United States District Court, D. Nebraska
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 ...