United States v. Sepulveda-Sandoval (729 F. Supp. 2d 1078, 2010)

ORDER

JEFFREY L. VIKEN, District Judge.

Defendants Sepulveda-Sandoval and Berrellaza-Verduzco have filed motions to suppress evidence and statements obtained by law enforcement. (Dockets 44 and 46). Pursuant to 28 U.S.C. § 636(b)(1)(B) and the court’s standing order (Docket 12), Magistrate Judge Veronica L. Duffy held a hearing on this matter and issued a report and recommendation. (Docket 51). The magistrate judge recommended denying the motions to suppress evidence seized from the vehicle occupied by both defendants; denying defendant Sepulveda-Sandoval’s motion to suppress the statement he gave to Trooper Oxner, granting in part defendant Sepulveda-Sandoval’s motion to suppress the statement he gave to Agent Saroff, denying the remainder of defendant Sepulveda-Sandoval’s motion to suppress the statement he gave to Agent Saroff, and denying Defendant Berrellaza-Verduzco’s motion to suppress the statement he gave to Agent Saroff. Id. Both defendants timely filed objections to the report and recommendation. (Dockets 55 and 56). The court reviews de novo those portions of the report and recommendation which are the subject of objections. Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir.1990); 28 U.S.C. § 636(b)(1).

DISCUSSION

A. Magistrate Judge’s Findings of Fact

Neither defendant objected to the magistrate judge’s findings of fact. (Dockets 55, p. 1, and 56, p. 1). The magistrate judge’s findings of fact are adopted by the court in accordance with 28 U.S.C. § 636(b)(1)(C).

B. Magistrate Judge’s Conclusions of Law

1. Statements obtained from the defendants

Neither defendant objected to the magistrate judge’s conclusions of law and recommendations relating to the statements obtained from the defendants. Those com elusions of law and recommendations are adopted by the court in accordance with 28 U.S.C. § 636(b)(1)(C).

2. Physical evidence seized from the vehicle

As the defendants’ objections to the magistrate judge’s conclusions of law and recommendation relating to the evidence seized from the vehicle are identical, those objections will be addressed jointly without separate reference to each defendant’s individual objections. (Dockets 55, pp. 2-4, and 56, pp. 2-4). The defendants assert the physical evidence seized should be suppressed because the magistrate judge found Trooper Oxner unreasonably prolonged the stop of the defendants’ vehicle and this prolonged detention violated the defendants’ Fourth Amendment rights. (Docket 51, p. 1096).

The magistrate judge found Trooper Oxner’s justification for the traffic stop, that is speeding, “was legitimate under the circumstances and legal under the constitution.” Id. at p. 1093. The magistrate judge further found that “Trooper Oxner’s actions in the first sixteen minutes of this stop were primarily concerned about drug interdiction rather than with addressing the reason for the stop — i.e. the speeding.” Id. at p. 1094. For these reasons, the magistrate judge concluded “that the prolonged detention of defendants ... violated both defendants’ Fourth Amendment rights.” Id. at p. 1094.

The court reaches the same legal conclusion under the facts of this case. The conduct of the trooper in causing the delay between the stop and the issuance of the warning ticket for speeding resulted in a traffic stop which was “longer than reasonably necessary” and the actions of the trooper were not “reasonably related to the circumstances which initially justified the stop.” Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005); United States v. Sharpe, 470 U.S. 675, 685-87, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). (Docket 51, p. 1092). The defendants’ Fourth Amendment rights were violated by the prolonged nature of their detention during this traffic stop.

The next part of the analysis by the magistrate judge was whether the physical evidence must be suppressed because of the violation of the defendants’ Fourth Amendment rights. (Docket 51, pp. 1094-95). That decision turns on the “but-for cause of obtaining the evidence” analysis required under United States v. Peralez, 526 F.3d 1115, 1121-22 (8th Cir.2008) (quoting United States v. Olivera-Mendez, 484 F.3d 505, 511 (8th Cir.2007)).

In applying this threshold legal question to the facts in this case, the magistrate judge concluded Trooper Oxner’s decision to deploy his drug dog to sniff around the defendants’ vehicle would have occurred regardless of the prolonged stop. (Docket 51, p. 1095). “Once [defendants] gave Trooper Oxner that valid reason to stop them, the [magistrate judge] concludes that Trooper Oxner would not have allowed defendants to leave without deploying his readily-available drug dog.... That inevitable deployment and equally inevitable alert by [the drug dog] provided Trooper Oxner with the necessary probable cause for the search.” Id. at p. 1096.

In Peralez, the court directed that “[o]nly if the constitutional violation was at least a but-for cause of obtaining the evidence is suppression of evidence the appropriate remedy.” 526 F.3d at 1121 (internal quotation marks omitted). In other words, “[i]f the extended seizure enabled the dog sniff to occur suppression is proper.” Id. (internal quotation marks omitted). Because the trooper’s drug dog was at the scene with the investigating officer, the court found that defendant’s “prolonged seizure for questioning about drug trafficking was not a but-for cause of obtaining the evidence____” Id. at 1122. Thus, the drug dog sniff of the vehicle and the seizure of the evidence was not suppressed. Id.

This court is required to follow the rulings of the Court of Appeals for the Eighth Circuit. Thus, Peralez is binding authority upon this court. Under Peralez, Trooper Oxner’s dog was with him at the scene of the traffic stop, so there is no “but for cause” for the walk around the vehicle with his dog and the alert for the presence of drags. As case law dictates, “if no additional delay ... involved in employing a drag dog, the officer need not demonstrate probable cause or reasonable suspicion before embarking on a drug dog sniff.” (Docket 51, p. 1095) (citing Caballes, 543 U.S. at 406-09, 125 S.Ct. 834; United States v. Lopez-Mendoza, 601 F.3d 861 (8th Cir.2010); United States v. Mohamed, 600 F.3d 1000 (8th Cir.2010)). As required by Peralez, Trooper Oxner’s “dog sniff was not a result of that improper extension [Fourth Amendment violation].” 526 F.3d at 1117.

For these reasons, defendants’ objections to the report and recommendation are overruled and the physical evidence seized by Trooper Oxner as the result of the drug dog alert will not be suppressed.

CONCLUSION

Based on the foregoing, it is hereby

ORDERED that defendants’ separate objections to the report and recommendation (Dockets 55, pp. 2-4, and 56, pp. 2-4) relating to the physical evidence seized from the vehicle are overruled.

