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United States v. Nunez-Acosta-Acosta

United States District Court, D. Nebraska

February 8, 2019

UNITED STATES OF AMERICA, Plaintiffs,
v.
NELSON NICOLAS NUNEZ-ACOSTA-ACOSTA, and FELIPE GENAO MINAYA, Defendants.

          FINDING, RECOMMENDATION AND ORDER

          CHERYL R. ZWART UNITED STATES MAGISTRATE JUDGE

         Defendants Nelson Nicolas Nunez-Acosta (“Nunez-Acosta”) and Felipe Genao Minaya (“Minaya”) move to suppress all evidence obtained during a vehicle search conducted on April 26, 2018, all evidence obtained as fruit of the alleged illegal vehicle search, and any statements made during or after the traffic stop. (Filing No. 46; Filing No. 50). For the reasons stated below, the motions should be denied.

         STATEMENT OF FACTS

         After hearing testimony and reviewing the documentary, audio, and video evidence, the undersigned magistrate judge finds as follows:

         Trooper Samuel Mortensen (“Mortensen”) is a Commercial Vehicle Safety Alliance (“CVSA”) inspector with the Carrier Enforcement Division (“CED”) of the Nebraska State Patrol. Mortensen's duties include ensuring compliance with state statutes and the Federal Motor Carrier Safety Administration's regulations pertaining to the operation of commercial motor vehicles.

         On April 26, 2018, while patrolling Interstate 80 driving westbound in Buffalo County, Mortensen observed a semi-truck driving eastbound near mile marker 272. The truck had a refrigerated trailer with “U.S. Mail” markings on its side. Based on his training and experience, Mortensen knew the U.S. Mail did not use refrigerated truck trailers.

         Mortensen turned his cruiser around to begin following the eastbound truck. The trooper observed the truck weaving within its traffic lane and drifting over the fog line onto the shoulder of the interstate multiple times. Mortensen activated his emergency lights around mile marker 277 to signal the truck to pull over. The truck did not stop immediately. Instead, it continued traveling eastbound for almost two miles. Around mile marker 279, Mortensen pulled alongside the truck and physically gestured the vehicle to pull over, at which point it did.

         Mortensen contacted the semi-truck's two occupants. The trooper identified the driver as Minaya and the passenger as Nunez-Acosta. Nunez-Acosta's and Minaya's native language is Spanish. Mortensen does not speak Spanish. Although the language barrier posed some difficulty during the traffic stop, both defendants were able to provide responsive answers in English to Mortensen's questions.

         Mortensen observed that the truck, which had New Jersey license plates, was equipped with a key-entry lock but no seal, and that it had only recently been issued a DOT number. The trooper requested Minaya's driver's license and vehicle documentation, and the required electronic logbook for that truck. Minaya produced the documentation and a paper logbook, stating that the electronic logbook was not working. He then produced an electronic logging device with security tape still covering the pins. Mortensen determined that the electronic logging device had never been plugged into the vehicle's electronic control module, as required.

         Mortensen asked Minaya to accompany the trooper to his patrol vehicle while he inspected the documentation and paper logbook. Upon reviewing the logbook entries, Mortensen noticed the truck was idle for ten days in Ontario, California. Minaya advised that he resided in Newark, New Jersey, and he was stopped in Ontario for diesel exhaust fluid repairs on the truck. Minaya stated that he and Nunez-Acosta had stayed in a hotel in Ontario, California during this time. Minaya further stated that they were towing an empty trailer with no cargo. At no point did Minaya mention being a U.S. Mail hauler.

         While Minaya remained in the patrol vehicle, Mortensen returned to the truck and spoke with Nunez-Acosta. Nunez-Acosta told Mortensen that he owned but does not drive the truck, and he was escorting Minaya on this trip. In response to the officer's questions, Nunez-Acosta provided a very different account of the defendants' travel, stating he and Minaya had spent only one night at a hotel in Ontario, and they spent the remaining time in Las Vegas, Nevada. Nunez-Acosta made no reference to any alleged truck repairs, and never mentioned transporting U.S. Mail.

         Mortensen returned to his patrol vehicle to perform a license and registration check and complete the Driver Inspection Report. Mortensen noted as violations in the report: failure to maintain a lane; drifting onto the shoulder; inattentive driving; no driver's record of duty status; and, failure to keep an electronic logbook. Mortensen noted that Minaya was shaking throughout the conversation and appeared nervous.

         Mortensen told Minaya that his failure to keep an electronic logbook is a 10hour out-of-service violation, meaning the truck would not be permitted to resume its travel back to New Jersey for at least 10 hours. Minaya did not appear bothered by this news.

