United States of America v. $45,000.00 in United States Currency and 2001 Itasca Suncruiser Mobile Home, VIN5B4LP57G013332941

Filing 43

MEMORANDUM AND ORDER - Soto's objection (filing 41 ) is overruled. Ordered by Judge John M. Gerrard. (AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNITED STATES OF AMERICA,
Plaintiff,

8:12-CV-320

vs.
MEMORANDUM AND ORDER
$45,000.00 IN UNITED STATES
CURRENCY AND 2001 ITASCA
SUNCRUISER MOBILE HOME,
VIN5B4LP57G013332941,
Defendant.
This matter is before the Court on claimant Hugo L. Soto's objection
(filing 41) to the Magistrate Judge's Memorandum and Order (filing 38)
denying Soto's motion to suppress (filing 16). A district court may reconsider
a magistrate judge's ruling on nondispositive pretrial matters only where it
has been shown that the ruling is clearly erroneous or contrary to law. See,
28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); Ferguson v. United States, 484
F.3d 1068 (8th Cir. 2007). The Court has carefully considered the record, the
parties' briefs, and the Magistrate Judge's Memorandum and Order. The
Court concurs with the Magistrate Judge's ultimate finding and will deny
Soto's objection.
FACTUAL BACKGROUND
The pertinent facts are set forth in the Magistrate Judge's
Memorandum and Order. Soto has not objected to the Magistrate Judge's
basic statement of the facts, although he disputes some specific matters and
some of the inferences the Magistrate Judge drew from the facts. The Court
finds that the Magistrate Judge accurately stated the pertinent facts, and so
the Court will only set forth a brief summary of the facts.
This case arises from a traffic stop conducted by Nebraska State
Trooper Derek Kermoade. On the night of February 29, 2012, Soto was
driving a recreational vehicle ("RV") westbound on Interstate 80. Kermoade,
who was driving behind Soto, observed the RV activate its turn signal and
then change lanes. Believing that the driver had failed to use the turn signal
for the entire duration required by Neb. Rev. Stat. § 60-6,161, Kermoade

