Opinion
Case No. 2:03-CR-382 TC
October 29, 2003
ORDER
Raul Rubio Reyes ("Reyes") and Alexander Lugo-Camargo ("Lugo") were indicted for possession of a controlled substance (methamphetamine) with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and for aiding and abetting, in violation of 18 U.S.C. § 2. In addition, Reyes was indicted for using or carrying a firearm during or in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c), and possession of a firearm by an illegal alien in violation of 18 U.S.C. § 922(g). Reyes and Lugo have jointly moved to suppress physical evidence obtained during a search of Reyes' car, and statements made by Lugo to police officers following his arrest. Reyes and Lugo (collectively "Defendants") contend that the evidence should be suppressed because it was obtained in violation of their Fourth Amendment rights to be free from unreasonable searches and seizures. For the reasons set forth below, Reyes' and Lugo's Motion is DENIED.
Lugo, through counsel, orally joined in Reyes' Motion to Suppress during a July 11, 2003 evidentiary hearing on the Motion. (See Transcript of July 11, 2003 Evidentiary Hearing on Motion to Suppress Evidence at 3, 35.)
FINDINGS OF FACT
About 11 p.m. on May 14, 2003, Officer Darren Shumway pulled his patrol car into a gas station and convenience store parking lot in Blanding City, Utah. (Transcript of July 11, 2003 Evidentiary Hearing ("Tr.") at 7-8.) Officer Shumway, a Blanding City police officer, pulled into the lot for the purpose of telling some juveniles hanging out in the parking lot to go home before curfew. (Tr. at 6, 8.) While at the gas station, he observed Reyes standing next to a car (a white Nissan Sentra) at the gas pumps with a gas hose in his hand. (Tr. at 7, 24.) Reyes hung up the pump, said something to a passenger seated in the car, got back in the car and drove away from the gas station "in a hurry" without closing the car's fuel door. (Tr. at 7-9.) Based on his observations, Officer Shumway pulled up behind Reyes and followed him as he was leaving the gas station. (Tr. at 9, 35.)
The Nissan pulled out of the gas station onto a four-lane road, and immediately arrived at a four-way stop in the far right lane. (Tr. at 9.) The driver of the Nissan, without signaling, made a left turn from the right lane. (Id.) Officer Shumway, who observed this traffic violation, followed the Nissan and turned on his patrol car overhead lights. (Tr. at 9-10.) The driver did not stop right away. (Tr. at 10.) Instead, he drove the car about two blocks before stopping in a hotel parking lot on the left-hand side of the road. (Id.)
Officer Shumway got out of his patrol car and approached the Nissan on the driver's side. (Tr. at 10.) He asked the driver, Reyes, for license, registration, and proof of insurance. (Id.) Reyes told Officer Shumway that he only had a Mexican driver's license, which he produced along with car registration in his name. (Tr. at 11, 25.) A Mexican driver's license is not valid in Utah. (Tr at 11.)
Officer Shumway called Reyes back to the patrol car and called police dispatch with Reyes' driver's license and registration information. (Tr. at 11-12, 24.) The passenger in the Nissan stayed in the car during this time. (Tr. at 26.) Reyes waited in the patrol car while police dispatch ran Reyes' information through the computer system. (Tr. at 11-12.) While Officer Shumway was waiting for the information from dispatch, he asked Reyes questions about where he was going and about his passenger. (Tr. at 12, 25.) This is standard practice. (Tr. at 11, 25.)
Reyes responded that he was traveling to Denver to visit his girlfriend. (Tr. at 12.) When Shumway asked Reyes who he was traveling with, Reyes said that he did not know his passenger's name although they had grown up together, (Tr. at 12, 26.) The Officer asked Reyes why he did not know his passenger's name even though the two had grown up together, and Reyes responded "Well, I'm scared because you've stopped me." (Tr. at 12-13). Officer Shumway got out of the patrol car, where Reyes remained, and again approached the Nissan from the driver's side. (Tr. at 13.) The car's interior light was on and Officer Shumway was shining a flashlight into the front seat compartment. (Id.)
