Opinion
Civil Action No. SA-05-CR-500-XR.
February 17, 2006
ORDER
On this day, the Court considered Defendant Leyva's motion to suppress (docket no. 34) and Defendants' Joint Motion to Suppress (docket no. 35). Defendants argue that Texas Department of Public Safety Troopers unreasonably detained and searched their vehicle in violation of their Fourth Amendment rights. The Motions to Suppress are DENIED.
FINDINGS OF FACT
1. On July 21, 2005, in Frio County, Texas, Trooper Ebrom noticed a car driving on the improved shoulder of Interstate Highway 35.
2. The manner in which the vehicle was being driven provided Trooper Ebrom with reasonable suspicion that the driver committed the offense of failing to maintain a single lane of traffic, committed the offense of driving on shoulder of lane, and might be driving while impaired by alcohol or drugs. Tex. Transportation Code §§ 454.058, 545.060.
3. Trooper Ebrom turned on his overhead emergency lights and initiated a stop of the vehicle. The entire stop was visually recorded by Trooper Ebrom's camera mounted inside his marked police car. The lawful traffic stop begins at approximately 10:36:45.
4. Trooper Ogden was in a second patrol vehicle behind Trooper Ebrom and arrived at the scene by 10:37:54. Trooper Ogden proceeded to question the passenger who remained in the vehicle.
5. Trooper Ebrom knocked on the trunk of the vehicle and requested that the driver step out of his vehicle and go to the improved shoulder. Trooper Ebrom asks: "Are you alright today, cause I noticed you kinda swerving back and forth a little. Have you been drinking?" The driver denied drinking and states that he was just coming from Laredo. At 10:37:36, Trooper Ebrom responds, "what are you doing in Laredo?" and requests that the driver (Leyva) produce identification. At 10:38:04 it appears that the driver's right hand is shaking and Trooper Ebrom asks if there is anything wrong, why the driver is nervous, and again asks whether or not the driver had been drinking.
6. At 10:37:28, Leyva volunteered that he was "coming from Laredo." When Trooper Ebrom responded by asking what they were doing in Laredo, Leyva stated that his brother-in-law (Vasquez) was working down there. At 10:38:39, Trooper Ebrom asked Levya how long they were in Laredo, and Levya responded "three days" "yeah, Friday." Trooper Ebrom then questioned how that could be correct since it was already Thursday. Levya was unable to account for his whereabouts for the last several days. Levya then also stated that the purpose of the Laredo trip was to visit his father.
7. At 10:40:15, Trooper Ebrom left Levya and proceeded to speak with Trooper Ogden. At 10:41:39, Trooper Ogden informs Trooper Ebrom that the passenger (Vasquez) claimed that the purpose of the Laredo trip was to "drop off his step-daughter" and that they arrived in Laredo yesterday.
8. Trooper Ebrom returned to Leyva (10:42:32) and again questioned how long they had been in Laredo. Leyva confirmed that they were in Laredo for three days and that they stayed at his sister's house. Trooper Ebrom asked whether they brought anyone else down to Laredo and Leyva denied that anyone else had been in the car.
9. At 10:44:58, Trooper Ebrom informs Levya that he is going to give him a couple of warnings. Vasquez responds to questions by Trooper Ogden and states that they stayed at a Motel 9 while in Laredo. 10:45:50.
10. At 10:47:46, Trooper Ebrom calls his dispatcher seeking information on Leyva and Vasquez. At 10:48:13, Trooper Ebrom instructs Levya not to communicate with Vasquez. Trooper Ebrom was justified in directing that the driver and passenger not communicate with each other as a safety precaution.
11. At 10:49:20, the dispatcher provides information on Vasquez. It is uncertain from the videotape when, if at all, the dispatcher relayed information regarding Leyva.
12. At 10:50:45, Trooper Ebrom questions whether Leyva is carrying anything illegal. Leyva denies that anything illegal is in the car.
