Opinion
CR-00-1093-PHX-ROS
June 5, 2001
June 7, 2001
Order
Defendant Espinoza-Sanchez ("Espinoza-Sanchez") filed a Motion to Suppress Evidence and a Motion to Suppress Statements on January 12, 2001. Defendant Cardenas ("Cardenas") joined in both Motions. A hearing on the Motions occurred on February 26, March 7, and April 27, 2001.
Background
This Background section is derived from the uncontroverted testimony presented at the hearing on the Motions.
At approximately 12:33 a.m. on September 11, 2000, officer Lionel Bruce Poolaw, Jr., ("Poolaw") of the Colorado River Indian Tribes Police Department observed a van driven by Cardenas traveling along Highway 95 in Parker, Arizona. Poolaw, who was traveling in the direction opposite the van, believed that the van was exceeding the posted speed limit. After visually estimating the van's speed to be 45 m.p.h. and taking a radar measurement, which showed that the van was traveling 43 m.p.h., the officer turned his patrol car around and began to follow the van. Shortly thereafter, Poolaw initiated a traffic stop on the basis that the van was traveling 43 m.p.h. in a 35 m.p.h. zone.
The chronology of events, as presented at the hearing, was somewhat amorphous and difficult to discern. However, the Court has carefully reviewed the transcript and to a large extent has been able to piece together the order of events.
There are some inconsistencies in Poolaw's testimony. For example, there are inconsistencies regarding the exact location of the van when Poolaw first saw it. At first, Poolaw testified that the van was just before, or right at, a road sign lowering the speed limit to 35 m.p.h. (See Reporter's Transcript ("R.T.") at 33-34). However, he later testified that he first saw the van when it was between the 45 m.p.h. sign and the 35 m.p.h. sign, and he obtained his first radar measurement of the van's speed at that time. (See Id. at 35-36, 40, 68-69). He later testified that he first turned on the radar after the vehicle had passed the 35 m.p.h. sign. (Id. at 69). He subsequently testified that when he first saw the van, it was 150 to 200 feet from the 35 m.p.h. sign, but that he first obtained a radar measurement of the van's speed after it entered into the 35 m.p.h. zone. (Id. at 140-41).
After initiating the stop, Poolaw approached the driver side of the van. Using a flashlight, he could see into the rear of the van. He did not see any luggage in the van. When he reached the window next to the driver, Poolaw detected a slight scent of perfume, and he observed deodorizers in the vehicle.
Poolaw asked Cardenas where he was coming from and where he was heading. Cardenas responded that he was coming from Phoenix and going to Los Angeles. Poolaw then asked Cardenas for his driver's license, registration, and proof of insurance. Cardenas produced a driver's license and registration, but he had no proof of insurance. The name on the registration did not match the name on the driver's license, so Poolaw asked Cardenas to step out of the van to the rear of the vehicle. Poolaw asked Cardenas to explain why the registration was not in his name, and Cardenas replied that he had just purchased the vehicle and had not had time to register it.
It is unclear whether Poolaw asked Cardenas this question before requesting the driver's license, registration, and proof of insurance, or whether this question was posed after Poolaw asked Cardenas to step out of the vehicle. At first, Poolaw testified that he asked the question when Cardenas was still in the vehicle. (See R.T. at 11-12). However, he later testified that he asked the question after Cardenas stepped to the rear of the vehicle. (See Id. at 78).
After talking to Cardenas at the rear of the van, it became apparent to Poolaw that Cardenas had difficulty understanding English. Approximately ten minutes into the stop, Poolaw then went to his patrol unit to check on the driver's license and registration. Poolaw learned that there were no warrants outstanding for Cardenas, and the van was not listed as stolen. Poolaw requested that an interpreter be sent to the site of the stop. An interpreter arrived within ten minutes.
During the traffic stop, Poolaw observed items in the van and smelled particular scents which caused him to believe that the van might contain illegal drugs. Poolaw testified that he smelled faint perfume and saw deodorizers when he first approached the vehicle from the driver side. After he called for an interpreter, Poolaw made contact with the passenger, Espinoza-Sanchez. At that time, he noticed a strong scent of perfume, and he observed an open bottle of perfume on the dashboard. With his flashlight, Poolaw was able to see a box of Tide detergent, a box of fabric softener sheets, and air deodorizers in the van, including a deodorizer affixed to the gear shifter. Poolaw suspected that these items were being used to mask the scent of illegal drugs. In addition, Poolaw testified that Highway 95 "is a major drug route." However, Poolaw did not feel he possessed probable cause to search the vehicle.
