Summary
observing that the purpose of license plates is to enable officers to identify vehicles and that it would be unreasonable to require officers to stop vehicles to read their plates
Summary of this case from United States v. SimsOpinion
Case No. 03-40035-01/02-SAC
August 26, 2003
MEMORANDUM AND ORDER
This case comes before the court on defendant Granados-Orozco's motion to suppress evidence (Dk. 29). At the evidentiary hearing held August 12, 2003, the court granted defendant Orozco-Hernandez's motion to join the motion to suppress. FACTS
At approximately 7:20 a.m. on April 5, 2003, Trooper Scott Morris of the Kansas Highway Patrol was on routine patrol on I-70 in Shawnee County, Kansas. He was working radar on westbound vehicles when he observed an eastbound white Toyota which he believed did not have a license plate. He pulled his patrol car out of the median and, upon approaching the white Toyota from behind, could see that it had a temporary permit attached to it.
The permit, made of white paper, was attached to the license plate bracket and was covered with loose plastic cellophane. The plastic covering flapped in the wind as the vehicle moved at approximately 70 miles per hour. The tag was not like any Trooper Morris had previously seen. Trooper Morris testified that temporary tags are often altered, fictitious, or copied, so he is concerned not only with the expiration date, but with other information on such tags as well.
As he followed the vehicle, Trooper Morris could not read the state designation on the permit, so he pulled into the passing lane to a point that the passenger door of his vehicle was at the rear bumper of the white Toyota. From that viewpoint, he was able to read the expiration date but still could not read any state designation on the tag. Trooper Morris then dropped back behind the white Toyota and initiated a traffic stop, having followed the vehicle for approximately one mile, total, while trying to read the tag.
Trooper Morris decided to stop the vehicle for violation of K.S.A. § 8-133, which governs the manner in which tags must be displayed. Specifically, Trooper Morris testified that tag was not free of foreign material and was not clearly legible, as the statute requires.
When he exited his patrol car, Trooper Morris approached the rear of the white Toyota and looked at the temporary tag where he saw the state designation of Colorado clearly written at the top of the tag. Trooper Morris then approached the vehicle and asked the driver for his license and the vehicle's registration. The driver presented a North Carolina driver's license which identified him as Maximum Oseguera. It was later determined that the driver was actually defendant Granados-Orozco.
Although defendants failed to show lawful possession of the vehicle, Trooper Morris learned that the vehicle was not stolen, then wrote a warning for the registration violation pursuant to K.S.A. § 8-133. He subsequently returned the documents, ended the detention, released the defendants, and sought and received permission to search the vehicle, where approximately 21.1 kilograms of cocaine were found in the spare tire.
Defendants do not contest the initial stop or the fact that they consented to the search, but contend only that their detention was illegal because it was not supported by probable cause. Specifically, defendants contend that it was unlawful for Trooper Morris to detain them after he saw the state designation on the temporary tag, as no violation of K.S.A. § 8-133 thus occurred.
INITIAL STOP/DETENTION
As the Tenth Circuit established in United States v. Botero-Ospina, 71 F.3d 783 (10th Cir.1995), cert. denied, 518 U.S. 1007 (1996):
[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring. It is irrelevant, for purposes of Fourth Amendment review, whether the stop in question is sufficiently ordinary or routine according to the general practice of the police department or the particular officer making the stop.
Thus this court's sole inquiry is thus whether this particular officer had reasonable suspicion that this particular motorist violated "any one of the multitude of applicable traffic and equipment regulations" of the jurisdiction. See United States v. D'Armond, 65 F. Supp.2d 1189 (D. Kan. 1999).
Defendant was stopped for an alleged violation of K.S.A. § 8-133, which requires a vehicle registration to be maintained "free from foreign materials and in a condition to be clearly legible." The statute, captioned "Display of license plate," provides in pertinent part:
Every license plate shall at all times be securely fastened to the vehicle to which it is assigned so as to prevent the plate from swinging, and at a height not less than 12 inches from the ground, measuring from the bottom of such plate, 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.
Temporary tag v. licence plate
The court first addresses defendants' contention that temporary tags are not "license plates" within the meaning of that term in K.S.A. § 8-133. The court disagrees. K.S.A. § 8-126a states that for purposes of the motor vehicle act, the term "license number plate," "license tags" and "any other word, term or phrase of similar import or meaning . . . shall be construed to mean and include any plate, tag, token, marker or sign issued under the provisions of this act for the purpose of identifying vehicles registered under the provisions of the motor-vehicle registration laws of this state or otherwise carrying out the provisions of such laws." "License plate" as used in K.S.A. § 8-133 is a term of similar meaning to "license number plate" or "license tags" and is thus construed to mean and include a temporary tag. Additionally, Trooper Morris testified to his understanding that the requirements of this statute are applicable to temporary registration tags, and that because defendant's temporary tag was not free of foreign materials and was not clearly legible to him when he was following it in his vehicle or until he approached the vehicle on foot, the statute was violated.
