Opinion
CR. NO. 03-142-N.
March 22, 2004
MEMORANDUM OPINION AND ORDER
On November 17, 2003, United States Magistrate Judge Delores R. Boyd entered a Recommendation that defendant Joanna Hernandez's Motion to Suppress (Doc. #27) and Motion to Dismiss (Doc. # 26) be granted to the extent that they assert a Fourth Amendment challenge to the search which resulted in Hernandez's arrest for possession of cocaine with intent to distribute it and denied without prejudice to the extent that they assert additional challenges pursuant to the Fifth, Sixth, and Fourteenth Amendments. This matter is now before the Court on the Recommendation of the Magistrate Judge and the Objections to the Recommendation of the Magistrate Judge (Doc. #47) filed by the Government on November 26, 2003. Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court has made a de novo determination of those portions of the Recommendation of the Magistrate Judge to which objections were made. For the reasons that follow, the Court will OVERRULE the Government's objections and will GRANT Joanna Hernandez's Motion to Suppress and Motion to Dismiss.
PROCEDURAL HISTORY
On July 15, 2003, the Grand Jury returned a one count indictment against Joanna Hernandez (hereinafter "Hernandez") for knowingly and intentionally possessing with intent to distribute 5 kilograms or more of cocaine hydrochloride, a Schedule II controlled substance, in violation of Title 21, United States Code, Section 841(a)(1). On August 19, 2003, Hernandez filed a Motion to Dismiss (Doc. # 26) and a Motion to Suppress (Doc. # 27). Both motions purport to be premised on putative violations of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. In her Motion to Dismiss, Hernandez argued that all charges against her should be dismissed because of alleged violations of her rights. In her Motion to Suppress, Hernandez argued that the duration and scope of the traffic stop which lead to the charges against her violated the Fourth Amendment. She also claimed that the State Trooper's policy of selective prosecution and racial profiling led to her arrest and that such a policy violated her rights under the Fourteenth Amendment to the United States Constitution. Finally, Hernandez argued that the oral and written statements she gave to law enforcement were given either when she was actually or constructively under arrest and that her rights under the Fifth and Sixth Amendments were violated. Hernandez waived her right to be tried in the week of September of 2003, and sought a continuance of the case which was granted.Magistrate Judge Boyd set the Motion to Dismiss and the Motion to Suppress for an evidentiary hearing on October 16, 2003. At that evidentiary hearing, Magistrate Judge Boyd heard testimony from Alabama State Trooper Jessie Peoples (hereinafter "Trooper Peoples"), the officer who initiated the traffic stop which lead to the discovery of forty-three pounds of cocaine hydrochloride in Hernandez's vehicle. Robert Thornton (hereinafter "Agent Thornton") also testified. Thornton is employed by the Alabama Department of Public Safety and is assigned to the Alabama Bureau of Investigations and to a drug interdiction task force known as HIDTA. Both the Government and Hernandez had ample opportunity to present testimony and exhibits at the evidentiary hearing.
After the evidentiary hearing, Hernandez submitted a Post-Hearing Brief in Support of Motion to Suppress (Doc. # 43). In that brief, Hernandez devoted significant attention to the Fourth Amendment issue, failed to address her arguments under the Fifth and Sixth Amendments, and stated that she was not going to pursue the Fourteenth Amendment issue cited in her Motion to Suppress at that point. The Government also submitted a written response in opposition to Hernandez's motions and brief. (Doc. # 44).
On November 17, 2003, Magistrate Judge Boyd issued the Recommendation of the Magistrate Judge. (Doc. # 46). Based on her finding that the detention and search of Hernandez exceeded the limits the Fourth Amendment places on the Government, Magistrate Judge Boyd recommended that the Motion to Suppress and the Motion to Dismiss be granted. While Magistrate Judge Boyd specifically found that the duration alone did not make the traffic stop constitutionally impermissible, she did find that the scope of Peoples' questioning of Hernandez and her traveling companion exceeded the limitations of the Fourth Amendment and that the consent given for the search of Hernandez's vehicle which was obtained during, what she found to be, an unlawful detention was tainted by Peoples' Fourth Amendment violation and therefore could not be deemed voluntary. Magistrate Judge Boyd denied without prejudice Hernandez's claims of Fifth, Sixth, and Fourteenth Amendment claims.
Magistrate Judge Boyd entered an Order setting a specific deadline for the parties to file objections to the Recommendation. This Order specifically noted that "[f]ailure to file written objections to the proposed findings and recommendations" would "bar the party from de novo determination by the district court of issues covered in the report and shall bar the party from attacking on appeal the factual findings in the report accepted or adopted by the district court except upon grounds of plain error or manifest injustice." Hernandez did not file any objection to the Recommendation of the Magistrate Judge. The Government filed Objections to the Recommendation of the Magistrate Judge (Doc. # 47), which it later amended with leave of Court (Doc. # 48 50).
After receiving the Government's objection, this Court set the matter for an evidentiary hearing on December 19, 2003. At this hearing, both the Government and Hernandez were allowed to present evidence, testimony, and further argument on the issues before the Court. Both parties agreed that in considering the issues before it, this Court could rely on the testimony and exhibits from December 19, 2003 hearing, as well as testimony and exhibits from the hearing before Magistrate Judge Boyd. Both the Government and Hernandez were allowed additional time to submit further written argument on the issues before the Court. ( See Docs. # 54, 55, and 56). Thus, this Court has a more than ample record before it on which to assess the merits of the Recommendation of the Magistrate Judge and Hernandez's motions.
