Opinion
8:01CR144.
February 5, 2002
MEMORANDUM AND ORDER
This matter is before the court on defendant Eric Boyd's objections, Filing No. 23, to the report and recommendation of Magistrate Judge Thomas Thalken, Filing No. 21. In his report and recommendation, Magistrate Judge Thalken recommends that this court deny the defendant's motion to suppress physical evidence, Filing No. 10.
Pursuant to 28 U.S.C. § 636(b)(1)(c), this court has conducted an independent and de novo review of the record, including the transcript of the evidentiary hearing held on September 20, 2001, Filing No. 12. This court concludes that the defendant's objections should be sustained and that the report and recommendation of the magistrate should be overruled consistent with this Memorandum and Order.
BACKGROUND
Because the report and recommendation presents an accurate summary of the facts adduced at the suppression hearing, a lengthy repetition of the factual background is not necessary in this order. A summary of the facts is set forth below.
During the evidentiary hearing on the motion to suppress the government called two witnesses, Trooper Jeremy Strack, a pilot assigned to the Nebraska State Patrol Air Wind Division, and Trooper Jamey Balthazor, also of the Nebraska State Patrol. The defendant Boyd also testified at the hearing.
Trooper Strack testified that on May 14, 2001, at 11:20 a.m. he observed from the airplane a black vehicle traveling northbound on Highway 83 at a high rate of speed. Trooper Strack radioed the information to Trooper Balthazor, who was on the ground. Trooper Balthazor proceeded to wave the black vehicle to the side of the road. Carrier Enforcement Officer Petty and Investigator Eng were also present at the scene.
Trooper Balthazor approached the driver's side of the vehicle and asked the driver for identification, vehicle registration, and proof of insurance. Boyd, the driver of the vehicle, was unable to produce proof of insurance. Trooper Balthazor went to the back of the vehicle to fill out a citation for following too close, a warning for driving on the shoulder and speeding, and a violation for no proof of insurance. As Trooper Balthazor filled in the ticket, Officer Petty informed him that he went to school with Boyd and that Boyd was involved in illegal drug activity. Investigator Eng also informed Trooper Balthazor that he suspected Boyd of illegal drug activity. Trooper Balthazor testified that he knew from Nebraska State Patrol reports that methamphetamine from Lincoln was being sold and distributed at the Red Willow County Lake area. Boyd had already informed Trooper Balthazor that he was traveling to Red Willow County Lake, and Boyd's vehicle was registered in Lancaster County.
Trooper Balthazor approached the vehicle and asked Boyd to exit. Boyd asked if "it was really necessary." Boyd complied with Trooper Balthazor's request and followed him to the back of the vehicle. After giving Boyd his identification and paperwork, Boyd asked Trooper Balthazor if he was free to go. Trooper Balthazor responded by asking Boyd if he had been smoking pot. Boyd responded, "No." Trooper Balthazor then informed Boyd that he had reports that Boyd might be involved in illegal drug activity. Trooper Balthazor testified that at that point Boyd's demeanor changed. Boyd started acting nervous and asked Trooper Balthazor where he got that information.
Trooper Balthazor then asked Boyd if he had any drugs in the vehicle or on his person. Boyd told him that he did not and asked what his rights were. Trooper Balthazor told Boyd that he had a right to refuse consent for a search of the car, but that the drug dogs were about an hour away. Boyd testified that he again asked Trooper Balthazor if he was free to go. Trooper Balthazor responded by asking Boyd why he was in such a hurry. Trooper Balthazor told Boyd that if he had less than one ounce of marijuana on him that he would write him a citation and that would be the end of it. Trooper Balthazor then told Boyd that if he lied about possessing illegal contraband that he could be cited for false reporting. Boyd told Trooper Balthazor that he had a little bit of marijuana in his pocket. Boyd also retrieved a baggie of marijuana from the vehicle.
After Boyd turned over the drugs, Investigator Eng searched the vehicle. Investigator Eng found a .22 caliber handgun in the center console of the vehicle, a glass jar of suspected methamphetamine, a small number of psilocybin mushrooms, another small bag of marijuana, and four explosive devices. Boyd was placed under arrest, placed in a patrol unit, and read his Miranda rights.
In his motion to suppress, Boyd argues that the evidence was seized as a result of an unlawful detention following a routine traffic stop. Boyd also contends he turned over the illegal contraband to Trooper Balthazor involuntarily because of the unlawful detention. Magistrate Judge Thalken found that the officers had reasonable suspicion to believe that criminal activity was afoot and the detention of Boyd was therefore reasonable.
DISCUSSION
Boyd does not dispute the legality of the initial stop; however, Boyd argues that his encounter with law enforcement escalated to an unlawful detention because he did not feel free to leave. Boyd contends that the detention was unlawful because the officers lacked a reasonable articulable suspicion warranting the further detention.
Consensual Encounter
A person has been "seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Jones, 269 F.3d 919, 924 (8th Cir. 2001). When an officer's actions are "`so intimidating, threatening or coercive' that a reasonable person would not feel free to leave, then that person has been seized." Id., 269 F.3d at 924 (citations omitted).
Here, there are sufficient facts in the record to support a finding that Boyd was seized during the investigation. After Boyd declined to let Trooper Balthazor search the vehicle, he asked Trooper Balthazor what his rights were. Filing No. 12 at 33:25. Trooper Balthazor told Boyd that he could refuse but that there were drug dogs less than one hour away. Id. at 34:4-20. Trooper Balthazor contends that he did not intend to intimidate or coerce Boyd by telling him this information. However, the implication of Balthazor's comment was clearly that if Boyd said no to a search, Boyd would have to sit and wait for the drug dogs to arrive. When a police officer tells a person that the officer will summon a canine unit if the person refuses to consent to a search, a reasonable person would not feel free to decline the request or to leave the site. See United States v. Beck, 140 F.3d 1129, 1136 (8th Cir. 1998); see also Jones, 269 F.3d at 926 (fact that officer told motorist he was calling for canine unit is evidence that motorist did not feel free to leave).