13. At 10:51:40, Trooper Ebrom asks Leyva for permission to" search the vehicle and all its components." Leyva says "go ahead", but also informs the Trooper that the car belongs to Vasquez.
14. At 10:51:55, Trooper Ogden asks Vasquez whether there is anything illegal in the car. Vasquez denies that anything illegal is in the car.
15. At 10:52:56, Trooper Ebrom returns to Leyva and resumes writing the warning citation. He again questions Levya as to whether or not they brought any other family member down to Laredo. Leyva again denies that anyone else was with them during the trip and he confirms that they did not stay at a motel.
16. At 10:54:20, Trooper Ebrom requests that Levya sign the written warning and Leyva with visibly shaking hands returns the document to the Trooper. Trooper Ebrom responds: "Man you're about to jump out of your skin. You know that? What's wrong with your hands bro?" Trooper Ebrom again questions whether there is anything illegal in the car? Levya again denies and states" I'm not. I have nothing in the car. You can go ahead and check it." 10:55:00.
17. Based upon the conflicting stories given by Leyva and Vasquez and Leyva's nervous behavior, Trooper Ebrom had a reasonable suspicion that the two individuals were engaged in some type of criminal activity.
18. At 10:55:14, Vasquez provided consent to Trooper Ogden to search the vehicle and Vasquez exited the vehicle and Trooper Ebrom conducts a "pat down" (10:57:12). At 10:57:31, Levya is "patted down" and at 10:57:45 a search of the vehicle begins.
19. At 11:12:08, Trooper Ogden locates suspected narcotics that were found hidden in the air breather located in the engine compartment. The dispatcher is informed and Levya and Vasquez are placed in handcuffs and read their Miranda rights. 11:14:46.
20. During the search described above, the vehicle in question was not damaged nor was the vehicle altered in any material fashion. After the vehicle was towed to the Highway Patrol Office, next to the Frio County Jail, a further search of the vehicle was done where the door panels and carpeting were removed.
"As I am approaching the vehicle, I observed it swerve over onto the improved shoulder of the solid white line with both right-side tires. The vehicle then swerved back into its lane and then swerved back across the center stripe and traveled on the center stripe for a short period of time. It repeated this action — I believe in my report at least three times."
"Real" time was actually 11:36:45. The video recorder time was never changed from standard to daylight savings time. All times reflected in this order will reflect the time actually shown on the video.
"It is an officer safety issue. We don't know if, you know, if he has a gun inside the car. We don't know if they are wanted. This guy comes out or if they want to fight or they want to, you know, say: Okay here. You know, they've got us or whatever. You know, let's go ahead and fight it out or shoot it out, or whatever."
CONCLUSIONS OF LAW
1. Any finding of fact herein above which also constitutes a conclusion of law is adopted as a conclusion of law. Any conclusion of law herein made which also constitutes a finding of fact is hereby adopted as a finding of fact.
The Initial Traffic Stop
2. The primary law enforcement purposes for making a traffic stop of a moving vehicle on a public highway are: (1) to verify that a violation of the traffic laws has occurred or is occurring and, (2) to provide for the issuance of an appropriate ticket or citation charging such traffic violation or make an arrest of the driver based upon such violation. Thus, the primary law enforcement purposes of investigating the swerving onto the improved shoulder and across the center stripe justified the initial detention. U.S. v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005) (pet. for cert. filed Jan. 25, 2006).
3. Any questioning that took place from the initial stop (10:36:45) until the completion of the warning (10:54:20) was legitimate. See U.S. v. Brigham, 382 F.3d 500, 511 (5th Cir. 2004) ("There is, however, no constitutional stopwatch on traffic stops. Instead, the relevant question in assessing whether a detention extends beyond a reasonable duration is whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly."). The Troopers in this case diligently pursued their investigation.
