Opinion
Case No. 8:99CR153
December 1999.
ORDER
I. Introduction
Before me are the defendant's motions to suppress (Filing Nos. 10 and 11). The indictment (Filing No. 1) charges the defendant with one count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). The defendant moved to suppress evidence seized from his person or from the car he was driving on the evening of his arrest. The magistrate held a suppression hearing on August 31, 1999, and a transcript of that hearing (Filing No. 16) has been made part of the record.
After having reviewed the record, the parties' briefs, and the applicable law, I conclude that the defendant's motions to suppress should be denied.
II. Factual Background
Around 8:30 p.m. on June 23, 1999, Sgt. Ray Fidone, a supervisor on the Narcotics Unit of the Omaha Police Department (OPD), received information from Sgt. Bruce Meyer of the Sarpy County Sheriff's Office that one of his deputies, Chris Teuscher, was investigating information from a confidential source that a Hispanic male possessed a large quantity of methamphetamine. Transcript [TR] of Hearing on Motions to Suppress, 6:24, 7:15-8:1, 9:8-19. Both Fidone and Teuscher are members of Metro Drug Task Force, a coalition of officers from various area law enforcement agencies who handle drug investigations and arrests in the Omaha metropolitan area. TR 8:2-13.
Sgt. Fidone, Investigator Teuscher, and several other narcotics officers met at 25th and N Streets in Omaha around 9 p.m. that evening. TR 9:22-10:1. Teuscher told Fidone that Teuscher's reliable confidential source had found out earlier in the evening that a Hispanic male driving a 1992 blue Pontiac Grand Am would be in the area of 20th and N Street at about 9:30 in possession of illegal narcotics. TR 10:5-8; 17:16-18; 23:3-24:10. According to Fidone, Teuscher did not know the name of the Hispanic male and Fidone could not recall if the vehicle description Teuscher gave included a specific plate. TR 10:16-24; 24:11-20. OPD Narcotics Officer Catherine Milone, however, who was also present at the meeting, testified that Meyer and Teuscher gave the plate number as "Douglas County plate Frank 806." TR 47:6-7.
Teuscher had worked with this confidential informant for nearly two years, TR 91:16-19, and on one occasion had received information from the informant that led to the filing of criminal charges for possession of a controlled substance with intent to deliver, TR 94:9-95:8. Teuscher testified that the informant was not on probation or parole, nor was he incarcerated in any correctional facility, nor was he on work release or house arrest. TR 93:19-94:6. Teuscher testified that between ten after to twenty after seven on June 23, he observed "Abel," a Hispanic male between five foot six inches and five foot eight inches, in his late 20s or early 30s, at Taco Bell restaurant at 40th and Dodge Streets. Abel was in a blue "92 Pontiac Grand Am with another occupant whom Teuscher assumed was also a Hispanic male. TR 95:20-96:21; 100:4-10; 103:4-14. Teuscher's confidential informant, also at the Taco Bell, arranged to meet Abel later that evening to make a controlled buy. TR 98:3-7. Teuscher testified that the defendant is not the person he knew as "Abel." TR 98:8-10. Nor could he say that the defendant either was or was not the person with Abel in the Grand Am at Taco Bell. TR 100:13-101:4. The informant met with Teuscher following his meeting with Abel and told him about the arranged buy and the identity of the other person in the Grand Am: "Cesar." TR101:5-16. Teuscher testified that the informant told him that the informant was to meet Cesar, driving the Grand Am, at the park at 20th and N to buy a half-pound of methamphetamine. TR102:8-18.
Following the officers' meeting, officers in four unmarked surveillance vehicles patrolled the area around 20th and N waiting for the Grand Am to appear; Sgts. Fidone and Meyer, in plainclothes, were together in one car. TR 11:1-7, 23-24; 14:3-5. They spotted a car matching the description heading in the opposite direction in the vicinity of 20th and N, but they lost sight of it after making a U-turn. Fidone testified that about five minutes later, Officers Padony and Hadcock radioed to say they had seen a car matching the description pulling into the garage parking area of a drive-through liquor store called Crystal Beverage at 20th and M. TR 12:5-23. No officer saw the defendant commit any traffic or criminal violations before he entered the parking area. TR 28:15-22. When Fidone arrived at Crystal Beverage, he saw a blue "92 Grand Am parked in the garage area with the defendant sitting behind the wheel. TR 13:13-21. Fidone and Meyer radioed for police cruisers, which arrived within a minute and parked into the driveway entrance to Crystal Beverage. TR 14:1-2; 32:2-18.
