Opinion
Case No. 03-40107-01-RDR.
May 7, 2004
MEMORANDUM AND ORDER
On April 28, 2004 the court held a hearing on the defendant's pretrial motions. The court is now prepared to rule on those motions.
The defendant is charged with possession with intent to distribute approximately 422 pounds of a mixture or substance containing a detectable amount of marijuana in violation of 21 U.S.C. § 841(a)(1). The charge arises from a traffic stop that occurred on September 8, 2003 near Russell, Kansas.
The defendant has filed a motion to suppress and a motion for discovery of drug dog information. Having carefully reviewed the evidence and arguments presented by the parties, the court issues the following rulings.
MOTION TO SUPPRESS
Findings of Fact
1. On September 8, 2003 at approximately 11:24 a.m., Kansas Highway Patrol Trooper Todd Hileman stopped the defendant's car on Interstate 70 near Russell, Kansas. Prior to the stop, Trooper Hileman had followed the defendant's car for about 10 to 15 miles. The defendant's car was eastbound on I-70. Trooper Hileman had noticed that the car was weaving in its lane. He thought that the driver might be tired. He eventually decided to stop the car after he observed it crossing over the fog line while passing another vehicle on the divided highway. Trooper Hileman's patrol car is equipped with a video camera with audio capabilities. The camera recorded the events of Trooper Hileman's encounter with the defendant. Most of the conversation between Trooper Hileman and the defendant can be heard on the videotape.
2. Trooper Hileman has been with the Kansas Highway Patrol since March 1998. During his employment, he has received training in drug interdiction.
3. As Trooper Hileman approached the defendant's car, he noticed three hats in the back window. He also noticed that the back seat cover was "pulled up a little bit." He also saw some speakers on the rear floorboard.
4. Trooper Hileman asked the defendant for his driver's license, registration and proof of insurance. The defendant was cooperative. He did not appear nervous to Trooper Hileman. The defendant provided various documents to Trooper Hileman. Trooper Hileman asked the defendant about his travel plans and his car. The defendant said that the car had recently been purchased and that he was traveling from Arizona to Ohio to visit his sick father.
5. Trooper Hileman returned to his vehicle. He was suspicious of the defendant for the following reasons: (1) the car had recently been purchased; (2) the hats in the back window appeared unusual since he had only seen them in cars driven by elderly people; (3) the hats appeared to be covering the speaker holes and the speakers appeared to be lying on the rear floorboard of the car; (4) the rear seat cover did not seem to fit properly; and (5) the defendant's statement that he was traveling to visit a sick relative was similar to stories often told by individuals transporting drugs. These matters led Trooper Hileman to believe that something illegal was in the trunk. When he got into his car and out of the wind, Trooper Hileman noticed a smell of raw marijuana emanating from the documents provided by the defendant. Trooper Hileman was sure that was what he was smelling based upon his prior experience in smelling unburnt marijuana. He acknowledged that he had not smelled marijuana as he stood at the window of the defendant's car. Trooper Hileman testified that he did not think about probable cause to search based upon the smell of marijuana at that time. He indicated that he wanted the assurance of a drug dog.
6. Tropper Hileman returned to the defendant's car and provided him with his documents and a warning ticket. He asked if he could ask a few more questions. The defendant agreed. Trooper Hileman asked if he was carrying cash, narcotics or firearms. The defendant said that he was not, but that he did have an Arizona concealed carry permit. They discussed that for a moment and then Trooper Hileman asked if could search the defendant's car. The defendant indicated that he had previously had a problem with a law enforcement officer damaging his air bag during a search. He indicated that he did not want his car searched. He further indicated that he was tired and he needed to use the restroom. Trooper Hileman then asked if he could run a drug dog around the car. The defendant said, "That's fine." Trooper Hileman told the defendant that he would follow him to where he intended to use the restroom and conduct the drug dog sniff there.
7. The defendant traveled to the nearest exit and drove to a nearby McDonald's restaurant. Trooper Hileman followed and waited until the defendant exited the restaurant. The vehicles arrived at the McDonalds at approximately 11:38 a.m. Trooper Hileman had sought to have a drug dog at the restaurant. He learned that a drug dog was unavailable. He informed the defendant that a drug dog was not available and he told him that he could go. The defendant drove away.