4. Defendants rely upon U.S. v. Santiago, 310 F.3d 336 (5th Cir. 2002) for their argument that even if there was a valid initial stop, the detention was extended far beyond the time necessary to issue a warning citation. In Santiago, a panel of the Fifth Circuit stated: "Because the traffic stop was valid initially and because a violation of another state statute arguably became apparent after the initial stop, Trooper Raley was permitted to ask for Santiago's license and registration and to run a computer check thereon. . . . Trooper Raley's original justification for the stop ended, however, at the time the computer check was completed. . . . At that point, there was no reasonable or articulable suspicion that Santiago was trafficking in drugs, but Raley nonetheless continued his interrogation after the original justification for the stop had ended. . . . Therefore it was unreasonable for Trooper Raley to continue to detain Santiago after the records check was completed and the extended detention violated Santiago's Fourth Amendment rights." Id. at 342. See also U.S. v. Jones, 234 F.3d 234, 241 (5th Cir. 2000) ("The basis for the stop was essentially completed when the dispatcher notified the officers about the defendants' clean records, three minutes before the officers sought consent to search the vehicle. Accordingly, the officers should have ended the detention and allowed the defendants to leave. And the failure to release the defendants violated the Fourth Amendment. . . . [Further, the Fifth Circuit held] that there was no reasonable suspicion of drug trafficking, or any other crime, to further detain the defendants."); U.S. v. Dortch, 199 F.3d 193, 198 (5th Cir. 1999) ("Although Dortch was detained and questioned while the computer check was pending, this was lawful. The Constitution was violated, however, when the detention extended beyond the valid reason for the initial stop. To be sure, Dortch did not feel free to leave even after the officer had informed him that the computer check was completed, because the officers still held his license and rental papers and had told him they were going to detain his car until the dog team arrived. Although, upon arrival of the dogs, the officer asked Dortch whether he wanted to stick around while the dogs completed their search, Dortch's acquiescence at this point cannot be considered voluntary.").
5. The Court concedes that it is difficult to reconcile Santiago, Jones and Dortch with the Fifth Circuit's more recent cases in this area. However, the Court is bound to apply the law as recently stated by the Fifth Circuit in U.S. v. Brigham, 382 F.3d 500 (5th Cir. 2004) (en banc) (discussed in paragraph 7). Post- Brigham cases appear to support this Court's understanding that the motions to suppress should be denied. See U.S. v. Perez Reyna, 153 Fed. Appx. 923, 924-25 (5th Cir. 2005) ("Reyna also argues that the officer unreasonably prolonged the stop. The routine questions the officer asked Reyna, and the routine questions he asked Reyna's wife to confirm Reyna's answers, were within the scope of the initial stop and took only a few minutes to complete. See Brigham, 382 F.3d at 507-08. During the course of the stop, the smell of gasoline and the apparently malfunctioning gas gauge created reasonable suspicion that the tank might contain contraband; therefore, the officer's decision to briefly check the tank was reasonably related to "dispelling his reasonable suspicion developed during the stop." Id. at 507. Reyna also challenges his consent to search the vehicle; he asserts his consent was mere acquiescence to the officer's show of authority rather than knowing and voluntary consent. Based upon our review of the evidence, the district court did not clearly err in finding that Reyna's consent was knowing and voluntary given."); U.S. v. Cohen, 150 Fed. Appx. 307, 308 (5th Cir. 2005) ("Cohen contends that Trooper Esqueda unreasonably and unconstitutionally prolonged his detention beyond that necessary to effectuate the purpose of the initial stop, asking questions unrelated to the stop and relying only on a generalized suspicion of wrongdoing, a hunch. Contrary to Cohen's assertion, Trooper Esqueda did not ask any impermissible questions during the course of his detention. See Brigham, 382 F.3d at 508. Moreover, the transcript of the suppression hearing establishes that Trooper Esqueda relied on more than a generalized suspicion of wrongdoing; instead, Trooper Esqueda's actions were a graduated response to emerging facts, were reasonable under a totality of the