United States v. Carrasco-Ruiz

MEMORANDUM OPINION AND ORDER RE: REPORT AND RECOMMENDATION ON MOTIONS TO SUPPRESS

LAWRENCE L. PIERSOL, District Judge.

Defendants were indicted for possession with intent to distribute 5 kilograms or more of a mixture or substance containing cocaine and possession with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine. Defendants filed Motions to Suppress Evidence and Statements (Docs. 38 and 70). An evidentiary hearing was held on the motions on Monday, August 1, 2008, before the Honorable John E. Simko, United States Magistrate Judge. The Magistrate’s Report and Recommendation was filed on August 8, 2008. Doc. 78 The Magistrate recommended that Defendant Salazar’s Motion to Suppress (Doc. 38) be granted to the extent that statements made in the first three non-Mirandized minutes of the custodial interrogation be suppressed but otherwise denied, and that Defendant Carrasco’s Motion (Doc. 70) be denied. Neither Defendant filed objections. 1 This Court adopts the Magistrate’s Report and Recommendation with regard to the denial of the suppression of evidence but rejects that portion of the Report and Recommendation which denies suppression of all statements made after the first three non-Mirandized minutes of Defendant Salazar’s custodial interrogation.

DISCUSSION

At around 7:30 a.m. on February 21, 2008, a South Dakota Highway Patrol Officer stopped Defendants on Interstate 90 near exit 263 near Chamberlain after observing the eastbound 2008 pickup in which they were traveling cross the fog line and center line. Defendant Salazar was the driver, but the passenger, Defendant Carrasco owned the truck. Defendant Salazar was questioned in the patrol car. The Highway Patrol Officer had the drug dog run around the truck and the drug dog indicated to the odor of drugs on the front driver’s side near the fender well. The truck was then taken to the nearby Department of Transportation garage for a more thorough search which turned up drugs in a hidden compartment. Defendants were arrested and transported to the Brule County Jail where Defendant Salazar gave an incriminating statement to D.E.A. Agent Harvison and D.C.I. Agent Piercy.

Both Defendants argued that 1) there was no probable cause for the stop; 2) there was no basis for conducting a search of the vehicle; 3) that the stop of the suspect vehicle was pretextual; and 4) that the Defendants were illegally detained after the traffic stop had ended. The Magistrate’s Report and Recommendation rejected these arguments, and this Court adopts the findings and conclusions of the Magistrate with regard to the above issues and denies the motions to suppress evidence.

The Court has conducted a de novo review of the record concerning the statements made by Defendant Salazar during his custodial interrogation in the afternoon of February 21, 2008. In this custodial interrogation, Defendant Salazar was not given the Miranda warnings until approximately three minutes into the interrogation. After being read the Miranda warnings in English Defendant Salazar advised that he did not completely understand the warning. D.E.A. Agent Harvison then asked Defendant Salazar if he could read Spanish. When Defendant Salazar advised that he could read Spanish Harvison gave him a card with the Miranda warnings written in Spanish. Defendant Salazar indicated that he understood what was written on the card and eventually responded that the officers could ask him some questions. At the end of the interview Defendant Salazar asked if he could see a lawyer.

The Court rejects the Magistrate’s recommendation that Defendant Salazar’s Motion to Suppress be granted only with regard to the first three non-Mirandized minutes of the custodial interrogation because the Court has concluded that the Magistrate’s application of the holding in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), fails to adequately consider significant factors in the surrounding circumstances and course of police conduct with regard to the interrogation of Defendant Salazar. Based on the circumstances of this case all statements made during the custodial interrogation will be suppressed.

In Oregon v. Elstad, law enforcement officers went to the defendant’s home with a warrant for his arrest for a burglary. After being asked if he knew why law enforcement was at his home the defendant made an incriminating statement with regard to the burglary. The defendant was transported to the Sheriffs headquarters and was advised for the first time of his Miranda rights. After indicating he understood his rights, and wished to speak with the officers, the defendant gave a full statement. The incriminating statement was typed, reviewed by the defendant, read back to him for correction, then initialed and signed by the defendant. Id. at 300-301, 105 S.Ct. 1285.

The defendant in Oregon v. Elstad moved to suppress his oral statement and signed confession, contending that the statement he made at his house “let the cat out of the bag,” citing United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654(1947), and that the statement tainted the subsequent confession as “fruit of the poisonous tree,” citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441(1963). The Supreme Court in Oregon v. Elstad noted that Miranda warnings need to be administered only after the person is taken into “custody” or his freedom has otherwise been significantly restrained. See Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Supreme Court further acknowledged, “Unfortunately, the task of defining ‘custody’ is a slippery one, and ‘policemen investigating serious crimes [cannot realistically be expected to] make no errors whatsoever.’ ” Oregon v. Elstad, 470 U.S. at 309, 105 S.Ct. 1285 (quoting Michigan v. Tucker, 417 U.S. 433, 446, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974)).The Supreme Court in Elstad observed that the unwarned statement in that case arose from a situation in which the officers were acting “not to interrogate the suspect but to notify his mother of the reason for his arrest.” In addition, the Court observed that the later reading of the Miranda warning was “undeniably complete” and that there was “no question” that the Defendant voluntarily waived his right to remain silent before he incriminated himself. 470 U.S. at 314-315, 105 S.Ct. 1285.