IT IS FURTHER ORDERED that the report and recommendation of Magistrate Judge Veronica L. Duffy (Docket 51) is adopted by the court.

IT IS FURTHER ORDERED that defendants’ separate motions to suppress evidence and statements (Dockets 44 and 46) are granted in part and denied in part.

IT IS FURTHER ORDERED that defendant Sepulveda-Sandoval’s motion to suppress his statement to Trooper Oxner is denied.

IT IS FURTHER ORDERED that defendant Sepulveda-Sandoval’s statement, prior to the advisement of his rights under Miranda, relating to the defendant’s status in the United States shall be suppressed from use in the government’s case-in-chief.

IT IS FURTHER ORDERED that the remainder of defendant Sepulveda-Sandoval’s statement, prior to the advisement of his rights under Miranda and any statement made after the advisement of rights, shall not be suppressed.

IT IS FURTHER ORDERED that defendant Berrellaza-Verduzco’s motion to suppress his statement to Agent Saroff is denied.

IT IS FURTHER ORDERED that the physical evidence seized from the defendants’ vehicle shall not be suppressed.

REPORT AND RECOMMENDATION AS TO DEFENDANTS’ MOTIONS TO DISMISS

VERONICA L. DUFFY, United States Magistrate Judge.

INTRODUCTION

Defendants Alan Sepulveda-Sandoval and Ivan Berrellaza-Verduzco are before the court on charges of possession with intent to distribute a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A); possession of a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); being non-immigrant aliens in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2); and forfeiture of firearm and ammunition pursuant to 18 U.S.C. § 924(d) and 28 U.S.C. § 2361(c). Each defendant has filed a motion to suppress evidence and statements obtained by law enforcement. See Docket Nos. 44 and 46. The government resists these motions. See Docket No. 48. The district court, the Honorable Jeffrey L. Viken, referred these motions to this magistrate judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

FACTS

An evidentiary hearing on these motions was held June 21, 2010. Mr. Sandoval was present and represented by his attorney, Ellery Grey. Mr. Verduzco was present and represented by his attorney, Steven Christensen. The government was represented by its Assistant United States Attorney Mark Vargo. Trooper Matt Oxner of the South Dakota Highway Patrol and Special Agent Nick Saroff of the United States Immigration and Customs Enforcement Agency “(ICE”), testified at the hearing. Several exhibits were received into evidence at the hearing. From this evidence the court makes the following findings of fact.

At approximately 7:55 a.m. on April 3, 2010, Trooper Matt Oxner was on duty and received a tip via cell phone from his fellow South Dakota law enforcement officer Trooper Brian Swets. Trooper Swets told Trooper Oxner that a Wyoming law enforcement officer had called and informed Swets that a grey Chrysler Pacifica with Washington state license plates had been stopped in Wyoming and the officer had issued a warning citation. The Wyoming officer had been suspicious and had asked the occupants of the Pacifica for permission to search the vehicle. The occupants had refused to consent to a search and the Wyoming officer allowed them to leave.

Just before 13:00 p.m. on the same day, Trooper Oxner was on duty in his marked patrol vehicle operating his radar machine near exit 67 on Interstate 90 just east of Rapid City, South Dakota. His drug detection dog, Keya, was in his patrol vehicle with him. He observed a grey Pacifica with Washington license plates pass him traveling at 69 miles per hour in a 65-mile-per-hour zone. Trooper Oxner immediately pulled out and followed the Pacifica for approximately three miles. Trooper Oxner first pulled up in the northernmost lane of the two-lane, divided highway so that his front bumper was approximately even with the rear bumper of the Pacifica, which was in the southernmost lane. From this vantage point, Trooper Oxner was able to read the license number of the Pacifica and call it into dispatch.

Trooper Oxner then pulled up even with the Pacifica and observed the occupants of that vehicle. He saw the man he would later learn was Mr. Sandoval driving the vehicle and the man he would later learn was Mr. Verduzco in the front passenger seat apparently sleeping. Trooper Oxner observed that Mr. Sandoval did not look over at Trooper Oxner as their vehicles traveled next to each other down the highway. Trooper Oxner then dropped back and turned on his emergency lights in order to stop the defendants’ vehicle. An automatic recording machine was activated simultaneous with the activation of the emergency lights.' A recording made by this device was received into evidence at the hearing as Exhibit 1. The recording begins at 12:58 p.m.

After Trooper Oxner activated his lights, the Pacifica pulled over to the shoulder of the highway and stopped. Trooper Oxner exited his patrol vehicle and approached defendants’ vehicle on the passenger side. Trooper Oxner looked inside the vehicle and observed fast food wrappers from Subway. He asked for the driver’s license, the vehicle registration, and proof of insurance. Mr. Sandoval was able to produce a driver’s license, but not the vehicle registration or proof of insurance. Mr. Verduzco was not able to produce an identification card or driver’s license. Trooper Oxner testified that Mr. Verduzco had a frightened expression on his face. When the defendants opened the glove box to look for the requested documents, Trooper Oxner observed a bottle of over-the-counter energy pills.

Also during this interval, Trooper Oxner purportedly observed both defendants’ pulse visibly pounding in their carotid arteries. He also purportedly observed Mr. Verduzco’s pulse in his belly. FrCm these two observations Trooper Oxner testified that he concluded the defendants were unusually nervous. Trooper Oxner denied that a potential source of nervousness in the defendants was the fact that he had just followed their vehicle in a marked patrol car for three miles, first just off their rear bumper, and then parallel to them.

The court specifically rejects this particular testimony as not credible. First, as to Mr. Verduzco’s pulse in his belly, the court observed that both defendants were very slim and wiry. Neither had a protruding belly that would press against their clothing. In addition, Mr. Verduzco was wearing a white hooded sweatshirt, which would be thicker than an ordinary shirt. A review of the recording of the traffic stop in this case, Exhibit 1, reveals that Mr. Verduzco’s hooded sweatshirt fit very loosely on him. These facts make it highly improbable that Trooper Oxner observed Mr. Verduzco’s pulse in his belly through his shirt.

Two minutes after making initial contact with the defendants, at 13:01 p.m., Trooper Oxner asked Mr. Sandoval to come back to his patrol vehicle and take a seat in front. Trooper Oxner told Mr. Sandoval that he would issue him a warning ticket. Trooper Oxner appears to have experienced some difficulty in communicating the concept of a warning ticket to Mr. Sandoval.