circumstances, and did not unconstitutionally extend Cohen's detention. See id. at 506-09. Cohen's contention that his consent to search his truck was limited to the tractor or cab portion of the truck and that Trooper Esqueda exceeded the scope of Cohen's consent when he searched the truck's trailer without Cohen's explicit consent to search it is unavailing."); U.S. v. Powell, 137 Fed. Appx. 701, 706 (5th Cir. 2005) ("In the instant case, the Government contends that Asby's continued detention of Powell after the completion of the computer check was permissible because Asby had obtained reasonable suspicion during the course of his investigation of the speeding violation. The Government points to the following facts to support its contention of reasonable suspicion: (1) Powell was stopped at approximately 11:30 at night; (2) Powell had been traveling north on a known drug corridor; (3) Powell's driver's side window would not roll completely down, suggesting the possibility that drugs were hidden in the compartment of the vehicle's door; (4) Powell's hands were shaking; and (5) Asby's discrediting of Powell's story that he was coming from Houston after visiting a `lady friend' and that he planned to stop off in Dallas before returning to Wisconsin. The Government asserts that when each of these factors are taken together as a whole, and reasonable inferences are drawn from them, they are sufficient to warrant objectively reasonable suspicion of drug trafficking, enough to justify the extended nine minute delay of Powell. We agree. When the total of these specific facts are taken together, in the light most favorable to the prevailing party as we are required to do on this appeal, we cannot conclude that Asby's continued detention of Powell was unreasonable. . . . To no avail, Powell relies on our prior holdings in Santiago and Jones to support his assertion that the facts on which the Government relies do not support a reasonable belief of drug trafficking."); U.S. v. Jordan, 135 Fed. Appx. 783, 784 (5th Cir. 2005) ("Jordan contends that it took Chauvin 12 minutes to complete the citation for which he was pulled over, when the ticket should have been issued within a matter of seconds, and that Chauvin unreasonably and unconstitutionally prolonged his detention beyond that necessary to effectuate the purpose of the initial stop, asking questions unrelated to the stop and "relying on a vague hunch of wrongdoing." Contrary to Jordan's assertion, Chauvin did not ask any impermissible questions during the course of his detention. See Brigham, 382 F.3d at 508. Moreover, the transcript of the suppression hearing establishes that Chauvin relied on more than a "vague hunch of wrongdoing;" instead, Chauvin's actions were a graduated response to emerging facts, were reasonable under a totality of the circumstances, and did not unconstitutionally extend Jordan's detention.").
6. Before an officer can further investigate during a traffic stop, he or she must be able to articulate specific facts and circumstances that present a reasonable suspicion. By examining the totality of the circumstances, the Court must determine "whether the detaining officer has a `particularized and objective basis' for suspecting legal wrongdoing." U.S. v. Arvizu, 534 U.S. 266, 273 (2002) (citation omitted).
7. Based upon the conflicting stories given by Leyva and Vasquez and Leyva's nervous behavior, Trooper Ebrom had a "particularized and objective basis" for suspecting legal wrongdoing. U.S. v. Brigham, 382 F.3d at 512 ("For the reasons discussed above, we do not presume to prescribe in the abstract the scope of questioning, investigative techniques, or length of permissible detention that may be undertaken following a valid traffic stop. The bounds of existing caselaw are clear, if fact-intensive: a traffic detention may last as long as is reasonably necessary to effectuate the purpose of the stop, including the resolution of reasonable suspicion, supported by articulable facts within the officer's professional judgment, that emerges during the stop.").
Validity of consent to search the vehicle
8. To determine whether consent was voluntary, the court considers the following factors: (1) the voluntariness of the custodial status; (2) the presence of coercive police procedures; (3) the extent and level of cooperation with the police; (4) the awareness of the right to refuse consent; (5) the education and intelligence of the defendant; and (6) the belief that no incriminating evidence will be found. U.S. v. Solis, 299 F.3d 420, 435-36 (5th Cir. 2002).
