Opinion
No. 02-10024-01-WEB
May 16, 2002
Memorandum and Order
This matter came before the court on May 6, 2002, for a hearing on the defendant's motion to suppress evidence. The court orally denied the motion at the conclusion of the hearing. This written memorandum will supplement the court's oral ruling.
I. Facts.
Based on the evidence presented at the hearing, as well as the videotape of the encounter, the court makes the following findings of fact.
The government and the defendant jointly submitted a copy of the videotape (Govt. Exh. 1) to the court prior to the hearing on May 6th, enabling the court to view the videotape tape prior to the hearing. Counsel replayed selected portions of the tape during the May 6th hearing.
On February 15, 2002, at approximately 4:45 p.m., Trooper Terry Kummer of the Kansas Highway Patrol was on duty in Colby, Kansas, when he saw a small recreational vehicle ("RV") parked in the parking lot of the local Subway sandwich shop. The Subway is located close to Interstate 70, which runs east-west through Colby. The RV was toward the back of the lot, between the Subway store and a nearby motel. The hood of the RV was raised and Kummer saw two men apparently working on the engine of the vehicle. The two men were defendant Guadalupe Marquez and his friend, Cipriano Gallegos.
Kummer approached the two men and asked if they were having car trouble. Most of the ensuing conversation was recorded by a microphone worn on Kummer's uniform and was videotaped by a camera mounted in Kummer's patrol car, which was parked behind and to the side of the RV. Most of the conversation is audible on the tape and will not be fully recounted here. The tape discloses that Kummer and the defendant had a brief, polite conversation. The defendant spoke with a Spanish accent and appeared not to speak fluent English; he generally gave short answers and at certain times had difficulty communicating with Kummer. Kummer does not speak Spanish. The defendant appeared to understand Kummer better when Kummer repeated his questions. The defendant's answers were generally responsive to Kummer's questions, although not always.
Kummer asked the two men if they were broken down, and the defendant responded by saying something about the engine "cutting out." Shortly thereafter, the defendant asked Kummer about a mechanic by repeating, "Mechanic? Mechanic?" Kummer gave directions to a mechanic in Colby, to which the defendant replied, "Thank you, sir." When Kummer asked where they were going, the defendant replied, "Vacation." Kummer asked where they were going to, and the defendant said, "Two months," adding, "My friend, no more work." (The tape shows that Kummer frequently repeated the defendant's answers, and the defendant frequently answered back "Yes" when Kummer did so.)
At one point Kummer asked, "Do you speak any English at all? Poquito?" At the suppression hearing, Kummer testified he had asked this question of Mr. Gallegos, who had not said anything in response to Kummer's questions. According to Kummer, defendant Marquez answered "No" on Gallegos' behalf. Kummer asked where they were headed, and when the men hesitated, Kummer suggested possible destinations including Kansas City, St. Louis, and Washington. The defendant indicated "Boston" and said something about his friend. Kummer asked where they were from, to which defendant relied, "Guadalajara, Jalisco." Kummer asked for clarification, and the defendant repeated his answer, adding, "Mexico." Kummer asked if they had driver's licenses, to which the defendant first said no, but then quickly said yes. When Kummer asked if the license was from Mexico, defendant said, "No, no, no, no. I live in California," and produced his driver's license, which indicated he lived in San Diego. When Kummer asked how long he had lived there, the defendant said seventeen years. Kummer returned the license. Shortly thereafter, Kummer told the men he had just wanted to check on them to make sure they weren't broken down, and he said, "You fellows have a good vacation," and started to walk away.
Kummer quickly returned, however, and asked if they would mind if he asked a few questions. Kummer asked if they were carrying anything illegal like guns or drugs, and when they hesitated Kummer added, "Pistolis?" Mr. Marquez and Mr. Gallegos both responded, "No, No." Kummer said, "Is it okay if I search?" The defendant said, "No." Kummer testified that he believed the defendant was still responding to the prior question about "pistolis" in the RV, and he repeated the question, asking, "Is it okay to search?" The defendant responded, "Yes." Due to the possible mis-communication Kummer actually asked several times, "Is it okay if I look for guns or drugs?" At one point, the defendant said something to the effect of, "No, no, no good," which according to Trooper Kummer he again thought was a response by the defendant indicating that he had no guns or drugs in the car. Kummer attempted to clarify the defendant's answer, saying, "Is it okay if I look, or no?", to which defendant responded, "Okay." Kummer said, "It's okay?", and the defendant responded affirmatively, and somewhat more enthusiastically this time, "Yeah, Yeah." Kummer asked if the truck were unlocked, and the defendant said, "No." The defendant then walked around the truck to the driver's side, opened the door, and obtained the keys. He walked around to the passenger side to a "walk-in" door on the RV, unlocked the door, and made a motion with his hand indicating for the trooper to go inside.
Given the circumstances of the conversation, under which the two men were frequently talking over each other and the defendant's responses were at times delayed due to his limited command of English, the court finds that the Trooper's explanation is credible, and the defendant was in fact still responding to the question about whether he had guns or drugs in the car when he said "No" and "no good."
