Opinion
CASE NO. 2:10-CR-37-WKW [WO].
February 24, 2011
MEMORANDUM OPINION AND ORDER
Defendant Neide Herrera and two co-Defendants are charged in both counts of a two count Superseding Indictment with (1) possession with intent to distribute five (5) kilograms or more of powder cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and (2) conspiracy, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. (Doc. # 68.) The Superseding Indictment also contains a forfeiture allegation as to a 2003 Mini Cooper, the vehicle in which Ms. Herrera and co-Defendant Randall Herrera ("Randall") were traveling when pulled over for speeding and impeding the flow of traffic by Corporal Jason Burch, an Alabama State Trooper. Ms. Herrera filed a Motion to Suppress (Doc. # 55), contending that (1) Trooper Burch lacked reasonable suspicion to prolong the roadside detention, (2) Trooper Burch failed to obtain Ms. Herrera's consent to search the vehicle, (3) Randall did not voluntarily consent to a search of the Mini Cooper, and (4) the search of the Mini Cooper was without probable cause. The Government filed a Response (Doc. # 67) and a suppression hearing was held on June 11, 2010 (Doc. # 95), at which both parties examined Trooper Burch. Ms. Herrera filed a Post-Hearing Supplemental Brief (Doc. # 116). The Magistrate Judge issued a Report and Recommendation (Recommendation (Doc. # 125)), recommending the denial of the motion to suppress. Ms. Herrera filed a timely Objection (Doc. #132) to the Recommendation. Pursuant to 28 U.S.C. § 636(b)(1), the court conducts a de novo review of the portions of the Recommendation to which the objections were made. Ms. Herrera's first seven objections take issue with the Magistrate Judge's ruling on Trooper Burch's reasonable suspicion to prolong the roadside detention. The court agrees with the Magistrate Judge's conclusion, but it enlarges the supporting rationale. Accordingly, Ms. Herrera's first seven objections will be considered collectively, but her eighth and ninth objections will be addressed individually. Based upon the applicable law and a thorough review of all of the evidence in this case, including the video of the traffic stop, Ms. Herrera's objections are due to be overruled and her motion to suppress is due to be denied.
I. FACTS
On March 1, 2010, Ms. Herrera and her nephew, Randall Herrera, were traveling North on Interstate 85 ("I-85") in a blue 2003 Mini Cooper with a Texas license plate. Also traveling north on I-85 was Alabama Department of Public Safety state trooper Corporal Jason Lee Burch ("Trooper Burch"). The Mini Cooper and its occupants first caught Trooper Burch's attention while it was attempting to pass a gold Ford Crown Victoria. During the attempted pass, the Mini Cooper approached another state trooper's marked canine vehicle parked in the median; the driver of the Mini Cooper "braked suddenly and started reducing speed" causing traffic to "bottle up." (Suppression Hrg Tr. 15.) According to Trooper Burch, the Mini Cooper "got down to around 50 miles an hour." (Suppression Hrg Tr. 15.) After passing the canine unit parked in the median, the Mini Cooper "began to rapid[ly] accelerate[.]" (Suppression Hrg Tr. 15.) Staying behind the Mini Cooper, Trooper Burch used his radar to clock the vehicle at between 75 and 76 miles per hour. Trooper Burch tailed the Mini Cooper for several miles at the same speed, and eventually activated his emergency lights and initiated a traffic stop for speeding and impeding the flow of traffic. The time was 1:08 p.m. (Post-Arrest Rep. ¶ 1 (Doc. # 124-2).)
