Opinion
Case No. 8:99CR7
December 1999.
ORDER
I. Introduction
Before me is the defendant's statement of objections (Filing No. 35) to the magistrate's corrected report and recommendation (Filing No. 34). The indictment (Filing No. 1) charges the defendant with one count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). The defendant moved to suppress (Filing No. 13) evidence seized from the car she was driving on December 16, 1998, as well as any statements she may have made to Omaha Police Officers during her contact with them on that day. Following two hearings, the magistrate recommended that I deny the motion to suppress.
I have reviewed the record, the magistrate's report and recommendation (RR), the parties' briefs, the transcripts of the suppression hearings (Filing Nos. 21, 30), and the applicable law. The government did not submit a responsive brief to the defendant's statement of objections, electing instead to stand on the post-hearing brief submitted to the magistrate. I conclude that the magistrate's report and recommendation should be adopted in its entirety. Because the magistrate gives an accurate, detailed account of the events leading to the search and arrest at issue here, I will not reiterate those events except as they are implicated in the resolution of the defendant's objections.
II. Discussion A. Permission-to-Search Form
The defendant first objects to the magistrate's finding that Omaha Police Officer Richard Gonzalez "explained" the permission-to-search form to the defendant before Officer Henry conducted a dog sniff of her car because Officer Gonzalez neither read the form to her nor told her that she had a right to refuse the search. This objection is without merit. While it is true that the officer testified that he did not read the entire form to the defendant, it is also true, as the magistrate found, RR at 6-7, that the defendant had given her voluntary consent to have the car searched even before Officer Gonzalez approached her with the permission-to-search form. Further, the officer's testimony shows that he did in fact "explain" the form to the defendant. He told her that the vehicle to be searched was the red Toyota Celica, TR1 81:2-6; he told her what the information at the top of the page was (her name and address), TR1 81:17-21; and he told her that the paper said that she gave permission to search the described car, TR1 81:22-23. The officer did not go over the section of the form that stated the defendant had the right to deny the officers permission to search the car because he already had the defendant's voluntary oral consent as discussed below. Moreover, as the magistrate noted, an officer is not required to tell a person that she can refuse to consent to a search. United States v. Pollington, 98 F.3d 341, 343 (8th Cir. 1996); United States v. Morris, 910 F. Supp. 1428, 1448 (N.D. Ia. 1995) ("Because no warning that consent may be refused is required, Schneckloth [v. Bustamonte], 412 U.S. [218] at 218, 93 S.Ct. at 2043, the absence of such a warning means no more than that the court must see if other circumstances suggest the voluntariness of [the defendant's] consent.").
B. Credibility Determination
Second, the defendant objects to the magistrate's decision to credit Officer Gonzalez's version and sequence of events on the evening of December 16, 1998, to the extent his version conflicted with the defendant's version. See RR at 4 n. 4. The defendant claims that the officer's testimony was less credible because he frequently had to refer to his written report and could not recall certain details.
In particular, the defendant draws attention to the officer's testimony that he drove the defendant to the police station. Officer Gonzalez even offered details of his trip to the police assembly with the defendant, such as the conversation they had about the Spanish music playing on a tape in the officer's car. TR1 89:2-23. But the defendant and Officer Henry, who conducted the dog sniff, testified that the defendant rode to the police assembly with Officer Henry. Filing No. 35 at 2, 2; Defendant's Brief at 2, n. 2.
The defendant raises other inconsistencies between Officer Gonzalez's testimony and her own. For example, Officer Gonzalez testified that when he asked the defendant first in English and then in Spanish if she would consent to a search of the car, she consented in Spanish and handed him the car keys. TR1 30:18-25; 31:21-32:19. The defendant testified, however, that the officer asked her what car she drove and when she told him that it was the red one parked outside, he asked her for the keys and left. TR1 173:7-174:12. At another point, the officer testified that he had the defendant sign the permission-to-search form before Officer Henry and his dog conducted the sniff search and that he explained it to her before she signed it. The defendant testified, in contrast, that Officer Gonzalez told her that she had to sign the form because the dog had smelled something in her car and the officers needed to take the car somewhere to check it. She also testified that she did not remember Officer Gonzalez telling her that she could refuse to consent to the search. TR1 176:15-177:24.
