Opinion
CASE NO. 6:20-CR-00072
2021-09-27
UNITED STATES of America v. Sisi LABRADOR-PERAZA (01), Gabriel Rodriguez-Pedraza (02)
Craig R. Bordelon, Assistant US Attorney, U.S. Attorneys Office, Lafayette, LA, for United States of America. Cristie Gautreaux Gibbens, Public Defender, Federal Public Defenders Office, Lafayette, LA, for Sisi Labrador-Pedraza. Gerald J. Block, Lafayette, LA, for Gabriel Rodriguez-Pedraza.
Craig R. Bordelon, Assistant US Attorney, U.S. Attorneys Office, Lafayette, LA, for United States of America.
Cristie Gautreaux Gibbens, Public Defender, Federal Public Defenders Office, Lafayette, LA, for Sisi Labrador-Pedraza.
Gerald J. Block, Lafayette, LA, for Gabriel Rodriguez-Pedraza.
RULING
ROBERT R. SUMMERHAYS, UNITED STATES DISTRICT JUDGE
Before the Court are Motions to Suppress filed by Defendants Sisi Labrador-Peraza and Gabriel Rodriguez-Pedraza. [ECF Nos. 39, 43; see also ECF No. 46]. The motions were referred to the Magistrate Judge for Report and Recommendation. The Magistrate Judge recommends the motions be granted. [ECF No. 57]. The Government objects to the Magistrate Judge's recommendation [ECF No. 58], and Defendants have responded to the Government's objection. [ECF Nos. 59, 61]. For the reasons that follow, the Court overrules the Government's objection and adopts the findings and conclusions of the Magistrate Judge set forth in the Report and Recommendation.
The Magistrate Judge found that the initial stop of Defendants’ vehicle was unlawful, and therefore the motions to suppress should be granted. [ECF No. 57 at 11]. The Government objects to this conclusion, arguing that: (1) "the plain text of Mississippi Code Annotated Section 63-7-59 does not preclude that a vehicle registered in another state can violate the statute," and (2) the Magistrate Judge's finding "that Section 63-7-59 could not reasonably be interpreted by a law enforcement officer as being applicable to the subject vehicle under the circumstances" is erroneous. [ECF No. 58 at 2]. The Court addresses these objections in turn.
12 The portion of the Mississippi statute regulating window tinting applies only to motor vehicles "required to be registered" in Mississippi. Miss. Code. Ann. § 63-7-59(1) and (2) ; see also Fluker v. State, 44 So.3d 1029, 1031 (Miss. Ct. App. 2010) ("Mississippi's prohibition regarding tinted or darkened windows, applies only to vehicles registered in Mississippi."). The Government contends that although Agent Holland was aware prior to the stop that Defendants’ vehicle was registered in Florida, the vehicle nevertheless may have been "required to be registered" in Mississippi if, for instance, Defendants had moved to Mississippi more than thirty days prior to the stop, or if Defendants were residents of Mississippi who had bought the vehicle out of state more than seven days prior to the stop. [ECF No. 58 at 4 & n.2]. Stated more simply, the Government argues that the stop was reasonable because the out-of-state vehicle was perhaps "required to be registered" in Mississippi, and therefore "Agent Holland had probable cause to stop the vehicle." Id. at 6. The problem with the Government's argument is that it is based merely upon after-the-fact justifications, without supporting evidence, on an issue for which the Government bears the burden of proof. At the suppression hearing, Agent Holland testified on direct examination that he was familiar with the Mississippi law addressing window tint. However, there was no testimony whatsoever as to whether Agent Holland was aware that the Mississippi law applies only to vehicles required to be registered in that state. Further, there was no testimony that although the law applies only to vehicles required to be registered in Mississippi, Agent Holland nevertheless suspected that this particular vehicle should have been registered in Mississippi and was therefore potentially in violation of Mississippi's window tinting law. Because there was no testimony indicating Agent Holland was even aware that the Mississippi window tint statute applies only to vehicles required to be registered in that state, the Court cannot make the inductive leap invited by the Government—i.e. that Agent Holland was aware that the statute did not apply to out-of-state vehicles but he nevertheless had a reasonable suspicion that Defendants had become residents of Mississippi for a long enough period of time to require that they register their vehicle with that State and modify their window tint. Courts may not "arrive at probable cause simply by piling hunch upon hunch." United States v. Valenzuela, 365 F.3d 892, 897 (10th Cir. 2004). For these reasons, the Court finds the government failed to carry its burden and show that the stop was justified at its inception because Agent Holland had a reasonable suspicion that this particular vehicle had committed a violation of Mississippi law by failing to register the vehicle with Mississippi authorities. See United States v. Raney, 633 F.3d 385, 391-92 (5th Cir. 2011).