9. Defendants argue that their consent was not voluntary. They point out that Leyva was ordered to exit the vehicle and stand by the shoulder of the road and Trooper Ebrom questioned Leyva in an "overbearing and derisive" manner. Although some of Trooper Ebrom's comments, which were directed primarily to Trooper Ogden, were less than professional, they were not overbearing, derisive or condescending and did not effect the voluntariness of the consent given by both defendants to the vehicle search.
10. Leyva also argues that he was ordered to remove his eyeglasses and that is evidence he was coerced into providing consent. The Court disagrees and finds that the direction to remove his eye wear is consistent with Trooper Ebrom's initial concerns that the driver may have been impaired due to alcohol or drugs and driving in an erratic manner.
11. Both defendants also argue any consent given at 10:51: 40 was not voluntary because Trooper Ebrom's previous actions such as opening the driver door (10:40:25) and leaning inside while Trooper Ogden questioned passenger Vasquez constituted an improper search. Accordingly, Defendants argue that where consent is preceded by a Fourth Amendment violation, the government has a heavy burden of proving consent which cannot be met in this case. U.S. v. Jaquez, 421 F.3d 338, 342 (5th Cir. 2005) ("Even if given voluntarily, however, consent does not validate a search that is the product of an unlawful stop — seizure — and not an independent act of free will sufficiently attenuated to break the chain of events between the Fourth Amendment violation and the consent. To determine whether the causal chain was broken, we consider: (1) the temporal proximity of the illegal conduct and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the initial misconduct. The government bears the burden of proving admissibility."). Further, Defendants argue that the Troopers' questioning (10:50:45) as to whether either of them were carrying anything illegal right before permission is asked to search the vehicle (10:51:40) was coercive.
12. A "consent to search may, but does not necessarily, dissipate the taint of a Fourth Amendment violation." U.S. v. Chavez-Villarreal, 3 F.3d 124, 127 (5th Cir. 1993). The Government must establish that the consent was an independent act of free will and voluntary. Id.
13. Trooper Ebrom's opening of the driver door without consent and peering into the vehicle is troublesome. Trooper Ebrom testified he did so in order to better hear passenger Vasquez's answers to questions posed by Trooper Ogden. In some respects it can be argued that no search was done inasmuch as any contents inside the car could have as easily been seen by the troopers by merely looking through the window. It can also be argued that by physically leaning inside the car, Trooper Ebrom was engaging in a closer examination than could otherwise be provided by a visual examination from outside the vehicle's windows. The Court concludes that an improper search without consent was conducted by Trooper Ebrom at 10:40:25. U.S. v. Hunt, 253 F.3d 227, 231 (5th Cir. 2001) (intrusion into the interior of an automobile for investigative purposes constitutes a search).
14. The Court thus proceeds to determine whether the subsequent consent dissipated the taint of the Fourth Amendment violation. After a close examination of the videotape, the Court concludes that the Defendants' consent was voluntarily given and Trooper Ebrom's actions were not coercive. Further, Leyva's cooperation with the Trooper was substantial. Levya initiated most of the topics that lead to the Trooper's discovery of contradictory statements between Leyva's version of events and Vasquez's. Although Trooper Ebrom did not inform Leyva that he did not have to consent, in the Fifth Circuit, the government is not required to show that the defendant was aware of his right of refusal. U.S. v. Hernandez, 279 F.3d 302, 308 (5th Cir. 2002). There is nothing in the videotape to indicate that a lack of education impacted the voluntariness of his consent. Leyva at all times appears to understand all questions posed to him and has no apparent difficulty engaging in a conversation in the English language. Further, it is likely Leyva knew that incriminating evidence would be found. However, if he did not know of any drugs inside the engine compartment, there would have been no reason for him to deny consent for a search. Thus, there is nothing under this factor to indicate that his consent was not voluntary.
