Opinion
Case No. 99-CR-442 W.
January 25, 2000
AMENDED REPORT AND RECOMMENDATION
The defendant, Jose Ricardo Navarro, has been indicted on one count of possession of cocaine with intent to distribute. The defendant made a motion to suppress, challenging the stop of defendant's vehicle August 5, 1999 on "I-15", in Juab County. Defendant also asserted that his detention was illegal and tainted any subsequent search of the vehicle which may have been based on his alleged consent. Defendant also challenged the statement given to a Utah police officer as having been illegally obtained.
Hearing was held on the motion to suppress (File Entry #23). The defendant submitted a memorandum in support of his motion to suppress (File Entry #27). The United States submitted a response (File Entry #30). Oral argument was held on the motion. At the time of oral argument, defendant's counsel stated that there was no contention as to the legality of the stop of defendant's vehicle and his detention up to the time when defendant's license was returned to him and an officer requested permission to search defendant's vehicle. Defendant contends that even though his license was returned to him he was still illegally detained and his consent to search was tainted by the detention.
The case has been referred to the magistrate judge under 28 U.S.C. § 636 (b)(1)(B). This report and recommendation is submitted pursuant to the reference on the defendant's motion to suppress.
EVIDENCE
It was stipulated at hearing, as to defendant's claim to suppress his statement, that a Miranda warning was given to the defendant, but that his invocation of his right to silence was ignored. However, because the government indicated it may seek to use the defendant's statement for impeachment purposes, the hearing addressed the voluntariness of the statement (Tr. p. 6).
Utah Highway Patrol (UHP) officer Greg Kelsey stopped the defendant on I-15 for speeding. The encounter was videotaped (Tr. p. 10). There are problems with the audio portion (Id). Exhibit I is an audio/video tape of the encounter. The officer approached the defendant, who was the driver, asked for a license and registration and about his travel plans. Defendant said he had purchased the vehicle the week before. It had California registration and plates. A computer check was run which was negative, but various factors raised the officer's suspicion that the vehicle was being used to transport drugs (Tr. p. 14). However, after receiving a negative criminal history the officer wrote out a warning for speeding and returned the defendant's license and registration to him. The officer considered defendant free to leave, the officer's vehicle was not obstructing the defendant from leaving. (Id.)
The officer then asked if defendant had any weapons, alcohol, or drugs in his car and the defendant said no "do you want to check?" The officer replied "sure" and defendant said "that's fine" and asked if the officer wanted defendant to get out of the car. The officer said "yeah". The defendant reached back and unlocked the back door on the rear driver side and explained to the officer the power locks didn't work (Tr. pp. 15-16). Defendant then opened the vehicle trunk. As the officer searched, the defendant stood by the officer and observed what occurred. Defendant was cooperative. The officer asked about the hood and the defendant unlatched the hood and lifted it up. In an air intake area the officer obtained a package wrapped in Saran wrap which contained drugs. The defendant was arrested (Tr. p. 18). The passenger was also arrested. They were taken to jail. The package in the vehicle tested positive for cocaine (Tr. p. 19). During the roadside encounter, there were no threats or improper language used. The officer did not tell the defendant that the officer had to search the vehicle and defendant did not object to the search (Tr. p. 20).
When Officer Kelsey returned to defendant's vehicle after the preliminary inquiries and computer check, he had the defendant's registration, driver's license, and insurance card (Tr. p. 24). The officer gave these items back to the defendant (Tr. p. 25). At that time the officer asked questions about defendant's driving and whether there were weapons, alcohol or drugs in the vehicle. (Id.) The officer was suspicious of drug trafficking based on various factors (Tr. pp. 26-27). Navarro was not told he was free to leave (Tr. p. 28). Navarro was not told he did not have to allow the search of his vehicle (Tr. p. 29). No Miranda warning was given to defendant at the roadside site.
An audio/video tape was made of the circumstances after the stop. The audio did not work when the officer first approached the defendant vehicle and asked for a license. The audio started to work after the officer received defendant's license, registration, and insurance card. This was at about 9:29 to 9:32 a.m. Conversation occurred between the officer and defendant and then the officer took the materials provided by the defendant and went to the patrol vehicle. A records and criminal history check was requested. The records check was negative. At about 9:39 a.m. the officer returned to defendant's vehicle and gave defendant his license, registration, insurance card and a warning citation. The officer stepped back and asked defendant a few questions about his travel from California and then remarked about the defendant's answer, that it was a lot of driving.
