Opinion
Case No. 04-40120-01-JAR.
February 21, 2005
MEMORANDUM ORDER AND OPINION DENYING MOTION TO SUPPRESS
This matter comes before the Court on defendant Antonio Flores-Ocampo's Motion to Suppress (Doc. 15). The Court held a hearing on the motion on January 4, 2005. At the conclusion of the hearing, defendant requested additional time to submit a written closing argument. On January 28, 2005, the Court received defendant's written closing argument; the government likewise submitted a written closing argument on February 1, 2005. The Court has reviewed the parties' submissions and is prepared to rule. For the reasons set forth below, defendant's motion is denied.
I. Facts
On September 7, 2004, Trooper C.D. Epperly was monitoring traffic near the tollgate to Interstate-35 in Emporia, Kansas. He was looking for traffic violations, toll runners and out-of-state vehicles. Trooper Epperly saw a vehicle with Indiana license plates traveling northbound just before 9:00 a.m. He contacted his dispatch to check the registration of the vehicle. Dispatch informed him that the vehicle's registration was current and that the vehicle had not been reported stolen.
As Trooper Epperly was following the vehicle, he saw both right wheels of the vehicle fully cross the white fog line for a relatively brief amount of time. The fog line is the white line on the right side of the roadway that divides the right lane of traffic from the shoulder. Trooper Epperly testified that the vehicle's tires traveled "a substantial amount" over the fog line onto the paved shoulder; he estimated the distance at one foot. The vehicle's tires crossed the fog line on a gradual curve, which Trooper Epperly described as "not a substantial curve" and a curve that can be safely negotiated at seventy miles per hour, the posted speed limit along this stretch of the Interstate. No adverse weather conditions, such as wind or rain, were present at this time. In addition, Trooper Epperly testified that, at the time he witnessed the vehicle cross the fog line, traffic was "relatively light." In Trooper Epperly's view, "there was really no reason to cross the fog line in the manner that [the vehicle] did."
After observing the vehicle cross the fog line, Trooper Epperly turned on his emergency lights and the driver pulled to the side of the road at 8:58 a.m. Trooper Epperly approached the passenger side of the vehicle and noticed that the passenger side was unoccupied, however, there were two passengers, an adult and a child, in the backseat. He asked the driver if he was sleepy, as it was early in the morning and the vehicle had out-of-state tags. The driver replied that he was not sleepy. Trooper Epperly then asked for a driver's license and insurance. The driver produced a Nuevo Leon Mexican driver's license that appeared valid on its face and identified the driver as defendant, Antonio Flores-Ocampo.
Defendant also produced insurance as requested by Trooper Epperly. The insurance paperwork appeared to be valid, yet it listed the insured as Gilberto Garcia with an address of 611 Garden Street, Columbus, Indiana, and did not list defendant as an insured or an otherwise authorized driver. Defendant told Trooper Epperly that his friend Gilberto Garcia owned the vehicle. When Trooper Epperly had earlier checked the registration for the vehicle, he learned that the car was registered to Delia Lopez, who also resided at 611 Garden Street, Columbus, Indiana.
Trooper Epperly then asked defendant about his travel itinerary. Defendant stated that he was coming from Oklahoma, but was unsure of where in Oklahoma he had been. At 9:01 a.m., Trooper Epperly brought defendant back to his patrol car to separate him from his adult passenger and to show him an atlas of Oklahoma. As Trooper Epperly was eliciting this information from defendant, he called his dispatch to verify the vehicle's registration. He confirmed that the vehicle was registered to Delia Lopez, not Gilberto Garcia. Trooper Epperly asked his dispatch to run an EPIC check on the car at 9:02 a.m.
"EPIC is an acronym for El Paso Information Center. EPIC is an agency of the federal government within the Department of the Treasury. EPIC gathers information for use by all law enforcement agencies. It maintains records of border crossings. It also gathers intelligence about drug trafficking, including information about vehicles known or suspected to be involved with drugs." United States v. $189,825.00 in U.S. Currency, 8 F. Supp. 2d 1300, 1305 n. 6 (N.D. Okla. 1998).