After the interpreter, Ruben Villafana, arrived, Poolaw asked Villafana to verify the passenger's name and date of birth. Villafana then asked Cardenas to state who owned the vehicle, where he was coming from, and where he was headed. Cardenas responded that he owned the van and that he was coming from Phoenix and heading to Los Angeles. Villafana next asked Cardenas how long he had been in Phoenix, and Cardenas responded that he had been there since Friday. Villafana then asked Espinoza-Sanchez to state where they were coming from and where they were headed, She responded that they were coming from Phoenix, where they had been since Saturday night, visiting her cousin, and they were on their way to Los Angeles and Parker. At Poolaw's direction, Villafana then asked Cardenas for consent to search the van, and Cardenas consented.
Poolaw immediately conducted a search of the van and found cocaine. Some of the drugs were wrapped in sheets of fabric softener. During the search, Poolaw used a police dog which had been present in his patrol unit from the inception of the stop. Poolaw would have conducted the search without the dog because the dog was not certified, but he used the dog for training purposes.
Discussion
I. Validity of Traffic Stop
Defendants contend that the traffic stop was illegally executed. Plaintiff contends that the traffic stop was valid because Poolaw observed Cardenas commit a traffic violation.
This traffic stop was initiated solely because Poolaw believed the van was speeding and not because Poolaw suspected that the occupants of the van had committed a non-traffic offense. It therefore appears that probable cause was required to initiate the stop. See Whren United States, 517 U.S. 806, 810(1996). In Whren, the Supreme Court stated that "[a]s a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." In a subsequent opinion, the Supreme Court again referred to the probable cause requirement, stating: "In Whren we held that an individual officer's subjective intentions are irrelevant to the Fourth Amendment validity of a traffic stop that is justified objectively by probable cause to believe that a traffic violation has occurred." City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 456 (2000). Likewise, in their dissenting opinion in Edmond, 121 S.Ct. at 459, Chief Justice Rehnquist and Justices Thomas and Scalia explained the holding inWhren as follows: "The reasonableness of an officer's discretionary decision to stop an automobile, at issue in Whren, turns on whether there is probable cause to believe that a traffic violation has occurred." To be constitutionally permissible, a traffic stop must "not be `unreasonable' under the circumstances[,]" and the subjective intentions of police officers play no role in determining whether a traffic stop is permitted by the Fourth Amendment. Whren, 517 U.S. at 810, 813.
Several Ninth Circuit decisions suggest that only reasonable suspicion is required to initiate a traffic stop. See United States v. Lopez-Soto, 205 F.3d 1101, 1104 (9th Cir. 2000) (reasonable suspicion required for investigatory traffic stop, and there was no reasonable suspicion); see also United States v. Sigmond-Ballesteros, 247 F.3d 943, 947 (9th Cir. 2001) (With respect to an investigatory stop, "[a]n officer may not detain a motorist without a showing of a `particularized and objective basis for suspecting the particular person stopped of criminal activity.'"); United States v. Twilley, 222 F.3d 1092, 1095 (9th Cir. 2000) (finding no reasonable suspicion). In Lopez-Soto, which was decided more than eight months before the Supreme Court rendered its opinion inEdmond, the Ninth Circuit stated:
Prior to Whren, it was settled law that reasonable suspicion is enough to support an investigative traffic stop. . . . We do not believe that the Court in intended to change this settled rule. The passage on which Lopez-Soto relies tells us only that probable cause is sufficient to support a traffic stop, not that it is necessary. . . . [W]e do not believe that the casual use of the phrase `probable cause' was intended to set a new standard.
205 F.3d at 1104. More recently, the Ninth Circuit identified the applicable standard as "whether [the officer] had reasonable suspicion to believe that [the defendant] had violated a traffic law." United States v. King, 244 F.3d 736, 738 (9th Cir. 2001). However, in United States v. Wallace, 213 F.3d 1216, 1218, 1219 (9th Cir.), cert. denied, 121 S.Ct. 418 (2000), the Ninth Circuit characterized Whren as "[holding] that law enforcement agents conducting pretextual traffic stops must have probable cause to believe that a traffic violation occurred in order to detain a vehicle." However, in a footnote, the Wallace court declined to address whether reasonable suspicion was the appropriate standard because there was probable cause to support the stop. Id. at 1219 n. 3; but see United States v. Garcia, 205 F.3d 1182, 1186-87 (9th Cir.), cert. denied, 121 S.Ct. 138(2000) ("If the officer had probable cause to believe that a traffic violation had occurred, the seizure is reasonable.") (citingWhren).
