Opinion
CRIMINAL ACTION NO. C-09-1044.
February 18, 2010
ORDER
On January 25, 2009, this Court held a hearing in the above-styled action to address Defendant Francisca Fuentes Duran's Motion to Suppress. (D.E. 24.) For the reasons discussed below, Defendant's Motion is DENIED.
I. Jurisdiction
This Court has federal subject matter jurisdiction over this case pursuant to 18 U.S.C. § 3231, as Defendant is charged with knowingly and intentionally possessing 42.73 kilograms of cocaine with intent to distribute and conspiracy to possess cocaine with the intent to distribute in violation of 21 U.S.C. §§ 841 and 846. (D.E. 1, p. 1.)
II. Factual Background
The facts in this Order are based on testimony and exhibits provided at the January 25, 2009 Motion to Suppress hearing. (D.E. 29-30.)
On December 9, 2009 at 9:30 p.m., Texas Department of Public Safety Trooper Blake Chapman ("Chapman") was on patrol on U.S. 281. Chapman made a u-turn and followed a silver 2007 Ford Fusion. While driving behind the Ford Fusion, Chapman ran a registration check on the vehicle's license plates that came back with "no record." Chapman then initiated a traffic stop.
Although the Criminal Complaint (D.E. 1, p. 2) alleges that Chapman was going south on U.S. 281 when he followed Duran's vehicle, at the motion to suppress hearing, Chapman insisted that he was traveling east on U.S. 281. U.S. 281 is a highway that runs north and south. The Court notes this inconsistency but finds that the video of the traffic stop sufficiently corroborates Chapman's testimony for this Court to find in favor of the Government. (D.E. 29.)
Chapman exited his vehicle and approached Defendant's driver side window. Other than Defendant Francisca Fuentes Duran ("Duran"), the driver, a passenger, Sonia Maribel Molina ("Molina"), was in the vehicle. Chapman explained to Duran that he stopped her due to the possible non-registration of the vehicle. Chapman testified that although the passenger was fluent in English, the driver spoke only a little English. Chapman further testified that he spoke enough Spanish and Duran spoke enough English for them to sufficiently communicate.
Chapman testified that, suspecting criminal activity, he questioned the occupants of the vehicle separately. When Chapman asked Duran and Molina where they were coming from, they gave inconsistent statements. After hearing these conflicting stories, Chapman asked Molina and Duran for their identification cards. As Duran opened the front door to retrieve the identification cards, Chapman noticed that the Federal Motor Vehicle Safety Certification Label, also known as the NADER sticker, was removed. Printed on the NADER sticker is the Vehicle Identification Number ("VIN") as well as the vehicle's safety ratings.
At about 6 minutes into the traffic stop, Chapman told Duran to get back in her car. Chapman returned to his vehicle with Duran's and Molina's identification cards and the car's registration. He then called dispatch and asked for backup due to the inconsistent stories and the apparent recent purchase of the automobile. Because of the missing NADER sticker, Chapman requested a "theft sergeant" who had special expertise in auto-theft. As Chapman waited for his backup, he called dispatch again and ran several computer checks on the documentation provided to him by Molina and Duran.
About 15 minutes after the initial stop, the theft sergeant and backup arrived and were told by Chapman about the removed NADER sticker. The backup visually inspected the vehicle and asked Duran a few general questions. Less than 20 minutes after the initial stop, Chapman asked Duran in Spanish if he could look in her car. In Spanish, Duran responded that Chapman could search the car. About two minutes later, the search of the vehicle uncovered grade carpet velcroed to cover two backseat floorboard compartments. Inside the compartments were bundles of white powder. Molina and Duran were then arrested approximately 22 minutes after the initial stop.
III. Discussion
Duran alleges that she was unlawfully seized during the traffic stop. She moves to suppress the fruits of her unlawful seizure, and the accompanying illegal search of her vehicle on the grounds that: (1) the stop itself was in violation of the Fourth Amendment and she was illegally detained without reasonable suspicion; and (2) the search of her vehicle was illegal without valid consent. (D.E. 24.)
A. The Traffic Stop
"The Fourth Amendment prohibits unreasonable searches and seizures by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest." United States v. Arvizu, 534 U.S. 266, 273 (2002) (citing Terry v. Ohio, 392 U.S. 1, 9 (1968)). However, "the level of suspicion required for [an investigatory or] Terry stop is obviously less demanding than that for probable cause."United States v. Sokolow, 490 U.S. 1, 7 (1989).
Pursuant to Terry, a two-part test is used to determine whether a traffic stop is legal. First, the Court examines "whether the officer's action was justified at its inception." United States v. Bringham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc). A traffic stop is justified if the officer has "an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred, or is about to occur, before stopping the vehicle." United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005). Second, the court inquires "whether the officer's subsequent actions were reasonably related in scope to the circumstances that justified the stop." Bringham, 382 F.3d at 506.