Because the magistrate heard the testimony of all the witnesses and observed their demeanor, I give great weight to his decision to find Officer Gonzalez's version of events and their sequence more credible. His version is not "so internally inconsistent or implausible on its face that a reasonable fact-finder would not credit it." United States v. Heath, 58 F.3d 1271, 1275 (8th Cir. 1995). Accordingly, the defendant's second objection is overruled.
C. Permission to Search
After reviewing the testimony presented at the hearing, the magistrate found that the defendant voluntarily consented to the search of the car. RR at 8. The defendant objects to this finding, contending that she did not voluntarily consent to a search either orally or in writing. The defendant is twenty-six years old and completed high school in Mexico. She states that when she was confronted by the police officers, she felt intimidated and compelled to consent to the search. Defendant's Brief at 7. She emphasizes her limited knowledge of English and her lack of criminal history as well as the failure of the officers either to give her the Miranda warnings before asking her to consent to the search or to read her the entire permission-to-search form before she signed it. Id.
Under the Fourth Amendment, whether a defendant voluntarily consented to a search is a fact question to be determined from all the circumstances. Ohio v. Robinette, 519 U.S. 33, 40 (1996). Here, the officers who came to the apartment were dressed in plainclothes. None of the officers displayed a weapon or threatened the defendant with violence. The defendant was not separated from the two other women in the apartment during events leading up to the search, nor was she restrained from moving about the apartment or put in handcuffs. The woman who had been a passenger in the defendant's car translated several key questions for the defendant, including the officers' intent to take the car to the assembly for a more thorough search. Officer Gonzalez asked for the defendant's consent to search the car in both English and Spanish. Under these circumstances, I find that the officers used no threat, coercion or intimidation to induce the defendant's consent and that she voluntarily consented to the search of her car.
D. Search at Police Station
The defendant contends that the search of her car at the police station exceeded the scope of any permission she might have given officers. The basis of this objection relates to the defendant's first objection, namely, that Officer Gonzalez did not explain the permission-to-search form and did not tell her she had a right to refuse to give consent for the search. The defendant also argues in her brief that the defendant would not have consented to a search at the assembly if she had known the officers would dismantle her car by removing the quarter panels. Defendant's Brief at 8.
While it is true that a consensual search cannot exceed the scope of the consent given, I agree with the magistrate's findings that the defendant did not limit her consent to search the car. Moreover, the police officers had the right to detain her car for further investigation once the dog alerted, regardless of the defendant's original consent. The scope of her original consent may be expanded "if the consent search yields a basis for a reasonable articulable suspicion that additional contraband may be found in places to which the consent did not initially extend." United States v. Morris, 910 F. Supp. at 1449 ( citing United States v. Casares-Cardenas, 14 F.3d 1283, 1286 (8th Cir. 1994)). The defendant may not have contemplated with her original consent that the officers would partially dismantle the car, but the dog's alert gave them a reasonable articulable suspicion that drugs were hidden within the car's structure.
Further, I agree with the magistrate that following the dog's alert, the defendant voluntarily gave the officers her consent to have the car removed from the apartment parking lot to the police assembly for a more extensive search.
E. Inevitable Discovery and Curtilage
Finally, the defendant objects that the magistrate failed to make findings of fact and conclusions of law with regard to the issues of inevitable discovery and curtilage. The inevitable discovery doctrine asks whether officers would have inevitably found the drugs in the car, even without the defendant's consent to search, once the dog alerted. The curtilage argument suggests that the car could not be searched without a warrant, despite the dog's alert, because the parking lot in which the car was parked was private property.
Because I have found that the defendant voluntarily gave her consent to the search of the car, I need not address either issue. I agree with the magistrate that the car was parked in back of the apartment building, a public area, and that the officers had the defendant's valid consent to search the car. The defendant's final objection is hence overruled.
IT IS THEREFORE ORDERED that
1. The defendant's statement of objections (Filing No. 35) to the magistrate's corrected report and recommendation (Filing No. 34) is overruled;
2. The magistrate's corrected report and recommendation (Filing No. 34) is adopted in its entirety; and
3. The defendant's motion to suppress (Filing No. 13) evidence and statements is overruled.