While he was waiting for the results of the EPIC check and writing defendant a warning citation, Trooper Epperly continued to ask defendant about his travel plans. Defendant relayed that he had borrowed the vehicle and gone to Oklahoma for three days to visit friends. When asked to indicate with his finger on the atlas of Oklahoma where he was coming from, defendant circled at least a 100-mile radius around Oklahoma City. The videotape recording the stop shows that Trooper Epperly next asked, " donde en Oklahoma." Defendant responded, "Since it was my first time, I don't know exactly where in Oklahoma." Trooper Epperly asked defendant if he had been to Texas, and defendant responded, "No, only Oklahoma." Defendant told Trooper Epperly that he lived in Columbus, Indiana, and Trooper Epperly asked defendant about his employment in Indiana. Finally, Trooper Epperly asked defendant how much money he had in his wallet and if he could see the money.
Trooper Epperly testified that, based upon his conversation with defendant, he knew defendant was not fluent in English. However, defendant responded "properly and appropriate" to questions regarding his travel itinerary, which led Trooper Epperly to believe defendant understood him.
Trooper Epperly testified that he noticed defendant's hands were shaking a bit when he inquired of defendant's travel itinerary. Defendant's nervousness escalated when he was in the patrol car while Trooper Epperly wrote a warning citation; this increased nervousness was evidenced by defendant's hands that, by this time, were visibly trembling. Trooper Epperly testified that an individual's nervousness usually abates when he learns that he is not receiving a ticket. Even though Trooper Epperly had his warning pad out, which says "warning" on the top, defendant's nervousness seemed to increase. Trooper Epperly admitted, however, that given defendant's English skills, he may not have realized that Trooper Epperly was issuing only a warning citation.
At 9:05 a.m., Trooper Epperly asked defendant for his address in Indiana and for his date of birth, apparently to complete the warning ticket. Dispatch informed Trooper Epperly that the results of the EPIC check were negative at 9:06 a.m. Trooper Epperly finished eliciting defendant's date of birth and then asked if defendant knew Delia Lopez, the registered owner of the vehicle. Defendant responded that she was also his friend. At 9:07 a.m., Trooper Epperly returned all defendant's documents to him and issued the warning ticket. It was at this time that Trooper Epperly first told defendant that he was only receiving a warning. Trooper Epperly had earlier noticed that the child in the backseat of defendant's vehicle was not properly restrained, so he told defendant to buckle in the car seat. Trooper Epperly also advised defendant to "stay between the lines" and told him "he was free to go."
After telling defendant he was free to go, Trooper Epperly inquired whether he could ask defendant additional questions and defendant agreed. He then asked for permission to search defendant's vehicle. Trooper Epperly asked first in English, but defendant gave him a puzzled look so he asked, "¿ Me buscar por drugas en su carro?" Trooper Epperly testified that in response to this question, defendant shook his head and replied affirmatively. The videotape recording the stop reveals that defendant responded, "Okay, no problem." Trooper Epperly believed that between his knowledge of Spanish and defendant's knowledge of English, he was able to reasonably communicate with defendant.
When Trooper Epperly looked inside defendant's vehicle, he noticed only one bag. Trooper Epperly felt that this was an inadequate amount of luggage for two adults and a child for a three-day trip. Namely, Trooper Epperly questioned whether enough clothes, toys, and formula were present for a three-day trip. He also noted that the vehicle had a "lived-in" appearance, and that there were only a few keys on the key ring for the vehicle. Inside that driver's side door, Trooper Epperly noticed a Phillips and a flat-blade screwdriver that seemed out of place. The presence of the tools caused Trooper Epperly to suspect that the vehicle contained a hidden compartment. He testified that on this model of vehicle, a Nissan Maxima, he knew that there was an access to the gas tank underneath the backseat. Trooper Epperly raised the backseat and saw some tool marks on the bolts of the access hatch to the fuel tank. Trooper Epperly did not feel comfortable opening the access hatch at the roadside because he did not have adequate tools. He also testified that when he suspects that a vehicle contains a hidden container, he feels safer conducting the search at a location other than the roadside.
Trooper Epperly decided to ask defendant to follow him to Williams Automotive, an automobile repair shop, where the gas tank could be safely accessed. The videotape recording the stop reveals that, in a nonthreatening, pleasant tone, Trooper Epperly asked defendant, "Will you follow me? I want to look in your gas tank," to which defendant responded, "Okay." Trooper Epperly next said, "You follow me, okay? We go up here, turn around and go into Emporia and me look, okay?" Defendant responded, "okay, no problem." Defendant followed Trooper Epperly to Williams Automotive and pulled into a bay. Defendant waited for Trooper Epperly to search his gas tank in the customer area at Williams Automotive. After removing the access hatch that covers the fuel tank, Trooper Epperly saw that the top of the gas tank was dirty and that there were no tool marks on the actual access to the tank, nor any other evidence of a hidden compartment in the tank. Following these observations, Trooper Epperly proceeded no further with his investigation of the gas tank and replaced the access hatch.