Less than a minute and a half after the dash camera on Trooper Burch's car was activated, Trooper Burch can be seen exiting his car and approaching the passenger door of the Mini Cooper. On his approach, Trooper Burch observed "Bondo residue along the front fender crack in the firewall by the [passenger] door [where] [he] was standing." (Suppression Hrg Tr. 18.) Ms. Herrera, sitting in the passenger seat, opened her door and Trooper Burch leaned over to ask Randall, the driver, for his license and the vehicle's registration. When Randall indicated that he spoke no English and Ms. Herrera stated that she spoke little English, Trooper Burch attempted to convey to Ms. Herrera that Randall was speeding and impeding the flow of traffic. (Tr. Traffic Stop (Doc. # 117-3).) During the exchange, Trooper Burch detected signs of nervousness on the part of both Ms. Herrera and Randall Herrera. Trooper Burch noticed Ms. Herrera's carotid artery in her neck visibly beating, and, as Randall handed over his California driver's license, Trooper Burch could see his hand visibly shaking. (Suppression Hrg Tr. 17.) During this initial encounter, Trooper Burch also noticed a lack of luggage in the passenger area of the vehicle and in the hatchback trunk. He perceived an open road map on the rear seat and saw that the car had a "lived-in look." (Suppression Hrg Tr. 17-18.) Trooper Burch also observed what he described as a "single key ignition," which, according to Trooper Burch, is indicative of a third-party vehicle. (Suppression Hrg Tr. 18.) Trooper Burch also viewed the Mini Cooper's odometer, with a read-out of 107,000 miles, and that Randall had a California driver's license, which did not match the Texas license plate on the car. (Suppression Hrg. Tr. 30-31.)
For the remainder of the opinion, the number of minutes elapsed during the course of the stop will be counted from the beginning of the video.
Trooper Burch described Bondo as "a paste . . . used in the auto body shop business. If you've got a dent, you take Bondo, you smear it, you sand it down. But when you sand it, it's just like sheetrock [in that] the dust just goes everywhere." (Suppression Hrg Tr. 22.) According to Trooper Burch, Bondo can be used to conceal "a compartment that has been constructed in [the] car." (Suppression Hrg Tr. 22.)
When Trooper Burch spoke of a "single key ignition," he was referring to a key chain with only one key on it — in this case, the key to the Mini Cooper.
The court takes note of Ms. Herrera's objection that "[i]t is impossible, as evidenced by the video, that Trooper Burch observed the mileage on the vehicle." (Obj. 3.) The objection is overruled on the basis of the finding of the Magistrate Judge, who observed Trooper Burch's testimony at the suppression hearing in conjunction with the video and with photos of the interior of the Mini Cooper in the background.
After three minutes of this initial exchange, Trooper Burch ordered Randall, in Spanish, to come sit with him in his patrol vehicle. Trooper Burch used his limited Spanish to ask whether Randall had any firearms, where they were going and for how many days, who the car belonged to, and what his relationship was to the passenger. Randall stated that they were headed to Atlanta for three days, "more or less," that the car belonged to his girlfriend, and that Ms. Herrera was his aunt. Trooper Burch also attempted to ask who they were staying with in Atlanta, but was unable to convey the question to Randall so as to get an answer. (Tr. Traffic Stop 3.)
At 1:13 p.m., five minutes after the initial stop, Trooper Burch radioed Corporal Dunn ("Officer Dunn"), a City of Montgomery Police Department Officer who speaks Spanish. (Recommendation 3.) Trooper Burch stated over the radio that he wanted Officer Dunn to "call [his] cell phone and translate for [him]." (Tr. Traffic Stop 4.) Trooper Burch wrote in his post-arrest report that he called for Officer Dunn's assistance because he "was unable to effectively communicate with Randall Herrera." (Post-Arrest Rep. ¶ 10.) When Officer Dunn called back less than thirty seconds later, Trooper Burch "advised [Officer] Dunn [that] . . . [he] was having difficulty in speaking to [Randall] and [Ms. Herrera]. [He] also stated to [Officer] Dunn that criminal indicators were being observed." (Post-Arrest Rep. ¶ 10.)
Officer Dunn spoke with Randall by phone for approximately seven minutes. (Tr. Traffic Stop 4-8.) While Officer Dunn was questioning Randall, Trooper Burch conducted an NCIC computer check on the Mini Cooper's tags, and discovered that the car had been registered nineteen days earlier with 93,000 miles to a Mr. Francisco Martin of Mission, Texas. Randall had told Trooper Burch earlier that the car belonged to his girlfriend. (Suppression Hrg Tr. 20.) Furthermore, the recently purchased registration also indicated that the car had 93,000 miles. (Suppression Hrg Tr. 20.) As mentioned above, during Trooper Burch's initial exchange with Randall Herrera and Ms. Herrera, he observed that the odometer read 107,000 miles. (Suppression Hrg Tr. 20.) That would mean that the car had traveled, on average, 736 miles per day in the nineteen days since the car was registered.