Fidone saw the defendant leave the car and begin to walk toward the store. The officer decided to stop him before he entered the store to avoid a potential hostage situation that might be created by attempting to arrest the defendant within the store itself. He rolled down his window and called to the defendant, in Spanish, asking him to come over to the officer's vehicle. TR 14:13-24, 15:3-9; 39:6-40:11. Fidone then left his car, showed the defendant his badge, told the defendant in broken Spanish-English that he was a police officer, and asked the defendant to put his hands on the officer's car. TR 15:11-16:2. Fidone testified that the defendant appeared to understand him because he put his hands on the car after first removing a set of keys from his right hand and putting them on the hood of the car. TR 16:2-5. Fidone took possession of the keys. TR 30:4-6. Fidone's patdown search of the defendant revealed no weapons. TR 16:6-15; 29:8-22; 31:8-14. Fidone testified that the defendant was not free to leave the scene. TR 33:25-34:19.
Fidone telephoned Officer Milone, who was also on surveillance, to come to translate. Milone is fluent in the Spanish language; her mother is from Spain and her family spoke Spanish in their home; she has a minor degree in Spanish. TR 44:6-21; 66:6-25. Milone, in plainclothes, arrived within two minutes. TR 16:17-17:5; 46:25; 48:7-12. She testified that the defendant, who was not handcuffed, was standing off to the side with Fidone and a uniformed officer. TR 33:2-20; 49:3-7.
Milone approached the defendant, showed him her badge, told him that she was a police officer, asked for identification, and asked him if he spoke English. When he replied that he spoke very little, she proceeded to converse with him in Spanish. TR 30:22-31:7; 49:15-50:2. Fidone asked her to tell the defendant why they were there, to explain that the officers had been informed that he might have illegal narcotics in his vehicle, and to ask for permission to search his car. TR 18:15-18; 50:22-51:6. After she relayed this information to the defendant, she asked him if he had been driving the vehicle. The defendant first said that he had just walked up to buy beer at the store, but when asked again, he said that the vehicle wasn't his but that he had been driving it. TR 19: 2-9; 52:2-11. Milone then asked the defendant for permission to search the vehicle; she testified that the defendant consented, but again stated that the vehicle was not his. TR 20:5-6; 52:16-53:8.
Milone testified that throughout this exchange, which lasted about a minute and a half or two minutes, TR 35:12-17, she tried to put the defendant at ease because he was so nervous. She said that she voluntarily told him that he was not under arrest and that she did not in any way threaten him if should he fail to cooperate. TR 53:16-54:6. Milone also testified that the defendant did not appear to be under influence of drugs or alcohol, TR 54:10-17, nor did he ever suggest or complain about an unsound physical or mental condition, TR 65:5-12.
When Milone relayed the defendant's consent to Fidone and the other officers, Officers Fidone, Hadcock, and Padony began their search of the defendant's car. TR 54:18-23. At Fidone's direction, Milone retrieved a written consent to search form from Fidone's briefcase in his car, then began going over it with the defendant, translating the form line-by-line from English into Spanish, explaining it, and filling in the blanks where appropriate. TR 20:8-18; 54:23-56:3; 57:4-59:16. Milone testified that translating and filling in the form only took a couple of minutes. TR 73:2-9. She also testified that she specifically told the defendant that he was not required to give permission for the search. TR 61:10-23. Milone further testified that she neither threatened the defendant should he refuse to sign the form nor promised him anything if he did sign it. TR 60:12-14. The defendant signed the form. TR 59:25-60:2. Both Fidone and Milone testified that they had the defendant sign the written consent form as procedural documentation that he had in fact consented to the search. TR 36:5-12; 55:14-18; 79:3-8. Milone testified on direct examination that the defendant signed the consent form before the officers found the methamphetamine, TR 62:15-20, but on cross-examination she testified that she had no personal knowledge of whether the methamphetamine was found before or after the defendant signed the form. TR 73:10-74:1.
