The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge
REPORT AND RECOMMENDATION AS TO DEFENDANTS' MOTIONS TO DISMISS
Defendants Alan Sepulveda-Sandoval and Ivan Berrella-Verduzco are before the court on charges of possession with intent to distribute a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A); possession of a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); being non-immigrant aliens in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2); and forfeiture of firearm and ammunition pursuant to 18 U.S.C. § 924(d) and 28 U.S.C. § 2361(c). Each defendant has filed a motion to suppress evidence and statements obtained by law enforcement. See Docket Nos. 44 and 46. The government resists these motions. See Docket No. 48. The district court, the Honorable Jeffrey L. Viken, referred these motions to this magistrate judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
An evidentiary hearing on these motions was held June 21, 2010.
Mr. Sandoval was present and represented by his attorney, Ellery Grey.
Mr. Verduzco was present and represented by his attorney, Steven Christensen. The government was represented by its Assistant United States Attorney Mark Vargo. Trooper Matt Oxner of the South Dakota Highway Patrol and Special Agent Nick Saroff of the United States Immigration and Customs Enforcement Agency "(ICE"), testified at the hearing. Several exhibits were received into evidence at the hearing. From this evidence the court makes the following findings of fact.
At approximately 7:55 a.m. on April 3, 2010, Trooper Matt Oxner was on duty and received a tip via cell phone from his fellow South Dakota law enforcement officer Trooper Brian Swets. Trooper Swets told Trooper Oxner that a Wyoming law enforcement officer had called and informed Swets that a grey Chrysler Pacifica with Washington state license plates had been stopped in Wyoming and the officer had issued a warning citation. The Wyoming officer had been suspicious and had asked the occupants of the Pacifica for permission to search the vehicle. The occupants had refused to consent to a search and the Wyoming officer allowed them to leave.
Just before 13:00 p.m. on the same day, Trooper Oxner was on duty in his marked patrol vehicle operating his radar machine near exit 67 on Interstate 90 just east of Rapid City, South Dakota. His drug detection dog, Keya, was in his patrol vehicle with him. He observed a grey Pacifica with Washington license plates pass him traveling at 69 miles per hour in a 65-mile-per-hour zone. Trooper Oxner immediately pulled out and followed the Pacifica for approximately three miles. Trooper Oxner first pulled up in the northernmost lane of the two-lane, divided highway so that his front bumper was approximately even with the rear bumper of the Pacifica, which was in the southernmost lane. From this vantage point, Trooper Oxner was able to read the license number of the Pacifica and call it into dispatch.
Trooper Oxner then pulled up even with the Pacifica and observed the occupants of that vehicle. He saw the man he would later learn was Mr. Sandoval driving the vehicle and the man he would later learn was Mr. Verduzco in the front passenger seat apparently sleeping. Trooper Oxner observed that Mr. Sandoval did not look over at Trooper Oxner as their vehicles traveled next to each other down the highway. Trooper Oxner then dropped back and turned on his emergency lights in order to stop the defendants' vehicle. An automatic recording machine was activated simultaneous with the activation of the emergency lights. A recording made by this device was received into evidence at the hearing as Exhibit 1. The recording begins at 12:58 p.m.
After Trooper Oxner activated his lights, the Pacifica pulled over to the shoulder of the highway and stopped. Trooper Oxner exited his patrol vehicle and approached defendants' vehicle on the passenger side. Trooper Oxner looked inside the vehicle and observed fast food wrappers from Subway. He asked for the driver's license, the vehicle registration, and proof of insurance. Mr. Sandoval was able to produce a driver's license, but not the vehicle registration or proof of insurance. Mr. Verduzco was not able to produce an identification card or driver's license. Trooper Oxner testified that Mr. Verduzco had a frightened expression on his face. When the defendants opened the glove box to look for the requested documents, Trooper Oxner observed a bottle of over-the-counter energy pills.