FACTS
The Magistrate Judge provided an excellent and comprehensive factual narrative in the Recommendation of the Magistrate Judge. Hernandez made no objections to the Recommendation of the Magistrate Judge. The Government's objection to the Recommendation of the Magistrate Judge is primarily directed to her application of the law to the fact; however, the Government has articulated one objection to the factual narration in the Recommendation of the Magistrate Judge. The Court ACCEPTS the recitation of the facts set forth in the Recommendation of the Magistrate Judge and OVERRULES the Government's sole objection to the factual finding. For the sake of clarity, the Court will set forth below the facts most salient to this Court's analysis.
On page 7 of the Recommendation of the Magistrate Judge, it is stated that "Trooper Peoples had not given the warning ticket as promised at 3:11:52 a.m." The Government argues that Trooper Peoples did not promise to write a warning ticket by a particular time and contends that this language in the Recommendation of the Magistrate Judge implies that the warning ticket would be issued at or shortly after 3:11 a.m. The Court does not agree that is the implication of the statement when taken in context. The statement refers to the fact that at 3:11:52 a.m. Trooper Peoples stated to the driver that it was his intention to give him a warning ticket and that by the time of his fourth encounter with the driver he had not given that ticket to him.
On June 30, 2003, Trooper Peoples was on duty enforcing traffic laws. Shortly after 3:00 a.m., Trooper Peoples observed a Chevrolet pickup truck traveling in the northbound, left-hand lane on Interstate 65. The truck was traveling at 78 miles-per-hour in violation of the 70 mile-per-hour speed limit in force on that particular part of Interstate 65. Trooper Peoples initiated a traffic stop near the 165 mile marker which is just past the exit for Hope Hull, Alabama. The pickup truck was pulled over, without incident, at approximately 3:02 a.m.
The traffic stop was captured on a video recording which was offered as an exhibit by both the Government and Hernandez. This thirty-eight minute videotape begins as the truck is being pulled over. Some portions of the videotape have audible audio, but in other places the audio is inaudible. The audio portion of the recording was recorded from a body microphone worn on Trooper Peoples belt which transmitted to a video recording device in Trooper People's car. Gaps in the audio recording are attributable to the following: (1) Trooper Peoples having turned off his body microphone; (2) equipment failure due to the extended distance between the microphone and the video recording device; or (3) technical malfunctions of the recording equipment.
After pulling the vehicle over, Trooper Peoples walked to the passenger side of the vehicle. When Trooper Peoples was first standing beside the truck to ask for the driver to step out, he observed a male driver, later identified as Jesus Alejandro Salazar (hereinafter "Salazar"), and a female passenger, later identified as Hernandez. According to Trooper Peoples, he noticed several food containers on the rear floor area of the vehicle when he was beside the vehicle for the first time. Trooper Peoples asked Salazar if he had his driver's license. Trooper Peoples then asked Salazar to step out of the vehicle and proceed to the area between the truck and Trooper Peoples' car, and Salazar immediately complied.
Trooper People indicated that he typically approaches vehicles which are pulled over to the side of the Interstate by approaching the passenger side of the vehicle because it is safer in that it keeps him out of the traffic lane.
Trooper Peoples testified that he had received training concerning conduct of drug couriers which indicated that drug couriers will often be traveling in vehicles which contain food containers because they travel without stopping when they are transporting drugs. Hernandez challenges the veracity of Trooper Peoples' testimony that he observed these food containers at this time, but failed to object to the factual finding in the Recommendation of the Magistrate Judge regarding this fact. In any event, the Court finds Trooper Peoples' testimony on this fact credible. Moreover, the videotape shows Trooper Peoples shining his flashlight into the back of the truck as he walked by it to meet Salazar between the vehicles. Contrary to Hernandez's argument Trooper Peoples did have an opportunity to view the food containers at that time rather than when he later searched the interior of the vehicle.
Trooper Peoples and Salazar stood together at the back of the pickup truck. Salazar immediately produced his driver's license as Trooper Peoples requested. Salazar's license was issued by the State of Texas. Trooper Peoples advised Salazar that he had been driving 78 miles per hour. Salazar replied that he didn't realize that he had been speeding and that he was trying to get to a rest room for his girlfriend who had diarrhea. Trooper Peoples informed Salazar that he had just passed an exit with a rest room. Salazar expressed surprise. Trooper Peoples then asked Salazar where he was headed. Salazar responded that he was headed to Atlanta and said that they were going to see Hernandez's realtive. Trooper Peoples asked him how long he was going to be up there. Salazar responded: "The weekend . . . through the week." Trooper Peoples asked him if he would be there the whole week, and Salazar indicated that was the case. Given that Salazar's ultimate destination was Atlanta, Trooper Peoples found it unusual that Salazar drove past an exit if his girlfriend in fact had diarrhea.
Trooper Peoples testified that this was a well-lit exit with a gas station, a Burger King, and several other little businesses.
