United States District Court, D. Nebraska
FINDINGS, RECOMMENDATION AND ORDER
R. Zwart United States Magistrate Judge
Victor Avalos and Carolina Lara have moved to suppress all
evidence obtained during a vehicle search conducted on
February 13, 2016, all evidence obtained as fruit of the
alleged illegal vehicle search, any statements made during
the traffic stop, and all evidence gathered from the search
of their cell phones. (Filing Nos. 84 &
90). For the following reasons, Defendants'
motions should be denied.
hearing extensive testimony and reviewing the documentary,
audio, and video evidence, the undersigned magistrate judge
finds the following facts are credible.
morning of February 13, 2016, while patrolling interstate
traffic, Deputy Jason Henkel observed a white Armada SUV with
Florida license plates. Henkel followed the vehicle without
turning on his overhead lights or making any attempts to pull
it over. While doing so, he observed the vehicle take an exit
ramp off the interstate. At the top of the exit, the Armada
did not completely stop and pulled out in front of an
approaching truck, causing the truck to hit its brakes to
avoid a collision. Henkel followed the Armada to a nearby gas
station to determine whether the driver was fatigued or under
the influence. He drove around the station and parked his
cruiser on the passenger side of the Armada. Henkel did not
turn on his cruiser's lights or otherwise demonstrate
that he was making a traffic stop.
approached the driver, Defendant Garcia, who was now standing
at the back of the Armada. Two adult males (including
Avalos), two adult females (including Lara), and a toddler
were in the vehicle. Henkel asked Garcia for his driver's
license. Garcia reached in his wallet and produced a
California Id. Garcia quickly took another ID from
his wallet and asked for the first one back. Henkel retained
and reviewed both IDs. Garcia's license was suspended,
which he admitted to Henkel. Henkel asked about Garcia's
destination. Garcia responded that he did not know where the
group was going, but the other passengers did. While Henkel
and Garcia were having this discussion, other passengers in
the Armada exited the vehicle and entered the convenience
decided to issue Garcia a warning for the traffic offense.
Henkel contacted Deputy Jason Mayo and asked for his
assistance at the scene. Henkel asked Garcia to sit in the
passenger seat of Henkel's patrol car while the warning
ticket was written. Before Garcia entered the cruiser, Henkel
patted Garcia down to check for weapons. While in the
cruiser, Henkel and Garcia continued to talk about the
purpose of the road trip and destination. Garcia stated that
the passengers were related and that they were going to a
funeral. A short time later, Garcia stated they were headed
to a family reunion. Later, he told the officer they were
attending a rosary. At another point, Garcia stated they were
traveling to see the snow. Based on Garcia's answers, it
was unclear whether the passengers were traveling to the
event or the event had already occurred. At one point when
Henkel asked where the event was, Garcia responded “a
ways back.” Regardless, Garcia remained unable to
provide a city or state of destination.
in the cruiser, Henkel tried to investigated Garcia's
criminal history. Garcia stated he was previously arrested,
but he initially claimed he was unable to identify the crime
underlying that arrest. In response to Henkel's
suggestion, Garcia later stated the crime was assault. But
upon receipt of Garcia's criminal history, Henkel
discovered Garcia was previously convicted of a felony and
had been involved in a narcotics crime. Garcia's
inaccurate responses indicated he was attempting to conceal
his criminal history.
Henkel's extensive history of performing law enforcement
work, (Filing No. 146 at CM/ECF pp. 10-11), he had
never encountered a driver who was truly unaware of his
travel destination. (Filing No. 146 at CM/ECF pp.
10-11). Henkel also observed that Garcia was extremely
nervous, and contrary to the innocent travelling public, this
nervousness did not subside during the course of a stop.
(Filing No. 149 at CM/ECF p. 34). Henkel noticed
Garcia's trembling hands, labored breathing, and a
visible carotid pulse throughout the entire traffic stop.
