United States v. Cortez, No. 15-1558 (6th Cir. 2016)
Annotate this CaseMichigan Trooper Ziecina, patrolling I-75, observed Calvetti's minivan abruptly slow and change lanes without signaling. Ziecina followed; the minivan moved at or below the posted minimum speed. Ziecina pulled Calvetti over to give a citation for failure to signal, impeding traffic, and driving below the minimum speed. A passenger, Cortez, produced identification. Calvetti could not find her driver’s license. Calvetti told Ziecina that she was helping Calvetti move and that the previous day the minivan had been searched in Mississippi. Ziecina’s database check revealed that the minivan was not registered to Calvetti, as she had claimed. Calvetti authorized a search. About 15 minutes after the stop, a drug-sniffing dog arrived and showed interest in the minivan floor, but did not alert. Calvetti admitted to a non-felony drug conviction and that Cortez had a felony charge involving 50 pounds of marijuana and had been involved in a shootout. Approximately 35 minutes into the stop, officers searched the minivan. The patrol car’s system recorded a conversation: Calvetti said that she was “not doing this anymore,” told Cortez that he would take the blame, and used Cortez’s cell phone, notifying a co-conspirator of the search. Ziecina observed “discrepancies” in the minivan, suspected a hidden trap under the floor, and found 16 kilograms of cocaine. About 73 minutes after the stop, agents read the two their Miranda rights. Both signed waivers. Cortez told agents that he took the minivan to Mexico to buy cocaine. Calvetti indicated that she did not want to talk, but agents continued the questioning. With Calvetti’s permission, agents used her residence for an unsuccessful controlled delivery, then searched the residence, finding packing materials similar to those used to wrap the cocaine. Finding no Miranda violation, the court denied Calvetti’s motion to suppress and held that the officers had probable cause for the stop and reasonable suspicion of criminal activity to justify prolonging it. The Sixth Circuit affirmed. Calvetti’s consent to search her residence did not fall within the ambit of the Fifth Amendment. Consenting to a search is not an incriminating statement it is not testimonial or communicative evidence.
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