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United States v. Leiva

United States District Court, C.D. Illinois, Springfield Division

March 11, 2014

PAVEL LEIVA, Defendant

E-Filed: March 7, 2014.

Page 812

For Pavel Leiva, Defendant: Daniel T Hansmeier, LEAD ATTORNEY, FEDERAL PUBLIC DEFENDER, Springfield, IL; Karl W Bryning, FEDERAL PUBLIC DEFENDER, Peoria, IL.

For Amberly Michele Martin, Defendant: William L Vig, LEAD ATTORNEY, ACKERMAN LAW OFFICE, Springfield, IL.

For Paola Gallego, Defendant: Sara M Mayo, LEAD ATTORNEY, LAW OFFICES OF SARA M MAYO, Springfield, IL.

For USA, Plaintiff: Gregory K Harris, LEAD ATTORNEY, Bryan David Freres, U.S. ATTY, Springfield, IL.


Richard Mills, United States District Judge.

Page 813

This is a question of linguistic interpretation and context.

Pending before the Court is Defendant Pavel Leiva's Motion to Suppress Evidence. Defendant Leiva moves, pursuant to the Fourth Amendment of the United States Constitution, for the entry of an Order suppressing all evidence found pursuant to the alleged unconstitutional seizure and search of the Defendant's rental vehicle following a traffic stop on June 26, 2013. The Defendant seeks the exclusion of all evidence obtained as fruits of the warrantless seizure and search.

The Government filed a Response and Supplemental Response and the Defendant filed a Reply. Following an evidentiary hearing on November 6, 2013, United States Magistrate Judge Byron G. Cudmore entered a Report and Recommendation on November 26, 2013, wherein he recommended that the Motion to Suppress be Denied. On December 10, 2013, the Defendant filed an Objection to the Report and Recommendation.


A grand jury returned a two-count indictment against Defendant Leiva and two

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co-Defendants, charging them with conspiracy to possess and use counterfeit access devices, in violation of 18 U.S.C. § 1029(a)(1) & (a)(3) (" Count One" ), and possession of fifteen or more counterfeit credit cards, in violation of 18 U.S.C. § 1029(a)(3) (" Count Two" ).

The Defendant contends that the Fourth Amendment requires the suppression of all items found in the rental vehicle, in addition to any and all evidence derived from the warrantless seizure and search, including the statements made by co-Defendants Amberly Martin and Paula Gallego, as fruits of the unconstitutional seizure and search.

The Defendant alleges the officer who initiated the traffic stop did not have probable cause or reasonable suspicion to seize the vehicle. Mr. Leiva claims he did not commit a traffic violation. Moreover the Defendant, who speaks Spanish and not English, did not consent to the search of the vehicle.

Based on the testimony of Trooper Dustin Weiss and co-Defendant Martin, the magistrate judge recommends finding that there was probable cause to believe that the Hyundai Elantra driven by Defendant Leiva veered off of the main roadway of I-55 onto the emergency lane or shoulder. Martin testified that Leiva swerved onto the emergency lane. She did not know whether the Defendant used his traffic signal. Regardless of whether a signal was used, this is a traffic violation under Illinois law. See 625 ILCS 5/11-709.1. Accordingly, the magistrate judge recommends finding that the stop was valid.

The parties dispute whether the Defendant consented to the search of the rental car when he was asked, " Puedo buscar su coche?" . Veronica Espina and Tara Poetzsher, both of whom are certified to teach Spanish, and Maria Aguas, a Spanish translator, all testified that the phrase used by the officer meant, " Can I look for your car?", " Can I search for your car?", " Can I locate your car?", or " Can I get your car?" . Each testified the phrase did not mean, " Can I search your car?" . Because the Defendant claims he was never asked for consent to a search of the vehicle, therefore, he could not have provided consent.

The Government asserts that based on the context of what the officer asked and all of the circumstances, the Defendant knew that the officer was asking if he would consent to a search of the vehicle. The Government claims he answered affirmatively in both English and Spanish.

Judge Cudmore recommends finding that it was apparent the officer was asking for permission to search the car. The Report and Recommendation states that the officer testified that Defendant responded affirmatively in English by saying, " Yes," and then in Spanish, " Si." The magistrate judge recommends finding that a preponderance of the evidence establishes that Defendant consented.

Accordingly, Judge Cudmore recommends that Defendant's Motion to Suppress Evidence be Denied.



