully expand the scope of the stop or unnecessarily lengthen it.
Consent to Search. Based on her position that the initial traffic stop and ensuing detention were illegal, Humphrey challenges the magistrate judge's conclusion that her consent to the subsequent search of the Cherokee she had been driving was voluntary. Humphrey argues that the circumstances were inherently coercive because no reasonable person would have realistically believed he or she could refuse to consent.
Having viewed the videotape and read the transcript of the suppression hearing, I conclude that the magistrate judge correctly determined that Humphrey voluntarily consented to the search. When the troopers approached her after she left the cruiser following the initial traffic stop, Humphrey pleasantly agreed to answer more of their questions. When each of troopers asked for permission to search, she gave it to both of them. She did not appear nervous, incredulous, defensive, hostile, or incoherent. To the contrary, she maintained the friendly, chatty attitude she had demonstrated throughout the traffic stop. Under these circumstances, her consent cannot be interpreted as the product of coercive law enforcement techniques.
Finally, Cox argues that since the rental papers for the Cherokee named her as the authorized driver, she alone could consent to its search. Nothing in the record suggests, however, that Humphrey was operating the Cherokee without Cox's permission. Cox's argument thus fails because in this circuit, a driver operating a vehicle with the authorized driver's permission may consent to and subsequently challenge a search. United States v. Best, 135 F.3d 1223, 1225 (8th Cir. 1998). The presence or availability of the authorized driver is immaterial. Humphrey's consent to search the Cherokee was thus valid.
Conclusion
Accordingly, I adopt the magistrate judge's recommendation that the defendants' motions to dismiss should be overruled.
IT IS THEREFORE ORDERED:
1. The Clerk's Office shall docket as a statement of objection the attached brief of the defendant Lavita Cox;
2. The objection of defendant LaShawn Humphrey, Filing No. 46, to the magistrate judge's report and recommendation, Filing No. 44, is overruled;
3. The objection of defendant Lavita Cox, Filing No. ___, to the magistrate judge's report and recommendation, Filing No. 44, is overruled;
4. The defendants' motions to dismiss, Filing Nos. 25 and 31, are denied;
5. The magistrate judge's report and recommendation, Filing No. 44, is adopted in its entirety.