After this brief conversation with Salazar, Trooper Peoples asked him to sit in the front passenger seat of the patrol car. After getting in the vehicle with Salazar, Trooper Peoples spent approximately two minutes in the patrol car with Salazar before exiting the vehicle. During this time, Trooper Peoples' first question to Salazar concerned the ownership of the pickup truck, and Salazar indicated that Hernandez owned it. Trooper Peoples rapidly asked Salazar a number of questions during this time. He asked if Salazar lived in Houston. He asked if it was Salazar's first trip to Atlanta. He asked Salazar for Hernandez's name twice. Trooper Peoples asked how long Hernandez and Salazar had been together and whether Hernandez had family in Atlanta. Trooper Peoples asked if the trip was planned for awhile or embarked upon on the spur of the moment. Trooper Peoples asked Salazar what kind of work he did and what the weather was like in Houston. Trooper Peoples asked Salazar for his reason for speeding and again received information that it related to Hernandez's need for a bathroom. At some point during this time, Trooper Peoples began to write Salazar a warning ticket and continued to question him while doing so. Trooper Peoples had not yet informed Salazar that the ticket he was writing was a warning ticket, but he had decided to give Salazar a warning because he was not argumentative about his speed. Trooper Peoples also testified that he had begun to write out the warning ticket during this conversation and that
The duration of the traffic stop at this time was approximately one minute.
Salazar's response to this question was not audible, but Trooper Peoples testified that Salazar said that there was a tropical storm with 40 mile-an-hour winds when he left Houston. Trooper Peoples further testified that according to training he had received relating to drug investigations drug couriers will travel in inclement weather or at night in order to try to avoid law enforcement.
Trooper Peoples testified that you can hear what he says is the sound of him clicking his pen closed on the videotape during the two minutes he was talking to Salazar in the patrol car. According to Trooper Peoples, this sound confirms his recollection that he had started completing the form at some point prior to that time.
Toward the end of the two minute period, Trooper Peoples asked Salazar if Hernandez had the registration for the pickup truck. Salazar indicated that she did. Consequently, Trooper Peoples exited the patrol car and went to talk to Hernandez who was still seated in the passenger seat of the pickup truck. Trooper Peoples' purpose in approaching Hernandez was to retrieve the registration for review.
The duration of the traffic stop at the time Trooper Peoples began questioning Hernandez was approximately three minutes and twenty seconds.
Alabama law requires drivers to be able to produce drivers' licenses, vehicle registrations, and proofs of insurance.
The first minute of Trooper Peoples' conversation with Hernandez at this point in the stop is inaudible. When the audio starts, Trooper Peoples asked Hernandez if she owned the truck. Trooper Peoples requested that Hernandez produce the registration papers and her identification. He then asked her a series of questions. Some of these questions related to the ownership of the truck and Hernandez's identity, but Trooper Peoples also asked what kind of work Hernandez did, how long she and Salazar were going to be in Atlanta, and who Salazar was. After taking Hernandez's license and insurance papers, he told Hernandez that he was "going to check everything." Trooper Peoples asked Hernandez how long they were going to be in Atlanta; she replied probably until Wednesday, but that she was not sure. When Trooper Peoples asked why she was not sure, she replied "probably until Wednesday it just depends on how bad she is." Trooper Peoples testified that Hernandez had previously told him that they were traveling to Atlanta to visit a sick aunt. Trooper Peoples then questioned Hernandez about what was wrong with her aunt, whether her aunt had been hospitalized, and in what area of Atlanta her aunt resided. Hernandez had difficulty answering the question regarding the area of Atlanta in which her aunt resided and said she thought it started with a "G." When Trooper Peoples asked if it was "Gwinnett." Hernandez said that it was. Trooper Peoples asked Hernandez where her luggage was. She showed him and he noted out loud that there were only two small bags. At this point, Trooper Peoples returned to his patrol car.
Trooper Peoples also testified that he does not recall Hernandez providing him with the registration for the vehicle.
Trooper Peoples testified that it was his regular practice to review a driver's license, registration, and proof of insurance on a traffic stop.
The duration of the traffic stop at this point was approximately five and a half minutes.
Once back in the patrol car, Trooper Peoples directed additional questions to Salazar. He asked if the trip to Atlanta was just a vacation. He asked what family members Hernandez had in Atlanta and whether anyone was sick. After asking these questions and receiving answers which were arguably inconsistent with Hernandez's responses to his questions, Trooper Peoples initiated a routine computer check by using his cellular telephone, to call U.S. Customs through the BLOC HIDTA system. He provided the full names of Hernandez and Salazar, their driver's license numbers, the vehicle tag, and details of the speeding offense. During the time he was on his cellular telephone providing information to U.S. Customs, Trooper Peoples asked Salazar if he had been driving all night, and Salazar said that they had.
Trooper Peoples testified that it is his routine practice to contact either U.S. Customs or some other agency to verify information such as driver's license validity, vehicle registration, and outstanding warrants prior to concluding a traffic stop. Trooper Peoples testified that he uses U.S. Customs through the BLOC HIDTA system to check this information for approximately two-thirds of his traffic stops. He further testified that it is his practice to wait for a call back on the computer check before he releases motorists so he can make sure that the driver's license is valid and that the person is not wanted.
The duration of the traffic stop at this time was approximately six minutes and ten seconds.
