Opinion
No. 8:99CR179
January 2000.
REPORT AND RECOMMENDATION
The following motions came on for evidentiary hearing and oral argument on December 17, 1999:
#25 Motion to Suppress Re: Traffic Stop, Detention and Search, filed by defendant Morgan
#26 Motion to Suppress Statement, filed by defendant Morgan
#27 Motion to Suppress, filed by defendant Walker
#28 Motion to Suppress Statement, filed by defendant Jones
#29 Motion to Suppress Re: Traffic Stop, Detention and Search, filed by defendant Jones.
The hearing transcript was filed on December 27, 1999 (#39), at which time the motions were deemed at issue.
ISSUES PRESENTED
Defendants' van was stopped on the night of September 4, 1999 in Buffalo County, Nebraska for traffic violations. The van had been rented by defendant Morgan, but was being driven by defendant Walker. Defendant Jones was a back seat passenger.
The state trooper, who patrolled with a drug dog, ran computer records checks for the three individuals. Meanwhile, he had conversations with Walker and Morgan about the nature of their journey. The trooper ultimately decided that it would be appropriate for him to walk his drug dog around the van. Morgan eventually told the trooper to go ahead with the dog and to go ahead and search the van. The dog aggressively alerted to the van, which was then searched. The Nebraska State Patrol discovered duffle bags in the van which contained approximately 281 pounds of marijuana. The defendants were arrested and were taken to the State Patrol office in Kearney, Nebraska to be interviewed. Before entering the office building, the troopers discovered an additional 10 pounds of marijuana in a suitcase owned by defendant Morgan. All three defendants have been indicted on one count of possession with the intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1).
All three defendants argue that the initial traffic stop was invalid; the length of time they were detained was excessive; the search of the van and its contents was conducted without probable cause and was beyond the scope of a traffic stop; and Morgan's consent to the search was involuntary.
Defendant Morgan argues that her inculpatory statement concerning the ownership of the suitcase containing 10 pounds of marijuana should be suppressed because she had not been advised of herMiranda rights when she identified the suitcase. The statement was also involuntary considering the factors listed in 18 U.S.C. § 3501.
Defendant Jones argues that his statement given at the State Patrol office should be suppressed because the statement was involuntary and Jones did not waive his Miranda rights.
FACTUAL BACKGROUND A
Nebraska State Patrol Trooper Greg Goltz testified that he has been employed as a state trooper for 11 years. He is a member of the police service dog unit, which consists of dog handlers located throughout the State of Nebraska. He is geographically assigned to the 17-county Troop C area. He performs normal road patrol duties within the Troop C area and assists other officers who call for a police dog.
Goltz testified that he has been a dog handler for over seven years. His dog's name is Marco. In 1992, Goltz went through about 406 hours of training through Detector Dogs International in Milford, Nebraska. (65:7-9). He and his service dog were certified as a "dual purpose service dog team." One function of a "dual purpose dog" is detector work, i.e., smelling either explosives or narcotics. In this regard, Marco is trained to smell the odor of narcotics or controlled substances. The dog's second function is patrol work, which means that the dog can perform tracking, building searches, evidence searches, and other tasks that do not relate to alerting to the odor of controlled substances.
The Nebraska State Patrol certifies its service dogs and handlers annually. Dog handlers, including Goltz, are required to do a minimum of one day or eight hours of dog training per week. Goltz and Marco were certified as a team as of September 1999 when the defendants' vehicle was stopped. (65:10-66:10). Goltz has also attended several police dog competitions and training seminars in Salt Lake City, Utah. For the past four years, he has been an instructor for the Nebraska State Patrol on the subjects of criminal patrol and criminal interdiction work. He has taught courses in five other states to over 1,000 officers.
Trooper Goltz used the term "interdiction" as it pertains to drug interdiction: "It essentially just means turning normal traffic violations into possible criminal violations or criminal investigations through just a normal traffic stop." (30:18-23). Through past experience, law enforcement has learned that many vehicles are transporting illegal contraband (including contraband other than drugs) on state highways, county roads, and interstates. Interdiction is an effort to locate and find those drugs.
Goltz normally works a shift from 6:30 p.m. to 2:30 a.m. On the night of September 4, 1999, however, Goltz had been called to work at 4 or 5 p.m. to patrol in Buffalo County. He typically patrols alone with his dog. Goltz' patrol car is a 1997 GMC pickup with visible signs on the side doors indicating it is a State Patrol vehicle. The truck also bears Nebraska State Patrol license plates. (68:13-25). On this occasion, an Iowa state trooper, Jason Bardsley, accompanied Goltz as a "ridealong." Goltz, who lives east of Grand Island, picked up Bardsley around 6 p.m. Bardsley was not in uniform. (96:11).
