USA v. Tuttle et al.

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
ADAN JAMES CORONA,
Defendant.
5:17-CR-50049-JLV
REPORT AND RECOMMENDATION
Pending is Defendant’s Motion to Suppress (Doc. 122). 	An evidentiary
hearing was held on Wednesday, August 29, 2018. 	Defendant was personally
present and represented by his attorney of record, John Murphy. 	The
Government was represented by the Assistant United States Attorneys Sarah
Collins and Kathryn Rich. 	Two witnesses testified at the hearing. 	Two exhibits
were received into evidence. 	Supplemental briefing concluded on November 26,
2018. 	Based on a careful consideration of all the evidence, and counsel’s
written and oral arguments, the Court respectfully makes the following:
RECOMMENDATION
It is respectfully recommended that Defendant’s Motion to Suppress be
denied.
JURISDICTION
Defendant is charged in a Second Superseding Indictment with First
Degree Murder (Premeditated) and First Degree Murder (Felony Murder), in
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violation of 18 U.S.C. §§ 1111(a), 2, 1152 & 1153; Conspiracy to Commit
Assault, in violation of 18 U.S.C. §§ 113(a)(3), 1152, 1153, & 371; Use of a
Firearm during a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii);
and Possession of Ammunition by a Prohibited Person, in violation of 18 U.S.C.
§ 922(g)(1). 	The pending Motion was referred to the Magistrate Judge pursuant
to 28 U.S.C. § 636(b)(1)(B) and Chief Judge Jeffrey L. Viken’s Standing Order
dated April 1, 2018.
FACTUAL BACKGROUND
Denver Police Officers Arturo Garcia and Bruce Kay testified at the
August 29, 2018, evidentiary hearing. 	The court finds their testimony credible.
For approximately two years, Officer Garcia has served on the Denver Gang
Bureau patrolling neighborhoods in northeast Denver that have high gang
activity. 	Officer Kay has worked on the Gang Bureau for approximately five
years. 	Before working on the Gang Bureau, both officers served on proactive
units tasked with handling gang crimes and other major issues in northeast
Denver. 	At the hearing, the officers provided background on Denver’s gang
activity and described the events leading to Defendant Adan Corona’s arrest on
October 20, 2016.
Northeast Denver contains various gangs, including the Park Hill Bloods,
the CMG Bloods, Chiqui 30s, East Side Crips, and East Side Oldies. 	(Doc. 247
at p. 5, 82). 	Gang members are often identifiable by tattoos, as well as by what
they wear: East Side Oldies are known to wear black and frequently don
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Chicago White Sox attire, while Crips wear blue attire and Bloods wear red
attire. 	(Id. at p. 74–75).
On October 20, 2016, Officers Garcia and Kay were on routine patrol in a
high-crime neighborhood in northeast Denver. 	(Id. at p. 6, 78). 	This particular
neighborhood is associated with the East Side Oldies and the Crips. 	(Id. at p.
12, 82). 	The Oldies and Crips are rivals and constantly engage in gang-
motivated violence, typically shootings, within the neighborhood. 	(Id. at p. 12).
Oldies and Crips members are commonly armed and often carry drugs; Officer
Garcia described personally removing firearms and drugs from gang members
in that neighborhood. 	(Id. at p. 20).
At approximately 7:30 p.m. on October 20, 2016, Officers Garcia and Kay
passed an Acura four-door sedan headed the opposite direction with no front
license plate. 	(Id. at p. 6, 8, 81). 	Colorado is a two-plate state. 	The officers
saw no rear plate when they passed the vehicle, so they turned around to get
behind it. 	(Id. at p. 7). 	The officers were able to see a temporary tag in the rear
window. 	When they approached, they observed that the temporary tag expired
in June 2016. 	(Id.). Driving with expired tags constitutes a traffic violation in
Colorado. 	(Id. at p. 25). 	Based on the traffic violation, the officers initiated a
traffic stop of the vehicle. 	(Id. at p. 7–8).
