United States District Court Eastern District of Tennessee at Chattanooga
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT CHATTANOOGA UNITED STATES OF AMERICA ) ) v. ) 1:10-cr-151 ) LEONEL LOPEZ-URQUIZA, ) Judge Collier/Carter also known as, “Juan Carlo Santiago-Rivera.” ) REPORT AND RECOMMENDATION I. Introduction The defendant’s Motion to Suppress (Doc. 21) is before the undersigned Magistrate Judge having been referred by the District Court for a Report and Recommendation pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C). Defendant Leonel Lopez-Urquiza moves to suppress all evidence obtained as a result of his detention and interrogation and the search of the vehicle he was driving on November 4, 2010 on the ground that the search was conducted during an illegal detention in violation of the Fourth Amendment and statements were obtained in violation of the Fifth Amendment. For the reasons stated herein, I RECOMMEND the defendant’s motion to suppress be DENIED. II. Relevant Facts Hearings were held on the defendant’s motion to suppress on Thursday, February 17, 2011 and Wednesday, February 23, 2011. In the February 17 hearing, Drug Task Force Officer Shane Daugherty of the 17th Judicial District testified as did Chris Smith, the Assistant Director of Interdiction of the 12th Judicial District Drug Task Force. I found their testimony to be credible. Case 1:10-cr-00151-TRM-SKL Document 36 Filed 03/14/11 Page 1 of 18 PageID #: <pageID> Officer Daugherty testified to the following: On the morning of November 4, 2010, at approximately 6:00 am, he was sitting stationary at the 130-mile marker on I-24 in Grundy County, Tennessee, monitoring westbound traffic. His vehicle was perpendicular to the westbound traffic, just to the west of a sign which marked the change of speed limit back up to 70 miles per hour. The vehicle he stopped was traveling in that portion of the westbound traffic where the speed limit was 55. He noticed the defendant’s vehicle traveling faster than 55 mph in the process of decelerating as it came down Monteagle Mountain. He turned on his radar, and clocked the vehicle traveling at 70 mph in a 55 mph zone. Logically, that means the vehicle was in fact traveling faster than 70 mph in the 55 mile per hour zone since he was able to tell it was in the process of slowing down. He pulled out and initiated a traffic stop of a Silver Nissan Armada displaying a Georgia temporary tag. Defendant first pulled his car to the left side of the freeway but Officer Daugherty directed him to move his vehicle to the right side of the freeway at a nearby exit. During the encounter, all of which is recorded on video with audio, the driver and sole occupant of the vehicle (who was later identified as the defendant, Lopez-Urquiza) handed Daugherty a Georgia Driver's License identifying him as Juan Carlo Santiago-Rivera. The defendant admitted he was speeding and said he did have at least one prior speeding ticket. He was only able to produce a bill of sale for the vehicle which showed the vehicle was purchased by another individual. The defendant was unable to provide the name of the person that the vehicle belonged to other than a first name, Sammy. He stated that he had known the owner for either 2 weeks or 2 years, Officer Daugherty was unsure which. However, the owner of the vehicle lived in Athens, Georgia, according to the documents provided by defendant and the owner was not named Sammy. The drivers license presented to Officer Daugherty indicated the 2 Case 1:10-cr-00151-TRM-SKL Document 36 Filed 03/14/11 Page 2 of 18 PageID #: <pageID> defendant also was from Athens, Georgia. This seemed somewhat inconsistent with defendant’s explanation that he was on his way to Chicago from Atlanta to see his sick sister. On several occasions the defendant would say “we” were traveling to Chicago, even though he was the only person in the vehicle. Those comments caused Officer Daugherty to recall a pickup traveling in front of the defendant with Illinois license plates. Daugherty testified he was concerned for his safety at that point because the other vehicle could have been there for protection. He was aware that drug dealers often travel in multiple cars for security purposes. While Daugherty was questioning the defendant he could see his Carotid artery pulsating and noted defendant seemed fidgety and anxious. His nervousness appeared to increase rather than subside. In Daugherty’s experience this was unusual. Officer Daugherty returned to his vehicle and asked Officer Chris Smith to come and assist on the traffic stop. Officer Smith arrived a few minutes later and began running the computer checks. Daugherty asked questions about whether there were