At about 8:45 p.m., Goltz was traveling east on Interstate 80 in Buffalo County, cruising below the 75 m.p.h. speed limit, when he was passed by a Ford or Mercury van. It was dark, and traffic was light that night. (67:17-21). The van was clean and relatively new, and had Arizona license plates. Because the van appeared to be exceeding the speed limit, Goltz did a VASCAR clock which showed that the van was traveling over 78 miles per hour. At this point, he manually activated his in-car video camera. The video recorder was properly working, but Goltz was aware that the audio microphone for the recorder was not working. (34:19-35:12).
Goltz also got the actual six digits of the Arizona license plate and contacted the Grand Island dispatcher to run the plate number through the computer. At this point, Goltz was behind the van but had not activated his red lights. The computer check showed that the van's license plate had actually been issued for a 1998 Chevrolet sedan. Accordingly, Goltz advised dispatch that he intended to get close enough to the van to check the plate again. He verified the license plate number. A second computer check showed that the plate was registered to a Chevrolet sedan.
Goltz then advised dispatch that he was following a Ford or Mercury van and decided to make a traffic stop based on the results of the license plate checks. The van pulled over immediately after Goltz initiated his red lights.
Goltz walked to the passenger's side of the vehicle and saw three individuals — a male sitting in the back and two females in the front — in the van. He later determined that defendant Walker was driving, defendant Morgan was in the front passenger seat, and Jones was in the back seat. The van had two front seats, a large middle bench-type seat leading to sliding doors, and a rear bench-type seat. Jones was sitting on the middle seat behind the driver. Trooper Bardsley remained in Goltz' truck. (78:12-14).
As Goltz approached the van, he saw a very large duffle bag to the right of Jones and behind Morgan's seat. The duffle bag was partially on the middle seat and partially lying on the floor. It was the largest duffle bag Goltz had ever seen, being approximately four feet long and a couple feet wide. Goltz testified on cross-examination that the presence of the duffle bags led him to believe the van possibly contained drugs. He immediately thought the duffle bags contained marijuana. His suspicion was based partly on the defendants' connection to Phoenix, but Goltz denied that the defendants' race was of any influence. (82:3-7).
Goltz testified that he was "actually overwhelmed" by an odor coming from the van. The odor was a combination of deodorizer or perfume and an intense odor of cigar smoke. He believed somebody had actively been smoking cigars in the van because cigar smoke came out of the vehicle.
Goltz asked the driver, through the passenger window, for her driver's license. He explained to the driver and front seat passenger that he stopped the van because registration files showed its license plate was registered to a Chevrolet sedan. He asked for a rental agreement or any type of registration papers. Walker produced her Michigan driver's license and Morgan produced an Arizona rental agreement. These documents were produced within a couple minutes of the initial stop. (77:22-25).
The rental agreement was in Morgan's name. Morgan told Goltz that she rented the van on September 1st. Goltz testified that, although he stood "straight on with the door" so he could have direct eye contact with her, Morgan never actually looked at Goltz. (40:7-21). Goltz thought the lack of eye contact was odd.
Goltz reviewed the documents. He later asked Morgan and Jones for identification, which they provided. Goltz ran computerized checks on all three individuals to for "wants and warrants" and criminal history. Goltz kept all the documents while the radio checks were being performed. (106:12).
Defendant Walker, the driver, stepped out of the van when Goltz asked her to do so. They stood behind the van. Walker told Goltz she was traveling from Arizona to the Detroit area, where she resided. She said she had been in Arizona for four days. (125:11). Goltz noticed that Walker seemed nervous and would not stand still. She also avoided looking at Goltz. Walker told Goltz that she was self-employed with a home health care job. She said she had gone to the Tempe/Phoenix area to see friends and do some shopping. He asked how long she had been driving, and she said they had been switching off back and forth.
Trooper Goltz explained to Walker that he was going to write her a violation card and was not going to write her a citation because sometimes license plate mix-ups happen with rental companies. He did not issue Walker a citation for speeding. He proceeded back to the patrol car to complete the violation card, stopping to talk to Morgan at the front passenger window.
Goltz asked Morgan why she had been in Arizona, how long she had been there, and why Walker was with her. Morgan told Goltz that she went to Arizona to visit a relative who had a new baby. They had been in Arizona for an entire week. Walker came with her because she was a friend and wanted to go along for the ride. Morgan said she believed Walker had relatives in Arizona. At some point, Walker or Morgan told Goltz they had flown to Arizona and rented the van to drive back to Detroit. (125:17-21).
As he approached the van to talk to Morgan, Goltz noticed a second very large duffle bag in the back seat directly behind Jones. The bag was not rounded as if it were full of clothes, but looked squared off. The bag appeared to contain square objects.