Like the Wallace court, this Court finds that it is unnecessary to resolve whether probable cause or reasonable suspicion was required, because the Court concludes that there was probable cause to initiate the stop. Poolaw testified several times that he obtained a radar measurement of the van's speed after it had entered into the 35 m.p.h. zone, and that measurement indicated that the van was traveling at 43 m.p.h. Probable cause exists to stop a vehicle for a speeding violation if the vehicle is exceeding the posted speed limit. See Sigmond-Ballesteros, 247 F.3d at 948; see also State v. Ossana, 199 Ariz. 459, 18 P.3d 1258, 1259 (Ariz.App. 2001) (officers reasonably believed a traffic violation had been committed where the defendant was seen driving faster than the posted speed limit). Accordingly, the Court concludes that the traffic stop was valid.
Although Poolaw testified once on cross that he clocked the vehicle at 43 m.p.h. before it entered the 35 m.p.h. zone, he corrected himself, consistent with his direct testimony, that he took the measurement after the van entered into the 35 m.p.h. zone.
II. Validity of Detention and Search
Defendants contend that Poolaw exceeded the proper scope of the detention in various respects. In particular, they assert that Poolaw asked questions that did not relate to the purpose of the stop, and they were detained for an unreasonable length of time without probable cause. They also claim that Poolaw did not possess probable cause to search the van.
Once a vehicle is lawfully stopped on the basis that a traffic violation has been committed, a seizure occurs pursuant to Terry v. Ohio, 392 U.S. 1(1968), if the officer detains the occupants of the vehicle "longer than is necessary to effectuate the purpose of the stop."Florida v. Royer, 460 U.S. 491, 500(1983) (plurality opinion). At the time of such a seizure, the officer must possess a "reasonable suspicion" that a crime has been committed, or the seizure is unlawful. See Sigmond-Ballesteros, 247 F.3d at 946-52. "Reasonable suspicion must be founded upon a particularized and objective basis for suspecting the particular person stopped of criminal activity." Id. at 952 (internal quotes and cite omitted).
In this ease, Poolaw had accumulated and possessed a reasonable suspicion that the van contained illegal drugs based upon the indicators before him; the presence of deodorizers, the scent of perfume, the open bottle of perfume on the dashboard, the box of fabric softener sheets, the Tide detergent, the absence of luggage, and the fact that Highway 95 is a "major drug route." The question thus presented is whether the stop was so long in duration that it no longer constituted an investigative stop. Although there is "no rigid time limitation" on investigative stops, "if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop." United States v. Sharpe, 470 U.S. 675, 685(1985).
In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine 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. A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing. A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished. But "[t]he fact that the protection of the public might, in the abstract, have been accomplished by `less intrusive' means does not, itself, render the search unreasonable." The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.Id. at 686-87 (cites omitted) (upholding a 20-minute detention); see also Garcia, 205 F.3d at 1187 (delay for a "short period of time" in which a "brief conversation" conversation occurred did not render detention unreasonable); United States v. Fouche, 776 F.2d 1398, 1403 (9th Cir. 1985) (common traffic violation permits a "brief investigatory stop").
The Court finds that the vehicle was not detained for an unreasonable period of time. According to the testimony presented, the interpreter, Villafana, arrived approximately twenty minutes after the stop was initiated. At that point, Villafana presented a few questions to Cardenas and Espinoza-Sanchez, following which he asked Cardenas if he would consent to a search of the van. A search was conducted immediately thereafter, and during the course of that search, Poolaw discovered that the van contained illegal drugs.
The Court also finds that the questions presented by Poolaw and by Villafana did not exceed the scope of the detention. The means of investigation pursued by Poolaw "was likely to confirm or dispel" his suspicions quickly, and it was reasonable for Poolaw to call on an interpreter to assist in this regard, because Cardenas spoke little English and Espinzoa-Sanchez spoke none. See Sharpe, 470 U.S. at 686.
The sole question remaking is whether Cardenas' consent to a search of the van was valid. Defendants contend that Cardenas' consent was not freely and voluntarily given.
"In order to establish the validity of a consent to search, the government bears the heavy burden of demonstrating that the consent was freely and voluntarily given." United States v. Chan-Jimenez, 125 F.3d 1324, 1327 (9th Cir. 1997) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 222(1973)). The Court must evaluate the totality of the circumstances when determining whether consent was validly given.Chan-Jimenez, 125 F.3d at 1327.
Among the factors that tend to show a lack of voluntariness are: (1) the person was in custody; (2) the officer had his weapon drawn; (3) the officer failed to administer Miranda warnings; (4) the officer did not inform the person of his right to refuse to consent; and (5) the person was told that a search warrant could be obtained.Id. None of these factors, however, is dispositive of the voluntariness inquiry. Id. at 1327 n. 3. In addition, the Supreme Court has held that a lawfully seized defendant does not need "to be advised that he is `free to go' before his consent to search will be recognized as voluntary."Ohio v. Robinette, 519 U.S. 33, 35(1996).