Learning that the gas tank had not been tampered with did not dispel Trooper Epperly's suspicion; he was still suspicious because defendant seemed more nervous than the usual motorist and provided evasive answers to questions regarding his travel itinerary. After replacing the backseat, Trooper Epperly looked up and immediately saw a slight sag in the roof area. This particular vehicle had a sunroof and Trooper Epperly testified that there is a large cavity behind the sunroof to allow it to retract. The cover to the sunroof was closed and Trooper Epperly tried to open it, but it would not move, which he thought odd as the cover is designed to move freely back and forth to expose sunlight. Trooper Epperly took his pen light and peered into the cavity behind the cover and saw bundles of what he suspected to be cocaine. At no time during Trooper Epperly's search on the roadside or at Williams Automotive did defendant limit or retract his consent to search.
II. 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.'" The principles of Terry v. Ohio apply 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 19-20.
A. Validity of Initial Stop
Tenth Circuit cases establish that "a detaining officer must have an objectively reasonable articulable suspicion that a traffic violation has occurred or is occurring before stopping [an] automobile." Here, defendant was stopped for a violation of K.S.A. 8-1522, which provides:
United States v. Cervine, 347 F.3d 865, 869 (10th Cir. 2003); United States v. Soto, 988 F.2d 1548, 1554 (10th Cir. 1993).
Whenever any roadway has been divided into two (2) or more clearly marked lanes for traffic, the following rules . . . shall apply: a) A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety. Defendant argues that his "cross[ing] over the fog line only once while negotiating a curve . . . does not amount to a violation of section 8-1522." Additionally, defendant urges that his stop was a mere pretext to investigate possible narcotics violations.
Defendant is correct that merely crossing the fog line does not automatically give officers reasonable suspicion that a violation of K.S.A. 8-1522 has occurred. Rather, the use of the phrase "as nearly as practical" in the statute precludes absolute standards and demands a fact specific inquiry to assess whether an officer has reasonable suspicion to believe a violation has occurred. United States v. Gregory demonstrates the need to analyze objectively all the surrounding facts and circumstances to determine whether the officers had reasonable suspicion. In Gregory, the defendant's truck briefly crossed the fog line in winding, mountainous terrain on a windy day. The court held that " under these conditions any vehicle could be subject to an isolated incident of moving into the right shoulder of the roadway without giving rise to a suspicion of criminal activity." In contrast, the Tenth Circuit concluded in United States v. Dunn that a stop based on a single incidence of a vehicle straying onto the shoulder was valid, where the road was straight and slightly graded, and where it was not windy, since there was no apparent reason for the car straying from its driving lane. Thus, as in Gregory and Dunn, this Court too must engage in fact-specific analysis to determine whether the officers had reasonable suspicion to stop defendant for violating K.S.A. 8-1522.
United States v. Ozbirn, 189 F.3d 1194, 1198 (10th Cir. 1999).
Id.; United States v. Cline, 349 F.3d 1276, 1286 (10th Cir. 2003).
79 F.3d 973 (10th Cir. 1996).
Id. at 978.
Id.
133 F.3d 933 (table), 1998 WL 8227 (10th Cir. Jan. 12, 1998) (analyzing K.S.A. 8-1522, which requires that a vehicle be driven "as nearly as practicable entirely within a single lane").
Id. at *2; see also United States v. Landshof, 77 Fed. Appx. 482, 484 (10th Cir. 2003) (holding that the officer's observation of defendant's vehicle weave within the traffic lane and cross approximately six inches over the right-side fog line in optimal road, weather, and traffic conditions gave officer reasonable suspicion that a violation of K.S.A. 8-1522 had occurred); Cline, 349 F.3d at 1287 (holding that a single instance of swerving onto shoulder of road gave rise to an articulable suspicion that a traffic violation had occurred under Kansas law).