However, Trooper Burch later discovered, when he retrieved the car's insurance documents from Ms. Herrera, that the car was insured to a female named Delia Saenz. (Suppression Hrg Tr. 46.) When Trooper Burch asked Randall his girlfriend's name, he responded "Delia Gutierrez." (Tr. Traffic Stop 15.) It remains unclear whether Ms. Saenz and Ms. Gutierrez are the same person.
Meanwhile, Officer Dunn was questioning Randall on Trooper Burch's cell phone. Randall told Officer Dunn his full name, his date of birth, and that he lived in Monterey Park, California. (Officer Dunn Mem. 1 (Doc. # 117-1).) Randall stated that his occupation was distributing Elmer's Glue from the United States for his father's company in Guadalajara, Mexico. (Tr. Traffic Stop 5.) As to his immediate travel plans, he stated that he was on vacation and that he had traveled from California to Guadalajara to visit his father, and then to McAllen, Texas to visit Ms. Herrera, and that he was now going to Atlanta to see family and friends, specifically his brother, Morisete Oliver Herrera. (Officer Dunn Mem. 1.) He stated that Ms. Herrera was accompanying him because he did not know the area and that they only planned to stay in Atlanta for three or four days because he had to return to work. (Officer Dunn Mem. 1.)
At 1:27 p.m., nineteen minutes into the stop, Trooper Burch handed his cell phone, with Officer Dunn still on the other end, to Ms. Herrera. She told Officer Dunn her full name, date of birth, and that they were traveling to Atlanta to see friends. When Officer Dunn inquired as to whether she was also visiting family, she responded, "No, well they are like family." (Officer Dunn Mem. 1; Tr. Traffic Stop 10.) Ms. Herrera also stated that they planned to meet those friends at a gas station. (Tr. Traffic Stop 9.) Other than the discrepancy in who they were planning to visit, Ms. Herrera corroborated Randall's story. During her conversation with Officer Dunn, Ms. Herrera had the passenger door to the Mini Cooper open and was seated facing toward the open door. Trooper Burch was standing outside the Mini-Cooper and noticed that Ms. Herrera was developing red hives on her neck. Due to the open door, Trooper Burch was also able to see that "the seat bolts were heavily tooled, and they're a hex-head pattern like a torque set that would take — that you would need to take the seats out." (Suppression Hrg Tr. 21.)
At 1:35 p.m., twenty-seven minutes into the stop, Officer Dunn concluded his questioning of Ms. Herrera. Trooper Burch asked Officer Dunn to speak with Randall again in order to get Randall's consent to search the Mini Cooper. (Officer Dunn Mem. 1.) Officer Dunn asked Randall a series of questions about firearms and narcotics. When Officer Dunn asked whether there was cocaine in the vehicle, Randall took "a long pause" before responding negatively. (Officer Dunn Mem. 2.) Randall also paused before responding "no" to Officer Dunn's question of whether there was any reason that a dog might indicate to the odor of narcotics in the vehicle. (Officer Dunn Mem. 2.) Officer Dunn then asked for Randall's consent for Trooper Burch to search the Mini Cooper. Randall consented orally. It was 1:39 p.m., thirty-one minutes into the stop.
At 1:42 p.m., Trooper Burch radioed in Randall's driver's license information, the Mini Cooper's tag numbers, and other relevant information for issuance of the warning tickets. (Tr. Traffic Stop 15-16.) Trooper Burch printed the warning tickets for speeding and impeding the flow of traffic and a Spanish-language consent form together at 1:45 p.m. (Tr. Traffic Stop 17.) Trooper Burch then placed the warning tickets on the dashboard and handed Randall the consent form and a pen with which to sign it. (Suppression Hrg Tr. 33.) Randall signed the consent form at 1:46 p.m., thirty-nine minutes into the stop.