15. As to whether Defendant Leyva's consent was an independent act of free will, breaking the causal chain between the consent and the constitutional violation, the Court concludes that eleven minutes elapsed between the opening of the car door by Trooper Ebrom and the consent. During the interim, Levya is informed by Trooper Ebrom that he is going to be given a warning for the traffic violation. Trooper Ebrom opened the car door and kept it open for 1 minute and 15 seconds. Reviewing the temporal proximity of the illegal conduct and the consent; the presence of intervening circumstances; and the purpose and the flagrancy of the initial misconduct, the Court concludes that Leyva's subsequent consent to search did cure any Fourth Amendment violation, and the defendant's consent was an independent act of free will, breaking the causal chain between the consent and the constitutional violation.
Scope of Consent
16. Defendants alternatively argue that no consent was given to search under the hood of the vehicle. Trooper Ebrom clearly asked if he could "search the vehicle and all its components." Leyva responded "Go ahead." (10:51:40). At 10:55:00, Trooper Ebrom again brings up a search of the vehicle stating: "Are you sure there is nothing there inside the car? When I search it, I'm gonna find it. And it would be in your best interest to let me know, ok? Because it would be easy on you, ok? Cause I can work with you, but if you lie I can't work with you, so it's better to tell the truth if you know what I mean. The truth will set you free, brother." To this Leyva responds:" I'm not. I have nothing in the car. You can go ahead and check it." At 10:57:45, a search of the vehicle commences. At 11:12:08, Trooper Ogden located the cocaine under the engine hood. At no time did either Defendant request in any manner that the search be halted, nor at any time did they withdraw their consent.
17. Defendant Leyva's reliance on U.S. v. Stewart, 93 F.3d 189 (5th Cir. 1996) fails. In Stewart, the Fifth Circuit stated: "The standard for measuring the scope of the suspect's consent is objective reasonableness. Recitation of magic words is unnecessary; the key inquiry focuses on what the typical reasonable person would have understood by the exchange between the officer and the suspect. The scope of a search is generally defined by its expressed object." Id. at 192. The Court then recited the facts in U.S. v. Rich, 992 F.2d 502 (5th Cir.), cert. denied, 510 U.S. 933 (1993). "In Rich, a police officer asked the driver of a truck if he was carrying any narcotics or weapons in the truck. After the driver said no, the officer asked to `have a look in' the truck to which the driver consented. The officer unlocked the truck, looked inside and opened a suitcase that he found in the truck. The officer discovered marijuana in the suitcase and arrested the driver. The Court held that the suitcase search was not beyond the scope of the driver's consent and that `any words, when viewed in context, that objectively communicate to a reasonable individual that the officer is requesting permission to examine the vehicle and its contents constitute a valid search request for Fourth Amendment purposes.'" Rich, 992 F.2d at 506.
18. The Court concludes that the search under the hood was within the scope of the Defendants' consent. U.S. v. McSween, 53 F.3d 684, 688 (5th Cir.), cert. denied, 516 U.S. 874 (1995) ("The question, then, is whether it was reasonable to interpret McSween's general oral consent to search the car as authority to search under the hood. Although the `scope of a search is generally defined by its expressed object,' the officers here never told McSween the purpose of their search. The failure to specify the object of the search, however, is not dispositive if the circumstances could otherwise lead a reasonable person to conclude that the search might include the area under the hood. In Crain, the defendant argued that, because the officers never indicated the purpose of their search, an objectively reasonable person would not consider their consent to include the opening of a `closed paper bag shoved under the [car's] seat.' Rejecting this argument, we held that a general consent to search a car includes consent to open a paper bag inside it, at least when the defendant does not attempt to limit the scope of the search. As in Crain, although the officers here made a general request for a search without identifying their objective, McSween never objected to the scope of the search.").
CONCLUSION
Defendant Leyva's motion to suppress (docket no. 34) and Defendants' Joint Motion to Suppress (docket no. 35) are DENIED.