While waiting for the results of the radio checks, Goltz completed the violation card and talked to Walker about her trip to Arizona. This conversation took place to the side of the patrol car. Because of her earlier reference to Tempe, Goltz asked if she had been to any other city. Walker stated that she didn't know or could not remember if she had been in any other city in Arizona. While they were talking about the violation card, Walker commented that Goltz fabricated the license plate violation in order to stop her. He thought her comment was odd because she had just been on vacation and knew she was just getting a violation card and not a citation. On cross-examination, Goltz explained that, in his experience, Morgan and Walker were unusually nervous considering that he had only given them "a fix-it ticket, which was, according to them, the only offense that they were guilty of." (85:3-6).
Dispatch informed Goltz that there were no wants and warrants for Jones and Morgan and that Walker's license was not suspended; however, dispatch indicated there was a possibility Walker was subject to a warrant. Goltz returned the rental contract and identification documents to Morgan and Jones. (107:7-14). Shortly thereafter, the officers determined that Walker was not the person subject to the warrant in question. Goltz returned Walker's license to her. He gave Walker the violation card, explained it to her, and had her sign it. He told Walker she needed to make sure the license plate violation was taken care of, even though the van was rented in Morgan's name. Goltz did not specifically tell Walker she was free to go. (122:2-3). Walker told Goltz she was not going to drive at all anymore. She walked up to the passenger's side of the van with her driver's license and the violation card.
Morgan stepped out of the van. Goltz met her at the rear of the vehicle and explained to Morgan that Walker was to take care of the violation card. Goltz then asked Morgan about what she believed law enforcement was doing about the war on drugs. Morgan said that she was kind of familiar with the war on drugs. He then asked her if she thought law enforcement was doing everything they should be in fighting the war on drugs. Morgan commented that she didn't think law enforcement was taking all avenues to stop the war on drugs.
During this conversation, Morgan would not look directly at Goltz' face or in Goltz' eyes when she talked to him about the war on drugs. Morgan seemed more nervous than she did when they were talking about the rental car and the trip to Arizona.
Goltz then asked Morgan if she thought Detroit had a drug problem. Morgan said she didn't know whether Detroit had a problem, but figured it probably did if it was a big city; all big cities probably have drug problems.
At this point, Goltz asked Morgan whether she had cocaine in the car. She looked him "right in the eye" and said, "No." (52:23-25). He asked whether she had any methamphetamine in the car. She again looked him right in the eye and said, "No." Eventually, Goltz asked if Morgan had marijuana in the car. Morgan looked at the ground, avoided the eye contact, and said, "No." (53:1-4). Prior to this exchange, Morgan had avoided making eye contact with Goltz; however, she looked him right in the eye when asked about specific drugs. Based on her body language, Goltz testified that Morgan appeared "antsy" and did not really want to be there. (55:13-17). This conversation, which took place while Goltz and Morgan were standing behind the van, was videotaped (see Ex. 5).
Goltz asked Morgan if he could search her vehicle for any of those types of drugs. Morgan replied that she didn't know; she was not trying to be suspicious, but wanted to know what would happen if she refused. Goltz told her if she wanted to refuse, he would just walk his dog around the vehicle. Morgan then made the comment to go ahead. (92:18-25). At this point in time, Goltz did not intend to let them leave the scene until he walked his dog around the van. (86:10-88:9).
On redirect examination, Trooper Goltz explained the various factors that led him to suspect criminal activity. Walker and Morgan appeared to be excessively nervous and avoided all eye contact with him. The van was traveling from the Phoenix/Tempe/ Tucson area, which is statistically known as a source for marijuana. They were traveling to Detroit, an area known as a large drug hub. From experience gained in previous stops, Goltz suspected the duffle bags contained marijuana, as opposed to cocaine or methamphetamine. This suspicion was based on the newness, size and shape of the bags. The bags seemed overly large to pack for a four-day trip by two women. Walker said they had been in Arizona for four days; Morgan said they had been there for an entire week. The smell of cigars, perfumes, and/or deodorizers is frequently used to mask the odor of narcotics. (124:20-126:18).
Trooper Goltz testified that, in his experience, it was particularly relevant that defendants flew to Arizona and then rented a vehicle to drive all the way back: "I've seen that several times, and every time I've seen that, it's been drugs in the vehicle." (125:17-23).
As Morgan returned to the van, Goltz asked her to step back and stay behind the van so she would not get hit by traffic. He then asked her whether he could search the vehicle. Morgan again said, "Go ahead." (92:18-25). Morgan did not ask any further questions. At Goltz' direction, Morgan went and stood by the patrol car.