The Court finds that at the time Cardenas consented to the search of the van, he was "in custody" for all practical purposes. Although persons temporarily detained during routine traffic stops are not "in custody" for purposes of Miranda, Defendants were subjected to treatment which rendered them "in custody" for practical purposes. See Berkemer v. McCarty, 468 U.S. 420, 440(1984). The fact that Poolaw asked Cardenas to step out of the vehicle did not alone cause Cardenas to be in custody.See Pennsylvania v. Mimms, 434 U.S. 106, 109-11(1977) (an officer may ask a driver to step out of the vehicle, even in the absence of any suspicion). However, Cardenas' driver's license was taken by Poolaw, and a reasonable person under Cardenas' circumstances could not have felt free to leave until his license had been returned to him. See United States v. Doe, 219 F.3d 1009, 1014 (9th Cir. 2000) (a person is "in custody" if a "reasonable person `would have believed that he was not free to leave.'") (cite omitted). In addition, Cardenas was not advised of his Mirannda rights prior to consenting to the search.
No evidence was presented at the hearing to suggest that Poolaw had his weapon drawn at the time Cardenas consented to the search. Cardenas was not told, however, that he could refuse to consent to a search, nor was he told that a search warrant could be obtained.
Because Poolaw opined that he did not have probable cause to search the van, it is not expected that he would have warned Cardenas that a warrant could be obtained.
Nevertheless, the uncontroverted testimony presented at hearing indicates that Cardenas told the interpreter that the officers "could go ahead and search" the van and that Cardenas "had no problem with it." (R.T. at 163). Cardenas also said that the officers "weren't going to find anything." (Id.). It appeared to Villafana and the Court finds that Cardenas understood everything Villafana was asking him. (Id.). The Court finds that Cardenas freely and voluntarily consented to the search of the van. See Chan-Jimenez, 125 F.3d at 1327.
III. Statements
Defendants seek to hold Plaintiff to its burden of establishing that the statements made by Defendants were not obtained in violation ofMiranda v. Arizona, 384 U.S. 436(1966). In particular, Defendants challenge whether the statements made during the field detention and the statements made eight hours later to DEA agents were obtained in violation of Miranda.
It is well established that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Miranda, 384 U.S. at 444. Custodial interrogation means "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. The Miranda decision requires that prior to any questioning, law enforcement officers must warn the person in custody that he has the right to remain silent, that any statements he makes may be used as evidence against him, and that he has the right to an attorney, retained or appointed. Id.
Once warnings have been given, the subsequent procedure is clear, if the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. . . . If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.Id. at 473-74. "Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence." Id. at 478.
Not all statements obtained by the police after a. person has been taken into custody are the product of interrogation. Rhode Island v. Innis, 446 U.S. 291, 299(1980). Rather, interrogation "must reflect a measure of compulsion above and beyond that inherent in custody itself."Id. at 300. "[T]he term `interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Id. at 301.
The Court finds that the statements made during the field detention were the product of custodial interrogation. Defendants were in custody, because a reasonable person under the circumstances would not have felt free to go. See discussion supra at 8. Because Defendants were not advised of their rights under Miranda before Poolaw presented questions to them, the Court will suppress all statements made by Defendants to Poolaw during the traffic stop. This determination is independent of the Court's finding regarding the validity of Cardenas' consent to a search of the vehicle as set forth above.
The Court also finds that the statements made to the DEA agents after Defendants were arrested were made after Miranda warnings were given by Detective Moran and were given freely and voluntarily, without any compelling influences. These statements were not tainted by the pre-arrest statements obtained in violation of Miranda, because the pre-arrest statements were not accompanied "by actual coercion or other circumstances calculated to undermine the [Defendants'] ability to exercise [their] free will [.]" Oregon v. Elstad, 470 U.S. 298, 309 (1985). Absent such coercion or other circumstances, "the admissibility of any subsequent statement should turn . . . solely on whether it is knowingly and voluntarily made." Id. After being advised of his rights, Cardenas agreed to answer further questions, and he did not state that he wanted an attorney. Similarly, after she was advised of her rights, Espinoza-Sanchez indicated that she was willing to answer questions, and she did not state that she wanted an attorney. Because these post-arrest statements were knowingly and voluntarily made, they will not be suppressed. See id.
Accordingly,
IT IS THEREFORE ORDERED that Defendants' Motion to Suppress Evidence is DENIED.
IT IS FURTHER ORDERED that Defendants' Motion to Suppress Statements is GRANTED with respect to the pre-arrest statements and DENIED with respect to the post-arrest statements.