Trooper Oxner testified that Mr. Sandoval’s native language appeared to be Spanish, not English. Trooper Oxner testified that he had taken some Spanish classes in high school and college, but was by no means fluent in Spanish. The language barrier between Trooper Oxner and Mr. Sandoval appears to have been substantial. Again, from a review of the recording of the traffic stop in this case, there are many times where Trooper Oxner and Mr. Sandoval were unable to communicate. At one point Mr. Sandoval spoke to Trooper Oxner, trying to tell him something about “five more,” the only English words Sandoval spoke in this particular exchange. Trooper Oxner had him repeat what he was saying several times and finally gave up, unable to interpret what Mr. Sandoval was trying to tell him. Agent Saroff, who is fluent in Spanish, testified that it would be pointless to try to talk to Mr. Verduzco in English as he did not understand English at all.

In the patrol car, Trooper Oxner sat in the driver’s seat and Mr. Sandoval sat in the front passenger seat. Trooper Oxner first began by telling Mr. Sandoval that he was going to issue him a warning citation for speeding and showed Mr. Sandoval the reading on his radar. In response, Mr. Sandoval explained that he had been having some trouble with the cruise control or the transmission in the Pacifica.

Trooper Oxner then began asking Mr. Sandoval a series of questions about his trip. In response to these questions, Mr. Sandoval explained that he and his passenger were traveling from Everette, Washington, near Seattle, and that they were going to Kansas City to look for work as painters. Mr. Sandoval told Trooper Oxner that they planned to stay with Mr. Sandoval’s mother in Kansas City. Mr. Sandoval told Trooper Oxner that the vehicle he was driving was owned by his friend, Fernando Cortez Gaxiola. When the Trooper inquired how the Pacifica would be returned to Mr. Gaxiola, Mr. Sandoval explained that Mr. Gaxiola would be traveling to Kansas City to retrieve it at some point in the future. When asked how long Mr. Sandoval had been acquainted with Mr. Verduzco, he responded, “I don’t know, maybe 23?” From which Trooper Oxner interpreted that Mr. Sandoval was saying that he had known Mr. Verduzco for 23 years.

Inside the patrol vehicle, Trooper Oxner stated that he made the further observation that Mr. Sandoval clenched his jaw from time to time. Trooper Oxner testified that he concluded this was evidence that Mr. Sandoval was abnormally nervous. Trooper Oxner also noted that Mr. Sandoval was dressed in new sneakers, new blue jeans, and a nicer pull-over. He testified that he found this inconsistent with Mr. Sandoval’s story about his trip because Mr. Sandoval’s clothing was not the type of clothing usually worn by painters. Trooper Oxner also testified that he observed Mr. Sandoval’s hands to be free of callouses and that he found this, too, to be inconsistent with Mr. Sandoval’s representation that he was looking for work as a painter.

At 13:09 p.m., Trooper Oxner left Mr. Sandoval in the patrol vehicle and went back to the passenger’s side of the Pacifica where he then interrogated Mr. Verduzco about the same subjects he had just asked Mr. Sandoval about. Mr. Verduzco gave the same answers as Mr. Sandoval: the two were traveling from Everette, Washington, to Kansas City to look for work as painters and planned to stay with Sandoval’s mother while they were looking for work. Mr. Verduzco confirmed that the Pacifica belonged to Mr. Gaxiola. Only two differences between Mr. Sandoval’s discussion with Trooper Oxner and Mr. Verduzco’s discussion emerged. One was that Mr. Verduzco explained that he would probably drive the Pacifica back to Mr. Gaxiola rather than Mr. Gaxiola traveling to Kansas City to retrieve his vehicle — or at least this is what Trooper Oxner interpreted Mr. Verduzco to be saying. The recording of the traffic stop is far from clear on this point. The other difference was that Mr. Verduzco said he and Mr. Sandoval had known each other for 10 years, rather than the 23 years stated by Mr. Sandoval. Again, this requires a degree of interpretation to arrive at the conclusion that Mr. Verduzco was indeed making this assertion.

Trooper Oxner then asked Mr. Verduzco whether there were any drugs in the vehicle, and Mr. Verduzco responded that there were not. As with Sandoval, Trooper Oxner testified that Mr. Verduzco’s clothing-a white hooded sweatshirt, blue jeans, and sneakers-were not the type of clothing that a painter would wear.

Trooper Oxner then returned to his patrol vehicle where he told Mr. Sandoval that he would have to check law enforcement records on Sandoval’s driver’s license and the vehicle registration. Trooper Oxner then asked Mr. Sandoval whether there were any drugs in the Pacifica. Mr. Sandoval denied the presence of any drugs.

Only at 13:15 p.m., sixteen minutes after initiating this traffic stop, did Trooper Oxner call in the information to dispatch regarding Sandoval’s driver’s license and the vehicle registration. Trooper Oxner testified that the delay was occasioned by the act of actually writing out the warning ticket and reviewing the driver’s license and Wyoming ticket that Mr. Sandoval had given him. Again, the court specifically finds this testimony not credible. Exhibit 1, the recording of this traffic stop, as well as Trooper Oxner’s own testimony, show that he engaged in substantial discussion with first Mr. Sandoval and then Mr. Verduzco. While the court cannot see on the recording what Trooper Oxner was doing while in his patrol vehicle, the court can observe what Trooper Oxner was doing when he was out of his vehicle in front. From a review of this recording, it is clear that Trooper Oxner was not writing a citation or reviewing documentation while talking to Mr. Verduzco.

YWien asked why it was necessary to review the Wyoming ticket for purposes of issuing the South Dakota warning ticket, Trooper Oxner said that his review of the Wyoming ticket was related to drug interdiction. He wanted to see who was driving, what the charge was, and the time of the citation in order to see if any facts jumped out at him as indicative of drug trafficking. The court makes a specific finding that Trooper Oxner’s primary purpose in this traffic stop was the discovery of evidence of drug trafficking rather than addressing the ostensible reason for the traffic stop-i.e. the speeding violation.

Trooper Oxner testified that dispatch usually responds with information about a driver’s license within one minute. A response from dispatch relaying a subject’s criminal history takes longer, sometimes up to ten minutes.

After calling the information in to dispatch, Trooper Oxner ran his drug dog, Keya, around the Pacifica while waiting for the response from dispatch. Keya alerted to the rear of the vehicle near the location where the license plate is displayed. She indicated by scratching at the vehicle in this location. Photographs were introduced into evidence showing scratches in the dirt on the Pacifica as a result of Keya’s indication. However, the photos do not clearly indicate whether the vehicle’s paint was scratched. Trooper Oxner testified that vehicles are not usually damaged as a result of Keya’s indications.