At this point, Trooper Burch ordered Ms. Herrera to exit the vehicle because he had obtained Randall's consent to search the car. She complied without objection. (Suppression Hrg Tr. 35-36, 53.) Trooper Burch opened the hatchback of the Mini Cooper and removed two fiberglass panels on each side of the trunk. He discovered Bondo dust on both sides and in the area under the carpet lining where the spare tire would reside. Trooper Burch then examined the undercarriage of the Mini Cooper. He discovered that the Mini Cooper's heat shield had been bent and that there were heavy tooling marks on the bolts holding the heat shield. (Suppression Hrg Tr. 39.) He also noted visible fingerprints and tool marks on the muffler indicating that the exhaust system may have been removed. (Suppression Hrg Tr. 36.) Trooper Burch then used his drug-detection dog to sniff the outside of the Mini Cooper. The dog gave a positive indication to the right side of the car beneath the front wheel well. Trooper Burch called two fellow officers who also brought their canine partners. Both of these dogs also indicated in the same area as Trooper Burch's dog. (Suppression Hrg. Tr. 39-40.)
At this point, Trooper Burch had Officer Dunn inform Randall that they would be taking the car to the troopers' auto shop in order to inspect it further. Randall drove the car under escort to the shop while Ms. Herrera rode with another officer. Once at the auto shop, the Mini Cooper was placed on a lift, and Trooper Burch, standing under the car, observed overspray on the car's frame. He scraped it off, removing Bondo with it. (Suppression Hrg Tr. 42.) Trooper Burch then drilled into where he believed the secret compartment to be. The drill came out with residue on it, which field-tested positive for cocaine. At that point, Randall and Ms. Herrera were placed under arrest. (Suppression Hrg Tr. 42.) Found within two secret compartments in the Mini Cooper were ten kilograms of cocaine hydrochloride.
II. DISCUSSION
A. Trooper Burch's Reasonable Suspicion for Prolonging the Detention
A traffic stop is a seizure within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653 (1979). "Because a routine traffic stop is only a limited form of seizure, it is more analogous to an investigative detention than a custodial arrest." United States v. Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001) (citing Berkemer v. McCarty, 468 U.S. 420, 439 (1984)). Therefore, the legality of these stops is analyzed under the standard articulated in Terry v. Ohio, 392 U.S. 1 (1968). Purcell, 236 F.3d at 1277 (citing cases). "Under Terry, an officer's actions must be `reasonably related in scope to the circumstances which justified the interference in the first place.'" Id. (quoting Terry, 392 U.S. at 20) (emphasis added). Accordingly, "[a] seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission." Illinois v. Caballes, 543 U.S. 405, 407 (2005). However, a seizure on account of a traffic stop may be prolonged beyond the time afforded to issue a ticket for the traffic stop if "there is articulable suspicion of other illegal activity." Purcell, 236 F.3d at 1277 (citing United States v. Holloman, 113 F.3d 192, 196 (11th Cir. 1997)); see also United States v. Boyce, 351 F.3d 1102, 1106 (11th Cir. 2003). 1. Officer Dunn's Questioning of Randall Herrera Did Not Prolong the Stop
Ms. Herrera contends that the traffic stop became an investigatory detention at the point at which Trooper Burch called for Officer Dunn's assistance. (Obj. 2-3.) She argues that Trooper Burch's reasonable suspicion to extend the roadside detention "must therefore be assessed in light of the information known to Trooper Burch at four minutes and forty-eight seconds into the traffic stop, when he himself believed he had observed `criminal indicators' and requested Officer Dunn's assistance in questioning Randall and Neide Herrera." (Obj. 3.) Ms. Herrera further argues that the Recommendation improperly relies on facts supporting reasonable suspicion learned of after Trooper Burch extended the roadside detention by calling Officer Dunn. (Obj. 4.)