There are some exceptions to the general rule, but they are inapplicable to this matter. See e.g. Miss. Code. Ann. § 63-7-59(3) and (4) (the statute does not apply to school buses, buses used for public transportation, law enforcement vehicles, windows tinted before factory delivery, vehicles belonging to persons with a "physical condition or disease that is seriously aggravated by minimum exposure to sunlight," etc.)
United States v. Raney , 633 F.3d 385, 391 n.1 (5th Cir. 2011).
In its second objection, the Government argues the scope of the Mississippi window tinting law is ambiguous, and therefore the Court should find the stop passes constitutional muster. The Court finds the Mississippi statute is clear—it applies only to "motor vehicles required to be registered in [Mississippi]."
Accordingly,
IT IS ORDERED, ADJUDGED, AND DECREED that, consistent with the Report and Recommendation [ECF No. 57], Defendants’ Motions to Suppress [ECF Nos. 39, 43] are GRANTED.
REPORT AND RECOMMENDATION
PATRICK J. HANNA, UNITED STATES MAGISTRATE JUDGE
Before the Court are the Motions to Suppress filed by Defendants, Sisi Labrador-Peraza and Gabriel Rodriguez-Pedraza. (Rec. Doc. 39 and 431 ). The Government opposed the Motion (Rec. Doc. 49). Defendants replied (Rec. Doc. 50; 51). The Motions were referred to the undersigned magistrate judge for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of this Court. Considering the evidence, the law, and the arguments of the parties, and for the reasons fully explained below, it is recommended that Defendants’ Motions be GRANTED.
Factual Background
Following an initial complaint in February 2020, Defendants were indicted on charges of theft or receipt of stolen mail in March 2020. (Rec. Doc. 1; 16). After delays necessitated by the COVID-19 pandemic, Labrador-Peraza's counsel filed the Motion to Suppress at issue, which Rodriguez-Pedraza adopted. Defendants seek to suppress evidence seized from the February 3, 2020 traffic stop by Agent Holland with the South Mississippi Metro Enforcement Team ("MET") which led to their arrest. The Court held a hearing on December 15, 2020. (Rec. Docs. 52, 53, 56). A Spanish interpreter was present for both Defendants; although, Rodriguez-Pedraza speaks English.
Agent Holland testified that he has been a U.S. Border Patrol agent for thirteen years. (Rec. Doc. 56 at 7:8-9). He is also assigned as a criminal interdiction agent to the MET. (Rec. Doc. 56 at 7:17-8:10; 9:25-10:1). Agent Holland described his position as an officer working traffic enforcement who is trained to recognize criminal activity such as human trafficking, drug trafficking, bulk cash smuggling, and other major felonies. He further explained that as a border patrol agent, his primary focus is on transnational organizations and terrorist groups. (Rec. Doc. 56 at 23:4-9). He speaks both English and Spanish.
Since he began working with the MET eight years earlier, Agent Holland estimated that he has made more than 2,000 traffic stops in the area where this stop occurred. (Rec. Doc. 56 at 10:3-5). His agency did not provide either a dash camera for his vehicle or a body camera, and he did not have any such camera on the date of this stop. (Rec. Doc. 56 at 11:6-11). On the date in question, February 3, 2020, Agent Holland was parked in his unmarked Border Patrol unit in the median of Interstate 10 in Jackson County, Mississippi observing eastbound traffic. Other officers in marked units were also parked in the median. (Rec. Doc. 56 at 11:15-12:11).
Agent Holland testified that he first noticed Defendants’ vehicle approaching in the middle lane and begin to "coast," which he described as traveling at a normal rate of speed and then beginning to slow down as it reached the agent's location without slamming on the brakes. (Rec. Doc. 56 at 12:23-13:2). He described this coasting behavior as a "preindicator" of criminal activity, because it suggests a reaction to law enforcement presence. After pulling on to the interstate to catch up with the vehicle, he noticed that traffic was beginning to bottleneck behind it. He determined the vehicle's speed to be slightly less than 60 miles per hour.2 (Rec. Doc. 56 at 13:9-24). Dispatch advised that the car's temporary paper tag was registered to Labrador-Peraza in Florida. (Rec. Doc. 56 at 29:19-30:16).