Also during this interval, Trooper Oxner purportedly observed both defendants' pulse visibly pounding in their carotid arteries. He also purportedly observed Mr. Verduzco's pulse in his belly. From these two observations Trooper Oxner testified that he concluded the defendants were unusually nervous. Trooper Oxner denied that a potential source of nervousness in the defendants was the fact that he had just followed their vehicle in a marked patrol car for three miles, first just off their rear bumper, and then parallel to them.
The court specifically rejects this particular testimony as not credible. First, as to Mr. Verduzco's pulse in his belly, the court observed that both defendants were very slim and wiry. Neither had a protruding belly that would press against their clothing. In addition, Mr. Verduzco was wearing a white hooded sweatshirt, which would be thicker than an ordinary shirt. A review of the recording of the traffic stop in this case, Exhibit 1, reveals that Mr. Verduzco's hooded sweatshirt fit very loosely on him. These facts make it highly improbable that Trooper Oxner observed Mr. Verduzco's pulse in his belly through his shirt.
Two minutes after making initial contact with the defendants, at 13:01 p.m., Trooper Oxner asked Mr. Sandoval to come back to his patrol vehicle and take a seat in front. Trooper Oxner told Mr. Sandoval that he would issue him a warning ticket. Trooper Oxner appears to have experienced some difficulty in communicating the concept of a warning ticket to Mr. Sandoval.
Trooper Oxner testified that Mr. Sandoval's native language appeared to be Spanish, not English. Trooper Oxner testified that he had taken some Spanish classes in high school and college, but was by no means fluent in Spanish. The language barrier between Trooper Oxner and Mr. Sandoval appears to have been substantial. Again, from a review of the recording of the traffic stop in this case, there are many times where Trooper Oxner and Mr. Sandoval were unable to communicate. At one point Mr. Sandoval spoke to Trooper Oxner, trying to tell him something about "five more," the only English words Sandoval spoke in this particular exchange. Trooper Oxner had him repeat what he was saying several times and finally gave up, unable to interpret what Mr. Sandoval was trying to tell him. Agent Saroff, who is fluent in Spanish, testified that it would be pointless to try to talk to Mr. Verduzco in English as he did not understand English at all.
In the patrol car, Trooper Oxner sat in the driver's seat and Mr. Sandoval sat in the front passenger seat. Trooper Oxner first began by telling Mr. Sandoval that he was going to issue him a warning citation for speeding and showed Mr. Sandoval the reading on his radar. In response, Mr. Sandoval explained that he had been having some trouble with the cruise control or the transmission in the Pacifica.
Trooper Oxner then began asking Mr. Sandoval a series of questions about his trip. In response to these questions, Mr. Sandoval explained that he and his passenger were traveling from Everette, Washington, near Seattle, and that they were going to Kansas City to look for work as painters. Mr. Sandoval told Trooper Oxner that they planned to stay with Mr. Sandoval's mother in Kansas City. Mr. Sandoval told Trooper Oxner that the vehicle he was driving was owned by his friend, Fernando Cortez Gaxiola. When the Trooper inquired how the Pacifica would be returned to Mr. Gaxiola, Mr. Sandoval explained that Mr. Gaxiola would be traveling to Kansas City to retrieve it at some point in the future. When asked how long Mr. Sandoval had been acquainted with Mr. Verduzco, he responded, "I don't know, maybe 23?" From which Trooper Oxner interpreted that Mr. Sandoval was saying that he had known Mr. Verduzco for 23 years.
Inside the patrol vehicle, Trooper Oxner stated that he made the further observation that Mr. Sandoval clenched his jaw from time to time. Trooper Oxner testified that he concluded this was evidence that Mr. Sanoval was abnormally nervous. Trooper Oxner also noted that Mr. Sandoval was dressed in new sneakers, new blue jeans, and a nicer pull-over. He testified that he found this inconsistent with Mr. Sandoval's story about his trip because Mr. Sandoval's clothing was not the type of clothing usually worn by painters. Trooper Oxner also testified that he observed Mr. Sandoval's hands to be free of callouses and that he found this, too, to be inconsistent with Mr. Sandoval's representation that he was looking for work as a painter.
