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United States v. Morales

United States District Court, D. Nebraska

March 26, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ELOY VARGAS MORALES, Defendant.

          FINDINGS AND RECOMMENDATION

          Michael D. Nelson United States Magistrate Judge.

         This matter is before the Court on the Motion to Suppress the Fruits of an Unlawful Search and Seizure (Filing No. 27) filed by Defendant, Eloy Vargas Morales. Defendant filed a brief in support of the motion (Filing No. 28) and the government filed a brief in opposition (Filing No. 33).

         The Court held an evidentiary hearing on the motion on February 13, 2018. Defendant was present with his attorney, James Martin Davis. The government was represented by Assistant United States Attorney, Thomas Kangior. Omaha Police Officers Nicholas Yarpe and Robert Branch, Jr. testified on behalf of the government. Defendant testified on his own behalf. The Court received into evidence Exhibits 1 and 2 offered by the government, and Exhibit 101 offered by Defendant. The Court also took judicial notice of Neb. Rev. Stat. § 60-6, 161. A transcript (TR.) of the hearing was prepared and filed on February 26, 2018. (Filing No. 42). This matter is now fully submitted to the Court. For the following reasons, the undersigned magistrate judge recommends that Defendant's motion be denied.

         BACKGROUND

         On March 14, 2017, Omaha Police Officers from the Gang Suppression and Narcotics Units began surveillance of a residence at 2325 North 48th Street after receiving information from a confidential informant (C/I) that a felony fugitive and methamphetamine or other narcotic activity might be taking place at the residence. (TR. 10, 18, 23, 34, 43-44). During his surveillance, Officer Branch[1] drove by the residence in an unmarked black Ford F-250 and noticed two males standing next to a red Ford F-150 parked in the driveway. Officer Branch was unable to determine the identity of the individuals as he was driving.[2] (TR. 46-48). Officer Branch turned his vehicle around and set up a stationary surveillance of the residence for approximately an hour to an hour and a half. (TR. 49-51).

         Officer Branch testified that he did not observe anything unusual during his stationary surveillance, but he did observe the F-150 leaving the residence. Officers suspected that the felony fugitive was in the truck. (TR. 34, 52-53). Officer Branch then observed Defendant, driving the F-150, fail to signal a right-hand turn from 48th Street onto Northwest Radial Highway. (TR. 18, 35, 53, 63). Officer Branch communicated his observation by portable radio to Detective Jordan Brandt, who was driving in a separate marked police vehicle. Detective Brandt relayed the information to Officer Yarpe, [3] who was driving in an unmarked surveillance vehicle. Detective Brandt and Officer Yarpe began following the F-150, and observed the F-150 drive past a residence just east of 50th Street and Erskine Street, then reverse into the driveway of the residence. Detective Brandt conducted a traffic stop of the F-150 based on the information provided to him by Officer Branch. (TR. 11-12, 22, 25, 35, 63).

         Officer Yarpe approached the F-150 with his weapon drawn because he had information that one of the parties had a felony warrant, and because he thought the F-150 may flee since it had reversed into the driveway. (TR. 13, 102). Officer Yarpe testified that as Defendant exited the vehicle, a large amount of money and what appeared to be methamphetamine were protruding from the left inner pocket of Defendant's unzipped coat. Officer Yarpe placed Defendant in handcuffs and contacted Officer Branch. (TR. 13, 21, 26-29, 101).

         Officer Yarpe searched Defendant's person and found $3, 910 in U.S. currency and 77 grams of methamphetamine packaged in four separate plastic bags in Defendant's left inner coat pocket. (TR. 14-15). Because of the large amount of money and methamphetamine found in Defendant's coat pocket, Detective Brandt searched the F-150 for additional items related to drug dealing. (TR. 14, 17). A stolen motorcycle was found in the back of the F-150. (TR. 29).

         Officer Branch placed Defendant in Branch's vehicle while the other officers searched the F-150. Officer Branch obtained Defendant's biographical information and explained to him the circumstances of his arrest. Officer Branch and Defendant conversed in English without difficulty. Defendant was calm but began to cry when Officer Branch told him that he was being arrested for possession with intent to distribute methamphetamine. (TR. 37).

         After Defendant was arrested and taken to Central Headquarters, Officer Branch provided the OPD Miranda rights advisory form (Ex. 101) to Defendant in order to conduct an interview. Defendant did not agree to be interviewed. He did not ask for an attorney. (TR. 38, 107). Officer Branch then told Defendant that he had information regarding Defendant's access to a residence at 48th and Blondo streets and the existence of a camper at 19th and Arbor streets. Officer Branch requested Defendant's permission to search the residence and the camper without the necessity of obtaining a warrant. (TR. 38-39, 62, 106-107). Defendant agreed to the search of the camper at 19th and Arbor and signed an OPD Permission to Search form (Ex. 2) filled out by Officer Branch. Defendant was allowed to read the form and stated that he could read before signing the form. (TR. 39-40). Officer Branch and Defendant spoke in English without difficulty.[4] Officer Branch made no threats or promises and Defendant appeared calm throughout. (TR. 40, 93-94). Officer Branch transported Defendant to the camper's location to execute the search. Officers used a key provided by Defendant to gain entry to the camper. Officers found about 60 grams of methamphetamine in the camper. (TR. 41).

         Defendant filed the instant motion to suppress “all evidence seized from the Defendant's person, property, motor vehicle, cell phone, and camper[.]”[5] (Filing No. 27).

         ANALYSIS

         Defendant argues that the evidence in this case should be suppressed because it resulted from a traffic stop without probable cause, a search of his person, and the F-150 without a warrant or exception the warrant requirement, and a consensual search of the camper obtained after he had invoked his right to remain silent. (Filing Nos. 27, 28; TR. 8, 111, 115-117). Each of these arguments is without merit, as explained below.

         I. Standing

         First, although standing was not addressed at the hearing, the government did raise in its brief the issue of whether Defendant established “that he was in lawful possession of the truck he was driving and had any ...


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