As Agent Holland was driving behind and to the side of Defendants’ vehicle, he observed that the back windshield and back windows were "darkly tinted," so that he could not see through them. (Rec. Doc. 56 at 14:14-23. See also Narrative at Rec. Doc. 39-2). He did not have a window tint detection device; however, he testified that he has seen window tint with less than the 28% light transmittance mandated by Mississippi law. One is unable to see through such tint, and Agent Holland was unable to see through the Defendants’ rear tinted windows. (Rec. Doc. 56 at 14:13-23).
Upon stopping the car, Agent Holland first contacted the driver, Rodriguez-Pedraza. They communicated in English as Agent Holland asked for his driver's license. Rodriguez-Pedraza told Agent Holland he did not have a driver's license, but he produced an ID on his phone. Agent Holland directed Rodriguez-Pedraza to wait at the passenger side of his Border Patrol unit. (Rec. Doc. 56 at 17:15-23).
Agent Holland then approached the passenger, Labrador-Peraza, who produced a Florida driver's license. In response to Agent Holland's question, Labrador-Peraza advised that they had come from Houston after visiting family for two days. (Rec. Doc. 56 at 18:14-17). Agent Holland returned to his unit to run the records check on both Defendants. While those checks were pending, Agent Holland discussed the reasons for the stop with Rodriguez-Pedraza and asked about their itinerary. Rodriguez-Pedraza told him they had gone to Louisiana to help his cousin whose eighteen-wheeler had broken down. In response to Agent Holland's question, Rodriguez-Pedraza confirmed that they had not gone anywhere else other than Louisiana. (Rec. Doc. 56 at 19:1-13).
Agent Holland described Rodriguez-Pedraza's demeanor during the foregoing exchange as exhibiting "high levels of anxiety," with "extremely heavy breathing" and constantly tapping his fingers on the dash. (Rec. Doc. 56 at 19:14-19). This behavior continued even after Agent Holland informed Rodriguez-Pedraza that he was not going to be issuing a citation. Agent Holland interpreted this behavior to mean Rodriguez-Pedraza was "nervous about something other than getting a citation." (Rec. Doc. 56 at 19:20-21).
When the records check was complete, Agent Holland discovered that Rodriguez-Pedraza had a criminal history including several arrests for theft and fraud and a conviction for statutory rape. The records check also revealed that Rodriguez-Pedraza was an illegal alien from Cuba. (Rec. Doc. 56 at 28:18-20). At that point, Agent Holland asked Rodriguez-Pedraza for consent to search the vehicle. He then advised Labrador-Peraza that he was going to search the vehicle. She did not protest. (Rec. Doc. 56 at 22:22-23:2). Agent Holland's search revealed tools which he recognized as burglary tools, including an upholstery tool, a crowbar with transfer paint on it, and a hammer with plastic tape on the end, and a partially opened envelope with checks and money orders for various individuals and businesses. (Rec. Doc. 56 at 23:15-24:6). Defendants were later charged with theft or receipt of stolen mail. Defendants now seek suppression of the evidence seized during the search.
Law and Analysis
Defendants’ Motion to Suppress invokes the exclusionary rule, as it seeks to preclude the Government from introducing at trial certain evidence, specifically the items uncovered in the search of Defendants’ vehicle. "The exclusionary rule was created by the Supreme Court to ‘supplement the bare text’ of the Fourth Amendment, which ‘protects the right to be free from ‘unreasonable searches and seizures,’ but ... is silent about how this right is to be enforced.’ " United States v. Ganzer , 922 F.3d 579, 584 (5th Cir.), cert. denied , ––– U.S. ––––, 140 S. Ct. 276, 205 L.Ed.2d 171 (2019), citing Davis v. United States , 564 U.S. 229, 231, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). The exclusionary rule operates to exclude the prosecution from introducing evidence obtained unconstitutionally. Id. Its purpose is to deter officer misconduct, not to redress injury to the victim of a constitutional violation or to address judicial errors or misconduct. Id. , citing Davis v. United States , 564 U.S. 229, 236-37, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), and United States v. Leon , 468 U.S. 897, 916, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
Generally, "the defendant has the burden of proving, by a preponderance of the evidence, that the material in question was seized in violation of his constitutional rights." United States v. Roch , 5 F.3d 894, 897 (5th Cir. 1993). In cases such as this, where the officer acted without a warrant, the Government bears the burden of proof. Id. ; United States v. Castro , 166 F.3d 728, 733, fn. 6 (5th Cir. 1999).
In a case involving a traffic stop, such as this, the Fifth Circuit set forth the applicable law as follows:
The reasonableness of traffic stops and investigative detentions of persons suspected of criminal activity is evaluated through a two-step inquiry under Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See United States v. Stevens , 487 F.3d 232, 244 (5th Cir. 2007). First, we determine whether stopping the vehicle was initially justified by reasonable suspicion. Second, we evaluate whether the officer's actions were reasonably related in scope to the circumstances that justified the stop. In the context of a traffic stop, once an officer's initial suspicions "have been verified or dispelled, the detention must end unless there is additional reasonable suspicion supported by articulable facts." United States v. Estrada , 459 F.3d 627, 631 (5th Cir. 2006).