The Court concludes that Trooper Epperly had reasonable suspicion to stop defendant for an observed violation of K.S.A. 8-1522. Although defendant's vehicle crossed the fog line only once, Trooper Epperly testified that the vehicle veered about a foot onto the shoulder, which he characterized as "a substantial amount." In addition, there is no evidence that defendant's straying from the driving lane is attributable to external circumstances. Defendant was negotiating a curve when the traffic infraction occurred, but Trooper Epperly testified that the curve is a gradual curve and can be safely negotiating at 70 miles per hour, the posted speed limit on that stretch of the Interstate. Indeed, there are no posted signs warning drivers to slow down for this particular curve. Nor were there any adverse weather or road conditions; it was a clear day with no wind and traffic at the time of the stop was relatively light. Trooper Epperly testified that "there was really no reason to cross the fog line in the manner that [defendant] did." This testimony, which the Court finds credible, was not controverted by defendant at the hearing in this matter.
Defendant speculates that road debris or merging traffic might have caused the lane violation, and stresses that Trooper Epperly could not exclude these as possible causes. The Court notes that while Trooper Epperly admitted on cross-examination that there could have been debris in the road, he also testified that he did not notice any debris. Because he was following defendant, Trooper Epperly stated that he would have noticed had defendant swerved to avoid hitting something. Trooper Epperly also testified that if debris had been on the road he would have removed it so as not to pose a hazard to other motorists.
In regard to merging traffic as a possible cause of defendant's lane violation, the Court observes that the videotape does not show a vehicle merging onto the Interstate near defendant. Moreover, defendant was traveling in the right lane and, if a vehicle was attempting to merge, he should have moved to the left lane not onto the shoulder. In any event, the only testimony even touching on this issue is Trooper Epperly's admission that he did not ask whether defendant moved onto the shoulder to avoid merging traffic. Defendant suggests that, by not asking this question, Trooper Epperly failed to properly investigate the traffic violation. It is obvious to the Court that Trooper Epperly did not ask defendant about merging traffic because no such traffic was anywhere near defendant when he veered over the fog line. The Court rejects defendant's attempt to legitimize his lane violation based upon hypothetical external causes. An objective analysis of all the surrounding facts and circumstances indicates that Trooper Epperly had reasonable suspicion to stop defendant for a violation of K.S.A. 8-1522.
The Court briefly notes that defendant's assertion that his stop was pretextual is without merit. Defendant argues that because he "fit the profile of a drug trafficker, Trooper Epperly began to follow him and look for a reason to pull him over to investigate his hunch about the presence of narcotics." An officer's subjective motives are irrelevant when conducting a traffic stop. The idea that the stop before the Court was pretextual holds no legal significance because pretextual stops are legal when a traffic violation has occurred. As the Court has discussed, Trooper Epperly had an objectively reasonable articulable suspicion that a traffic violation had occurred; thus, the traffic stop was legal.
United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995).
Pretextual stops have long been held legal since the seminal decision of Whren v. United States, 517 U.S. 806 (1996).
B. Validity of Roadside Detention
Defendant argues that his roadside detention was invalid because questioning by Trooper Epperly unreasonably prolonged the traffic stop and exceeded the scope of questions that may be asked during the investigatory phase of a routine stop.
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. "Generally, an investigative detention must last no longer than is necessary to effectuate the purpose of the stop." The detention must be temporary and its scope must be carefully and narrowly tailored to its underlying justification. "Under ordinary circumstances, this limits the officer to a request for the driver's license and registration, a computer check on the car and driver, an inquiry about the driver's travel plans, and the issuance of a citation." 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. Williams, 271 F.3d 1262, 1266 (10th Cir. 2001); United States v. Bustillos-Munoz, 235 F.3d 505, 512 (10th Cir. 2000).
Cervine, 347 F.3d at 870-71 (internal quotation omitted); United States v. Patten, 183 F.3d 1190, 1193 (10th Cir. 1999).
United States v. Guiterrez-Daniez, 131 F.3d 939, 942 (10th Cir. 1997), cert. denied, 523 U.S. 1035 (1998); United States v. Lindsey, 288 F. Supp. 2d 1196, 1202 (D. Kan. 2003).
Cervine, 347 F.3d at 871.
United States v. Zubia-Melendez, 263 F.3d 1155, 1161 (10th Cir. 2001); Patten, 183 F.3d at 1193.
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 either of these two circumstances, then "any evidence derived from that questioning (or a resulting search) is impermissibly tainted in Fourth Amendment terms." But, if an encounter between a police officer and a motorist is consensual, the Fourth Amendment ban on unreasonable searches and seizures does not come into play.
Cervine, 347 F.3d at 871.
United States v. Elliott, 107 F.3d 810, 813 (10th Cir. 1997) (internal quotations and citations omitted).