The officer is quite tall. He stood some height above the passenger window. He had one hand on the side of the vehicle and turned and asked defendant if there were guns, alcohol or drugs in the vehicle. As he did so the officer put a second hand on the vehicle apparently to steady himself while addressing defendant. The officer's position was not restraining defendant but was the mere resting of the officer's hands on the vehicle while the officer spoke to defendant. The officer did not ask the defendant for permission to search vehicle. The defendant replied to the officer's question and said that there were no such items in the vehicle, but then said, do you want to check and the officer states that he would.
Defendant exited the vehicle, and the defendant and the officer walked to the vehicle trunk. The defendant opened the trunk and the officer commenced to search the trunk area. Defendant was with the officer and could see what was going on and raised no objection or protest. At one point the officer asked defendant to move back, which defendant did but only a few feet. He could still plainly see what was taking place.
The officer found nothing in the trunk. He said something to defendant about the hood and defendant entered the vehicle and released the hood latch. Defendant then got out and stood on the driver's side of the vehicle while the officer looked under the hood and eventually found drugs under the lid. Defendant was handcuffed at 9:53 a.m.
Sergeant John Ellis of the Utah Department of Public Safety was assigned to investigate narcotics cases (Tr. pp. 37-38). He interviewed defendant at the Juab County Jail in Nephi, Utah in an interview room. Officer Kelsey was present. Defendant was given a Miranda warning and defendant told the officer that defendant did not wish to speak (Tr. p. 39).
Miranda v. Arizona, supra.
After defendant refused to waive his right to silence, the officer said he would still like to ask Navarro some questions and the officer said he could help Navarro if he would be willing to cooperate. Defendant said he had just bought the car and didn't know the drugs were there. The interrogation ceased.
Later the officer went to the intake room and told Navarro that the officer was going to leave and it was Navarro's "last chance" to talk with Ellis. Navarro said he would like to talk to the officer and made admissions. No threats were employed. No other promises were made (Tr. pp. 40-41).
The Miranda warning given to defendant was in English (Tr. p. 42). Navarro said he understood his rights. (Id.) The warning was from a Miranda card (Tr. p. 43). After defendant invoked his right to silence, the officer did not stop and continued to ask questions and Navarro was told that for his cooperation the officer would see that Navarro was given consideration on his charge (Tr. p. 43). The officer did not define what help he wanted from defendant and it was apparently based on defendant's willingness to deliver the drugs (Tr. p. 44). Defendant did not ask for a lawyer (Tr. p. 45). The conversation was all in English. There may have been some mention of probation (Tr. p. 47). The second conversation was about 15 to 20 minutes after the first questioning (Tr. p. 45).
Defendant Jose Ricardo Navarro testified. He is 27 years old, was educated to the ninth grade and spoke English. He did not understand his rights regarding the search of his car (Tr. p. 49). He was the owner, operator of the 1996 Chevy/Lumina. He did allow the officer to search when the officer asked about weapons, drugs or alcohol, because he thought all officers had that right. He thought the officer would search the vehicle anyway (Tr. p. 50). This was done in Mexico. Defendant has been in the United States nine years. He has been in Salt Lake City since 1996. He has held various jobs in the United States.
Based on the evidence the court enters the following:
FINDINGS OF FACT
1. On August 5th 1999 Utah Highway Patrol Officer Greg Kelsey was patrolling I-15 when he stopped defendant Jose Ricardo Navarro's vehicle for speeding. The officer asked Navarro for his license and registration which were provided along with an insurance card. The officer asked the general questions about travel and other matters. The officer took the defendant's papers to the patrol car and ran computer checks on the vehicle, license, and a criminal history on Navarro. The computer report was that everything was proper.
2. The officer returned to defendant's vehicle and returned his license, registration, and insurance card along with a warning citation. The officer then stood back from the vehicle and asked a few questions about defendant's travel. He had one hand resting on the vehicle. The officer is quite tall and had to bend slightly to speak to the driver in the vehicle. The officer's vehicle was behind defendant's vehicle and was not an obstruction to defendant. The officer was not positioned in front of defendant's vehicle or blocking the vehicle's return to the highway. The officer had not asked the defendant to remain. The officer faced the driver and put a second hand on the vehicle. The officer asked defendant if he had any guns, alcohol, or drugs in his vehicle. The officer did not ask to search vehicle. The defendant replied to the officers questions, "no, do you wanted check?" The officer replied in the affirmative and defendant said that's fine and opened the vehicle door, got out and opened the trunk. He was not handcuffed and remained in the presence of the officer and could see the officer's actions during the search of the vehicle. There was general conversation between the two persons.
