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United States v. Lozano-Alvarez

United States District Court, S.D. Texas, Victoria Division

December 20, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MIGUEL ANGEL LOZANO-ALVAREZ, Defendant.

          MEMORANDUM OPINION & ORDER

          J JOHN D. RAINEY SENIOR U.S. DISTRICT JUDGE.

         Defendant Miguel Angel Lozano-Alvarez is charged with conspiracy to possess with intent to distribute approximately 60 kilograms of a mixture or substance containing a detectable amount of methamphetamine. Now pending is Defendant's Motion to Suppress (D.E. 29), to which the Government responded (D.E. 32). An evidentiary hearing was held, after which Defendant filed a supplemental memorandum (D.E. 45).

         1. Factual Background

         The following evidence was presented at the hearing on Defendant's motion to suppress. See 4/29/2019 Hrg. Tr., D.E. 39.

         Fayette County Sheriff's Deputy Randy Thumman testified that on February 26, 2018, he pulled over a Chevy Tahoe with Mexican license plates after he observed that the vehicle had an obscured view of the windshield, drove on the improved shoulder, and failed to completely stop at a stop sign. Dash cam video also showed the vehicle was traveling 55 mph while exiting the highway in a 35 mph zone. The Tahoe was driven by Defendant, who was accompanied by Codefendant Alma Rosario Nieto-Villarreal.

         Before approaching the Tahoe, Sgt. Thumman called in the license plate to dispatch. Because the vehicle had a Mexican plate, he told dispatch “10-6, ” which was a directive not to give him a return unless the vehicle was stolen, used in a crime, or had any outstanding ticket warrants. He ran Defendant's license plate himself using an app on his cellphone called Check Auto MX, which provides information on the year, make, model, owner, and registration for Mexican vehicles. He also searched Border Patrol's records on his patrol car computer and learned that Defendant had traveled from Mexico to Houston and back four times since purchasing the Tahoe less than four months prior.

         The dash cam showed that Sgt. Thumman approached the vehicle at 2:27 P.M. He did not tell Defendant the reason for the stop, but immediately asked for his license, registration, and insurance card, and began asking questions about his itinerary. Defendant explained that he was headed to Houston to The Galleria and to visit his father. When asked about the duration of the trip, Defendant responded that it was for three days. Sgt. Thumman observed that Defendant was “extremely nervous, ” his hands were shaking and his carotid artery was visibly pulsating, and “there was something going on that had him a little amped up.” He next asked Defendant if his registration was expired, and Defendant said it was not. Defendant attempted to explain in Spanish when Sgt. Thumman told him to speak in English. When asked, Defendant responded that the current trip to Houston in the Tahoe was his second. Sgt. Thumman reentered his patrol car, then returned to the Tahoe and asked if there was anything illegal in the vehicle, like guns or drugs, and Defendant said no. Sgt. Thumman testified that, at the same time they were talking, he was comparing Defendant's license and registration with the information he obtained online to see if anything conflicted.

         At 2:31 P.M., Sgt. Thumman asked for consent to search the Tahoe, and Defendant said yes. Defendant and his passenger were then escorted to the side of the road. Sgt. Thumman searched the Tahoe for approximately seven minutes when he observed that the gas tank had been recently manipulated or installed and was “abnormally dense” based on the sound it made-a thud as opposed to a ping-when he tapped on it. This led Sgt. Thumman to conclude that the tank had a separate compartment that, based on his training and experience, must contain some kind of contraband, likely drugs. He also observed that the vehicle contained no luggage, which he found suspicious given Defendant's stated travel plans.

         At 2:40 P.M., Sgt. Thumman handcuffed Defendant and asked him if he had ever been arrested before and what he had in his gas tank. Defendant responded, “No entiendo (I don't understand).” Sgt. Thumman again told Defendant to speak English, and Defendant responded, “I don't understand.” Sgt. Thumman then radioed for backup. While waiting for backup to arrive, he brought out his K9 unit, Lobos, and ran him around the Tahoe. Lobos did not alert after conducting a free air sniff. Once backup arrived, Sgt. Thumman began searching under the Tahoe and asked for a scanner in order to see what the suspected drugs looked like inside the compartment and also to train his partner. He then asked his partner to get under the Tahoe and tap on the gas tank, on the bottom, and to look underneath the whole thing. At 2:46 P.M., Sgt. Thumman opened the Tahoe's gas cap and ran Lobos around the vehicle again in order to determine why Lobos didn't alert the first time and also for “training purposes.” This time, Lobos alerted near the gas tank.

         At 2:52 P.M.-roughly 25 minutes after the stop was initiated-the Tahoe was taken to a mechanic's shop, where Defendant watched in handcuffs as his vehicle was lifted. Sgt. Thumman discovered an aftermarket compartment inside the gas tank. He drilled a small hole in the tank, and liquid methamphetamine leaked out. Sixty kilograms of methamphetamine was ultimately removed from inside the tank.

         On February 27, 2018, Defendant was Mirandized in Spanish and agreed to be interviewed by Homeland Security Investigations Special Agent Steven Greenwell and Drug Enforcement Administration Special Agent Wayne Hanie. In a tape recorded interview, Defendant admitted he had been hired by unknown persons in Nuevo Laredo, Mexico, to transport liquid methamphetamine to Houston. He had made two successful trips on prior occasions and would receive $3, 000.00 into his bank account for each trip.

         II. Defendant's Motion to Suppress

         Defendant moves to suppress evidence of the methamphetamine and any statements he made following his arrest on the grounds that: (1) Sgt. Thumman unlawfully prolonged the stop by asking questions unrelated to any traffic violation; (2) there was no probable cause for Defendant's arrest; (3) Defendant's consent to search was not voluntary or an independent act of free will; and (4) the methamphetamine is fruit of the poisonous tree based on the unlawful search and arrest.[1]

         III. Analysis

         A. Did Sgt. Thumman ...


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