Keya and Trooper Oxner were first certified in drug detection following a seven-week training course in 2003 under the auspices of the International Congress of Police Service Dogs. Later, they also received certification pursuant to state law in South Dakota. They have undergone continuing training in the form of eight hours additional training every other week since they were certified. Keya was retired May 7, 2010, shortly after the traffic stop in this case. Trooper Oxner testified that she retired due to old age as she was nine and one-half years old at the time.

After Keya indicated, Trooper Oxner asked Mr. Verduzco to exit the Pacifica. He patted Mr. Verduzco down, handcuffed him, and stationed him in the ditch adjacent to the highway. Trooper Oxner then also handcuffed Mr. Sandoval. Trooper Oxner told Mr. Sandoval that Keya had alerted and that the trooper would be searching the Pacifica. Following handcuffing both defendants, Trooper Oxner did not ask any substantive questions of either of them.

Suspecting that contraband was secreted in a hidden compartment, Trooper Oxner arranged to have the Pacifica and both defendants taken to the Highway Patrol shop nearby. There, the Pacifica was dismantled and contraband was found.

Trooper Oxner notified Special Agent Nick Saroff with ICE, who then traveled to the Highway Patrol shop. Once there, Agent Saroff made contact with both defendants in order to conduct interviews with them. Agent Saroff is fluent in Spanish, having worked several years for the United States Border Patrol in the southwestern United States. Agent Saroff conducted the interviews with the defendants in that language.

The interviews took place in a lunch room at the shop that was approximately 14 feet by 20 feet. The room contained chairs, a table, two microwaves, and other kitchen-type items.

Agent Saroff advised Mr. Verduzco of his Miranda rights in Spanish and reviewed a written form that reproduced those rights in Spanish. Agent Saroff asked Mr. Verduzco if he could read, to which he responded he could. Agent Saroff had Mr. Verduzco then read the written advisement of rights out loud. A copy of that form was received into evidence as Exhibit 4. Mr. Verduzco told Agent Saroff that he understood these rights, and that he was willing to talk to Agent Saroff without a lawyer present. Agent Saroff testified that Mr. Verduzco sobbed and cried throughout the interview. Mr. Verduzco did not understand English at all. Mr. Verduzco repeatedly denied any knowledge of the existence of any drugs or guns in the Pacifica or the origin or destination of those items.

Mid-way through the interview, Mr. Verduzco told Agent Saroff that he had changed his mind and did not want to continue with the interview. Agent Saroff immediately terminated the interview and asked no further questions.

Agent Saroff then spoke to Mr. Sandoval. Initially, Agent Saroff asked Mr. Sandoval what he characterized as “booking questions.” Agent Saroff asked Mr. Sandoval his name, date of birth, place of birth, and current address. He then asked Mr. Sandoval if he was in the United States illegally. Mr. Sandoval agreed that he was. Agent Saroff advised Mr. Sandoval of his Miranda rights in Spanish. Mr. Sandoval did not agree to waive those rights and Agent Saroff terminated the interview without discussion of any events related to the traffic stop or the contraband found in the Pacifica.

Both defendants now move to suppress certain evidence. Mr. Verduzco does not question Trooper Oxner’s stop of his vehicle, but does contend that the continued detention of the defendants after the issuance of the warning ticket violated their Fourth Amendment rights, thus necessitating the suppression of the physical evidence taken from defendants’ vehicle. Mr. Verduzco also questions the reliability of Keya and whether she indicated to the Pacifica, arguing that without demonstrated reliability and a clear alert to the car, Keya’s actions at the traffic stop cannot provide probable cause for Trooper Oxner’s search of the vehicle. Finally, Mr. Verduzco argues that his statement to Agent Saroff should be suppressed. His argument as to the statement are twofold: (1) the statement should be suppressed as “fruit of the poisonous tree” of the Fourth Amendment violation; and (2) the statements were taken in violation of Miranda.

Mr. Sandoval joins in the argument that the continued detention of defendants violated their Fourth Amendment rights and also questions the reliability of Keya. In addition, Mr. Sandoval argues that Trooper Oxner knew before he used Keya to examine the Pacifica that she would damage the Pacifica by scratching it. Under such circumstances, Mr. Sandoval argues that the deployment of Keya in and of itself was a search that required probable cause before embarking upon. Finally, Mr. Sandoval urges the suppression of his statements to Agent Saroff on the same grounds urged by Mr. Verduzco. The government resists both motions to suppress in their entirety.

DISCUSSION

A. Whether the Continued Detention of Defendants at the Traffic Stop Violated the Fourth Amendment and Requires Suppression of the Fruits of the Search

1. Whether the Search was Unreasonably Prolonged

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, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007); Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); United States v. Wheat, 278 F.3d 722, 726 (8th Cir.2001). A stop of the driver of a vehicle results in a seizure under the Fourth Amendment of all occupants of the vehicle. Brendlin, 551 U.S. at 255-56, 127 S.Ct. 2400.

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, 116 S.Ct. 1769, 135 L.Ed.2d 89 (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) (quoting United States v. Coney, 456 F.3d 850, 855-56 (8th Cir.2006) (quoting United States v. Linkous, 285 F.3d 716, 719 (8th Cir.2002))). A traffic stop “is valid even if the police would have ignored the traffic violation but for their suspicion that greater crimes are afoot.” United States v. Long, 532 F.3d 791, 795 (8th Cir.2008) (quoting United States v. Chatman, 119 F.3d 1335, 1339-40 (8th Cir.1997)). An officer’s subjective motivations are irrelevant to the probable cause determination. Id.

A traffic stop under the Fourth Amendment can also be justified by a lesser showing of a “reasonable suspicion” pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). United States v. Winters, 491 F.3d 918, 921 (8th Cir.2007). An officer making a Terry stop “must be able to articulate something more than an ‘inchoate and unparticularized suspicion or “hunch.” ’ ” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). The Fourth Amendment requires “some minimal level of objective justification” for making the stop. INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). The Court has held that probable cause means “ ‘a fair probability that contraband or evidence of a crime will be found,’ and the level of suspicion required for a Terry stop is obviously less demanding than for probable cause.” Sokolow, 490 U.S. at 7, 109 S.Ct. 1581 (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). “Police must have a ‘particularized and objective basis’ for suspecting criminal activity at the time the stop is made.” United States v. Spotts, 275 F.3d 714, 718 (8th Cir.2002).

“Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors— quantity and quality—are considered in the ‘totality of the circumstances—the whole picture,’ that must be taken into account when evaluating whether there is reasonable suspicion.” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). If the investigatory stop is not supported by reasonable suspicion or if the officers exceed the proper scope of the stop, then any evidence derived from the stop must be excluded from trial. Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Wheat, 278 F.3d at 726.

If the officer has an objectively reasonable belief that the suspect has violated traffic law, even if the officer is mistaken, reasonable suspicion for the stop can still exist. United States v. Bueno, 443 F.3d 1017, 1024-25 (8th Cir.2006) (citing United States v. Smart, 393 F.3d 767, 770 (8th Cir.2005)); United States v. Martin, 411 F.3d 998, 1000-02 (8th Cir.2005).

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, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005); United States v. Sharpe, 470 U.S. 675, 685-87, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). There are no rigid time limitations on a Terry stop. Sharpe, 470 U.S. at 685, 105 S.Ct. 1568; 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, 105 S.Ct. 1568. 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, 105 S.Ct. 1568. 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, 103 S.Ct. 1319.

The Eighth Circuit has held that a “reasonable investigation of a traffic stop may include checking the driver’s license and registration, asking the driver to step out of the vehicle, asking the driver to sit in the patrol car, and requesting the driver’s destination and purpose.” United States v. Gomez Serena, 368 F.3d 1037, 1040 (8th Cir.2004) (citing United States v. Gregory, 302 F.3d 805, 809 (8th Cir.2002); United States v. Ramos, 42 F.3d 1160, 1163 (8th Cir.1994)); United States v. Jones, 269 F.3d 919, 924 (8th Cir.2001) (citing United States v. Beck, 140 F.3d 1129, 1134 (8th Cir.1998)). See also Caballes, 543 U.S. at 407, 125 S.Ct. 834 (a seizure justified by the interest in issuing a ticket to the driver “can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.”); United States v. Gallardo, 495 F.3d 982, 987 (8th Cir.2007).

If an officer’s permitted initial investigatory steps arouse reasonable suspicions, the officer is “entitled to expand the scope of the stop and ask questions not directly related to the initial traffic stop.” Gomez Serena, 368 F.3d at 1040; see also Ramos, 42 F.3d at 1163 (traffic stop may not be expanded unless “objective circumstances supply the trooper with additional suspicion.”). “An investigative stop can grow out of a traffic stop so long as the officer has reasonable suspicion of criminal activity to expand his investigation, even if his suspicions were unrelated to the traffic offense that served as the basis of the stop.” Gomez Serena, 368 F.3d at 1041 (citing United States v. Long, 320 F.3d 795, 799-800 (8th Cir.2003)).

If the investigatory stop is not supported by reasonable suspicion or if the officers exceed the proper scope of the stop, then any evidence derived from the stop must be excluded from trial. Wong Sun, 371 U.S. at 484, 83 S.Ct. 407; Wheat, 278 F.3d at 726.

In United States v. Peralez, 526 F.3d 1115 (8th Cir.2008), a South Dakota Highway Patrol trooper was on duty with his drug dog. Id. at 1117. The trooper initiated a traffic stop of a van pulling a trailer because the trailer did not have a license plate displayed and the license plate on the van was obscured by the trailer attachment. Id. The officer advised the driver of the van that he was issuing him a warning citation and then embarked on a series of drug interdiction questions. Id. at 1117-18. As in this case, the officer left the driver in the officer’s patrol vehicle and approached a passenger in the van and asked the passenger a series of drug interdiction questions. Id. at 1118. Only after speaking to the passenger did the officer return to the patrol vehicle and call in the identification information on the driver and passenger to dispatch. Id. This call-in was performed ten minutes after the officer had told the driver that a warning ticket would be issued. Id. While waiting for dispatch to call back with information about the two men in the van, the trooper walked his drug dog around the outside of the van. Id. The dog indicated that he detected the odor of illegal drugs and a search ensued in which incriminating items were discovered. Id.

The Eighth Circuit held that, although the trooper had probable cause for the initial stop of the defendant’s vehicle, the ensuing detention was illegally prolonged, violating the defendant’s Fourth Amendment rights. Id. at 1119-20. The court noted that the traffic stop had lasted for sixteen minutes before the trooper deployed his drug dog, whereas the trooper had informed the driver that a warning ticket would be issued only three minutes into the stop. Id. at 1119. In the intervening thirteen minutes, the trooper asked questions unrelated to the license plate issue and those questions prolonged the stop. Id. at 1120. The Eighth Circuit held that the continued detention of the defendants was unwarranted where there was nothing unusual or out of place with the van’s registration or the driver’s license, where the questions related to drug interdiction more than doubled the time involved in finalizing the ticket for the original reason for the stop, and when it took only one minute for dispatch to respond once the trooper actually did call in the identification information for both occupants of the vehicle. Id. at 1120-21. The court stated that “[o]nce an officer has decided to permit a routine traffic offender to depart with a ticket, a warning, or an all clear, the Fourth Amendment applies to limit any subsequent detention or search.” Id. at 1120 (quoting United States v. Alexander, 448 F.3d 1014, 1016 (8th Cir.2006)).

In United States v. Hernandez-Mendoza, 600 F.3d 971 (8th Cir.2010), a trooper stopped a vehicle for speeding and deployed his drug dog only six minutes after initiating the stop. Id. at 975. The Eighth Circuit held that this did not impermissibly prolong the detention. Id. Notably, the trooper in Hernandez-Mendoza had additional factors that raised his reasonable suspicions, including a prior alert by a drug dog in Wyoming to the same vehicle, as well as the South Dakota trooper’s dog’s alert. Id. at 974.

In this case, neither party disputes the fact that Trooper Oxner’s reason for the traffic stop — exceeding the speed limit-was legitimate under the circumstances and legal under the constitution. So the court is concerned only with the question of whether the continued detention of defendants by Trooper Oxner violated their Fourth Amendment rights.

As to the continued detention in this case, the court finds this case to be more like Peralez than Hemandez-Mendoza. The factors that Trooper Oxner observed were as follows. There were sandwich wrappers from a fast food franchise on the floor of defendants’ vehicle. The defendants displayed some nervousness — Mr. Sandoval clenched his jaw in the patrol vehicle during Trooper Oxner’s interrogation of him and Mr. Verduzco had a frightened expression on his face when Trooper Oxner approached the vehicle. Neither of these are remarkable. All persons on a trip of any duration will accumulate debris from the trip in the form of beverage containers, food wrappers, and the like. And any citizen would be alarmed to have a law enforcement officer follow them for three miles, first looming off one’s rear bumper and then traveling parallel to oneself. And this would be especially startling if one were asleep, as apparently Mr. Verduzco was, only to be greeted by red flashing lights and an all-black clad law enforcement officer upon awakening.