Officer Garcia walked up on the passenger side of the stopped vehicle,
and Officer Kay approached the driver’s side occupants. 	(Id. at p. 8). 	A female
sat in the driver’s seat, another female occupied the passenger seat, and two
males sat in the backseat with a toddler between them in a car seat. 	(Id. at p.
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8–9, 13). 	Officer Garcia immediately noticed that the male in the passenger-
side backseat—Mr. Corona—appeared extremely nervous and fidgety, had
tattoos indicating possible gang membership, and had a black White Sox hat
on his lap. 	(Id. at p. 9, 11, 32, 34). 	Based on these factors, Officer Garcia
became suspicious that Mr. Corona was a gang member. 	(Id. at p. 11, 32–34).
Meanwhile, Officer Kay made contact with the driver of the vehicle. 	(Id.
at p. 80). 	He observed two male passengers in the backseat, with a child
between them. 	(Id. at p. 81). 	While talking with the driver, Officer Kay noticed
that Mr. Corona kept looking around, appeared nervous, and had a black
White Sox hat on his lap. 	(Id. at p. 82). Officer Kay also observed Mr. Corona’s
neck tattoos. 	(Id.).
In a typical traffic stop, the officers would obtain all vehicle occupants’
names and birthdates, but Officer Garcia focused first on Mr. Corona based on
his nervous behavior. 	(Id. at p. 33). 	Mr. Corona said he did not have an ID,
but stated his name was Jonathan Rojas and provided a date of birth. 	(Id. at
p. 9). 	This interaction occurred less than a minute after the officers pulled the
vehicle over. 	(Ex. 1 at 00:55). 	The officers then returned to the patrol vehicle.
While walking back to the patrol vehicle, Officer Kay asked Officer Garcia,
referring to Mr. Corona, “What is he, an Oldie?” and “Is he gonna run?” 	(Doc.
247 at p. 84–85; Ex. 1 at 1:41–49). 	Officer Garcia ran a warrants check on
Jonathan Rojas, which stated “no record found.” 	(Doc. 247 at p. 10). 	An in-
house record check returned a similar name, but the mugshot tied to that
name clearly was not Mr. Corona. 	(Id.). Based on these results, Officer Garcia
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suspected Mr. Corona had given a false name. 	(Id.). 	Based on the officers’
observations—Mr. Corona’s nervousness, appearance indicating gang
membership, apparent false name, and the fact they were in a high-crime
neighborhood with frequent gang shootings—the officers decided to remove
Mr. Corona from the Acura. 	(Id. at p. 10–11). 	Officer Garcia returned to the
Acura and asked Mr. Corona to step out of the car. 	(Id. at p. 40–41). 	At this
point, approximately four minutes had passed since the car was first pulled
over. 	(Ex. 1 at 3:51).
After Mr. Corona stepped out of the car, Officer Garcia patted him down
for weapons. 	(Doc. 247 at p. 11). 	Officer Garcia observed that Mr. Corona was
sweaty and shaking, even though it was chilly outside, and was looking around
as though he would attempt to flee or fight. 	(Id.). 	Based on these observations,
Officer Garcia placed Mr. Corona in handcuffs. 	(Id.). 	As they walked back
towards the patrol vehicle, Officer Garcia again asked Mr. Corona what his
name was, and he replied with his correct name. 	(Id. at p. 12). 	When they got
into the patrol vehicle, Mr. Corona said he had warrants. 	(Id. at p. 13). 	At that
point, based on the high-crime neighborhood and Mr. Corona’s behavior,
Officer Garcia asked Mr. Corona if there were guns or drugs in the vehicle.
(Id.). 	Mr. Corona did not answer, but when asked again, he acknowledged
there was a firearm in the vehicle. 	(Id.). At this point, the stop had lasted
approximately five minutes. 	(Ex. 1 at 5:20).
