Opinion
8:02CR55
August 2, 2002
MEMORANDUM AND ORDER
This matter is before the court on the defendant's objection, Filing No. 22, to the report and recommendation of the magistrate, Filing No. 19. The magistrate denied the defendant's motion to suppress, Filing No. 11. The Indictment, Filing No. 2, charges the defendant in Count I with knowingly and intentionally possessing with the intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1), and (b)(1). Pursuant to 28 U.S.C. § 636(b)(1)(C), I am to make a de novo determination of those portions of the report or specified proposed findings or recommendations to which the defendant objects. To that end, I have carefully reviewed the record, the transcript of proceeding, the report and recommendation of the magistrate, the briefs, the objections, and the relevant case law, and I conclude that the report and recommendation of the magistrate should be adopted.
Facts
I have carefully reviewed the facts as set forth by the magistrate. After reviewing the transcript, I find them to be accurate. Consequently, I will not reiterate the facts in this order, except as I wish to add or emphasize them. The factual findings set forth in the magistrate's report and recommendation are hereby adopted and incorporated herein by reference. Report and Recommendation, Filing No. 19 at 2-5.
Objections
The defendant first objects to the magistrate's report and recommendation on the grounds that there existed no probable cause to stop the defendant's car. I agree with the magistrate's findings in this regard. Officer Allen clocked all three vehicles with speeds approximating 85 mph. That determination is sufficient to find probable cause existed for the stop, and I so find. See United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 646 (8th Cir. 1999).
The defendant next objects that he was unjustifiably detained by Officer Allen. However, the officer specifically asked the defendant if he would answer a few questions. The defendant responded in the affirmative. The officer noticed a strong smell of air freshener in the vehicle, a substance that is known to mask the odor of drugs. Also, the vehicle title given by the defendant to the officer did not have a signature in the appropriate place, and the license of the car was from California. Further, Officer Allen testified that the defendant seemed unusually nervous. These facts, when viewed together, justify Officer Allen's request to ask the defendant further questions. See United States v. Bloomfield, 40 F.3d 910, 914 (8th Cir. 1994).
Third, the defendant argues that there was no voluntary consent to search. The magistrate concluded that the plaintiff gave consent. In order for the search to be valid, the consent must be voluntarily given without coercion. Ohio v. Robinette, 519 U.S. 33, 40 (1996). I agree with the conclusion of the magistrate. First, Officer Allen, prior to asking any questions, told the defendant that he was free to leave. The officer then asked for permission to search the defendant's vehicle. Although the response given by the defendant is not clear from the audiotape (a semi-truck passed by at the time of the response), the defendant clearly exited the vehicle and allowed the officers to search the car. There is no evidence of any coercion or threats, nor is there any evidence that the defendant ever objected to the search or withdrew his consent. I conclude that consent to search was given by the defendant.
The defendant next argues that even if consent was given, the search exceeded the scope of the consent. The test is what a reasonable person would have understood the consent to mean. Florida v. Jimeno, 500 U.S. 248 (1991). The defendant argues that the search was destructive and that tools were utilized. Although I am concerned in general that the officers in this case came close to exceeding the scope of the consent, I find that they did not. It is true that after the officers searched the interior of the car, they were unable to find the contraband. However, they noticed that the carpet and interior had been recently altered and glued with Bondo. Officer Allen had seen this done in a number of drug cases. Consequently, the officers began removing parts of the interior of the car and the carpet. At that point the drugs were discovered. Again, however, there is no argument that the defendant ever revoked his consent or objected to the search by the officers. I conclude that, based on the limited facts of this case, the officers did not exceed the scope of the defendant's consent.
Lastly, the defendant argues that the statements made by him to the officers should be suppressed. In order for the statements to be admissible, they must be voluntary. Brown v. Mississippi, 297 U.S. 278 (1936). I have reviewed the tape following the defendant's arrest. I conclude that the statements made at that time were voluntary, and I further conclude that the defendant knowingly waived his rights when he chose to talk to the interrogating officers.
THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED:
1. The defendant's motion to suppress, Filing No. 11, is denied;
2. The defendant's objections, Filing No. 22, to the magistrate's report and recommendation are denied; and
3. The magistrate's report and recommendation, Filing No. 19, is adopted.