Opinion
No. 03-40009-01-SAC.
June 16, 2003.
MEMORANDUM AND ORDER
The case comes before the court on the defendant's pretrial motion to suppress all evidence seized during a traffic stop on Interstate Highway 35. (Dk. 14). The government has filed a response opposing the defendant's motion. (Dk. 19). The court heard the parties' arguments and evidence on May 6, 2003. After reviewing all matters submitted and researching the relevant law, the court issues the following as its ruling on these motions.
INDICTMENT
Jacob Unrau is the sole defendant named in a single count indictment charging him with possessing with the intent to distribute approximately 400 pounds or 181 kilograms of marijuana on January 3, 2003, in violation of 21 U.S.C. § 841(a)(1).
FACTS
Shortly before 6:00 p.m. on January 3, 2003, Jim Brockman, a Master Trooper with twenty-one years of experience with the Kansas Highway Patrol, observed a red GMC pickup and decided to run a registration check on the license plate. The license plate was filthy, and a ball hitch on the pickup obscured the officer's vision of the fourth number on the license plate. Based on his observations from following a reasonable distance behind the pickup and from driving along side the pickup, Trooper Brockman radioed dispatch with two possible guesses at the license plate number, but dispatch did not report any valid information on either number. Trooper Brockman testified that the validity of a Texas license plate can only be determined by running a computer check on its number. Consequently, Trooper Brockman pulled over the pickup which was occupied only by the driver.
At 5:53 p.m., Trooper Brockman approached the pickup and asked to see a driver's license and registration. The driver's license was from Canada and identified the driver as Jacob Unrau. When asked where he was headed, Unrau responded he was driving to Canada. Trooper Brockman then explained the reason for the stop and said he had been unable to read the pickup's license plate until he was very close behind it. The trooper did not have any other reason for conducting the stop, and he noted nothing unusual about Unrau's demeanor during the stop.
Waiting for a response from dispatch on his license plate inquiry and with the defendant's paperwork in hand, the trooper began walking around the pickup and shining his flashlight inside the pickup's bed and underneath its frame. At 5:54 p.m., as the trooper had just started walking along the passenger side, dispatch radioed with the information that the plate was for a pickup registered in Texas. During the next minute, Brockman continued to look over the pickup bed, between the bed and the cab, and underneath the bed. He tapped his flashlight twice on the fuel tank sitting inside the pickup bed. Brockman noticed that the interior of pickup bed was "extremely filthy" and covered with dirt and grime, but the rest of pickup was relatively clean.
At 5:55 p.m., Trooper Brockman approached the driver and asked why the pickup was registered in Texas when the defendant had a Canadian driver's license. The defendant said he had purchased the pickup in Texas, and the trooper followed up with a question about when it was purchased. The defendant told the officer the pickup had been purchased in November, but the registration papers indicated the purchase occurred in October. At this point, Trooper Brockman returned the defendant's license and paperwork and requested permission to ask some additional questions. With the driver's consent, the trooper asked where he was coming from and why he had no luggage. The defendant driver told the officer he was coming from Mexico and had received a phone call at El Paso about his mother being ill so he left quickly without luggage. The defendant next denied that he was transporting anything unlawful from Mexico. When asked about the tank in the back, the defendant said it was a diesel fuel tank.
Trooper Brockman then asked whether he could search the tool box and fuel tank for false compartments, as well as, the pickup itself. The defendant's response cannot be heard on the videotape, but the trooper testified that the defendant said something like, "fine," in response. As the defendant climbed out of the pickup at the trooper's request, Brockman asked the defendant if he understood what the trooper was doing. The defendant gave a positive response, and the trooper patted him down for weapons.
Trooper Brockman searched the pickup alongside the road for the next thirty or more minutes. He focused on the tool box and fuel tank because of its unusual construction. Using a fiberoptic scope, he looked into the interior of the fuel tank and observed very little fuel. He also saw a solid horizontal wall without any holes for fuel to pass into the bottom compartment or to be removed from it either. Unable to access the bottom compartment and to determine its contents, Trooper Brockman directed the defendant to drive his pickup and follow another trooper into town where they would access the false compartment. Brockman twice asked the defendant what was inside the compartment, and the defendant denied knowledge.
At the automobile shop, the trooper drilled into the bottom compartment of the tank and detected the smell of raw marijuana. The tank was removed from the pickup bed and was found to contain four metal containers holding approximately 400 pounds of marijuana.