The Officer asked the passenger his name. (Tr. at 13, 26.) The passenger said his name was Alexander Lugo and produced a Mexican driver's license as I.D. (Tr. at 13, 23, 26,) Officer Shumway asked Lugo whether he knew the driver, and Lugo answered that the driver's name was Raul. (Tr. at 13.) Officer Shumway asked Lugo if he knew Raul's last name, but Lugo said he did not. (Id.) While Officer Shumway was talking to Lugo, he noticed "some green leafy flakes" on the driver's seat, which he took to be marijuana. (Tr. at 13, 27.) Officer Shumway has investigated between 100 and 150 drug cases in three and a half years, and he is trained to recognize controlled substances, including marijuana. (Tr. at 6-7.) Nothing in the record establishes whether the green flakes were in fact marijuana. Officer Shumway also observed five or six newly opened air fresheners hanging from the car's rear view mirror. (Tr. at 14.) A strong odor "of air fresheners and cologne mixture" came from the car. (Id.)
Officer Shumway went back to the patrol car to talk to Reyes. He asked Reyes whether Reyes or anyone else had smoked marijuana in the car. (Tr. at 14.) Reyes responded, "Yes, I have. I did about two months ago back in Phoenix." (Id.)
During this time, Officer Shumway was waiting for the results of the computer check. Five or ten minutes after submitting Reyes' information to dispatch, Officer Shumway received a report from dispatch stating that the review of Mr. Reyes' information did not reveal any outstanding warrants or other problems. (Tr. at 12, 33-34.)
Officer Shumway asked Mr. Reyes to step out of the patrol car, and he returned Mr. Reyes' license and registration. (Tr. at 15.) Shumway decided at that time that he was not going to give Reyes a ticket. (Tr. at 28-29.) He then asked Reyes "Do you have any marijuana in your car now or drugs of any kind?" (Tr. at 15.) Reyes said no. (Id.) Officer Shumway then asked Reyes for consent to search the car. (Id.) According to Officer Shumway, Reyes answered something to the effect of "Go ahead," or "Yes, sure," or "Yes. No problem." (Tr. at 16.) The conversation between Officer Shumway and Reyes was conducted in English. (Tr. at 15.) Officer Shumway, who does not speak Spanish fluently, spoke to Reyes in English, and Reyes responded in English. (Id.) Reyes responded "appropriately" to Officer's Shumway's questions. (Id.)
Officer Shumway called Officer Corey Workman on the radio for assistance in conducting the search. (Tr. at 16.) He also asked Lugo to step out of the Nissan and wait in front of it, which Lugo did. (Tr. at 16-17.)
While waiting for Officer Workman to arrive, Officer Shumway had a conversation with Reyes about Reyes' driver's license. (Tr. at 17.) Reyes stated that he had an Arizona driver's license number on the back of his Mexican license. (Id.) Officer Shumway ran the Arizona driver's license number through the computer system, and the report said the license was suspended. (Id.) Shumway arrested Reyes for driving without a valid license. (Id.)
Around the same time, while waiting for Officer Workman to arrive, Officer Shumway attempted to search the car. (Tr. at 16.) Lugo repeatedly interrupted Shumway with distracting questions. (Tr. at 17-18.) According to Officer Shumway,
Every time I'd go in to search the vehicle, the passenger [Lugo] would ask me a question, and he would ask me if the gas station that he was just at was closed. And I told him yes, it was closed. And he — and then I'd go in to search the car again, and he would ask me again. And this happened several times. . . . Every time I started to search he would ask me another question, and it was the same question over and over and over again. So it seemed to me like he was — like I was being distracted.
(Id.)
After Officer Workman arrived, a thorough search was conducted. The search, which involved use of a police dog trained to sniff out drugs, revealed packages of methamphetamine and a handgun located in a hidden compartment under the car's dashboard. (Tr. at 19-20, 22-23.) At that point, both Reyes and Lugo were arrested. (Tr. at 38-39.) The entire stop, including the search and arrests, lasted approximately an hour and a half. (Tr. at 39.)
CONCLUSIONS OF LAW
Reyes, the driver and owner of the car, contends that the physical evidence should be suppressed for the following reasons: (1) the officer's detention of Reyes after the officer had checked and returned Reyes' Mexican driver's license and registration was not within the scope of the circumstances justifying the initial stop; (2) the officer did not have reasonable articulable suspicion to detain Reyes after the officer had checked and returned Reyes' Mexican driver's license and registration; and (3) the detention was not a consensual encounter allowing the officer to ask questions unrelated to the stop and for consent to search.