Other “suspicious” factors that Trooper Oxner observed are commonplace. The presence of energy pills — wholly legal and available at any truck stop over the counter — cannot be deemed indicative of criminal behavior. In addition, the stories each defendant told in separate interrogations about the details of their trip mirrored each other remarkably. The court cannot attribute any legal significance to the very minor differences in the details related by the two defendants to Trooper Oxner, especially given the substantial language barrier that existed. Finally, like in Peralez, Trooper Oxner’s actions in the first sixteen minutes of this stop were primarily concerned with drug interdiction rather than with addressing the reason for the stop — i.e. the speeding. This is especially true where, as here and in Peralez, the officer told the driver that only a warning ticket would be issued within the first two minutes of the stop. In addition, if Trooper Oxner had promptly contacted dispatch with the driver’s license and vehicle information, by his own testimony he would have received a response back within 10 minutes at the most. This would have enabled Trooper Oxner to conclude the traffic stop long before he actually deployed Keya.

The court discounts entirely Trooper Oxner’s suspicions based on the defendants’ clothing. Painters cannot be expected to travel across country in their paint-splattered coveralls any more than judges may be expected to do so in their judicial robes. The defendants were dressed in blue jeans and tennis shoes with a casual pull-over on one man and a hooded sweatshirt on the other. This clothing cannot be said to be so out of character for men who earn their living painting so as to arose a reasonable suspicion. Blue jeans are not at all uncommon as leisure wear for all kinds of persons, including those who earn a living with their hands.

Finally, the court addresses Trooper Oxner’s suspicions based on Mr. Sandoval’s hands. Mr. Sandoval was admittedly out of work. That was why he and Mr. Verduzco were traveling to Kansas City — to look for work. If the men had been out of work for any length of time, their hands would not have been rough or calloused. Trooper Oxner never asked how long it had been since either man had been employed nor what their last employment had been.

From the outset of this traffic stop, Trooper Oxner’s actions were predominantly intended for drug interdiction and, as a result, the routine measures that the law required Trooper Oxner to take care of in connection with the speeding violation were unconstitutionally delayed. The law requires that a traffic stop be “no longer than reasonably necessary” and that it be “reasonably related to the circumstances which initially justified the stop.” Caballes, 543 U.S. at 407, 125 S.Ct. 834; Sharpe, 470 U.S. at 685-87, 105 S.Ct. 1568; Royer, 460 U.S. at 500, 103 S.Ct. 1319. For that reason the court concludes that the prolonged detention of defendants in this case violated both defendants’ Fourth Amendment rights.

2. Whether the Physical Evidence Should Be Suppressed

However, the conclusion that Trooper Oxner violated the Fourth Amendment does not end the inquiry as regards the question of suppression of the fruits of the search. In the Peralez case discussed above, the Eighth Circuit held that the physical evidence seized should not be suppressed even though the continued detention was unlawful. Peralez, 526 F.3d at 1121-22. The court held that suppression would not be required unless the Fourth Amendment violation was “at least a but-for cause of obtaining the evidence.” Id. at 1121 (quoting United States v. Olivera-Mendez, 484 F.3d 505, 511 (8th Cir.2007)).

In the Peralez case, the court declined to suppress the fruits of the trooper’s search because it concluded that the prolonged detention was not a but-for cause of the discovery of the evidence. Id. The court pointed out that the drug dog was on the scene from the outset of the traffic stop-the trooper did not delay in order to bring the dog to the scene. Id. Furthermore, the court held that the trooper would have deployed his dog around the defendants’ car in that case regardless of the responses the trooper received from his inquiries. Id. Once the trooper’s dog did alert, an inevitable occurrence according to the court, the trooper had probable cause for the search. Id. at 1121-22. Thus, the court held that the prolonged detention was not the cause of the discovery of the evidence. Id.

The evidence in this case presents a closer question. In Peralez, as here, the trooper had his drug dog on the scene with him from the outset of the traffic stop. However, in Peralez, the officer indicated that he was going to deploy his drug dog regardless of the answers the defendants gave him to his questions. In this case, Trooper Oxner never made such a statement about his intentions during the recording of the traffic stop and at the evidentiary hearing in this case he did not testify that this was his unannounced intention. Nevertheless, the court concludes that the analysis of Peralez dooms defendants’ attempts to suppress the physical evidence in this case.

Since 7:55 am on the day of the stop, Trooper Oxner had been keeping a lookout for the defendants in their Pacifica because of the tip given to him by Trooper Swets. The court concludes that Trooper Oxner would have found some traffic infraction in order to pull over the Pacifica. As the one of the foremost experts on the Fourth Amendment has observed, once a driver is singled out as “suspicious” for some reason, “it is only a matter of time before some technical or trivial offense produces the necessary excuse for a traffic stop.” Wayne R. LaFave, 4 Search & Seizure: A Treatise on the Fourth Amendment, § 9.3 at 359 (4th ed. 2004). Here, the defendants obliged Trooper Oxner by exceeding the speed limit. Once stopped, the court concludes that Trooper Oxner would not have allowed the Pacifica to depart without deploying Keya around the vehicle. A drug dog sniff is not a search within the purview of the Fourth Amendment and, if no additional delay is involved in employing a drug dog, the officer need not demonstrate probable cause or reasonable suspicion before embarking on a drug dog sniff. Caballes, 543 U.S. at 406-09, 125 S.Ct. 834; United States v. Lopez-Mendoza, 601 F.3d 861 (8th Cir.2010); United States v. Mohamed, 600 F.3d 1000 (8th Cir.2010).

