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United States v. Cervantes

United States District Court, D. Nebraska

October 25, 2017

UNITED STATES OF AMERICA, Plaintiffs,
v.
RIGOBERTO CERVANTES, Defendant.

          FINDINGS AND RECOMMENDATION

          Susan M. Bazis United States Magistrate Judge.

         This matter is before the Court on Defendant Rigoberto Cervantes' (“Cervantes”) Motion to Suppress Evidence. (Filing No. 70.) Cervantes seeks to suppress all evidence and statements obtained as a result of the March 24, 2016 search of a 1996 Chevrolet pickup truck.

         The Court held an evidentiary hearing on August 31, 2017. Cervantes was present with his attorney, Alton Mitchell. The United States was represented by Assistant United States Attorney Martin Conboy. A transcript (TR.) of the hearing was prepared and filed on September 26, 2017. (Filing No. 92.) This matter is now fully submitted and ready for decision.

         BACKGROUND

         On March 24, 2017, Deputy Nicholas Bridgmon (“Deputy Bridgmon”) of the Seward County Sheriff's Office was working as a patrol deputy. (TR. 4.) At approximately 7:17 p.m., Deputy Bridgmon was just north of mile marker 373 on Interstate 80 at an abandoned gas station. (TR. 4-5.) Deputy Bridgmon noticed a green Chevy Silverado pickup and a white minivan attempting to get gas at the abandoned station. (TR. 5.) The minivan was occupied by a family and had license plates from Hall County, Nebraska. (TR. 5.) The green pickup, driven by Cervantes, had Arizona plates. (TR. 6.) Deputy Bridgmon approached the individuals to tell them they were not going to be able to get gas at that location. (TR. 5.)

         Upon contact, Cervantes provided Deputy Bridgmon his driver's license and Deputy Bridgmon ran his license through Seward County Communications. (TR. 6.) However, Deputy Bridgmon did not get a response from Seward County Communications during his interaction with Cervantes. (TR. 6.) Deputy Bridgmon told Cervantes that the nearest gas station was approximately six miles east down the road at exit 379. (TR. 7.) After returning Cervantes' driver's license, Deputy Bridgmon and Cervantes left the area. (TR. 7.)

         A short time later, Deputy Bridgmon was contacted by Seward County Communications. Deputy Bridgmon was told that Cervantes' driver's license was suspended and that Sergeant Brian Heath (“Sgt. Heath”) of the Omaha Police Department wanted to speak to him. (TR. 7.) Sgt. Heath told Deputy Bridgmon that an informant had reported that the vehicle driven by Cervantes was known to carry between five to ten pounds of methamphetamine, and that the drugs may or may not be in the spare tire. (TR. 8.) After receiving this information, Deputy Bridgmon traveled towards the gas station where he told Cervantes he could get gas. (TR. 8.) While in route, Deputy Bridgmon called Sergeant Mike Vance (Sgt. Vance”) of the Seward County Sheriff's Office and asked Sgt. Vance to come to the gas station because he is their sole canine handler. (TR. 8.)

         When Deputy Bridgmon arrived at the gas station, he sat across the road and watched Cervantes' vehicle, as well as a tan Chevy Tahoe. Sgt. Heath told Deputy Bridgmon that a tan Tahoe would be traveling with the green pickup. (TR. 8.) Deputy Bridgmon went into the parking lot and pulled his vehicle behind and to the left of the pickup and Tahoe. (TR. 14-15.) Another deputy pulled up and parked next to Deputy Bridgmon's vehicle. (TR. 15.) The officers' patrol cars did not block the pickup or Tahoe in the parking lot. (TR. 19.)

         Deputy Bridgmon testified that upon contact with Cervantes, he found Cervantes to be of average intelligence and not under the influence of alcohol or drugs. (TR. 15-16.) Deputy Bridgmon was in uniform and armed during his contact with Cervantes, but did not brandish his weapon or make any implied or expressed threats. (TR. 16.) Deputy Bridgmon stated that he did not have a problem communicating with Cervantes, who is Hispanic. (TR. 16.) Deputy Bridgmon testified that he asked Cervantes if there was anything illegal in his vehicle and Cervantes responded “no.” (TR. 16.) Deputy Bridgmon then asked Cervantes if he could search his vehicle, to which Cervantes said “if you want.” (TR. 17.) When Deputy Bridgmon again asked Cervantes if he could search the vehicle, Cervantes said “go ahead.” (TR. 17.) A female who had been traveling in the Tahoe, later identified as Gabriella Valdez, told Cervantes that he did not have to allow the officers to search the pickup. (Ex. 1.)

         Cervantes was placed in the passenger seat of the patrol car because, as testified to by Deputy Bridgmon and reflected in the video of the encounter offered into evidence at the evidentiary hearing, it was cold outside. (Ex. 1.) Deputy Bridgmon did not force Cervantes into the car, nor did Cervantes resist entering the vehicle. (Id.) Thereafter, Deputy Bridgmon started searching the pickup and noticed that there was no spare tire. (TR. 17, 32.) While Deputy Bridgmon was in the back area of the pickup, Cervantes opened the passenger door of the patrol car and asked Deputy Bridgmon if he could make a phone call. (TR. 20-21.) Deputy Bridgmon told him he could make a phone call. (Tr. 21.)

         Deputy Bridgmon testified that Cervantes was not handcuffed or otherwise restricted while in the patrol car, and that Cervantes was able to open the patrol door himself from inside of the vehicle. (TR. 21.) At one point, Cervantes mentioned that he was getting hot inside the patrol car. (TR. 21.) Still, he did not request to exit the vehicle. (Id.) The video of the encounter shows that after Cervantes indicated he was hot, the passenger door to the patrol car was cracked open. (Ex. 1.) The door remained cracked open until Cervantes was detained. (Ex. 1.) Deputy Bridgmon testified that each time officers were near the bed of the pickup or the tailgate, Cervantes would try to distract them.[1] (TR. 22.) However, Cervantes never made any attempt to withdraw or limit his consent to the search of the pickup. (TR. 25.)

         Sgt. Vance testified that when he got to the scene and observed the pickup, he noticed that the screws on the plastic bed liner were not factory-type screws. (TR. 41.) Sgt. Vance also observed scarring on the screws, which indicated they were recently removed and put back in place. (TR. 42.) Sgt. Vance testified that there were non-factory metal brackets holding the plastic bed liner against the bed. (TR. 42.) The bolts holding the brackets also had scarring and were different sizes. (TR. 42.) Officers also noticed two bulges at the front of the pickup's bed and, by tapping on the outside of the bed, noted that it felt “solid.” (TR. 42.) The officers thereafter removed screws from the bed liner using an electric screwdriver and observed what they believed to be methamphetamine concealed between the pickup box and the bed liner. (TR. 24.) Once the methamphetamine was discovered, Cervantes and Valdez were detained. (TR. 24.)

         DISCUSSION

         Cervantes argues that his Fourth Amendment rights were violated because his contact with Deputy Bridgmon was not supported by reasonable suspicion. However, a review of the evidence makes clear that the contact between Cervantes and Deputy Bridgmon was consensual. A consensual encounter does not trigger Fourth Amendment scrutiny. Florida v. Bostick, 501 U.S. 429, 434 (1991). A person has only been seized within the meaning of the Fourth Amendment if, in view of all the circumstances, “a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall,446 U.S. 544, 554 (1980). “Examples of circumstances that might indicate a seizure . . . would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the ...


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