In addition to providing information on the validity of licenses and the existence of warrants, U.S. Customs BLOC HIDTA system can provide information about border crossings in which the subject vehicle has been involved, as well as, criminal histories on individuals. Trooper Peoples testified that he had other possible means of obtaining verification of driver's licenses and outstanding warrants on Salazar and Hernandez. Specifically, he could radio to the Department of Public Safety or one of the county agencies to run the information. However, when he checks through the Department of Public Safety he cannot get information on criminal histories and border crossings. It was clear from Trooper Peoples' testimony that running a computer check of a driver involved in a traffic stop through the U.S. Customs' BLOC HIDTA system was a more comprehensive check than that available to Trooper Peoples from his other sources. In deciding between contacting U.S. Customs or the Department of Public Safety to run a check, Trooper Peoples routinely considers factors including whether the vehicle is from a border state, whether the travelers have been to a border state, and whether the people have given suspicious answers to his questions. If a border state is involved or suspicious answers are given, Trooper Peoples runs the computer check through U.S. Customs rather than the Department of Public Safety. In some circumstances, the computer check through U.S. Customs might take more time than a check through the Department of Public Safety. Specifically, Trooper Peoples testified that running a criminal history check through U.S. Customs in addition to a check on the license and registration information would take more time than running a check through the Department of Public Safety on the license and registration alone.
When Trooper Peoples made his call on this particular stop to U.S. Customs, he was not able to instantaneously receive the information from the computer check. He provided the number to his cellular telephone so that U.S. Customs could call him back with the results of the computer check. After finishing the call to U.S. Customs, Trooper Peoples began questioning Salazar again. Approximately nine minutes into the traffic stop, Trooper Peoples informed Salazar that he was going to write him a warning. At the time when Trooper Peoples advised Salazar that he was going to write him a warning, the actual written warning ticket was nearly complete because Trooper People had begun writing it during his first conversation in the patrol car with Salazar. The warning ticket is not a complicated form and could have been completed in less than five minutes. Trooper Peoples continued to question Salazar.
Trooper Peoples testified that if everything is going smoothly, a warning citation typically takes four to five minutes to complete. He also testified that in this case, he finished filling in the information on the warning citation form prior to asking for consent to search the pickup truck, but did not provide it to Salazar so that he could sign his name in the appropriate place for the driver's signature because Trooper Peoples was waiting to receive the results of the computer check from U.S. Customs.
At approximately 3:13 a.m., approximately eleven minutes after the traffic stop began, Trooper Peoples went back to the pickup truck to question Hernandez further and to return her driver's license and insurance papers. At this time, he observed what he believed were non-verbal indications of nervousness such as closed posture and minimal eye contact. After questioning Hernandez, Trooper Peoples returned to the patrol car and asked Salazar further questions such as whether they were transporting anything illegal such as guns or drugs. When Salazar said "no," Trooper Peoples asked if he had a problem with the truck being searched so that Trooper Peoples could make sure. Trooper Peoples then asked if Salazar and Hernandez were involved in any type of terrorist activity. Trooper Peoples then made radio contact with another State Trooper who regularly works with a narcotics canine. While waiting for that officer to arrive with the dog, Trooper Peoples asked Salazar a number of questions ranging from the gas mileage of Hernandez's pickup truck to past travel to Mexico.
At 3:17 a.m., Trooper Peoples presented and explained to Salazar a consent form authorizing a search of the pickup truck. Salazar signed the form. Trooper Peoples then returned to the pickup truck and explained the same type of consent form to Hernandez. She signed it. According to Trooper Peoples neither Salazar, nor Hernandez objected to the search of the pickup truck. After Hernandez signed the consent form, Trooper Peoples asked her to stand between the vehicles while he searched the pickup truck.
For approximately twenty minutes, Trooper Peoples searched the pickup truck. Trooper Brown and a dog trained to alert to the odor of narcotics assisted in the search. Trooper Peoples located a concealed trap door behind which were located "vacuum-sealed packages." At approximately 3:38 a.m., Hernandez and Salazar were informed of the results of the search and advised of their Miranda rights before being hand-cuffed and arrested. The pickup truck was towed to an auto shop where officers removed parts of the vehicle and accessed the vacuum-sealed packages, which contained forty-three pounds of cocaine.
While Trooper Peoples searched the pickup truck, his cellular telephone was left behind in his patrol car. U.S. Customs was to provide the results of the computer check by calling Trooper Peoples on this cellular telephone. Nevertheless, he did not carry it with him. It does not appear from the record before this Court that U.S. Customs had called Trooper Peoples back with the results of the computer check prior to 3:38 a.m. when Salazar and Hernandez were arrested.
DISCUSSION
A. Fifth and Sixth Amendment Issues
The Recommendation of the Magistrate Judge denied the Motion to Suppress and the Motion to Dismiss without prejudice to the extent that they sought to raise alleged violations of Hernandez's rights under the Fifth and Sixth Amendments to the United States Constitution. Hernandez has offered neither evidence, nor argument in support of either her Motion to Suppress or her Motion to Dismiss on the basis of alleged violations of her rights under the Fifth and Sixth Amendments to the United States Constitution. Consequently, those motions are DENIED to the extent they are premised on such violations.