United States v. Powell , 732 F.3d 361, 369 (5th Cir. 2013).
I. Whether the initial traffic stop was valid.
Applying the foregoing two-step analysis, the Court must first determine whether the initial stop was justified by reasonable suspicion. If Defendant did not, in fact, commit a traffic offense, the stop was unjustified. United States v. Cole , 444 F.3d 688, 690 (5th Cir. 2006).
Agent Holland testified that he first noticed Defendants’ vehicle because it was "coasting." Upon pulling onto the interstate to follow it and run its plate, he observed that the vehicle was traveling under 60 miles per hour, that traffic was bottlenecking behind it, and that the back windshield and back windows had dark tint that he could not see through. (Rec. Doc. 56 at 12:18-16:5). He testified that, though he did not intend to issue any citations to the driver, the primary reason for the stop was the perceived window tint violation. (Rec. Doc. 56 at 12:18-20).
The Government did not identify, and the Court is not aware of, any Mississippi law which prohibits the activity Agent Holland described as coasting. Rather, the Government relies primarily on the perceived tint violation as the basis for the stop.
The Mississippi statute regarding window tint states in pertinent part:
(1) No person shall drive any motor vehicle required to be registered in this state upon the public roads, streets or highways in this state with any sign or poster, or with any glazing material which causes a mirrored effect, upon the front windshield, side wings or side or rear windows of the vehicle, other than a certificate or other paper required or authorized to be so displayed by law. No person shall drive any motor vehicle required to be registered in this state upon the public roads, streets or highways in this state with any tinted film, glazing material or darkening material of any kind on the windshield of a
motor vehicle except material designed to replace or provide a sun shield in the uppermost area as authorized to be installed by manufacturers of vehicles under federal law.
(2) From and after July 1, 2006, no person shall drive any motor vehicle required to be registered in this state upon the public roads, streets or highways in this state with any window tinted or darkened, by tinted film or otherwise, unless:
(a) The windshield of the vehicle has affixed to it a label as provided under subsection (6) of this section certifying that all the windows of the vehicle have a light transmittance of twenty-eight percent (28%) or more; or
Miss. Code. Ann. § 63-7-59 (West).
Defendants rely upon the facts that Agent Holland did not have a window tint detection device and his admission that he did not initially intend to issue a citation at the time he initiated the stop. Therefore, Defendants contend, because Agent Holland had neither the means, nor the intention to issue a citation, he lacked reasonable suspicion to initiate the stop.
The Court finds that the failure to have a window tint device is irrelevant to an analysis of reasonable suspicion. Indeed, under Mississippi law, "[p]robable cause for a traffic stop may arise from an officer's reasonable belief that windows of the vehicle are excessively tinted in violation of law." McCollins v. State , 798 So.2d 624, 627 (Miss. Ct. App. 2001) ; Walker v. State , 962 So. 2d 39, 42 (Miss. Ct. App. 2006). Defendants did not identify any Mississippi law which requires a tint detection device in order to question a driver with excessively dark tint. Agent Holland testified that in his thirteen years of experience, he has observed window tint that failed to comply with the statute, that such window tint cannot be seen through during the day, and that he could not see through Defendants’ window tint. Defendants offered no countervailing evidence as to Agent Holland's ability to recognize illegal tint or as to whether the tint was actually too dark.
Neither does the fact that Agent Holland did not intend to issue any citations affect a finding of reasonable suspicion. It has long been held that "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." Whren v. United States , 517 U.S. 806, 813, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996).
Notwithstanding the forgoing conclusions, the Court nevertheless finds that Agent Holland lacked reasonable suspicion to initiate the stop, because, by the unambiguous language of the tint statute, "Mississippi's prohibition regarding tinted or darkened windows, applies only to vehicles registered in Mississippi." Fluker v. State , 44 So. 3d 1029, 1031 (Miss. Ct. App. 2010). Agent Holland testified that, prior to the stop, he determined that the vehicle was registered in Florida. (Rec. Doc. 56 at 29:19-30:16).