drugs, guns or large sums of money in the vehicle. When Daugherty asked if there were guns the defendant responded “no, you can search if you want.” Daugherty then said “so you give consent” and the defendant said “yes.” Thus, the defendant gave oral consent to search the vehicle and did so in English. After the defendant gave oral consent, Daugherty then obtained a written consent to search from the defendant written in Spanish. During the duration of the traffic stop Daugherty speaks with defendant in English and defendant responds appropriately in English. Daugherty testified the defendant did not appear to have a problem understanding English. However, defendant did tell Daugherty he was more comfortable with reading in Spanish so the Spanish language consent form was given to defendant for his review. The video of the stop shows the defendant 3 Case 1:10-cr-00151-TRM-SKL Document 36 Filed 03/14/11 Page 3 of 18 PageID #: <pageID> reviewing the document for approximately a minute and then signing it. The form did not have any provision indicating the right to withdraw consent, however, at no time did the defendant do anything to indicate he wanted to withdraw his consent. After obtaining oral and written consent, Daugherty began the search. He noticed scarred bolts and missing clips around the front fenders when he raised the hood. He then searched the interior of the vehicle. After further examination under the hood where he noticed overspray on rubber grommets, he took a screwdriver and pulled back the fender well lining and could see a hole cut in the inner fender and inside that hole a red plastic wrapped container which in his experience indicated contraband or drugs were being transported. During the initial search three packages wrapped in red plastic were recovered. The defendant was placed under arrest and advised of his Miranda rights, which he stated that he understood and waived. He explained that he was being paid $1,500.00 to take the truck to Chicago and this was his first trip. He did not want to provide the name of the individuals for whom he was working. Daugherty field tested the substance found in the packaging in the fender well, and it tested positive for methamphetamine. The defendant later told agents that his real name was Leonel Lopez-Urquiza, born on May 28, 1974, and he was a citizen of Mexico. The defendant admitted that he is in the country illegally and has a prior felony drug conviction in Georgia. The vehicle the defendant was driving was impounded and searched even more thoroughly the night of November 4th. Officers discovered a fourth package of methamphetamine. 4 Case 1:10-cr-00151-TRM-SKL Document 36 Filed 03/14/11 Page 4 of 18 PageID #: <pageID> Officer Chris Smith of the 12th Judicial District Drug Task Force and Assistant Director of Interdiction testified. Smith was involved in calling BLOC to run the license given to them by the defendant. He was involved in the search and also transported defendant to the Monteagle Police Department. Smith was aware that Miranda rights had been read to the defendant He had a general conversation with the defendant in English. DEA Task Force Officer Danny Warren of the Franklin County Sheriff’s Department testified that he was involved in the arrest. He was called to the scene and spoke with the defendant. He had been advised that the defendant was read his Miranda rights. He asked if defendant wanted to cooperate to help himself out. The defendant replied no that he would go do his time. III. Analysis Police may detain a person based on probable cause to believe that person has violated a traffic law. United States v. Bradshaw, 102 F.3d 204, 210 (6th Cir. 1996) (so long as the officer has probable cause to believe that a traffic violation has occurred, the resultant stop is not unlawful and does not violate the Fourth Amendment); United States v. Ferguson, 8 F. 3d 385, 391 (6th Cir. 1993) (A traffic stop is reasonable if there is probable cause to believe a traffic violation occurred and what else the officer suspected about the driver is irrelevant). “A traffic stop is analogous to a “Terry stop” in that, following the initial stop, the subsequent detention cannot be excessively intrusive and must be reasonably related in time to the investigation.” United States v. Wellman, 185 F.3d 651, 656 (6th Cir. 1999); see also, United States v. Wilson, __F.3d__, 2007 WL 3131682, *3 (6th Cir. October 29, 2007) (“An ordinary traffic stop is like an investigative detention, the scope of which is governed by Terry [v. Ohio, 392 U.S. 1 (1968)] 5 Case 1:10-cr-00151-TRM-SKL Document 36 Filed 03/14/11 Page 5 of 18 PageID #: <pageID> principles”) (brackets added) (quoting United States v.