3. The officer proceeded to search the vehicle without any objection from the defendant. The defendant had invited the search of his vehicle. After nothing was found in the trunk the officer referred to the vehicle hood and defendant entered the vehicle and popped the hood. The officer continued to search in the engine area. The defendant was standing to the side and could see what the officer was doing and there was some conversation between the officer and defendant. Eventually, the officer found drug packages in the vicinity of the air unit. Defendant was arrested, handcuffed, and taken to the Juab County Jail at Nephi.
4. At the Juab County Jail, defendant was interrogated by Sergeant John Ellis of the narcotics section of the Utah Department of Public Safety. Officer Kelsey was present. Ellis gave the defendant a proper Miranda warning in English which defendant understood. The audio/video tape of the encounter with officer Kelsey shows defendant was conversant in English and understood and spoke the language well. Defendant, after receiving his Miranda advice, stated he did not wish to speak. Ellis continued to interrogate Navarro and tried to enlist him to aid the police in the delivery of the narcotics that had been found. Ellis told Navarro he could help him and he could get the lesser charge. Navarro did not wish to cooperate. He was placed in a cell. Fifteen to twenty minutes later Ellis approached Navarro and told him that the officer was going to leave and that it was Navarro's last chance to cooperate. Then Navarro made incriminating statements. Ellis did not scrupulously honor Navarro's initial request to remain silent. The officer's promise to help the defendant with a reduced charge or sentence if the defendant cooperated was an improper inducement and defendant's statement was the direct result of the inducement.
DISCUSSION
The Search Of Defendant's Vehicle
The defendant contends the officer exceeded the legitimate basis of detention arising from the stop. Underlying the defendant's contention is that he was in a state of detention when the officer asked the defendant if he had any guns, drugs, or alcohol in the vehicle. However, at that point the officer had completed the traffic inquiry and returned the defendant's license, registration, and insurance card and had given him a warning citation. If the officer had kept those materials the defendant could not leave and would still be detained. United States vs. Burch, 153 F.3d 1140, 1143 (10th Circuit 1998); United States vs. Mendez, 118 F.3d 1426, 1430, (10th Circuit 1997). The defendant concedes up to this point the detention had been lawful. United States vs. Guzman, 864 F.2d 1512, 1519 (10th Circuit 1988); United States vs. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Circuit 1994).
However, "A traffic stop may become a consensual encounter if the officer returns the license and registration and asks questions without constraining the driver by an overbearing show of authority." United States v. Hernandez, 93 F.3d 1493-1499 (10th Cir. 1996); United States v. Werking, 915 F.2d 1404, 1408-09 (10th Cir. 1990). See also United States v. Mendez, 118 F.3d at 1430; United States v. Anderson, 114 F.3d 1059 (10th Cir. 1997); United States v. McKneely, 6 F.3d 1447, 1451 (10th Cir. 1993) (collecting cases); United States v. Turner, 928 F.2d 956, 959 (10th Cir. 1991).
In Ohio vs. Robinette, 519 U.S. 33 (1996) the officer made a stop of defendant's vehicle because of speeding. The officer issued a warning and returned the defendant's license. Like the officer in this case, the Ohio officer then asked the driver if he was carrying drugs and the driver replied "no". The officer then asked for permission to search which was given. The Supreme Court upheld the search process even though the defendant was not told he was free to leave. The court imposed no such requirement. See also United States vs. Palomino, 100 F.3d 446, 450-51 (6th Circuit 1996) (return of license and officer not blocking the defendant's car when request to search was made); United States vs. Chan, 136 F.3d 1158, 1159-60 (7th Circuit 1998) (ticketing process complete and driver free to leave).
In this case, Officer Kelsey had given defendant all his documents, and spoke to defendant momentarily about his travel plans. The officer's vehicle was not blocking defendant's exit and the officer was not blocking or restraining the vehicle. The officer had one hand and then both hands on the vehicle momentarily in a non-restraining manner that was not indicative of detention. The circumstances were casual and to some extent due to the officer's height. There were no overt manifestations of restraint or detention. The officer believed defendant was free to go and the defendant in his testimony said nothing about believing himself restrained. It must be concluded the return of the license and other papers to defendant changed the situation to a police/citizen encounter and no illegal detention of defendant took place.
