Summary
finding reasonable suspicion to stop pursuant to K.S.A. § 8-133 where deputy could not see the license plate clearly when the car went by him on the highway
Summary of this case from U.S. v. Granados-OrozcoOpinion
Case No. 02-40123-JAR
April 23, 2003.
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS
On April 14, 2003, this matter came on for hearing before this Court on Defendant's Motion to Suppress Evidence and Statements (Doc. 25). The government filed a response (Doc. 29). Following presentation of testimony and evidence, this Court took the matter under advisement. The Court has viewed the videotape and in conjunction with evidence presented at the hearing, is now prepared to rule. For the following reasons, Defendant's motion is denied.
I. Facts
In the early morning hours of May 6, 2002, Deputy Knowles of the Lyon County Sheriff's Department was on patrol on I-35 near Emporia, Kansas. Deputy Knowles was parked in the median of I-35 in a fully marked sheriff's department vehicle, facing northbound traffic. At approximately 6:32 a.m., Deputy Knowles saw a black El Camino traveling northbound on I-35. Deputy Knowles could not see a visible license plate on the vehicle. Deputy Knowles pulled in behind the El Camino and activated his overhead, emergency lights. The videotape of the stop, taken from the mounted camera in Deputy Knowles' vehicle, shows that the tag was obstructed and not immediately visible through the tinted cover over the license plate. The El Camino had three occupants, with the driver being the defendant.
After coming to a stop behind the defendant's vehicle, Deputy Knowles radioed his location and pertinent information to county dispatch. Just as soon as the defendant's car came to a complete stop, the defendant jumped out of his vehicle and headed back to Deputy Knowles' vehicle. Deputy Knowles testified that this was suspicious activity because, in his experience, when a person immediately got out of their vehicle and headed towards his, they wanted to keep him away from the vehicle they were driving because of some illegal activity.
Deputy Knowles told the defendant to get back into his vehicle and followed him up to the driver's side door of the El Camino. Standing outside the El Camino, Deputy Knowles noticed an air freshener in the El Camino. Deputy Knowles testified that air fresheners are often used to mask the odor of narcotics. Deputy Knowles also noticed that there were three occupants in the vehicle, but it contained no visible luggage. Upon looking at the exterior of the El Camino, Deputy Knowles noticed that the El Camino appeared to have been recently painted on part of the bed. Deputy Knowles asked the defendant for a driver's license and the defendant produced a passport and a visa.
Deputy Knowles asked the defendant to come back to the patrol car while he ran a check on his identification. Deputy Knowles asked the defendant where he was going and the defendant said he was coming from Mexico and traveling to Kansas City for vacation. Deputy Knowles received verification of the identification. As Deputy Knowles proceeded to show the defendant the problem, that the car did not have a license plate, he noticed for the first time that the car had a license plate, but that it was obstructed by a dark tinted cover. Deputy Knowles told the defendant, both verbally and with hand signals, that this would have to be removed so that the license plate was clearly visible.
Deputy Knowles gave the defendant back his identification papers and then asked him if he could search his vehicle. Deputy Knowles testified that he used a word for search in Spanish, "buscar," and that the defendant did not seem to understand. The video appears to show the deputy and defendant discussing the search, without any indication that the defendant did not understand what the deputy was saying. Deputy Knowles then retrieved a consent to search form from his vehicle, which was written in Spanish, and provided it to the defendant. Deputy Knowles testified, and the tape confirms, that the defendant takes approximately 25 seconds to read the form. Deputy Knowles testified that after reading the form, the defendant nodded his head and said "Si" or yes. The audio recording was not turned on at this point. The angle of the videotape does not allow the Court to see the heads of the deputy or defendant at this point. The deputy and defendant moved toward the El Camino and the defendant helped the deputy lower the tailgate.
Deputy Knowles then went to the passenger's side of the El Camino in the bed area and tapped on the sidewalls, both behind and in front of the wheel well. Deputy Knowles also tapped on the bed floor both near the cab and behind the wheel well. Deputy Knowles testified that he tapped on the vehicle to listen for sound deviations that would indicate that some parts of the car were hollow and some were not, making him suspicious of a hidden compartment. Deputy Knowles testified that there was a sound deviation in the bed of the El Camino. Deputy Knowles then looked in the interior of the vehicle from the passenger's side and had the two other occupants get out and stand back by the patrol car. Deputy Knowles testified that the back interior wall of the El Camino was covered in carpet that had been glued to the back of the vehicle. Both Deputy Knowles and a witness for the defendant who was an expert in auto body repair, testified that the carpet being glued to the inside of the car was an after factory alteration. Deputy Knowles testified that besides the glued carpet, he also noticed fresh silicone in the seams of the vehicle.