Perhaps Agent Holland forgot or did not realize that Mississippi's tint law did not apply to non-resident vehicles. Although the United States Supreme Court has held that an officer's mistaken belief in the law, like a mistake in fact, may justify a traffic stop, the Court emphasized that such mistakes of law are permissible only to the extent they are objectively reasonable. Heien v. North Carolina , 574 U.S. 54, 60, 135 S. Ct. 530, 536, 190 L. Ed. 2d 475 (2014). In concurring with the majority in Heien , Justice Kagan explained that an officer's "subjective understanding" of the law in question is irrelevant. Id. at 69, 135 S. Ct. 530, 536. (Kagan, J., concurring). "[T]he government cannot defend an officer's mistaken legal interpretation on the ground that the officer was unaware of or untrained in the law." Id.
A court tasked with deciding whether an officer's mistake of law can support a seizure thus faces a straightforward question of statutory construction. If the statute is genuinely ambiguous, such that overturning the officer's judgment requires hard interpretive work, then the officer has made a reasonable mistake. But if not, not. As the Solicitor General made the point at oral argument, the statute must pose a "really difficult" or "very hard question of statutory interpretation." Tr. of Oral Arg. 50. And indeed, both North Carolina and the Solicitor General agreed that such cases will be "exceedingly rare."
Id. at 70, 135 S.Ct. 530. (Kagan, J., concurring).
See also United States v. Alvarado-Zarza , 782 F.3d 246, 250 (5th Cir. 2015) (analyzing an officer's interpretation of a Texas statute under the Heien analysis and finding it objectively unreasonable based on clear law contrary to the officer's interpretation). In short, reasonableness of a mistake in law is determined solely by whether the law at issue is ambiguous and could reasonably be interpreted as the officer claims. The only reasonable interpretation of the Mississippi window tint statute is that it does not apply to out of state vehicles, such as Defendants’ vehicle. Agent Holland knew that the vehicle was registered in Florida before initiating the stop. (Rec. Doc. 56 at 29:19-30:16). Absent any other valid basis for pulling Defendants’ vehicle over, the initial stop was unlawful, and the motion to suppress should be granted.
II. Whether the stop was reasonably related in scope or unreasonably prolonged.
Although the Court finds that the initial stop was unjustified, the Court shall address the second prong of the analysis for purposes of the District Court's review. Here, the Court must determine whether the officer's actions were reasonably related in scope to the circumstances justifying the stop. A traffic stop based on reasonable suspicion that the defendant has violated a traffic law "cannot continue for an excessive period of time or resemble a traditional arrest." Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty. , 542 U.S. 177, 185-86, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). "[A] traffic stop ‘can become unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a warning ticket." Rodriguez v. United States , 575 U.S. 348, 354–55, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015), quoting Illinois v. Caballes , 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). "The time reasonably required to complete the mission of issuing a traffic ticket can include the time it takes to inspect the driver's license, automobile registration, and proof of automobile insurance; run computer checks; determine whether there are outstanding warrants against the driver; and ask the purpose and itinerary of the trip." United States v. Spears , 636 F. App'x 893, 901 (5th Cir. 2016), citing Rodriguez , 135 S.Ct. at 1615 and United States v. Pack , 612 F.3d 341, 350 (5th Cir.), opinion modified on denial of rehearing , 622 F.3d 383 (5th Cir. 2010). "An officer's subsequent actions are not reasonably related in scope to the circumstances that caused him to stop the vehicle if he detains its occupants beyond the time needed to investigate the circumstances that caused the stop, unless he develops reasonable suspicion of additional criminal activity in the meantime." United States v. Berry , 664 F. App'x 413, 418 (5th Cir. 2016), as revised (Dec. 14, 2016), quoting Pack , 612 F.3d at 350. See also United States v. Andres , 703 F.3d 828, 833 (5th Cir. 2013). "It is not the duration of time, but the quantity of evidence, that determines whether reasonable suspicion survives the officer's background check." United States v. Jenson , 462 F.3d 399, 406 n. 7 (5th Cir. 2006).
The Fifth Circuit recently summarized the standard of reasonable suspicion as follows:
A reasonable suspicion consists of "specific and articulable facts ... taken together with rational inferences from those facts" that reasonably suggest "criminal activity [is] afoot." Although reasonable suspicion cannot consist simply of an officer's hunch that an individual is engaged in illegal activity, only "some minimal level of objective justification" is required. In our review, we must consider the "totality of the circumstances" that confronted the law enforcement officer. Observations that by themselves are susceptible to innocent explanations, when taken together, can still amount to reasonable suspicion. "In considering whether officers reasonably suspect someone of criminal activity, we defer to their law enforcement experience, recognizing that trained officers may draw inferences from certain facts ‘that might well elude an untrained person.’ "
United States v. Burgos-Coronado , 970 F.3d 613, 619 (5th Cir. 2020) (citations omitted).