See United States v. Walker, 933 F.2d 812, 816-17 (10th Cir. 1991), cert. denied, 502 U.S. 1093 (1992).
1. Duration of Stop
Defendant argues that Trooper Epperly extended the duration of the stop by asking defendant certain questions. A review of the videotape recording the stop reveals that all of the questions that defendant challenges were asked while Trooper Epperly was both waiting for the results of the EPIC check, and writing the warning ticket. Thus, the Court cannot conclude that Trooper Epperly's questioning prolonged the traffic stop beyond the period necessary to issue a warning citation. Nor was the duration of the stop unreasonable; defendant was detained for nine minutes before he was handed the warning citation, within the time period for a typical traffic stop. Moreover, even assuming, arguendo, that Trooper Epperly's questions briefly prolonged the detention, such a detention would have been permissible in this case to verify that defendant was lawfully in possession of the vehicle.
See Cline, 349 F.3d at 1288 (noting that most traffic stops take between five and ten minutes).
2. Scope of Questioning
Defendant also urges that pursuant to United States v. Holt, Trooper Epperly exceeded the scope of a permissible traffic stop by asking defendant questions unrelated to the traffic stop, namely questions regarding his travel itinerary, his place of employment, and how much money he was carrying, without any reasonable suspicion that he was committing a crime.
264 F.3d 1215 (10th Cir. 2001).
In United States v. Oliver, the Tenth Circuit, construing the Holt decision cited by defendant, held that non-detaining questions asked during a traffic stop are to be treated differently than questions that result in actual seizures. The standard by which to judge non-detaining questions is "whether the circumstances made it reasonable for the officer to ask the questions, even when the questioning did not prolong the detention." The Court explained:
363 F.3d 1061 (10th Cir. 2004).
Id. at 1067.
Id.
[A] question may be "reasonable" despite the absence of the particularized evidence of crime required for "reasonable suspicion." After all, Holt allows the officer routinely to ask about travel plans and the presence of loaded firearms during a lawful traffic stop. In addition, we see nothing in Holt to suggest that the only circumstances relevant to reasonableness are those known to the officer at the outset of the stop, to the exclusion of what is learned during the course of the stop.
Id.
Thus, the Court held that when a question does not result in a prolonged detention, an officer need not have reasonable suspicion, as that term is generally understood, for "a less-confined reasonableness standard is appropriate in this context." Travel Plans
Id. at 1067-68.
As the Tenth Circuit has repeatedly held, questions relating to a driver's travel plans ordinarily fall within the scope of a traffic stop. The Holt decision upon which defendant relies did not alter this well-established holding. Though questions about travel plans 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." In addition, 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."
Williams, 271 F.3d at 1267 (quoting United States v. West, 219 F.3d 1171, 1176 (10th Cir. 1998) ("[Q]uestions about travel plans are routine and `may be asked as a matter of course without exceeding the proper scope of a traffic stop.'")).
See Oliver, 363 F.3d at 1067 (noting that " Holt allows the officer routinely to ask about travel plans . . . during a lawful traffic stop").
Williams, 271 F.3d at 1267.
Id.
In this case, it cannot be seriously contested that Trooper Epperly's questions regarding defendant's travel itinerary, namely where he was coming from and where he was traveling to, exceeded the scope of a permissible traffic stop. After defendant stated that he was traveling to Indiana, Trooper Epperly inquired about defendant's employment in Indiana. This question was related to legitimacy of defendant's stated travel itinerary, i.e., that he was traveling from Oklahoma back to his home in Indiana from a three-day long trip. Because this question was akin to a question regarding travel plans, it was permissible.
See United States v. Slater, ___ F. Supp. 2d ___, No. 04-0471, 2005 WL 66906 at *7 (D. Utah Jan. 10, 2005) (holding that an officer's "questions concerning a driver's employment were part of a `casual conversation' that evolved from a general discussion of travel plans.").
The Court additionally notes that questions about defendant's employment in Indiana were permissible under the reasonableness standard set forth in United States v. Oliver, which teaches that both facts known to an officer at the outset of a stop, and what is learned during the course of the stop are relevant to the reasonableness inquiry. At the time Trooper Epperly asked defendant about his employment, he was not only investigating the initial traffic stop, for he had learned that defendant was driving a vehicle with out of state tags and that the vehicle did not belong to defendant, nor could defendant show that he was authorized to drive the vehicle. Defendant said he borrowed the car from a friend, Gilberto Garcia, but Delia Lopez, not Mr. Garcia was the owner of the vehicle. The Court concludes that these circumstances made it reasonable for Trooper Epperly to further explore defendant's stated travel itinerary by asking defendant about his employment in Indiana.