Officer Garcia immediately notified Officer Kay and other backup officers
that there was a firearm in the vehicle. 	(Doc. 247 at p. 16; Ex. 1 at 5:20). 	The
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child was unsecured and moving around in the vehicle as the officers removed
each person individually from the vehicle. 	(Ex. 1 at 6:11). 	After about three
minutes of searching, the officers found the firearm hidden in the rear pouch of
the driver’s seat. 	(Doc. 247 at p. 16–17; Ex. 1 at 8:09). 	After the officers
secured the scene and removed the firearm, Officer Garcia returned to the
patrol vehicle and read Mr. Corona his Miranda rights. 	(Doc. 247 at p. 17).
Mr. Corona stated he understood his rights and wished to talk to Officer
Garcia. 	(Id. at p. 18). 	He then explained he hid the firearm because he knew
the officers would discover his true identity and learn he had warrants, and he
hoped they would not find the weapon. 	(Id.).
On November 22, 2017, a federal grand jury returned a Superseding
Indictment in the District of South Dakota alleging that Mr. Corona and others
murdered Vincent Von Brewer III in Pine Ridge, South Dakota on October 16,
2017. 	(Id.). 	Mr. Corona was arrested in Colorado on November 30, 2017.
DISCUSSION
Mr. Corona asks this court to suppress evidence obtained during the
search of the vehicle, as well as any statement he made to law enforcement
during the traffic stop. 	Mr. Corona argues that the officers had no justification
to expand the scope of the traffic stop; after the officers initiated the traffic
stop, he was under de facto arrest; the officers thereafter elicited incriminating
statements from him in violation of his Miranda1 rights, causing him to admit
to giving a false name, being a fugitive, and possessing a gun; Officer Garcia’s
1 	Miranda v. Arizona, 384 U.S. 436, 472 (1966).
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belated Miranda advisement did not cure the initial violation; law enforcement
improperly searched the vehicle; and the public safety exception does not apply
to the case. 	(Doc. 176 and Doc. 270).
I. 	Mr. Corona has no standing to challenge the vehicle search
A defendant challenging a search has the burden to establish Athat he
personally has an expectation of privacy in the place searched, and that his
expectation of privacy is reasonable . . . .@ 	Minnesota v. Carter, 525 U.S. 83, 88
(1998). 	The challenger must prove that the expectation of privacy is
subjectively reasonable and objectively reasonable, Athat is, one that society is
willing to accept.@ 	United States v. McCaster, 193 F.3d 930, 933 (1999).
“Generally, a mere passenger does not have standing to challenge a vehicle
search where he has ‘neither a property nor a possessory interest in the
automobile.’” 	United States v. Anguiano, 795 F.3d 873, 876 (8th Cir. 2015)
(quoting Rakas, 439 U.S. at 148).
Here, there are no facts conclude that Mr. Corona had an ownership
interest in the vehicle nor did his name appear on any ownership documents.
See Barragan, 379 F.3d at 530. 	Furthermore, Mr. Corona fails to prove any
facts showing he had a reasonable expectation of privacy in the vehicle and
was anything more than a mere passenger. 	See Anguiano, 795 F.3d at 876.
Because Mr. Corona was a mere passenger, he had no legitimate expectation of
privacy in the vehicle, and accordingly has no standing to challenge the search.
See Rakas, 439 U.S. at 143. 	Assuming arguendo that Mr. Corona has standing
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to challenge the search, the court will analyze the constitutionality of the
search.
II. 	Whether the officers had reasonable suspicion to expand the scope of
the initial traffic stop
When a law enforcement officer stops a motor vehicle and questions its
occupants, the stop constitutes a seizure under the Fourth Amendment, “even
though the purpose of the stop is limited and the resulting detention quite
brief.” 	Brendlin v. California, 551 U.S. 249, 255–56 (2007) (internal citations
omitted). 	A stop of the driver of a vehicle results in a seizure under the Fourth
Amendment of all occupants of the vehicle. 	Id.