While Milone was going over the consent form with the defendant, the officers conducted the search of the defendant's vehicle on the basis of the defendant's oral consent. TR 20:5-11. They found methamphetamine on the front passenger seat underneath a baseball cap, but no other contraband. TR 21:1-12, 22-24. In the back seat and in the trunk, they found other items, including a Blockbuster Video receipt in the defendant's name. 21:13-21. A contemporaneous search of the defendant's person yielded only a wallet and some money. TR 21:25-22:18. The defendant was arrested and handcuffed. TR 86:18-87:6.
Fidone testified that he had not advised the defendant of his Miranda rights before the officers found the methamphetamine, and Milone testified that she did not advise the defendant of his Miranda rights before he signed the consent form. TR 36:22-25; 74:2-5. Milone eventually gave the defendant his Miranda rights, using a form written in Spanish, after the officers removed the defendant to a more secluded spot at 24th and N. TR 63:2-14; 75:17-19.
The defendant testified at the suppression hearing after the magistrate advised him of his constitutional rights. TR107:18-109:15. His version of events varies from Milone and Fidone's versions. He stated that as he was walking toward the Crystal Beverage store around 9:30 on the evening of June 23, 1999, Fidone pulled up in a car and shouted at the defendant to stop. According to the defendant, Fidone showed the defendant his badge, told him to put his hands up, and asked if he was armed. When the defendant responded no, Fidone had the defendant put his hands on the car. Fidone took the defendant's car keys, put them on the car, and searched him for weapons. Fidone took his wallet, which contained about twenty-one dollars, pictures of his family, and a card. TR 110:4-13; 111:1-112:17. He testified that while Fidone was checking him, a uniformed police officer held his arm. TR 116:10-19.
The defendant further testified that he is a Mexican citizen who cannot read or speak English. TR 112:21-113:2. When Officer Milone arrived, the defendant stated, she asked the defendant in Spanish for his name and told him that he was not being arrested but just routinely checked. TR 113:3-15. The defendant agreed that Milone asked him about searching the Grand Am, but he testified on redirect that Milone never asked for his oral consent to search the car before he signed the consent form. TR 123:15-21. He said that after she had taken his driver's license and they had discussed the ownership of the car and the defendant's current address, "she began to take all this information" from him and then asked him to sign a form for searching the car. TR 114:7-21. Milone allegedly told the defendant that the search was "a routine check that they were making in the area," after which the defendant would be free to leave. TR 114:22-115:4. The defendant denied that Milone ever told him that he could refuse to consent to the search; he stated that he believed he was obliged to permit the search because Milone told him to sign the consent form. TR 115:6-23; 117:2-6; 123:11-14. He stated on cross-examination that he asked Milone "what [the form] was for and why I had to sign it, and she said so she could check the car." TR 121:25-122:4. He also believed that even before he signed the form, he was under arrest. TR 115:24-116:3.
The defendant offered a confused reply on cross-examination when asked if he would have refused consent to the officers' search if he had known he had the right to do so. He stated, "If I had refused to sign the paper for them to search, I wouldn't have let — the vehicle wasn't mine, so I wouldn't have denied them permission to search." TR 118:5-11. The defendant then admitted that the keys to the car were his set of keys and that the car and the keys had been loaned to him when he had returned from Mexico about three weeks prior to the arrest. TR 118:12-119:12.
III. Discussion
The defendant argues that his detention violated the Fourth Amendment of the United States Constitution. He maintains 1) that the officers lacked reasonable suspicion to make the non-consensual stop in the parking area of the Crystal Beverage store, and 2) that the defendant did not voluntarily consent to the search of the Grand Am.
A. Initial Stop
The officers' stop of the defendant was not a consensual stop. Not only did Officer Fidone testify that the defendant was not free to leave the scene once they had made contact with him in the parking lot of Crystal Beverage, TR 33:25-34:19, the defendant himself believed that he could not "disregard the police and go about his business." United States v. Bostick, 501 U.S. 429, 434 (1991); TR 115:24-116:3. The question then becomes whether, given the totality of the circumstances, the investigative stop was supported by reasonable suspicion as defined by Terry v. Ohio, 392 U.S. 1 (1968).
Reasonable suspicion is "some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, 449 U.S. 411, 417 (1981). Courts look at "the whole picture" to determine if the detaining officers had "a particularized and objective basis" for suspecting the detainee of criminal activity. Id. at 417-418. "The whole picture" includes "the collective knowledge and experience of the officers." United States v. Chhunn, 11 F.3d 107, 110 (8th Cir. 1993); United States v. Dixon, 51 F.3d 1376, 1381 (8th Cir. 1995).