See 363 F.3d at 1067.
Money
Trooper Epperly also asked defendant how much money he was carrying and if he could see the money in his wallet. Unlike questions concerning travel plans, the Tenth Circuit has not "blessed" these type of questions as ones that may be routinely asked during the investigatory phase of a traffic stop. The Court notes that Trooper Epperly's testimony at the hearing in this case indicates that he asks drivers about money as a matter of course. The Court reiterates that during an ordinary traffic stop, an officer may only request a driver's license and registration, run a computer check on the car and driver, inquire about the driver's travel plans, and issue a citation.
When asked whether he remembered asking defendant how much money he was carrying, Trooper Epperly replied, "I don't remember it, but I do ask that."
Zubia-Melendez, 263 F.3d at 1161.
The Court concludes, however, that Trooper Epperly's question about money and request to see the money in defendant's wallet were reasonable in this particular case. Importantly, these questions did not extend the duration of the stop. Thus, the Court must judge Trooper Epperly's questions under the less-confined reasonableness test, rather than the traditional reasonable suspicion standard.
See Oliver, 363 F.3d at 1067-68.
In this case, Trooper Epperly stated that he suspected defendant might be a drug courier so he asked defendant how much money he had. The Court notes that Trooper Epperly framed this question in a polite, conversational and non-threatening tone. Trooper Epperly asked to see the money in defendant's wallet because he has learned through his training and experience that drug couriers usually carry more money than the average person, often in fifty and one-hundred dollar bills. Trooper Epperly's suspicion that defendant might be a drug courier or otherwise involved in illegal activity was based on the following facts: (1) defendant was driving a vehicle with out of state tags; (2) defendant was traveling on Interstate-35, a major drug corridor within the United States, traveling from border to border; (3) the vehicle had a "lived-in" appearance; (4) defendant had only a Nuevo Leon Mexican driver's license; (5) defendant stated that he had borrowed the car from a friend, Gilberto Garcia, but Mr. Garcia was not the car's registered owner; (6) the vehicle was registration to Delia Lopez, who was not present; (7) defendant stated that the purpose of his trip was to see "friends," and in Trooper Epperly's experience, almost all of his drug cases involve individuals who say they were visiting friends; (8) defendant appeared more nervous than the average motorist, as evidenced by his hands shaking; (9) there were only a few keys on the key ring for the vehicle; and (10) defendant also would not say specifically where he was traveling from, other than to circle a 100-mile radius around Oklahoma city, which led Trooper Epperly to believe that defendant was not telling the truth regarding his travel itinerary. While these facts might not rise to the level of reasonable suspicion necessary to lawfully detain defendant, the Court concludes that, knowing these facts, Trooper Epperly acted reasonably in asking defendant how much money he was carrying and asking to see the money under the less-confined reasonableness standard applicable in this context.
C. Validity of Roadside Search
Defendant argues that he did not consent to a roadside search of the vehicle and that, if he did consent, such consent was tainted by Trooper Epperly's questions. The government urges that defendant does not have standing to challenge the search. In any event, the government argues that defendant freely, voluntarily and knowingly consented to the roadside search.
1. Standing to Challenge Search
Standing to challenge a vehicle search is distinguishable from standing to seek suppression of evidence discovered in a vehicle as the fruit of an unlawful stop or detention. In the latter case, standing exists and the evidence must be suppressed. However, in the case of a vehicle search, a defendant only has standing to challenge a search if he has a reasonable expectation of privacy in the area being searched. Whether a driver's privacy interest in a vehicle is reasonable "depends on the driver's lawful possession of the vehicle." Mere possession of the vehicle is insufficient to show a reasonable expectation of privacy. The Tenth Circuit has found a reasonable expectation of privacy, however, where the driver "claimed to have borrowed the car from the rightful owner and had produced a registration bearing the owner's name." Defendant bears the burden of establishing a reasonable expectation of privacy in the vehicle so as to challenge the roadside search.
United States v. Shareef, 100 F.3d 1491, 1500 (10th Cir. 1996).
Id.
Id. at 1499.
United States v. Soto, 988 F.2d 1548, 1552 (10th Cir. 1993).