LAW AND ANALYSIS
A traffic stop is a seizure within the meaning of the Fourth Amendment. United States v. Zubia-Melendez, 263 F.3d 1155, 1160 (10th Cir. 2001). For the stop to be constitutionally reasonable, the officer must have 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.'" Id. (quoting United States v. Ozbirn, 189 F.3d 1194, 1197 (10th Cir. 1999)). The constitutional reasonableness of a traffic stop does not depend on the officer's actual motive in conducting the stop. Whren v. United States, 517 U.S. 806, 812-13 (1996). 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 v. Ohio, 392 U.S. 1, 20 (1968).
The defendant contends that Trooper Brockman conducted the stop without a reasonable, articulable suspicion that a traffic violation had occurred. The defendant insists there is no traffic law in Kansas that is violated simply because an officer's vantage point, an officer's vision or other circumstances outside of the defendant's control preclude the officer from seeing a license plate. The evidence introduced at the hearing establishes that Trooper Brockman's inability to read the defendant's license plate until he was immediately behind the pickup was not caused by anything unreasonable or even questionable about the trooper's vantage point or other circumstances uncontrollable by the defendant. Rather, someone following at a reasonable distance could not read all of the defendant's license plate, because the plate was filthy and because the ball hitch blocked the fourth number. As the government points out, Kansas law requires a license plate to be secured on a vehicle "in a place and position to be clearly visible." K.S.A. 8-133.
The Kansas Court of Appeals has interpreted K.S.A. 8-133 as meaning "that all of the tag must be legible" and, therefore, it follows that the all of the tag also must be "visible." State v. Hayes, 8 Kan. App. 2d 531, 532, 660 P.2d 1387 (1983). This statute applies to license plates issued by other states and secured to cars being operated in Kansas. Id. at 533. The violation of this statute is a misdemeanor under K.S.A. 8-149. Id. A tag is not positioned to be plainly visible when it is behind a ball hitch that blocks an officer from reading the entire plate while following at a reasonably safe distance. Trooper Brockman had reasonable articulable suspicion to believe that the defendant had violated these Kansas traffic laws. The first prong of a reasonable traffic stop is met here.
Going to the second prong of the Terry test, the court looks first at "whether the officer's actions during the detention were reasonably related in scope to the circumstances which justified the interference in the first place." United States v. West, 219 F.3d 1171, 1176 (10th Cir. 2000). "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)). 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 if the officer has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring, or the initial detention changes to a consensual encounter. United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir. 1998).
The defendant argues that Trooper Brockman exceeded the lawful scope of the traffic stop when he walked around the pickup inspecting its exterior and bed, got down on his hands and knees to look at the pickup's undercarriage, and then tapped on the fuel tank sitting in the pickup's bed. The defendant also complains that once he produced a valid Texas registration the trooper should have permitted him to leave and not asked him questions unrelated to the registration, not conducted a search of the vehicle's exterior, and not tapped on the fuel tank. The defendant insists this conduct exceeded the permissible scope of any lawful stop and rendered the detention illegal and tainted any subsequent consent. The government counters that the trooper asked only routine questions during the traffic stop and detained the defendant a very brief time before returning the license and paperwork, receiving permission to ask additional questions, and obtaining valid consent to search the pickup.
The trooper's routine questions about travel plans, the Canadian driver's license and the Texas registration did not violate any Fourth Amendment rights of the defendant. The Tenth Circuit has 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. See United States v. Soto, 988 F.2d 1548, 1554 (10th Cir. 1993). In United States v. Holt, 264 F.3d 1215, 1230 (10th Cir. 2001) (referred to by the Tenth Circuit as Holt II), the Tenth Circuit 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, however, 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. (citations omitted). 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. (citations omitted).United States v. Williams, 271 F.3d 1262, 1267 (10th Cir. 2001), cert. denied, 535 U.S. 1019 (2002).