Deputy Mayo arrived on the scene, he and Henkel discussed the
situation. Henkel directed Mayo to check the rental agreement
and determine who rented the Armada. Mayo approached the
Armada to speak with Defendant Lara, who had moved to the
driver's seat. The two other male passengers, Avalos and
Yucupicio, attempted to leave the Armada and were instructed
to remain in the vehicle for the officer's safety. Mayo
spoke with Lara, viewed her ID, and asked to see the rental
agreement for the vehicle. According to the agreement, Lara
had rented the vehicle and was the sole authorized driver.
The vehicle was scheduled to be returned to the California
rental location on February 13, 2016 at 3:00 pm. (Exh. 8).
approached the vehicle a second time to receive consent to
search. Mayo spoke with Lara at the driver's door. Avalos
was located in the passenger's seat; Prado was seated
behind the driver's seat: the toddler was in the center
of the back seat; and Yucupicio was seated in the third row
of seating on the passenger's side. Mayo spoke with all
the passengers, explaining Garcia was receiving a warning for
driving with a suspended license. After asking if there was
anything illegal in the vehicle, Mayo asked if he and Henkel
could search the vehicle, stating “If you guys are okay
with it, we'd like to just check the back and make sure
there isn't 500 kilos of mari-- methamphetamine or
something if you're cool with that. Okay? Is that
alright?” (Exh. 3 at 8:25). Lara agreed to Mayo's
request with a “yes” or “yea” and
nodded her head in agreement. The other passengers similarly
communicated their agreement.
did not promise anything, and he did not threaten anyone or
brandish his weapon to gain consent to search the vehicle. No
one in the vehicle appeared to be under the influence of
drugs or alcohol. All occupants spoke English: No one
indicated any inability to understand Mayo.
returned to Henkel's vehicle and informed Henkel that he
had received consent to search the vehicle. But had the
defendants refused consent, Henkel and Mayo would have
deployed Henkel's police dog to perform a canine sniff of
the vehicle. (Filing No. 146 at CM/ECF p. 86;
Filing No. 148 at CM/ECF p. 94).
and Mayo waited until another officer arrived on the scene so
that the passengers would not have to stand outside in the
cold while the search was conducted. Several other officers
arrived on the scene. Each of the adults consented to a
search of their person before being placed in the patrol
cars. While the officers searched the Armada, Garcia,
Yucupicio, and Avalos were in the back of Deputy Mayo's
patrol car, and Lara, Prado, and the toddler were in the back
of Deputy Hansen's patrol car.
Mayo and Henkel began searching the Armada, working their way
from the front seat to the back. Mayo began by looking in the
front passenger's side and Henkel searched the
driver's side. A purse was sitting on the center console
between the driver and passenger seat. Deputy Henkel looked
in the purse and found approximately .2 grams of marijuana in
a small plastic container. After searching the passenger
compartment, the officers searched the cargo compartment,
looking through the luggage. Thereafter, Henkel opened the
hood of the car to search the engine compartment. Henkel
noticed a piece of foam or packaging near the windshield of
the vehicle. He examined the area closer and found five
tightly-sealed, duct-taped packages-like that typically used
for packaging controlled substances. Henkel removed the
packages from the vehicle. Two additional packages were found
in the air filter compartment between the engine and
passenger compartments. One of packages was field tested at
the scene and was presumptively positive for methamphetamine.
after the drugs were found, Mayo advised the male passengers
in his vehicle of their Miranda rights and asked if
they understood each of the rights. (Exh. 3 at 23:30). Henkel
provided a Miranda rights advisement to the females
seated in Hansen's cruiser. (Exh. 2 at 37:00). While
speaking with Lara and Prado, Henkel did not threaten them or
promise anything and the women did not ask Henkel to stop
asking questions or indicate they were unwilling to talk.