Defendants contend their detention was unconstitutionally extended without justified basis. The Government maintains that Agent Holland had reasonable suspicion to detain Defendants after having obtained their information, because 1) Defendants offered different accounts as to the purpose of their trip; 2) Rodriguez-Pedraza exhibited signs of anxiety, including tapping his fingers and breathing heavily; and 3) Rodriguez-Pedraza had a criminal record.
An officer may permissibly examine a driver's license and vehicle documents, run a computer check on both, and ask about the purpose and itinerary of the driver's trip during a traffic stop. United States v. Brigham , 382 F.3d 500, 508 (5th Cir. 2004). Occupants’ conflicting versions of their trip itinerary may, together with other suspicious facts, justify the officer's further investigation. Id. "[A]n officer may ask questions on subjects unrelated to the circumstances that caused the stop, so long as these unrelated questions do not extend the duration of the stop. United States v. Pack , 612 F.3d 341, 350 (5th Cir.), opinion modified on denial of reh'g , 622 F.3d 383 (5th Cir. 2010).
An officer's suspicion may also be aroused by a driver's obvious anxiety. See Brigham , 382 F.3d at 513-14 (driver "seemed nervous," with shaking hands, and answered a question with a question; although, the court noted that the video did not show obvious nervousness) and Pack , 612 F.3d at 345 (heavy breathing, shaking hands, pulsing carotid artery). Indeed, as the court observed in Pack , "[w]hen the occupants of a vehicle are nervous and tell such irreconcilable stories to the police, the number of likely explanations for their conduct is limited." Pack , 612 F.3d at 362.
On the other hand, a driver's criminal history should not serve the basis for reasonable suspicion. See discussion in United States v. Alvarado , 989 F. Supp. 2d 505, 519 (S.D. Miss. 2013). Nevertheless, disregarding the invalidity of the initial stop for purposes of this analysis, the Court finds that Agent Holland permissibly detained the driver, Rodriguez-Pedraza, beyond the time it took to run the background checks, because Agent Holland determined that Rodriguez-Pedraza was an illegal alien and lacked a valid license. "[I]llegal aliens are ‘person[s] whose unregistered presence in this country, without more, constitutes a crime." De La Paz v. Coy , 786 F.3d 367, 379 (5th Cir. 2015), quoting I.N.S. v. Lopez-Mendoza , 468 U.S. 1032, 1047, 104 S. Ct. 3479, 3487, 82 L. Ed. 2d 778 (1984). The presence of an illegal alien may justify additional detention. See United States v. Ross , 400 F. Supp. 2d 939, 944 (W.D. Tex. 2005). See also United States v. Chavez , 281 F.3d 479, 485 (5th Cir. 2002), finding that officers had reasonable cause to detain the defendant as an illegal alien. Rodriguez-Pedraza's status as an illegal alien, in conjunction with his lack of a valid license, observed signs of nervousness, and Defendants’ differing accounts of their itineraries, renders his sustained detention justified.
Defendants cite several cases for the proposition that nervousness and inconsistencies in statements are not enough to create reasonable suspicion; however, in those cases, each of the defendant's background checks came back clean. For instance, in United States v. Santiago the Fifth Circuit considered the following facts: the defendant driver and his passenger were pulled over due to an object illegally hanging on the rearview mirror. The driver and passenger gave slightly different accounts of the reason for their trip. Both background checks came back clean, but the officer nonetheless felt "uneasy" and obtained consent to search the vehicle, which eventually yielded narcotics. United States v. Santiago , 310 F.3d 336, 338-39 (5th Cir. 2002). The court held that after the officer initially investigated the cause of the stop and once the background checks came back clean, the officer violated the driver's constitutional rights by detaining him any longer. Id. at 342. Defendants also cite United States v. Dortch , 199 F.3d 193, 198 (5th Cir. 1999), opinion corrected on denial of reh'g , 203 F.3d 883 (5th Cir. 2000), in which the court held that officers unreasonably detained the defendant following a traffic stop after the background check came back clean. As the Fifth Circuit majority opined in United States v. Brigham , discussing Santiago and Dortch , the inquiry is one of timing and sequence: "[A]fter the computer checks came up ‘clean,’ there remained no reasonable suspicion of wrongdoing by the vehicle occupants. Continued questioning thereafter unconstitutionally prolonged the detentions." United States v. Brigham , 382 F.3d 500, 510 (5th Cir. 2004) (emphasis in original).
Unlike the foregoing cases, in this case Agent Holland learned that the driver, Rodriguez-Pedraza, was an illegal alien from his background check. In other words, Rodriguez-Pedraza's background check did not come back clean. At that time, Agent Holland was justified in detaining Defendants for further investigation and obtaining consent to search.
