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United States v. Calvo-Saucedo

April 9, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JOSE CALVO-SAUCEDO, DEFENDANT.



The opinion of the court was delivered by: Herndon, Chief Judge

MEMORANDUM & ORDER

I. Introduction

Before the Court is Defendant's Motion to Quash Arrest and Suppress Evidence (Doc. 22), to which the Government has responded in opposition (Doc. 29). On March 10, 2010, the Court conducted a hearing on the Motion (see Minutes, Doc. 34), at which time the Court took the matter under advisement. Having considered the arguments and evidence offered by the Parties, the Court is now ready to issue a ruling upon the merits. For the reasons discussed herein, Defendant's arrest as related to this case shall not be quashed nor the evidence suppressed.

II. Background

The factual details within the Parties' briefs and the additional witness testimony during the hearing comprise the background facts pertinent to Defendant's suppression motion.

Defendant Jose Luis Calvo-Saucedo has been charged with possession with the intent to distribute 5 kilograms or more of cocain hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) (Doc. 13). This charge arose from his arrest on November 13, 2009, following a traffic stop of Defendant's car for improper lane usage. On November 13, 2009, on-duty Officers Kevin Thebeau of the Granite City Police Department and Todd Huskey of the Troy Police Department observed Defendant driving a white Pontiac Grand Am traveling North on Interstate 55 ("I-55). The Officers' car was driving directly behind the Pontiac; they became slightly suspicious upon noticing the driver repeatedly reaching over and down towards the passenger side of the vehicle. The Pontiac continued past the intersect with Interstate 70 ("I-70"), when it abruptly veered right and headed through the grassy median, onto the exit ramp for eastbound I-70. Due to Defendant's improper lane usage, the Officers initiated a traffic stop.

Officer Thebeau approached the Pontiac from its passenger's side and knocked on its window. Officer Thebeau noted that it took Defendant several attempts to find the button and roll down the window, as his hands were shaking. Officer Thebeau also testified that Defendant seemed very nervous, was taking short, rapid breaths and that he had a very unkept appearance. Further, Officer Thebeau noticed that Defendant's car was also unkept, with various food wrappers and other trash scattered inside. He proceeded to ask Defendant for some identification. Defendant produced an Indiana driver's license identifying him as "Jose Luis CalvoSaucedo." When Officer Thebeau then asked Defendant what his travel plans were, he replied that he had been visiting a friend in St. Louis and was on his way home. Officer Thebeau further testified that he observed a Mexican passport sitting on the console of Defendant's vehicle, and that they key chain in the vehicle's ignition only had one key on it.

Officer Thebeau also testified that when Defendant rolled down the window of the passenger-side door, he noticed distinct chemical odor coming from inside of Defendant's vehicle, which smelled similar to a silicone material. However, Officer Thebeau stated that he could not identify any legitimate use of any silicone or other caulking material on Defendant's vehicle. Officer Thebeau then told Defendant he would have to issue him a written warning for improper lane usage. While he was writing up the traffic warning in his police car, Officer Thebeau testified that Defendant was again acting suspicious because he kept turning around to look at the Officers and fidgeting in his seat.

Officer Thebeau returned to Defendant's car and gave him the written traffic warning, telling Defendant he was free to go. However, Officer Thebeau then asked Defendant if he would come back to their police car to talk to them. Defendant agreed and exited his vehicle and stood outside to talk to the Officers. Officer Thebeau asked Defendant if he had any illegal narcotics in his car, to which he stated he did not. Officer Thebeau next asked Defendant if he could search the vehicle. Again, Defendant agreed. Because it appeared that Defendant did not speak much English, Officer Thebeau asked him if he knew what he meant by the term "search," and Defendant replied that he did. While Officer Thebeau proceeded to search Defendant's vehicle, Defendant stood outside and to the rear of the vehicle, talking with Officer Huskey.

