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United States v. Ramirez

March 23, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ARTURO RAMIREZ, JR., DEFENDANT.



The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge

OPINION

This matter comes before the Court on Defendant Arturo Ramirez's Objection to Report and Recommendation (d/e 77) (Objection). Ramirez's Omnibus Pretrial Motions (d/e 59) (Motions) ask the Court to suppress evidence and dismiss the Indictment (d/e 7). On January 28, 2009, United States Magistrate Judge Byron G. Cudmore held an evidentiary hearing on the Motions. On February 2, 2009, Judge Cudmore entered a Report and Recommendation (d/e 75), recommending that this Court deny the Motions. Ramirez now objects to the Report and Recommendation. After careful review of the evidence de novo, the Court overrules the Objection, adopts the Report and Recommendation, and denies the Motions.

STATEMENT OF FACTS

Judge Cudmore thoroughly set forth the evidence presented at the evidentiary hearing in the Report and Recommendation. Report and Recommendation, at 2-33. The Court, therefore, only summarizes the evidence relevant to the Objection. Illinois State Trooper Nathan Miller testified that on February 12, 2007, at approximately 3:40 p.m., he was assisting another officer on a call near mile post 117 on Interstate 55 (I-55). Transcript of Proceedings on January 28, 2009 (d/e 80) (T.), at 60. At that time, he saw a broken windshield on a tractor-trailer driving northbound on I-55. After completing his assistance of the other officer, he drove northbound to find the tractor-trailer.

Miller stopped the tractor-trailer at mile post 133. T., at 60. He directed the driver, Defendant Ramirez, to get out of the tractor-trailer and sit with him in the squad car. Miller issued Ramirez a warning for the broken windshield. The Government admitted into evidence a copy of the warning citation issued and photographs that Miller identified as pictures of the cracked windshield. T., at 62; Government Exhibits 1A-1D & 2.

In addition to the traffic stop, Miller also decided to conduct an inspection of the tractor-trailer. Miller was certified to inspect commercial vehicles. Miller testified that he believed he was certified to conduct inspections that included inspecting the suspension, exhaust and fuel components of commercial vehicles, referred to as "Level 2" inspections. T., at 64-65. In fact, that certification had lapsed. Miller was only certified to conduct less extensive inspections, referred to as Level 4 and Level 3 inspections. Level 3 inspections included reviewing the driver's documents and log books. T., at 65.

Miller initially inspected Ramirez's log book and documents. Miller found discrepancies in Ramirez's log and documents. T., at 70-76; Government Exhibit 4. He testified that Ramirez also seemed nervous. T., at 69. Miller conducted a check on Ramirez's criminal record and discovered that he had an extensive criminal record, including arrests for trafficking marijuana, involuntary homicide, aggravated assault, and attempt to commit capital murder. T., at 76-77. Ramirez also admitted transporting 30 pounds of marijuana in the past. T., at 77. Miller testified that Ramirez made an unsolicited offer to let Miller search the truck. T., at 78. Miller testified that he did not accept the invitation at that time. Miller testified that he later asked Ramirez for permission to search both the tractor and the trailer, and Ramirez gave his consent to the search. T., at 79-80. Miller then testified that he called for back-up in light of Ramirez's criminal record. T., at 80.

Officer Anthony Maro arrived to assist with a canine search. T., at 180. Maro was a canine officer. He arrived with his dog Vik. Maro had Vik perform a walk-around on the tractor and trailer. Maro testified that Vik alerted once on the trailer. T., at 182. Vik alerted by sitting accompanied by a breathing change and a body posture change. T., at 182. Thereafter, Miller had Ramirez open the trailer. The officers found crates of avocados surrounding 1,260 pounds of marijuana. The officers also found 19 kg. of cocaine.

Miller testified that he then arrested Ramirez and read him his Miranda rights. T., at 83. Miller testified that he looked at his watch and noted that the time of the arrest was 4:12 p.m. T., at 153. Miller testified that Ramirez stated that he understood his rights and waived them. T., at 83. The tractor-trailer and Ramirez were then driven to a nearby seed company parking lot. At 5:49 p.m., Officer Timothy Hansen arrived. Hansen read Ramirez his Miranda rights again, and Ramirez executed a written waiver of his rights. T., at 194-95. Ramirez then agreed to cooperate with authorities. He attempted to complete the delivery to the intended purchaser in the Chicago area while under surveillance of law enforcement. The attempt failed.

Miller's car was equipped with a VHS camera. Miller testified that the camera was designed to start recording when he turned on the police lights, but, often the camera failed to turn on. He testified that he had to remove, and then reinsert, a fuse located under the hood to reset the camera. The camera would then go through a series of self-tests and then turn on. Miller testified that the time stamp that the camera placed on the video also was not accurate, and he did not know how to reset the time.

Miller testified that the camera did not come on properly when he initiated the stop of Ramirez. Miller testified that he discovered that the camera did not work properly after the drugs were found, Ramirez was arrested and given his Miranda warnings the first time. At that point, he stated that he opened the hood and pulled and reinserted the fuse. The camera went through its self-tests and then started recording. T., at 84-85.

The Government submitted the recording into evidence. The time stamp on the recording of the stop started at 18:08:04, indicating 6:08 p.m. on February 12, 2007. Government Exhibit 5, VHS Tape Recording (VHS Tape). The video, however, recorded that the relevant events occurred in daylight. The tape also showed a small amount of snow on the ground next to the road. Miller stated on the tape that he could read Miranda at any time. Id., see Government Exhibit 5T, Transcript of Audio Portion of VHS Tape Recording, at 1. Another male voice on the tape thereafter confirmed that he gave consent to the search. The voice confirmed that he consented hoping that the officers would not search. Miller testified this was Ramirez's voice. The same person also confirmed on the tape that the dog Vik "hit on it," and stated that he was carrying 1,100 pounds of marijuana. VHS Tape, see Government Exhibit 5T, Transcript of Audio Portion of VHS Tape Recording (VHS Transcript), at 3.

The camera continued to run for more than an hour after this conversation, but with no sound. The camera recorded the movement of the truck to the seed company lot and then recorded a scene of traffic passing by the lot. After approximately one hour and twenty minutes passed, the camera recorded the sun setting.

Ramirez testified at the hearing. T., at 222-23. He stated that Miller's car followed him for about twelve to fourteen miles before finally pulling him over. T., at 216. He testified that Miller did not say anything about a broken ...


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