Deputy Knowles continued to inspect the interior backseat of the El Camino with a flashlight and simultaneously reached around outside the vehicle and tapped on the exterior of the cab to listen for sound deviations. Deputy Knowles also inspected in the interior behind the seat, from the driver's side. Deputy Knowles looked underneath the car by the driver's door as well as underneath the bed area.
At approximately 6:45 a.m., Deputy Knowles broke open the back interior panel, exposing the hidden compartment. As his backup officer arrived, the three occupants were placed in handcuffs. A search of the vehicle revealed 100 kilograms of marijuana located in the hidden compartment behind the seat, which extended back into the bed of the El Camino.
II. Discussion
Defendant challenges the stop, detention and subsequent search of the El Camino he was driving. Defendant alleges that the deputy did not have a reasonable suspicion to initiate the traffic stop, that Deputy Knowles was not justified in detaining the defendant between the stop and the search, and that the defendant did not give Deputy Knowles consent to search the vehicle.
A. Traffic Stop
Deputy Knowles testified that he stopped the defendant because he did not see a license plate displayed on the vehicle. Following an identification check on the driver, as the Deputy and the defendant approached the vehicle in order for Deputy Knowles to explain the violation to the defendant, Deputy Knowles realized that the car did have a license plate, but that it was not properly displayed because it was obscured by a dark tinted license plate cover.
In order to make a traffic stop, Deputy Knowles needed reasonable suspicion that a violation had or was occurring. Reasonable suspicion is defined as a "particularized and objective basis" for believing the person being stopped is committing or did commit a violation. This is proof far below that of probable cause and certainly far below actual proof beyond a reasonable doubt that a traffic violation occurred.
United States v. Cortez, 449 U.S. 411, 417-18 (1981).
Deputy Knowles testified that he could not see the license plate displayed on the vehicle. The videotape corroborates Deputy Knowles' testimony. The images conveyed by Deputy Knowles' mounted video camera showed that in the early morning hours of May 6, 2002, the sun had not fully risen. From the close vantage point of the dash of Deputy Knowles' patrol vehicle, sitting a few feet behind the defendant's vehicle, the license plate is not visible through the dark tinted license plate cover. Despite the fact that a license plate was actually under the tinted cover, the license plate was obscured to the point that from a few feet away in the early morning hours, it was not visible. The defendant argues that because he did have a license plate that Deputy Knowles did not have reasonable suspicion to stop him.
The statute that Deputy Knowles was enforcing was not only one that requires a license plate to be displayed, but it also requires that the plate be clearly visible and unobstructed.
The license plate assigned to the vehicle shall be . . . in a place and position to be clearly visible, and shall be maintained free from foreign materials and in a condition to be clearly legible.
Kan. Stat. Ann. § 8-133 (1991).
Deputy Knowles testified that he could not see a license plate displayed on the defendant's vehicle. Both the testimony and the videotape establish that there was an objective and particularized belief that the defendant was violating K.S.A. § 8-133. It is of no consequence that the deputy later found a license plate was in place, but was obstructed. First, both a lack of and an obstructed license plate are violations of the statute. Second, because Deputy Knowles could not see the license plate clearly when the El Camino went by him on I-35, the reasonable suspicion burden was met.
B. Detention
The defendant argues that he was detained longer than necessary for a traffic stop and asked questions unrelated to the traffic violation. Defendant argues that under the cornerstone case of Terry v. Ohio, Deputy Knowles cannot meet the burden necessary for a continued detention during a traffic stop. Terry requires a two part analysis. First, the stop must be justified. This Court has found such justification existed in that the El Camino did not have a properly displayed license plate. Second, a court looks at whether the questions asked and reasons for the detention are related in scope to the original basis for the stop.
392 U.S. 1, 19-20 (1968).
Id.
Defendant argues that questions about where he was coming from, where he was going and the reason for his trip were outside the scope of the traffic stop. This Court, as well as the Tenth Circuit, have previously held that questions related to travel plans were within the scope of traffic violations, whether it be for safety reasons or to explain moving violations such as speeding during an emergency. Where the defendant was coming from, where he was going, and the reason for his trip are all related to the traffic stop. Of course other facts contributed to reasonable suspicion: the defendant's behavior of coming back to the patrol car; the presence of an air freshener; and the lack of luggage considering the defendant's statement that he was on vacation from Mexico to Kansas City. Defendant had an improperly displayed license plate. His travel plans bear on the violation itself in that it gives the officer an idea of when the violation could be corrected.