B. Fourteenth Amendment Issue
Hernandez originally claimed that her rights under the Fourteenth Amendment were violated because she was subjected to racial profiling. Hernandez declined to pursue this issue before the Magistrate Judge, but now argues that she has established that Trooper Peoples selectively prosecuted her and subjected her to "geographical profiling." ( Compare Docs. #27 # 43 with Doc. # 55). In making this argument, Hernandez relies on Whren v. United States, 517 U.S. 806 (1996), in which the United States Supreme Court stated that the Fourteenth Amendment to the United States Constitution prohibits selective enforcement of the law based on considerations such as race. In this case, the Court finds no evidence of selective enforcement of the law based on race and declines Hernandez's invitation to extend Whren and hold that "geographical profiling" violates the Fourteenth Amendment to the United States Constitution. Consequently, to the extent that the Motion to Dismiss and the Motion to Suppress are based on alleged violations of the Fourteenth Amendment, they are due to be DENIED.
C. Fourth Amendment Issue
1. Overview of Applicable Analytical Framework
The Fourth Amendment to the United States Constitution protects the right of persons to be free from unreasonable searches and seizures. U.S. Const. amend. IV. "The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest." United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). A seizure takes place "[w]henever a police officer accosts an individual and restrains his freedom to walk away and the Fourth Amendment requires that the seizure be reasonable." Id. (internal citations and quotations omitted). Traffic stops qualify as seizures under the Fourth Amendment. See, e.g., Whren v. United States, 517 U.S. 806, 809-10 (1996) ("Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a `seizure' of `persons' within the meaning of [the Fourth Amendment.]"); Delaware v. Prouse, 440 U.S. 648, 653 (1979); United States v. Perkins, 348 F.3d 965, 969 (11th Cir. 2003).
Because traffic stops are considered more similar to investigative detentions than formal arrests, courts analyze the legality of traffic stops for Fourth Amendment purposes under the standard articulated in Terry v. Ohio, 392 U.S. 1 (1968). See, e.g., Berkemer v. McCarty, 468 U.S. 420, 439 (1984); United States v. Boyce, 351 F.3d 1102, 1106 (11th Cir. 2003); United States v. Perkins, 348 F.3d at 969; United States v. Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001), cert. denied, 534 U.S. 830 (2001). Under Terry, the judicial inquiry into the reasonableness of a search or seizure "is a dual one — whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 19. A traffic stop "may not last any longer than necessary to process the traffic violation unless there is articulable suspicion of other illegal activity." United States v. Boyce, 351 F.3d 1102, 1106 (11th Cir. 2003) (internal quotations and citations omitted). Simply put, a law enforcement officer making a valid traffic stop must not prolong the stop for longer than necessary to process the traffic violation without having some reasonable suspicion of other criminal activity sufficient to warrant prolonging the stop.
In addition, "the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." Florida v. Royer, 460 U.S. 491, 500 (1983). Once an officer's suspicions have been verified or dispelled, the detention must end unless there is additional articulable, reasonable suspicion for further extending the detention. When making reasonable suspicion determinations, courts must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrong-doing beyond that which justified the traffic stop. This allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them.
2. Analysis of Whether the Stop of Hernandez Was Justified at Its Inception
"As 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." Whren v. United States, 517 U.S. at 810. Accord, United States v. Simmons, 172 F.3d 775, 778 (11th Cir. 1999). This is an objective standard, and the officer's subjective intent in making the stop is not relevant to whether the stop was permissible under the Fourth Amendment. Whren, 517 U.S. at 813. Accord, United States v. Holloman, 113 F.3d 192, 194 (11th Cir. 1997). Consequently, where a law enforcement officer observes a traffic violation, the Fourth Amendment is not offended when that law enforcement officer stops the motorist. In this case it is undisputed that Trooper Peoples observed the vehicle in which Salazar and Hernandez were traveling violating the speed limit. Consequently, the initial stop of Salazar and Hernandez did not violate the Fourth Amendment and the first prong of the Terry analysis is not an issue in this case.
3. Analysis of Whether the Seizure of Hernandez During the Traffic Stop Was Reasonably Related in Scope to the Circumstances Which Justified the Stop in the First Place
The real issue in this case is whether Trooper Peoples' interrogation of Hernandez and Salazar after the initial stop of the vehicle for speeding exceeded the "reasonable scope" of the stop's original purpose and violated Terry's second prong. Before addressing this issue, the Court will first briefly explore what is clearly within the reasonable scope of a traffic stop. It is obvious to this Court that a law enforcement officer who has stopped a vehicle for speeding can question the driver about the speeding offense. For example, a driver can be asked questions concerning: his knowledge of his speed, his knowledge of the applicable speed limit, and his reason for speeding.
Moreover, it is clear that a law enforcement officer who has validly detained a motorist for a traffic stop is also entitled to "conduct a variety of checks on the driver and his car, including questioning the driver about the traffic violation, requesting consent to search the car, and running a computer check for outstanding warrants." United States v. Simmons, 172 F.3d at 778 (collecting cases). Accord, United States v. Boyce, 351 F.3d at 1106; United States v. Purcell, 236 F.3d at 1278 ("The officer may also prolong the detention to investigate the driver's license and the vehicle registration, and may do so by requesting a computer check."); United States v. Shabazz, 993 F.2d 431, 437 (5th Cir. 1993) (explaining that "in a valid traffic stop, an officer can request a driver's license, insurance papers, vehicle registration, run a computer check thereon, and issue a citation.").
