Summary
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
Summary of this case from U.S. v. Granados-OrozcoOpinion
Case No. 02-40008-01/02-SAC
May 14, 2002
MEMORANDUM AND ORDER
In this case, the defendants are each charged by indictment with one count of possession of cocaine with the intent to distribute, and one count of conspiracy to possess cocaine with the intent to distribute. The case comes before the court on the motions of both defendants to suppress evidence (Dks. 26 36), and to join in their co-defendant's suppression motions. (Dks. 43 36).
SUPPRESSION MOTIONS
Both defendants rely largely upon the same case law and theories as their co-defendant. See Poke motion, Dk. 26; Brooks motion Dk. 36. The government's responses (Dks. 29 42) to both motions are identical but for the separate discussion of Brook's standing to challenge the voluntariness of Poke's consent to the vehicle search.
FACTS
The facts are few and undisputed. On Sunday, December 2, 2001, at approximately 10:49 p.m., Kansas State Trooper Epperly was driving southbound on I-35 while on routine patrol in Lyon County, Kansas. He noticed a red BMW and a black Ford Expedition which he believed were traveling together. Trooper Epperly reached this conclusion because the two vehicles were traveling closely together, in light traffic, during nighttime hours, and maintaining the same distance between them so one was not overtaking the other. Trooper Epperly testified that in his experience, cars usually do not travel in that manner unless they are traveling together. Trooper Epperly found it significant that two cars were traveling together because he knew drug couriers frequently use escort vehicles when transporting contraband, and may use one vehicle to make a sudden violation to divert an officer's attention from the other car which carries the contraband.
Trooper Epperly checked the registration on the BMW which a had Texas plate, found it valid, then attempted to do the same for the Expedition but could see no registration. Based upon his suspicion that the Expedition had no registration, as is required under Kansas law, Trooper Epperly stopped the vehicle. As his emergency lights flashed upon the Expedition, the trooper first noticed a card which he thought could be a temporary registration tag, taped to the interior of the rear window of the vehicle.
Trooper Epperly then approached the rear of the vehicle on foot, shined his flashlight on the area, glanced at the tag which had previously been obscured from his sight by the "very dark" window tinting, and saw that it purported to be a Missouri temporary registration tag with a current date. Trooper Epperly then testified that he decided to change the violation from "no registration," to failure to display the tag in a manner that is "clearly visible" and "clearly legible." See K.S.A. § 8-133. Trooper Epperly stated that he did not closely examine the tag because he was concerned about the occupants of the vehicle, and most of the information on Missouri tags is on the back of the tags and could not be seen from a cursory examination of its front.
Believing that there was an ongoing violation, Trooper Epperly spoke to the driver, defendant Shawnea Brooks. He informed her that he had stopped the vehicle because he could not see the tag, and advised her that "everything was fine." He then asked her for her driver's license and proof of insurance. Trooper Epperly identified the driver and the passenger by their drivers' licenses. The passenger, defendant Wesley Poke, who claimed to be the owner of the vehicle, searched for proof of insurance.
Trooper Epperly asked whether defendants had been traveling with the red BMW, and they responded that they had not. The trooper was "fairly confident" that the two had been traveling together, so believed their negative response was a lie.
Trooper Epperly saw that the odometer showed approximately 84,000 miles, which be thought to be high for that model (1998) of vehicle. Trooper Epperly believed such high mileage was consistent with use of the vehicle to transport narcotics, because drug traffickers often use one vehicle with a hidden compartment to make multiple road trips.
Trooper Epperly additionally noticed lots of wood chips or wood shavings in the rear of the vehicle, not bagged but strewn about. The trooper testified that the wood chips could have been used as a masking agent to conceal the smell of illegal drugs.
