The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AND GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO SUPPRESS STATEMENTS
Defendant, Carlos Ramos-Rogel, is charged with possession with intent to distribute a controlled substance. Defendant moves to suppress the evidence that was seized as a result of a warrantless search of his automobile and his statements, which were made to police officers after his arrest. The government resists those motions. On February 11, 2010, Magistrate Judge Simko issued a report and recommendation recommending denial of defendant's motion to exclude the physical evidence and granting in part and denying in part defendant's motion to exclude statements. Defendant objects to the recommendation as it pertains to the motion to suppress the physical evidence.*fn1 The government has not filed any objections. After a de novo review, the court adopts Magistrate Judge Simko's report and recommendation as supplemented herein.
Under 28 U.S.C. § 636(b)(1), "when a party objects to the report and recommendation of a magistrate judge concerning a dispositive matter, '[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.' " United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (quoting 28 U.S.C. § 636(b)(1)); see also Fed. R. Civ. P. 72(b) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.").
The facts leading up to the search are as follows:*fn2 On Friday, October 2, 2009, a concerned citizen contacted the Sioux Falls Drug Task Force indicating that an individual was attempting to sell methamphetamine. (Docket 33-2, Tr. 9-10.) Later that afternoon, an officer arrested the individual alleged to have been selling methamphetamine and seized methamphetamine. (Tr. 10.) The individual (hereinafter "the informant") decided to cooperate with law enforcement and disclosed that the source of the informant's methamphetamine was "Charlie" and provided "Charlie's" phone number. (Tr. 10.) The informant was held in jail over the weekend. (Tr. 10.)
The following Monday, law enforcement met with the informant at the police department. (Tr. 42.) The informant agreed to make recorded phone calls to "Charlie" and inquire if "Charlie" would deliver additional quantities of methamphetamine. (Tr. 10, 26, 27-28.) The informant asked "Charlie" for two ounces of methamphetamine, and "Charlie" agreed.*fn3 (Tr. 28-29.) The informant spoke in Spanish during the recorded calls to "Charlie," and "Charlie" responded in Spanish. (Tr. 22-23.) After each call, the informant would translate the "meat and potatoes" of the call to the agents. (Tr. 23, 43-44.) Agent Harvison was present when the subject made the first few calls.*fn4 (Tr. 21.)
After the first few calls, Harvison left for the designated place where "Charlie" agreed to deliver the methamphetamine to the informant. (Tr. 43.)
After Harvison left, he continued to receive information about ongoing phone calls between the informant and "Charlie" from Agent Stephan and Detective Schmitz, who remained with the informant while the calls were made. (Tr. 31-32, 35.) These phone calls also involved the informant and "Charlie" speaking in Spanish and the informant translating afterwards. (Tr. 23, 43-44.)
Arrangements were made for "Charlie" to meet the informant at the Frying Pan restaurant on East 10th Street in Sioux Falls. (Tr. 30.) For purposes of identifying "Charlie" when he arrived at the restaurant, the agents instructed the informant to ask "Charlie" what type of car he would be driving. (Tr. 31.) The informant said that "Charlie" said that he would be driving a cream or tan colored car. (Tr. 31.) Additionally, information that "Charlie" would enter the Frying Pan parking lot from the east was obtained by the informant. (Tr. 35-36.) Agent Stephan called Harvison to advise him that "Charlie" was east of their location in a cream colored vehicle. (Tr. 36.)
Shortly thereafter, Harvison observed a cream colored Honda enter the Frying Pan parking lot from the east, and a call came over the police radio that the cream colored vehicle that had entered the lot was being driven by a lone Hispanic male who was talking on a cell phone. (Tr. 36-37.) It was the only vehicle entering either of the Frying Pan's two entrances at that moment, and it was the only cream colored vehicle that arrived. (Tr. 37.) At the same moment that the cream colored car entered the parking lot, Agent Stephan radioed to Harvison that "Charlie" had just told the informant, "I'm here at the restaurant." (Tr. 37.)
By the time the officers arrived in the parking lot, "Charlie" had exited the vehicle and moved toward the trunk. He was placed into custody and was not free to leave. (Tr. 48.) "Charlie" was identified as defendant, Carlos Ramos-Rogel. ( Tr. 39.)
The officers asked Harvison whether there was probable cause to search the car, and Harvison answered affirmatively. (Tr. 38.) Defendant did not consent to the search. (Tr. 49.) Police detectives searched defendant's vehicle and found methamphetamine. (Tr. 48-49.) The methamphetamine was not in plain sight. (Tr. 49.) ...