The Supreme Court in Oregon v. Elstad held that a suspect who has responded to an earlier unwarned but uncoercive questioning and is later given the requisite Miranda warnings, is not disabled from waiving his rights and confessing after he has been given the Miranda warnings. In reaching this holding the Court advised as follows:

The Court today in no way retreats from the bright-line rule of Miranda. We do not imply that good faith excuses a failure to administer Miranda warnings; nor do we condone inherently coercive police tactics or methods offensive to due process that render the initial admission involuntary and undermine the suspect’s will to invoke his rights once they are read to him. A handful of courts have, however, applied our precedents relating to confessions obtained under coercive circumstances to situations involving wholly voluntary admissions, requiring a passage of time or break in events before a second, fully warned statement can be deemed voluntary. Far from establishing a rigid rule, we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspect’s initial inculpatory statement, though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements.

470 U.S. at 318, 105 S.Ct. 1285 (footnotes omitted).

In Missouri v. Seibert, 542 U.S. 600, 611, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), the Supreme Court addressed what had become a popular technique of interro gating in successive unwarned and warned phases and the threshold issue of whether in such circumstances the Miranda warnings could function effectively. The plurality opinion concluded that “when Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and ‘depriv[e] a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.’” Id. at 613-614, 124 S.Ct. 2601 (quoting Moran v. Burbine, 475 U.S. 412, 424, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)). The plurality opinion in Missouri v. Sei-bert distinguished Oregon v. Elstad from the situation it was encountering involving successive unwarned and warned phases of interrogation and listed the following “series of relevant facts” which affect whether Miranda warnings given mid-interrogation can be sufficiently effective to accomplish their object: “the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.” 542 U.S. at 615, 124 S.Ct. 2601.

Defendant Salazar’s custodial interrogation involved no pause in time, no change of setting, and no disruption of police personnel between the unwarned and warned phases. D.E.A. Agent Harvison testified as follows regarding the conversation before Defendant Salazar was given the Miranda warnings: “We visited a little bit, I was comfortable that I was going to be able to communicate with him in English .... ” However, this Court’s review of the audio tape of the interrogation causes this Court to reject such an innocuous characterization of the unwarned interrogation. In the approximate three minutes of the unwarned interrogation, D.C.I. Agent Piercy elicited information from Defendant Salazar which included an acknowledgment that “a bunch of drugs” were found in the pickup and admissions that Defendant Salazar had been paid by Defendant Carrasco to drive the truck. Defendant Salazar also provided information that Defendant Carrasco paid for the gas and food during the trip, and that the two had made a stop in Denver. This information was more incriminating with regard to the existence of a drug operation than the information provided earlier to the state trooper when Defendant Salazar was questioned regarding the destination and purpose of his trip. Furthermore, the content of the unwarned interrogation overlapped with the warned interrogation and the interrogators’ questions treated the warned interrogation questions as being continuous with the unwarned interrogation questions.

Although the Eighth Circuit has considered the Missouri v. Seibert plurality’s criteria in determining the effectiveness of midstream Miranda warnings, see, e.g., United States v. Ollie, 442 F.3d 1135 (8th Cir.2006), because Justice Kennedy provided the fifth vote and his concurrence resolved the Missouri v. Seibert case on narrower grounds than did the plurality, it is his reasoning that rules whether the warned statement must be suppressed. See Ollie, 442 F.3d at 1142(citing Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260(1977)). Justice Kennedy states in his concurrence that he would suppress post-warning statements only where the police intentionally used the two-step interrogation technique to render Miranda warnings ineffective. Post-warning statements would then be inadmissible unless the police took curative measures that would ensure that a reasonable person would understand his or her rights. Curative measures could include a substantial break in time and circum stances between the prewarning statement and the Miranda warning, or an additional warning that explains the likely inadmissibility of the prewarning custodial statement. 542 U.S. at 621-22, 124 S.Ct. 2601 (Kennedy, J., concurring in the judgment).

In footnote 12 of the Magistrate’s Report and Recommendation the Magistrate concludes that the interrogation in issue was “not a purposeful ‘midstream’ Miranda warning tactic, as was condemned in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004).” In Missouri v. Seibert, the interrogating officer testified that he made a conscious decision to withhold Miranda warnings, 542 U.S. at 605-606, 124 S.Ct. 2601. Although no such admission was made in the case at hand, the absence of such an admission by an interrogating officer does not preclude the application of the holding in Missouri v. Seibert. Although the Eight Circuit has held that Missouri v. Seibert is not implicated in eases in which the failure to warn was not deliberate, see, e.g., United States v. Torres-Lona, 491 F.3d 750, 758 (8th Cir.2007)(I.C.E. agent testified that he did not believe he was required to administer Miranda warnings because he believed the defendant would be processed administratively for deportation and not charged with a criminal offenses), the Eighth Circuit has also opposed interpreting Oregon v. Elstad so as to facilitate an “end run around Miranda.” See United States v. Carter, 884 F.2d 368, 373 (8th Cir.1989)(custodial nature of interrogation was not unclear to officers, and permitting admission of written confession into evidence would allow police to ignore Miranda requirements until after confession was obtained).

