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United States v. Murillo-Salgado

United States Court of Appeals, Eighth Circuit

April 13, 2017

United States of America Plaintiff- Appellee
Eleuterio Murillo-Salgado Defendant-Appellant

          Submitted: November 17, 2016

         Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before RILEY, [1] Chief Judge, WOLLMAN and KELLY, Circuit Judges.

          WOLLMAN, Circuit Judge.

         Eleuterio Murillo-Salgado was charged with one count of possessing cocaine with intent to distribute, 21 U.S.C. § 841(a)(1) and (b)(1)(B), after a Missouri State Highway Patrol (MSHP) officer stopped a vehicle in which Salgado was a passenger and discovered cocaine hidden in an air-compressor tank during a search of the vehicle. The district court, adopting the report and recommendation of the magistrate judge, denied Salgado's motion to suppress the drug evidence. Salgado thereafter entered a conditional guilty plea, reserving his right to challenge the denial of his motion to suppress. The district court sentenced Salgado to sixty-three months' imprisonment and imposed a special condition of supervision ordering that Salgado be removed from the United States upon completion of his prison term. We affirm the order denying Salgado's motion to suppress. Because the district court lacked jurisdiction to enter the removal order, however, we amend the special condition of supervision to order that Salgado be surrendered to a duly authorized immigration official for removal proceedings upon completion of his prison term.

         We have reviewed the video and audio recording of the traffic stop that the government introduced at the evidentiary hearing on Salgado's motion to suppress. We recite the facts as found by the magistrate judge and the district court, supplementing only where necessary to fully portray the encounter.

         On the morning of April 7, 2014, MSHP Sergeant Larry Allen was patrolling Interstate 29 in Holt County, Missouri, when he observed a four-door Nissan truck traveling southbound in the left lane (but not passing other vehicles) and driving three miles over the posted speed limit. As he began to pursue the truck to initiate a traffic stop, Allen activated the safety lights on his patrol car, thereby triggering video and audio recording equipment.[2] The video recording time stamp indicates that the truck and the patrol car stopped on the shoulder of the highway at 10:39 a.m. As Allen approached the stopped truck, which bore California license plates, he observed a driver and a passenger in the front seats, some luggage and an air compressor in the back seat, and three packages of electrical wiring, a small ladder, a hard hat, and an "electrical type box" in the open truck bed. Allen spoke to the truck's occupants through the front passenger-side window. The driver identified himself as Ramon Arredondo, handed Allen a California driver's license, and told Allen that he and his passenger were driving from California to North Carolina. Allen instructed Arredondo to slow down and to use the left lane only for passing other vehicles, and then stated that he would issue a warning rather than a ticket. Allen asked Arredondo to exit the truck and accompany him to the patrol car while Allen completed necessary administrative tasks and wrote up the warning.

         In the patrol car, Arredondo handed Allen a rental agreement and insurance information for the truck. Allen asked Arredondo what he and Salgado did for a living, as he simultaneously began entering Arredondo's information into the vehicle's computer. Arredondo responded that he and Salgado were electricians on their way to North Carolina for a big job that would pay "cool money." Allen, still typing information into the computer, then asked Arredondo why they were driving such a long distance instead of flying. Arredondo replied that they were transporting tools and all of the electrical wiring required for the job. Allen was suspicious of Arredondo's response because Allen did not believe that the quantity of electrical wiring he had seen in the truck bed was sufficient to complete a sizeable wiring job. Allen asked Arredondo if he had ever been arrested, and Arredondo replied that he had not. In response to Allen's question why the name on the rental agreement for the truck did not match the name on Arredondo's license, Arredondo pointed out that the agreement had mistakenly listed his middle name as his last name, and he expounded on similar past mix-ups. The two then spent several minutes discussing and paging through the rental agreement. Noting that the truck had been rented for only five days, Allen asked how Arredondo and Salgado could drive to North Carolina, complete the sizeable wiring job, and return the truck in California in only five days. Arredondo explained that he had been required to pay cash for the initial rental and could afford to pay for only five days but that he intended to extend the rental period for a total of two weeks and to pay for the extension by credit card, as permitted under the agreement. He and Salgado would thus have sufficient time to drive to North Carolina, complete the wiring job, and return the truck in California. Allen asked whether it would have been less expensive to fly to North Carolina. Arredondo remarked that he had been in a traffic accident about a month earlier, described the accident in some detail, and stated that the other driver's insurance company was paying for the truck rental, a fact that had played a role in his decision to drive to North Carolina.

         Allen asked Arredondo for his social security number, but Arredondo did not have that information. Allen again asked Arredondo whether he had been arrested and whether he had ever used or transported illegal drugs, to which Arredondo replied that he had not. Allen then called dispatch and provided Arredondo's name and date of birth for an outstanding-warrants check. A minute or so passed in silence while Allen waited for a reply from dispatch, and Allen then again asked Arredondo about the electrical wiring in the truck. Arredondo replied that he believed it was twelve-gauge wire and also stated that he was not actually an electrician but merely a "helper, " who drilled holes for installation of the wiring. Allen then asked Arredondo who had rented the truck. Arredondo stated that he had and again explained that he would be reimbursed for the rental by an insurance company. The videotape reveals no signs of nervousness on Arredondo's part during these exchanges with Allen. Allen called dispatch again, informed the operator that he would be out of his patrol car for a brief period, and approached the parked truck to obtain information from the passenger. Arredondo remained in the patrol car.