Passenger/owner Poke was unable to produce proof of insurance, and Trooper Epperly asked him to come to his patrol car. In Trooper Epperly's patrol car, the trooper asked where he was going, why, and how long he intended to stay. Defendant Poke stated that he was traveling to Dallas, Texas, to see his cousin and that they were to call the cousin for directions when they neared Dallas. Trooper Epperly believed that Poke's lack of directions to his ultimate destination was another factor consistent with persons transporting contraband. Trooper Epperly additionally believed that Poke's body language demonstrated defensiveness, in having his arms crossed, not making eye contact, and giving evasive answers.
Poke produced documentation showing when the vehicle had been purchased, and stated that the vehicle had been purchased two months earlier. Trooper Epperly reviewed the paperwork, saw that the vehicle had 54,000 miles on it at the time of purchase, and asked why there were so many miles on the vehicle. Defendant Poke replied that he raised dogs for a living and traveled with his work.
Trooper Epperly failed to notice that the vehicle had actually been purchased on April 9, 2001, making its temporary registration tag outdated by months, but also making its average mileage per month less than the Trooper believed.
Trooper Epperly ran a criminal history check, as is his habit when he become suspicious of criminal activity during a traffic stop, and learned that defendant Poke had a prior drug-related conviction and that defendant Brooks had a prior theft and assault charge. He then returned all of defendant Poke's documents to him and advised him he was free to leave. Trooper Epperly then asked defendant Poke if he would mind if he asked him a few questions, and defendant Poke responded that he had no objection. Trooper Epperly advised him that there was a problem with drug smuggling on that road and asked defendant whether he was transporting anything illegal. Defendant Poke replied that he was not, at which point the trooper requested permission to search the vehicle. Defendant Poke consented to the search. Ten or fifteen minutes passed from the time of the initial stop to the time Poke consented to the search of the Expedition.
Trooper Epperly began to search the Expedition, assisted by Lyon County Sheriff's Deputy Dan Knowles. Both defendants were thereafter placed under arrest, were advised of their Miranda rights, and waived those rights. When they were speaking to the trooper, Deputy Knowles advised Trooper Epperly that he had discovered what he thought to be cocaine in the back seat of the vehicle. A field test was soon performed on the substance, which indicated that it was cocaine.
The remainder of the facts in this section were not introduced at trial, and are based solely on representations in the parties' briefs.
I. Scope of Traffic Stop
Neither defendant challenges the legality of the initial stop. Both contend, however, that their detention exceeded the legal scope of the traffic stop. Defendants contend that any detention or questioning by Trooper Epperly after he discovered that defendants had not committed the registration violation for which they had been stopped was unreasonable.
In support of this argument, defendants rely primarily upon the case of United States v. McSwain, 29 F.3d 558 (10th Cir. 1994). In McSwain, a 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 because it appeared to be covered with reflective tape, so stopped the vehicle to verify the validity of the temporary sticker. As the trooper approached the vehicle on foot, he noticed that the temporary registration sticker was from Colorado and that the reflective tape merely was a new device used by the State of Colorado to prevent alteration of the sticker's expiration date. He then observed 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, based upon McSwain, that law enforcement officers must end a traffic stop without requesting a driver's license and registration or asking any questions where, as here, 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 Epperly should have ended the stop upon determining that defendant's temporary registration tag was displayed in the rear window and had a valid date, rendering their detention therefter unconstitutional. The government alleges that the facts in the present case are distinguishable from those in McSwain, because of the differing nature of the violations involved. The court agrees. 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. In other words, the trooper wished to see the expiration date on the registration sticker. Here, defendants were initially stopped because the trooper did not see any registration sticker, but were detained for a violation of K.S.A. § 8-133, which requires a vehicle registration to be displayed in a manner that is "clearly visible" and "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.
Kansas courts have rarely addressed this statute, but have strictly construed its terms. See 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).
Trooper Epperly testified that the "clearly visible" and "clearly legible" requirements of this statute are applicable to temporary registration tags, and that because defendant's registration tag was not clearly visible to him until he approached the vehicle on foot, the statute was violated.