The Eighth Circuit acknowledges that evidence of the intent of interrogating officers is rarely available. See United States v. Ollie, 442 F.3d at 1142 (“It is unlikely that such direct evidence [as that presented in Seibert ] will be available in most cases.”). Therefore, when a defendant moves to suppress a post-warning statement that he contends was given as part of a question-first interrogation, the prosecution must prove, by a preponderance of the evidence, that the interrogating officer’s failure to provide the Miranda warnings at the outset of questioning was not part of a deliberate attempt to circumvent Ollie, 442 F.3d at 1142-1143. The Government does not suggest that the interrogating officers in this case ever questioned whether Defendant Salazar was in custody during all phases of his interrogation, as he clearly was. The D.E.A. Agent conceded that point at the suppression hearing, and the D.C.I. Agent that questioned Defendant Salazar before the Miranda warnings were administered never testified at the suppression hearing. The task of defining “custody” was not slippery in this case and no plausible explanation has been offered for failing to give Defendant Salazar the Miranda warnings at the beginning of the interrogation. In addition, there is no evidence that any curative measures contemplated by Justice Kennedy were taken after the unwarned statements were elicited. Had proper curative measures been taken, the subsequent statement would have been admissible. None having been taken or even attempted, Missouri v. Seibert therefore requires the exclusion of all statements made during Defendant Salazar’s custodial interrogation. Accordingly,

IT IS ORDERED:

(1) That the Magistrate’s Report and Recommendation (Doc.78) is adopted with regard to the denial of the suppression of evidence but rejected with regard to that portion of the Report and Recommendation which denies suppression of all statements made in Defendant Salazar’s custodial interrogation;

(2) That Defendant Carrasco’s Motion to Suppress Evidence (Doc. 70) is denied; and

(3) That the Defendant Salazar’s Motions to Suppress (Doc. 38) is denied with respect to evidence obtained from the stop and granted with regard to all statements made during Defendant Salazar’s custodial interrogation.

REPORT AND RECOMMENDATION

(Motions to Suppress Evidence and Statements, Docs. 38 and 70)

JOHN E. SIMKO, United States Magistrate Judge.

Pending are Defendants’ Motions to Suppress Evidence and Statements (Docs. 38 and 70). A hearing was held on the motions on Monday, August 1, 2008. Defendants were personally present and represented by their counsel of record, Michael Black (for Mr. Salazar-Salazar) and Mr. Jose Mendoza and Steve Nesson for Mr. Carrasco-Ruiz. The Government was represented by Assistant United States Attorney John Haak and Intern Sara Show. Two witnesses testified at the hearing: South Dakota Highway Patrol Trooper Zac Bader and Drug Enforcement Administration Special Agent Gary Harvison. Four exhibits were received into evidence.

Based on careful consideration of the evidence produced at the hearings and the parties’ written submissions the Court makes the following:

RECOMMENDATION

It is respectfully recommended that Defendant Salazar’s Motion to Suppress (Doc. 38) be GRANTED in part and DENIED in part and that Defendant Carrasco’s Motion (Doc. 70) be DENIED.

JURISDICTION

Defendants are charged in an Indictment with Possession with Intent to Distribute a Controlled Substance in violation of 21 U.S.C. §§ 841(a)(1). The pending Motions were referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Judge Piersol’s Standing Order dated November 29, 2006.

FACTUAL BACKGROUND

South Dakota Highway Patrol Officer Zac Bader and his drug dog Robby 1 were on stationary patrol on September February 21, 2008 at approximately 7:30 a.m. on Interstate 90 near exit 263 near Chamberlain. TR 15-16; EX 1 at 7:30. While on duty that day, Bader observed a pickup traveling eastbound on the interstate. The pickup did not have a front license plate. TR 24. Bader observed the pickup cross the fog line. TR 32. He decided to follow the pickup. Bader followed the pickup for a mile or mile and a half. TR 33. When he got close enough, he observed that the rear license plate was from Arizona. Bader knew Arizona did not require front license plates, so he no longer considered the lack of a front license plate as a potential traffic violation. TR 33. While following the pickup, Bader observed it cross the fog line again, and also observed it cross the center line. TR 34. Based on these traffic violations, Bader decided to initiate a traffic stop.

Trooper Bader activated the camcorder inside his patrol car. TR 15. A copy of the DVD recording was marked as EX 1 and received into evidence at the suppression hearing. No traffic violations were recorded on the recording. TR 28. The pickup stopped at the side of the interstate. Trooper Bader approached the pickup on the passenger’s side. He observed two males in the pickup. TR 16. Mr.Salazar was the driver, but the passenger (Mr. Carrasco) owned the truck. TR 17-18. Bader observed trash in the vehicle, giving it a “lived in” look, air fresheners, religious paraphernalia, two bags, and a single key in the ignition. TR 17. As he approached he also observed a stroller and a child seat in the bed of the pickup. TR 16.

Bader asked Mr. Salazar to get into the patrol car, and Mr. Salazar complied. EX 1 at 7:31. Mr. Salazar produced a Mexican driver’s license. TR 25. Bader asked Mr. Salazar where he was going and where he was coming from. EX 1 at 7:31. Mr. Salazar said he was coming from Arizona and going to Minnesota. Id. Salazar said he was going to see a cousin in Minnesota. Id. He did clarify the person was related to the passenger, Mr. Carrasco. Bader explained the reason for the traffic stop, and asked Mr. Salazar if he had been drinking or if he was excessively tired. EX 1 at 7:32. Salazar expressed some difficulty in explaining in English how he was related to the person he was going to see. Bader continued to question Salazar about the route Salazar and Carrasco had taken from Phoenix, Salazar’s work, where Salazar lived, and whether Salazar had a driver’s license. Salazar had an Arizona identification card, but not a driver’s license. Salazar explained that he had a Mexican driver’s license but not one from United States. TR 39-40. EX 1 at 7:34. Bader also inquired about Salazar’s relationship to the passenger. Salazar explained that their mothers were cousins. EX 1 at 7:35. Salazar could not name the person he was going to see in Minnesota. He said it was Carrasco’s sister, but he had never been to visit her before. Salazar explained that Carrasco did have a driver’s license. EX 1 at 7:36

Bader explained that he began to fill out a warning ticket while Mr. Salazar was in the patrol car. TR 42. Bader exited the patrol car, leaving Mr. Salazar in the patrol car. Bader returned to the pickup to speak with the passenger, Mr. Carrasco. EX 1 at 7:37. Bader’s conversation with Carrasco cannot be heard on the video, but it lasts about one minute. Carrasco owned the pickup and produced an Arizona driver’s license. TR 28. Bader explained that he needed to confirm that Carrasco had a valid driver’s license because Salazar did not. TR 45-46.