Thus, under Terry, "[t]he police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks probable cause." Id. "The application of the reasonable suspicion standard requires the consideration of the totality of the circumstances." Id. "The officer, of course, must be able to articulate something more than an `inchoate and unparticularized suspicion or hunch.'"United States v. Neufeld-Neufeld, 338 F.3d 374, 379 (5th Cir. 2003) (quoting Sokolow, 490 U.S. at 7). "The `somewhat abstract' and `elusive' nature of the reasonable suspicion standard makes it impossible to create `a neat set of legal rules' of what constitutes reasonable suspicion, but this very elusiveness provides courts with the flexibility needed to make case-specific determinations based on particularized facts." Neufeld-Neufeld, 338 F.3d at 378.
1. The Initial Stop was Constitutional
In this case, Chapman testified that he was patrolling a road that was often used for illegal enterprises, including smuggling drugs. The initial traffic stop occurred after Chapman conducted a license plate check that came back with no results. In Chapman's experience, this was an indication that the vehicle was not registered and the driver was violating Texas law. (D.E. 28.) When the license plate check came up with no results, Chapman had a particularized and reasonable suspicion that Duran was driving an unregistered vehicle in violation of Texas law. See Bringham, 382 F.3d at 506 (finding "an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred," is enough to justify a stop); see also Neugeld-Neuefeld, 338 F.3d at 376 (denying a motion to suppress where police officer made a u-turn and initiated a traffic stop after he conducted a license check showing the car was registered in another town);Olabisiomotosho, 185 F.3d at 529 (finding that pulling a car over after a license plate check revealed that the cars occupants engaged in potentially illegal activity did not violate the Fourth Amendment). Thus, the initial traffic stop was legally justified by Chapman's reasonable suspicion.
A license plate check that occurs before a car is pulled over is legal. See Olabisiomotosho v. City of Houston, 185 F.3d 521, 529 (5th Cir. 1999). This is because "[a] motorist has no privacy interest in her license plate number." See Olabisiomotosho, 185 F.3d at 529 (citing Harris v. United States, 390 U.S. 234, 236 (1968)). "[A] car's license plate number is constantly open to the plain view of passersby." Id.
"A person commits an offense if the person operates a motor vehicle that has not been registered as required by law." TEX. TRANS. CODE § 502.402.
2. Duran was Lawfully Detained and Questioned
Having found that the initial stop was constitutional, this Court must next examine "whether the officer's subsequent actions were reasonably related in scope to the circumstances that justified the stop." Bringham, 382 F.3d at 506 (citing Terry, 392 U.S. at 19-20). After making any traffic stop, "[a]n officer may also ask the driver about the purpose and itinerary of his trip."Lopez-Moreno, 420 F.3d at 430-431 (citing Bringham, 382 F.3d at 508). A police officer may also "examine the driver's license and registration and run a computer check on them to investigate whether the driver has any outstanding warrants and if the vehicle is stolen." Lopez-Moreno, 420 F.3d at 430 (citingBringham, 382 F.3d at 507-08). "If all computer checks [of the registration and individual licenses] come back clean, then as a general matter reasonable suspicion disappears, and there is no legitimate reason for extending the stop. A recognized exception to this rule is that if additional reasonable suspicion arises in the course of the stop and before the initial purpose of the stop has been fulfilled, then the detention may continue until the new reasonable suspicion has been dispelled or confirmed." United States v. Jenson, 462 F.3d 399, 404 (5th Cir. 2006) (internal citations and quotation marks omitted).
In this case, Chapman initially pulled Duran over because her license plate check came back with no results. Duran argues that after Chapman received and reviewed the vehicle's registration paperwork, the reasonable suspicion disappeared. However, this Court's review of the traffic stop video shows that reasonable suspicion never disappeared. Before Chapman had a chance to complete the computer checks of the registration, licenses, and identification cards, several more suspicious events arose that justified the continued traffic stop investigation. See Jensen, 462 F.3d at 404 (finding that a traffic stop detention may be extended if additional suspicion arises before all reasonable suspicion has been dispelled or confirmed).
Specifically, Chapman testified that as he approached Duran's vehicle, she was nervous. Chapman noticed that there was only one key in the ignition. Duran explained that she had bought the car that day. When Chapman asked where Duran and Molina had come from, both gave different answers. See Lopez-Moreno, 420 F.3d at 430-431 (finding that when a traffic stop is initiated, "[a]n officer may also ask the driver about the purpose and itinerary of his trip") (citing Bringham, 382 F.3d at 508); Id. at 431 (finding "the officer's questions need not even be related to the purpose of the traffic stop, since detention, not questioning, is the evil at which Terry's second prong is aimed") (internal citations and quotation marks omitted). Finally, when Chapman asked Duran to see the identification cards, he noticed that the vehicle's NADER sticker had been ripped off. Chapman testified this was unusual for a new car and was further evidence that the vehicle was stolen or tampered with. All these events took place within 7 minutes of the initial stop.