During the search, Officer Thebeau attempted to find the source of the silicone smell that was emanating from inside the vehicle. He proceeded to remove a rubber strip from the front door rocker panel on the passenger side. To do so, Officer Thebeau used a pocket knife to first remove the pressure clips, and then lifted the cover off of the rocker panel, exposing several small holes. He then shined a flashlight into a hole and observed something inside, which resembled cloth. Officer Thebeau inserted the tip of his knife into the hole and drew out a white powdery substance. He asked Defendant if this powder was cocaine or anything else illegal and stated that Defendant said it was not. Believing a further search of the vehicle would become more intrusive,*fn1 Officer Thebeau then asked Defendant if he would sign a written search consent. He asked Defendant to read and sign both the English and Spanish version of the written consent to search form. The white powdery substance subsequently tested positive for cocaine. The Officers placed Defendant under arrest for cocaine trafficking. As a result of a more thorough search of Defendant's vehicle, ten kilo-sized bundles of cocaine were recovered.

III. Discussion

Defendant argues that the search of his vehicle -- in particular, the dismantling of the passenger side, front door rocker panel -- violated his Fourth Amendment rights because it exceeded the scope of his consent. In response, the Government counters that the search of Defendant's vehicle was within the scope of his consent and further, that probable cause supported the initial search of the rocker panel area. It is undisputed that Defendant gave his verbal consent for the Officers to search his vehicle and that he did not verbally limit this consent nor did he ever object to any portion of the search while it was being conducted. However, Defendant offers that the standard for measuring the scope of one's verbal consent under the Fourth Amendment is one of objective reasonableness and therefore would not include any means of searching considered to be inherently invasive or destructive to the vehicle. See Florida v. Jimeno, 500 U.S. 248, 250-51 (1991); see also United States v. Torres, 32 F.3d 225 (7th Cir. 1994); United States v. Garcia, 897 F.2d 1413 (7th Cir. 1990). Along these lines, Defendant asserts that Officer Thebeau's search of the vehicle's rocker panel was "inherently invasive and not normally included in the set of areas to be searched" (Doc. 23, p. 3). As such, Defendant believes the search exceeded his consent in that the typical person would not have anticipated the Officer's search to include the dismantling of the rocker panel. Defendant compares the facts of this case to Garcia, where the Seventh Circuit held that a suspect's verbal consent to search the vehicle would not include the opening of door panels, finding this to be inherently invasive and exceeding the scope of consent. 897 F.2d at 1419-20. Moreover, Defendant argues that his subsequently-obtained written consent to a more intrusive search will not serve as a cure-all to the Fourth Amendment violation, which had already occurred when Officer Thebeau first searched the rocker panel area. Due to this alleged Fourth Amendment violation, Defendant requests that his arrest be quashed and the evidence seized from the vehicle as a result of the illegal search be suppressed.

The Parties also do not dispute that the traffic stop which subsequently lead to the contested search was proper. In addition, it remains undisputed that Defendant's verbal (and written) consent to search his vehicle was "freely and voluntarily given."*fn2 See Garcia, 897 F.2d at 1419 (free and voluntary consent to search is one of the exceptions to the constitutional requirements of both a warrant and probable cause). Lastly, it is undisputed that the Officers did not obtain a search warrant before searching Defendant's vehicle. Therefore, the Court must determine whether the search violated Defendant's Fourth Amendment rights.

The Fourth Amendment protects individuals from "unreasonable searches and seizures" conducted by the government when unsupported by probable cause. U.S.CONST.amend. IV. "When evidence is obtained in violation of the Fourth Amendment, the exclusionary rule precludes the use of such evidence and its fruits in criminal proceedings against the victim of the violation." United States v. Merritt, 361 F.3d 1005, 1009 (7th Cir. 2004). One of the exceptions to the probable cause requirement is when consent to search is given by the owner of the object or premises to be searched, in this case, Defendant's vehicle. Garcia, 897 F.2d at 1419. However, as Garcia explained, "the scope of a consent search is ...


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