At 13:09 p.m., Trooper Oxner left Mr. Sandoval in the patrol vehicle and went back to the passenger's side of the Pacifica where he then interrogated Mr. Verduzco about the same subjects he had just asked Mr. Sandoval about. Mr. Verduzco gave the same answers as Mr. Sandoval: the two were traveling from Everette, Washington, to Kansas City to look for work as painters and planned to stay with Sandoval's mother while they were looking for work.
Mr. Verduzco confirmed that the Pacifica belonged to Mr. Gaxiola. Only two differences between Mr. Sandoval's discussion with Trooper Oxner and Mr. Verduzco's discussion emerged. One was that Mr. Verduzco explained that he would probably drive the Pacifica back to Mr. Gaxiola rather than Mr. Gaxiola traveling to Kansas City to retrieve his vehicle--or at least this is what Trooper Oxner interpreted Mr. Verduzco to be saying. The recording of the traffic stop is far from clear on this point. The other difference was that Mr. Verduzco said he and Mr. Sandoval had known each other for 10 years, rather than the 23 years stated by Mr. Sandovall. Again, this requires a degree of interpretation to arrive at the conclusion that Mr. Verduzco was indeed making this assertion.
Trooper Oxner then asked Mr. Verduzco whether there were any drugs in the vehicle, and Mr. Verduzco responded that there were not. As with Sandoval, Trooper Oxner testified that Mr. Verduzco's clothing--a white hooded sweatshirt, blue jeans, and sneakers--were not the type of clothing that a painter would wear.
Trooper Oxner then returned to his patrol vehicle where he told Mr. Sandoval that he would have to check law enforcement records on Sandoval's driver's license and the vehicle registration. Trooper Oxner then asked Mr. Sandoval whether there were any drugs in the Pacifica.
Mr. Sandoval denied the presence of any drugs.
Only at 13:15 p.m., sixteen minutes after initiating this traffic stop, did Trooper Oxner call in the information to dispatch regarding Sandoval's driver's license and the vehicle registration. Trooper Oxner testified that the delay was occasioned by the act of actually writing out the warning ticket and reviewing the driver's license and Wyoming ticket that Mr. Sandoval had given him. Again, the court specifically finds this testimony not credible. Exhibit 1, the recording of this traffic stop, as well as Trooper Oxner's own testimony, show that he engaged in substantial discussion with first Mr. Sandoval and then Mr. Verduzco. While the court cannot see on the recording what Trooper Oxner was doing while in his patrol vehicle, the court can observe what Trooper Oxner was doing when he was out of his vehicle in front. From a review of this recording, it is clear that Trooper Oxner was not writing a citation or reviewing documentation while talking to Mr. Verduzco.
When asked why it was necessary to review the Wyoming ticket for purposes of issuing the South Dakota warning ticket, Trooper Oxner said that his review of the Wyoming ticket was related to drug interdiction. He wanted to see who was driving, what the charge was, and the time of the citation in order to see if any facts jumped out at him as indicative of drug trafficking. The court makes a specific finding that Trooper Oxner's primary purpose in this traffic stop was the discovery of evidence of drug trafficking rather than addressing the ostensible reason for the traffic stop--i.e. the speeding violation.
Trooper Oxner testified that dispatch usually responds with information about a driver's license within one minute. A response from dispatch relaying a subject's criminal history takes longer, sometimes up to ten minutes.
After calling the information in to dispatch, Trooper Oxner ran his drug dog, Keya, around the Pacifica while waiting for the response from dispatch. Keya alerted to the rear of the vehicle near the location where the license plate is displayed. She indicated by scratching at the vehicle in this location. Photographs were introduced into evidence showing scratches in the dirt on the Pacifica as a result of Keya's indication. However, the photos do not clearly indicate whether the vehicle's paint was scratched. Trooper Oxner testified that vehicles are not usually damaged as a result of Keya's indications.