A traffic stop is legal under the Fourth Amendment if it is supported by
probable cause to believe that a violation of law has occurred. 	Whren v. United
States, 517 U.S. 806, 810 (1996). 	“An officer has probable cause to conduct a
traffic stop when he observes even a minor traffic violation. 	This is true even if
a valid traffic stop is a pretext for other investigation.” 	United States v. Sallis,
507 F.3d 646, 649 (8th Cir. 2007) (internal citations and quotations omitted).
Mr. Corona does not challenge the validity of the initial traffic stop based on
the license plate infraction. 	(Doc. 270 at p. 1–2).
After an initial stop, the resulting detention must be no longer than
reasonably necessary and must be reasonably related to the circumstances
which initially justified the stop. 	Illinois v. Caballes, 543 U.S. 405, 407 (2005);
United States v. Sharpe, 470 U.S. 675, 685–87 (1985); Florida v. Royer, 460
U.S. 491, 500 (1983); Terry v. Ohio, 392 U.S. 1, 30 (1968) (Law enforcement
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officers may detain an individual for a brief period of time if they have
reasonable suspicion that criminal activity is afoot). 	There are no rigid time
limitations on a Terry stop. 	Sharpe, 470 U.S. at 685; United States v. Watts, 7
F.3d 122, 125 (8th Cir. 1993). 	Rather, the court is to consider the purposes for
which law enforcement stopped the vehicle as well as the time reasonably
needed to effectuate those purposes. 	Sharpe, 470 U.S. at 685. 	The court must
consider whether “the police diligently pursued a means of investigation that
was likely to confirm or dispel their suspicions quickly, during which time it
was necessary to detain the defendant.” 	Id. at 686.
During an investigative stop, officers may permissibly detain vehicle
occupants while performing routine tasks such as obtaining a driver’s license
and vehicle registration and inquiring about the occupants’ destination and
purpose. 	United States v. Coleman, 700 F.3d 329, 335 (8th Cir. 2012). 	If the
vehicle occupants’ responses and the circumstances give rise to a reasonable
suspicion that criminal activity unrelated to the stop is afoot, officers may
expand the scope of the stop beyond the initial justification and prolong the
detention. 	United States v. Chavez Loya, 528 F.3d 546, 553 (8th Cir. 2008). 	It
is the government’s burden to prove that a detention pursuant to reasonable
suspicion was sufficiently limited in scope and duration. 	Royer, 460 U.S. at
500.
In determining whether the officers’ observations during the course of the
stop rise to an objectively reasonable suspicion of criminal activity, the court
examines “the totality of the circumstances in light of the [officers’] experience.”
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Chavez Loya, 528 F.3d at 553 (8th Cir. 2008) (internal citations omitted).
“While ‘reasonable suspicion’ must be more than an inchoate ‘hunch,’ the
Fourth Amendment only requires that police articulate some minimal, objective
justification for an investigatory [detention].” 	United States v. Fuse, 391 F.3d
924, 929 (8th Cir. 2004). 	In forming a basis for suspicion officers may “draw
on their own experience and specialized training to make inferences from and
deductions about the cumulative information available to them that ‘might well
elude an untrained person.’” 	United States v. Ortiz-Monroy, 332 F.3d 525, 529
(8th Cir. 2003) (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). 	A
number of factors, innocent in and of themselves, may give rise to reasonable
suspicion in the eyes of a trained law enforcement officer. 	United States v.
Barker, 437 F.3d 787, 790 (8th Cir. 2006). 	“While the defendant’s presence in
a dangerous area is not by itself enough to raise a reasonable suspicion, an
area’s propensity toward criminal activity is something that an officer may
consider.” 	United States v. Atlas, 94 F.3d 447, 451 (8th Cir. 1996) (internal
quotation omitted) (finding reasonable suspicion where defendant was located
in high-crime neighborhood with heavy gang activity, appeared very nervous
when he saw officers, threw bag to the ground, and gave evasive answers).