Kummer testified he had noticed prior to entering the RV that there appeared to be little or no luggage inside. Once inside, Kummer noticed a gas can, which he thought was unusual. He asked the defendant about it, and the defendant said it was "for the truck." Kummer looked inside a small refrigerator in the RV. He saw nothing inside the refrigerator and noticed it was not plugged in. Kummer saw one small bag in the RV but otherwise saw no clothes. He looked in the bathroom area and saw no toiletries of any kind. Kummer was aware from past experience that many RV's of this type had a storage area located under the front bench seat of the truck. He lifted up the bench seat and saw what appeared to be a storage area, but it had a piece of plywood nailed over the top of the storage box. Kummer testified that the sealed storage area made him very suspicious. He testified that most storage areas of the this type had a board on top with a small finger hole to allow a person to lift the board off. This board had no such hole. Based on all of the circumstances — including the defendant's explanation of his travel, his claim to be on a two-month vacation without any extra clothes or items associated with an extended trip, and the fact that the storage area under the seat had apparently been nailed shut — Kummer suspected that the two men were transporting drugs in the RV. Kummer radioed in a request for a drug-sniffing dog. Kummer then got out of the RV in order to get a screwdriver to pry up the plywood cover over the storage area. Kummer testified at the hearing that he decided to go ahead and try and open the storage area because he had consent and because the circumstances were so suspicious. He said he had called for the drug dog in case he could not get the storage area opened. The defendant and his friend had been standing or walking around the front of the RV looking at the engine while Kummer was inside the RV. Kummer asked if they were okay and told them not to go anywhere.
At this point Rod Taylor, a retired Kansas Highway Patrol officer now employed as a part-time deputy with the Thomas County Sheriff's Office, pulled up behind the RV because he had seen Trooper Kummer stopped there. Taylor stopped to see if he could assist. Kummer recounted the situation to Taylor and indicated that he suspected the RV contained drugs but "I can't find it." Kummer asked Taylor if he thought it had been a mistake to request a drug dog. Kummer explained that he wanted to open up the storage area under the seat. Kummer took Taylor in the RV and showed him the storage area, expressing his belief that it was highly unusual for the storage area to be sealed over with plywood. At the suppression hearing, Taylor testified that upon entering the RV and getting close to the storage area he could detect an odor of marijuana. After Kummer showed Taylor the storage area, Kummer pried up the plywood covering, revealing a second newer sheet of plywood underneath that was secured with screws. With a drill supplied by Taylor, the officers unscrewed the second piece of plywood and saw what appeared to be (and in fact were) wrapped packages of marijuana.
The tape discloses that Kummer expressed his suspicion to Taylor in the Kansas vernacular, stating, "They don't nail them som' bitches down."
At that point, Kummer arrested the two men. Kummer gave the defendant Miranda warnings in English and later at the station arranged for an interpreter to give Mr. Marquez the warnings in Spanish. After the officers had discovered the marijuana in the storage area, another officer arrived with "Capone," a trained drug-sniffing dog. The dog was taken around the RV and alerted on the passenger side door of the truck near the storage area.
II. Arguments.
In his motion to suppress, the defendant argues: 1) that he was unlawfully detained by the trooper because the trooper asked questions that were beyond the scope of a routine traffic stop; 2) that his alleged consent to search the vehicle was not voluntary; and 3) that the search by the trooper exceeded the scope of the alleged consent when the trooper pried open the covering on the storage compartment. Doc. 14.
III. Discussion.
Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, or by putting questions to him if the person is willing to listen. Florida v. Royer, 460 U.S. 491, 497 (1983). Supreme Court cases make that "a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free `to disregard the police and go about his business,' . . . the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature." Florida v. Bostick, 501 U.S. 429, 434 (1991). "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred." Id.
Given these standards, the court concludes that Trooper Kummer's encounter and conversation with the defendant began as a consensual encounter and remained consensual in nature at least to the point where the trooper exited the RV and told the defendant not to go anywhere. Prior to that point, the trooper did not use any force or show of authority to convey to the defendant that he was not free to move about or to disregard the trooper if he wished to do so. The court rejects defendant's argument that the very nature of the questions posed by the trooper during their conversation, or the fact that the trooper "pretended" to leave and then came back to ask the defendant more questions, amounted to a detention. Even when an officer has no basis for suspecting a particular individual, the officer may generally ask questions of the individual, may ask to examine the individual's identification, and may ask for consent to search — so long as the officer does not convey the message that compliance with these requests is required. Bostick, 501 U.S. at 439. The trooper did not convey such a message here, and the court concludes that the initial encounter and questioning of the defendant was not a seizure within the meaning of the Fourth Amendment.
Defendant contends the trooper was engaging in deception because he did not really intend to leave. Even assuming that to be true, the subjective thoughts of the officer at that point are irrelevant to whether his actions, viewed objectively, amounted to a seizure. Cf. Whren v. United States, 517 U.S. 806, 813 (1996) (subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis).