8. Within a few minutes, Trooper Hileman was informed that a drug dog was available. He began traveling east on I-70 to find the defendant's car. At approximately 12:05 p.m., Trooper Hileman determined that a car traveling west was speeding. He turned around to stop that car. Shortly after he stopped that car, he noticed the defendant's car. He quickly terminated the stop and began to chase the defendant's car. He stopped the defendant's car at 12:10 p.m. Prior to the stop, Trooper Hileman had been informed that the drug dog was en route.
9. Scott Braun of the Ellis County Sheriff's Department arrived with his drug dog, Taz, at approximately 12:29 p.m. Deputy Braun had been in law enforcement since 1997 and had been a canine handler since 1999. Taz was Deputy Braun's second dog. Deputy Braun and Taz had been certified as a drug dog team in June 2003. In prior experience, including training sessions, Deputy Braun had found that Taz was at least 90% reliable in detecting narcotics. He was unaware of any false alerts by Taz.
10. Taz immediately alerted to the trunk area of the car. Trooper Hileman opened the trunk and found what he believed to be marijuana. He arrested the defendant and read him his Miranda warning.
Conclusions of Law
1. The defendant contends that his detention was not justified by reasonable suspicion of criminal activity. He further argues that the search was made without probable cause because the canine odor detection was not sufficiently reliable to justify the search. The government asserts initially that probable cause existed for the search of the defendant's trunk. The government argues further that if probable cause is lacking, then reasonable suspicion existed for the defendant's detention. The government also argues that the duration of detention was proper given the circumstances.
2. In reviewing the constitutionality of traffic stops under the Fourth Amendment, we conduct a two-step inquiry. First, we must determine "whether the officer's action was justified at its inception." United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir. 1994). Second, we must consider "whether the action was reasonably related in scope to the circumstances that first justified the interference." Id.
3. The defendant has not challenged the initial stop of his vehicle, so the court is not required to consider that issue. However, the court does note that the facts do suggest an objectively reasonable and articulable suspicion that a traffic violation occurred. See United States v. Cline, 349 F.3d 1276, 1287 (10th Cir. 2003) (single instance of swerving onto shoulder of road gave rise to an articulable suspicion that a traffic violation had occurred under Kansas law).
4. Even if the initial stop of defendant's vehicle was legitimate, the detention must be "reasonably related in scope to the circumstances which justified the interference in the first place," as required under Terry. Terry v. Ohio, 392 U.S. 1, 20 (1968). "Generally, an investigative detention must `last no longer than is necessary to effectuate the purpose of the stop.'"United States v. Patten, 183 F.3d 1190, 1193 (10th Cir. 1999) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)). It must be temporary, and its scope must be carefully tailored to its underlying justification. 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). Upon issuing a 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. 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. United States v. Hunnicutt, 135 F.3d 1345, 1349 (1998).
5. "An officer's detection of the smell of drugs in a vehicle is entitled to substantial weight in the probable cause analysis." United States v. Zabalza, 346 F.3d 1255, 1259 (10th Cir. 2003). "[The Tenth Circuit] has long recognized that marijuana has a distinct smell and that the odor of marijuana alone can satisfy the probable cause requirement to search a vehicle or baggage." Id. (citations omitted).
6. The court finds that Trooper Hileman's search of the trunk of the defendant's car was supported by probable cause. The probable cause arises from his smell of marijuana emanating from the documents given to him by the defendant and from his observations of the rear seat area of the defendant's car. These observations, which showed that there had been some efforts to hide something behind the rear seat, coupled with the odor of marijuana from the documents that came from the inside of the vehicle, demonstrated probable cause for the search of the trunk of the car. See, e.g., United States v. Vasquez-Castillo, 258 F.3d 1207, 1213 (10th Cir. 2001) (finding probable cause to search based on evidence of hidden compartment and smell of raw marijuana). The court found Trooper Hileman's testimony concerning the smell of the marijuana and the condition of the rear seat of the car credible. With these findings, we find that the subsequent stop of the defendant's car was appropriate and the search was proper.