         Upon completing the inspection report and citation, Mortensen told Minaya that he was free to leave. Mortensen than asked Minaya if Mortensen could search the vehicle. Minaya agreed. Mortensen sought verbal confirmation of Minaya's consent, and Minaya again stated that, “yeah, ” Mortensen could search the truck.

         Mortensen advised Minaya to wait in the patrol car while he sought consent to search from Nunez-Acosta. Mortensen contacted Nunez-Acosta in the truck and informed him that Minaya had consented to a search of the truck. Nunez-Acosta appeared confused when Mortensen initially requested permission to search the truck. However, upon Mortensen's repeated request to search, Nunez-Acosta offered to unlock the trailer for Mortensen's inspection. After unlocking and opening the trailer door, Nunez-Acosta stood outside near the rear of the truck while it was searched.

         Inside the trailer, Mortensen saw metal shavings on the floor consistent with work being done to the front of the trailer. In searching the cab, Mortensen observed several tools, including power drills, sockets, wrenches, drill bits, and several bolts. The bolts Mortensen found in the truck's cabin matched those around the refrigeration unit inside the trailer. Mortensen returned to the trailer, retrieving the tools.

         Directly beneath the refrigeration unit, Mortensen identified a plastic cover secured by bolts. Mortensen noticed several bolts were missing, some of the bolts did not match, only four of the bolts were securely tightened, and there was fresh calking and sealant around the sides of the trailer.

         Upon pulling back the plastic paneling, Mortensen observed a second piece of plastic sheeting. After pulling back the second piece of plastic sheeting, Mortensen identified a hidden compartment with several brick-shaped packages that appeared to be drugs. Nunez-Acosta and Minaya were then arrested and transported, in custody, to the Nebraska State Patrol (“NSP”) office in Kearney, Nebraska. There, Minaya agreed to be interviewed without counsel present. He was later advised of his Miranda rights with interpreting assistance provided by a DEA task force agent, who was raised in a Spanish-speaking home. Minaya waived his Miranda rights.

         Officers ultimately removed 42 packages, with a combined total weight of 118.2 pounds, of what was later identified as containing N-phenyl-N-[ 1-(2-phenylethyl)-4-piperidinyl] propanamide, commonly known as" fentanyl," a Schedule II controlled substance.

         On June 20, 2018, an Indictment was filed, charging Defendants with knowingly and intentionally possessing with intent to distribute 400 grams or more of a mixture or substance containing fentanyl in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1). (Filing No. 28).

         ANALYSIS

         The defendants argue that the search of the truck violated their Fourth Amendment right to be free from unreasonable searches and seizures, and therefore all evidence seized as a result, including any statements made, must be suppressed as fruit of the poisonous tree. (Filing No. 46; Filing No. 50). Minaya further argues his Fifth Amendment privilege against self-incrimination and his Miranda rights were violated, and all statements should be suppressed. (Filing No. 50). In turn, the United States asserts that because the vehicle stop was proper and the ensuing search consensual, exclusion of evidence is unwarranted. (Filing No. 55). The United States further argues that Minaya's Fifth Amendment privilege against self-incrimination was not violated because he was never subjected to interrogation by Mortensen, and he provided a knowing, intelligent, and voluntary waiver of his Miranda rights before being interrogated by DEA Agent Bauer. (Filing No. 55).

         I. Officer Contact, Detention, and Search.

         A. Nature of Contact.

         The defendants first argue Mortensen initiated the traffic stop without reasonable and articulable suspicion of a traffic violation. “It is well established that any traffic violation, regardless of its perceived severity, provides an officer with probable cause to stop the driver.” United States v. Washington, 455 F.3d 824, 826 (8th Cir. 2006). “To determine whether a traffic stop was based on probable cause or was merely pretextual, an ‘objective reasonableness' standard is applied.” United States v. Mallari, 334 F.3d 765, 766 (8th Cir. 2003). That is, “[a]n officer is justified in stopping a motorist when the officer ‘objectively has a reasonable basis for believing that the driver has breached a traffic law.'” Id. at 766-67 (quoting United States v. Thomas, 93 F.3d 479, 485 (8th Cir. 1996)).

         Here, Mortensen observed the truck (1) weave within its traffic lane; (2) cross the fog line and drive on the interstate's shoulder numerous times; and (3) fail to yield to Mortensen for two miles after he activated his emergency lights, while making additional lane changes. Nebraska courts have held that “a vehicle weaving in its own lane of traffic provides an articulable basis or reasonable suspicion for stopping a vehicle.” State v. Thomte, 226 Neb. 659, 663 (1987). Further, under Neb. Rev. Stat. § 60-6.142, vehicles are not allowed to drive on the shoulders of highways, unless an enumerated exception applies (none of which are applicable to the instant matter. “Where a portion of a vehicle is driven on a ...


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