Although it is clear that in a traffic stop the police can run the a forementioned computer checks and ask questions about the traffic offense for which the motorist was stopped, it is far less clear what else a police officer can do during a traffic stop if he does not have an articulable reasonable suspicion that the motorist is involved in criminal activity unrelated to the traffic stop. Can a law enforcement officer who has stopped a motorist for a traffic law violation ask the motorist questions during the stop designed to help the law enforcement officer develop a hunch that the motorist is involved in criminal activity into articulable reasonable suspicion which can be used to justify prolonging the detention of the motorist beyond the time necessary to complete the routine traffic stop? Does it matter if those questions are asked before the law enforcement officer initiates the computer check of the driver and the vehicle or must the officer immediately obtain the driver's license, registration and commence whatever routine computer check he typically conducts before asking such questions? Can the motorist be questioned on topics unrelated to the traffic stop while the law enforcement officer is in the process of writing out the traffic citation or warning?
The Eleventh Circuit Court of Appeals and other circuit courts have had many occasions to decide cases arising under Terry's second prong in the context of traffic stops. The resulting patchwork of decisions is somewhat challenging to distill into a cogent set of rules or guiding principles.
Some courts appear to interpret Terry's admonition that officer's actions need to be "reasonably related in scope to the circumstances which justified the interference in the first place" as a limitation on the officer's ability to extend, through questions or other actions, the duration of the stop beyond the amount of time which such a stop would take otherwise. See, e.g., United States v. Shabazz, 993 F.2d 431, 436 (5th Cir. 1993) (holding that questions, which in themselves are neither searches nor seizures, are relevant to whether a detention has exceeded its lawful duration and that the police officer's questioning of defendants regarding their recent whereabouts did not exceed the original scope of a traffic stop for speeding because the questioning occurred while a computer check was running and did not extend the duration of the initial stop). Other courts appear to focus on limiting the nature of the officer's queries to the offense for which the stop was initiated. See, e.g., United States v. Holt, 264 F.3d 1215, 1228-31 (10th Cir. 2001) (holding that "the Fourth Amendment reasonableness of a traffic stop based on probable cause must be judged by examining both the length of the detention and the manner in which it is carried out and rejecting the argument that the nature of the questioning during a traffic stop is irrelevant so long as it doesn't unreasonably prolong that stop's duration); United States v. Murillo, 255 F.3d 1169, 1174 (9th Cir. 2001), cert. denied, 535 U.S. 948 (2002) ("During a traffic stop, a police officer is allowed to ask questions that are reasonably related in scope to the justification for his initiation of contact and to broaden the questioning beyond that subject he must have an articulable reasonable suspicion.").
Given the disparity between the approaches of the various Circuit Courts of Appeals, this issue appears ripe for resolution by the United States Supreme Court.
In various cases, the Eleventh Circuit Court of Appeals appears to have vacillated between these two approaches leaving the status of the law uncertain. For example, in United States v. Pruitt, 174 F.3d 1215 (11th Cir. 1999), cert. denied by Engel v. United States, 528 U.S. 1023 (1999), the Eleventh Circuit Court of Appeals appeared inclined to limit the nature of a law enforcement officer's queries to a motorist to those relating to the traffic offense for which the stop was made and the legal documents necessary to process the stop. In Pruitt, the Eleventh Circuit held that a law enforcement officer who had stopped a motorist for a traffic law violation could briefly question the motorist regarding the traffic offense and could obtain the driver's license, registration, and insurance papers. 174 F.3d at 1220-21. Furthermore, where the law enforcement officer observed the traffic offense, his questioning following the stop "should have been directed to securing [the driver's] license, registration and insurance papers." Id. The Eleventh Circuit Court of Appeals held that if after asking the legitimate questions relating to the basis of the traffic offense and to obtaining the driver's license, registration, and insurance papers, the law enforcement officer has no basis for reasonable suspicion that the person stopped is involved in criminal activity other than that which formed the basis of the stop, additional questions on other topics "are simply irrelevant, and constitute a violation of Terry." Pruitt, 174 F.3d at 1221. Put another way, a law enforcement officer may not delay in obtaining the information necessary to complete the traffic stop and in writing the citation in order to ask the motorist questions unrelated to the purpose of the stop in order to turn a hunch into reasonable suspicion which could justify a more extensive detention.
On the other hand, the Eleventh Circuit Court of Appeals has also shown a willingness to find that the Fourth Amendment is not offended so long as the duration of the traffic stop is not extended. For example, if the law enforcement officer asks questions while writing the ticket or warning so that the queries do not cause the motorist to be seized or detained any longer than he would have been absent the questions being asked, then the law enforcement officer can ask questions unrelated to the reason for the traffic stop or about the driver's documents. See, United States v. Griffin, 109 F.3d 706 (11th Cir. 1997). Additionally, a law enforcement officer did not exceed the scope of a permissible traffic stop when he asked the defendants whether they had guns, firearms, or narcotics in their car during the time that his routine computer check on them was being processed and that he was completing the citation. See, United States v. Purcell, 236 F.3d 1274 (11th Cir. 2001). Moreover, in addition to asking questions of the motorist, law enforcement may use a drug-sniffing dog on a vehicle stopped for a violation of a traffic regulation so long as the use of the dog does not detain the driver any longer than necessary to process the traffic violation. See, e.g., United States v. Holloman, 113 F.3d 192, 196 (11th Cir. 1997).