A different analysis is required of Labrador-Peraza's detention, whose only suspicious behavior was a differing itinerary. A passenger has standing to challenge the constitutionality of a traffic stop. Brendlin v. California , 551 U.S. 249, 252, 127 S. Ct. 2400, 2404, 168 L. Ed. 2d 132 (2007). The question here is not whether the traffic stop was unconstitutional (for the Court has already found in the affirmative), but, under the second prong of the analysis, whether the innocent passenger's prolonged seizure, in the wake of the driver's validly prolonged seizure and consent to search, renders the search unconstitutional.
Assuming for purposes of analysis that Labrador-Peraza was at some point subject to prolonged detention prior to Rodriguez-Pedraza's consent to search, the Court must determine whether Agent Holland had reasonable suspicion for her prolonged detention. Defendants concede that United States v. Pack guides the analysis in this case (Rec. Doc. 56 at 53:11-19). In Pack , the Fifth Circuit held that inconsistent stories which constitute more than "minor or irrelevant inconsistencies" must be considered in "the totality of the circumstances. Pack , 612 F.3d at 358. Labrador-Peraza's and Rodriguez-Pedraza's statements of their itineraries were significantly different: Labrador-Peraza said they had been in Houston visiting family, and Rodriguez-Pedraza denied having gone anywhere other than Louisiana to assist his cousin. Yet, Labrador-Peraza gave no other indications of wrongdoing. Merely associating with an illegal alien is insufficient. See United States v. Hernandez-Reyes , 501 F. Supp. 2d 852, 860 (W.D. Tex. 2007) ("The Court does not believe that reasonable suspicion is created solely by a person's physical proximity to a suspected illegal alien or the fact that the person is merely engaged in a common task with the alien.")
The evidence shows that after having run the records checks and obtained Rodriguez-Pedraza's consent to search, Agent Holland returned Labrador-Peraza's license to her. However, because Agent Holland continued to detain her car in the midst of a busy interstate, the Court reasonably assumes Labrador-Peraza would not have felt free or able to leave. See United States v. Dortch , 199 F.3d 193, 198 (5th Cir. 1999), opinion corrected on denial of reh'g , 203 F.3d 883 (5th Cir. 2000).
Ultimately, the Court need not decide whether Labrador-Peraza's detention was unconstitutional, because the decision would not change the conclusion. Agent Holland, having obtained valid consent from Rodriguez-Pedraza (discussed below), was legally authorized to search the vehicle at the time of Labrador-Peraza's prolonged detention. As the Fifth Circuit explained:
Generally, "the exclusionary rule prohibits the introduction at trial of all evidence that is derivative of an illegal search, or evidence known as the ‘fruit of the poisonous tree.’ " United States v. Singh , 261 F.3d 530, 535 (5th Cir. 2001). However, evidence should not be excluded merely because it would not have been discovered "but-for" a constitutional violation. Wong Sun v. United States , 371 U.S. 471, 487–88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). "Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Id. at 488, 83 S.Ct. 407 (internal quotation marks and citation omitted).
United States v. Hernandez , 670 F.3d 616, 620 (5th Cir. 2012).
The Court finds that, even if Labrador-Peraza had been unconstitutionally detained, no evidence was derived from that detention. Agent Holland did not exploit that illegality. Instead, as discussed below, he searched the vehicle pursuant to Rodriguez-Pedraza's valid consent. Thus, even assuming Labrador-Peraza was unconstitutionally detained, the evidence seized during the search should not be suppressed for that reason.
III. Validity of Rodriguez-Pedraza's consent to search.
Generally, a warrantless search is unconstitutional, with limited exceptions. United States v. Zavala , 459 Fed.Appx. 429, 433 (5th Cir. 2012) (citing United States v. Jenkins , 46 F.3d 447, 451 (5th Cir. 1995) ). One such exception is a valid consent. Id. Rodriguez-Pedraza did not raise the validity of his consent to search as an issue until his Reply. (Rec. Doc. 51). However, the Government specifically acknowledged the issue at oral argument and was prepared to address it through Agent Holland's testimony. (Rec. Doc. 56 at 5:7-6:3). C.f. United States v. Rodriguez , 602 F.3d 346, 361 (5th Cir. 2010) (An exception to the general rule that the court should not consider issues first raised in the reply occurs when the responding party first raises the issue, eliminating any surprise).