The Defendant objects to the Report and Recommendation, contending that the Court should reject the magistrate judge's recommendation and grant the Defendant's Motion to Suppress because he did not commit a traffic violation and did not voluntarily consent to a search of his rental vehicle.

The Defendant first notes that the statute instructs a magistrate judge to issue " findings of fact," see 28 U.S.C. § 636(b)(1)(B), and alleges that the Report

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and Recommendation does not set forth " findings of fact." Rather, it includes a " Statement of Facts." The Defendant claims that although it is uncertain whether the " Statement of Facts" constitutes findings, he does not believe that it can. For example, the " Statement" provides, " Weiss testified that he asked Gallego for consent to search and she agreed. Gallego testified that she was not asked for consent to search." Because the sentences contradict each other, the Defendant contends that the sentences cannot constitute " Findings." Accordingly, the Defendant argues that the Court should reject the report because it does not set forth " findings of fact," as expressly required by Congress in 28 U.S.C. § 636(b)(1)(B).[1]

The Court rejects the Defendant's interpretation of § 636(b)(1)(B). First, the Court does not believe that the statute requires the magistrate judge to ignore any and all factual disputes that may arise at an evidentiary hearing and to simply credit the testimony of one witness and designate that as his " finding," while ignoring contrary evidence. The magistrate judge must submit " proposed findings of fact." See 28 U.S.C. § 636(b)(1)(B). Trooper Weiss either asked Gallego for consent to search or he did not. Therefore, one of those statements is a " proposed finding of fact," as required by the statute. The Court concludes that the fact that an inconsistent " proposed finding of fact" is mentioned by the magistrate judge is not a proper basis for rejecting the Report and Recommendation.

To the extent the Defendant is contending that the Report and Recommendation should be rejected because a section is labeled " Statement of Facts" instead of " proposed findings of fact," see 28 U.S.C. § 636(b)(1)(B), or " proposed findings and recommendations," see 28 U.S.C. § 636(b)(1)(C), the Court disagrees and thus declines to reject the Report and Recommendation on that basis.

The Defendant next objects to the finding that " Trooper Weiss observed the Hyundai swerve onto the shoulder, or emergency lane, and then pull back onto the main roadway." See Doc. No. 53, at 2. The Defendant states that he recalls Trooper Weiss testified that the rental vehicle crossed over into the on-ramp lane leading from a rest area. The audio recording of the hearing confirms that Trooper Weiss testified the vehicle swerved onto the shoulder.

The Defendant next objects to the magistrate judge's finding that Trooper Weiss asked him to come back to his vehicle. The Defendant claims, " It is our recollection that Trooper Weiss testified that he ordered Leiva to exit the rental vehicle and walk to Weiss's patrol vehicle by announcing the command from the patrol vehicle. At this point, Gallego would have translated the command for Leiva." See Doc. No. 55, at 3. The Court finds that it is not clear from the recording whether the command was issued while Weiss was at the passenger window of the rental car or at his patrol vehicle.

Based on Trooper Weiss's testimony, the magistrate judge found that " Weiss could see the artery in Leiva's neck pulsate." See Doc. No. 53, at 3. The Defendant notes that Weiss also testified that he had no idea how Mr. Leiva's carotid artery typically pulsated.[2] Weiss

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testified consistent with both statements. Therefore, the Defendant's objection to the finding is without merit.

The magistrate judge next found that Trooper Weiss asked the Defendant, " Pueda buscar su coche?" See id. The Defendant objects to the finding and claims Weiss testified that he asked Leiva, " Puedo bucar su coche?" He alleges that the form used by Weiss included the phrase " Puedo buscar su coche." It is not apparent from the recording of the hearing precisely which of the above phrases was used. In answering a question on cross-examination, it appears Weiss testified that he used the word " buscar."

The magistrate judge found that Trooper Weiss believed the phrase meant, " Can I search your car?" The report and recommendation provides that Leiva responded, " Yes," and nodded his head. Weiss said, " Si?" The Defendant responded, " Si." See Doc. No 53, at 3.

The Defendant objects to this finding, claiming that it is incredible that Defendant responded with the English word " Yes," because he speaks no English whatsoever. Maria Aguas testified that in the numerous hours she has translated for the Defendant, she has never heard him utter the English word " Yes." The two co-Defendants also testified ...

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