The fact of the police officer's return of the defendant's documents does not necessarily mean the subsequent search was lawful, Burch, supra; Mendez, supra; Anderson, supra. However, in this case, there is no doubt of defendant's consent to the search of the vehicle. First, and most important, is that the officer did not request permission to search. Rather, when the officer asked the question of defendant about guns, drugs, or alcohol, the defendant invited the officer to look. It was the defendant's offer that the officer accepted and defendant said it was fine. No threats or intimidation was involved. The video reflects that there was no misconduct by the officer and a relaxed permissive atmosphere existed. When the officer accepted the offer to check, defendant exited the vehicle and thereafter opened the vehicle trunk and hood and did not make any objection to the scope of the search. United States vs. Flores, 48 F.3d 467 (10th Circuit 1995) (defendant voluntarily opened trunk indicating consent). Defendant was cooperative. The defendant testified he authorized the search but he believed the officer had the authority to look, because that was what Mexican police did. However, defendant had been in the United States for nine years, was the licensed driver and had been employed at various jobs. The defendant's explanation is not credible and especially so from his conduct on the videotape. Also, the standard is one of voluntariness and not a knowing and intelligent waiver of a right. Schneckloth vs. Bustamonte, 412 U.S. 218 (1973); United States vs. Carson, 793 F.2d 1141 (10th Circuit 1986; United States vs. Guzman, supra.
Whether the authorization to consent was voluntary must be determined by the totality of the circumstances. Schneckloth vs. Bustamonte, supra; United States vs. Evans, 937 F.2d 1534 (10th Circuit 1991); United States vs. Mendoza-Salgado, 964 F.2d 993 (10th Circuit 1992). It is one of voluntary authorization. United States vs. Mendenhall, 446 U.S. 544, 557-60 (1980). In United States vs. Butler, 966 F.2d 559 (10th Cir. 1992) the court stated the proper standard to use in determining if consent was given:
"To admit evidence obtained from a search, wherein consent was given, the following must be found:
(1) There must be a clear and positive testimony that consent was unequivocal and specific and freely given; and
(2) The government must prove consent was given without duress or coercion, express or implied.
Under the circumstances of this case, there was a valid consent to search given to the officers by defendant. United States v. Ospina, 682 F. Supp. 1182, 1185 (D.Utah 1988); United States v. Lopez, 777 F.2d 543 (10th Cir. 1985); United States v. Espinosa, 782 F.2d 888 (10th Cir. 1986); United States v. Pena, 920 F.2d 1509 (10th Cir. 1990); United States v. Werking, supra; United States v. Arango, 912 F.2d 441 (10th Cir. 1990); United States v. Corral, 899 F.2d 991 (10th Cir. 1990).
Defendant's self-serving statement that he thought the officer would search anyway did not defeat permission. United States vs. Garcia Fernandez, 955 F. Supp. 1361 (Utah 1996). Defendant's own testimony shows the search was voluntary.
Therefore, there is no basis to suppress the evidence obtained from the search of defendant's vehicle.
Defendant's Incriminating Statement To Officer Ellis
The government concedes Officer Ellis did not comply with the requirements of Miranda vs. Arizona, supra, and cease further interrogation when the suspect invoked his right to silence. The officer did not scrupulously honor the defendant's request for silence. Michigan vs. Mosley, 423 U.S. 96 (1975). Therefore, the defendant's statement may not be used by the prosecution in its case in chief.
The second question is whether the statement was voluntary and available for impeachment. Harris vs. New York, 401 U.S. 222 (1971); Oregon vs. Hass, 420 U.S. 714 (1975). In this case, Ellis made the defendant a specific promise of leniency on the charges or sentence if he cooperated. This was a specific promise and induced the defendant's subsequent statement to Ellis. This provided the coercion for the statement and mandates finding of involuntariness of defendant's statement. Colorado vs. Connelly, 479 U.S. 157 (1986).
A mere promise of assistance if the suspect cooperates does not necessarily make a statement involuntary United States vs. Glover, 104 F.3d 1570,1582 (10th Circuit 1997). However, the specific offer in this case coupled with rejection of defendant's request for silence in fact overcame defendant's will and his statement was involuntary. Defendant was in custody, his right to silence violated, he is a minority person from Mexico and was faced with a very serious offense. He was offered a significant specific charge benefit and told it was his last chance if he did not cooperate. Given the totality of the circumstances, 18 U.S.C. § 3501(6), the statement cannot be deemed voluntary, Arizona v. Fulminante, 499 U.S. 279 (1991).
Defendant's statement may not be used for impeachment purposes.
CONCLUSION
Defendant's motion to suppress evidence obtained from the search of his vehicle should be DENIED. Defendant's statement given to Officer Ellis should be SUPPRESSED for all purposes.
Copies of the foregoing Report and Recommendation are being mailed to the parties who are hereby notified of their right to object to the same. The parties are further notified that they must file any objections to the Report and Recommendation, with the clerk of the court, pursuant to 28 U.S.C. § 636(b), within ten (10) days after receiving it. Failure to file objections may constitute a waiver of those objections on subsequent appellate review.