This conversation occurred between 15 and 20 minutes after Goltz first stopped the van. Trooper Goltz testified that he did not threaten Morgan or make any promises to her.
While Goltz was talking to Morgan, Walker sat in the front passenger seat of the van. Jones remained in the middle seat the entire time during the traffic stop. At Goltz' request, Walker and Jones stepped out of the van and stood near Morgan by the patrol car.
Goltz had called for assistance from any troopers that might be in the area. Trooper Dave Pole and Sgt. Leroy Jones arrived within a couple minutes. Goltz advised that he was going to walk the dog around the van.
Goltz retrieved Marco to walk around the van. His normal procedure is to walk the dog around the vehicle counterclockwise several times without directing the dog to any certain area. Marco aggressively alerted to the van within one minute. (58:17). Trooper Goltz explained that Marco had been trained to perform an aggressive indication, i.e., to scratch, bite and/or bark at the area where he sensed an odor of controlled substances. (57:1-58:6). Marco bit, scratched and pawed at the door seams of the van and at the back of the van. Less than 10 minutes had elapsed between the time Goltz asked for permission to search the van and the time he began walking Marco around the van.
After Marco alerted, Goltz searched the van and located three large duffle bags all containing very large bricks of marijuana. The bricks of marijuana weighed 281 pounds. The search was conducted at the scene on Interstate 80. The packages of marijuana were placed back into the duffle bags. One bag was put into Goltz' patrol car and two bags were left in the van.
Trooper Bardsley drove the van to the State Patrol office in Kearney. Morgan, Walker and Jones were all placed under arrest, handcuffed, and taken to the State Patrol office in Kearney.
In the State Patrol parking lot in Kearney, the officers searched a suitcase, two smaller bags, and a lot of clothes that were wrapped in plastic. A medium-sized suitcase contained women's clothing and shoes, as well as a nylon Wilson zippered bag. The Wilson bag was approximately four inches tall and 12 inches square. It contained four smaller bundles of marijuana which weighed a total of 10 pounds. (60:16-61:11). The marijuana was removed from the Wilson bag and placed with the marijuana which had been seized from the three large duffle bags. The suitcase was zipped back up and all the bags were taken into the Kearney State Patrol office.
Goltz testified that the officers needed to determine ownership of the various bags so they could return all personal property that they did not intend to seize. (61:15-22). Goltz, Trooper Pole and Sgt. Jones took all the bags into the office and placed them on the floor. Defendants Walker, Morgan and Jones were in the area and could see the bags. Goltz explained to them that the police needed to return the bags so the defendants could lock them into their personal property. At that time, none of the defendants had been advised of their Miranda rights. Goltz held up the individual bags. Defendant Jones identified two bags. Defendant Walker identified the clothing that was wrapped in plastic. When the suitcase was lifted up, defendant Morgan said it was hers. At this time, none of the defendants knew the marijuana had been found in the suitcase. (62:1-23). Trooper Goltz testified that he did not force any of the defendants to identify their property.
B
Nebraska State Patrol Sergeant Dennis Leonard testified that he began working for the State Patrol in November 1986 and became a sergeant in February 1995. He lives in Grand Island, Nebraska and is assigned to Troop C, which consists of 17 counties in central Nebraska and includes the cities of Grand Island, Kearney and Hastings. His primary duty is to supervise the narcotics investigators assigned to Troop C. He also conducts investigations and interviews related to narcotics investigations.
At approximately 10 p.m. on the night of September 4, 1999, Sgt. Leonard was called from his home by Trooper Goltz to interview some subjects Goltz had arrested. Sgt. Leonard was not supervising the investigation at that time. The interviews took place at the State Patrol office in Kearney. Sgt. Leonard explained that the State Patrol's Kearney office is in the former superintendent's home for the boy's training center (now called the youth development center). He described the State Patrol building as an old two-story home with desks on the main floor and tables and chairs on the second floor. The State Patrol uses the building for office space and interview rooms. There is no holding facility in the Kearney office.
Jones was held at the Kearney State Patrol office for about five hours before he was interviewed by Sgt. Leonard shortly after 2 a.m. on the morning of September 5, 1999. During that time, Jones was handcuffed and was placed in the kitchen/dining room area of the old house. Jones was offered a beverage and was able to use restroom facilities upon request. Sgt. Leonard testified that Jones was "very talkative" before his interview and was wanting to make small talk with anybody who passed through the kitchen area.
Jones' interview was the third interview conducted by Sgt. Leonard that night. The interview, which was partially tape recorded, took place in a former bedroom on the second floor in the presence of DEA Agent Thurman Windam.