Bader finished writing the warning ticket shortly before he exited the patrol car to return to the pickup to speak with Mr. Carrasco about driving the pickup, but Bader did not physically give the ticket to Salazar at that time. Rather, Bader opined that Salazar probably never received the warning ticket until Bader placed it in Salazar’s personal property at the Brule County Jail. TR 44. Bader testified he did not give the ticket to Salazar before he went to speak with Carrasco because he had not yet confirmed that Carrasco was a licensed driver. TR 45-46.

Mr. Carrasco told Trooper Bader the two men were traveling to Minnesota to visit Carrasco’s wife and children. TR 17-18. Bader returned to the patrol car after his conversation with Mr. Carrasco and again spoke with Salazar. TR 18. Bader did not give the ticket to Salazar because by then, Bader had decided to deploy Robby. TR 46. When he returned to the patrol car, Bader questioned Salazar about the presence of illegal drugs in the vehicle. TR 18.

When Bader asked if drugs were present in the truck, Salazar denied drugs were present in the truck. TR 18. EX 1 at 7:39-7:40. Bader asked Salazar if it was ok to run Robby around the truck, and Salazar indicated in an affirmative man ner. 2 Bader testified that he would have run Robby around the truck even in the absence of consent. TR 18. Bader ran Robby around the truck at 7:40 a.m., ten minutes after he initiated the traffic stop. Robby indicated to the odor of drugs on the front driver’s side near the fender well. EX 1 at 7:40. Robby indicated by sitting down in front of the fender by the driver’s side door. Id. Bader advised both Salazar and Carrasco that Robby indicated to the odor of drugs, and that they would be detained while the truck was searched. TR 19. Both men sat in another trooper’s patrol car during the search. Id.

While Bader waited for other law enforcement officers to arrive, he called dispatch at 7:46 to request information and an “EPIC check” 3 from the information on Salazar and Carrasco’s identification cards/driver’s licenses. Bader can be heard on EX 1 requesting information from dispatch regarding both men’s information and specifying both were from Arizona. EX 1 at 7:47. Dispatch called back at 7:59 and reported that the EPIC check was negative. Pedro was “suspended” and she could not find any information about Juan. 4

The officers searched the pickup and found suspicious bolts and weatherstripping in the front fender well which was not factory issued. TR 20. No drugs were found in the vehicle while it was parked on the side of the interstate. Bader expressed his intent to tow the vehicle to the nearby Department of Transportation garage for a more thorough search. EX 1 at 7:45. Ultimately, drugs were found in a hidden compartment. TR 19. Mr. Salazar and Mr. Carrasco were arrested and transported to the Brule County Jail. Mr. Salazar gave a statement which is in evidence as EX 2.

Bader employed the assistance of DEA Special Agent Gary Harvison and DCI Agent Jason Piercy to interview Mr. Salazar at the Brule County Jail. 5 TR 49. An audio tape of the interview was received into evidence as EX 2. The agents interviewed Mr. Salazar for approximately three minutes before they advised him of his Miranda rights. TR 52-53. The questions they asked were mostly general, such as how much English he understood, whether he understood why he was there, where he came from, etc. but a few questions were potentially incriminating, such as whether he had been paid any money to do the driving. EX 2. Three minutes into the tape, Special Agent Harvison informs Salazar he is under arrest and reads the Miranda warnings in English. EX 2, TR 52-53. When Harvison asks Salazar if he understands, Salazar gives a response which indicates he understands some, but not all of the warning. TR 51, EX 2 at 3:34. Harvison then asks Salazar if he can read Spanish, and Salazar responds affirmatively. Id. at 3:41. Harvison asks Salazar to read the Miranda warning (a Spanish version) to himself. Harvison asks Salazar if he understands, and Salazar says “yes.” EX 2 at 4:32. Harvison asks if the agents can ask him some questions, and Salazar says “yes.” Id. at 5:03. The interview then proceeds in English. While it is apparent English is not Mr. Salazar’s first language, the men are able to communicate and the interview lasts approximately thirty minutes.

Harvison did not believe it was difficult to communicate with Salazar. He based his belief on the fact that Salazar answered his questions appropriately. After approximately thirty minutes, Harvison contacted ICE Agent Tracy Warner. Warner spoke (in Spanish) to Salazar on the phone for approximately eleven minutes, then Harvi-son spoke to Warner about what Salazar told Warner. Warner recited to Harvison the same version of events that Salazar had previously told Harvison. EX 2 at 45:05. After Salazar’s conversation with Warner, Harvison and Piercy talked with Salazar for nine more minutes. The interview concluded when Salazar persisted in refusing to admit full knowledge of the presence of the drugs in the truck. EX 2 at 54:45.

Harvison interviewed Carrasco with the assistance of ICE Agent Tracy Warner. Harvison testified that Carrasco was not going to speak English with him. Harvi-son would not speculate whether Carrasco was able to understand or speak English.