United State v. Christian, 43 F.3d 527, 530 (10th Cir. 1994).
United States v. Angulo-Fernandez, 53 F.3d 1177, 1179 (10th Cir. 1995).
See United States v. Conway, 73 F.3d 975, 979 (10th Cir. 1995).
In this case, defendant has met his burden. He told Trooper Epperly that he borrowed the vehicle from a friend, Gilberto Garcia. The vehicle was insured in Mr. Garcia's name, but was registered to Delia Lopez. The fact that the insured and registered owner were two different people might suggest that defendant did not borrow the car from Mr. Garcia and therefore, was not in lawful possession of the car. But, the address on the insurance paperwork and on the registration card was the same, indicating that Mr. Garcia and Ms. Lopez lived together at 611 Garden Street in Columbus, Indiana. Defendant additionally told Trooper Epperly that he borrowed the vehicle from his friend Gilberto Garcia, but that Delia Lopez was also his friend. Moreover, the vehicle had not been reported stolen even though defendant had driven it from Oklahoma to Indiana for three days. The Court concludes that defendant has produced sufficient evidence that he was lawfully in possession of the vehicle and consequently, has standing to challenge the roadside search.
2. Consent
Defendant contends that the government cannot prove he freely and voluntarily consented to the roadside search of his vehicle because his poor English skills prevented him from understanding that he was being asked to consent to a search. In addition, defendant urges that defendant's consent was tainted by Trooper Epperly's questions, which exceeded the permissible scope of the traffic stop. Because the Court has already determined that no Fourth Amendment violation occurred, there can be no taint. Thus, the Court addresses only defendant's first contention.
A search authorized by consent is wholly valid and a well-recognized exception to the prohibition against warrantless searches. "Valid consent is consent which is freely and voluntarily given." Voluntariness of consent is a question of fact to be determined from all the circumstances; a court should neither presume that the consent was voluntary nor involuntary. The government bears the burden of proving that consent was voluntary. To satisfy this burden, the government must show that the consent was unequivocal and specific and freely and voluntarily given. Mere submission to lawful authority does not equate to valid consent. Language barriers are relevant in evaluating a defendant's ability to act knowingly, intelligently, and voluntarily.
Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041 (1973).
Patten, 183 F.3d at 1194.
United States v. Hernandez, 93 F.3d 1493, 1500 (10th Cir. 1996).
Patten, 183 F.3d at 1194.
United States v. Pena, 143 F.3d 1363, 1366 (10th Cir. 1998).
United States v. Manuel, 992 F.2d 272, 275 (10th Cir. 1993).
United States v. Hernandez, 893 F. Supp. 952, 961 (D. Kan. 1995), aff'd, 103 F.3d 145 (10th Cir. 1996).
The Court concludes that, under the totality of the circumstances, defendant's consent to search was voluntary. Trooper Epperly first asked defendant for consent to search in English, but defendant seemed confused, so he asked "¿ Me buscar por drugas en su carro?" Defendant argues that this question is confusing because the verb " buscar" is not conjugated; to say "I look for" in Spanish, one must say " yo busco para." The Court disagrees; it is obvious from defendant's response that he understood Trooper Epperly's question. The videotape reveals that in response to this question, defendant did not hesitate, but immediately said, "Okay, no problem." Trooper Epperly similarly testified that defendant shook his head and replied affirmatively in response to this question. The Court notes that Trooper Epperly's testimony that he was able to reasonably communicate with defendant is uncontroverted.
In addition, defendant argues that adding the English word "me" in front of the unconjugated verb buscar "is ambiguous and confusing at best." The Court does not agree that using the English word "me" rendered the consent involuntary; defendant was not wholly unfamiliar with the English language. For instance, when Trooper Epperly asked defendant where in Oklahoma he had been, defendant replied, "since it was my first time there, I don't know exactly where in Oklahoma." Trooper Epperly then asked defendant in English, if he had been to Texas and defendant responded, "no, only Oklahoma." Consent is valid if the facts show that defendant understood an officer's requests sufficiently to respond to them. While Trooper Epperly may not have phrased his request to search in perfect Spanish form, defendant understood this request sufficiently to respond to it. Thus, the Court concludes that defendant's consent was freely and voluntarily given.
See United States v. Lopez-Guzman, 246 F. Supp. 2d 1155, 1161-62 (D. Kan. 2003).
