Opinion
Case No. 01-40120-01-JAR.
March 6, 2002
MEMORANDUM ORDER DENYING MOTION TO SUPPRESS
On February 11, 2002, the Court held a hearing on defendants' motion to suppress all evidence seized from the search of a minivan and all statements made as a result of an unlawful detention. Having reviewed the evidence and arguments presented by the parties, the Court is now prepared to rule.
Facts
On November 12, 2001, Trooper John Rule noticed a minivan rolling through a stop sign at I-70 and U-183 near Hays, Kansas. The van was driven by Lozano and Quiroz was a front seat passenger. The trooper testified that the van turned into a motel parking lot to make a U-turn and was heading back onto the highway. Without activating his lights or siren, the trooper got out of his patrol car and signaled Lozano to stop, which he did.
Trooper Rule told the defendants the reason for the stop and obtained both of their driver's licenses. Quiroz told the trooper that he owned the van. Trooper Rule asked Lozano to move the van back onto the road so as not to block the motel driveway.
Once the van was parked on the shoulder of the road, the videotape from Trooper Rule's patrol car was activated for the remainder of the stop. The trooper asked Lozano to get out of the van and asked Lozano a number of questions. Lozano told the trooper that he was on the way home to Chicago from Denver and that he rode with his niece from Chicago to Denver where he met Quiroz, who was going to Chicago for a vacation. Lozano told him he just happened to run into Quiroz in Denver and decided to ride home to Chicago with him. The trooper told Lozano that he was writing a warning ticket for rolling through the stop sign.
Leaving Lozano standing at the rear of the van, Trooper Rule returned to the van to check the vehicle identification number. The trooper asked Quiroz questions about his travel plans through the open driver's door window. Quiroz stated that he drove to Denver to meet with Lozano for his vacation in Chicago and that he had known Lozano for five years and was planning to meet him in Denver. The trooper testified that he noted several air fresheners hanging from the turn signal switch.
While Trooper Rule was writing the warning ticket and questioning the defendants, Trooper Schroeder arrived and assisted by running information checks on the two men, which came back negative. At some point a third trooper arrived and parked behind the others, totaling three officers at the scene.
Trooper Rule returned to Lozano and gave him the warning citation and returned his and Quiroz's license and documents. The trooper told Lozano to "have a good trip." As Lozano walked to the driver's side of the van, Trooper Rule walked to the passenger side and opened the door, standing between the door and the van. The trooper told Quiroz he was "through with your buddy" and asked Quiroz if he could ask him a few questions. Quiroz agreed and the trooper asked if he was carrying any contraband, guns, drugs or large amounts of money. Quiroz said no. The trooper asked if he could search the van and Quiroz consented.
Quiroz testified that when he heard Trooper Rule tell Lozano to have a good trip, he thought they were free to go. However, when the trooper opened his door and started asking questions, he testified that he thought he was required to answer the questions and that he was no longer free to leave. Trooper Rule testified that if Quiroz had refused to consent to the search of the van, he would not have permitted the men to drive away, and he would have detained them long enough to have his drug dog sniff the car.
Quiroz and Lozano got out of the van and Trooper Rule did a quick pat-down. Defendants stood with another trooper while Trooper Rule and Trooper Schroeder searched the vehicle. The interior of the van contained two small suit cases and an overnight bag. The glove box contained registration and insurance papers. Trooper Rule noticed that the underside of the van had a fresh undercoating and the screws holding the gas tank filler neck had been removed. Trooper Rule asked Quiroz if he would mind following him to the highway patrol office so the van could be placed on a lift and the gas tank could be checked. Quiroz consented.
The highway patrol office was approximately 100 yards away from the location of the traffic stop. The van was placed on a lift. The underside of the van had a fresh thick undercoating. The bolts holding the driver's seat to the floor had fresh scratches and had apparently been removed since the undercoating had been applied.
A drug dog was brought in to sniff the interior of the van. The dog alerted to the floor near the front seats of the van. Trooper Rule testified that he noticed that the front passenger seat had also been "recently" removed and the carpet pad in the front of the van was glued to the floor. The troopers removed the passenger seat and a false compartment was located under the seat inside the frame of the van. The false compartment contained five kilos of cocaine.
Trooper Rule and his drug dog, Budkis, are certified in drug detection and Rule is also a certified instructor in drug dog detection.
Quiroz and Lozano were arrested and Mirandized. An additional five kilos of cocaine were found under the driver's seat. Quiroz and Lozano were interviewed. Before invoking his right to remain silent, Quiroz stated he had know Lozano for more than seven years and that he had "made a stupid mistake and would now have to pay the price" for getting involved.
Analysis
"`A traffic stop is a "seizure" within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the resulting detention quite brief.'" We apply the principles of Terry v. Ohio to such traffic stops. Thus, the reasonableness of a stop depends on "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."
United States v. Holt, 264 F.3d 1215, 1220 (10th Cir. 2001) (en banc) (quoting United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998) (further quotation omitted)).
392 U.S. 1 (1968).
Id. at 20.