DISCUSSION

Burden of Proof

As a general rule, the burden of proof is on the defendant who seeks to suppress evidence, United States v. Phillips, 540 F.2d 319 (8th Cir.1976) but on the government to justify a warrantless search or seizure. United States v. Bruton, 647 F.2d 818 (8th Cir.1981). The standard of proof is a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). The Government bears the burden of proving by a preponderance of the evidence that Miranda warnings were either not necessary or that they were given and effectively waived. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966); United States v. Short, 790 F.2d 464, 467-68 (6th Cir.1986); United States v. Charbonneau, 979 F.Supp. 1177, 1181 (S.D.Ohio 1997). “It is settled that the burden is on the defendant to establish that the evidence was unlawfully obtained. The government’s only burden in admitting a confession into evidence is to show by a preponderance of the evidence that the confession was given voluntarily.” United States v. Guerrero-Herrera, 590 F.2d 238, 242 (7th Cir.1978) (citations omitted). See also, United States v. Bad Hand, 926 F.Supp. 891, 899 (D.S.D.1996).

1. Motions to Suppress Evidence

The Validity of the Traffic Stop

Defendants argued the initial traffic stop was pretextual and without probable cause. While the traffic violation was not documented on the DVD, Bader testified that when he first observed the vehicle it crossed the fog line. After Bader began following the vehicle, it crossed the fog line and the center line. Defendants do not assert otherwise. SDCL § 32-26-6 provides:

32-26-6. Lane driving required— Changing lanes — Violation as a misdemeanor. On a roadway divided into lanes, a vehicle shall be driven as nearly as practicable entirely within a single lane and may not be moved from such lane until the driver has first ascertained that such movement can be made with safety. A violation of this section is a Class 2 misdemeanor.

It is well settled that “when an officer observes a traffic offense — however minor — he has probable cause to stop a vehicle.” United States v. Eldridge, 984 F.2d 943, 947 (8th Cir.1993) (internal punctuation and citations omitted). Pretextual traffic stops, however, violate the Fourth Amendment prohibition against unreasonable searches and seizures. Id. To determine whether a traffic stop is pretextual versus supported by probable cause, a court must assess the officer’s action in light of the facts and circumstances known at the time of the stop. Id. However, “[c]ourts are not to consider the motive for a stop as long as the reason for the stop is valid.” United States v. Jones, 275 F.3d 673, 680 (8th Cir.2001) (citation omitted). “So long as the officer is doing nothing more than he is legally permitted and objectively authorized to do, his actual state of mind is irrelevant for purposes of determining the lawfulness of the stop.” United States v. Pereira-Munoz, 59 F.3d 788, 791 (8th Cir.1995) (citations omitted). “In other words, so long as police have probable cause to believe that a traffic violation has occurred, the 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. Caldwell, 97 F.3d 1063, 1067 (8th Cir.1996) (citations omitted) (emphasis added).

The Eighth Circuit has recognized that in South Dakota, crossing the fog line is a violation of SDCL 32-26-6. United States v. Herrera Martinez, 354 F.3d 932 (8th Cir.2004) vacated on other grounds, 549 U.S. 1164, 127 S.Ct. 1125, 166 L.Ed.2d 889 (2007). 6 There was, therefore, probable cause for the traffic stop.

In their briefs, however, Defendants assert they were the victims of “racial profiling.” In Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) the United States Supreme Court made clear that the actual motivation of the individual officer involved has no bearing on the constitutional reasonableness of traffic stops. Id., 517 U.S. at 813, 116 S.Ct. at 1774. The Whren Court also noted, however, that “the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Id., 517 U.S. at 813, 116 S.Ct. at 1774. One court has noted that Whren left unclear whether suppression is the appropriate remedy should an Equal Protection violation be shown. United States v. Garcia, 1999 WL 318363 (D.Kan.1999). Another has taken the position that suppression is the appropriate remedy. United States v. Hartwell, 67 F.Supp.2d 784 (E.D.Mich.1999). However, that issue need not be reached here, because “[t]o establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted.” United States v. Armstrong, 517 U.S. 456, 465, 116 S.Ct. 1480, 1487, 134 L.Ed.2d 687(1996). The Defendants have offered no evidence in support of their racial profiling claim. There was no testimony elicited during the hearing about whether Bader could even discern the Defendants’ race before he decided to initiate the traffic stop. That Bader knew the vehicle did not have a front license plate and was probably not from South Dakota falls far short of a showing that “similarly situated individuals of a different race” were not stopped for crossing the fog line. 7

The Scope of the Traffic Stop

“First, a police officer who personally observes a traffic violation has probable cause to stop the vehicle and offending driver ... Second, having made a valid traffic stop, the police officer may detain the offending motorist while the officer completes a number of routine but somewhat time-consuming tasks related to the traffic violation, such as computerized checks of the vehicle’s registration and the driver’s license and criminal history, and the writing up of a citation or warning. During this process, the officer may ask the motorist routine questions such as his destination, the purpose of the trip, or whether the officer may search the vehicle, and he may act on whatever information is volunteered.” United States v. $404,905 in U.S. Currency, 182 F.3d 643, 646 (8th Cir.1999). The officer is entitled to “undertake similar questioning of the vehicle’s occupants to verify the information provided by the driver ... if the responses of the detainee and the circumstances give rise to suspicions unrelated to the traffic offense, an officer may broaden his inquiry and satisfy those suspicions.” United States v. Gregory, 302 F.3d 805, 809 (8th Cir.2002) (citations and internal punctuation omitted).