Leonard first asked Jones for biographical information. He then advised Jones of his Miranda rights. At this point, Sgt. Leonard noticed that the red indicator light of the camera was not on. He got up, turned the camera on and videotaped the remainder of the interview. The videotape was ultimately received in evidence as Exhibit 2.
The advice of rights was not tape recorded; however, Sgt. Leonard did complete an advice of rights form (Ex. 1), which reflects that Jones responded that he understood each question on the form. Sgt. Leonard testified that Jones was not asked to sign the waiver portion of the form because Jones was very talkative and Jones complained that it was getting late. (20:4-9). For example, while he was waiting in the kitchen area, Jones reportedly told other officers that it was getting late and he wanted to talk to Sgt. Leonard. When Sgt. Leonard began reading Jones his Miranda rights, Jones kept telling Leonard, "You don't need to read those to me. I just want to tell you what happened." Leonard advised Jones that Jones was under arrest and Leonard was required to advise Jones of his rights. Leonard read the rights from the form one at a time, asking Jones if he understood each right. Leonard then placed a check mark after each item after Jones said he understood.
Sgt. Leonard testified that Jones said he understood each right. In fact, Jones indicated to Leonard numerous times that he knew what his rights were and that he had "heard this before." (15:14-17). After he finished reading Jones the rights advisory form, Sgt. Leonard said he would also like to read Jones a waiver of rights. Jones replied that he did not want Leonard to read anything else and that all he wanted to do was tell Leonard what happened. Leonard said, "Okay, go ahead."
Sgt. Leonard testified that he did not make any promises to Jones or use any force or threats to get Jones to talk to him. Jones did not appear to be under the influence of drugs or alcohol and appeared to understand what he was doing. Leonard testified on cross-examination that he did not read Jones the waiver of rights because Jones said he understood his rights and asked Leonard not to read the waiver. In light of this request, combined with Jones' obvious willingness to talk and the presence of a DEA agent in the room witnessing the interview, Sgt. Leonard decided not to read the waiver to Jones. When Jones finished talking, he just said, "I'm done and I don't want to talk anymore." The interview was then terminated.
LEGAL ANALYSIS A. Initial Traffic Stop
All defendants argue that Trooper Goltz did not have reasonable suspicion to stop their vehicle on the night of September 4, 1999. In this regard, "[a]ny traffic violation, however minor, provides probable cause for a traffic stop. United States v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993). If the officer is legally authorized to stop the driver, any additional `underlying intent or motivation' does not invalidate the stop. United States v. Cummins, 920 F.2d 498, 501 (8th Cir. 1990), cert. denied, [ 502 U.S. 962] (1991)." United States v. Bloomfield, 40 F.3d 910, 915 (8th Cir. 1994) (en banc), cert. denied, 514 U.S. 1113 (1995);accord United States v. McCoy, 2000 U.S.App. LEXIS 761, 2000 WL 52109, ___ F.3d ___, No. 99-3483 (8th Cir. January 21, 2000).
Here, Trooper Goltz' attention was drawn to defendants' van because the van appeared to be speeding. After verifying by VASCAR
that the van was traveling at 78 miles per hour and after learning that the van's license plate had actually been issued for a 1998 Chevrolet sedan, he decided to conduct a traffic stop. Based on these uncontroverted facts, the court finds that Trooper Goltz had probable cause to stop the van.
B. Length of Detention and Scope of Inquiry 1
Once the defendants' vehicle was lawfully stopped, Trooper Goltz was entitled to conduct an investigation reasonably related in scope to the circumstances that prompted the stop. See Bloomfield, 40 F.3d at 915; McCoy, 2000 WL 52109 at *1. In determining whether a detention following a lawful stop of a vehicle is reasonable, the court must consider both the length of the detention and the officer's efforts to conduct the investigation in a quick and unintrusive manner. United States v. Beck, 140 F.3d 1129, 1134 (8th Cir. 1998).
Under the circumstances presented in this case, a reasonable investigation would include asking for the driver's license, vehicle registration, and rental agreement; requesting that the driver get out of the van; and asking the driver and occupants about their destination and purpose. Goltz was also reasonable in requesting the computer records checks for the three individuals in the van. See Bloomfield, 40 F.3d at 916-07; Beck, 140 F.3d at 1134.
I conclude that Trooper Goltz conduct his investigation in a "quick and unintrusive manner." In this case, the record checks were completed and all of the defendants' documents were returned to them in less than 20 minutes after the initial stop. During this time period, Goltz talked to Walker and Morgan about the details of their trip and the rental of the van. His conversation with Morgan about the "war on drugs" began when Walker decided not to drive any more and Morgan stepped out of the van to move to the driver's seat. Considering that the defendants were taking turns driving and that Morgan was the person who actually rented the van, Trooper Goltz acted reasonably in explaining to Morgan that Walker was to take care of the violation card.