Keya and Trooper Oxner were first certified in drug detection following a seven-week training course in 2003 under the auspices of the International Congress of Police Service Dogs. Later, they also received certification pursuant to state law in South Dakota. They have undergone continuing training in the form of eight hours additional training every other week since they were certified. Keya was retired May 7, 2010, shortly after the traffic stop in this case. Trooper Oxner testified that she retired due to old age as she was nine and one-half years old at the time.
After Keya indicated, Trooper Oxner asked Mr. Verduzco to exit the Pacifica. He patted Mr. Verduzco down, handcuffed him, and stationed him in the ditch adjacent to the highway. Trooper Oxner then also handcuffed Mr. Sandoval. Trooper Oxner told Mr. Sandoval that Keya had alerted and that the trooper would be searching the Pacifica. Following handcuffing both defendants, Trooper Oxner did not ask any substantive questions of either of them.
Suspecting that contraband was secreted in a hidden compartment, Trooper Oxner arranged to have the Pacifica and both defendants taken to the Highway Patrol shop nearby. There, the Pacifica was dismantled and contraband was found.
Trooper Oxner notified Special Agent Nick Saroff with ICE, who then traveled to the Highway Patrol shop. Once there, Agent Saroff made contact with both defendants in order to conduct interviews with them. Agent Saroff is fluent in Spanish, having worked several years for the United States Border Patrol in the southwestern United States. Agent Saroff conducted the interviews with the defendants in that language.
The interviews took place in a lunch room at the shop that was approximately 14 feet by 20 feet. The room contained chairs, a table, two microwaves, and other kitchen-type items.
Agent Saroff advised Mr. Verduzco of his Miranda*fn1 rights in Spanish and reviewed a written form that reproduced those rights in Spanish. Agent Saroff asked Mr. Verduzco if he could read, to which he responded he could. Agent Saroff had Mr. Verduzco then read the written advisement of rights out loud. A copy of that form was received into evidence as Exhibit 4. Mr. Verduzco told Agent Saroff that he understood these rights, and that he was willing to talk to Agent Saroff without a lawyer present. Agent Saroff testified that Mr. Verduzco sobbed and cried throughout the interview. Mr. Verduzco did not understand English at all. Mr. Verduzco repeatedly denied any knowledge of the existence of any drugs or guns in the Pacifica or the origin or destination of those items.
Mid-way through the interview, Mr. Verduzco told Agent Saroff that he had changed his mind and did not want to continue with the interview. Agent Saroff immediately terminated the interview and asked no further questions.
Agent Saroff then spoke to Mr. Sandoval. Initially, Agent Saroff asked Mr. Sandoval what he characterized as "booking questions." Agent Saroff asked Mr. Sandoval his name, date of birth, place of birth, and current address.*fn2 He then asked Mr. Sandoval if he was in the United States illegally. Mr. Sandoval agreed that he was. Agent Saroff advised Mr. Sandoval of his Miranda rights in Spanish. Mr. Sandoval did not agree to waive those rights and Agent Saroff terminated the interview without discussion of any events related to the traffic stop or the contraband found in the Pacifica.
Both defendants now move to suppress certain evidence. Mr. Verduzco does not question Trooper Oxner's stop of his vehicle, but does contend that the continued detention of the defendants after the issuance of the warning ticket violated their Fourth Amendment rights, thus necessitating the suppression of the physical evidence taken from defendants' vehicle.
Mr. Verduzco also questions the reliability of Keya and whether she indicated to the Pacifica, arguing that without demonstrated reliability and a clear alert to the car, Keya's actions at the traffic stop cannot provide probable cause for Trooper Oxner's search of the vehicle. Finally, Mr. Verduzco argues that his statement to Agent Saroff should be suppressed. His argument as to the statement are twofold: (1) the statement should be suppressed as "fruit of the poisonous tree" of the Fourth Amendment violation; and (2) the statements were taken in violation of Miranda.