Whether an officer has reasonable suspicion to expand the scope of a traffic stop is determined by examining the totality of the circumstances, in light of the officer’s experience. U.S. v. Morgan, 270 F.3d 625, 630 (8th Cir.2001). “Though each factor giving rise to suspicion might appear to be innocent when viewed alone, a combination of factors may warrant further investigation when viewed in total.” Id. at 631 (citations omitted). In Morgan the factors articulated by the trooper (who had eleven years of experience, seven as a drug dog handler) were: the intense smell of smoke, perfume and air freshener, extreme nervousness by the driver and passenger exhibited by avoidance of eye contact, an itinerary which included drug source and demand states, large duffel bags which appeared to contain square objects, and divergent stories regarding travel plans. The Court held that the totality of the circumstances, including the officer’s training and experience in detecting contraband, were sufficient to constitute reasonable suspicion to expand the scope of the traffic stop. Id. at 631.

More importantly, however, “even if the facts had not been sufficient for reasonable suspicion ... a short detention for a dog sniff would not violate the Fourth Amendment. Here, the dog was at the scene from the beginning, and it only took a short time to walk the dog over to the van where it alerted to the presence of drugs.” 8 Morgan, 270 F.3d at 631. In this case, Robby was on the scene from the beginning and Trooper Bader ran Robby around the truck ten minutes after it stopped on the side of the interstate (Robby alerted ten minutes after Trooper Bad-er first made contact with Mr. Salazar). Bader had finished writing the ticket when Robby came out, but Bader had not finished the traffic stop because he had not yet confirmed whether either Salazar or Carrasco had a valid driver’s license, or even finished any of routine but somewhat time-consuming tasks related to the traffic violation, such as computerized checks of the vehicle’s registration and the driver’s license and criminal history. 9 Bader was entitled to ask Salazar and Carrasco their destination, the purpose of their trip, and whether he could search their vehicle, and he was entitled to act on whatever information was volunteered. United States v. $404,905 in U.S. Currency, 182 F.3d 643, 646 (8th Cir.1999); United States v. Gregory, 302 F.3d 805, 809 (8th Cir.2002). Before Bader called dispatch to check the validity of Carrasco’s driver’s license, he deployed the drug dog.

The United States Supreme Court has held that no reasonable articulable suspicion is required to justify the use of a drug dog to sniff a vehicle during a legitimate traffic stop. Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). “The use of a well-trained narcotics detection dog- — one that does not expose non-contraband items that would otherwise remain hidden from public view during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent’s car while he was lawfully seized for a traffic violation. Any intrusion on respondent’s privacy expectations does not rise to the level of constitutionally cognizable infringement.” Id. at 838. Pursuant to the law of the Eighth Circuit and the United States Supreme Court, the traffic stop was not im-permissibly extended in this case when, ten minutes after it began and before Trooper Bader had finished his routine ministerial tasks, Robby got out of the patrol car and ran around the truck to sniff for drugs.

Whether a particular detention is reasonable in length “is a fact intensive question, and there is no per se time limit on all traffic stops. When there are complications in carrying out the traffic-related purposes of the stop, for example, police may reasonably detain a driver for a longer duration than when a stop is strictly routine.” United States v. Olivera-Mendez, 484 F.3d 505, 510 (8th Cir.2007).

Even assuming Trooper Bader did not have reasonable suspicion the Eighth Circuit stated that “mere police questioning does not constitute a seizure.” Oliverar-Mendez, Id. at 510. In Olivera-Mendez, the Court reiterated that questioning on a matter unrelated to the purpose of the detention does not constitute a discrete Fourth Amendment event. Id. In Oliv-era-Mendez, the Court noted the Trooper had probable cause to believe a speeding violation had occurred, and “we do not think [he] effected an unreasonable seizure simply by asking three brief questions related to possible drug trafficking amidst his other traffic related inquiries and tasks.” Id. at 511. The same can be said for Trooper Bader’s off-topic questions in this case. 10

Trooper Bader did not impermissibly extend the traffic stop. The truck came to a stop at the side of the road at 7:30 a.m. At 7:31a.m. Mr. Salazar accompanied Trooper Bader to the patrol car, where Bader asked the routine, acceptable questions regarding the purpose and destination of the trip. Robby the drug dog ran around the vehicle at 7:40 a.m. Robby alerted at 7:40 — nine minutes after Trooper Bader’s first contact with the driver, and before Bader had contacted dispatch to verify that anyone in the vehicle had a valid driver’s license. Pursuant to Oliv-erctr-Mendez no unreasonable seizure occurred here. 11 Defendant’s Motion to Suppress evidence should be denied.

2. Motion to Suppress Statements

Both Defendants have moved to suppress their statements based on the theory that they are the fruit of the poisonous tree. Because there was probable cause for the traffic stop and no unreasonable seizure followed the stop, the motion to suppress statements cannot be granted on that ground.

Mr. Salazar also moves to suppress all statements made to law enforcement officers on February 21, 2008. Mr. Salazar asserts that he was in custody during all questioning and that he either was not given his Miranda warnings, or that the statements he gave after the Miranda warnings were given were involuntary because of the language barrier.

The government does not dispute that Salazar was in custody during Harvison’s interview. Special Agent Harvison and Agent Piercy interviewed Mr. Salazar for approximately three minutes before they advised Mr. Salazar of this Miranda rights. “The prosecution may not use statements, whether exculpatory or incul-patory, stemming from custodial interroga tion of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). Salazar’s statements during the initial three minute time-frame, therefore, should be suppressed.