The Recommendation concluded that "the traffic stop . . . was not unreasonable and [] Trooper Burch's actions did not unreasonably extend the traffic stop." (Recommendation 8.) Specifically, the Magistrate Judge found that "Trooper Burch had difficulty understanding Randall and called Corporal Dunn, a City of Montgomery Police Department Officer who speaks Spanish." (Recommendation 3.) Notwithstanding the language barrier, Ms. Herrera objects to this finding, believing instead that Trooper Burch requested Officer Dunn's assistance "because he had observed `criminal indicators'" in his, to that point, limited interactions with Ms. Herrera and Randall Herrera. (Obj. 2.) Ms. Herrera cites Trooper Burch's post-arrest report, in which he states that he informed Officer Dunn that "criminal indicators were being observed." (Post-Arrest Rep. 2 (Doc. # 117-2).)
Ms. Herrera's argument ignores two important facts. The first is that Trooper Burch did not contact Officer Dunn solely for help in "questioning" Ms. Herrera and Randall Herrera about his suspicions of narcotics trafficking. Trooper Burch also stated in his Post-Arrest Report that "[he] was unable to effectively communicate with Randall Herrera. Due to the communication barrier, [he] exited his patrol vehicle and contacted [Officer Dunn]. [He] advised Officer Dunn he was on a traffic stop and was having difficulty in speaking to the driver and passenger." (Post-Arrest Rep. 2.) Trooper Burch expressed concern with simply being able to communicate at all with Ms. Herrera and Randall Herrera.
The second important fact is that, at four minutes and forty-eight seconds into the stop, Trooper Burch had not yet had time to issue Randall Herrera warning tickets for speeding and impeding the flow of traffic. "A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission." Illinois v. Caballes, 543 U.S. 405, 407 (2005). At the time Trooper Burch contacted Officer Dunn, he scarcely had been able to obtain the needed information to issue those tickets. Considering the significant communication barrier, the fact that neither Randall nor Ms. Herrera owned the Mini Cooper, and the fact that Trooper Burch was conducting and awaiting the results of an NCIC check while Officer Dunn spoke to Randall, it was not unreasonable for Trooper Burch to have taken longer than four minutes and forty-eight seconds to issue the warnings and it was not unreasonable for Trooper Burch to prolong the detention in order to obtain necessary facts toward issuing those warnings. See Boyce, 351 F.3d at 1106 (stating that an officer may prolong a detention to investigate a driver's license and vehicle registration); see also United States v. Aispuro-Medina, 256 F. App'x 215, 219 (10th Cir. 2007) (holding that officer's use of AT T interpreter to ask defendant immigration-related questions did not prolong speeding stop because officer was still waiting on results of computer checks during interpreter's questioning).
Furthermore, to the extent that Ms. Herrera argues that Trooper Burch needed reasonable suspicion at the time he developed subjective suspicions of other illegal activity, that objection is due to be overruled as well. The question of when Trooper Burch developed his own suspicions concerning perceived criminal indicators is irrelevant to the issue of whether there existed an articulable suspicion of other illegal activity at the time the roadside detention was actually prolonged on account of Trooper Burch's investigation of that activity. Boyce, 351 F.3d at 1106; see also Whren v. United States, 517 U.S. 806 (1996).
2. Officer Dunn's Questioning of Ms. Herrera Prolonged the Stop
However, Ms. Herrera's argument is correct that, at some point in this timeline, the traffic stop was prolonged and became an investigatory detention requiring Trooper Burch to have reasonable suspicion of other illegal activity. See Purcell, 236 F.3d at 1277. The Magistrate Judge's opinion did not clearly demarcate this transitional point, but appears to conclude that such a transition never occurred, based on the evidence it considered for reasonable suspicion and the statement that it was "hard-pressed to find that thirty to thirty-four minutes [the entire length of the stop] is unreasonably long for a traffic stop. . . ." (Rec. 7-8.)