Because “traffic stops are especially fraught with danger to police officers
. . . the risk of harm to both the police and the occupants of a stopped vehicle
is minimized . . . if the officers routinely exercise unquestioned command of the
situation.” 	Arizona v. Johnson, 555 323, 330 (2009) (internal quotations and
alterations omitted). 	Therefore, during a routine traffic stop, police officers
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“may order out of a vehicle both the driver and any passengers [and] perform a
‘patdown’ of a driver and any passengers upon reasonable suspicion that they
may be armed and dangerous.” 	Knowles v. Iowa, 525 U.S. 113, 118 (1998);
United States v. Navarrete–Barron, 192 F.3d 786, 790 (8th Cir. 1999) (officers
may take any steps reasonably necessary to protect their safety and maintain
the status quo).
The court finds that Officers Garcia and Kay were justified in expanding
the scope of the initial traffic stop by removing Mr. Corona from the vehicle,
patting him down, and taking him to the patrol vehicle for further questioning.
Both officers were experienced members of the Denver Gang Bureau and were
knowledgeable about gang activity in the area. 	Based on the officers’ own
experience with gangs, and Mr. Corona’s possible false identification, nervous
behavior, evasive answers, tattoos, and clothing, it was reasonable for the
officers to suspect Mr. Corona was affiliated with a gang and involved in
criminal activity. 	See Chavez Loya, 528 F.3d at 553. 	It was further reasonable
for Officer Garcia to conduct a pat-down search of Mr. Corona based on his
experience that gang members often carry firearms. 	Knowles, 525 U.S. at 118.
The scope and the duration of the stop was strictly limited to investigating
whether there was contraband in the vehicle and then finding the weapon.
Royer, 460 U.S. at 500. 	The officers operated quickly and efficiently: Officer
Kay found the firearm approximately eight minutes after initiating the traffic
stop. 	The court finds that the stop was reasonably limited in scope and
duration, and the officers’ conduct lawfully expanded the scope of the
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investigation while maintaining the status quo and protecting officer safety.
Sharpe, 470 U.S. at 685; Navarrete–Barron, 192 F.3d at 790.
III. 	Whether Mr. Corona’s statements were obtained in violation of his
Miranda rights
Mr. Corona argues he was subject to the functional equivalent of a
formal arrest when questioned by Officer Garcia, necessitating the advisement
of his Miranda rights. 	Mr. Corona requests that all statements he made to
Officer Garcia be suppressed. 	The government argues Officer Garcia’s request
for identification did not implicate Miranda; that the questioning about the gun
was permissible under public safety concerns; and that Mr. Corona was not in
custody.
A criminal suspect in custody must be informed of his right to remain
silent and to have counsel appointed before being interrogated. 	Miranda v.
Arizona, 384 U.S. 436, 472, 479 (1966)). 	Miranda’s protections only apply to a
custodial interrogation. 	Id. 	Most persons temporarily detained pursuant to a
Terry stop are not “in custody,” even though they are not free to leave until the
completion of the brief investigation. 	United States v. Pelayo-Ruelas, 345 F.3d
589, 592 (8th Cir. 2003) (quoting Berkemer v. McCarty, 468 U.S. 420, 440
(1984)). 	“In a routine traffic stop, detention of an individual is usually
temporary and public.” 	United States v. Boucher, 909 F.2d 1270, 1174 (8th
Cir. 1990). 	The atmosphere of a traffic stop is “substantially less ‘police
dominated’ than that surrounding the kinds of interrogation at issue in
Miranda itself.” 	Berkemer v. McCarty, 468 U.S. 420, 439 (1984). 	For these
reasons, generally “[n]o Miranda warning is necessary for persons detained for
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a Terry stop.” 	United States v. McGauley, 786 F.2d 888, 890 (8th Cir. 1986);
Berkemer, 468 U.S. at 440; Pelayo-Ruelas, 345 F.3d at 592.