Lugo, the passenger, contends that the physical evidence and his post-arrest statements should be suppressed for the same reasons. He also asserts that his arrest was illegal because it was not supported by probable cause, and, consequently, Lugo's statement (purportedly derived from an illegal arrest) is "fruit of the poisonous tree" that must be suppressed.
A. The Officer's continued detention of Defendants following the computer check of Reyes' license and registration information was legal.
Neither Defendant challenges the legality of the initial traffic stop. They admit that the illegal left turn provided Shumway with a sufficient reason to stop the Nissan. Moreover, the law is clear that the officer, after conducting a legitimate, routine traffic stop, may request the driver's license and car registration and run a computer check on the information produced while the driver and passengers wait. United States v, Shareef, 100 F.3d 1491, 1501 (10th Cir. 1996). Defendants do not challenge their detention during the time Officer Shumway was waiting for a report from dispatch on Reyes' Mexican driver's license and car registration information. Instead, the Defendants argue that their detention went from a legal detention to an illegal one the moment Officer Shumway returned the license and registration papers to Reyes after dispatch reported that there were no "wants or warrants" out on Reyes. They argue that the Officer was not allowed to ask any further questions or ask for consent to search the car.
Contrary to Defendants' position, the continued detention of Lugo and Reyes is supported both by the consent of Reyes and the Officer's reasonable suspicion of criminal activity. Although consent obviates the need for reasonable suspicion to extend the detention, Officer Shumway had developed a reasonable, articulable basis for suspecting other illegal activity.
The standard for evaluating whether an officer could have had a reasonable suspicion of illegal activity is an objective one. See, e.g., United States v. Villa-Chaparro, 115 F.3d 797, 802 (10th Cir. 1997). Moreover, whether the suspicion is reasonable is determined based on the totality of the circumstances. United States v. Salzano, 158 F.3d 1107 (10th Cir 1998). The totality of the circumstances test "allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them." United States v. Arvizu, 534 U.S. 266, 273-74 (2002).
"An investigative detention maybe expanded beyond its original purpose . . . if during the initial stop the detaining officer acquires `reasonable suspicion' of criminal activity, that is to say the officer must acquire a `particularized and objective basis for suspecting the particular person stopped of criminal activity.'"Villa-Chaparro 115 F.3d at 801-02 (citations omitted). Officer Shumway's suspicion of criminal activity was sufficient to legally detain both Reyes and Lugo. With respect to Reyes, any continued detention that occurred was short — the Officer asked "May I search the car?" Defendant Reyes voluntarily gave consent to the search and that ends the inquiry for his claim. See, infra, Part B. It is not clear from the record whether Lugo, the passenger, was even detained after the officer returned Reyes' license and registration. See, e.g.,infra, Part B. Assuming Lugo was detained, his detention was legal because the officer had reasonable, articulable suspicion of Lugo's involvement in criminal activity.
Officer Shumway observed that when he pulled the patrol car into the gas station parking lot, the driver of the Nissan left the gas station "in a hurry" with the car's fuel door still open. The driver made an illegal left turn right in front of the patrol car without signaling. The driver of the car did not pull over right away when the Officer followed in the patrol car and flashed the patrol car's emergency lights.See Villa-Chaparro, 115 F.3d at 802 (identifying a "driver's failure to promptly stop an automobile in response to flashing lights as a factor supporting reasonable suspicion"); United States v. Garcia, 52 F. Supp.2d 1239, 1245 (D. Kan. 1999) (noting that reluctance to stop contributes to reasonable suspicion). Neither the driver of the Nissan nor its passenger had a valid driver's license.See Garcia, 52 F. Supp.2d at 1245 (noting that driving with a suspended license contributes to reasonable suspicion). The driver stated that he grew up with the passenger but he did not know the passenger's name. Similarly, the passenger said he did not know the driver's last name. They were supposedly driving to Denver to visit the driver's girlfriend, but they didn't know each other's names. When the driver was asked why he did not know his passenger's name despite their past together, he said was scared about being pulled over.
The Officer noticed some "green leafy flakes" on the front seat of the Nissan, and, based on his training, was suspicious that they may have been marijuana. Moreover, Reyes admitted to having smoked marijuana in the car two months previously.
A very strong odor smelling of air fresheners and cologne wafted from the car. See Villa-Chaparro, 115 F.3d at 802 ("air freshener [used as a masking agent] coupled with other indicia of criminal activity supports" a finding of reasonable suspicion). The car did not have just one air freshener — it had five or six, all open and hanging from the rear view mirror.