The second issue the court must decide is whether the defendant voluntarily consented to let the trooper search the vehicle. The defendant argues the government has failed to meet its burden of showing that consent was "unequivocal and specific" and "freely and intelligently given." Citing United States v. Abbott, 546 F.2d 883, 885 (10th Cir. 1977). Although this argument presents a close question in view of the defendant's limited ability to speak English and his periodic difficulty communicating with the trooper, the court concludes the government has met its burden of showing the consent was in fact knowing and voluntary. This finding is based on the totality of the circumstances, including the following. The request for consent to search occurred in a public place, under circumstances that belie any suggestion the trooper used coercion to obtain consent. The encounter between the defendant and the trooper was polite, cordial, brief, and consensual in nature. The defendant is approximately 50 years old and according to his own statement (which is uncontradicted) he has lived in the United States for seventeen years. Although the defendant is not fluent in English, the evidence showed he has a basic ability to understand and communicate in English. A few of the defendant's answers to the trooper's questions were non-responsive, but for the most part the answers were responsive and showed that the defendant understood the question. This was particularly true when the trooper repeated his question, which appeared to help the defendant understand what the trooper was asking. For this reason, the court concludes that the trooper's repetition of his request for consent to search several times did not amount to coercion or badgering; rather, it was consistent with the parties' method of communication and was part of an effort by the trooper to be certain the defendant understood the question. The court further finds credible the proposition that the defendant's initial "no" and "no good" utterances were in fact intended to convey that he had no drugs or guns in the car, and were not intended as a denial of permission to search. When the trooper attempted to clarify and again asked if he could look, the defendant indicated "yeah, yeah" rather enthusiastically. The tape indicates that he may not have understood at first what the trooper was asking, but he did understand the question after it was repeated and was very willing to let the trooper look in the truck. The defendant's understanding is further indicated by his actions when the trooper asked if the truck were unlocked; the defendant said "no" and immediately retrieved the key from the RV and unlocked the door, motioning with his hand for the trooper to go inside. Under the circumstances, the court concludes that the defendant's affirmative response and his actions constituted "unequivocal and specific" consent, without duress or coercion, that was "freely and intelligently" given.
As the court noted above, after the trooper found the sealed storage box, he got out of the truck and told the defendant not to go anywhere. Assuming that this directive constituted a detention of the defendant, the court concludes the trooper had a reasonable suspicion of criminal activity at that point, based upon specific and articulable facts, which justified a brief detention for further investigation. Aside from the apparent inconsistencies between the defendant's explanation of his travel and the circumstances observed by the trooper, the sealed storage container — which the trooper knew from his experience was highly unusual — gave rise to a reasonable suspicion. Cf. Terry v. Ohio, 392 U.S. 1, 22 (1968); United States v. Treto-Haro, 287 F.3d 1000 (10th Cir. 2002). Under the circumstances, this brief detention was reasonably related in scope to the circumstances giving rise to the suspicion.
The defendant's final argument is that the trooper exceeded the scope of the consent by prying open the plywood coverings on the storage container. The court rejects this argument for two reasons. First, the testimony persuades the court that Officer Taylor detected an odor of marijuana before the officers removed the plywood. That fact, together with the other circumstances known to the officers, provided probable cause to believe the storage area contained drugs. See United States v. Vasquez-Castillo, 258 F.3d 1207, 1213 (10th Cir. 2001). As such, the officers could lawfully search the compartment without obtaining a warrant. See California v. Acevedo, 500 U.S. 565, 572 (1991) (where probable cause justifies the search of a vehicle, it also justifies the search of every part of the vehicle, including closed containers, that may conceal the object of the search). This is true regardless of whether or not the officers believed the facts known to them were sufficient to establish probable cause. Cf. United States v. Santana-Garcia, 264 F.3d 188, 1992 (10th Cir. 2001) (officer's subjective belief as to the existence of probable cause is not determinative). Secondly, the court concludes that the removal of the plywood and the examination of the storage compartment was within the scope of the consent granted by the defendant. The Supreme Court has said that a general consent to search a particular area is reasonably understood to extend to containers that could contain contraband, absent some indication by the person that he wishes to limit the search. See Florida v. Jimeno, 500 U.S. 248, 252 (1991). In this case, the defendant did not limit the search, nor did he object to the trooper's search of the storage area. See United States v. Gordon, 173 F.3d 761, 766 (10th Cir. 1999). And, as the government points out, there is no evidence that the officers' removal of the plywood damaged or destroyed the storage container or the plywood covering. Cf. United States v. Osage, 235 F.2d 518, 521 (10th Cir. 2000) (opening item and "thereby rendering it useless and incapable of performing its designated function" may be beyond scope of general consent to search). Under the circumstances, the court concludes the search was within the scope of the consent granted by the defendant.
IV. Conclusion.
The court finds that the trooper's search did not violate the defendant's Fourth Amendment rights. Accordingly, the motion to suppress (Doc. 13) is DENIED. IT IS SO ORDERED this Day of May, 2002, at Wichita, Ks.