United States District Court, D. Nebraska
FINDINGS RECOMMENDATION AND ORDER
R. ZWART, UNITED STATES MAGISTRATE JUDGE
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.
hearing testimony and reviewing the documentary, audio, and
video evidence, the undersigned magistrate judge finds the
following facts are credible.
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.
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. 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.
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.
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.
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
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).
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.
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
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.
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.
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.
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.
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).
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