United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
THOMAS D. THALKEN, Magistrate Judge.
This matter is before the court on the motion to suppress by defendant Jose Consospo-Perez (Consospo-Perez) (Filing No. 57). Consospo-Perez is charged in the Indictment along with defendants Crispin Herra-Herra, Ines Rivadeneyra-Herrera, and Jesus Munguia-Aguilar with a conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846 (Filing No. 35). Consospo-Perez seeks to suppress evidence seized from a red Ford Ranger truck and from the person of Consospo-Perez by law enforcement officers on December 9, 2014, near 24th and G-H Streets in Omaha, Nebraska.
The court held an evidentiary hearing on the motion to suppress on July 7, 2015. Consospo-Perez was present with his counsel Christopher J. Roth. Assistant U.S. Attorney Nancy A. Svoboda represented the United States. Laura Garcia-Hein served as an interpreter in the Spanish language. The court heard the testimony of Special Agent Craig Allrich (Special Agent Allrich) of Homeland Security Investigations (HSI) Immigration and Customs Enforcement (ICE). A transcript (TR.) of the hearing was prepared and filed on July 9, 2015. See Filing No. 70. There was no post-hearing briefing.
FINDINGS OF FACT
Over the last two years, Special Agent Allrich, in conjunction with other law enforcement officers, has been investigating a drug trafficking and money laundering organization (organization) based in Mexico that brings drugs to Omaha and sends the proceeds from the sale of those drugs to Mexico (TR. 4). On November 9, 2014, Special Agent Allrich received information an individual, known as Borieto, later identified as Ines Rivadeneyra, uses a particular telephone number and drives a green Volkswagen Jetta (Jetta) to arrange and make deliveries for the organization in Omaha (TR. 4-5). Thereafter, Special Agent Allrich obtained an electronic surveillance warrant on Borieto's telephone and Jetta (TR. 5, 26). After following Borieto for several days, Special Agent Allrich learned Borieto worked at Galaxy Painting and noted Borieto's associates (TR. 5-6). On November 17, 2014, Special Agent Allrich saw Borieto enter a red Ford Ranger (Ranger) with an individual later identified as Herra-Herra (TR. 5-6, 25). Special Agent Allrich testified the Ranger was driven in a counter-surveillance manner, meaning the driver drove slowly, around five to ten miles below the speed limit, switched lanes, and made unnecessary turns (TR. 6-7). The driver of the Ranger first stopped at a house at 72nd and Lawndale Streets (Lawndale Street residence) and an unidentified male exited the vehicle (TR. 6). The Lawndale Street residence is the registered address for Galaxy Painting (TR. 6). Special Agent Allrich believed the organization stored its bulk narcotics at the Lawndale Street residence because people would come to the residence during the day, but not stay at night (TR. 7-8, 12).
After the Ranger stopped at the Lawndale Street residence, the Ranger proceeded to a house at 38th and Q Streets (Q Street residence), which was later identified as Herra-Herra's residence (TR. 6). Special Agent Allrich identified Herra-Herra by cross referencing surveillance photos and videos from pole cameras, one of which was located near the Lawndale Street residence (TR. 9). Pole cameras were also installed near the Q Street residence and Jesus Munguia's (Munguia), a codefendant and owner of Galaxy Painting, house at 67th and Charles Street (Charles Street residence) (TR. 9-10). The Q Street residence was significant to Special Agent Allrich because Munguia, who was in charge of the organization, Borieto, and members of the organization, including Galaxy Painting employees, would visit the residence frequently (TR. 10, 22).
As Special Agent Allrich continued his investigation, he narrowed his focus on the Lawndale Street residence and Rivadeneyra, Herra-Herra, and Munguia as "the main players of the organization" (TR. 12). On December 9, 2014, Special Agent Allrich saw Munguia arrive at Herra-Herra's Q Street residence with "a backpack very clutched over his shoulder, like he didn't want to lose it, an indication for us that was probably a bunch of narcotics' proceeds" (TR. 12). Herra-Herra and Munguia left the Q Street residence, while Munguia still carried the backpack, and drove to Family Dollar wherein they purchased rubber gloves (TR. 12-13). Special Agent Allrich suspected Herra-Herra and Munguia purchased rubber gloves to keep their fingerprints off currency packaging (TR. 12-13). At around noon on December 9, 2014, Munguia returned to his residence and then later that day, still carrying the backpack, he went back to Herra-Herra's Q Street residence (TR. 13-14). Thereafter, Herra-Herra and Munguia left the Q Street residence (TR. 14). Munguia left in a Honda Civic (Civic) (TR. 14). Herra-Herra left in a Nissan Altima (Altima) (TR. 14). A K-9 officer subsequently stopped Munguia (TR. 14, 23). During the traffic stop, officers discovered "approximately $180, 000 worth of narcotics proceeds bundled, wrapped, ready to go in the backpack that [officers] had seen [Munguia] carrying throughout the morning" (TR. 14, 23). After the traffic stop, Munguia spoke with law enforcement and identified Herra-Herra as someone who works with Munguia (TR. 23). Munguia did not identify Consospo-Perez (TR. 23).