A person is not automatically in custody for the purposes of Miranda
simply because the questioning is conducted in a certain place, i.e., a patrol
car, or because the person being questioned is suspected of having committed
some offense. 	Oregon v. Mathiason, 429 U.S. 492, 495 (1977). 	Officers may
“brandish weapons or even constrain the suspect with handcuffs in order to
control the scene and protect their safety” when presented with serious danger
in the course of carrying out an investigative detention. 	United States v.
Fisher, 364 F.3d 970, 973 (8th Cir. 2004) (citations omitted); see United States
v. Navarrete–Barron, 192 F.3d 786, 790 (8th Cir. 1999).
During a Terry stop, officers may ask investigative questions to confirm
or dispel their suspicions without implicating Miranda. 	Pelayo-Ruelas, 345
F.3d at 592–93. 	“The Fourth Amendment does not require a policeman who
lacks the precise level of information necessary for probable cause to arrest to
simply shrug his shoulders and allow a crime to occur or a criminal to escape.”
Adams v. Williams, 407 U.S. 143, 145 (1972). 	An “officer’s inquiries into
matters unrelated to the justification for the traffic stop . . . do not convert the
encounter into something other than a lawful seizure, so long as those
inquiries do not measurably extend the duration of the stop.” 	Johnson, 555
U.S. at 333 (internal citations omitted) (holding that officer lawfully extended
investigative stop and defendant was not in custody where, during traffic stop,
officer observed defendant was wearing clothing consistent with Crips
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membership; when questioned, defendant stated he was from a town known for
Crips affiliation, and that he had served time in prison for a burglary; the
officer then removed defendant from the vehicle to question him and “gain
intelligence about the gang [he] might be in”); Pelayo-Ruelas, 345 F.3d at 592
(holding that defendant was not in custody and no Miranda warnings were
necessary where defendant informed agent during traffic stop that he was an
illegal alien; agent removed defendant from vehicle, conducted pat-down search
for weapons, and continued questioning defendant about why he was in
Minnesota to confirm or dispel suspicions regarding illegal drug trafficking).
The court finds that Mr. Corona was neither in custody nor interrogated
for purposes of Miranda when Officer Garcia questioned him in the patrol
vehicle. 	First, Officer Garcia’s steps to secure the scene and continue the
investigation did not render Mr. Corona in custody for purposes of Miranda.
See Fisher, 364 F.3d at 973; Pelayo-Ruelas, 345 F.3d at 592; McGauley, 786
F.2d at 890. 	When the officers ran the name “Jonathan Rojas” and found no
results, they developed a reasonable suspicion that Mr. Corona had provided a
false identity. 	The officers suspected Mr. Corona was affiliated with a gang
based on his attire and tattoos, and knew from experience that gang members
in the neighborhood often carry firearms. 	The officers also believed, based on
their experience, that Mr. Corona was preparing to fight or flee. 	The detention
took place in a public place. 	Under these circumstances, Officer Garcia was
justified in handcuffing Mr. Corona and transporting him to the patrol vehicle
while continuing the investigation. 	This course of conduct was sufficiently
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limited in scope to satisfy the conditions of an investigative seizure, while
maintaining the status quo. 	See Mathiason, 429 U.S. at 495; Florida v. Royer,
460 U.S. 491, 500 (1983); Navarrete–Barron, 192 F.3d at 790. 	Second, Officer
Garcia’s questions did not constitute interrogation because they were directed
at confirming Mr. Corona’s identity and dispelling his suspicions that the
vehicle contained contraband or firearms. 	See Pelayo-Ruelas, 345 F.3d at 592.
For these reasons, the court finds Miranda was not implicated. 	Because there
was no initial Miranda violation, Mr. Corona’s subsequent Miranda waiver was
not tainted.
IV. 	The Public Safety Exception
Because the court finds that Mr. Corona was neither in custody nor
interrogated, Miranda was not implicated and no warnings were necessary.
However, even if Mr. Corona was subjected to a custodial interrogation, his
statements would be admissible under the public safety exception to Miranda
articulated in New York v. Quarles, 467 U.S. 649 (1984).
