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United States v. $45

United States District Court, Eighth Circuit

December 19, 2013



JOHN M. GERRARD, District Judge.

This matter is before the Court on claimant Hugo L. Soto's objection (filing 41) to the Magistrate Judge's Memorandum and Order (filing 38) denying Soto's motion to suppress (filing 16). A district court may reconsider a magistrate judge's ruling on nondispositive pretrial matters only where it has been shown that the ruling is clearly erroneous or contrary to law. See, 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); Ferguson v. United States, 484 F.3d 1068 (8th Cir. 2007). The Court has carefully considered the record, the parties' briefs, and the Magistrate Judge's Memorandum and Order. The Court concurs with the Magistrate Judge's ultimate finding and will deny Soto's objection.


The pertinent facts are set forth in the Magistrate Judge's Memorandum and Order. Soto has not objected to the Magistrate Judge's basic statement of the facts, although he disputes some specific matters and some of the inferences the Magistrate Judge drew from the facts. The Court finds that the Magistrate Judge accurately stated the pertinent facts, and so the Court will only set forth a brief summary of the facts.

This case arises from a traffic stop conducted by Nebraska State Trooper Derek Kermoade. On the night of February 29, 2012, Soto was driving a recreational vehicle ("RV") westbound on Interstate 80. Kermoade, who was driving behind Soto, observed the RV activate its turn signal and then change lanes. Believing that the driver had failed to use the turn signal for the entire duration required by Neb. Rev. Stat. § 60-6, 161, Kermoade initiated a traffic stop. The traffic stop and the following events were recorded by a camera in Kermoade's cruiser, and the Court has reviewed the audio and video of the recording.

Kermoade asked Soto to join him in the patrol car while Kermoade completed a written warning and contacted dispatch to check Soto's license and registration. Throughout this process, Kermoade asked Soto about the nature of Soto's trip and about the other passengers in the RV. Kermoade's tone was calm and conversational throughout the process.

Approximately 20 minutes after initiating the traffic stop, Kermoade issued Soto a warning for failure to properly signal his lane change and returned Soto's paperwork. Kermoade then told Soto he was "good to go, " but then asked if he could ask Soto a few more questions. Soto agreed. Kermoade asked if there were any drugs or weapons in the RV, which Soto denied. Kermoade then asked if there were any large amounts of cash in the RV, which Soto also denied. Kermoade then asked for consent to search the RV, to which Soto agreed. Soto then signed a written consent form.

Upon searching the RV, Kermoade discovered over $40, 000 in U.S. currency. The United States has seized the currency and RV, alleging they are property arising from or facilitating drug-related criminal activity. Soto claims the currency and RV were obtained lawfully and demands their return (filing 9).


Soto has moved to suppress the search of the RV, arguing that (1) the officer lacked lawful cause to stop the RV; (2) his consent to the search was not valid; and (3) even if his consent was valid, it was not sufficient to purge the taint of the illegal stop. Soto now also argues that the stop was unlawful because the statute cited for the stop, Neb. Rev. Stat. § 60-6, 161, is unconstitutionally vague.

I. Probable Cause for the Traffic Stop

A traffic stop is reasonable if it is supported by either probable cause or an articulable and reasonable suspicion that a traffic violation has occurred. United States v. Herrera-Gonzalez, 474 F.3d 1105, 1109 (8th Cir. 2007). However, even if the officer was mistaken in concluding that a traffic violation occurred, the stop does not violate the Fourth Amendment if the mistake, whether of fact or law, was an objectively reasonable one. Id .; see also United States v. Payne, 534 F.3d 948, 951 (8th Cir. 2008).

Kermoade stopped Soto because he believed Soto had failed to use his turn signal for 100 feet prior to changing lanes, as required by Neb. Rev. Stat. § 60-6, 161. At the hearing, Soto and the United States both presented testimony from experts regarding the stop. Both experts agreed that Soto in fact traveled for over 100 feet with his turn signal activated before changing lanes.

Soto's expert, civil engineer Peter Himpsel, reviewed the video and concluded that after Soto activated the turn signal, the RV continued traveling straight in its lane for 0.7 seconds before beginning to move laterally to the other lane, and that it started crossing the line separating the lanes approximately 1.4 seconds after signaling. Based on an estimated speed of 65 miles per hour, Himpsel ...

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