During Munguia's traffic stop, Herra-Herra drove by in the Altima (TR. 14-15). Officers followed Herra-Herra to the Charles Street residence and noticed electronic surveillance indicated Consospo-Perez, who remained unidentified,  was driving toward the Charles Street residence in the Ranger (TR. 15-16). After arriving at the Charles Street residence, both Herra-Herra, in the Altima, and Consospo-Perez, in the Ranger, proceeded to the 120th and Maple area, near where Consospo-Perez resides (TR. 15-16). Herra-Herra and Consospo-Perez both eventually entered the Ranger, with Consospo-Perez driving, and proceeded to a Boost Mobile store (TR. 16-17). Consospo-Perez entered Boost Mobile and exited a short time later with a bag (TR. 16-17). The stop at Boost Mobile was significant to Special Agent Allrich because he thought, based on previous investigation of the organization, Herra-Herra was dropping his old phone and obtaining a new phone after witnessing Munguia's traffic stop (TR. 16-17, 33). Special Agent Allrich suspected Herra-Herra was trying to coordinate delivery of twenty or thirty pounds of methamphetamine (TR. 17).
After leaving Boost Mobile, Consospo-Perez drove in a counter-surveillance manner (TR. 17-18). Consospo-Perez drove past Munguia's traffic stop and continued east on Q Street and around south Omaha (TR. 17-18). Special Agent Allrich and Officer Apley followed the Ranger (TR. 18). Special Agent Allrich testified Herra-Herra was Special Agent Allrich's target and "was going to get questioned" on December 9, 2014 (TR. 30). At one point, Special Agent Allrich suspected the driver of the Ranger was trying to evade Special Agent Allrich by making quick turns and not making complete stops (TR. 19, 29). At approximately 24th and L Streets, Special Agent Allrich witnessed the Ranger drive through a red light (TR. 19, 29). Special Agent Allrich radioed an Omaha Police Department (OPD) K-9 officer, Officer Pignotti, to effectuate a traffic stop of the Ranger (TR. 19, 27). Special Agent Allrich told Officer Pignotti to "just make the stop" (TR. 19). In response to Officer Pignotti's question "Do we need to develop our probable cause?", Special Agent Allrich stated "No. We have plenty of probable cause. They're trying - it looks like they're trying to evade us now. Make the stop." (TR. 19, 29-31). Officer Pignotti subsequently stopped the Ranger at 24th and H Streets at around 2:30 or 3:00 p.m. on December 9, 2014 (TR. 19). Special Agent Allrich immediately joined the traffic stop (TR. 20).
After Herra-Herra and Consospo-Perez were asked to exit the Ranger, Special Agent Allrich conducted a pat-down of Consospo-Perez to check for weapons (TR. 27-28). Special Agent Allrich discovered money in Consospo-Perez's pocket, but returned the money to Consospo-Perez's pocket after verifying it was not a knife or gun (TR. 28). After the pat-down, Special Agent Allrich inquired whether Consospo-Perez had identification, whether he was a citizen, and whether he had immigration papers (TR. 20, 27). Consospo-Perez responded "No" to each inquiry (TR. 20). Thereafter, Herra-Herra and Consospo-Perez were taken to Immigration and Customs Enforcement (ICE) office for interviews (TR. 20-21). Consospo-Perez was in handcuffs (TR. 21). In the middle of a seat in the Ranger, the bag from Boost Mobile and a telephone were visible and taken from the Ranger and the Ranger was impounded (TR. 20). At the ICE office, Agent Doug Rice Mirandized Consospo-Perez and Consospo-Perez agreed to speak, and in fact did speak, with law enforcement (TR. 21). Prior to December 9, 2014, although Special Agent Allrich believed the organization used the Ranger for drug trafficking activities, he never saw Consospo-Perez utilize the Ranger for such activities (TR. 24). Throughout Special Agent Allrich's investigation, he did not know who drove the vehicles identified in the investigation because Herra-Herra and Borieto would switch vehicles frequently (TR. 11). Special Agent Allrich later discovered the Ranger was registered to Miguel Consospo, who Special Agent Allrich identified as Consospo-Perez (TR. 11, 22, 25).
A. Traffic Stop
"A traffic stop is a seizure within the meaning of the Fourth Amendment and, as such, must be supported by reasonable suspicion or probable cause." United States v. Houston, 548 F.3d 1151, 1153 (8th Cir. 2008); see also United States v. Hollins, 685 F.3d 703, 705-06 (8th Cir. 2012). "A traffic violation, no matter how minor, provides an officer with probable cause to stop the driver. An officer is justified in stopping a motorist when the officer objectively has a reasonable basis for believing that the driver has breached a traffic law." United States v. Coleman, 700 F.3d 329, 334 (8th Cir. 2012) (internal quotations and citations omitted). "An otherwise constitutional traffic stop is not invalidated by the fact that it was mere pretext ...