Mr. Sandoval joins in the argument that the continued detention of defendants violated their Fourth Amendment rights and also questions the reliability of Keya. In addition, Mr. Sandoval argues that Trooper Oxner knew before he used Keya to examine the Pacifica that she would damage the Pacifica by scratching it. Under such circumstances, Mr. Sandoval argues that the deployment of Keya in and of itself was a search that required probable cause before embarking upon. Finally, Mr. Sandoval urges the suppression of his statements to Agent Saroff on the same grounds urged by Mr. Verduzco. The government resists both motions to suppress in their entirety.
A. Whether the Continued Detention of Defendants at the Traffic Stop Violated the Fourth Amendment and Requires Suppression of the Fruits of the Search
1. Whether the Search was Unreasonably Prolonged
When a law enforcement officer stops a motor vehicle and questions its occupants, the stop constitutes a seizure under the Fourth Amendment, "even though the purpose of the stop is limited and the resulting detention quite brief." Brendlin v. California, 551 U.S. 249, 255-56 (2007); Delaware v. Prouse, 440 U.S. 648, 653 (1979); United States v. Wheat, 278 F.3d 722, 726 (8th Cir. 2001). A stop of the driver of a vehicle results in a seizure under the Fourth Amendment of all occupants of the vehicle. Brendlin, 551 U.S. at 255-56.
A traffic stop is legal under the Fourth Amendment if it is supported by probable cause to believe that a violation of law has occurred. Whren v. United States, 517 U.S. 806, 810 (1996). "An officer has probable cause to conduct a traffic stop when he observes even a minor traffic violation. 'This is true even if a valid traffic stop is a pretext for other investigation.' " United States v. Sallis, 507 F.3d 646, 649 (8th Cir. 2007) (quoting United States v. Coney, 456 F.3d 850, 855-56 (8th Cir. 2006) (quoting United States v. Linkous, 285 F.3d 716, 719 (8th Cir. 2002)). A traffic stop "is valid even if the police would have ignored the traffic violation but for their suspicion that greater crimes are afoot." United States v. Long, 532 F.3d 791, 795 (8th Cir. 2008) (quoting United States v. Chatman, 119 F.3d 1335, 1339-40 (8th Cir. 1997)). An officer's subjective motivations are irrelevant to the probable cause determination. Id.
A traffic stop under the Fourth Amendment can also be justified by a lesser showing of a "reasonable suspicion" pursuant to Terry v. Ohio, 392 U.S. 1 (1968). United States v. Winters, 491 F.3d 918, 921 (8th Cir. 2007). An officer making a Terry stop "must be able to articulate something more than an 'incohate and unparticularized suspicion or "hunch." ' " United States v. Sokolow, 490 U.S. 1, 7 (1989). The Fourth Amendment requires "some minimal level of objective justification" for making the stop. INS v. Delgado, 466 U.S. 210, 217 (1984). The Court has held that probable cause means " 'a fair probability that contraband or evidence of a crime will be found,' and the level of suspicion required for a Terry stop is obviously less demanding than for probable cause." Sokolow, 490 U.S. at 7 (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). "Police must have a 'particularized and objective basis' for suspecting criminal activity at the time the stop is made." United States v. Spotts, 275 F.3d 714, 718 (8th Cir.2002).
"Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors--quantity and quality--are considered in the 'totality of the circumstances--the whole picture,' that must be taken into account when evaluating whether there is reasonable suspicion." Alabama v. White, 496 U.S. 325, 330 (1990) (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). If the investigatory stop is not supported by reasonable suspicion or if the officers exceed the proper scope of the stop, then any evidence derived from the stop must be excluded from trial. Wong Sun v. United States, 371 U.S. 471, 484 (1963); Wheat, 278 F.3d at 726.
If the officer has an objectively reasonable belief that the suspect has violated traffic law, even if the officer is mistaken, reasonable suspicion for the stop can still exist. United States v. Bueno, 443 F.3d 1017, 1024-25 (8th Cir. 2006) (citing United States v. Smart, 393 F.3d 767, 770 (8th ...