7. Even if probable cause were lacking, the court would find that the defendant was properly detained based upon reasonable suspicion. The circumstances noted by Trooper Hileman provided objectively reasonable and articulable suspicion that illegal activity was occurring. Moreover, at least at the initial stop, the defendant agreed to the drug dog sniff of his car. When the defendant advised Trooper Hileman that he needed to use the restroom, Trooper Hileman provided him with information concerning nearby restroom facilities. Trooper Hileman allowed the defendant to leave on his own. They remained at the McDonalds for only a few minutes when Trooper Hileman informed the defendant that a drug dog could not be obtained. Trooper Hileman allowed the defendant to leave. There was certainly nothing unreasonable about the initial encounter.
8. Subsequently, when Trooper Hileman stopped the defendant for the second time, the defendant was delayed for only twenty minutes before he was arrested. The reasonableness of a traffic stop must be judged by examining both the length of the detention and the manner in which it was carried out. United States v. Holt, 264 F.3d 1215, 1230 (10th Cir. 2001) (en banc). In determining whether a detention is too long, the court should "examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly." United States v. Sharpe, 470 U.S. 675, 686 (1986). Prior to stopping the defendant a second time, Trooper Hileman had been informed that a drug dog was en route. Once at the scene, the drug dog quickly alerted to the defendant's car. The court finds that the alert by Taz provided probable cause to search even if the earlier circumstances are deemed lacking. SeeUnited States v. Morales-Zamora, 914 F.2d 200, 205 (10th Cir. 1990) (probable cause to search vehicle when drug dog alerts to it). The evidence revealed that Taz was reliable. United States v. Ludwig, 10 F.3d 1523, 1528 (10th Cir. 1993) (alert by drug dog might not give probable cause if dog had poor accuracy record). In sum, the court finds that the circumstances show that Trooper Hileman acted diligently and with every effort to limit the defendant's delay as much as possible. The court finds that the detention was reasonable in scope and duration.See United States v. Villa-Chaparro, 115 F.3d 797, 802-03 (10th Cir. 1997) (detention upheld upon reasonable suspicion where 43 minutes elapsed from initial stop to arrival of drug dog); United States v. Brown, 24 F.3d 1223, 1226 (10th Cir. 1994) (30-minute investigative detention of defendant and his car for purpose of conducting drug dog sniff did not violate Fourth Amendment).
9. The court finds no Fourth Amendment violation here. The defendant's motion to suppress shall be denied.
MOTION FOR DISCOVERY OF DRUG DETECTION DOG INFORMATION
The defendant seeks an order directing the government to disclose certain information regarding the drug detection dog used during the traffic stop on September 8, 2003. The defendant seeks the following: (1) training, testing or certification of the dog; (2) records of the job performance of the dog; (3) name and address of veterinarian of the dog and his complete veterinary record; (4) name and address of present and past owners; (5) copies of search warrant affidavits where this dog was cited as support for probable cause; (6) copies of traffic citations where dog was utilized; (7) copies of news reports, including video tapes, concerning dog; and (8) copies of police dispatch logs related to calls for this dog and his handler.
The government has responded that it will provide information only on the first two requests. The government argues that the defendant's other requests are "so far afield as to be unrelated to the determination of drug detection reliability."
During the hearing, the government offered the testimony of Taz' handler, Deputy Braun. During his testimony, he offered considerable information about the training and certification of Taz. The court believes that, with the production of the information sought by the defendant in the first two requests, the government has adequately responded to the defendant's motion. Accordingly, the court shall deny the remainder of this motion.
IT IS THEREFORE ORDERED that defendant's motion to suppress (Doc. # 14) be hereby denied.
IT IS FURTHER ORDERED that defendant's motion for discovery of drug detection dog information (Doc. # 16) be hereby granted in part and denied in part. The government shall provide the defendant with information concerning the training, testing or certification of Taz and the records of his job performance. The remainder of the motion shall be denied.