In some cases, the transition between traffic stop and investigatory detention may be seamless. In other words, the officer may be simply attempting to process the traffic violation when reasonable suspicion comes to him instantaneously. This is usually the case of one or two very strong indicators of other illegal activity. See e.g., United States v. Salley, 341 F. App'x 498, 498-99 (11th Cir. 2009) (a strong odor of marijuana emanating from the vehicle as the officer approaches to ask for the driver's license and vehicle registration). In other cases, such as the present one, the indicators supporting a suspicion of other illegal activity slowly collect, like droplets of rainwater collecting at the bottom of a pail, until eventually the collected information is enough to fill the pail and make the suspicion objectively reasonable. The present case is replete with seemingly innocuous indicators which, bound together, clearly fits the second pattern. (Suppresion Hrg Tr. 59 ("[A]s I've testified before, one indicator by itself means nothing.").) Therefore, two findings must be made. First to be determined is the point at which Trooper Burch prolonged the traffic stop, which was for speeding and impeding the flow of traffic, in order to investigate his suspicions of narcotics trafficking; it is at this point that the stop ceased to be a traffic stop and became an investigatory detention. The second inquiry is to determine whether, at this particular point, Trooper Burch had reasonable suspicion to prolong the detention based upon the totality of the indicators he had observed prior to this time.
As Ms. Herrera argues, the total number of minutes elapsed does not tell the entire story. (Obj. 12-13.) The Magistrate Judge cites United States v. Hardy, 855 F.2d 753 (11th Cir. 1988), stating that "this Circuit's prior decision [concluded] that fifty minutes is not an unreasonable length of time to conduct a traffic stop." (Rec. 8.) The Eleventh Circuit stated in Hardy that "[t]he investigative stop in this case lasted approximately fifty minutes, from about 9:34 p.m., when Ralston informed appellants that they would be detained for a narcotics sniff, until about 10:25 p.m., when the narcotics dog alerted to the presence of drugs in the trunk." Id. at 761 (emphasis added). Fifty minutes describes the length of the Terry detention, i.e., the length of time the officer was investigating his previously developed reasonable suspicion. Ms. Herrera does not challenge the length of the investigative detention in this case. Rather, her argument comes earlier in the timeline. She argues that the traffic stop itself was impermissibly prolonged without reasonable suspicion of other illegal activity.
Looking back to Hardy, the police officer stopped the defendants' vehicle for speeding at 8:57 p.m. Id. at 754. The court then stated that "[i]n our view, an investigative stop began at 9:34 p.m.[,]" id. at 757, a total of thirty seven minutes. However, the court elaborated further, stating that the officer had acquired reasonable suspicion based upon his initial questioning of the two co-defendants, which included strong inconsistencies and gaps in their respective stories. Id. at 758. Because the court earlier had found that "[t]he initial questioning of [the defendants] lasted approximately fifteen minutes," id. at 755, a thorough reading of the Hardy case reveals that the officer had acquired reasonable suspicion to prolong the traffic stop to investigate other illegal activity within the first fifteen minutes of the traffic stop.
In contrast, Ms. Herrera cites United States v. Tapia, 912 F.2d 1367, 1368-69 (11th Cir. 1990), which involved only a six minute traffic stop portion of the encounter between defendant driver and the police. In Tapia, the Eleventh Circuit rejected a finding of reasonable suspicion to detain the vehicle's occupants, holding that the proffered bases for reasonable suspicion "indicate [] no facts sufficient to justify the further investigatory detention of the [defendants] beyond a citation for speeding[.]" Id. at 1371. However, Tapia is distinguishable from the present case. In Tapia, the stop had clearly turned into an investigatory detention after only six minutes, when the officer sought and obtained consent to search the vehicle. However, the district court held that the consent was invalid and that finding was not challenged by the government on appeal. Id. at 1370. Accordingly, the Eleventh Circuit reviewed whether, in the absence of validly obtained consent, the officer nevertheless had developed reasonable suspicion to prolong the detention in order to investigate his suspicions of narcotics trafficking. This inquiry had to be made at the six minute mark, when the officer clearly had shifted the focus of the detention from issuing traffic citations to searching the defendant's car for narcotics. Considering the officer's suspicions to that point, that the driver was Mexican, had little luggage, appeared nervous, and was traveling with Texas license plates in Alabama, the Eleventh Circuit held that the totality of these suspicions did not give rise to a reasonable suspicion of illegal activity to justify the prolonged detention. Id. at 1371.