At the suppression hearing, Chapman testified that having one key in the ignition is another sign that the vehicle might be stolen.
When Chapman asked Duran where they were coming from, she explained that they had been visiting friends in McAllen, Texas for 3 days. When Molina was asked the same question, she told Chapman that they drove to McAllen the prior day to see some friends.
After calling for backup, and detailing to dispatch the particularized facts creating additional suspicion, Chapman ran a check of Duran's and Molina's licenses and registration. By this time, about 9 minutes after the initial stop, there was already enough additional reasonable suspicion to justify the wait for backup to investigate whether Duran was involved in any criminal activity. See Jenson, 462 F.3d at 404 (finding that "if additional reasonable suspicion arises . . . before the purpose of the stop has been fulfilled, then the detention may continue until the new reasonable suspicion has been dispelled or confirmed."). When the backup arrived about 15 minutes after the initial stop, the investigating officers asked general questions about the vehicle and where Duran was traveling from. They also conducted a visual inspection of the vehicle. After about 20 minutes, Ms Duran gave her consent to search the vehicle.
When Chapman called dispatch, he explained he was suspicious because "one friend says they went down [to McAllen] yesterday [and Molina] is saying they went down there three of four days ago." Chapman also requested a theft sergeant because "the NADER stickers have been ripped off too."
In totality, the 20 minute investigation was justified by behavior that Chapman found reasonably suspicious. Throughout the detention, new suspicious events continued to escalate Chapman's suspicion that some type of criminal activity was afoot. See Bringham, 382 F.3d at 506. Accordingly, this Court finds that Duran's Fourth Amendment rights were not violated by Chapman's investigatory stop. See Jenson, 462 F.3d at 404.
B. The Consent to Search the Vehicle was Voluntary
Defendant claims that the car was illegally searched because she did not give valid consent to search her car. To determine whether consent was validly given, courts apply a two prong test to determine whether the consent was (1) voluntary; and (2) the product of free will. Jenson, 462 F.3d at 406. The second prong of the consent test is required only if the government claims the consent cures a constitutional violation. United States v. Khanalizadeh, 493 F.3d 479, 484 (5th Cir. 2007) (citing Jenson, 462 F.3d at 407); see also Jenson, 462 F.3d at 406 (finding that a valid consent may cure a Fourth Amendment violation "even if the officer unreasonably extended the traffic stop").
In this case, the Government does not claim that the consent cures any constitutional violation, and instead argues that prior to the consent to search, no constitutional violation occurred. (D.E. 28, p. 7-8.) As this Court agrees that no constitutional violation has occurred, it will focus its analysis on whether the consent was voluntary. See Khanalizadeh, 493 F.3d at 484 (finding that "the district court did not err by failing to consider whether [Defendant's] consent was an independent act of free will, given that [the] initial traffic stop was constitutional") (citing Jenson, 462 F.3d at 407).
Voluntariness is a fact question determined by the "totality of the circumstances." Jenson, 462 F.3d at 404. The Fifth Circuit uses "a multi-factor test to determine whether consent was voluntary." Id. at 406. The court considers "(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 video of the traffic stop and questioning shows that Chapman did not act in a coercive or intimidating matter. During the investigatory stop, Duran was never physically restrained or threatened. See Khanalizadeh, 493 F.3d at 484 (noting that a "district court's finding of voluntariness was not clearly erroneous where the officer did not physically restrain the defendant, did not brandish weapons, and did not use deception"). The entire investigatory stop lasted just over 20 minutes. Duran was very cooperative with Chapman's requests and did not hesitate to give consent to search the vehicle. The two other troopers that arrived on the scene also acted without coercion, asking Duran a few general questions.
Duran argues that her consent was not voluntary because she speaks little English and she did not understand what was going on. (D.E. 24, p. 7.) The video shows a different story. Although at times, there were communication difficulties between Chapman and Duran, the video shows there were no language difficulties when Chapman asked to search Duran's car about 18 minutes after the initial stop. Chapman asked Duran in Spanish, "Allow me to look in your car?" Duran responded "yes" in Spanish. The video shows that Chapman asked Duran one more time to search the vehicle and Duran again expressed agreement to the search. After Duran reaffirmed her consent to Chapman, the resulting search lasted only a few minutes. During this time, Duran never withdrew her consent. Thus, this Court finds that after looking at the totality of circumstances, Duran was never coerced or deceived; she was treated courteously and she freely and voluntarily gave Chapman consent to search her car.
IV. Conclusion
For the reasons states above, Defendant's motion to suppress is DENIED. (D.E. 24.)
SINED and ORDERED.