The court emphasizes that it is not concluding that Trooper Swets’ tip itself provided reasonable suspicion for the initial traffic stop. Trooper Oxner testified that he did not know the identity of the Wyoming officer who contacted Swets and did not know what the nature of the Wyoming officer’s suspicions were. Thus, Trooper Oxner had neither sufficient information about the reliability of the source for the tip nor did he have sufficiently complete and detailed information about the nature of the tip itself in order to have a reasonable suspicion based on the tip alone. See White, 496 U.S. at 328-29, 110 S.Ct. 2412; Adams v. Williams, 407 U.S. 143, 144-47, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); 4 Search & Seizure § 9.5(h), at 571 (stating that the central issue of cases involving tips in the context of Terry stops “is whether the informant’s information is so reliable and complete that it makes past, present or pending criminal conduct sufficiently likely to justify a stopping of the designated person for investigation.”). Rather, the court’s conclusion is based on the undisputed fact that defendants were speeding. Once they gave Trooper Oxner that valid reason to stop them, the court concludes that Trooper Oxner would not have allowed defendants to leave without deploying his readily-available drug dog, Keya. That inevitable deployment and the equally inevitable alert by Keya provided Trooper Oxner with the necessary probable cause for the search.

Regrettably, this is a case where the defendants may not avail themselves of the remedy of suppression as a result of Trooper Oxner’s Fourth Amendment violation. The court leaves for another day and a higher court Chief Justice Marshal’s observation that every right has a remedy or it is no right at all. Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 163-64, 2 L.Ed. 60 (1803).

B. Whether Keya’s Alert Provided Probable Cause for the Search

As an alternative argument, defendants question Keya’s reliability and therefore also question the probable cause for the search. Eighth Circuit precedent provides that an alert by a drug dog provides probable cause for a search if the drug dog is reliable. See Peralez, 526 F.3d at 1122; United States v. Sundby, 186 F.3d 873, 876 (8th Cir.1999) (citing, inter alia, United States v. Carrazco, 91 F.3d 65, 67 (8th Cir.1996); United States v. Delaney, 52 F.3d 182, 188 (8th Cir.1995)).

In the context of providing probable cause for the issuance of a search warrant, the Eighth Circuit has held that an affidavit to establish a drug dog’s reliability is sufficient if the affidavit states that the dog has been trained and certified in the detection of drugs. Sundby, 186 F.3d at 876 (citing United States v. Kennedy, 131 F.3d 1371, 1377 (10th Cir.1997); United States v. Berry, 90 F.3d 148, 153 (6th Cir.1996); United States v. Meyer, 536 F.2d 963, 966 (1st Cir.1976)). In a search warrant application, probable cause will not be defeated by the failure to attest to the dog’s track record or education. Sundby, 186 F.3d at 876 (citing Delaney, 52 F.3d at 188; Kennedy, 131 F.3d at 1376-77; Berry, 90 F.3d at 153; United States v. Klein, 626 F.2d 22, 27 (7th Cir.1980)).

In this case, the government introduced evidence that both Keya and Trooper Oxner were duly trained and certified and that they continued to receive continuing training and certification up through the time of the search in this case. Furthermore, neither the testimony at the evidentiary hearing in this case nor the court’s own review of the recording of the traffic stop in this case (Exhibit 1) cast any doubt on whether Keya alerted to the defendants’ vehicle. Accordingly, the court concludes that Keya’s alert provided'probable cause for Trooper Oxner’s search of the Pacifica.

Mr. Sandoval also argues that Trooper Oxner must have demonstrated probable cause for the deployment of Keya under the special circumstances of this case. These special circumstances alleged by Mr. Sandoval are that Keya routinely damages the vehicles to which she alerts. Thus, Mr. Sandoval argues that before Trooper Oxner could unleash a dog on defendants’ vehicle that he knew would damage the vehicle, probable cause must first be demonstrated.

The evidence introduced at the evidentiary hearing in this case does not bear out Mr. Sandoval’s assertion. No evidence was introduced that the defendants’ vehicle in this case was damaged by Keya. And Trooper Oxner testified that Keya has not routinely damaged vehicles in the past by alerting. Therefore, regardless of the legal viability of Mr. Sandoval’s argument, the court rejects the argument because the factual underpinning for the argument is lacking.

C. Whether Either Defendants’ Statements Should be Suppressed

Both defendants move to suppress their statements, however each defendant’s statement involve slightly different facts and arguments, so the court addresses each separately.

1. Mr. Sandoval’s Statements

Mr. Sandoval moves to suppress both his statements at the scene of the traffic stop and his statements later at the Highway Patrol shop to Agent Saroff. The court addresses each category of statements separately.

a. Statements to Trooper Oxner at the Traffic Stop

Mr. Sandoval argues that he was “in custody” on April 3, 2010, necessitating the advisement of his Miranda rights. Since Trooper Oxner did not advise Mr. Sandoval of his Miranda rights on this date, Mr. Sandoval argues that his statements at the traffic stop and the evidence obtained from his vehicle should be suppressed.

The holding of the Miranda case “is that an individual must be advised of the right to be free from compulsory self-incrimination, and the right to the assistance of an attorney, any time a person is taken into custody for questioning.” United States v. Griffin, 922 F.2d 1343, 1347 (8th Cir.1990) (citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). Miranda warnings protect an individual’s Fifth Amendment privilege against self-incrimination by “ensuring that a suspect knows that he may choose not to talk to law enforcement, to talk only with counsel present, or to discontinue talking at any time.” Colorado v. Spring, 479 U.S. 564, 574, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987). A Miranda warning is required prior to questioning whenever two conditions are present: (1) the suspect is being interrogated and (2) the suspect is in custody. United States v. Flores-Sandoval, 474 F.3d 1142, 1146 (8th Cir.2007); Griffin, 922 F.2d at 1347; United States v. Carter, 884 F.2d 368, 371 (8th Cir.1989).

Interrogation includes direct questioning or any practice reasonably likely to evoke an incriminating response from a suspect. See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Here, neither party disputes that Mr. Sandoval was being interrogated on April 3, 2010, and neither disputes that he was not advised of his Miranda rights. Therefore, whether the statements obtained at the traffic stop should be suppressed hinges on whether Mr. Sandoval was in custody at that time, thereby requiring the administering of Miranda warnings.

Some courts have placed the burden of proving that the defendant was not in custody at the time of the interrogation on the government. See United States v. Charbonneau, 979 F.Supp. 1177 (S.D.Ohio 1997). Other courts have placed the initial burden on the defendant to prove that he was “in custody,” with the burden of proof shifting to the government to prove a voluntary waiver only after the defendant has sustained his initial burden. See United States v. Moore, 104 F.3d 377, 391 (D.C.Cir.1997). The Eighth Circuit appears not to have addressed this issue yet, although some district courts within the circuit have. See e.g. United States v. Morriss, 2006 WL 3519344 (W.D.Mo.2006) (placing initial burden on defendant and citing to extra-circuit cases for authority). For purposes of this report and recommendation, the court has placed the burden of proving that Mr. Sandoval was not in custody on the government.