To determine whether consent was validly given, the court asks (1) whether consent was voluntary and (2) whether it was an independent act of free will. United States v. Jenson , 462 F.3d 399, 406 (5th Cir. 2006). In answering the first inquiry, the court applies the following factors to determine whether consent was voluntary: (1) the voluntariness of the defendant's custodial status; (2) the presence of coercive police procedures; (3) the extent and level of the defendant's cooperation with the police; (4) the defendant's awareness of his right to refuse consent; (5) the defendant's education and intelligence; and (6) the defendant's belief that no incriminating evidence will be found. Id. The government bears the burden of proving that consent was voluntary. Id.
In answering the second question – whether consent was an independent act of free will, the court considers 1) the temporal proximity of the illegal conduct and the consent; 2) the presence of intervening circumstances; and 3) the purpose and flagrancy of the initial misconduct. Consent obtained during an illegal detention is invalid. Id. at 407. As discussed above, the initial traffic stop (i.e. detention) was unconstitutional, such that Rodriguez-Pedraza's subsequent consent to search was invalid. However, if considering only Rodriguez-Pedraza's subsequently prolonged detention, because this detention would have been constitutional based upon Agent Holland's reasonable suspicion (also as discussed above), Rodriguez-Pedraza's consent in this scenario was valid.
Agent Holland testified that his agency did not require him to have written consent forms. Though such forms are available for his use, he did not have any that particular day, because he had run out the day before and had not had the opportunity to print more. When Agent Holland asked Rodriguez-Pedraza for consent to search, he advised Rodriguez-Pedraza of his right to say no and that he, Agent Holland, would take no enforcement action for Rodriguez-Pedraza's infractions if he said no. Rodriguez-Pedraza assented without questions or hesitation and told Agent Holland there was nothing in the vehicle. Their conversation was English, and Agent Holland had no doubt that Rodriguez-Pedraza comprehended the conversation. In any event, Agent Holland could have spoken Spanish had it been necessary. Rodriguez-Pedraza offered no contradictory evidence. Applying these facts to the voluntariness factors stated above, the Court finds that Rodriguez-Pedraza's consent was voluntary.
The Court must further note that Rodriguez-Pedraza consented to the search of the car, though the owner of the car, Labrador-Peraza, was the passenger. The Fifth Circuit has held that the co-occupant of a vehicle who has permission to drive enjoys joint control over the vehicle and may give valid consent to search it, even though the passenger may have a greater ownership interest. United States v. Crain , 33 F.3d 480, 484 (5th Cir. 1994). Where the owner/passenger fails to object, the officer may reasonably imply the consent is valid. See United States v. Morales , 861 F.2d 396, 400 (3d Cir. 1988), cited with approval by Crain , 33 F.3d at 484.
After Agent Holland obtained Rodriguez-Pedraza's consent to search, he approached Labrador-Peraza, informed her that the driver had given consent to search, and asked her to step out of the vehicle. She did not protest or ask any questions. Because Labrador-Peraza did not object to Agent Holland's search or otherwise attempt to undermine Rodriguez-Pedraza's consent, Agent Holland was authorized to conduct the search. Otherwise, Defendants have presented no facts indicating that the search was invalid for lack of consent.
Conclusion
The Court finds that Agent Holland's initial stop of Defendants’ vehicle for illegally dark window tint was invalid, because the applicable Mississippi statute regarding window tint did not apply to their vehicle. The Motions to Suppress should be granted on these grounds. However, if the initial stop were found to be valid, the Court finds that Rodriguez-Pedraza's detention was constitutional, because Agent Holland had reasonable suspicion based upon the totality of the circumstances, including his lack of a valid license, his nervousness, inconsistent stories with the passenger, and his status as an illegal alien. Regardless of whether Labrador-Peraza was unconstitutionally detained thereafter, the Court finds that Agent Holland was nonetheless authorized to search the vehicle pursuant to Rodriguez-Pedraza's valid consent. Again, analysis of the circumstances occurring after the initial stop is irrelevant unless the initial stop was justified. The Court finds that it was not. Therefore, the Court holds that Defendants’ Motions to Suppress (Rec. Doc. 39; 43) should be GRANTED.
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Crim. P. 59(b), parties aggrieved by this recommendation have fourteen days from service of this report and recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within fourteen days after being served with of a copy of any objections or responses to the district judge at the time of filing.
Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in the report and recommendation within fourteen days following the date of its service, or within the time frame authorized by Fed. R. Crim. P. 59(b) shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Association , 79 F.3d 1415 (5th Cir. 1996) (en banc), superseded by statute on other grounds , 28 U.S.C. § 636(b)(1).
THUS DONE in Chambers, Lafayette, Louisiana on this 6th day of January, 2021.