Tapia is different from the present case because the officer in Tapia abandoned investigating the traffic stop after only six minutes by focusing on searching the car for narcotics. In this case, Trooper Burch had not shifted his investigation in a wholesale manner from issuing traffic citations to investigating his suspicions of narcotics trafficking. In fact, Trooper Burch printed the warning tickets for speeding at 1:44 p.m., thirty-six minutes after the initial stop, and then withheld the warning tickets until he had obtained Randall's consent to search the Mini Cooper. (Suppression Hrg Tr. 33 ("I printed off the warnings — the two warning citations, set them on the dash and I printed [the consent form] off.").)
The Eleventh Circuit has opined that "[w]here at its inception a traffic stop is a valid one for a violation of the law, we doubt that a resultant seizure of no more than seventeen minutes can ever be unconstitutional on account of its duration: the detention is too short." United States v. Hernandez, 418 F.3d 1206, 1212 n. 7 (11th Cir. 2005). In this case, thirty-seven minutes elapsed between the stop and Randall's signature on the consent form. However, it was at 1:27 p.m., nineteen minutes into the stop, when Trooper Burch had Officer Dunn speak with Ms. Herrera, that Trooper Burch prolonged the traffic stop on account of his investigation into possible narcotics trafficking. As discussed above, an ability to communicate with the driver of a vehicle in order to issue the driver a traffic citation is essential. However, by the time Officer Dunn had concluded his questioning of Randall, Trooper Burch had already obtained Randall's driver's license and the vehicle's registration, and had already performed an NCIC computer check. See Purcell, 236 F.3d at 1278 (citing Prouse, 440 U.S. at 657-59 and United States v. Simmons, 172 F.3d 775, 778 (11th Cir. 1999)). There was no reason for him to further prolong the traffic stop other than to investigate other illegal activity. See Boyce, 351 F.3d at 1106; see also Holloman, 113 F.3d 192, 196 (11th Cir. 1997) (holding that the traffic stop may not last "any longer than necessary to process the traffic violation" unless there is articulable suspicion of other illegal activity). Having Officer Dunn commence his questioning of Ms. Herrera (the vehicle's passenger) at nineteen minutes into the stop, after Trooper Burch had already obtained all of the necessary information for issuance of a traffic citation to Randall, could not have been for any other purpose other than to investigate Trooper Burch's suspicion of other illegal activity.
This is not to say that questioning the passenger of the vehicle is never justifiably necessary toward issuing the driver of that vehicle a citation. On the facts of this case, however, speaking further to the passenger was not justifiably necessary.
In United States v. Pruitt, 174 F.3d 1215 (11th Cir. 1999), the Eleventh Circuit held that a police officer's "[l]engthening the detention for further questioning is permissible in two circumstances." Id. at 1221. "First, the officer may detain the driver for questioning unrelated to the initial stop if he has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring." Id. "Second, further questioning unrelated to the initial stop is permissible if the initial detention has become a consensual encounter." Id. at 1220. The encounter in this case clearly was not consensual at this point, so Trooper Burch's questioning (through Officer Dunn) of Ms. Herrera, which was unrelated to the initial traffic stop and which lengthened the detention, needed to be precipitated by a "reasonable and articulable suspicion that illegal activity [was] occurring." Id. 3. Trooper Burch Had Acquired Reasonable Suspicion at the Time He Prolonged the Stop
Accordingly, the reasonableness of Trooper Burch's suspicion of narcotics trafficking must be evaluated based on the information he perceived from the time he initiated the traffic stop until the time he handed the telephone to Ms. Herrera. This occurred at the nineteen minute mark. Up to this point, Trooper Burch had observed the following criminal indicators: (1) Bondo residue on the vehicle, see United States v. Prieto, 549 F.3d 513, 517 (7th Cir. 2008) (noting that Bondo is "indicative of a hidden compartment"); United States v. Quintana-Garcia, 343 F.3d 1266, 1269 (10th Cir. 2003) (same); (2) signs of nervousness on the part of both driver and passenger, see Denson v. United States, 574 F.3d 1318, 1342 (11th Cir. 2009) (holding that