The court finds that because the improper display of the registration was a violation in and of itself, McSwain is not controlling. Here, at the time Trooper Epperly questioned and detained defendants, he continued to believe that defendants had violated a traffic law of the State of Kansas, although a different law than he had originally stopped them for. Trooper Epperly's reasonable suspicion was never dispelled, even after he saw the registration tag, because at the time he asked the defendants questions and requested their driver's license and insurance information, the violation of K.S.A. 8-133 had already occurred, thus he still had some "objectively reasonable articulable suspicion" that a traffic violation "has occurred or is occurring." Unlike in McSwain, Trooper Epperly's view of the registration tag when he approached the vehicle did not satisfy him that no violation had occurred.
Under these circumstances, further detention and questioning of defendants was permissible. See United States v. Tipton, 3 F.3d 1119, 1122-23 (7th Cir. 1993); United States v. Dumas, 94 F.3d 286, 290 (7th Cir. 1996) (holding that the "driver's failure to display prominently a registration sticker, alone, would provide an officer with reasonable suspicion sufficient to justify at the very least an investigatory stop."), cert denied, 520 U.S. 1105 (1997); United States v. Dexter, 165 F.3d 1120 (7th Cir. 1999).
II. Questions within scope of stop
Defendants additionally contend that the questions asked by Trooper Epperly were not within the scope of the stop.
A routine traffic stop is a seizure under the Fourth Amendment. United States v. West, 219 F.3d 1171, 1176 (10th Cir. 2000). Analogous to investigative detentions, routine traffic stops are analyzed under the principles stated in Terry v. Ohio, 392 U.S. 1 (1968) . United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998). The reasonableness of an investigative detention is a dual inquiry: (1) "whether the officer's action was justified at its inception," and (2) whether the officer's action "was reasonably related in scope to the circumstances that first justified the interference." United States v. Burch, 153 F.3d 1140, 1141 (10th Cir. 1998) (quotation omitted); see Terry, 392 U.S. at 20.
In support of their proposition that Trooper Epperly's questioning exceeded the scope of the stop, defendants cite United States v. Holt, 264 F.3d 1215, 1230 (10th Cir. 2001) (referred to by the Tenth Circuit as Holt II). Holt II does state that an officer conducting a routine traffic stop may not ask questions unrelated to the purpose of the stop, even if the questioning does not extend the normal length of the stop, unless the officer has reasonable suspicion of illegal activity.
As the Tenth Circuit has clarified, Holt II does not mean that officers cannot ask about travel plans, because such questions typically fall within the scope of a traffic stop:
Holt II stands for the proposition that 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." Holt II, 264 F.3d at 1230. Mr. Williams does not argue that the questioning in this case increased the duration of the stop, but claims that questions related to his travel plans were beyond the scope of the stop and thus unreasonable even after Holt II. We are not persuaded, however, that in this case the questioning was outside the scope of the stop. When directly confronted with the issue, we have repeatedly held (as have other circuits) that questions relating to a driver's travel plans ordinarily fall within the scope of a traffic stop. See West, 219 F.3d at 1176 (stating that "questions about travel plans are routine and `may be asked as a matter of course without exceeding the proper scope of a traffic stop' ") (quoting United States v. Hernandez, 93 F.3d 1493, 1499 (10th Cir. 1996)); see also United States v. Santana-Garcia, 264 F.3d 1188, 1192-93 (10th Cir. 2001) (quoting West, 219 F.3d at 1176); United States v. Rivera, 867 F.2d 1261, 1263 (10th Cir. 1989); United States v. Hill, 195 F.3d 258, 268 (6th Cir. 1999), cert. denied, 528 U.S. 1176, 120 S.Ct. 1207, 145 L.Ed.2d 1110 (2000); United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 647 (8th Cir. 1999), cert. denied, 528 U.S. 1161, 120 S.Ct. 1175, 145 L.Ed.2d 1083 (2000). Though such questions do typically fall within the scope of a traffic stop, citizens' legitimate privacy interests are protected in that they are not legally obligated to answer such questions, nor can an officer compel an answer to these routine questions. See $404,905.00, 182 F.3d at 647 n. 2 (citing Terry, 392 U.S. at 34, 88 S.Ct. 1868 (White, J., concurring)). In addition, a motorist's refusal to answer routine questions may not furnish a basis for arrest, "although it may alert the officer to the need for continued observation." Terry, 392 U.S. at 34, 88 S.Ct. 1868 (White, J., concurring).United States v. Williams, 271 F.3d 1262, 1267 (10th Cir. 2001), cert. denied, ___ U.S. ___, 2002 WL 496743 (2002).
