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United States v. Zamora

United States District Court, D. Nebraska

December 19, 2017

UNITED STATES OF AMERICA, Plaintiffs,
v.
ALBERTO GIOVANNI ZAMORA, and JUAN JESUS NAVA, Defendants.

          FINDINGS RECOMMENDATION AND ORDER

          CHERYL R. ZWART, UNITED STATES MAGISTRATE JUDGE

         Pending before the court are Motions to Suppress filed by Defendants Alberto Giovanni Zamora, (Filing No. 47), and Juan Jesus Nava. (Filing No. 45). Zamora and Nava seek to suppress all evidence obtained as a result of the August 25, 2017 traffic stop and search of their vehicle. For the following reasons, Defendants' motions should be denied.

         BACKGROUND

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

         On August 25, 2017, Sergeant Mike Vance of the Seward County Sheriff's Office was patrolling traffic while travelling eastbound in the passing lane on Interstate 80 near mile marker 376 in Seward County. Vance observed a black four-door, Lincoln Town Car vehicle with California plates traveling eastbound less than one car-length behind a semi tractor-trailer truck at a speed of approximately 74 miles per hour. Vance also observed that the Lincoln's windows were tinted so dark that he was unable to see inside the vehicle. Vance believed the Lincoln was following too closely behind the semi and pulled behind the Lincoln, intending to follow and effectuate a traffic stop.

         The Lincoln then changed lanes from the outside travel lane to the inside passing lane. Vance changed lanes following the Lincoln. After the Lincoln and Vance's cruiser passed several other vehicles in the passing lane, the Lincoln then changed lanes cutting in-between two semi trucks and began following the lead semi too closely.[1] Vance believed the driver of the Lincoln might be changing lanes in an attempt to circumvent Vance's ability to perform a traffic stop on the Lincoln. After a time, Vance was able to safely pull behind the Lincoln, activate his lights, and stop the Lincoln when it pulled into a rest area near mile marker 380.

         Vance approached the passenger side of the Lincoln, and spoke to the driver, Nava, who identified himself with a California ID card. Nava said he did not have a driver's license. While he was at the window of the car, Vance smelled a slight odor of burnt marijuana coming from the vehicle. He also saw three cell phones lying in the vehicle and air fresheners. Vance explained that he pulled the Lincoln over for following too closely. Nava said he knew, and he was moving out of the way of traffic. Vance then contacted the front seat passenger, Zamora, who identified himself with a California Id. He also denied having a driver's license.

         Vance asked Nava to come back to his cruiser while he completed issuing a warning. While in the cruiser, Vance discussed Nava and Zamora's travel plans with Nava. Nava said they were traveling to Chicago and would be staying for a week. Nava remained very nervous while sitting in the cruiser: Vance observed Nava continually bite his lips and cheeks and was able to see Nava's carotid artery clearly pulsing.

         Vance returned to the Lincoln to verify the vehicle identification number (“VIN”). While there, he talked to Zamora who was walking freely about the rest stop. Zamora said he had owned the car for six months. He said they were going to Chicago to see a baseball game and would be staying for four days.

         Vance returned to the cruiser. He received notification from the E-911 center that Nava had a prior criminal record which included drug-related crimes. Vance then explained the warning to Nava, handed it to him, and told Nava he was free to go. As Nava began to exit the cruiser, Vance asked if Nava would answer some additional questions. Nava agreed. (Gov. Exh. A at 11:11). Vance asked if Nava had any weapons, large amounts of money, or drugs in the car. After each individual question, Nava answered in the negative, looking amused and vigorously shaking his head “no” each time. Vance then asked Nava if he could search the car. Nava responded “yea, that's fine, yea sure.” (Gov. Exh. A at 11:24). Vance approached Zamora outside of the vehicle and asked for consent to search the Lincoln as it was Zamora's vehicle. Zamora quickly responded “go ahead, go ahead, ” nodding and gesturing toward the vehicle. (Gov. Exh. B at 11:40).