None of the officers made threats or promises to persuade
Lara and Prado to waive their rights.
officers moved a few of the passengers from one deputy car to
another. Avalos and Lara were placed together in Deputy
Hansen's vehicle, where they cooperated with answering
the jail, Mayo requested consent to search Avalos' and
Lara's phones. Mayo presented a consent to search form to
Lara and Avalos, individually. Both appeared to read and
understand the form and both signed it. (Filing No. 148
at CM/ECF p. 36-37; Exhs. 9 & 10). Mayo made no
promises or threats to convince Lara or Avalos to sign the
on February 13, 2016, the packages found in the Armada were
field tested to identify their content. Each package had
multiple layers of wrapping, including ziplock/heat sealed
bags, saran wrap, duct tape, and carbon paper with some kind
of grease or film between the layers. There were two types of
packages; one was a compressed brick form, and the other was
slightly smaller and of a different shape. Each package type
was tested. The compressed brick packaging contained over two
pounds of heroin, and the smaller package contained a pound
of methamphetamine. (Filing No. 149 at CM/ECF pp.
field testing the drugs, the packages were placed in an
office filing cabinet drawer at the Lancaster County
Sheriff's Office. Deputy Henkel's canine, Sacha, was
deployed in the room. Sacha alerted and indicated to the odor
of narcotics coming from the filing cabinet.
Henkel and Sacha have been a Nebraska State Patrol certified
drug dog team since 2012, and they have been successfully
tested and re-certified every year since. The yearly
re-certification prior to Defendants' traffic stop
occurred in October of 2015. (Exhs. 12 & 13). Sacha
received an overall score of 2.31 for searching and 2.5 for
indicating based upon ten test searches. (Exh. 13). Sacha
scored a 2 for both searching and indicating when tested on
searching the exterior of an automobile. Sacha is trained and
certified to detect four types of narcotics; marijuana,
methamphetamine, cocaine, and heroin.
addition to yearly training and certification, Henkel and
Sacha train weekly on Thursdays. The training is
“reality based, ” meaning Deputy Henkel sets up
situations similar to those found in an actual field search.
(Filing No. 149 at CM/ECF pp. 17-18). Henkel
continually strives to advance the training to improve
Sacha's capabilities. (Filing No. 149 at CM/ECF p.
33). Sacha's training is recorded by Deputy Henkel.
(Exh. 14). The training records compile the time, date, and
place of training, the drug or material and the quantity used
for training, and the result of Sacha's training,
including whether she successfully alerted and indicated.
(Exh. 14). During the relevant training period of April 2,
2015 to February 13, 2016, Sacha never failed to alert and
indicate to drugs which were placed for training. (Filing
No. 149 at CM/ECF p. 32).
also maintains Sacha's deployment records. Between March
26, 2015 and February 11, 2016, Sacha was deployed 42 times,
and she indicated to the odor of narcotics 29 of these times.
(Exh. 15). Of the resulting searches, an actual find of
narcotics, drug paraphernalia, or currency was found with the
exception of only one time. (See Exh. 15).
handler, Henkel uses a series of commands and hand gestures
to engage Sacha in a search and to direct her attention to
certain areas. (Filing No. 149 at CM/ECF pp. 22-25).
Sacha and Henkel circle around vehicles three times; first
sniffing low, then at mid-level, and finally high.
(Filing No. 149 at CM/ECF p. 25). Sacha is trained
to passively indicate to the presence of drugs by sitting and
staring at the strongest source of odor. In certain
circumstances, she will lay down when there is a low find. In
the presence of high finds or overwhelming odors, she may
stand and freeze. (Filing No. 149 at CM/ECF p. 21).
Officer Contact, Detention, and Search.
Nature and Duration of Contact.
and Lara argue the vehicle was illegally stopped. The
Government argues Avalos and Lara lack standing to challenge
the encounter because it was a consensual encounter, not a
all personal intercourse between policemen and citizens
involves ‘seizures' of persons” implicating
the Fourth Amendment. Terry v. Ohio, 399 U.S. 1, 19
n.16 (1968). “Only when the officer, by means of
physical force or show of authority, has restrained the
liberty of a citizen may we conclude that a
‘seizure' has occurred.” Id. There
is no bright line between a consensual encounter and a
seizure. Rather, the determination is fact-intensive and
turns upon the unique facts of each case. United States
v. Hathcock,103 F.3d 715, 718 (8th ...