In Quarles, the Supreme Court held that “there is a ‘public safety’
exception to the requirement that Miranda warnings be given before a suspect’s
answers may be admitted into evidence.” 	467 U.S. at 655. 	In this context,
protection of the public safety includes protection of the police officers
themselves. 	Id. at 658 n. 7. 	The exception does not depend upon the
subjective motivation of the questioning officers. 	Instead, the Court adopted an
objective standard: the exception applies when “police officers ask questions
reasonably prompted by a concern for the public safety.” 	Id. at 656. 	It does
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not apply to “questions designed solely to elicit testimonial evidence from a
suspect.” 	Id. at 659.
In applying the public safety exception, the Eighth Circuit has recognized
that “the risk of police officers being injured by the mishandling of unknown
firearms or drug paraphernalia provides a sufficient public safety basis to ask a
suspect who has been arrested and secured whether there are weapons or
contraband in a car or apartment that the police are about to search.” 	United
States v. Liddell, 517 F.3d 1007, 1009–10 (8th Cir. 2008); see United States v.
Watters, 572 F.3d 479, 482–83 (8th Cir. 2009) (public safety exception applied
to officer’s post-arrest question to defendant about whether there was a gun
somewhere in busy nightlife area, where dispatch had reported defendant was
trying to buy drugs and had said he had a shotgun, and officers feared that
suspected gun could be accessible to defendant’s friends or to public); 	United
States v. Williams, 181 F.3d 945, 953–54 (8th Cir. 1999) (public safety
exception applied to post-arrest question, “is there anything we need to be
aware of” in suspect’s apartment, because the police “could not have known
whether other hazardous weapons were present . . . that could cause them
harm if they happened upon them unexpectedly or mishandled them in some
way”).
Mr. Corona characterizes the government’s argument as an attempt to
create a “child in the car” exception to Miranda, permitting officers to
interrogate vehicle occupants every time a child is present. 	(Doc. 176 at p. 7).
Mr. Corona additionally distinguishes Watters and other public safety cases
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from this case by arguing that here, the officers simply speculated something
in the car could harm the child; in other cases applying the public safety
exception, officers had specific information regarding defendants’ danger. 	(Id.).
The court sees the facts differently. 	Officers Garcia and Kay did in fact have
specific information creating a public safety concern. 	First, and significantly,
both officers have years of experience on the gang bureau patrolling the high-
crime neighborhood in which the stop occurred. 	Based on that extensive
experience with heavy gang activity in the area, the officers knew many gang
members often carry firearms and/or drugs. 	The officers developed an
immediate and reasonable suspicion that Mr. Corona was affiliated with a
gang, leading to a fear he or others in the vehicle were armed. 	The presence of
three other unsecured individuals in the vehicle and one toddler, combined
with the officers’ knowledge about gang members carrying firearms, created a
real and imminent risk of danger to the public and the officers themselves.
Officer Garcia acted quickly and limited his questioning to whether there was a
firearm or contraband in the Acura. 	When Mr. Corona stated there was a gun
in the car, Officer Garcia immediately ceased questioning and acted on the
information by informing the other officers and securing the vehicle occupants.
Given all these factors, the court finds that Officer Garcia’s questioning was
reasonably prompted by a concern for public safety and was designed for that
purpose. 	Quarles, 467 U.S. at 656, 659.
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CONCLUSION
For the aforementioned reasons, it is respectfully recommended that
Mr. Corona’s motion to suppress be denied in full.
NOTICE TO PARTIES
The parties have fourteen (14) days after service of this Report and
Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1),
unless an extension of time for good cause is obtained. 	Failure to file timely
objections will result in the waiver of the right to appeal questions of fact.
Objections must be timely and specific in order to require de novo review by the
District Court. 	Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black,
781 F.2d 665 (8th Cir. 1986).
DATED this 27th day of December, 2018.
BY THE COURT:
DANETA WOLLMANN
United States Magistrate Judge
Case 5:17-cr-50049-JLV Document 284 Filed 12/27/18 Page 18 of 18 PageID #: <pageID>