defendant's "signs of nervousness during questioning" contributed to officer's reasonable suspicion); (3) travel from a source city (McAllen, Texas) to a source city (Atlanta), see id. (holding that defendant's arrival from a source country contributed to officer's reasonable suspicion); see also Hernandez, 418 F.3d at 1211; (4) a lack of luggage in the passenger and hatchback area of the vehicle, see Hernandez, 418 F.3d at 1210 (stating that officer's observation of only a "small amount of luggage" for a purported week-long stay "could [with other factors] warrant an objectively reasonable policeman to believe that [d]efendant might be involved in other criminal activity"); (5) a "lived-in" look to the vehicle, see id. (crediting officer's testimony that "people transporting contraband often drive long distances without leaving their vehicles, because they fear leaving the contraband unattended"); (6) a "single-key ignition" indicative of a third-party vehicle, see United States v. Mason, No. 07-4900, 2010 WL 4977817, at *4 (4th Cir. Dec. 8, 2010) (published); United States v. Guerrero, 472 F.3d 784, 788 (10th Cir. 2007); United States v. Hernandez-Torres, 234 F. App'x 752, 753-54 (9th Cir. 2007); (7) an odometer readout of 107,000 miles even though the vehicle had been registered only nineteen days before with 93,000 miles, see United States v. Berrelleza, 90 F. App'x 361, 364 (10th Cir. 2004) (finding credible officer's testimony that "drug cartels . . . supply a courier with a high mileage vehicle that has only recently been registered. . . ."); United States v. Thomas, 81 F. App'x 98, 99 (9th Cir. 2003); and (8) Randall's statement that the vehicle belonged to his girlfriend when, in fact, it was registered to a male. Especially probative to support reasonable suspicion are factors (7) and (8).
Although severing Trooper Burch's list of criminal indicators at the nineteen minute mark makes for a marginally closer decision, the totality of these above-listed criminal indicators (overlayed with language barriers that prolonged the traffic stop in the first instance) provided Trooper Burch with a reasonable suspicion at the nineteen minute mark to prolong his detention of Randall and Ms. Herrera to investigate possible narcotics trafficking.
B. Randall's Consent (Objections 8, 9)
Ms. Herrera's final two objections concern Randall's consent to the search of the Mini Cooper. She does not contest the Magistrate Judge's conclusion that Randall, as the driver of the vehicle, had authority to consent to the search. Rather, Ms. Herrera argues that Trooper Burch improperly separated Randall from her "for the purpose of avoiding any objection [from Ms. Herrera]. . . ." (Obj. 14.) Ms. Herrera cites Georgia v. Randolph, 547 U.S. 103 (2006), for the proposition that police actions that intentionally separate defendants "for the sake of avoiding a possible objection" are improper. Id. at 121-22. However, she has presented no evidence, and the record does not suggest that there is any such evidence, that Trooper Burch actually separated her and Randall for the sake of avoiding her possible objection. Accordingly, Randall's consent was not improperly obtained on this ground.
Furthermore, even if Ms. Herrera were able to supply evidence that Trooper Burch brought Randall to his squad car so as to separate him and obtain his consent without Ms. Herrera's objection, Trooper Burch nevertheless informed her that he had obtained consent to search the car before he started searching the car. (Suppression Hrg Tr. 53-54.) Therefore, Ms. Herrera had the opportunity to object prior to the commencement of the search. Her failure to object when confronted with Randall's consent precludes her from arguing that she had no opportunity to object or refuse consent.
Finally, to the extent that Ms. Herrera continues to assert that Randall's consent was involuntary, that objection is due to be overruled as well. Fourth Amendment rights are personal and may not be vicariously asserted. United States v. Leon, 468 U.S. 897, 965 (1984) (citing Alderman v. United States, 394 U.S. 165, 174 (1969)); Rakas v. Illinois, 439 U.S. 128, 133-34 (1978); United States v. McKennon, 814 F.2d 1539, 1545 (11th Cir. 1987).
IV. CONCLUSION
Accordingly, it is ORDERED that Part III.A of the Recommendation (Doc. # 125) is ADOPTED, but under the rationale stated herein; Parts III. B-D of the Recommendation are ADOPTED; Ms. Herrera's Objection (Doc. # 132) is OVERRULED; and the Motion to Suppress (Doc. # 55) is DENIED.
DONE this 24th day of February, 2011.