Each time Officer Shumway tried to begin a search of the vehicle, Lugo repeatedly asked him the same question about whether the gas station was closed. The timing of Lugo's questions (which must have been stated in English because Shumway understood them and he does not speak Spanish), the repetition (despite a responsive answer from the Officer), and the banal nature of the question all contribute to the Officer's reasonable suspicion.
The totality of the circumstances support the Officer's detention of the Lugo and Reyes for the entire length of the stop.
B. The search of the car was legal.
Reyes contends that his car was unlawfully searched in violation of his Fourth Amendment rights because his consent was unlawfully obtained. Although Lugo joins in Reyes' Motion challenging the search, Lugo does not have standing to bring such a challenge. United States v. Eylicio-Montova, 70 F.3d 1158, 1162 (10th Cir. 1995): United States v. Erwin, 875 F.2d 268, 270-71 (10th Cir. 1989). The argument belongs solely to Reyes.
Reyes argues that because Officer Shumway did not expressly state that Reyes and Lugo were free to go upon return of the license and registration, they were not free to go and could not have understood that they were free to go. Consequently, he argues, the consent, obtained during the purportedly illegal detention, was not voluntary. Reyes' position is not supported by the law or the facts.
First, there is no requirement that an officer must expressly state, after the traffic stop is finished, that the person is "free to go," particularly to make a consent to search voluntary. See Ohio v. Robinette, 519 U.S. 33, 35 (1996). Second, the record does not clearly suggest that the Defendants were in fact detained rather than participating in a consensual police/citizen encounter. See, e.g., United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996) ("A traffic stop may become a consensual encounter if the officer returns the license and registration and asks questions without further constraining the driver by an overbearing show of authority"). There was no evidence that Officer Shumway used a commanding or threatening manner or tone of voice, displayed a weapon, or physically restrained Reyes or Lugo. There is no evidence that Reyes or Lugo attempted to leave or stated that they believed they could not leave. Even assuming they were detained, that fact alone does not make a consent to search involuntary.
Contrary to Reyes' contention, his consent to search the car was voluntary, and, consequently, the search was legal. "Where a valid consent is obtained, no Fourth Amendment rights are violated."United States v. Bell, 892 F.2d 959, 965 (10th Cir. 1989) (citing United States v. Gay., 774 F.2d 368, 376 (10th Cir. 1985)). "Whether a defendant freely and voluntarily consents to a search is a question of fact determined from the totality of the circumstances."United States v. Pena-Sarabia, 295 F.3d 983, 985 (10th Cir. 2002) (citing United States v. Pena, 143 F.3d 1363, 1365 (10th Cir. 1998)). The two-tiered test for determining whether consent was voluntarily given is as follows: "First, [the government] must present clear and positive testimony that consent was unequivocal and specific and freely and intelligently given. Second, the government must show that the police did not coerce the defendant into granting his consent." Id. (citations and quotations omitted).
Here, the facts show that Reyes' consent to the car search was voluntary. Nothing in the record suggests that Reyes did not understand Officer Shumway's question in English. Reyes' positive response to the question was unequivocal. The Officer had already returned Reyes' driver's license and car registration. Reyes was not sitting in the patrol car when he was asked for consent to search the car. Neither Reyes nor Lugo were ever physically restrained. There is no evidence that the Officer used threatening language, menacing gestures, or an abusive tone of voice. The Officer did not have his weapon drawn. The evidence, viewed as a whole, supports the finding that the car search was consensual.
C. Officers had probable cause to arrest Lugo.
Lugo argues that there was no indication that he was involved with the drugs and so probable cause for his arrest did not exist. On the contrary, when the drugs were found, the officer had probable cause to arrest not only Reyes but also Lugo. See United States v. Hernandez, 322 F.3d 592, 597 (9th Cir. 2003) (holding that defendant's "presence as a rear seat passenger in a vehicle containing commercial quantities of illegal drugs, together with his suspicious behavior, his relationship to the other occupants of the vehicle, and his proximity to those illegal drugs, gave border agents probable cause to arrest him"). Given that the officers' arrest of Lugo was valid, Lugo's post-Miranda warning statement was not "fruit of the poisonous tree" and should not be suppressed.