Opinion
Case No. 8:02CR90
July 23, 2002
MEMORANDUM AND ORDER
INTRODUCTION
This matter is before the Court on the Report and Recommendation (Filing No. 22) issued by Magistrate Judge Kathleen Jaudzemis recommending denial of the Motion to Suppress filed by the Defendant, Isreal Torres-Sortelo (Filing No. 16) and the Motion to Suppress filed by the Defendant, Jose Torres-Sortelo (Filing No. 15). Isreal and Jose Torres-Sortelo filed Statements of Objections to the Report and Recommendation (Filing Nos. 24 and 23, respectively) as allowed by 28 U.S.C. § 636(b)(1)(C) and NELR 72.4.
It appears that Isreal Torres-Sortelo's name is misspelled in various places in the record as "Israel Torres-Sortelo."
The Defendants are charged in a two-count Indictment with possession of pseudoephedrine, knowing or having reasonable cause to believe that the substance would be used to manufacture a controlled substance, in violation of 21 U.S.C. § 841(c)(2) and 802(34) (Count I), and criminal forfeiture, in violating of 21 U.S.C. § 853 (Count II). The Defendants seek an order suppressing all evidence obtained as a result of the search of the Defendants' vehicle that occurred on February 6, 2002.
Following an evidentiary hearing on the Motions, Magistrate Judge Jaudzemis issued a Report and Recommendation in which she determined: 1) exceeding the speed limit was a traffic violation that provided sufficient probable cause for the traffic stop; 2) reasonable suspicion justified the investigative detention; 3) Isreal Torres voluntarily consented to the search of the vehicle; and 4) the Defendants did not meet their burden of proving that they were stopped because of their race in violation of the Equal Protection Clause. On the basis of these determinations, Judge Jaudzemis recommended that the Motions to Suppress be denied.
Isreal Torres filed a Statement of Objections to the Magistrate Judge's Report and Recommendation. (Filing No. 24) The Statement of Objections was supported by a brief.
Jose Torres also objected to the Report and Recommendation. (Filing No. 23.) However, Jose Torres did not submit a brief. The Court cannot guess as to Jose Torres' objections, which are not set forth in his Statement of Objections or explained in a brief. Therefore, pursuant to NELR 72.4, Jose Torres' objections are deemed abandoned.
NELR 72.4 provides that a statement of objections "shall specify those portions of the recommendation to which objection is made and the basis of the objection." NELR 72.4 also states that brief shall be submitted setting forth the legal arguments and that "[f]ailure to submit a brief in support of the objection may be deemed an abandonment of the objection."
It appears that William Gallup, defense counsel for Isreal Torres, filed the Statement of Objections for codefendant Jose Torres. Mr. Gallup then submitted a brief on behalf of his client, Isreal Torres. Jose Torres never submitted a brief or an adoption of Isreal Torres' brief.
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 Isreal Torres has objected. Although Jose Torres-Sortelo's objections are deemed abandoned, the Court will make a de novo determination as to the issues as they pertain to him. 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 an account of the events leading up to the traffic stop, the request for consent to search the van, and the search of the van. The Court also viewed the crucial portion of the videotape several times. Based on the Court's de novo review of the evidence, only the portion of the statement of facts relating to the alleged consent to search the vehicle merits additional comment.
On page 5 of the Report and Recommendation, the Magistrate Judge sets out the conversation near 02:22:22 on the videotape. The tape is extremely difficult to understand. This Court, upon listening and watching this portion of the videotape, adds to the Magistrate Judge's description of the conversation as follows. Officer Kober, speaking to Isreal Torres, asked: "Do you mind if we search the vehicle today, tonight? Do you mind if we search the vehicle tonight?" Isreal Torres' response cannot be heard clearly, but from Kober's next response it is clear that Isreal Torres somehow communicated that he did not understand what was being asked of him. Kober then explained: "Search it — look through it — make sure there's not any guns, money, large amounts of cash, nothing like that." Then, apparently without a pending question Isreal Torres stated: "yes." Kober then asked: Do you mind if we search? Isreal Torres responded: "No." Kober than said, "Okay," and told the two men where to remain during the search.
OBJECTIONS
Isreal Torres objected to the Report and Recommendation, arguing that Isreal's consent to search the van was not voluntary. (Filing No. 24.)