         Vance searched the car. He found marijuana shakings (marijuana leaf or seed fragments) on the floor of the passenger compartment as well as in the center console. He discovered several receipts from purchases made in Mexico on August 20, 2017, and August 21, 2017. Vance noticed that the carpet was not factory carpet and appeared to have been recently installed. He also noticed the seats appeared to had been removed and replaced and there was an unusual hump on the floor of the vehicle under the carpet. In addition, Vance noticed the car had been painted, and the original color appeared to be burgundy. Vance noticed the bolts which hold the windshield wipers on the vehicle were scarred, indicating they had recently been removed. The molding around the windshield had not been correctly replaced, was not straight, and was sticking up at the top corners, indicating it had been removed and was not replaced by a professional. Vance noticed a stick was needed to hold the hood up because the hood lift support shocks had been removed.

         Vance talked to Zamora and told him he suspected that there was an after-market hidden compartment in the Lincoln and that he wanted to have the car towed so that it could be further searched. Vance asked Zamora if that was alright with him. Zamora looked skeptical, but did not deny that there was an after-market compartment in the Lincoln. Instead, Zamora shrugged his shoulders and said “alright” and then further added “yea, go ahead.” (Gov. Exh. B at 36:20-36:56).

         Zamora then told Vance he had been stopped for speeding in western Nebraska. He said the state trooper had searched the car and did not find anything. Zamora said the trooper gave them directions to the nearest Western Union so they could have someone wire them gas money because they were almost out.

         The Lincoln was towed to a shop location for further search. Zamora and Nava were also transported to that location. They were not handcuffed. After arriving at the shop, they sat in a room next to the area where the search was being conducted with the door open between those two areas. During the search at the shop, 15 taped packages were found within a void space behind the firewall. A pre-test of the contents of one of the packages was positive for the presence of heroin. Both Zamora and Nava were then placed under arrest.

         Nava and Zamora now challenge the stop and search of the Lincoln, arguing the stop was not supported by probable cause and their detention was unlawfully prolonged in violation of Rodriguez v. United States, 135 S.Ct. 1609 (2015). Defendants argue Vance did not have the necessary reasonable suspicion to extend the stop beyond the activities necessary to issue the warning ticket. Accordingly, the defendants request that all evidence be suppressed as fruit of an illegal search and seizure.

         ANALYSIS

         A traffic stop is legal if it is supported by probable cause to believe that a law violation has occurred. Whren v. United States, 517 U.S. 806, 810 (1996). “An officer has probable cause to conduct a traffic stop when he observes even a minor traffic violation. This is true even if a valid traffic stop is a pretext for other investigation.” United States v. Sallis, 507 F.3d 646, 649 (8th Cir. 2007) (internal quotations omitted). A traffic stop “is valid even if the police would have ignored the traffic violation but for their suspicion that greater crimes are afoot.” United States v. Long, 532 F.3d 791, 795 (8th Cir. 2008) (quoting United States v. Chatman, 119 F.3d 1335, 1339-40 (8th Cir. 1997)). An officer's subjective motivations for a stop are not relevant where a traffic violation has occurred. Long, 532 F.3d at 795.

         Following a vehicle more closely than is “reasonable and prudent” is a violation of Nebraska law. Neb. Rev. Stat. Ann. § 60-6, 140. And an officer can lawfully stop a vehicle for traveling too closely even if the officer intends to issue only a warning ticket. United States v. Neumann, 183 F.3d 753, 755 (8th Cir. 1999); United States v. Lyton, 161 F.3d 1168, 1170 (8th Cir. 1998). Additionally, in the state of Nebraska, it is unlawful for a registered vehicle to have its windows tinted “so that . . . the ability to see into the motor vehicle is substantially impaired.” Neb. Rev. Stat. Ann. § 60-6, 257(1)(a). However, a traffic stop may be invalid if the officer causes or contributes to the traffic violation for which the vehicle is stopped. See United States v. Ochoa, 4 F.Supp.2d 1007 (D. Kan. 1998).

         When Vance first observed the Lincoln, he saw it was following less than a second behind a semi while travelling approximately 74 miles per hour. Although Vance did not use any objective measurements beyond his own eyesight, later while he was attempting to follow the Lincoln, Vance saw the Lincoln following a semi so close that there was not be enough room for Vance to pull his own vehicle between the ...


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