Clearly legible
The court next addresses defendant's assertion that because the state designation was visible to the Trooper from a distance of a few feet, after he exited his patrol car and stood near the back of defendant's vehicle, the Trooper had no reason to believe the statute was violated. When asked at what distance a tag must be clearly legible, Trooper Morris replied at the distance of another vehicle traveling a safe distance behind the vehicle. Although the statute does not state at what distance the tag must be "clearly legible," i.e., capable of being read, the court agrees that if the tag was not clearly legible to a law enforcement officer following a safe distance behind the vehicle, the statute is violated. It would be unreasonable to read the statute as meaning that a tag is "clearly legible" if it cannot be read by an officer following safely behind in his patrol car, given that the tag is issued for the purpose of enabling officers to identify vehicles registered under the provisions of the motor-vehicle registration laws. Officers should not be required to stop vehicles in order to read their tags.
Dissipation of reasonable suspicion
Defendants contend that any detention or questioning by Trooper Morris after he discovered that defendants had not committed the registration violation for which they had been stopped was unreasonable. The court finds that defendant's premise is incorrect, as Trooper Morris at all times during his contact with defendants continued to believe that they had committed the registration violation for which they had been stopped.
The court is aware that legitimate initial stops may nonetheless lead to unreasonable detentions. See United States v. McSwain, 29 F.3d 558 (10th Cir. 1994). In McSwain, a Utah trooper saw a vehicle with neither a front license plate nor a rear license plate, but with a temporary registration sticker posted in the rear window. The trooper was unable to read the expiration date on the sticker, so stopped the vehicle to verify the date. As the trooper approached the vehicle on foot, he noticed that the temporary registration sticker was from Colorado and that the sticker was valid and had not expired. The trooper thereafter spoke to the occupants of the vehicle, and detained them.
The Tenth Circuit in McSwain held that the initially valid stop evolved into an unreasonable detention, in these words:
Trooper Avery stopped Mr. McSwain for the sole purpose of ensuring the validity of the vehicle's temporary registration sticker. Once Trooper Avery approached the vehicle on foot and observed that the temporary sticker was valid and had not expired, the purpose of the stop was satisfied. Trooper Avery's further detention of the vehicle to question Mr. McSwain about his vehicle and travel itinerary and to request his license and registration exceeded the scope of the stop's underlying justification.29 F.3d at 561.
The Tenth Circuit distinguished the case from those holding that an officer may ask about identity and travel plans, in stating:
Though we have held in several cases that an officer conducting a routine traffic stop may inquire about "identity and travel plans," United States v. Rivera, 867 F.2d 1261, 1263 (10th Cir. 1989), and may "request a driver's license and vehicle registration, run a computer check, and issue a citation," United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir. 1988); see also United States v. Soto, 988 F.2d 1548, 1554 (10th Cir. 1993), these cases — cited by the government — are inapposite. They all involve situations in which the officer, at the time he or she asks questions or requests the driver's license and registration, still has some "objectively reasonable articulable suspicion" that a traffic violation "has occurred or is occurring."Id., at 561.
The court's rationale follows:
Trooper Avery's reasonable suspicion regarding the validity of Mr. McSwain's temporary registration sticker was completely dispelled prior to the time he questioned Mr. McSwain and requested documentation. Having no "objectively reasonable articulable suspicion that illegal activity ha[d] occurred or [was] occurring," Soto, 988 F.2d at 1554, Trooper Avery's actions in questioning Mr. McSwain and requesting his license and registration exceeded the limits of a lawful investigative detention and violated the Fourth Amendment. (footnote omitted).Id., at 561-62.
Defendants allege that law enforcement officers must end a traffic stop without requesting a driver's license and registration or asking any questions when the officer's reasonable suspicion has been completely dispelled. See Gross v. Pirtle, 245 F.3d 1151, 1157 (10th Cir. 2001) (citing McSwain as "holding that, after purpose of the traffic stop ended, reasonable suspicion no longer existed and further detention of the driver exceeded the permissible scope.") According to defendants, Trooper Morris should have ended the stop upon determining that the state designation was clearly legible when he saw it on foot upon approaching the stopped vehicle, rendering their detention thereafter unconstitutional. The court finds that the facts in the present case are distinguishable from those in McSwain because of the differing nature of the violations involved. In McSwain, the driver was stopped and detained "for the sole purpose of ensuring the validity of the vehicle's temporary registration sticker." 29 F.3d at 561. Here, defendants were initially stopped and detained because their temporary tag was not maintained "free from foreign materials and in a condition to be clearly legible," as is required by K.S.A. § 8-133.