initiated a traffic stop. The traffic stop and the following events were
recorded by a camera in Kermoade's cruiser, and the Court has reviewed the
audio and video of the recording.
Kermoade asked Soto to join him in the patrol car while Kermoade
completed a written warning and contacted dispatch to check Soto's license
and registration. Throughout this process, Kermoade asked Soto about the
nature of Soto's trip and about the other passengers in the RV. Kermoade's
tone was calm and conversational throughout the process.
Approximately 20 minutes after initiating the traffic stop, Kermoade
issued Soto a warning for failure to properly signal his lane change and
returned Soto's paperwork. Kermoade then told Soto he was "good to go," but
then asked if he could ask Soto a few more questions. Soto agreed. Kermoade
asked if there were any drugs or weapons in the RV, which Soto denied.
Kermoade then asked if there were any large amounts of cash in the RV,
which Soto also denied. Kermoade then asked for consent to search the RV, to
which Soto agreed. Soto then signed a written consent form.
Upon searching the RV, Kermoade discovered over $40,000 in U.S.
currency. The United States has seized the currency and RV, alleging they
are property arising from or facilitating drug-related criminal activity. Soto
claims the currency and RV were obtained lawfully and demands their return
(filing 9).
ANALYSIS
Soto has moved to suppress the search of the RV, arguing that (1) the
officer lacked lawful cause to stop the RV; (2) his consent to the search was
not valid; and (3) even if his consent was valid, it was not sufficient to purge
the taint of the illegal stop. Soto now also argues that the stop was unlawful
because the statute cited for the stop, Neb. Rev. Stat. § 60-6,161, is
unconstitutionally vague.
I. Probable Cause for the Traffic Stop
A traffic stop is reasonable if it is supported by either probable cause or
an articulable and reasonable suspicion that a traffic violation has occurred.
United States v. Herrera-Gonzalez, 474 F.3d 1105, 1109 (8th Cir. 2007).
However, even if the officer was mistaken in concluding that a traffic
violation occurred, the stop does not violate the Fourth Amendment if the
mistake, whether of fact or law, was an objectively reasonable one. Id.; see
also United States v. Payne, 534 F.3d 948, 951 (8th Cir. 2008).
Kermoade stopped Soto because he believed Soto had failed to use his
turn signal for 100 feet prior to changing lanes, as required by Neb. Rev.
Stat. § 60-6,161. At the hearing, Soto and the United States both presented
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testimony from experts regarding the stop. Both experts agreed that Soto in
fact traveled for over 100 feet with his turn signal activated before changing
lanes.
Soto's expert, civil engineer Peter Himpsel, reviewed the video and
concluded that after Soto activated the turn signal, the RV continued
traveling straight in its lane for 0.7 seconds before beginning to move
laterally to the other lane, and that it started crossing the line separating the
lanes approximately 1.4 seconds after signaling. Based on an estimated speed
of 65 miles per hour, Himpsel opined the RV traveled 67 feet before beginning
to move laterally and 204 feet before crossing the line.
The United States presented testimony from Pedram Nabegh, a
Nebraska State Patrol officer trained in accident reconstruction. Nabegh
agreed that Soto's RV would have traveled straight for 0.7 seconds. He
disagreed slightly on the remaining points. Nabegh estimated Soto's speed as
60 miles per hour. At that speed, Soto would have traveled straight for 62
feet. And based on his own analysis, Nabegh concluded that Soto began to
cross the line after having used his signal for 147 feet.
The Magistrate Judge found that although Soto did not, in fact, violate
Neb. Rev. Stat. § 60-6,161, Kermoade's mistake was not objectively
unreasonable, thus Kermoade had sufficient cause to believe Soto had
violated the statute to initiate a traffic stop. This Court need not decide
whether Kermoade was unreasonably mistaken. As the Court next explains,
even if the stop was not lawful, Soto's consent was sufficient to purge the
resulting taint.
II. Consent to Search
Even if a traffic stop is determined to be invalid, subsequent voluntary
consent to a search may purge the taint of that illegal stop if it was given in
circumstances that render it an independent, lawful cause of the officer's
discovery. Herrera-Gonzalez, 474 F.3d at 1111. The Magistrate Judge found
that Soto voluntarily consented to the search of his RV. This Court has
considered the facts and the relevant factors, see United States v. Esquivias,
416 F.3d 696, 700 (8th Cir. 2005), and likewise finds that Soto's consent was
voluntary.
Even if Soto's consent was voluntary, the Court must also consider
whether it was given in circumstances that render it an independent, lawful
cause of the officer's discovery. Herrera-Gonzalez, 474 F.3d at 1111. To
determine whether sufficient attenuation exists between the unlawful stop
and the consent, the Court considers: (1) the temporal proximity between the
illegal stop and the consent; (2) the presence of intervening circumstances;
and (3) the purpose and flagrancy of the official misconduct. Id. The Court
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must carefully weigh the facts of each case, and no single fact is dispositive.
Id. However, the purpose and flagrancy of the official misconduct is the most
important factor, because it is directly tied to the purpose of the exclusionary
rule: deterring police misconduct. Id. The Magistrate Judge carefully
considered the evidence under these factors and concluded that Soto's consent
was sufficient to purge the taint, if any, of the traffic stop.
This Court finds likewise. First, Soto's consent was given within
approximately 20 minutes of the stop. This length of time is not short or long
enough to weigh significantly in the Court's analysis. See id.
Second, there were at least some intervening circumstances. Although
Kermoade did not verbally inform Soto he could refuse consent to the search,
the form that Soto signed contained an advisement to the effect. Filing 34 at
108. And Kermoade only asked for consent to search after returning Soto's
paperwork, issuing a warning ticket, and telling Soto he was "good to go." All
of these weigh in favor of finding a "break" between the stop and Soto's
consent to search. See United States v. Esquivel, 507 F.3d 1154, 1160 (8th
Cir. 2007). Kermoade also testified that Soto appeared unusually nervous
and was sweating. And although Soto answered clearly when asked if there
were drugs or guns in the car, he hesitated and looked at the RV before
denying there were large amounts of currency in the RV. See HerreraGonzalez, 474 F.3d at 1112–13 (facts that gave officer "some suspicion" of
criminal activity relevant to second factor).
As to the third and most important factor, the Court finds that the
traffic stop, even if illegal, was not a flagrant Fourth Amendment violation.
Even assuming Kermoade was mistaken, and that his mistake was
objectively unreasonable, that alone is not sufficient to establish flagrant
misconduct. Id. at 1113. That is especially true where, as here, the officer's
mistake is a matter not of seconds, but fractions of seconds. Finally, nothing
in the record suggests that Kermoade was attempting to exploit an illegal
situation or acted in bad faith in asking for consent. Id. at 1114. The Court
therefore finds that Soto's consent was valid and sufficiently an act of free
will to purge the taint, if any, of the traffic stop.
III. Soto's Vagueness Challenge to Neb. Rev. Stat. § 60-6,161
Finally, Soto argues that Neb. Rev. Stat. § 60-6,161 is
unconstitutionally vague, as it gives police "unbridled authority to stop any
car on the road at any time." Filing 41 at 16. The Court need not reach the
merits of Soto's final argument. Soto's consent was sufficiently an act of free
will to purge the taint, if any, of the traffic stop, including any due process
concerns raised in Soto's vagueness challenge.

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THEREFORE, IT IS ORDERED that Soto's objection (filing 41) is
overruled.
Dated this 19th day of December, 2013.
BY THE COURT:

John M. Gerrard
United States District Judge

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