A suspect is considered to be “in custody” either upon his or her formal arrest or “under any other circumstances where the suspect is deprived of his” or her “freedom of action in any significant way.” Griffin, 922 F.2d at 1347 (citing Berkemer v. McCarty, 468 U.S. 420, 429, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)). Absent formal arrest, a suspect is deemed is be “in custody” where a reasonable person in the suspect’s position would have believed that his freedom of action had been curtailed to a “degree associated with formal arrest.” Berkemer, 468 U.S. at 442, 104 S.Ct. 3138; United States v. Black Bear, 422 F.3d 658, 661 (8th Cir.2005); Griffin, 922 F.2d at 1347; Carter, 884 F.2d at 370. The test is one of objective reasonableness judged from the point of view of the suspect, not from the point of view of the interrogator. Berkemer, 468 U.S. at 442, 104 S.Ct. 3138; Black Bear, 422 F.3d at 661; Griffin, 922 F.2d at 1347; Carter, 884 F.2d at 370. In determining whether a suspect reasonably believed himself or herself to be in custody, the court examines the totality of the circumstances. Carter, 884 F.2d at 370 (citing United States v. Lanier, 838 F.2d 281, 285 (8th Cir.1988) (per curiam)).

The Supreme Court in Berkemer addressed the issue of whether a motorist who is the subject of a traffic stop is “in custody” for purposes of Miranda. After the motorist is formally arrested on a traffic violation, no matter how minor, the Court held that Miranda warnings are required. Berkemer, 468 U.S. at 434-35, 104 S.Ct. 3138.

However, during the traffic stop itself and prior to arrest, the Court held that Miranda did not apply. Id. at 440-41, 86 S.Ct. 1602. The Court acknowledged that a traffic stop “significantly curtails the ‘freedom of action’ of the driver and the passengers” in the detained vehicle, noting that drivers who see a policeman’s signal neither feel free to ignore that signal nor to drive away, once stopped. Id. at 436, 86 S.Ct. 1602.

However, a traffic stop is generally devoid of those elements of coercion that prompted the announcement of the rule in Miranda. Id. at 436-38, 86 S.Ct. 1602. For example, the detention is presumptively temporary and brief, with the driver being allowed to continue on his way after a check of his license and registration and, perhaps, the issuance of a citation. Id. at 437, 86 S.Ct. 1602. Also, the interrogation takes place in public, subject to observation by pedestrians and other vehicles, thus reducing the ability of an unscrupulous policeman to “use illegitimate means to elicit self-incriminating statements and diminish[ing] the motorist’s fear that, if he does not cooperate, he will be subjected to abuse.” Id. at 438, 86 S.Ct. 1602. Thus, the Court concluded that the “noncoereive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not ‘in custody’ for purposes of Miranda.” Id. at 440, 86 S.Ct. 1602.

The facts of this case are controlled by the holding in Berkemer. Prior to handcuffs being placed on Mr. Sandoval, this was a routine traffic stop. Although he was not free to leave, neither was Trooper Oxner required to advise him of his Miranda rights. Berkemer, 468 U.S. at 440-41, 104 S.Ct. 3138. That situation changed as soon as Keya alerted and Trooper Oxner handcuffed Mr. Sandoval. However, no further interrogation took place after this point at the scene of the traffic stop. Accordingly, the court concludes that Mr. Sandoval’s motion to suppress his statements made at the scene of the traffic stop be denied.

b. Mr. Sandoval’s Statements to Agent Saroff

Mr. Sandoval also argues that his statements made in response to Agent SarofPs questions after he was placed in handcuffs should be suppressed because those questions preceded Agent Saroff s advisement of his Miranda rights. The government does not dispute that Agent Saroff asked Mr. Sandoval questions prior to the advisement of Miranda warnings. Nor does the government dispute that Mr. Sandoval was in custody at this point. However, the government contends that the pre-Miranda questions asked by Agent Saroff were routine booking questions not covered by the rule in Miranda.

As stated previously, a Miranda warning is required prior to questioning whenever two conditions are present: (1) the suspect is being interrogated and (2) the suspect is in custody. Flores-Sandoval, 474 F.3d at 1146; Griffin, 922 F.2d at 1347; Carter, 884 F.2d at 371. It is clear that Mr. Sandoval was in custody for purposes of Miranda when he was handcuffed and placed under formal arrest. Therefore, whether his statements should be suppressed depends on whether the statements were the product of police interrogation.

Interrogation includes direct questioning or any practice reasonably likely to evoke an incriminating response from a suspect. See Innis, 446 U.S. at 301, 100 S.Ct. 1682; see also United States v. Head, 407 F.3d 925, 925 (8th Cir.2005) (“Interrogation includes not only express questioning by law enforcement officers, but also words or actions that officers should know are reasonably likely to elicit an incriminating response from a suspect.”). The “words or actions” of the police must be outside the scope of words and actions that normally accompany the arrest and taking into custody of a defendant. United States v. Wipf, 397 F.3d 677, 685 (8th Cir.2005) (citing Innis, 446 U.S. at 301, 100 S.Ct. 1682).

At the outset, it is clear that, absent Miranda warnings, Agent Saroffs question as to whether Mr. Sandoval was in this country legally constitutes interrogation as any response could incriminate Mr. Sandoval and possibly lead to additional charges. See Head, 407 F.3d at 925. Indeed, one of the charges facing Mr. Sandoval requires proof that he is a non-immigrant alien. See Indictment, Count III at Docket No. 1, page 2 (alleging violations of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2)). There is a large body of law discussing what questions can be considered “routine booking questions” and thus permissible without advisement of Miranda rights and what questions are incriminating.

In Pennsylvania v. Muniz, 496 U.S. 582, 600-01, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990), the defendant, who had been arrested for driving under the influence following a traffic stop and had not been advised of his Miranda rights, was asked a series of questions regarding his name, address, height, weight, eye color, date of birth, and current age during the booking process at the police station. Id. at 585-86, 110 S.Ct. 2638. The defendant was also asked whether he knew what the date was of his sixth birthday. Id. at 586, 110 S.Ct. 2638. With regard to the first series of questions, the Court held that, although it disagreed with the government’s contention that the questions do not qualify as custodial interrogation, nevertheless such questions fell within a “routine booking question” exception to Miranda. Id. at 601, 110 S.Ct. 2638. Answers provided in response to routine booking questions designed to secure biographical data necessary to complete the booking proce