McSwain is not controlling. At the time Trooper Morris questioned and detained defendants, he continued to believe that defendants had violated a traffic law of the State of Kansas. Trooper Morris's reasonable suspicion was not dispelled by his view of the temporary tag even when he was on foot. At the time he asked the defendants questions and requested their driver's license and insurance information, he had an objectively reasonable articulable suspicion that a traffic violation had occurred. Unlike in McSwain, Trooper Morris's view of the registration tag when he approached the vehicle did not satisfy him that no violation had occurred. Trooper Morris had an objective and particularized belief that the defendant had violated K.S.A. § 8-133 both when he initiated the stop, and when he contacted defendants after reading the state designation on the temporary tag.
Under these circumstances, further detention and questioning of defendants was permissible. See United States v. Poke, 2002 WL 1334862, *4-5 (D. Kan.2002) (finding K.S.A. § 8-133 violated where a temporary tag was not clearly visible to the Trooper until he approached the vehicle on foot); State v. Hayes, 8 Kan. App. 2d 531, 532-33 (1983) (finding that "legible" means that all of the tag must be legible, and that the display of an illegible or obscured vehicle tag is a misdemeanor even if the vehicle is duly licensed in another state). See also United States v. Mesina, 2003 WL 21497050, *5 (D. Kan. May 23, 2003) (upholding stop pursuant to K.S.A. § 8-133 when Trooper could not read the name of the issuing state because it was almost totally obscured by a bracket, giving him reasonable grounds to believe a violation of the statute had occurred); United States v. Castro-Holguin, 2003 WL 2006813, *3 (D. Kan. April 23, 2003) (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); United States v. Wools, 2001 WL 1019956 (D. Kan., Aug 13, 2001) (upholding legality of initial stop based on violation of K.S.A. § 8-133 where the tag was not at the normal location on the vehicle and the officer did not see a tag prior to making the stop and asking for a driver's license); United States v. Overstreet, 1997 WL 851259 (D. Kan. Dec 30, 1997) (upholding legality of initial stop based on violation of K.S.A. § 8-133 where officers testified that the license plate on the vehicle was not affixed tightly to the vehicle).
Although the parties have focused their arguments on the "clearly legible" requirement of the statute, defendant's failure to maintain the tag "free from foreign materials" provides an independent basis not only for the trooper's reasonable suspicion that a violation occurred, but also for probable cause to believe during the entirety of the stop that the statute had actually been violated.
Consent
It is uncontested that defendant voluntarily consented to the search. Because defendants seek to suppress the evidence found pursuant to the consensual search, the court presumes that defendants contend that their consent is not sufficiently an act of free will to purge the primary taint of the illegal detention, so must be suppressed as "fruit of the poisonous tree." United States v. Maez, 872 F.2d 1444, 1453 (10th Cir. 1989), cert. denied, 498 U.S. 1104 (1991).
Even assuming, arguendo, that the court errs in its analysis above and defendants' detention was illegal, the court finds that defendant's consent to the search of the vehicle validated the search. The court has examined the facts, including the events shown on the video tape, in light of the factors particularly relevant to application of the totality of the circumstances test, and finds that defendant's consent to search was sufficiently an act of free will to purge any primary taint of an illegal detention. See Brown v. Illinois, 422 U.S. 590, 603-04 (1975). Racial Profiling
Defendants initially contended in their motion to suppress that Trooper Morris was motivated to stop defendants because of their race. Based on defendants' withdrawal at the evidentiary hearing of all other motions based upon racial profiling, the court presumes that the racial profiling argument made in the briefs in support of the suppression motion is also withdrawn.
In the event the court errs in that presumption, the court fully credits the uncontested testimony of Trooper Morris that he did not know the race or ethnicity of the vehicle's occupants before stopping them. None of the facts show that Trooper Morris had any opportunity to see the race of the occupants prior to stopping the vehicle. Accordingly, no evidence shows that the stop violates the equal protection clause of the Fifth Amendment. Compare Wayte v. United States, 470 U.S. 598, 608-09 (1985).
IT IS THEREFORE ORDERED that defendant's motion to suppress (Dk. 29) is denied.