Further confusing matters is that despite the holding in Pruitt, the Eleventh Circuit subsequently published two decisions which, rather than applying Pruitt as dispositive on the question of the scope of the traffic stop, discuss the possible outcome of the case under the competing approaches employed by the Fifth and Tenth Circuit Court of Appeals without adopting either standard. See, e.g., United States v. Boyce, 351 F.3d 1102, 1111 (11th Cir. 2003) (recognizing that there are two possible tests for when a police investigation exceeds the scope of a routine traffic stop — the one employed by the Tenth Circuit and the one employed by the Fifth Circuit — but declining to determine which test is controlling and holding that the investigation exceeded the permissible scope of an investigatory stop under either test); United States v. Purcell, 236 F.3d at 1279-1280 (describing the approaches to determining whether a police officer has exceeded the scope of a routine traffic stop adopted by the Fifth and Tenth Circuits and declining to adopt one of the approaches because under either approach the questioning was permissible). By discussing the approaches used by the Fifth and Tenth Circuits rather than applying the Pruitt approach, it would seem from these cases that at least these two panels of the Eleventh Circuit think that the question of the correct approach has not been settled in this circuit.
In this case, Trooper Peoples initiated a traffic stop of Hernandez's vehicle because Salazar was speeding. Trooper Peoples testified that it is his routine practice to complete a computer check of those involved in traffic stops and that most of the time he uses the U.S. Customs system for this check, even though it can in some circumstances be more time-consuming, because it provides more information than the other types of computer checks available. Trooper Peoples did promptly obtain Salazar's driver's license. Trooper Peoples questioned Salazar and some of his initial questions clearly relate to the speeding offense which gave Trooper Peoples probable cause for the traffic stop. It is equally clear that Trooper Peoples asked Salazar questions unrelated to the traffic stop prior to the time when he began to write the warning citation he had decided to give to Salazar and prior to initiating the computer check of Salazar and the vehicle. Without speculating about Trooper Peoples' motive for such questions, the Court notes that some of the responses to these queries formed the basis for the reasonable suspicion Trooper Peoples later said justified further detention of Salazar and Hernandez. Moreover, before initiating the computer check of Salazar and the vehicle and before completing the warning citation, Trooper Peoples also asked Hernandez several questions unrelated to obtaining the vehicle registration, insurance, or her driver's license and unrelated to the speeding which resulted in the traffic stop. Importantly, these queries to Salazar and Hernandez, which occurred before the initiation of the computer check and before the writing of the warning citation were unrelated to the following: (1) officer safety ( i.e. whether Hernandez or Salazar were in possession of contraband, drugs or weapons); (2) the speeding offense giving rise to the stop; or (3) obtaining the driver's license, vehicle registration or proof of insurance for the vehicle. The Court finds that under Pruitt these facts establish a violation of the Fourth Amendment because Trooper Peoples asked irrelevant, "fishing expedition" questions. 174 F.3d at 1221. Where, as here, such questions are asked prior to the officer having some articulable reasonable suspicion, they constitute a seizure outside the scope of what is constitutionally permissible.
The Government attempts to distinguish Pruitt by noting that there was no consent to search given in Pruitt and that the motorists in that case were detained after having been questioned and given a warning ticket until a drug sniffing dog could be brought to the scene to sniff the vehicle. The Government is correct that unlike the defendant in Pruitt, Salazar and Hernandez eventually gave consent for him to search the vehicle. This consent cannot be valid, however, if it was given after Trooper Peoples already unnecessarily detained them. Simply put, the Court disagrees with the Government's excessively narrow reading of Pruitt.
Even assuming arguendo that the Government is correct and Pruitt is distinguishable from the instant case, the Court finds that under the approaches employed by either the Fifth Circuit or the Tenth Circuit, Trooper Peoples exceeded the permissible scope of the traffic stop by his questioning of Salazar and Hernandez on matters unrelated to the traffic stop prior to commencing the routine computer check. The Eleventh Circuit Court of Appeals has described the Tenth Circuit approach as one which severely limits the kind of questions which are permissible on a routine traffic stop absent reasonable suspicion. See, e.g., Purcell, 236 F.3d at 1279. Clearly, Trooper Peoples' queries exceeded the scope permissible under the Tenth Circuit approach. Consequently, the Government urges the Court to instead apply the approach implemented by the Fifth Circuit.
In United States v. Shabazz, the Fifth Circuit Court of Appeals held that a law enforcement officer can question validly detained motorists on any subject during the time that it takes for the computer check of the license so long as the questioning does not extend the duration of the seizure of the motorist. 993 F.2d at 437-38. On many occasions since its decision in Shabazz, the Fifth Circuit Court of Appeals has upheld the holding of Shabazz despite the apparent reluctance of most other circuits to follow its lead. Nevertheless, the Fifth Circuit Court of Appeals recently clarified that a law enforcement officer making a traffic stop could not question a motorist about matters unrelated to the traffic stop before commencing the computer check because doing so necessarily unreasonably prolonged the detention of the motorist. See United States v. Brigham, 343 F.3d 490 (5th Cir. 2003). Consequently, where, as here, Trooper Peoples admits that many of his questions to Salazar and Hernandez prior to initiating the computer check were unrelated to the speeding ticket, the permissible scope of the detention is exceeded even under the Fifth Circuit's approach.
