United States District Court, D. Nebraska
MEMORANDUM AND ORDER
JOSEPH F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE.
This matter is before the court on the defendants' objections, Filing No. 54 and Filing No. 56, to the Findings and Recommendation ("F&R") of the United States magistrate judge, Filing No. 52, on their motions to suppress all evidence obtained subsequent to a traffic stop and search conducted by the Nebraska State Patrol (“NSP”) on February 8, 2015, Filing No. 25. The defendants are charged with conspiracy to distribute and possess with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine, its salts, isomers, and salts of its isomers, a Schedule II controlled substance, and marijuana, a Schedule I controlled substance, in violation of Title 21 U.S.C. § 846, and defendant Josue Quiroga is charged with knowingly carrying and using firearms during and in relation to or knowingly possessing firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).
After a hearing on October 16, 2015, the magistrate judge recommended denial of the motions. See Filing No. 52, Order at 11. The magistrate judge found defendant Hamolequet Adi Quiroga, a passenger in the vehicle, lacked standing to object to the search of the Ford pickup. Id. at 10. He found NSP Trooper Ryan Henrichs had probable cause for the initial traffic stop, in that he had observed and radar clocked a speeding violation. Id. at 7. He made the factual findings that the traffic stop ended at 2:41 a.m., a call for a canine occurred at 2:57 a.m., and the canine arrived at 3:36 a.m. The magistrate judge also found that the period of detention after the traffic stop ended was not de minimis, but found that the continued detention of the defendants after the initial stop ended was justified by a reasonable, articulable suspicion of criminal activity. Id. at 8. The officer's suspicion was supported by the officer's awareness of the following:
1) three different names given for the driver, two from him and one from the passenger, and the inability through record checks to verify any one of the names provided; 2) his initial observation of an ammo can in the backseat when he approached the vehicle; 3) a strong smell of oranges (a masking device) when he approached the vehicle; 4) the driver's unusual demeanor while in the patrol car; 5) the discrepancy between the driver and the passenger as to the driver's residence; 6) the discrepancy between the driver and the passenger as to their relationship, sister versus cousin; 7) the discrepancy between the driver and the passenger regarding where they were coming from, Omaha or Des Moines; 8) the discrepancy between the driver and the passenger as to the length of their trip; 9) the absence of the registered owner of the vehicle; 10) the observation of three cell phones in the vehicle when Trooper Henrichs approached the vehicle; and 11) when asked about the discrepancies the driver stated the passenger was probably scared because [Josue Quiroga] was illegal.
Id. at 8-9.
Further, the magistrate judge stated that the dog sniff of the vehicle was not a search for which the officer needed either consent or justifiable suspicion. Id. at 10. He found the NSP service canine’s alert to the odor of drugs in the vehicle provided probable cause for the subsequent search. Id. at 11. In so finding, the magistrate judge implicitly found that the dog sniff was reliable, in reliance on the testimony of NSP Trooper Dain Hicks and service dog training records. Id. at 5; Filing No. 40, Exhibit List, Hearing Exhibit ("Hr'g Ex.") 101.
Defendant Josue Quiroga objects to the magistrate judge’s findings that: (1) the trooper had reasonable suspicion to detain Josue Quiroga beyond the conclusion of the traffic stop; (2) the post-stop detention was of a reasonable duration; (3) the dog was reliable and alerted three times; and (4) there was probable cause to search the vehicle. Defendant Hamolequet Quiroga objects to the magistrate judge’s findings that: (1) she does not have standing to object to the search of the truck; (2) the trooper had a reasonable articulable suspicion of criminal activity sufficient to continue her detention after the conclusion of the traffic stop; and (3) there was probable cause for the stop and the search.
Pursuant to 28 U.S.C. § 636(b)(1)(A), the court has conducted a de novo determination of those portions of the F&R to which the defendants object. United States v. Lothridge, 324 F.3d 599, 600-01 (8th Cir. 2003). The court has reviewed the entire record including the transcript of the suppression hearing, and the exhibits, including audio and video recordings. See Filing No. 42, Transcript ("Tr."); Filing No. 40, Exhibit List, Hr'g Exs. 1, 2, and 101. The court accepts the facts set out in the F&R and they need not be fully repeated here, except to the extent necessary to this court’s findings.
As relevant herein, the evidence adduced at the hearing shows that in the early morning hours of February 8, 2015, NSP Trooper Ryan Henrichs observed a vehicle exceeding the posted speed limit of 55 miles per hour in a construction zone. Filing No. 42, Tr. at 7. Trooper Henrichs pulled the vehicle over. Id. at 10. Trooper Henrichs’s patrol car was equipped with an audio-video camera and the audio-video of the encounter is depicted on Hearing Exhibit 1. See Id. at 11; Hr'g Ex.1. The court has reviewed the video and finds that it corroborates the magistrate judge's recitation of the facts. Id.
The video shows that that the reason for the stop was that the defendant had been driving above the posted speed limit of 55 miles per hour in a construction zone. Hr'g Ex. 1. The officer told the vehicle's occupants that the vehicle had been clocked at 68 miles per hour. Id. The officer asked for identification and registration for the vehicle and the driver produced a registration of the pickup in the name of Maria Montanez, but had no identification or driver’s license. Id.; Filing No. 42., Tr. at 13-14, 19.
After conversing with both defendants, Trooper Henrichs determined, via a computer records check, that defendant Hamolequet Quiroga’s driver’s license was valid, the vehicle was registered, insured and had not been reported stolen. Id. at 27. He handed the vehicle paperwork and a warning citation to Josue Quiroga and informed him the stop was over at 2:41:57 p.m. Id. at 30, 86; see id., Hr'g Ex. 1.
Trooper Henrichs asked Josue Quiroga to stay in the patrol car while the officer spoke to the passenger. Id., Tr. at 30. He returned Ms. Quiroga's driver’s license and informed her the stop was over at 2:43 a.m. Id. He again conversed with her about the nature of the defendants' trip, and Ms. Quiroga's answers were not only inconsistent with those of the driver, but were at odds with her own earlier statements. Id. at 32. While the trooper was speaking to the passenger, the driver attempted to exit the patrol car at approximately 2:47 a. m. and was ordered to return to the cruiser. Id. at 33. Trooper Henrichs testified that at that time neither defendant was free to leave. Id.
Trooper Henrichs asked for, and was refused, consent to search the vehicle. Id. at 38. Josue Quiroga declined to agree to wait for a canine to arrive to sniff the car and Trooper Henrichs called for a canine unit to come to the scene at 2:57 a.m. Id. at 40, 86; Hr'g Ex. 1. The dog and its handler, Trooper Dain Hicks, arrived approximately 39 minutes later. Id. Trooper Henrichs searched the vehicle and found five guns, an ammunition can full of ammunition, a tactical vest, a black ski mask, brass knuckles, two bags containing marijuana, a safe behind the ...