A seizure does not occur simply because a law enforcement officer approaches an individual and asks a few questions or requests permission to search an area — even if the officer has no reason to suspect the individual is involved in criminal activity — provided the officer does not indicate that compliance with his request is required. Florida v. Bostick, [ 501 U.S. 429, 434-35] (1991). So long as a reasonable person would feel free "`to disregard the police and go about his business,'" the encounter is consensual and implicates no Fourth Amendment interest. Id. at 434[.] During such an encounter, the person approached "need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way." Florida v. Royer, [ 460 U.S. 491, 497-98] L.Ed.2d 229 (1983) (plurality opinion).
Although there is no litmus test for determining when an encounter becomes a seizure, we have noted that circumstances indicative of a seizure may include "`the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.'" . . .
United States v. White, 81 F.3d 775, 779 (8th Cir.), cert. denied, 519 U.S. 1011 (1996) (citations omitted).
When Trooper Goltz continued to converse with Morgan about the "war on drugs," nobody was in police custody. All the defendants' documents had been returned to them, and defendants had everything they needed to proceed on their way. Apparently, Trooper Pole and Sgt. Jones were present at the scene, but were passive observers and were not near Morgan while Goltz talked to her. Iowa Trooper Bardsley, who was not in uniform, remained in Goltz' patrol car. There is no evidence that any weapons were displayed. In other words, Morgan was "no longer seized" at the time Goltz asked for permission to walk the dog around the van because Morgan, Walker and Jones possessed everything they needed to continue their trip.See United States v. Beck, 140 F.3d 1129, 1135 (8th Cir. 1998).
I am persuaded that Goltz' requests to conduct the dog sniff and to search the van came during a consensual encounter, did not implicate the Fourth Amendment, and were permissible without reasonable suspicion. See also, e.g., United States v. Galvan-Muro, 141 F.3d 904, 906-07 (8th Cir. 1998); United States v. Carrazco, 91 F.3d 65, 66 (8th Cir. 1996). I therefore conclude that Morgan, during a consensual conversation, voluntarily gave Goltz permission to conduct a dog sniff of her vehicle.
2
In the alternative, the court finds that Trooper Goltz had reasonable suspicion to detain defendants long enough to walk his dog around their van. A consensual encounter becomes an investigative detention when the questioning becomes so intimidating, threatening or coercive that a reasonable person would not have believed herself free to leave. United States v. Hathcock, 103 F.3d 715, 718 (8th Cir. 1997). (Indeed, Goltz admitted that, after talking to Morgan, he did not intend to allow defendants to leave the scene until he walked his dog around the van.) At this point, one could argue that Trooper Goltz escalated the stop into a Terry stop, requiring that he have reasonable suspicion of criminal activity to continue detaining the defendants.
The standard of articulable justification required by the fourth amendment for an investigative, Terry-type seizure is whether the police officers were aware of "particularized, objective facts which, taken together with rational inferences from those facts, reasonably warrant[ed] suspicion that a crime [was] being committed." . . . In assessing whether the requisite degree of suspicion exists, we must determine whether the facts collectively establish reasonable suspicion, not whether each particular fact establishes reasonable suspicion. "[T]he totality of the circumstances — the whole picture — must be taken into account." . . . We may consider any added meaning certain conduct might suggest to experienced officers trained in the arts of observation and crime detection and acquainted with operating modes of criminals. . . . It is not necessary that the behavior on which reasonable suspicion is grounded be susceptible only to an interpretation of guilt[;] however, the officers must be acting on facts directly relating to the suspect or the suspect's conduct and not just on a "hunch" or on circumstances which "describe a very broad category of predominantly innocent travelers."
United States v. Beck, 140 F.3d at 1136 (citations omitted) (quoting United States v. Campbell, 843 F.2d 1089, 1093 (8th Cir. 1988)).
Trooper Goltz testified that his suspicion of criminal activity was based on Walker's and Morgan's excessive nervousness; their avoiding all eye contact with him, except when Morgan denied having cocaine and methamphetamine in the van; and the van was traveling from the Phoenix area, which is statistically known as a source for marijuana, to Detroit, an area known as a large drug hub. Based on his experiences conducting other stops, the newness, size and shape of the duffle bags Goltz saw through the windows of the van suggested to him that the duffle bags contained marijuana. Also, the bags seemed overly large for a four-day trip by two women. Walker and Morgan gave inconsistent statements about the length of their visit to Arizona. Goltz noted that the smell of cigars, perfumes, and/or deodorizers is frequently used to mask the odor of narcotics. Finally, in his experience, it was particularly relevant that defendants flew to Arizona and then rented a vehicle to drive all the way back: "I've seen that several times, and every time I've seen that, it's been drugs in the vehicle."