         As Allen approached the truck, he saw that the passenger was talking on a cell phone while, according to Allen, attempting to hide that fact. As they spoke through the open window, the passenger told Allen that he was on the phone with the contractor for the North Carolina wiring job. Allen asked the passenger to terminate the call and provide his identification. The passenger identified himself as "Luther" and produced an expired Oregon driver's license in the name of Eleuterio Salgado. In response to Allen's questions, Salgado explained that he had lived in Oregon ten years earlier but had resided in California for the past six years. Allen asked Salgado when the truck had been rented and when he and Arredondo had left California. Salgado replied that they had rented the truck on Saturday and had left California Saturday evening at about 8:00 p.m. Salgado told Allen that Arredondo was his helper, that they chose to drive rather than to fly to North Carolina because they had to transport tools and materials, and that the job in North Carolina involved wiring a 15, 000-square-foot residence. Allen asked who was paying for the truck rental, and Salgado replied that the contractor was reimbursing them for the expense. After learning that Salgado did not know his social security number, Allen returned to his patrol car to enter Salgado's information into the vehicle's computer and call dispatch to check for outstanding warrants.

         Back in the patrol car, Allen asked Arredondo when he had left California, and Arredondo responded that they left Saturday evening. He told Allen that they had not driven all night, but had stopped at a Super 8 along the way. Arredondo then volunteered that it had been snowing when they stopped. Allen asked where the wiring job was located, and Arredondo responded that it was in Greensboro, North Carolina, and further offered that he had worked in West Virginia, Charleston, and North Carolina. He told Allen that he usually flew, but because an insurance company was paying for the rental truck, he had decided to drive on this occasion. Allen again asked who was paying for the truck, and Arredondo repeated that an insurance company was paying. During this exchange, Allen was typing information into his computer and talking to dispatch about Salgado's identity and record. Arredondo then began to describe the accident he had been in and the trouble he had been having with the other driver's insurance company, stating that he had retained an attorney to help resolve the matter. Allen again asked Arredondo whether there were any drugs, guns, or stolen items in the truck, and Arredondo again denied having any such items. Allen asked who had loaded the truck, and Arredondo replied that he and Salgado had loaded the truck together. Allen received a brief call from dispatch, notifying him that Salgado did not have a valid driver's license and that he had a criminal record, including a drug-related offense. Allen continued to type on his computer for about a minute while Arredondo waited in silence.

         Allen once again asked Arredondo whether there were any illegal drugs in the truck, going through a list of various drugs and receiving a negative reply from Arredondo regarding each substance. Finally, Allen asked Arredondo for permission to search the truck, which Arredondo consented to at 11:01 a.m., roughly twenty-three minutes after Allen had stopped the truck. Allen had not yet completed the tasks associated with the traffic stop or handed Arredondo the written warning upon obtaining Arredondo's consent to search, and so he asked whether Arredondo owned everything in the truck. Arredondo replied, "Just my clothes and everything else. Well, my clothes, " which he stated were in two bags in the back seat of the truck. Arredondo denied owning any of the tools or tool boxes, but did state that he and Salgado owned the electrical wiring in the truck bed "collectively." While waiting for MSHP Sergeant Mark Wilhoit to arrive and assist with the search, Allen conducted a pat-down search of Arredondo and directed him to exit the patrol car and stand on the embankment along the shoulder of the highway.

         Once Wilhoit arrived, Allen again approached the truck and asked Salgado about his criminal record. Salgado replied that it involved "a little cocaine." Allen then asked Salgado if there was any marijuana, cocaine, methamphetamine, or heroin in the truck, to which Salgado replied that there was not. Allen then opened the front passenger door of the truck, asked Salgado to get out of the vehicle. During his pat-down search of Salgado, Allen commented on the number of cell phones in Salgado's possession and the strong odor coming from the vehicle. Allen then directed Salgado to stand on the embankment with Arredondo. Allen did not ask Salgado for consent to search any of the items in the truck.

          Wilhoit began to search in and under the truck's bed, and Allen began to search the passenger compartment. Upon opening the rear passenger door, Allen could more clearly see the air compressor in the back seat. Allen immediately identified the smell of fresh paint, as well as "some non-factory welding on the air tank . . . underneath the motor" of the compressor. Allen then stated, "Man, there is . . . something about this that just ain't right." Looking more closely at the air compressor as it sat on the truck's back seat, Allen commented to Wilhoit, "I think it's in here. I think it's in this air compressor." He further remarked on the rough and jagged welds, stating, "Come here and look, freshly painted, welded on, that ain't right." Allen noticed that there was "a square cut underneath the motor" that he believed provided "access [to] the air tank that was probably cut open at some point and packages put in." Without removing the air compressor from the truck, the officers tapped several times on the tank to determine whether it sounded hollow. Wilhoit then lifted the air compressor from the seat and hefted it several times in an attempt to determine if something inside the air tank would noticeably shift, commenting that the compressor felt heavier than it should. Wilhoit placed the compressor on the ground next to the truck and asked Allen to retrieve his "density buster, " described by Allen as a "glorified stud finder, " to use on the exterior of the tank. After applying the density buster to the exterior of the tank, Allen concluded that ...

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