The Court notes that there was a dissent in the Brigham case which was very critical of the opinion and the case has been accepted for rehearing en banc. Nevertheless, the Brigham case, which this Court finds consistent with the holding of Shabazz, is the law of the Fifth Circuit as of the date of this Court's decision.
The Government's arguments focus on the fact that Salazar and Hernandez eventually gave consent to search and the fact that some of the questions Trooper Peoples asked aided him in developing the reasonable suspicion it contends he had when he asked later for the consent to search. Nevertheless, this Court cannot ignore the fact that prior to the time he began to write the warning citation and prior to the time he initiated the routine computer check, Trooper Peoples asked questions unrelated to the speeding offense for which the stop was initiated, unrelated to officer safety, and unrelated to obtaining the driver's licenses, vehicle registration and insurance. Under the current law of the Fifth, Tenth, and Eleventh Circuits, these questions violated the Fourth Amendment by exceeding the scope of the traffic stop.
Trooper Peoples continued to ask questions of Hernandez and Salazar after beginning to write the warning citation and after initiating the computer check. Eventually, Trooper Peoples asked for consent to search the vehicle. At the time he asked for and obtained consent to search the pickup truck, Trooper Peoples articulated the following bases for his reasonable suspicion that Hernandez and Salazar were involved in drug trafficking: (1) food containers in the vehicle; (2) minimal luggage; (3) discrepancies in their stories about the nature of the trip; (4) non-stop traveling from a known source city to a known source city; (5) traveling during a tropical storm; (6) Hernandez's uncertainty about the name of her destination city; (7) discrepancies in their stories about the length of the trip; (8) unusual nervousness by Hernandez and Salazar which persisted after Salazar was told he would be getting a warning. Trooper Peoples would have been able to observe the food containers and the luggage when he approached the vehicle to obtain the license, registration, and insurance papers. The remaining factors derive from the answers to questions unrelated to the traffic stop, officer safety, or obtaining documents for the computer check. Indeed, most of the remaining factors came to Trooper Peoples' attention because of questions he asked before commencing the routine computer check, and some of these questions were asked before Trooper Peoples began to write the warning citation. Under the applicable case law, this Court has no choice but to find that these questions necessarily prolonged the time Hernandez and Salazar were detained for the traffic stop; this is true even though the total time between the beginning of the stop and the consent to search does not run afoul of the cases setting an outside limit for the total length of a detention for a traffic stop. Had Trooper Peoples conducted the traffic stop without asking the extraneous questions prior to commencing the computer search, the stop would necessarily have been shorter. Thus, the seizure at issue violated the parameters set out in Terry and its progeny in this and other circuits.
Trooper Peoples testified that if consent to search had not been given he would have detained them until the drug sniffing dog could arrive and sniff the vehicle.
This Court appreciates that given the current state of the law, it is not easy for law enforcement officers to ascertain the permissible way to effectuate a traffic stop without offending the Fourth Amendment. The Court further notes that while it is the function of this Court to review the actions taken by law enforcement after the fact, while doing so, it has the luxury of time to reflect upon and consider the issues presented by the facts of a given case which the law enforcement officer who reacts to events as they occur lacks. After two hearings, numerous hours review of the videotape of the traffic stop which lasted thirty-eight minutes, and an extensive review of existing case law, the Court finds that this case presents a close question in a less than clear area of the law. The Court hopes that its decision in this case will, either directly or indirectly, clarify some of the existing confusion in the state of the dispositive law.
Having found that Trooper Peoples exceeded the reasonable scope of the traffic stop and consequently violated the Fourth Amendment, the Court must also find that the evidence obtained in the encounter, including the forty-three pounds of cocaine hydrochloride, cannot be used against Hernandez. See, e.g., United States v. Terzado-Madruga, 897 F.2d 1099, 1112 (11th Cir. 1990). All of the evidence against Hernandez appears to be "fruit of the poisonous tree." Consequently, by finding that the Motion to Suppress is due to be GRANTED, the Court necessarily must also find that the Motion to Dismiss is due to be GRANTED.
The Court emphasizes that in evaluating the seizure of Hernandez in this case, it did not make findings about Trooper Peoples' subjective intentions. The case law makes it plain that the law enforcement officer's subjective intentions are not relevant to the inquiry before this Court. Because this Court makes no findings about Trooper Peoples' subjective intentions, this decision should not be read as finding that Trooper peoples intentionally violated Hernandez's Fourth Amendment rights.
CONCLUSION
Based on the foregoing, it is ORDERED as follows:(1) The Government's Objections to the Recommendation of the Magistrate Judge (Doc. # 47), as amended (Doc. # 48) are OVERRULED.
(2) The Recommendation of the Magistrate Judge entered on November 17, 2003 (Doc. # 46) is REJECTED in part and ADOPTED in part and MODIFIED in part as set out in this Memorandum Opinion and Order.
(3) Defendant Joanna Hernandez's Motion to Dismiss (Doc. # 26) and Motion to Suppress (Doc. # 27) are GRANTED in full.