Considering his observations of the defendants and his experience as a law enforcement officer, I conclude that Trooper Goltz had reasonable suspicion to detain defendants for the additional 10 minutes it took to conduct the dog sniff.
C. Voluntariness of Consent to Search Vehicle
Because the court finds that Trooper Goltz' detention of the defendants was of permissible scope and duration, the fruits of his search of the van need not be suppressed so long as Morgan voluntarily consented to the search. The question of whether a consent to search was voluntary or was the product of duress or coercion is a question of fact to be determined from the totality of all circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). Morgan's consent was voluntary "if it was the product of an essentially free and unconstrained choice, rather than the product of duress or coercion, express or implied. Galvan-Muro, 141 F.3d at 907 (citing United States v. Chaidez, 906 F.2d 377, 380 (8th Cir. 1990)). This determination depends upon the totality of the circumstances, including the characteristics of the accused and the details of the interrogation. Id. The government bears the burden of proving voluntary consent by a preponderance of evidence. Id.
Trooper Goltz' statement that he intended to walk his dog around the van if Morgan did not consent to a search was not inherently coercive. Her possible knowledge "that a dog sniff and resulting search would inevitably prove incriminating does not mean h[er] consent was involuntary and coerced." See United States v. Hawthorne, 982 F.2d 1186, 1191 (8th Cir. 1992); United States v. Robinson, 984 F.2d 911, 914 (8th Cir. 1993); United States v. Hathcock, 103 F.3d at 720 ("Hathcock clearly granted his consent, apparently believing the officers would inevitably detect the illegal substances."). Considering all the circumstances, the court finds that the government has met its burden of proving that defendant Morgan's consent to search the van was voluntarily given.
D. Suppression of Morgan's Statement re Ownership of Luggage
In Filing 26, defendant Morgan contends that her statement concerning ownership of the suitcase containing marijuana must be suppressed because the statement was the result of custodial interrogation, was inculpatory, and was given without the benefit of Miranda warnings.
"Miranda warnings must be given `where there has been such a restriction on a person's freedom as to render [her] "in custody."'" Feltrop v. Bowersox, 91 F.3d 1178, 1181 (8th Cir. 1996), cert. denied, 117 S.Ct. 1849 (1997) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)). Although the State Patrol officers do not appear to have been abusive in manner towards any of the defendants, the record is clear that Morgan was in custody when Goltz asked defendants who owned the various pieces of luggage. The troopers had already discovered the marijuana in Morgan's suitcase, and her admission that she owned the suitcase was inculpatory. Her admission was the direct result of Trooper Goltz' inquiry.
Because Morgan's statement was solicited in violation of herMiranda rights, I shall recommend that the statement be suppressed.
E. Suppression of Jones' Statement
Defendant Jones argues that the statement he gave at the State Patrol office should be suppressed because the statement was involuntary and Jones did not waive his Miranda rights. UnderMiranda v. Arizona, a person questioned by law enforcement officers after being "taken into custody or otherwise deprived of his freedom of action in any significant way" must first "be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." 384 U.S. at 444. The parties agree in this case that defendant was in police custody when the statement was given.
1. Content
In this case, Sgt. Leonard testified that he took biographical information from defendant Jones and then advised him of his rights using an advice of rights form:
Before asking you any questions about possession of marijuana w/ intent to distribute (offense[s]), I must advise you and you must understand each of the following rights:
You have the right to remain silent.
Anything you say can be used against you in court.
You have the right to talk to a lawyer before answering any questions and to have a lawyer present with you during questioning.
If you cannot afford a lawyer, one will be appointed for you at no cost before any questioning.
If you answer questions now without a lawyer present, you have the right to stop answering at any time until you talk to a lawyer.
(Ex. 1). Sgt. Leonard testified, and Exhibit 1 reflects, that Jones said he understood each question on the form.
A Miranda warning is not a "ritualistic formula" which must be repeated without variation in order to be effective. Evans v. Swenson, 455 F.2d 291, 295 (8th Cir. 1972).
The Supreme Court "has never indicated that the `rigidity' of Miranda extends to the precise formulation of the warnings given a criminal defendant." . . . "Miranda itself indicate[s] that no talismanic incantation [is] required to satisfy its strictures." . . . [California v. Prysock, 453 U.S. 355, 360 (1981),] recognized that Miranda "announced procedural safeguards including `the now familiar Miranda warnings . . . or their equivalent.'" . . . [Duckworth v. Egan, 492 U.S. 195 (1989),] makes clear that "[r]eviewing courts . . . need not examine Miranda warnings as if construing a will or defining the terms of an easement." . . . "The inquiry is simply whether the warnings reasonably `conve[y] to [a suspect] his rights as required by Miranda." . . .