United States v. Melenderz, et al, No. 02-40073-01/02-JAR, 2002 WL 31864752 (D.Kan. Dec 16, 2002) (holding that highway safety is a valid reason for inquiring about travel plans during a stop for a traffic violation); United States v. Quiroz, No. 01-40120-01, 2002 WL 1067453 (D.Kan. Mar. 6, 2002).
United States v. Williams, 271 F.3d 1262, 1267 (10th Cir. 2001).
It does not appear that the defendant challenges the length of his detention to deal with the traffic violation. From the time the stop was made at 6:32 a.m., within a matter of minutes, Deputy Knowles obtained the defendant's identification, ran a check through dispatch, explained the violation to the defendant, and returned the defendant's paperwork. The detention for the violation was more than reasonable. And, upon completing the traffic stop and returning the defendant's paperwork, the detention ended. As discussed below, at that point, the encounter between Deputy Knowles and the defendant became consensual, as the defendant gave Deputy Knowles consent to search.
C. Search
Finally, defendant challenges the constitutionality of the search of the El Camino. Defendant alleges that the deputy did not obtain valid consent before conducting his search. As set out above, after Deputy Knowles returned the defendant's identification to him, he asked him about searching the El Camino. Deputy Knowles testified and the videotape appears to corroborate, that the defendant did not appear to understand the question. Deputy Knowles then provided the defendant with a consent form, written in Spanish. Deputy Knowles testified that the defendant read over the form and then nodded his head and said "Si." The audiotape was not on and any nodding of the head was not visible, given the angle of the camera in Deputy Knowles' vehicle. Both the defendant and the deputy were standing very close to the front of the vehicle, which caused their heads to be outside the view of the camera. The camera did record what appears to be the defendant reading over the consent form, but once he finished looking at the form, his head is not in the camera's view.
However, the defendant's subsequent actions corroborate the deputy's testimony that the defendant gave oral consent to search. Immediately after the defendant handed back the consent form, the defendant opened the tailgate for the deputy, without any apparent prompting.
The burden of proof is on the government to show that the defendant gave voluntary consent to the search. The court considers such relevant factors as whether there was any physical force used, whether documents are returned, how many officers were present, whether a weapon was drawn or some other show of authority by the officers. Deputy Knowles returned the defendant's papers to him. The videotape shows that Deputy Knowles was not standing in a place that would impede the defendant from leaving the area. Deputy Knowles was the only officer present until after the search was already underway. At no time did Deputy Knowles draw his weapon or exhibit any show of physical force. Deputy Knowles testified that at all times the tone between he and the defendant was conversational. In fact, after the defendant read the form and handed it back, the defendant assisted the deputy by opening the tailgate for him. The evidence establishes that the consent given by the defendant was voluntary.
United States v. Pena, 143 F.3d 1363, 1366 (10th Cir. 1998).
United States v. Elliott, 107 F.3d 810, 813-814 (10th Cir. 1997).
However, even absent consent from the defendant, Deputy Knowles had reasonable suspicion to detain the defendant to investigate the things he observed during the stop. Deputy Knowles testified that he saw an air freshener in the defendant's vehicle, which is commonly used to mask the smell of narcotics; he also noticed that the lack of luggage did not comport with the defendant's story that the three occupants were on vacation going to Kansas City from Mexico; and he also noticed what appeared to be a partially new paint job on the El Camino. Deputy Knowles testified that the bed of the El Camino appeared to have been recently painted about half way back, but that the rear half of the bed was not newly painted. This made Deputy Knowles suspect that there was a modification or alteration relating to a hidden compartment under the bed of the vehicle. Based on these observations, Deputy Knowles could have detained the defendant, absent consent, to confirm or dispel his suspicions.
Deputy Knowles thoroughly investigated his suspicions before ever conducting a search. Deputy Knowles knocked on the sidewalls and bed of the El Camino; he looked underneath the car in the front and the rear; and he did a plain view inspection of the interior back panels. During that investigation, Deputy Knowles was able to confirm his suspicions that a hidden compartment did exist. The sound deviations told the deputy that part of the bed was hollow and part was solid. Deputy Knowles also noticed glue and silicone that looked both out of place and fresh in the back seat area of the El Camino. At this point, Deputy Knowles had verified that a compartment existed and thus had developed probable cause, independent of consent, during a valid detention supported by reasonable suspicion.
IT IS THEREFORE ORDERED BY THE COURT that Defendant's motion to suppress (Doc. 25) is denied.
IT IS SO ORDERED.