United States District Court, D. Nebraska
FINDING, RECOMMENDATION AND ORDER
R. ZWART UNITED STATES MAGISTRATE JUDGE
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.
hearing testimony and reviewing the documentary, audio, and
video evidence, the undersigned magistrate judge finds as
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.
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.
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
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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.
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
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).
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).
Officer Contact, Detention, and Search.
Nature of Contact.
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)).
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 ...