United States v. Caldwell, 954 F.2d 496, 501-502 (8th Cir.), cert. denied, 506 U.S. 819 (1992).
I find that the warnings given defendant by Sgt. Leonard comply with the requirements of Miranda.
2. Waiver
Turning to the question of waiver, the defendants' van was stopped between 8:45 and 9:00 p.m. Defendant Jones was held at the Kearney State Patrol office for about five hours before he was interviewed by shortly after 2 a.m. Jones was the last suspect to be interviewed. Because there is no holding facility in the Kearney office, Jones was handcuffed and was placed in the kitchen/dining room area of the house/office. Jones was offered a beverage and was able to use restroom facilities upon request.
Sgt. Leonard testified that defendant Jones was very talkative the night he was arrested. Before he was interviewed, Jones complained to other officers that it was getting late and said he wanted to talk to Sgt. Leonard. While being Mirandized, Jones complained that he had heard his rights before and said he just wanted to tell Leonard what happened. When Sgt. Leonard said he would also like to read Jones a waiver of rights, Jones said he did not want Leonard to read anything else and that all he wanted to do was tell Leonard what happened. Leonard said, "Okay, go ahead." The interview proceeded. When Jones finished talking, he just said, "I'm done and I don't want to talk anymore." The interview was then terminated.
Sgt. Leonard testified that he did not make any promises to Jones or use any force or threats to get Jones to talk to him. Jones did not appear to be under the influence of drugs or alcohol and appeared to understand what he was doing.
The government bears the burden to prove by a preponderance of the evidence that defendant waived his rights and gave a voluntary statement. Colorado v. Connelly, 479 U.S. 157 (1986). In evaluating the admission of a confession, the court must consider "the totality of the circumstances, including the factors specifically enumerated by statute, in order to answer the ultimate question whether the accused's will was overborne . . . and the statutory factors bearing on the voluntariness evaluation."United States v. Makes Room, 49 F.3d 410, 414 (8th Cir. 1995). 18 U.S.C. § 3501(b) provides:
The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession.
The presence or absence of any of the above-mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession.
United States v. Makes Room, 49 F.3d at 414.
A similar analysis has been used to evaluate "voluntariness" in general:
The appropriate test for determining whether a statement or confession is voluntary is whether the alleged statement or confession was "extracted by threats, violence, or direct or indirect promises, such that [a person's] will is overborne and his [or her] capacity for self-determination critically impaired."United States v. Kilgore, 58 F.3d 350, 353 (8th Cir. 1995), citingSumpter v. Nix, 863 F.2d 563, 565 (8th Cir. 1988) (internal citation omitted). In making this determination, we look and inquire into "the totality of the circumstances in assessing the conduct of law enforcement officials and the suspect's capacity to resist any pressure." United States v. Kilgore, 58 F.3d at 353.
United States v. Gipp, 147 F.3d 680 (8th Cir. 1998); see also United States v. Jones, 104 F.3d 193 (8th Cir.), cert. denied, 520 U.S. 1282 (1997).
Jones was detained, with access to beverages and restroom facilities, for approximately five hours before being interviewed. At the time of the interview, Jones said he understood his Miranda rights, asked Sgt. Leonard not to read him the waiver of rights form, and insisted that he wanted to tell Leonard what happened that night. Based on United States v. Hornbeck, 118 F.3d 615 (8th Cir. 1997) (15-hour delay did not render statement involuntary), and considering the factors set out above, I find that defendant's statements were not the result of an unduly coercive environment. For this reason, I shall recommend that his motion to suppress statement (#28) be denied.
RECOMMENDATIONS
For the reasons explained above,
IT IS RECOMMENDED:
1. that the Motion to Suppress Re: Traffic Stop, Detention and Search, filed by defendant Morgan (#25) be denied;
2. that the Motion to Suppress Statement, filed by defendant Morgan (#26) be granted;
3. that the Motion to Suppress, filed by defendant Walker (#27) be denied;
4. that the Motion to Suppress Statement, filed by defendant Jones (#28) be denied; and
5. that the Motion to Suppress Re: Traffic Stop, Detention and Search, filed by defendant Jones (#29) be denied.
Pursuant to NELR 72.4, any objection to this recommendation may be made by filing a "Statement of Objection to Magistrate Judge's Recommendation" within 10 days after being served with a copy of the recommendation. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis of the objection. The objecting party shall submit to the district judge at the time of filing the objection a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection. The failure to object to a finding of fact in a magistrate judge's recommendation in a dispositive matter may be construed as a waiver of that party's right to appeal the order of the district judge adopting the recommendation as to the finding of fact.