Because Miranda warnings may inhibit persons from giving information, this Court has determined that they need be administered only after the person is taken into custody or his freedom has otherwise been significantly restrained. Unfortunately, the task of defining custody is a slippery one, and policemen investigating serious crimes cannot realistically be expected to make no errors whatsoever. If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself. It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.

Oregon v. Elstad, 470 U.S. 298, 309, 105 S.Ct. 1285, 1293, 84 L.Ed.2d 222 (1985) (internal punctuation and citations omitted). “A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded the admission of the earlier statement.” Id., 470 U.S. at 313, 105 S.Ct. at 1296. Mr. Salazar offered no evidence that his unwarned statement was obtained through actual coercion. No evidence of strong-arm tactics, deception, or other coercive strategies was presented. The Eighth Circuit has declined on at least one occasion to apply the Oregon v. Elstad doctrine to Mirandized statements given “on the heels” of non -Mirandized statements. 12 See United States v. Carter, 884 F.2d 368, 373 (8th Cir.1989). It has applied the doctrine, however, in other cases where the first non -Mirandized statements were made in the absence of coercion or improper police tactics. See, United States v. Robinson, 20 F.3d 320, 322 (8th Cir.1994); United States v. Williams, 136 F.3d 547, 552 (8th Cir.1998). The facts of this case are much more similar to Robinson and Williams than to Carter. Specifically, in Carter, the unwarned statement was given, and consent to search was obtained, through coercive and deceptive police tactics. “Our review of the surrounding circumstances and the entire course of police conduct with respect to the suspect convinces us that the second confession cannot be allowed into evidence.” Garter, 884 F.2d at 373. In Robinson and Williams, on the other hand, the Court found no coercion or improper tactics (other than the failure to administer the warning) prior to the unwarned statements. Likewise, the only error the Defendant has shown here is Agent Harvison’s failure to give the warning prior to eliciting a few non-incriminating answers. Such failure, while not commendable, is not the sort of coercive or diabolical tactic which renders a subsequent voluntary, warned statement inadmissible.

Next, Mr. Salazar asserts he did not knowingly waive his rights because he did not sufficiently understand his rights because of the language barrier. Agent Har-vison testified he read the Miranda warning to Salazar in English. When Salazar indicated only partial understanding, Har-vison asked Salazar if he could read Spanish, and Salazar said he could. Harvison produced a Spanish language Miranda card, which Salazar read and indicated he understood. 13 After Mr. Salazar read his Miranda rights in Spanish, he continued the interview with Harvison (in English).

In considering whether a defendant has knowingly and intelligently waived his Miranda rights, the Court considers, as one factor, any language difficulties encountered by the defendant during the custodial interrogation. United States v. Garibay, 143 F.3d 534, 537 (9th Cir.1998). However, “a defendant’s ignorance of the full consequences of his decisions [does not] vitiate their voluntariness.” Oregon v. Elstad, 470 U.S. 298, 316, 105 S.Ct. 1285, 1297, 84 L.Ed.2d 222 (1985).

Additionally, Agent Harvison testified Mr. Salazar indicated, through his actions and words, that he understood the Miranda warnings. He specifically stated he understood and agreed to speak with Agent Harvison, continued to converse with him, and answered Agent Harvison’s questions in a coherent manner. It is difficult to imagine how Mr. Salazar could converse with Agent Harvison and answer his questions if he did not understand what Agent Harvison was saying to him. Having listened to the interview, it is clear English is not Mr. Salazar’s first language. It is also clear, however, that he understood Harvison’s questions and answered them appropriately. Given Harvison’s un-rebutted testimony and the parties’ stipulation that the Spanish version of the Miranda warning was accurate, the Government has proven by a preponderance that Mr. Salazar knowingly and voluntarily waived his Fifth Amendment rights when he spoke to Agent Harvison. See e.g., Perri v. Director, Illinois Dept. of Corrections, 817 F.2d 448, 452 (7th Cir.1987) (knowing and intelligent waiver when non-English speaking defendant responded that he understood, and his words and actions supported conclusion that he waived his rights); United States v. Gonzales, 749 F.2d 1329, 1335-36 (9th Cir.1984) (defendant knowingly and voluntarily waived rights despite Spanish/English language barrier because among other things, the agent and defendant continued to converse with each other after rights were read); Garcia v. Yearwood, 2000 WL 890863 (N.D.Cal.) (defendant knowingly and voluntarily waived rights; court rejected his claim they were “somewhat difficult” to understand even though read to him in his native Spanish language, because the record showed defendant had coherent conversations with the interrogating officer). For these reasons, with the exception of the first three non-Miran-dized minutes, Mr. Salazar’s conversation with Agent Harvison should not be suppressed.

CONCLUSION

For the reasons more fully explained above, it is respectfully RECOMMENDED to the District Court that the Defendant Salazar’s Motion to Suppress (Doc. 38) be GRANTED in part and DENIED in part as follows: the motion to suppress evidence should be DENIED in its entirety and the motion to suppress statements should be GRANTED as to those statements which were made to Agent Harvison before the Miranda warnings were given but DENIED as to post-Miranda statements. Defendant Carras-co’s Motion (Doc. 70) should be DENIED.

NOTICE TO PARTIES

The parties have ten (10) days after service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1), unless an extension of time for good cause is obtained. Failure to file timely objections will result in the waiver of the right to appeal questions of fact. Objections must be timely and specific in order to require de novo review by the District Court.

Thompson v. Nix, 897 F.2d 356 (8th Cir.1990).

