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United States v. Tapia-Rodriguez

United States District Court, D. Nebraska

March 16, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
IDELFONSO TAPIA-RODRIGUEZ, Defendant.

          FINDINGS AND RECOMMENDATION

          SUSAN M. BAZIS, UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Defendant Idelfonso Tapia-Rodgriguez's (“Defendant”) Motion to Suppress Evidence (Filing No. 39) and Motion to Sever (Filing No. 41).

         Defendant has been charged with conspiracy to distribute and possess methamphetamine, and possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1). (Filing No. 1.) Jose Rodolfo-Chaidez (“Rodolfo-Chaidez”), Enrique Serna (“Serna”), and Minerva Garcia (“Garcia”) are also charged in the indictment.

         An evidentiary hearing on Defendant's motions was held on February 8, 2018. A transcript was filed on February 15, 2018. (Filing No. 80.) The motions are now ripe for disposition. For the reasons set forth below, the undersigned will recommend that Defendant's motions be denied.

         FACTS

         On June 13, 2017, at law enforcement's request, a cooperating witness (“CW”) set up a drug transaction by calling her supplier in Mexico and arranging for the delivery of methamphetamine. Allegedly, later that day, Garcia delivered the methamphetamine to the CW. (Filing No. 62.) Officers did not arrest Garcia at that time. (Filing No. 42.)

         On September 26, 2017, the CW set up another delivery through her Mexican supplier. (Filing No. 62.) The supplier allegedly sent Rodolfo-Chaidez to deliver methamphetamine to the CW. On that date, Rodolfo-Chaidez was arrested for possession of methamphetamine with intent to deliver. (TR. 4-5.) Following the arrest, Rodolfo-Chaidez was taken to the Southeast Precinct. (TR. 5.) Rodolfo-Chaidez waived his Miranda rights and agreed to be interviewed by officers.[1] (TR. 6.) Rodolfo-Chaidez told officers that he had methamphetamine and money at his house and provided his address. (TR. 7.) Rodolfo-Chaidez also told the officers that his roommate, “Ponco, ” who was later identified as Defendant, was involved with drugs, but he did not know to what extent. (TR. 7.) Rodolfo-Chaidez told officers that Defendant had only been living with him for a short period of time. (TR. 7.) Rodolfo-Chaidez signed a consent to search form, which was written in Spanish, and provided law enforcement a key to the house. (TR. 9; Ex. 1.) Rodolfo-Chaidez told officers during questioning that he occupied the southwest bedroom of the house. (TR. 11.)

         Officers transported Rodolfo-Chaidez to the house. Rodolfo-Chaidez accompanied officers as they entered the house using the key that he provided to them. (TR. 9, 18-19.) Officers anticipated that someone else would be at the residence, so Sgt. Heath entered the house first and issued loud commands in English and Spanish. (TR. 9, 24.) When officers entered the house, they found Defendant in the living room. (TR. 12.) Defendant was immediately placed in handcuffs. (TR. 12.) Officers then conducted a security sweep of the house, including the bedrooms. (TR. 12.) No evidence of contraband was visible in the bedrooms during the sweep, but contraband was observed in the kitchen. (TR. 13.)

         Following the sweep, officers began to search the house, but did not immediately search the bedroom that they believed to belong to Defendant.[2] (TR. 14.) Sgt. Heath, communicating in Spanish, told Defendant why they were present and asked Defendant his name and if he lived there.[3] (TR. 14, 29.) Sgt. Heath also asked Defendant which bedroom belonged to him. (TR. 11.) Defendant told Sgt. Heath that he was staying in the northwest bedroom. (TR. 15.) Defendant gave officers consent to search the bedroom, and signed the same consent form that had previously been signed by Rodolfo-Chaidez. (TR. 15; Ex. 1.) Officers did not make any promises or threats to Defendant. (TR. 35.) Officers searched Defendant's bedroom and found several pounds of methamphetamine in a shoebox which was located inside the closet. Officers also found money in the bedroom. (TR. 16-17.)

         After the drugs had been found in Defendant's bedroom, Defendant was brought into the bedroom and sat on the bed. At that point, Sgt. Heath asked Defendant his name, where he was from, and how long he had been living in the house. (TR. 17-18.) Once Defendant answered these questions, he was advised of his Miranda rights for the first time. His Miranda rights were communicated to him in Spanish. (TR. 18.) Defendant declined to speak further with officers and he was not asked additional questions. (TR. 18.)

         On or about October 2, 2017, Garcia allegedly contacted the supplier to arrange another delivery of methamphetamine and was arrested when she arrived at the agreed upon location. (Filing No. 42.) Upon a search of her residence, officers located Serna and considerable quantities of methamphetamine and cash. (Id.)

         DISCUSSION

         1. Motion to Suppress Evidence

         Defendant contends that his Fifth Amendment rights were violated because he was not read his Miranda rights before being questioned in the house. The ...


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