The trooper's walk around the stopped vehicle and visual inspection of its exterior "does not transform the seizure into a search." City of Indianapolis v. Edmond, 531 U.S. 32, 40 (2000). "[A]n examination of the exterior of a car does not constitute a search as it is `thrust into the public eye.' [ New York v.] Class, 475 U.S. [106] at 114 [(1986)]. Likewise, there is no legitimate expectation of privacy in a car's interior if an officer looks through the car's window and observes contraband in plain view. Texas v. Brown, 460 U.S. 730, 739-40 (1983)." United States v. Rascon-Ortiz, 994 F.2d 749, 754 (10th Cir. 1993). That the officer kneels down to look under a vehicle does not change his conduct into a search. Id. "An officer may shift his position to obtain a better vantage point without transforming a visual inspection into a search, even though the agent's purpose is to look for contraband." Id. (citations omitted). Nor does the use of a flashlight to illuminate a darkened area constitute a search. Id. at 755. If the officer, however, moves or disturbs parts of the car in order to make his observation, then such conduct may constitute a search. Id. at 755 (citing Arizona v. Hicks, 480 U.S. 321, 322, 107 S.Ct. 1149, 1150, 94 L.Ed.2d 347 (1987) ("A truly cursory inspection — one that involves merely looking at what is already exposed to view, without disturbing it — is not a `search' for Fourth Amendment purposes."). For that matter, tapping on the outside of a tank located in a truck bed is not a search. United States v. Muniz-Melchor, 894 F.2d 1430, 1433-36 (5th Cir.), cert. denied, 495 U.S. 923 (1990); see also 1 Wayne R. LaFave, Search and Seizure, § 2.5(c) (1996) (indicating that examinations by natural senses of vehicular exteriors and vehicular contents do not constitute searches absent a physical intrusion into the vehicle). Thus, Trooper Brockman's actions in using the flashlight to look about the pickup's bed and its undercarriage and to tap on the fuel tank were not searches for Fourth Amendment purposes.
The issue that remains is whether an officer during a traffic stop for a license plate violation exceeds the authorized scope of this lawful detention by walking around the stopped vehicle and looking over its exterior and tapping upon a mounted fuel tank. The case law indicates that Trooper Brockman's conduct did not exceed the lawful scope of the traffic stop. In United States v. Villa-Chaparro, 115 F.3d 797 (10th Cir.), cert. denied, 522 U.S. 926 (1997), the officer stopped a vehicle for a seatbelt violation, and the driver produced a valid license but the driver's name did not appear on the vehicle's registration. The officer wanted to confirm that the vehicle's VIN matched the registration. On his way to his patrol car for a rag, the officer tapped on the truck's fender to determine if there was something packed behind it. The Tenth Circuit found the investigative detention reasonably related to the circumstances evolving during the stop. 115 F.3d at 801-802. In Glover v. Casale, 2000 WL 33667082 (N.H. Apr. 18, 2000), the court upheld an officer's "360 degree inspection" of the car's exterior during a traffic stop for speeding for the purpose of noting any other obvious defective equipment on the car after the officer had learned the car was not properly registered and had a defective muffler. Finally, in United States v. Ramirez, 213 F. Supp.2d 722 (S.D. Tex. 2002), aff'd, ___ F.3d ___, (5th Cir. April 9, 2003) (Table, No. 02-40702), the defendant was pulled over for weaving and told the officer that he was headed to a nearby town for fuel for his pickup. The trooper noted that there was a large diesel fuel tank in the pickup bed. The trooper conducted a "safety sweep" of the truck during which he observed the pickup's fuel gauge was indicating half full and he tapped on the tank and the sound suggested it was full. The district court held that this safety sweep "was authorized because officers may take steps necessary to protect their personal safety during an investigative detention." 213 F. Supp.2d at 727 (citing United States v. Campbell, 178 F.3d 345, 348-49 (5th Cir. 1999).
In the instant case, Trooper Brockman was making a lawful visual sweep of the pickup's exterior while waiting for dispatch to respond to his license check. In the middle of the sweep, the trooper received dispatch's transmission and completed his visual sweep within a minute. The court does not find that trooper's actions exceeded the lawful scope of the traffic stop. The trooper observed no luggage in a pickup apparently being driven from Texas to Canada. The pickup's interior bed was filthy and covered with a thick grime while the rest of the truck appeared relatively clean. The trooper suspected that the grime was intended to cover up inside the bed or deter someone from wanting to look around in it. Finally, the fuel tank was unusually shaped with a tool box mounted on top of it. Based on the trooper's evolving suspicion, Trooper Brockman was justified in completing his brief sweep of vehicle's exterior following dispatch's response.
The evidence at the hearing fully establishes that a consensual encounter existed after Trooper Brockman returned the license and registration to the defendant, that Trooper Brockman asked additional questions only after receiving the defendant's consent, and that the defendant voluntarily and knowingly consented to the search of the pickup. Finding a hidden false compartment in the bottom of the fuel tank, Trooper Brockman had probable cause to complete his search of the fuel tank and to seize the illegal drugs stored there.
IT IS THEREFORE ORDERED that the defendant's motion to suppress all evidence (Dk. 14) is denied.