1. Validity of Initial Stop
Tenth Circuit cases "establish that a traffic stop is reasonable under the Fourth Amendment at its inception if the officer has either (1) probable cause to believe a traffic violation has occurred . . . or (2) a reasonable articulable suspicion that `this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction.'"
United States v. Ozbirn, 189 F.3d 1194, 1197 (quoting United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc) (further quotations and citations omitted)).
Defendants do not dispute that they rolled through a stop sign and that Trooper Rule had probable cause to believe a traffic violation had occurred.
2. Validity of Detention
Rather, the defendants complain that Trooper Rule extended the traffic stop beyond its lawful scope in questioning them about their travel plans and the defendants dispute whether Quiroz voluntarily consented to the search of the minivan. The defendants argue that they should have been free to go on their way after showing a valid driver's license and registration, relying heavily on the Tenth Circuit decision in United States v. Holt (Holt II). The defendants further contend that by opening the passenger door to question Quiroz, Trooper Rule rendered the encounter non-consensual.
The second prong of the Terry inquiry is "whether the officer's action `was reasonably related in scope to the circumstances which justified the interference in the first place.'" "Generally, an investigative detention must `last no longer than is necessary to effectuate the purpose of the stop." It must be temporary, and its scope must be carefully tailored to its underlying justification. During a traffic stop, an officer "may request a driver's license and vehicle registration, run a computer check, and issue a citation." The officer may also ask about "travel plans . . . and the ownership of the car." Upon issuing the citation or warning and determining the validity of the driver's license and right to operate the vehicle, the officer usually must allow the driver to proceed without further delay or additional questioning.
United States v. Bustillos-Munoz, 235 F.3d 505, 512 (10th Cir. 2000) (quoting Botero-Ospina, 71 F.3d at 786).
United States v. Patten, 183 F.3d 1190, 1193 (10th Cir. 1999) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)).
United States v. Gutierrez-Daniez, 131 F.3d 939, 942 (10th Cir. 1997), cert. denied 523 U.S. 1035 (1998); United States v. Wood, 106 F.3d 942, 945 (10th Cir. 1997).
United States v. Hunnicutt, 135 F.3d at 1349.
United States v. Rivera, 867 F.2d 1261, 1263 (10th Cir. 1989); see, e.g., United States v. de la Fuente-Ramos, 242 F.3d 391 (10th Cir. 2000), cert. denied, ___ U.S. ___, (2001); United States v. Rodriguez, 215 F.3d 1338 (10 Cir. 2000) (Table).
United States v. Patten, 183 F.3d at 1193; United States v. Anderson, 114 F.3d 1059, 1064 (10th Cir. 1997).
A longer detention for additional questioning is permissible under two circumstances: (1) the officer has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring; or (2) the initial detention changes to a consensual encounter. If the officer continues to question the driver in the absence of of either these two circumstances, then "any evidence derived from that questioning (or a resulting search) is impermissibly tainted in Fourth Amendment terms."
United States v. Hunnicutt, 135 F.3d at 1349.
United States v. Elliott, 107 F.3d 810, 813 (10th Cir. 1997) (internal quotations and citations omitted).
A. Scope of questioning
The defendants argue that Holt II requires the Court to rule that Trooper Rule's questioning regarding defendants' travel plans was beyond the scope of the initial stop for rolling through the stop sign. The defendants contend that an independent reasonable suspicion is necessary to allow such questioning. The Court declines to adopt the defendants' narrow reading of Holt II.
In Holt II, the Tenth Circuit sitting en banc stated:
The controversy in Holt II was over a policeman's right to ask a motorist if he is carrying a loaded firearm in the car. There was a 5-4 split on the question of whether an officer could properly ask a detained motorist about his travel plans, which Judge Henry characterized as dictum in his concurrence. Judges Ebel, Tacha, Brorby and Kelly agree on the above quotation; the remaining five judges reserved this question to a later time.
Thus, it is beyond dispute that an officer may ask questions relating to the reason for the stop. Ordinarily, this also includes questions relating to the motorist's travel plans. (citations omitted). Travel plans typically are related to the purpose of a traffic stop because the motorist is traveling at the time of the stop. For example, a motorist's travel history and travel plans may help explain, or put into context, why the motorist was weaving (if tired) or speeding (if there was an urgency to the travel. (citation omitted).
Holt II, 264 F.3d at 1221.
The Tenth Circuit recently clarified its position on scope of questioning in United States v. Williams, where the panel stated, "[w]hen 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." The court noted that 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. 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."
271 F.3d 1262, 1267 (10th Cir. 2001).
Id. See United States v. West, 219 F.3d 1171, 1176 (10th Cir. 1998) (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 at 1263.
Id. (citation omitted).
Id. (quoting Terry, 392 U.S. at 34).
By the time Trooper Rule began this line of questioning, he knew that the van had California tags, he observed that the men were extremely nervous and that there were several air fresheners hanging from the turn signal, factors that, as discussed infra, contributed to raising the officer's suspicions. The Court is not persuaded that in this case the questioning was outside the scope of the stop.