Here, Investigator Teuscher, who had nine years of law enforcement experience and who was a member of the Metro Drug Task Force, had spoken with one of his confidential informants on the evening of the defendant's arrest. Around 7:30, the informant advised Teuscher that he had arranged with a Hispanic male named Abel to buy a half-pound of methamphetamine from another Hispanic male named Cesar in a "92 blue Grand Am at 20th and N around 9:30 that evening. Teuscher independently observed the car at the Taco Bell restaurant where the informant made his arrangements, and noted that two individuals were in the car. The informant identified them as Abel and Cesar.
Teuscher relayed this information to his supervisor, who in turn relayed it to other members of the Metro Drug Task Force, including Officers Fidone and Milone. Based on this solid and immediate lead, law enforcement officers in four unmarked surveillance vehicles began their lookout for the Grand Am in the area around 20th and N. The Grand Am then showed up in exactly the area of the city that the informant had named at exactly the time the informant had set.
Under all these circumstances, Fidone's suspicions that the driver of the Grand Am had arrived in the area to conduct the arranged drug deal were reasonable, even though he was not certain of the driver's actual identity. See United States v. Neemann, 61 F. Supp.2d 944, 951 (D.Neb. 1999). Fidone therefore had probable cause to contact the driver of the Grand Am to determine if he was in possession of illegal drugs. The officers were also thus entitled to conduct a search of the car under the "automobile exception" of the warrant requirement. Maryland v. Dyson, 119 S.Ct. 2013, 2014 (1999). "If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment permits police to search the vehicle without more." Pennsylvania v. Labron, 518 U.S. 938, 940 (1996).
B. Consent
The defendant also contends that his consent to search the Grand Am was involuntary because it was obtained during an allegedly illegal detention. As discussed in the preceding section, however, the detention was not illegal. Hence, the defendant's grounds for attacking the validity of the consent are apparently moot. The defendant argues in his brief, however, that the consent is invalid because the officers began the search before the defendant either gave oral consent to search or signed the consent form. The defendant's testimony on the matter of his consent differed significantly from the officers' testimony. Officer Fidone's testimony on this matter, however, corroborates Milone's testimony; together their version of events is more credible than the defendant's. Officer Milone testified that almost immediately after beginning her discussion with the defendant, she asked him for consent to search the car, which the defendant gave. She relayed the permission to Fidone, who testified that he then directed her to procure a written consent from the defendant while he and the other officers began the search. Milone testified that she translated the form line by line for the defendant, including the last line that informed the defendant that he could refuse to permit the search. An officer, however, is not required to tell a person that he can refuse to consent to a search. United States v. Pollington, 98 F.3d 341, 343 (8th Cir. 1996); United States v. Morris, 910 F. Supp. 1428, 1448 (N.D. Ia. 1995) ("Because no warning that consent may be refused is required, Schneckloth [v. Bustamonte], 412 U.S. [218] at 218, 93 S.Ct. at 2043, the absence of such a warning means no more than that the court must see if other circumstances suggest the voluntariness of [the defendant's] consent.").
Under the Fourth Amendment, whether a defendant voluntarily consented to a search is a fact question to be determined from all the circumstances. Ohio v. Robinette, 519 U.S. 33, 40 (1996). Here, the officers did not threaten the defendant with violence or coerce him with any sort of promises. The narcotics officers were dressed in plainclothes, and while the uniformed officer stood by the defendant holding his arm, he did not use any sort of force against the defendant. None of the officers displayed their weapons. The defendant was not handcuffed or otherwise restrained. Officer Milone reassured the defendant that he was not under arrest when she initially approached him and spoke to him in Spanish throughout the initial encounter, the search, and his eventual arrest. I find that based on the totality of the circumstances, the defendant freely and voluntarily gave both his oral and written consent to the search.
Given the easily-found drugs under the baseball cap on the front seat of the car, it is no wonder that the drugs were found before or nearly at the same time as the defendant signed the form. Regardless of the timing of the defendant's consent with the discovery of the drugs, however, the officers still had probable cause to search his car without his consent as discussed above. Accordingly,
IT IS ORDERED that the defendant's motions to suppress (Filing Nos. 10 and 11) are denied.