Based upon the law set forth above, the court finds that Trooper Epperly's questioning of defendant about travel plans was proper. Further, those questions which concerned the length of time defendant Poke had owned the vehicle and the number of miles on the vehicle were not unrelated to one of the purposes of the traffic stop, which was to determine whether the vehicle had a valid temporary registration tag. Additionally, it is undisputed that Trooper Epperly was entitled to request proof of insurance, and that defendant Poke could produce none. Defendants' detention lasted only 15 minutes, was no longer than was necessary to effectuate the purpose of the stop, and was carefully tailored to its underlying justification. Trooper Epperly's actions between the time of the traffic stop and his request to search the car were reasonable under the circumstances, and did not deviate from the legal standards governing the permissible length or scope of the stop.
The court thus does not reach the issue whether Trooper Epperly had independent reasonable suspicion of criminal activity, sufficient under United States v. Arvizu, 534 U.S. 266 (2002) to detain defendants.
III . Voluntariness of Consent to Search
A. Standing of defendant Brooks
The government challenges defendant Brooks' standing to challenge the voluntariness of defendant Poke's consent to search the vehicle he owned. It is uncontested that defendant Brooks had no possessory or ownership interest in the vehicle searched.
A recent Tenth Circuit case, United States v. DeLuca, 269 F.3d 1128, 1132-34 (10th Cir. 2001), teaches that defendant Brooks could only seek to have the evidence suppressed as fruit of her own allegedly unlawful detention. Defendant Brooks has made no attempt to show that had she requested to leave the scene of the traffic stop, she would have been able to do so in defendant Poke's car. Therefore, without any evidence to the contrary, the court must assume that regardless of defendant Brook's presence, the car and its owner would have continued to be detained and the officer would still have found the cocaine. See id., at 1133. Under these circumstances, defendant Brooks has no standing to object to the search of the Expedition.
B. Defendant Poke
Defendant Poke alleges that although he consented to the search of his vehicle, his consent was not voluntary because it was the product of his illegal detention. Given the court's finding that there was no illegal detention, defendant's claim of involuntariness fails. Additionally, in the event defendant intends to independently challenge the voluntariness of his consent, the court finds that the consent to search was voluntary in fact under the totality of the circumstances. See United States v. Fernandez, 18 F.3d 874, 881 (10th Cir. 1994); cf. United States v. Gregory, 79 F.3d 973, 979 (10th Cir. 1996) (noting that "voluntary consent may be given by a person who is detained"). At the time defendant Poke consented to the search, Trooper Epperly had returned all his documentation to him, and had told him he was free to go. The facts of record show no coercion, duress, or undue influence by Trooper Epperly or otherwise. The court thus finds that defendant Poke's consent to the search of the Expedition was voluntary.
IT IS THEREFORE ORDERED that defendant Poke's motion to suppress (Dk. 26) is denied, and that defendant Brooks' motion to suppress (Dk. 36) is denied.
IT IS FURTHER ORDERED that defendant Poke's motion to join (Dk. 43) is granted and that defendant Brooks' motion to join (Dk. 36) is granted in part and denied in part.