B. Consensual encounter
As noted above, Trooper Rule returned the defendants' driver's licenses after issuing Lozano a warning, and wished Lozano a good trip. However, the trooper immediately walked over to the passenger side, opened the door and asked Quiroz if he could ask him a few questions and search the van. The defendants argue that the encounter was not consensual because the trooper opened the passenger door, thereby conveying to Quiroz that he could not leave or refuse to consent to further questioning.
"In determining whether a driver and police officer are engaged in a consensual encounter in the context of a traffic stop, there are few, if any bright-line rules." Rather, the court must consider "the totality of the circumstances in a particular case." While the return of documents, such as a driver's license or other personal papers, is a prerequisite to an encounter becoming consensual, we have acknowledged it "is not always sufficient to demonstrate that an encounter becomes consensual."
United States v. Elliott, 107 F.3d at 813.
Id. at 814 (citing Ohio v. Robinette, 519 U.S. 33, 39 (1996)).
Elliott, 107 F.3d at 814; see also United States v. Gregory, 79 F.3d 973, 979 (10th Cir. 1996).
Accordingly, even after the officer returns a driver's papers, the encounter may not be consensual where "there was evidence of a `coercive show of authority, such as the presence of more than one officer, the display of a weapon, physical touching by the officer, or his use of a commanding tone of voice indicating that compliance might be compelled.'" The Tenth Circuit has observed in dicta that an officer leaning on a car may support a finding of a coercive show of authority. However, the ultimate test is whether "a reasonable person under the circumstances would believe he was free to leave or disregard the officer's request for information."
Elliott, 107 F.3d at 814.
Id.
United States v. McKneely, 6 F.3d 1447, 1451 (10th Cir. 1993).
In this case, if the defendants had tried to drive away, the open front passenger door of the van would have hit Trooper Rule. Despite the government's argument to the contrary, the Court finds that no reasonable person would believe he was free to leave when an officer is, in effect, holding or blocking a vehicle. Nor does the Court agree that a reasonable person would have declined consent and reached over to close the door — to do so would involve pushing the officer out of the way.
Trooper Rule testified that he opened Quiroz's car door because the window was up and he wanted to speak with him. Trooper Rule had no trouble speaking with Quiroz earlier, through the driver's side window, which was open. Moreover, Rule opened Quiroz's door without first asking or signaling to Quiroz to open his window or door, to allow Rule to converse with him. In a consensual encounter, a reasonable person would expect that they would be asked or invited to open their car door or window. Trooper Rule's act of opening the car door was a show of force. Given the totality of the circumstances in this case, the Court concludes that Trooper Rule's opening the passenger door rendered the encounter non-consensual.
Cf. West, 219 F.3d at 1177 (holding that there was no unlawful detention even though officer stood "extremely close to [defendant's] car and lean[ed] forward so that the car door could not open without hitting [the officer]").
C. Reasonable suspicion
There being no consensual encounter, the extended detention of the defendants is lawful only if the trooper had a reasonable and articulable suspicion of criminal activity. Trooper Rule testified that he had reasonable cause to detain the defendants because:
See United States v. Turner, 928 F.2d 956 (10th Cir.) cert. denied 502 U.S. 881 (1991).
• the van was from California, a state from which drugs are exported;
• the men were traveling to Chicago, a city to which drugs are commonly transported;
• the men were excessively nervous (although the trooper did not make note of this in his written report);
• inconsistent travel stories;
• there were numerous air fresheners hanging from the turn signal (which are used to mask the odor of drugs);
• the van exited the interstate at a location infrequently used by out-of-state travelers, a maneuver the trooper associates with drug transporters;
• the amount of luggage was unusually small for the length of the trip;
• the van was recently purchased.
The defendants attempt to discount each of the individual factors. However, the Supreme Court recently reiterated that, in 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 wrongdoing. The Court stressed that "[t]his process allows officers to draw of their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that `might well elude an untrained person.'" While it is true that under the defendants' analysis, any one of the trooper's factors may be explained away, the Court concludes that these factors when taken as a whole sufficiently caused the trooper to have a reasonable suspicion of criminal activity that justified a prolonged investigative detention.
United States v. Arvizu, 122 S.Ct. 744, 750 (2002).
Id. (quoting United States v. Cortez, 449 U.S. 411, 417-418 (1981).
3. Probable cause to search van
Because Trooper Rule had reasonable suspicion of criminal activity, the defendants' prolonged investigative detention was lawful. The troopers used Trooper Rule's drug dog to sniff the van after placing it on a lift a short distance from the highway. Consent is not required for a dog sniff of a lawfully detained vehicle. A canine sniff of an already legitimately detained automobile is not a `search' within the meaning of the Fourth Amendment. Accordingly, the Court holds that the evidence seized from the van is admissible.
U.S. v. Diaz-Borjas, 188 F.3d 519 (10th Cir. 1999).
U.S. v. Hunnicutt, 135 F.3d at 1350.
IT IS THEREFORE ORDERED THAT the defendants' motion to suppress evidence and statements is DENIED.
IT IS SO ORDERED.