D. Validity of Williams Automotive Search
Defendant argues that he did not knowingly consent to follow Trooper Epperly to Williams Automotive for additional searching because, this time, Trooper Epperly asked defendant for consent in English only. Trooper Epperly asked defendant, "Will you follow me? I want to look in your gas tank," to which defendant responded, "Okay." Trooper Epperly next said, "You follow me, okay? We go up here, turn around and go into Emporia and me look, okay?" Defendant responded, "okay, no problem," and proceeded to follow Trooper Epperly to Williams Automotive.
The Court disagrees that defendant's language barrier prevented him from knowingly consenting to follow Trooper Epperly to Williams Automotive, for both defendant's verbal and nonverbal conduct manifested understanding and assent. When asked "will you follow me," defendant did not appear confused, but instead replied affirmatively, stating "okay." As discussed, supra, defendant had at least some understanding of the English language; he was able to communicate his travel itinerary to Trooper Epperly, as well as his name, address and place of employment. The videotape recording the stop additionally reveals that Trooper Epperly was careful to communicate with defendant in Spanish when defendant had difficulty understanding English. Finally, the Court notes that defendant's actions following this conversation are not indicative of a language barrier. Defendant got in his vehicle and followed Trooper Epperly to Williams Automotive, thus further demonstrating his assent by non-verbal conduct. Defendant, therefore, knowingly consented to follow Trooper Epperly to Williams Automotive.
See United States v. Gordon, 173 F.3d 761, 766 (10th Cir. 1999) ("Non-verbal conduct, considered with other factors, can constitute voluntary consent to search.").
Defendant also argues that his consent was involuntary because he believed that Trooper Epperly was giving instructions, not asking a question. Trooper Epperly's request, however, was not phrased as an instruction, but instead was phrased as a question, using the word "will." Nor does the manner in which Trooper Epperly relayed his request suggest that it was a command. The request was phrased in a polite, non-threatening tone, and there are no other indications of a coercive show of authority, such as the presence of more than one officer, the display of a weapon, or physical touching by Trooper Epperly, indicating that compliance might be compelled. After reviewing all of the circumstances, the Court finds that defendant's consent was voluntarily given.
E. Scope of Search at Williams Automotive
Finally, defendant argues that assuming, arguendo, he agreed to follow Trooper Epperly to Williams Automotive, the consent was limited to searching the gas tank itself. By continuing to search the vehicle after dispelling his suspicions of the gas tank, Trooper Epperly exceeded the scope of defendant's consent.
When law enforcement officers rely upon consent to justify a warrantless search, the scope of the consent determines the permissible scope of the search. "The court determines from the totality of the circumstances whether a search remains within the boundaries of the consent, viewing the evidence in the light most favorable to the government." Thus, scope "is generally defined by its expressed object," and "is limited by the breadth of the consent given." A defendant's failure to limit the scope of a general authorization to search, and failure to object when the search exceeds what he later claims was a more limited consent, is an indication that the search was within the scope of consent. Where the expressed purpose of the search is to look for drugs or contraband, "[t]hat certainly implies that the officer could look wherever drugs might be hidden."
United States v. Jackson, 381 F.3d 984, 988 (10th Cir. 2004).
West, 219 F.3d at 1177.
Elliott, 107 F.3d 810, 814-15 (10th Cir. 1997).
Jackson, 381 F.3d at 988.
United States v. Ramstad, 308 F.3d 1139, 1146-47 (10th Cir. 2002) (citation omitted).
In the present case, Trooper Epperly did not exceed the scope of defendant's consent because defendant gave consent to search his vehicle at the roadside. No verbal limitation was ever placed upon this consent, even when Trooper Epperly searched the vehicle's trunk, lifted up the backseat of the vehicle to peer underneath, and inspected the vehicle's undercarriage. Nor did defendant object to the search at Williams Automotive. Instead, defendant voluntarily waited in the customer area. At no time, either on the roadside or at Williams Automotive, did defendant ever withdraw or attempt to limit his consent. Trooper Epperly's stated purpose for the search, moreover, was to look for drugs, and, as the Tenth Circuit has held, consent to search for drugs "certainly implies that the officer could look wherever drugs might be hidden." Thus, the Court concludes that Trooper Epperly did not exceed the scope of defendant's consent when he investigated the sag in the roof area of the vehicle and ultimately discovered cocaine secreted behind the sunroof cover.
IT IS THEREFORE ORDERED BY THE COURT that Defendant's Motion to Suppress (Doc. 15) is DENIED.
IT IS SO ORDERED.