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United States v. Avalos

United States District Court, D. Nebraska

March 20, 2017

UNITED STATES OF AMERICA, Plaintiffs,
v.
VICTOR M. AVALOS, and CAROLINA B. LARA, Defendants.

          FINDINGS, RECOMMENDATION AND ORDER

          Cheryl R. Zwart United States Magistrate Judge

         Defendants 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.

         STATEMENT OF FACTS

         After hearing extensive testimony and reviewing the documentary, audio, and video evidence, the undersigned magistrate judge finds the following facts are credible.

         On the 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.

         Henkel 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 store.

         Henkel 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.

         While 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.

         During 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.

         When 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).

         Mayo 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.

         Mayo 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.

         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).

         Henkel 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.

         Deputies 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.

         Shortly 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.

         Thereafter, 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 questions.

         Once at 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 consent form.

         Later 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. 42-43).

         After 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.

         Deputy 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.[1] (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.

         In 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).

         Henkel 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).

         As her 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).

         ANALYSIS

         I. Officer Contact, Detention, and Search.

         A. Nature and Duration of Contact.

         Avalos 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 traffic stop.

         “Not 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 ...


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