ANALYSIS
Consent is voluntary if it results from "an essentially free and unconstrained choice" rather than from "duress or coercion." Schneckloth v. Bustamonte, 412 U.S. 218, 225, 227 (1973). Whether consent is voluntary depends upon the "totality of the circumstances," including "the characteristics of the accused and the details of the interrogation." Id. at 226. When evaluating such circumstances, the court pays particular attention to the characteristics of the person giving consent and to the encounter that resulted in the alleged consent. See United States v. Thomas, 93 F.3d 479, 486 (8th Cir. 1996). Relevant characteristics of the suspect include age, intelligence and education; chemical intoxication, if any; whether the individual was informed of Miranda rights or the right to withhold consent; and whether, due to previous arrests, the suspect was aware of rights afforded to criminal suspects. See United States v. Chaidez, 906 F.2d 377, 380 (8th Cir. 1990). To assess the environment of the encounter, the court considers the length of time that the suspect was detained and questioned; whether the police intimidated the suspect; whether the suspect relied upon promises or misrepresentations made by the police; whether the suspect was in custody; whether the encounter occurred in a public or secluded place; and whether the suspect objected. Id.
This case is made difficult primarily because of the difficulty in understanding the audio portion of the videotape. In reviewing the tape numerous times, the Court paid and very careful attention to Isreal Torres' tone of voice and the timing of his responses to Kober's inquiry during the crucial portion of their conversation that begins at about 02:22:22 on the videotape.
With regard to language and Isreal Torres' comprehension, the record establishes that he easily conversed with Kober in English throughout the encounter. It appears that when initially asked for consent to search, Isreal Torres apparently asked for clarification. Once Kober explained, there is no indication that Isreal Torres did not understand what Kober was asking. These impressions, formed when the Court watched and listened to the videotape, are consistent with Kober's testimony. Kober testified that although he assumed Isreal Torres' primary language was Spanish, Isreal Torres responded appropriately to Kober's questions and appeared to have no difficulty conversing in English. (Tr. 12:5-21.)
Regarding the specific questions and responses at 02:22:22 on the videotape, and comparing those with Kober's testimony, the Court notes the following. Kober testified that consent would not be shown by a response of "yes" to the following question: "Do you mind if I search your car?" (Tr. 27:20-23.) However, Kober testified that when Isreal Torres initially answered "yes," Kober then sought to clarify whether Kober had consent to search. This testimony is buttressed by the videotape, which shows that when Isreal Torres stated "yes," no particular question was pending. Kober then asked: "Do you mind if we search?" Isreal Torres answered "no." As Kober testified, this answer as it was phrased gave him consent to search. (Tr. 28:8-11.)
The way the questions and answers were paced and phrased, together with Isreal Torres' tone of voice, persuades the Court that, under the totality of the circumstances, the government has met its burden of proving that Isreal Torres gave voluntary consent to search the van. The Court did not reach this conclusion lightly, and extremely careful attention was given to all of the evidence in this case. In addition to the previous discussion regarding the crucial point of the conversation between Kober and Isreal Torres, the Court also finds the following: the investigatory stop was reasonable in duration and scope; the questioning lasted only a few minutes; the evidence does not show Isreal Torres' age or criminal history; Isreal Torres was not informed of his Miranda rights or his right to refuse consent; a written consent form was not used, either in Spanish or English; Isreal Torres was not threatened, coerced, or intimidated; Isreal Torres did not appear to be intoxicated by drugs or alcohol; no promises or misrepresentations were made; and neither Defendant objected to the search.
CONCLUSION
For the reasons discussed, the Court finds that Isreal Torres-Sortelo's consent to search the vehicle was voluntary. The Court concludes that the Defendants' motions to suppress should be denied.
IT IS ORDERED.
1. The Magistrate Judge's Report and Recommendation (Filing No. 22) is adopted
2. The Objections to the Report and Recommendation (Filing No. 24) filed by the Defendant, Isreal Torres-Sortelo, are overruled;
The Objections to the Report and Recommendation (Filing No. 23) filed by the Defendant, Jose Torres-Sortelo, are deemed abandoned;
4. The Motion to Suppress filed by the Defendant, Isreal Torres-Sortelo (Filing No. 16) is denied; and
5. The Motion to Suppress filed by the Defendant, Jose Torres-Sortelo (Filing No. 15) is denied.