Boyd also asked Trooper Balthazor on several occasions if he was free to go. Trooper Balthazor never answered in the affirmative nor did he offer the information at any time during the investigation. See id. at 926 (fact that officer never informed motorist he was free to leave is evidence of nonconsensual encounter). The presence of three uniformed officers during this routine traffic stop is further evidence of a detention. A reasonable person could well have been intimidated by the presence of three officers during a stop for a traffic citation. Finally, Boyd was not informed of his Miranda rights until after the officers located the contraband and firearms in the vehicle. Thus, based on these facts, a reasonable person in Boyd's situation would not feel free to leave and the encounter was not consensual.
Reasonable Suspicion
Because the purpose of Trooper Balthazor's initial traffic stop of Boyd was complete when he gave Boyd the citations, Boyd's subsequent detention was unlawful unless events that transpired during the initial traffic stop gave rise to reasonable suspicion. See United States v. Beck, 270 F.3d 625, 630 (8th Cir. 2001). When a detainee's responses "give rise to suspicions unrelated to the traffic offense, an officer may broaden his inquiry" beyond the traffic stop to satisfy his suspicions. Jones, 269 F.3d at 926. Detention is appropriate only if "an officer develops a reasonable, articulable suspicion that criminal activity is afoot." Id. Then, at that time there is a "`justification for a greater intrusion unrelated to the traffic offense.'" Id. (citations omitted).
When determining whether an officer had reasonable suspicion, a court must consider the "totality of the circumstances and not just each independent fact standing alone." Id. Consideration must be given to "the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes." United States v. Bloomfield, 40 F.3d 910, 917 (8th Cir. 1994).
This court concludes that under the totality of the circumstances, the officers did not have a reasonable articulable suspicion that Boyd was involved criminal activity. Here, nothing of significance beyond the initial traffic stop warranted further detention of Boyd. The government argues that information communicated to Trooper Balthazor by Officer Petty and Investigator Eng about Boyd's alleged drug activity, along with Boyd's travel plans and nervous behavior, provided reasonable articulable suspicion to detain him. The record is devoid, however, of any factual basis for the assertions of Officer Petty and Investigator Eng. Other than going to school with Boyd, Officer Petty did not relay any other information regarding his knowledge of Boyd's alleged drug activity. Filing No. 12 at 29:21-25. Nor does the record reveal how Eng knew Boyd or the basis for Eng's assertion. Therefore, both officers' suspicions amount to, at most, no more than a hunch. See Beck, 140 F.3d at 1136 (officer must have more than a hunch that the detainee is involved in illegal activity).
Next, Trooper Balthazor's information that individuals were transporting drugs from Lincoln to Red Willow Lake also lacked specificity. Filing No. 12 at 30:16-21. Trooper Balthazor had no information about the number of people involved or their descriptions or the vehicles they were using. Consequently, Trooper Balthazor could not connect Boyd to the alleged drug activity other than by Boyd's confirmation that he was traveling to Red Willow Lake and by his Lancaster County license plates. Id. at 30:23 — 31:3. Further, the fact that Boyd was traveling with two individuals on a very hot day to a lake is consistent with innocent behavior. See Jones, 269 F.3d 919, 926 (8th Cir. 2001) (an officer's suspicion must be based on more than "circumstances which describe a very large category of presumable innocent travelers"). Next, Trooper Balthazor asserts that Boyd's demeanor changed and that he would not maintain eye contact after being asked about his involvement in illegal drug activity. Filing No. 12 at 33:8-11. However, "generally, nervousness is of limited significance in determining reasonable suspicion." Jones, 269 F.3d at 928.
A combination of the insignificant facts presented in this case, viewed in their totality, was not sufficient to provide law enforcement officials with a reasonable articulable suspicion. See id. at 928 ("it is impossible for a combination of wholly innocent factors to combine into a suspicious conglomeration unless there are concrete reasons for such an interpretation."). Viewing the facts in their totality, the officers lacked reasonable articulable suspicion and, therefore, the detention of Boyd violated the Fourth Amendment.
A comparison of the quality and quantity of facts presented in recent Eighth Circuit cases supports a finding that there were insufficient facts in present case to warrant detaining Boyd. For example, in United States v. Jones, the court noted that the detainee's driving slow, inconsistent answers regarding his prior arrest, and nervousness were insufficient to provide officers with reasonable articulable suspicion. In contrast, in United States v. Morgan, 270 F.3d 625, 630 (8th Cir. 2001), the officers observed 1) an intense smell of cigar smoke and perfume; 2) unusually nervous behavior; 3) passengers arriving from Arizona; 4) duffle bags in the van that were unusually large and new with apparent square objects; 5) inconsistent stories about the length of the detainees' trip; and (6) other inconsistent statements. The court held that the facts provided reasonable articulable suspicion.
The detention of Boyd past the point necessary to complete the purposes of the traffic stop exceeded the scope of a lawful investigation. The extended detention was not supported by a reasonable articulable suspicion that Boyd was involved in criminal activity. All the evidence obtained in the case, including any subsequent statements, is tainted as a result of the unlawful detention and should be suppressed. See Wong Sun v. United States, 371 U.S. 471, 484-85 (1963).
IT IS THEREFORE ORDERED:
1. The defendant's objections, Filing No. 23, to the magistrate's report and recommendation are sustained;
2. The magistrate's report and recommendation, Filing No. 21, is overruled consistent with this Memorandum and Order; and
3. The defendant's motion to suppress physical evidence, Filing No. 10, is granted.