Nash v. Black, 781 F.2d 665 (8th Cir.1986).

Notes

1

. The United States Supreme Court has concluded that although 28 U.S.C. § 636(b)(1)(C) "does not require the [district court] judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard." Thomas v. Arn, 474 U.S. 140, 154, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

1

. Robby and Officer Bader became certified as a drug detection team in January, 2007. TR 6. They were re-certified in 2008 through the South Dakota Highway Patrol. His certification was current on February 21, 2008.

2

. On the video, Salazar can be heard during the conversation about whether there are any illegal drugs in the pickup. He said “you can do it.” When Bader directly asks permission to run Robby around the truck, Salazar said, "o.k.”

3

. EPIC is an acronym for the El Paso Intelligence Center. It is a centralized database which contains information from several federal agencies including the DEA, Department of Homeland Security, Customs and Border Protection, Immigration & Customs Enforcement, the U.S. Coast Guard, FBI, Bureau of Alcohol, Tobacco, Firearms and Explosives, the U.S. Secret Service, U.S. Marshals Service, National Drug Intelligence Center, IRS, U.S. Department of Interior, National Geos-patial Intelligence Center, U.S. Department of Defense, to name a few. See, www.usdoj.gov/ dea/programs/epicp.htm

4

. On cross-examination, there was some discussion about whether Salazar presented Bader with an Arizona driver’s license or an Arizona identification card. Bader could not recall which Salazar had, but he did recall Salazar had a Mexican driver’s license. Bad-er can be heard on EX 1 however, calling Arizona information in to the dispatch operator for both Salazar and Carrasco. Dispatch calls back and informs Bader that Salazar’s license is “suspended” so it makes sense that the Arizona card Salazar presented was an identification card rather than a driver's license.

5

.Salazar moves to suppress his statements based on the assertion that they are (1) fruit of the illegal stop; and (2) obtained in violation of the Fifth Amendment because they were involuntary. Carrasco moved to suppress his statements based solely on the basis that they were fruit of the illegal stop. Salazar joined Carrasco’s motion to suppress.

6

. Touching the fog or center line is not a violation if the movement can be made with safety. SDCL 32-26-6. Here the vehicle touched the fog line and the center line within a distance of travel which could have suggested the driver was tired or otherwise impaired. It appears that touching the fog line or center line may be a replacement reason for the now repealed "dangling object” traffic stops.

7

. The Court does take interest in the short portion of another traffic stop which was inadvertently left on the end of EX 1. It involves a female, in-state driver. Trooper Bader issued her a warning ticket for following too closely but did not instruct her to join him in his patrol car for the "routine” traffic stop questions. He told her to stay in her vehicle while he wrote out the warning ticket.

8

. This is not to suggest that the law has reached the place where everyone can be detained for a while for the purpose of conducting a dog sniff following every traffic stop.

9

. Salazar told Bader he had a valid Mexican license, but not a valid U.S. license. Carrasco told Bader he had a valid license, but Bader had not yet called dispatch to confirm it.

10

. The Olivera-Mendez Court also noted that assuming for the sake of argument that it was unreasonable for the Trooper to extend the stop unless he had reasonable suspicion, the evidence should nonetheless not be suppressed because the questions were not the but-for cause of obtaining the evidence. The Court reasoned, the questions were fruitless in that case, and the dog sniff (which provided probable cause for the search) would have occurred anyway while Koltz ran the driver’s license checks. In this case, the questions were likewise fruitless. It is clear in this case as it was in Olivera-Mendez, that Trooper Bader had other tasks to complete while the drug dog sniffed the vehicle. Trooper Bader also explicitly testified that while he had finished writing the ticket before Robby came out, he had not yet given it to Salazar because he had not yet confirmed whether either Salazar or Carrasco had a valid driver's license. Likewise, the few off-topic questions he asked about whether there were any drugs in the truck, where Salazar worked, what route they had driven from Arizona, etc. yielded nothing of significance.

11

. It is noted that the Eighth Circuit has instructed that even if an unconstitutional detention occurs, the evidence is not suppressible unless it is the "but-for” cause of obtaining the evidence. United States v. Peralez, 526 F.3d 1115, 1121-22 (8th Cir.2008). In Pera-lez, as in this case, the drug dog was present on the scene from the beginning and the Trooper testified he would have run the dog around the vehicle regardless of the responses he received to his expanded inquiries. In Peralez, the dog sniff occurred after sixteen minutes and in the absence of any reasonable suspicion. The Eighth Circuit acknowledged the Trooper violated the Fourth Amendment by unreasonably extending the traffic stop, but held that the evidence was admissible because the Fourth Amendment violation was not the "but-for” cause of obtaining the drugs which were found in the vehicle. The precedent set by Peralez seems to have sounded the death knell for most potential Fourth Amendment claims in which the Trooper has a dog in his patrol car at the beginning of the traffic stop.

12

. This was likewise not a purposeful "midstream” Miranda warning tactic, as was condemned in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). While Agent Harvison asked Mr. Salazar a few basic questions on February 21, he did not delve into the heart of the issue (the drug charges) until after the Miranda warning was given, and no incriminating information was obtained before the warning.

13

. The parties stipulated during the hearing that Harvison’s Spanish language Miranda card accurately translates the Miranda warning into the Spanish language.

Case Details

Case Name: United States v. Carrasco-Ruiz

Court Name: District Court, D. South Dakota

Date Published: Sep 23, 2008

Citation: 587 F. Supp. 2d 1089

Docket Number: Cr. 08-40029

Court Abbreviation: D.S.D.